B & R Produce Packing Co., Inc. et al v. A & H Farms, Inc. et al

Filing 16

ORDER denying 8 Petition to Attach with Notice; approving 11 Report and Recommendation. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

B & R Produce Packing Co., et al.
v.

Civil No. 13-cv-367-JD

A & H Farms, Inc. et al.
O R D E R
B & R Produce Packing Co., and other sellers of produce,
brought suit to recover amounts the plaintiffs claim are owed to
them by A & H Farms, Inc., Lori Coll, and Mark Coll.
been entered as to each defendant.

Default has

The plaintiffs filed a motion

for a prejudgment attachment on real estate that is owned by the
Colls.

The defendants did not file a response.

The magistrate

judge issued a report and recommendation that the motion for a
prejudgment attachment be denied.

The plaintiffs filed a late

objection.

Discussion
Issues raised by a timely objection to the magistrate
judge’s report and recommendation are subject to review under 28
U.S.C. § 636(b)(1).

Sch. Union No. 37 v. United Nat’l Ins. Co.,

617 F.3d 554, 564 (1st Cir. 2010).

Ordinarily, an untimely

opposition to a report and recommendation, submitted without
leave or adequate justification, waives review and the right to

appeal.

See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);

Grandison v. Moore, 786 F.2d 146, 148 (3d Cir. 1986); Means v.
Dist. of Columbia, --- F. Supp. 2d, 2013 WL 6092238, at *3
(D.D.C. Nov. 20, 2013); Alamo Rodriguez v. MCS Life Ins. Co., 283
F. Supp. 2d 459, 462-63 (D.P.R. 2003).

However, the court may

consider an untimely objection as part of its supervisory role.
See Thomas v. Arn, 474 U.S. 140, 154 (1985)).
The magistrate judge recommends that the plaintiffs’ motion
for a prejudgment attachment on real estate be denied because the
plaintiffs did not comply with the notice requirements of the New
Hampshire prejudgment attachment statute, RSA 511-A:2.

In their

objection, the plaintiffs acknowledge that their motion does not
comply with RSA 511-A:2 but suggest that they could provide the
required notice as part of a hearing notice, if a hearing were
scheduled.

The plaintiffs’ suggestion is too little and too

late.
The notice required by RSA 511-A:2 is mandatory, not
optional.

See P.J. Currier Lumber Co., Inc. v. Stonemill Constr.

Corp., 120 N.H. 399, 400-01 (1980).

The magistrate judge

properly recommended that the motion for a prejudgment attachment
be denied due to the plaintiffs’ failure to provide notice as
required by RSA 511-A:2.

2

Conclusion
For the foregoing reasons, the magistrate judge’s report and
recommendation (document no. 11) is approved and adopted.

The

plaintiffs’ motion for a prejudgment attachment (document no. 8)
is denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 10, 2013
cc:

Marc W. McDonald, Esquire

3