Moussy Salem

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:23-cv-23186-KMM

In re Application of

MOUSSY SALEM,

Applicant,

FOR AN ORDER TO TAKE DISCOVERY

PURSUANT TO 28 U.S.C. § 1782 FROM

BENO SALEM

/

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon Applicant Moussy Salem’s

(“Applicant”) Application for Assistance in Aid of a Foreign Proceeding Pursuant to 28

U.S.C. § 1782, (the “Application” or “App.”) (ECF No. 1), and Respondent Beno Salem’s

(“Respondent”) Motion to Dismiss or Stay the Application and for Entitlement to Fees and

Costs, (the “Motion” or “Mot.”) (ECF No. 30). The Court referred this matter to the

Honorable Marty Fulgueira Elfenbein, United States Magistrate Judge, to take all necessary

and proper action as required by law and/or to issue a Report and Recommendation. (ECF

No. 43). On August 28, 2024, Magistrate Judge Elfenbein issued a Report and

Recommendation, (“R&R”) (ECF No. 79), recommending that the Application be

GRANTED and the Motion be DENIED. See R&R at 18, 27. Respondent objected to the

R&R. (“Objs.”) (“ECF No. 80”). Applicant filed a response. (“Resp.”) (ECF No. 81).

The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R.

I. BACKGROUND

This case concerns an Application seeking the Court’s assistance in obtaining

discovery from Respondent in aid of litigation proceedings in the United Kingdom

(the “English Proceedings”). R&R at 2; (ECF No. 4) at 7–8. Applicant and Respondent

are members of the Salem family, who operate a trading business in West Africa

(the “African Businesses”). Id. According to Applicant, starting in 2013, branches of the

Salem family, including Respondent (who is Applicant’s uncle), excluded Applicant from

“activities associated with running the African Businesses.” Id. In the English

Proceedings, Applicant alleges that in 2016, Applicant’s other uncle, Freddy Salem

(“Freddy”), wrongly misappropriated a logistics agreement, a “core asset” for the African

Businesses, out of Applicant’s reach. R&R at 3; (ECF No. 4) at 4–5. According to

Applicant, Respondent likely has “critical documents” and “detailed information”

regarding the operations of the African Businesses, as they relate to the underlying claims

in the English Proceedings. Id.

To obtain the relevant documents, Applicant first filed a § 1782 Application in the

Eastern District of New York because he believed Respondent resided in that district

(the “New York Application”). See (ECF No. 4) at 14. The court granted the Application,

but Respondent filed a motion to quash because he resides in Sunny Isles Beach, Florida.

See id. at 14–15. Based on Respondent’s declaration that he resides in South Florida,

Applicant voluntarily dismissed the New York Application, (ECF No. 4) at 15, and filed

this action. See App.

In the Application, Applicant contends that he both “meets the four statutory

requirements” in § 1782 and “satisfies the four discretionary factors annunciated by the

Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004).”

See App. at 1. Applicant also noted that “service is not required under” § 1782 but that,

because Respondent knew about Applicant’s attempts to obtain discovery from him,

Applicant would “take every effort to serve him with” the Application and “afford” him

“an opportunity to timely respond to” it. See id. at 2.

Respondent filed a response in opposition to the Application, arguing the

Application should be denied because it violates the terms of an April 2016 settlement

agreement between Applicant, Respondent, and Freddy (among others) that contains a

“covenant not to sue” (the “Settlement Agreement”). See (ECF No. 29) at 1–6. Respondent

also argues that the Application “improperly seeks discovery that has already been denied

in the underlying English Proceedings.” See id. at 1–3, 6–9. Respondent further filed the

Motion seeking to dismiss the Application again arguing the Application should be denied

because it breaches the Settlement Agreement. See generally Mot. Respondent

alternatively argues that, “if the Application is not dismissed in its entirety,” the Court

should stay it under Federal Rule of Civil Procedure 41(d) until Applicant pays Respondent

the costs he incurred in connection with the New York Application. See Mot. at 2, 7–13.

Magistrate Judge Elfenbein held a combined hearing on the Application and the

Motion. See (ECF Nos. 74, 78). As set forth in the R&R, Magistrate Judge Elfenbein

recommends that the Court grant the Application, deny the Motion to Dismiss, and deny

Respondent’s alternative request to stay and for fees and costs associated with the prior

New York Application. See generally R&R. Respondent objects to Magistrate Judge

Elfenbein’s findings. (ECF No. 80).

