United States District Court, D. Minnesota
Benjamin J. Court and Kevin P. Kitchen, Stinson Leonard
Street LLP, 150 South Fifth Street, Suite 2300, Minneapolis,
MN 55402 (for Plaintiff); and
A. Sinclair and John M. Krings, Jr., Kaler-Doeling, PLLP,
3429 Interstate Boulevard South, Fargo, ND 58103 (for
N. Leung United States Magistrate Judge
matter is before the Court on Plaintiff Farm Credit
Leasing's Motion for an Order for Seizure and Delivery of
Property (ECF No. 5). For the reasons set forth below, the
Court will grant the motion in part and deny it in part.
April 12, 2019, Plaintiff filed a complaint against
Defendant, alleging a claim of unjust enrichment and a claim
for delivery pursuant to Minnesota Statutes sections 565.21,
et seq. and Federal Rule of Civil Procedure 64. (ECF
No. 1, pp. 6-7). The complaint relates to a lease agreement
the parties entered into regarding a 2013 Bron Self-Propelled
Drainage Plow (“Plow”). (ECF No. 1, p. 2).
after filing the complaint, Plaintiff moved for an order of
seizure and delivery of the plow. (ECF No. 5). Plaintiff
seeks a court order requiring Plaintiff to surrender the Plow
or permitting law enforcement to enter any property where the
Plow may be located and take possession of it. Plaintiff
further requests that it be permitted to immediately sell or
dispose of the Plow and indicates it will post a bond of
$360, 000, which is 1.5 times the value of the Plow.
22, 2014, the parties entered into a lease agreement by which
Defendant agreed to take possession of the plow, keep it at a
certain address, and use it for his trade and business. (ECF
No. 10, pp. 2-3). Defendant further agreed to make 60 monthly
payments of $9, 542.05 for the Plow. (ECF No. 10, p. 4). The
agreement provided that if Defendant defaulted on the lease,
Plaintiff could take immediate possession of the Plow and
sell it, lease it, or otherwise dispose of it. (ECF No. 10,
failed to make the monthly payments required under the terms
of the lease. (ECF No. 10, p. 5). Plaintiff issued a notice
of default and notice of acceleration after Plaintiff failed
to cure. (ECF No. 10, pp. 5-6). The current value of the plow
is approximately $240, 000. (ECF No. 6). The plow is located
currently “in a field in a rural area near Morris,
Minnesota.” (ECF No. 10, p. 5).
concedes that he has defaulted under the terms of the lease
and that he is liable for any remaining deficiency. (ECF No.
13, pp. 1-2). He further admits that he allowed a third party
to use the Plow and that he does not know where it is. (ECF
No. 13, p. 1). Defendant indicates that the third party has
not cooperated with him in providing the Plow's location.
(ECF No. 13, p. 1). He also concedes that Plaintiff is
entitled to sell or otherwise dispose of the Plow. (ECF No.
13, p. 1). Finally, he asks that the Court grant the relief
Plaintiff seeks and that the Court not require Plaintiff to
post a bond in this matter. (ECF No. 13, p. 2).
certain cases, Minnesota law permits a claimant to recover
property after service of a summons and complaint, but before
final judgment is entered. Minn. Stat. § 565.23, subd.
1. To recover property before entry of a final judgement, the
claimant must file an affidavit identifying: (1) the
particular property to be recovered; (2) the facts giving
rise to claimant's right of possession; (3) the facts
showing the respondent is wrongfully detaining the property;
(4) the date and original amount of any obligation for which
the property was offered as security; (5) if appropriate, the
specific contractual provision the claimant breached; and (6)
a good faith approximation of the current market value of the
property. Id. at subd. 1(a)-(f). The Court must
order seizure and delivery to the claimant if the claimant
demonstrates “a probability of success on the
merits” and posts the appropriate bond. Minn. Stat.
§ 565.23, subd. 3. The Court may not, however, order
seizure of property before entry of a final judgment if the
respondent shows: (1) a fair defense to the merits of the
claim; (2) that his or her interests cannot be protected by
the bond filed by claimant; and (3) the harm suffered by the
respondent would be greater than the harm suffered by the
claimant. Id. at subd. 3(a)-(c). Under Federal Rule
of Civil Procedure 64, the remedies authorized by Minnesota
Statute section 565.23 are also available to federal courts.
affidavit (ECF No. 10) complies with Minnesota Statute
section 565.25. In addition, given Defendant's
concessions regarding his default in this matter, there can
be no dispute that Plaintiff has demonstrated a probability
of success on the merits of its claim. Plaintiff has also
demonstrated that it faces irreparable harm if an order for
seizure and delivery is not issued. Plaintiff is therefore
entitled to relief.
Court will not, however, grant Plaintiff's motion in its
entirety. Plaintiff seeks an order permitting law enforcement
to enter any property where the Plow may be located and to
then take immediate possession of it. In similar cases in
this district, courts have issued orders permitting law
enforcement to enter property only when there is probable
cause to believe the equipment is located on that property.
See, e.g., CNH Indus. Capital Am. LLC v.
Richland Farms P'ship, No. 18-cv-2537 (PJS/DTS),
2018 WL 5785954, at *1 (D. Minn. Nov. 5, 2018); CNH
Indus. Capital Am. LLC v. Johnson, No. 18-cv-2795
(PJS/DTS), 2018 WL 5784926, at *1 (D. Minn. Nov. 5, 2018).
Under the circumstances, particularly because the Court will
authorize law enforcement to enter any building or enclosure
if necessary to take the property, the Court is not willing
to grant Plaintiff a blanket order to seize the Plow from
any property. Instead, the Court will authorize law
enforcement only to seize the Plow from Defendant's
residence, place of business, or ...