UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Alan F. Beane and

Mii Technologies, LLC

Plaintiff and Nominal Plaintiff

v.

Glenn Beane and

Glenn Beane, LLC

Defendants and Third Party Plaintiffs

v. Civil No. 06-cv-446-SM

Alan F. Beane,

Mii Technologies, LLC

and Sara Beane,

Counterdefendants and 

Third Party Defendant

O R D E R

Defendants and third party plaintiffs Glenn Beane and Glenn

Beane, LLC (“Glenn Beane”) have petitioned the court to attach

certain assets of plaintiff Alan F. Beane (“Alan Beane”) and

nominal plaintiff Mii Technologies, LLC (“Mii”), to secure

payment of the anticipated, favorable judgment on Count IV of

their counterclaims. That count asserts Glenn Beane’s right to

reimbursement of payments made and expenses incurred on behalf of

plaintiffs. An evidentiary hearing on the petition to attach was

held on September 26, 2007. For the reasons set forth below, 

Case 1:06-cv-00446-SM Document 52 Filed 10/18/07 Page 1 of 24
1The background facts of this action are more involved than

is necessary to consider to resolve the matter currently before

the court. Accordingly, only those facts relevant to the

analysis of the requested petition to attach are discussed.

2The financing Alan Beane provided was from personal assets,

some of which were jointly owned with his former wife, Sara

Beane, and which, therefore, required her approval. The couple

has since divorced and the assets have been divvied up in their

divorce proceeding. For purposes of this order, reference to

Alan Beane guaranteeing loans or receiving security interests for

the financing provided may include money that Sara Beane also

provided and for which she also holds a security interest, and

the two individuals are referred to jointly hereinafter as Alan

Beane.

2

Glenn Beane’s petition to attach (document no. 33) is granted in

part and denied in part.

Background1

Alan Beane and Glenn Beane are brothers who combined talents

in an entrepreneurial endeavor to develop heat sinks and related

applications of metal castings for manufacturing processes and

powder press systems. Alan Beane contributed financially, both

investing capital of several million dollars to fund the business

and personally guaranteeing loans obtained to finance its

operations2. Glenn Beane contributed creatively, developing

patented inventions and serving as the president and chief

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3At the beginning two other partners were involved to help

develop the company’s powdered materials products; neither of

them is involved in the instant litigation. 

4Both brothers were members and managers of Mii, and

together owned over 90% of the company; however, Alan Beane held

a majority interest in many of the assets, as security for the

financing he provided. The brothers dispute the enforceability

of two documents that purportedly evidence some of the financing

provided: the first, “the April Fool Note,” was a promissory

note dated April 1, 2001, allegedly executed and backdated on

January 15, 2002, by which Mii purportedly agreed to repay

$1,500,000 on a revolving line of credit extended by Alan Beane;

the second, a “Commercial Security Agreement,” (“Security

Agreement”) executed on January 15, 2002, purported to secure

Alan Beane for that line of credit evidenced by the April 1, 2001

promissory note. Glenn Beane contends the Security Agreement was

a sham, because Mii never drew down the line of credit; however,

Alan Beane asserted his rights under the Security Agreement to

take over the assets and operations of Mii. 

3

operating officer of the business.3 The pair initially formed a

company called Materials Innovation, Inc. (referred to

alternatively in the record as both “MII” and “Materials”), and

subsequently formed a second company, Mii Technologies, LLC

(“Mii”), to finance the technological innovations of Materials

and provide Alan Beane tax benefits not available through

Materials’ corporate structure.4 According to the complaint,

“Mii was formed . . . for the purpose of commercializing the

technologies created by both Materials and Mii, including

developing manufacturing systems and related software to produce

metal components, and funding future research and development by

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Materials.” See Am. Compl., ¶ 7 (document no. 14). The two

companies operated in tandem, until Materials dissolved in

November 2003.

The interrelationship between the companies was evidenced by

the “Research & Development Agreement and Related License” (the

“R&D Agreement”), see Def.’s Ex. D to Hrg on Pet. to Attach

(“Def.’s Ex.”), which provided for Materials to license to Mii

certain of its technology and patents, in exchange for Mii’s

agreement to “pay for all expenses related to the exploitation of

those technology and patents, including (i) research,

experimentation and development activities carried on in

Materials Innovation’s name, (ii) the creating of a powder

metallurgy press, and (iii) the cost of leasing and improving the

facility which Materials Innovation was to lease for Mii to use.” 

