In rе APPLICATION OF: INMOBILIARIA TOVA, S.A., and MINI DEPOSITOS DENPAR,
Case No. 20-24981-MC-COOKE/O‘SULLIVAN
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
March 10, 2021
Pursuant to 28 U.S.C. § 1782 for Judicial Assistance in Obtaining Evidence for Use in Foreign and International Proceeding.
THIS MATTER is before the Court on the Renewed Application for Judicial Assistance Pursuant to
BACKGROUND
This is the applicants’ third attempt to secure foreign discovery pursuant to Section 1782(a) from Revlon CPC in Florida to be used in a contemplated civil proceeding in Venezuela against Revlon CPC‘s subsidiary, Rеvlon Overseas Corporation, C.A. (“Revlon Venezuela”), for damages for negligence regarding a fire in the Denpar Building2 in Caracas, Venezuela on June 5, 2011. The more than eight-year delay in seeking relief under Section 1782 is of the applicants’ own making. Under the applicable ten-year statute of limitations under Venezuelan law, the statute of limitations expires this June, 2021. The applicants seek an expedited ruling on their Renewed Application.
Revlon CPC is incorporated in Delaware and has its principal place of business in New York. Revlon CPC has two offices in this district as well as a registered agent. Revlon CPC argues that the applicants’ Renewed Application should be denied because the applicants’ have fаiled to satisfy two of the four Section 1782(a)
Based on the impending expiration of the applicable Venezuelan statute of limitations for a civil, non-contractual tort action against Revlon CPC‘s subsidiary, the Court will undertake an analysis of the Intel factors for the benefit of the court that reviews any potential appeal of this Order.
ANALYSIS
I. Discovery for Use in Foreign Tribunals - 28 U.S.C. § 1782
A. Statutory Requirements of Section 1782
Congress enacted Section 1782 “to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Sub-section 1782(a) of Title 28 provides in pertinent part:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made ... upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced before a person appointed by the court. ... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing
produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
- the request must be made “by a foreign or international tribunal,” or by “any interested person”;
- the request must seek evidence, whether it be the “testimony or statement” of a person or the production of “a document or other thing”;
- the evidence must be “for use in a proceeding in a foreign or international tribunal”; and
- the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.
In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007)(quoting
Revlon CPC does not dispute the first two statutory prerequisites namely, that the applicants are “interested persons” or that they “seek evidence.”
II. The Request for Discovery in the Renewed Application Is Denied
A. Revlon CPC Is Not “Found” in the District
The applicants seek discovery from Revlon Consumer Products Corporation (“Revlon CPC”), a Delaware corporation that has its principal place of business in New York. Revlon is the parent company of the contemplated defendant, Revlon Overseas Corporation (“Revlon Venezuela”). The applicants argue that Revlon CPC is “found” in the district because it has two offices, Brickell and Pembroke Pinеs, and a registered agent in Palm Beach County. Additionally, the applicants allege that “[t]here is a reasonable basis to believe that [Revlon CPC] has possession, custody or control of the evidence sought in this Application because Revlon Venezuela has wound up, leaving [Revlon CPC] as the natural possessor, custodian or controller of the evidence sought.” Brando Decl. ¶ 15 (DE# 1-1, 12/7/20).
