Universal Truck & Equipment Company, Inc. et al v. Caterpillar, Inc. et al

Filing 55

ORDER adopting #36 Report and Recommendations; granting #9 Motion for Writ of Replevin and Preliminary Injunction. So Ordered by Judge William E. Smith on 12/14/11. (Jackson, Ryan)

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND

UNIVERSAL TRUCK & EQUIPMENT
COMPANY, INC.; NEW LONDON MINING,
MANUFACTURING & PROCESSING, LLC;
NICHOLAS E. CAMBIO;
VINCENT A. CAMBIO; and NICHOLAS E.
CAMBIO, as trustee of THE NICHOLAS E.
CAMBIO, RONEY A. MALAFRONTE AND
VINCENT A. CAMBIO TRUST,
Plaintiffs,

v.

Case No.: 10-466 S

CATERPILLAR, INC.,
Defendant,
And
CATERPILLAR FINANCIAL SERVICES
CORPORATION; and SOUTHWORTH-MILTON,
INC.,
.
Defendants and Plaintiffs-in-Counterclaim.

PRELIMINARY INJUNCTION
This matter comes before the Court on the Motion of Defendant Caterpillar

.

Financial Services Corporation ("Cat Financial") for an entry of Preliminary Injunction
and Order of Replevin After notice and hearing, the Court having considered the Motion
and the Affidavit of Marion Covell (the "Covell Affidavit"), and Cat Financial's
Memorandum in support of the Motion:
IT IS HEREBY PROVISIONALLY FOUND THAT:
1.

Plaintiff New London Mining, Manufacturing & Processing, LLC ("New

London") is in default of the Security Agreement and Promissory Note dated July 30,
2009 (,'Security Agreement 1") between Cat Financial, as secured party, and New

London, as debtor, which was made to secure a loan made by Cat Financial to New
London in the original principal amount 0[$2,490,272.25.
2.

Cat Financial possesses, as security for the Security Loan and as set forth

in Security Agreement, a security interest in certain commercial equipment, more
particularly listed as in Exhibit G to the Affidavit of Marion Covell and attached hereto
as Exhibit A.
3.

The Security Agreement entitles Cat Financial to repossess and remove

the Equipment in the.,event of a default by New London.
4.

To date, Cat Financial has not reclaimed, and New London has not

returned, the Equipment.
5.

Cat Financial is entitled to a writ of replevin under R.I. General Laws 34­

21-1 et seq.

6.

Cat Financial will suffer irreparable injury for which no adequate remedy

at law exists unless New London and other persons and firms having knowledge of this
injunction are: (a) enjoined from continuing to use, sell, conceal, waste, encumber,
convert, convey, or remove the Equipment; (b) ordered to advise Cat Financial of the
precise location of the Equipment; and (c) ordered to immediately surrender the
Equipment to Cat Financial. Based on these provisional findings, the Counterclaim of
Cat Financial and the Covell Affidavit and exhibits attached thereto, IT IS HEREBY
ORDERED THAT:

a.

6841062-1

New London and any of its responsible managing agents, officers,
directors, or employees (acting within the scope of his or her office
or employment), and any person or entity acting in concert with
New London, and any other person or firm having actual notice of
this Preliminary Injunction, including but not limited to the

2

domestic agents of New London, together with their officers,
directors, or employees (acting within the scope of his or her office
or employment), are hereby enjoined and restrained, until further
Order of the Court, from using, selling, concealing, wasting,
encumbering, converting or conveying the Equipment, identified
On the attached Exhibit A (the "Equipment);
b.

c.

, New London and any of its responsible managing agents, officers,
directors, or employees (acting within the scope of his or her office
or employment) and any person or entity acting in concert with
New London, and any other person or firm having actual notice of
this Preliminary Inj unction, including but not limited to the
domestic agents of New London, together with their officers,
directors, or employees (acting within the scope of his or her office
or employmcnt), are hereby enjoined from restricting the access of
Cat Financial to the Equipment;

d.

, New London and any of its responsible managing agents, officers,
directors, or employees (acting within the scope of his or her office
or employment) and any person or entity acting in concert with
New London, and any other person or firm having actual notice of
this Preliminary Injunction, including but not limited to the
domestic agents of New London, together with their officers,
directors, or employees (acting within the scope of his or her office
or employment), are hereby ordered to immediately surrender the
Equipment to Cat Financial, and forthwith take all actions
necessary to allow Cat Financial to obtain access to and possession
'of the Equipment, including terminating leases, if any, and
obtaining the Equipment from third party lessors, and removing the
Equipment from any auction, sale, and/or auction or sale listing,
and are hereby also ordered to assemble the Equipment and make
the Equipment available to Cat Financial at a place to be
designated by Cat Financial reasonably convenient to New London
and Cat Financial;

e.

6841 062~ I

New London and any of its responsible managing agents, officers,
directors, or employees (acting within the scope of his or her
officer or employment) and any person or entity acting in concert
with New London, and any other person or firm having actual
notice of this Preliminary Injunction, including but not limited to
the domestic agents of New London, together with their officers,
directors, or employees (acting within the scope of his or her office
or employment), are hereby ordered to immediately disclose the
precise location of the Equipment to Cat Financial or to agents
designated by Cat Financial in order for Cat Financial to reclaim
same;

New London shall immediately notify all of its responsible
, managing agents, officers, directors, and employees of the entry of
this Preliminary Injunction;

3

Entered:

14/ 'iUiltiam e.

Sfflit4

William E. Smith
U.S. District Judge
Date: December 14,2011

Universal Truck & Equipment Co, Inc. v Caterpillar, Inc.
CA No. 10-466
Preliminary Injunction

4

EXHIBIT A

Equipment Financed by Cat Financial and Currently Held by New

London

Description

Serial #

Caterpillar Articulated Truck.
Caterpillar Telescopic Handler
ERIN (On 2009 as ERIN SYSTEM SCREENS)
ERIN (On 2009 as SYSTEM SCREENS)
Caterpillar Excavator

Caterpillar Wheel Loader

ERIN (On 2009 as Caterpillar ERIN FINGERSCREEN)

NPK (On 2009 as Caterpillar HAMMER)

Caterpillar (On 2009 as Caterpillar JAW CRUSHER)

Caterpillar (On 2009 as Caterpillar DUMP TRUCK)

Caterpillar (On 2009 as Caterpillar DUMP TRUCK)

Caterpillar (On 2009 as Caterpillar DUMP TRUCK)

Caterpillar (On 2009 as Caterpillar DUMP TRUCK)

Caterpillar Excavator

Caterpillar Backhoe Loader

Caterpillar Backhoe Loader

Caterpillar Backhoe Loader

Multi quip Gen Set wI Trailer

6841062-1

5

BIN00421

SLF01694

2S91F37U752113051

2S93J37X352113003

AGS01678

CRD01178

2S91B37J852113125

65266

554620045

1X02129

1X01882

1X04328

1X04511

PJW00656

BLN08452

DDT00407

KMW00260

8400023