Case of the Day: In re Application of Ryanair

The case of the day is In re Request for Subpoena by Ryanair Ltd. (N.D. Cal. 2014). Ryanair had sued Joachim Kleinert in Dublin, alleging that he was liable for publishing a false report about its safety and maintenance record. Kleinert failed to appear, and the Irish court entered a default judgment. Ryanair then applied for leave under § 1782 to serve subpoenas on Google and Twitter; Kleinert apparently had a Gmail account and a Twitter account, so Ryanair believed the two companies might have information about his whereabouts for purposes of enforcing the Irish judgment.

The application was mostly routine, and the judge granted it as a matter of course. But the judge (Magistrate Judge Paul Grewal, who has featured in many cases of the day and who no doubt has one of the best judicial perches in the land for handling § 1782 cases) passed over what to me was potentially the most interesting point in the case. The statute requires that the evidence sought be for use in a foreign proceeding. The judge held that “enforcement of a judgment issued by the Dublin Circuit Court” is “undisputedly” a foreign proceeding. This is potentially problematic. There was some suggestion in the record that Ryanair thought Kleinert lived in Germany, not in Ireland, and there is no discussion about whether it would be necessary to bring a proceeding in Germany to enforce the Irish judgment there. And in any case, since Ryanair didn’t really know where Kleinert was, maybe he was not in Germany at all—maybe he was in the United States, in which case proceedings to enforce the judgment would not be foreign proceedings at all.

Suppose the case were purely domestic: a Massachusetts judgment with a judgment debtor residing in the District of Massachusetts. In that case, there would be no necessity for a “proceeding” to enforce the judgment, it seems to me; you just put the writ of execution in the hands of the marshal. (Of course, the judgment creditor could bring proceedings to enforce the judgment). Or suppose a Massachusetts judgment with a judgment debtor residing in another state. Because federal judgments can be registered in any district without bringing an action on the judgment, it seems to me, again, that there would be no necessity for a “proceeding” to enforce the judgment. You may object that I’m talking about US procedures when it seems likely that Kleinert is in Europe. But the EU, in light of the recast of the Brussels I regulation, is moving towards abolition of the exequatur.

So in short, I wonder whether, in cases where the applicant seeks information about a judgment debtor’s whereabouts for purposes of enforcing a foreign judgment, the issues are as simple as they may seem.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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