Case of the Day: Symons International Group v. Continental Casualty

The case of the day is Symons International Group, Inc. v. Continental Casualty Co. (S.D. Ind. 2015). Continental Casualty, the third party plaintiff, won a $34.2 million judgment against the third party defendant, Robert Symons, the successor in interest (maybe the heir, or executor—the decision doesn’t make it clear) of G. Gordon Symons. Symons resided in Canada, and it appears that G. Gordon Symons lived in Canada at the time of his death. Symons appealed, but he did not seek a stay or provide a supersedas bond, which means, in federal practice, that Continental was free to try to execute on the judgment pending the appeal. Continental sought discovery in aid of execution from Symons, but Symons did not respond. Meanwhile, Continental brought an action in Ontario, seeking recognition and enforcement of the US judgment, and it sought an order in Canada requiring the probate of G. Gordon Symons’s will. A Canadian court agreed, though Symons objected on the grounds that probate was premature. Symons moved for a protective order in Indiana on the grounds that “it is improper for [Continental] to simultaneously attempt to enforce its judgment in both the United States and Canada.”

The simple answer, which the judge gave, is that there is no rule forbidding simultaneous collection efforts in two jurisdictions, full stop. Doctrinally this is clearly right, but the judge went further and explained the policy: forbidding multiple collection efforts would make it simple for judgment debtors to avoid execution by transfers of their assets from one jurisdiction to another. (Note that I said “avoid execution.” Of course, a US court with jurisdiction over the person of the judgment debtor could enjoin asset transfers, issue orders requiring transfers of assets to the judgment creditor, etc., but the rules in these cases necessarily are meant to address the problem of the recalcitrant judgment debtor, not the judgment debtor who promptly obeys court orders).

Symons also argued that the US proceedings on the judgment had to be conducted under Canadian law “given [Continental’s] affirmative choice to avail itself of the Canadian laws and process in efforts to execute upon its judgment.” According to Symons, Canadian law, like the law of some American states but unlike US federal law, provides for an automatic stay of execution pending appeal. Again, the answer here is simple. The procedural law of the forum governs. The judge went on to conclude that Symons was wrong about Canadian law—a question I won’t try to tackle here. There was no suggestion, by the way, that the information Continental sought would not be discoverable under Canadian law in any event.

Last, Symons made a very cursory argument about undue burden, but his arguments that he should not have to incur the costs of responding to discovery, without much in the way of evidentiary support, rang hollow given that he was a judgment debtor to the tune of $34 million.

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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