FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROSHIPLINE INC; EP-TEAM INC.,
Plaintiffs-Appellants, No. 08-35337
v. D.C. No.
ASPEN INFRASTRUCTURES LTD, 3:07-cv-05660-FDB
formerly known as Suzlon ORDER AND
Infrastructure Ltd; SUZLON AMENDED
INFRASTURCTURE LTD, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
December 7, 2009—Seattle, Washington
Filed February 3, 2010;
Amended June 8, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer;
Partial Concurrence and Partial Dissent by Judge Tallman
8247
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8251
COUNSEL
Steven V. Gibbons, Gibbons & Associates, P.S., Seattle,
Washington, for the plaintiffs-appellants.
Robert J. Bocko, Keesal, Young & Logan, Seattle, Washing-
ton, for the defendant-appellee.
8252 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
ORDER
The opinion filed February 3, 2010 is hereby amended. The
amended opinion is filed concurrently with this order.
The petition for rehearing filed by Defendants-Appellees
on February 16, 2010 is DENIED. The petition for rehearing
filed by Plaintiffs-Appellants on February 17, 2010 is also
DENIED.
Absent further order of the court, no further petitions for
rehearing or rehearing en banc will be considered.
OPINION
BEEZER, Circuit Judge:
Plaintiffs-appellants ProShipLine, Inc. and EP-Team, Inc.
appeal from two district court decisions in favor of defendant-
appellee Aspen Infrastructures Ltd. Both decisions involve a
writ of maritime attachment that ProShipLine and EP-Team
obtained against Aspen pursuant to Rule B of the Supplemen-
tal Rules for Certain Admiralty and Maritime Claims to the
Federal Rules of Civil Procedure (“Rule B”). The district
court held in the first decision that it could not compel Aspen
to post security in lieu of garnishment. This decision forced
ProShipLine and EP-Team to either waive their right to gar-
nish Aspen’s property pursuant to a previously obtained Rule
B writ or to garnish the property despite alleged impractica-
bility. The district court, in the second decision, equitably
vacated ProShipLine’s and EP-Team’s Rule B writ and exon-
erated security posted for that writ. The district court further
ordered ProShipLine and EP-Team to reimburse Aspen for
the value of the property they seized in accord with that writ.
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291. We hold that although the district court’s first deci-
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8253
sion was proper, the district court abused its discretion in the
second decision. Equitable vacatur should not have been
applied against EP-Team individually.
I
The litigants’ legal relationship formally began on April 9,
2006, when EP-Team1 and Aspen2 entered into the Sales and
Logistics Services Agreement. Under the Agreement,
ProShipLine,3 as EP-Team’s designated agent and assignee,
agreed to act as Aspen’s general sales and port services agent.
ProShipLine and EP-Team solicited cargo for return trips to
India and handled port and terminal operations for Aspen
throughout America.4
The parties’ Agreement contains a forum selection clause
that says that, in the case of a dispute between the parties,
arbitration should take place in Singapore. The Agreement
also includes a choice-of-law clause providing that, in such a
dispute, the Agreement should be construed and enforced in
accord with English law. ProShipLine’s, EP-Team’s and
1
EP-Team is a Delaware corporation with its principal place of business
in Flower Mound, Texas. EP-Team is a consulting and management enter-
prise that works with companies across a variety of business sectors.
2
At the time of contracting, Aspen, a closely-held enterprise incorpo-
rated in India, did business under the name of Suzlon Infrastructure Ltd.
Over the past several years, Suzlon Infrastructure Ltd. changed its name
to Aspen Infrastructures Ltd., had its name revert back to Suzlon Infra-
structure Ltd. and changed its name again to Synefra Engineering & Con-
struction Ltd. In the interest of simplicity, we refer to this enterprise as
“Aspen” regardless of its actual name at different points in time.
3
ProShipLine is a Nevada corporation with its principal place of busi-
ness in Houston, Texas. ProShipLine serves as a contract carrier for vari-
ous types of cargo.
4
Aspen charters vessels to transport wind turbine generator components
from India to other countries, including the United States. In an effort to
avoid vessels returning to India empty handed, Aspen entered the contract
carriage business to obtain cargo for its return trips to India.
8254 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
Aspen’s contractual relationship remained in good standing
for more than a year.
ProShipLine’s, EP-Team’s and Aspen’s relationship
became strained in the summer of 2007. Each side blames the
other for breaching the Agreement.5 We do not examine the
merit of these contentions. We observe only that the conflict
resulted in the parties terminating their business relationship
on or about August 1, 2007. The end of the business relation-
ship marked the onset of extensive litigation in Texas, New
York and Washington.
A
On August 6, 2007, ProShipLine and EP-Team filed suit
against Aspen in the Southern District of Texas. EP-Team,
Inc. v. Aspen Infrastructure, Ltd., No. 4:07 Civ. 2549 (S.D.
Tex. Aug. 8, 2007). ProShipLine and EP-Team sought declar-
atory relief regarding the construction and enforcement of the
Agreement and to compel arbitration. Aspen then moved to
stay the case pending resolution of the parties’ disputes
through arbitration in Singapore. On December 5, 2007, the
Texas District Court granted Aspen’s motion and administra-
tively closed the suit. The court expressly left open the option
to reinstate the case following the conclusion of the arbitra-
tion proceedings.
