UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard D. McKinnie

v. Civil No. 07-193-JM

Eddie Nash & Sons, Inc.,

Susan Camille Nash, and 

Adam W. Hurd

O R D E R

Plaintiff Richard D. McKinnie (“McKinnie”) filed a complaint

against Eddie Nash & Sons, Inc. (“the company”), Susan Camille

Nash (“Nash”) and Adam W. Hurd (“Hurd”) on June 26, 2007,

asserting claims based on, inter alia, common law fraud, breach

of contract, and violations of South Dakota’s Consumer Fraud Act

and New Hampshire’s Consumer Protection Act. See Document no. 1. 

Currently before the court is plaintiff’s petition to attach,

with notice, filed on July 9, 2007. See Document no. 4. On July

31, 2007, defendants objected to the petition to attach and

requested a hearing. See Document no. 11. A hearing on the

matter was held on August 15, 2007, after which plaintiff filed a

memorandum in support of the attachment. See Document no. 16. 

Plaintiff seeks to attach real property as well as machinery and

equipment in the amount of $125,000. He asserts that there is a

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 1 of 18
1A “skidder” is a piece of heavy machinery used in the

logging industry to move tree branches and other, similar debris. 

2

reasonable likelihood that he will recover judgment on his

claims, and also contends that defendants’ assets will be

insufficient to satisfy any judgment in his favor. As explained

below, plaintiff’s petition to attach is denied.

Background

Eddie Nash & Sons is a family owned and operated business

which buys, sells and trades used forestry, construction, farming

and trucking equipment, located in Colebrook, New Hampshire. 

Nash and Hurd both work for the company. McKinnie is a selfemployed South Dakota rancher. According to the complaint, in

January 2006, McKinnie telephoned defendants after locating a

late 1970's “230 Timberjack skidder” advertised on the company’s

website.1 Representatives of the company convinced McKinnie to

purchase, instead, a 1990 model year 240 Timberjack skidder,

which was “in great shape” and had just come off a job. Nash

sent McKinnie a picture of that unit. She informed him that the

unit would be sold “as-is,” which she explained meant it was

“woods ready” or “work ready.” Over the next several weeks, Nash

and Hurd assured McKinnie the unit would include a new cable, six

new chokers, and a good seat, and that it would be “in perfect

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 2 of 18
2The parties dispute when the transmission first stopped

working and why there was such a delay between the March order

and the June shipment of the skidder; however, resolution of

those facts is not necessary to resolve the pending motion. The

dispute serves to illustrate the position of the parties, which

is at loggerheads on nearly every factual issue. 

3

working order,” suitable for his various needs. McKinnie was

persuaded to buy the 1990 skidder.

McKinnie wired Nash $1,000 on March 10, 2006 as a down

payment, which defendants’ acknowledged was received. On March

14, 2006, Nash signed an invoice for the sale of a “Timberjack

Skidder 240 sn/845068 ‘Grapple + Winch’,” for $30,000, and four

new tires for an additional $5,000. McKinnie did not sign this

invoice. Although defendants were to arrange for shipping the

unit to McKinnie, he assumed responsibility for the $2,800 cost

of shipping. After the initial shipping arrangements fell

through, Nash proposed an alternative shipping company at an

estimated cost of $7,000, which McKinnie declined. Instead, he

arranged the shipping. On May 5, 2006, McKinnie wired $34,250,

the balance due, to the company. 

A trucker arrived to pick up the unit on May 12, but left

empty-handed because the transmission was not working properly.2

Finally on June 3, 2006, the skidder was picked up, but rather

than driving it up a ramp onto the truck, defendants used a

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 3 of 18
3Though not significant for purposes of the pending petition

to attach, the parties have presented conflicting evidence about

whether the skidder in fact was a 1983 or 1984 model, rather than

the 1990 model plaintiff thought he had bought.

4

forklift to load the unit. Nash issued a second invoice that

day, which stated “Took today: 240 Timberjack Skidder, ‘Grapple

+ Winch’, (4 New Tires) + Chains, sn/845068.” See Complaint,

¶33, Ex. B. 

