DS-Rendite Fonds Nr. 108 VLCC Ashna GmbH & Co Tankschiff KG v. Essar Capital Ams. Inc.
Opinion
DS-Rendite Fonds Nr. 108 VLCC Ashna GmbH & Co Tankschiff KG ("DS-Rendite") appeals from Judge Daniels's denial of its motion for an attachment and garnishment *47 order under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. We affirm.
BACKGROUND
We assume that the facts alleged in the underlying complaint are true.
Ashcroft v. Iqbal
,
Appellant's complaint asserted a claim for breach of a maritime contract against appellees ETIL, ESL, and ESLL and simultaneously sought a maritime attachment and garnishment order against Essar Capital Americas Inc., Essar Capital LLC, Essar Group LLC, Essar Minerals, Inc., Essar Steel Algoma Inc., and Essar Trading Inc. (collectively "Garnishees") in the amount of $10,586,346.63. On September 8, 2015, the district court denied the motion for attachment. After the district court's denial of a motion for reconsideration, this appeal followed.
DISCUSSION
This is a classic
quasi
in
rem
proceeding. The plaintiff is seeking to assert a claim against a defendant, over whom the court does not (otherwise) have personal jurisdiction, by seizing property of the defendant (alleged here to be in the hands of a third party). Although Rule B states that it applies to "an
in
personam
action," Fed. R. Civ. P. Supp. R. B(1), a maritime
in
personam
claim is more appropriately styled a
quasi
in
rem
action. "[T]he nature of the jurisdiction the court acquires by a Rule B attachment is properly denominated '
quasi
in
rem
' because any judgment rendered is limited to the value of the attached property."
Teyseer Cement Co. v. Halla Mar. Corp.
,
*48
The concept of
quasi
in
rem
jurisdiction evolved in the Lord Mayor's Court in London and "served the useful purpose of mitigating the rigors of securing personal jurisdiction" over elusive defendants. Paul D. Carrington,
The Modern Utility of Quasi in Rem Jurisdiction
,
The
quasi
in
rem
device has proved particularly useful in admiralty, where defendants are so often transitory that the "process of foreign attachment is known of old in admiralty."
Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A.
,
In a Rule B proceeding, "the
res
is the only means by which a court can obtain jurisdiction over the defendant."
Shipping Corp. of India v. Jaldhi Overseas Pte Ltd.
,
With regard to the standard of review, existing case law in this circuit relates only to removal of Rule B attachments.
See
India S.S. Co. v. Kobil Petroleum Ltd.
,
To secure an
ex parte
order of attachment under Rule B, a plaintiff "bears the burden of establishing a right to attachment."
Jensen v. Rollinger
, No. 13 Civ. 1095 (DAE),
The issue in the present matter is whether appellant's complaint and affidavit make legally sufficient allegations that identifiable property of the defendants, tangible or intangible, is "in the hands of garnishees."
As a general matter, the pleading requirements under Rule B are said to be easily met.
See
Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd.
,
However, there are limits to the ease of attachment under Rule B. An existing attachment order is not valid where the attachment and garnishment is "served before the garnishee comes into possession of the property,"
Reibor Int'l Ltd. v. Cargo Carriers (KACZ-CO.) Ltd.
,
Courts have also recognized the need for limits to prevent abuse.
See
Maersk, Inc. v. Neewra, Inc.
,
In recent years, moreover, perhaps in response to motions for broad attachments based entirely on conclusory allegations as to the property to be attached, district courts have required a minimal specificity of factual allegations identifying the defendant's property to be attached before issuing Rule B attachments and holding Rule E hearings.
See
*50
Marco Polo Shipping Co. Pte. v. Supakit Prod. Co.
,
Marco Polo
held that a plaintiff seeking to maintain an existing Rule B attachment "must at least set forth enough facts to render it plausible that the defendant's funds [are] present in the district."
Marco Polo
,
Neither Rule B nor Rule E provide pleading standards regarding the identification of the property to be attached and garnished. Each rule seems to assume that at least the nature of the property is known. We agree with the application of
Twombly
standards to the identification of the property to be attached under Rule B.
