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In re Ex Parte Application of Carlton Masters

United States District Court, District of Columbia

May 25, 2018

IN RE EX PARTE APPLICATION OF CARLTON MASTERS FOR AN PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         On January 18, 2018, Carlton Masters (the “applicant”) filed Carlton Masters' Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in a Foreign Proceeding (“Application” or “Masters' App.”), which requests that the Court “grant[] him leave to serve” two subpoenas, one on Bank of America, N.A. (“Bank of America”) and one on Citibank, N.A. (“Citibank”), for the production of records that he represents are “necessary for the purpose of aiding a foreign proceeding pending before the High Court of Lagos State, Nigeria” (the “Nigerian proceeding”). Masters' App. at 1-2. Upon consideration of the filings submitted to the Court regarding the Application, [1] the Court concludes that it must deny the Application.

         I. BACKGROUND

         The applicant is the founder and owner of GoodWorks International, LLC (“GoodWorks”), which is “an international consulting firm focused on Africa, ” Masters' Mem. at 1, that “wholly own[s]” a subsidiary in Nigeria called GWI Ventures, Nigeria, Ltd. (“GWI”), id. at 2. In 2004, GoodWorks maintained a bank account at Bank of America in Atlanta, Georgia(the “Bank of America account”), see id. at 1, and GWI maintained a bank account at Citibank Nigeria in Lagos, Nigeria (the “Citibank Nigeria account”), see id. at 2. The applicant asserts that

[i]n about 2004, [he] decided that GWI should purchase a vacant piece of real estate in Lagos, Nigeria . . . and build a[n] . . . apartment building there[.] At that time, [Ugo] Okafor, a U[.]S[.] and Nigerian attorney, was in charge of the GWI office. Okafor was instructed by [the applicant] to make the purchase on behalf of GWI. To effect that purchase, [the applicant] wired $700, 000 from the GoodWorks [Bank of America] account in Atlanta to the Citi[bank] account in Lagos belonging to GWI.
The land was purchased and the apartments were constructed and rented, but instead of titling the property in the name of GWI as he was instructed, Okafor titled [it] in the name of [a business] of which Okafor was and is still the majority owner. Now, Okafor claims that he rightfully owns the apartments.

Id. Based on these events, the applicant initiated the Nigerian proceeding against Okafor and several other parties. See id. at 5; see also id., Attachment (“Att.”) A (Declaration of Elizabeth Sandza (Jan. 18, 2018) (“Sandza Decl.”)), Exhibit (“Ex.”) 7 (Statement of Compliance with Pre-Action Protocol).

         On January 18, 2018, the applicant filed his ex parte Application, see Masters' App. at 1, which seeks bank records that he asserts “are directly relevant to prove the rightful beneficial owner” of the land in Lagos, Nigeria (the “Lagos property”), Masters' Mem. at 3. From Bank of America, he seeks “[c]opies of all monthly statements in 2004 for the [Bank of America] account” and “[c]opies of any and all records showing and evidencing all wire transfers during 2004 from [the] Bank of America [a]ccount . . . to [the] Citibank Nigeria [account]” (the “Bank of America request”). Id. at 9. From Citibank, he seeks “[c]opies of all monthly statements in 2004 for the [Citibank Nigeria] account” and “[c]opies of any and all records showing and evidencing all wire transfers during 2004 from [the] Bank of America [a]ccount . . . to [the] Citibank Nigeria [account]” (the “Citibank request”). Id. at 9-10.

         On January 23, 2018, the Court ordered the applicant to show cause in writing “why the Court must consider his application on an ex parte basis, ” Min. Order (Jan. 23, 2018), to which the applicant timely responded, see generally Show Cause Resp. On February 7, 2018, Okafor filed an opposition to the Application, see generally Okafor's Opp'n, to which the applicant responded, see generally Masters' Reply.[2]

         II. DISCUSSION

         As an initial matter, the Court finds it appropriate to consider the Application ex parte, i.e., without the participation of Bank of America and Citibank. The Court agrees with the applicant that district courts are generally authorized to review a § 1782 application on an ex parte basis, see Show Cause Resp. ¶ 3 (collecting cases); see also, e.g., Gushlak v. Gushlak, 486 Fed.Appx. 215, 217 (2d Cir. 2012) (“[I]t is neither uncommon nor improper for district courts to grant applications made pursuant to § 1782 ex parte.”), and that as a general matter, ex parte review is “justified by the fact that the parties [from whom discovery is sought] will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery or to participate in it, ” In re Letter of Request from Supreme Ct. of Hong Kong, 138 F.R.D. 27, 32 n.6 (S.D.N.Y. 1991) (citing In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976)). Although the applicant has failed to provide the Court with any specific reason why ex parte review is appropriate in this particular case, the Court finds that ex parte review is nonetheless appropriate because the Application does not appear to present complex issues that require the participation of Bank of America or Citibank to resolve. Cf. Order at 2, In re Application of Hulley Enters. Ltd., Misc. Action No. 17-1466 (BAH) (D.D.C. June 23, 2017), ECF No. 5 (denying a request for ex parte consideration of a § 1782 application in part because it was “particularly appropriate” to require the participation of a third party subpoena target “given that . . . privileged material may be at issue”).

         Having resolved the ex parte review issue, the Court next turns to the merits of the Application. Under 28 U.S.C. § 1782, “[t]he district court of the district in which a person resides or is found may order him to . . . produce a document or other thing for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a) (2016). “The [court's] order may be made . . . upon the application of any interested person and may direct that . . . the document or other thing be produced[.]” Id. Three conditions must exist to satisfy § 1782(a):

(1) the person from whom discovery is sought must reside in or be found within the district; (2) the discovery must be for use in a proceeding before a foreign or international tribunal; and (3) the application must be made by a foreign or international tribunal or any interested person.

In re Application of Leret, 51 F.Supp.3d 66, 70 (D.D.C. 2014). However, even if the statutory requirements are satisfied, “a district court is not required to grant a § 1782(a) discovery application simply because it has authority to do so” under the statute. Intel ...


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