Local Rule Civil Rule E.1: Actions in Rem and Quasi in Rem

Civil Rule E.1 Actions in Rem and Quasi in Rem a. Judgment by Default. 1. No default judgment will be entered by the Clerk in any Admiralty proceeding, unless ordered by the Court. 2. On the expiration of the time to answer, if no answer or exceptions have been filed, the plaintiff or petitioner may have an ex parte hearing of the cause and a judgment without notice, except that; 3. If the claimant has appeared by attorney, seven (7) days' notice of the hearing must be given. In actions by the United States for forfeitures based upon federal statutory violations, the notice to an owner or other known potential claimants must be by certified or registered mail with return service to the last known mailing address. 4. If there has been no appearance by the owner of arrested or attached property, final judgment must not enter against such owner or property until it is shown by affidavit that notice of the suit has been given pursuant to Fed. R. Civ. P. Supp. B(2) and to: a) The owner of the property (other than a vessel) if known to the plaintiff or petitioner, and otherwise the owner's agent, if known; b) The owner, or managing owner, if more than one, of the vessel arrested or attached if known, and the owner or managing owner, if more than one, recorded as such in the records of the United States Coast Guard, in the case of a documented vessel of the United States or in the records of the California Department of Motor Vehicles, in a case where it has issued a certificate of ownership, and if notice cannot be given to such owner, the agent of the vessel, if any be known, within the district; 5. Any holder of a security interest in the vessel arrested or attached whose interest is recorded as described in (b) above. The notice to an owner or agent must be by personal service within the district, or if that cannot be done, by first class mail with return service, if available, to the mailing address of record, or in the absence of a recorded address, to the last known address. Notice to others may be by either of the foregoing methods. Failure to give notice as provided by this rule will be grounds for setting aside default under applicable rules, but will not affect the title to property sold under a judgement. b. Security for Costs and Marshal's Fees and Expenses; Forfeiture Actions Brought by the United States. 1. Costs. In an action covered by Rule E, a party may serve upon an adverse party and file notice to post security for costs and expenses. Unless otherwise ordered by a judge, the amount of the security will be $500.00. The party notified must post security within five days after service, unless exempted by law or by order of a judge upon good cause shown. Should the party fail to do so, it may neither file additional papers nor participate further in proceedings, except for the purpose of seeking relief from this Rule. In actions by the United States for forfeitures for federal statutory violations, security for costs must be paid pursuant to the procedures established in the customs laws, 19 U. S. C. §§ 1607 and 1608. 2. Marshal's Fees and Expenses. The marshal is not required to execute process in an action within Rule E unless deposit has been made covering fees and expenses of seizing and keeping the property arrested or attached for a minimum of fourteen (14) days. The party requesting execution of process must advance any additional fees and expenses from time to time as the marshal requests until the property is released or disposed of pursuant to Rule E. c. Execution of Process; Custody of Property. 1. Property in Custody of an Officer of the United States. Where property in the custody of an officer or employee of the United States is to be arrested or attached, the marshal must deliver a copy of the complaint and warrant for arrest or summons and process of attachment to such officer or employee, or if the officer or employee is not found within the district, then to the custodian of the property within the district, and must notify such officer, employee or custodian not to relinquish such property from custody except to the marshal, subject to further order of a judge. 2. Custody of Vessels; Keepers; Security; Expenses. Upon arrest or attachment of a vessel under process issued by the Court, the marshal must place one or more keepers thereon who must remain aboard until the vessel is released or disposed of pursuant to Rule E, unless otherwise ordered. On motion of any party, made after notice to the marshal and all parties who have appeared, a judge may order that custody of the vessel be given to the operator of a marina or similar facility, repair yard, or company regularly carrying on the business of ship's agent, if a judge finds that such firm or person can and will safely keep the vessel and has in effect adequate insurance to cover any liability for failure to do so. If the vessel must be moved to the place where custody will be maintained, a judge may also require insurance or other security to protect those having an interest in the vessel, as well as those claiming against her, from loss of or damage to the res, or liability of the vessel, incurred during the movement. The order allowing such custody must fix fees to be charged therefor and for any other services to be rendered the vessel and must provide for their payment to the marshal in advance. The provisions of this rule requiring insurance or security do not apply to the United States or to an officer, employee or agent thereof. 