Burden of Ascertaining Defendant’s Presence

In an admiralty claim in personam, the burden of ensuring defendant’s presence in an admiralty proceeding is placed upon the plaintiff.  For this, the plaintiff has to ascertain that the defendant cannot be found within the district where the suit was filed.  Plaintiff has to include a prayer in his/her verified complaint for process to attach the defendant’s goods and chattels.  Thereafter, the plaintiff has to file an affidavit signed by the plaintiff or his/her attorney that the defendant cannot be traced to their best knowledge, information and belief.  When a verified complaint is supported by such an affidavit, the clerk shall immediately issue a summons and process of attachment and garnishment.

There is no clear cut definition for the expression “found within the district.”  Courts generally resort to a two-pronged inquiry to ascertain defendant’s absence.  Thus, the court will first ascertain whether defendant could be found within district in terms of jurisdiction, and second, if so, whether the defendant could be found for service of process.[i] A trial court’s finding that the defendant could have been so found must be affirmed unless the court applied erroneous legal standard or the court’s determination of subsidiary facts was clearly erroneous.[ii]

Maritime attachment is precluded under Fed. R. Civ. P. Supp. Admiralty Rule B(1)only upon proof that the defendants have engaged in sufficient activity in district or cause of action has sufficient contacts with district to permit court to exercise in personam jurisdiction and that the defendants can be found within geographical confines of district for service of process.[iii]

Past general jurisdictional contacts, unrelated to subject matter of jurisdiction, do not satisfy “jurisdictional presence” prong of test for vacating maritime attachment.[iv] If the plaintiff carries its burden of showing that an attachment satisfies the requirements, the district court may still vacate the attachment if the defendant can show that 1) the defendant is present in a convenient adjacent jurisdiction; 2) the defendant is present in the district where the plaintiff is located; or 3) the plaintiff has already obtained sufficient security for a judgment.[v]  Thus, defendant’s motion to vacate order and process of maritime attachment and garnishment was granted because defendant was present in Texas, where plaintiff had its headquarters and principal place of business.[vi]

[i] Oregon by State Highway Com. v. Tug Go Getter, 398 F.2d 873 (9th Cir. Or. 1968)

[ii] Id.

[iii] Integrated Container Service, Inc. v. Starlines Container Shipping, Ltd., 476 F. Supp. 119 (S.D.N.Y. 1979)

[iv] VTT Vulcan Petroleum, S.A. v. Langham-Hill Petroleum, Inc., 684 F. Supp. 389 (S.D.N.Y. 1988)

[v] ProShipLine Inc. v. Aspen Infrastructures Ltd., 533 F. Supp. 2d 422, 426 (S.D.N.Y. 2008).

[vi] Id.


Inside Burden of Ascertaining Defendant’s Presence