Upon delivery of the skidder in South Dakota, McKinnie

immediately suspected it was not the unit he thought he had

purchased. He noticed its green color appeared to be painted

over an original orange color, which was the color of older

Timberjack models. McKinnie called Hurd to question the unit,

but was assured he had received the correct skidder. Doubting

that, McKinnie then used the serial number to determine that the

unit was actually a 1983 model, rather than the 1990 model

McKinnie had intended to purchase.3 McKinnie also noticed that

none of the promised servicing had been performed. McKinnie

confirmed that the unit was a 1983 model with a local South

Dakota Timberjack dealer, who inspected the skidder and

identified numerous problems with it. See Complaint, ¶42. That

dealer conferred with local used equipment appraisers and

concluded the unit was “not worth the cost of needed repairs.” 

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 4 of 18
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The skidder was estimated to have a $2,500 salvage value, plus

the value of the four new tires. To date the skidder remains on

McKinnie’s property.

Discussion

1. Standard of Review

Pre-judgment attachments are available to secure

satisfaction of judgments “under the circumstances and in the

manner provided by the law of the state where the district court

is held.” Fed. R. Civ. P. 64. Under New Hampshire law, prejudgment attachments generally may only be issued after notice

and an opportunity to be heard have been given to the defendant. 

See N.H. Rev. Stat. Ann. (“RSA”) 511-A:1 and A:2. At the

hearing: 

the burden shall be upon the plaintiff to

show that there is a reasonable likelihood

that the plaintiff will recover judgment . . .

on any amount equal to or greater than the

amount of the attachment. Upon satisfying

said burden, the plaintiff shall be entitled

to the attachment unless the defendant establishes

to the satisfaction of the court that his assets

will be sufficient to satisfy such judgment . . ..

RSA 511-A:3. The plaintiff’s burden of proof to justify an

attachment is greater than the preponderance of evidence required

to prevail in a civil action. See Diane Holly Corp. v. Bruno &

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Stillman Yacht Co., 559 F. Supp. 559, 561 (D.N.H. 1983)

(explaining how New Hampshire’s special constitutional protection

of property requires prejudgment attachments to be supported by a

strong preliminary showing of probable success). “[M]ore than a

favorable chance of success must be shown.. . . [P]laintiff . . .

must make a strong preliminary showing that he or she will

ultimately prevail on the merits and obtain judgment in the

requested amount and that this showing must be established by

proof greater than proof by a mere preponderance of the

evidence.” Id. Only if plaintiff satisfies this higher burden

of showing a strong likelihood of success does the burden shift

to defendant to demonstrate it has the ability to satisfy the

potential judgment against it. See id. (affirming order denying

attachment without considering defendant’s ability to pay because

plaintiff had not made the requisite showing); see also RSA 511-

A:3. 

Plaintiff was given an opportunity to make the requisite

showing at the hearing on this matter held on August 15, 2007. 

Both sides were well represented by counsel, who proceeded by

proffer, including sworn statements and attested pleadings. They

stipulated to nothing and disputed nearly every issue. Plaintiff

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4Under New Hampshire law, when the term “as is” is contained

in a purchase and sale memorandum, it is understood to mean the

item is sold “in its then existing physical and mechanical

condition and without warranty as to quality or fitness for a

particular purpose.” Johnson v. Waisman Bros., 93 N.H. 133, 136,

36 A.2d 634, 636 (1944).

5The complaint inadvertently repeats the number four on two

separate counts, so a quick reading of the complaint reflects

only six counts; however, on closer review, it is clear that

seven causes of action are asserted. 

7

stressed that the unit was represented as a “woods ready” or

“work ready” 1990 model, repaired and in perfect working

condition, notwithstanding the “as-is” disclaimer on the

invoice.4 Defendant countered that an “as-is” condition of a

piece of used heavy equipment that was 16 years old necessarily

means it is not in “perfect” working condition. As explained in

further detail below, because every point made by plaintiff was

met with a strident counterpoint by defendant, the evidence does

not point so clearly in plaintiff’s favor to justify issuance of

a prejudgment attachment at this very early stage in the case. 

2. Plaintiff’s Likelihood of Success

Plaintiff asserts seven causes of action based on the facts

alleged.5 Those claims are:

- Count I: conspiracy to commit fraud;

- Count II: common law fraud;

- Count III: violation of S.D.C.I. § 20-10-1;

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- Count IV: violation of RSA 358-A;

- Count IV: breach of express warranty;

- Count V: breach of contract; and

- Count VI: rescission.

