Case of the Day: Topsnik v. United States

Internal Revenue Service sign
Don’t mess with the IRS. Credit: Joshua Doubek

The case of the day is Topsnik v. United States (Fed. Cl. 2016). Gerd Topsnik was “a German resident who formerly had business interests in the United States.” He brought claims for damages, asserting that the government had wrongfully levied taxes on him. (In fact, his claims should have been brought as claims for a refund of taxes, for jurisdictional reasons that the judge explained but that I won’t go into here). The root of the claim was that the statute of limitations barred the government from collecting the taxes.

The government sought to take Topsnik’s deposition in the United States. He, however, asserted that he would only be deposed at the US consulate in Frankfurt. The government offered Prague as an alternative, but Topsnik refused. Nor would Topsnik agree to appear via videolink. Ultimately, the court ordered him to make himself available for a deposition a week before trial at the place where the trial was to be held, namely Los Angeles. The Topsnik refused, saying, for the first time, that to compel him to appear in the United States would violate the Hague Evidence Convention.

The judge had had enough. He dismissed the action for failure to prosecute. Because the Hague Evidence Convention is not exclusive, and in light of the ordinary presumption that a plaintiff must come to the forum for discovery, the judge was absolutely correct to say that the Evidence Convention did not support Topsnik’s argument.

The case reminds me a bit of the Biolitec case, which I’ve written about before. In both cases, defendants in Germany took a very aggressive view about the power of US courts over litigants in Germany. I’m not sure the two litigants are representative of a broader issue, but they are good examples of how not to respond when a court orders you to do something.

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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