Def.’s Counterclaims, ¶ 20(b) (document no. 24). The two

companies also shared a “Unified Pension Plan,” which covered

employees of both companies. Both Alan and Glenn Beane were

trustees of the plan. 

Glenn Beane managed the daily operations of both Materials

and Mii. In that capacity, he developed manufacturing systems

and related software known as the “press technology system,” and

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generated the intellectual property that constituted the core

assets of the business. The press technology system that Glenn

Beane developed had “the ability to revolutionize the manufacture

of precision pressed metal parts and this ability resulted in

Time magazine recognizing Mii’s powder pressing system as its

industrial invention of the year in 2000.” Am. Compl. ¶ 14. 

Despite this technological success, Mii had great difficulty

marketing its press technology system. By early 2002, Alan Beane

had substantially exhausted his personal assets financing

Materials and Mii, both of which also owed several creditors

significant amounts of money. In January 2002, Alan Beane

decided to assert his rights as “debtor-in-possession” under the

challenged Security Agreement to assume more control over certain

intellectual property assets of the company. The brothers also

decided to stop Materials’ operations and shift all resources to

commercializing Mii’s manufacturing systems. As part of the

reallocation of resources, another brother, David Beane, came on

board to manage the company to allow Glenn Beane to concentrate

on further development of Mii’s product. 

Mii eventually secured a contract with Lovejoy, Inc. for a

1,000 ton, 8-level press system (the “Lovejoy contract”). As

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part of the contract, Lovejoy agreed to be used as a reference

for how the system functioned in a commercial, production

environment. The Beanes expected a successful Lovejoy contract

to catapult the business as “the supplier of the next generation

of press technology for the precision metal parts industry.” Am.

Compl. ¶ 29. The Lovejoy contract, however, became the death

knell rather than the launching pad of Mii’s business. 

Mii was required to borrow more money to perform the Lovejoy

contract, which debt was secured by Mii’s accounts receivable and

also subordinated the debt owed to Alan Beane. Alan Beane,

however, guaranteed that loan. Mii was delayed in executing the

contract, because, among other reasons, Lovejoy changed

specifications for the press system ordered. In November 2003,

Mii finally delivered the 1,000-ton press to Lovejoy, with the

understanding that the requested upgrades would follow shortly.

From November 2003 through January 2004, Mii worked to complete

the designs for the Lovejoy upgrades and to obtain a bridge loan

to finance those upgrades and keep the business afloat. The

bridge loan was obtained on January 7, 2004, but required Alan

Beane again to guarantee the debt and again to subordinate his

other secured notes. In response, Alan Beane proposed conditions

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to preserve his right to repayment, which Glenn Beane rejected. 

This stalemate caused Alan Beane to take control of the company’s

assets and operations as provided in the Security Agreement,

which triggered Glenn Beane’s resignation on February 4, 2004.

At this juncture, Alan Beane’s path turned for the worse,

while Glenn Beane managed to capitalize on the efforts invested

in the business. Despite Alan Beane’s efforts to fulfill the

Lovejoy upgrades, he was unable to successfully complete the

contract and lost a $200,000 deferred payment from Lovejoy as a

result. In May 2004, he decided to end Mii’s active operations,

and, since then, has let the company idle. Immediately upon his

departure from Mii, however, Glenn Beane formed a new company,

based on the intellectual property rights he owned. He

successfully secured new business, including customers he

initially contacted while at Mii. In particular, Lovejoy hired

Glenn Beane to complete its upgrade requests.

With Mii no longer operating, Alan Beane began to liquidate

certain security interests to recover some of his investment. On

March 3, 2005, he sold Mii’s remaining manufacturing system

assets to Lovejoy, for $550,000. A promissory note for $150,000

was executed as part of that sale, made payable to Alan Beane

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5This note, together with the interest earned of $17,250, is

the asset Glenn Beane seeks to attach here.

8

personally.5 Glenn Beane was not given notice of the sale and,

therefore, did not give his approval of it. In November 2006,

Alan Beane invoked the security agreement provision that allowed

him to assert any claim that Mii could assert, to bring this suit

against Glenn Beane, alleging he still owed certain duties to Mii

as one of its members, despite his February 2004 departure.

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

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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 &

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 makes this higher

showing 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. 

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2. Plaintiff’s Likelihood of Success

In Count IV of his counter claim, Glenn Beane seeks

reimbursement for the following expenditures he has made

allegedly on behalf of the company, either as a guarantor of

Materials and Mii, or as a derivative obligor of the companies. 

