(a) In all cases in this court in which claims are asserted under the Racketeer
Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961, a RICO
Statement, conforming to the requirements of this order, must accompany the
filing of the RICO complaint.
(b) This Statement must include the facts that the Plaintiff is relying upon to initiate
this RICO complaint as a result of the “reasonable inquiry” required by FED. R.
CIV. P. 11. This Statement must be in a form which uses both the numbers and
letters as set forth below and must, in detail and with specificity:
(1) State whether the alleged unlawful conduct is in violation of 18 U.S.C.
§ 1962(a), (b), (c), and/or (d).
(2) List each Defendant and state the alleged misconduct and basis of liability
of each Defendant.
(3) List the alleged wrongdoers, other than the Defendant(s) listed above, and
state the alleged misconduct of each wrongdoer.
(4) List the alleged victims and state how each victim was allegedly injured.
(5) Describe in detail the pattern of racketeering activity or collection of
unlawful debts alleged for each RICO claim. A description of the pattern of
racketeering must include the following information:
(A) List the alleged predicate acts and the specific statutes which were
allegedly violated;
(B) Provide the dates of the predicate acts, the participants in the
predicate acts, and a description of the facts surrounding the
predicate acts;
(C) If the RICO claim is based on the predicate offenses of wire fraud,
mail fraud, or fraud in the sale of securities, the “circumstances
constituting fraud or mistake shall be stated with particularity.”
FED. R. CIV. P. 9(b). Identify the time, place, and contents of the
alleged misrepresentations, and the identity of persons to whom and
by whom the alleged misrepresentations were made;
(D) State whether there has been a criminal conviction for violation of
the predicate acts;
(E) State whether civil litigation has resulted in a judgment in regard to
the predicate acts;
(F) Describe how the predicate acts form a “pattern of racketeering
activity”; and
(G) State whether the alleged predicate acts relate to each other as part
of a common plan. If so, describe in detail.
(6) Describe in detail the alleged enterprise for each RICO claim. A
description of each enterprise must include the following information:
(A) State the names of the individuals, partnerships, corporations,
associations, or other legal entities which allegedly constitute the
enterprise;
(B) Describe the structure, purpose, function, and course of conduct of
the enterprise;
(C) State whether any Defendants are employees, officers, or directors
of the alleged enterprise;
(D) State whether any Defendants are associated with the alleged
enterprise;
(E) State whether the Plaintiff is alleging that the Defendants are
individuals or entities separate from the alleged enterprise, or that
the Defendants are the enterprise itself, or are members of the
enterprise; and
(F) If any Defendants are alleged to be either the enterprise itself or
members of the enterprise, explain whether such Defendants are
perpetrators, passive instruments, or victims of the alleged
racketeering activity.
(7) State whether the Plaintiff is alleging that the pattern of racketeering
activity and the enterprise are separate or have merged into one entity. In
either event, describe in detail.
(8) Describe the alleged relationship between the activities of the enterprise
and the pattern of racketeering activity. Discuss how the racketeering
activity differs from the usual and daily activities of the enterprise, if at all.
(9) Describe what benefits, if any, the alleged enterprise receives from the
alleged pattern of racketeering.
(10) Describe the effect of the activities of the enterprise on interstate or foreign
commerce.
(11) If the Complaint alleges a violation of 18 U.S.C. § 1962(a), provide the
following information:
(A) State who received the income derived from the pattern of
racketeering activity or through the collection of an unlawful debt;
and
(B) Describe the use, investment, or locus of such income.
(12) If the Complaint alleges a violation of 18 U.S.C. § 1962(b), describe in
detail the acquisition or maintenance of any interest in or control of the
alleged enterprise.
(13) If the Complaint alleges a violation of 18 U.S.C. § 1962(c), provide the
following information:
(A) State who is employed by or associated with the enterprise; and
(B) State whether the same entity is both the liable “person” and the
“enterprise” under § 1962(c).
(14) If the Complaint alleges a violation of 18 U.S.C. § 1962(d), describe in
detail the alleged conspiracy.
(15) Describe the direct causal relationship between the alleged injury and the
violation of the RICO statute.
(16) List the actual damages for which Defendant is allegedly liable.
(17) List all other federal causes of action, if any, and provide citations to the
relevant statute(s).
(18) List all pendent state claims, if any.
(19) Provide any additional information that you feel would be helpful to the
Court in considering your RICO claim.
ADMIRALTY AND MARITIME RULES DISTRICT COURTS OF MISSISSIPPI
Rule A. SCOPE AND GENERAL PROVISIONS
(1) Applicability. These rules apply to the procedures in admiralty and maritime
claims within the meaning of FED. R. CIV. P. 9(h), which in turn are governed by
the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal
Rules of Civil Procedure [Admiralty Supplemental Rules] in the United States
District Courts in the State of Mississippi. As used in these Local Admiralty Rules,
the term “judicial officer” or “court” means either a United States District Judge or
a United States Magistrate Judge.
(2) Citation Format
(a) The Supplemental Rules for Certain Admiralty and Maritime Claims of the
Federal Rules of Civil Procedure should be cited as “Supplemental Rule [
].”
(b) The Local Admiralty and Maritime Rules must be cited as “Local
Admiralty Rule (L.A.R. [ ]).”
(3) Application of Local Admiralty and Maritime Rules. The Local Admiralty
Rules apply to all actions governed by L.A.R. A(1), and to the extent possible
should be construed to be consistent with the other local rules of this court. To the
extent that a Local Admiralty Rule conflicts with another local rule of this court,
the Local Admiralty Rule controls.
(4) Designation of “In Admiralty” Proceedings. All pleadings filed in a FED. R. CIV.
P. 9(h) action should set forth the words, “IN ADMIRALTY” following the
designation of the court. See Admiralty Form 28 on the courts’ Websites.
(5) In Rem Admiralty and Maritime Jurisdiction. In any action brought in rem
under the admiralty and maritime jurisdiction of this court, a plaintiff may present
a motion and order for the arrest of property to any judicial officer within the
district, in the event that the judicial officer assigned to the matter is not readily
available to review the pleadings. If a plaintiff has procured a person, firm, or
corporation to serve as a substitute custodian of seized property, any judicial
officer in the district may sign an order, supported by a motion, permitting the
United States Marshal to deliver the property seized to the substitute custodian,
assuming the motion is joined by all parties or is being submitted before the
appearance of any opposing party. In addition to any other supporting reasons, a
plaintiff petitioning to transfer seized property to a substitute custodian must show,
by means of a Certificate of Insurance or other sufficient proof of insurance, that
there is sufficient insurance coverage for the vessel/property while in the
possession of the substitute custodian and must maintain the coverage in place
during the pendency of the case. The insurance must comply with the mandates of
the United States Marshal and specifically name the substitute custodian as a
named insured.
