GRAVEL v. SPENCE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

THOMAS R. GRAVEL, )

)

Plaintiff, )

)

v. ) 1:23-cv-00315-NT

)

AARON SPENCE, et al., )

)

Defendants )

ORDER ON PLAINTIFF’S MOTION FOR

ATTACHMENT AND ATTACHMENT ON TRUSTEE PROCESS

Plaintiff, the founder of a business that designed and manufactured snow pushers,

alleges Defendants, who were involved in the purchase of Plaintiff’s business assets, failed

to pay Plaintiff the total purchase price. (Verified Complaint, ECF No. 1.) Plaintiff seeks

an attachment and an attachment on trustee process against the property of Defendant

Aaron Spence in the amount of $110,000 and the property of Defendant Advanced

Development Company LLC (Advanced Development) property in the amount of

$2,268.75. (Motion for Attachment, ECF No. 4.) Defendants oppose the motion.

(Response, ECF No. 13.)

After review of Plaintiff’s motion and supporting documents, the Court grants the

motion.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 64 and District of Maine Local Rule

64, the Court applies Maine law when presented with a motion for attachment and

attachment on trustee process. To obtain an attachment or an attachment on trustee process,

a plaintiff must demonstrate “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). A motion for an

attachment or an attachment on trustee process must be accompanied by an affidavit or

affidavits setting forth “specific facts sufficient to warrant the required findings and shall

be upon the affiant’s own knowledge, information or belief; and so far as upon information

and belief, shall state that the affiant believes this information to be true.” Me. R. Civ. P.

4A(i), 4B(c).

Neither Plaintiff nor Defendants filed an affidavit in support of their factual

assertions and arguments. Plaintiff, however, relies on his verified complaint as record

evidence supporting his request for an attachment. In the verified complaint, Plaintiff

asserts that the alleged facts, other than those stated upon information and belief, are based

on his personal knowledge and are true; he also asserts that he believes the factual

allegations made upon information and belief to be true. A verified complaint is considered

the equivalent of an affidavit for purposes of record evidence. See Sheinkopf v. Stone, 927

F.1259, 1262 (1st Cir. 1991) (verified complaint treated as “functional equivalent of an

affidavit” for summary judgment purposes to the extent it satisfies the standards for

evidence presented in a summary judgment motion).

FACTUAL BACKGROUND

Plaintiff, who resides in Barre, Massachusetts, is the founder and was, at all relevant

times, the sole owner of Hydro Cutter, Inc., a business founded in 2001 for the design and

manufacture of industrial equipment that cut materials using high-pressure jets of water.

(Verified Complaint ¶¶ 2, 11.) Plaintiff designed a snow pusher for use with heavy

equipment and in 2018, pursued a patent application for the trip edge component of the

snow pusher design with the U.S. Patent and Trademark Office. (Id. ¶¶ 12–13.)

Hydro Cutter manufactured snow pushers in a facility in Massachusetts and sold

them directly to customers and through certain distributors in New England and New York.

(Id. ¶ 14; Answer ¶ 14, ECF No. 12.) One of the distributors was Defendant Advanced

Development, a business entity with a principal place of business in Hermon, Maine.

(Verified Complaint ¶¶ 4, 15; Answer ¶¶ 4, 15.) Defendant Spence (hereinafter

“Defendant”), of Dedham, Maine, is the sole member of Defendants Advanced

Development and Advanced Manufacturing Company LLC. (Verified Complaint ¶¶ 3, 5;

Answer ¶¶ 3, 5.)

On May 7, 2022, after Plaintiff explored the possible sale of Hydro Cutter and its

various assets, Plaintiff and Defendant signed an “Equipment Bill of Sale.” (Verified

Complaint ¶¶ 16, 18; Answer ¶¶ 16, 18; Equipment Bill of Sale, ECF Nos. 1-1, 12-1, 13-

1.) Through the Equipment Bill of Sale, Plaintiff agreed to sell and Defendant agreed to

purchase thirteen numbered categories of equipment and goods for $80,000. The effective

date of the purchase was April 20, 2022, but the bill of sale allowed Plaintiff to continue to

use the waterjet machine and other equipment until the inventory was shipped to Hermon,

Maine. Defendant paid $80,000 via check and began coordinating the transfer of the

equipment from Massachusetts to Maine. (Verified Complaint ¶ 19; Answer ¶ 19.)

The parties contemplated that Plaintiff would work for Defendant Advanced

Development, that Plaintiff’s duties would include teaching his manufacturing process to

Defendant, and that Plaintiff would be paid $26 per hour. (Verified Complaint ¶¶ 35, 36.)

