FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROSHIPLINE INC; EP-TEAM INC.,
Plaintiffs-Appellants,
v. No. 08-35337
ASPEN INFRASTRUCTURES LTD, D.C. No.
3:07-cv-05660-FDB
formerly known as Suzlon
Infrastructure Ltd; SUZLON OPINION
INFRASTURCTURE LTD,
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
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
2021
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2025
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.
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
2026 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
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-
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, ProShi-
pLine,3 as EP-Team’s designated agent and assignee, agreed
1
EP-Team is incorporated in Delaware. EP-Team is a consulting and
management enterprise 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 incorporated in Nevada and serves as a contract carrier
for various types of cargo.
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2027
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, in the case of a dispute between the parties, arbitra-
tion should take place in Singapore. The Agreement also
includes a choice-of-law clause providing that, in such a dis-
pute, the Agreement should be construed and enforced in
accord with English law. ProShipLine’s, EP-Team’s and
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 (the “First
Texas Action”). EP-Team, Inc. v. Aspen Infrastructure, Ltd.,
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.
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.
2028 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
No. 4:07 Civ. 2549 (S.D. Tex. Aug. 8, 2007). ProShipLine
and EP-Team sought declaratory relief regarding the con-
struction and enforcement of the Agreement and to compel
arbitration. Aspen then moved to stay the case pending resolu-
tion of the parties’ disputes through arbitration in Singapore.
On December 5, 2007, the Texas District Court granted
Aspen’s motion and administratively closed the First Texas
Action. The court expressly left open the option to reinstate
the case following the conclusion of the arbitration proceed-
ings.
On December 7, 2007, ProShipLine and EP-Team initiated
a second action against Aspen in the Southern District of
Texas (the “Second Texas Action”). ProShipLine, Inc. v. M/V
Beluga Revolution, No. H-07-4170, 2007 WL 5397377, at *1
(S.D. Tex. Dec. 7, 2007). In that action, ProShipLine and EP-
Team sought an order and writ of maritime attachment pursu-
ant to Rule B. The district court issued the writ on December
10, 2007. Aspen immediately moved to vacate the writ. After
conducting an evidentiary 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
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).
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2029
order and writ of maritime attachment pursuant to Rule B.
The district court ordered the issuance of the writ. Pursuant to
that writ, Aspen successfully seized funds belonging to EP-
Team.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
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”).
7
EP-Team moved, unsuccessfully, to vacate this writ. The district court
concluded that EP-Team had been unable to show that it was “found” in
the same district as Aspen, and therefore the writ was properly issued.
Aspen Infrastructures, Ltd. v. E.P. Team, Inc., 2008 WL 2963491, at *1
(S.D.N.Y. Aug. 1, 2008).
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).
2030 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
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
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,
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.
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2031
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
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 grounds 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.
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).
2032 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
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, 2010 WL 59212, at
*1 (9th Cir. Jan. 11, 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
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
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2033
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.
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
2034 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
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)
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
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2035
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
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
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 issue preclusion also does not apply here.
2036 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
C
[6] Although we have not previously elaborated upon equi-
table vacatur in the context of admiralty law, the Second Cir-
cuit has described three specific instances when equitable
vacatur of a writ of maritime attachment 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
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 (emphasis added). Here, the district court held that
equitable vacatur was appropriate because 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] A plain language reading of the phrase “the district
where the plaintiff is located” suggests that the plaintiff must
First, the Southern District of New York’s conclusion that the contract
is not a maritime contract was rejected by the Second Circuit on appeal
and gives no basis for issue preclusion. Second, the district court’s conclu-
sion 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 2037
have a materially significant presence in the district where it
is obtaining in personam jurisdiction over the defendant.13
The second Aqua Stoli Shipping situation stresses that the dis-
trict must be “the” district where the plaintiff is located, not
“a” district or “any” district where the plaintiff is located and
can obtain in personam jurisdiction over the defendant. We
interpret this language to allow for equitable vacatur in situa-
tions when a plaintiff could obtain in personam jurisdiction
over the defendant in the district where the plaintiff has its
most significant presence. Our understanding of the second
Aqua Stoli situation is in complete agreement with the South-
ern 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’ ”).
