Rules of Civil Procedure

Rules of Civil Procedure  Civil Procedure Rule 4.1: Attachment

Effective Date: 07/01/1974

Table of Contents

(a) Availability of attachment

Subsequent to the commencement of any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover.

(b) Writ of attachment: Form

The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, be in the name of the Commonwealth, contain the name of the court, the names and residences (if known) of the parties and the date of the complaint, bear teste of the first justice of the court to which it is returnable who is not a party; state the name and address of the plaintiff's attorney (if any), be directed to the sheriffs of the several counties or their deputies, or any other person duly authorized by law, and command them to attach the real estate or personal property of the defendant to the value of an amount approved by the court, and to make due return of the writ with their doings thereon. The writ of attachment shall also state the name of the justice who entered the order approving attachment of property and the date thereof.

(c) Same: Service

The writ of attachment may be procured in blank from the clerk and shall be filled out by the plaintiff or plaintiff's attorney as provided in subdivision (b) of this rule, either of whom shall deliver to the officer making the attachment the original writ of attachment upon which to make his return and a copy thereof.

No property may be attached unless such attachment for a specified amount is approved by order of the court. Except as provided in subdivision (f) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

An action in which attachment of property is sought may be commenced only by filing the complaint with the court, together with a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (h) of this rule. Except as provided in subdivision (f) of this rule, the motion and affidavit or affidavits with the notice of hearing thereon shall be served upon the defendant in the manner provided by Rule 4, at the same time the summons and complaint are served upon him.

Inclusion of a copy of the complaint in the notice of hearing shall not constitute personal service of the complaint upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the complaint and summons upon him in the manner provided by law.

Except as provided in subdivision (e) of this rule, any attachment of property shall be made within 30 days after the order approving the writ of attachment. When attachments of any kind of property are made subsequent to service of the summons and complaint upon the defendant, a copy of the writ of attachment with the officer's endorsement thereon of the date or dates of the attachments shall be promptly served upon the defendant in the manner provided by Rule 5.

(d) Attachment on counterclaim, cross-claim or third-party complaint

An attachment may be made by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.

(e) Subsequent attachment

Either before or after expiration of the applicable period prescribed in subdivision (c) of this rule for making attachments, the court may, subject to the provisions of subdivision (f) of this rule, order another or an additional attachment of real estate, goods, and chattels or other property.

(f) Ex parte hearings on property attachments

An order approving attachment of property for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment over and above any liability insurance known or reasonably believed to be available, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear danger that the defendant if notified in advance of attachment of the property will convey it, remove it from the state or will conceal it, or (iii) there is immediate danger that the defendant will damage or destroy the property to be attached. The motion for such ex parte order shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff's attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (h) of this rule.

(g) Dissolution or modification of ex parte attachments

On two days' notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant whose real or personal property has been attached pursuant to an ex parte order entered under subdivision (f) of this rule may appear without thereby submitting his person to the jurisdiction of the court, and move the dissolution or modification of the attachment, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.

(h) Requirements for affidavits

Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that he believes this information to be true.

(i) Form of hearing

At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party). The court, for cause shown on the evidence so adduced, may make such interlocutory orders concerning disposition of the property sought to be attached as justice may require.

Reporter's Notes

Rule 4.1, like Rules 4.2 and 4.3, does not appear in the Federal Rules, which look to "the law of the state in which the district court is held." Federal Rule 64. The practitioner should realize that attachment under Rule 4.1 does not discharge the plaintiff's obligation to effectuate service of the summons and complaint as specified in Rule 4.

The rule, conforming to recent decisional abrogations of the right to attach, does not otherwise substantially change Massachusetts practice: it limits the use of the attachment process to what the law now permits. G.L. c. 223, §§ 42-83A contain detailed regulations pertaining to attachment. These are obviously too minute and lengthy for insertion in a set of procedural rules, but the practitioner contemplating any sort of attachment of any type of property, real or personal, is strongly urged to consult the statute.

