(a) Remedies Under State Law—In General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.
(b) Specific Kinds of Remedies. The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action:
- arrest;
- attachment;
- garnishment;
- replevin;
- sequestration; and
- other corresponding or equivalent remedies.
Summary and Explanation
Federal Rule of Civil Procedure 64, titled “Seizing a Person or Property,” provides a mechanism for parties to a federal lawsuit to obtain provisional remedies involving the seizure of a person or property. These remedies are intended to secure the enforcement of a potential judgment and are derived from the law of the state in which the district court sits, except as provided by federal statute. Here’s a breakdown and explanation of its main provisions:
1. Availability of Remedies
- Rule 64 allows parties to use state law procedures for seizing property to secure a judgment as long as those procedures are not in conflict with federal law. This includes remedies such as attachment, garnishment, replevin, sequestration, and other similar procedures available under state law.
2. Use of State Law
- The rule specifically ties the availability and procedure for these provisional remedies to the law of the state in which the district court is located. This means that the specific procedures and requirements for seizing a person or property will vary depending on the state’s laws.
3. Commencement of the Action
- These provisional remedies are typically available at the commencement of the action or at any time thereafter, offering plaintiffs a means to secure assets or property that could satisfy a future judgment before the defendant can dispose of them.
4. Purpose and Importance
- Security for Judgment: The primary purpose of Rule 64 is to provide a legal mechanism for securing assets to satisfy a potential future judgment, thereby ensuring that the judgment will be meaningful and enforceable.
- Balancing Interests: While allowing for the seizure of assets, the rule also balances the interests of the plaintiff seeking to secure assets against the rights of the defendant, relying on state law procedures to ensure fairness.
- Integration with State Law: By incorporating state law procedures, Rule 64 acknowledges the diversity of legal practices across the United States and allows federal litigants to benefit from the provisional remedies available in the state courts.
Practical Implications
- The use of Rule 64 requires a deep understanding of the relevant state’s law on provisional remedies. Attorneys must navigate both the federal procedural framework and the specific state law requirements to effectively use these remedies.
- Since these remedies can significantly impact the defendant’s use and control of their assets, they are subject to strict legal standards and procedural safeguards to prevent abuse.
In summary, Federal Rule of Civil Procedure 64 serves as a bridge between federal and state law, allowing parties in federal court to utilize state law remedies to secure assets pending the outcome of litigation. It underscores the importance of provisional remedies in ensuring the effectiveness of judicial proceedings and the enforceability of judgments while respecting the procedural and substantive law of the states.
History
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Notes of Advisory Committee on Rules—1937
This rule adopts the existing Federal law, except that it specifies the applicable State law to be that of the time when the remedy is sought. Under U.S.C., Title 28, [former] §726 (Attachments as provided by State laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872, provided by the applicable State law, and the district courts might, from time to time, by general rules, adopt such State laws as might be in force. This statute is superseded as are district court rules which are rendered unnecessary by the rule.
Lis pendens. No rule concerning lis pendens is stated, for this would appear to be a matter of substantive law affecting State laws of property. It has been held that in the absence of a State statute expressly providing for the recordation of notice of the pendency of Federal actions, the commencement of a Federal action is notice to all persons affected. King v. Davis, 137 Fed. 198 (W.D.Va., 1903). It has been held, however, that when a State statute does so provide expressly, its provisions are binding. United States v. Calcasieu Timber Co., 236 Fed. 196 (C.C.A.5th, 1916).
For statutes of the United States on attachment, see e.g.:
U.S.C., Title 28:
§737 [now 2710] (Attachment in postal suits)
§738 [now 2711] (Attachment; application for warrant)
§739 [now 2712] (Attachment; issue of warrant)
§740 [now 2713] (Attachment; trial of ownership of property)
§741 [now 2714] (Attachment; investment of proceeds of attached property)
§742 [now 2715] (Attachment; publication of attachment)
§743 [now 2716] (Attachment; personal notice of attachment)
§744 [now 2717] (Attachment; discharge; bond)
§745 [former] (Attachment; accrued rights not affected)
§746 (Attachments dissolved in conformity with State laws)
For statutes of the United States on garnishment, see e.g.:
U.S.C., Title 28:
§748 [now 2405] (Garnishees in suits by United States against a corporation)
§749 [now 2405] (Same; issue tendered on denial of indebtedness)
§750 [now 2405] (Same; garnishee failing to appear)
For statutes of the United States on arrest, see e.g.:
U.S.C., Title 28:
§376 [now 1651] (Writs of ne exeat)
§755 [former] (Special bail in suits for duties and penalties)
§756 [former] (Defendant giving bail in one district and committed in another)
§757 [former] (Defendant giving bail in one district and committed in another; defendant held until judgment in first suit)
§758 [former] (Bail and affidavits; taking by commissioners)
§759 [former] (Calling of bail in Kentucky)
§760 [former] (Clerks may take bail de bene esse)
§843 [now 2007] (Imprisonment for debt)
§844 [now 2007] (Imprisonment for debt; discharge according to State laws)
§845 [now 2007] (Imprisonment for debt; jail limits)
For statutes of the United States on replevin, see, e.g.:
U.S.C., Title 28:
§747 [now 2463] (Replevy of property taken under revenue laws)
Notes of Advisory Committee on Rules—1946 Supplementary Note
Sections 203 and 204 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§§523, 524]) provide under certain circumstances for the issuance and continuance of a stay of the execution of any judgment entered against a person in military service, or the vacation or stay of any attachment or garnishment directed against such person’s property, money, or debts in the hands of another. See also Note to Rule 62 herein.
Committee Notes on Rules—2007 Amendment
The language of Rule 64 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Former Rule 64 stated that the Civil Rules govern an action in which any remedy available under Rule 64(a) is used. The Rules were said to govern from the time the action is commenced if filed in federal court, and from the time of removal if removed from state court. These provisions are deleted as redundant. Rule 1 establishes that the Civil Rules apply to all actions in a district court, and Rule 81(c)(1) adds reassurance that the Civil Rules apply to a removed action “after it is removed.”