Rumph v. Rumph et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Rumph
v. Civil No. 16-cv-078-PB
William Rumph, Sr.; Donald Kennedy;
Andrew Rumph; Chryl Claflin; and
Law Office of Donald Kennedy
REPORT AND RECOMMENDATION
Plaintiff Stephen Rumph’s Complaint (doc. no. 1) is before
this court for preliminary review, pursuant to LR 4.3(d)(2) and
28 U.S.C. § 1915(e)(2). The complaint includes a request that
this court “attach the Defendants’ properties and hold them in
constructive trust until the resolution of this action.”
I. Preliminary Review Standard
Upon preliminary review, pro se complaints are construed
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
After reviewing the complaint, the magistrate judge may report
and recommend to the court that the filing be dismissed because
the action fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); LR 4.3(d)(2)(A).
To state a claim, the complaint “must contain enough factual
material to raise a right to relief above the speculative
level.” Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780 (1st
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Cir. 2014) (citation omitted), cert. denied, 135 S. Ct. 2380
(2015).
II. Service
The Complaint (doc. no. 1) both pleads facts showing that
this court has diversity jurisdiction over the case, and
sufficiently alleges one or more claims for relief under state
common law to allow the action to proceed. Without prejudice to
defendants’ ability to move to dismiss any claim, or to file any
other appropriate motion or response, the court this date has
directed service of the Complaint (doc. no. 1) upon defendants.
III. Prejudgment Attachment
The Federal Rules of Civil Procedure provide that “[a]t the
commencement of and throughout an action, every remedy is
available that, under of the law of the state where the court is
located, provides for seizing a person or property to secure
satisfaction of the potential judgment.” Fed. R. Civ. P. 64(a).
In New Hampshire, “[i]n all civil actions . . . a defendant
shall be given notice and an opportunity for a preliminary
hearing before any pre-judgment attachment . . . shall be made.”
N.H. Rev. Stat. Ann. (“RSA”) § 511–A:1. The New Hampshire pre-
judgment attachment statute also requires that “the plaintiff
shall cause to be served on the defendant . . . a notice, which
shall be incorporated prominently in the writ or order of
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notice.” RSA § 511–A:2. That statute goes on to describe the
language that must be included in such a notice. See RSA § 511–
A:2, I–IV. There are exceptions to the notice requirement,
which do not appear to apply here. See generally RSA § 511-A:8.
Plaintiff has requested a prejudgment attachment without
serving the required notice on defendants. The motion does not
include the language required by RSA § 511-A:2, and therefore is
no substitute for the required notice. Accordingly, the request
to attach defendants’ properties should be denied, without
prejudice to plaintiff’s ability to refile a prejudgment
attachment petition, pursuant to RSA § 511-A, that complies with
state law. See B & R Produce Packing Co. v. A & H Farms, Inc.,
No. 13-CV-367-JD, 2013 U.S. Dist. LEXIS 173365 at *2-*3, 2013 WL
6498279 at *1 (D.N.H. Dec. 10, 2013) (prejudgment attachment
motion denied for failure to comply with state’s notice
requirements).
Conclusion
For these reasons, plaintiff’s request to attach
defendants’ properties, as set forth in the Complaint (doc. no.
1), should be denied without prejudice. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). Failure
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to file objections within the specified time waives the right to
appeal the district court’s order. See Garayalde-Rijos v. Mun.
of Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 11, 2016
cc: Stephen Rumph, pro se
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