United States District Court, D. New Hampshire
Lyndsey M. Cowhig
Megastore Auto Group, Inc., et al.
R.L. Major, Esq., Sean Robert List, Esq., Robert M. Waters,
Jr., Esq., Samuel J. Donlon, Esq., Joshua Henry Bearce, Esq.,
Matthew R. Johnson, Esq.,
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE
this court's federal-question and supplemental
jurisdiction, plaintiff Lyndsey M. Cowhig brought claims
against Megastore Auto Group, Inc. for sexual harassment,
retaliation, and wrongful termination and against
Megastore's president, Robert M. Waters, Jr., for
retaliation under an aiding and abetting theory pursuant to
New Hampshire Revised Statutes Annotated § 354-A.
See doc. no. 33. In May 2018, a jury found Megastore
liable for sexual harassment and awarded Cowhig $110, 000 in
total damages. See doc. no. 115. The jury found for
the defendants on Cowhig's remaining claims, including
her retaliation claim against Waters. See id. The
clerk of court entered judgment in accordance with the
jury's verdict. Doc. no. 115. Following judgment, Judge
Barbadoro awarded Cowhig $158, 575.50 in attorney's fees.
See June 12, 2018 Endorsed Order.
that Megastore was liquidating its assets to avoid paying the
judgment and fees award, Cowhig filed a postjudgment petition
to attach certain vehicles in Megastore's possession.
Doc. no. 117. Judge Barbadoro referred that motion to the
undersigned, and the court granted the attachment following a
hearing. See June 29, 2018 Endorsed Order. At the
hearing, Cowhig orally moved for postjudgment discovery under
Federal Rule of Civil Procedure 69(a)(2), which the court
took under advisement. Before the court had occasion to rule
on that motion, however, Megastore moved for a court order
requiring Cowhig to pay certain liens on the attached
vehicles. See doc. no. 136. On July 31, 2018, the
court granted Cowhig's oral motion for discovery and
denied Megastore's motion with respect to the liens. Doc.
no. 139. In that order, the court cautioned that "at
some point the parties' post-judgment requests may exceed
the scope of [the] court's enforcement
jurisdiction." Id. at 4 (citation omitted).
now seeks to secure her judgment through a petition to attach
Waters's real estate and tangible assets. See
doc. no. 143. She contends that the court has jurisdiction
over this petition as part of its ancillary jurisdiction to
enforce its judgments and argues that she should be allowed
to execute her judgment against Waters individually because
Megastore and Waters are alter egos and Waters coordinated
Megastore's attempts to liquidate its assets. See
id. Waters, who represented himself at trial, secured
counsel to defend against Cowhig's petition and objects
to the attachment. See doc. no. 149.
court cannot reach the merits of Cowhig's petition unless
it has the jurisdiction to do so. See Gunn v.
Minton, 568 U.S. 251, 256 (2013) (citation and internal
quotation marks omitted) ("Federal courts are courts of
limited jurisdiction, possessing only that power authorized
by Constitution and statute."). Cowhig contends her
petition falls within the court's ancillary enforcement
jurisdiction. Such jurisdiction "is a creature of
necessity, which grants a federal court the inherent power to
enforce its judgments." Burgos-Yantín v.
Municipality of Juana Díaz, 909 F.3d 1, 3 (1st
Cir. 2018) (internal quotation marks omitted) (quoting
Peacock v. Thomas, 516 U.S. 349, 356, 359 (1996)).
But a court's enforcement jurisdiction is not without its
limits. Ancillary jurisdiction "does not exist where the
relief sought is of a different kind or on a different
principle than that of the prior decree." Id.
(internal quotation marks and brackets omitted) (quoting
Peacock, 516 U.S. at 358). "Likewise, ancillary
enforcement jurisdiction is inapt when a party seeks to
impose an obligation to pay an existing federal judgment on a
person not already liable for that judgment."
Id. at 4 (quoting Peacock, 516 U.S. at
first blush, Cowhig's petition might appear to fall
comfortably within the court's ancillary enforcement
jurisdiction. Cowhig is, after all, seeking an attachment,
and the Supreme Court has approved the exercise of ancillary
jurisdiction over attachment proceedings in certain contexts.
See Peacock, 516 U.S. at 356-57 (collecting cases).
Similarly, the First Circuit has observed "that federal
enforcement jurisdiction is clear when state procedural
mechanisms - such as garnishment or attachment - allow the
court to reach assets of the judgment debtor in the hands of
third parties in a continuation of the same action."
