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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-23235-Civ-SCOLA/TORRES

LEZER CORP.,

a Delaware corporation,

Plaintiff,

v.

NOBLE PARTNERS, LLC,

a Maine limited liability company, d/b/a

NOBLE MEDICAL SUPPLY, and

SEAN GRADY, an individual,

Defendants.

___________________________________________/

REPORT AND RECOMMENDATION

ON PLAINTIFF’S MOTION FOR A PREJUDGMENT 

WRIT OF ATTACHMENT AND PRELIMINARY INJUNCTION

This matter is before the Court on Lezer Corp.’s (“Plaintiff”) motion for a 

prejudgment writ of attachment and preliminary injunction on the assets of Noble 

Partners LLC (“Noble”) and Sean Grady (“Mr. Grady”) (collectively, “Defendants”) 

pursuant to § 76.04 Fla. Stat. (2018) and § 77.031 Fla. Stat. (2018). No response 

was filed in opposition and the time to do so has passed. Therefore, Plaintiff’s

motion is now ripe for disposition. After careful review of the motion, relevant 

authorities, and for the reasons discussed below, Plaintiff’s motion should be

DENIED.1

 

1 On September 4, 2020, the Honorable Robert N. Scola referred Plaintiff’s 

motion to the undersigned Magistrate Judge for disposition. [D.E. 13]. 

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I. ANALYSIS

Plaintiff filed an eight-count complaint on August 4, 2020 [D.E. 1], alleging 

breach of contract, conversion, fraud, unjust enrichment, piercing the corporate veil, 

civil conspiracy, constructive trust, and civil theft. Plaintiff claims that the facts of 

this case stem from the unlawful actions that Defendants took in response to the 

COVID-19 pandemic. In May 2020, the parties began negotiations so that 

Defendants could supply Plaintiff with the delivery of alcohol wipes. The parties 

formally entered into an agreement on May 8, 2020, when Noble agreed to supply 

Plaintiff with 216,000 units of wipes by May 18, 2020. In exchange, Plaintiff agreed 

to pay Noble $432,000 with 25% ($108,000) due as a deposit and the remaining 

balance due upon delivery of all the wipes (216,000 units). If Noble failed to

materially complete the order, the parties agreed that Plaintiff’s deposit would be 

returned.

On May 11, 2020, Plaintiff wired the deposit funds to Noble. Noble then 

delivered a total of 14,400 units of wipes or five percent of the amount that Noble 

had promised. When Plaintiff questioned Defendants on the status of the 

remaining wipes, Mr. Grady had no answer. Another two weeks passed and no 

other delivery was made. Plaintiff claims, at that point, it understood that 

Defendants had no intention of ever delivering the remaining wipes and demanded 

the return of its deposit. However, Defendants refused. Plaintiff subsequently 

learned that, approximately one year earlier on June 6, 2019, law enforcement 

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indicted Mr. Grady in Maine state court on criminal charges of securities fraud, 

theft by deception, and selling securities without a license. 

Plaintiff then discovered that Mr. Grady was operating Noble and other 

affiliated business entities as alter egos to extend his criminal fraud enterprise and 

to conceal his identity. And based on media reports, Plaintiff also determined that 

Mr. Grady sought to defraud other supply-strapped healthcare companies out of 

millions of dollars with promises of significant quantities of medical supplies and no 

intention of completing any delivery. As such, Plaintiff filed this action to recover 

damages, prejudgment interest, fees, and costs.

A. Preliminary Injunction

Having set forth the relevant facts, we begin with Plaintiff’s request for a 

preliminary injunction. It is well established that a district court has the authority 

to provide preliminary relief, including an asset freeze, if the underlying cause of 

action is based on equitable principles. See Levi Strauss & Co. v. Sunrise Int’l

Trading Inc., 51 F.3d 982, 986-87 (11th Cir. 1995). However, the Eleventh Circuit 

has prohibited the use of a preliminary injunction to freeze assets or funds solely to 

ensure a future potential monetary award. See Rosen v. Cascade Int’l, Inc., 21 F.3d

1520, 1530 (11th Cir. 1994) (“We repeat: preliminary injunctive relief freezing a 

defendant’s assets in order to establish a fund with which to satisfy a 

potential judgment for money damages is simply not an appropriate exercise of a

federal district court’s authority.”).

