United States District Court, D. Massachusetts
MLSF LLC, as assignee of DUKES BRIDGE LLC and STANLEY MILLER, Trustee of the TPSC Corporation Irrevocable Life Insurance Sub-Trust, Plaintiff,
GILBERT D. BEINHOCKER, et al., Defendants.
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR TRUSTEE PROCESS ATTACHMENT [DOCKET NO. 150]
JENNIFER C. BOAL, UNITED STATES MAGISTRATE JUDGE
MLSF LLC as assignee of Dukes Bridge, LLC has moved for a
trustee process attachment on defendant Gilbert D.
Beinhocker's bank accounts with Bank of America and Chase
Manhattan Bank. Docket No. 150. For the following reasons, I
recommend that Judge Woodlock grant the motion, which is
69(a)(1) of the Federal Rules of Civil Procedure provides, in
A money judgment is enforced by a writ of execution, unless
the court directs otherwise. The procedure on execution-and
in proceedings supplementary to and in aid of judgment or
execution-must accord with the procedure of the state where
the court is located, but a federal statute governs to the
extent it applies.
Fed. R. Civ. P. 69(a)(1). Courts “consistently read
Rule 69(a) as limiting all federal process on money judgments
to the type of process available under state law.”
Gabovitch v. Lundy, 584 F.2d 559, 561 (1st Cir.
Massachusetts, trustee process is governed by Massachusetts
General Laws Chapter 246 and implemented by Rule 4.2 of the
Massachusetts Rules of Civil Procedure. In order to approve a
trustee process attachment, the court must find the existence
of a “reasonable likelihood that the plaintiff will
recover judgment in an amount equal to or greater than the
amount of the trustee process over and above any liability
insurance known or reasonably believed to be available . .
.” Mass. R. Civ. P. 4.2(g).
pre-judgment attachment is the norm, ‘there appears to
be no prohibition against a plaintiff seeking approval of a
trustee attachment after judgment has been
entered.'” Latorraca v. Taniki Fin. Corp.,
No. 08-2477, 2010 WL 3245365, at *2 (1st Cir. Aug. 18, 2010)
(quotation omitted) (emphasis in original) (unpublished
opinion). Rule 69 does not prohibit the Court from utilizing
state procedures in aid of execution; indeed, it directs the
Court to follow the procedures of the state where the Court
is located. Fed.R.Civ.P. 69(a)(1). For example, under Rule
69, “this court regularly hears supplementary process
or debtor examination proceedings with the power to order a
debtor to pay according to his ability.” Commercial
Printers of Connecticut v. Letter-Men Publishing Co.,
No. 86-3485-WD, 1988 WL 45402, at *3 (D. Mass. May 5, 1988).
the Plaintiff has obtained a judgment against Beinhocker in
the amount of $938, 920.08 with post judgment interest at 13%
on a daily balance computed on the basis of a 365-day year
for actual days elapsed. As of March 31, 2019, pursuant to
the plaintiff, there remains a balance due and owing by
Beinhocker in the amount of $1, 000, 785.93. Docket No. 150-2
at 2. In addition, Plaintiff's counsel has averred that
he is not aware of the existence of any insurance that would
be available to satisfy the judgment. Id. Therefore,
Plaintiff has made the showing necessary for a trustee
I recommend that Judge Woodlock grant MLSF's motion for a
trustee process attachment and issue an appropriate order.
BY DISTRICT JUDGE
parties are hereby advised that under the provisions of
Fed.R.Civ.P. 72(b), any party who objects to these proposed
findings and recommendations must file specific written
objections thereto with the Clerk of this Court within 14
days of service of this Report and Recommendation. The
written objections must specifically identify the portion of
the proposed findings, recommendations, or report to which
objection is made, and the basis for such objections.
See Fed.R.Civ.P. 72. The parties are further advised
that the United States Court of Appeals for this Circuit has
repeatedly indicated that failure to comply with Fed.R.Civ.P.
72(b) will preclude further appellate review of the District
Court's order based on this Report and Recommendation.
See Phinney v. Wentworth Douglas Hospital, 199 F.3d
1 (1st Cir. 1999); Sunview Condo. Ass'n v. Flexel
Int'l, Ltd., 116 F.3d 962 (1st Cir. 1997);
Pagano v. Frank, 983 F.2d 343 (1st Cir.1993).
 Judge Woodlock referred the motion to
the undersigned on May 16, 2019. Docket ...