II. LEGAL STANDARD

The Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b)(3). The Court “must determine de novo any part of the magistrate judge’s disposition

that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore

required if a party files “a proper, specific objection” to a factual finding contained in the

report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that

the objection be sufficiently specific and not a general objection to the report” to warrant

de novo review. Id.

Yet when a party has failed to object or has not properly objected to the magistrate

judge’s findings, “the court need only satisfy itself that there is no clear error on the face

of the record in order to accept the recommendation.” See Keaton v. United States, No.

14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v.

Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating

that a district judge “evaluate[s] portions of the R & R not objected to under a clearly

erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d 1313, 1317 (M.D. Fla.

2000))).

III. DISCUSSION

In the R&R, Magistrate Judge Elfenbein first finds that the Motion should be denied

because: (1) the Settlement Agreement containing a covenant not to sue does not divest

the Court of subject matter jurisdiction to decide the Application and the Motion pursuant

to Federal Rule of Civil Procedure 12(b)(1); (2) alternatively, under a Federal Rule of Civil

Procedure 12(b)(6) standard, the Court cannot analyze the Settlement agreement “beyond

the pleadings” on a motion to dismiss; and (3) even if it could, the plain text of the

Settlement Agreement, which defines “Claims” and “Litigation” broadly does not extend

to a § 1782 application, “a purely evidentiary proceeding.” See generally R&R. Next,

with respect to the Application, Magistrate Judge Elfenbein finds that it satisfies all of the

statutory requirements, the Intel discretionary factors, and the policies underlying § 1782.

See R&R at 18–27. Lastly, Magistrate Judge Elfenbein finds that Respondent’s Motion

for Stay and Costs Under Fed. R. Civ. P. 41(d) should be denied because in the Court’s

discretion, the costs are not warranted. See R&R at 28–29.

Respondent objects to the R&R, arguing that: (1) the R&R fails to enforce the

broad terms and definitions in the Settlement Agreement’s covenant not to sue; (2) the

R&R’s procedural justifications for denying the Motion are insufficient; (3) the R&R

erroneously requires Respondent to complete a full review of his documents to establish

undue burden under the fourth Intel factor; and (4) the R&R incorrectly interprets the

English Court’s determination regarding discovery related to the African Business under

the second and third Intel factors. See generally Objs. The Court takes each of Magistrate

Judge Elfenbein’s findings, and Respondent’s corresponding objections, in turn.

A. Respondent’s Motion to Dismiss

The Court first addresses Respondent’s Motion to Dismiss. Respondent maintains

that the case should be dismissed based on a “covenant not to sue” provision in the

Settlement Agreement.1 See generally Mot. In concluding that the Motion should be

1 Respondent filed the Motion under Fed. R. Civ. P. 12(b)(1) for “lack of subject-matter

jurisdiction.” See Fed. R. Civ. P. 12(b)(1); Mot. at 4 (arguing that the Settlement

Agreement’s covenant not to sue divests this Court of subject matter jurisdiction).

Following the Parties’ arguments at a hearing before Magistrate Judge Elfenbein, the R&R

denied, Magistrate Judge Elfenbein assesses (1) whether the Settlement Agreement divests

the Court of subject-matter jurisdiction, (2) whether the Court can even review the

Settlement Agreement on a motion to dismiss, and (3) even if the Court could review the

Settlement Agreement, whether the covenant applies in this instance. See R&R at 12–18.

i. Subject-Matter Jurisdiction

Beginning with the question of whether the Court has subject-matter jurisdiction

over this matter, § 1782 unambiguously confers district courts “authority to grant an

application for judicial assistance.” See 28 U.S.C. § 1782(a). Magistrate Judge Elfenbein

thus concludes that Rule 12(b)(1) provides no basis to dismiss under a covenant not to sue.

See R&R at 6, 12.

Respondent objects, citing to two patent infringement cases from this district,

which provide that “[a]n unconditional promise not to sue by one party onto another divests

a trial court of subject matter jurisdiction.” Patent Licensing and Investment Co., LLC v.

