UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Hews Company, LLC

v. Civil No. 04-cv-292-JM

Bruce Barnaby, et al.

O R D E R

Plaintiff moves to add Greenville Maine Realty Trust as a

party in interest and to appoint a receiver for the trust. 

Defendants object. 

Background

The suit involved the sale in August of 2003 of trucks

entrusted to plaintiff by defendants. Defendants failed to pay

plaintiff over $400,000.00 of proceeds. In August of 2005,

judgment in the amount of $750,000.00 was entered based upon a

settlement stipulation. Subsequent collection efforts have been

unsuccessful and have included a contempt order against Barnaby

for diversion of funds by him which he was under order to pay

over to plaintiff. 

Plaintiff now seeks to add as a party a New Hampshire real

estate trust which was created by Bruce Barnaby and his wife in

1995. Their children are the beneficiaries of the trust known as

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the Greenville Maine Realty Trust. Plaintiff admits knowledge of

the trust for a substantial period of time. In fact, the trust

was the subject of questioning by plaintiff in the July 21, 2005

deposition of Bruce Barnaby and the November 29, 2006 deposition

of Pamela Barnaby. The trustee of the trust is Pamela Barnaby. 

Bruce Barnaby is not a trustee, has no beneficial interest in the

trust nor does he have any ownership of its property. Plaintiff

claims that in 2005 he acknowledged paying bills for the trust

and 

that he offered the real estate of the trust in settlement of the

case at one point in time. 

Discussion

A party may resort to Rule 21 to add a party

who for some innocent reason has not been

made a party to the action and whose presence

is necessary or desirable . . . even after

trial or on appeal. Wright, Miller & Kane, 7

Federal Practice and Procedure: Civil § 1688

(1986). 

Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F. Supp. 340,

344 (1993), remanded in part, 36 F.3d 1147 (1st Cir. 1994). 

Whether one looks to Rule 15, 19 or 21, the burden is upon “the

moving party (to) demonstrate an absence of prejudice to the

nonmoving party.” Id. (citations omitted). Furthermore, when

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liability has been determined and it is well after judgment has

been entered, the court has discretion to deny any attempt to

join a new party. See Cabrera v. Municipality of Bayamon, 622

F.2d 4, 6 (1st Cir. 1980). In assessing prejudice the court

considers any undue delay by the moving party. See Crude Co. v.

U.S. Dept of Energy, 189 F.R.D. 1, 2 (D.C. 1999). 

I exercise my discretion to deny both motions. The judgment

in this case was entered in August of 2005. Plaintiff had

already deposed Bruce Barnaby about the Greenville Maine Realty

Trust. Waiting two years is an undue delay. 

Further, there is little legal basis for the claim. First,

any fraudulent transfer claim arising out of the 1995 transfer

has been extinguished. See N.H. Rev. Stat. Ann. § 545-A:9 (1997)

(providing statute of limitations for such claims). Second, the

fact that Barnaby paid some trust expenses prior to August of

1995 on a trust where his children were beneficiaries does not

suggest that the trust was, or is, a sham. Even his offer to

facilitate a transfer of the property of the trust in exchange

for plaintiff’s claims as part of a settlement does not establish

that he could have legally done so. Alternatively, he may well

have had the permission of the trustee and/or the beneficiaries

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because she/they perceived such a transfer to be for

consideration. 

Mrs. Barnaby had a legal duty to manage the trust for the

interests of the beneficiaries. See N.H. Rev. Stat. Ann. § 564-

B:8-801 (Supp. 2006) (requiring good faith management of trust). 

The children, not Barnaby, hold beneficial ownership. They are

not responsible for their father’s debts, whether or not he was

interfering with their beneficial interests. 

Plaintiff’s attempt is a belated and ill-conceived effort to

pierce the trust “veil” to get at interests Barnaby does not

legally have. 

The motions (document nos. 82 and 83) are denied. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 11, 2007

cc: Timothy J. Bryant, Esq.

 Peter G. Callaghan, Esq.

 William S. Gannon, Esq.

 Stephen L. Tober, Esq.

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