Opinion
CIV. NO. 3:22 CV 1097 (JBA)
2022-11-02
N. JONAS AND CO., INC., Plaintiff, v. BROTHERS POOL ENTERPRISES, INC. and John Morgillo, Sr., Defendants.
Patrick A. Klingman, Klingman Law, LLC, Hartford, CT, for Plaintiff.
Patrick A. Klingman, Klingman Law, LLC, Hartford, CT, for Plaintiff.
RULING ON THE PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY AND MOTION FOR DISCLOSURE OF ASSETS
Robert M. Spector, United States Magistrate Judge I. BACKGROUND AND PROCEDURAL HISTORY
The plaintiff, N. Jonas and Co., Inc. ("N. Jonas" or "the plaintiff"), commenced this action against defendants Brothers Pool Enterprises, Inc. ("Brothers") and John Morgillo, Sr. ("Morgillo") (collectively, "the defendants"), asserting, inter alia: (1) breach of contract arising from Brothers's failure to pay for goods ordered and delivered; and (2) breach of Morgillo's personal guaranty to pay for said goods in the event that Brothers failed to pay. (Doc. No. 1 at 4 and 6). The plaintiff asserts that it received an order from Brothers for the purchase and delivery of pool chemicals, which the plaintiff delivered. (Id. at 2-3). The invoiced amount for this order was $13,590.00. (Id. at 3). Brothers placed another order with the plaintiff, and the plaintiff delivered more goods to Brothers. (Id.). The invoiced amount for this order was $92,620.33. (Id.). Despite the plaintiff's demand for payment, neither of the defendants has paid for either of the orders placed by Brothers. (Id. at 3-4). The plaintiff asserts that the defendants entered into an enforceable contract each time Brothers placed an order for pool chemicals, and, upon Brothers's acceptance of the delivery of the goods it ordered, the defendants were obligated to pay the plaintiff in accordance with each contract.
On August 30, 2022, the plaintiff filed a Verified Complaint (Doc. No. 1) in which asserts the following claims against the defendants: breach of contract (Count One); unjust enrichment (Count Two); account stated (Count Three); breach of personal guaranty (Count Four); and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. §§ 42-110a, et seq. (Count Five). (Id. at 4-7).
On September 6, 2022, the plaintiff filed an Application for Prejudgment Remedy against the defendants in the amount of $113,700.00 (Doc. No. 8), and a Motion for Disclosure of Assets (Doc. No. 9).
The plaintiff's claimed damages due to the defendants' failure to pay the agreed-upon price set forth in the contract for the sale of goods dated June 15, 2021, total at least $13,590.00, calculated as follows:
| C3 3" UNWRAPPED CHL TABS 25 LB (120 PCS; $113.25 EA) | $13,590.00 |
| TOTAL | $13,590.00 |
| ENJOY KIT #1 (24' ROUND) (132 CTNS; $59.70 EA) | $7,880.40 |
| ENJOY KIT #2 20,000 GAL (96 CTNS; $114.11 EA) | $10,954.56 |
| ENJOY KIT #3 30,000 GAL (24 CTNS; $166.40 EA) | $3,993.60 |
| ENJOY CHEM KIT 15,000 GL (360 CTNS; $84.20 EA) | $30,312.00 |
| SUPER ZAPPIT 1LB 24PK (153 CTNS; $78.74 EA) | $12,047.22 |
| ENJOY OPEN/CLOSE KIT 20K (300 CTNS; $29.45 EA) | $8,835.00 |
| ENJOY NEW ULTRA BLUE QT (48 CTNS; $102.83 EA) | $4,935.84 |
| ENJOY ALGAECIDE 60 QT (14 CTNS; $187.89 EA) | $2,630.46 |
| ENJOY ALGICIDE 30 QT (35 CTNS; $117.29 EA) | $4,105.15 |
| AQUA PRO CL STBLZR 2LB YL (20 CTNS; $88.68 EA) | $1,773.60 |
| AQUA-PRO CL STBLZR 4 LB YL (30 CTNS; $88.68 EA) | $2,660.40 |
| AQUA PRO pH UP 2 1/2LB YL (20 CTNS; $39.35 EA) | $787.00 |
| AQUA PRO pH UP 5LB YL (30 CTNS; $29.37 EA) | $881.10 |
| SPINLAB DSK CL/BR/PHOS/SLT (100) (4 PCS; $206.00 EA) | $824.00 |
| TOTAL | $92,620.33 |
On September 27, 2022, the Court endeavored to hold a telephonic status and scheduling conference (Doc. No. 14); however, the defendants did not appear. The Court scheduled a prejudgment evidentiary hearing via Zoom on October 24, 2022. (Doc. No. 15). Since the defendants had not filed a notice of appearance or a response to the plaintiff's motions, the Court canceled the evidentiary hearing. (Doc. No. 19).