These include:

1. $11,000 = to settle a suit with HOCO, LLC for 

unpaid rent of $54,088.31, plus interest,

under a lease executed by Materials for

premises where the operations of Materials,

and later Mii, occurred; the lease was 

personally guaranteed by both Alan Beane

and Glenn Beane;

2. $27,000 = to settle a disputed balance as of

July 16, 2004, due on a Citizens Bank

credit card, issued to Materials and 

guaranteed by Glenn Beane for the business 

expenses of Materials, and later Mii; 

the charges were allegedly made to pay 

Mii employees’ salaries during the time

Alan Beane controlled Mii;

3. $ 7,000 = to settle a suit brought by Terry

Nason, a former employee of both Mii and

Materials, to claim pension funds due 

under the unified Mii-Materials pension

plan;

4. $ 550 = to vacate citations erroneously 

issued against Glenn Beane in two 

actions against Mii for wages, brought

by former employees William Huebner and 

Christopher Hammer;

 

5. $ 2,000 = for legal expenses incurred in 

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responding to inquiries about the 

Materials-Mii unified pension plan 

from the plan’s administrator, Summit 

Financial Corporation (“Summit”) and

from the U.S. Department of Labor; Alan 

Beane controlled the documents and 

information needed to comply with ERISA 

laws and make payments to Summit, but 

to date he has refused to provide the 

necessary information.

6. $150,000 = Glenn Beane’s estimated anticipated 

financial exposure as the trustee of the

Materials-Mii unified pension plan, if

not paid by the plan. The plan has 

sufficient assets.

 

* $197,550 = TOTAL of liabilities for which 

Glenn Beane seeks reimbursement 

Specifically, Glenn Beane contends that he “is entitled to

indemnification and other protection from claims which may

possibly be asserted against him in the future which are

derivative of Mii, Alan and/or Sara.” Def.’s Countercl., ¶ 56.

In his petition, however, Glenn Beane limited the attachment

sought as “only against Mii Technologies, LLC, not against Alan

Beane.” Counterplntf.’s Mem. in Support of Attach. Pet., ¶ B at

3 (document no. 41). Accordingly, only the claims in Count IV

against Mii will be considered to determine whether the requested

attachment is appropriate.

Under New Hampshire law, a right to indemnification may

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arise either (1) as an express or implied duty under a contract,

or (2) as a right derivative of or imputed by law. See Kantor v.

Norwood Group, 127 N.H. 831, 835, 508 A.2d 1078, 1081 (1986)

(discussing right to indemnification for joint tortfeasors). 

Indemnification agreements are interpreted following the same

rules as any other contract. See Gulf Ins. Co. v. AMSCO, Inc.,

153 N.H. 28, 34, 889 A.2d 1040 (2005) (citing precedent). The

parties’ intent is discerned from the express words of the

contract, given their ordinary meaning. See id. Indemnity

agreements will be construed narrowly and will rarely be implied. 

See Dunn v. CLD Paving, 140 N.H. 120, 122, 663 A.2d 104, 106

(1995) (citing precedent). If, however, the right to

indemnification is derivative or imputed by law, the court looks

at whether the indemnitor is in fact liable, and whether the

indemnitee paid to cover the indemnitor’s matured obligation, to

justify shifting liability to the indemnitor. See Hooksett Sch.

Dist. v. W.R. Grace & Co. 617 F. Supp. 126, 134 (D.N.H. 1984)

(citing New Hampshire rule that the indemnitee’s liability may be

transferred to another); see also Morrissette v. Sears, Roebuck

& Co., 114 N.H. 384, 387, 322 A.2d 7, 9 (1974) (explaining that a

“right to ‘[i]ndemnity arises where one is legally required to

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pay an obligation for which another is primarily liable’”

(internal quotation omitted)). 

The petition to attach does not identify the source of Glenn

Beane’s asserted right to indemnification. He seems to argue

that the R&D Agreement, which provided for Mii to assume certain 

financial obligations of Materials, may be extended to require

Mii to reimburse him for the company debts he has paid. He seems

to further contend that Alan Beane, as the person in control of

Mii, has assumed Mii’s purported obligation to indemnify Glenn

Beane for the company’s debts he has covered. 

