U.S. District Court for the Central District of California
E.4 (83-RE.3) REVIEW BY JUDICIAL OFFICER (a) Authorization to Issue Process. Before the Clerk will issue a summons and process of arrest, attachment or garnishment to any party, including intervenors, under Supplemental Rules B and C, the pleadings, the affidavit required by Rule B, and accompanying supporting documents must be reviewed by a judicial officer. If the judicial officer finds the conditions set forth in Rules B or C appear to exist, as appropriate, the judicial officer shall authorize the Clerk to issue process. Supplemental process or alias process may thereafter be issued by the Clerk upon application without further order of the Court.
(b) Exigent Circumstances. If the plaintiff or plaintiff’s attorney certifies by affidavit or declaration pursuant to 28 U.S.C. § 1746 submitted to the Clerk that exigent circumstances make review impracticable and sets forth in detail the facts that establish the exigent circumstances, the Clerk shall issue a summons and warrant of arrest or process of attachment and garnishment. (c) Personal Appearance. Unless otherwise required by the judicial officer, the review by the judicial officer will not require the presence of the applicant or the applicant’s attorney but shall be based upon the pleadings and other documents submitted on behalf of that party.
(d) Order. Upon approving the application for arrest, attachment or garnishment, the judicial officer will issue an order to the Clerk authorizing the Clerk to issue an order for arrest, attachment, or garnishment. The proposed form of order authorizing the arrest, attachment, or garnishment, and the order for arrest, 12/1/18 Chapter II - 7 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA attachment, or garnishment shall be submitted with the other documents for review. (e) Request for Review.
Except in case of exigent circumstances, application for review shall be made by filing a Notice of Request for Review In Accordance With Supplemental Rule B or C with the Clerk and stating therein the process sought and any time requirements within which the request must be reviewed. The Clerk shall contact the judicial officer to whom the matter is assigned (or if that officer is not available, another judicial officer) to arrange for the necessary review. It will be the duty of the applicant to ensure that the application has been reviewed and, upon approval, presented to the Clerk for issuance of the appropriate order. E.5 (83-E.3) PROCESS HELD IN ABEYANCE If a party does not wish the process to be issued at the time of filing the action, the party shall request that issuance of process be held in abeyance.
It will not be the responsibility of the Clerk or the Marshal to ensure that process is issued at a later date. E.6 (83-C.3) SERVICE BY MARSHAL REQUIRED Only a Marshal shall serve a warrant of arrest or process of maritime attachment or garnishment on a vessel, cargo or other tangible property. Upon completion of service, the Marshal shall file proof thereof in the appropriate form. E.7 (83) INSTRUCTIONS TO THE MARSHAL The party who requests a warrant of arrest or process of attachment or garnishment shall provide instructions to the Marshal.
E.8 (83) PROPERTY IN POSSESSION OF UNITED STATES OFFICER When the property to be attached or arrested is in the custody of an employee or officer of the United States, the Marshal will deliver a copy of the complaint and warrant of arrest or summons and process of attachment or garnishment to that officer or employee, if present, and otherwise to the custodian of the property. The Marshal will instruct the officer or employee or custodian to retain custody of the property until ordered to do otherwise by a judicial officer. 12/1/18 Chapter II - 8 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA E.9 (83-E.2) SECURITY FOR COSTS In an action under the Supplemental Rules, a party may move upon notice to all parties for an order to compel an adverse party to post security for costs with the Clerk pursuant to Supplemental Rule E(2)(b). Unless otherwise ordered, the amount of security shall be $500.00.
The party so ordered shall post the security within seven (7) days after the order is entered. A party who fails to post security when due may not participate further in the proceedings. A party may move for an order increasing the amount of security for costs. E.10 (83-E.4) ADVERSARY HEARING Upon application of any interested party, the adversary hearing following arrest or attachment or garnishment under Supplemental Rule E(4)(f) shall be conducted promptly by a judicial officer.