In lieu of a hearing and in the absence of any opposition from the defendants, the Court directed the plaintiff to submit by October 27, 2022, any exhibits and documents that it wanted the Court to review prior to issuing a ruling on its motion. (Id.). On October 26, 2022, the plaintiff filed a Supplemental Submission to its Application for Prejudgment Remedy. (Doc. No. 21). Attached to the plaintiff's supplemental submissions were two exhibits: (1) a credit memo dated October 25, 2022, for $22,711.25, which is the value of the goods that the plaintiff was able to recover from the March 2022 delivery, offset by a 15% restocking fee (Doc. No. 21-1); and (2) an invoice dated October 25, 2022, for $972.98, which represents the freight charges incurred by the plaintiff for the returned goods. (Doc. No. 22-2). After factoring in the offset for the recovered goods and the added freight charge, the total prejudgment remedy sought by the plaintiff is $91,961.73, as well as other allowable costs, including prejudgment interest at the statutory rate of 10%, for the wrongful detention of money after it became due and owing to the plaintiff. (Doc. No. 21 at 3-4, citing CONN. GEN. STAT. § 37-31a).
The plaintiff's damages are offset by its recovery of some of the goods that it delivered to the defendants in March 2022. (Doc. No. 21 at 2). The total amount ($22,711.25) that the plaintiff credited to the defendants, adjusted by a 15% restocking fee, is calculated as follows:
| ENJOY ALGICIDE 30 QT (25 CTNS; $99.70 EA) | -$2,492.50 |
| ENJOY ALGAECIDE 60 QT (9 CTNS; $159.71 EA) | -$1,437.39 |
| ENJOY FILTER CLEAN QT (2 CTNS; $75.41 EA) | -$150.82 |
| ENJOY NEW ULTRA BLUE QT (33 CTNS; $87.41 EA) | -$2,884.53 |
| ENJOY CHEM KIT 15,000 GL (40 CTNS; $71.57 EA) | -$2,862.80 |
| AQUA PRO CL STBLZR 2LB YL (4 CTNS; $75.38 EA) | -$301.52 |
| AQUA PRO pH UP 2 1/2LB YL (11 CTNS; $33.45 EA) | -$367.95 |
| AQUA-PRO CL STBLZR 4 LB YL (28 CTNS; $75.38 EA) | -$2,110.64 |
| AQUA PRO pH UP 5LB YL (24 CTNS; $24.96 EA) | -$599.04 |
| SUPER ZAPPIT 1LB 24PK (142 CTNS; $66.93 EA) | -$9,504.06 |
| TOTAL | -$22,711.25 |
For the reasons stated below, the plaintiff's Application for Prejudgment Remedy (Doc. No. 8) and Motion for Disclosure of Assets (Doc. No. 9) are GRANTED. II. DISCUSSION
A. Prejudgment Remedy Standard
A prejudgment remedy "is generally intended to secure the satisfaction of a judgment should plaintiff prevail." Cendant Corp. v. Shelton, No. 3:06 CV 854 (JCH), 2007 WL 1245310, at *2 (D. Conn. Apr. 30, 2007) (citation omitted). Rule 64 of the Federal Rules of Civil Procedure permits a plaintiff to utilize available state prejudgment remedies to secure a judgment that might ultimately be rendered in an action. See F. R. Civ. Pro. 64; Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 436, n.10 & 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); Dill v. Ron's Golf Car Rental, Inc., No. 3:12CV137 (JBA)(JGM), 2013 WL 275690, at *8 (D. Conn. Jan. 24, 2013). The prejudgment remedy statute in Connecticut applies to federal court actions in this District. See Fed. R. Civ. P. 64(a); Roberts v. TriPlanet Partners, LLC, 950 F. Supp. 2d 418, 420 (D. Conn. 2013) ("Federal Rule of Civil Procedure 64 provides that prejudgment remedies available under state law are also available to litigants in federal court.") (applying CONN. GEN. STAT. § 52-578d(a)). As set forth in the Connecticut prejudgment remedy statute, probable cause is the standard for issuing a prejudgment remedy. CONN. GEN. STAT. § 52-278d(a). A prejudgment remedy is appropriate