Plaintiff subsequently agreed to be paid $25 per hour. (Id. ¶ 40.)

On August 16, 2022, the parties signed and notarized a letter, which purported to

constitute a legally binding contract; the agreement acknowledged the equipment bill of

sale and the sale/purchase of the snow pusher business, and it specified that “the remaining

balance which includes any and all CAD files / cut files for the snow pushers will be turned

over to Advanced Manufacturing within five business days.” (Intellectual Property

Agreement, ECF Nos. 1-2, 12-4, 13-4.) The letter also acknowledged a prior $1,500

deposit for custom springs and provided that “the remaining balance shall also be payable

by Advance[d] Manufacturing Co.” and that “All patent information will also be due to

this company along with the CAD files / cut files.” (Id.) Defendant agreed to pay Plaintiff

$110,000 over a twenty-four-month period in four equal payments of $27,500 every six

months. (Id.) According to Plaintiff, he mailed Defendant a package containing all patent

information and CAD files relating to snow pushers, and Defendant confirmed receipt of

the package via text message on August 24, 2022. (Verified Complaint ¶¶ 22–23; Answer

¶ 23.)

Plaintiff began working for Defendant through Defendant Advanced Development

in September 2022. (Verified Complaint ¶ 36; Timecards, ECF Nos. 12-5, 13-5; Earnings

Statements, ECF Nos. 12-6; 13-6.) Plaintiff asserts that there were disagreements about

the hourly wage, the number of hours worked, and the availability of proper personal

protective equipment; Plaintiff terminated his employment in November 2022. (Verified

Complaint ¶ 44; Answer ¶ 44.)

In February 2023, when the first of the payments referenced in the intellectual

property agreement were to be made, Defendant did not pay Plaintiff the $27,500 that was

due. (Verified Complaint ¶ 28; Email, ECF No. 1-3.) Defendant wrote that he would pay

Plaintiff after Plaintiff delivered certain equipment listed in the bill of sale that Defendant

had not been provided: (1) paint, primer and associated materials, (2) a magnet for a hoist,

(3) a garnet removal system, (4) a pallet of painted springs, and (5) three of fifteen stands

used for building and painting. (Email at 1.) Defendant asserted that all CAD and cut files

were to be turned over, but Defendant claimed that “[t]he original auto cad drawings and

cut files are still in your possession on your computer.” (Id. at 2.) Defendant also argued

that Plaintiff would “need to come up with a monetary discount at this point” for not

providing the training and work as promised, including that he was “supposed to work for

Advanced Manufacturing Co. for a minimum of 2 years” but instead Plaintiff “started work

5 weeks later then (sic) agreed upon, then took a vacation before only working 29 days and

providing myself with a 36 hour notice that you were quitting.” (Id.) Finally, Defendant

wrote:

At this point you will need to sign a Non Compete for a minimum of 5 years

that was previously provided to you back in August of 2022, As well as a

legal document that states that once you give Advanced Manufacturing the

original CAD and cut files that we have the only files pertaining to the snow

pusher components and drawings. you will also agree that you are in no way

to recreate or intend to duplicate any of the drawings. As well you will

guarantee that no other company or individual has any of these drawings or

files. There will be a significant monetary penalty included in this document

if you in any way Breach said document.

(Id.)

DISCUSSION

A. Intellectual Property Agreement Claim

Plaintiff argues that he performed under the contract embodied in the August 2022

letter by sending the digital files to Defendant, and that Defendant breached that contract

because Defendant refused to make the scheduled payment. Defendant contends he: (1)

had no duty to pay because Plaintiff materially breached the parties’ August 2022 letter

agreement before the February 2023 scheduled payment; (2) had no duty to pay or the

payment could be reduced because Plaintiff had already breached the terms of the

Equipment Bill of Sale; and (3) had no duty to pay because the Equipment Bill of Sale and

the August 2022 letter represented parts of a larger oral contract which Plaintiff had

breached before February 2023.

1. Plaintiff’s Performance Under the August 2022 Letter

For purposes of the preliminary inquiry on a motion for attachment, the notarized

August 2022 letter and Plaintiff’s sworn statements are persuasive evidence of Plaintiff’s

performance under the terms of August 2022 letter agreement. In argument, Defendant

maintains that the files were not delivered within five business days as originally agreed,

but Defendant evidently does not deny that a few days later he received the package

Plaintiff sent. Defendant, however, did not file an affidavit contesting Plaintiff’s sworn

statements of fact. Furthermore, Defendant does not effectively explain how such a short

delay in providing the files would constitute a material breach of the parties’ agreement.

To the extent Defendant contends that he had to request the files through October 2022

(see Response at 4), Defendant does not identify which files were allegedly still missing

after October 2022 or explain their importance.

