In re Clerici
| Decision Date | 21 March 2007 |
| Docket Number | No. 06-11141.,06-11141. |
| Parties | In re: Patricio CLERICI, Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Pedro J. Martinez-Fraga, Elliot B. Kula, Greenberg Traurig, P.A., Charles M. Auslander, The Children's Trust, Miami, FL, for Appellant.
Anne R. Schultz, Lisette M. Reid, Asst. U.S. Atty., Miami, FL, for Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, HULL and
This case involves the authority of federal district courts to assist in the production of evidence — here, sworn answers to written questions — for use in a foreign court. Appellant Patricio Clerici ("Clerici") appeals the district court's January 27, 2006 order denying his motion to vacate the district court's October 12, 2005 order granting the government's application, filed pursuant to 28 U.S.C. § 1782, for judicial assistance to foreign tribunals. In its January 27, 2006 order, the district court appointed an Assistant United States Attorney to obtain sworn answers from Clerici to the questions posed in the Panamanian Court's letter rogatory. After review and oral argument, we affirm.
Clerici is a Panamanian citizen and merchant who also resides in Miami, Florida. In 1998 in Panama, Clerici initiated a civil lawsuit against NoName Corporation ("NoName") and others in the Second Court of the Circuit of Colon, Civil Branch, Republic of Panama ("Panamanian Court"). As part of these proceedings, Clerici requested the attachment of NoName's property, which the Panamanian Court granted by judicial decree. As a result, certain property of NoName was seized.
Thereafter, on August 27, 1999, NoName filed a motion to dismiss Clerici's Panama lawsuit, alleging that Clerici had failed to prosecute his civil lawsuit. On February 11, 2000, the Panamanian Court granted NoName's motion to dismiss Clerici's lawsuit, and the attachment of NoName's property was vacated. The resolution of Clerici's civil lawsuit was appealed and affirmed by Panama's First Superior Court of Justice on November 13, 2000.
On April 27, 2001, NoName filed an incidental proceeding in the Panamanian Court claiming damages arising from Clerici's civil lawsuit and the attachment proceeding. Specifically, NoName alleged that it was a new business in Panama and in the process of expanding, but that Clerici's lawsuit "changed the commercial image of the company." NoName alleged that Clerici's lawsuit negatively impacted NoName's credit with various banks and its image in the community, resulted in the denial of its request for an increase in credit, and led to lost sales and profits. On September 27, 2002, the Panamanian Court entered Judicial Decree No. 1166, in which Clerici was "condemn[ed] . . . to pay" NoName, in balboas,1 1,996,598.00 in damages and 294,589.70 in costs. Thus, NoName obtained a sizable foreign judgment against Clerici in Panama.
It is undisputed that NoName's foreign judgment against Clerici has not been domesticated and is not currently enforceable in Florida. While NoName filed a domestication action, NoName never pursued it.2
Subsequently, on January 27, 2005, NoName filed a post-judgment petition in the same Panamanian Court where NoName had obtained the sizable judgment against Clerici. NoName's post-judgment petition was entitled "Ordinary Proceeding Involving More Than a Certain Amount (Incident of Damages) Petition (Complementary Execution)."
In its petition, NoName requested that the Panamanian Court "begin the procedure complementary to the execution" of its judgment "pursuant to the provisions of Article 1049 and 1050 of the Judicial Code" of Panama. NoName's petition identified the following questions to be asked to Clerici regarding his assets and other financial matters "in the Republic of Panama or in any other part of the world":
1. What properties (real or personal), credits, sustenance means or any other source of income did he [have] on April 27, 2001 in the Republic of Panama or in any other part of the world?
2. What properties (real or personal), credits, sustenance means or any other source of income did he [have] on September 27, 2002 in the Republic of Panama or in any other part of the world?
3. What transfers, conveyances or donations has he made after April 27, 2001 and September 27, 2002 in the Republic of Panama or in any other part of the world? Please explain the reasons for these conveyances.
4. What is the amount of your patrimony to the date of this proceeding?
5. How and by what means are you going to fulfill the obligations acquired by means of Resolution No. 1166 of September 27, 2002, announced by the Second Court of the Civil Circuit of Colon (Republic of Panama), wherein you are condemned to pay an amount greater than TWO MILLION BALBOAS (B/2,000,000.00) (legal currency of the Republic of Panama) to the corporation NONAME CORP.?
6. Are you in bankruptcy? Please explain the reasons.
7. How many nationalities or citizenships do you have up to date?
8. In what countries do you file income-tax returns?
9. With what financial entities (banks, investment houses, to mention some) in the world have you had or have business relations or a relation as a client?
Because Clerici resided in the United States, NoName's petition suggested that the Panamanian Court obtain this evidence through the issuance of a letter rogatory.3
The Panamanian Court granted NoName's petition, finding that
the petition is based in the provisions of Article 1049 of the Judicial Code, allowing the executant, when the obligation is not paid within the respective term, to interrogate the debtor, or request the judge to do it, in order that under oath he may answer the questions made in relation to his properties, rights, credits, sustenance means, source of income, as from the date of this claimed obligation.