(6) Verification of Pleadings. Every complaint or claim made under the Admiralty
Supplemental Rules must be verified on oath or affirmation by a party, or an
officer of a corporate party. If no party or corporate officer is within the district,
verification of a complaint or claim may be made by an agent, attorney-in-fact, or
attorney of record, who declares the sources of the signer’s knowledge or the
contents of the verified document, that the document verified is true to the best of
the signer’s knowledge, the reason why verification is not made by the party or
corporate officer, and that the signer has signatory authority. The verification will
be deemed to be that of the party, as if verified personally. Any interested party
may move, with or without a request for stay, for a personal oath of a party or all
parties, or that of a corporate officer. If required by the court, verification must be
procured by commission or as otherwise ordered.
(7) Amendment of Pleadings to Add or Delete Rule 9(h) Designations. In any case
in which a plaintiff makes a maritime claim within the meaning of FED. R. CIV. P.
9(h), but the plaintiff could also bring all or a portion of the claims under a
different source of jurisdiction and thereby request a trial by jury, the plaintiff’s
motion to amend the pleadings to either add or delete the Rule 9(h) designation
must be made by the general deadline set for amendments to all pleadings.
Likewise, in any case in which a plaintiff makes a maritime claim within the
meaning of Rule 9(h) and also demands a jury trial, the plaintiff must designate the
division of those claims by the deadline set for amendment to pleadings, in the
absence of a designation, the entire case will proceed under Rule 9(h) and be set
for trial without jury. If a plaintiff elects to drop a Rule 9(h) designation entirely,
any vessel or other property previously seized under the Admiralty Supplemental
Rules must be immediately released from the custody of the U.S. Marshal or the
substitute custodian, upon the motion of any party.
(8) Issuance of Process. Except as limited by Supplemental Rules (B)(1) or (C)(3)
and L.A.R. B(3) or C(2), or in suits prosecuted in forma pauperis and sought to be
filed without pre-payment of fees or costs, or without security, all process will be
issued by the court without further notice of the court.
(9) Publication of Notices. Unless otherwise required by the court or applicable Local
Admiralty or Supplemental Rule, whenever a notice is required to be published by
any statute of the United States or by any Supplemental Rule or Local Admiralty
Rule, the notice must be published in a newspaper of general circulation in the
district where the lawsuit is pending, once a week for three consecutive weeks. If
the action involves a marine casualty and is pending in a district other than where
the marine casualty occurred, then the plaintiff must also publish the required
notice in a newspaper of general circulation where the casualty occurred. All
plaintiffs must use due diligence to provide direct notice to all known or
reasonably anticipated claimants.
(10) Form and Return of Process in In Personam Actions. Unless otherwise ordered
by the court, FED. R. CIV. P. 9(h) process must be by civil summons and must be
returnable 21 days after service of process; except that process issued in
accordance with Supplemental Rule (B) must conform to the requirements of that
rule.
(11) Taxation of Costs. If costs are awarded to any party, the following may be taxed
as costs in the case, in the manner provided for a civil action:
(a) The reasonable premium or expenses paid on all bonds or stipulations or
other security by the party to whom costs are awarded;
(b) Reasonable wharfage or storage charges while in custody of the court;
(c) Costs of publication of notices under applicable rules of court; and
(d) Any other reasonable expenses determined by the court, on motion and
after hearing, to have been necessarily incurred and proper as costs.
(12) Forms - Admiralty and Maritime Rules. Examples of forms which may be used
in admiralty and maritime actions are located on the courts’ Websites under
“Admiralty Forms.” These forms provide illustrations of format and content, but
they are neither mandatory nor exhaustive.
Rule B. ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS
(1) Definition of “Not Found Within the District.” In an action in personam filed
under Supplemental Rule (B), a defendant will be considered “not found within the
district” if the defendant does not have a physical address locatable within the
district where the action is filed by means of typical reference sources such as a
telephone directory or listing with the Secretary of State or if there is evidence that
despite the listing of a physical address within the district, no individual is present
at any reasonable time to receive a summons and complaint as contemplated by
FED. R. CIV. P. 4(d). The plaintiff or the plaintiff’s attorney must sign and file with
the complaint an affidavit setting forth the basis for classifying the defendant as
“not found within the district.” See Admiralty Form 28 on the courts’ Websites.
(2) Pre-seizure Requirements. In accordance with Supplemental Rule (B)(1), the
process of attachment and garnishment will issue only after one of the following
conditions has been met:
(a) Judicial Review Before Issuance. Except as provided in L.A.R. B(3)(b), a
judicial officer must review the verified complaint and any other relevant
case papers before the clerk issues the requested process of attachment and
garnishment. No notice of this pre-arrest judicial review is required to be
given to any person or prospective party.
If the judicial officer finds that probable cause exists to issue the process of
attachment and garnishment, plaintiff must prepare an order that
substantially conforms to Admiralty Form 1 on the courts’ Websites for the
judicial officer’s signature directing the clerk to issue the process.
Upon receipt of the signed order, the clerk will enter the order and issue the
summons and process of attachment and garnishment as contemplated by
L.A.R. B(3)(c). Thereafter the clerk may issue supplemental process
without further order of court.
(b) Certification of Exigent Circumstances. If the plaintiff files a written
certification that exigent circumstances make review by the court
impracticable, the clerk will issue a summons and the process of
attachment and garnishment in accordance with L.A.R. B(2)(c).
(c) Preparation and Issuance of the Process of Attachment and Garnishment.
Plaintiff must prepare the summons and the process of attachment and
garnishment and deliver the documents to the clerk for filing and issuance.
The process of attachment and garnishment must substantially conform to
Admiralty Form 2 on the courts’ Websites and must give adequate notice
of the post-seizure provisions of L.A.R. B(4).
(d) United States Marshal’s Return of Service. The United States Marshal must
file a return of service indicating the date and manner in which service was
perfected and, if service was perfected upon a garnishee, the United States
Marshal will indicate on the return the name, address, and telephone
number of the garnishee.
(e) Use of Substitute Custodian. If a substitute custodian is used in an
attachment or garnishment proceeding, the plaintiff must follow the same
requirements of L.A.R A(5).
(3) Notification of Seizure to Defendant. In an in personam action under
Supplemental Rule (B), plaintiff or garnishor must initially attempt to perfect
service of the notice in accordance with Supplemental Rule (B)(2)(a) or (b).
However, when service of the notice cannot be perfected in accordance with
Supplemental Rule (B)(2)(a) or (b), plaintiff or garnishor must by affidavit offer
proof required by Supplemental Rule (B)(2)(c) that the plaintiff or the garnishor
has tried diligently to give notice of the action to the defendant but has been unable
to do so.
(4) Post-attachment Review Proceedings
(a) Filing a Required Answer
(i) By Defendant. In accordance with Supplemental Rule (E)(4)(f), any
person who claims an interest in property seized under
Supplemental Rule (B) must file an answer and claim against the
property within 30 days after service of process has been executed,
whether by attachment or service on the garnishee. The answer and
claim must describe the nature of the claimant's interest in the
property and articulate reasons why the seizure should be vacated.
The claimant must serve a copy of the answer and claim upon
plaintiff’s counsel, the United States Marshal, and any other party
to the litigation, along with a Certificate of Service indicating the
date and manner in which service of the answer and claim was
made.
