Carpentier Construction, LLC v. Allyn et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Carpentier Construction, LLC
v. Civil No. 22-cv-557-LM
Shawn P. Allyn & Edward P.
Borgatti
REPORT AND RECOMMENDATION
This construction dispute arises out of plaintiff
Carpentier Construction LLC’s (“Construction LLC”) work as
general contractor building a house for defendants Shawn Allyn
and Edward Borgatti.1 Construction LLC alleges that Allyn &
Borgatti failed to pay it for some of the work it performed
building the house. Allyn & Borgatti responded with
counterclaims against Construction LLC for breach of contract,
breach of warranty, and violation of the New Hampshire Consumer
Protection Act, RSA Chapter 358-A. Allyn & Borgatti allege that
Construction LLC’s work was incomplete or shoddy and that
Construction LLC deceived them about these flaws or its intent
to remedy them.
In addition to the counterclaims against Construction LLC,
Allyn & Borgatti filed a third-party complaint (Doc. No. 40)
against Norman Carpentier, who appears to be Construction LLC’s
1 Mr. Allyn is unrepresented in this suit, but he is a
practicing lawyer. Mr. Borgatti filed the third-party complaint
pro se alongside Mr. Allyn, see doc. no. 40 at 7, but he is now
represented by separate counsel.
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sole member, and 82 Island Path Road LLC (“Island Path LLC”),
another business for which Mr. Carpentier is apparently the only
member. In the third-party complaint, Allyn & Borgatti allege
that Mr. Carpentier and Island Path LLC violated the Uniform
Fraudulent Transfers Act (“UFTA”), RSA Chapter 545-A, by
transferring real property located at 82 Island Path Road in
Hampton, New Hampshire (the “Subject Property”), to Island Path
LLC for nominal consideration.
Mr. Carpentier and Island Path LLC move to dismiss (Doc.
No. 54) the third-party complaint for failure to state a claim
upon which relief can be granted. They contend, in summary,
that the third-party complaint fails to allege facts showing
that Allyn & Borgatti have a claim against Mr. Carpentier; that
Mr. Carpentier was insolvent; or that Mr. Carpentier intended to
hide assets in transferring the Subject Property. For the
following reasons, however, the District Judge should not reach
those issues because the equitable relief Allyn & Borgatti seek
in the third-party complaint is ineffective or unavailable from
Mr. Carpentier or Island Path LLC.
Background
The court draws the following facts from the third-party
complaint and attachments, construing those facts in the light
most favorable to Allyn & Borgatti and drawing all reasonable
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inferences in their favor. See Burt v. Bd. of Tr. of Univ. of
R.I., 84 F.4th 42, 50 (1st Cir. 2023) (setting out standard of
review for motions to dismiss under Rule 12(b)(6)). Allyn &
Borgatti hired Construction LLC to build a house for them.
While building that house, Construction LLC (and Mr. Carpentier,
as its principal) learned about potential environmental
violations that required modifications to its design and
construction. Around two weeks after he learned about these
violations, Mr. Carpentier transferred the Subject Property to
Island Path LLC for nominal consideration.
Allyn & Borgatti allege that they have a “claim” against
Mr. Carpentier such that the Subject Property’s transfer was
fraudulent and subject to remedies under the UFTA. In the
third-party complaint, Allyn & Borgatti request two specific
remedies under the UFTA: (1) an injunction prohibiting “further
transfer” of the Subject Property; and (2) an attachment on the
Subject Property. Doc. No. 40, at 7; see RSA 545-A:7.
In their motion to dismiss and among their other arguments,
Mr. Carpentier and Island Path LLC assert that Island Path LLC
transferred the Subject Property to a nonparty, Cybele S. Grier
as trustee of the Cybele S. Grier 2008 Revocable Trust (the
“Grier Trust”). Doc. No. 54-2 (deed).2 Allyn & Borgatti filed
2 The court may consider the deed even though it was not
attached to the complaint because it is public record. See,
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the third-party complaint a few days before Island Path LLC
transferred the Subject Property to Grier Trust.3 The third-
party complaint thus does not make any allegations about that
transfer or how it affects the requested relief.
