UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary Kearney,

Christopher R. Mulleavey

and Kathleen Mulleavey

v. Civil No. 07-cv-149-JL

Brenda Elias and

William H. Constant

O R D E R

Currently before the court is plaintiffs’ motion for

attachment (document no. 12). The motion arises from plaintiffs’

allegation that defendants, contrary to law, knowingly failed to

disclose lead paint on the real estate they transferred to

plaintiffs. Plaintiffs have demonstrated a high likelihood of

success on the merits and defendants have made no effort to

demonstrate the existence of sufficient assets to satisfy any

possible judgment against them. Consequently, the motion is

granted.

The availability of a prejudgment attachment in federal

court is governed by the law of the state in which the district

sits. See Fed. R. Civ. P. 64; Granny Goose Foods, Inc. v.

Teamsters, 415 U.S. 423, 437 n.10 (1974). “In New Hampshire, the

remedy of attachment is in derogation of the common law and is

permitted only to the extent and in the manner authorized by

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statute.” Diane Holly Corp. v. Bruno & Stillman Yacht Co., 559

F. Supp. 559, 560 (D.N.H. 1983).

N.H. Rev. Stat. Ann. § 511-A:3 provides that “the burden

shall be upon the plaintiff to show that there is a reasonable

likelihood that the plaintiff will recover judgment including

interest and costs on any amount equal to or greater than the

amount of the attachment.” This court has previously determined

the burden of proof required of the party seeking the attachment.

Construing the statute narrowly in light

of the special protections afforded property

interests in this state, the Court finds and

rules that plaintiff in an attachment

proceeding pursuant to N.H. RSA 511-A:3 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., at 561.

If the moving party meets this 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 with interest and costs if the plaintiff

recovers same.” N.H. Rev. Stat. Ann. § 511-A:3.

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Plaintiffs have made a strong preliminary showing that they

will ultimately prevail on the merits and obtain the judgment

sought. Plaintiffs have shown that the property contained lead

paint, that defendants knew it and nevertheless purposefully

failed to disclose it, as required by law.

On May 24, 2001 a certified letter (Exhibit 4) was sent to

defendant Elias informing her that she was subject to the 1997

Order of Lead Hazard Reduction. Defendant Constant, Elias’

husband, called the Department of Health alleging that they were

unaware of the order because they bought at foreclosure (Exhibit

7). They receipted for the Order on June 1, 2001. (Exhibit 5). 

Defendants did nothing to comply with the order. They listed the

property, Constant showed the property and they sold the property

to plaintiffs without any disclosure of the lead paint or the

order requiring its abatement. In fact, Elias lied on the lead

disclosure form. Plaintiffs paid $80,000 to their buyer to deal

with the lead paint.

Plaintiffs have met their burden and have established facts

sufficient to be entitled to an attachment for $240,000, i.e., 

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treble damages. The motion is granted and plaintiffs may attach

any and all property of defendants found in New Hampshire.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 17, 2008

cc: Finis E. Williams, III, Esq.

James B. Kazan, Esq.

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