United States District Court, S.D. New York
June 6, 2005.
PARKROAD CORPORATION, Plaintiff,
CHINA WORLDWIDE SHIPPING CO. LTD., Defendants.
The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff filed a complaint seeking a writ of maritime
attachment and garnishment, pursuant to Rule B of the
Supplemental Admiralty Rules of the Federal Rules of Civil
Procedure ("Rule B"). Plaintiff made an ex parte application
for an order for process of maritime attachment to attach certain
monies belonging to defendant. To be entitled to such an order,
plaintiff must file an affidavit stating that, to the affiant's
knowledge, defendant cannot be found in this district.
Plaintiff's complaint must also contain a prayer for process to
attach the defendant's property, up to the amount sued for,
within this district in the hands of the named garnishees. Rule
B(1)(a), (b). "[L]ittle else is required and there need only be a
hearing after the attachment is served." Contichem LPG v.
Parsons Shipping Co., Ltd., 229 F.3d 426, 434 (2d Cir. 2000)
(citation omitted). The Court did not rule on plaintiff's initial
application, and requested a more specific proffer regarding the
basis for plaintiff's claim that defendant has or will have
property within the district in the hands of the named
garnishees. Plaintiff's counsel did make an additional proffer by
letter to the Court with copy to defendant's counsel.
Although not served with the complaint, defendant filed an
answer "thereby appearing generally and submitting to the
personal jurisdiction of this Court." (Letter from Greenbaum of
6/3/05, at 1). Defense counsel argues that since defendant has
generally appeared in this action and "submitted to the jurisdiction of the Court by an attorney of
record," it is present in this district and hence plaintiff is
precluded from obtaining an order for process of maritime
attachment. (Id. at 3). The Court disagrees.
In its answer, defendant admits that it is a business entity
existing by virtue of the laws of China and that its principal
place of business is in China. In plaintiff's supporting
affidavit, plaintiff details the negative results of its
investigation as to whether defendant can be found within this
district. Other than the filing of an answer by defense counsel,
defendant does not represent that it has any other contacts with
Rule B "envisions that the order [for process of maritime
attachment and/or garnishment] will issue when the plaintiff
makes a prima facie showing that he has a maritime claim
against the defendant in the amount sued for and the defendant is
not present in the district." Advisory Committee Notes to the
1985 Amendment. The defendant's presence in the district is to be
determined as of the date the complaint is filed. See, Constr.
Exporting Enters. v. Nikki Mar. Ltd., 558 F.Supp. 1372, 1375
(S.D.N.Y. 1983), appeal dismissed, 742 F.2d 1432 (2d Cir.
1983); see also, Heidmar, Inc. v. Anomina Ravennate Di
Armamento SP.A. of Ravenna, 132 F.3d 264, 267-68 (5th Cir.
1998). "Testing for presence after the complaint has been filed
would permit a defendant to wait until after a plaintiff files a
complaint and then appoint an agent for service of process for
the sole purpose of defeating attachment." Heidmar,
132 F.3d at 268. Defendant's contention is that its "submission to the
jurisdiction of this Court precludes the future levy of Process
of Maritime Attachment." (Letter from Greenbaum of 6/3/05, at 1).
However, since defendant was not found in this district when the
complaint was filed, plaintiff is not precluded from obtaining
the requested order for process of attachment. The defendant's general appearance by counsel in this matter
does not serve as a bar to the issuance of an order for process
of maritime attachment. The maritime attachment serves two
purposes. It "provides a mean to assure satisfaction if a suit is
successful" and it may provide a means "to insure a defendant's
appearance in an action." Aurora Mar. Co. v. Abdullah Mohamed
Fahem & Co., 85 F.3d 44, 48 (2d Cir. 1996) (citations omitted).
A plaintiff may obtain a maritime attachment even though the
party's primary objective is to obtain security to satisfy a
potential judgment, and not to obtain personal jurisdiction over
the defendant. See, Staronet Shipping Ltd. v. N. Star
Navigation Inc., 659 F.Supp. 189, 191 (S.D.N.Y. 1987).
Plaintiff's motive in seeking the attachment is irrelevant to the
determination of whether an attachment should be issued. Cent.
Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A.,
56 F.3d 359, 371 (2d Cir. 1995).
"The right to the attachment is not defeated by the filing of a
general appearance. But for the security of an attachment,
because there is no real presence here, the appearance will be of
no assistance to plaintiff in enforcing its rights, and it is not
equivalent to being found within the district." See, Nikki
Maritime, 558 F.Supp. at 1375; see also, HBC Hamburg Bulk
Carriers GMBH & Co. KG v. Proteinas Y Oleicos S.A. DE C.V., 2005
WL 1036127, *5 (S.D.N.Y. May 4, 2005) ("Without security, the
filing of an appearance by a foreign defendant provides little
assurance that any favorable judgment would be satisfied.").
Since plaintiff has made a prima facie showing that it has a
maritime claim against defendant in the amount sued for and that defendant is not present in the district, the Court will grant
the order for process of maritime attachment.
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