Filing 15

ORDER granting 12 Supplemental Ex Parte Application of Petro Welt Trading Ges.m.b.H for Order to Obtain Discovery for Use in Foreign Proceeding. Petro Trading is authorized to issue and serve the proposed subpoena on First Florida Integrity Bank to obtain documents and/or take deposition testimony. Signed by Magistrate Judge Carol Mirando on 6/18/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: EX PARTE APPLICATION
OF PETRO WELT TRADING
GES.M.B.H FOR ORDER TO
OBTAIN DISCOVERY FOR USE IN
FOREIGN PROCEEDING

Case No: 2:18-mc-5-FtM-38CM

ORDER
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

Included with the Second Supplemental Application are the proposed subpoena; a
Memorandum of Law in Support of the Second Supplemental Application; and the
declaration of Oleg Stolyar, counsel for Petro Trading, and attached exhibits. See Docs. 121, 13, 14.
1

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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, 4950, 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

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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.

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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 or be found in the district of the district
court ruling on the application for assistance.

In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007) (internal quotation marks
omitted) (citing § 1782(a)).
Accepting as true the information in the Second Supplemental Application and
its supporting documents, the Court finds Applicant meets the statutory
requirements of § 1782 because (1) Applicant is an “interested person” under § 1782
given that Applicant is a plaintiff in the Foreign Proceeding; (2) Applicant seeks
documentary and testimonial evidence, as indicated by its proposed subpoena; (3) the
requested discovery is intended for use in pending litigation before the District Court
of Nicosia in Cyprus; and (4) FFIB resides in Naples, Florida, and Tampa, Florida,
within this federal judicial district. See Doc. 4 ¶¶ 1, 20, 22; Doc. 12 at 4, Doc. 12-1
at 8-11, 15-18; Doc. 13 at 10-11; Doc. 14 ¶ 3; see also In re Application of Setraco

Nigeria Ltd., No. 3:13-mc-16-32MCR, 2013 WL 3153902, at *2-3 (M.D. Fla. June 19,
2013).

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Even if all the statutory requirements are met, as they are here, a federal
district court has discretion to determine whether it will provide the requested
assistance. See In re Clerici, 481 F.3d at 1332 (quoting Intel Corp. v. Advanced

Micro Devices, Inc., 542 U.S. 241, 255 (2004)). Factors for the court to consider when
determining whether to exercise its discretion under § 1782 include:
(1) Whether the person from whom discovery is sought is a participant
in the foreign proceeding, because the need for § 1782(a) aid generally is
not as apparent as it ordinarily is when evidence is sought from a
nonparticipant; (2) the nature of the foreign tribunal, the character of
the proceedings underway abroad, and the receptivity of the foreign
government or the court or agency abroad to U.S. federal-court judicial
assistance; (3) whether the § 1782(a) request conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States; and (4) whether the request is
otherwise unduly intrusive or burdensome.

Id. at 1334 (internal quotations marks omitted) (citing Intel, 452 U.S. at 264-65).
The Court finds Applicant has met all four of the discretionary factors. First,
“FFIB is not, and is not expected to be, a party in the Foreign Proceeding,” meaning
their documentary and testimonial evidence may be “outside the foreign tribunal’s
jurisdictional reach” and otherwise “unobtainable absent § 1782(a) aid.” See Intel,
542 U.S. at 264; Doc. 13 at 12.

Second, the Declaration of Chrysanthos

Christoforou—an attorney in Cyprus—which was submitted in support of the Initial
Application, indicates that “Cyprus law does not prohibit a party from seeking
evidence abroad by whatever legal means are available to do it,” and Mr. Christoforou
is “not aware of any reason a Cyprus Court would accept judicial assistance from a
United States Court.” See Doc. 4 at 5-6. Further, other United States courts have
authorized § 1782(a) aid for legal proceedings in Cyprus before. See Doc. 13 at 12-

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13 (citing Gorsoan Ltd. v. Bullock, 652 F. App’x 7 (2d Cir. 2016); Weber v. Finker, 554
F.3d 1379 (11th Cir. 2009)). Third, there is no indication the Second Supplemental
Application seeks to circumvent Cypriot policy or proof-gathering restrictions. See
Doc. 13 at 13 (citing Doc. 4 ¶ 21); see also Gorsoan, 652 F. App’x at 9. Last, the
Second Supplemental Application’s request is not unduly intrusive or burdensome
because it seeks limited information about the source of Majab’s funds used for
specific real estate transactions in which the Initial Respondents and the First
Supplemental Respondents were involved. See Doc. 13 at 14; see also Doc. 12-1 at
8-11, 15-18. Also, Applicant claims it will pay FFIB’s document production costs “to
minimize any burden or inconvenience.” Doc. 13 at 14.
At least one other court in this district has granted a similar request under §
1782, in which the applicant sought to subpoena a bank to determine if opposing
parties in a foreign proceeding had illegally siphoned funds into an account at the
bank. See generally In re Application of Setraco Nigeria Ltd., 2013 WL 3153902.
Upon consideration of the statutory requirements of § 1782 and the accompanying
discretionary factors, the Court will grant Petro Trading’s Second Supplemental
Application.
ACCORDINGLY, it is
ORDERED:
1.

The Second Supplemental Ex Parte Application of Petro Welt Trading

Ges.m.b.H for Order to Obtain Discovery for Use in Foreign Proceeding (Doc. 12) is
GRANTED.

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2.

Petro Trading is authorized to issue and serve the proposed subpoena

(Docs. 12-1) on First Florida Integrity Bank to obtain documents and/or take
deposition testimony.
3.

Service of the subpoena and any discovery taken pursuant to this Order

must comply with the Federal Rules of Civil Procedure and the Local Rules of the
United States District Court for the Middle District of Florida.
4.

Petro Trading is directed to serve FFIB a copy of this Order with the

subpoena.
5.

Any licensed Florida court reporter is appointed as a person with the

power to administer any necessary oath and to duly take and record deposition
testimony or a statement.
6.

Petro Trading is directed to pay the reasonable costs incurred by FFIB

in producing documents responsive to the subpoena.
7.

FFIB is directed to preserve documents and evidence, electronic or

otherwise, in its possession, custody or control containing information potentially
relevant to the subject matter of the Foreign Proceeding as identified in the subpoena
and in the Second Supplemental Application until Petro Trading communicates to it
that preservation is no longer necessary or until further order of this Court.
8.

FFIB is directed to produce the requested documents within twenty-one

(21) days of service of the subpoena and in compliance with the Federal Rules of Civil
Procedure and the Local Rules of the United States District Court for the Middle
District of Florida.

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9.

FFIB may, for good cause shown, oppose the giving of evidence, or the

circumstances thereof, by motion timely filed with the Court.
DONE and ORDERED in Fort Myers, Florida on this 18th day of June, 2018.

Copies:
Counsel of record

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