Even accepting Defendant’s unverified assertions, the most likely inference to be

drawn from the parties’ submissions is that the relevant files were eventually delivered

given that Defendant began manufacturing and offering the same snow pushers for sale,

and that Plaintiff was still working for Defendant for several weeks or months after

Defendant’s alleged requests for the missing digital files. (See Motion at 3-4, citing

https://www.subzerosnowpushers.com (advertising Subzero Snow Pushers as “formerly

Hydro-Cutter, is now operating out of Maine with a new owner but still offering the same

trustworthy durability”).

Defendant also appears to argue that Plaintiff breached the agreement by retaining

the original copies of the digital files. The Court, however, did not locate and Defendant

did not identify within the August 2022 letter a requirement that Plaintiff destroy all his

own copies of the files or other related records.1

1 Defendant evidently intended for the transaction to include more provisions based on exclusivity.

Defendant filed a noncompete contract that was apparently drafted and first sent to Plaintiff in August 2022.

(Draft Noncompete Agreement, ECF Nos. 12-3, 13-3.) Because the document is unsigned and there is no

record evidence that the parties agreed to a non-competition agreement, the most likely inference for the

Court to draw is that there was no meeting of the minds on the terms of the draft document.

At this time and on this record, Plaintiff has demonstrated that he is more likely than

not to prevail on his claim despite Defendant’s contentions that Plaintiff breached the

parties’ August 2022 letter agreement.

2. Plaintiff’s Performance Under the Equipment Bill of Sale

Defendant described several categories of goods and equipment that were included

in the Equipment Bill of Sale which Plaintiff allegedly failed to deliver. Plaintiff maintains

that he made all required items available when Defendant picked up the goods and

equipment in August 2022. According to Plaintiff, Defendant never communicated before

February 2023 that any items were missing. In argument, Defendant denies Plaintiff’s

contention but did not include any records of the alleged communications or identify their

dates or contents, even though Defendant did so for other alleged communications between

the parties. (See, e.g., Response at 2–3 (describing requests Plaintiff made for

documentation such as the employment letter on May 2, May 7, May 11, May 13, May 16,

and June 3).) On the current record, the Court is persuaded that Plaintiff is more likely

than not to prevail on his claim and that he did not breach the equipment contract.

Furthermore, even if Plaintiff failed to deliver some of the goods or equipment,

Defendant has not explained how such a failure would constitute a material breach of the

Equipment Bill of Sale to justify nonperformance rather than provide support for a claim

for damages or setoff.2 Defendant has also not shown that one party’s material breach of

2 See generally, Lewis v. Benedict Coal Corp., 361 U.S. 459, 467 (1960) (“In a two-party contract situation,

when a promisor’s duty to perform is absolute, the promisee’s breaches will not excuse performance of that

duty; the promisor has an independent claim against the promisee in damages. Formerly the promisor was

required to bring a separate action to recover his damages. Under modern practice, when the promises are

to pay money, or are reducible to a money amount, the promisor, when sued by the promisee, offsets the

one contract excuses the other party’s duty to perform under a subsequent separate contract.

See DiPietro v. Boynton, 628 A.2d 1019, 1022–23 (Me. 1993) (discussing independent

effects of separate contracts as contrasted with the principle whereby terms in multiple

contracts are generally interpreted similarly when signed by the same parties at the same

time); Fam. Living, Inc. v. Baldyga, No. 00-369-P-H, 2001 WL 1335867, at *3 (D. Me.

Oct. 31, 2001) (noting that separateness of multiple contracts is bolstered when the parties

are not identical, including when a party to one contract is a corporate entity solely-owned

by one of the parties to both contracts).

Because a finding of material breach of the Equipment Bill of Sale is not supported

by this record, and because a breach of a separate agreement would be of limited relevance

even if it were supported, under Maine law, Defendant’s counterclaim based on the

Equipment Bill of Sale contract for the value of any allegedly missing equipment would

not alter the amount of the attachment to which Plaintiff would be entitled for the failure

to pay as required under the August 2022 intellectual property agreement. See Siefken v.

Group Home Found. Inc., No. 1:15-cv-00209-GZS, 2015 WL 5178067, at *2 n.7 (D. Me.

Sept. 4, 2015) (“Defendant's filing of a counterclaim, however, would not affect Plaintiff’s

entitlement to an attachment as an offset based on a counterclaim is not appropriate”)

(citing Casco N. Bank, N.A. v. New England Sales, Inc., 573 A.2d 795, 797 (Me. 1990)).

damages which he has sustained against the amount he owes, and usually obtains a judgment for any

excess”).

