STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKETNO. CV 23-321 MUSSEL COVE MARINE LLC V. CLAPBOARD ISLAND HOLDINGS, LLC ORDER

Before the courtis Plaintiffs Motion for an Ex Parte Motionfor Attachment against property ofDefendants. The court is unwilling to decide the Motion on an expartebasis, leaving the motion undecided until Defendants have had a rightto be heard. The initial question is whetherthe court is prepared to grantthe motion exparte, meaning without giving Defendants a right to be heard. For an exparte attachment, Rule 4A(g) sets a high bar. When a plaintiffseeks to obtain an attachment order on an ex parte basis, Rule 4A(g) requires the plaintiffto establish the same likelihood ofsuccess as with an attachmentpursuant to Rule 4A(c), but also requires the plaintiffto establish that "there is a clear danger that the defendant ifnotified in advance ofattachment ofthe property will remove it from the state or will conceal it or will otherwise make it unavailable to satisfy ajudgment" or that "there is immediate danger that the defendant will damage or destroy the propertyto be attached." M.R. Civ. P. 4A(g); see Fuentes v. Shevin, 407 U.S. 67, 82, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) (stating that due process requires notice and a hearing before depriving a person ofa property interest, except for extraordinary situations where some valid governmental interest is at stake thatjustifies postponing the hearing until after the event. (quotation marks omitted)). 

### It is this third requirementthat allows a plaintiffseeking an attachment to obtain reliefwith an "extraordinary" process thatpermits the bypass ofwhat otherwise is required, i.e., notice to the otherparty orpmties.
Estate a/Summers v. Nisbet, 2016 ME 88,

## ,r 8. Here, the only evidence suggesting that Defendants will destroy or make property unavailable is I. Defendants have a history ofdefault with respect to this contract, 2. Plaintiffs



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### "knowledge of [Defendants'] past behavior and 3. Defendants "have taken steps to liquidate" the Maine real estate. The Plaintiffprovided substantial evidence ofa hist01y ofdefault, butthat does not translate into immediate danger that property will be made unavailable. The court has insufficient knowledge of"past behavior" warranting an exparte attachment. 

### Finally, other than
a hearsay statement from an unidentified individual, there is no evidence regarding the impending sale ofthe property. There is no information regarding to what degree Defendants have acted to sell the property. The court appreciates thatthe Plaintiffis concernedthatDefendants will make theproperty unavailable to satisfyjudgment and an attachment may be appropriate. The court does not have sufficient evidence, however, that notice of this motion would cause Defendants to convey property for the purpose ofmaking it unavailable for judgment that would allow the court to deprive them ofa constitutional right to be heard. Therefore, the court denies the Motion for Attachment to the extent it asks the court to decide the motion exparte. 

### The motion remains pending and Defendants will have 21 days to respond after service ofthis order, the Complaint and the motion on them. This Order is incorporated onthe docket by reference pursuant to M.R.Civ.P. 79(a).

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# ~7-/--"'V___.:3c__ Thomas R. McKeon Justice, Maine Superior Court

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