See Complaint at 9-14. The first four counts assert fraud-based

claims against all three defendants; the last three counts assert

contract-based claims against the company only. 

Under New Hampshire law, which governs in this diversity

action, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496 (1941), to state a claim for fraud, plaintiff must allege

that defendants “‘intentionally made a representation with

knowledge of its falsity or with conscious indifference to its

truth with the intention to cause another to rely on it,’” and

that the other justifiably relied on that representation to his

detriment. M&D Cycles, Inc. v. Am. Honda Motor Co., 208 F. Supp.

2d 115, 120 (D.N.H. 2002) (quoting Snierson v. Scruton, 145 N.H.

73, 77, 761 A.2d 1046, 1049 (2000) and citing Gray v. First NH

Banks, 138 N.H. 279, 283, 640 A.2d 276, 279 (1994)), aff’d, 70

Fed.App. 592 (1st Cir. 2003). Plaintiff argues defendants acted

jointly to defraud him by sending a worthless piece of equipment,

and that the statement that the skidder was “woods ready”

justified his decision not to investigate its condition further.

See Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47, 534 A.2d 706,

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 8 of 18
6In further support of his conspiracy theory, plaintiff

points to another action against the company which, he argues, is

similar to the facts presented here and demonstrates a pattern of

deception by defendants. See Putnam Lumber Co. v. Eddie Nash &

Sons, 141 N.H. 670, 690 A.2d 570 (1997). In that case, Eddie

Nash & Co. sold a 1981 model skidder rather than a 1986 model, as

had been represented. The plaintiff alleged that the skidder was

not in good condition and required extensive repair. Defendant

responded by taking back the skidder and trying to recover the

outstanding balance due. While those facts do resemble the

allegations here, a case from ten years ago does not prove the

facts asserted today. 

9

709 (1987) (stating elements of conspiracy to commit fraud)6; 

Univ. Sys. of N.H. v. U.S. Gypsum Co., 756 F. Supp. 640, 651

(D.N.H. 1991) (requiring disclosure of facts peculiarly within

defendants’ control); Gilman v. Berry, 59 N.H. 62, 64, 1879 WL

4142 (1879). Plaintiff also asserts that delivery of the actual

skidder sent breached the contract, the express warranty of being

“woods ready,” and the implied warranty of merchantability. See

Xerox Corp. v Hawkes, 124 N.H. 610, 616, 475 A.2d 7, 9 (1984)

(discussing implied and express warranties that arise under the

Uniform Commercial Code). Finally, plaintiff argues defendants

violated the Consumer Protection Act in effecting this sale. See

Milford Lumber Co. v. RCB Realty, 147 N.H. 15, 18, 780 A.2d 1259,

1261 (2001) (explaining how the Consumer Protection Act protects

against the full spectrum of unethical or unscrupulous actions

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 9 of 18
7Defendants state the photographs in Exhibit C also were

emailed to plaintiff in March 2006, before he agreed to buy the

unit; however, plaintiff maintains he never saw these photographs

until they were made part of the record of defendants’ objection

to the petition to attach.

10

that can arise in the business or trade context). In short,

plaintiff argues that defendants committed fraud and breach of

contract by selling him a different skidder than the 1990

Timberjack model he had negotiated to buy. 

At the hearing, plaintiff compared various photographs of

the contested skidder to demonstrate that defendants

misrepresented material facts regarding the quality and condition

of the unit actually sold. First, plaintiff compared photographs

he took of the actual skidder received, see Plaintiff’s August

15, 2007 Hearing Exhibits (“Pl.’s Ex.”) 4 & 5, with photographs

of a skidder which defendants claim depict the unit they sold and

shipped to plaintiff on June 3. See Defs’ Mem. in Supp. of Obj.

(“Defs’ Obj. Mem.”), Ex. C.7 Plaintiff compared his Exhibits 4

and 5 to defendants’ Exhibit C, claiming that the photographs

could not be of the same skidder despite defendants’ contrary

proffer. Plaintiff identified the following alleged

discrepancies: differences in the paint pattern, specifically

around the driver’s cage and on the wheels; a sticker on the unit

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 10 of 18
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received which is not shown in the photograph of the unit

defendants claim to have sent; and an exposed engine in

plaintiff’s picture while defendants’ photograph shows a skidder

with an engine covered by a screen. Plaintiff argued that had he

received the photographs in Exhibit C, he would not have agreed

to buy the skidder depicted, because of a hole in the grapple. 

