Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank et. al.
Filing
252
MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 8/11/2011: Mailed notice (mw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HOLOCAUST VICTIMS
OF BANK THEFT,
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Plaintiffs,
v.
MAGYAR NEMZETI BANK, et. al.,
Defendants.
No. 10 C 1884
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant MKB Bayerische
Landesbank’s (MKB) motion for reconsideration, motion in the alternative for
clarification, and motion in the alternative for certification. This matter is also before
the court on Defendant Erste Group Bank’s (Erste) motion for reconsideration and
motion in the alternative for certification. For the reasons stated below, MKB’s
motion for reconsideration is denied, MKB’s alternative motion for clarification is
stricken and in the alternative is denied, and MKB’s alternative motion for
certification is denied. Erste’s motion for reconsideration and alternative motion for
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certification are denied.
BACKGROUND
On May 18, 2011, this court denied motions to dismiss filed by MKB and
Erste. MKB and Erste request that the court reconsider that ruling. MKB requests in
the alternative that the court clarify its ruling. MKB and Erste request in the
alternative certification for an interlocutory appeal.
LEGAL STANDARD
A motion for reconsideration may be brought “to correct manifest errors of
law or fact or to present newly discovered evidence.” Caisse Nationale de Credit
Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7th Cir. 1996)(internal quotations
omitted).
DISCUSSION
I. MKB’s Motion for Reconsideration
MKB contends that the court made a manifest error in concluding that there is
a basis for personal jurisdiction over MKB in this case. MKB argues that this court
erred in basing its decision concerning personal jurisdiction on Federal Rule of Civil
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Procedure 4(k)(1) (Rule 4(k)(1)) as opposed to Federal Rule of Civil Procedure
4(k)(2) (Rule 4(k)(2)), which Plaintiffs argued was the basis for personal jurisdiction
over MKB. The court, in agreeing with Plaintiffs’ given basis for personal
jurisdiction, clearly relied upon Rule 4(k)(2). Nowhere in the court’s prior ruling did
the court state that its ruling concerning personal jurisdiction was based on Rule
4(k)(1). MKB’s belief that the court relied upon Rule 4(k)(1) is an unsupported
speculation.
MKB also argues that the court “apparently” did not conduct the proper
inquiry in regard to the personal jurisdiction issue. (MKB Recon. 4). MKB
contends in the instant motion that the court evaluated whether MKB had sufficient
contacts with Illinois and did not inquire as to whether MKB’s contacts with the
United States as a whole are sufficiently continuous and systematic to properly
exercise personal jurisdiction over MKB pursuant to the federal long arm statute.
(MKB Recon. 4). The court, in agreeing with Plaintiffs’ given basis for personal
jurisdiction, stated that Plaintiffs have shown that MKB has “extensive continuous
and systematic general business contacts that would subject [it] to personal
jurisdiction.” (5/18/11 MO 8). In making such a statement, the court was clearly
referring to MKB’s contacts with the United States as a whole. See, e.g., ISI Intern.,
Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551 (7th Cir. 2001)(explaining
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that Rule 4(k)(2) provides personal jurisdiction over “persons who do not reside in
the United States, and have ample contacts with the nation as a whole, but whose
contacts are so scattered among states that none of them would have jurisdiction”).
MKB’s belief that the court focused only on MKB’s contacts with Illinois is an
unsupported speculation.
MKB also states that “the Court appears to have overlooked” its argument
regarding MKB’s contacts in New York. (MKB Recon. 9). However, the fact that
the court did not agree with MKB’s argument does not mean that the court
overlooked the argument. The court considered the entire record in making its
rulings, including all of MKB’s filings and arguments.
MKB also theorizes that the court must have found that MKB was subject to
specific personal jurisdiction because the court in its opinion had cited certain cases
that reference specific personal jurisdiction. Nowhere in the court’s prior ruling did
the court indicate that it was conducting a specific personal jurisdiction analysis.
The case law cited by the court addressed both general and specific personal
jurisdiction and merely provided the framework of the general principles of law
regarding personal jurisdiction. The court also notes that although MKB questions
the court’s choice of cases cited in its ruling, the court in fact quoted International
Shoe Co. v. Washington, 326 U.S. 310 (1945) and Helicopteros Nacionales de
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Colombia, S.A. v. Hall, 466 U.S. 408 (1984) in its personal jurisdiction analysis, and
MKB cites those same cases in support of its personal jurisdiction arguments in its
motion for reconsideration. (5/18/11 MO 7-8); (MKB Recon. 6); (MKB Reply 6).
