CalMat Co. v. Old Castle Precast, Inc. et al
ORDER by Magistrate Judge William P. Lynch denying 65 Motion for Access to Property. (mej)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CV 16-26 KG/WPL
OLDCASTLE PRECAST, INC.,
KRAFT AMERICAS, L.P., a limited
Partnership, RUNE KRAFT,
KRAFT AMERICAS HOLDINGS, INC.,
and JOHN DOES 1-5,
ORDER DENYING MOTION FOR ACCESS TO PROPERTY
Kraft America Holdings, Inc. (“KAHI”) filed an opposed motion for access to the royalty
funds at issue in this case in order to pay for counsel. (Doc. 65.) In support of its motion, KAHI
cites Luis v. United States, 578 U.S. ---, 136 S. Ct. 1083 (2016), for the proposition that it is
unconstitutional to enforce the pre-trial restraint of assets untainted by criminal activity that are
needed to retain a defendant’s counsel of choice. (Id.) KAHI also argues that it would be
fundamentally unfair not to grant it access to the funds presently being deposited into the Court’s
registry, and that Local Rule 83.7—requiring parties other than natural persons to be represented
by counsel—puts it in an untenable situation. (Id.; Doc. 76.) Oldcastle Precast, Inc.
(“Oldcastle”), opposes the motion and generally contests KAHI’s claim to the funds, which is the
entire basis of this case. (Doc. 74.) Oldcastle notes that Luis dealt with a criminal defendant’s
Sixth Amendment right to counsel and is otherwise distinguishable. Having reviewed the
briefing, the record, and being otherwise fully informed on these matters, I deny KAHI’s motion.
KAHI requests access to the funds deposited into the Court’s registry by CalMat Co.
KAHI asserts that it was previously receiving these royalty payments and that the payments are
its only source of income. The issue in this case is whether KAHI is entitled to those payments.
Accordingly, granting KAHI access to the money before resolving the ownership issue would be
tantamount to resolving the case. Furthermore, if it turns out that Oldcastle, and not KAHI, is
entitled to the money, KAHI admits that it would have no way to repay the funds.
The sole case KAHI cites in support of its argument is Luis. KAHI contends that Luis
protects defendants’ right to counsel of their choice in all cases. This is incorrect. Luis speaks
directly to a criminal defendant’s ability to pay for counsel of his or her choosing, when that
defendant would otherwise be represented by a public defender. See generally 136 S. Ct. at
1088-89. Indeed, the “question presented [in Luis] is ‘[w]hether the pretrial restraint of a criminal
defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to
retain counsel of choice violates the Fifth and Sixth Amendments.’” Id. at 1088 (alteration in
original). This is easily juxtaposed with the fact that there is no Sixth Amendment right to
counsel in a civil proceeding. See MacCuish v. United States, 844 F.2d 733, 735 (10th Cir.
1988). I find that Luis is inapposite to this case.
Because KAHI has presented no compelling argument for the release of contested funds
to pay for KAHI’s representation, I find no reason to grant such a release that is tantamount to a
dispositive resolution of the case. KAHI’s motion is denied.
IT IS SO ORDERED.
William P. Lynch
United States Magistrate Judge
A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
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