[8] There is no question that ProShipLine is “located” in
the Southern District of Texas. Aspen’s briefing alleges, and
the record supports, that ProShipLine’s principal place of
business is in Houston, Texas, thereby prominently locating
it within that district. In reviewing the record before us, how-
ever, we find no support for the proposition that EP-Team is
“located” in the Southern District of Texas. The record does
not even show that EP-Team has a registered agent for service
of process in the Southern District of Texas,14 much less that
13
As a practical matter, the phrase must require more than in personam
jurisdiction over the plaintiff. Otherwise, the moment that a plaintiff
brings suit against a defendant anywhere in the country, both parties
would be left adrift, unable to obtain maritime attachment in any jurisdic-
tion due to the availability of equitable vacatur. Such a broad understand-
ing of equitable vacatur would threaten to engulf the maritime attachment
rules and run contrary to the intention that equitable vacatur apply only in
“limited circumstances.” Aqua Stoli Shipping, 460 F.3d at 445.
14
Indeed, even EP-Team was unable to establish that it had a registered
agent for service of process in the Southern District of Texas when it
attempted to prove its presence in that district as a defense in the First
New York Action. See Aspen Infrastructures, Ltd. v. E.P. Team, Inc., 2008
WL 2663491, at *1 (S.D.N.Y. 2008).
2038 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
EP-Team has such a significant presence in that district as to
make it “the” district where EP-Team is located.15 Absent
such a showing, the district court’s application of equitable
vacatur to EP-Team individually was an abuse of discretion.
EP-Team has not been shown to be “located” in a district
where it has in personam jurisdiction over Aspen.16
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-
ing arbitration in Singapore. The district court was “not con-
vinced” by Aspen’s argument. Neither are we.
[9] 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 . . . .
15
The district court’s sole reason for concluding that EP-Team was “lo-
cated” in the Southern District of Texas was that, in the Second Texas
Action, ProShipLine and EP-Team had jointly alleged in their complaint
that their principal place of business was in the Southern District of Texas.
Mere allegations in a complaint in a different suit in a different jurisdiction
are entirely insufficient grounds on which to conclude that EP-Team was
“located” in the Southern District of Texas, especially when the allega-
tions are contrary to other facts in the record.
16
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.
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2039
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.
[10] 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.
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.
[11] 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
2040 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
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.
[12] 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
[13] 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
Aspen for the value of the garnished property is also
improper.
AFFIRMED in part, REVERSED in part and
REMANDED. Each party shall bear its own costs on appeal.
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 attachment
against that company. However, I disagree that the writ of
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2041
attachment was appropriate as to EP-Team, and as to that por-
tion of the court’s opinion, I respectfully dissent.
I would hold that Judge Franklin D. Burgess did not err
under Rule E by vacating the Rule B writ of attachment
against EP-Team. Because our jurisprudence interpreting
Rule E vacatur is in its infancy, we have rarely had the oppor-
tunity to address when vacatur is appropriate. In Equatorial
Marine Fuel Management Services Pte Ltd. v. MISC Berhad,
No. 08-57046, 2009 WL 59212, at *1 (9th Cir. Jan. 11, 2010),
we upheld vacatur because the plaintiff failed to show a need
for attaching the defendant’s property. There we explained
that Rule B attachment of a defendant’s property is appropri-
ate if: “(1) plaintiff has a 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. (citing Aqua Stoli Shipping Ltd. v.
Gardner Smith Pty Ltd., 460 F.3d 434, 445 (2d Cir. 2006);
Fed. R. Civ. P., Supp. R. B)). We concluded that a court may
order vacatur of that attachment under Supplemental Rule
E(4)(f) if the “plaintiff failed to meet one of the four condi-
tions for attachment.” Equatorial Marine Fuel, 2009 WL
59212, at *1 (citing Aqua Stoli Shipping, 460 F.3d at 445).
