CLOUGH v. PRESNALL et al

Filing 5

MEMORANDUM DECISION ON MOTION FOR EX PARTE ATTACHMENT denying 4 Ex Parte Motion for Attachment - By MAGISTRATE JUDGE JOHN H. RICH III. (mnw) Modified on 2/14/2012 to unseal docket entry and make it publicly available, Per Order #6 (mnw).

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JULIA CLOUGH,
Plaintiff
v.
ED PRESNALL and PAWMARK, LLC,
Defendants

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No. 2:12-cv-54-DBH

MEMORANDUM DECISION ON MOTION FOR EX PARTE ATTACHMENT

The plaintiff has submitted a two-page ex parte motion and incorporated memorandum
for approval of attachment “on assets owned by the Defendants, in the amount of $250,000.00.”
Ex Parte Motion for Attachment Pursuant to F. R. Civ. P. 64 & M. R. Civ. P. 4A (“Motion”)
(Docket No. 4) at 1. For the reasons that follow, I deny the motion.
I. Applicable Legal Standard
Maine law, which is applicable to motions for pre-judgment attachment in this court, Fed.
R. Civ. P. 64; Local Rule 64; Ali, Inc. v. Fishman, 855 F. Supp. 440, 442 (D. Me. 1994),
provides that, in order for this court to grant an ex parte attachment,
the Court must find that it is more likely than not that Plaintiff will
recover an amount greater than any insurance, bond, or other security
known to exist AND either that: (a) there is a clear danger that the
Defendant, if notified in advance of the attachment, will remove or
conceal the property or (b) there is immediate danger that Defendant will
damage/destroy the property to be attached.
Carlson v. Rice, 817 F. Supp. 193, 194 (D. Me. 1993) (emphasis in original).

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II. Factual Background
The plaintiff presents the following evidence by affidavit.
On November 14, 2008, she made an investment of $250,000.00 in Pawmark, LLC, in
return for the defendants’ promise to give her stock representing a 20% ownership interest in
Pawmark and payment of interest on the investment of 7% per annum. Affidavit of Julia Clough
(Docket No. 4-1) ¶¶ 2-3. The defendants signed a promissory note that memorialized these
terms. Id. ¶ 4. The plaintiff has received from the defendants since November 14, 2008 a total
of $18,500.00. Id. ¶ 5. The defendants have made no effort to comply with the terms of the note
despite the plaintiff’s “countless” demands. Id. ¶ 6.
Pawmark is now located in and operating out of Texas. Id. ¶ 7. In the past three years, it
has operated in Wisconsin, New Mexico, and Texas. Id. ¶ 8. In the past, when Presnall has
faced financial trouble, he has moved to a different state. Id. ¶ 9. The plaintiff has heard that
Presnall will be getting married soon; this may be a tactic to hide and/or conceal his assets. Id.
¶ 10. The plaintiff is concerned that Presnall will take steps to conceal his assets and/or move to
another state, if he receives notice of this lawsuit. Id. ¶ 11.
The plaintiff’s attorney has no knowledge of any insurance, bond, other security, or other
attachment and trustee process available to satisfy any judgment against the defendants in this
action. Affidavit of Attorney Matthew W. Howell (Docket No. 4-2) ¶ [2].
III. Discussion
The plaintiff has not established that she is entitled to an ex parte order of attachment,
because she has not provided evidence that would allow drawing a reasonable conclusion either
that there is a clear danger that the defendants, if notified in advance of this motion, would
remove or conceal property that would otherwise be available for attachment or that there is an

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immediate danger that the defendants would destroy or damage property that would otherwise be
available for attachment.
It is not immediately apparent to the court how getting married will itself allow Presnall
to hide or conceal his assets. If anything, giving Presnall notice of this claim at this time would
be likely to render any subsequent transfer of assets fraudulent and therefore reversible. Nor,
given the fact that, from what little appears in the record, Presnall and the corporate defendant
are currently resident in Texas, does it appear how their departure from Texas would necessarily
make it more difficult for a plaintiff in Maine to attach their property with a writ issued by the
federal court in the District of Maine. From all that appears, the plaintiff was aware when she
provided the money at issue to the defendants that they were not resident in Maine.1
Indeed, this court has previously held that the fact that two individual defendants had
previously “stripped” a corporation of its assets is not sufficient to meet the Maine standard for
an ex parte attachment. Rockport Whale Watch, Inc. v. Hawley, No. 07-148-P-H, 2007 WL
4531714, at *2 (D. Me. Dec. 18, 2007). In addition, a plaintiff-affiant’s personal belief that the
defendants will act to make otherwise attachable assets unavailable, without more, is insufficient
to meet the “clear danger” prong of the ex parte rule. Carlson, 817 F. Supp. at 194-95.
IV. Conclusion
For the foregoing reasons, and on the showing made, the plaintiff’s ex parte motion for
attachment is DENIED.

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The plaintiff provides no basis for her asserted knowledge that Presnall “has moved to a different state” “[w]hen
[he] has faced financial trouble in the past.” Affidavit of Julia Clough ¶ 9. More relevant information is provided in
the complaint (Docket No. 1), but the complaint is not verified. See Official Post Confirmation Comm. of Creditors
Holding Unsecured Claims v. Markheim, 2005 ME 81, ¶ 18, 877 A.2d 155, 160 (information supporting motion for
attachment must be in affidavits).

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Dated this 13th day of February, 2012.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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