See
Twombly
,
The present complaint fails to meet that standard. It alleges only in entirely conclusory fashion that the alleged garnishees do business with the defendants. The complaint alleges that "[e]ach of the Garnishees, on information and belief, holds property of Essar," namely "funds held by ... Garnishee[s] which are due and owing to Defendants." App'x at 11, 13. The district court denied the motion for attachment, finding that these entirely conclusory allegations "d[id] not provide a sufficient basis to conclude that there are attachable assets in this District." Id. at 22.
When DS-Rendite moved for reconsideration, its brief in support of the motion contained new factual allegations. 3 The brief stated that "Essar Group," an entity nowhere mentioned in the complaint, "is an indisputably large multinational corporation with thousands of affiliates and subsidies." Id. at 28. "Furthermore," appellant *51 contended, "given that Defendants are subsidiaries or affiliates of Essar Group, and the Garnishees are also subsidiaries or affiliates of Essar Group, it is highly likely that the Garnishees owe money to Defendants, and thus have attachable assets within this District." Id. 4 The district court found that these assertions also failed to "sufficiently allege[ ] that Defendants are entitled to a debt owed by the Garnishees." Id. at 35.
We agree. The complaint's caption lists six companies as garnishees but nowhere alleges facts about the commercial ventures of the garnishees or their business relationships, much less transactions with the three companies named as defendants. Id. at 10. Instead, the complaint states only in conclusory terms that "[e]ach of the Garnishees, on information and belief, holds property of Essar," but does not allege facts explaining why any one of those six companies would hold property of "Essar," which is actually three separate companies. Id. at 11.
Even assuming
arguendo
that, as a general matter, the defendants and garnishees are somehow "affiliates or subsidiaries" of the same "group"-an allegation, as noted
supra
, absent from appellant's complaint-it does not follow that there is a specific entitlement of one of the defendants to a debt owed by a garnishee,
see
Alaska Reefer Mgmt. LLC v. Network Shipping Ltd.
,
In
Marco Polo
, the Southern District likewise rejected the contention that "any likelihood short of impossibility that the defendant's funds could be restrained in the future is sufficient to meet the requirement that the defendant's property be found within the district."
While the availability of a swift Rule E hearing may, in a district court's discretion, allow room for a relaxed pleading standard with regard to an attachment, the pleading must provide targeted guidance as to the property that is the subject of the hearing. As appellant's district court brief in support of the motion for reconsideration made clear by presenting new factual allegations not pleaded in the complaint, see Note 4, supra , a Rule E hearing in this matter would have no focus and be little more than a prolonged fishing expedition.
CONCLUSION
For the reasons stated above, it was within the district court's discretion to *52 deny appellant's motion for an order of maritime attachment and garnishment. Should appellant wish to renew its application, appellant may file a complaint and motion according to the standards set forth in this opinion. We affirm.
Appellant's complaint refers to "ESSL" as guaranteeing ETIL and ESL's obligations, App'x at 12, but we assume that it means "ESLL."
For the sake of efficiency, we assume the allegations contained only in appellant's briefs and not in their complaint are properly before us. They are not.
See
Puglisi v. United States
,
In a footnote, DS-Rendite revealed the paucity of its allegations by stating: "For instance, Garnishee Essar Steel Algoma, Inc. actively engages in business transactions with Essar Group affiliate, Essar Steel Minnesota LLC," another company nowhere mentioned in the complaint, and "[t]hus, it is more than likely that the similar Essar Group affiliates interact similarly in transacting business with other Essar Group affiliates." App'x at 28 n.2.
Reference
- Full Case Name
- DS-RENDITE FONDS NR. 108 VLCC ASHNA GMBH & CO TANKSCHIFF KG, Plaintiff-Appellant, v. ESSAR CAPITAL AMERICAS INC., Essar Capital LLC, Essar Group LLC, Essar Minerals, Inc., Essar Steel Algoma Inc., Essar Trading Inc., Garnishees-Appellees, and Energy Transportation International Limited, Essar Shipping Limited, Essar Shipping and Logistics Limited, Defendants-Appellees.
- Cited By
- 17 cases
- Status
- Published