Pinchuk et al v. Georgian American Alloys, Inc., et al
Filing
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Notice of Order Denying Motion to Consolidate filed in Case No. 13-cv-22857. Signed by Magistrate Judge Jonathan Goodman on 3/17/2014. (hs00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 13‐CIV‐22857‐DLG
CASE NO. 14‐CIV‐20047‐JEM
IN RE APPLICATION OF
Victor Mikhaylovich Pinchuk
Pursuant to 28 U.S.C. § 1782
For Judicial Assistance in
Obtaining Evidence in this District
IN RE APPLICATION OF
Victor Mikhaylovich Pinchuk; Acle
Limited; Bisenden Consulting Inc.;
Bramerton Consulting Invest Inc.;
Bungonia Overseas Ltd.; Comidor Limited;
Kessinglard Limited; Kirkbean Participation
Corp.; Soyer Management Ltd.; Walkerville
Business Ltd.; and Zambrotta International Inc.
Pursuant to 28 U.S.C. § 1782 For Judicial
Assistance in Obtaining Evidence in this District
_________________________________/
ORDER ON MOTION TO CONSOLIDATE
This Cause is before the Undersigned on Petitioner Victor Mikhaylovich
Pinchuk’s Motion to Consolidate Case No. 13‐CIV‐22857‐DLG and Case No. 14‐CIV‐
20047‐JEM (the “Motion”). [ECF No. 63]. The Undersigned has reviewed the motion
filed in the 2013 case [ECF No. 63], the response [ECF No. 70], the reply [ECF No. 73],
and the other relevant portions of the record. For the foregoing reasons, the Motion is
DENIED.
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I.
BACKGROUND
Victor Mikhaylovich Pinchuk (“Petitioner”) has filed two separate applications in
this District for ex parte discovery pursuant to 28 U.S.C. § 1782. Petitioner filed the first
application on August 9, 2013, after which the clerk assigned the matter to the
Honorable Judge Donald L. Graham (the “London Application”). [Case No. 13‐CIV‐
22857, ECF No. 1]. In the London Application, Petitioner seeks discovery from
Georgian American Alloys, Inc., Felman Production LLC, Felman Trading, Inc., CC
Metals and Alloys LLC, and Mordechai Korf (collectively, the “Discovery Subjects”) in
connection with a breach of contract action pending before the London Court of
International Arbitration (“LCIA”). Petitioner’s breach of contract claims arise out of a
dispute regarding a joint venture between Petitioner and his former partners Igor
Valeryevich Kolomoisky (“Kolomoisky”) and Gennadiy Borisovich Bogolyubov
(“Bogolyubov”). [ECF No. 1, pp. 1‐4]. Judge Graham referred the matter to the
Undersigned to take all necessary and proper action required by law regarding
Petitioner’s ex parte application. The Undersigned granted the London Application.
[ECF No. 5].
On January 6, 2014, Petitioner, along with ten other entities (collectively, the
“Cyprus Petitioners”), filed a second Section 1782 application (the “Cyprus
Application”). [Case No. 14‐CIV‐20047‐JEM, ECF No. 1]. The Cyprus Petitioners seek
discovery from the Discovery Subjects regarding a claim for injunctive relief against
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both Kolomoisky and Bogolyubov, in an action pending before the Limassol District
Court in the Republic of Cyprus. The clerk assigned the Cyprus Application to the
Honorable Judge Jose E. Martinez, who then transferred the matter to the
Undersigned. However, for statistical purposes, the clerk re‐designated the case to
Judge Martinez with the Undersigned as the referral judge.
Petitioner now moves to consolidate the Cyprus Application pending before
Judge Martinez with the London Application pending before Judge Graham.
II.
DISCUSSION
A. Federal Magistrate Judge’s Jurisdiction over Non‐Dispositive Matters
A federal magistrate judge can hear and rule on non‐dispositive matters without
first obtaining the parties’ consent. See, e.g., Reeves v. DSI Sec. Serv., Inc., 395 Fed. App’x
544, 548 (11th Cir. 2010) (“A district court may also designate a magistrate judge to rule
on certain non‐dispositive pretrial motions. . . .The district court need not obtain the
consent of the parties before assigning these matters to a magistrate judge.”); Romacorp,
Inc., v. Prescient, Inc., No. 10‐22872‐Civ, 2011 WL 2312563, at *1 (S.D. Fla. June 8, 2011)
(“It is well‐established that the consent of the parties is unnecessary for a magistrate
judge to rule on non‐dispositive matters.”). Section 636(b)(1)(A) permits a district court
judge to designate a magistrate judge to rule on any pretrial matter – by order – except
for certain enumerated motions such as a motion for summary judgment. See 28 U.S.C.
