United States District Court, D. Massachusetts
JOFRAN SALES, INC. Plaintiff,
WATKINS AND SHEPARD TRUCKING, INC., Defendant, and THE PNC FINANCIAL SERVICES GROUP, INC., Trustee Process Defendant.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION AND TRUSTEE PROCESS
Dennis Saylor IV United States District Judge.
matter arises out of a contract dispute between a wholesale
furniture supplier and a trucking and freight management
company. Plaintiff Jofran Sales, Inc., has brought suit
against defendant Watkins and Shepard Trucking, Inc. The
complaint alleges seven claims, including, among other
things, claims for breach of contract, negligence, tortious
interference with business relations, and unfair business
21, 2016, Jofran moved for a preliminary injunction to
prevent Watkins from transferring or disposing of its assets
in the amount of $658, 301. It also moved for an order of
trustee process in the same amount directed to the assets of
Watkins in a bank account with PNC Financial Services Group,
Inc. In support of its contention that it will likely succeed
on the merits of its breach of contract claim, Jofran also
submitted exhibits attached to the complaint and an affidavit
detailing alleged damages. In support of its contention that
it will likely suffer irreparable harm in the absence of a
preliminary injunction, Jofran contends that "Watkins (a
privately held company) has recently been sold to a third
party and there is a grave risk that the sale proceeds will
be distributed to Watkins' owners or the company will
wind down before this litigation concludes." (Pl. Mot.
1). It appears to be undisputed that Watkins was recently
sold to Schneider National, Inc., a large national trucking
6, 2016, the parties appeared before the Court for a hearing
on Jofran's motion. Although Watkins has filed no written
opposition, during the hearing it submitted two declarations
from officers at Watkins and its acquirer. The declarations
in substance state that Watkins was acquired by Schneider
through a stock purchase, that it continues to operate as a
wholly-owned subsidiary, that it is in no financial danger,
and that there is no current risk that Watkins will transfer
or otherwise dispose of its assets.
issue a preliminary injunction under Federal Rule of Civil
Procedure 65, a district court must find that the moving
party has established (1) a likelihood of success on the
merits, (2) a likelihood of irreparable harm absent interim
relief, (3) that the balance of equities weighs in his favor,
and (4) that a preliminary injunction is in the public
interest. Voice of the Arab World, Inc. v. MDTV Med. News
Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (citing
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008)). "The burden of demonstrating that a
denial of interim relief is likely to cause irreparable harm
rests squarely upon the movant." Charlesbank Equity
Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st
Watkins has elected at this stage not to submit affidavits
disputing Jofran's likelihood of success on the merits.
Instead, it contends that Jofran has not met its burden of
demonstrating that it will likely suffer irreparable harm
absent a preliminary injunction. That contention is
essentially correct. Other than suggesting that there is a
"grave risk" that the proceeds of Watkins' sale
will be distributed to its owners before this litigation
concludes, Jofran has presented no facts about the sale that
would indicate Watkins is winding down its operations,
dissipating its assets, or otherwise unable to satisfy a
judgment. Accordingly, Jofran's motion for a preliminary
injunction will be denied.
under Massachusetts law, the standard for obtaining an order
for trustee process is different. The availability of
pretrial remedies is governed by "‘the law of the
state where the court is located.'" Metropolitan
Prop. and Cas. Ins. Co. v. Boston Reg'l Physical
Therapy, Inc., 550 F.Supp.2d 199, 201 (D. Mass.
2008) (quoting Fed.R.Civ.P. 64). "In Massachusetts[, ]
the seizure of property is governed by Mass. Gen. Laws ch.
223 §§ 42-83 (attachment) and ch. 246 (trustee
process), which are implemented through Mass. R. Civ. P. 4.1
(attachment) and 4.2 (trustee process)." Id.
Under Rule 4.2, attachment
on trustee process may be entered only after notice to the
defendant and hearing and upon a finding by the court that
there is a reasonable likelihood that the plaintiff will
recover judgment, including interest and costs, in an amount
equal to or greater than the amount of the trustee process
over and above any liability insurance shown by the defendant
to be available to satisfy the judgment.
Mass. R. Civ. P. 4.2. Thus, "[t]he central issue to be
considered by the court is whether the plaintiff is
‘likely to prevail on the merits and obtain damages in
the necessary amount.'" National Ass'n of
Gov't Emps., Inc. v. National Emergency Med. Servs.
Ass'n, Inc., 2013 WL 3563528, at *3 (D. Mass. July
10, 2013) (quoting Aetna Cas. and Sur. Co. v. Rodco
Autobody, 138 F.R.D. 328, 332 (D. Mass. 1991)).
Massachusetts courts have not determined the exact
evidentiary standard (for example, clear and convincing
evidence or preponderance of the evidence) needed to
determine "likelihood." See Sheehan v.
Netversant-New England, Inc., 345 F.Supp.2d 130, 132 (D.
Mass. 2004). Nonetheless, "[a]lthough the exact burden
of proof to be met is unclear, certainty of success is not
required." Latorraca v. Centennial Techs. Inc.,
583 F.Supp.2d 208, 211 (D. Mass. 2008).
notice and an opportunity for the parties to be heard, as
well as careful consideration of Jofran's motion and the
attached exhibits and affidavit, the Court finds that there
is a reasonable likelihood based on the current record that
Jofran will prevail on its breach of contract claim and
recover a judgment in an amount greater than or equal to
$658, 301. Accordingly, Jofran's motion for an order of
trustee process will be granted in the amount of $658, 301.
foregoing reasons, Jofran's motion for a preliminary
injunction and an order of trustee process is hereby GRANTED
in part and DENIED in part. Its motion for a preliminary
injunction is DENIED. Its motion for a trustee process
attachment of all goods, effects, and credits of Watkins in
the possession of The PNC Financial Services Group, Inc., is
GRANTED in ...