Filed: Apr. 30, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2150 Nascimento v. Delta Bank and Trust Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
Summary: 14-2150 Nascimento v. Delta Bank and Trust Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ..
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14‐2150
Nascimento v. Delta Bank and Trust Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 30th day of April, two thousand fifteen.
PRESENT: RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
____________________________________________
CARLOS ROBERTO ORTIZ NASCIMENTO,
Plaintiff‐Appellant,
‐v.‐ No. 14‐2150
LUCIA FARIA,
Intervenor‐Appellee,
DELTA BANK AND TRUST COMPANY,
Defendant.
____________________________________________
____________________________________________
FOR APPELLANT: V. DAVID RIVKIN, Carlton Fields Jorden Burt P.A.,
New York, NY.
FOR APPELLEE: CHAYA F. WEINBERG‐BRODT (Hollis Gonerka
Bart, on the brief), Withers Bergman LLP, New York,
NY.
____________________________________________
Appeal from the United States District Court for the Southern District of
New York (Berman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby
is AFFIRMED.
Plaintiff‐Appellant Carlos Roberto Ortiz Nascimento (“Nascimento”)
appeals from an order of the United States District Court for the Southern
District of New York, granting Intervenor‐Appellee Lucia Faria’s (“Faria”)
motion to quash a subpoena served on Defendant Delta Bank and Trust
Company (“Delta Bank”) pursuant to a prior discovery order under 28 U.S.C.
§ 1782.
The District Court held that although it was authorized to uphold the
discovery order because Section 1782’s statutory requirements were satisfied, it
would in its discretion grant Faria’s motion to quash the Delta Bank subpoena.
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The District Court found that Nascimento’s Section 1782 application — filed (i)
after related Brazilian family court proceedings were litigated to judgment and
pending on appeal, and (ii) over thirteen years after Nascimento was first made
aware that a subpoena was needed — was “inexcusably untimely” and not an
“efficient means of assistance” to the Brazilian proceedings.
A district court “is not required to grant a [Section] 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 (2004). Rather, once statutory requirements
are met, “a district court is free to grant discovery in its discretion.” Brandi‐
Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012) (internal
quotation marks omitted). The court has abused that discretion if its decision is
based on “an erroneous view of the law or on a clearly erroneous assessment of
the evidence, or [it has] rendered a decision that cannot be located within the
range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(internal quotation marks and citations omitted).
Specifically, this Court has recognized that “[d]istrict courts must exercise
their discretion under [Section] 1782 in light of the twin aims of the statute:
‘providing efficient means of assistance to participants in international litigation
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in our federal courts and encouraging foreign countries by example to provide
similar means of assistance to our courts.’” Brandi‐Dohrn, 673 F.3d at 81 (quoting
In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997)). Here, the District Court’s
order quashing the Delta Bank subpoena — because Nascimento’s discovery
efforts were “inexcusably untimely” and would not provide an “efficient means
of assistance” to the foreign proceedings — was not an abuse of the court’s
discretion.
We have considered all of Nascimento’s remaining arguments and find
them to be without merit. Accordingly, for the reasons set forth above, the order
of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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