MKB also states that the court’s decision denying MKB’s motion to dismiss
“does not even mention, and appears to overlook entirely, the Statement of Interest
filed by the United States Government.” (MKB Recon. 6). Again, this assertion is
an unsupported speculation. The mere fact that the phrase “Statement of Interest” is
not specifically mentioned in the court’s ruling does not show that the court failed to
consider the Statement of Interest. The court’s ruling addressed the issue of foreign
policy considerations, including Executive Agreements or Treaties. However, based
on the record, which is discussed in more detail below, the court indicated in its
ruling that “it is premature to address at this juncture whether the Executive
Agreements and Treaties cited by Defendants may limit certain Plaintiffs’ claims,
since their applicability raises factual issues not properly adjudicated at the motion to
dismiss stage of the proceedings. At the summary judgment stage of the
proceedings, if warranted, Defendants may re-raise the issue relating to the
applicability of existing Executive Agreements or Treaties to Plaintiffs’ claims.”
(5/18/11 MO 11). The Government’s Statement of Interest (Statement of Interest)
provides, in part, the following:
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The United States submits this Statement of Interest pursuant to 28 U.S.C. §
5171 in order to express the United States’ foreign policy interests implicated
by claims brought in this case against Erste Group Bank AG (“Erste Group”)
and MKB Bank. While the United States takes no position on the merits of the
underlying legal claims or arguments advanced by plaintiffs or by defendants,
because of the United States’ strong support for cooperative compensation
arrangements involving Holocaust claims against German and Austrian
companies – arrangements that have provided billions of dollars to Holocaust
victims – the United States recommends dismissal of claims against Erste
Group and MKB Bank on any valid legal ground(s).
The record reflects that after the filing of the Statement of Interest, the Government’s
attorney appeared in court and participated in a brief dialogue relating to the
Statement of Interest. (4/7/11 Trans. 4-10). After a discussion, unresolved factual
issues as to the Statement of Interest still remained, such as whether the existing
Executive Agreements or Treaties would be applicable to all Defendants and whether
the Plaintiffs would be eligible for the funds under the existing Executive
Agreements or Treaties. Based on the above, and based on the existing record, it is
premature to resolve the foreign policy question at the present stage of the
proceedings.
In addition to unresolved questions as to the Statement of Interest, the court
notes that the Statement of Interest by the Government is a qualified interest. The
Statement of Interest indicates that while the Government takes no position on the
merits of Plaintiffs’ underlying legal claims or arguments advanced by Plaintiffs or
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Defendants, nonetheless the Government would recommend dismissal of the claims
against MKB and Erste on any “valid legal ground(s).” The United States indicates
that it has made this recommendation because of the United States’ strong support
for cooperative compensation arrangements to Holocaust victims involving claims
against German and Austrian companies, and that such arrangements have provided
billions of dollars to Holocaust victims. The Government has not joined in any of
Defendants’ arguments as to whether there are “valid legal grounds” for the
dismissal of the claims against MKB and Erste. In addition, Plaintiffs’ attorney
indicated that Plaintiffs did not believe that Plaintiffs’ claims against Defendant
companies would be covered by the funds for Holocaust victims referenced in the
Statement of Interest. At the hearing, the court asked the Government’s counsel as to
whether the Plaintiffs could presently file claims under the Austrian general fund
referenced in the Statement of Interest, and the Government’s counsel indicated that
she did not know. Therefore, questions still remained as to the applicability of the
Statement of Interest to the parties in this case. In addition, as to the question of
Plaintiffs’ eligibility to the funds referenced in the Government’s Statement of
Interest, Plaintiffs indicated that their initial review after the filing of the
Government’s Statement of Interest reflected that Plaintiffs would not be eligible. In
regard to eligibility and also as to potential resolution, the Government’s counsel
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agreed to inquire and put Plaintiffs’ counsel in touch with the appropriate officials.
(4/27/11 Trans. 8). Since the Government’s recommendation to dismiss the action in
its Statement of Interest was based upon the fact that there was compensation already
in place for Holocaust victims, and inasmuch as there was still an open question that
was going to be explored further as to whether the Plaintiff victims would be eligible
for such funds, the motions to dismiss based on the Statement of Interest were not
ripe. In addition to the above bases, the Statement of Interest indicated that the
Government would recommend dismissal if there are “valid legal grounds” for
dismissal. It is worthwhile to note that this court, in its decision of May 18, 2011,
disagreed with the majority ruling in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111 (2d Cir. 2010), which was cited by Defendants on the issue of liability of
corporations under the Alien Tort Statute. This court found that MKB and Erste, as
corporations, can be held liable for genocide under the Alien Tort Statute, and,
therefore, this court concluded that it had subject matter jurisdiction in this matter.
See Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, 2011 WL 1900340, at
*2 (N.D. Ill. 2011). This court notes that, on July 11, 2011, the Seventh Circuit in
Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011) disagreed
with the majority opinion in Kiobel and held that corporations can be held liable
under the Alien Tort Statute. Therefore, at least in that regard, there were no “valid
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legal grounds” for the dismissal of the claims against MKB and Erste, and the
Government’s recommendation for dismissal in its Statement of Interest, which is
premised on the precondition that there are “valid legal grounds” for dismissal,
would not be applicable as far as the Alien Tort Statute is concerned. Thus, contrary
to MKB’s assertions, this court carefully considered the entire record, including the
Statement of Interest.
