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Yokozeki v. Carr-Locke

United States District Court, D. Massachusetts

March 28, 2017

SHIMAKO YOKOZEKI, Plaintiff,
v.
ALAN H.L. CARR-LOCKE, Defendant.

          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

         Pending 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.[1] A supplementary process finding regarding defendant's ability to pay the judgment also remains outstanding.

         BACKGROUND

         On July 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.

         On 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.[2] 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).

         On May 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).[3] 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).

         At the 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. 85).

         Hovlund 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).

         On May 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 defendant's counsel.

         This 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.

         The 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.[4]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 # 89).

         On 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 ...


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