LOBSTER 207 LLC v. PETTEGROW et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LOBSTER 207, LLC,
Plaintiff,
v.
WARREN B. PETTEGROW, ANTHONY
D. PETTEGROW, JOSETTE G.
PETTEGROW, STEPHEN M.
PEABODY, POSEIDON CHARTERS
INC., and TRENTON BRIDGE
LOBSTER POUND, INC.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1:19-CV-00552-LEW
MEMORANDUM OF DECISION ON PLAINTIFF’S
MOTION FOR ATTACHMENT AND TRUSTEE PROCESS
The matter is before the Court on Plaintiff Lobster 207’s Motion for Attachment
and Trustee Process (ECF No. 4). Rule 64 of the Federal Rules of Civil Procedure provides
that provisional remedies like attachment are available in a federal court to the extent they
would be available in a state court within the District. 	In order to grant a motion for
attachment and trustee process, the court must find that it is
more likely than not that the plaintiff will recover judgment, including
interest and costs, in an amount equal to or greater than the aggregate
sum of the attachment and any liability insurance, bond, or other
security, and 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.
Me. R. Civ. P. 4A(c), 4B(c); Lund v. Smith, 787 F. Supp. 2d 82, 83 (D. Me. 2011).
Case 1:19-cv-00552-LEW Document 75 Filed 06/03/20 Page 1 of 4 PageID #:
<pageID>

2
“Under this standard, a moving party must show a greater than 50% chance of
prevailing.” Richardson v. McConologue, 672 A.2d 599, 600 (Me. 1996). 	To determine
the motion, “the court assesses the merits of the complaint and the weight and credibility
of the supporting affidavits,” but the court is not required to “address complex legal issues
or rectify factual disputes in a summary attachment hearing.” Porrazzo v. Karofsky, 1998
ME 182, ¶ 7, 714 A.2d 826. 	The moving party also must demonstrate the amount of
damages to which it would be entitled upon prevailing, and if it cannot substantiate the
amount requested in the motion, the court has the discretion to award an attachment in a
lesser amount that is supported in the movant’s showing. Cirrincione v. Pratt Chevrolet,
275 F. Supp. 2d 26, 28 (D. Me. 2003). As to either liability or damages, “[t]he arguments
of counsel cannot substitute for the required sworn statements of relevant facts.” 	Wilson
v. DelPapa, 634 A.2d 1252, 1254 (Me. 1993).
Following 	my 	review 	of 	the 	record 	associated 	with 	the 	motion, 	including
supplemental affidavits submitted with Lobster 207’s reply that better inform the issue of
standard offer dock price that is critical to Lobster 207’s damage calculation,1 I am
persuaded that an order of attachment and trustee process is appropriate in this case, but
only as to Anthony Pettegrow, Josette Pettegrow, Warren Pettegrow, Poseidon Charters,
Inc. and the Trenton Bridge Lobster Pound, Inc. 	As to those Defendants, I find it is likely
1 The record strongly suggests there was a “standard offer” issued by Lobster 207 that was a set amount
(i.e., $1.45) higher than the “boat price,” and that the standard offer would rise or fall in relationship to the
boat price, not in relationship to the dock on which the catch landed (except in the case of the BJ Co-op’s
docks, which received an additional 20 cents per pound). In this regard, I believe a fact finder likely would
find Ms. Billings’ testimony credible, barring some damaging cross-examination that I cannot anticipate at
this time, on this record. With the standard offer established in this fashion, Eric Purvis, a certified public
accountant and a partner of Marcum LLP in Portland, Maine, attests that the reasonable estimation of
Lobster 207’s losses is $1,438,181.23.
Case 1:19-cv-00552-LEW Document 75 Filed 06/03/20 Page 2 of 4 PageID #:
<pageID>

3
that Lobster 207 will be able to substantiate its claims that they abused Warren Pettegrow’s
position of trust as CEO of Lobster 207 to deprive Lobster 207 of revenue in the amount
of $1,438,181.23. 	This sum represents most of the alleged schemes, but omits the claim
for $501,989.10 related to Lobster 207’s agreement to pay a 20-cent premium for BJ Co-
op lobster. As to that alleged scheme, my impression is that Lobster 207’s principals were
willing to pay a 20-cent premium to assure Lobster 207’s access to the lobsters landed at
BJ Co-op’s docks, and although there is evidence that they relied on a misrepresentation
of fact concerning prior dealings between the BJ Co-op and Trenton Bridge, I am not
persuaded that Lobster 207 is likely to prove its reliance on the alleged misrepresentation
was reasonable given that the representation would have been subject to verification.
As to Defendant Stephen Peabody, my conclusion regarding the 20-cent premium
leaves him potentially subject to a claim concerning the alleged “phantom lobster scheme.”
I am not persuaded, at this juncture, that Lobster 207 is likely to recover damages from Mr.
Peabody in relation to that claim. 	Accordingly, the order does not grant an attachment
against Mr. Peabody.
CONCLUSION
Defendants’ Motions to Strike (ECF Nos. 59 & 60) are DENIED. Defendants have
received ample opportunity to rebut the evidence they would have me strike. 	Plaintiff’s
Motion for Attachment and Trustee Process (ECF No. 4) is GRANTED IN PART and
DENIED IN PART. 	The Motion is DENIED as to Defendant Peabody. 	As to the
remaining Defendants, the Motion is GRANTED in the reduced amount of $1,438,181.23.
Case 1:19-cv-00552-LEW Document 75 Filed 06/03/20 Page 3 of 4 PageID #:
<pageID>

4
Finally, Plaintiff’s request that I authorize Lobster 207 to deposit monthly payments to
Trenton Bridge in an escrow account is DENIED as insufficiently briefed.
SO ORDERED .
Dated this 3rd day of June, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
Case 1:19-cv-00552-LEW Document 75 Filed 06/03/20 Page 4 of 4 PageID #:
<pageID>