United States District Court, D. Maryland
E.N. BISSO & SON, INC., Plaintiff,
BOUCHARD TRANSPORTATION COMPANY, INC., Defendant, and APEX OIL COMPANY, INC., et al., Garnishees.
STEPHANIE A. GALLAGHER UNITED STATES DISTRICT JUDGE.
December 23, 2019, Plaintiff E.N. Bisso & Son, Inc.
(“E.N. Bisso”) filed a Verified Complaint with
Request for Issue of Process of Maritime Attachment and
Garnishment (“the Verified Complaint”) against
Defendant Bouchard Transportation Company, Inc.
(“Bouchard”). ECF 1. The Verified Complaint, in
its case caption, named four Garnishees: Apex Oil Company,
Inc.; Bitumar USA, Inc.; Sunoco, LLC; and Vitol Inc.
Id. Also on December 23, 2019, E.N. Bisso filed a
Motion for Order Authorizing Issuance of Process of Maritime
Attachment and Garnishment ex parte, ECF 3, and a
Motion for Appointment for Service of Process of Maritime
Attachment and Garnishment, ECF 4 (collectively, “the
Motions”). No hearing is necessary. See Loc.
R. 105.6 (D. Md. 2018). For the reasons stated below,
Plaintiff's Motions will be denied without prejudice.
Bisso brings this quasi in rem action under the
Court's admiralty jurisdiction pursuant to 28 U.S.C.
§ 1333. ECF 1, ¶ 1. E.N. Bisso, located in New
Orleans, Louisiana, is a company that “provides tug and
related services to vessels.” Id. ¶ 5.
Bouchard is a New York corporation that “owns and
operates tugs and ocean-going petroleum barges.”
Id. ¶ 6. E.N. Bisso's Verified Complaint
seeks to recover damages stemming from several contracts
allegedly executed between June and November, 2019 that
Bouchard, to date, has not paid on. ECF 1, ¶¶ 7-12.
In total, E.N. Bisso seeks $816, 209.65 in compensatory
damages and “interest” from Bouchard.
Id. ¶¶ (A)-(B). Of particular relevance
here, Count II of the Verified Complaint seeks an order of
attachment and garnishment of “property and/or assets
in this jurisdiction consisting of cash, funds, freight,
hire, and/or credits in the hands of Garnishees in this
District, including but not limited to the named
Garnishees.” Id. ¶ 16. E.N. Bisso bases
this Court's personal jurisdiction over Bouchard upon the
garnishment of Bouchard assets currently held by the
Garnishees in this District, because Bouchard “cannot
be found in this District.” Id. ¶¶
and E of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions govern the attachment and
garnishment of assets in maritime or admiralty actions:
If a defendant is not found within the district when a
verified complaint praying for attachment and the affidavit
required by Rule B(1)(b) are filed, a verified complaint may
contain a prayer for process to attach the defendant's
tangible or intangible personal property-up to the amount
sued for-in the hands of garnishees named in the process.
Fed. R. Civ. P. Supp. R. B(1)(a). If the Court orders
attachment, then “any person claiming an interest in
[the property] shall be entitled to a prompt hearing at which
the plaintiff shall be required to show why the arrest or
attachment should not be vacated.” Fed.R.Civ.P. Supp.
R. E(4)(f). These procedures allow maritime plaintiffs to
assert claims against a defendant “over whom the court
does not (otherwise) have personal jurisdiction, by seizing
property of the defendant (alleged to be in the hands of a
third party).” DS-Rendite Fonds Nr. 108 VLCC Ashna
GmbH & Co Tankschiff KG v. Essar Capital Ams.,
Inc., 882 F.3d 44, 47 (2d Cir. 2018); accord
Submersible Sys., Inc. v. Perforadora Cent., S.A. de
C.V., 249 F.3d 413, 421 (5th Cir. 2001). Any plaintiff
seeking an initial ex parte order of attachment or
garnishment bears the burden of establishing the right to
attachment. Icon Amazing, LLC v. Amazing Shipping,
Ltd., 951 F.Supp.2d 909, 915 (S.D. Tex. 2013) (citing
Aqua Stoli Shipping, Ltd. v. Gardner Smith Pty Ltd.,
460 F.3d 434, 445 (2d Cir. 2006)); DS-Rendite, 882
F.3d at 48. Ultimately, the decision to grant or deny a
motion for order of attachment rests in the trial court's
discretion. See DS-Rendite, 882 F.3d at 48, 51.
Rule B(1)(b) provides that upon a request for attachment or
garnishment, the Court must review the Verified Complaint and
accompanying affidavit “and, if the conditions of this
Rule B appear to exist, ” it must enter an order
authorizing the attachment and garnishment. Rule B does not,
however, explicitly provide what level of specificity the
Verified Complaint and accompanying affidavit's
allegations must meet. While the Fourth Circuit, to this
Court's knowledge, has not answered this question, the
Second Circuit recently addressed this issue in
Rule B's pleading requirements “are said to be
easily met.” DS-Rendite, 882 F.3d at 49.