On December 7, 2007, ProShipLine and EP-Team initiated
a second action against Aspen in the Southern District of
Texas. ProShipLine, Inc. v. M/V Beluga Revolution, No. H-
07-4170, 2007 WL 5397377, at *1 (S.D. Tex. Dec. 7, 2007).
5
ProShipLine and EP-Team allege that Aspen sought to involve them in
multiple transactions that ProShipLine and EP-Team believed were illegal.
Aspen alleges that it had grown dissatisfied with ProShipLine’s and EP-
Team’s performance, especially regarding bookkeeping and the handling
of a bank account operated by ProShipLine and EP-Team on behalf of
Aspen.
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8255
In that action, ProShipLine and EP-Team sought an order and
writ of maritime attachment pursuant to Rule B. The district
court issued the writ on December 10, 2007. Aspen immedi-
ately moved to vacate the writ. After conducting an evidenti-
ary hearing on December 14, 2007, the district court granted
Aspen’s motion and vacated the writ.6 ProShipLine, Inc. v.
M/V Beluga Revolution, No. H-07-4170, 2007 WL 4481101,
at *1 (S.D. Tex. Dec. 18, 2007).
B
Similar legal proceedings took place in New York. On
October 12, 2007, Aspen brought suit against EP-Team indi-
vidually in the Southern District of New York (the “First New
York Action”). Aspen Infrastructures, Ltd. v. E.P. Team, Inc.,
No. 07 Civ. 8813 (RWS), 2008 WL 2963491 (S.D.N.Y. Aug.
1, 2008). Aspen alleged admiralty jurisdiction and sought an
order and writ of maritime attachment pursuant to Rule B.
The district court ordered the issuance of the writ, and, pursu-
ant to that writ, Aspen seized funds belonging to EP-Team.
Aspen’s victory was only temporary, however, as EP-Team
successfully moved to vacate the writ.7
On December 3, 2007, ProShipLine independently filed a
separate action against Aspen in the Southern District of New
York (the “Second New York Action”). ProShipLine, Inc. v.
Aspen Infrastructures, Ltd., 533 F. Supp. 2d 422, 425
(S.D.N.Y. 2008). ProShipLine sought an order and writ of
maritime attachment pursuant to Rule B. The district court
issued the writ, and ProShipLine garnished Aspen and seized
6
The district court concluded that the writ had been improperly issued
because ProShipLine and EP-Team had failed to sufficiently show that
Aspen could not be “found” within the district, a requirement of Rule B.
ProShipLine, Inc. v. M/V Beluga Revolution, 2007 WL 4481101, at *2-*3
(S.D. Tex. Dec. 18, 2007).
7
In a one line, handwritten order, the district court ordered that “Motion
granted, both parties being found in Texas.”
8256 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
approximately $2 million from Aspen’s bank accounts. On
January 16, 2008, Aspen moved to vacate the district court’s
order in the Second New York Action. The district court ruled
in favor of Aspen on February 1, 2008, and vacated the writ.8
ProShipLine appealed the district court’s grant of this motion
to the Second Circuit, which affirmed the district court.
ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d
105, 110 (2d Cir. 2009) (affirming “solely on the ground that
the district court did not err in concluding that [ProShipLine
and Aspen] were both present in the Southern District of
Texas”).
C
The parties brought their legal struggles to Washington on
November 27, 2007, when ProShipLine and EP-Team filed
another ancillary Rule B action in the Western District of
Washington (the “Washington Action”). See ProShipLine,
Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008
WL 859753 (W.D. Wash. Mar. 28, 2008). ProShipLine and
EP-Team successfully obtained a writ of maritime attachment
against Aspen. In light of the district court’s order, Aspen
posted security pursuant to Supplemental Admiralty and Mar-
itime Claims Rule E(5) (“Rule E(5)”) in lieu of allowing
ProShipLine and EP-Team to garnish the fuel and lube oil
aboard one of Aspen’s chartered vessels within the district.
In December of 2007, a second ship chartered by Aspen,
the M/V BELUGA FUSION (the “Beluga”), entered the
Western District of Washington. ProShipLine and Aspen
sought to garnish the fuel and lube oil aboard the Beluga. This
8
The district court granted Aspen’s motion because it concluded that the
Agreement did not give rise to admiralty jurisdiction, that Aspen and
ProShipLine were both present in the Southern District of Texas and that
ProShipLine had abused the ex parte Rule B process by filing a separate
suit against Aspen rather than making a counterclaim in the existing suit.
ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 533 F. Supp. 2d 422,
427-29 (S.D.N.Y. 2008).
