Summary
The Second Circuit held that Connecticut's prejudgment attachment statute, Conn. Gen. Stat. § 52-278e(a)(1), violated due process because it permitted ex parte attachment of real property without prior notice or hearing absent extraordinary circumstances, and because it failed to require the plaintiff to post a bond or other security. The court found that a nonpossessory attachment of real estate deprives the owner of a significant property interest, and that the risk of wrongful attachment was high given the fact-intensive nature of the underlying claims. The lack of exigent circumstances and the absence of a bond requirement rendered the statute unconstitutional on its face.
Topics
Practice areas
Questions Presented
- Whether Conn. Gen. Stat. § 52-278e(a)(l) violates due process by permitting ex parte prejudgment attachment of real estate without prior notice and opportunity for a hearing in the absence of exigent circumstances.
- Whether the statute violates due process by failing to require the plaintiff to post a bond or other security before obtaining the attachment.
Holdings
- Yes, the statute violates due process because it allows the issuance of ex parte attachments in the absence of extraordinary circumstances, which is required by the Due Process Clause as interpreted in Sniadach and its progeny.
- Yes, the lack of a bond or security provision is a constitutional defect. The state's vexatious litigation statute does not provide adequate protection because it requires separate litigation and may be unavailable if the underlying action settles.
Key quotations
“The Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50-day deprivations of property.” (854)
“Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process.” (856)
“A constitutionally valid statute must afford such protection, by bond or otherwise.” (857)
Factual background
Di Giovanni sued Doehr for assault and battery in Connecticut state court. At the inception of the lawsuit, before any process was served on Doehr, Di Giovanni applied for and obtained an ex parte attachment on Doehr's home to the value of $75,000. The attachment was issued based on Di Giovanni's affidavit stating that Doehr willfully and maliciously assaulted him, causing injuries. The affidavit was submitted without notice to Doehr, without a hearing, and without any bond or security. Doehr then filed a federal action challenging the constitutionality of the statute authorizing the attachment.
Procedural history
Di Giovanni sued Doehr in Connecticut state court for assault and battery and obtained an ex parte attachment on Doehr's home. Rather than moving to dissolve the attachment, Doehr filed a federal action alleging that the Connecticut attachment statute violated due process. The district court granted summary judgment for Di Giovanni, holding the statute constitutional. Doehr appealed.
Remand instructions
The case is remanded for entry of judgment in favor of Doehr declaring Conn. Gen. Stat. § 52-278e(a)(l) unconstitutional.