The applicants rely on the following cases: In re Kurbatova, Case No. 18-mc-81554, 2019 WL 2180704, at *2 (S.D. Fla. May 20, 2019) (holding that because the discovery target maintained a registered agent in the district who could accept service of process, and the agent was served in the district, the entity was therefore “found” in the district); Application of Consorcio Ecuatoriano de Telecommunicaciones S.A., 747 F.3d 1262, 1269 (11th Cir. 2014) (“JAS USA ... has an officе and does business in Miami and is therefore ‘found in the district of the district court ruling on the application for assistance’
In its Response, Revlon CPC argues that this Court lacks general jurisdiction over it. Citing district court decisions that rely upon Supreme Court case law, Revlon CPC argues further that district courts in Florida have previously held that “to reside” or be “found” in a district under Section 1782, “a corporate entity must at the very least be subject to the court‘s general jurisdiction under [Daimler AG v. Bauman, 571 U.S. 117 (2014)].” In re da Costa Pinto, No. 17-MC-22784, 2019 WL 3409488, at *6 (S.D. Fla. May 16, 2019), report and recommendation adopted, No. 17-MC-22784-MGC, ECF# 60 (S.D. Fla Nov. 19, 2019) (J. Cooke)3; see Matter of Gov‘t of Mongolia v. Itera Int‘l Energy, LLC, No. 3:08-MC-46-J32MCR, 2009 WL 10712603, at *4 (M.D. Fla. Nov. 10, 2009) (“Although there is no binding authority addressing the exact type of presence which equates to ‘systеmatic and continuous local activities’ pursuant to § 1782, the Court will look to ‘continuous and systematic contacts’ for in personam jurisdiction as guidance.”). Revlon CPC maintains that the mere presence of a corporate entity in the district is insufficient. In re Fuhr, No. 13-MC-21598, 2013 WL 12383456, at *1-*2 (S.D. Fla. July 25, 2013) (finding corporation not “found” in the district where it was a global corporation with locations across the US and it would undermine the purpose of Section
1. No General Jurisdiction over Revlon CPC
The Eleventh Circuit has held that a court only has general jurisdiction over a cоrporation “when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State.” Waite v. All Acquisition Corp., 901 F.3d 1307, 1317 (11th Cir. 2018).4 In Daimler, the Supreme Court explained that the “paradigm all-purpose forums” in which a corporation is “at home” are the corporation‘s place of incorporation and its principal place of business. Daimler, 571 U.S. at 137. Only in an “exceptional case” will a corporation‘s operations “be so substantial and of such a nature as to render the corporation at home in that State.” BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1558 (2017). “[T]he general jurisdiction inquiry does not focus solely on the magnitude of the defendant‘s in-state contacts... [T]he inquiry ‘calls for an appraisal of a corporation‘s activities in their entirety’; ‘[a] сorporation that operates in many places can scarcely be deemed at home in all of them.’” Id. at 1559 (quoting Daimler, 134 S. Ct. at 761-62, n.20).
In Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201 (11th Cir. 2015), the Eleventh Circuit found that an “exceptional case” exists only where “activities in the
In Sargeant, the applicant sought Section 1782 discovery from a foreign limited liability company with one of its primary business offices located in New York, New York. In Sargeant, the entity was not incorporated in New York and did not have its principal place of business in New York. The district court in Sargeant explained that “if a business entity could be subject to personal jurisdiction anywhere it maintains a physical presence—i.e., an office—then Daimler‘s holding would be rendered meaningless.” Id. at 821 (citing Daimler, 134 S. Ct. at 761 n.18).
In the present case, the applicants have failed to show that Revlon CPC‘s “affiliations with the State [of Florida] are so continuous and systematic as to render it essentially at home in the forum State.” Daimler, 571 U.S. at 1318-39. Revlon CPC is not incorporated in Florida and does not have its principal рlace of business in Florida. The applicants have failed to show this is an exceptional case to satisfy personal jurisdiction.
Revlon CPC is incorporated in Delaware and has its principal place of business
2. No Personal Jurisdiction over Revlon CPC
Revlon‘s contacts with Florida are insufficient to establish personal jurisdiction. Under Section 1782, specific personal jurisdiction may be sufficient in situations “where the discovery material sought proximately resulted from the respondent‘s forum contacts.” In re del Valle Ruiz, 939 F.3d 520, 530 (2d Cir. 2019) (“That is, the respondent‘s having purposefully availed itself of the forum must be thе primary or proximate reason that the evidence sought is available at all.”). A “feature” of this standard “will generally require a § 1782 applicant to provide additional specificity concerning the discovery it seeks.” Id. at 530 n.12.
