(1) When
Available; Complaint, Affidavit, Judicial Authorization, and
Process.
In an in personam action:
(a) 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.
(b) The plaintiff or the plaintiff's
attorney must sign and file with the complaint an affidavit
stating that, to the affiant's knowledge, or on information and
belief, the defendant cannot be found within the district. The
court must review the complaint and affidavit and, if the
conditions of this Rule B appear to exist, enter an order so
stating and authorizing process of attachment and garnishment.
The clerk may issue supplemental process enforcing the court's
order upon application without further court order.
(c) If the plaintiff or the plaintiff's
attorney certifies that exigent circumstances make court review
impracticable, the clerk must issue the summons and process of
attachment and garnishment. The plaintiff has the burden in any
post-attachment under Rule E(4)(f) to show
that exigent circumstances existed.
(d)
(i) If the property is a vessel or
tangible property on board a vessel, the summons, process, and
any supplemental process must be delivered to the marshal for
service.
(ii) If the property is other tangible or
intangible property, the summons, process, and any supplemental
process must be delivered to a person or organization authorized
to serve it, who may be (A) a marshal; (B) someone under contract
with the United States; (C) someone specially appointed by the
court for that purpose; or, (D) in an action brought by the
United States, any officer or employee of the United States.
(e) The plaintiff may invoke state-law
remedies under Rule 64 for seizure of person or property for the
purpose of securing satisfaction of the judgment.
(2) Notice to
Defendant.
No default judgment may be entered except
upon proof - which may be by affidavit - that:
(a) the complaint, summons, and process of
attachment or garnishment have been served on the defendant in a
manner authorized by Rule 4;
(b) the plaintiff or the garnishee has
mailed to the defendant the complaint, summons, and process of
attachment or garnishment, using any form of mail requiring a
return receipt; or
(c) the plaintiff or the garnishee has
tried diligently to give notice of the action to the defendant
but could not do so.
(3) Answer.
(a) By Garnishee.
The garnishee shall serve an answer,
together with answers to any interrogatories served with the
complaint, within 21 days after service of process upon the
garnishee. Interrogatories to the garnishee may be served with
the complaint without leave of court. If the garnishee refuses or
neglects to answer on oath as to the debts, credits, or effects
of the defendant in the garnishee's hands, or any interrogatories
concerning such debts, credits, and effects that may be
propounded by the plaintiff, the court may award compulsory
process against the garnishee. If the garnishee admits any debts,
credits, or effects, they shall be held in the garnishee's hands
or paid into the registry of the court, and shall be held in
either case subject to the further order of the court. (b) By
Defendant. The defendant shall serve an answer within 30 days
after process has been executed, whether by attachment of
property or service on the garnishee.
(b) By
Defendant.
The defendant shall serve an answer within
30 days after process has been executed, whether by attachment of
property or service on the garnishee.