[i]f the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the [movant] has shown probable cause that such a judgment will be rendered in the matter in the [movant's] favor in the amount of the prejudgment remedy sought . . . .Id.
A prejudgment remedy proceeding is "only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action." Benton v. Simpson, 78 Conn.App. 746, 829 A.2d 68, 72-73 (2003) (citation and internal quotations omitted). To prevail on a motion for prejudgment remedy, a plaintiff is "bound to furnish proof of his damage with reasonable probability, and not leave the trial court to speculation and conjecture." Mullai v. Mullai, 1 Conn.App. 93, 468 A.2d 1240, 1242 (1983) (per curiam).
The Court will "consider not only the validity of the plaintiff's claim but also the amount that is being sought." Calfee v. Usman, 224 Conn. 29, 616 A.2d 250, 254 (1992) (citation and internal quotations omitted). "The Court's decision must be based on its appraisal of the legal issues and the credibility of the witnesses and other evidence." Ensign Yachts, Inc. v. Arrigoni, No. 3:09CV209 (VLB), 2009 WL 4040394, at *4 (D. Conn. Nov. 19, 2009) (citations and internal quotation marks omitted). It is within this Court's "broad discretion to deny or grant a prejudgment remedy." State v. Ham, 253 Conn. 566, 755 A.2d 176, 178 (2000); see also Corey v. Hawes, No. 3:14CV1266 (JAM)(JGM), 2015 WL 5472507, at *7-8 (D. Conn. Sept. 17, 2015) (multiple citations omitted).
The plaintiff's application for prejudgment remedy turns upon whether the plaintiff has shown that there is probable cause that a judgment will enter in its favor. CONN. GEN. STAT. § 52-278(d)(1)(A). "Probable cause" is defined as:
a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.Qualitative Reasoning Sys., Inc. v. Computer Scis. Corp., No. 3:98CV554 (AWT), 2000 WL 852127, at *10 (D. Conn. Mar. 31, 2000) (internal quotations and multiple citations omitted); see also Walpole Woodworkers, Inc. v. Atlas Fencing, Inc., 218 F. Supp. 2d 247, 249 (D. Conn. 2002) (quoting Three S. Development Co. v. Santore, 193 Conn. 174, 474 A.2d 795, 796-97 (1984) (citation omitted)). The probable cause standard is less demanding than both the preponderance of the evidence and the likelihood of success standards. Cendant Corp., 2007 WL 1245310 at *3 (citation omitted). The plaintiff need not "prove its case by a preponderance of the evidence but must show that there is probable cause to sustain the validity of its claim." Walpole Woodworkers, 218 F. Supp. 2d at 249 (citation omitted). The " 'trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits.' " Roberts, 950 F. Supp. 2d at 421 (citations and internal quotations omitted).