(ii) By Garnishee. The garnishee must file an answer to the Complaint
and respond to any discovery served with the Complaint within 21
days after service.
(b) Hearing on the Answer and Claim. The claimant may be heard before a
judicial officer not less than three days after the answer and claim has been
filed and served on the plaintiff.
If the court orders that the seizure be vacated, the judicial officer may also
award reasonable attorneys’ fees, costs and other expenses incurred by any
party as a result of the seizure.
If the seizure was predicated upon a showing of “exigent circumstances”
under L.A.R. B(3)(b), and the court finds that exigent circumstances did
not exist, the court may award reasonable attorneys’ fees, costs, and other
expenses incurred by any party as a result of the seizure.
(5) Procedural Requirement for the Entry of Default. In accordance with FED. R.
CIV. P. 55, a party seeking the entry of default in a Supplemental Rule (B) action
must file a motion and supporting legal memorandum and offer other proof
sufficient to demonstrate that due notice of the action and seizure have been given
in accordance with L.A.R. B(4).
Upon review of the motion, memorandum, and other proof, the clerk should,
where appropriate, enter the default of a party in accordance with FED. R. CIV. P.
55(a) and will serve notice of the entry of default upon all parties who have
appeared in the action.
(6) Procedural Requirements for the Entry of Default Judgment. Not later than 30
days after notice of the entry of default, the party seeking the entry of default
judgment must file a motion with appropriate exhibits and supporting legal
memorandum sufficient to support the entry of default judgment. The moving
party must serve these papers upon every other party to the action and file a
Certificate of Service indicating the date and manner in which service was made.
A party opposing the entry of default judgment must file written opposition to the
motion within seven days of receipt of the motion. Unless otherwise ordered by the
court, the motion for the entry of default judgment will be heard without oral
argument.
Unless a motion to be continued is granted, a default judgment establishes a right
on the part of the party or parties in whose favor it is entered and will be
considered prior to any claims of the owner of the defendant property against
which it is entered and to the remnants and surpluses thereof but does not establish
plaintiff’s priority of entitlement to possession of defendant property over non-
possessory lien claimants. Obtaining a judgment by default will not preclude the
party in whose favor it is entered from contending and proving that all, or any
portion, of the claim or claims encompassed within the judgment are entitled to
priority over any non-possessory lien claims.
Rule C. ACTIONS IN REM
(1) Verification Requirements. Every complaint and claim filed in an in rem
proceeding under Supplemental Rule (C) must be verified in accordance with
L.A.R. A(6) and B(2).
(2) Pre-seizure Requirements. In accordance with Supplemental Rule (C)(3), the
process of arrest in rem may issue only after one of the following conditions has
been met:
(a) Judicial Review Before Issuance. Except as provided in L.A.R. C(2)(b), no
seizure warrant may be issued until a judicial officer has reviewed the
verified complaint and any other relevant case papers and entered an order
directing the clerk to issue the warrant for arrest or summons in rem. No
notice of this pre-seizure judicial review is required to be given to any
person or prospective party.
The plaintiff must submit a proposed order to the judicial officer directing
the clerk to issue a warrant of arrest or summons to be entered in the event
that the court finds that probable cause exists for an action in rem. The
order must substantially conform to Admiralty Form 3 on the courts’
Websites.
After entry of the signed order, the clerk will issue the warrant for arrest or
summons in accordance with L.A.R. C(2)(c). The warrant must conform to
Admiralty Form 4 on the courts’ Websites. Thereafter, the clerk may issue
supplemental process without further order of the court.
(b) Certification of Exigent Circumstances. If the plaintiff files a written
certification that exigent circumstances make review by the court
impracticable, the Clerk will issue a warrant of arrest or summons.
At any post-arrest proceedings under Supplemental Rule (E)(4)(f) and
L.A.R. C(7), plaintiff has the burden of showing that probable cause
existed for the issuance of process and that exigent circumstances existed
which precluded judicial review in accordance with L.A.R. C(2)(a).
(c) Preparation and Issuance of the Warrant for Arrest or Summons. Plaintiff
must prepare the warrant for arrest or summons and deliver them to the
clerk for filing and issuance.
The warrant for arrest must substantially conform to Admiralty Form 4 on
the courts’ Websites and must give adequate notice of the post-arrest
provisions of L.A.R. C(7) to all parties including, but not limited to, any
person or entity known to plaintiff to have a claim or interest in the vessel
or property seized.
(3) Special Requirements for Actions Involving Freight, Proceeds, or Intangible
Property
(a) Instructions to Be Contained in the Summons. Unless otherwise ordered by
the court, the summons must order the person having control of the freight,
proceeds, or intangible property to either:
(i) File a claim within 14 days after service of the summons in
accordance with L.A.R. C(6)(a); or
(ii) Deliver or pay over to the United States Marshal the freight,
proceeds, or intangible property, in the form that the property is
typically represented, or a part of the property which is sufficient to
satisfy plaintiff’s claim.
The summons must also inform the person having control of the
freight, proceeds, or intangible property that service of the
summons has the effect of arresting the property and prohibiting the
release, disposal, or other distribution of the property without prior
order of the court.
(b) Requirements for Claims to Prevent the Delivery of Freight, Proceeds, or
Intangible Property to the United States Marshal. Any claim filed in
accordance with Supplemental Rule (E)(4) and L.A.R. C(6)(a) must
describe the nature of claimant’s interest in the property and articulate
reasons why the seizure should be vacated.
The claim, accompanied by a certificate of service, must be served upon
the plaintiff, the United States Marshal, and all other parties to the
litigation.
(c) Delivery or Payment of the Freight, Proceeds, or Intangible Property to the
United States Marshal. Unless a claim is filed in accordance with
Supplemental Rule (E)(4)(f) and L.A.R. C(6)(a), any person served with a
summons issued under L.A.R. C(2)(a) or (b) must, within 14 days after
execution of service, deliver or pay over to the United States Marshal all, or
part of, the freight, proceeds, or intangible property sufficient to satisfy
plaintiff’s claim. Between the time that the summons is served and the
property delivered or the court rules on a motion to prevent the delivery of
the property, the person served with the summons may not remove the
property from the district or otherwise transfer or dispose of it.
Unless otherwise ordered by the court, the person tendering control of the
freight, proceeds, or intangible property will be excused from any further
duty with respect to the property in question.
(4) Publishing Notice of the Arrest as Required by Supplemental Rule (C)(4)
(a) Time for Publication. If the property is not released within 14 days after the
execution of process, the notice required by Supplemental Rule (C)(4) must
be published by the plaintiff in accordance with L.A.R. A(9) and must
begin no later than 21 days after execution of process. The notice must
substantially conform to Admiralty Form 5 on the courts’ Websites. See
also Admiralty Forms 6, 7 and 8.
(b) Proof of Publication. Not later than 14 days after the last day of publication
plaintiff must file a copy of the actual notice and proof of publication in the
form of a sworn statement by or on behalf of the publisher or editor
indicating the dates of publication.