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Plaintiff seeks a preliminary injunction to prevent Defendants from

transferring or otherwise divesting assets so that Plaintiff can recover its deposit of 

$108,000 dollars. While never stated directly, Plaintiff implies that its equitable

claims for conversion and unjust enrichment are sufficient to impose a preliminary

injunction. But, under Florida law, “counts for conversion and unjust enrichment 

[are] both actions at law,” at least when the property alleged to have been converted 

and the benefit conferred unjustly are money. Weinstein v. Aisenberg, 758 So. 2d

705, 707 (Fla. 4th DCA 2000) (Gross, J., concurring); see also M.I. Indus. USA Inc. v.

Attorneys’ Title Ins. Fund, Inc., 6 So.3d 627, 629 (Fla. 4th DCA 2009) (dissolving a 

preliminary injunction that froze defendant’s assets because “an action for unjust 

enrichment is an action at law” and therefore “money damages will suffice to 

compensate any loss”); Lopez–Ortiz v. Centrust Sav. Bank, 546 So. 2d 1126, 1127

(Fla. 3d DCA 1989) (holding that the plaintiff was not entitled to preliminary 

injunctive relief because it “brought an action at law for money damages for 

conversion and stated no ground for equitable relief”). Thus, neither conversion nor 

unjust enrichment can be a basis for a preliminary injunction.

Plaintiff then argues that its claim for constructive trust is based on 

equitable principles and that it too can be used as a vehicle for a preliminary 

injunction even though the relief sought is only money damages. The Eleventh 

Circuit’s decision in Mitsubishi Int’l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 

1507, 1521 (11th Cir. 1994), is instructive on this point. There, the plaintiff sought 

the equitable remedy of a constructive trust to prevent the dissipation of assets and 

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the district court granted injunctive relief in the form of an asset freeze. The 

plaintiff then argued on appeal that a preliminary injunction was appropriate to 

preserve the ability of the district court to order the defendant to disgorge any 

improperly transferred funds. Yet, the Eleventh Circuit reversed the preliminary 

injunction and rejected the plaintiff’s argument with the rationale that:

This position . . . fails to recognize that constructive trusts are not 

automatically impressed whenever one party owes another money, and 

it apparently overlooks the essence of the remedy—that constructive 

trusts are inherently equitable in nature and that equitable relief is 

available only in the absence of an adequate remedy at law.

Id. at 1518.

The Court ultimately determined that legal remedies, including statutory

damages under state and federal RICO laws, were sufficient to preclude resort to

equitable relief. And the Court further noted that its holding was consistent with a

“long and unbroken line of Florida cases” because “in an action at law for money 

damages, there is simply no judicial authority for an order requiring the deposit of 

the amount in controversy into the registry of the court . . . or indeed for any 

restraint upon the use of a defendant's unrestricted assets prior to the entry of 

judgment.” Id. at 1531 (quoting Konover Realty Assoc., Ltd. v. Mladen, 511 So. 2d

705, 706 (Fla. 3d DCA 1987)).

The Eleventh Circuit’s reasoning applies with equal force here because

“[c]ases in which the remedy sought is the recovery of money (whether as collection 

on a debt or as damages) do not fall within the jurisdiction of equity . . . and the 

imposition of a constructive trust generally will not be the appropriate remedy.” Id. 

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This is true “even when the cause of action implicates fraud or some other 

characteristic that would otherwise trigger equity jurisdiction.” Id. at 1518-19. 

Thus, “[t]here is nothing talismanic about pleading an equitable cause of action 

such that a court can ignore the essence of the remedy sought.” Storehouse Credit

Union, EK. For. v. Cusumano, 2010 WL 11508264, at *7 (M.D. Fla. July 26, 2010)

(citing SME Racks, Inc. v. Sistemas Mecanicos Para, Electronica, S.A., 243 F. App’x

502, 503 (11th Cir. 2007) (“Essentially, the Appellants maintain that they are 

automatically entitled to an injunction solely by virtue of the equitable relief they 

seek, irrespective of the legal principles that are considered in making such a 

determination. We find the Appellants’ arguments lack merit.”)).

