Absolute Activist v. Devine: Limits on Post-Dismissal Jurisdiction and “Found” Standard under 28 U.S.C. § 1782

1. Introduction

This consolidated opinion of the Eleventh Circuit addresses four related appeals arising out of litigation between several offshore hedge funds (collectively, “the Funds”)—including Absolute Activist Value Master Fund Limited—and their former CEO’s ex-wife, Susan Elaine Devine. In the Funds’ original RICO and fraud suit, Devine obtained confidential documents under a court-entered protective order. After the Funds voluntarily dismissed that action, a series of motions and cross-forum requests followed, including:

A district-court order vacating Devine’s effort to modify the protective order;
An order directing the clerk to return the Funds’ confidential documents to their counsel;
A foreign request from a Liechtenstein Princely Court for those same documents;
A bilateral transfer of a § 1782 petition between the Southern District of New York and the Middle District of Florida;
A lost hard drive containing the confidential files;
Ongoing appeals regarding jurisdiction, document return/destroy directives, protective-order enforcement, and whether Devine may use the Federal Act for Mutual Assistance in Criminal Matters, 28 U.S.C. § 1782.

At issue are three primary legal themes:

The limits of a federal district court’s jurisdiction after a one-sided voluntary dismissal;
The scope of a protective order vis-à-vis subsequent foreign or criminal requests;
The meaning of “resides or is found” in § 1782(a) and the district court’s discretion to grant or deny international discovery requests.

2. Summary of the Judgment

The Eleventh Circuit panel reached four conclusions:

Appeal No. 21-13587: Dismissed as moot because the documents at issue were lost; no meaningful relief could be granted.
Appeal No. 22-11313: Lacked subject-matter jurisdiction to review the district court’s denial of Devine’s post-dismissal motion to enforce the protective order (affirming that after a Rule 41(a)(1)(A)(i) dismissal, protective-order enforcement lies outside the limited exceptions for post-dismissal jurisdiction).
Appeal No. 22-11590: Dismissed for lack of appellate jurisdiction (order denying a stay pending appeal was neither final nor appealable).
Appeal No. 22-13207: Affirmed the denial of Devine’s § 1782 petition and of her motion to transfer that petition from Florida back to New York—holding that (a) Spears & Imes LLP was “found” in Florida because it was subject to personal jurisdiction there, and (b) the district court did not abuse its discretion in denying the request under the Intel/Clerici factors.

3. Analysis

3.1 Precedents Cited

Devine I (998 F.3d 1258): Held that a one-sided voluntary dismissal under Rule 41(a)(1)(A)(i) strips the district court of jurisdiction over all but five collateral matters (costs, fees, contempt, Rule 11 sanctions, confirmation of arbitration awards).
Kokkonen v. Guardian Life Ins. (511 U.S. 375): Limited ancillary jurisdiction for enforcing settlement stipulations unless jurisdiction is expressly retained.
Nyaga v. Ashcroft (323 F.3d 906): Mootness requires dismissal where no “meaningful relief” can be granted.
Intel Corp. v. AMD (542 U.S. 241): Articulated the statutory requirements and discretionary Intel factors for § 1782 petitions.
In re Clerici (481 F.3d 1324): Applied Intel’s discretionary factors in the Eleventh Circuit.
United Kingdom v. United States (238 F.3d 1312): Established the abuse-of-discretion standard for § 1782 denials.
In re del Valle Ruiz (939 F.3d 520, 2d Cir. 2019): Held that “resides or is found” for § 1782 extends to the limits of personal jurisdiction consistent with due process.
Robinson v. Giarmarco & Bill (74 F.3d 253): In this Circuit, out-of-state attorneys who provided substantive legal services to a Florida client were “found” in Florida for personal-jurisdiction purposes.