The R&D Agreement, however, does not give rise to either an

explicit or implicit duty to indemnify Glenn Beane. The express

language of the contract provides for Mii to assume certain

identified, financial obligations of Materials, in exchange for

Mii’s use of Materials’ intellectual property. See Ex. D, §§ 2,

3 & 4, ¶¶ 3.1, 4.1 & 4.2. The agreement is unambiguously between

the two companies, clearly stating the consideration exchanged

for the benefits received. There is nothing in the R&D Agreement

that can be understood to relieve Glenn Beane of any obligations

he might have had to either Materials or Mii. Except for a

provision regarding patent rights claims, see id., ¶ 7.2, the

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6Similarly corporations also may indemnify individuals who

cover expenses on the company’s behalf. See RSA 293-A:8.52,

8.51-56 (1999). While Glenn Beane cannot invoke these statutory

provisions because Materials dissolved in November 2003, the

statute reflects the legislature’s endorsement of the policy

considerations and equitable principles underlying the concept of

indemnification. 

14

agreement does not address any individuals or affect the rights

or liabilities of the members, officers and managers of either

Materials or Mii. The agreement is strictly between Materials

and Mii, and there is no justifiable reason to expand its scope

to reach the financial obligations of either Glenn or Alan Beane. 

See Dunn, 140 N.H. at 122, 663 A.2d at 106 (requiring unambiguous

contracts to be interpreted within the four corners of the

document).

Glenn Beane, however, does have a right to reimbursement

derived from New Hampshire statutory and common law. Limited

liability companies may indemnify any “member or manager or other

person made a party to a proceeding or threatened to be made a

named defendant . . . because such member . . . acted on behalf

of the limited liability company, against liability for judgment

[or] settlement . . ..” N.H. Rev. Stat. Ann. (“RSA”) 304-C:9, I

(2005).6 Although much of the debt Glenn Beane paid was in

Materials’, not Mii’s, name, “the right to indemnity may arise

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where one is legally required to pay an obligation for which

another is primarily liable . . ..” William H. Field Co. v.

Nuroco Woodwork, 115 N.H. 632, 634, 348 A.2d 716, 718 (1975)

(discussing when the right to indemnity arises in tort actions). 

“Where a surety makes a payment to a creditor

and a cosurety has a defense against the

creditor, the surety making the payment . . .

(b) is entitled to contribution if he has become

surety with the consent of the cosurety and if

he made the payment . . . (ii) without knowledge

of a defense in the justifiable belief that such 

a duty existed. . . .”

Rice v. Snow, 116 N.H. 69, 71-72, 352 A.2d 729, 730 (1976)

(quoting Restatement of Security § 152(b)(ii) (1941)). Glenn

Beane alleges that he made the payments he did because he was

responsible, either as a guarantor of, signator on, or otherwise

derivatively responsible for, the outstanding indebtedness listed

in Count IV.

The evidence produced in support of Glenn Beane’s petition

demonstrated the following: 

a. The HOCO Lease

The HOCO lease was executed by Materials, Inc. as lessee,

with both Alan Beane and Glenn Beane as guarantors. See Ex. N. 

Glenn Beane argues here that the R&D Agreement provision that Mii

“pay for . . . the cost of leasing and improving a facility which

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[Materials] intends to lease and improve to house its research,

experimentation and development efforts” entitles him to be

reimbursed by Mii for the costs he incurred to settle the lease

dispute. The R&D Agreement, however, was executed on December

29, 1997, three and a half years after the HOCO lease was entered

into on June 23, 1994. The language refers to space which

Materials “intends to lease and improve,” not space that

Materials had already leased at the time the agreement was

executed. The parties may have intended the R&D Agreement to

cover the space described in the HOCO lease, but they also may

have intended it to cover entirely different space; the language

is neither specific nor definitive.

The evidence adduced at the hearing did not clarify whether

Mii continued to operate out of the HOCO lease space and,

therefore, assumed responsibility for the rent, or whether Mii

worked from some other facility. Glenn Beane testified simply to

the fact that Mii was to reimburse Materials for the HOCO rent, 

without substantiating that claim with any documentary support

other than the R&D Agreement, which does not clearly provide for

HOCO lease payments. Glenn Beane could have been reimbursed by

Materials for its primary liability to HOCO which he paid;

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however, he has not linked that liability to Mii sufficiently to

reach its coffers for the indemnification he now seeks. While

the facts may prove that Mii moved into the HOCO space, or

otherwise became liable for the rent due on the HOCO lease, the

record currently before the court does not so clearly establish

that obligation to satisfy the heightened burden of proof a

plaintiff must carry to justify a prejudgment attachment under

RSA 511-A:3. See Diane Holly Corp., 559 F. Supp. at 561.

b. The Citizens Bank Credit Card

Glenn Beane next seeks reimbursement for the amount paid to

settle a dispute with Citizens Bank for outstanding charges on a

credit card, issued to Materials, which he personally guaranteed. 

