Opinion
Case No. 2:14-cv-434
02-11-2015
Agriculture & Energy Carriers LTD, Plaintiff, v. United Coals, Inc., Defendant.
JUDGE EDMUND A. SARGUS, JR.
ORDER
On October 8, 2014, this Court issued an order finding that there was no record that service had been made in this case and directing plaintiff to show cause within fourteen (14) days why this action should not be dismissed. (Doc. 9). Upon further review of the record in this matter, this Court has determined that the October 8, 2014 show cause order was in error and that service is not an outstanding issue in this case.
The Supplemental Admiralty and Maritime Claims Rule B, entitled "In Personam Actions: Attachment and Garnishment" ("Rule B") allows a plaintiff to obtain jurisdiction over a defendant by attaching its property. See Parcel Tankers, Inc. v. Formosa Plastics Corp., 569 F. Supp. 1459, 1462 (S.D. Tex. 1983) (explaining that one function of maritime attachment is to secure a defendant's appearance). Rule B thus allows plaintiffs to maintain lawsuits which they otherwise could not, in that it allows "quasi-in-rem jurisdiction over a defendant not otherwise subject to the court's jurisdiction...." Robert M. Jarvis, An Introduction to Maritime Attachment Practice Under Rule B, Journal of Maritime Law and Commerce, Vol. 20, No. 4, at 525 (October 1989); see also East Asia Co., Ltd. v. Subfreights of the M/V Aurora II, 422 F. Supp. 1335 (S.D.N.Y. 19876) (noting that "compliance with Supplemental Rule B does not constitute service of process under Rule 4"). In an order issued on May 12, 2014, this Court determined that plaintiff Agriculture & Energy Carriers Ltd ("AEC") satisfied the procedural prerequisites necessary to invoke Rule B against defendant United Coals, Inc. ("United Coals"). (Doc. 5). Consequently, on the same day, the Court issued a writ of attachment and garnishment, attaching United Coals' property within this district at Huntington National Bank. (Doc. 6). Two days later, on May 14, 2014, counsel for AEC filed an affidavit of service, swearing that the writ of attachment and garnishment had been served on Huntington National Bank by certified mail. (Doc. 8). AEC has not made any additional filings since that time.
The next step in maritime attachment, after a plaintiff is successful in locating and attaching the defendant's property, is to provide the defendant with notice. Jarvis, Journal of Maritime Law and Commerce, Vol. 20, No. 4, at 534. Rule B provides, in pertinent part:
(2) Notice to Defendant. No default judgment may be entered except upon proof -which may be by affidavit-On May 12, 2014, AEC filed a summons to United Coals, although the proof of service attached to the summons is not completed. (Doc. 7). Thus, there is no record that United Coals has been given notice of this action.
that:
(a) the complaint, summons, and process of attachment or garnishment have been served on defendant in a manner authorized by Rule 4;
(b) the plaintiff or the garnishee has mailed to the defendant the complaint, summons, and process of attachment or garnishment, using any form of mail requiring return receipt; or
(c) the plaintiff or the garnishee has tried diligently to give notice of the action to the defendant but could not do so.
Further, despite the procedural posture of this case, AEC has not moved for the entry of default against United Coals. Local Rule of Court 55.1 provides as follows:
55.1 DEFAULTS and DEFAULT JUDGMENTSThus, the record reflects that AEC has not taken the appropriate steps to proceed with this litigation.
(a) If a party makes proper service of a pleading seeking affirmative relief but, after the time for making a response has passed without any response having been served and filed, that party does not request the Clerk to enter a default, the Court may by written order direct the party to show cause why the claims in that pleading should not be dismissed for failure to prosecute.
(b) If a party obtains a default but does not, within a reasonable time thereafter, either file a motion for a default judgment or request a hearing or trial on the issue of damages, the Court may by written order direct the party to show cause why the claims upon which default was entered should not be dismissed for failure to prosecute.
(c) Nothing in this Rule shall be construed to limit the Court's power, either under Fed.R.Civ.P. 41 or otherwise, to dismiss a case or to dismiss one or more claims or parties for failure to prosecute.
Based on the forgoing, AEC is directed to show cause within twenty-one days (21) from the issuance of this order why this action should not be dismissed. AEC's filing should include proof of notice to United Coals as set forth in Rule B(2). AEC's filing shall also be accompanied, if appropriate, by a request to enter default pursuant to Fed. R. Civ. P. 55, and a separate motion for default judgment.
IT IS SO ORDERED.
/s/Terence P. Kemp
United States Magistrate Judge