The opinion
STATE OF MAINE
CUMBERLAND, ss.
ROCKINGHAM ELECTRICAL SUPPLY
CO., INC.,
Plaintiff
v. ORDER
BARBARA FLORIDINO d/b/a FLORIDINO ; ·~
., '·
ELECTRIC CO.,
Defendant
Before the court is plaintiff's renewed motion for an attachment. Plaintiff
originally sought an attachment at the time it filed its complaint in the District Court.
Although plaintiff did not seek an ex parte attachment, an attachment was ordered in
error before defendant had notice of the motion for attachment. The attachment order
was thereafter vacated by agreement and the case has been removed to Superior Court..
Plaintiff now renews its motion for an attachment based on its original motion
papers, which included a verified complaint. Defendant has incorporated her earlier
opposition papers, which - in addition to her objection that an attachment had been
ordered without adequate notice- contended that an attachment could not be ordered
without a hearing and that the jurat of the verified complaint did not comply with
M.R.Civ.P. 4A(i).
On the issue is whether a hearing is required, due process and the applicable
rules are satisfied if the party opposing attachment has had the opportunity to be heard
in opposition by submitting opposition papers. Neither oral argument nor an
evidentiary hearing is required. See Southern Maine Properties Co. Inc. v. Johnson, 1999
ME 37 <JI 8, 724 A.2d 1255.
However, the court agrees that under existing Law Court precedent, the jurat on
the verified complaint is insufficient as the basis for an attachment under M.R.Civ.P
4A(i). The court has some difficulty drawing any meaningful distinction between a jurat
which states that the facts asserted "are true to the best of [the affiant's] knowledge and
belief" and one which follows the wording of Rule 4A(i) and states that "so far as [facts
are asserted] on information and belief, [the affidavit] shall state that the affiant believes
this information to be true." For better or worse, however, the Law Court has drawn
such a distinction and has found jurats referring to "the best of" an affiant's knowledge
and belief to be insufficient. See Ingalls v. Brown, 460 A.2d 1379, 1380-81 (Me. 1983);
Englebrecht v. Development Corp. for Evergreen Valley, 361 A.2d 908, 911 (Me. 1976). 1
The court would add that plaintiff was aware from defendant's opposition
papers that the jurat had been challenged and had an ample opportunity to remedy the
problem before renewing its motion.
The entry shall be:
Plaintiff's motion for an attachment is denied without prejudice to the
submission of a new motion based on an affidavit with a jurat that complies with
M.R.Civ.P. 4A(i). The clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).
Dated: July 3 0 2012 J~
Thomas D. Warren
Justice, Superior Court
1
In contrast to the situation in Ingalls v. Brown and in Herrick v. Theberge, 474 A.2d 870, 874
(Me. 1984), there is no language elsewhere in the verification or in the complaint that can save
the defective jurat.
2
ROCKINGHAM ELECTRICAL SUPPLY COMPANY INC VS BARBARA FLORIDINO DBA FLORIDINO ELEC
UTN:AOCSsr -2012-0011470 CASE #:PORSC-CV-2012-00153
01 0000002485 KEARNS MARK A
482 CONGRESS STREET STE 304 PO BOX 17915 PORTLAND ME 04112
F BARBARA FLORIDINO DEF RTND 03/26/2012
02 0000008182 MULLIGAN, CHRISTOPHER P
96 CHESTNUT STREET PORTSMOUTH NH 03801
F ROCKINGHAM ELECTRICAL SUPPLY COMPANY INC PL RTND 02/06/2012
03 0000003683 RANDALL MARK L
482 CONGRESS STREEET STE 304 PO BOX 17915 PORTLAND ME 04112
F BARBARA FLORIDINO DEF RTND 03/26/2012