Local Rule Rule B: ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS

Rule B. ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS

(1) Definition of "Not Found Within the District." In an action in personam filed under Supplemental Rule (B), a defendant will be considered "not found within the district" if the defendant does not have a physical address locatable within the district where the action is filed by means of typical reference sources such as a telephone directory or listing with the Secretary of State or if there is evidence that despite the listing of a physical address within the district, no individual is present at any reasonable time to receive a summons and complaint as contemplated by FED. R. CIV. P. 4(d). The plaintiff or the plaintiff's attorney must sign and file with the complaint an affidavit setting forth the basis for classifying the defendant as "not found within the district." See Admiralty Form 28 on the courts' Websites.

(2) Pre-seizure Requirements. In accordance with Supplemental Rule (B)(1), the process of attachment and garnishment will issue only after one of the following conditions has been met:

(a) Judicial Review Before Issuance. Except as provided in L.A.R. B(3)(b), a judicial officer must review the verified complaint and any other relevant case papers before the clerk issues the requested process of attachment and garnishment. No notice of this pre-arrest judicial review is required to be given to any person or prospective party.

If the judicial officer finds that probable cause exists to issue the process of attachment and garnishment, plaintiff must prepare an order that substantially conforms to Admiralty Form 1 on the courts' Websites for the judicial officer's signature directing the clerk to issue the process.

Upon receipt of the signed order, the clerk will enter the order and issue the summons and process of attachment and garnishment as contemplated by L.A.R. B(3)(c). Thereafter the clerk may issue supplemental process without further order of court.

(b) Certification of Exigent Circumstances. If the plaintiff files a written certification that exigent circumstances make review by the court impracticable, the clerk will issue a summons and the process of attachment and garnishment in accordance with L.A.R. B(2)(c).

(c) Preparation and Issuance of the Process of Attachment and Garnishment. Plaintiff must prepare the summons and the process of attachment and garnishment and deliver the documents to the clerk for filing and issuance.

The process of attachment and garnishment must substantially conform to Admiralty Form 2 on the courts' Websites and must give adequate notice of the post-seizure provisions of L.A.R. B(4).

(d) United States Marshal's Return of Service. The United States Marshal must file a return of service indicating the date and manner in which service was perfected and, if service was perfected upon a garnishee, the United States Marshal will indicate on the return the name, address, and telephone number of the garnishee.

(e) Use of Substitute Custodian. If a substitute custodian is used in an attachment or garnishment proceeding, the plaintiff must follow the same requirements of L.A.R A(5).

(3) Notification of Seizure to Defendant. In an in personam action under Supplemental Rule (B), plaintiff or garnishor must initially attempt to perfect service of the notice in accordance with Supplemental Rule (B)(2)(a) or (b).

However, when service of the notice cannot be perfected in accordance with Supplemental Rule (B)(2)(a) or (b), plaintiff or garnishor must by affidavit offer proof required by Supplemental Rule (B)(2)(c) that the plaintiff or the garnishor has tried diligently to give notice of the action to the defendant but has been unable to do so.

(4) Post-attachment Review Proceedings

(a) Filing a Required Answer

(i) By Defendant. In accordance with Supplemental Rule (E)(4)(f), any person who claims an interest in property seized under Supplemental Rule (B) must file an answer and claim against the property within 30 days after service of process has been executed, whether by attachment or service on the garnishee. The answer and claim must describe the nature of the claimant's interest in the property and articulate reasons why the seizure should be vacated. The claimant must serve a copy of the answer and claim upon plaintiff's counsel, the United States Marshal, and any other party to the litigation, along with a Certificate of Service indicating the date and manner in which service of the answer and claim was made.

(ii) By Garnishee. The garnishee must file an answer to the Complaint and respond to any discovery served with the Complaint within 21 days after service.

(b) Hearing on the Answer and Claim. The claimant may be heard before a judicial officer not less than three days after the answer and claim has been filed and served on the plaintiff.

If the court orders that the seizure be vacated, the judicial officer may also award reasonable attorneys' fees, costs and other expenses incurred by any party as a result of the seizure.

If the seizure was predicated upon a showing of "exigent circumstances" under L.A.R. B(3)(b), and the court finds that exigent circumstances did not exist, the court may award reasonable attorneys' fees, costs, and other expenses incurred by any party as a result of the seizure.

(5) Procedural Requirement for the Entry of Default. In accordance with FED. R. CIV. P. 55, a party seeking the entry of default in a Supplemental Rule (B) action must file a motion and supporting legal memorandum and offer other proof sufficient to demonstrate that due notice of the action and seizure have been given in accordance with L.A.R. B(4).

Upon review of the motion, memorandum, and other proof, the clerk should, where appropriate, enter the default of a party in accordance with FED. R. CIV. P. 55(a) and will serve notice of the entry of default upon all parties who have appeared in the action.

(6) Procedural Requirements for the Entry of Default Judgment. Not later than 30 days after notice of the entry of default, the party seeking the entry of default judgment must file a motion with appropriate exhibits and supporting legal memorandum sufficient to support the entry of default judgment. The moving party must serve these papers upon every other party to the action and file a Certificate of Service indicating the date and manner in which service was made.

A party opposing the entry of default judgment must file written opposition to the motion within seven days of receipt of the motion. Unless otherwise ordered by the court, the motion for the entry of default judgment will be heard without oral argument.

Unless a motion to be continued is granted, a default judgment establishes a right on the part of the party or parties in whose favor it is entered and will be considered prior to any claims of the owner of the defendant property against which it is entered and to the remnants and surpluses thereof but does not establish plaintiff's priority of entitlement to possession of defendant property over non-possessory lien claimants. Obtaining a judgment by default will not preclude the party in whose favor it is entered from contending and proving that all, or any portion, of the claim or claims encompassed within the judgment are entitled to priority over any non-possessory lien claims.