Courts traditionally would only refuse to order attachment in
two general instances: (1) in cases “where the
attachment and garnishment is ‘served before the
garnishee comes into possession of the property'”;
and (2) where the garnishee is not indebted to the defendant
at the time garnishment is ordered. Id. (citations
omitted). However, after surveying a number of recent
attachment cases, the Second Circuit found that courts now
require “a minimal specificity of factual allegations
identifying the defendant's property to be attached
before issuing Rule B attachments and holding Rule E
hearings.” Id. at 49-50. In other words,
plaintiffs seeking attachment must satisfy the
Twombly-Iqbal standard in identifying the property
to be attached under Rule B - they must allege facts
sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Requiring these
additional factual allegations allows the Court to ensure
that maritime plaintiffs are not abusing the unique tools
afforded to them to vindicate their claims. See Maersk,
Inc. v. Neewra, Inc., 443 F.Supp.2d 519, 527 (S.D.N.Y.
2006) (“The ease with which a prima facie case for
attachment can be made . . . creates a real risk of abusive
use of the maritime remedy.”). Thus, to demonstrate
entitlement to attachment of a garnishee's assets, the
Second Circuit held that a plaintiff must plausibly allege
that the garnishee possesses identifiable property of the
defendant. Id. at 50. To make this showing, the
plaintiff must provide sufficient factual allegations
“either as to the nature of the business relationship
between the garnishee(s) and the defendant and/or the nature
of the defendant's property subject to the
this standard, the Second Circuit in DS-Rendite
affirmed the trial court's denial of the plaintiff's
motion for order of attachment, because the plaintiff's
complaint merely alleged that “[e]ach of the
Garnishees, on information and belief, holds property of [the
defendants], ” and that those funds the garnishees held
were “due and owing to Defendants.” 882 F.3d at
50-51. The Second Circuit found that the complaint's
allegations were merely “conclusory, ” and
insufficient to establish why any one of the six companies
listed as garnishees would hold property of the defendants,
or why the property would be within the forum court's
district. Id. at 51. Other courts considering
similar complaints have reached similar conclusions. See,
e.g., Marco Polo Shipping Co. v. Supakit
Prods. Co., 2009 A.M.C. 639, 639 (S.D.N.Y. 2009)
(rejecting the notion that any potential for a defendant to
transfer funds through the a bank in the forum court's
district satisfies the Rule B attachment showing; instead,
the plaintiff must allege “enough facts to render it
plausible that the defendant's funds will be present in
the district at some future time”); DBCN v. Enersur
S.A., No. 09 Civ. 8359 (RJS), 2009 WL 3254447, at *2
(S.D.N.Y Oct. 9, 2009) (finding that a plaintiff failed to
establish a plausible entitlement to attachment based on the
allegation that it was “anticipated and expected”
that the defendants would have property in the forum
court's district, without any further elaboration or
Bisso's Motion for Order of Attachment and Garnishment
finds a similar fate. Here, the Verified Complaint broadly
alleges that each Garnishee is “located, can be found,
and can be served with process in this District, ” but
does not allege whether each Garnishee has a resident agent
appointed for service of process in this District. ECF 1,
¶ 2. More concerning, the Verified Complaint contains
only one allegation regarding the Garnishees' possession
of Bouchard's assets: “Bouchard . . . is believed
to have, or will have during the pendency of this action,
property and/or assets in this jurisdiction consisting of
cash, funds, freight, hire, and/or credits in the hands of
Garnishees in this District, including but not limited to the
named Garnishees.” Id. ¶ 16. E.N.
Bisso's Memorandum in Support of the Motion adds that
each Garnishee “do[es] business with Bouchard, ”
but otherwise only provides conclusory statements that E.N.
Bisso has sufficiently alleged its entitlement to an order of
attachment. ECF 3-1 at 2-3.
allegations are insufficient in a number of ways. E.N. Bisso
has not plausibly shown, through factual allegations, that
the Garnishees and Bouchard are engaged in any commercial
ventures or other business relationships. See
DS-Rendite, 882 F.3d at 51. Nor has E.N. Bisso plausibly
demonstrated “why any one of those [four] companies
would hold property of [Bouchard].” Id.
Further, while the deficient complaint in DS-Rendite
narrowed the category of property to funds “due and
owing to Defendants, ” id., here E.N. Bisso
makes no effort to narrow the scope of property potentially
at issue, naming “cash, funds, freight, hire, and/or
credits” all as property that could be attached, ECF 1,
¶ 16. A Rule E hearing on E.N. Bisso's current
Verified Complaint “would have no focus and be little
more than a prolonged fishing expedition.” Id.
Accordingly, this Court cannot find that E.N. Bisso has met
its burden to plausibly establish that any named Garnishee is
in possession of identifiable property of Bouchard, due to a
sheer lack of factual allegations regarding any
Garnishee's business relationship with Bouchard, or
regarding the nature of Bouchard's property allegedly in
any Garnishee's possession.
for the reasons stated above, E.N. Bisso's Motion for
Order Authorizing Issuance of Process of Maritime Attachment
and Garnishment, ECF 3, is DENIED WITHOUT PREJUDICE. E.N.
Bisso's Motion for Appointment for Service of Process of
Maritime Attachment and Garnishment, ECF 4, is likewise
DENIED WITHOUT PREJUDICE. If E.N. Bisso wishes to continue