Means of Obtaining a Writ

A plaintiff can obtain attachment and garnishment of defendant’s property by incorporating a prayer in his/her verified complaint for process to attach the defendant’s goods and chattels.[i]  By doing so, the plaintiff may be entitled to invoke process to attach the defendant’s tangible or intangible personal property, up to the amount sued for, which is in the possession of the garnishees named in the process.  In addition, plaintiff shall file an affidavit, signed by the plaintiff or his/her attorney, stating that to the affiant’s knowledge or to the best of his/ her information and belief the defendant cannot be found within the district.

Attachment and garnishment of moneys and other property of defendant in admiralty and maritime claims brought in personam is permitted if defendant shall not be found within district.  A  Defendant Corporation is “found” within jurisdiction of federal district court if in recent past it has conducted substantial commercial activities in district and probably will continue to do so in future.[ii]  Thus, the requirement that the affidavit must accompany the complaint is satisfied if the plaintiff files a verified complaint with a prayer for attachment and then, upon discovery that the defendant is not within the district, files an affidavit to that effect within a reasonable time after that discovery is made.[iii]  The court may authorize attachment and garnishment on satisfaction of these requirements.  The clerk shall issue a summons and process of attachment and garnishment upon application without further court order.  If the plaintiff or his or her attorney certifies that exigent circumstances make review by the court impracticable, the court must issue a summons and process of attachment and garnishment and the plaintiff has the burden on a post-attachment hearing to show that exigent circumstances existed.[iv]

However, the District Court also has authority, under its inherent power to apply traditional maritime law, to issue writ of attachment and the court is not required to rely on any grant of authority under Rule B(1)[v]  Thus, the court’s finding that ship-owner was accorded due process through preseizure notice and postseizure hearing made ruling on facial constitutionality of Rule B(1) unnecessary and therefore unwarranted.[vi]

Courts may not conduct a fact-intensive inquiry into the substantiality and nature of a defendant’s business activities when determining whether an attachment should be maintained.[vii]

[i] Fed. R. Civ. P. Supp. Admiralty Rule B(1)(a)

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

[iii] Maryland Tuna Corp. v. The MS Benares, 429 F.2d 307 (2d Cir. N.Y. 1970)

[iv] Fed. R. Civ. P. Supp. Admiralty Rule B(1)(c)

[v] Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d 1528 (11th Cir. Ga. 1985)

[vi] Id.

[vii] Swiss Marine Servs. S.A. v. Louis Dreyfus Energy Servs. L.P., 598 F. Supp. 2d 414, 418 (S.D.N.Y. 2008)


Inside Means of Obtaining a Writ