The testimony adduced at the hearing demonstrated that the

balance due was incurred to cover payroll expenses of Mii, for

wages earned in the first half of 2004. That testimony described

the type of expense associated with “research, experimentation,

and development activities” which Mii agreed to pay for when it

executed the R&D Agreement with Materials, to justify ascribing

this debt to Mii. As a member of Mii, who paid for Mii’s debt,

Glenn Beane is entitled to seek indemnification for the expenses

incurred. See RSA 304-C:9, I. Glenn Beane has carried his

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burden of proof that he is likely to succeed on this claim to

justify the attachment sought.

c. The Nason Suit

 The record demonstrates that both Glenn and Alan Beane,

along with Materials and Mii, were sued by a former employee who

sought unpaid wages after his January 22, 2002 termination, under

the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001,

et seq. (“ERISA”). See Def.’s Ex. W. Glenn and Alan Beane were

both trustees and plan administrators within the meaning of

ERISA. The parties reached a settlement, see Def.’s Ex. X, and

the matter was dismissed with regard to Glenn Beane. Because the

record indicates this claim was against Mii and Materials, for

which Mii would have assumed responsibility under the R&D

Agreement, and that Glenn Beane covered, at least in part,

expenses for which the company was primarily liable, he is likely

to prevail on his claim for indemnification from Mii for the

costs associated with settling this dispute. 

d. The Hubner and Hammer Actions

Glenn Beane next seeks reimbursement for costs associated

with two lawsuits brought by former employees William Hubner and

Christopher Hammer against Mii, to enforce wage claims awarded by

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the New Hampshire Commissioner of Labor. See Def.’s Exs. BB and

EE. The New Hampshire Superior Court held Glenn Beane in

contempt for his failure to appear as a representative of Mii;

however, the matters against him were dismissed after the court

realized he had resigned from Mii on February 4, 2004 and,

therefore, could not represent the company. See Def.’s Exs. DD &

GG. This administrative error, however, cannot be attributed to

Mii. Accordingly, Glenn Beane is not likely to succeed on his

claim for reimbursement of the expense incurred in resolving

these two matters.

e. The Pension Plan Claims

Glenn Beane’s largest claim for reimbursement is related to

the company’s pension plans, for which he remains liable as a

fiduciary under ERISA. He contends that he has spent $2,000 to

answer questions from the United States Department of Labor and

Internal Revenue Service related to the company’s pension plan,

and to resolve certain administrative charges and other expenses

related to the plan’s administrator, Summit Financial Corporation

(“Summit”). Glenn Beane also asserts a right to reimbursement of

$150,000, which he anticipates he will be required to pay to

satisfy potential claims from former employees. 

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Glenn Beane’s claim for indemnification of the $2,000 he has

spent to comply with both the government and Summit clearly

represent liabilities for which Mii is primarily liable and which

he, in his fiduciary capacity, was addressing to limit that

liability. He, therefore, is likely to succeed on his claim for

reimbursement of that expense. 

On the other hand, the potential liability that could arise

from claims by former employees is too contingent to support any

claim for indemnification. See Jolicoeur v. Conrad, 106 N.H.

496, 498, 213 A.2d 912, 914 (1965) (barring recovery for future

damages for personal injuries that have not occurred); Hayes v.

Morrison, 38 N.H. 90, 1859 WL 3721, *5 (1859) (disallowing claim

for contribution to debt which is indefinite and contingent); 

see also Lennox v. Brady, 101 N.Y.S.2d 22, 24 (N.Y. Sup. Ct.

1950) (denying attachment of property not subject to judgment); 6

Am. Jur. 2d Attachment and Garnishment § 48 (1999) (“As a general

rule, before a debt can be subject to garnishment, it must, at

the time the writ is served, be existing, ascertainable, and not

contingent upon other events.”). 

It is elementary that no effective levy

can be made merely upon a right based upon

a contingency which may or may not happen

in the future.. . . It is well settled 

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that an indebtedness is not attachable

unless it is absolutely payable at present,

or in the future and not dependable upon

any contingency.

