The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23332-BLOOM
TERRA INVEST, LLC,
Plaintiff.
_____________________________________/
ORDER ON OBJECTIONS TO MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court upon non-party Vadislav Doronin’s (“Doronin”) Motion
to Vacate Order Granting Ex Parte Application and to Quash Subpoenas pursuant to Rule 45, ECF
No. [9], and non-party intervenor Capital Group Development, LLC’s (“Capital Group”) Motion
to Quash and Vacate, ECF No. [50] (collectively, “Motions to Vacate and Quash”). Terra Invest,
LLC (“Terra Invest”) filed Responses in Opposition to the Motions to Vacate and Quash. See ECF
Nos. [13], [57]. The Motions to Vacate and Quash were referred to Magistrate Judge Alicia M.
Otazo-Reyes for Reports and Recommendations (“R&R”). ECF Nos. [20], [51]. On November 7,
2022, Judge Otazo-Reyes issued an Omnibus R&R in which she recommended that the Motions
to Vacate and Quash be granted and that the case be dismissed for lack of subject matter
jurisdiction over Terra Invest’s Ex Parte Application. ECF No. [69]. Terra Invest filed its
Objections to the R&R, ECF No. [71], to which Doronin and Capital Group each filed a Response,
ECF Nos. [79], [80]. Capital Group also filed Objections to the R&R, ECF No. [72], to which
Terra Invest filed a Response, ECF No. [78].
The Court has conducted a de novo review of the R&R, the Objections, and the record in
this case in accordance with 28 U.S.C. § 636(b)(1)(C). See Williams v. McNeil, 557 F.3d 1287,
1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)). For the reasons set forth below, the Court
overrules the Objections and adopts the R&R in part.
I. BACKGROUND
The parties do not dispute, and the Court finds that the proceedings set forth in the R&R
are accurate and adopted.
On October 12, 2022, Judge Otazo-Reyes conducted a hearing on the Motions to Vacate
and Quash. ECF No. [67]. Thereafter, on November 7, 2022, Judge Otazo-Reyes issued an
Omnibus R&R in which she determined that Doronin does not “reside in” the Southern District of
Florida for purposes of 28 U.S.C. § 1782, that Doronin is not “found in” the Southern District of
Florida for purposes of § 1782, and that the evidence sought was not “for use” in a foreign
proceeding. See generally ECF No. [69]. The R&R recommends that the Court grant the Motions
to Vacate and Quash and dismiss this case for lack of subject matter jurisdiction. Id. at 9.
Terra Invest filed Objections to the R&R, asserting that Judge Otazo-Reyes (1) failed to
properly analyze the relevant law in determining whether Doronin resides in the district as
contemplated in § 1782; (2) incorrectly found that Doronin is not found within this district as
contemplated by § 1782; and (3) erroneously held that the discovery sought would not be for use
because there is no ongoing litigation directly addressing the evidence sought. ECF No. [71].
Doronin responds that the Court should overrule Terra Invest’s Objections because the R&R relies
on well-established law and Magistrate Judge Otazo-Reyes correctly concluded that Doronin
neither resides nor is found in the Southern District of Florida. ECF No. [80]. Capital Group
responded as well, arguing that Judge Otazo-Reyes correctly determined, based largely on Terra
Invest’s concessions, that any evidence Doronin may possess is irrelevant to the substance of any
ongoing Russian Proceedings. ECF No. [79].
Capital Group submitted its own limited Objections in which it argues that the Intel Factors
are not superfluous and provide an alternative, independent basis for quashing Terra Invest’s
discovery requests and raise the limited objection that the R&R should have concluded that the
Intel Factors also justify the relief granted. ECF No. [72]. Terra Invest responds that the Intel
Factors weigh in its favor. ECF No. [78].
II. LEGAL STANDARD
A. Objections to Magistrate Judge’s R&R
“In order to challenge the findings and recommendations of the magistrate judge, a party
must file written objections which shall specifically identify the portions of the proposed findings
and recommendation to which objection is made and the specific basis for objection.” Macort v.
Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989)) (alterations omitted). The objections must also present “supporting legal
authority.” S.D. Fla. L. Mag. J.R. 4(b). The portions of the report and recommendation to which
an objection is made are reviewed de novo only if those objections “pinpoint the specific findings
that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see
also Fed. R. Civ. P. 72(b)(3). If a party fails to object to any portion of the magistrate judge’s
report, those portions are reviewed for clear error. Macort, 208 F. App’x at 784 (quoting Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)); see also Liberty Am. Ins. Grp., Inc. v.
WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001). “It is improper for
an objecting party to ... submit [ ] papers to a district court which are nothing more than a rehashing
of the same arguments and positions taken in the original papers submitted to the Magistrate Judge.
Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to an
R & R.” Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug.
21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380,
382 (W.D.N.Y. 1992)). A district court may accept, reject, or modify a magistrate judge’s report
and recommendation. 28 U.S.C. § 636(b)(1).
B. Section 1782
Pursuant to 28 U.S.C. § 1782, a district court may grant an application for judicial
assistance where four criteria 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) (citing 28 U.S.C. § 1782(a)).
However, “a district court is not required to grant a § 1782(a) discovery application simply
because it has the authority to do so.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (citation omitted). If all statutory requirements are
met, the District Court can consider the following discretionary factors:
(1) whether ‘the person from whom discovery is sought is a participant in the
foreign proceeding’ ...; (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.’
Victoria, LLC v. Likhtenfeld, 791 F. App'x 810, 817 (11th Cir. 2019) (quoting Intel, 542 U.S. at
264-65); In re Kivisto, 521 F. App'x at 888 (same).
III. ANALYSIS
As stated above, Terra Invest filed Objections to the R&R, asserting that Judge Otazo-
Reyes (1) failed to properly analyze the relevant law in determining whether Doronin resides in
the District as contemplated in § 1782; (2) incorrectly found that Doronin is not found within this
District as contemplated by § 1782; and (3) erroneously held that the discovery sought would not
be for use because there is no ongoing litigation directly addressing the evidence sought. ECF No.
[71]. Doronin responds that the Court should overrule Terra Invest’s objections because the R&R
relies on well-established law and Magistrate Judge Otazo-Reyes correctly concluded that Doronin
neither resides in nor is found in the Southern District of Florida. ECF No. [80]. Capital Group
responded as well, arguing that Judge Otazo-Reyes correctly determined, based largely on Terra
Invest’s concessions, that any evidence Doronin may possess is irrelevant to the substance of any
ongoing Russian Proceedings. ECF No. [79].
Capital Group submitted its own limited Objections in which it argues that Judge Otazo-
Reyes should have considered the Intel Factors which provide an alternative, independent basis
for quashing Terra Invest’s discovery requests. ECF No. [72]. Terra Invest responds that the Intel
Factors weigh in its favor. ECF No. [78].
A. “Resides In”
Terra Invest objects to the R&R arguing that the Magistrate Judge erred in finding that
Doronin does not reside in the district for purposes of § 1782 discovery. It claims the Court
improperly relied on the domicile/permanent residency standard for elections instead of the
standard that controls for § 1782. ECF No. [71] at 12. Doronin responds that he does not reside in
the Southern District of Florida as a matter of fact and law. ECF No. [80].
i. Applicable Law
Terra Invest contends that Judge Otazo-Reyes improperly relied on Bloomfield v. City of
St. Petersburg Beach, 82 So. 2d 364 (Fla. 1955) and Walker v. Harris, 398 So. 2d 955 (Fla. 4th
DCA 1981) to arrive at the conclusion that Doronin does not reside in Florida and has no intention
of residing in Florida. ECF No. [71] at 12. It further argues that Bloomfield is distinguishable and
was not properly relied on because that case analyzed what it meant to be a “permanent resident”
under Florida Statute § 97.041 for purposes of determining a qualified elector; whereas, here, the
requirement is merely that Doronin must “reside in” the Southern District of Florida. ECF No. [71]
at 12-13. Doronin responds that the Court properly relied on state law for guidance to determine
whether Doronin resides in the district. ECF No. [80] at 6. Moreover, the R&R considered the
distinction between a domicile or permanent abode and a temporary residence. ECF No. [80] at 7
(citing ECF No. [69] at 4).
Regarding Walker, Terra Invest argues that it is distinguishable. In Walker, an individual
appealed a finding that she failed to establish legal residency for purposes of being qualified for
election. ECF No. [71] at 13 (citing Walker, 398 So. 2d at 955). Terra Invest argues that the
analysis in Walker was specific to “residence, residing or equivalent terms, when used in statutes,
or actions, or suits relating to taxation, right of suffrage, divorce . . . in the sense of legal residence;
that is to say the place of domicile or permanent abode as distinguished from temporary residence.”
