Portland Museum of Art v. Germain

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STATE OF MAINE SUPERIOR COURT Cillv1BERLAND, ss Docket No.: PORSC, CV-17-299

) PORTLAND MUSEUM OF ART, ) ) Plaintiff, ) ) ) ORDER ON DEFENDANT'S MOTION TO v. ) DISSOLVE ) ANNEMARIE GERMAIN, ) ) Defendant. )

The Court considers Defendant's Motion to Dissolve Ex Parte Attachment. Defendant

advances two arguments; to wit, that 1) the ex parte order was unlawful insofar as the Rules of

Civil Procedure allows only for an ex parte order at the outset of the case when the complaint is

filed and not at any time thereafter; and 2) that Plaintiff has not established that it is more likely

than not to prevail in the underlying action. Defendant's arguments are equally unpersuasive.

The procedural issue was fastidiously avoided by the Court during oral argument,

primarily because it is so easily resolved by reference to the leading treatise on civil remedies

and the cases cited therein. See, e.g., Herrickv. Theberge, 474 A.2d 870 (1984). The textual

analysis would alone lead to the same conclusion without the ineluctable reality by way of

Herrick, that an ex parte order of attachment may be sought at any time after the filing of the

complaint and is not delimited to the outset of the case.

The Court also finds 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

attachment over and above the aggregate of any liability insurance, bond, or other security, and

Plaintiff-Alfred Frawley, Esq and Thimi Mina, Esq. Defendant-Tyler Smith, Esq. and Keith Richard, Esq.

(

any property or credits attached by other writ of attachment or by trustee process shown by the

defendant to be available to satisfy the judgment.

To satisfy the reasonable likelihood requirement, plaintiff needs only have had a "mere

probability of success or a favorable chance of success." Northeast Inve trnent Co.. Inc. v.

Leisure Living Communities. Inc .• 351 A.2d 845, 851-52 (Me. 1976). The attachment may be

approved so long as plaintiffs' claim is not of "such insubstantial character that its invalidity so

clearly appears as to foreclose a reasonable possibility ofrecovery .. . ." Id at 852 . "The limited

showing required of plaintiff, combined with the 'clear abuse of discretion' standard of review,

necessitates reversal of a Superior Court order granting an attachment only in the relatively rare

cases where the record before the Superior Court shows the plaintiffs to have had virtually no

chance of recovery on their claim."

Defendant's arguments as to this finding are qualitative in nature, the weight of which

comes from an invitation for the Court to accept as more reliable statements made primarily from

Defendant. Applying the relatively low threshold articulated in the foregoing caselaw examples,

this is decidedly not enough for the Court to conclude that there is virtually no chance of Plaintiff

recovering on its claim.

Defendant's Motion to Dissolve is therefore, DENIED.

The Clerk is directed to enter this Order on the unified criminal docket by reference

pursuant to Maine Rule of Unified Criminal Procedure 53(a). Date: October 11, 2018

Justice, Superior Court