09-0318-cv
Freund v. SNCF
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. C ITATION TO A SUMMARY ORDER
FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF
A PPELLATE P ROCEDURE 32.1 AND THIS COURT’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE F EDERAL
A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of September, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 Circuit Judge,
10 GEORGE B. DANIELS,
11 District Judge. *
12
13 - - - - - - - - - - - - - - - - - - - -x
14
15 MATHILDE FREUND, LEO BRETHOLZ, FREDDIE
16 KNOLLER, KURT SCHAECHTER, RAYMOND BONI,
17 PIERRE CHANOVER, ABRAHAM DRESDNER,
18 MARGOT FEIGENBAUM, SOLOMON HECHT,
19 GINETTE KALISH, BEATRICE KARP, MAURICE
20 KORNBERG, RUDOLPH LOEBEL, REGINA LOEBEL,
21 RAYMOND MAGER, BERTHE BANIA PALUMBO,
*
District Judge George B. Daniels, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
1 SUSAN PHILLIP, INGEBORG PRICE,
2 MARGUERITE ELIAS QUDDUS, SUZANNE RINGEL,
3 SUZANNE RAPPOPORT RIPTON, VERA
4 REICHMAN, COLETTE RORLS-THOMASSIN,
5 MAURICE SALCFAS, LILIANE SCHIMKOVITZ,
6 JACOB HECHT, on behalf of themselves and
7 all others similarly situated,
8
9 Plaintiffs-Appellants,
10
11 - v.- No. 09-0318-cv
12
13 SOCIÉTÉ NATIONALE DES CHEMINS DE FER
14 FRANÇAIS,
15
16 Defendant-Appellee,
17
18 REPUBLIC OF FRANCE and CAISSE DES
19 DÉPÔTS ET CONSIGNATIONS,
20
21 Defendants.
22
23 - - - - - - - - - - - - - - - - - - - -x
24
25 FOR APPELLANTS: Isaac Lidsky, Akin Gump Strauss
26 Hauer & Feld, London, United Kingdom
27 (Harriet Tamen, Law Offices of
28 Harriet Tamen, New York, NY; Stephen
29 T. Rodd, Abbey Spanier Rodd &
30 Abrams, LLP, New York, NY; Professor
31 Lucille A. Roussin, New York, NY;
32 Professor Malvina Halberstam,
33 Benjamin N. Cardozo School of Law,
34 New York, NY; William H. Davidson,
35 New York, NY, on the brief).
36
37 FOR APPELLEE: Professor Andreas S. Lowenfeld
38 (Professor Linda J. Silberman, on
39 the brief), New York University
40 School of Law, New York, NY.
41
42 FOR AMICUS CURIAE: Professor Jordan J. Paust,
43 University of Houston Law Center,
44 Houston, TX, for Amicus Curiae The
45 Human Rights Committee of the
2
1 American Branch of the International
2 Law Association.
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Plaintiffs, a putative class of Holocaust survivors and
9 the heirs and beneficiaries of Holocaust survivors and
10 victims, appeal from the judgment of the United States
11 District Court for the Southern District of New York
12 (Sullivan, J.), which dismissed their claims relating to the
13 spoliation of personal property during forced railroad
14 deportations to holding camps in France and Nazi
15 concentration camps. Plaintiffs brought suit against the
16 Republic of France; the French national depository, Caisse
17 des Dépôts et Consignations (“CDC”); and the French national
18 railway, Société Nationale des Chemins de Fer Français
19 (“SNCF”). The district court granted the motions filed by
20 each of the three defendants seeking dismissal, inter alia,
21 for lack of subject matter jurisdiction under the Foreign
22 Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602
23 et seq. Plaintiffs appeal only as to the dismissal of their
24 claims against SNCF. We assume the parties’ familiarity
25 with the underlying facts, the procedural history, and the
26 issues presented for review.
27
28 “The standard of review applicable to district court
29 decisions regarding subject matter jurisdiction under the
30 FSIA is clear error for factual findings and de novo for
31 legal conclusions.” Robinson v. Gov’t of Malay., 269 F.3d
32 133, 138 (2d Cir. 2001). Under the FSIA, “[o]nce the
33 defendant presents a prima facie case that it is a foreign
34 sovereign, the plaintiff has the burden of going forward
35 with evidence showing that, under exceptions to the FSIA,
36 immunity should not be granted, although the ultimate burden
37 of persuasion remains with the alleged foreign sovereign.”