Green Jets Inc., No. 11-80689-CIV, 2012 WL 13019189, at *1 (S.D. Fla. May 9, 2012);

see also PayRange, Inc. v. KioSoft Technologies, No. 20-cv-24342, 2022 WL 823885, at

*7 (S.D. Fla. Mar. 18, 2022). However, as the R&R provides, this “jurisdiction-stripping”

principle does not apply outside of the patent infringement context. R&R at 11.

Specifically, a covenant not to sue strips the court of subject-matter jurisdiction in the

patent infringement context because such claims proceed under the Declaratory Judgment

Act, where subject matter jurisdiction “depends upon the existence of ‘a substantial

controversy, between the parties having adverse legal interests, of sufficient immediacy

alternatively analyzed Respondent’s Motion under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief can be granted. R&R at 13.

and reality to warrant the issuance of a declaratory judgment.’” Dow Jones & Co. v.

Ablaise Ltd., 606 F.3d 1338, 1345 (Fed. Cir. 2010) (quoting MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 127 (2007)).

The same is not true in a § 1782 application context. As Magistrate Judge Elfenbein

asserts, a party’s breach of contract not to sue is no different than the breach of any other

contract provision—subjecting the parties to the same dangers associated with breaching

any other contract provision. In re W.B. Care Ctr., LLC, 419 B.R. 62, 73 (Bankr. S.D. Fla.

2009) (“A covenant not to sue constitutes a promise not to sue a party on a claim, but does

not modify or extinguish the claim itself.”). Respondent has not provided a single case

outside of the patent-invalidity context where a claim was dismissed on jurisdictional

grounds based on a covenant not to sue. Accordingly, Respondent’s objection is overruled.

ii. Failure to State a Claim

The Court next turns to the question of whether the Motion should be denied under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can

be granted. Magistrate Judge Elfenbein recommends that the Motion should be denied on

these grounds for two reasons. See R&R at 13.

First, the R&R provides that Rule 12(b)(6) motions generally “can’t go beyond the

pleadings” and a district court must convert a motion to dismiss into a motion for summary

judgment if it considers materials outside of the complaint, unless the material is “central

to the plaintiff’s claim.” R&R at 13; see, e.g., Day v. Taylor, 400 F.3d 1272, 1275–76

(11th Cir. 2005). Accordingly, Magistrate Judge Elfenbein assesses the question of

whether the Settlement Agreement is “central to the plaintiff’s claim.” R&R at 13. The

R&R notes that the Settlement Agreement resolves earlier litigation between Applicant,

Respondent, Freddy, and other members of the Salem family. Id. The Application, on the

other hand, concerns discovery related to the management and profits from the African

Businesses for claims in the English Proceedings, wholly separate from the litigation at

issue in the Settlement Agreement. Id. at 14. Magistrate Judge Elfenbein concludes that

given the Settlement Agreement is not “central to the plaintiff’s claim,” it would be

improper to review the Settlement Agreement at a motion to dismiss phase. Id. The Court

agrees.

Second, Magistrate Judge Elfenbein finds that even if the Court were to review the

Settlement Agreement, dismissal is still not warranted. R&R at 16. The R&R evaluates

the Settlement Agreement’s “covenant not to sue,” which provides, in relevant part, that

Applicant agreed he would not “bring any Proceedings in England and Wales or in any

other jurisdiction against” Respondent “in relation to any Claims or otherwise assert a

Claim against” Respondent. (ECF No. 44-1) at 12, § 5.1 (emphasis added)). Magistrate

Judge Elfenbein highlights that the definition section of the Settlement Agreement defines

“Proceedings” to mean “any legal, arbitral, administrative, regulatory or other action or

proceedings,” id. at 10, § 1.1, and, it defines “Claims” to mean “any and all claims relating

to any and all Liabilities arising from or related to or in connection with . . . the

relationships between the Parties, but only . . . in so far as those Liabilities relate to the

African Business,” id. at 7, § 1.1 (emphasis added). It further defines “Liabilities” to mean:

any and all liabilities in respect of any existing (as at the date of this Settlement

[Agreement]) matter, fact, action or inaction giving rise to any demand, liability,

obligation, complaint, claim, counterclaim, right of set-off, right to net, indemnity,

right of contribution, cause of action (including, without limitation, in negligence),

administrative or regulatory claim or infraction, petition, right or interest of any

kind or nature whatsoever, whether in law or equity, direct or indirect, joint or

several, foreseen or unforeseen, contingent or actual, accrued or unaccrued,

liquidated or unliquidated, known or unknown, disclosed or undisclosed, suspected

or unsuspected, howsoever arising in whatever capacity and jurisdiction.

