United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
Coke Morgan, Jr Senior United States District Judge
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.
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.
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.
the nature of this case, Defendants have not yet been served
or appeared on this matter.
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 process. Rule B(1)(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.").
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)).
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).
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,  Plaintiffs pleading fails to adequately
plead entitlement to a maritime attachment.
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. ...