3. Oral Contract

Defendant claims the parties orally agreed in March 2022 that Defendant would buy

the Hydro Cutter assets. (Response at 2.) Based on this argument, the Equipment Bill of

Sale and the August 2022 letter agreement would represent the parties’ attempts to reduce

certain terms of the larger agreement to writing, but the two documents would not

constitute the parties’ entire agreement.

As Plaintiff argues, even if such an agreement were reached, the enforceability of

such an agreement would be questionable under the statute of frauds because the agreement

would not have been fully performed within one year and it would have arguably involved

a promise to refrain from carrying on a business or trade for a certain term.3 Defendant

would also have to confront other proof challenges. For instance, because the existence of

a prior and broader oral agreement in March 2022 is contrary to the express terms of the

first written agreement, which in May 2022 provided that it “constitutes the only agreement

between the Buyer and Seller, and all other agreements, whether express or implied, shall

have no force and effect except as stated in this agreement,” the parol evidence rule might

compromise Defendant’s ability to prevail on his argument. (Equipment Bill of Sale at 3.)4

3 Maine’s statute of frauds, 33 M.R.S. § 51, provides that for certain types of contracts or promises, “no

action shall be maintained . . . unless the promise, contract or agreement on which such action is brought,

or some memorandum or note thereof, is in writing and signed by the party to be charged therewith . . . .”

Subsection 5 covers “any agreement that is not to be performed within one year from the making thereof,”

and subsection 7 covers “any agreement to refrain from carrying on or engaging in any trade, business,

occupation or profession for any term of years or within any defined territory or both . . . .”

4 “The parol evidence rule operates to exclude from judicial consideration extrinsic evidence offered to

vary, add to, or contradict the terms of an integrated written agreement.” Brown Dev. Corp. v. Hemond,

2008 ME 146, ¶ 13, 956 A.2d 104, 108 (internal quotation marks omitted).

In sum, on this record, Plaintiff is more likely than not to prevail on his claim that

Defendant materially breached an enforceable contract and that Plaintiff is likely to recover

at least $110,000 in damages.

B. Wage Claim

Plaintiff claims Defendant underpaid him by approximately ten hours for each of

the last three pay periods in October and November 2022. According to Plaintiff, therefore,

he was not paid for 30.25 hours in the last three pay periods, at a rate of $25.00 per hour,

for a subtotal of $756.25, which allows him to recover total damages (after including

statutory damages) of $2,268.75. According to Defendant, Plaintiff completed his

timecards improperly in the prior pay periods in September and October 2022 by including

on a single timecard the hours from more than the seven days of a single calendar week.

Defendant contends that as a result, Plaintiff’s first paychecks included overpayments, and

the subsequent three underpayments were an attempt to correct the prior error. Defendant

maintains that a review of all the timecards and earnings statements—and not merely the

subset that Plaintiff selected—will show that Plaintiff claimed to have worked 331.75 hours

and was paid for essentially all that time, 331.25 hours.

Defendant’s arguments, however, are not supported by record evidence. Plaintiff

has presented evidence through a verified complaint and the exhibits referenced in the

complaint to support his claim. There is no sworn testimony that contradicts the assertions

in the verified complaint and its exhibits. Based on the verified complaint and the

referenced letter from a Maine Department of Labor representative confirming the

underpayment, the Court is persuaded that Plaintiff is more likely than not to prevail on the

wage claim.

CONCLUSION

Based on the foregoing analysis, the Court grants Plaintiff’s Motion for Attachment

and Attachment on Trustee Process. The Court orders Plaintiff shall have an attachment

and an attachment on trustee process (a) on Defendant Spence’s property in the amount of

$110,000 and (b) on Defendant Advanced Development’s property in the amount of

$2,268.75.5

NOTICE

Any objections to this Order shall be filed in accordance with Federal Rule of Civil

Procedure 72.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 3rd day of January, 2024.

5 In their response to the motion for attachment, Defendants assert that Plaintiff was employed by Defendant

Advanced Manufacturing Company LLC. Defendants include in their submission, a letter on Defendant

Advanced Manufacturing’s letterhead purporting to confirm an employment agreement between Plaintiff

and Defendant Advanced Manufacturing pursuant to which agreement Plaintiff would be paid $52,000

annually. The more reliable evidence, however, supports the conclusion that Plaintiff worked for Defendant

Advanced Development. First, Plaintiff’s sworn statements in the verified complaint identify Plaintiff’s

employer as Defendant Advanced Development. (Verified Complaint ¶¶ 35, 36.) In addition, the wage

statements filed by Defendants identify the employer as Defendant Advanced Development. (Exhibit F,

ECF No. 13-6.)