Id. at 13-14 (citing Walker, at 958). Doronin responds that Walker confirms that the law it
contemplates concerning residence extends beyond the limited electoral application Terra Invest
attributes to it. ECF No. [80] at 7. Doronin argues that Terra Invest used an ellipsis in the quoted
portion of Walker to remove the words “and the like” which he says makes clear that under Florida
law, the term residing or an equivalent term such as resides, requires legal residence. Id. He
contends that Terra Invest creates its own law when it proclaims without providing any authority
that Section 1782 requires a lesser standard for “resides in” and characterizes the residency
requirement as de minimis. Id. at 7.
Terra Invest argues further that § 1782 demands that a person be more than a transient or a
sojourner but requires less than domicile. In support, Terra Invest cites Comm'r of IRS v. Estate of
Sanders, 834 F.3d 1269 (11th Cir. 2016), in which the Eleventh Circuit noted that residency
“requires far less than domicile which requires an intent to make a fixed and permanent home.”
Id. at 1279 (internal quotation marks and citation omitted). There, the Eleventh Circuit also found
that “while a person may have only one domicile at a time, cases have recognized the possibility
that one person may have multiple residences simultaneously. Id. Doronin argues that the tax case
involving the Internal Revenue Code has no bearing or relevancy here, as it provides nothing on
the issue of the appropriate residency standard under Florida law or in a § 1782 proceeding. ECF
No. [80] at 7-8.
The Court agrees with Doronin that Judge Otazo-Reyes’s properly relied on an analysis of
state law to determine the appropriate meaning of “resides in.” One Texas court noted that district
courts in New York had looked to the relevant state law residency standards in various contexts to
determine the appropriate definition of “resides in” under § 1782 and did the same with Texas law.
In re: Application of Gazprom Latin Am. Servicios, C.A., 4:14-MC-1186, 2016 WL 3654590, at
*10 (S.D. Tex. July 6, 2016) (citing In re Application of Yukos Hydrocarbons Investments Ltd.,
2009 WL 5216951 at *5 (N.D.N.Y. Dec. 30, 2009); In re Kolomoisky, No. M19-116, 2006 WL
2404332 at *3 and n.3 (S.D.N.Y. Aug. 18, 2006)). In this district, courts have looked to Florida’s
long arm statute to determine whether a respondent could be “found in” the Southern District of
Florida. See In re MTS Bank, 17-21545-MC, 2017 WL 3155362 (S.D. Fla. July 25, 2017)
(analyzing Fla. Stat. §48.193). It was, therefore, appropriate to look to Florida law to determine
what constitutes residency in this district. Nevertheless, the Court continues to consider Terra
Invest’s argument that the Court should consider the totality of the circumstances in light of all of
the facts.
ii. Totality of the Circumstances
Terra Invest argues that the Court must look to the totality of the circumstances to assess
the nature of Doronin’s nexus to the district. ECF No. [71] at 15. In support, Plaintiff cites In re
MTS Bank, and In re Escallon, 323 F. Supp. 3d 552 (S.D.N.Y. 2018). In In re MTS Bank, the court
found that to reside in or be found in a place should be “broadly interpreted based on common
sense understandings of the words.” In re MTS, 2017 WL 3155362 at *4. The court found that
because the person from whom discovery was sought owned real property and two automobiles,
paid real estate taxes, had a Florida telephone number, and conducted financial transactions in
Florida, the statutory requirements were met. Id at *5. In In re Escallon, the court found that the
“resides in” prong of the § 1782 analysis did not require the respondent to be domiciled in the
district but “does require that the home be the person’s established abode at the time of service,
with some degree of permanent occupancy.” 323 F.Supp.3d at 557. Doronin responds that the
cases cited are unpersuasive and outdated. ECF No. [80] at 8. Specifically, Doronin argues that
after In re Escallon, the Second Circuit held that the “resides or is found” requirement extends §
1782’s reach to the limits of personal jurisdiction consistent with due process. Id. (citing In re del
Valle Ruiz, 939 F.3d 520, 523 (2d Cir. 2019)). Doronin contends that the Court must look to the
applicable state law for guidance when determining whether a person resides in a district. ECF No.
[80] at 8.
Finally, Terra Invest points out the evidence it presented at the hearing and in its briefing
to support its position that Doronin resides in this district. ECF No. [71] at 14-15. Doronin responds
that the R&R correctly determined that the news clippings and internet clickbait introduced by
Terra Invest were correctly deemed hearsay materials. ECF No. [80] at 10. He continues that the
generalized, non-specific objections need not be considered by the Court because Terra Invest did
not specifically object to the Magistrate Judge’s finding that the submissions are hearsay. Id.
