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.

- - - - - - - - - - - - - - - - - -x

DEBBIE GUSHLAK,
          Petitioner-Appellee,

                              -v.-

MYRON L. GUSHLAK,                                       11-2584-cv
          Respondent-Appellant,

DUKE TERRELL, WARDEN, DAVID LUBIN,
YELENA FURMAN,
          Respondents.
- - - - - - - - - - - - - - - - - -x

DEBBIE GUSHLAK,
          Petitioner-Appellee,

                              -v.-

YELENA FURMAN,                                          11-3808-cv
          Respondent-Appellant,

DUKE TERRELL, WARDEN, DAVID LUBIN,
MYRON L. GUSHLAK,
          Respondents.

- - - - - - - - - - - - - - - - - -x
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

                                  -2-
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


                               -3-
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

                                -4-
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).


                                -5-
          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


                                 -6-
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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