Beane et al v. Beane et al

Filing 92

ORDER denying 56 Petition to Attach with Notice. So Ordered by Magistrate Judge James R. Muirhead. (jab)

Beane et al v. Beane et al

Doc. 92

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alan F. Beane, et al. v. Glenn L. Beane, et al. ORDER Civil No. 06-cv-446-SM

In a prior attachment order (Document no. 52), I set forth an extensive set of facts, the standard for attachments in New Hampshire and granted part of Glenn Bean's prior petition, but denied the portion relating to reimbursement for payments to HOCO, LLC. The counterclaim plaintiff seeks a second shot at The amount at issue is $11,000.00.

that apple (Document no. 56).

BACKGROUND The $11,000.00 consists of two $2,000.00 payments to HOCO and $7,000.00 in attorneys fees in settling claims against Glenn Beane by HOCO, LLC. The settlement did not resolve the claims in

that suit against either Materials Innovation, Inc. (MMI) or Alan Beane. Def. Ex. S. Glenn and Alan Beane guaranteed MII's Def.

obligations under a real estate lease dated June 23, 1994. Ex. O.

Dockets.Justia.com

At some point in time, MII turned the space over to Mii Technologies, LLC (Mii). Apparently, there was no formal

assignment of the lease between MII and Mii and no agreement to the assignment by HOCO. In 1997 Mii agreed to pay for the cost of leasing a facility which MII intended to lease. dissolved in 1993. October of 2004. Def. Ex. D. ¶3.1. MII was

The HOCO settlement by Glenn Beane was in

The HOCO suit sought rent from MII alleging Despite his

that it owed $33,087.46 in rent, taxes and fees.

current position that Mii occupied the building and agreed to pay the rent, his Motion to Strike Default dated May 5, 2004 contains a judicial admission that "the corporate defendant", i.e. MII, occupied the premises. Def. Ex. O, ¶4.

Neither MII nor Glenn Beane sought to file a third party claim against Mii in the HOCO case. Thus, Mii had no opportunity Further, Glenn

to defend and no notice of suit has been shown.

Beane stated that he had no valid guarantee for the period in question. binding. Def. Ex. O, ¶¶3-4. That judicial admission is

His claim that he paid on a guarantee for which he is He simply settled a

entitled to indemnity is not strong.

doubtful claim for nuisance value, no indemnity rights attached.

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On the $11,000.00 claim Glenn Beane has not shown a likelihood of success by a "greater than... preponderance of the evidence..." See Diane Holly Corp. v. Bruno & Stillman Yacht The petition (Document

Co., 559 F. Supp. 559, 561 (D.N.H. 1983). no. 56) is denied. SO ORDERED.

____________________________________ James R. Muirhead United States Magistrate Judge Date: February 4, 2008 cc: William S. Gannon, Esq. W.E. Whittington, Esq.

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