3. Vessel Operations. The marshal, deputies and keepers of a vessel arrested or attached must not interfere with the conduct of cargo and other operations normal to a vessel in berth, repair work, dry-docking or undry-docking (in the case of a vessel in a shipyard) unless a judge so orders. Neither the United States nor the marshal will be liable for the consequences of the continuation of any such activities during the arrest or attachment. Upon motion of any interested party (which may be made ex parte when the urgency of the matter requires) and for good cause shown, a judge may order the marshal to prevent or require the conduct of any operations of a vessel under arrest or attachment. d. Appraisement of Property for Purpose of Bonding. Orders for the appraisement of arrested or attached property for the purpose of bonding and sale may be entered as a matter of course by the Clerk of the District Court at the request of any interested party. If the parties do not agree in writing upon an appraiser, the Clerk will name one. Any party having a claim to the property may appeal immediately to the judge from such appointment. The appraiser must be sworn to the faithful and impartial discharge of duties before any federal or state officer authorized by law to administer oaths. The appraiser must give one day's notice of the time and place of making the appraisement to the attorneys of record in the proceeding, and must file the appraisement, when made, with the Clerk of the District Court. e. Sales. 1. Notice. Notice of a sale of arrested or attached property must be in accordance with 28 U.S.C. §§ 2001 – 2004. Unless otherwise ordered by a judge upon a showing of urgency or impracticality, notice of the sale of property must be published daily for at least seven (7) days immediately before the date of sale. 2. Confirmation. Unless otherwise provided in the order, in all public auction sales by the marshal under orders of sale in admiralty and maritime claims, the marshal must require of the last and highest bidder at the sale a minimum deposit in cash, certified check or cashier's check, of the full purchase price not to exceed $500, and otherwise $500 or ten percent of the bid, whichever is greater. The balance, if any, of the purchase price must be paid in cash, certified check or cashier's check before confirmation of the sale or within three days of dismissal of any filed opposition. When the Court determines on the merits that a plaintiff or plaintiff in intervention has a valid claim senior in priority to all other parties, that plaintiff in intervention foreclosing a properly recorded and endorsed preferred mortgage on, or other valid security interest in the vessel may bid, without payment of cash, certified check or cashier's check, up to the total amount of the secured indebtedness as established by affidavit filed and served on all other parties no later than seven (7) days prior to the date of sale. At the conclusion of the sale, the marshal must forthwith file a written report to the judge of the fact of sale, the price obtained and the name and address of the buyer. The Clerk of the District Court must endorse upon such report the time and date of its filing. If within three days, exclusive of Saturdays, Sundays, and legal holidays, no written objection is filed, the sale will stand confirmed as of course, without the necessity of any affirmative action thereon by a judge; except that no sale will stand confirmed until the buyer has complied fully with the terms of the purchase. If no opposition to the sale is filed, the expenses of keeping the property pending confirmation of sale must be charged against the party bearing expenses before the sale (subject to taxation as costs), except that if confirmation is delayed by the purchaser's failure to pay any balance which is due on the price, the cost of keeping the property subsequent to the three-day period hereinabove specified must be borne by the purchaser. A party filing an opposition to the sale, whether seeking the reception of a higher bid or a new public sale by the marshal, must give prompt notice to all other parties and to the purchaser. Such party must also, prior to filing an opposition, secure the marshal's endorsement upon it acknowledging deposit with the marshal of the necessary expense of keeping the property for at least five days. Pending the judge's determination of the opposition, such party must also advance any further expense at such times and in such amounts as the marshal will request, or as a judge orders upon application of the marshal or the opposing party. Such expense may later be subject to taxation as costs. In the event of failure to make such advance, the opposition must fail without necessity for affirmative action thereon by a judge. If the opposition fails, the expense of keeping the property during its pendency must be borne by the party filing the opposition. 3. Sale of Forfeited Property. In actions by the United States for forfeitures based upon federal statutory violations, the United States marshal must sell or dispose of forfeited property or property to be sold pursuant to an order for interlocutory sale, in a commercially reasonable manner and in accordance with law unless otherwise provided in the order.