Plaintiffs Cannot Lock Down Defendants’ Assets By Simply Filing A Lawsuit

Lesson. As a general rule, a plaintiff cannot inquire about a defendant’s assets or seek a security bond until a judgment has been entered.

Case cite. Busbin v. Excavator’s Transp. LLC, 2023 U.S. Dist. LEXIS 202598 (S.D. Ind. 2023)

Legal issue. Whether a plaintiff can attach a defendant’s property to secure a yet-to-be-entered judgment by filing a simple motion.

Vital facts. The underlying case arose out of Plaintiff’s employment-related claims against his employers.

Procedural history. Plaintiff moved to set a security bond and/or attach certain property of Defendants to secure a future judgment. More specifically, Plaintiff asked “the Court to order Defendant … to appear at a hearing and bring information regarding [Defendant’s] bank accounts, real and tangible property, and people or entities that owe Defendants money.”

Key rules. Plaintiff cited to Indiana Trial Rule 64 “Seizure of person or property” in support of the motion.

Defendant pointed to Indiana Code §§ 34-25-2-1 and 4 related to “prejudgment attachment.” Section 4 “requires that a plaintiff seeking remedies such as those sought by Plaintiff make an affidavit showing: (1) the nature of the claim; (2) that the claim is just; (3) the amount to be recovered; and (4) that one of the grounds for an attachment enumerated in Indiana Code § 34-25-2-1 is present.”

I wrote about Section 1 in my 11/20/23 post The Challenges Of Obtaining Prejudgment Attachment.

Holding. The Court denied Plaintiff’s motion.

Policy/rationale. Plaintiff failed to meet the high burden of establishing the right to pre-judgment attachment. The Court reasoned:

[The applicable law]—in addition to common sense—support the conclusion that Plaintiff cannot simply file a motion, cite to Indiana Trial Rule 64, and insist that Defendants be ordered into court with bank and other records, secure a bond, and/or have property attached based solely upon the fact that Plaintiff has filed suit against Defendants. Plaintiff needs to make a more significant showing to justify the relief sought, and Plaintiff has fallen far short of doing so.

Related posts. My blog’s category Attachment/Garnishment has several posts dealing with these issues.
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I represent parties involved in commercial collection actions. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@dinsmore.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.