3.2 Legal Reasoning

The Court’s reasoning unfolds in two main strands:

3.2.1 Post-Dismissal Jurisdiction Limits

After the Funds voluntarily dismissed their RICO action under Rule 41(a)(1)(A)(i), the district court had no authority to:

Decide motions to enforce or modify the protective order;
Issue substantive rulings on confidential-document return before the 60-day post-appeal window.

Those matters fall outside the limited “collateral issues” preserved by Devine I (costs, fees, contempt, Rule 11 sanctions, arbitral confirmation). Absent an explicit retention of jurisdiction—as in a Rule 41(a)(2) dismissal coupled with a settlement—the court was powerless to grant Devine relief on her motions regarding protective-order enforcement.

3.2.2 Section 1782 Jurisdiction and Discretion

The funds’ New York counsel, Spears & Imes, was “found” in Florida because:

They voluntarily produced extensive discovery in the Florida RICO action;
They submitted to personal jurisdiction there by appearing, defending, and assuming strategic litigation burdens;
This contacts-based test mirrors personal jurisdiction due-process principles (International Shoe, Robinson) and the Second Circuit’s § 1782 analysis in del Valle Ruiz.

Accordingly, the Middle District of Florida properly held jurisdiction over Devine’s § 1782 petition. The district court then exercised its broad discretion under Intel:

It found no new foreign “letter rogatory” had been formally lodged with it (despite the Liechtenstein court’s request, which the district court treated as insufficiently formal);
It concluded the prior protective order barred another unilateral disclosure;
It viewed Devine’s petition as an end-run around its earlier adverse rulings;
It weighed the Intel factors—foreign-court receptivity, avoidance of foreign proof-gathering rules, burden on parties—and declined to grant relief.

3.3 Impact

This ruling establishes several key principles:

After a one-sided Rule 41(a)(1) voluntary dismissal, federal courts lack jurisdiction to enforce or modify protective orders unless a retained-jurisdiction clause or Rule 41(a)(2) settlement order exists.
In determining whether a § 1782 respondent “resides or is found” in a district, courts should apply personal-jurisdiction due-process standards—contacts, purposeful availment, and reasoned foreseeability.
Protective orders do not automatically override subsequent § 1782 petitions; courts remain free to weigh Intel’s discretionary factors.
Strategic cross-forum filings under § 1782 must consider both personal jurisdiction over the targeted person and the district court’s discretion.

4. Complex Concepts Simplified

Rule 41(a)(1) Dismissal: A plaintiff’s right to dismiss before a defendant serves an answer—automatically divests the court of most jurisdiction over the case’s merits.
Ancillary Jurisdiction: Limited power to enforce court orders (e.g., contempt), not to relitigate dismissed claims or enforce protective orders absent express retention.
Protective Order: A court-approved agreement limiting disclosure of sensitive discovery—but not absolute in face of separate statutory discovery mechanisms.
Section 1782 “Found” Test: Borrowing from personal-jurisdiction law, a person is “found” in a district when they have sufficient contacts such that exercising power over them comports with due process.
Intel Factors: Four guideposts (participation in foreign proceeding, foreign court receptivity, avoidance of foreign restrictions, burden/intrusiveness) that a district court uses to exercise – not mandate – § 1782 relief.

5. Conclusion

Absolute Activist Value Master Fund Ltd. v. Devine underscores two fundamental doctrines:

Federal courts lose nearly all authority over a case’s discovery or protective-order disputes once a plaintiff voluntarily dismisses under Rule 41(a)(1), absent a retaining provision or Rule 41(a)(2) order.
Under 28 U.S.C. § 1782, “found” extends to any person subject to personal jurisdiction in the district, and courts retain broad discretion—guided by Intel—to grant or deny cross-border discovery requests even in the face of protective orders.

Going forward, litigants should be mindful that early voluntary dismissal carries the price of court-enforced confidentiality, and that § 1782 petitions must align with personal-jurisdiction norms and the discretionary Intel factors if they hope to secure foreign-use discovery in the Eleventh Circuit.