(5) Undertaking in Lieu of Arrest. If, before or after the commencement of an
action, a party accepts any written undertaking to respond on behalf of the vessel
or other property in consideration of plaintiff’s refraining from seeking arrest of
the vessel or other property, the undertaking will only respond to orders or
judgments in favor of the party accepting the undertaking and any parties expressly
named in it, and only to the extent of the benefit conferred in the undertaking. See
Admiralty Form No. 9 on the courts’ Websites.
(6) Time for Filing Claim or Answer. Unless otherwise ordered by the court, any
claimant of property subject to an action in rem must:
(a) File the claim within 14 days after process has been executed. See
Admiralty Form Nos. 10 and 11 on the courts’ Websites; and
(b) Serve an answer within 21 days after filing the claim.
(7) Post-arrest Proceedings. Upon filing a claim, the claimant may also file a motion
and proposed order directing plaintiff to show cause why the arrest should not be
vacated, and if after a hearing on the motion the court vacates the arrest because
the plaintiff did not have a reasonable basis to seize the claimant’s property, the
court may award attorneys’ fees, costs, and other expenses incurred by any party as
a result of the arrest.
Additionally, if the seizure was predicated upon a claim of “exigent
circumstances” under L.A.R. C(2)(b), and the court finds that exigent
circumstances did not exist, the court may award attorneys’ fees, costs, and other
expenses incurred by any party as a result of the seizure.
(8) Procedural Requirements for Entry of Default. In accordance with FED. R. CIV.
P. 55(a), a party seeking the entry of default judgment in rem must first move for
entry of default and then file its motion and supporting legal memorandum.
The party seeking the entry of default must also file proof sufficient to demonstrate
that due notice of the action and arrest have been given by:
(a) Service upon the master or upon the person having custody of the property;
(b) Delivery, personally or by certified mail, return receipt requested (or
international effective equivalent), to every other person, entity, including
any known owner, who has not appeared or intervened in the action, and
who is known to have, or claims to have, a possessory interest in the
property.
The party seeking entry of default judgment under L.A.R. C(8) may be
excused for failing to give notice to such “other person” upon a satisfactory
showing that diligent effort was made to give notice without success; and
(c) Publication as required by Supplemental Rule (C)(4) and L.A.R. C(4). The
clerk may, where appropriate, enter default in accordance with FED. R. CIV.
P. 55(a). The clerk will serve notice of the entry of default upon all parties
represented in the action.
(9) Procedural Requirements for Entry of Default Judgment. Not later than 30
days after notice of the entry of default, the moving party must file a motion, and
supporting legal documents, for the entry of default judgment under FED. R. CIV. P.
55(b). The moving party may also file as exhibits to the motion such other
documentation as may be required to support the entry of default judgment.
(a) When No Person Has Filed a Claim or Answer. Unless otherwise ordered
by the court, the motion for default judgment will be considered by the
court without oral argument.
(b) When Any Person Has Filed an Appearance, but No Claim or Answer, or
Has Filed a Claim or Intervention but Has Not Answered. If any person has
filed an appearance, claim or intervention in accordance with L.A.R. C(6),
but does not join in the motion for entry of default judgment, the party
seeking the entry of default judgment must serve notice of the motion upon
the party not joining in the motion, and any opposing party will have seven
days from receipt of the notice to file written opposition with the court.
A default judgment establishes a right on the part of the party or parties in
whose favor it is entered and will be considered prior to any claims of the
owner of the defendant property against which it is entered, as to the
remnants and surpluses thereof, but does not establish the priority over, or
ranking among, non-possessory lien claimants. Ranking in priority may
subsequently be established on the motion of any party.
Rule D. POSSESSORY, PETITORY AND PARTITION ACTIONS
In possessory actions filed under Supplemental Rule (D), process should issue as provided
by L.A.R. A(8), B(3)(c), and C(2)(c). Notice requirements must follow L.A.R. A(9), B(4)
and C(4). Likewise, a plaintiff may demonstrate exigent circumstances under L.A.R.
B(3)(b) by an affidavit setting out that the vessel or other property is in danger of being
lost, taken from the jurisdiction of the court, or that other good cause exists for granting
expedited proceedings.
A plaintiff who obtains a summons on the basis of exigent circumstances will also be
subject to the provisions of L.A.R. C(2)(b) and C(7).
Rule E. ACTIONS IN REM AND QUASI IN REM; GENERAL PROVISIONS
(1) Statement of Damages and Expenses Required. Every complaint filed in a
Supplemental Rule (B) and (C) action must state the known amount of the debt,
damages, or salvage for which the action is brought, or in the case of a Rule (D)
action, the precise nature of the plaintiff’s interest and the percentage of the
interest claimed. In addition, the complaint should also specify the amount of any
unliquidated claims, including attorneys’ fees and expenses, as well as the legal
basis upon which the plaintiff seeks the unliquidated damages, including the right
to recover attorneys’ fees and expenses.
(2) Advance Arrangements for Substitute Custodian. Plaintiffs are admonished to
make every reasonable advance effort to secure a substitute custodian and to
coordinate issues concerning the appointment of a substitute custodian with the
United States Marshal, and to arrange for advance compliance with L.A.R. A(5),
whenever practical, before filing any complaint which seeks the issuance of
warrant for arrest or execution by the United States Marshal.
(3) Requirements and Procedures for Effecting Intervention. Whenever a vessel or
other property is arrested or attached under a Supplemental Rule, and the vessel or
property is in the custody of the United States Marshal or duly authorized
substitute custodian, any person with a claim against the vessel or property must
present the claim as provided in this rule:
(a) Intervention of Right When No Sale of the Vessel or Property is Pending,
and Where Security Has Not Been Posted but the Vessel is Released.
Except as limited by L.A.R. E(3)(b), any person with a claim against a
vessel or property which has been arrested or attached may, as a matter of
right, file an intervening complaint at any time before entry of an order
scheduling the vessel or property for sale. The intervening party must also
prepare and submit to the clerk a supplemental warrant for arrest or a
supplemental process of attachment and garnishment.
The clerk will file the intervening complaint and issue the supplemental
process. The intervening party must deliver a copy of the intervening
complaint and the original of the supplemental process to the United States
Marshal, who will re-arrest or re-attach the vessel or property in the name
of the intervening plaintiff. If the United States Marshal has on deposit
sufficient funds to maintain the previous seizure, the intervening plaintiff
need not post additional funds. However, any party may subsequently
move to pro-rate the costs of maintaining the seizure among all of the
intervening plaintiffs, as provided in Subsection 5 of this rule.
