Euclid Fish Company v. Cape Florida Seafood et al

Filing 42

ORDER ADOPTING 40 REPORT AND RECOMMENDATIONS re 40 Report and Recommendations, 1 Motion to Quash filed by Norwegian Seafood Council. Closing Case. Denying as moot 41 Unopposed MOTION to Withdraw as Attorney by Alexander H. Merritt for / filed by Norwegian Seafood Council. Signed by Chief Judge Cecilia M. Altonaga on 9/13/2021. See attached document for full details. (ps1)

Case 1:21-mc-22310-CMA Document 42 Entered on FLSD Docket 09/13/2021 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-22310-MC-ALTONAGA/Louis
EUCLID FISH COMPANY,
Plaintiff,
vs.
CAPE FLORIDA SEAFOOD, et al.,
Defendants.
_______________________________/
ORDER
On May 6, 2020, non-party, Norwegian Seafood Council (“NSC”) filed a Motion to Quash
Subpoena [ECF No. 1], requesting the Court quash a subpoena served upon it in connection with
the litigation in In re Farm-Raised Salmon & Salmon Products Antitrust Litigation, No. 19-21551Civ (“In re Salmon”). The Court referred the matter to Magistrate Judge Lauren F. Louis for a
report and recommendation. (See June 24, 2021 Order [ECF No. 22]). NSC filed a Memorandum
of Law in Support of its Motion [ECF No. 2]; the In re Salmon Plaintiffs filed a Response [ECF
No. 11]; and NSC filed a Reply [ECF No. 24]. Magistrate Judge Louis held a hearing on July 23,
2021 [ECF No. 37].
On August 20, 2021, Magistrate Judge Louis entered her Report and Recommendation
(“Report”) [ECF No. 40], recommending the Court grant NSC’s Motion because (1) NSC is
protected by sovereign immunity, (2) the Court lacks personal jurisdiction over NSC, and (3)
principles of international comity justify quashing the subpoena. (See generally id.). The Report
advised the parties that they had 14 days to file objections to the Report. (See id. 21). To date, no
objections have been filed.

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CASE NO. 21-22310-MC-ALTONAGA/Louis
When a magistrate judge’s “disposition” has properly been objected to, district courts must
review the disposition de novo. Fed. R. Civ. P. 72(b)(3). When no party has timely objected,
however, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id. advisory comm. notes (citation omitted). Although Rule
72 itself is silent on the standard of review, the Supreme Court has acknowledged Congress’s intent
was to only require a de novo review where objections have been properly filed, not when neither
party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress
intended to require district court review of a magistrate [judge]’s factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings.” (alteration
added)). In any event, the “[f]ailure to object to the magistrate [judge]’s factual findings after
notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.
1988) (alterations added; citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).
On June 4, 2021, NSC filed its third-party Motion to Quash Subpoena raising three grounds
to quash the subpoena served on NSC by counsel for the In re Salmon Plaintiffs. (See generally
Mot. Quash Subpoena). The relevant factual background underlying the parties’ dispute is set
forth in the Report and is not repeated here. (See Report 1–4).
NSC argued it should not be required to respond to the subpoena because (1) NSC is an
instrumentality of the Government of Norway and thus is entitled to sovereign immunity; (2) even
if NSC is not entitled to sovereign immunity, due process requires quashing the subpoena because
NSC’s limited contacts with the United States are removed from the information sought by the
subpoena; and (3) principles of international comity independently require that any discovery
against NSC proceed under the Hague Convention. (See generally Mot. Quash Subpoena). The
Report thoroughly addresses each basis for quashing the subpoena and finds each ground raised

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CASE NO. 21-22310-MC-ALTONAGA/Louis
by NSC independently justifies granting the relief NSC requests. (See generally Report). The
Report correctly finds that (1) NSC was an instrumentality of Norway entitled to sovereign
immunity (2) engaged in a quintessential government function and thus not subject to the
commercial activity exception, under Pablo Star Ltd. v. Welsh Government, 961 F.3d 555 (2d Cir.
2020) and Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004), because NSC, in its actions, promoted
Norwegian seafood. (See Report 7–10). Moreover, the Report reasons why, alternatively, the
commercial activity exception does not apply because Plaintiffs failed to show NSC’s activity,
either in the United States or abroad, possessed a sufficient nexus to the information sought in the
subpoena or the claims in In re Salmon. (See id. 11–14). The Report then correctly concludes that
the Court lacks personal jurisdiction over NSC because NSC’s contacts with the United States are
disconnected from either (1) the information sought in the subpoena or (2) the conduct at issue in
In re Salmon, and thus “specific jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the State” (id. 19 (quotation marks omitted; quoting Bristol-Myers Squibb
Co. v. Superior Ct. Cal., 137 S. Ct. 1773, 1781 (2017))). Finally, the Report concludes that the
factors set forth by Societe Nationale Industrielle Aerospatiale v. United States District Court for
the Southern District of Iowa, 482 U.S. 522 (1987), independently require quashing the subpoena
under international comity principles. (See Report 19–21).
The undersigned has reviewed the Report, the record, and the applicable law to assure
herself that no clear error appears on the face of the record. In the light of that review, the
undersigned agrees with the analysis and recommendations stated in Magistrate Judge Louis’s
Report, and agrees with her conclusion that NSC’s Motion should be granted. Accordingly, it is
ORDERED AND ADJUDGED that the Report [ECF No. 40] is AFFIRMED AND
ADOPTED. Non-party, Norwegian Seafood Council’s Motion to Quash Subpoena [ECF No. 1]

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CASE NO. 21-22310-MC-ALTONAGA/Louis
is GRANTED. The Clerk shall close this case.
DONE AND ORDERED in Miami, Florida, this 13th day of September, 2021.

________________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc:

Magistrate Judge Lauren F. Louis
counsel of record

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