AMERICAN CONTRACTORS INDEMNITY COMPANY v. BILL WHORFF INC et al

Filing 69

ORDER ON MOTION FOR HEARING denying 66 Motion for Hearing. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
AMERICAN CONTRACTORS
INDEMNITY COMPANY,
Plaintiff
v.
BILL WHORFF, INC., et al.,
Defendants

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No. 2:10-cv-434-DBH

ORDER ON MOTION FOR HEARING
Pro se defaulted defendant Robin L. Whorff has requested a hearing with respect to
assets of her son that she says were frozen in response to an order of this court dated November
23, 2010, approving the plaintiff’s motion for attachment and attachment on trustee process
against, inter alia, her property. See Dockets No. 19, 66-68. Ms. Whorff contends that she is
named on the accounts in question as a guardian because her son is a minor, and that the
accounts contain her son’s college savings. See Docket No. 68. The plaintiff filed no response
to Ms. Whorff’s motion. See ECF Docket.

I deny the motion without prejudice on the showing

made.
Pursuant to Federal Rule of Civil Procedure 64, this court must look to state law in
adjudicating matters of attachment and trustee process. See Fed. R. Civ. P. 64; Murphy v.
Foster, 518 F. Supp.2d 292, 294 (D. Me. 2007). Maine Rule of Civil Procedure 4A(h) governs
the dissolution or modification of attachments, and Maine Rule of Civil Procedure 4B(j) governs
the dissolution or modification of trustee process. Both rules contemplate the dissolution or
modification of an order of attachment or trustee process only in circumstances in which (i) the
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order was entered ex parte or (ii) the defendant makes a showing that specific property or
sufficient cash or bond is available to satisfy a judgment. See Me. R. Civ. P. 4A(h), 4B(j). The
order at issue was not entered ex parte. See Docket Nos. 3, 19. And, Ms. Whorff has not made a
showing that specific property or sufficient cash or bond is available to satisfy a judgment. See
Docket No. 66-68. While both Rule 4A and Rule 4B provide that “[n]othing herein shall be
construed to abolish or limit any means for obtaining dissolution, modification or discharge of
[an attachment or trustee process] that is otherwise available by law[,]” Me. R. Civ. P. 4A(h),
4B(j), Ms. Whorff cites no authority for the requested hearing and modification.
In any event, Ms. Whorff has never moved pursuant to Federal Rule of Civil Procedure
55(c) to set aside, for good cause, the entry of default against her on November 19, 2010. See
Docket No. 18.

The Maine Law Court has held that a defaulted party cannot attack an

underlying attachment order without first demonstrating good cause for its default pursuant to
Rule 55(c). Levine v. KeyBank Nat’l Ass’n, 2004 ME 131, ¶ 10, 861 A.2d 678, 682.1
Finally, to the extent that Ms. Whorff meant to make this motion on behalf of her minor
child, rather than herself, she cannot do so. A parent who is not a licensed attorney may not
represent her child in a civil action such as this one. See, e.g., Austin v. Town of Dexter, 552 F.
Supp.2d 38, 39-40 (D. Me. Apr. 8, 2008).

NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
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Proceedings against Ms. Whorff and several other defendants in this case were stayed following the plaintiff’s
filing of a notice to the court on January 17, 2011, that those defendants had filed bankruptcy petitions in the United
States Bankruptcy Court for the District of Maine. See Docket Nos. 43, 46. Those petitions included a petition filed
by Ms. Whorff and James E. Whorff bearing case number 11-20016. See Docket No. 43. According to my
research, a final decree discharging the trustee in bankruptcy and closing bankruptcy case number 11-20016 was
issued on September 19, 2011.

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Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 14th day of March, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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