Burgos-Yantín, 909 F.3d at 6 (citation and
internal quotation marks omitted).
in a typical postjudgment attachment proceeding, however,
Cowhig's current petition is not a mere continuation of
the underlying action. Cowhig does not attempt to collect her
judgment from Waters based solely on Megastore's
liability on the sexual-harassment claim. Nor is she simply
trying to attach Megastore assets that happen to be in
Waters's possession. Rather, Cowhig now argues for the
first time that Waters should be personally responsible for
the judgment because he and Megastore are alter egos.
"[A]n alter ego claim presents a substantive theory
seeking to establish liability on the part of a new party not
otherwise liable." U.S.I. Properties Corp. v. M.D.
Const. Co., 230 F.3d 489, 499 (1st Cir. 2000) (citation
omitted). In part for this reason, the Supreme Court has held
that ancillary jurisdiction does not extend to a successive
action in which a federal judgment creditor attempts, under a
corporate-veil theory, to enforce a judgment against an
individual who was found not liable in the underlying action.
See Peacock, 516 U.S. 356-60. The First Circuit
reached the same conclusion when an alter-ego claim was
raised by a judgment creditor for the first time in a
supplemental proceeding in the original action. See
U.S.I., 230 F.3d at 496-501. Because Cowhig never
previously raised her alter-ego theory in this case, and
because the jury found in Waters's favor at trial, the
court likewise does not have ancillary jurisdiction over
seeks refuge in the fact that Waters, as a defendant in the
underlying action, is not a new party. This argument is
undermined by the Supreme Court's decision in
Peacock. As noted, the judgment creditor in that
case sought to extend liability under a corporate-veil theory
to an individual who, like Waters, was named as a defendant
but found not liable in the underlying action.
Peacock, 516 U.S. at 351-52. The Court concluded
that the fact that individual was not otherwise liable and
that the attempt to execute the judgment was based on
"entirely new theories of liability" meant that
ancillary jurisdiction did not extend to the enforcement
action. Id. at 358-60. The same as true in this
case. Waters's status as a defendant is therefore
court is likewise unpersuaded by Cowhig's argument that
ancillary jurisdiction extends to her petition because her
alter-ego claim and her underlying claims are factually
interdependent. While the First Circuit has "not rule[d]
out the possibility that some alter ego claims will present
sufficiently intertwined factual issues to warrant [ancillary
jurisdiction]," U.S.I., 230 F.3d at 499 n.9,
Cowhig makes no attempt to explain why that is so here. Nor
has she cited any case in which a federal court concluded
that it possessed ancillary jurisdiction over an alter-ego
claim raised for the first time after judgment was entered.
The court therefore declines to find jurisdiction on this
also suggests that this court has ancillary jurisdiction over
her petition because state-court attachment procedures are
available in federal court under Federal Rule of Civil
Procedure 64. The First Circuit rejected an analogous
argument in U.S.I., noting that the availability of
state-law enforcement procedures in federal proceedings under
Rule 69(a) did not establish federal enforcement jurisdiction
over those procedures. See 230 F.3d at 498 n.8. In
so concluding, the court emphasized that "as courts of
general jurisdiction, [state courts] are free to employ any
enforcement mechanisms warranted by state law," whereas
"the limited nature of federal jurisdiction in general
confines the scope of enforcement jurisdiction as well."
Id. The court further noted that the Federal Rules
of Civil Procedure, by their express terms, "can neither
expand nor limit the jurisdiction of the federal
courts." Id. (citing Fed.R.Civ.P. 82). Because
this reasoning has equal force in the context of Rule 64,
Cowhig's reliance on that rule is unavailing.
Cowhig argues that a state court considering her petition to
attach would "not have the benefit of understanding the
unique context of this case . . . ." Doc. no. 143-1 at
3-4. The Supreme Court made clear in Peacock that
convenience and judicial economy alone cannot justify
extending ancillary jurisdiction to claims over which such
jurisdiction would not otherwise lie. See 516 U.S.
at 355 (citation and internal quotation marks omitted)
("[N]either the convenience of litigants nor
considerations of judicial economy can justify the extension
of ancillary jurisdiction over Thomas' claims in a
subsequent proceeding."). Because there is no other
basis for ancillary jurisdiction over her petition,
Cowhig's convenience and judicial economy arguments
of these reasons, the court concludes that it does not have
ancillary enforcement jurisdiction over Cowhig's petition
to attach (doc. no. 143). Because Cowhig does not assert, and
the court cannot discern, any independent basis for federal
jurisdiction over that petition, see U.S.I., 230
F.3d at 500, the district judge should dismiss the petition
without prejudice to Cowhig refiling it as a separate action
in state court. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt
of this notice. See Fed.R.Civ.P. 72(b)(2). The
fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and