In light of the holding in Mitsubishi, Plaintiff has failed to explain how a 

preliminary injunction can be granted if the only remedy Plaintiff seeks is the 

return of its deposit in the form of money damages. See, e.g., Brown v. Pontus LLC, 

2017 WL 4934666, at *1 (S.D. Ga. Oct. 30, 2017) (denying a plaintiff’s request for a 

preliminary injunction because “Plaintiff's sole reasoning for requesting a 

preliminary injunction is to prevent Defendants from liquidating their assets to 

avoid a future award.”). Plaintiff requests that we look past the recovery of money 

damages and focus instead on the equitable nature of a constructive trust. But, this

position has no support in either the Eleventh Circuit or Florida state courts. And 

to the extent Plaintiff argues that a preliminary injunction is appropriate because of 

the uncertainty in collecting a monetary award from Defendants, that too is 

unpersuasive because “[t]he test of the inadequacy of a remedy at law is whether a 

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judgment could be obtained, not whether, once obtained it will be collectible.” St.

Lawrence Co. v. Alkow Realty, Inc., 453 So. 2d 514, 514–15 (Fla. 4th DCA 1984).

Accordingly, Plaintiff’s motion for a preliminary injunction should be 

DENIED because, under Florida law, “an injunction cannot be entered to prevent a 

party from using or disposing of his assets prior to the conclusion of a legal action.” 

Doe No. 2 v. Epstein, 2009 WL 10667854, at *1 (S.D. Fla. Nov. 5, 2009) (citing 

Briceno v. Bryden Investments, Ltd., 973 So. 2d 614, 616 (Fla. 3d DCA 2008)); see 

also SME Racks, Inc., 243 F. App’x at 502 (affirming district’s court’s denial of 

preliminary injunction to freeze defendant’s assets); Proctor v. Eason, 651 So. 2d

1301, 1301-02 (Fla. 2d DCA 1995) (holding that a defendant was not required to 

deposit funds in a court registry prior to final judgment where the plaintiff failed to 

show unavailability of an adequate remedy at law); Lawhon v. Mason, 611 So. 2d

1367 (Fla. 2d DCA 1993) (quashing trial court order requiring defendant to give 

plaintiffs ten days notice prior to the transfer of any assets in excess of $500).

B. Attachment and Garnishment

Next, Plaintiff requests a prejudgment writ of attachment and garnishment 

pursuant to § 76.04 Fla. Stat. (2018) and § 77.031 Fla. Stat. (2018). A prejudgment 

attachment is available against assets fraudulently transferred from a debtor and 

held in the name of another. See Cerna v. Swiss Bank Corp. (Overseas), 503 So. 2d

1297 (Fla. 3d DCA 1987). In determining whether to issue a prejudgment writ of

attachment, courts look to Federal Rule of Civil Procedure 64:

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At the commencement of and throughout an action, every remedy is 

available that, under the law of the state where the court is located, 

provides for seizing a person or property to secure satisfaction of the 

potential judgment. But a federal statute governs to the extent it 

applies.

Fed. R. Civ. P. 64(a). Thus, we must examine Florida law to determine whether 

Plaintiff is entitled to the relief sought.

Chapter 76 of the Florida Statutes governs attachment proceedings and it 

provides that “[a]ny creditor may have an attachment at law against the goods and 

chattels, lands, and tenements of his or her debtor under the circumstances and in 

the manner hereinafter provided.” § 76.01 Fla. Stat. (2018). In the pre-judgment 

context, a creditor is entitled to an attachment

When the debt is actually due, the motion shall state the amount of the 

debt that is actually due, and that movant has reason to believe in the 

existence of one or more of the special grounds in section 76.04, Florida 

Statutes stating specifically the grounds.

§ 76.09, Fla. Stat. (2018). To obtain a writ of attachment, the person applying for it 

must post a bond in an amount “at least double the debt demanded.” § 76.12, Fla.

Stat. (2018). Florida courts have further noted that the term “debt” in the statute 

refers to a liquidated, rather than unliquidated claim or demand. Robinson v.

Loyola Foundation, Inc., 236 So. 2d 154, 157 (Fla. 1st DCA 1970) (citing Papadakos

v. Spooner, 186 So. 2d 786 (Fla. 3d DCA 1966)). “A claim for debt or damages is 

held to be liquidated in character if the amount thereof is fixed, has been agreed 

upon, or is capable of ascertainment by mathematical computation or operation of 

law.” Robinson, 236 So. 2d at 157 (citations omitted).