The applicants have not provided the requisite specificity. The applicants assert “[t]here is a reasonable basis to believe that [Revlon CPC] has possession, custody or control of the evidence sought in [its] Application because Revlon Venezuela has wound up, leaving [Revlon CPC] as the natural possessor, custodian or controller of the evidence sought.” Brando Decl. at ¶ 15 (DE# 1-1, 12/7/20). Responsive documents are not even in this forum. Mettler Decl. at ¶ 15 (DE# 9-10, 12/28/20). The applicants summarily allege that Rеvlon CPC “has a registered agent [and office] in this [d]istrict,” that Revlon CPC “causes products to be placed into the stream of commerce,” and its “presence in this [d]istrict may safely be categorized as systematic and continuous.” Renewed Application at ¶ 1 (DE# 1, 12/7/20). These “vague and conclusory allegations
In thе present case, the applicants have failed to show with specificity that Revlon CPC‘s contacts with the district “are the primary reason that the evidence sought is available at all.” In re del Valle Ruiz, 939 F.3d at 530. Accordingly, the Court lacks personal jurisdiction over Revlon CPC and should deny the Renewed Application for foreign discovery pursuant to Section 1782.
3. “Tag” Jurisdiction Does Not Apply to Corporations
“Tag” jurisdiction refers to personal service of a subpoena on an individual while physically present in the district. The applicants’ reliance on Application of Consorcio Ecuatoriano de Telecommunicaciones S.A. v. JAS Forwarding, USA, Inc., 747 F.3d 1262 (11th Cir. 2014) is misplaced. As Judge Toomey explained “the Eleventh Circuit [in JAS Forwarding] ... did not discuss what is required to satisfy the ‘resides or is found’ element of Section 1782.” Toomey Order at 4-5 (DE# 9-4). The only element at issue in JAS Forwarding was the “for use in a foreign proceeding.” Toomey Order at 4 (DE# 9-4); JAS Forwarding, 747 F.3d at 1269. Additionally, JAS Forwarding is factually distinguishable because the target of discovery did not raise a jurisdictional question and did not dispute the other three statutory prerequisites of Section 1782. Unlike the
The applicants’ reliance on In re Kurbatova, No.18-mc-81554-BLOOM/Valle, 2019 WL 2180704 (S.D. Fla. May 20, 2019), is also misplaced. In In re Kurbatova, the district court held that “if an entity is personally served with a subpoena while physically present in this district (otherwise known as ‘tag’ jurisdiction) that pеrson is ‘found within the district for purposes of § 1782.” Id. at *2. In In re Kurbatova, the court acknowledged that “[t]he Eleventh Circuit ... has yet to comment on the definition of an entity being ‘found’ in the district for purposes of § 1782” and relied on the Second Circuit‘s Edelman decision for “persuasive guidance” as other courts in the district did. Id. (citing In re Edelman, 295 F.3d 171 (2d Cir. 2002) (other citations omitted)).
In In re Kurbatova, the district court applied “tag” jurisdiction to a corporate entity: “[t]herefore, in applying the reasoning of the In re Edelman decision, this Court finds that if an entity is personally served with a subpoena while physically present in this district (otherwise known as ‘tag’ jurisdiction), that person is ‘found’ within the district for purposes of § 1782.” Id. at 2; see In re Edelman, 295 F.3d 180 (citing Burnham v. Superior Court of California, 495 U.S. 604 (1990)). In In re Kurbatova, the district court held that “Credit Suisse was ‘found’ in Florida within the meaning of § 1782” because “Credit Suisse‘s registered agent was served or ‘tagged’ with the subpoena in this action while in this district.” Id.