Courts in the Southern District of Florida regularly look to the respondent’s contacts with
the district to assess whether the respondent “resides in” or is “found in” the Southern District of
Florida. See In re Deposito Centralizado de Compensacion y Liquidacion de Valores Decevale,
S.A., 20-25212-MC, 2021 WL 2323226, at *5 (S.D. Fla. June 1, 2021), appeal dismissed sub nom.
Deposito Centralizado de Compensacion y Liquidacion de Valores Decevale, S.A. v. Ecuador
High Yield Fund, LLC, 21-11889-CC, 2021 WL 4049325 (11th Cir. July 7, 2021) (noting that the
respondent “owns real property in the District, and has apparently registered several motorcycles
in this District, pays real estate taxes to Miami-Dade County, and maintains several phone numbers
with Miami area codes.”); In re MTS Bank, 2017 WL 3155362 at *5 (finding that the respondent
resides or is found in the district where the respondent “(1) owns real property, (2) owns two
automobiles, (3) pays real estate taxes, (4) owns a Florida telephone number, and (5) conducts
financial transactions”).
Judge Otazo-Reyes considered the amount of time Doronin spent in the Southern District
of Florida, including that he spent less than 100 days in the district in 2021, he is not a Florida tax
payer, does not have a Florida driver’s license, has no vehicles registered in Florida, does not have
a bank account in Florida, and does not own real property in Florida. Judge Otazo-Reyes found
that those facts were sufficient to establish that Doronin does not reside in the Southern District of
Florida, especially in light of Doronin’s contention that he had no intention to remain. See ECF
No. [69] at 5. Judge Otazo-Reyes found that those facts, coupled with Terra Invest’s admission at
the hearing that Doronin is domiciled in Switzerland (which under Walker, makes that country his
permanent abode or legal residence), supported the conclusion that “Terra Invest failed to establish
Doronin resides in the Southern District of Florida for purposes of Section 1782.” ECF No. [69]
at 5. In light of the factual findings that Terra Invest was unable to refute with any new evidence,
that conclusion is proper and not refuted by the authority cited by Terra Invest.
Accordingly, the Court adopts Judge Otazo-Reyes’s finding that Doronin does not reside in
the Southern District of Florida. It now turns to the question of whether Doronin is “found in” the
district.
B. “Found In”
Terra Invest argues that the Magistrate Judge erred in finding that Doronin was not found
in this District when she determined that the facts presented were comparable to those in which
the respondent was deemed not to be “found in” a particular district. ECF No. [71] at 17. Terra
Invest further contends that the discovery sought from Doronin proximately resulted from his
contacts with this District. Id. Doronin responds that Terra Invest lodged no objections to the
Magistrate Judge’s legal analysis but instead objected based on conclusory and unsupported
factual arguments. ECF No. [80] at 12. He asserts that Terra Invest has failed to provide specific
information required to evaluate whether the discovery sought is connected to the forum and offers
only speculation without support or specificity. Id.
To determine whether a respondent is “found in” a particular district, the Court should
“look at the respondent’s contacts with the forum” and whether “the discovery material sought
proximately resulted from the respondent’s forum contacts.” In re Deposito Centralizado de
Compensacion y Liquidacion de Valores Decevale, 2021 WL 2323226, at *5 (internal quotation
marks and citation omitted). A § 1782 applicant is required to “provide additional specificity
concerning the discovery it seeks to allow a court to evaluate whether the discovery requested is
connected to the forum.” Id. (internal quotation marks and citation omitted).
Judge Otazo-Reyes summarized the arguments Terra Invest put forth to demonstrate a
connection between the discovery sought and the Southern District of Florida at the hearing and
concluded that the speculative allegations were insufficient. ECF No. [69] at 6-7. At the hearing,
counsel for Terra Invest specifically conceded:
I can’t tell you that he received a specific meeting notice or a specific set of board
materials at his Miami house, but it certainly stands to reason if a guy is spending
between a third or a quarter of his time living in a house in Miami, that he is doing
business while he is in Miami…
…I can’t tell you with specificity that he received this email or he received this
board package or he raised his hand and made this particular vote on a shareholder
issue on a particular date, but I think common sense tells us, Judge, that at least
some of the instances and some of the actions, that go directly to what we are
requesting in our subpoenas, took place in Florida with respect to the actions that
were happening overseas in Russia.
ECF No. [70] at 27:7-24.