B. Findings Of Fact
The plaintiff is a company based in Pennsylvania that manufactures, packages, and supplies pool and spa care products. (Doc. No. 1 at 2). Brothers, a Connecticut-based company that constructs and maintains residential pools and spas, sells pool-and spa-related products and services. (Id.). Morgillo, a Connecticut resident and president of Brothers Pool Enterprises, Inc., personally guaranteed payment to the plaintiff for all goods purchased by Brothers. (Id.).
On February 23, 2021, Brothers applied for a credit account with the plaintiff. (Id.). In the application, Morgillo personally guaranteed payment to the plaintiff for all orders made by Brothers using its credit account. (Id.).
On June 15, 2021, Brothers placed an order for the purchase and delivery of pool chemicals. (Id.). The plaintiff shipped the goods to Brothers on December 2, 2021. (Doc. No. 1 at 3). The following day, the plaintiff mailed Brothers an invoice for the agreed-upon price of $13,590.00, payable within 30 days. (Id.). Brothers accepted delivery of the goods on December 6, 2021. (Id.).
On January 20, 2022, Brothers placed another order for the purchase and delivery of pool chemicals. (Id.). The plaintiff shipped the goods to Brothers on March 9, 2022. (Id.). The following day, the plaintiff mailed Brothers an invoice for the agreed-upon price of $92,620.33, half of which was payable within 60 days and the other half 30 days later. (Id.). Brothers was entitled to a discount off the invoiced price for the January 2022 order if it made timely payments. (Id.). Brothers accepted delivery of the goods on March 11, 2022. (Id.).
To date, the plaintiff has not received payment for either of Brothers's purchases. In April 2022, the plaintiff emailed Morgillo to inquire about the overdue payment for the December 2021 order. In his reply, Morgillo expressed his belief that the terms of the January 2022 sale contract applied to the July 2021 sale and did not make payment on either purchase. (Id.). The plaintiff has not received a response to any of its subsequent emails to the defendants. (Id.). On June 16, 2022, a representative of the plaintiff spoke with Morgillo about Brothers's overdue payments for both invoices. (Id.). Morgillo responded by threatening legal action against the plaintiff. (Id.).
On June 27, 2022, the plaintiff sent Brothers a demand letter regarding the overdue payments, but it has not received a response. (Id.). Nor has the plaintiff received a response to the second demand letter it sent to Brothers on July 22, 2022. (Id.).
On October 20, 2022, the plaintiff, in coordination with the defendants' representatives, recovered some of the goods that it had delivered to the defendants in March 2022. (Doc. No. 21 at 2). The total amount of those goods, adjusted by a 15% restocking fee, is $22,711.25. (Id.). The freight charge associated with the return is $972.98. (Id.).
C. Count One - Breach of Contract
The plaintiff asserts that Brothers is liable for $91,961.73, together with accrued interest and incidental damages, because of its failure to perform under the July 2021 and January 2022 sales contracts. (Doc. Nos. 8 at 4 and 21 at 3).
Under Connecticut law, "[a] contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties." CONN. GEN. STAT. § 42a-2-204(1). Once a seller has delivered goods and a buyer has accepted them, the buyer is obligated to "pay in accordance with the contract." CONN. GEN. STAT. §§ 42a-2-31; 42a-2-607(1). "When a buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under section 42a-2-710, the price (a) of goods accepted . . . ." CONN. GEN. STAT. § 42a-2-709(1). The "elements of a breach of contract action are the formation of an agreement, performance by on party, breach of the agreement by the other party and damages." Seligson v. Brower, 109 Conn. App. 749, 753, 952 A.2d 1274 (2008) (internal quotation marks omitted); see also Martin v. Dupont Flooring Systems, Inc., No. 3:01CV2189 (SRU), 2004 WL 726903, at *3 (D. Conn. Mar. 31, 2004) (stating that breach of contract is an "unjustified failure to perform all or any part of what is promised in a contract") (internal quotation omitted).
