Case of the Day: Sucesores de Done Carlo Nuñez v. Société Générale

The case of the day is Sucesores de Done Carlo Nuñez y Doña Pura Galvez, Inc. v. Société Générale S.A. (S.D. Fla. 2019). The case was a Helms-Burton Act case. Banco Nuñez sought leave to serve process on the Bank of Nova Scotia and the National Bank of Canada, both Canadian firms, and Banco Bilbao Vizcaya Argentaria, S.A., a Spanish bank, by alternate means, namely, by service on wholly-owned American subsidiaries.

The court denied the motion without prejudice, noting that beyond pointing out that the entities on which Banco Nuñez proposed to make service were wholly-owned subsidiaries of the defendants, Banco Nuñez had done nothing to show a sufficient connection between the subsidiaries and the parents:

Aside from noting that Scotibank, NatBC, and BBVA’s subsidiaries in the United States are “wholly-owned,” Plaintiff fails to provide any evidence that the Defendants exercised any degree of control over their subsidiaries such that substitute service is proper.

This is very odd. Motions to make service by alternate means are within the court’s discretion, and there is nothing wrong with denying a motion, but to deny it on the grounds that there may not be a sufficient relationship of control between a wholly-owned subsidiary and its corporate parent is in my view unreasonable. I would say that the connection is almost by definition sufficient.

That said, it is so easy to serve process under the Hague Service Convention in Canada and Spain that I wonder why the plaintiffs bothered to seek leave to serve process by alternate means. Perhaps it has already spent more in time and money than it would have if it had simply transmitted requests to the appropriate Central Authorities under the Convention. And neither Spain nor Canada has objected to service by postal channels, if the use of the central authority mechanism was not fast enough. I’m just saying.

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