(b) Permissive Intervention When the Vessel or Property Has Been Scheduled
for Sale by the Court. Except as indicated below and subject to any other
rule or order of this court, no person has an automatic right to intervene in
an action once the court has ordered the sale of the vessel or property, and
the sale is scheduled to occur within fifteen (15) days from the date the
party moves for permission to intervene under this subsection. In such
cases, the person seeking permission to intervene must:
(i) File a motion to intervene and indicate in the caption of the motion
a request for expedited hearing when appropriate;
(ii) Include a copy of the proposed intervening complaint as an exhibit
to the motion to intervene;
(iii) Submit a supplemental warrant for arrest or a supplemental process
of attachment and garnishment;
(iv) Serve copies of the motion to intervene, with exhibits and proposed
supplemental process, upon every other party to the litigation;
(v) Indicate in the motion to intervene whether the intervening party is
seeking to delay the sale of the vessel and, if so, the justification for
doing so; and
(vi) File a certificate of service indicating the date and manner of
service of the motion and accompanying documents.
The court may permit intervention under terms which it deems
equitable to the interests of all parties. If the court permits
intervention, it will direct the clerk to issue the supplemental
process.
The clerk will enter the order, file the original intervening
complaint, and issue the supplemental process with a copy of the
intervening complaint.
The intervening party must deliver a copy of the intervening
complaint and the original of the supplemental process to the
United States Marshal, who will re-arrest or re-attach the vessel or
property in the name of the intervening plaintiff.
Counsel for the intervening party must also serve a copy of the
intervening complaint, exhibits, and supplemental process upon
every other party of record and file a Certificate of Service
indicating the manner and date of service.
(4) Special Requirements for Salvage Actions. In cases of salvage, the complaint
must also state to the extent known the value of the hull, cargo, freight, and other
property salvaged, the amount claimed, the names of the principal salvors, and
whether the suit is instituted on their behalf and on behalf of all other persons
associated with them.
Plaintiff must also attach as exhibits to the complaint a list of all known salvors
and persons believed entitled to share in the salvage, including any crewmembers
who are not parties to the complaint, and a copy of any salvage agreement or other
contract previously entered into by the plaintiff in connection with the actions that
are being shown as the basis for entitlement to a salvage award.
(5) Deposit of United States Marshal’s Fees and Expenses Required Before
Effecting Arrest, Attachment, or Garnishment
(a) Deposit Required Before Seizure. Any party seeking the arrest of a vessel
or attachment of property under Supplemental Rule (E) must deposit a sum
with the United States Marshal sufficient to cover the United States
Marshal’s or substituted custodian’s estimated fees and expenses of
arresting and keeping the property for at least ten days. The United States
Marshal is not required to execute process until the deposit is made.
(b) Proration of United States Marshal’s or Substitute Custodian’s Fees and
Expenses upon Intervention. When one or more parties intervene under
L.A.R. E(3)(a) or (b), the burden of advancing sums to the United States
Marshal or substituted custodian sufficient to cover the United States
Marshal’s or substituted custodian’s fees and expenses will be allocated
equitably between the original plaintiff and the intervening party or parties
as indicated below:
(i) Stipulation for the Allocation and Payment of the United States
Marshal’s or Substituted Custodian’s Fees and Expenses.
Immediately upon the filing of an intervening complaint, counsel
for the intervening plaintiff must arrange for a conference between
all other parties to the action, at which time the parties must make a
good faith effort to allocate fees and expenses among the parties.
Any resulting stipulation must be filed with the court and a copy
served upon the United States Marshal.
(ii) Allocation of Costs and Expenses in the Event that Parties Cannot
Stipulate. The court expects counsel to resolve the allocation of
costs and expenses in accordance with the preceding paragraph, but
if an arrangement cannot be made, the parties will share in the fees
and expenses of the United States Marshal or substitute custodian in
proportion to their claims as stated in the original and intervening
complaints.
To determine each party’s proportionate share, counsel for the last
intervening plaintiff must determine the total amount claimed by
each party from the original or amended complaint and all other
intervening complaints filed in accordance with L.A.R. E(3)(a) or
(b), then deliver to the United States Marshal a list which
summarizes each party’s claim and the proportion which each
party’s claim bears to the aggregate claims asserted in the litigation,
determined to the nearest ⅒ of 1%. The United States Marshal will
then determine the total expenses incurred to date and estimate the
expenses to be incurred during the next 14 days. For the purpose of
making this calculation, the total fees and expenses must be
calculated from the date when continuous and uninterrupted arrest
or attachment of the property began and not from the date a
particular party’s intervening complaint was filed.
The United States Marshal will then apply the percentage
determined in the listing compute the amount of each intervening
party's initial deposit requirements. The United States Marshal will
use this percentage to compute any additional deposit requirements
which may be necessary under L.A.R. E(5)(c).
After the United States Marshal determines of each party’s
percentage share of the deposit requirements, the intervening party
must either post his deposit with the United States Marshal or
substitute custodian or move to set aside that requirement. If the
intervenor fails to comply with this requirement within two days,
the intervenor’s attachment will be vacated.
(c) Additional Deposit Requirements. Until the property arrested or attached
and garnished has been released or otherwise disposed of in accordance
with Supplemental Rule (E), the United States Marshal may require from
any party who has caused the arrest or attachment and garnishment to post
additional deposits which the United States Marshal determines necessary
to cover any additional estimated fees or expenses.
(d) Judicial Relief from Deposit Requirements. Any party who contends that
the deposit requirements of this rule impose a burden disproportionate to
the aggrieved party's potential recovery in light of the relative priorities of
the claims asserted against the vessel or other property may apply to the
court for relief.
Although the judicial officer may adjust the deposit requirements upon
motion, the proportion required of an aggrieved party may not be reduced
to a percentage less than that imposed upon the claimant whose claim is the
smallest among that of claims which the movant stipulates have priority
over its claim or, in the absence of a stipulation, the greatest percentage
imposed upon any claimant participating in the deposit requirements.
(e) Failure to Comply with Additional Deposit Requirements. Any party who
fails to make the additional deposit requested by the United States Marshal
may not participate further in the proceeding, except to seek relief from this
rule. The United States Marshal will notify the court in writing whenever
any party fails to make additional deposits as required by L.A.R. E(5)(c).
If a party questions its obligations to advance monies required by this rule,
the United States Marshal may apply to the court for instructions
concerning that party’s obligation.
(6) Property in Possession of a United States Officer. Whenever the property to be
arrested or attached is in custody of a United States officer, the United States
Marshal must serve the appropriate process either upon the officer or employee or,
if the officer or employee is not found within the district, then, the custodian of the
property within the district.
The United States Marshal must direct the officer, employee, or custodian not to
relinquish custody of the property until further order of the court.
(7) Process Held in Abeyance
(a) When Permitted. If a plaintiff asks the clerk to hold issuance of process in
abeyance under Supplemental Rule (E)(4)(b), the clerk will docket the
request and will not be responsible for ensuring that process is issued at a
later date.
(b) When Intervention is Subsequently Required. It is the intention of these
rules that a vessel or other property should be arrested or attached by
process issued and effected in only one civil action. Therefore, if while
process is held in abeyance on one action, the vessel or property is arrested
or attached in another action, the plaintiff who originally requested process
be held in abeyance in the first action should voluntarily dismiss, without
prejudice, the first action, (insofar as that action seeks to proceed against
the property arrested or attached in the second action) and promptly
intervene in the second action under L.A.R. E(3)(a) or (b).