The plaintiff contends that, by placing orders for goods on both June 15, 2021, and January 20, 2022, Brothers entered into two separate contracts with the plaintiff for the purchase and delivery of those goods. (Doc. Nos. 1 at 4 and 8 at 3). The plaintiff asserts that it fulfilled its obligations under both contracts when it filled the orders and shipped the goods to Brothers, and that Brothers's acceptance of the goods upon delivery triggered its obligation to pay the plaintiff in accordance with the terms of both purchase agreements. (Id.).
In addition to its claim against Brothers, the plaintiff asserts that Morgillo is personally liable for $91,961.73, together with accrued interest and incidental damages, because, as president of Brothers, he personally guaranteed payment to the plaintiff for all purchases made by Brothers. (Doc. No. 8 at 4).
Under Connecticut law, a guarantor is separately liable for a breach of contract by virtue of signing a guaranty. See, e.g., Wachovia Bank, N.A. v. Cummings, No. 3:09CV957 (SRU), 2010 WL 466160, at *8-9 (D. Conn. Feb. 8, 2010); Lafarge Building Materials, Inc. v. A. Aiudi & Sons, LLC, 3:15CV1203 (JBA)(JGM), 2015 WL 6551796, at *4 (D. Conn. Oct. 29, 2015).
The plaintiff alleges that, on February 23, 2021, Morgillo, intending that the plaintiff rely upon his personal guaranty, signed and submitted a credit application to the plaintiff, thereby agreeing to pay for all of Brothers's orders from the plaintiff, as well as attorney fees and the costs associated with any collection action. (Doc. No. 8 at 6). The plaintiff maintains that Morgillo's obligation to pay was triggered when Brothers failed to pay for the goods it received from the plaintiff on two separate occasions. (Id.).
The Application for Credit to N. Jonas Co., Inc. is attached as Exhibit A to the plaintiff's motion. (Doc. No. 8-1). As indicated in the application, which bears Morgillo's signature:
[a]pplicant agrees to pay for each purchase according to the terms of purchase of seller in effect at the time of each such purchase. In consideration of the extension of credit by seller to the applicant at any time and from time to time hereafter, applicant agrees to pay reasonable attorney fees and any expenses of collection if legal action is brought upon any obligation arising hereafter of applicant to seller in addition to the amount of the obligation. If applicant is a corporation the undersigned hereby personally guarantees the payment of applicant's obligation arising hereafter to seller.(Doc. No. 8-1 at 5) (emphasis added).
In light of the above, this Court finds that the plaintiff has established probable cause to believe that: (1) an enforceable contract between the plaintiff and the defendants was formed when the defendants accepted the plaintiff's delivery of goods; (2) the plaintiff satisfied its obligation under both sales contracts by delivering goods to the defendants; (3) Morgillo personally guaranteed payment to the plaintiff for all of Brothers's purchases, as well as for any attorney fees and litigation costs; and (4) the defendants failed to pay the plaintiff the agreed-upon price for the goods Brothers received from the plaintiff in accordance with the July 2021 and January 2022 purchase agreements.
D. Count Two - Unjust Enrichment
The Court need only find probable cause to believe that a plaintiff will prevail on any one claim for a prejudgment remedy to issue. See Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., No. 3:00CV1247 (PCD), 2002 WL 32506290, at *2 (D. Conn. Aug. 12, 2002). The Court nevertheless briefly considers the plaintiff's claim for unjust enrichment against the defendants and finds probable cause to believe that the plaintiff will prevail on this claim as well.
"The elements of unjust enrichment are well established. Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefit, and (3) that the failure of payment was to the plaintiffs' detriment." Ayotte Bros. Const. Co. v. Finney, 42 Conn.App. 578, 680 A.2d 330, 332 (1996) (citation and quotation marks omitted). "The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff." Polverari v. Peatt, 29 Conn.App. 191, 614 A.2d 484, 489 (1992) (citations and quotation marks omitted).
