Opinion
08 Civ. 8391 (SAS).
October 13, 2008
For Plaintiff: Kirk M. H. Lyons, Esq., Jon Werner, Esq., Lyons Flood, L.L.P., New York, New York.
For Defendant: Lauren Cozzolino Davies, Esq., Tisdale Law Offices, LLC, New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION AND BACKGROUND
On October 3, 2008, this Court issued an oral ruling vacating the Rule B attachment previously entered in the above-captioned case. On that date, plaintiff Rizzo-Bottiglieri de Carlini Armatoris P.A. ("Rizzo-Bottiglieri") indicated to the Court that it had not yet attached any of defendant's assets. According to the terms of the initial attachment order, service executed that day terminated at the close of that business day. Despite this Court's vacatur order, on October 6 Rizzo-Bottiglieri de Carlini again served the Rule B Attachment on a number of New York banks and successfully attached $500,500 in electronic fund transfers passing through the New York offices of HSBC.
See Transcript of October 3, 2008 Hearing. See also Order Vacating Maritime Attachment, Rizzo-Bottiglieri de Carlini Armatoris P.A., No. 08 Civ. 8391 (S.D.N.Y. Oct. 3, 2008).
See Ex Parte Order for Process of Maritime Attachment and Garnishment, Rizzo-Bottiglieri de Carlini Armatoris P.A., No. 08 Civ. 8391 (S.D.N.Y. Oct. 1, 2008) ("[S]ervice on any garnishee is deemed to be effective and continuous service throughout the remainder of the day upon which such service is made.").
See 10/7/08 Letter from Jon Werner, plaintiff's counsel, to Thomas L. Tisdale and Lauren C. Davies, defendant's counsel, Ex. 1 to 10/7/08 Letter from Thomas L. Disdale to the Court.
In light of these facts, on October 7, 2008, this Court entered an order that Rizzo-Bottiglieri "discontinue service of the Process of Maritime Attachment and Garnishment and immediately release any and all funds currently restrained thereunder." Rizzo-Bottiglieri now moves for reconsideration of the October 7 Order. For the reasons described below, Rizzo-Bottiglieri's motion for reconsideration is granted, but the Court adheres to its original decision.
See Order, Rizzo-Bottiglieri de Carlini Armatoris P.A., No. 08 Civ. 8391 (S.D.N.Y. Oct. 7, 2008)
II. LEGAL STANDARD
III. DISCUSSION
In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation omitted).
In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570, 2006 WL 708149, at *1 (S.D.N.Y. Mar. 20, 2006) (quoting Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)).
Despite the requirement that a maritime attachment may only be issued upon a showing that "the defendant's property may be found within the district," Aqua Stoli Shipping, Ltd. v. Gardner Smith Pty, Ltd., 460 F.3d 434, 445 (2d Cir. 2006), a Rule B order may be issued in anticipation of funds coming into the District at some unknown future time. See Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 273 (2d Cir. 2002).
Fed. Supp. R. Civ. P. E(4)(c).
Reibor Int'l Ltd. v. Cargo Carriers, 759 F.2d 262, 266 (2d Cir. 1985) (quoting N.Y. Civ. Prac. Law § 6214(b) and Joseph M. McLaughlin, Practice Commentary § C6214:3).
An order to vacate a Rule B attachment is subject to the restrictions of Rule 62(a) of the Federal Rules of Civil Procedure. Specifically, Rule 62(a) states, "[N]o execution may issue on a judgment, nor may proceedings be taken to enforce it, until 10 days have passed after its entry." Therefore, during the ten-day period following issuance of an order to vacate, a party may not seek an order that would execute and enforce the vacatur by releasing attached assets. This ensures that the order to vacate does not disturb the status quo and nullify the plaintiff's appellate rights by allowing the removal of seized assets from the District.
See Status Int'l S.A. v. M D Maritime Ltd., No. 97 Civ. 9313, 1998 WL 108007, at *2-*4 (S.D.N.Y. Mar. 11, 1998). See also Rapture Shipping Ltd. v. Allround Fuel Trading B.V. Chemoil, No. 06 Civ. 5296, 2006 WL 2850206, at *2 (S.D.N.Y. Oct. 4, 2006).
Cf. Swift Co. Packers v. Compania Colombiana del Caribe, S.A., 339 U.S. 684, 689 (1950) (noting in a case where a tangible asset had been seized that appellate review after the release of seized assets "would be an empty right . . . and the restoration of the attachment only theoretically possible").
However, "Rule 62(a) does not purport to make a judgment ineffective for 10 days after entry; on the contrary, the judgment retains full force and effect for other purposes." In this case, Rizzo-Bottiglieri de Carlini continued to hold a copy of an attachment order, but that order had been vacated. Therefore it was and continues to be barred from serving the attachment order upon potential garnishees, even during the ten-day period prescribed by Rule 62(a). Moreover, any assets seized as a result of service of the Rule B order after issuance of the order to vacate are subject to immediate release.
Fish Market Nominee Corp. v. Pelofsky, 72 F.3d 4, 6 (1st Cir. 1995).
IV. CONCLUSION
For the foregoing reasons, plaintiff's motion for reconsideration is granted, but the Court adheres to its original decision.
SO ORDERED.