§ 1782 Application Is Moot If Foreign Evidentiary Record Is Closed, Even If Appeal Is Pending & Reversal Possible — Court’s 1782 Jurisdiction Is Limited to the Foreign Proceeding Listed in the Application

In re Fuhr, 2019 U.S. Dist. LEXIS 6468 (Jan. 11, 2019):

[*1] REPORT AND RECOMMENDATION

This matter is before this Court on Motion of Credit Suisse AG to Dismiss Petition as Moot filed on October 29, 2018. ECF No. 169. The Honorable William J. Zloch referred for disposition all post-appeal non-dispositive matters or a report and recommendation concerning disposition of all post-appeal dispositive motions. ECF No. 139; see also 28 U.S.C. § 636(b); S.D. Fla. L.R. Mag. R. 1. On January 8, 2019, the undersigned conducted a hearing on this Motion. Having carefully reviewed the Motion, the Response, and the Reply thereto, oral argument of counsel, the entire case file, and applicable law, and being otherwise fully advised in the premises, it is hereby recommended that Credit Suisse AG's Motion to Dismiss Petition as Moot be GRANTED WITHOUT PREJUDICE.

BACKGROUND

On May 3, 2013, Applicant Fuhr ("hereinafter Fuhr") filed a §1782 application in this Court for the express purpose of obtaining bank account documents from Credit Suisse to aid in his defense of a defamation and injunctive relief action brought against him by Luis Marimon Garnier in Frankfurt, Germany. On May 7, 2014, the Higher Regional Court of Frankfurt enjoined Fuhr from stating that Marimon held the bank account [*2]  at issue beneficially for the deceased Dr. Wolfgang Ambrosius Bauml or that Marimon transferred money from such an account. The decision was upheld by the German High Court of Appeal on December 10, 2014, and Fuhr appealed to the German Supreme Court. The German Supreme Court remanded the action to the Higher Regional Court of Frankfurt Am Main to allow additional, testimonial evidence to be taken. On September 26, 2018, the Higher Regional Court issued a judgment dismissing Fuhr's appeal and affirming the original District Court decision in favor of Marimon. The Higher Regional Court denied Fuhr leave to appeal further. The dismissal of the appeal ends the proceedings at the Higher Regional Court and closes the evidentiary record. Bussian Declaration, ECF 169-1, ¶5 ("In the Judgment, the Frankfurt court both ruled against Mr. Fuhr and denied leave to appeal. Under German rules of procedure, the evidentiary record is now closed."). Fuhr filed a Motion for Leave to File an Appeal to the German Supreme Court on October 25, 2018. The German Supreme Court only grants such complaints in approximately five percent of cases.1 Bussian Declaration, ECF 169-1, ¶8. If Fuhr succeeds, he would then [*3]  be entitled to appeal violations of law, not errors of fact.  Id., ¶9. The German Supreme Court will not reopen the factual record or take new evidence. Id. Both parties agree that it is likely that resolution of the German appeal will take years.

1.    The Federal Court of Justice referred to in Mr. Wolf Bussian's affidavit, ECF No.169-1, is the same as the German Supreme Court (hereinafter referred to as "the German Supreme Court").

Credit Suisse argues that Fuhr's application must be dismissed because it is moot, and this Court lacks jurisdiction to order production for use in the German proceeding.  Fuhr contends that this Court still has jurisdiction by virtue of the motion for leave to appeal he has filed.

ANALYSIS

"[A] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Soliman v. United States ex. rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002). Mootness is jurisdictional, and "[a]ny decision on the merits of a moot case or issue would be an impermissible advisory opinion." Id. In the §1782 context, where the proceeding in which the discovery is to be used has concluded such that the §1782 discovery can no longer be used in the proceeding, the §1782 application becomes moot. Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 29 (2d Cir. 1998); see also Comision Ejecutiva Hidroelectrica del Rio Lempa v. Nejapa Power Co.LLC, 341 F. App'x 821 (3d Cir. 2009). United States courts have [*4]  dismissed §1782 applications as moot even when the foreign proceeding's judgment has not yet issued.  In Comision Ejecutiva, the Third Circuit directed the District Court to dismiss the §1782 application as moot when the foreign arbitration's evidentiary record was closed even though the tribunal had not yet rendered its final judgment. Id. at 827-828. In In reIshihara Chemical Co., 251 F.3d 120, 122 (2d Cir. 2001), abrogated in part on other grounds by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the court dismissed an appeal of a §1782 petition as moot when the Japanese Patent Office (JPO) completed its merits hearing during the U.S. appeal's pendency. The Ishihara court further noted that the petitioner would have to wait for the JPO to ask for additional evidence before Ishihara could submit such evidence. Id. at 124.

In the instant case, evidence gathering is closed in the foreign proceeding, and the Frankfurt court has entered its judgment and denied leave to appeal. Fuhr argues that this Court still has jurisdiction since he filed a Motion for Leave to File an Appeal to the German Supreme Court. But even if Fuhr succeeds, he would then only be entitled to appeal violations of law, not errors of fact. The German Supreme Court will not reopen the factual record or take new evidence. Fuhr raises additional arguments [*5]  regarding the need for the evidence for use in separate, future litigation and asset recovery, but the undersigned finds that the instant application was for a particular purpose and was not open-ended. Section 1782 limits this Court's jurisdiction to the foreign proceeding that is listed in the original application. See Certain Funds Managed by Fortress v. KPMG, 798 F.3d 113, 124 (2d Cir. 2017). Certainly, if Fuhr has new grounds to support a §1782 application with regard to new and different foreign proceedings, he must file a new application. Comision, 341 F. App'x at 827-828.

This Court finds that because the German evidentiary record is closed, the request to dismiss the petition at this time without prejudice is proper since this Court is divested of jurisdiction based on the case law cited above. This recommendation is made without prejudice in the event Fuhr is ultimately successful in the German courts.

RECOMMENDATION

The undersigned recommends that Credit Suisse AG'S Motion to Dismiss Petition as Moot filed on October 29, 2018, ECF No. 169, be GRANTED WITHOUT PREJUDICE.

Within fourteen days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by [*6]  the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).

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