United States District Court, D. Connecticut
KENNETH G. WALSH
FRANCIS ST. DENIS
RULING ON RENEWED PLAINTIFF'S EMERGENCY
APPLICATION FOR PREJUDGMENT REMEDY [Doc. #15]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
Kenneth G. Walsh (“plaintiff”) has filed a
renewed application for prejudgment remedy. [Doc.
#15]. For the reasons articulated below, the
Court GRANTS, in part, plaintiff's
Renewed Emergency Application for Prejudgment Remedy
[Doc. #15] (“motion for PJR”).
brings this action against Francis St. Denis
(“defendant” or “Francis St. Denis”),
the father of plaintiff's former employer Thomas St.
Denis. Plaintiff alleges that on January 5, 2015, Thomas St.
Denis fraudulently transferred assets to defendant at a time
when Thomas St. Denis and his companies “owed Plaintiff
in excess of $59, 000 for unpaid wages[.]” Doc. #1,
Complaint at ¶53.
Complaint asserts three causes of action against defendant,
Francis St. Denis: (1) “Actual Fraud” in
violation of the Connecticut Uniform Fraudulent Transfer Act
(“CUFTA”), section 52-552e(a)(1) of the
Connecticut General Statutes; (2) “Constructive
Fraud” in violation of CUFTA, section 52-552e(a)(2) of
the Connecticut General Statutes; and (3) common law
fraudulent transfer. See generally Doc. #1,
with the Complaint, plaintiff filed an Ex Parte
Application for Prejudgment Remedy (“initial PJR
application”). [Doc. #2]. On June 23, 2017, Judge Alvin
W. Thompson referred the initial PJR application to the
undersigned. [Doc. #8]. On June 26, 2017, the Court denied,
without prejudice to re-filing, plaintiff's initial PJR
application on the grounds that: (1) plaintiff had failed to
demonstrate circumstances warranting ex parte
consideration of his application pursuant to Connecticut
General Statutes section 52-278e; and (2) plaintiff's
application was procedurally defective pursuant to
Connecticut General Statutes section 52-278d. See
generally Doc. #9.
24, 2017, plaintiff filed a motion for default against
defendant Francis St. Denis for failure to respond to the
Complaint. [Doc. #13]. The Clerk of the Court granted that
motion on July 25, 2017, and required that plaintiff file a
motion for default judgment by August 24, 2017. [Doc. #14].
27, 2017, plaintiff filed the motion for PJR, with two
supporting affidavits. [Doc. #15]. On this same date,
plaintiff also filed a Motion to Disclose Property and
Assets. [Doc. #16]. On July 28, 2017, Judge Thompson referred
those motions to the undersigned. [Doc. #17]. On August 9,
2017, the Court denied plaintiff's Motion to Disclose
Property and Assets because it sought the disclosure of
assets from a non-appearing defendant, which is prohibited by
the plain language of the applicable Connecticut statute.
See Doc. #19 (relying on Conn. Gen. Stat.
§52-278n(a)). The Court scheduled an evidentiary hearing
on plaintiff's motion for PJR for September 5, 2017 [Doc.
#20], and entered a pre-hearing scheduling order and order
for hearing and notice. [Doc. ##21, 22].
compliance with the Court's order, plaintiff filed a
pre-hearing memorandum in further support of his motion for
PJR. [Doc. #25]. Following a partially granted request for an
extension of time to August 30, 2017, [Doc. #24], on August
31, 2017, plaintiff filed his Motion for Default Judgment as
to defendant Francis St. Denis. [Doc. #26].
Court held an evidentiary hearing on plaintiff's motion
for PJR on September 5, 2017. [Doc. #29]. In support of
plaintiff's motion, in addition to his own testimony,
plaintiff presented the testimony of: the general manager of
Norwalk Self Storage, Kurt Price; Thomas St. Denis'
former accountant, Paul Costello; and the estranged wife of
Thomas St. Denis, Daelte Lima St. Denis. See Doc. #30.
Plaintiff also offered documentary exhibits in support of his
motion for PJR. See id.
PROBABLE CAUSE STANDARD
the Federal Rules of Civil Procedure govern the conduct of an
action in federal court, state law determines when and how a
provisional remedy may be obtained. See Fed.R.Civ.P.