The court held oral argument on the motion to dismiss on
November 1, 2023. During oral argument, the court indicated its
concern about whether it could order the relief sought by Allyn
& Borgatti in the third-party complaint considering the Subject
Property’s transfer to a nonparty. In response, Allyn asserted
that equitable principles permit them to obtain the relief
sought notwithstanding the transfer. Allyn & Borgatti have not
moved to amend the third-party complaint in light of the
transfer.
Discussion
Without addressing whether there may be other defects in
the third-party complaint as pleaded, its dismissal is warranted
because, in light of the Subject Property’s transfer, the relief
e.g., Rice v. Santander Bank, N.A., 196 F. Supp. 3d 146, 149 n.3
(D. Mass. 2016).
3 Specifically, Allyn & Borgatti moved for leave to file the
third-party complaint on March 7, 2023, which the court granted
on March 24. Allyn & Borgatti filed the third-party complaint
the same day. On March 30, Allyn & Borgatti moved for an ex
parte attachment of the Subject Property given that Island Path
LLC had put the Subject Property up for sale. The deed
transferring the Subject Property to Grier Trust was recorded on
March 31.
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Allyn & Borgatti request is ineffective or cannot be obtained
from Mr. Carpentier or Island Path LLC.
In the third-party complaint Allyn & Borgatti only seek
equitable relief as to the Subject Property. But any injunction
against Mr. Carpentier or Island Path LLC limiting transfer of
the Subject Property would be ineffective because neither
controls the Subject Property. And to the extent Allyn &
Borgatti seek other equitable relief as to the Subject Property,
such as attaching the Subject Property or voiding its prior
transfer, that relief is unavailable as against Mr. Carpentier
or Island Path LLC because neither possesses the Subject
Property. See, e.g., Cendant Corp. v. Shelton, 473 F.Supp.2d
307, 313 (D. Conn. 2007) (denying motion for ex parte
prejudgment security on property under Connecticut
implementation of UFTA where subsequent transferee was not named
as defendant); Reed v. Reed, 277 Neb. 391, 399 (2009) (“An
action under the UFTA is equitable in nature, and all persons
whose rights will be directly affected by a decree in equity
must be joined as parties in order that complete justice may be
done and that there may be a final determination of the rights
of all parties interested in the subject matter of the
controversy.”); 37 C.J.S. Fraudulent Conveyances § 180 (August
2023 update) (“[T]he transferee is a necessary party defendant
in an action to declare a transfer to the transferee void as
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fraudulent.”); see also RSA 545-A:8, I, II(b), & IV (discussing
defenses and rights of transferees who take property in good
faith and for a reasonable equivalent value); Tsiatsios v.
Tsiatsios, 144 N.H. 438, 444 (1999) (“Judgment in a fraudulent
transfer case may be entered against the first transferee of the
asset unless the transferee took in good faith and for a
reasonably equivalent value.”).
Beyond a boilerplate prayer for “any other order [the
court] deems fair and just,” doc. no. 40 at 7, Allyn & Borgatti
ask for no other relief as to Mr. Carpentier or Island Path LLC.
See Harris v. Univ. of Mass Lowell, 43 F.4th 187, 192-93 (1st
Cir. 2022) (boilerplate general prayer for relief in complaint
does not preserve a request for damages); Governor Wentworth
Reg’l Sch. Dist. v. Hendrickson, 201 Fed. Appx. 7, at *9 (1st
Cir. 2006) (same). Because there is no relief requested in the
third-party complaint that the court may order, Mr. Carpentier
and Island Path LLC’s motion to dismiss (Doc. No. 54) should be
granted. The third-party complaint (Doc. No. 40) should be
dismissed.
___________ ______________
Andrea K. Johnstone
United States Magistrate Judge
December 6, 2023
cc: Counsel of Record
Shawn P. Allyn, pro se
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