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Euromepa v. R. Esmerian

United States Court of Appeals for the Second Circuit

December 10, 1997, Argued ; August 10, 1998, Decided

Docket No. 97-7333

Opinion

 [*25]  PARKER, Circuit Judge:

Petitioners-Appellants Euromepa, S.A.("Euromepa") and Allied Insurance and Reinsurance Company ("Allied", and together with Euromepa "Petitioners") appeal from an endorsement order, entered February 27, 1997, in the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing [**2]  as moot their petition pursuant to 28 U.S.C. § 1782 for discovery in aid of foreign proceedings of Respondent-Appellee R. Esmerian & Co. ("Emersian"). For the following reasons, we affirm the judgment of the district court.

I. BACKGROUND

Euromepa, a French corporation, is an insurance broker under common control with Allied, a Cyprus corporation, which is an insurer and reinsurer. Emersian, a New York corporation, is a diamond and jewelry dealer. The underlying dispute in this case involves the disappearance of approximately $ 20 million in jewelry owned by Emersian and insured by Allied through Euromepa.

Affiliates of Emersian sued Euromepa and Allied in the Commercial Court of the First Instance in Nanterre, France (the "French Trial Court") regarding the loss and insurance of this jewelry (the "French Action"). These affiliates alleged fraudulent conduct by Euromepa and Allied in misrepresenting certain facts regarding the trustworthiness of a courier to be used to transport the jewelry, and counseling Emersian's affiliates to not take insurance for breach of trust by the courier. Emersian itself subsequently intervened in this action to assert its rights,  [**3]  eventually taking an assignment of its affiliates' rights in the action, and thus leaving Emersian as the sole plaintiff.

The French Trial Court found in favor of Emersian, and issued a judgment of approximately  [*26]  $ 10 million in favor of Emersian and against the Petitioners. The French Trial Court held that Emersian and the Petitioners were equally at fault for the loss, and that the loss should therefore be split evenly between them. Following this ruling, and after perfecting their appeal therefrom, Petitioners filed a § 1782 petition (the "Petition"), by order to show cause, in the Southern District of New York, seeking discovery of Emersian regarding, among other things, proof of ownership of the jewelry, prior insurance of the jewelry, agreements between Emersian and its affiliates, and substantiation of the jewelry lost. Petitioners sought this discovery for use in the appeal of the French Trial Court's judgment. 2 The district court denied the Petition in a Memorandum and Order, dated May 10, 1994.  In re Euromepa, S.A., 155 F.R.D. 80 (S.D.N.Y. 1994). In doing so, the district court focused largely on the French system of discovery, and concluded [**4]  that granting the Petition might constitute an affront to the French system. Id. at 82-84. Petitioners timely appealed to this Court.

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154 F.3d 24 *; 1998 U.S. App. LEXIS 18327 **

IN THE MATTER OF THE APPLICATION OF: EUROMEPA, S.A., f/k/a P.N.C. S.A., successor in interest of Mepa France, S.A.; ALLIED INSURANCE & REINSURANCE COMPANY, Petitioners-Appellants, v. R. ESMERIAN, INC., Respondent-Appellee.

Prior History:  [**1]  Appeal of an order entered February 27, 1997, in the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing with prejudice as moot a petition for discovery in aid of foreign proceedings pursuant to 28 U.S.C. § 1782.

Disposition: Affirmed.

CORE TERMS

district court, discovery, moot, bankruptcy proceedings, statutory requirements, motion to dismiss, tribunal, jewelry, proceedings, adjudicative process, dismiss a petition, motion to reopen, affiliates, predicate

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, International Law, Dispute Resolution, Evidence, Assistance Obtaining Evidence, Discovery, Methods of Discovery, Foreign Discovery, Discovery & Disclosure, General Overview, Service of Process, International Trade Law, Judgments, Preclusion of Judgments, Res Judicata