Rule 4.1(b) does not significantly alter Massachusetts law, under which the clerk must sign the writ. See Moriarty v. King, 317 Mass. 210, 213-214, 57 N.E.2d 633, 635-636 (1944). See also G.L. c. 223, §§ 16, 21. The Massachusetts writ must be under seal, see G.L. c. 223, §§ 16, 21; see also Const. Pt.. 2, c. 6, art. 5, and must bear the teste of the first justice of the court to which it is returnable; see G.L. c. 223, §§ 16, 21; see also Const. Pt.. 2, c. 6, art. 5, and must identify the parties; Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55, 188 N.E. 509, 510 (1933); see also G.L. c. 214, § 12. An attachment of land or of an interest therein must contain the name and last known residence of the defendant. G.L. c. 223, § 62. An attachment of goods also must describe the defendant. See Eaton v. Walker, 244 Mass. 23, 30, 138 N.E. 798, 800 (1923). A Massachusetts writ, under present practice, contains the date of its issuance, which is prima facie evidence of the time of the bringing of the action. Moriarty v. King, 317 Mass. 210, 214, 57 N.E.2d 633, 636 (1944); see also Lapp Insulator Co., Inc. v. Boston and Maine Railroad, 330 Mass. 205, 213, 112 N.E.2d 359, 364 (1953). Massachusetts writs run throughout the Commonwealth, G.L. c. 223, § 20; this will be true under Rule 4.1(b). Like Rule 4.1(b), present statutory practice limits the attachment to the amount of the claim, plus interest and costs. G.L. c. 223, § 42A; see also G.L. c. 223, § 114. If attachment is made subsequent to service of the original complaint and summons, Rule 4.1(c) requires service upon the defendant of a copy of the writ of attachment which must contain a copy of any endorsement by the officer on the original writ. Such service, although it must be made "promptly" (that is, as soon as may be), may be made by mailing the copy to the defendant's attorney, or to the defendant, if he is unrepresented. See Rule 5(b).

Rule 4.1(c) changes Massachusetts practice as to service of the summons. After the attachment of a resident defendant's property, Massachusetts formerly required that a separate summons be served on the defendant stating the value of the goods attached. The service of that summons constituted sufficient service of the original summons. See G.L. c. 223, § 17; Callaghan v. Whitmarsh, 145 Mass. 340, 341, 14 N.E. 149, 151 (1887); Wilbur v. Ripley, 124 Mass. 468, 469 (1878). Service upon a non-resident was accomplished in the same manner, if the court could acquire sufficient personal jurisdiction. Peabody v. Hamilton, 106 Mass. 217, 220 (1870).

In an equity suit, the court generally issued a subpoena, served in the same manner as an original writ of summons. See G.L. c. 214, § 7 and Squire v. Lincoln, 137 Mass. 399, 403 (1884). A defendant was given a copy of an original summons or subpoena. See G.L. c. 223, § 41.

Rule 4.1(c)'s limitation of thirty days changes Massachusetts practice. G.L. c. 223, § 30 allows the summons to be served at any time after the attachment has been made, if it is served the required number of days before the return day for the service of the original writ. The equity practice is the same as the practice at law, former G.L. c. 223, § 41.

Rule 4.1(c), establishes a basic procedure to ensure that attachment of defendant's property (real or personal) hews to constitutional lines. Fuentes v. Shevin, 407 U.S. 67, 80 (1972); Schneider v. Margossian, 349 F. Supp. 741, 745 (D.Mass.1972); Bay State Harness Horse Racing & Breeding Association v. PPG Industries, 365 F. Supp. 1299 (D.Mass.1973). Rule 4.1(f) affords a remedy against plaintiff's unfairly being deprived of security for his judgment. The basic principle – no attachment without a prior court order after notice and hearing – is thus subject to limited exception if fair security is imperilled. And even this exception requires a court hearing (albeit ex parte) on a motion supported by affidavits. See Rule 4.1(h) and 4.1(i). Moreover the procedure for dissolution of an attachment obtained ex parte is summary and weighted in defendant's favor.

Rule 4.1(d)'s allowing of attachment in the case of a counterclaim, a cross-claim or a third party complaint did not formerly exist in Massachusetts practice.

Rule 4.1(e) is similar to existing practice, G.L. c. 223, § 85, and covers two situations: (1) cases in which attachment is made for the first time, after service of process; (2) cases in which attachment was made when process was served, and an additional attachment is sought thereafter.

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