Case of the Day: Capital Investments Group v. Korban

The case of the day is Capital Investments Group v. Korban (D. Del. 2014). Capital Investments, a Wyoming corporation, owned real property in Ukraine. It alleged that Gennady Korban and his sister, Victoria Korban, were part of a conspiracy that aimed to deprive Capital Investments of its property. According to Capital Investments, the linchpin of the alleged conspiracy was a forged power of attorney from CIG to Oleg Vitaliyovich Eryomenko, accompanied by a forged notarial acknowledgment and a forged apostille purporting to have been issued by the Delaware Secretary of State (in the United States, an appropriate official in each of the states is designated as a competent authority for purposes of the Apostille Convention).

There was a service of process issue in the case, but the magistrate judge did not decide it, recommending instead that the court dismiss the case against Victoria Korban for want of personal jurisdiction. I don’t ordinarily cover personal jurisdiction cases, but this one is a little interesting because of the role of the supposedly forged apostille. For the benefit of non-US readers, at the highest level of generality, US courts can only exercise personal jurisdiction over defendants who had sufficient minimum contacts with the forum state to satisfy the requirements of the Due Process Clause. Here, the only argument that Victoria Korban had sufficient contacts with Delaware to support jurisdiction was that one of the conspirators had forged a Delaware notary’s certificate and the Delaware Secretary of State’s apostille. The problem with this theory, of course, is that because the two certificates were forged, and because the forgeries apparently weren’t made in Delaware, there wasn’t any real connection with Delaware. So the magistrate judge recommended dismissal.

You could imagine an objection to this outcome: doesn’t Delaware have a significant interest in protecting the integrity of its public documents by punishing forgers of notarial certificates and apostilles? Sure, but thinking in those terms, in the absence of minimum contacts, would require a big rethinking of the US approach to personal jurisdiction.

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.

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