Fuhr v. Credit Suisse AG
| Decision Date | 02 May 2017 |
| Docket Number | No. 15-15355,15-15355 |
| Parties | TIM FUHR, Petitioner-Appellee, v. CREDIT SUISSE AG, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D.C. Docket No. 1:13-mc-21598-WJZ
Appeal from the United States District Court for the Southern District of Florida
Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER,* District Judge.
Seeking evidence to aid in his defense of a German defamation action, Tim Fuhr applied in the district court under 28 U.S.C. § 1782 for discovery of bank records in Credit Suisse AG's possession. The district court granted the application, authorizing the issuance of a subpoena for the records, and then denied Credit Suisse's motion to quash the subpoena. Credit Suisse appealed, arguing that the district court abused its discretion in granting the § 1782 application, and thus in enforcing the subpoena, because the court failed to properly (1) consider whether Fuhr's application concealed an attempt to circumvent foreign proof-gathering restrictions or (2) weigh the respective comity interests of Switzerland, whose privacy laws apply to Credit Suisse's bank records, and the United States. After careful consideration and with the benefit of oral argument, we conclude that the district court's circumvention and comity analyses both hinged on a clearly erroneous factual finding as to the identity of the holder of a certain Credit Suisse bank account. The district court therefore abused its discretion in granting Fuhr's § 1782 application and denying the motion to quash. Accordingly, we vacate and remand for further proceedings.
For a number of years leading up to this action, Fuhr searched for assets allegedly belonging to Dr. Ambrosius Wolfgang Bäuml, the last heir of a wealthyJewish family, the Wertheims, to whose estate Fuhr claims heirship.1 In 2006, Fuhr's search led his investigator, Gerda Mangliers, to Renate Sgier, a Credit Suisse official in Zurich, Switzerland. Mangliers told Sgier that Bäuml owned a bank account at Credit Suisse and that as Bäuml's heir Fuhr sought the release of information relating to the account.2 Sgier initially complied, releasing to Mangliers some documents relating to an account that Mangliers claimed belonged to Bäuml. Soon thereafter, Credit Suisse ceased cooperating with Mangliers, having determined that the account in question was not in fact Bäuml's.3 Several years later, in 2012, Fuhr again requested from Credit Suisse information relating to the account that Bäuml supposedly had owned. Credit Suisse sent Fuhr a letter asserting that an in-depth investigation had uncovered no evidence of a banking relationship between it and Bäuml.
Over the course of his search for Bäuml's assets, Fuhr wrote a number of letters to a third party or third parties alleging that Luis Marimón Garnier, a Spanish national and former Deutsche Bank officer, had wrongfully diverted funds from a Credit Suisse bank account belonging to Bäuml to a Deutsche Bank accountin Geneva, Switzerland. In response, Marimón—along with his son and law firm—initiated a defamation suit against Fuhr in Germany, seeking €500,000 in damages and to enjoin Fuhr from claiming that Marimón had either held a bank account for Bäuml's benefit or transferred money away from such account.
To establish his defense in the defamation suit, Fuhr sought to obtain documents from Credit Suisse that purportedly demonstrated the truth of his accusations against Marimón. To this end, he invoked 28 U.S.C. § 1782, which empowers a district court to order discovery "for use in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782. Fuhr filed an ex parte § 1782 application against Credit Suisse and Deutsche Bank in the Southern District of Florida for discovery of documents pertaining to a bank account that Bäuml allegedly owned. A magistrate judge issued a Report & Recommendation ("R&R") recommending that Fuhr's application be denied. Fuhr objected to the R&R inasmuch as it recommended dismissal of his application as against Credit Suisse. At the time, Credit Suisse had not yet appeared in the matter. The district court adopted the R&R as to Fuhr's claim against Deutsche Bank, but allowed Fuhr to maintain his § 1782 action against Credit Suisse.
Credit Suisse asserts that it was given no formal notice of the § 1782 proceeding until September 12, 2013, when it was first served with a subpoena. Fuhr does not dispute this assertion. Shortly after its initial appearance, CreditSuisse moved to quash the § 1782 subpoena. Adopting a second magistrate judge's R&R, the district court denied Credit Suisse's motion and ordered the bank to produce all responsive, non-privileged documents to Fuhr within five days. In so doing, the district court determined that enforcing the subpoena would not circumvent Swiss banking privacy law or result in penal violations for Credit Suisse under Swiss law because Bäuml owned the Credit Suisse account at issue, and Fuhr, as Bäuml's heir, was entitled under Swiss law to information regarding the account. Credit Suisse timely filed this appeal and moved the district court for a stay, which the court denied. Credit Suisse then moved this Court for a stay, which we granted.
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1169 (11th Cir. 2010). "The credibility of witnesses and findings of fact where the evidence supports more than one conclusion are matters generally reserved for the fact finders and can only be reviewed to determine whether clear error occurred." Mich. Abrasive Co. v. Poole, 805 F.2d 1001, 1007 (11th Cir. 1986). "A factual finding is clearly erroneous only if we are left with the definite and firm conviction that a mistake has been committed." Harris v. Schonbrun, 773 F.3d 1180, 1182 (11th Cir. 2014) (internal quotation marks omitted). In an action brought under 28 U.S.C. § 1782, a district court also abuses its discretion if it fails to give "required respect to . . . the important considerations of comity underlying § 1782." United Kingdom v. United States, 238 F.3d 1312, 1324 (11th Cir. 2001).
"[A] federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Pursuant to this obligation, we issued a Jurisdictional Question as to Credit Suisse, and then an order to carry the jurisdictional issue with the case. Fuhr moved to dismiss the appeal on the ground that it is premature. He argues that an order denying a motion to quash a subpoena is not "final" within the meaning of 28 USC § 1291 and that a party thus cannot appeal such an orderwithout first defying it and risking contempt sanctions. This issue is one of first impression in this Circuit.4 Although rulings on motions to quash subpoenas ordinarily are not appealable, we conclude that in proceedings brought under § 1782 such rulings resolve the entire case or controversy before the court, and so are "final" in a jurisdictional sense. Therefore, Credit Suisse's appeal is not premature, and we deny the motion to dismiss.5
Under § 1291, we "have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1291. "As a general proposition most orders granting or denying discovery are not final orders." In re Int'l Horizons, Inc., 689 F.2d 996, 1000-01 (11th Cir. 1982) (internal quotation marks omitted). Thus, "[o]rdinarily, discovery orders without a concomitant contempt holding are notappealable." Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1465 (11th Cir. 1984).
[A] litigant seeking to overturn a discovery order has two choices. Either he can comply with the order and challenge it at the conclusion of the case or he can refuse to comply with the order and contest its validity if subsequently cited for contempt for his refusal to obey.
Rouse Constr. Int'l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir. 1982). As the Fifth Circuit has explained, the rationale behind this requirement is that allowing "immediate appeal from [such] orders . . . would open the door to multiple appeals, thereby offending the policy against piecemeal litigation embodied in the finality rule" set forth in § 1291. Branch v. Phillips Petroleum Co., 638 F.2d 873, 877 (5th Cir. Unit A Mar. 1981) (internal quotation marks omitted); see also Catlin v. United States, 324 U.S. 229, 233-34 (1945) ( ).
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