Other courts in this district as well as the Fifth Circuit have acknowledged that “tag” jurisdiction based on mere presence as analyzed by the Supreme Court in Burnham does not apply to corporations. See BTG Patent Holdings, LLC v. Bag2Go, GmbH, 193 F. Supp. 3d 1310, 1320 & n.4 (S.D. Fla. 2016) (acknowledging Burnham‘s tag jurisdiction for individuals, but noting that “[a] plaintiff must satisfy the requisites of Daimler[ ] to assert general jurisdiction over a foreign corporation”); Northern Ins. Co. of New York v. Construction Navale Bordeaux, No. 11-CV-60462, 2011 WL 2682950, at *3 (S.D. Fla. July 11, 2011) (explaining that Burnham‘s tag jurisdiction, which involved an individual, does not apply to corporations); Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 182 (5th Cir. 1992) (“Burnham did not involve a corporation аnd did not decide any jurisdictional issue pertaining to corporations.”). A Florida state court explained that applying “tag” jurisdiction to corporations would be “inconsistent” with Daimler. See Woodruff-Sawyer & Co. v. Ghilotti, 255 So.3d 423, 429 (Fla. 3d DCA 2018).
One of the cases upon which Revlon CPC relies, In re Fuhr, 2013 WL 12383456, at *2 (S.D. Fla. July 25, 2013), is factually similar to the present case. In In re Fuhr, the district court denied an application that sought foreign discovery under Section 1782
Because the undersigned finds that “tag” jurisdiction does not aрply to corporations, the applicants have failed to satisfy the “found” prerequisite to discovery under Section 1782. This Court lacks jurisdiction to grant the Renewed Application.
B. The Applicants Failed to Show That the Requested Discovery Is “For Use” in a Contemplated Proceeding in Venezuela
Section 1782‘s third prerequisite requires the applicants to show that the requested discovery is “for use in a proceeding in a foreign or international tribunal.”
In their Renewed Application, the applicants allege that they have satisfied the “for use” prerequisite. Renewed Application at 9 (DE# 1, 12/7/20). In support, the applicants provides the following: 1) the applicants retained counsel in Venezuela, Marco Brando; 2) “[a]s soon as the evidence sought in this [d]istrict is obtained,” the applicants intend to file an action against Revlon Venezuela for the fire that occurred in the Denpar Building on June 5, 2011 in the Juzgados de Primera Instancia en lo Civil, Mercantil y Transito del Area Metropolitana de Caracas (the “Contemplated Proceeding and the “Venezuelan Court,” respectively); 3) the applicants expended “considerable time and effort in performing investigations” of Revlon Venezuela‘s actions “leading up to and following the fire in Caracas and the potential causes of action as well as applicable statute of limitations;” 4) that Article 434 of the Venezuelan Code of Civil Procedure requires that fundamental documents (i.e. relevant supporting documents)
In its Response, Revlon CPC argues that the applicants have failed to satisfy the “for use” statutory prerequisite because the applicants failed to provide “reliable indications of the likelihood that [contemplated] proceedings will be instituted within a reasonable time.” Response at 9 (DE#10, 12/28/20)(quoting JAS Forwarding, 747 F.3d at 1270). “Reliable indicators” include “an affidavit from a legal expert on the specifics of the legal proceedings that are anticipated to be filed,” “a specific representation about when the applicant promises to file proceedings,” and “an explanation why the applicant delayed in seeking Section 1782 discovery.” In re da Costa Pinto, 2018 WL 6620906, at *9. In his Order on the applicant‘s first application, Judge Toomey held that the applicants failed in all of these respects: “Although the Applicants allege that they have taken concrete steps to proceed with the contemplated case, they provide no specific information about these steps, other than indicating that they have retained an attorney.” Toomey Ordеr at *7(DE# 9-4, 12/28/20). Judge Toomey also denied the application because the “[a]pplicants indicate that they also intend to file a claim based on Revlon Venezuela‘s improper wind-up, which appears to implicate its parent company, Revlon CPC.” Id.; see In re Kreke Immobilien KG, Case No. 13 MISC. 110 NRB, 2013 WL 5966916, at *5 (S.D.N.Y. Nov. 8, 2013) (“To the extent that the petitioner seeks discovery from Oppenheim–and is only doing so through Deutsche
During the March 5, 2021 hearing, the applicants’ counsel repeatedly failed to answer the Court‘s questions regarding whether the applicants sought documents from the Venezuelan authorities that have or continue tо investigate the fire in the Denpar Building and, if not, why not. Additionally, the applicants have failed to provide any information regarding the more than eight-year delay between the fire on June 5, 2011 and the filing of the applicants’ initial application seeking foreign discovery from Revlon CPC that was filed in the Middle District of Florida on September 26, 2019.
