Digital Equipment Corp. v. Currie Enterprises

142 F.R.D. 16, 1992 U.S. Dist. LEXIS 17812
CourtDistrict Court, D. Massachusetts
DecidedFebruary 12, 1992
DocketCiv. A. No. 91-11624-WD
StatusPublished
Cited by14 cases

This text of 142 F.R.D. 16 (Digital Equipment Corp. v. Currie Enterprises) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Digital Equipment Corp. v. Currie Enterprises, 142 F.R.D. 16, 1992 U.S. Dist. LEXIS 17812 (D. Mass. 1992).

Opinion

ORDER RE: MOTION OF RAYMOND B. CURRIE AND MARY J. CURRIE TO RECONSIDER AND/OR MODIFY ORDER APPROVING REAL ESTATE ATTACHMENT (DOCKET ENTRY # 103); and DEFENDANT RAYMOND B. CURRIE AND MARY J. CURRIE’S SECOND MOTION TO MODIFY ORDER OF ATTACHMENT AND TO RELEASE ESCROW FUNDS AND REQUEST FOR EXPEDITED ORAL ARGUMENT AND AN EXPEDITED HEARING (DOCKET ENTRY # 158)

BOWLER, United States Magistrate Judge.

Pending before this court are defendant Raymond B. Currie (“defendant Currie”) and defendant Mary J. Currie’s motions to modify this court’s Order of attachment entered on August 20, 1991. (Docket Entry ## 103, 158). On December 17, 1991, this court held a heading and took the motions under adviser., mt.

PROCEDURAL HISTORY

On August 6, 1991, this court issued an Order allowing Plaintiff’s Motion for Real Estate Attachments. (Docket Entry # 90). In accordance with this Order, on August 20, 1991, this court approved four writs of attachment, including an attachment in the amount of $3,000,000 against property owned by defendants Raymond B. Currie and Mary J. Currie (collectively: “Currie defendants”).1 (Docket Entry # 109). The two properties attached are owned by the Currie defendants and located at 56 Sterling Street, Clinton, Massachusetts, (“Sterling Street property”) and at 99 Green Street, Clinton, Massachusetts (“Green Street property”). (Docket Entry ## 109 & 159, Ex. A & B).

Also on August 20, 1991, the Currie defendants filed a motion for this court to reconsider its Order approving the $3,000,-000 attachment. (Docket Entry # 103). Plaintiff Digital Equipment Corporation opposes the motion for reconsideration. (Docket Entry # 116).

Because of a potential sale of the Green Street property, the Currie defendants filed a motion for an expedited hearing on September 17, 1991. (Docket Entry # 131). On September 20, 1991, the district judge heard this motion. (Docket Entry # 138).

On September 27, 1991, the Currie defendants filed a motion for a further hearing on the motion to reconsider the attachment (Docket Entry # 140) which this court allowed by Endorsed Order on December 17, 1991. On October 8,1991, the plaintiff and the Currie defendants filed a stipulation. Pursuant to this stipulation, the Currie defendants sold the Green Street property to the Weetabix Company, Inc. and placed two checks in the amounts of $1,240,000 and $23,919.21 in escrow as prejudgment security for the plaintiff. (Docket Entry # 158).

On November 15, 1991, the Currie defendants filed their second motion to modify the attachment. (Docket Entry # 158). The plaintiff opposes a second reconsideration. (Docket Entry # 159). The Currie defendants subsequently filed supplemental exhibits as well as a response to the plaintiff’s opposition. (Docket Entry ##161, 162).

[20]*20On December 17, 1991, this court held a hearing on the motions to modify the attachment (Docket Entry ## 103, 158), admitted a number of exhibits into evidence, and heard the testimony of defendant Cur-rie.2 In the second motion to modify the attachment (Docket Entry # 158), the Cur-rie defendants seek an order reducing or discharging the $3,000,000 attachment on the Green Street and Sterling Street properties pursuant to Section 114 of Massachusetts General Laws chapter 223.3 The Cur-rie defendants argue that release of the funds in escrow is necessary because of their strained financial resources.4 In addition, they contend that: (1) the plaintiff fails to offer credible evidence that there is a reasonable likelihood of success on the merits; (2) the appraised value of the Sterling Street property amounts to $3,000,000 and therefore provides adequate prejudgment security; (3) the amount of the attachment is excessive inasmuch as the plaintiff fails to offer any basis for the $3,000,000 figure; and (4) the Massachusetts attachment statute violates due process in light of the Supreme Court’s recent decision of Connecticut v. Doehr, — U.S.-, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991). These arguments are addressed se-riatim.

DISCUSSION

Fed.R.Civ.P. 64 governs the procedure for the prejudgment remedy of attachment. This rule provides in pertinent part:

all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought.

Fed.R.Civ.P. 64.' The Massachusetts law controlling the procedure for motions for attachment is located in Rule 4.1 of the Massachusetts Rules of Civil Procedure. To enter an order of approval of a real estate attachment, this court must find the existence of a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment, over and above any liability insurance known or reasonably known to be available to the defendants. Mass.R.Civ.P. 4.1. Affidavit(s), setting forth specific facts and based upon an affi-ant’s own knowledge, information or belief shall accompany the motion for attachment. Mass.R.Civ.P. 4.1(h).

“[T]he central question on the motion for approval of attachment is whether plaintiffs are likely to prevail on the merits and obtain damages in the necessary amount.” Anderson Foreign Motors Corp. v. New England Toyota Distributor, Inc., 475 F.Supp. 973, 978 (D.Mass. 1979). A showing of reasonable likelihood of success on the merits is therefore a requirement for court approval of an attachment. Boston Trading Group, Inc. v. Carter, 561 F.Supp. 1175, 1176 (D.Mass. 1983).

I. REASONABLE LIKELIHOOD OF SUCCESS

A. BACKGROUND

In the underlying action, the plaintiff [21]*21alleges that the defendants5 violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962, et seq. (“RICO”), and the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a).6 The plaintiff also brings a number of pendent state law claims.

As to defendant Currie, the plaintiff specifically alleges a violation of 18 U.S.C. § 1962(a). (Docket Entry # 1, If 73). Defendant Currie purportedly invested income derived from a pattern of racketeering activity in the acquisition and establishment of an enterprise. The enterprise allegedly includes both Currie Enterprises and C & M Real Estate Trust. (Docket Entry # 1, 1173).7

In 1984, defendant Currie formed Currie Enterprises, Inc., for the purpose of buying overstocked or defective computer components and reclaiming precious metals from scrap components.

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