In its Objections, Terra Invest simply reiterates the arguments put forth at the
hearing, asserting that Doronin’s role in Capital Group would provide him with relevant
communications about a host of issues related to ongoing proceedings in Russia tied to this
District because this District is where Doronin resides in the United States. ECF No. [71]
at 17-18. Doronin responds that Terra Invest offers only speculation as to how the requested
discovery materials have a connection to this District. ECF No. [80] at 13. He contends
that Terra Invest failed to provide the specific information required to evaluate whether the
requested discovery is connected to the Southern District of Florida.
In In re Inmobiliaria Tova, S.A., the court found that where an applicant provided
no facts in support or information regarding what business activities were conducted in
Florida, the applicant had not met its burden of demonstrating that the corporate
respondent’s contacts with the district were the primary reason the evidence sought was
available at all. In re Inmobiliaria Tova, S.A., 20-24981-MC, 2021 WL 925517, at *5 (S.D.
Fla. Mar. 10, 2021). Similarly, the Court finds that Terra Invest did not meet its burden of
demonstrating that Doronin’s personal contacts with the Southern District of Florida gave
rise to the creation of the discovery sought.
The Court therefore agrees with Doronin, and adopts the finding in the R&R.
Because Doronin neither “resides in” nor is “found in” the Southern District of Florida, the
statutory requirements of § 1782 are not met.
C. “For Use”
Terra Invest argues that the Magistrate Judge erred in ruling that the discovery sought is
not for use in a pending foreign proceeding, which it undoubtedly is. ECF No. [71] at 13. Capital
Group responds that Terra Invest’s subpoenas were correctly quashed as a quintessential fishing
expedition. ECF No. [79] at 5. Capital Group contends that because Terra Invest relies on
speculation and suspicion that Doronin might possess relevant evidence, it is not sufficient to
permit its § 1782 application. Id.
All statutory factors must be met under § 1782 for the Court to exercise its discretion to
grant discovery. In re Clerici, 481 F.3d 1324, 1331. Since the Court has already determined that
Doronin neither “resides in” nor is “found in” the Southern District of Florida, the Court does not
reach the “for use” issue.
D. Intel Factors
Capital Group argues that the Intel Factors should have been considered in the R&R as
they provide an independent basis for granting the Motions to Quash. ECF No. [72]. Terra Invest
argues that the discretionary factors weigh in its favor. ECF No [78] at 5. Specifically, Terra Invest
argues that Doronin and Capital Group are not participants in the foreign proceedings, Russian
courts would be receptive to the discovery sought, it is not circumventing foreign proof gathering
restrictions, and its § 1782 application is not unduly intrusive or burdensome. See generally id.
“The discretionary factors come into play after the statutory requirements have been
satisfied, and they are guideposts which help a district court decide how to best exercise its
discretion.” Dep't of Caldas v. Diageo PLC, 925 F.3d 1218, 1223 (11th Cir. 2019).
Because the Court has determined that the statutory factors have not been met, it does not
have jurisdiction and must vacate its Order granting the Ex Parte Application and quash the
subpoenas. Accordingly, the Court does not find an analysis of the Intel discretionary factors
appropriate. The Court therefore adopts Judge Otazo-Reyes’s conclusion that Capital Group’s
arguments with respect to the Intel factors are superfluous and need not be addressed. See ECF
No. [69] at 8 n.2.
Case No. 21-cv-23332-BLOOM
IV. CONCLUSION
Upon a comprehensive de novo review, the Court finds Magistrate Judge Otazo-Reyes’s
R&R to be well reasoned and correct in its analysis of Doronin’s Motion to Vacate Order Granting
Ex Parte Application and to Quash Subpoenas pursuant to Rule 45.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Terra Invest’s Objections, ECF No. [71], ace OVERRULED.
2. Capital Group’s Objections, ECF No. [72], are OVERRULED as moot.
3. The R&R, ECF No. [69], is ADOPTED in part, consistent with this order.
4. Doronin’s Sealed Motion to Vacate Order Granting Ex Parte Application and to Quash
Subpoenas pursuant to Rule 45, ECF No. [9], is GRANTED.
5. The Court’s Order Granting Ex Parte Application for an Order Under 28 U.S.C. §
1782(a), ECF No. [4], is VACATED.
6. The Subpoenas served pursuant to the Court’s Order, ECF No. [4], are QUASHED.
7. Capital Group’s Motion to Quash and Vacate, ECF No. [50], is DENIED AS MOOT.
8. The Case is DISMISSED for lack of jurisdiction.
9. The Clerk shall CLOSE the case.
DONE AND ORDERED in Chambers at Miami, Florida, on December 30, 2022
BETHBLOOM =——<“—CO
UNITED STATES DISTRICT JUDGE
ce: Counsel of Record
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