Because Clerici resided in Florida, the Panamanian Court issued a letter rogatory to the "Judicial Authorities of the City of Miami" requesting assistance with obtaining answers from Clerici, while under oath, to NoName's proposed questions. The Panamanian Court's letter rogatory stated that the evidence obtained "will be used in the civil process before this court," and the Panamanian Court cited as authority for its request the Inter-American Convention Regarding Letters Rogatory ("the Convention"). The questions listed in the Panamanian Court's letter rogatory were substantially similar to the questions proposed by NoName.4
On October 11, 2005, the United States filed an ex parte application in the United States District Court for the Southern District of Florida, pursuant to 28 U.S.C. § 1782, for an order appointing an Assistant United States Attorney as a commissioner for the purpose of obtaining the evidence requested by the Panamanian Court in its letter rogatory. Section 1782(a) provides that the district court where Clerici resides "may order him to give his testimony or statement . . . for use in a proceeding in a foreign . . . tribunal." 28 U.S.C. § 1782(a).5 On October 12, 2005, the district court granted the government's § 1782 application and appointed a commissioner "to take such steps as are necessary to obtain the evidence in conformity with the Letters Rogatory." The court-appointed commissioner then sent a letter to Clerici requesting that he sit for a deposition to answer the Panamanian Court's questions.
On December 27, 2005, Clerici filed a memorandum in opposition to the government's application. The district court construed Clerici's memorandum as a motion to vacate its previous order granting the § 1782 application and appointing a commissioner. In the motion, Clerici asserted that NoName's judgment against him is invalid, is being challenged in Panama, and in any event, is unenforceable in Florida because it has not been domesticated. Clerici argued that the application should be denied because (1) the Panamanian Court's letter rogatory does not contain the necessary documentation under the terms of the Convention; and (2) § 1782 cannot be used to enforce a foreign judgment pursuant to a letter rogatory. Clerici also argued that, even if § 1782 authorized the requested assistance, the district court should, in its discretion, decline to grant judicial assistance because (1) the letter rogatory is an attempt to enforce a foreign judgment that has not been domesticated, and therefore, is unenforceable; and (2) the application is "unduly intrusive."
In response, the government argued that its application for judicial assistance was properly made pursuant to § 1782 despite the content of the Panamanian Court's letter rogatory. The government explained that, although the letter rogatory claimed to be sent under the terms of the Convention, "[a]s a matter of comity and assistance to foreign litigants," it generally treated such "mislabel[ed]" requests for assistance as requests made pursuant to § 1782.
The government also emphasized that the Panamanian Court was not requesting that the district court enforce the foreign judgment. Rather, the government pointed out that the Panamanian Court was seeking only assistance in obtaining evidence and that this was a proper use of § 1782.
The district court denied Clerici's motion to vacate. First, the district court found that, "[n]otwithstanding the form used to draft the Panamanian [C]ourt's request," the application for judicial assistance was filed pursuant to § 1782, and therefore, did not have to comply with the requirements of the Convention.6 Next, the district court rejected Clerici's argument that § 1782 was being used to enforce a foreign judgment through a letter rogatory. Instead, the district court found that the § 1782 application and exhibits "demonstrate clearly that the Panamanian [C]ourt is...
To continue reading
Request your trial
-
Khrapunov v. Prosyankin
...See 28 U.S.C. § 1782(a) ; see also Brandi-Dohrn v. IKB Deutsche Industriebank AG , 673 F.3d 76, 80 (2d Cir. 2012) ; In re Clerici , 481 F.3d 1324, 1331–32 (11th Cir. 2007). In this case, the second statutory requirement—that the discovery be for use in a foreign "proceeding"—is called into ......
-
United States v. Trs. of Bos. Coll.
...Cir.2011); In re Commissioner's Subpoenas, 325 F.3d 1287 (11th Cir.2003), abrogation in other part recognized by In re Clerici, 481 F.3d 1324, 1333 n. 12 (11th Cir.2007). These two cases analyzed the relationship between Section 1782 and two different mutual legal assistance treaties. Altho......
-
Aldana v. Del Monte Fresh Produce N.A., Inc.
...Cir.2005). And it is well settled that abuse of discretion review is "extremely limited" and "highly deferential." In re Clerici, 481 F.3d 1324, 1331 (11th Cir.2007) (United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir.2001)); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 2......
-
In re the Matter of The Search of The Premises Located At 840 140th Ave. Ne
...See generally In re Comm'r's Subpoenas, 325 F.3d 1287, 1290 (11th Cir.2003), abrogation in other part recognized by In re Clerici, 481 F.3d 1324, 1333 n. 12 (11th Cir.2007). As it works today, both foreign governments and private parties, including corporations and natural persons, can make......
-
Section 1782: Discovery in Support of a Foreign Proceeding
...to the limits of personal jurisdiction consistent with due process.”). [8] Id. at 530. [9] Id. at 259. [10] Compare In re Clerici, 481 F.3d 1324, 1332–1333 (11th Cir. 2007) (“[N]othing in the plain language of § 1782 requires that the proceeding be adjudicative in nature”) with Euromepa, S.......
-
The Eleventh Circuit's Rendezvous With Section 1782
...I am for you both.1. 28 U.S.C. § 1782 (2019).2. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 252 (2004).3. In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007).4. Id. at 1331.5. Intel Corp., 542 US at 264-65. 6. Id.7. Id.8. 925 F.3d 1218 (11th Cir. 2019).9. Id. at 1221.10. I......