Gushlak v. Gushlak Gushlak v. Furman , 486 F. App'x 215 ( 2012 )

11-2584-cv; 11-3808-cv
Gushlak v. Gushlak; Gushlak v. Furman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.
PRESENT:
RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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DEBBIE GUSHLAK,
Petitioner-Appellee,
-v.-
MYRON L. GUSHLAK, 11-2584-cv
Respondent-Appellant,
DUKE TERRELL, WARDEN, DAVID LUBIN,
YELENA FURMAN,
Respondents.
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DEBBIE GUSHLAK,
Petitioner-Appellee,
-v.-
YELENA FURMAN, 11-3808-cv
Respondent-Appellant,
DUKE TERRELL, WARDEN, DAVID LUBIN,
MYRON L. GUSHLAK,
Respondents.
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FOR PETITIONER-APPELLEE: SHERYL E. REICH (Gerald B.
Lefcourt, on the brief), Gerald B.
Lefcourt, P.C., New York, New York.
FOR RESPONDENTS-APPELLANTS: NATALIE A. NAPIERALA (Brian Rosner,
on the brief), Rosner & Napierala,
LLP, New York, New York, for Myron
L. Gushlak.
Bettina Schein, New York, New York;
Alan Samuel Futerfas, Law Offices
of Alan S. Futerfas, New York, New
York, for Yelena Furman.
Appeals from orders of the United States District Court
for the Eastern District of New York (Garaufis, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the orders of the district court are AFFIRMED.
Respondent-appellees Myron Gushlak ("Gushlak") and
Yelena Furman ("Furman") appeal from orders of the district court
granting Debbie Gushlak's petition for an order of judicial
assistance, under 28 U.S.C. § 1782, to obtain discovery in
connection with a foreign legal proceeding -- a divorce
proceeding against Gushlak in the Cayman Islands. The district
court entered separate orders as to Gushlak and Furman on June 23
and August 17, 2011, respectively. As the two appeals arise from
the same petition for judicial assistance, we resolve them
together in this summary order.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Our review of a district court's grant of a § 1782
petition is two-fold. See Brandi-Dohrn v. IKB Deutsche
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Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012). First, we
review de novo the district court's determination that the
petition met the statutory requirements of § 1782. Euromepa,
S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998).
Second, if we agree that the requirements were met, we then
review the district court's grant of the petition for abuse of
discretion. Id.We have reviewed the record below and the parties'
arguments on appeal in light of these principles. We conclude
that the petition satisfied the statutory requirements of § 1782,
and that the district court did not abuse its discretion in
granting the petition as to both respondents. We address the
arguments of Gushlak and Furman in turn below.
1. Gushlak
Gushlak does not challenge the merits of the petition,
but rather contends, inter alia, that the district court deprived
him of his due process rights and abused its discretion in
granting the petition purportedly without notice one day prior to
the return date on the court's order to show cause. We reject
this argument.
First, it is neither uncommon nor improper for district
courts to grant applications made pursuant to § 1782 ex parte.
The respondent's due process rights are not violated because he
can later challenge any discovery request by moving to quash
pursuant to Federal Rule of Civil Procedure 45(c)(3). See, e.g.,
Brandi-Dohrn, 673 F.3d at 78 (reviewing district court's grant of
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motion to quash subsequent to ex parte grant of § 1782 petition);
In re Edelman, 295 F.3d 171, 173-75 (2d Cir. 2002) (same); Nat'l
Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 186 (2d Cir.
1999) (same); see also In re Letters Rogatory from Tokyo Dist.,
539 F.2d 1216, 1220 (9th Cir. 1976) ("Letters Rogatory are
customarily received and appropriate action taken with respect
thereto ex parte."). Accordingly, Gushlak's contention that he
"was entitled to respond to the [§ 1782] [a]pplication both
factually and legally and have his response considered by the
district court as part of its plenary consideration of the
[a]pplication" (Gushlak Reply Br. 11) is without merit.
Second, by issuing an order to show cause, the district
court provided Gushlak with notice -- indeed, more notice than is
customary in a § 1782 proceeding. The district court entered its
order to show cause on May 9, 2011, laying out a schedule. A
scheduling order was issued on June 9, 2011, resetting the dates,
and directing Gushlak (and other putative witnesses) to file any
opposition by June 24, 2011. An exchange of correspondence
followed in which Debbie Gushlak expressed concern that Gushlak
would be moved out of the district (and beyond the district
court's jurisdiction) before the matter could be heard.
