Ebsco Industries, Inc. v. Thomas E. Lilly, Third-Party-Plaintiff, J. Richard Egan Richard D. Egan and J. Edward Porter, III ( 1988 )

MERRITT, Circuit Judge.

This appeal raises questions under Rule 64, Fed.R.Civ.P. which provides for prejudgment attachment to preserve assets for the payment of anticipated judgments and under Rule 65, which provides for in-junctive relief. Specifically the issue is whether the District Court may use its injunctive powers under Rule 65 instead of its attachment authority under Rule 64 in order to preserve assets prior to trial or judgment, and if so, under what circumstances?

Rule 64 provides that “during the course of an action, all remedies ... for ... seizure of ... property for the purpose of securing satisfaction of the judgment ultimately to be entered ... are available ... in the manner provided by the law of the state in which the district court is held-” In the instant case, the plaintiff made a strong evidentiary showing that the defendant, Lilly, had defrauded the plaintiff company of approximately $3 million in connection with the sale of Lilly’s textile manufacturing company to plaintiff. Lilly, asserting his privilege under the Fifth Amendment, refused to answer questions concerning his assets and their disposition. District Judge Arthur Spiegel found a strong likelihood that Lilly was attempting to conceal and dispose of assets in order to defeat execution of the final judgment in plaintiffs favor, which the Court expected to be entered after trial.

Instead of entering an order setting in motion attachment procedures under Ohio law, as provided in Rule 64, the District Court entered an injunction under Rule 65 as follows:

It is hereby Ordered that defendant Thomas E. Lilly, his agents, employees, successors, heirs, and assigns are enjoined until further Order of this Court from transferring or encumbering any of his assets other than for basic living expenses, not to exceed $1,000 per month, without the approval of the Court or of plaintiffs counsel.

The District Court made clear, explicit and complete specific findings of fact and conclusions regarding irreparable injury, likelihood of success on the merits and the other factors required for the issuance of a preliminary injunction under Warner v. Central Trust Co., 715 F.2d 1121, 1123 (6th Cir.1983). Judge Spiegel’s finding, located in a footnote of his opinion, concerning the inadequacy of the legal attachment remedies provided under Ohio law and Rule 64 was as follows:

Whenever defendant is questioned about his business activities, he invokes his Fifth Amendment right to remain silent with the result that plaintiff does not know what assets to attach under the statute; secondly, that the attachment statute requires that a bond be posted in double the amount of recovery sought.... Given that plaintiff seeks redress for ... $2.7 million as well as for a soured purchase transaction ... it would indeed be onerous to require the plaintiff to pursue such a route.

The question on appeal is whether this finding was sufficient for the exercise of the Court’s equity powers.

Ohio’s attachment provisions, § 2715.01-.56, permit a court to issue an attachment of defendant's property if the defendant is about to remove his property from the jurisdiction of the court, with the intent to defraud his creditors; or if he is about to convert his property into money to place it beyond the reach of creditors; or if he has property which he is concealing; or if he has disposed of his property with the intent to defraud creditors. Ohio Rev. Code Ann. § 2715.01(A)(6M9) (Baldwin 1984). Once the court authorizes prejudgment attachment, plaintiff must pay a bond equal to the value of the property to be attached, or, if not known, twice the value of plaintiff's claim. § 2715.044-26. The court's order of attachment is then delivered to the levying officer who, without delay, will go to the location of the property, make an inventory and appraisal of its value, and take it into custody if personal property, or conspicuously place notice of attachment on it if real property. § 2715.05-.09.

Ohio state courts have held that the attachment provisions provide a legal, as distinguished from an equitable, prejudgment remedy. Haines v. Public Finance Corp., 7 Ohio App.2d 89, 218 N.E.2d 727, 729 (1966); Cheney v. The Maumee Cycle Co., 64 Ohio St. 205, 214, 60 N.E. 207 (1901). See also 7 J. Moore & J. Lucas, Moore’s Federal Practice § 64.04[3], at 64-19-20 (1987); C. Wright & A. Miller, Federal Practice and Procedure § 2932 (1973). Before exercising their equitable injunctive powers courts in Ohio have traditionally held that the moving party must show that he has no adequate legal remedy. Adams v. Long, 60 N.E.2d 629, 632, 42 O.L.A. 334, 339 (Ohio Ct.App.1944); see also Int’l Union, et al. v. Lester Engineering Co., 575 F.Supp. 797, 801 (N.D.Ohio 1982). Where Ohio statutes afford the party a legal remedy, a determination must be made that these statutory remedies are inadequate before a court can implement its equity powers and issue an injunction. Blythin v. Zangerle, 83 Ohio App. 355, 77 N.E.2d 379, 384 (1947); Adams v. Long, 60 N.E.2d at 632.