Revlon CPC argues that the applicants have provided “no additional information regarding the steps taken toward initiating a lawsuit since filing any of the two subsequent applications.” Response at 10 (DE# 10, 12/28/20). Revlon CPC argues further that such vague assurances as the applicants’ civil lawsuit “is anticipated to be filed as soon as the evidence sought in this [d]istrict is obtained” (DE# 1 at 10) are nothing more than a “subjective plan to file an action at some point in the future.” Id. at *8. Additionally, Revlon CPC сontends that the applicants would be unable to pursue their contemplated civil action against Revlon Venezuela because the parallel Venezuelan criminal investigation into the 2011 fire at the Denpar Building has not yet concluded. Response at 10 (DE# 10, 12/28/20) (citing DE# 9-11 at ¶¶ 9-10; DE# 9-12 at ¶¶ 4-9, 13-15, 12/28/20). Revlon CPC maintains that the Renewed Application is based on an adjudication of fault that has not
Revlon CPC contends that the discovery sought is a “fishing expedition with the extra-statutory purpose to troll for assets abroad and in other institutions.” Id. Revlon CPC maintains that the applicants’ subpoena “is an obvious attempt to determine whether it is worth their while to bring any proceeding considering their requests for proprietary financial and insurance documents.” Id. at 12 (citing document requests in proposed subpoena (DE# 1-4) at ¶¶ a, c, m-n (requesting “financial books” and records, insurance policies and payments, “[d]ocuments regarding successor entities,” and “[d]ocuments regarding entities continuing to do business on behalf of Revlon Venezuela”)). Although the Renewed Application no longer includes a contemplated action against Revlon Venezuela for
The applicants’ failure to satisfy the “found in the [d]istrict” statutory prerequisite ends the inquiry and warrants denial of the application. The applicants have failed to explain their more than eight-year delay in filing their initial application under Section 1782 for foreign discovery. Because the applicable ten-year statute of limitations under Venezuelan law expires on June 5, 2021, the Court will analyze the Intel factors for the benefit of any appeal of this Order.
II. Intel‘s Four Discretionary Factors
Even when all four statutory requirements are satisfied, “a district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so.” Intel, 542 U.S. at 264. If the statutory requirements are met, the Court will analyze the following four Intel factors:
2) “the nature of the foreign tribunal, the character of the proceedings underway abrоad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”;
3) “whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and
4) whether the request is otherwise “unduly intrusive or burdensome.
In re Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264-265) (emphasis added). “The discretionary [Intel] factors come into play after the statutory requirements have been satisfied, and they are guideposts which help a district court decide how to best exercise its discretion.” In re: Dep‘t of Caldas v. Diageo PLC, 925 F.3d 1218, 1223 (11th Cir. 2019). Additionally, “unduly intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265. If foreign discovery is granted, then the Federal Rules of Civil Procedure apply. In re Clerici, 481 F.3d at 1336.