64; Bahrain Telecomm. Co. v. DiscoveryTel, Inc., 476
F.Supp.2d 176, 183 (D. Conn. 2007). “Under Connecticut
law, a prejudgment remedy is appropriate if the court, upon
consideration of the facts before it and taking into account
any defenses, counterclaims or setoffs, claims of exemption
and claims of adequate insurance, finds that the plaintiff
has shown probable cause that such a judgment will be
rendered in the matter in the plaintiff's favor in the
amount of the prejudgment remedy sought.” Roberts
v. TriPlanet Partners, LLC, 950 F.Supp.2d 418, 420 (D.
Conn. 2013) (internal quotation marks omitted) (quoting Conn.
Gen. Stat. §52-278d(a)).
cause is a flexible common sense standard. It does not demand
that a belief be correct or more likely true than
false.” TES Franchising, LLC v.
Feldman, 943 A.2d 406, 411 (Conn. 2008) (citation
omitted). Connecticut courts have defined “probable
cause” in this context
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.” Three
S. Development Co. v. Santore, 193 Conn. 174, 175, 474
A.2d 795 (1984) (citation omitted). Thus, the plaintiff does
not have to prove its case by a preponderance of the
evidence, but must show that there is probable cause to
sustain the validity of the claim. New England Land Co.,
Ltd. v. De Markey, 213 Conn. 612, 620, 569 A.2d 1098
Walpole Woodworkers, Inc. v. Atlas Fencing, Inc.,
218 F.Supp.2d 247, 249 (D. Conn. 2002). “A probable
cause hearing for the issuance of a prejudgment remedy is not
contemplated to be a full scale trial on the merits of the
plaintiff's claim. Rather, 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 (internal citations and quotation marks omitted).
a plaintiff is seeking a prejudgment remedy based on a
fraudulent transfer, ‘the plaintiff must establish
probable cause to believe that it can prove by clear and
convincing evidence that the transfer was
fraudulent.'” Cendant Corp. v. Shelton,
473 F.Supp.2d 307, 312 (D. Conn. 2007) (quoting Hull v.
Joyner, No. CV055000206S, 2006 WL 2605708, at *3 (Conn.
Super. Ct. Aug. 25, 2006)).
motion seeks the entry of a prejudgment remedy
(“PJR”) on the entirety of his Complaint. See
generally Doc. #15. Plaintiff's motion seeks to
secure assets in two separate locations: (1) Unit 4331,
located at the Norwalk Self Storage facility, held in the
name of defendant Francis St. Denis; and (2) two trailers
parked on property in Weston, Connecticut, which property is
owned by a limited liability company allegedly controlled by
Thomas St. Denis. See Doc. #15 at 2. The proposed
order attached to plaintiff's motion for PJR seeks a PJR
in the amount of $156, 015.63. See Doc. #15-2. This
amount roughly matches a judgment entered against Thomas St.
Denis for wages owed to plaintiff, plus interest,
attorney's fees, and other statutorily prescribed
damages. See Doc. #1, Complaint at ¶47. At the
September 5, 2017, evidentiary hearing, plaintiff clarified
that he seeks a PJR against defendant Francis St. Denis in
the amount of $59, 375.00, and seeks to attach only storage
unit 4331, and any contents contained therein, located at the
Norwalk Self Storage facility.
direction of the Court, on September 7, 2017, plaintiff filed
a supplemental submission addressing: (1) the evidence before
the Court supporting plaintiff's claim for a PJR on his
common law fraudulent transfer claim; and (2) the import, if
any, of the possibility that the property held within the
storage unit is the marital property of Thomas St. Denis and
Daelte Lima St. Denis. See Doc. #31. In his
supplemental submission, plaintiff limits his motion for PJR
to Count I of the Complaint, which alleges actual fraud
pursuant to CUFTA. See Doc. #31 at 3.
the Court turns to whether plaintiff has established probable
cause to support the entry of a PJR on Count I of the
Findings of Fact
considering the well-pleaded allegations of the Complaint,
the evidence presented at the September 5, 2017, evidentiary
hearing, the Court finds the following facts established ...