Id. at 10, § 1.1 (emphasis added).

Magistrate Judge Elfenbein emphasizes that although the Settlement Agreement’s

definitions of “Claims” and “Liabilities” are broad, an application for discovery under §

1782 is “not a claim in the traditional sense.” R&R at 16. Rather, it is a “purely evidentiary

proceeding and thus unlike most litigation.” United States v. Zubaydah, 595 U.S. 195, 214

(2022). Most notably, the R&R explains that neither the claims in the English Proceedings,

nor the Application, existed as of the date of the Settlement Agreement. R&R at 17–18.

And the action contemplated in the English Proceedings, the unlawful transfer of assets,

allegedly took place on June 7, 2016, two months after the Settlement Agreement took

effect. Id. Magistrate Judge Elfenbein concludes that under its own terms, the Settlement

Agreement does not apply to the Application and cannot be a basis for dismissing it. Id. at

17.

Respondent raises several objections to the R&R’s interpretation of the Settlement

Agreement. See Objs. at 8–10. First, Respondent contends that the R&R’s interpretation

of the Settlement Agreement errs by limiting the type of proceeding to which the covenant

applies. Id. at 8. According to Respondent, because this § 1782 proceeding involved “legal

process against Respondent, seeking issuance of subpoenas to compel Respondent to

produce documents and testify at a deposition,” it thus constitutes a barred “Proceeding”

under the Agreement. Id. at 8–9. The Court disagrees.

Although the covenant not to sue bars “Proceedings” brought “in relation to any

“Claims,” a § 1782 proceeding is distinguishable from the types of Proceedings

contemplated in the Settlement Agreement. R&R at 17 (citing Zubaydah, 595 U.S. at 214).

Notably, of the fifteen types of contemplated relief listed under the definition of

“Liabilities,” “discovery requests” is omitted. Resp. at 13. Indeed, a § 1782 application is

not adverse to any party, as in a typical litigation, nor does Applicant allege any claims

against Respondent (neither here, nor in the English Proceedings). Id. For that reason, §

1782 applications are routinely filed and granted ex parte. See id. (citing Consorcio

Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262,

1266-67 (11th Cir. 2014)). That Applicant voluntarily served Respondent with the

Application, cannot render this proceeding barred by the Settlement Agreement.

Accordingly, this objection is overruled.

Respondent next objects to Magistrate Judge Elfenbein’s interpretation of the

Settlement Agreement finding that the “action or inaction giving rise to” Moussy’s claims

in the English Proceedings did not “exist” or did not “accrue,” when the Agreement was

executed on April 15, 2016, and thus the Settlement Agreement holds no bearing on the

Application. Objs. at 9–11. Respondent contends that the Settlement Agreement’s

definition of “Liabilities” clearly and broadly also applies to unaccrued liabilities. Id. at 9.

Respondent provides that nowhere in the definition of “Liability” is there a requirement

that it be an accrued liability—to the contrary, the language specifically applies to

“unaccrued” rights and thus the fact that the alleged unlawful transfer occurred after the

Settlement Agreement is irrelevant. Id. Respondent further asserts that the Application

seeks discovery requests pre-dating the Settlement Agreement, furthering his conclusion

that the Settlement Agreement applies. Id. at 10.

The Court is unpersuaded by Respondent’s application of the Settlement

Agreement to the context of the English Proceedings. The R&R addresses this objection

by demonstrating that the action, which created an enforceable right—the alleged unlawful

transfer— did not exist until after of the effective date of the Settlement Agreement. R&R

at 18. Put simply, Respondent’s position, barring any claims after the effective date of the

Settlement Agreement, would “immunize him from any claims related to the African

Businesses until the end of time” leaving Applicant with no recourse under any contract

entered into before April 2016. Resp. at 12. Moreover, seeking discovery pre-dating the

existence of the alleged unlawful transfer holds no bearing on the language of the

Settlement Agreement, where such discovery related to historical revenues and operations

is relevant to the underling claims of the English Proceedings. This objection is overruled.

