United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: SUPPLEMENTARY PROCESS
PROCEEDING; MOTION FOR CONSTRUCTIVE TRUST (DOCKET ENTRY #
83); MOTION FOR SANCTIONS AGAINST DEFENDANT'S COUNSEL
(DOCKET ENTRY # 94)
MARIANNE B. BOWLER United States Magistrate Judge
before this court is: (1) a motion filed by plaintiff Shimako
Yokozeki (“plaintiff”) seeking to impose a
constructive trust on certain property of defendant Alan H.
L. Carr-Locke (“defendant”) consisting of six
vehicles in order to pay a judgment entered in this case
(Docket Entry # 83); and (2) a motion for sanctions under
Fed.R.Civ.P. 11 (“Rule 11”) filed by plaintiff
(Docket Entry # 94) against defendant. A supplementary
process finding regarding defendant's ability to pay the
judgment also remains outstanding.
24, 2015, a final judgment entered awarding plaintiff the
amount of $117, 663, prejudgment interest in the amount of
$25, 028.37, postjudgment interest under 28 U.S.C. §
1961 and costs under Fed.R.Civ.P. 54(d)(1) against defendant.
To date, defendant has not paid any portion of the judgment.
March 4, 2016, this court issued a writ of execution on the
judgment commanding defendant to pay plaintiff the amount of
$145, 625.54, a figure consisting of the above items,
including $2, 934.17 in costs. On March 7, 2016, this court
allowed plaintiff's motion to appoint a special process
server to serve the writ of execution. (Docket Entry ## 76,
78). On March 8, 2016, plaintiff filed an application for
supplementary process under Massachusetts General Laws
chapter 224 (“chapter 224”), section 14. (Docket
Entry # 79); see Fed.R.Civ.P. 69. The application:
request[ed] that this Court enter an order (1) allowing its
Application for Supplementary Process; (2) setting a date for
an examination of the Debtor, Alan H.L. Carr-Locke, relative
to his property and ability to pay the judgment against him
in this case in full or by partial payment from time to time;
and (3) issuing the Notice of Examination in the form set
forth in Exhibit B.
(Docket Entry # 79) (underlining omitted). On April 6, 2016,
this court allowed the application for supplementary process,
issued a notice of examination as requested, and set an
examination date of May 19, 2016. (Docket Entry # 80). The
notice commanded defendant to appear in court on that date
and to submit to an examination of his property and ability
to pay the judgment. On April 8, 2016, defendant's
counsel purportedly emailed plaintiff's counsel informing
him that defendant's counsel would “‘accept
service for'” defendant's supplementary process
proceeding. (Docket Entry # 94-1). On May 2, 2016, this court
rescheduled the examination to May 26, 2016 at 2:45 p.m.
(Docket Entry # 82).
10, 2016, plaintiff filed the motion requesting this court to
impose a constructive trust on the six vehicles purportedly
purchased by defendant and titled in the name of Ragnhild
Hovlund (“Hovlund”), his “life
partner” and with whom he has two children. (Docket
Entry # 69, p. 79). Shortly thereafter, this court set a
hearing on the motion and any other pending motion for May
26, 2016 at 2:15 p.m. (Docket Entry # 85).
time of the trial, Hovlund resided with defendant at a
residence in Walpole, Massachusetts. (Docket Entry # 69, pp.
78-79). She testified that she drove a 1992 Mercedes 300TD
station wagon titled in her name and had driven the car for a
long time. (Docket Entry # 69, pp. 84-85). She also stated
there were “two other registered cars in” her
name and two other cars in storage. (Docket Entry # 69, p.
is identified as president, treasurer, secretary and director
of Informed Decisions LLC in the corporation's articles
of organization filed with the Secretary of State of the
Commonwealth of Massachusetts. (Docket Entry # 69, pp. 87-88)
(Docket Entry # 70, pp. 41). Incorporated in Massachusetts in
September 2013, the company existed previously albeit not as
a Massachusetts corporation, according to defendant. (Docket
Entry # 69, pp. 86-88, 104-105). At trial, Hovlund could not
identify the business of the corporation and she had no
duties at the corporation notwithstanding her titles. (Docket
Entry # 69, pp. 87-88).
26, 2016, this court heard oral argument on the motion for a
constructive trust and an amended motion to dismiss for lack
of jurisdiction filed by defendant. (Docket Entry ## 83, 88).
The latter motion asserted there was no jurisdiction for the
supplementary process proceeding because plaintiff had not
served defendant with a summons as required under section 14
of chapter 224. (Docket Entry # 88). Grounded on the improper
filing of the amended motion to dismiss, the motion for
sanctions argues that summons was not required in light of
the notice of examination, the discretionary language of
section 14, and the aforementioned acceptance of service by
court also heard argument on the supplementary process matter
on May 26, 2016. At the close of the proceedings, this court
took the motions (Docket Entry ## 83, 88) and the
supplementary process matter under advisement. Neither
defendant nor Hovlund testified at the May 26, 2016
examination. Although plaintiff's counsel referred to
Hovlund's and defendant's deposition testimony a
number of times, he did not offer the depositions into
evidence during the May 26, 2016 supplementary process
proceeding. Plaintiff's counsel also made a number of
other cogent, well-stated arguments but did not provide
evidence to support them at the proceeding.
following day, plaintiff filed a proposed supplementary
process order that included a finding that defendant has $1,
000 available per month to pay rent for an office and a
business storage space that is not necessary because
defendant does not work. (Docket Entry # 89). Plaintiff did
not cite evidence to support the finding. At trial, Hovlund
described defendant as retired. (Docket Entry # 69, p. 80).
During trial, defendant testified that he had an office in
South Boston and paid either $20, 000 or $30, 000 a year in
rent. (Docket Entry # 70, p. 7). He also testified that he
closed an office in Boston in 2013. (Docket Entry # 69, p.
142). The proposed order additionally states that defendant
had paid his attorney at the time approximately $35, 000 in
legal fees over a 22-month time period.As stated in court
on May 26, 2016 and recited in the proposed order, plaintiff
submits that defendant can therefore make partial payments in
the amount of $2, 500 a month on the debt. (Docket Entry #
September 9, 2016, Informed Decisions LLC entered into a
one-year lease of a residential suite at Wellesley Place in
Wellesley, Massachusetts. (Docket Entry # 98-1). At the
request of Informed Decisions LLC, it paid the annual rent of
$37, 200 in advance of the September 10, 2016 start date of
the lease. (Docket Entry # 98-1). A wire transfer of $37, 200
from an account under the names of Andrew and Elizabeth
Carr-Locke in a bank in the United Kingdom to Wellesley Place
LLC took place shortly before the term of the lease
commenced. (Docket Entry # 98-1, p. 7) (Docket Entry # 98-2).
Plaintiff alleges (Docket Entry # 98, ¶ 8) that Andrew
Carr-Locke is defendant's brother. At his deposition,
defendant purportedly provided an exhibit allegedly from his
brother that indicated that he owed ...