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Here, Plaintiff alleges an entitlement to $108,000 in money damages as a 

result of Defendants’ breach of contract. Plaintiff’s verified motion is well taken, in 

some respects, because it sets forth the amount of the damages sought. [D.E. 8-2]; 

see also § 76.08 Fla. Stat. (2018) (“Upon motion by plaintiff, a writ of attachment 

may issue when the grounds relied on for the issuance of the writ clearly appear 

from specific facts shown by a verified complaint or a separate affidavit of the 

plaintiff, and all applicable requirements of s. 76.09, s. 76.10, or s. 76.11 are met.”).2 

And this amount is, of course, ascertainable via mathematical computation because 

it represents the 25% deposit that Plaintiff agreed to pay as a down payment for the 

delivery of alcohol wipes. Thus, Plaintiff has established a liquidated claim against 

Defendants.

Next, Plaintiff must show it has reason to believe in the existence of one or 

more of the special grounds set forth in Florida Statutes, § 76.04. Plaintiff suggests 

that at least four subsections apply in this case:

The creditor may have an attachment on a debt actually due to the 

creditor by his or her debtor, when the debtor:

(1) Will fraudulently part with the property before judgment can be 

obtained against him or her.

. . .

(4) Resides out of the state.3

. . .

(7) Is absconding.

. . .

 

2 A verified motion is sufficient to seek relief under section 76.04. See 

Rodriguez v. Banco Indus. de Venezuela, C.A., 576 So. 2d 870, 873 (Fla. 3d DCA 

1991) (“The verified motion was sufficient under section 76.04, Florida Statutes, 

and is supported by the record.”) (citing cases).

3 Mr. Grady resides in Portland Maine and Noble’s members are Mr. Grady 

and another individual named Daniel Mickool – neither of which reside in Florida.

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(9) Is secreting the property.

(10) Is fraudulently disposing of the property.

Fla. Stat. § 76.04 (2018). While all of these are sufficient for § 76.04 to apply,

Plaintiff is most concerned that, before any judgment can be obtained, Defendants

will attempt to fraudulently part with or otherwise dispose of all property traceable 

from the deposit to shield any assets from collection. Plaintiff suspects that, 

without a prejudgment writ of attachment, it will collect nothing from Defendants 

after this case is litigated on the merits. 

In addition to a prejudgment writ of attachment, Plaintiff also seeks a 

prejudgment writ of garnishment so that the United States Marshals can take into 

custody Defendants’ assets. To obtain a prejudgment writ of garnishment, Fla. 

Stat. § 77.031 requires a plaintiff to:

File in the court where the action is pending a verified motion or 

affidavit alleging by specific facts the nature of the cause of action; the 

amount of the debt and that the debt for which the plaintiff sues is 

just, and unpaid; that the garnishment is not sued out to injure either 

the defendant or the garnishee; and that the plaintiff believes that the 

defendant will not have in his or her possession, after execution is 

issued, tangible or intangible property in this state and in the county 

in which the action is pending on which a levy can be made sufficient 

to satisfy the plaintiff's claim.

§ 77.031(2), Fla. Stat. (2009). And like a writ of attachment, this requires a plaintiff 

to post a bond “in at least double the amount of the debt demanded.” Id.

Plaintiff claims that he is well aware of the procedural requirements 

contained in Fla. Stat. §§ 76.12 and 77.031(3) requiring a bond equal to a sum twice 

the amount sought in the application for attachment and garnishment. Plaintiff 

also states that he stands ready, willing, and able to post a bond. However, under 

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Fed. R. Civ. P. 65(c), Plaintiff argues that he should only be required to post a 

nominal bond because the state law procedural requirements have no applicability 

to this Court. This argument is unavailing “‘[b]ecause of the extraordinary nature 

of attachment proceedings, the terms of the statute must be narrowly 

construed.’” Future Tech Intern., Inc. v. Tae Il Media, Ltd.,944 F. Supp. 1538, 1554

(S.D. Fla. 1996) (quoting Cerna v. Swiss Bank Corp., 503 So. 2d 1297 (Fla. 3d DCA

1987)). The Court is therefore constrained by the language of the Florida statutes

and cannot permit Plaintiff to post a bond in an amount less than the amount 

required under Florida law.