Accordingly, the Court adopts Magistrate Judge Elfenbein’s findings that

Respondent’s grounds for dismissal pursuant to Rule 12(b)(1) and Rule 12(b)(6) are

unwarranted. Thus, Respondent’s Motion to Dismiss is denied.

B. The § 1782 Application

Magistrate Judge Elfenbein next recommends that the Application be granted

because it (1) satisfies the appropriate statutory requirements, and (2) meets the

discretionary Intel factors prescribed by the Supreme Court. R&R at 18–27.

As to the statutory factors, “[a] district court has the authority to grant an application

for judicial assistance if the following statutory requirements in § 1782(a) 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) (footnote omitted)

(quoting § 1782(a)). In the R&R, Magistrate Judge Elfenbein concludes, and Respondent

does not dispute, that each of the statutory factors has been met. The Court agrees.

Once the statutory requirements are satisfied, the second step is to assess the

discretionary factors set forth in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.

241, 247 (2004). “[A] district court is not required to grant a § 1782(a) discovery

application simply because it has the authority to do so.” In re Clerici, 481 F.3d 1324,

1334 (11th Cir. 2007) (internal quotation marks omitted) (quoting Intel, 542 U.S. at 264).

The Eleventh Circuit has described the Intel factors as follows:

(1) whether “the person from whom discovery is sought is a participant in the

foreign proceeding,” because “the need for § 1782(a) aid is generally 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 of the United States”; and (4) whether the request is otherwise

“unduly intrusive or burdensome.”

Id. (quoting Intel, 542 U.S. at 264–65).

The first factor is indisputably satisfied. Respondent is not a participant in the

English Proceedings—only Applicant, Freddy, the relevant companies in the African

Businesses, and two non-Salem directors are participants. See App. at 3–9.

Under the second factor, the R&R provides that 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” all

suggest that the Application should be granted. See Intel, 542 U.S. at 264; In re Clerici,

481 F.3d at 1334. Magistrate Judge Elfenbein notes that the English Court uses an

adversary proceeding like that of the United States, and in the English Proceedings,

discovery is permitted. R&R at 22.

Under the third factor, the R&R provides that the Application does not “conceal[]

an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign

country or the United States.” See Intel, 542 U.S. at 265; In re Clerici, 481 F.3d at 1334.

Under similar reasoning to the second factor, Magistrate Judge Elfenbein provides that

English courts are generally receptive to evidence gathered through § 1782 proceedings.

R&R at 24; see, also In re Novoship (UK) Ltd., No. 20-60876-MC, 2020 WL 3286308, at

*3 (S.D. Fla. June 18, 2020) (“[T]here is no indication that the courts of the United

Kingdom would be unreceptive to American evidence and, in fact, § 1782 is routinely used

to obtain evidence for proceedings in that country.”).

Respondent objects to each of these findings, arguing that there is evidence the

English Court would reject the discovery Applicant seeks because it has already

determined that “discovery concerning the African Business is not relevant to the claims

at issue in the English Proceedings.” Objs. at 13. Respondent cites to an order dated July

19, 2023 concerning discovery requests in the English Proceedings and states that the

“English Court rejected Applicant’s attempt to expand discovery in the English

Proceedings.” Id. at 14. Respondent likens the Court granting this Application to “a

violation of internal comity.” Id. at 14.

However, this is a complete mischaracterization of the English Court’s ruling. As

Magistrate Judge Elfenbein details, the English Court recognized the relevance of certain

discovery to the African Businesses, while cutting certain disclosure requests due to its

“sheer breadth” and “its overlap in scope with other approved disclosure issues.” R&R at

23 (citing In re Salem, 2024 WL 3026670, at *12). This Court joins two other district

courts in rejecting Respondent’s contention that the English Court disavowed the same

discovery request Applicant seeks here. See In re Salem, 2024 WL 3026670, at *12

(S.D.N.Y. June 17, 2024) (“Far from announcing a blanket prohibition on all discovery

related to the African Businesses, the English Court appeared to recognize the relevance of

discovery related to the African Businesses’ trading activity. . . . The suggestion that the

English Court . . . deemed irrelevant all disclosure concerning the African Businesses is,

at best, misguided.”); In re Salem, 2024 WL 3249355, at *2 (D. Conn. July 1, 2024)

(holding the English Court “did not rule that all discovery into the African Businesses is

irrelevant”).

