United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court.
the Court is Plaintiff Eta Computer, Inc.'s Ex Parte
Application for Writ of Attachment (Dkt. 7). For the reasons
explained below, the Court will issue an Order to Show Cause,
requiring Defendants to appear before this Court on January
2, 2019, at 1:30 p.m. to show cause why a prejudgment writ of
attachment should not issue. The Court will also grant
plaintiff's request to issue a writ of attachment
immediately, before the show-cause hearing.
Eta Compute, Inc. alleges that its former Chief Financial
Officer, Defendant Timothy D. Semones, in concert with his
spouse, Defendant Susan Desko, stole $3 million from Eta to
fund their lifestyle, including the ongoing construction of a
multi-million home for themselves in Idaho. Compl.,
Dkt. 1, ¶ 1.
discovered the theft in late November 2018, when its CEO
“noticed a discrepancy in Eta's Wells Fargo bank
account reflecting a balance of approximately $1, 800, 000
less than he expected.” Id. ¶ 27. When
Mr. Semones was asked about the discrepancy, he initially
attempted to cover up the theft by altering an Eta bank
quickly ascertained that the bank statement was altered, and
a few days later, on December 6, 2018, Mr. Semones admitted
that during the past year or so, he had transferred a total
of $3 million from Eta's account to defendants' bank
accounts “without the knowledge or permission of anyone
at Eta.” Id. ¶ 22; see also Id.
¶¶ 13-21 (detailing the separate transfers). Mr.
Semones further explained that he had attempted to repay some
of the stolen money in May 2018, by transferring $1.5 million
from Defendant Inphi Partners, LLC's checking account to
Eta's account. The net result, according to plaintiff, is
that defendants continue to wrongly hold $1.5 million that
rightfully belongs to Eta.
parties initially attempted to resolve this matter privately.
During the December 6, 2018 interview, Mr. Semones allegedly
said he would gather all Defendants' bank statements and
provide them to Eta's attorneys. The next day, Mr.
Semones reported he was “in the process of gathering up
statements.” Magarian Aff. ¶ 3, Ex. A.
But those statements still have not been provided to Eta,
and, further, Eta reports that when Mr. Semones listed assets
he would have available to repay Eta, he mentioned $450, 000
in a Wells Fargo brokerage account, but, at the same, time,
said he intended to spend that money - including for his
child to attend college overseas and to provide for
“other needs.” See App., Dkt. 8, at
alleges that, given Mr. Semones' past admitted theft, his
current refusal to cooperate with plaintiff, and his stated
intent to spend monies in the Well Faro brokerage account,
plaintiffs have demonstrated that defendants' bank
accounts “are subject to imminent transfer or
concealment.” App., Dkt. 8, at 17.
Additionally, plaintiff has identified seven vehicles owned
by defendants and argues that these vehicles are likewise in
danger of imminent transfer or concealment.
GOVERNING LEGAL STANDARD
request a writ of attachment, as authorized by the Idaho
statutory law, pursuant to Federal Rule of Civil Procedure
64. Rule 64 which authorizes district courts to employ state
law remedies for attachment. See Fed. R. Civ. P.
Idaho statutory law, before a writ of attachment may issue,
plaintiffs must demonstrate: (1) that the defendant is
indebted to the plaintiff; (2) that the debt is upon a
contract, express or implied, for the direct payment of
money; and (3) that the payment of the same has not been
secured by any mortgage, deed of trust, security interest or
lien upon real or personal property; and (4) the attachment
is not sought and the action is not prosecuted to hinder,
delay, or defraud any creditor of the defendant. See
Idaho Code 8-502(a).
plaintiff files an application of a writ of attachment, the
court “shall, without delay, examine the complaint and
affidavit, and if satisfied that they meet the requirements
of subdivision (a), it shall issue an order directed to the
defendant to show cause why a writ of attachment should not
issue.” Idaho Code § 8-502(b).
addition, the Court may “prior to a hearing”
issue a writ of attachment “if probable cause
appears…[b]y reason of specific facts shown, the
property specifically sought to be attached is a bank account
subject to the threat of imminent withdrawal…or [the
property] is in immediate danger of concealment or removal
from this state, or of sale to an innocent purchaser, and the
holder of such property threatens ...