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8257
time, Aspen declined to provide security to substitute for gar-
nishment of those resources. On December 27, 2007, the dis-
trict court held an “emergency” hearing. The court rejected
ProShipLine’s and EP-Team’s argument that it could compel
Aspen to provide security.9 Given the choice to either waive
their right to garnish the property or take the resources despite
alleged impracticability, ProShipLine and EP-Team removed
the fuel and lube oil from the Beluga. With the fuel and lube
oil in hand (or in container, as the case may be), ProShipLine
and EP-Team moved for an order to authorize the sale of the
property. On January 30, 2008, the district court issued the
order permitting sale of the garnished property. ProShipLine,
Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008
WL 276497 (W.D. Wash. Jan. 30, 2008). The property was
subsequently sold.10
On February 12, 2008, Aspen moved to vacate the writ that
the district court issued in the Washington Action and to
exonerate the security held by ProShipLine and EP-Team pur-
suant to that writ. ProShipLine, Inc. v. Aspen Infrastructures,
Ltd., 2008 WL 859753 (W.D. Wash. Mar. 28, 2008). On
March 28, 2008, the district court granted Aspen’s motion and
vacated the writ. The district court also ordered ProShipLine
and EP-Team to return the full value of the garnished property.11
9
ProShipLine and EP-Team sought security because they alleged that
garnishment of the fuel and lube oil aboard the Beluga would be impracti-
cable. Specifically, ProShipLine and EP-Team argued that due to the com-
plexities involved in removing the fuel and lube oil from the Beluga, the
cost of removal and storage would exceed the actual value of those
resources.
10
In accord with the sale, ProShipLine and EP-Team deposited an
amount equal to the actual sale price of the fuel and lube oil—$64,129.50
—into the court registry on March 17, 2008.
11
Specifically, the district court ordered ProShipLine and EP-Team to
pay Aspen an additional $28,092.06, the difference between the amount
ProShipLine and EP-Team had deposited into the court registry and the
fair market value of the garnished property at the time it was garnished.
ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008
WL 1757932, at *1 (W.D. Wash. Apr. 17, 2008).
8258 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
The district court held that equitable vacatur was appropriate
because the Agreement did not give rise to admiralty jurisdic-
tion, res judicata applied from the Second New York Action
and all of the parties were present within the same district.
ProShipLine and EP-Team moved for reconsideration on
the ground that the district court had allegedly awarded dam-
ages to Aspen by ordering ProShipLine and EP-Team to reim-
burse Aspen. ProShipLine, Inc. v. Aspen Infrastructures, Ltd.,
No. C07-5660FDB, 2008 WL 1757932 (W.D. Wash. Apr. 17,
2008). The district court denied the motion. The court con-
cluded that the amount that ProShipLine and EP-Team had
deposited into the court registry was less than the market
value they had agreed upon prior to garnishment.
II
We review an order vacating a writ of maritime attachment
for abuse of discretion. Equatorial Marine Fuel Mgmt. Servs.
Pte Ltd. v. MISC Berhad, No. 08-57046, 591 F.3d 1208, 1210
(9th Cir. 2010). We review the legal conclusions supporting
such an order de novo. Id.
We review de novo a district court’s decision that it lacked
the legal capacity under the Admiralty Rules to order a party
to post security in lieu of garnishment. See Husain v. Olympic
Airways, 316 F.3d 829, 835 (9th Cir. 2002) (noting that con-
clusions of law are reviewed de novo), aff’d, 540 U.S. 644
(2004).
III
The district court vacated ProShipLine’s and EP-Team’s
writ of maritime attachment because it concluded that there
was no valid maritime claim giving rise to admiralty jurisdic-
tion. The district court also held that it was bound by res judi-
cata to vacate the writ. The district court further concluded
that attachment was improper because all of the parties were
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8259
present in the Southern District of Texas. On appeal to this
court, Aspen offers a fourth reason that equitable vacatur was
proper, arguing that ProShipLine and EP-Team violated 9
U.S.C. § 8 by seeking maritime attachment without diligently
pursuing arbitration in Singapore. The district court properly
vacated the writ as to ProShipLine. The district court, how-
ever, abused its discretion by vacating the writ as it pertains
to EP-Team individually.
A
[1] A party may only seek Rule B attachment if the under-
lying claim satisfies admiralty jurisdiction under 28 U.S.C.
§ 1333. The Supreme Court explains that a contractual claim
gives rise to Section 1333 admiralty jurisdiction when the
underlying contract is “maritime in nature.” Norfolk S. Ry.
Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 26 (2004). To
make this determination, we must examine a contract to deter-
mine “whether the principal objective of a contract is mari-
time commerce.” Id. at 25. In adopting this framework, the
Supreme Court rejected the longstanding “spatial approach”
to determining the maritime nature of contracts. Id. at 24-25.
The Court instead held that a “conceptual approach” was
needed because modern maritime commerce “is often insepa-
rable from some land-based obligations.” Id. at 25. The con-
ceptual approach acknowledges this modern reality by
examining whether the contract references “maritime service
or maritime transactions.” Id. at 24 (quoting N. Pac. S.S. Co.
v. Hall Brothers Marine Ry. & Shipbuilding Co., 249 U.S.
119, 125 (1919)).
The district court here did not examine the Agreement as
required by Norfolk Southern Railway Co. The district court
instead applied analysis employed by a few cases in the
Southern District of New York. These cases suggest that
whether a contract is maritime for the purpose of admiralty
jurisdiction hinges upon whether the contract involves spe-
cific vessels and specific transactions. See, e.g., Dolco Invs.
