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Marine v. Elephant Group Ltd.

United States District Court, E.D. Virginia, Newport News Division

January 6, 2020

TANGO MARINE, S.A., Plaintiff,

          OPINION & ORDER

          Henry Coke Morgan, Jr Senior United States District Judge

         This matter comes to the Court on Tango Marine, S.A.'s ("Plaintiffs") Motion for Maritime Attachment and Garnishment ("the Motion"), doc. 6, and Memorandum, doc. 7, and Supplemental Memorandum, doc. 12, in support thereof. As described herein, the Court DENIES the motion, with LEAVE TO REFILE, provided Plaintiff do so and FILE AN AMENDED VERIFIED COMPLAINT no later than ten (10) davs from the date of this Opinion and Order.


         Plaintiff is the owner of the M/V Team Tango ("the Vessel"). Doc. 1 at 2. Plaintiff contracted with Defendants to carry prilled urea in or around 2016. Id. When the Vessel arrived at her destination port in Lagos, Nigeria, she was detained by Nigerian authorities, allegedly because Elephant Group. Ltd. and Elephant Group, P.L.C., (collectively, "Defendants") failed to acquire appropriate paperwork, hi According to the verified complaint, the Vessel was detained for two-and-a-half years while the Nigerian courts reviewed the matter. Id. The Vessel was released on January 10, 2019. Id. Plaintiff seeks damages for this detention under a breach of maritime contract theory. Id. at 3.

         Plaintiff requests that this Court issue a writ of attachment and garnishment on Shine Bridge Global Inc. (the "Garnishee") and any other property located within this District. Plaintiff alleges that Garnishee holds "property" in which Defendant has an interest. Id. at 2. According to the verified complaint, the Garnishee is registered to do business and has agents to receive process in this District. Id. at 2. The verified complaint does not identify what property is the target of the attachment, and the only basis that the verified complaint provides for concluding that such property is located within the District is Plaintiffs "information and belief." On December 16, 2019, Plaintiff filed a Supplemental Memorandum. Doc. 12. In the Supplemental Memorandum, Plaintiff explains that Garnishee and Defendant are working together on a "high-quality cassava flour project" and cite to Garnishee's website. Id. According to the Supplemental Memorandum, the project involves over $9, 000, 000 in investment. Id. at 2. Plaintiff asserts that "[t]he apparent relation that [Garnishee] touts with [Defendant], however, supports [Plaintiff] 's good faith belief that accounts apparently are owing from [Defendant] to [Garnishee]." Id. at 3.

         Given the nature of this case, Defendants have not yet been served or appeared on this matter.


         Pursuant to Federal Rule of Civil Procedure Supplemental Admiralty Rule B ("Rule B"), a district court must review the verified complaint and affidavit accompanying the complaint, and, if the Rule B conditions exist, the Court should issue an order stating that the Rule B conditions exist and authorizing maritime attachment[1] process. Rule B(1)(b).

         Rule B provides for quasi in rem jurisdiction; that is, where a defendant cannot be served in the forum district, he may nevertheless be subject to the Court's authority if he owns personal property located within the forum district. Woodlands Ltd. v. Nationsbank. N.A.. 164 F.3d 628, 1998 WL 682156, at *4 (4th Cir. 1998) (Table) ("In a Rule B attachment case, jurisdiction is derived from the attachment of the property of the defendant. A Rule B attachment case is, therefore, a quasi in rem action instituted for the purpose of (1) asserting jurisdiction over the defendant in personam through the property and (2) to assure satisfaction of any judgment.").