The plaintiff asserts that its delivery of pool chemicals to Brothers created an obligation on the part of Brothers to compensate the plaintiff, regardless of whether Brothers's conduct created an enforceable contract. (Doc. No. 8 at 4-5). The Court agrees with the plaintiff's contention that where, as here, the defendants benefitted by accepting goods from the plaintiff without paying for them, the defendants would be unjustly enriched if they were not required to fully compensate the plaintiff for the value of the goods they received. (Id. at 5).
The plaintiff further argues, and the Court agrees, that by failing to object to the invoiced amounts, the defendants cannot now challenge the reasonableness of the total amount of unjust enrichment alleged by the plaintiff. (Id.).
E. Counts Three, Four, And Five
The Court finds probable cause that the plaintiff will prevail at trial on its breach of contract and unjust enrichment claims. Accordingly, the Court need not reach the plaintiff's other claims.
F. Remedy Amount
The Court next addresses the amount of remedy sought. The plaintiff seeks a prejudgment remedy in the amount of $91,961.73. (Doc. No. 21 at 3-4). This amount reflects the value of the goods delivered to the defendants ($113,700.00) and the freight charges for the return of a portion of those goods ($972.98), minus the credit for the value of the returned goods, adjusted by a 15% restocking fee ($22,711.25). (Doc. No. 21 at 2).
The damages that a plaintiff claims "need not be established with precision but only on the basis of evidence yielding a fair and reasonable estimate." Savalle v. Kobyluck, No. 3:00CV675 (WWE), 2001 WL 1913746, at *2 (D. Conn. Sept. 21, 2001) (internal quotations omitted). Rather, the Court must arrive at a "fair and reasonable estimate" based on the evidence presented. Roberts v. Tri-Planet Partners, LLC, 950 F.Supp.2d 418, 424 (D. Conn. 2013) (citation and quotation marks omitted).
Prejudgment interest may be included in the calculation of a prejudgment remedy. See New England Health Care Employees Welfare Fund v. iCare Mgmt., LLC, 792 F.Supp.2d 269, 287 (D. Conn. 2011). The moving party must establish probable cause that it will receive an award of prejudgment interest in order for that interest to be included in the prejudgment remedy. See Garnet Analytics, Inc. v. Diversified Sols., Inc., No. 3:12CV716 (WWE)(HBF), 2013 WL 6511940, at *8 (D. Conn. Dec. 12, 2013).
"When the court's jurisdiction is based upon diversity, an award of prejudgment interest is governed by state law." Brandewiede v. Emery Worldwide, 890 F. Supp. 79, 82 (D. Conn. 1994). Under Connecticut law, prejudgment interest may be awarded "as damages for the detention of money after it becomes payable." CONN. GEN. STAT. § 37-3(a).
Whether such interest is awarded is primarily an equitable determination and a matter within the discretion of the trial court. The courts have construed the statute to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances. Other factors to be considered include whether the sum recovered was a liquidated amount, and whether the party seeking prejudgment interest has diligently presented the claim throughout the course of the proceedings.Prime Mgmt. Co. v. Steinegger, 904 F.2d 811, 817 (2d Cir. 1990) (citations and quotation marks omitted). The Court finds that the plaintiff has established probable cause that prejudgment interest will be awarded on any amount recovered.
Based on the evidence presented in the plaintiff's filings, the Court finds that the plaintiff has demonstrated probable cause to believe that a judgment in the amount of $91,961.73 will be rendered in its favor at a trial on the merits of its breach of contract and unjust enrichments claims. This amount reflects the value of the goods delivered to the defendants ($113,700.00) and the freight charges for the return of a portion of those goods ($972.98), minus the credit for the value of the returned goods, adjusted by a 15% restocking fee ($22,711.25). (Doc. No. 21 at 2). The Court also finds that the plaintiff has established probable cause that prejudgment interest will be awarded on any amount recovered.
The parties entered the contracts at issue here less than one year ago, and prejudgment interest under Connecticut law is limited to no more than ten percent per year. The Scheduling Order contemplates that dispositive motions will be filed by April 5, 2023, which is approximately one year after the formation of the second contract between the parties. (See Doc. No. 2). Therefore, the Court finds probable cause to believe that prejudgment interest in the amount of $9,196.17—ten percent of the amount sought by the plaintiff—will be awarded, bringing the total amount to $101,157.90.