8260 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
v. Moonriver Dev., 486 F. Supp. 2d 261, 267-68 (S.D.N.Y.
2007). The district court concluded that the Agreement was
not a maritime contract because it did not make “reference to
specific vessels or voyages.”
[2] In so deciding, the district court abused its discretion.
Norfolk Southern Railway Co. controls and should have been
applied by the district court. Under the conceptual test
adopted by the Supreme Court, the Agreement manifestly has
maritime commerce as its “principal objective.” The Agree-
ment begins by stating that Aspen “seeks to utilize the ser-
vices of [ProShipLine and EP-Team] in support of its efforts
to book space on its vessels.” ProShipLine’s and EP-Team’s
primary obligations under the Agreement are to “secure
freight and associated revenue,” obtain “opportunities to add
cargo to specific outbound voyages” and handle all “port and
terminal handling operations” including “terminal facilitation,
stevedoring, and heavy lift operations.” Although many of
these obligations are performed on land, there is no question
that their sole purpose is to facilitate and make possible
Aspen’s international maritime operations.
[3] Contrary to the district court’s conclusion, the Agree-
ment gives rise to federal maritime jurisdiction under 28
U.S.C. § 1333. Our interpretation of the Agreement is in
accord with the Second Circuit, which concluded that the
Agreement has an “undeniably maritime flavor” under the
Norfolk Southern Railway Co. conceptual test. ProShipLine,
Inc. v. Aspen Infrastructures, Ltd., 585 F.3d 105, 115 (2d Cir.
2009).
B
[4] Res judicata bars a suit when “a final judgment on the
merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). We have
further explained that res judicata applies when there is “(1)
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8261
an identity of claims; (2) a final judgment on the merits; and
(3) identity or privity between parties.” Stewart v. U.S. Ban-
corp, 297 F.3d 953, 956 (9th Cir. 2002).
The district court abused its discretion by concluding that
it was bound by res judicata to vacate the writ to conform
with the Southern District of New York’s decision to vacate
the writ involved in the Second New York Action. We exam-
ine four factors to determine whether there is an “identity of
claims”:
(1) whether the two suits arise out of the same trans-
actional nucleus of facts; (2) whether rights or inter-
ests established in the prior judgment would be
destroyed or impaired by prosecution of the second
action; (3) whether the two suits involve infringe-
ment of the same right; and (4) whether substantially
the same evidence is presented in the two actions.
Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th
Cir. 2005) (emphasis added). Whether two suits arise out of
the “same transactional nucleus” depends upon “whether they
are related to the same set of facts and whether they could
conveniently be tried together.” W. Sys., Inc. v. Ulloa, 958
F.2d 864, 871 (9th Cir. 1992) (emphasis added). Reliance on
the transactional nucleus element is especially appropriate
because the element is “outcome determinative.” Mpoyo, 430
F.3d at 988; see also Int’l Union v. Karr, 994 F.2d 1426,
1429-30 (9th Cir. 1993).
[5] Here, the district court’s application of res judicata was
erroneous because there is no identity of claims. The appeal
before us and the Second New York Action do not arise from
the same “transactional nucleus.” Although both cases involve
similar sets of facts, the claim in this suit could not have been
tried in the Second New York Action at all, much less conve-
niently. In order to bring a claim of maritime attachment
within the Second Circuit, a plaintiff must allege that “the
8262 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
defendant’s property may be found within the district” where
the garnishment action is being brought. Aqua Stoli Shipping
Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445 & n.5 (2d
Cir. 2006). The Southern District of New York is completely
unable to entertain a claim seeking admiralty attachment of
property on board a vessel, such as the Beluga, located in the
Western District of Washington. Absent an identity of claims,
res judicata cannot apply in this case.12
C
[6] We have not previously had opportunity to elaborate
upon equitable vacatur in the context of admiralty law. The
Second Circuit, however, has described three narrow
instances when, despite the plaintiff having successfully made
a prima facie showing of entitlement to a writ of maritime
attachment, equitable vacatur of that writ may be appropriate:
[A] district court may vacate [a writ of maritime
attachment] if the defendant shows . . . that 1) the
defendant is subject to suit in a convenient adjacent
jurisdiction; 2) the plaintiff could obtain in personam
jurisdiction over the defendant in the district where
12
The parties have been inconsistent in their use of the term “res judi-
cata” in their briefing, sometimes referring to both claim and issue preclu-
sion. It is also unclear from the district court’s order whether its decision
rests solely on claim preclusion or alternatively on both claim and issue
preclusion. Insofar as the district court may have relied on issue preclu-
sion, we conclude that none of the issues decided in the First New York
Action has preclusive effect here.
First, the district court’s conclusion in the Second New York Action
that the contract is not a maritime contract was rejected by the Second Cir-
cuit on appeal and gives no basis for issue preclusion. Second, the district
court’s conclusion that ProShipLine was “present” in the Southern District
of Texas is irrelevant to the issue of whether EP-Team is “located” there.
