     11-4116
     Lufthansa Technik AG v. Astronics Corporation

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       LUFTHANSA TECHNIK AG,
13                Petitioner-Appellant,
14
15                    -v.-                                               11-4116
16
17       ASTRONICS CORPORATION,
18                Respondent-Appellee,
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        LAWRENCE D. ROSENBERG (Susan M.
22                                             Gerber, on the brief), Jones
23                                             Day, Washington, D.C.
24
25       FOR APPELLEE:                         JONATHAN M. FREIMAN, Wiggin and
26                                             Dana LLP, New Haven, Conn.
27


                                                  1
1         Appeal from a judgment of the United States District
2    Court for the Western District of New York (Arcara, J.).
3
4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5    AND DECREED that the judgment of the district court be
6    AFFIRMED.
7
8        Lufthansa Technik AG appeals from the judgment of the

9    United States District Court for the Western District of New

10   York (Arcara, J.), dismissing Lufthansa’s application for

11   discovery in aid of a foreign proceeding pursuant to 28

12   U.S.C. § 1782.   Lufthansa is pursuing a patent infringement

13   claim in Germany against Astronics Advanced Electronic

14   Systems Corporation (“AES”), a wholly-owned subsidiary of

15   respondent Astronics Corporation.   Lufthansa has filed two

16   nearly-identical applications for discovery assistance: one

17   in the Western District of Washington against the

18   subsidiary, and the other against the parent in the Western

19   District of New York.   The New York court dismissed the

20   petition without prejudice as duplicative of the petition in

21   Washington.   We assume the parties’ familiarity with the

22   underlying facts, the procedural history, and the issues

23   presented for review.

24       “As part of its general power to administer its docket,

25   a district court may stay or dismiss a suit that is

26   duplicative of another federal court suit.”   Curtis v.

27   Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000); see also


                                   2
1    Colo. River Water Conservation Dist. v. United States, 424

2    U.S. 800, 817-18 (1976).   “We review the exercise of this

3    power for abuse of discretion.”   Curtis, 226 F.3d at 138.

4        The district court appropriately exercised its

5    discretion in dismissing Lufthansa’s duplicative petition.

6    The document requests in both petitions are substantively

7    identical, they relate to the same foreign proceeding, and

8    both corporations are represented by the same counsel.    As

9    Lufthansa points out, there is no rule requiring

10   subsidiaries to produce the documents held by a parent;

11   however, courts may at times order the production of those

12   documents in an action against the subsidiary.     See, e.g.,

13   United States v. Stein, 488 F. Supp. 2d 350, 361 (S.D.N.Y.

14   2007) (“Parent corporations have been compelled to produce

15   documents in the hands of subsidiaries, [and] subsidiaries

16   documents in the hands of their parent entities . . . .”);

17   Ferber v. Sharp Elecs. Corp., No. 84 Civ. 3105, 1984 WL

18   912479, at *1 (S.D.N.Y. Nov. 28, 1984).   This conclusion is

19   reinforced by assurances and representations made by

20   Astronics at oral argument: 1) Astronics concedes that the

21   Washington court has authority to order it to produce

22   discovery; and 2) Astronics has already searched for




                                   3
1    materials in its possession under the Washington court’s

2    order.1

3        Lufthansa cites the policy purposes behind § 1782 and a

4    historical practice of granting overlapping discovery

5    requests.   However, no case supports Lufthansa’s argument

6    that § 1782 forecloses an exercise of discretion to dismiss

7    duplicative actions.     To the contrary, district courts have

8    dismissed duplicative § 1782 petitions for reasons similar

9    to the ones discussed in this order.     See, e.g., In re Adolf

10   Horler, 799 F. Supp. 1457, 1465 (S.D.N.Y. 1992); In re Alves

11   Braga, 789 F. Supp. 2d 1294, 1310-11 (S.D. Fla. 2011)

12   (staying part of a § 1782 petition pending the resolution of

13   foreign proceedings).     Additionally, in many of the cases

14   relied on by Lufthansa, the overlapping discovery requests

15   were filed in a single tribunal, where the risk of competing

16   judgments is lessened.     Here, the district judge was

17   appropriately concerned with issuing decisions conflicting

18   with those made by the court in Washington.     To protect

19   Lufthansa’s interests, though, the district court dismissed

20   the petition without prejudice in the event the Washington




         1
           Despite finding several documents responsive to
     Lufthansa’s discovery request, Astronics claims they are all
     privileged and has created a privilege log to that effect.
                                     4
1    court could not provide Lufthansa with the discovery it

2    seeks.

3        While Lufthansa argues the district court

4    inappropriately imposed an extra-statutory barrier to its

5    petition, the statute itself is to the contrary.     District

6    courts are directed to order discovery “in accordance with

7    the Federal Rules of Civil Procedure.”   28 U.S.C. § 1782(a).

8    Thus, “the district court retains broad authority under Fed.

9    R. Civ. P. 26(b)(1) to limit discovery where . . . the

10   discovery sought is unreasonably cumulative or duplicative .

11   . . .”    In re Malev Hungarian Airlines, 964 F.2d 97, 102 (2d

12   Cir. 1992) (internal quotation marks omitted).     Concern for

13   duplicative § 1782 petitions is not an extra-statutory

14   burden.

15        In regard to Lufthansa’s motion to take judicial notice
16   of related proceedings, the motion is GRANTED. However,
17   finding no merit in Lufthansa’s other arguments, we hereby
18   AFFIRM the judgment of the district court.2
19
20                                FOR THE COURT:
21                                CATHERINE O’HAGAN WOLFE, CLERK
22




         2
           To the extent the parties cannot reach an agreement
     in their discovery conflict, they are encouraged to seek
     mediation in the Court’s Civil Appeals Management Program
     (“CAMP”) or a similar program.
                                    5
