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Summary of Supplemental Admiralty Rule B Attachment. Prepared by: Freehill Hogan & Mahar, LLP. Text of Rule B .

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summary of supplemental admiralty rule b attachment

Summary of Supplemental Admiralty Rule B Attachment

Prepared by:

Freehill Hogan & Mahar, LLP

text of rule b
Text of Rule B

If a defendant isnotfoundwithinthe district …a verifiedcomplaint may contain a prayer for process to attach the defendant’s tangibleorintangible personal property - up to the amount sued for - …The courtmustreview the complaint and affidavit, and if the conditions of this Rule B appear to exist, enteranorder so stating and authorizing process of attachment.

requirements for rule b
Requirements for Rule B
  • Defendant Not Found Within the District
  • Maritime Claim
  • Property Within the District
  • No Bar to the Attachment
defendant not found in district
Defendant Not Found in District
  • Depends on answer to two questions
    • Does the defendant do enough business within the district to be subject to the court’s in personam jurisdiction?
    • Does the defendant have an agent for service of process in the district?
must have a maritime claim
Must Have a Maritime Claim
  • Must have a valid maritime claim against the defendant(s)
    • Attorney’s fees & interest
  • Claims for indemnity / claims not ripe: may not support an attachment
  • Claims of alter ego status
  • Claims of paying agent status
property within the district
Property Within the District
  • Broad language – “tangible or intangible”
  • Electronic Fund Transfers
    • Why Southern District of New York?
    • State law – Winter Storm & Aqua Stoli cases
    • Transfers to or from the defendant
    • Still a hot issue
  • Letters of Credit
no statutory bar
No Statutory Bar
  • Must ensure there is no bar to pre-judgment attachment of defendant’s assets
    • Example: Foreign Sovereign Immunities Act
    • Contract precluding ancillary relief
    • Foreign litigation or arbitration
no need requirement
No Need Requirement
  • Some judges had held that there was a “need” requirement to Rule B
  • Overruled by Aqua Stoli case in 2006
steps for obtaining serving rule b order
Steps for Obtaining & Serving Rule B Order
  • Verified complaint & affidavit
  • Ex parte relief / without notice to defendant
  • Prima facie showing
  • Daily service on banks
  • Notice to defendant after property restrained
post attachment hearing rule e 4 f
Post-Attachment Hearing(Rule E(4)(f))
  • Defendant entitled to prompt hearing (within 3 days)
  • Plaintiff bears burden of proof
  • Prima facie showing / reasonable grounds / probable cause
  • Review of extraneous evidence
  • Grounds for challenging
counter security
  • Admiralty Rule E(2): for limited costs (e.g. bond premium, bank charges)
  • Admiralty Rule E(7): for counterclaim arising out of the same transaction
  • Court has discretion
  • Failure to post after court order