         Accordingly, for a maritime attachment to issue, the following conditions must be met: (1) that the party seeking to effect attachment has a prima facie valid admiralty claim, (2) defendant cannot be located within the district, (3) defendant owns tangible or intangible personal property located within the district, (4) there is no statutory or maritime bar to the attachment. Rule B(1)(A); Vitol. S.A. v. Primerosa Shipping Co. Ltd.. 708 F.3d 527, 541 (4th Cir. 2013); Aqua Stoli Shipping Ltd. v. Gardner Smith Ptv Ltd.. 460 F.3d 434, 445 (2d Cir. 2006), abrogated on other grounds by Shipping Corp. of India Ltd. v. Jalhi Overseas Pte Ltd.. 585 F.3d 58 (2d Cir. 2009); Evridiki Navigation. Inc. v. Sanko S.S. Co. Ltd., 880 F.Supp.2d 666 (D. Md. 2012); accord Thomas J. Schoenbaum, Admiralty and Maritime Law § 21:3 (6th ed. November 2019 Update). p Attachment of debts is permissible, where defendant's right to the debt is "clear." Novoship (UK) Ltd. v. Ruperti. 567 F.Supp.2d 501, 505 (S.D.N.Y. 2008) (quoting Winter Storm Shipping. Ltd. v. TPI, 310 F.3d 263, 276 (2d Cir. 2002)).

         This District, by local rule, defines a defendant who cannot be located within the district as one on whom service of process cannot be effected in person or by agent, or as to whom the only effective service is through the Clerk of the State Corporation Commission, the Secretary of Commonwealth, or the Virginia Long Arm Statute. Loc. R. Admiralty (b)(1).

         In order to obtain an attachment, the plaintiff must plead legally sufficient facts to support a conclusion that it is entitled to an attachment. DS-Rendite Fonds Nr. 108 VLCC Ashna GmbH & Co. Tankschiff KG v. Essar Capital Ams. Inc.. 882 F.3d 44, 50 (2d Cir. 2018), Peninsula Petroleum Ltd. v. New Econ. Pte Ltd.. 2009 U.S. Dist. LEXIS 24470, 2009 WL 702840 (S.D.N.Y. March 17, 2009), accord Thomas J. Schoenbaum, Admiralty and Maritime Law § 21:3 (6th ed. November 2019 Update) ("Maritime attachments are granted on the pleadings. Thus, [i]n order to prevail in a contested Rule B attachment, the plaintiff must allege legally sufficient facts and not merely conclusory allegations. The facts must be plausible on their face, and the identification of the attached or garnished property should be clearly and unequivocally stated. If the allegations are not specific, the district court may deny the motion for attachment."). However, the correct pleading standard is not clear, especially as to how specific a plaintiff must plead the existence of, and identify, property in the District. Compare Fed. R. Civ. P Supp. Admiralty R. E(2)(a) ("Rule E") (pleadings must be pleaded "with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading."), with Peninsula Petroleum. 2009 WL 702840, at * 1 (describing rule E as a "more stringent standard" than that required by rule 8 of the Federal Rules of Civil Procedure), with Vitol SA. 708 F.3d at 541 n.10 (indicating that Twomblv and Iqbal may have altered rule E's "heightened" standard but declining to hold as much), with DS-Rendite. 882 F.3d at 50 (applying the Twombly pleading standard to an ex parte motion for maritime attachment), with Wight Shipping. Ltd. v. Societe Anonvme Marociane de L'Industrie Du Raffinage. S.A., No. 08 Civ. 10169, 2008 U.S. Dist. LEXIS 106420, at *6 (S.D.N.Y. Nov. 24, 2008) (in an ex parte petition for maritime attachment, "more is required to demonstrate a 'plausible' entitlement to a maritime attachment than a conclusory allegation that Defendant;is believed to have or will have property' in this District."). This Court does not need to attempt to resolve that issue, because, even under the lower Twombly and Iqbal pleading standard, [2] Plaintiffs pleading fails to adequately plead entitlement to a maritime attachment.


         Here, it appears from the face of the papers that Plaintiff has, at this stage, sufficiently pleaded that it has a valid, maritime claim, Defendants cannot be located within this District, and that there is no maritime or statutory bar to the attachment. ...

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