Motions to consolidate in rem actions against the same vessel or property
will be granted only in exceptional circumstances to prevent undue
hardship or manifest injustice.
(8) Release of Property Under Supplemental Rule (E)(6)
(a) Release by Consent or Stipulation. Release under Supplemental Rule (E)(6)
must be secured by cash, cashier’s check, or money order, a surety bond
issued by an underwriter licensed to issue such bonds in the State of
Mississippi, or a Letter of Undertaking submitted on behalf of the parties’
underwriter which is approved by order of the court. The authorizing
instrument must be signed by the party on whose behalf the property is
detained or the party’s attorney and the attorney-in-fact for a licensed
surety. See Admiralty Form Nos. 9, 12, 13 and 14 forth on the courts’
Websites.
The party seeking release must also submit a proposed order substantially
conforming to Admiralty Form No. 16 on the courts’ Websites.
Unless otherwise agreed by all parties and approved by court order, the
stipulation, bond, or other security must be posted in an amount equal to, or
greater than, the amount required for the following types of action:
(i) Actions Entirely for a Sum Certain. Actions for a sum certain may
be secured by cash, a cashier’s check, or money order in the amount
claimed in the complaint, with interest at 6% per annum from the
date claimed to be due to a date 24 months after the date the claim
was filed, or by filing an approved stipulation or bond for the
amount alleged plus interest as computed in this subsection.
The stipulation or bond must be conditioned to abide by all orders
of the court, and to pay the amount of any final judgment, with
interest.
(ii) Actions Other Than Possessory, Petitory or Partition. Unless
otherwise ordered by the court, these actions must be secured by the
amount of the appraised or agreed value of the property seized, with
interest. If the parties cannot agree upon an appraised value, the
court will order an appraisal.
The stipulation or bond must be conditioned to abide by all orders
of the court, and to pay the amount of any final judgment, with
interest.
The person who consents or stipulates to the release must also file a
claim in accordance with L.A.R. E(3)(a) or (b).
(iii) Possessory, Petitory or Partition Actions. The United States
Marshal may release property in these actions only upon court order
and upon the subsequent deposit of security and compliance with
the terms or conditions that the court deems appropriate.
(b) Upon the Dismissal or Discontinuance of an Action. If the complaint is
dismissed or discontinued by court order, a plaintiff must coordinate with
the United States Marshal to ensure that all costs and charges of the court
and its officers have first been paid.
(c) Release After the Posting of a General Bond
(i) Requirements of a General Bond. General Bonds under
Supplemental Rule (E)(6)(b) must identify the vessel by name,
nationality, dimensions, official number or registration number,
hailing port and port of documentation.
(ii) Responsibility for Maintaining a Current Listing of General Bonds.
The clerk will maintain a current listing of all general bonds in
alphabetical order by name of the vessel. The listing will be
available for inspection during normal business hours.
(iii) Execution of Process. Although the subsequent arrest of a vessel for
which a general bond already has been posted will be stayed under
Supplemental Rule (E)(5)(b), the United States Marshal must still
serve a copy of the complaint upon the master or other person in
whose charge or custody the vessel is found. If neither the master
nor another person in charge of custody is found aboard the vessel,
the United States Marshal should make the return accordingly.
Plaintiff must promptly advise the owner or designated agent, at the
address furnished in the general bond, of (1) the case number, (2)
nature of the action and amount claimed; (3) the plaintiff and name
and address of plaintiff’s attorney; and (4) the return date for the
filing of a claim of owner.
(9) Application to Modify Security for Value and Interest. At any time, any party
who claims an interest in the subject matter of the action may file an application to
increase or decrease the security, and any order granting the application may be
enforced by attachment or as otherwise provided by law. Supplemental Rule (F)(7)
establishes the procedure to increase the security.
(10) Custody and Safekeeping
(a) Initial Responsibility. The United States Marshal will initially take custody
of any vessel, cargo or other property arrested or attached in accordance
with these rules. Thereafter, and until a substitute custodian is authorized in
accordance with L.A.R. E(10)(c), the United States Marshal is responsible
for providing adequate and necessary security for the safekeeping of the
vessel or property. In the discretion of the United States Marshal, adequate
and necessary security may include the placing of keepers on or near the
vessel or the appointment of a facility or person to serve as a custodian of
the vessel or property. Absent exceptional circumstances, the plaintiff
should have a substitute custodian appointed by the court at the time of
filing the complaint as set forth in L.A.R. E(2).
(b) Limitations on the Handling, Repairing, and Subsequent Movement of
Vessels or Property. After the arrest or attachment of a vessel or property
on a vessel, and except as provided in L.A.R. E(10)(a), no person may
handle cargo, conduct repairs, or move a vessel without prior order of
court. The custodian or substitute custodian must, however, comply with
any orders issued by the Captain of the Port, United States Coast Guard,
including an order to move the vessel, and must comply with any
applicable federal, state, or local laws or regulations pertaining to vessel
and port safety, but must not remove the vessel from the District and must
report the vessel’s movement to the court within 24 hours of the movement.
(c) Procedures for Changing Custody Arrangements. Any party may apply to
the court to dispense with keepers, remove or place the vessel, or other
property seized on or about the vessel at a specified facility, designate a
substitute custodian for the property, or for other similar relief. The
application must substantially conform to Admiralty Form No. 17 on the
courts’ Websites.
(i) Notification of the United States Marshal Required. When an
application for change in custody arrangements is filed, either
before or after the United States Marshal has taken custody of the
vessel or property, the filing party must serve notice of the
application on the United States Marshal in sufficient time to permit
the United States Marshal to review the indemnification and
insurance arrangements proposed by the applicant and substitute
custodian. The application must also be served upon all other
parties to the litigation.
(ii) Indemnification Requirements. An application for the appointment
of a substitute custodian or facility must include as an exhibit to the
motion, a consent and indemnification agreement signed by both
the applicant or the applicant’s attorney and the proposed substitute
custodian. The application must substantially conform to Admiralty
Form No. 17 on the courts’ Websites.
The consent and indemnification agreement must expressly release
the United States Marshal from any and all liability and
responsibility for the care and custody of the property while in the
hands of the substitute custodian and must expressly hold the
United States Marshal harmless from all claims arising from the
substitute custodianship. See Admiralty Form No. 18 on the
courts’ Websites.
(iii) Court Approval Required. The application to change custody
arrangements and indemnification and consent agreement must be
submitted to a judicial officer who will determine whether the
facility or substitute custodian is capable of safely keeping the
seized property. The proposed order granting the application should
substantially conform to Admiralty Form No. 19 on the courts’
Websites.
(d) Insurance Requirements. At the time of the arrest or attachment of a vessel
or property, the United States Marshal will obtain insurance to protect itself
and its custodians from liability arising from the arrest, attachment, or
custody. The cost of the insurance will be paid by the plaintiff from the
funds posted with the Marshal before the seizure, until otherwise taxed as
cost. The insurance may be discontinued upon court approval of a consent
custodian under L.A.R. A(5).