See Part III.C, infra. And third, the possibility that ProShipLine abused the
ex parte nature of Rule B attachment proceedings in the Southern District
of New York is also irrelevant to the action before us.
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8263
the plaintiff is located; or 3) the plaintiff has already
obtained sufficient security for the potential judg-
ment, by attachment or otherwise.
Id. at 445. Here, the district court held that equitable vacatur
was appropriate based on its conclusion that the second situa-
tion described by the Second Circuit applied. The district
court reasoned that ProShipLine and EP-Team had success-
fully obtained in personam jurisdiction over Aspen in the
Southern District of Texas and that ProShipLine and EP-
Team were both “present” in that district. Although we agree
with and adopt the contours of equitable vacatur laid out by
the Second Circuit, we disagree with the district court that the
second situation applies to EP-Team.
[7] The second Aqua Stoli Shipping scenario describes the
situation where a plaintiff, who is seeking a maritime writ in
one district, is able to obtain in personam jurisdiction over the
defendant in “the” district where the plaintiff is “located.”
Equitable vacatur is potentially warranted in such cases
because the plaintiff is able to litigate against the defendant in
the plaintiff’s most convenient district. See id. at 444-45. We
stress that this situation narrowly refers to “the” district where
the plaintiff is located, not “a” district or “any” district where
the plaintiff is located. This limited scenario allows for equita-
ble vacatur only when the plaintiff could obtain in personam
jurisdiction over the defendant in the federal district where the
plaintiff has its most significant presence. Our understanding
of the second Aqua Stoli situation is in complete agreement
with the Southern District of New York, which has addressed
this exact question. See Peter Dohle Schiffahrts KG v. Sesa
Goa Ltd., 642 F. Supp. 2d 216, 224 (S.D.N.Y. 2009) (holding
that the second Aqua Stoli scenario “references ‘the’ district
where the plaintiff is located . . . [a] concept closely align[ed]
with the legal term ‘domicile’ ”); see also Aqua Stoli Ship-
ping, 460 F.3d at 445 (noting that equitable vacatur applies
only in “limited circumstances”).
8264 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
[8] Under this analytic framework, the district court cor-
rectly concluded that equitable vacatur of the writ is war-
ranted as to ProShipLine. There is no question that
ProShipLine is “located” in the Southern District of Texas,
the district where it has its principal place of business and
most significant presence. Likewise, the record clearly indi-
cates that ProShipLine could obtain in personam jurisdiction
over Aspen in the Southern District of Texas because ProShi-
pLine has repeatedly engaged Aspen in litigation in that dis-
trict. Equitable vacatur of the writ as it pertains to
ProShipLine was thereby warranted because ProShipLine
could obtain in personam jurisdiction over Aspen in the dis-
trict where ProShipLine is located.
[9] This analysis leads to a different result in regards to
EP-Team. EP-Team is located in the Eastern District of
Texas, the district where it has its most significant presence
due to its principal place of business in Flower Mound, Texas.13
There is no indication in the record that EP-Team could
obtain in personam jurisdiction over Aspen in that district.
Based upon these two entirely undisputed facts, the grant of
equitable vacatur against EP-Team individually was an abuse
of discretion because Aspen has not shown that EP-Team
13
EP-Team’s mistaken statement in its joint complaint in the Washing-
ton Action as to the location of its principal place of business does not
warrant a different conclusion. The record does not indicate that the dis-
trict court relied on the misstatement in making its decision. Moreover,
EP-Team had little reason to suspect that its principal place of business
would have any bearing upon this matter, considering that we had not pre-
viously embraced the doctrine of equitable vacatur in regards to maritime
writs and that no circuit court in the nation had defined the exact contours
of the second Aqua Stoli Shipping situation. Given the undisputed fact that
EP-Team’s principal place of business is actually in Flower Mound, the
complete lack of reliance by the district court and the novel significance
of EP-Team’s principal place of business, we decline to bind EP-Team to
its misstatement. See Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009)
(noting that a “court may disregard a stipulation if to accept it would be
manifestly unjust or if the evidence contrary to the stipulation is substan-
tial” (internal quotations and citation omitted)).
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8265
could obtain in personam jurisdiction over Aspen in the dis-
trict where EP-Team is located.14
We disagree with Aspen’s contention that judicial estoppel
and the outcome of the First New York Action compel a dif-
ferent result. In the First New York Action, EP-Team’s and
Aspen’s positions were reversed, prompting EP-Team, in its
pursuit of equitable vacatur, to show that Aspen could obtain
in personam jurisdiction over EP-Team in the district where
Aspen was located. See Aspen Infrastructures, Ltd. v. E.P.
Team, Inc., 2008 WL 2663491, at *1 (S.D.N.Y. 2008). In a
one line, handwritten order, the district court concluded that
EP-Team made that showing and equitably vacated the writ.
Contrary to Aspen’s assertion, EP-Team’s position in that suit
is in no way inconsistent with its position here. See New
Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (holding
that judicial estoppel may be warranted if, among other
things, a party’s later position is “clearly inconsistent” with its
earlier position). There, EP-Team merely sought to demon-
strate that it had sufficient presence in the Southern District
of Texas for Aspen to exercise in personam jurisdiction over
it there. Here, EP-Team asserts that its most significant pres-
ence is in the Eastern District of Texas, where it has its princi-
pal place of business. These two positions are entirely
consistent and provide no basis for judicial estoppel.