The Court may order such notice as it deems appropriate. E.11 (83) APPRAISAL An order for appraisal of property so that security may be given or altered will be entered by the Clerk at the request of any interested party. If the parties do not agree in writing upon an appraiser, a judicial officer will appoint the appraiser. The appraiser shall be sworn to the faithful and impartial discharge of the appraiser’s duties before any federal or state officer authorized by law to administer oaths.
The appraiser shall give twenty-four (24) hours notice of the time and place of making the appraisal to counsel of record. The appraiser shall promptly file the appraisal with the Clerk and serve it upon counsel of record. The appraiser’s fee will be paid by the moving party, unless otherwise ordered or agreed but it is a taxable cost of the action. E.12 (83) SECURITY DEPOSIT FOR ARREST OR ATTACHMENT OF VESSELS The first party who seeks arrest or attachment of a vessel or property aboard a vessel shall deposit with the Marshal the sum estimated by the Marshal to be sufficient to cover the expenses of the Marshal including, but not limited to, dockage, keepers, maintenance, and insurance for at least fourteen (14) days.
The Marshal is not required to execute process until the deposit is made. The party shall advance additional sums from time to time as directed by the Marshal to cover the Marshal’s estimated expenses until the property is released or disposed 12/1/18 Chapter II - 9 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA of as provided in Supplemental Rule E. A party who fails to advance such additional sums may not participate further in the proceedings except by order of the Court. The Marshal may, upon notice to all parties, petition the Court for an order to release the vessel if additional sums are not advanced within seven (7) days after the request, or seek such other appropriate relief as the Court deems proper. E.13 (83) INTERVENOR’S CLAIMS (a) Presentation of Claim.2 When a vessel or other property has been arrested, attached, or garnished, and is in the hands of the Marshal or substitute custodian, anyone having a claim against the vessel or property is required to present the claim by filing an intervening complaint and obtaining a warrant of arrest or process of maritime attachment and garnishment, and not by filing an original complaint, unless otherwise ordered by a judicial officer.
The intervening party shall file a Notice of Request for Review pursuant to Local Admiralty Rule E.4(e). Upon obtaining judicial approval for issuance of process, the intervening party shall forthwith deliver a conformed copy of the complaint in intervention and the intervenor’s warrant of arrest or process of attachment or garnishment to the Marshal, who shall deliver the same to the vessel or custodian of the property. Intervenors shall thereafter be subject to the rights and obligations of parties, and the vessel or property shall stand arrested, attached, or garnished by the intervenor. An intervenor shall not be required to advance a security deposit to the Marshal.
(b) Sharing Marshal’s Fees and Expenses. An intervenor shall owe a debt to the first plaintiff, enforceable on motion, consisting of the intervenor’s share of the Marshal’s fees and expenses in the proportion that the intervenor’s claim bears to the sum of all the claims. If a party plaintiff permits vacation of an arrest, attachment or garnishment, remaining plaintiffs share the responsibility to the Marshal for fees and expenses in proportion to the remaining claims and for the duration of the Marshal’s custody because of each claim. 2 L.A.R. E.13(a) amended, effective 12/1/2018.
12/1/18 Chapter II - 10 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA E.14 (83) CUSTODY OF PROPERTY (a) Safekeeping of Property. When a vessel, cargo or other property is brought into the Marshal’s custody by arrest or attachment, the Marshal shall arrange for adequate safekeeping, which may include the placing of keepers on or near the vessel. A substitute custodian in place of the Marshal may be appointed by order of the Court. The custodian shall have liability of not less than $10,000.00.
Notice of the application to appoint a substitute custodian must be given to all parties and the Marshal. The application must show the name of the proposed substitute custodian, the location of the vessel during the period of custody, and the proposed insurance coverage. (b) Insurance. The Marshal may procure insurance to protect the Marshal, his deputies, keepers, and substitute custodians, from liabilities assumed in arresting and holding the vessel, cargo, or other property, and in performing whatever services may be undertaken to protect the vessel, cargo, or other property and to maintain the Court’s custody.
