Kinetic Systems, Inc., v. IPS-Integrated Project Services, LLC and Lonza Biologics, Inc.,

2021 DNH 180

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kinetic Systems, Inc., Case No. 20-cv-1125-SM v. Opinion No. 2021 DNH 180

IPS-Integrated Project Services, LLC and Lonza Biologics, Inc.,

O R D E R

Plaintiff seeks a prejudgment writ of attachment against

the assets of defendants in the amount of $13,973,898.26 (though

the claims, potential liability, amount actually in dispute,

amount likely to be recovered, and strength of the respective

cases differs markedly as to each defendant).

New Hampshire law controls. Fed. R. Civ. P. 64; N.H. Rev.

Stat. Ann. Ch. 511-A:3. Generally, plaintiff must make a strong

preliminary showing that it 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, 560-61

(D.N.H. 1983). New Hampshire’s Constitution offers special

protection against prejudgment attachments of property by a

strong preliminary showing of probable success; “more than a

favorable chance of success must be shown . . . [P]laintiff must

make a strong preliminary showing that he or she will ultimately

prevail on the merits and obtain judgment in the requested amount and that showing must be established by proof greater

than proof by a mere preponderance of the evidence. Id. at 561.

Here, plaintiff has not pled sufficient facts or

circumstances to support issuance of a writ of attachment in the

amount requested. First, the amount in contention is now

acknowledged to be far less than the amount requested in the

petition. Plaintiff also notes that the only dispute in this

litigation is the amount owed it for extra work done under

contract. But it is hardly clear what that amount is — it is

not a liquidated amount, but an amount claimed based upon

directives, reasonable time expended, costs of materials,

chargeable add-on costs and other variables — all of which are

firmly contested by defendants. The parties anticipate

presenting opposing evidence regarding what directions were

given, what time and materials were required (and actually

employed), the value of that work, chargeable add-on costs, etc.

Both parties anticipate presenting expert testimony regarding

reasonable time and costs to complete extra work.

It can hardly be said at this point that plaintiff can make

a “strong preliminary showing of probable success” in obtaining

a judgment against either defendant in the amount requested,

and, indeed, the record, as it currently stands, makes clear

that plaintiff cannot.

2 Conclusion

The petition for prejudgment attachment (doc. no. 24) is

denied albeit without prejudice to refiling with respect to some

amount that may qualify under the applicable standards. Though,

given the brief survey above, that possibility seems unlikely

absent agreement and in light of the fact that, under New

Hampshire law, even if a lesser amount likely to be recovered

could be established, a prejudgment attachment would still not

issue if defendants are able to pay such an amount should a

judgment be obtained.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 22, 2021

cc: Counsel of Record