Calkins v. Gallant et al
| David Calkins |
| Jennifer Gallant, Aspen Property Management, Inc. and Deborah Gallant |
| Keybank, N.A. |
| 3:2022cv30105 |
| August 1, 2022 |
| US District Court for the District of Massachusetts |
| Mark G Mastroianni |
| Other Fraud |
| 28 U.S.C. § 1332 Diversity-Tort/Non-Motor Vehicle |
| Plaintiff |
Docket Report
This docket was last retrieved on August 15, 2022. A more recent docket listing may be available from PACER.
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| Filing 12 WITHDRAWAL of Claim re #1 Complaint, Voluntary Dismissal under Rule 41(a)(1)(A)(i) by David Calkins. (Stewart, John) |
| Filing 11 Judge Mark G. Mastroianni: Electronic order entered denying #9 Motion for Issuance of Short Order of Notice. Plaintiff requests that the court "issue a Short Order of Notice establishing a date for hearing on Plaintiff's Motion for a Preliminary Injunction, Real Estate and Trustee Attachment." However, there are no pending motions for injunctive relief or attachment, as Plaintiff's three motions were denied without prejudice on August 3, 2022. (Dkt. No. 7.) Accordingly, Plaintiff should file renewed motions after providing Defendant notice, along with notifying the court as to any agreed-upon hearing date and whether the parties request an evidentiary hearing. Thereafter, the court will schedule a hearing on any renewed motions for injunctive relief or attachment. If the parties cannot agree on a hearing date, Plaintiff may file a separate motion seeking an expedited hearing. (Zamorski, Michael) |
| Filing 10 Summons Issued as to Deborah Gallant. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Rivera, Christina) |
| Filing 9 MOTION for Hearing on Notice to Defendant on Motions for Preliminary Injunction, Real Estate and Trustee Attachments by David Calkins. (Attachments: #1 Text of Proposed Order Proposed Order of Notice to be Served with Summons)(Stewart, John) |
| Filing 8 Summons Issued as to Jennifer Gallant. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Rivera, Christina) |
| Filing 7 Judge Mark G. Mastroianni: Electronic order entered denying #2 Ex Parte Motion for Trustee Process, #3 Ex Parte Motion for Temporary Restraining Order, and #4 Ex Parte Motion for Real Estate Attachment, all without prejudice. As to the TRO request, under Fed. R. Civ. P. 65(b)(1), "[t]he court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Here, the court finds Plaintiff has not "clearly show[n] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." In particular, while Plaintiff asserts Defendant's daughter transferred marital assets, purportedly in violation of a Florida court order, Plaintiff has provided no evidence that Defendant acted nefariously in concert with her daughter. Moreover, the court lacks important context and detail as to the circumstances surrounding the divorce and Defendants daughter's death. Because Plaintiff has not made a sufficient showing that he is entitled to ex parte relief, he must provide notice to Defendant before seeking a preliminary injunction. See Fed. R. Civ. P. 65(a)(1). As to the trustee process and real estate attachment requests, the court, pursuant to Fed. R. Civ. P. 64(a), looks to Massachusetts law. Under Mass. Civ. P. 4.2(g), "[a]n order approving trustee process for a specific amount may be entered ex parte upon findings by the court that there is 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, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear danger that the defendant if notified in advance of the attachment on trustee process will withdraw the goods or credits from the hands and possession of the trustee and remove them from the state or will conceal them, or (iii) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods to be attached on trustee process." Similarly, under Mass. R. Civ. P. 4.1(f), "[a]n order approving attachment of property for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment over and above any liability insurance known or reasonably believed to be available, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear danger that the defendant if notified in advance of attachment of the property will convey it, remove it from the state or will conceal it, or (iii) there is immediate danger that the defendant will damage or destroy the property to be attached." Again, the court finds Plaintiff has not shown "a clear danger that the defendant if notified in advance" will withdraw, convey, remove, or conceal the funds or property, or an "immediate danger that the defendant will" dissipate, damage, or destroy the funds or property. Accordingly, both the trustee process and real estate attachment "may be entered only after notice to the defendant and hearing." Mass. Civ. P. 4.1(c); Mass. Civ. P. 4.2(c). (Zamorski, Michael) |
| Filing 6 ELECTRONIC NOTICE of Case Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Healy, Bethaney) |
| Filing 5 MEMORANDUM in Support re #3 MOTION for Temporary Restraining Order EX PARTE, #2 MOTION for Trustee Process EX PARTE, #4 MOTION for Injunctive Relief Ex Parte Motion for Real Estate Attachment filed by David Calkins. (Stewart, John) |
| Filing 4 MOTION for Injunctive Relief Ex Parte Motion for Real Estate Attachment by David Calkins. (Attachments: #1 Affidavit)(Stewart, John) |
| Filing 3 MOTION for Temporary Restraining Order EX PARTE by David Calkins. (Attachments: #1 Affidavit Affidavit of Atty Thos A Kenefick III in Support of Motion, #2 Text of Proposed Order Summons & Short Order of Notice for Extension of TRO or Preliminary Injunction)(Stewart, John) |
| Filing 2 MOTION for Trustee Process EX PARTE by David Calkins. (Attachments: #1 Affidavit Affidavit of Atty Thos A Kenefick III in Support of Trustee Attachment, #2 Text of Proposed Order Proposed Order Approving of Trustee Attachment for KeyBank, #3 Text of Proposed Order Order allowing Trustee Attachment of Aspen Square Mgt, #4 Text of Proposed Order Proposed Trustee Summons to KeyBank, #5 Text of Proposed Order Proposed Summons to Aspen Square Mgt)(Stewart, John) |
| Filing 1 COMPLAINT For Equitable Relief and Damages, and Demand for Jury Trial against All Plaintiffs Filing fee: $ 402, receipt number AMADC-9436550 (Fee Status: Filing Fee paid), filed by David Calkins. (Attachments: #1 Exhibit Exhibits 1-9 Incorporated Into Verified Complaint, #2 JS45, #3 Civil Cover Sheet)(Stewart, John) |
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