The party applying for removal of the vessel, cargo or other property to another location, for designation of a substitute custodian, or for other relief that will require an additional premium, shall reimburse the Marshal therefor. The premiums charged for the liability insurance are taxable as administrative costs while the vessel, cargo, or other property is in the custody of the Court. (c) Vessel Operations. Following arrest or attachment of a vessel, no cargo handling, repairs, or movement may be made without an order of Court.
The applicant for such an order shall give notice to the Marshal and to all parties of record. Upon proof of adequate insurance coverage of the applicant to indemnify any liability of the Marshal, the Court may direct the Marshal to permit cargo handling, repairs, movement of the vessel, or other operations. Before or after the Marshal has taken custody of a vessel, cargo or other property, any party of record may move for an order to dispense with keepers or to remove or place the vessel, cargo, or other property at a specified facility, to designate a substitute custodian, or for similar relief. Notice of the motion shall be given to the Marshal and to all parties of record.
The judicial officer will require that adequate insurance on the property will be maintained by the successor to the Marshal, before issuing the order to change arrangements. 12/1/18 Chapter II - 11 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA (d) Claims by Suppliers for Payment of Charges.3 A person who furnishes supplies or services to a vessel, cargo, or other property in custody of the Court who has not been paid and claims the right to payment as an expense of administration shall file an invoice with the Clerk in the form of a verified claim at any time before the vessel, cargo, or other property is released or sold. The supplier must serve copies of the claim on the Marshal, substitute custodian if one has been appointed, and all parties of record. The Court may consider the claims individually or may schedule a single hearing for all claims.
E.15 (83-E.9) SALE OF PROPERTY (a) Notice. Notice of sales of arrested or attached property shall be published in one or more newspapers to be specified in the order for sale. Unless otherwise ordered by a judge upon a showing of urgency or impracticality or unless otherwise provided by law, such notice shall be published for at least seven (7) days before the date of sale. (b) Payment of Bid.
Unless otherwise provided in the order, in all public auction sales by the Marshal under orders of sale in admiralty and maritime claims, the Marshal shall require of the last and highest bidder at the sale a minimum deposit in cash, certified check or cashier’s check, of the full purchase price if it does not exceed $500 and otherwise $500 or ten percent (10%) of the bid, whichever is greater. The balance, if any, of the purchase price shall be paid in cash, certified check or cashier's check before confirmation of the sale or within seven (7) days of the dismissal of any opposition which may have been filed, exclusive of Saturdays, Sundays and legal holidays. Notwithstanding the above, a plaintiff or intervening plaintiff foreclosing a properly recorded and endorsed preferred mortgage on, or other valid security interest in the vessel may bid, without payment of cash, certified check or cashier’s check, up to the total amount of the secured indebtedness as established by affidavit filed and served by that party on all other parties not later than fourteen (14) days prior to the date of sale. 3 L.A.R. E.14(d) amended, effective 12/1/2018.
12/1/18 Chapter II - 12 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA (c) Report and Confirmation. At the conclusion of the sale, the Marshal shall forthwith file a written report to the Court setting forth the notice given; the fact of sale; the date of the sale; the names, addresses, and bid amounts of the bidders; the price obtained; and any other pertinent information. The Clerk of the Court shall endorse upon such report the time and date of its filing. If within seven (7) days, no written objection is filed, the sale shall stand confirmed as of course, without the necessity of any affirmative action thereon by the Court and the Clerk upon request shall so state to the Marshal in writing; except that no sale shall stand confirmed until the buyer has complied fully with the terms of his purchase.
If no opposition to the sale is filed, the expenses of keeping the property pending confirmation of sale shall be charged against the party bearing expenses before the sale (subject to taxation as costs), except that if confirmation is delayed by the purchaser’s failure to pay any balance which is due on the price, the cost of keeping the property subsequent to the seven (7) day period hereinabove specified shall be borne by the purchaser. (d) Penalty for Late Payment of Balance. A successful bidder who fails to pay the balance of the bid within the time allowed under these rules or a different time specified by the Court shall also pay the Marshal the costs of keeping the property up to the date the bidder pays the balance and takes delivery of the property. Unless otherwise ordered by the Court, the Marshal shall refuse to release the property until this additional charge is paid.
