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Tonya Kay Day v. the Corner Bank (Overseas) Limited

August 1, 2011


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge



Fourteen million dollars can make people do crazy things. According to plaintiff Tonya Kay Day, $14 million motivated a Swiss bank and its Bahamian subsidiary to bury any evidence of a bank account opened by a Kansas woman and her oil-baron lover in the 1970s, triggered a vitriolic assault against Ms. Day by the banks' manager in response to her attempts to uncover the truth, led the largest law firm in the Bahamas to engage in a duplicitous scheme to dupe Ms. Day into revealing personal confidences, and launched a public smear campaign in the Bahamian media. Or $14 million might drive someone to invent such a story. Ms. Day may be a helpless victim tilting against powerful and shadowy international banking forces, or, as a Las Vegas resident, may be simply drawing blind, hoping to come up Aces. It's sometimes difficult to say. But in either case, a federal district court located in the District of Columbia has no role to play in a dispute pitting a Nevada citizen against a Swiss bank and its Bahamas-based subsidiary, manager and law firm, where the prize is $14 million that once purportedly belonged to a Kansas woman. For this simple reason, the Court will dismiss this case.


The lengthy and somewhat-complicated factual and procedural history of this case is set forth more completely in this Court's prior opinion. See generally Day v. Corner Bank (Overseas) Ltd., --- F. Supp. 2d ----, ----, No. 10 Civ. 1339, 2011 U.S. Dist. LEXIS 62386, at *3-- *15 (D.D.C. June 10, 2011). The short version follows.

Plaintiff alleges that her mother Lavera Jean Foelgner and her mother's former lover, Dominick Joseph Iannitti, opened a bank account in Ms. Foelgner's name at Corner Bank (Overseas) Limited ("CBL") in the 1970s, placing approximately $14 million in that account. Amended Complaint ¶¶ 14--23, June 17, 2011 [65] ("AC").*fn1 Just before her sudden death in 2006, Ms. Foelgner disclosed the existence of the account to her daughter, providing the account number and sufficient information to lead plaintiff to CBL. Id. at ¶¶ 29--40. After subsequent conversations with Colyn Roberts-CBL's manager-proved fruitless, id. at ¶¶ 41--42, Ms. Day hired an attorney in Utah, who in turn retained Graham, Thompson & Co. ("GTC"), a Bahamian law firm, to represent Ms. Day in her inquiries with CBL. Id. ¶ 43. GTC later withdrew, however, citing a conflict between its representation of Ms. Day and its representation of CBL in an unrelated matter. Id. ¶¶ 44--45. Frustrated with the lack of progress, plaintiff traveled to the Bahamas, where she claims that while attempting to enter CBL's offices, Mr. Roberts blocked her entrance and pushed her out the door. Id. ¶¶ 47--51. Plaintiff's later attempts to contact either CBL or Corner Banca S.A. ("CB"), its Swiss parent, went unanswered. Id. ¶¶ 54--55.

Based on these allegations, plaintiff filed suit against CBL, CB, Mr. Roberts and GTC in this Court last August. Over the next several months, the parties populated the Court's docket with numerous motions concerning the adequacy of service of process, the propriety of plaintiff's allegations, and the necessity of receiving certain testimony, among other matters. The Court previously addressed these matters, concluding that (1) plaintiff properly served each defendant in this action, (2) plaintiff followed incorrect procedures for amending her complaint, and therefore such amendments should be stricken, and (3) plaintiff's attempt to alter her allegations, while faulty, constituted invocation of Rule 11's safe harbor rule. Day, --- F. Supp. 2d at ----, 2011 U.S. Dist. LEXIS 62386 at *16--*34. The Court then directed plaintiff to amend her complaint consistent with Federal Rule of Civil Procedure 15, and set a schedule for briefing on defendants' remaining grounds for dismissal. Order, June 10, 2011 [63]. Plaintiff complied, filing an amended complaint that reasserted numerous claims against defendants,*fn2 but also goes beyond the original pleadings by adding allegations that GTC and CBL have engaged in a smear campaign in the Bahamian media to "reflect[] their positions and put[] DAY into a false light." AC ¶ 59. Based on these new allegations, plaintiff adds a claim for Invasion of Privacy (Count XII) against both defendants. Id. at ¶¶ 110--114.

Defendants subsequently moved to dismiss the Amended Complaint, arguing that the Court lacks personal jurisdiction over any of the defendants, that the District of Columbia is an improper forum under the doctrine of forum non conveniens, and that plaintiff fails to state any claim for relief under Rule 12(b)(6). Motion to Dismiss Amended Complaint, June 27, 2011 [66] ("GTC Mtn."); Motion to Dismiss Amended Complaint, June 28, 2011 [68] ("Bank Mtn.").*fn3

Because plaintiff's invasion of privacy allegations involve events occurring after this suit was initiated, defendants also moved to strike these allegations as improperly filed without leave of court, as required under Rule 15(d). GTC Mtn. at 21--22; Bank Mtn. at 23--25. In response, plaintiff cross-moved to supplement her pleadings. Cross-Motion to Supplement Pleading, July 7, 2011 [69]. Having reviewed the record and the parties' briefs, the Court finds any connection between defendants and the District utterly lacking, and thus dismisses plaintiff's suit for want of jurisdiction.*fn4


On a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears the burden of establishing the court's personal jurisdiction over a defendant. FC Inv. Grp. LC v. IMX Mkts., Ltd., 529 F.3d 1087, 1092 (D.C. Cir. 2008). To meet this burden, a plaintiff must allege "specific facts on which personal jurisdiction can be based; it cannot rely on conclusory allegations." Moore v. Motz, 437 F. Supp. 2d 88, 90--91 (D.D.C. 2006). And unlike a motion to dismiss for failure to state a claim, the Court need not confine itself to only the allegations in the complaint, but "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Nor must a court treat as true all of plaintiff's allegations when determining whether personal jurisdiction exists. Fuentes-Fernandez & Co. v. Caballero & Castellanos, PL, 770 F. Supp. 2d 277, 279 (D.D.C. 2011). At the same time, any factual discrepancies with regard to the evidence itself must be resolved in favor of the plaintiff, Dean v. Walker, 756 F. Supp. 2d 100, 102 (D.D.C. 2010), and in the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing that the Court has personal jurisdiction. Mwani v. Bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005).


This case involves a Nevada resident, AC ¶ 1, who hired a Utah-based law firm, id. at ¶ 43, to track down information about an account in the Bahamas allegedly opened by her mother, id. at ¶ 20, a Kansas resident. Id. at ¶ 2. She is suing a Bahamian bank, id. at ¶ 3-at which the account is purportedly located, id. at ¶ 20-the bank's Swiss parent, id. at ¶ 3, its Bahamian manager, id. at ¶ 5, and a law firm that previously represented her and is also located in the Bahamas. Id. at ¶ 6. The question for the Court is whether these defendants can ...

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