HANCOCK LUMBER COMPANY INC v. CARBARY et al

Filing 23

ORDER ON DEFENDANTS MOTION TO STRIKE: denying 14 Motion to Strike By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HANCOCK LUMBER CO. INC.,
Plaintiff,
v.
THOMAS R. CARBARY and
ROBERT J. MISTICK,

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) Docket no. 1:11-cv-317-NT
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Defendants
ORDER ON DEFENDANT’S MOTION TO STRIKE
This matter comes before the Court on Defendant Thomas R. Carbary’s
motion to strike the affidavit of Sheri Berk. Also pending, though not decided in
this order, is the Plaintiff’s motion for attachment and trustee process. The Court
DENIES Defendant Carbary’s motion to strike the affidavit of Ms. Berk, and directs
the Clerk to set the Plaintiff’s motion for attachment and trustee process for a
hearing no sooner than twenty-one days after entry of this order.
On August 22, 2011, Hancock Lumber filed suit against Mr. Carbary to
enforce a commercial guaranty executed by Mr. Carbary in 2002 which guaranteed
payment of charges by Mr. Carbary’s company, Wholesale Lumber Services, Inc., on
its account at Hancock Lumber.

According to the verified complaint, Hancock

Lumber sold and delivered $95,544.90 in goods to Wholesale Lumber between
December 30, 2010 and February 10, 2011, and, despite demand, was never paid for

these goods.

Along with the complaint, Hancock Lumber filed a motion for

attachment and trustee process against Mr. Carbary.
Mr. Carbary answered the complaint and opposed the motion for attachment
and trustee process, calling into question inter alia the ultimate terms of any
agreement between Hancock Lumber and Mr. Carbary and whether the goods sold
to Wholesale Lumber in late 2010 through early 2011 were covered by the guaranty
he had signed in 2002.

In response, Hancock Lumber filed a reply and a

supplemental affidavit of Sheri Berk, Hancock Lumber’s accounts receivable
general manager, explaining the circumstances under which Mr. Carbary’s
guaranty was signed back in 2002 and including invoices for the goods sold in 20102011 to Wholesale Lumber.
Following this reply, Mr. Carbary filed a motion to strike Ms. Berk’s affidavit
on the ground that replies, and in particular reply affidavits, are not authorized by
Maine’s rules governing attachment and trustee process, M.R. Civ. P. 4A and 4B1.
Mr. Carbary asserts that Hancock Lumber’s present motion for attachment and
trustee process is insufficient without Ms. Berk’s reply affidavit and asks the Court
to first strike this affidavit and then to deny the motion for attachment and trustee
process.

Federal Rule of Civil Procedure 64 provides that “At the commencement of and throughout an
action, every remedy is available that, under the law of the state where the court is located, provides
for seizing a person or property to secure satisfaction of the potential judgment.” Maine Local Rule
of Civil Procedure 64 further provides that “A party to a civil action… may move for approval of
attachment of property, including trustee process… within the District of Maine in accordance with
state law and procedure as would be applicable had the action been maintained in the courts of the
State of Maine, with the exception that the time periods provided in Rule 7 of these rules shall apply
to the filing of objections to motions.” Maine’s laws providing for prejudgment attachment and
trustee process are contained within its rules of civil procedure, M.R. Civ. P. 4A and 4B.
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Rules 4A and 4B do not expressly permit a plaintiff to file a reply or a
supplemental affidavit in support of a motion for attachment and trustee process
and Maine’s case law touching upon any such practice is inconclusive. See Harris v.
The Woodlands Club et al., 2009 WL 1747883 (Me. Super., March 23, 2009)
(striking the Plaintiffs’ reply affidavit on a motion for attachment and trustee
process but noting that the Law Court has not decided the issue of the
permissibility of reply affidavits and pointing out that considering the reply
affidavits would not in any event have helped the plaintiffs.)
However, Mr. Carbary concedes that Rule 4A allows Hancock Lumber to
refile its motion if at first it doesn’t succeed, and that Hancock Lumber could attach
Ms. Berk’s affidavit at that time. Therefore, Mr. Carbary ultimately cannot prevent
the presentation to the Court of this evidence. It does not serve the interests of “the
just, speedy, and inexpensive determination” of this action to analyze the sufficiency
of Hancock Lumber’s motion for attachment and trustee process in the absence of
this affidavit, only to have to possibly reconsider it at a later date with the affidavit.
See Fed. R. Civ. P. 1, M.R. Civ. P. 1 (directing that the rules of civil procedure
“should be construed and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding.”)
The Court by no means wishes to encourage the filing of reply affidavits.
Under different circumstances, it might be appropriate to strike evidence presented
in reply in support of attachment and trustee process. For example, if it appeared
that a plaintiff was engaging in gamesmanship by deliberately withholding

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pertinent information in an initial motion for attachment, or that a plaintiff was
attempting to supplement or correct obvious deficiencies in the evidence presented
in the initial motion, striking such a reply affidavit might be appropriate. In this
case, however, the Court perceives no such circumstances and finds that denying
the Defendant’s motion to strike best serves the goals of a just, speedy, and
inexpensive determination of this action.
The Court is also mindful of the fact that the rules governing attachment and
trustee process must be strictly construed. Englebrecht v. Development Corp. for
Evergreen Valley, 361 A.2d 908, 910-911 (Me. 1976) (“Since the attachment
procedure is in derogation of the common law and may work a hardship upon
debtors, the rule of strict construction of statutes under which the attachment is
sued out applies...”). Any hardship or prejudice to Mr. Carbary arising out of the
supplemental Berk affidavit can be removed by providing Mr. Carbary with
sufficient time in advance of the hearing on the motion for attachment and trustee
process to conduct whatever discovery he might have conducted had it been served
upon him with the complaint and by providing him with an opportunity to file a surreply in advance of the hearing.
The Court therefore directs that a hearing on this matter, which is required
pursuant to M.R. Civ. P. 4A(c) (“the order of approval may be entered only after
notice to the defendant and hearing…”), be scheduled for a date not earlier than
twenty-one days following entry of this order and that Defendant be permitted to
file at any time prior to the hearing a surreply to address any new facts or

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arguments set forth by the Plaintiff in its reply and affidavit in support of
attachment and trustee process. Accordingly, the Defendant’s Motion to Strike is
DENIED.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 1st day of February, 2012.

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