Case of the Day: Day v. Cornèr Bank (Overseas) Ltd.

Judge Lamberth, describing the allegations in the Case of the Day, Day v. Cornèr Bank (Overseas) Ltd. (D.D.C. 2011), wrote that they detailed “a sordid affair straight out of a Hollywood script—or at least a second-rate mystery novel.” The plaintiff was Tonya Kay Day. According to Day’s complaint, several years ago her mother, Lavera Jean Foelgner, told her of $14 million that she had accumulated “from participation for many years in the oil business.” During the conversation, Day alleges, Foelgner “cryptically” told Day of a bank in the Bahamas, Corner Bank, where she had deposited the funds. She showed Day a painting hanging on the wall of her home, which had a “mechanically printed” number on the back—supposedly the account number and password for the bank account. But Foelgner was “tragically and unexpectedly killed” a short time later by a drunk driver, before she was able to give the account statements to Day. Day spent several years investigating, and she ultimately concluded that the account her mother had told her about was held at Cornèr Bank (Overseas) Ltd., a wholly-owned subsidiary of the Swiss bank Cornèr  Banca S.A., based in the Bahamas. She hired a lawyer, who in turn contacted Graham, Thompson & Co., a Bahamian law firm, to seek its help. But according to the complaint, Graham, Thompson & Co., unbeknownst to Day, actually represented the bank and concealed that fact in order to “gain access to plaintiff’s ‘confidential information.'” The firm then withdrew from its representation of Day. Day took matters into her own hands and travelled to the Bahamas to visit the bank herself. According to Day’s allegations, the bank manager refused to let her in to the bank. Day then sued the bank, the Swiss parent, the bank manager, and the Bahamian law firm.

The defendants moved for sanctions under Rule 11 (the court denied the motions), but of more interest to Letters Blogatory readers is their motion to dismiss for insufficient service of process. Day had filed affidavits from a process server in the Bahamas averring that he had served the papers upon each Bahamian defendant by personal delivery. But the defendants submitted affidavits stating that they had been served only with the complaint, not with a summons. Day then sought to effect service under the Hague Service Convention. But in the interim, she had attempted to correct inconsistencies in her complaint by filing a “Notice of Correction” (what’s that?) but not an amended complaint. The defendants were ultimately served via the Bahamian central authority, but Graham, Thomspon & Co. continued to object to service on the grounds that the complaint it received from the central authority was, in light of the “Notice of Correction”, no longer the operative pleading.

In light of the service under the Convention, the judge determined that he did not need to decide whether the previous service was effective, and in particular, whether, as a matter of fact, the Bahamian process server had or had not served the summons with the complaint. The court also avoided the need to decide whether the “Notice of Correction” rendered the service improper, as on the defendants’ motion, it struck the Notice of Correction, which did not comply with Rule 15, the rule governing amendment to the pleadings. Thus the court denied the motion to dismiss for insufficient service of process.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

One thought on “Case of the Day: Day v. Cornèr Bank (Overseas) Ltd.

Leave a Reply

Your email address will not be published. Required fields are marked *