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Black v. Owen

United States District Court, D. Connecticut

February 9, 2018

JOSEPH N. and RUTH A. BLACK, Plaintiff,
NICHOLAS E. OWEN, II, ET AL. Defendants.


          Robert N. Chatigny United States District Judge

         Plaintiffs Joseph N. and Ruth A. Black move for a temporary restraining order (“TRO”) restraining the assets of defendant Nicholas E. Owen (ECF No. 180). For reasons that follow, the motion for a TRO is granted.

         I. Background

         Plaintiffs seek to enforce a Massachusetts state court judgment entered in 2009 against Owen in the amount of $2, 386, 816.34 (“2009 judgment”). This action was brought in 2014 against Owen and several limited liability companies (“LLCs”) seeking a determination that Owen was the alter ego of the LLCs, such that the LLCs are liable for the Massachusetts judgment. In December 2016, this Court entered a consent judgment in favor of plaintiffs (“2016 judgment”). The 2016 judgment found that Owen was the alter ego of the LLCs, which had at various times throughout 2012 and 2013 controlled upwards of $1.6 million. See Judgment (ECF No. 173). The judgment ordered Owen to “provide good faith cooperation” in satisfying his legal obligations. It did not, however, include a specific monetary award because Owen maintained that he had no significant personal assets at the time. To date, Owen has failed to pay plaintiffs any amount pursuant to the 2009 judgment.

         On February 2, 2018, plaintiffs filed a motion seeking an order to show cause why Owen should not comply with the 2016 judgment and produce documents related to Owens's control of Rolling Thunder II, LLC (“underlying motion”) (ECF No. 175). The motion seeks an order directing that any payments to Owen from Rolling Thunder be made instead to plaintiffs. Along with the underlying motion, plaintiffs filed a motion for a TRO or preliminary injunction (ECF No. 174). The Court dismissed the motion for a TRO without prejudice for failure to comply with Rule 65(b) (ECF No. 176). A status conference regarding the underlying motion and the motion for preliminary injunction is scheduled for February 14, 2018, at 10:30 a.m. The present motion renews plaintiff's motion for a TRO.

         II. Legal Standard

         “The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.” Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 107 (2d Cir. 2009) (quotation omitted). A plaintiff seeking a TRO must show (1) “either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favor”; (2) “the plaintiff is likely to suffer irreparable injury in the absence of an injunction”; (3) “the balance of hardships between the plaintiff and defendant . . . tips in plaintiff's favor”; and (4) “the public interest would not be disserved by the issuance of a [TRO].” Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010) (standard for preliminary injunction); Spencer Trask Software & Info. Servs., LLC v. RPost Int'l Ltd., 190 F.Supp.2d 577, 580 (S.D.N.Y. 2002) (same standard applies to a TRO).

         In addition, under Rule 65(b), a court may only issue a TRO without notice and a hearing[1] 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.

         III. Discussion

         Plaintiffs have made the required showing for a TRO. Plaintiffs provide documentation, including Rolling Thunder's Articles of Organization and an affidavit apparently signed by Owen, indicating that Owen is Rolling Thunder's “manager.” See Underlying Motion, Ex. B-F (ECF No. 175). The documents show that certain addresses and an attorney associated with Owen's other LLCs are linked to Rolling Thunder. See id. Rolling Thunder is currently a party to at least two Connecticut Superior Court actions indicating that it has an interest in two pieces of real estate, both of which may soon result in substantial funds being paid to Rolling Thunder. See Rolling Thunder II, LLC v. The St. James Building Assoc., Inc., No. FBT CV 17-6061545-S (Bridgeport Dist.) (Rolling Thunder seeking to enforce offer to purchase property); Norma Berry v. Zoning Comm. Of Stratford, NO. FBT CV 17-6066842-S (Bridgeport Dist.) (Jan. 31, 2018, zoning settlement approving development of apartment complex). Plaintiffs submit an affidavit discussing these facts and expressing concern that Owen will, as he has previously, transfer to third parties any funds paid to Rolling Thunder, leaving no money to satisfy the 2009 judgment. See Black Aff. (ECF No. 180-2). Plaintiff's counsel has certified that notice has been provided to defense counsel. See Klingman Cert. (ECF No. 180-3).

         Based on plaintiff's submissions and this Court's findings in the 2016 judgment, I find that plaintiff has made the showing required to obtain the requested TRO. Owen has failed to pay plaintiffs any amount pursuant to the 2009 judgment and he has a history of using LLCs to conceal his assets. Though “irreparable harm” typically means an “injury for which a monetary award cannot be adequate compensation, ” Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir. 1995), “an injunction may issue to stop a defendant from dissipating assets in an effort to frustrate a judgment, ” Chemical Bank v. Haseotes, 13 F.3d 569, 573 (2d Cir. 1994). Although courts do not have authority to order an asset freeze prior to the entry of a money judgment, [2] here, a money judgment has already entered against Owen. See Tiffany (NJ) LLC v. Forbse, No. 11 CIV. 4976 NRB, 2015 WL 5638060, at *4 (S.D.N.Y. Sept. 22, 2015) (ordering postjudgment asset restraint). This showing satisfies Rule 65(b) and the “irreparable harm” requirement for a TRO.

         Plaintiffs have also satisfied the other requirements for a TRO. They are likely to succeed on the merits in the underlying motion: Owen is liable for the 2009 judgment and, as discussed above, appears to be in possession, or may soon be in possession, of undisclosed assets. The balance of hardships is in plaintiffs' favor: Owen has paid nothing to satisfy the 2009 judgment and appears to be in violation of the 2016 judgment, which required him to make good faith attempts to pay plaintiffs. Moreover, if Owen does in fact have no assets, as he has consistently represented, he will not be prejudiced by a restraining order. Last, “[t]he ...

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