D
Aspen argues that, in addition to the three reasons provided
by the district court, equitable vacatur of the writ was also
appropriate because ProShipLine and EP-Team violated 9
U.S.C. § 8 by allegedly seeking a Rule B writ without pursu-
14
Because the district court abused its discretion in vacating the writ as
to EP-Team, it also automatically abused its discretion by ordering EP-
Team to pay Aspen the market value of the attached resources. We need
not address ProShipLine’s and EP-Team’s argument that the order to
reimburse Aspen constituted the entry of a money judgment.
8266 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
ing arbitration in Singapore. The district court was “not con-
vinced” by Aspen’s argument. Neither are we.
[10] Section 8 provides:
If the basis of jurisdiction be a cause of action other-
wise justiciable in admiralty, . . . the party claiming
to be aggrieved may begin his proceeding hereunder
by libel and seizure of the vessel or other property of
the other party . . . and the court shall then have
jurisdiction to direct the parties to proceed with the
arbitration . . . .
9 U.S.C. § 8. The Supreme Court interprets Section 8 as a
Congressional declaration that “traditional admiralty proce-
dure with its concomitant security should be available to the
aggrieved party” despite the fact that the “parties had agreed
to arbitrate.” The Anaconda v. Am. Sugar Refining Co., 322
U.S. 42, 46 (1944). The ability to pursue maritime attachment,
however, does not lessen a party’s “obligation to arbitrate [its]
grievance.” Id. Aspen argues that the district court properly
vacated the writ because ProShipLine and EP-Team have not
been diligent in pursuing arbitration in Singapore.
[11] Aspen’s argument is weak on several counts. Neither
the plain text of Section 8 nor the Supreme Court’s interpreta-
tion of it suggests that the Section permits a district court to
vacate a Rule B writ if it deems that the plaintiff is not pursu-
ing arbitration. Aspen also fails to salvage its argument by cit-
ing any case in support of its novel understanding of Section
8. Moreover, even if we were to adopt Aspen’s interpretation,
it still would not apply here because the record is ambiguous
as to which party has actually been at fault for the slow prog-
ress of the Singapore arbitration. The district court acted well
within its discretion in concluding that Aspen’s argument
lacks merit.
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8267
IV
ProShipLine and EP-Team contend that the district court
also erred by concluding that a district court lacks the legal
capacity under the Admiralty Rules to order a party to post
security in lieu of garnishment. The district court’s conclusion
was correct.
[12] Supplemental Admiralty and Maritime Claims Rule
E(4)(b) (“Rule E(4)(b)”) states that a marshal may, pursuant
to a warrant, take possession of tangible property for safe cus-
tody or, in cases where “possession is impracticable,” may
“affix a copy [of the warrant] to the property in a conspicuous
place.” Rule E(5) provides that the “owner of any vessel may
file a general bond or stipulation” to cause the execution of
all processes against the vessel, such as garnishment, to be
stayed provided that the bond or stipulation is sufficient.
[13] ProShipLine and EP-Team argue that, in the aggre-
gate, these Rules empower a district court to order a party to
post security in lieu of garnishment. Neither provision even
remotely grants district courts such authority. Rule E(4)(b)
refers to impracticability only in the sense that it allows a
marshal to leave notice on property that is “impracticable” to
possess. Rule E(5) is a permissive rule that allows garnishees
to post security in lieu of having their property garnished.
ProShipLine’s and EP-Team’s novel argument that these pro-
visions allow courts to compel the posting of security in lieu
of garnishment in instances of impracticability completely
misinterprets the underlying rules.
V
[14] The district court abused its discretion by vacating the
writ as it pertains to EP-Team. The writ shall be reinstated on
behalf of EP-Team individually. Because the writ was
improperly vacated as to EP-Team, the order to reimburse
8268 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
Aspen for the value of the garnished property is also
improper.
Each party shall bear its on costs on appeal.
AFFIRMED in part, REVERSED in part and
REMANDED.
TALLMAN, Circuit Judge, concurring in part, dissenting in
part:
I agree with the majority’s analysis regarding ProShipLine,
and concur in the opinion affirming the vacatur of the mari-
time attachment against that company. However, I disagree
that the writ of attachment was appropriate as to EP-Team
(and with the majority’s conclusion that the district court
erred in vacating it), and as to that portion of our court’s opin-
ion, I respectfully dissent. I would hold that the late Judge
Franklin D. Burgess did not err under Rule E by vacating the
Rule B writ of attachment against EP-Team.
The writ of attachment in maritime law has ancient roots.
See, e.g., Manro v. Almeida, 23 U.S. (10 Wheat.) 473 (1825).