Apparently because of these timing concerns, the district court
issued its order on June 23, 2011, granting the application.
While it is true, as Gushlak notes, that the district court
directed Gushlak to move to quash by June 24, 2011, the next day,
June 24th was the day by which Gushlak had been ordered (on June
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9, 2011) to submit his opposition papers. Hence, the district
court was merely adhering to the date previously set for
opposition. Moreover, the district court did not require
compliance with the subpoena for an additional sixty days,
allowing Gushlak time to seek an extension or other relief.
Gushlak, instead, chose to exercise his right to appeal, and
filed a notice of appeal on June 24th.
Finally, we note that Gushlak fails to offer any cogent
argument as to the merits. His assertion that "this matter does
not merit the time and attention of Article III courts" (Gushlak
Reply Br. 15) is unavailing.
2. Furman
Furman appeals the district court's grant of the
petition on the merits, asserting, inter alia, that the district
court abused its discretion in granting the petition because the
petition lacked sufficient factual support and contradicted the
purpose and intent of § 1782. We disagree.
Pursuant to the statutory requirements of § 1782, a
district court may order a person to produce discovery in a
foreign legal proceeding if (1) the person resides in the
district of the district court to which the application is made;
(2) the discovery is for use in the foreign legal proceeding; and
(3) the application is made by a "foreign or international
tribunal" or "any interested person." 28 U.S.C. § 1782; see also
Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83-84
& n.3 (2d Cir. 2004).
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If these requirements are met, the court must exercise
its discretion "in light of the twin aims of the statute:
providing efficient means of assistance to participants in
international litigation in our federal courts and encouraging
foreign countries by example to provide similar means of
assistance to our courts." Schmitz, 376 F.3d at 84 (citations
and internal quotation marks omitted). The district court must
also consider the four factors outlined by the Supreme Court in
Intel Corp. v. Advanced Micro Devices, Inc.: (1) whether the
person from whom discovery is sought is within the jurisdictional
reach of the foreign tribunal; (2) "the nature of the foreign
tribunal, the character of the proceedings underway abroad, and
the receptivity of [the tribunal] to U.S. federal-court judicial
assistance"; (3) whether the § 1782 petition "conceals an attempt
to circumvent" discovery rules of the foreign country or the
United States; and (4) whether the discovery request is "unduly
intrusive or burdensome." 542 U.S. 241, 264-65 (2004).
First, as an initial matter, we note that Furman does
not dispute the district court's finding that the petition
satisfies the statutory requirements of § 1782. Indeed, upon an
independent review of the record below, we agree that the
petition meets these requirements.
Second, we conclude that the district court did not
abuse its discretion in granting the petition. It carefully
weighed the Intel factors and appropriately limited the
petitioner's broad discovery request to documentation relevant to
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assets under Gushlak's control -- i.e., the subject of Debbie
Gushlak's inquiry. Further, in considering the jurisdictional
reach of the Grand Cayman court over Furman, the district court's
conclusion that the first Intel factor "weigh[ed] in favor of
granting the requested discovery" was not outside "the range of
permissible decisions." Brandi-Dohrn, 673 F.3d at 79-80(citation and internal quotation marks omitted). The court
observed that Furman resides in New York and documents in her
possession could be located in New York.
CONCLUSION
We have considered Gushlak's and Furman's remaining
arguments on appeal and find them to be without merit.1
Accordingly, the orders of the district court are hereby
AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
1
Under Federal Rule of Appellate Procedure 38, 28 U.S.C.
§ 1927, and our own inherent authority "to consider sanctions on
parties who pursue patently frivolous appeals and force [us] to
consider -- and [the appellees] to defend -- vexatious
litigation, we may, with adequate notice and opportunity to be
heard, impose sanctions nostra sponte." Gallop v. Cheney, 642
F.3d 364, 370 (2d Cir. 2011). Although we make no particular
findings and decline to impose sanctions at this time, we wish to
caution counsel for Furman and Gushlak about the filing of
multiple frivolous appeals.
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