38 Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016
39 (2d Cir. 1993).
40
41 It is not necessary in this case to track the shift of
42 burdens or to assess the sufficiency of evidence because (i)
43 SNCF’s motion to dismiss asserts foreign sovereign immunity;
44 (ii) the only exception at issue is the takings exception,
45 28 U.S.C. § 1605(a)(3); and (iii) the complaint itself
46 alleges a sequence of events that runs counter to any
47 inference that the stolen “property or any property
3
1 exchanged for such property is owned or operated by” SNCF--
2 as required by the takings exception in the context of this
3 litigation, id.; see also Garb v. Republic of Pol., 440 F.3d
4 579, 581 (2d Cir. 2006).
5
6 In the complaint, the term “Defendants” encompasses
7 France, the CDC, and SNCF. See Compl. ¶ 1. There is no
8 specific allegation that SNCF itself currently possesses the
9 stolen property or any derivative property. The complaint
10 alleges that SNCF seized the property without alleging that
11 SNCF (as opposed to France or the CDC or even Germany)
12 retained the property, or any derivative property:
13
14 • “SNCF took the suitcases and other valuables,
15 telling the victims that the Property would be
16 returned to them. It was not.” Compl. ¶ 18.
17
18 • “During the War, Defendants, by their own conduct
19 individually took, and in concert with each other,
20 aided and abetted and conspired to take, the
21 Property of Plaintiffs, in violation of
22 international law, both customary and treaty, by
23 taking Property on a discriminatory basis, for no
24 public purpose and without just compensation.”
25 Compl. ¶ 68.
26
27 • “The Defendants have failed to return Property to
28 their rightful owners and have intentionally and
29 wrongfully concealed from the Plaintiffs
30 information about the Property and the value and
31 profits derived theref[rom].” Compl. ¶ 77.
32
33 See also Compl. ¶¶ 27, 30-31, 33-36, 38-39, 41-43, 45-46,
34 48-50.
35
36 The only allegation that references retention of the
37 stolen property (or proceeds) is pleaded in the collective,
38 merging the roles of the original defendants in the taking
39 and retention of the property:
40
41 Defendants have willfully and wrongfully taken,
42 retained and converted the Property and its
43 derivative profits into their own property, and
44 Defendants’ exercise of the rights of ownership
45 and control over the Property were and are
46 inconsistent with Plaintiffs’ rights, were and are
4
1 without authorization, and such acts constitute a
2 conversion.
3
4 Compl. ¶ 73. Such collective pleading generally is
5 unremarkable; but here the complaint itself runs counter to
6 the possibility that the stolen property (or any derivative
7 property) remains lodged with SNCF:
8
9 The CDC was the depository for most of the funds
10 spoliated from the Jews and other detainees in the
11 holding camps. The CDC was also the recipient of
12 funds, both during and after the War, arising from
13 the sales and auctions of Jewish Property.
14
15 Compl. ¶ 20 (emphasis added); see also id. ¶ 22.
16
17 Plaintiffs’ briefing argues that among various
18 contingencies--loss, destruction, sale, or retention of the
19 stolen property--“the most plausible explanation is that
20 SNCF still has the Property.” But this argument contradicts
21 the thrust of Plaintiffs’ complaint and ignores the roles
22 alleged to have been played by France and the CDC.
23
24 In reviewing the denial of jurisdictional discovery, we
25 consider only whether remand is warranted for jurisdictional
26 discovery as against SNCF. (No appeal is taken from the
27 dismissal of the claims against France and the CDC.) Since,
28 as we conclude above, the claims against SNCF are defeated
29 on the pleadings, we decline to order jurisdictional
30 discovery.
31
32 Plaintiffs forfeited their request for leave to
33 replead. Plaintiffs did not make that request until their
34 appellate reply brief. “We generally do not consider issues
35 raised in a reply brief for the first time because if an
36 appellant raises a new argument in a reply brief an appellee
37 may not have an adequate opportunity to respond to it.” In
38 re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006) (internal
39 quotation marks and citations omitted).
40
41 For the foregoing reasons, we AFFIRM the judgment of
42 the district court on the ground that SNCF’s foreign
43 sovereign immunity deprived the federal courts of subject
44 matter jurisdiction over this action. We need not, and do
45 not, reach the international comity considerations on which
46 the district court alternatively relied, or any of the other
5
1 issues presented on appeal or raised in the district court
2 proceedings.
3
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8 ___________________
6