Historically, the writ served dual purposes: (1) to obtain in
personam jurisdiction over the respondent, and (2) to ensure
the availability of assets to satisfy a judgment in case the
plaintiff succeeds on the merits. Swift & Co. Packers v. Com-
pania Colombiana Del Caribe, S.A., 339 U.S. 684, 693
(1950); Polar Shipping Ltd. v. Oriental Shipping Corp., 680
F.2d 627, 636-37 (9th Cir. 1982). Rule B, entitled “In Perso-
nam Actions: Attachment and Garnishment,” codifies the
ability of a plaintiff to seek a writ of attachment in admiralty.
In Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC
Berhad, 591 F.3d 1208, 1210 (9th Cir. 2010), we specified the
elements for a Rule B writ of attachment: “(1) Plaintiff has a
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8269
valid prima facie admiralty claim against the defendant; (2)
defendant cannot be found within the district; (3) property of
the defendant can be found within the district; and (4) there
is no statutory or maritime law bar to the attachment.” Id. (cit-
ing Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460
F.3d 434, 445 (2d Cir. 2006); Fed. R. Civ. P., Supp. R. B)).
Noticeably missing from the list is a need for security to sat-
isfy a future judgment. Indeed, Rule B specifically limits the
use of attachment to those situations in which the defendant
“is not found within the district,” in other words, when the
court does not (yet) have in personam jurisdiction over the
defendant. Attachment solely to ensure satisfaction of a future
judgment is not a basis for Rule B attachment.1
Turning from issuance of a writ of attachment to vacatur of
it, Ninth Circuit jurisprudence interpreting when a Rule E
vacatur is warranted is not well developed. In Equatorial
Marine Fuel, we concluded that a court may order vacatur of
a Rule B attachment under Supplemental Rule E(4)(f) if the
“plaintiff failed to meet one of the four conditions for attach-
ment” outlined above. 591 F.3d at 1210 (citing Aqua Stoli
Shipping, 460 F.3d at 445). However, we did not discuss any
other instance where vacatur might be an appropriate remedy.
Because of the absence of Ninth Circuit caselaw, my col-
leagues quite appropriately turned to a court with considera-
bly more experience with Rule E vacatur for guidance, and
adopted the test propounded by the Second Circuit in Aqua
Stoli Shipping. Specifically, the majority endorsed the Second
Circuit’s listing of specific instances when equitable vacatur
may be appropriate: “1) the defendant is subject to suit in a
convenient adjacent jurisdiction; 2) the plaintiff could obtain
in personam jurisdiction over the defendant in the district
where the plaintiff is located; or 3) the plaintiff has already
obtained sufficient security for the potential judgment, by
1
Rule B(1)(e) specifies that seizure of property to secure satisfaction of
a judgment is governed instead by Federal Rule of Civil Procedure 64.
8270 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
attachment or otherwise.” Maj. op. at 8262-63 (quoting Aqua
Stoli Shipping, 460 F.3d at 445). Unfortunately, the majority
mechanically recited this formulation then promptly ignored
its rationale when applying the law to the facts of this case.
As the Second Circuit explained, maritime attachments
arose because maritime parties are “peripatetic,” so the avail-
ability of a writ of attachment to obtain in personam jurisdic-
tion over a party avoids requiring a plaintiff to “scour the
globe to find a proper forum for suit or property of the defen-
dant sufficient to satisfy a judgment.” Id. at 443 (emphasis
added). Since obtaining in personam jurisdiction is a principal
justification for authorizing a prejudgment writ of attachment,
it follows that if the plaintiff can secure such jurisdiction over
the defendant by some other means, then there is no need to
attach property. Indeed, the Second Circuit concluded that
vacatur of a writ of attachment “may be warranted when the
defendant can show that it would be subject to in personam
jurisdiction in another jurisdiction convenient to the plaintiff.”
Id. at 444 (emphasis added). Starting from this premise, the
Aqua Stoli Shipping court then listed three circumstances in
which equitable vacatur may be appropriate—the three cir-
cumstances quoted above—including two in which a defen-
dant would be subject to in personam jurisdiction in a district
convenient to the plaintiff.
Not only do my colleagues fail to consider the rationale
behind the Second Circuit’s list, they rigidly adhere to its for-
mulation. Indeed, the majority devotes an entire page to pars-
ing the meaning of “the district” and “located” in the phrase
“the district where the plaintiff is located.” Maj. op. at 8263.
A careful reading of Aqua Stoli Shipping, however, shows
that the Second Circuit intended no such precision, nor did it
limit its application to “the federal district where the plaintiff
has its most significant presence.” Maj. op. at 8263. Before
propounding the three prongs of its test, the Second Circuit
first noted that “[a] maritime attachment would likewise be
properly vacated if the plaintiff and defendant are both pres-
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8271
ent in the same district and would be subject to jurisdiction
there, but the plaintiff goes to another district to attach the
defendant’s assets.” Aqua Stoli Shipping, 460 F.3d at 444-45
(emphasis added). That is what happened here.
Whether the Aqua Stoli Shipping bases for vacatur are read
literally or more broadly, I share my colleagues’ recognition
that ProShipLine is located in the Southern District of Texas
and that Aspen is subject to in personam jurisdiction there.