However, we did not discuss any other instance where
vacatur might be an appropriate remedy. Prior to the promul-
gation of Rule E(4)(f), we opined on the underlying reasons
for granting pre-judgment attachment. We looked to Supreme
Court precedent, which informed us that “[t]he process of for-
eign attachment . . . has two purposes: to secure a respon-
dent’s appearance and to assure satisfaction in case the suit is
successful.” Polar Shipping Ltd. v. Oriental Shipping Corp.,
680 F.2d 627, 636 (9th Cir. 1982) (quoting Swift & Co. Pack-
ers v. Compania Columbiana Del Caribe, S.A., 339 U.S. 684,
693 (1950) (citation omitted)). From this we gleaned that the
first purpose of attachment is met by “obtain[ing] jurisdiction
over the respondents in personam through their property.” J.
2042 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
Lauritzen A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 141
(9th Cir. 1995) (citing Polar Shipping Ltd., 680 F.2d at
636-37).
Since obtaining in personam jurisdiction is a principal justi-
fication 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. Therefore, it seems reasonable that vacatur is
appropriate if in personam jurisdiction is available over all
parties in another court. This is what the Second Circuit held
in Aqua Stoli Shipping. Our sister circuit logically explained
that, even respecting the time-honored special proceedings
applicable to maritime law, there are instances where courts
should permit equitable vacatur. The Second Circuit was
“persuaded that vacatur may be warranted when the defendant
can show that it would be subject to in personam jurisdiction
in another jurisdiction convenient to the plaintiff.” Aqua Stoli
Shipping, 460 F.3d at 445. The court continued: “[a] maritime
attachment would likewise be properly vacated if the plaintiff
and defendant are both present in the same district and would
be subject to jurisdiction there, but the plaintiff goes to
another district to attach the defendant’s assets.” Id. at 444-45.
Here, my colleagues recognize that ProShipLine and Aspen
are subject to in personam jurisdiction in the Southern District
of Texas. However, the court’s opinion concludes 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. This, it says, requires that we reinstate the writ as
to EP-Team only.
It does not follow that we should affirm the district court’s
grant of vacatur as to ProShipLine and not as to EP-Team.
EP-Team is “present in the same district [as defendant Aspen]
and would be subject to jurisdiction there. Id. at 444-45. That
district is the Southern District of Texas. The reason is simple.
EP-Team acceded to in personam jurisdiction there by choos-
PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2043
ing to file the underlying lawsuit against Aspen within that
district, and counsel conceded jurisdiction there at oral argu-
ment. It is a basic tenet of personal jurisdiction jurisprudence
that one subjects himself to the jurisdiction of the court where
he brings suit. Cf. 28 U.S.C. § 1404(a) (not requiring suffi-
cient minimum contacts over plaintiff for transfer to be appro-
priate); In re Genentech, Inc., 566 F.3d 1338, 1346 (Fed. Cir.
2009) (“There is no requirement . . . that a transferee court
have jurisdiction over the plaintiff or that there be sufficient
minimum contacts with the plaintiff; there is only a require-
ment that the transferee court have jurisdiction over the defen-
dants in the transferred complaint.”); FTC v. Watson Pharms.,
Inc., 611 F. Supp. 2d 1081, 1090 (C.D. Cal. 2009) (“[T]here
is no need to enter into an analysis of minimum contacts
between the State of California and Georgia, because it is not
necessary for the transferee forum to have personal jurisdic-
tion over the plaintiff.”) (citing Murray v. Scott, 176 F. Supp.
2d 1249, 1255 (M.D. Ala. 2001) (same)).
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” in the
Southern District of Texas when it initiated the underlying
claim in this case in that very court.
Because 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 tac-
tical advantage in the pending commercial disputes among the
parties in Singapore and Houston, the district court did not
abuse its discretion in vacating the writs. Equity should not
countenance such litigation tactics even in a maritime case.
Therefore, I would hold that vacatur was appropriate as to
both ProShipLine and EP-Team.