United States District Court, M.D. Florida, Fort Myers Division
IN RE EX PARTE APPLICATION OF PETRO WELT TRADING GES.M.B.H FOR TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDING
ORDER
CAROL
MIRANDO UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court upon review of the second
Supplemental Ex Parte Application of Petro Welt
Trading Ges.m.b.H (“Applicant” or “Petro
Trading”) for Order to Obtain Discovery for Use in
Foreign Proceeding (the “Second Supplemental
Application”) filed on June 11, 2018. Doc. 12; see
also Docs. 13-14. The Court granted Applicant's
first Ex Parte Application (the “Initial
Application”), authorizing Applicant to obtain
discovery from five individuals and a limited liability
company (the “Initial Respondents”) for use in
pending litigation before the District Court of Nicosia in
Cyprus (“the Foreign Proceeding”). Doc. 7. The
Court subsequently granted Applicant's first supplemental
Ex Parte Application (the “First Supplemental
Application”), authorizing Applicant to obtain
discovery from two additional individuals (the “First
Supplemental Respondents”) for use in the Foreign
Proceeding. Doc. 11. Based on the information furnished by
the First Supplemental Respondents, Applicant now seeks an
order authorizing the issuance of subpoenas to obtain
discovery from First Florida Integrity Bank
(“FFIB”) for use in the Foreign
Proceeding.[1] For the reasons discussed below, the Court
will grant the Second Supplemental Application and permit
Petro Trading to serve its proposed subpoena on FFIB.
I.
Background
Applicant
is one of several plaintiffs in the Foreign Proceeding, which
“seeks redress for the fraudulent scheme” through
which the defendants in that case-CAT Partnership, AB PCO and
Anna Brinkmann-allegedly abused positions of authority to
“diver[t] funds to themselves in violation of their
contractual and fiduciary obligations to Plaintiffs.”
Doc. 12 at 3; see also Doc. 13 at 6. Applicant
alleges Ms. Brinkmann sent proceeds of the fraudulent scheme
to her son, Edward Brinkmann, or to his company, Majab
Development LLC (“Majab”), to launder and conceal
the diverted funds through the purchases of real estate
properties. Doc. 12 at 3; Doc. 13 at 6. Specifically, Majab
purchased properties: (1) on March 2, 2015 from Lelan Wheeler
for $300, 000; (2) on June 12, 2015 from Meggie and Richard
Counts for $3, 825, 000; (3) on November 12, 2015 from Peter
and Laura Justinius for $980, 000; and (4) on December 30,
2016 from MRDLS LLC for $2, 900, 000. Doc. 13 at 7.
Petro
Trading filed its Initial Application on March 6, 2018,
seeking assistance with obtaining evidence related to the
Initial Respondents' real estate transactions with Majab.
Doc. 1. Specifically, Applicant sought to serve subpoenas
requiring the production of documents and deposition
testimony from the Initial Respondents about the real estate
sales so Applicant could determine whether the funds used to
purchase the properties were proceeds of the alleged
fraudulent scheme at issue in the Foreign Proceeding. Doc. 2
at 7; see also Doc. 1 at 15-16, 24-25, 32-33, 41-42,
49-50, 58-59. The Court granted Petro Trading's Initial
Application. Doc. 7.
Based
on the documents and testimony collected from the Initial
Respondents, Applicant filed the First Supplemental
Application, seeking “key information” from the
First Supplemental Respondents related to Majab's real
estate purchases from Initial Respondents. Doc. 8 at 2;
see also Doc. 9 at 7-8. For at least three of the
transactions between Majab and the Initial Respondents, the
First Supplemental Respondents, Stuart Thompson and Debra
Anton, acted as Majab's escrow/settlement agent and real
estate agent, respectively. Doc. 8 at 2; Doc. 9 at 8 (citing
Doc. 10 ¶¶ 6-7; Doc. 10 at 3-14). Further, at least
some of the purchase monies for the transactions passed
through Mr. Thompson as an intermediary. Doc. 9 at 8; Doc. 10
¶¶ 6-7; Doc. 10 at 3-14. Therefore, Applicant
asserted the First Supplemental Respondents would likely have
relevant documents and testimony regarding the source of the
funds used in the transactions such that Applicant could
determine whether the funds were proceeds of the alleged
fraudulent scheme at issue in the Foreign Proceeding. Doc. 9
at 8. The Court granted Petro Trading's First
Supplemental Application. Doc. 11.
Now,
based on the documents and testimony collected from the First
Supplemental Respondents, Applicant seeks information from
FFIB related to the millions of dollars Majab transferred
through the bank to purchase the various properties from
Initial Respondents. Doc. 13 at 8-9. Applicant has
specifically identified at least four wire transfers from
Majab's FFIB bank account to Mr. Thompson for the
purchases of the properties from Initial Respondents.
Id. Therefore, Applicant argues FFIB would likely
have relevant documents and testimony regarding the source of
the funds funneled through Majab's bank account and
ultimately used in the real estate transactions such that
Applicant could determine whether the funds were proceeds of
the alleged fraudulent scheme at issue in the Foreign
Proceeding. Id. at 9.
II.
Discussion
Under
28 U.S.C. § 1782, a United States district court may
assist litigants in foreign proceedings with the discovery of
documentary and testimonial evidence.
The
statute states:
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 . . . . The
order may be made pursuant to a letter rogatory issued, or
request made, by a foreign or international tribunal or 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. .
. . The order may prescribe the practice and procedure, which
may be in whole or party the practice and procedure of the
foreign country or the international tribunal, for taking the
testimony or statement or producing the document or other
thing. 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.
§ 1782(a). A district court thus is authorized to grant
a request under § 1782 if the following requirements are
met:
(1) The request must be made by a foreign or international
tribunal or by any interested person; (2) the request must
seek evidence, whether it be the testimony or statement of a
person or the production of a document or other thing; (3)
the evidence must be for use in a proceeding in a foreign or
international tribunal; and (4) the person from whom
discovery is sought must reside ...