Over & Under Piping Contractors, Inc. v. Vermont Gas Systems, Inc.
Filing
99
OPINION AND ORDER denying without prejudice to re-filing 26 Motion for Order of Approval and Writ of Attachment; denying as moot 37 Motion to Dismiss 26 Plaintiff's Motion For Writ of Attachment, or in the Alternative, Motion for Leave to File a Sur-Reply. Signed by Judge William K. Sessions III on 9/30/2016. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
OVER & UNDER PIPING
CONTRACTORS, INC.,
Plaintiff,
v.
VERMONT GAS SYSTEMS, INC.,
Defendant.
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Case No. 2:15-cv-169
OPINION AND ORDER
Two related motions are currently pending in this case.
The
first was filed by Plaintiff Over & Under Piping Contractors,
Inc. (“Over & Under”) seeking a writ of attachment in order to
perfect a contractor’s lien.
ECF No. 26.
The second, filed by
Defendant Vermont Gas Systems, Inc. (“VGS”), requests dismissal
of the motion for a writ of attachment because the time period
for perfecting the lien has passed.
ECF No. 37.
To the extent
that Over & Under seeks an attachment based upon facts beyond the
recorded lien, VGS requests leave to file a surreply.
For the
reasons set forth below, the motion for a writ of attachment is
denied without prejudice and VGS’s motion is denied as moot.
On October 29, 2015, Over & Under moved for a writ of
attachment.
The motion asserts that liens were recorded against
VGS properties on May 27, 2015.
Under 9 V.S.A. § 1924, a
lienholder must commence a civil action within 180 days after the
lien is recorded “and cause such real estate or other property to
be attached thereon.”
The Vermont Supreme Court has held that
perfection, by means of a judicial order, must be achieved within
180 days of recording the lien or the lien is lost.
Filter
Equip. Co. v. Int’l Bus. Machines Corp., 458 A.2d 1091, 1092 (Vt.
1983) (“We have consistently held . . . that the property
involved must be actually attached within the three-month period,
and that it is not enough that the suit be merely commenced.”).
Quoting the Reporter’s Notes to the Vermont Rules of Civil
Procedures, the court noted that “‘[a]ttorneys should take care
to commence actions on such liens in ample time to permit
completion of the attachment within the . . . period provided by
the statute after the filing of notice of the lien.
under the statute the lien will be lost.’”
Otherwise,
Id. at 1093 (quoting
Reporter’s Notes to 1979 Amendment to Vt. R. Civ. P. 4.1).
In
this case, the lien was not perfected by means of a judicial
order within 180 days of recording.
Consequently, the lien has
been lost and any attachment would not date back to the time of
recording.
In more recent filings, Over & Under contends that despite
the expiration of the perfection period, it is still entitled to
an attachment on VGS assets.
VGS contends that Over & Under is
raising new arguments that were not submitted in the initial
motion, and asks for leave to file a surreply in response to
those arguments.
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At a status conference held on July 25, 2016, the Court and
the parties discussed whether it would be useful and appropriate
to hold a hearing on the attachment motion at this stage in the
case.
As the Court noted at the time, the theories underlying
the motion lie at the heart of the case, and a testimonial
hearing would essentially amount to a trial on the merits.
The
Court also questioned whether holding such a hearing at this
early stage, with discovery barely under way, would be an
effective use of the parties’ time and resources.
The Court further noted that Over & Under is suing a large
utility that is likely to have sufficient assets to cover any
eventual judgment.
Vermont law permits an attachment where
“there is a reasonable likelihood that the plaintiff will recover
judgment, including interest and costs, in an amount equal to or
greater than the amount of the attachment over and above any
liability insurance, bond, or other security shown by the
defendant to be available to satisfy the judgment.”
P. 4.1(b).
Vt. R. Civ.
Although VGS has not presented evidence of assets or
security sufficient to satisfy a judgment, the Court questions
whether it is necessary to secure an attachment against the
utility.
Over & Under’s counsel represented at the status conference
that he would confirm with his client whether Over & Under wished
to move forward with the pending motion for a writ of attachment.
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To date, counsel has not contacted the Court with regard to that
issue.
If Over & Under is still pursuing an attachment, the
parties now have the benefit of additional discovery and may
choose to incorporate such information into their papers.
VGS
has already requested leave to file a sur-reply, and will
undoubtedly seek to file additional materials in response to
anything new that is filed by Over & Under.
Rather than litigate the attachment question in a series of
amended filings and sur-replies, and given that the original
motion is premised in part upon a contractor’s lien that has
since been lost, Over & Under may move for an attachment anew.
The current motion (ECF No. 26) is denied without prejudice to
re-filing.
The Court expresses no opinion at this time as to
whether Over & Under is likely to succeed on the merits of an
attachment motion.
VGS’s motion to dismiss the pending motion
for a writ of attachment (ECF No. 37) is denied as moot.
DATED at Burlington, in the District of Vermont, this 30th
day of September, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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