Accordingly, equitable vacatur was appropriate as to ProShi-
pLine. We part ways, however, when the court’s opinion con-
cludes that there is a dearth of evidence in the record to
support a finding that the Southern District of Texas would
have jurisdiction over EP-Team, thus concluding that we must
reinstate the writ as to that party.
First, EP-Team meets the Aqua Stoli Shipping test because
it is “present in the same district [as defendant Aspen] and
would be subject to jurisdiction there.” Id. at 444-45. EP-
Team acceded to in personam jurisdiction in the Southern
District of Texas by choosing to file the underlying lawsuit
against Aspen in that district, and EP-Team’s counsel con-
ceded jurisdiction there at oral argument. It is a basic tenet of
personal jurisdiction jurisprudence that one subjects himself
to the jurisdiction of the court where he brings suit. See, e.g.,
Merchants’ Heat & Light Co. v. James B. Clow & Sons, 204
U.S. 286 (1907) (“[B]y setting up its counterclaim the defen-
dant became a plaintiff in its turn, invoked the jurisdiction of
the court in the same action, and, by invoking, submitted to
it.”); SEC v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007) (“[A]
party cannot simultaneously seek affirmative relief from a
court and object to that court’s exercise of jurisdiction.”).
EP-Team’s consent to jurisdiction was not merely some
“allegation” that it was subject to suit in that district. It will-
ingly availed itself of the process and power of that court by
choosing to file its complaint against Aspen there. It should
not now be permitted to claim that it is not “present” or “lo-
8272 PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES
cated” in the Southern District of Texas when it initiated the
underlying claim in this case in that very court. Freeman v.
Bee Mach. Co., 319 U.S. 448, 454 (1943) (explaining that a
corporation is found or present in a district for all purposes of
a suit once it has invoked the jurisdiction of the federal court).
For that reason, EP-Team’s counsel candidly, and appropri-
ately, conceded in personam jurisdiction at oral argument.
Moreover, the evidence that the Southern District of Texas
is a more convenient forum than the Western District of
Washington for EP-Team’s action against Aspen is over-
whelming. Even if EP-Team’s principal place of business2 is
in Flower Mound, Texas, in the Eastern District, rather than
Houston as EP-Team has repeatedly alleged, the federal dis-
trict court in Houston is only some 270 miles from EP-Team’s
headquarters. The Tacoma, Washington, courthouse where
this action began, on the other hand, is 2100 miles from EP-
Team’s headquarters. Further, as EP-Team has always
retained the same attorneys as co-plaintiff ProShipLine, which
is located in Houston, it is unclear what jurisdiction could be
more convenient than Southern Texas. And, as ProShipLine
was created by EP-Team and headquartered in Houston spe-
cifically to carry out the requirements of its Agreement with
Aspen—the ultimate subject of this dispute—EP-Team
already has, and in fact already created, substantial contacts
with the Southern District of Texas that it lacks in the West-
ern District of Washington. The Southern District of Texas is
convenient to EP-Team; indeed, “the district has been conve-
nient enough for [EP-Team] to have chosen to initiate litiga-
tion against Aspen in two separate actions there.”
2
The Supreme Court has recently clarified that the term “principal place
of business” means, for purposes of federal diversity jurisdiction, the
locale where a “corporation’s high level officers direct, control, and coor-
dinate the corporation’s activities,” often called the “nerve center.” Hertz
Corp. v. Friend, ___ U.S. ___, 130 S. Ct. 1181, 1186 (2010). It is unclear
whether EP-Team meets this definition—or needs to—with respect to its
claim that Flower Mound, Texas, is its principal place of business.
PROSHIPLINE INC. v. ASPEN INFRASTRUCTURES 8273
ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d
105, 117 (2d Cir. 2009).
Additionally, the underlying rationale for the issuance of a
writ of maritime attachment was absent from this case since
the beginning. EP-Team had already obtained in personam
jurisdiction over Aspen in Texas when it sought this attach-
ment. The goal of avoiding the need for EP-Team to “scour
the globe to find a proper forum for suit” had already been
achieved.3 In fact, EP-Team candidly acknowledged that it
sought the writ “to make more likely the collection” of any
arbitration award—not to obtain in personam jurisdiction.
Finally, the record strongly suggests that maritime attach-
ments are being employed by ProShipLine and EP-Team for
the vexatious purpose of harassing Aspen in order to gain a
tactical advantage in the pending commercial disputes among
the parties in Singapore and Houston. I would hold that fact
alone sufficient as a separate basis for granting equitable
vacatur. Equity should not countenance such litigation tactics,
even in a maritime case.
The district court did not abuse its discretion when it found
equitable vacatur appropriate as to both ProShipLine and EP-
Team. Because the majority holds otherwise as to EP-Team,
I respectfully dissent from that part of the court’s opinion.
3
For a company providing global logistics management services, with
offices in Texas, Florida, Connecticut, the Netherlands, France, Italy, Ger-
many, and Singapore, which contracted with an Indian company and
agreed to arbitration in Singapore following English law, it is unclear that
“scouring the globe” would present much of a hardship. Indeed, EP-Team
has voluntarily scoured this country to attach Aspen’s assets wherever
they may be found.