In Rem - What Does Modern In Rem Look Like?

     While most cases filed in federal court today are in personam cases, in rem cases continue to be part of the mix.

     One example of continuing in rem jurisdiction is civil forfeiture cases. In the United States, federal laws allow the government to seize assets if they can show probable cause that the property was acquired through illegal activity. For example, if a drug dealer owns a waterfront mansion or a well funded bank account, a civil forfeiture proceeding can go forward against the property itself in the location of the property. 

     Admiralty law also provides another source of in rem cases. If the ownership of a vessel or the ownership of the contents of a vessel is disputed, it might proceed as an in rem case. While notice still needs to be provided to the others involved, jurisdiction is established through the presence of the property in the jurisdiction.

     One interesting application of in rem jurisdiction after Shaffer has to do with internet domain names, which are considered to be present where the domain name registry is located.  In such cases, the domain owner may not even know where the registry is located, as domain names are usually purchased through intermediaries. Notwithstanding the lack of an actual connection beyond the nominal location of the property that is a domain name, a federal statute (the Anticybersquatting Consumer Protection Act of 1999) aimed at preventing cybersquatting (the registration of  domain names that conflict with the trademarks of established companies) allows suits to proceed in rem, but only when the true identity of the cybersquatting registrant is unknown and the registration appears to have been in bad faith. Given that most top-level domain registries are located in the United States, and within the United States disproportionately in the Eastern District of Virginia, this means much such litigation takes place in that federal district. Academics have raised the issue of whether Shaffer conflicts with the ACPA but so far the law has been upheld.

      In rem actions can proceed against intangible property such as stock options or debts, but in some cases determining the location of the intangible property can be complex. Another issue that arises is potential conflict between courts with regard to who has priority in an in rem action. As we will cover later in the course, some cases can be brought in either federal or state court, and it is possible to have in rem actions against, say, an automobile, filed in either federal or state court. In general, the first court to attach and secure jurisdiction over the property is given priority.