§ 636(b)(1)(A). Therefore, the Undersigned may issue an order on Petitioner’s motion
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without first obtaining the parties’ consent. The Undersigned’s denial of a motion to
consolidate is reviewed for an abuse of discretion. See Young v. City of Augusta, Ga., 59
F.3d 1160, 1169 (11th Cir. 1995).
B. Rule 42(a) Consolidation
Under Federal Rule of Civil Procedure Rule 42(a), the court can consolidate cases
“involving a common question of law or fact.” Fed.R.Civ.P. 42(a). In making this
determination, the court retains complete discretion and may consolidate all or part of
any action. See Young, 59 F.3d at 1168 (citing 9 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 2383, at 439‐40 (1994)(discussing that even when
consolidation under Rule 42(a) may be warranted because of a common issue of law or
fact, it is not required)). For Rule 42(a) to apply, the cases must be “simultaneously
pending in the same court.” Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 765‐66 (11th
Cir. 1995).
1. “Same Court”
The London Application and the Cyprus Application are pending before two
different district court judges in the Southern District of Florida. The Ninth Circuit
Court of Appeals, in Investors Research Co. v. United States District Court for the Central
District of California, 877 F.2d 777 (9th Cir. 1989), held that the district court erred in
refusing to consider a motion to consolidate because the actions were in the same
district but pending before different judges. Id. at 777. However, the Court of Federal
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Claims, in Swentek v. United States, No. 07‐208C, 2008 WL 2275572, at *1 (Fed.Cl. May 29,
2008), held that under its local rules, “a judge has the power only to consolidate the
cases on his own docket.” Id. at *1. The Eleventh Circuit has not ruled on this issue.
The practice in this district is for consolidation only when the related cases are pending
before the same judge due to initial case assignment or transfer. The Undersigned,
however, need not resolve the issue of how to interpret “same court” because, assuming
that I predict that the Eleventh Circuit would adopt the Ninth Circuit’s rule, I would
still deny the motion for other reasons as described below.
2. Common Issues of Law or Fact
Even if the Ninth Circuit’s interpretation applied to this motion, the Undersigned
finds the matters do not involve common issues of law or fact sufficient to justify
consolidation. Although both applications seek discovery from the same Discovery
Subjects, they involve different foreign tribunals, parties, and legal issues. The London
Application concerns a case pending before the LCIA and the Cyprus Application
concerns a case pending before a Cyprus District Court. These foreign tribunals will
inevitably engage in different proceedings with different standards and rules for
discovery. Indeed, neither tribunal has stated that it would accept the requested
discovery. In addition, the Cyprus action concerns ten entities that are not a part of the
LCIA action. Finally, the LCIA action is for breach of contract, while the Cyprus action
is for injunctive relief.
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Furthermore, although the Undersigned initially granted the London
Application, the Discovery Subjects have filed motions challenging that Order and it
remains within the Court’s discretion to grant or deny the Cyprus Application. Indeed,
even if Petitioner has established a prima facie case under § 1782(a), the Court may
deny the requested relief. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264
(2004)(“A district court is not required to grant a § 1782(a) discovery application simply
because it has the authority to do so.”). Thus, there remains a possibility that the
Court’s ruling on the Cyprus Application will differ from the ruling on the London
Application.
As detailed above, the matters, pending before two different judges in this
district, simply do not involve enough common questions of law or fact to justify
consolidation. Accordingly, it is
ORDERED AND ADJUDGED that Petitioner’s Motion to Consolidate [ECF No.
63] is DENIED.
DONE AND ORDERED in Chambers, in Miami, Florida, March 17, 2014.
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Copies furnished to:
The Honorable Donald L. Graham
The Honorable Jose E. Martinez
All counsel of record
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