Homes Development Corp., and 1031 Realty Trust, LLC, v. Edmund & Wheeler, Inc., Edmund & Wheeler Exchange Services, LLC, O’Toole Enterprises, LLC, John D. Hamrick, Mary O’Toole, Timothy Burger, and Chris Brown,

2022 DNH 120

• Court: District Court, D. New Hampshire
• Decided: September 29, 2022
• Docket: 21-cv-0633-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Homes Development Corp., and 1031 Realty Trust, LLC, Case No. 21-cv-0633-SM v. Opinion No. 2022 DNH 120

Edmund & Wheeler, Inc., Edmund & Wheeler Exchange Services, LLC, O’Toole Enterprises, LLC, John D. Hamrick, Mary O’Toole, Timothy Burger, and Chris Brown,

O R D E R

Plaintiffs seek a prejudgment attachment on defendants'

respective property in the amount of $4,100,000. New Hampshire

law applies. Fed. R. Civ. P. 64. Defendants have contested

plaintiffs' petition and are entitled to, but did not request, a

hearing on the petition. N.H. Rev. Stat. Ch. 511-A:3. Given

the circumstances, it seems a hearing would be redundant. The

rules of evidence are not binding in an attachment hearing, the

parties have already made thorough evidentiary proffers in their

briefs, and would be expected to reiterate those proffers and

argument in court, and nothing relevant to the issue is

unaddressed. The record discloses no apparent reason not to

rely upon the papers filed in resolving the matter. 1

1 Defendants would bear the burden of proof at a hearing to establish that their respective assets would be sufficient to satisfy any judgment with interest and costs that plaintiffs are reasonably likely to recover. RSA 511-A:3. Defendants do not It is the plaintiffs' burden to justify an attachment by

making "a strong preliminary showing that he or she will

ultimately prevail on the merits and obtain judgment in the

requested amount." Diane Holly Corp. v. Bruno & Stillman Yacht

Co., 559 F. Supp. 559, 561 (D.N.H. 1983). "[T]his showing must

be established by proof greater than proof by a mere

preponderance of the evidence." Id.

Plaintiffs have not, and cannot, meet that burden.

Plaintiffs essentially bring claims sounding in fraud,

misrepresentation, deceit, and unfair business practices under

various common law and statutory causes of action. Defendants

generally interpose contractual defenses — invoking contract

provisions that define what relationship they had, and did not

have, with plaintiffs, and they strongly contest necessary

elements of plaintiffs' claims related to knowledge, intent,

duty, statements allegedly made, and agreements allegedly

entered into or inferred, thus making it clear that there are

credibility issues, and perhaps even material factual disputes,

that must be resolved in plaintiffs' favor (or shown to be one-

sided), before it could be said that they have shown a strong

seek to do so in their pleadings, so would not be expected to pursue that defense at a hearing.

2 likelihood of succeeding on the merits and obtaining a judgment

in the requested amount. As the record stands, it cannot be

said that plaintiffs have even shown a likelihood of success by

a preponderance. Pending review of factual disputes for

materiality on summary judgment, or resolution at trial, success

on the merits of plaintiffs' claims is largely dependent upon

credibility issues.

That is not to say that plaintiffs have not adequately pled

some claims upon which (depending on a jury's perspective) they

might prevail, but only that those claims at this stage "could

succeed." Plaintiffs have not made a strong preliminary showing

they likely will succeed on the merits, nor that they are

reasonably likely to obtain judgment in the suggested amount.

Conclusion

The petition to attach with notice (doc. no. 25) is

necessarily denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 29, 2022

cc: Counsel of Record