(11) Preservation, Humanitarian, and Repatriation Expenses
(a) Limitations on Reimbursement for Services or Supplies Provided to a
Vessel or Property in Custody. Except in cases of emergency or undue
hardship, no person may claim as an expense of administration the costs of
services or supplies furnished to a vessel, seized property unless the
services or supplies have been furnished to the United States Marshal or
substitute custodian upon order of this court or of the United States
Marshal.
Any order issued under this subsection should require the person furnishing
the services or supplies to file a weekly invoice.
(b) Preservation Expenses for the Vessel or Property Under Seizure. The
United States Marshal or substitute custodian is authorized to incur
expenses reasonably deemed necessary to prevent loss or undue
deterioration of the vessel, or other property while in custody.
(c) Expenses for Care and Maintenance of a Crew. Except in an emergency or
upon the authorization of a judicial officer, neither the United States
Marshal nor substitute custodian may incur expenses for feeding or
otherwise maintaining the crew.
Emergency applications for providing food, water, and necessary medical
services for the maintenance of the crew may be submitted and decided ex
parte. Thereafter, any party may bring a motion to challenge or modify the
court’s order, and, unless otherwise provided, the expenses will be taxed as
a cost of administration and not as an expense of custody.
(d) Repatriation Expenses. Absent an order of court expressly ordering the
repatriation of the crew or passengers and directing that the expenses be
taxed as a cost of administration, no person will be entitled to claim these
expenses as expenses of administration.
(e) Claim by a Supplier for Payment of Charges. Any person who claims
payment for furnishing services or supplies in compliance with L.A.R.
E(11) must submit an invoice to the United States Marshal’s office for
review and approval before the vessel is released.
The United States Marshal will review the claim, make adjustments or
recommendations to the claim as are appropriate, and forward the claim to
the court for approval. The court may postpone the hearing on an individual
claim until a hearing can be set to consolidate other claims against the
property.
(12) Property in Incidental Custody and Otherwise not Subject to the Arrest or
Attachment
(a) Authority to Preserve Cargo in Incidental Custody. The United States
Marshal or an authorized substitute custodian is responsible for securing,
maintaining, and preserving all property incidentally taken into custody as
a result of the arrest or attachment of a vessel or property. Incidental
property may include but is not limited to laden cargo not itself the subject
of the arrest or attachment.
The United States Marshal or substitute custodian must maintain a separate
account of all costs and expenses associated with the care and maintenance
of property incidentally taken into custody.
Any person claiming entitlement to possession of property incidentally
taken into custody must, as a precondition of receiving possession,
reimburse the United States Marshal or substitute custodian for such
separately accounted expenses, reserving a right to seek payment of said
expenses from any other party.
(b) Separation, Storage, and United States Preservation of Property in
Incidental Custody. Any party, the United States Marshal, or substitute
custodian may petition the court to permit the separation and storage of
property in incidental custody from the property actually arrested or
attached.
If the court orders separation of the incidentally seized property to protect it
from undue deterioration, to provide for safer storage, to meet an
emergency, to reduce the expenses of custody, or to facilitate a sale of the
vessel or other property under L.A.R. E(17), the costs of that separation
will be treated as an expense of preservation and taxed as a cost of custody.
(c) Disposal of Unclaimed Property. Property incidentally in custody and not
subsequently claimed by any person entitled to possession will be disposed
of in accordance with the laws governing the disposition of property
abandoned to the United States of America.
Except when prohibited by federal statute, the resulting net proceeds
associated with the disposition of abandoned property will be applied to
offset the expense of administration with the remainder escheating to the
United States of America as provided by law.
(13) Dismissal
(a) By Consent. An action may not be dismissed under FED. R. CIV. P. 41(a)
unless all costs and expenses of the court and its officials have been paid.
In the case of multiple plaintiffs or an intervening plaintiff(s), the plaintiff
or intervening plaintiff may not dismiss its claims unless it has paid its
proportionate share of costs and expenses in accordance with L.A.R. E(8).
(b) Involuntary Dismissal. An order of dismissal under FED. R. CIV. P. 41(b)
should also designate the costs and expenses to be paid by the party or
parties so dismissed.
(14) Judgments
(a) Expenses of Sureties as Costs. If costs are awarded to any party, then all
reasonable insurance premiums or expenses previously paid by the
prevailing party on bonds, stipulations, or other security may be taxed as
costs in the case.
(b) Costs of Arrest or Attachment. If costs are awarded to any party, then all
reasonable expenses paid by the prevailing party incidental to or arising
from the arrest or attachment of any vessel, property, or cargo may be taxed
as costs in the case.
(15) Stay of Final Order
(a) Automatic Stay for 14 Days. In accordance with FED. R. CIV. P. 62(a), a
party may not execute upon a judgment, and seized property may not be
released, until 14 days after the entry of the judgment or order of dismissal.
(b) Stays Beyond the 14-Day Period. If within the 14-day period established by
FED. R. CIV. P. 62(a) a party files either a motion contemplated in FED. R.
CIV. P. 62(b) or a notice of appeal, then unless otherwise ordered by the
court, the stay will be extended for a period not to exceed 30 days from the
date of the filing of the motion or notice of appeal to permit the court to
consider an application for the establishment of a supersedeas bond and
when this bond must be filed with the court.
(16) Notice of Sale
(a) Publication of Notice. In an action in rem or quasi in rem, and except in
suits filed on behalf of the United States of America where notice is
prescribed by statute, the United States Marshal must publish notice in any
of the newspapers approved under L.A.R. A(9).
(b) Duration of Publication. Unless otherwise ordered by the court, applicable
Supplemental Rule, or Local Admiralty Rule, publication of the notice of
sale must be made at least twice; the first publication must be at least one
(1) calendar week before the date of the sale, and the second at least three
calendar days before the date of the sale.
(17) Sale of a Vessel or Property
(a) Payment of the Purchase Price. Unless otherwise provided in the order of
sale, the person whose bid is accepted must pay the United States Marshal
the purchase price in the manner provided below:
(i) If the Bid is Not More Than $500.00. The successful bidder must
immediately pay the full purchase price.
(ii) If the Bid is More than $500.00. The bidder must immediately
deposit with the United States Marshal $500.00, or 10% of the bid,
whichever sum is greater, and must pay the remaining purchase
price within three days.
If an objection to the sale is filed within the time permitted by
L.A.R. E(17)(g), the successful bidder need not pay the remaining
purchase price until three days after the court confirms the sale.
(b) Method of Payment. Unless otherwise ordered by the court, payments to the
United States Marshal must be made in cash, certified check, or cashier’s
check.
(c) Custodial Costs Pending Payment. When a successful bidder fails to pay
the balance of the bid within the time allowed by L.A.R. E(17)(a)(2) or
within the time permitted by court order, the United States Marshal will
charge the successful bidder for the cost of keeping the property from the
date payment of the balance was due to the date the bidder takes delivery of
the property.
The United States Marshal may refuse to release the property until these
additional charges have been paid.
(d) Default for Failure to Pay the Balance. A person who fails to pay the
balance of the bid within the time allowed will be deemed to be in default,
and a judicial officer may then either order that the sale be awarded to the
second highest bidder or may order a new sale, as appropriate.