See Ex. C-1 (showing grapple with barely visible hole).

 In addition to these superficial discrepancies, plaintiff

also stated that the skidder received was functionally deficient: 

that it only drove in a single gear, the high gear; and that it

was filled with enough debris to constitute a fire hazard. 

Plaintiff represented that because the skidder was inoperable,

his damages also included $1,500 in unused diesel fuel, which

could not be resold. 

Defendants riposted by undermining the identified, alleged

discrepancies and challenging plaintiff’s general theory that

they had deliberately misrepresented what was sold to plaintiff. 

First, defendants attested that the photographs incorporated into

Exhibit C in fact had been sent to plaintiff. They noted that

plaintiff had wanted a grapple, which is considered a luxury and

which none of the units originally shown to plaintiff had. See

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Defs’s Obj. Mem., Ex. A. Nash attested that, after further

discussions with McKinnie, she faxed more pictures to show him

units with grapples. See id., Exs. B & C. Defendants also

represented that plaintiff knew the skidder had been painted

green over its original orange color, and that plaintiff had

requested additional paint in both colors to cover where paint

had chipped. Defendants explained that the sticker shown in

plaintiff’s exhibits identifies the company, and that all product

that leaves the facility gets labeled with one. Defendants

further explained that their Exhibit C reflects the old tires,

which were replaced with the new tires that plaintiff purchased

and that are seen in plaintiff’s Exhibits 4 and 5.

 Defendants affirmed plaintiff’s claim that there was some

confusion over the unit’s model year, but clarified that they

also told plaintiff the unit had been repossessed and had just

come off a job. Defendants maintained that any mistake about the

model year was not deliberate or fraudulent. Plaintiff was told

the skidder’s serial number, which plaintiff could readily have

used to verify the model year of the 240 Timberjack in question. 

See Defs’ Obj. Mem., Ex. D (March 14, 2006 invoice sent to

plaintiff). Defendants emphasized that the machinery in question

Case 1:07-cv-00193-JL Document 18 Filed 08/24/07 Page 12 of 18
8Defendants’ copy of the March 14, 2006, invoice conforms

with the copy plaintiff attached to his complaint. 

13

is “old” and the invoice clearly reads, in what appears to be

standard boilerplate language:

ALL EQUIPMENT IS SOLD BY SELLER AND ACCEPTED

BY PURCHASER “AS IS.” SELLER MAKES NO 

WARRANTY, EXPRESSED OR IMPLIED, AS TO ANY

MATTER WHATSOEVER, INCLUDING THE CONDITION 

OF THE VEHICLE, ITS MERCHANTABILITY OR ITS

FITNESS FOR ANY PARTICULAR PURPOSE. 

See id.8 Defendants proffered that plaintiff never was assured

that the 16-year old, repossessed Timberjack skidder was in

perfect working condition.

Nash attested that in response to plaintiff’s repeated

requests for assurances about the condition of the skidder, she

invited plaintiff to come inspect the unit personally, which he

declined to do. Defendants explained that they told plaintiff

that the skidder had been driven in the company’s yard without

incident, that the winch and grapple had been tested and worked,

that the transmission had malfunctioned but had been repaired,

and that the unit would be serviced before delivery. Defendants

stated that the skidder was not driven onto plaintiff’s delivery

truck because the truck did not have any ramps, not because

defendants were trying to hide how poorly the unit operated. 

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Finally, in response to the multiple problems plaintiff listed in

the complaint as requiring service, defendant represented that

those items could be repaired for only $2,000. In any event,

defendants stated that they had offered to refund plaintiff’s

money if the skidder were returned to them.

