Pinsky v. Duncan

Decision Date17 February 1989
Docket NumberCiv. No. N-88-339 (WWE).
PartiesRoland PINSKY, et al., v. Richard K. DUNCAN, et al.
CourtU.S. District Court — District of Connecticut

Joanne S. Faulkner, New Haven, Conn., for plaintiffs.

Milton A. Bernblum, Lawrence J. Greenberg, Gold, Bernblum and Greenberg, New Haven, Conn., Joseph Patrucco, Meriden, Conn., David Greenberg, Greenberg Hurwitz and Cooper P.C., New Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANT JOHN F. DIGIOVANNI'S MOTION FOR SUMMARY JUDGMENT

EGINTON, District Judge.

In conjunction with several cases pending in the Connecticut Superior Court, each of the three defendants in this action secured an attachment of one of the plaintiffs' real property pursuant to Conn.Gen. Stat. Sec. 52-278e(a)(1). The plaintiffs claim that Section 52-278e(a)(1) is unconstitutional because it authorizes a plaintiff in a state court action to attach a defendant's real property without the filing of a bond and without prior notice and a hearing. They apparently make no claim that the statute was unconstitutional as applied in their particular cases.

On December 1, 1988, the Court granted defendant Joseph Golden Insurance Agency's motion for summary judgment after finding that Section 52-278e is constitutional. Presently pending is John F. DiGiovanni's motion for summary judgment which, like Joseph Golden Insurance Agency's motion, asserts the facial validity of Connecticut's prejudgment remedy statute. The Court considers this an opportunity to re-examine the merits of the plaintiffs' position. Upon reconsideration and for the reasons set forth below, defendant DiGiovanni's motion for summary judgment is GRANTED.

In relevant part, Conn.Gen.Stat. Sec. 52-278e provides:

(a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for the attachment of real property....

Upon examination of this statute, Judge Zampano recently noted:

Review of the Connecticut statute reveals that it was drafted with the dictates of due process, as the Supreme Court has articulated them, in mind. See Conn.Gen.Stat. Sections 52-278e(a), 52-278e(c); Fermont Div., Dynamics Corp. of America, Inc. v. Smith, 178 Conn. 393, 397 423 A.2d 80 (1979) (section 52-278e exhibits all the saving characteristics that the law of procedural due process requires); Sellner v. Beechwood Cons. Co., 176 Conn. 432, 434 407 A.2d 1026 (1979) (section 52-278e was "enacted in response to the constitutional instructions" of relevant United States Supreme Court precedent). The facial constitutional validity of Section 52-278e thus stands beyond question....

Read v. Jacksen, Civil No. B-85-85, Ruling on Defendants' Motions for Summary Judgment, slip op. at 8, 1988 WL 163017 (D.Conn. February 19, 1988); see also Shaumyan v. O'Neill, Civil No. N-87-463, Ruling on Motions to Dismiss (D.Conn. June 21, 1988) (Nevas, J.) (instructing party mounting constitutional challenge to Section 52-278e(a)(1) to "fully address the implications of Read" in their summary judgment motions). Upon reconsideration of the plaintiffs' arguments, the Court continues to agree with Judge Zampano's suggestion that Section 52-278e(a)(1) is constitutional.

In a series of cases, none of which deal with the attachment of real property, the Supreme Court has provided guidance concerning the constitutionality of prejudgment remedy statutes. In Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Supreme Court struck down a Wisconsin statute which authorized the prejudgment garnishment of wages without prior notice and hearing to the debtor. Noting that wages are "a specialized type of property presenting distinct problems in our economic system," the Court found that a statute under which a suing creditor could garnish wages without demonstrating a lien or prior interest in the property and without judicial supervision did not provide a debtor with sufficient procedural safeguards. Id. at 340, 89 S.Ct. at 1822.

Several years later in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Supreme Court invalidated two replevin statutes which authorized a seller to repossess goods without judicial approval or participation. The Court noted that, absent extraordinary circumstances, a debtor must be notified and given the opportunity to contest a creditor's claim before his property may be subject to "outright seizure." Id. at 91, 92 S.Ct. at 1999.

By contrast, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Supreme Court upheld the constitutionality of Louisiana's sequestration statute. Despite the fact that the statute did not provide notice and hearing before the sequestration of property, the Court found that it contained other procedural safeguards including: (1) the necessity of filing a detailed affidavit with the writ; (2) the posting of an adequate creditor's bond; (3) the return of the property upon the debtor's posting of a bond; (4) an immediate post-deprivation hearing; (5) creditor's liability for wrongful attachment; and, (6) judicial supervision of the entire process. Id. at 608-610, 94 S.Ct. at 1900-01.

Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Supreme Court invalidated a Georgia statute which permitted the garnishment of a business' bank account without prior notice or hearing. Unlike the statute in Mitchell, the Georgia statute did not require, inter alia: (1) the filing of a detailed affidavit made upon personal knowledge of the facts: (2) a writ issued by a judge; or (3) a prompt post-garnishment hearing at which the creditor would be required to demonstrate probable cause for the garnishment. Id. at 607, 94 S.Ct. at 1900.

The gravamen of the plaintiff's argument is that the Connecticut statute is deficient because it does not provide every procedural protection to which the Supreme Court has referred in these four cases. However, as these...

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6 cases
  • Pinsky v. Duncan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 25, 1990
    ...from a summary judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, reported at 716 F.Supp. 58. Doehr claims that Sec. 52-278e(a)(1) is unconstitutional on its face. For the reasons below, we agree. We therefore reverse and remand for entry......
  • Connecticut v. Doehr
    • United States
    • U.S. Supreme Court
    • June 6, 1991
    ...of the Fourteenth Amendment.2 The District Court upheld the statute and granted summary judgment in favor of DiGiovanni. Pinsky v. Duncan, 716 F.Supp. 58 (Conn.1989). On appeal, a divided panel of the United States Court of Appeals for the Second Circuit reversed. Pinsky v. Duncan, 898 F.2d......
  • Shaumyan v. O'NEILL
    • United States
    • U.S. District Court — District of Connecticut
    • June 27, 1989
    ...this district have recently deflected constitutional challenges to the facial validity of section 52-278e. See Pinsky v. Duncan, 716 F.Supp. 58, 60 (D.Conn.1989) (Eginton, J.) ("Viewed as a whole, section 52-278e(a)(1) comports with due process."); Read v. Jacksen, Civ. No. B-85-85, slip op......
  • Pinsky v. Duncan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 22, 1996
    ...that the fact that the statute does not provide for the filing of a bond prior to the attachment is unobjectionable. Pinsky v. Duncan, 716 F.Supp. 58, 60 (D.Conn.1989). We reversed on appeal, stating in the principal opinion "that Conn.Gen.Stat. § 52-278e(a)(1) violates the requirements of ......
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