Case of the Day: Baker & McKenzie v. Frisone

The case of the day is Baker & McKenzie Zurich v. Frisone (N.Y. Sup. Ct. 2015). Baker & McKenzie had represented Anna Frisone, Vincent Savarese, and Rosalie Frisone before the IRS withe regard to “United States tax regularization for the years 2003–2008 and 2002, if required, regarding cash assets held in a Swiss bank in Lugano, Switzerland, which the defendants had failed to report to the Internal Revenue Service for a number of years.” Its claim was for unpaid invoices. It obtained a judgment for CHF 4,305 against Rosalie Frisone and for CHF 32,966 against Anna Frisone and Vincent Savarese, and it sought recognition and enforcement in New York.

When the Swiss case was filed, the Swiss court ordered Rosalie to elect a domicile for service of process, and warned her that if she didn’t, it would authorize service by publication. The Swiss court forwarded that order to the Swiss Central Authority, which forwarded the order to the Consulate General of Switzerland in New York for service on Rosalie. The Consulate General sent them on to Rosalie by certified mail, and she received them. Rosalie did not elect a domicile, and the court therefore allowed the case to go forward on service by publication. Eventually the court entered a default judgment against her.

The Swiss court followed the same procedure for Anna and Vincent. Vincent signed the return receipt for the certified letter, but the mail addressed to Anna was returned, marked “return to Sender, Attempted—Unknown, Unable to Forward.” But the court authorized service by publication on Anna anyway. Ultimately it entered default judgments against Anna and Vincent.

The New York court held that service was proper under the Hague Service Convention as to Vincent and Rosalie but not as to Anna. The theory, it seems, is that the Swiss court’s order requiring the defendants to elect a domicile for service was served on Rosalie and Vincent by a method permitted by the Convention (namely, by postal channels), and that they therefore consented to service by publication. I have to say this seems very strange to me. If Swiss law permits service by publication, then who cares whether the preliminary document was served via the Convention? On the other hand, if Swiss law permits service by publication only if some prior document is served on the defendant by a method authorized by the Convention, and if you’re the plaintiff and you know where the defendant is, why not just serve process via the Convention? My best guess is that there’s something about Swiss procedure that I don’t know and that will make sense of this.

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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