Lennox, 101 N.Y.S.2d at 24 (quotation omitted). Based on the

proffers made by both parties, the plan is adequately funded, and

Alan Beane maintains possession of and control over the pension

plan records. If Alan Beane would cooperate with the government

and Summit to keep the plan in compliance with ERISA, the

anticipated liability may not become a reality; the debt is,

therefore, wholly contingent presently, and Glenn Beane’s claimed

liability is merely speculative. See 6 Am. Jur. 2, Garnishment

and Attachment § 48 (“A contingency in this sense refers to one

which controls the obligation to pay and not simply to the timing

or form of payment.”). He is not likely to succeed on his claim

in Count IV for reimbursement of the potential pension plan

claims, because he cannot be indemnified for an expense he has

not incurred or a liability he has not assumed. 

Finally, Alan Beane makes two arguments in opposition to the

requested attachment. First, Alan Beane contends that his

voluntary bankruptcy proceeding stayed any claims against his

estate, and that the relief from the stay Glenn Beane obtained

does not entitle him to the attach the promissory note from

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7Counsel for Alan Beane proffered that an amended tax return

corrected that representation and demonstrated the promissory

note in fact belongs to him; however, neither the amended return,

nor any other evidence, was admitted at the hearing to support

that proffer. I am bound to base my judgment on the record

before the court.

22

Lovejoy. See Pls.’ Mem. in Support of Obj. to Def.’s Pet. to

Attach at 2-4 (discussing 11 U.S.C. § 362(a)(1) & (4) and citing

authority) (document no. 37-1). Second, Alan Beane argues that

the current claim to the promissory note is barred by the statute

of limitations, because he assumed control over the property in

February 2004 and Glenn Beane did not assert his challenge to

that assumption of control until July 2007, which is beyond the

three year statute of limitations set forth in RSA 508:4 (1997). 

Neither claim is persuasive, however, because the undisputed

evidence demonstrated that the promissory note Glenn Beane seeks

to attach is the property of Mii, not Alan Beane. See Def.’s Ex.

I, bates page numbers 825, 845-46 (Mii’s tax return showing

Lovejoy sale as income).7 Therefore, whether or not Alan Beane’s

property is beyond Glenn Beane’s reach is immaterial to the

attachment sought here, which is for Mii’s property, not Alan

Beane’s property. 

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2. Defendant’s Ability to Pay

When, as is the case here, a plaintiff meets its burden of

proving a likelihood of success on the merits to justify the

prejudgment attachment sought, the burden shifts to defendant to

demonstrate that it has sufficient assets to satisfy any

potential judgment against it. See RSA 511-A:3. The record

demonstrates that the proceeds from Mii’s promissory note,

totaling $167,250, are in an IOLTA trust account held by Alan

Beane’s attorneys. See Pet. to Attach (document no. 33-3 and 33-

4). Glenn Beane has demonstrated he is likely to succeed on his

claims for:

1) Citizens Bank settlement = $27,000

2) Nason Suit settlement = $ 7,000

3) Pension plan legal expenses = $ 2,000 

TOTAL = $36,000.

Clearly the promissory note is more than adequate to cover the

demonstrated claims against Mii. There are at least two other

claims, however, competing for that money: Alan Beane asserts an

ownership interest in it, having exercised his alleged rights

under the Security Agreement; and counsel to Alan Beane are

holding the funds in an IOLTA account, to cover the costs of

legal fees he may incur. Either or both of those interests could

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dissipate the funds Glenn Beane seeks to secure by this petition

to attach. Because of the various adverse interests in the

proceeds of the promissory note, Mii’s ability to satisfy a

judgment which Glenn Beane is likely to secure against it is

tenuous. Under the circumstances presented here, I find Mii does

not have the ability to satisfy the potential judgment and

conclude that the attachment should issue.

Conclusion

For the reasons set forth above, Glenn Beane’s petition to

attach (document no. 33) is granted in part and denied in part. 

An attachment in the amount of $36,000 shall issue against the

proceeds from the Lovejoy promissory, currently being held in the

IOLTA trust account of Lawson & Persson P.C., account number

24900683, at Meredith Village Savings Bank in Meredith, New

Hampshire. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 18, 2007

cc: Michael J. Persson, Esq.

Edward E. Lawson, Jr., Esq.

W.E. Whittington, Esq.

Case 1:06-cv-00446-SM Document 52 Filed 10/18/07 Page 24 of 24