a STATE OF MAINE SUPERIOR COURT BUSINESS AND CONSUMER CUMBERLAND, ss DOCKET NO. BCD-2018-04 EMILE CLAVET, Plaintiff and Counterclaim Defendant, KEVIN REPLY TO v. OPPOSITION TO KEVIN DEAN, MOTION FOR ATTACHMENT, ATTACHMENT ON TRUSTEE Defendant and Counterclaim Plaintiff PROCESS AND PRELIMINARY INJUNCTIVE RELIEF And CECILE DEAN, Defendant And BLUE WATER MARINA, LLC, and COVERED MARINA, LLC, Parties in Interest Defendant and Counterclaim Plaintiff, Kevin Dean (hereinafter ?Mr. Dean?), submits the following Reply to Plaintiff and Counterclaim Defendant, Emile Clavet?s, Opposition to Mr. Dean?s Motion for Attachmentl, Attachment on Trustee Process and Preliminary Injunctive Relief (hereinafter ?Opposition to Motion for Attachment?). 1. Af?davit of Emile Clavet Should be Stricken as it is an Improper Supplementation to his Motion for Attachment and Amendment to his Complaint. Mr. Clavet?s Af?davit attached to his Opposition to Motion for Attachment should be stricken and not considered by the Court as it is an improper supplementation to his Motion for Defendant and Counterclaim Plaintiff notes that Plaintiff and Counterclaim Defendant disregarded the page limits osed by Rule 7, submitting a memorandum in opposition that is 15 pages in length. See MR. Civ. P. 7(0 imp (imposing 10 page limit on memoranda in support of or in opposition to Motion for Attachment). 1 Filed Electrontanf?iC'D On: Attachment and amendment to his Complaint. As set forth in Mr. Clavet?s Af?davit to his Opposition to Motion for Attachment, Mr. Clavet raises new factual allegations for which he claims bolster his Motion for Attachment. (See Clavet Aff. 1N8, 11-7; 56?63). Not only are these allegations profoundly and impennissibly prejudicialz, but such allegations are only meant to improperly supplement Mr. Clavet?s original Af?davit to his Motion for Attachment and should, therefore, be stricken. Rule 4A(c) of the Maine Rules of Civil Procedure provides no such right to the supplementation of Af?davits in the context of a Motion for Attachment. See P. 4A. Although the Law Court has not directly determined this issue, it was raised in Aim Leasing Corp v. Bar Harbor Airways, Inc., 499 A.2d 154 (Me. 1985). In Aim Leasing, the defendant, Bar Harbor Airways moved to strike the plaintiffs supplemental af?davit to its? motion for attachment. It appears that the trial court only concerned itself with whether such supplemental af?davit caused prejudice to Bar Harbor Airways, and not whether Rule 4A(c) allowed supplemental af?davits. 1d. The trial court determined there was no prejudice to Bar Harbor Airways and granted the attachment. Thereafter, Bar Harbor appealed the trial court?s order of attachment and again raised the issue of whether Rule 4A(c) allows supplemental af?davits to be considered in an attachment proceeding. Id. Because the Law Court reversed the trial court?s order of attachment it speci?cally found that it did not need to consider whether Rule 4A(c) provides for supplemental of af?davits to be submitted. Id. 80 even if this Court were to determine that Rule 4A(c) allows supplemental af?davits, this Court should strike all or part of Mr. Clavet?s af?davit as unfairly prejudicial to Mr. Dean. See e.g. M.R. Evid. 403 (the court may 2 Mr. Clavet accuses Mr. Dean of participating in an illegal enterprise with a third-party and implies that Mr. Dean is, or will soon be, the object of a federal investigation. 2 exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice). In addition, Mr. Clavet is improperly supplementing factual allegations relating to the Sale of the Marina Companies? assets that were not contained in his Complaint, or his original Af?davit attached to his Motion for Attachment. (Clavet Aff. 10). As set forth above, this is an iInproper attempt to use his Af?davit in Opposition to his adversary?s Motion for Attachment to amend the factual allegations of his Complaint and offer additional support for his own Motion for Attachment. As such, his Af?davit should be stricken in whole, or in part. 11. Charity Shores Subdivision As Plaintiff and Counterclaim Defendant so graciously pointed out, Exhibit of Mr. Dean?s Motion for Attachment was inadvertently not attached to his Affidavit. As such, the sales records relating to the Charity Shores Subdivision are attached hereto as Exhibit and relate back to the damages addressed in Mr. Dean?s Motion for Attachment. lnjunctive Relief Based upon the circumstances surrounding the sale of the Getchell Agency in the bankruptcy proceeding, Mr. Dean has determined that he will no longer seek to enjoin the efforts of the sale to Mr. Clavet. As such, on or before the Scheduling Order deadline of April 2, 2018, Mr. Dean will be amending his Counterclaim to withdraw his claim for injunctive relief and will substitute therefore a claim for monetary damages. IV. Conclusion As set forth in his Motion for Attachment, Mr. Dean has proven that he is more likely than not to prevail on the merits of his counterclaims against Plaintiff, and is more likely than not to recover an amount equal to or greater than $1,215,000.00 against Plaintiff. Therefore, Mr. Dean prays this Court enter an Order of Attachment of all attachable assets of Plaintiff up to the ainount of $1,215,000.00; Order attachment on Trustee Process against any parties in possession 0f pr0perty payable to Mr. Dean up to the amount of their attachable credits not to exceed $1,215,000.00; and, enter an Order enjoining Plaintiff from selling lots in the Charity Shores Subdivision and/or the sale of his interest in Provider Laboratory Services, LLC, to a third-party in violation of the operating agreement. Dated at Bangor, Maine, this 16th day of March, 2018. Defendant and Counterclaim Plaintiff Kevin Dean Esq. Bar #788 Janna Dunagan Gau, Esq. Bar #6043 Eaton Peabody 80 Exchange Street PO. Box 1210 Bangor, ME 04402-1210 bkubetz@eatonpeabody.com gau@eatonpeabody.com