Furthermore, notwithstanding the English Court’s ruling on previous discovery

requests, the law is clear that “nothing in the text of § 1782 limits a district court’s

production-order authority to materials that could be discovered in the foreign jurisdiction

if the materials were located there.” Intel, 542 U.S., at260; see also In re Clerici, 481 F.3d

1324, 1333 n.12 (11th Cir. 2007) (Ҥ 1782 does not impose a foreign-discoverability

requirement.”). Accordingly, Respondent’s objection at to the second and third Intel

factors is overruled.

Lastly, Magistrate Judge Elfenbein finds that Applicant’s request is not unduly

intrusive or burdensome. See Intel, 542 U.S. at 265; In re Clerici, 481 F.3d at 1334. The

R&R provides that Respondent “has not adequately and specifically explained how the

requested discovery would be unduly intrusive or burdensome.” R&R at 25. The R&R

states that “without any substantive information from Respondent about the number of

potentially responsive documents, the number of hours it would take to produce the

documents, the expense associated with the production, or any other tangible information

beyond boilerplate objections, the Court’s ability to analyze the fourth Intel factor is limited

to the requests themselves.” Id.

Respondent objects, arguing that Magistrate Judge Elfenbein “applied an

unreasonable standard” that would require him to “complete a full review of his documents

to establish undue burden.” Objs. at 12–13. Respondent contends that the Court’s

reasoning would require any party opposing discovery in a §1782 proceeding on burden

grounds to do a full-scale review of all documents, relevant or irrelevant, responsive or

non-responsive, and undertake the entire cost and effort, in order for a court to evaluate

whether requests are “unduly intrusive and burdensome.” Id. at 12. However, in arguing

that it would be unduly burdensome to assess whether the request itself is unduly

burdensome, Respondent fails to provide any tangible information that would allow the

Court to adequately evaluate the fourth factor. As Magistrate Judge Elfenbein details, the

materials sought, which relate to documents and testimony about the “value, profits, and

transfer of the logistics agreement” are relevant to Applicant’s claims in the English

Proceedings. R&R at 26. Nor does Respondent demonstrate that such requests are not

proportional to Applicant’s needs.

Accordingly, Respondent’s objections regarding the Intel factors are overruled, and

the Court finds that such factors weigh in favor of granting the § 1782 Application.

C. Motion for Stay and Costs Under Fed. R. Civ. P. 41(d)

Finally, the R&R addresses Respondent’s requested alternative relief, that if the

Application is not dismissed, that Applicant be directed under Federal Rule of Civil

Procedure 41(d) to pay the costs Respondent incurred in connection with the New York

Application, and that the Court stay the Application until such costs are paid. Mot. at 2.

Rule 41(d) authorizes the Court to award costs (and impose a stay) against a party who

previously dismissed an action and then files another action “including the same claim

against the same” opposing party, but whether to award Rule 41(d) costs is left to the

Court’s discretion. See Marino v. Broward Sheriff’s Off., No. 20-CV-60980, 2021 WL

9563808, at *1 (S.D. Fla. Jan. 29, 2021). Here, Magistrate Judge Elfenbein concludes that

such costs are not warranted because (1) Applicant had a reasonable belief that Respondent

resided in the Eastern District of New York and there is no indication Applicant acted in

bad faith, (2) Applicant immediately halted its New York Application when he discovered

Respondent resided in Florida, and (3) Respondent’s only pertinent expense with respect

to the New York Application is one motion to quash the subpoena. See R&R at 27–28.

Respondent does not object to this finding, and the Court finds no clear error. Accordingly,

the Motion for Stay and Costs Under Fed. R. Civ. P. 41(d) is denied.

IV. CONCLUSION

Accordingly, UPON CONSIDERATION of the Application, the Motion, the R&R,

the pertinent portions of the record, and being otherwise fully advised in the premises, it is

hereby ORDERED AND ADJUDGED that the Report and Recommendation (ECF No.

79) is ADOPTED. Respondent’s Motion to Dismiss or Stay Application

for Judicial Assistance (ECF No. 30) is DENIED. The Application for Assistance in Aid

of a Foreign Proceeding Pursuant to 28 U.S.C. § 1782 (ECF No. 1) is GRANTED. The

Court reserves jurisdiction to enter further orders that are necessary and proper to enforce

this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of

September, 2024.

K.WeWleore

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE