Sheppard v . River Valley Fitness CV-00-111-M 08/22/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mary Chris Sheppard and Robert Sheppard, Plaintiffs
v. Civil N o . 00-111-M Opinion N o . 2002 DNH 156 River Valley Fitness One, L.P. d/b/a River Valley Club; River Valley Fitness G P , L.L.C. River Valley Fitness Associates, Inc.; Joseph Asch; and Elizabeth Asch, Defendants
O R D E R
Before the court are: (1) Elizabeth Asch’s Motion to
Discharge Ex Parte Attachment and Request for Hearing (document
n o . 1 8 4 ) ; and (2) Joseph and Elizabeth Asch’s Motion to Require
Plaintiffs to Obtain Independent Settlement Counsel or to
Disqualify Counsel (document n o . 1 8 5 ) . Plaintiffs object to both
motions. For the reasons given below, both motions are denied.
Motion to Discharge Attachment
The Asches move to discharge the March 7 , 2000, ex parte
attachment entered by the Grafton County Superior Court on
Elizabeth Asch’s real property, on grounds that the attachment was obtained by fraud and that the amount of the attachment is
excessive in light of plaintiffs’ largest possible recovery in
this case. Plaintiffs object, arguing that defendants waived any
objections to the attachment by failing to file a timely
objection and that there are several different scenarios under
which they could be awarded a judgment equal to or in excess of
the amount of the attachment. While the court does not agree
that defendants’ motion is untimely,1 plaintiffs are,
nonetheless, entitled to have the attachment on Elizabeth Asch’s
real estate remain in place.
Assuming, for the purposes of defendants’ motion, that the
court could discharge the disputed attachment upon proof that it
1 Plaintiffs correctly point out that on November 1 3 , 2000, this court denied, as untimely, Elizabeth Asch’s Objection to Ex Parte Attachment and Request for Hearing. (See document n o . 45.) However, the order denying defendants’ objection plainly left open the possibility that defendants could file a motion to dissolve the attachment. (Id.) Accordingly, the order denying defendants’ objection, without more, provides no basis for denying the motion now before the court. Moreover, while N . H . R E V . STAT. A N N . (“RSA”) § 511-A:2, I I I requires a defendant to object to an attachment on or before the return date of the writ or order of notice initiating the suit, R S A 511:53 places no time limit on the filing of a motion for the reduction or discharge of an excessive attachment.
2 was obtained by fraud,2 defendants have not identified any fraud
on the part of plaintiffs. Rather than alleging that plaintiffs
made a false statement of material fact to the Grafton County
Superior Court that caused that court to enter the attachment,
defendants survey the papers submitted by plaintiffs to the
superior court and assert that “[t]he only reasonable conclusion
is that plaintiff submitted the EEOC determination as claimed
support in hope that the Court would overlook the detail of whom
it applied to.” (Def.s’ Mot. to Discharge at 3.) Similarly,
defendants attack the attachment on grounds that plaintiffs
submitted a false justification, namely that the real estate they
sought to attach was at risk of being concealed or removed from
the state. While defendants purport to challenge the veracity of
the facts submitted by plaintiffs to the superior court, it is
evident that they are actually contesting that court’s
determinations that plaintiffs had a likelihood of success on the
2 Defendant cites no authority for this proposition other than a sentence in 4 RICHARD V . WIEBUSCH, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE § 17.17 (2d ed. 1997), which itself contains no reference to authority. The statutory provision on which defendants rely, R S A 511:53, speaks only of the reduction or discharge of attachments that are excessive or unreasonable. For the purpose of ruling on the motion before i t , the court will assume that an attachment obtained by fraud is unreasonable within the meaning of R S A 511:53.
3 merits and that M s . Asch’s real estate was at risk of being
placed beyond the reach of a judgment against her. Because
defendants have not adequately alleged fraud on the part of
plaintiffs, and have provided no legal theory under which it is
appropriate for this court to review the decision of the superior
court, defendants’ motion to discharge the attachment on grounds
of fraud is denied.
As for the amount of the attachment, the court cannot say
that it is excessive. There are scenarios under which plaintiffs
could receive a judgment in excess of the value of the
attachment. While there may now be more legal obstacles than
there once were standing between plaintiffs and a judgment on
which to recover, several of those obstacles, such as defendants’
various bankruptcy filings, are of defendants’ own making.
Plaintiffs’ underlying case, however, appears to be neither
stronger nor weaker than it was when the attachment was entered.
Thus, the court has no basis for ruling that the amount of the
attachment has become excessive with the passage of time, and
defendants’ motion to discharge the attachment on the ground of
excessiveness is also denied.
4 In their motion, defendants assert that the attachment
prevents Elizabeth Asch from financing the property subject to
the attachment. If M s . Asch wishes to finance that property, she
has the option of substituting a bond, with appropriate sureties,
for the attachment. Finally, because the court is able to
resolve the question before it on the pleadings, defendants’
request for a hearing is also denied.
Motion to Replace or Disqualify Plaintiffs’ Counsel
The Asches move the court to order plaintiffs to obtain
independent settlement counsel, or in the alternative, to
disqualify plaintiffs’ counsel for having a conflict of interest.
Briefly, defendants contend that plaintiffs’ counsel cannot
fairly represent plaintiffs’ interests in this case because
counsel itself has a financial interest that is substantially
larger than, and contradictory t o , that of its clients.
Defendants argue, inter alia, that even – or especially – in
victory, plaintiffs might well have tax liability substantially
in excess of any recovery they could possibly realize.
Plaintiffs counter that: (1) defendants’ analysis is based upon
an inappropriately low estimate of the value of their claim; (2)
5 they have already decided what they will do in the unlikely event
that their net recovery is less than their tax liability; and (3)
the need for settlement counsel is academic because defendants
have made no settlement offer and have indicated an absolute
unwillingness to do so.
Defendants’ position is without merit. In the first place,
this case is materially distinguishable from the case on which
defendants rely, Fiandaca v . Cunningham, 827 F.2d 825 (1st Cir.
1987), in at least two ways. First, plaintiffs’ counsel does not
represent two clients with conflicting interests. Thus,
plaintiffs’ counsel is not in the untenable position of choosing
which client to benefit at the expense of the other. Secondly,
neither the Asches nor any of the other defendants have made any
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Sheppard v . River Valley Fitness CV-00-111-M 08/22/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mary Chris Sheppard and Robert Sheppard, Plaintiffs
v. Civil N o . 00-111-M Opinion N o . 2002 DNH 156 River Valley Fitness One, L.P. d/b/a River Valley Club; River Valley Fitness G P , L.L.C. River Valley Fitness Associates, Inc.; Joseph Asch; and Elizabeth Asch, Defendants
O R D E R
Before the court are: (1) Elizabeth Asch’s Motion to
Discharge Ex Parte Attachment and Request for Hearing (document
n o . 1 8 4 ) ; and (2) Joseph and Elizabeth Asch’s Motion to Require
Plaintiffs to Obtain Independent Settlement Counsel or to
Disqualify Counsel (document n o . 1 8 5 ) . Plaintiffs object to both
motions. For the reasons given below, both motions are denied.
Motion to Discharge Attachment
The Asches move to discharge the March 7 , 2000, ex parte
attachment entered by the Grafton County Superior Court on
Elizabeth Asch’s real property, on grounds that the attachment was obtained by fraud and that the amount of the attachment is
excessive in light of plaintiffs’ largest possible recovery in
this case. Plaintiffs object, arguing that defendants waived any
objections to the attachment by failing to file a timely
objection and that there are several different scenarios under
which they could be awarded a judgment equal to or in excess of
the amount of the attachment. While the court does not agree
that defendants’ motion is untimely,1 plaintiffs are,
nonetheless, entitled to have the attachment on Elizabeth Asch’s
real estate remain in place.
Assuming, for the purposes of defendants’ motion, that the
court could discharge the disputed attachment upon proof that it
1 Plaintiffs correctly point out that on November 1 3 , 2000, this court denied, as untimely, Elizabeth Asch’s Objection to Ex Parte Attachment and Request for Hearing. (See document n o . 45.) However, the order denying defendants’ objection plainly left open the possibility that defendants could file a motion to dissolve the attachment. (Id.) Accordingly, the order denying defendants’ objection, without more, provides no basis for denying the motion now before the court. Moreover, while N . H . R E V . STAT. A N N . (“RSA”) § 511-A:2, I I I requires a defendant to object to an attachment on or before the return date of the writ or order of notice initiating the suit, R S A 511:53 places no time limit on the filing of a motion for the reduction or discharge of an excessive attachment.
2 was obtained by fraud,2 defendants have not identified any fraud
on the part of plaintiffs. Rather than alleging that plaintiffs
made a false statement of material fact to the Grafton County
Superior Court that caused that court to enter the attachment,
defendants survey the papers submitted by plaintiffs to the
superior court and assert that “[t]he only reasonable conclusion
is that plaintiff submitted the EEOC determination as claimed
support in hope that the Court would overlook the detail of whom
it applied to.” (Def.s’ Mot. to Discharge at 3.) Similarly,
defendants attack the attachment on grounds that plaintiffs
submitted a false justification, namely that the real estate they
sought to attach was at risk of being concealed or removed from
the state. While defendants purport to challenge the veracity of
the facts submitted by plaintiffs to the superior court, it is
evident that they are actually contesting that court’s
determinations that plaintiffs had a likelihood of success on the
2 Defendant cites no authority for this proposition other than a sentence in 4 RICHARD V . WIEBUSCH, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE § 17.17 (2d ed. 1997), which itself contains no reference to authority. The statutory provision on which defendants rely, R S A 511:53, speaks only of the reduction or discharge of attachments that are excessive or unreasonable. For the purpose of ruling on the motion before i t , the court will assume that an attachment obtained by fraud is unreasonable within the meaning of R S A 511:53.
3 merits and that M s . Asch’s real estate was at risk of being
placed beyond the reach of a judgment against her. Because
defendants have not adequately alleged fraud on the part of
plaintiffs, and have provided no legal theory under which it is
appropriate for this court to review the decision of the superior
court, defendants’ motion to discharge the attachment on grounds
of fraud is denied.
As for the amount of the attachment, the court cannot say
that it is excessive. There are scenarios under which plaintiffs
could receive a judgment in excess of the value of the
attachment. While there may now be more legal obstacles than
there once were standing between plaintiffs and a judgment on
which to recover, several of those obstacles, such as defendants’
various bankruptcy filings, are of defendants’ own making.
Plaintiffs’ underlying case, however, appears to be neither
stronger nor weaker than it was when the attachment was entered.
Thus, the court has no basis for ruling that the amount of the
attachment has become excessive with the passage of time, and
defendants’ motion to discharge the attachment on the ground of
excessiveness is also denied.
4 In their motion, defendants assert that the attachment
prevents Elizabeth Asch from financing the property subject to
the attachment. If M s . Asch wishes to finance that property, she
has the option of substituting a bond, with appropriate sureties,
for the attachment. Finally, because the court is able to
resolve the question before it on the pleadings, defendants’
request for a hearing is also denied.
Motion to Replace or Disqualify Plaintiffs’ Counsel
The Asches move the court to order plaintiffs to obtain
independent settlement counsel, or in the alternative, to
disqualify plaintiffs’ counsel for having a conflict of interest.
Briefly, defendants contend that plaintiffs’ counsel cannot
fairly represent plaintiffs’ interests in this case because
counsel itself has a financial interest that is substantially
larger than, and contradictory t o , that of its clients.
Defendants argue, inter alia, that even – or especially – in
victory, plaintiffs might well have tax liability substantially
in excess of any recovery they could possibly realize.
Plaintiffs counter that: (1) defendants’ analysis is based upon
an inappropriately low estimate of the value of their claim; (2)
5 they have already decided what they will do in the unlikely event
that their net recovery is less than their tax liability; and (3)
the need for settlement counsel is academic because defendants
have made no settlement offer and have indicated an absolute
unwillingness to do so.
Defendants’ position is without merit. In the first place,
this case is materially distinguishable from the case on which
defendants rely, Fiandaca v . Cunningham, 827 F.2d 825 (1st Cir.
1987), in at least two ways. First, plaintiffs’ counsel does not
represent two clients with conflicting interests. Thus,
plaintiffs’ counsel is not in the untenable position of choosing
which client to benefit at the expense of the other. Secondly,
neither the Asches nor any of the other defendants have made any
settlement offer. In Fiandaca, the disqualifying conflict of
interest only came into existence when the defendant made a
specific settlement offer that would have benefitted the
plaintiffs, at the expense of another client represented by the
plaintiffs’ counsel. Here, by contrast, there has been no
settlement offer, so any conflict of interest in this case i s , at
best, hypothetical, even accepting the doubtful proposition that
6 a settlement offer can effectively conflict out opposing counsel.
Finally, unlike the plaintiff class in Fiandaca, which was
seeking injunctive relief from a government agency, plaintiffs
here can be fully compensated by an award of money damages.
Defendants’ motion to require plaintiffs to obtain
independent settlement counsel, or alternatively, to disqualify
counsel, is denied.
Conclusion
For the reasons given above, Elizabeth Asch’s motion to
discharge the attachment on her real estate (document n o . 184)
and defendants’ motion to replace or disqualify plaintiffs’
counsel (document n o . 185) are both denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 2 2 , 2002
cc: Lauren S . Irwin, Esq. William E . Whittington, IV, Esq. Joseph F. Daschbach, Esq.