(e) Penalty for Default in Payment of Balance. A successful bidder who fails to pay the balance of the bid within the time allowed is in default and the Court may at any time thereafter order a sale to the second highest bidder or order a new sale as appropriate. Any sum deposited by the bidder in default shall be applied to pay any additional costs incurred by the Marshal by reason of the default, including costs incident to resale. The balance of the deposit, if any, shall be retained in the registry subject to further order of the Court, and the Court shall be given written notice of its existence whenever the registry deposits are reviewed.
12/1/18 Chapter II - 13 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA (f) Opposition to Sale.4 A party filing an opposition to the sale, whether seeking the reception of a higher bid or a new public sale by the Marshal, shall give prompt notice to all other parties and to the purchaser. Such party shall also, prior to filing an opposition, secure the Marshal’s endorsement upon it acknowledging deposit with the Marshal of the necessary expense of keeping the property for at least seven (7) days. Pending the Court’s determination of the opposition, such party shall also advance any further expense at such times and in such amounts as the Marshal shall request, or as the Court orders upon application of the Marshal or the opposing party. Such expense may later be subject to taxation as costs.
In the event of failure to make such advance, the opposition shall fail without necessity for affirmative action thereon by the Court. If the opposition fails, the expense of keeping the property during the pendency of the opposition shall be borne by the party filing the opposition. (g) Disposition of Deposits. (i) Objection Sustained If an objection is sustained, sums deposited by the successful bidder will be returned to the bidder forthwith.
The sum deposited by the objector will be applied to pay the fees and expenses incurred by the Marshal in keeping the property until it is resold, and any balance remaining shall be returned to the objector. The objector will be reimbursed for the expense of keeping the property from the proceeds of a subsequent sale. (ii) Objection Overruled. If the objection is overruled, the sum deposited by the objector will be applied to pay the expense of keeping the property from the day the objection was filed until the day the sale is confirmed, and any balance remaining will be returned to the objector forthwith.
4 L.A.R. E.15(f) amended, effective 12/1/2018. 12/1/18 Chapter II - 14 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA RULE F (RF-F) - LIMITATION OF LIABILITY F.1 (83-F.1) SECURITY FOR COSTS The amount of security for costs under Supplemental Rule F(1) shall be $1,000 unless otherwise ordered and it may be combined with the security for value and interest. F.2 (83) ORDER OF PROOF AT TRIAL Where the vessel interests seeking statutory limitation of liability have raised the statutory defense by way of answer or complaint, the plaintiff in the former or the damage claimant in the latter shall proceed with its proof first, as is normal at civil trials. RULE G (83, RG-G) – MISCELLANEOUS G.1 (83) DESERTING SEAMEN CASES (a) Service.
Upon filing a verified petition for return of wages deposited in the registry of the Court pursuant to the provisions of 46 U.S.C. § 11505, a copy of the petition shall be served forthwith on the United States Attorney and a copy mailed to the Attorney General of the United States, after which a sworn return of such service and mailing shall be filed. (b) Time to Plead. The United States has twenty-one (21) days after receipt of a copy of the petition by the United States Attorney in which to file its responsive pleading and claim. G.2 (83) RATE OF PREJUDGMENT INTEREST ALLOWED Unless a judge directs otherwise or as provided by statute, prejudgment interest shall be awarded at the rate authorized in 28 U.S.C. § 1961, providing for interest on judgments.
12/1/18 Chapter II - 15 LOCAL RULES - CENTRAL DISTRICT OF CALIFORNIA G.3 (83) ASSIGNMENT OF ACTIONS If the judge to whom a case under the Local Admiralty Rules has been assigned is not readily available, any matter pertaining to arrest, attachment, garnishment, security or release may be presented to any other judicial officer in the district without reassigning the case. END OF CHAPTER II - RULES FOR ADMIRALTY AND MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS 12/1/18 Chapter II - 16
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