Yet, putting that aside, the larger problem with Plaintiff’s motion is that – in 

addition to the statutory requirements set forth above – “the due process clause of 

the United States Constitution forbids the issuance of a prejudgment writ based on 

the plaintiff's conclusory allegations that he or she believes one of the statutory 

grounds exists.” Frasher v. Fox Distrib. of Sw. Fla., Inc., 813 So. 2d 1017, 1019–20

(Fla. 2d DCA 2002) (citing Unique Caterers, Inc. v. Rudy's Farm Co., 338 So. 2d

1067, 1071 (Fla. 1976)). That is unfortunately the case here because Plaintiff fails 

to provide any evidence that Defendants will not have sufficient funds to satisfy a 

judgment entered against them. Plaintiff spends much time and effort reiterating 

its allegations, but never directs the Court to any evidence to support these claims. 

See, e.g., [D.E. 11 at 8 (“[There is presently a real and grave risk that [Defendants’] 

dishonesty will only continue”); id. (“Defendants will attempt to fraudulently part 

with, abscond with, secrete or otherwise fraudulently dispose of, any and all 

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property traceable from the Deposit to shield those very same assets from 

collection.”). Instead, Plaintiff uses superlatives and adjectives throughout its 

motion to describe how Defendants will act in the absence of a writ of attachment or 

garnishment, but Plaintiff then omits any substance in support of these allegations. 

Id. at 5 (“Clearly in this case, a prejudgment writ of attachment is appropriate 

against Noble and Grady”).

Plaintiff’s allegations are, in many respects, similar to the inadequate

allegations that a district court considered in Land Title Guarantee Co. v. Downs, 

2012 WL 1326232, at *2 (M.D. Fla. Apr. 17, 2012). There, the plaintiff alleged that 

it was unaware that the defendants had in their possession enough property within 

the Court’s jurisdiction to satisfy a judgment entered against them. The court 

found this “evidence” to be insufficient because “[a] lack of knowledge regarding [the 

defendants’] funds is not sufficient to meet [a plaintiff’s] burden of showing that [the 

defendants] will not have sufficient funds to satisfy a judgment against them.” Id. 

Those allegations are similar to the ones in this case because Plaintiff is 

merely making inferences without pointing to any real evidence to substantiate its 

allegations. And even worse, the allegations in Plaintiff’s motion are entirely 

conclusory. Plaintiff appears to hang its hat on the fact that Mr. Grady was 

indicted on criminal charges in Maine state court, but that says nothing as to the 

disposal of assets and the evidence required to justify a prejudgment writ of 

attachment or garnishment. More is needed because Florida courts have found that 

“an affidavit supporting the issuance of a prejudgment writ of attachment must not 

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be based on hearsay or the plaintiff’s subjective beliefs, but rather must be based on 

the plaintiff's personal knowledge of the defendant’s actions.” Frasher v. Fox

Distrib. of S.W. Fla., Inc., 813 So. 2d 1017, 1020 (Fla. 2d DCA 2002) (citing Lawhon

v. Mason, 611 So. 2d 1367, 1368 (Fla. 2d DCA 1993); Hordis Bros., Inc. v. Sentinel

Holdings, Inc., 562 So. 2d 715, 717 (Fla. 3d DCA 1990) (holding that Sentinel’s 

affidavit which was composed entirely of hearsay was insufficient to support the 

issuance of a prejudgment writ of attachment)). And, after a thorough review of the

motion, there are no allegations based on Plaintiff’s personal knowledge. If 

anything, Plaintiff is relying on an indictment and then assuming that Defendants 

are disposing of assets to satisfy a judgment against them. Because Plaintiff needs 

more evidence to meet its burden, the motion for a writ of garnishment and

attachment should be DENIED with leave to renew if Plaintiff can provide 

additional evidence to substantiate the allegations against these Defendants.

II. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s

motions for a prejudgment writ of attachment and preliminary injunction be 

DENIED.

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties 

have fourteen (14) days from service of this Report and Recommendation within 

which to file written objections, if any, with the District Judge. Failure to timely 

file objections shall bar the parties from de novo determination by the District 

Judge of any factual or legal issue covered in the Report and shall bar the parties 

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from challenging on appeal the District Judge’s Order based on any unobjected-to 

factual or legal conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. 

Rule 3-1; see, e.g., Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley 

v. Commissioner of Social Security, 2016 WL 7321208 (11th Cir. Dec. 16, 2016).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 5th day of 

October, 2020.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

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