A. Analysis of Intel‘s Four Factors
1. Whether Revlon CPC Is a Putative Participant in a Foreign Proceeding
The first Intel factor weighs against granting the Renewed Application because it seeks discovery from a parent company to be used against its subsidiаry in a foreign proceeding. In re Jagodzinski, No. 18-20606-MC, 2019 WL 1112389, at *6 (S.D. Fla. Jan. 15, 2019) (“While the parties are not identical, it can be assumed that any information sought from these parties [in the foreign proceeding] would be identical to discovery produced by those named in [the] Section 1782 application.”). Where the application seeks discovery from a subsidiary through a parent, “discovery is fundamentally being sought from a participant in the [foreign] proceeding,” and “the notion that [the parent company]
Revlon Venezuela continues to exist as a corporation and maintains business records in Venezuela and a Venezuelan court has jurisdiction to compel discoverable documents from Revlon Venеzuela after a Venezuelan proceeding is filed. See Intel, 542 U.S. at 264. Discovery is more justified when it is sought from an entity that is not a participant in the prospective foreign proceeding. Id. This factor weighs in favor of denying the Renewed Application.
2. Receptivity of Foreign Tribunal to Assistance from U.S. Court
Revlon CPC does not dispute that Venezuela would be receptive to discovery obtained pursuant to Section 1782. Revlon CPC has not offered any “authoritative proof that a foreign tribunal would reject evidence obtained with the aid of § 1782.” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995). This factor weighs in favor of granting the Renewed Application.
3.
Revlon CPC argues that the third Intel factor weighs against granting Section 1782 discоvery because the applicants failed to undertake any discovery procedures in Venezuela during the eight years before they filed their first application in Florida. Response at 15 (citing Jagodzinski, 2019 WL 1112389, at *7 (Although courts do not require exhaustion of discovery abroad, there is “a perception that an applicant that has ‘side-stepped’ less-than-favorable discovery rules by resorting immediately to § 1782.”) (internal quotations omitted)). As Revlon CPC acknowledged at the March 5, 2021 hearing as well as in its Response, the applicants are not required to exhaust discovery in the foreign tribunal before seeking Section 1782 assistance. In their filings and during the March 5, 2021 hearing, the applicants provided no explanation for their failure to obtain discovеry from the ongoing investigations in Venezuela since the 2011 fire. The undersigned finds the third Intel factor neutral.
4. Whether the Request Is Intrusive or Unduly Burdensome
Revlon CPC argues that the subpoena contains overbroad requests that impose an undue burden on Revlon CPC. The undersigned agrees. Judge Toomey denied the first application for this reason (DE# 9-4 at 8, 12/28/20). The applicants’ re-filed subpoena is substantially similar.
Revlon CPC argues that the requests are a fishing expedition and seek documents for a collection action including “[a]ny and all financial documents ... related to Revlon Venezuela and/or the Denpar Building;” “[a]ny and all documents regarding insurance policies, reinsurance policies, records of insurance claims, insurance payments ... related to Revlon Venezuela and/or the Denpar Building;” “[a]ny and all documents regarding the
As stated on the record during the March 5, 2021 hearing, the Court finds that the discovery requests are overbroad and should be narrowed in time and scope. For example, “Any documents from June 5, 2011 to the present” should be limited to “related to the fire in the Denpar Building and decision-making related to the fire.” The requests seeking all financial documents, insurance documents, and successor entity documents appear to seek collection discovery, which is improper and overbroad. Such requests weigh in favor of denying the Renewed Application.
As the Supreme Court held in Intel, “unduly intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265. If the Renewed Application were to be granted, the applicants should be required to narrowly tailor their requests and eliminate the requests that seek collection-action documents. All requests should be narrowly tailored in time and scope to the negligence and damage claims that the applicants contemplate filing in Venezuela.
III. The Proposed Subpoena Does Not Comply with the Federal Discovery Rules
If the Court grants Section 1782 discovery, the federal discovery rules apply. In re Clerici, 481 F.3d at 1336. Revlon CPC argues the applicants’ proposed subpoena does not comply with
CONCLUSION
Because Revlon CPC is not found in the district, the applicants failed to satisfy the statutory prerequisite of Section 1782(a) and this Court lacks jurisdiction to grant the Renewed Application. Accordingly, the Renewed Application for Judicial Assistance Pursuant to
DONE AND ORDERED in chambers at Miami, Florida this 10th day of March, 2021.
JOHN J. O‘SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE