In Re: Jussi K. Kivisto ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14118
Non-Argument Calendar
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D.C. Docket No. 0:12-mc-61443-WPD
In re: JUSSI K. KIVISTO,
a United States Citizen,
Petitioner.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 10, 2013)
Before WILSON, PRYOR and ANDERSON, Circuit Judge.
PER CURIAM:
Jussi K. Kivisto appeals the denial of his application to subpoena Michael
Soifer, counsel for the Florida Bar, for discovery in aid of a foreign proceeding
involving Kivisto’s right to engage in the practice of law in Canada. 28 U.S.C.
§ 1782. This litigation represents Kivisto’s third federal suit for the purpose of
collaterally attacking his disbarment. We affirm.
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Susan Robbins, a private attorney, filed a complaint with the Bar alleging
that Kivisto had demanded exorbitant fees for his work for an estate; had a conflict
of interest in representing a second estate that had inherited money from the first
estate; and had committed Medicaid fraud. The Bar dismissed the charge of
Medicaid fraud, but a referee recommended disbarring Kivisto for charging
excessive fees and engaging in conduct involving dishonesty and fraud and
conduct prejudicial to the administration of justice. During the disbarment
proceedings, Kivisto “submitted over 120 filings with [the Supreme Court of
Florida], the bulk of which were repetitive and meritless.” The Florida Bar v.
Kivisto, 62 So. 3d 1137, 1138 (Fla. 2011).
After he petitioned the Supreme Court of Florida for review of the referee’s
report, Kivisto failed to file a timely brief in support of his petition. Id. The court
granted Kivisto additional time to file his brief, but he continued to file motions
and other papers “in an attempt to delay the progress of his disciplinary case.” Id.Kivisto failed to file a brief within the additional time provided, and the court
treated the referee’s report as uncontested and disbarred Kivisto. The Florida Bar
v. Kivisto, 49 So. 3d 747 (Fla. 2010). Later, the court issued an order for Kivisto
to show cause why he should not be sanctioned for his repetitive filings. Kivisto,
62 So. 3d at 1139. After Kivisto responded with “arguments regarding [his]
disciplinary case,” the court sanctioned Kivisto by refusing to accept any future
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filings except those signed by a member in good standing with the Bar. Id. at
1139–40.
Kivisto filed in the district court a complaint that Soifer, Robbins, and other
attorneys had violated his civil rights, 42 U.S.C. §§ 1983, 1985, and the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–68, by conspiring to
make false representations to the Supreme Court of Florida during its investigation
and disciplinary proceedings. The district court dismissed the case with prejudice
for failure to state a claim, and we affirmed. Kivisto v. Miller, Canfield, Paddock
and Stone, PLC, 413 Fed. App’x 136 (11th Cir. 2011). Kivisto later filed a second
complaint against the same defendants that they had violated his civil rights. The
district court dismissed Kivisto’s second complaint as barred by res judicata and
collateral estoppel, and we affirmed. Kivisto v. Soifer, 448 Fed. App’x 923 (11th
Cir. 2011).
In 2012, Kivisto applied for an order to subpoena Soifer. Kivisto alleged
that Soifer, as counsel for the Florida Bar, possessed evidence that he, Susan
Robbins, Robbins’s law firm, and other attorneys conspired to “file[] with the
Florida Bar . . . a knowingly false grievance . . . accusing [Kivisto] of Medicaid
fraud . . . to extort money” from him; covered up the “attempted extortion”; and
fabricated evidence to “frame” Kivisto for professional misconduct. Kivisto
attached to his brief a copy of a letter from the Canadian Law Society dated
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December 10, 2010, stating that it had received notice of Kivisto’s disbarment and
was “considering its course of action”; inquiring whether Kivisto “intend[ed] to
resume the practice of law in Ontario” because he had been inactive since 1997;
and requesting information about the status of his disbarment in Florida and his
licensure in other jurisdictions. Kivisto also filed a document provided by the
Society that explained its investigative process.
The district court denied Kivisto’s application on the ground it “[had] been
made in bad faith, as a fishing expedition, or as a means to harass Soifer.” The
district court found that Kivisto was “continu[ing] to drag out litigation that he
[had] already lost and [had] continued to lose for years,” and the court “exercise[d]
its discretion to prevent him from disguising more litigation under the pretext of
additional discovery . . . .” The district court “note[d] that the Canadian bar
association considering Kivisto’s disbarment remain[ed] free under . . . § 1782 to
make its own application for information, if desired.”
We review the denial of an application for discovery in a foreign proceeding
for abuse of discretion. In re Consorcio Ecuatoriano de Telecomunicaciones S.A.
v. JAS Forwarding (USA), Inc., 685 F.3d 987, 993 (11th Cir. 2012). Under that
standard, “our review . . . is extremely limited and highly deferential.” United
Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir. 2001). A district court
has the authority to grant an application for discovery if the applicant satisfies
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statutory requirements, 28 U.S.C. § 1728(a), but the “court is not required to grant .
. . [the] application simply because it has the authority to do so.” Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 264, 124 S. Ct. 2466, 2482 (2004).
“[F]actors that bear consideration in ruling” on an application include “the nature
of the foreign tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign . . . agency abroad to U.S. federal-court judicial
assistance,” and “whether the . . . [application] conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the
United States.” Id. at 264, 265, 124 S. Ct. at 2483. The district court also may
consider whether the application contains “unduly intrusive or burdensome
requests,” id. at 265, 124 S. Ct. at 2483, is “made in bad faith, for the purpose of
harassment,” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1101 n.6 (2d Cir.
1995) (cited in United Kingdom, 238 F.3d at 1319), or is part of a “fishing
expedition,” In re Request for Assistance from Ministry of Legal Affairs of
Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988), abrogated on a
different ground by Intel Corp., 542 U.S. at 259, 124 S. Ct. at 2480.
The district court did not abuse its broad discretion by denying Kivisto’s
application for discovery. Kivisto failed to establish that the requested discovery
would be useful to or accepted by the Canadian Law Society. Neither Kivisto’s
application nor his filings suggested that the Society had commenced or intended
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to commence a formal disciplinary proceeding against him; the Society would find
useful Kivisto’s requested discovery; or the Society required any assistance in
determining Kivisto’s fitness to practice law in Canada. In the light of Kivisto’s
previous unsuccessful challenges to his disbarment, the district court reasonably
found that Kivisto had sought the discovery for vexatious purposes. We expect
“the district [court] [to] carefully examine and give thoughtful deliberation to any
request for assistance submitted by an ‘interested person’” and “deny the request”
when it “suspects that the request is a ‘fishing expedition’ or a vehicle for
harassment.” Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d at 1156.
We AFFIRM the denial of Kivisto’s application for discovery in aid of a
foreign proceeding.
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