III. MOTION FOR DISCLOSURE OF ASSETS (DOC. NO. 9)
In addition to its Motion for Prejudgment Remedy, the plaintiff has also moved for the disclosure of the defendants' assets (Doc. No. 9) so that he may seek an order of attachment pursuant to CONN. GEN. STAT. § 52-278n.
Section 52-278n(a) provides that "[t]he court may, on motion of a party, order an appearing defendant to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy." Once a plaintiff has established probable cause to support a prejudgment remedy, such disclosure may be ordered by the court. See CONN. GEN. STAT. § 52-278n(c); see also Great Am. Ins. Co. of N.Y. v. Summit Exterior Works, LLC, 3:10CV1669 (JBA)(JGM), 2011 WL 4742218, at *4 (D. Conn. Oct. 11, 2011). The Court has granted the plaintiff's Motion for Prejudgment Remedy. "Generally, under Connecticut law, a disclosure of assets is ordered if a prejudgment remedy is ordered." Wachovia Bank, N.A. v. Cummings, No. 3:09CV957 (SRU), 2010 WL 466160, at *9 (D. Conn. Feb. 8, 2010).
Here, for the reasons articulated above, the plaintiff has established probable cause to support a prejudgment remedy in the amount of $101,157.90. Since it is unclear whether the defendants have any assets within Connecticut to satisfy the prejudgment remedy, the plaintiff's Motion for Disclosure of Assets (Doc. No. 9) is GRANTED. Within 30 days of this Order, the defendants shall disclose to the plaintiff any money or property in which they have an interest, or debts owing to them, sufficient to provide security in the amount of $101,157.90.
IV. CONCLUSION
Based on the evidence presented, the Court finds probable cause that judgment would enter in the plaintiff's favor against both defendants in the amount of $101,157.90, which includes prejudgment interest at the annual statutory rate of ten percent for the wrongful detention of money after it became due and owing to the plaintiff. See CONN. GEN. STAT. § 37-3a. Accordingly, the plaintiff's Application for Prejudgment Remedy (Doc. No. 8) is GRANTED. In light of this conclusion, the plaintiff's Motion for Disclosure of Assets (Doc. No. 9) is likewise GRANTED.
This is not a Recommended Ruling. This is an Order reviewable pursuant to the "clearly erroneous" statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); D. Conn. L. Civ. R. 72.2. As such, it is an Order of the Court unless reversed or modified by a district judge upon timely made objection. See 28 U.S.C. § 636(b) (written objection to ruling must be filed within fourteen calendar days after service of same); FED. R. CIV. P. 6(a) and 72; Rule 72.2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (failure to file timely objection to magistrate judge's recommended ruling may preclude further appeal to Second Circuit).
An application for prejudgment remedy is a non-dispositive motion, and upon referral to a magistrate judge, does not require a recommended ruling. Aetna Life Ins. Co. v. Tooth Savers Dental Serv., No. 3:96CV102453 (GLG), 1997 WL 102453, at *1 (D. Conn. Feb. 5, 1997). See also Doe v. Bruno, 3:17CV217 (JAM)(JGM), 2017 WL 1424298, at *4, n. 3 (D. Conn. Apr. 20, 2017); Lafarge Bldg. Materials, Inc. v. A. Aiudi & Sons, LLC, 3:15CV1203 (JBA)(JGM), 2015 WL 6551796, at *8, n. 19 (D. Conn. Oct. 29, 2015); Capital-Source Fin. LLC v. Autorino, 3:09CV2148 (RNC)(DFM), 2011 WL 1195857, at *1, n. 1 (D. Conn. Mar. 11, 2011); United of Omaha Life Ins. Co. v. Conn. Student Loan Found'n, 718 F. Supp. 2d 277, 286 (D. Conn. 2010).