Homes Development Corp. et al v. Edmund & Wheeler, Inc. et al

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
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2
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.
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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
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