I will not smooth the ice. As the foregoing amply

demonstrates, the proffers are at loggerheads and squarely

present credibility issues that cannot be resolved at this

preliminary stage in the proceedings. While an intent to deceive

plaintiff may underlie defendants’ actions, and defendants may

have orchestrated a scheme to defraud an unwary, distant buyer by

dumping useless inventory at a handsome profit, as plaintiff

would have me believe, defendants’ version of the events is also

plausible. The evidence currently before the court is limited to

a few photographs, the authenticity of which has not been

established, conflicting affidavits of the parties that represent

their diametrically opposed stories, and a few invoices. The

evidence is not clearly or convincingly supportive of one

position over the other. Plaintiff’s probability of prevailing

remains an open question, subject to a more plenary proceeding

after discovery has been completed. Under the circumstances,

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9Though further analysis is not warranted under RSA 511-A:3

since plaintiff did not meet his burden of proof, because both

parties proffered arguments in support of their position on the

sufficiency of defendants’ assets to satisfy any potential

judgment, I will address the issue.

10Plaintiff argues that recent state indictments against

Nash on charges of forgery and theft by deception suggest that

the defendants are experiencing financial difficulties. The

defendants deny the indictments reflect Nash’s character or

finances, noting that they stem from a retaliatory claim made by

a debtor of the company, in reaction to a civil lawsuit filed

against the debtor to collect an unpaid sum due. Defendants

proffer that the county attorney has agreed to drop all charges. 

15

plaintiff has not met his burden of showing a strong likelihood

of succeeding on the merits of his claims.

3. Defendants’ Ability to Satisfy a Judgment9

Plaintiff concludes that, notwithstanding the defendants’

claim of solvency, they have not carried their burden of showing

the ability to pay a money judgment. They have made no

representations as to cash on hand, nor that the $500,000 equity

in the real estate is unencumbered. Plaintiff also points to

pending criminal charges against defendant Nash, to substantiate

his overall theory of deception and bolster his concern about

defendants’ inability to satisfy a judgment against them.10

Plaintiff emphasizes that he does not seek attachment out of ill

will, which representation I found credible. Indeed plaintiff

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agrees that if an attachment ensues, it should be limited to real

property so as not to interfere with defendants’ business. If,

however, the court finds defendants have sufficient assets to

cover a likely judgment for plaintiff, plaintiff also asks the

court to find that any transfers of assets after the denial of an

attachment would be subject to the provisions of the Uniform

Fraudulent Transfer Act. See RSA 545-A:4 (addressing fraudulent

transfers as to present and future creditors). 

Defendants proffered credible representations that they

would have no difficulty paying a judgment in this case, because

they have more than sufficient equity in real property and

chattels to satisfy any potential judgment against them. I find

the defendants’ verified memoranda both important and persuasive. 

The attested proffer that the company has $500,000 in equity, and 

that sales for 2005 were about $5,000,000, demonstrate that

defendants have sufficient assets to satisfy a judgment in this

matter. Had the defense proffer been weaker, and had the defense

not directly addressed plaintiff’s arguments, the resolution of

this provisional remedy might well be different. The defendants’

firm statement of the company’s asset value, however, is not

contradicted by plaintiff except with conjecture and speculation. 

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Accordingly, even if plaintiff had met his burden of proof on the

merits, a prejudgment attachment of defendants’ assets is not

warranted under the circumstances as they stand now before the

court.

Defendants, nevertheless, are placed on notice that this is

a provisional remedy, subject to being revisited under

appropriate circumstances, and the court would look askance at

the transfer or encumbering of assets which might cause concern

with the court or plaintiff. While the provisional remedy has

been denied, the defendants are to notify the court of any

intention to encumber or transfer real property or chattels,

except as is necessary in the ordinary course of business,

otherwise such an action might be looked upon as an attempt to

avoid a future adverse judgment, and might prompt appropriate

remedial steps to be taken at that time. 

Conclusion

For the reasons set forth above, the Court finds that

plaintiff has not made the strong showing that he will prevail on

his claims needed at this preliminary stage to justify issuance

of a prejudgment attachment. Moreover, even if plaintiff had

made the requisite showing, defendants have established to my

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satisfaction that they hold assets which are sufficient to

satisfy a judgment of this court, with interest and costs. 

Therefore, the motion for prejudgment attachment (document no. 4)

is denied.

SO ORDERED.

/s/ Justo Arenas 

Justo Arenas

United States Magistrate Judge

Date: August 24, 2007

cc: Zachary Gates, Esq.

William Pribis, Esq. 

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