United States v. J. Tirocchi & Sons, Inc.

• Decision Date: 26 January 1960
• Docket Number: Civ. A. No. 2572.
• Citation: 180 F. Supp. 645
• Parties: UNITED STATES of America v. J. TIROCCHI & SONS, INC., Vincent Tirocchi and Valentino Tirocchi.
• Court: U.S. District Court — District of Rhode Island

180 F. Supp. 645

UNITED STATES of America v. J. TIROCCHI & SONS, INC., Vincent Tirocchi and Valentino Tirocchi.

Civ. A. No. 2572.

United States District Court D. Rhode Island.

January 26, 1960.

Joseph Mainelli, U. S. Atty., Samuel S. Tanzi, Asst. U. S. Atty., Providence, R. I., for plaintiff.

Jacob S. Temkin, Samuel Olevson, Benedetto A. Cerilli, Providence, R. I., for defendants.

DAY, District Judge.

This is an action brought by the United States pursuant to the provisions of 40 U.S.C.A. § 489.¹ Jurisdiction of this Court to hear, try and determine this action exists under the provisions of 40 U.S.C.A. § 489(c).

In addition to jurisdictional averments, the plaintiff's complaint alleges that "during the years 1954 through 1959, inclusive, the defendants, together with one Donald J. Boisvert, used and engaged in and caused to be used and engaged in, and entered into an agreement, combination and conspiracy to use and engage in a fraudulent trick, scheme and device for the purpose of securing and obtaining surplus property from the United States to which they were not entitled"; and that said surplus property therein described had a value in excess of $200,000. The complaint prays for relief as provided in 40 U.S.C.A. § 489.

Upon the filing of said complaint, the plaintiff obtained a writ of attachment from the Clerk of this Court directing the attachment of the real and personal estate of each of the defendants. In compliance with the provisions thereof, the United States Marshal for this District promptly attached certain real and personal estate belonging to each of the defendants. Subsequently, on December 7, 1959, the defendants moved that said attachments be dissolved, that said writ of attachment be quashed and that all the property attached thereunder be released to the defendants. This motion was consolidated for hearing with like motions filed in three similar actions instituted by the plaintiff against other defendants and was heard by me on December 14, 1959. At the conclusion of said hearing I reserved decision on all of said motions pending consideration of memoranda to be filed by counsel.

The availability of the remedy of attachment in this action is governed by the provisions of Rule 64 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides as follows:

"Seizure of Person or Property

"At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action."

It is conceded by the plaintiff that there is no statute of the United States which grants the remedy of attachment in the instant action. Therefore, under Rule 64, I must look to the law of Rhode Island to determine the validity of said attachments. In this regard, three separate provisions of the Rhode Island statutes must be noted.² First, 2 Gen.Laws R.I. (1956), § 10-5-2 provides as follows:

"10-5-2. Affidavit to support original writ.—An original writ commanding the attachment of the real or personal estate of the defendant, including his personal estate in the hands or possession of any person, co-partnership or corporation, as the trustee of the defendant, and his stock or shares in any banking association or other incorporated company, may be issued from the superior court, or any district court, whenever the plaintiff in the action to be commenced by such writ, his agent or attorney, shall make affidavit, to be indorsed thereon or annexed thereto, that the plaintiff has a just claim against the defendant, that is due, upon which the plaintiff expects to recover in such action a sum sufficient to give jurisdiction to the court to which such writ is returnable."

Secondly, 2 Gen.Laws R.I. (1956), § 10-5-5 provides as follows:

"10-5-5. Writ of attachment after filing of bill in equity.—In any cause in equity, at or after the filing of the bill, the complainant may move the superior court, ex parte, to issue a writ of attachment, to run against the property of the respondents or any respondent in said cause; and the court, in its discretion, if the cause be of such a nature that an attachment of property be for the proper security of the complainant, shall on such motion, properly supported by affidavits to be filed in said cause, enter an order granting a writ of attachment, which writ may command the attachment of the real and personal estate of the defendant, including his personal estate in the hands or possession of any person, co-partnership or corporation, as the trustee of the defendant and his stock or shares in any banking association or other incorporated company, like a writ of attachment at law in conformity to the specific directions in said order; and shall be served in like manner and be subject to like incidents as a writ of attachment at law, and shall be returnable at such time, and for such ad damnum, as shall be directed in said order and stated in such writ. And all property so attached shall be held for the security of any final decree which the complainant may obtain in his favor in said cause, in pursuance of the directions of the order granting such writ of attachment."

And finally, 2 Gen.Laws R.I. (1956), § 10-5-6 provides as follows:

"10-5-6. Original writ in tort action against nonresident.—Actions at law sounding in tort may be instituted against nonresidents having property within the state by original writ of attachment in form as provided by law; and such original writ of attachment shall be issued from the superior court or any district court wherever the plaintiff in the action to be commenced by such writ, his agent or attorney, shall make affidavit, to be indorsed thereon or annexed thereto, that the defendant is a nonresident, and that the plaintiff has a just cause of action against the defendant, upon which the plaintiff expects to recover a sum sufficient to give jurisdiction to the court to which such writ is returnable."

Two of the foregoing statutory provisions require little discussion, as it is clear that neither of them is applicable in the context of this case. There is no allegation that any of the defendants is a nonresident of the State of Rhode Island. Hence, § 10-5-6 can afford no basis for the validity of said attachment. Similarly, § 10-5-5 by its terms provides that attachments in proceedings in equity may be had only after the Court, upon motion duly made, has entered an order granting a writ of attachment. No such motion was ever filed here, nor was any such order entered in this action. The plaintiff's contention that the writ of attachment issued by the Clerk of this Court is equally sufficient in legal or equitable proceedings is untenable. The distinction as to the availability of the remedy of attachment under Rhode Island law in proceedings in equity is clearly pointed out by the Supreme Court of Rhode Island in Marsh v. Moore, 1932, 52 R.I. 458, at page 461, 161 A. 227, at page 228, where Chief Justice Stearns, speaking for the Court, held:

"* * * In an action at law an original or mesne writ of attachment is issued on the affidavit of plaintiff or his agent of a valid claim sufficient to give jurisdiction to the court. The writ is issued without an order of the court, and the particular property to be attached and the amount thereof is determined by the plaintiff. The procedure in a suit in equity is different, as a motion by complainant and an order by the court for issuance of the writ is required. The order is discretionary with the court, and may direct the attachment only of so much of the property of the respondent as the court shall decree."

The fact that this is a federal, not a state, tribunal does not obviate the requirement in equitable proceedings that a motion for the issuance of a writ of attachment be made by a complainant and that the Court exercise its discretion with reference to the issuance of such writ. Rule 64 by its terms provides expressly that "all remedies providing for seizure of person or property * * * are available under the circumstances and in the manner provided by the law of the state in which the district court is held." And see Chappell & Co. v. Haddad, D.C.Mass.1940, 1 F.R.D. 221. Writs of attachment in proceedings in equity are not available under the law of Rhode Island in the absence of an affirmative exercise of judicial discretion. Thus even if the complaint in this action can be construed as alleging a claim or claims cognizable in equity—a question which it is not necessary for me to decide here—it is clear that the writ issued in this action was not issued in accordance with the provisions of § 10-5-5.

The only substantial question presented by the instant motion is whether or not the issuance of said writ of attachment was authorized by the provisions of § 10-5-2. The test is whether or not the instant complaint states a cause of action of the nature in which said § 10-5-2 makes provision for attachment.

The defendants contend that under § 10-5-2 a writ of attachment is not available when the cause of action is one sounding in tort. On the other hand, the plaintiff argues that said sectio...