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Presence of Defendant as Precluding Writ

Maritime attachment and garnishment are conditional remedies and courts will not grant such remedies except on presentation of an affidavit by the plaintiff that the defendant cannot be found in the district.  A defendant’s presence is essential both for jurisdictional purposes and for service of process.

For jurisdictional purposes, the court inquires whether or not the defendant is present within the district by reason of activities on its behalf by authorized agents so as to subject it to jurisdiction in in personam proceedings.  If no such activity can be traced, the court will presume that the defendant cannot be found within the district and this ground alone would be sufficient to support the attachment.[i]  For instance, a corporation is said to be found in a particularly district if t has conducted substantial commercial activities in the district in the recent past and probably will continue to do so in the future.[ii]

In order to satisfy the second prong of the inquiry, the court will ascertain whether the corporation, or its officer or agent, is physically present within the state to receive service of process.[iii]  Thus, the test is quite arbitrary in its specification of the circumstances because in spite of plaintiff’s desperate need for security, a court will not authorize attachment against a defendant who is present in the district in both senses.  “This test amounts to a somewhat arbitrary compromise which assumes that the plaintiff will not require the protection of an attachment for security, nor should the defendant be subjected to it, if the defendant is present in both senses, and assumes on the other hand that the plaintiff’s interests are not adequately protected despite the ability to perfect In personam jurisdiction if the defendant is not present in both senses.”[iv]

A counsel does not become an agent for service of process just because of the fact that he/she renders legal services.[v]  It is to be noted that Fed. R. Civ. P. 4(i), applies only to defendants who are not found within the state in which the district court is held.[vi]

Thus, the presence of a defendant within the state, but outside the federal district in which the action is filed, will not preclude attachment and garnishment under the Supplemental Admiralty Rules.

[i] Fed. R. Civ. P. 4, Navieros Inter-Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 315 (1st Cir. P.R. 1997)

[ii] Oregon Lumber Export Co. v. Tohto Shipping Co., 53 F.R.D. 351, 352 (D. Wash. 1970)

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

[iv] Id. At 122

[v] State v. Cortelle Corp., 73 Misc. 2d 352 (N.Y. Sup. Ct. 1972)

[vi] Integrated Container Service, Inc., 476 F. Supp. 119

Inside Presence of Defendant as Precluding Writ