Any sum deposited by the bidder in default will be forfeited and applied by
the United States Marshal to any additional costs incurred because of the
forfeiture and default, including costs incident to resale. The balance of the
deposit, if any, will be retained in the registry and subject to further order
of the court.
(e) United States Marshal’s Report of Sale. At the conclusion of the sale, the
United States Marshal must file a written report of the sale to include the
date of the sale, the price obtained, and the name and address of the buyer.
(f) Confirmation of Sale. Unless an objection is timely filed in accordance
with this rule, or the bidder is in default for failing to pay the balance of the
purchase price, plaintiff must have the sale confirmed on the day following
the last day for filing objections.
To confirm the sale, plaintiff’s counsel must file a “Request for
Confirmation of Sale” on the day following the last day for filing an
objection. The “Request for Confirmation of Sale” must substantially
conform to Admiralty Form No. 20 on the courts’ Websites. Plaintiff’s
counsel must also prepare and offer for filing a “Confirmation of the Sale.”
The “Confirmation of the Sale” must substantially conform to Admiralty
Form No. 21 on the courts’ Websites. The clerk will file and docket the
confirmation and promptly transmit a certified copy of the “Confirmation
of Sale” to the United States Marshal’s office.
Unless otherwise ordered by the court, if the plaintiff fails timely to file the
“Request for Confirmation of Sale” and proposed “Confirmation of Sale,”
the United States Marshal will assess any continuing costs or expenses for
custody of the vessel or property against the plaintiff.
(g) Objections to Confirmation
(i) Time for Filing Objections. Unless otherwise permitted by the
court, an objection must be filed within 7 days following the sale.
The person who objects must serve a copy of the objection upon the
United States Marshal and all other parties to the action, along with
a Certificate of Service indicating the date and manner of service.
Opposition to the objection must be filed within 7 days after receipt
of the objection to the sale.
The court will consider the objection and any opposition to the
objection and confirm the sale, order a new sale, or grant other
relief as appropriate.
(ii) Deposition of Preservation or Maintenance Costs. Any person who
objects to the sale must also deposit with the United States Marshal
the cost of keeping the property for at least seven days. Proof of the
deposit with the United States Marshal’s office must be delivered to
the clerk’s office for filing. The court will not consider the
objection without proof of this deposit.
If the objection is sustained, the objector will be reimbursed for the
expense of keeping the property from the proceeds of any
subsequent sale, and any remaining deposit will be returned to the
objector upon court order.
If the objection is denied, the sum deposited by the objector will be
applied to pay the fees and expenses incurred by the United States
Marshal in keeping the property from the date the objection was
filed until the sale is confirmed. Any remaining deposit will be
returned to the objector upon court order.
(h) Confirmation of Title. Any claim of failure of a party to give the required
notice of an action to arrest of a vessel, or other property or, or failure to
give required notice of a sale may afford grounds for objecting to the sale
but does not affect the title of a good faith purchaser.
(18) Post-sale Claim. Except for seamen’s wages, unless otherwise ordered by the
court, any claims filed after the date of the sale will be limited to the remnants and
surplus, if any, arising from the sale, will not be admitted on behalf of lienors who
file their claims after the sale.
Rule F. ACTIONS TO LIMIT LIABILITY
(1) Security. Upon filing a complaint, the plaintiff must deposit with the court a sum
equal to the amount or value of the plaintiff’s interest in the vessel and pending
freight, if any (see Admiralty Form No. 22 on the courts’ Websites), or approved
security for that amount such as a Letter of Undertaking or an Ad Interim
Stipulation for Value which substantially conforms to Admiralty Form No. 23 on
the courts’ Websites.
(2) Submission of Proposed Order and Enjoining of Suits. After the plaintiff
complies with Supplemental Rule (F)(1), plaintiff may move for an injunction
against further prosecution of all claims against the plaintiff or the plaintiff’s
property. The plaintiff must submit with the motion a proposed order that
substantially conforms to Admiralty Form No. 24 on the courts’ Websites.
(3) Publication of the Notice. After entry of an Order Approving Ad Interim
Stipulation for and Enjoining Suits, plaintiff must ask the clerk to issue the notice
contemplated by Supplemental Rule (F)(4), to be published as required by that
Rule. Plaintiff must use diligence to make publication in a manner reasonably
calculated to give notice to all known or reasonably anticipated claimants. (See
Admiralty Form No. 25 on the courts’ Websites.)
(4) Proof of Publication. Plaintiff may make proof of publication by filing a sworn
statement by or on behalf of the publisher or editor indicating the dates of
publication, along with a copy of the actual publication.
Rule G. FORFEITURE ACTIONS IN REM
(1) Scope. This rule applies to all civil forfeiture in rem actions arising from a federal
statute. To the extent that this rule does not address an issue, L.A.R. C and E
apply. If neither this rule nor L.A.R. C or E address an issue, then Supplemental
Rule (G) applies.
(2) Verification of the Complaint. A complaint filed in any civil forfeiture action in
rem action arising from a federal statute must be verified by affirmation of a
person having knowledge, firsthand or otherwise, of the facts alleged in the
complaint.
(3) Forfeiture of Real Property
(a) If the defendant in an in rem civil forfeiture action is real property, the
government must proceed in accordance with 18 U.S.C. § 985.
(b) After a complaint is filed, and on the request of the government, a judicial
officer will issue a writ of entry to allow inspection and inventory of the
property.
(c) If the court issues a seizure warrant for real property before the entry of an
order of forfeiture under 18 U.S.C. § 985(d)(1)(B)(ii), it will conduct a
prompt post-seizure hearing during which the property owner may contest
the basis for the seizure.
(4) Forfeiture of Other Property; Arrest Warrant In Rem
(a) If property other than real property is already in the possession, custody, or
control of the government when the complaint for forfeiture is filed, the
clerk of the court will issue a warrant to arrest the property.
(b) If property other than real property is not already in the possession,
custody, or control of the government, upon a finding of probable cause,
the Court must issue a warrant to arrest the property.
(c) A warrant is not necessary if the property is already subject to a judicial
restraining order.
(5) Notice
(a) Generally. The plaintiff must provide notice of any civil forfeiture action in
rem in accordance with Supplemental Rule (G)(4). The government may
publish notice on an official government forfeiture website for at least 30
consecutive days.
(b) Known Potential Claimants. The government must send notice of the
action and a copy of the complaint to any person who reasonably appears to
be a potential claimant.
(c) Property Valued at Less than $1,000.00. Publication is not required as long
as direct notice is sent to all known potential claimants under Supplemental
Rule (G)(4)(b).
(6) Responsive Pleadings
(a) Strict Compliance Required. All claims and answers must be filed within
the filing deadlines established by Supplemental Rule (G)(5), unless the
court, for good cause, grants an extension of time to file a claim or answer
before the expiration of those deadlines.
(b) Excuse. Failure to file a timely claim or answer will not prevent a claimant
from petitioning the court t