In addition, Ohio courts have specifically held that the legal remedy of attachment must be shown inadequate before an equitable remedy may issue. Jebb Realty Service Co. v. McIntosh, 26 Ohio App. 92, 93-94, 159 N.E. 143 (1926); Card Fabrique Co. v. Stanage, 50 Ohio St. 417, 34 N.E. 410 (1893); Secor v. Witter, 39 Ohio St. 218, 235 (1883); Endel v. Leibrock, 33 Ohio St. 254, 269 (1877). In Jebb Realty, the court ruled that the lower court should not have exercised its equity power to appoint a receiver “to accomplish what should have been accomplished by a writ of attachment.” 26 Ohio App. at 94, 159 N.E. 143.

The Michigan Supreme Court has also ruled on this issue in the same way:

The law processes of j.. attachment would have obviated the necessity of the injunction.... Plaintiff'herein had a full, complete and adequate remedy at law and there was no showing that there was some feature of the case that would bring it peculiarly within the province of a court of equity.

Christian v. Porter, 340 Mich. 300, 65 N.W.2d 779, 782 (1954).

Although federal courts have rarely examined when, in a given case, Rule 64 attachment should issue instead of Rule 65 injunction, in Dorfmann v. Boozer, 414 F.2d 1168, 1171-72, 1174 (D.C.Cir.1969), the court expressly held that where the legal remedy of attachment is adequate, an injunction should not be granted. In Dorf-mann, the court reversed the lower court’s grant of a preliminary injunction because the moving party had not shown that the attachment remedy was not adequate. The court stated:

[Ajppellees now attempt to seize upon this action of appellants not only to get around the attachment statute, but actually to obtain relief which they could not get under that statute.

Id. at 1172. The court explained:

The great equitable power to enjoin a party pendente lite should not be exercised unless it is manifest that the normal legal avenues are inadequate, that there is a compelling need to give the plaintiff the relief he seeks, and that the injunction will not wreak greater harm on the party enjoined.

Id. at 1174; see also Mitchell v. Lay, 48 F.2d 79, 83 (9th Cir.1931); Taunton Municipal Lighting Plant v. Dept. of Energy, 472 F.Supp. 1231, 1233 (D.Mass.1979); Berman v. Narragansett Racing Ass’n, 48 F.R.D. 333, 336 (D.R.I.1969).

No Sixth Circuit case has explicitly held that before a court issues a preliminary injunction it must find in addition to the other criteria for an injunction, that the legal remedy of attachment is inadequate to redress the moving party’s concerns. However, the Sixth Circuit has held generally that an injunction may not issue if there is an adequate remedy at law. Gilley v. United States, 649 F.2d 449, 454 (6th Cir.1981); Detroit Newspaper Publishers Ass’n v. Detroit Typographical Union No. 18, 471 F.2d 872, 876 (6th Cir.1972); Travis v. Pennyrile Rural Electric Co-op., 399 F.2d 726, 729 (6th Cir.1968); see also Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1958). In addition, the Sixth Circuit recently held in USACO Coal Co. v. Carbo-min Energy, 689 F.2d 94, 99 (6th Cir.1982), that a state’s attachment statute could not provide adequate protection to plaintiff and therefore upheld the district court’s injunction.

Our view that a preliminary injunction may not be granted unless there are valid findings that the legal remedy provided by the state’s attachment statutes under Rule 64 is inadequate, is based on long-standing theories of equity jurisdiction. In his treatise Equity Jurisprudence, Pomeroy advises us:

[I]t is solely because these legal remedies are, under the assumed circumstances, inadequate to do complete justice, ... that the courts of equity also have the power to interfere and to award ... remedies. ...

J. Pomeroy, I Equity Jurisprudence 216-17 (1881).

Although the District Court in this case made substantial and complete findings and conclusions on other factors supporting the issuance of a preliminary injunction, it would have been well for it to make more complete findings on the inadequacy of the attachment remedy. The Court found that the defendant had taken specific steps to conceal assets and had refused to disclose what assets he has or where they are located, making attachment difficult if not impossible. It also found that making a surety bond for twice the amount of the claim would be extremely costly and unnecessary under the circumstances. In addition, Ohio’s attachment statutes do not provide an adequate remedy because: (1) They do not apply to assets located outside of Ohio; thus EBSCO must initiate attachment proceedings in each state where defendant owns property. (2) If plaintiff can find that defendant owns securities which it is concealing, EBSCO must garnish or enjoin securities brokers or whoever possesses the securities so that Ohio levying officers can obtain possession of stock certificates. (3) Delay resulting from the attachment process will provide additional time for defendant to dissipate assets. (4) The bond premium in a case such as this one involving claims for some $3 million in assets taken by fraud would be enormous. These factors, along with the reasons stated by the District Court, plus its clear findings of fraud, are sufficient to satisfy the requirement that the attachment remedy be shown to be inadequate. We therefore affirm the judgment of the District Court.