The court also notes that MKB, in its reply, cites two recent Supreme Court
decisions that address personal jurisdiction issues. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011); J. McIntyre Machinery, Ltd. v.
Nicastro, 131 S.Ct. 2780 (2011). The court has reviewed both decisions, and as
argued by Plaintiffs in their sur-reply, those two decisions are not on point as far as
personal jurisdiction is concerned in this case. Thus, MKB has not shown that the
court erred in regard to the personal jurisdiction issue. Plaintiffs clearly pointed to
sufficient evidence at this stage of the proceedings to meet their burden of showing
that MKB is subject to personal jurisdiction based on its extensive contacts with the
United States. This court also notes that MKB has made certain references to certain
discovery issues. However, the parties have yet to propose a discovery plan,
including limited discovery relating to certain issues or claims. Therefore, based on
all of the above, MKB’s motion for reconsideration is denied.
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II. MKB’s Motion for Clarification
MKB argues that the court should clarify its prior ruling if the court decides
not to reconsider its prior ruling on the personal jurisdiction issue. The court’s prior
ruling was clear and, as indicated above, the purported confusion by MKB appears to
be based on dissatisfaction with the court’s ruling, and MKB’s motion for
clarification is based on an unsupported speculation. MKB also attempts to elicit
various details from the court concerning the decision-making process behind the
court’s prior ruling. In this case, MKB filed a motion to dismiss and the court ruled
based on the record. MKB is not entitled to a supplemental ruling. The motion for
clarification is therefore stricken as improper. Even if the motion for clarification
was not stricken, the motion would be denied since MKB has not pointed to any
portion of the court’s ruling that is not adequately discussed.
III. MKB’s Motion for Certification
MKB also moves in the alternative for the court to certify an interlocutory
appeal on the personal jurisdiction issue pursuant to 28 U.S.C. § 1292(b) (Section
1292(b)). Section 1292(b) provides the following:
(b) When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
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controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state
in writing in such order. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion, permit an appeal
to be taken from such order, if application is made to it within ten days after
the entry of the order: Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b); see also Ahrenholz v. Board of Trustees of University of
Illinois, 219 F.3d 674, 675 (7th Cir. 2000)(stating that “[t]here are four statutory
criteria for the grant of a section 1292(b) petition to guide the district court: there
must be a question of law, it must be controlling, it must be contestable, and its
resolution must promise to speed up the litigation”)(emphasis in original). As to the
personal jurisdiction issue that MKB seeks to certify for an interlocutory appeal, this
court is not of the opinion, and MKB has not shown, that there is substantial ground
for difference of opinion on the personal jurisdiction issue, nor that an immediate
appeal from the order would materially advance the ultimate termination of the
litigation. The court also notes that interlocutory appeals are generally disfavored.
See, e.g., Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (7th Cir.
1999)(indicating that “a principal reason why interlocutory appeals are so disfavored
in the federal system” is “because that procedure interrupts the progress of a case and
prolongs its disposition”). The court is not of the opinion that this matter is suitable
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for an interlocutory appeal. Therefore, MKB’s motion for certification of an
interlocutory appeal on the personal jurisdiction issue is denied.
IV. Erste’s Motion for Reconsideration
Erste contends that the court committed manifest error in regard to Erste’s
political question defense. Erste first argues that the court did not specifically
reference the Statement of Interest and thus “disregarded . . . the foreign policy
concerns of the Executive Branch of the United States.” (Erste Recon. 2). As
explained above, the court carefully considered the Statement of Interest, and after a
dialogue with the Government’s counsel and the parties relating to that Statement of
Interest, the court made its ruling. Erste’s speculation that the court failed to
properly consider the Statement of Interest has no merit.
Erste also argues that other federal courts, when presented with statements of
interest from the United States, have deferred to the foreign policy interests of the
United States. This court gave careful consideration to the Statement of Interest,
which relates to Executive Agreements, Treaties, and foreign policy considerations.
As the court indicated above when discussing MKB’s motion for reconsideration on
this issue, since the Government’s recommendation to dismiss the action in its
Statement of Interest was based upon the fact that there was compensation already in
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place for Holocaust victims, and inasmuch as there was still an open question that
was going to be explored further as to whether the Plaintiff victims would be eligible
for such funds, the motions to dismiss based on the Statement of Interest were not
ripe. Erste also argues that a political question defense can typically be resolved at
the motion to dismiss stage. However, based on the facts of this case at this juncture,
there remain questions as to whether the Government’s Statement of Interest is
applicable and as to whether Plaintiffs are eligible for the funds referenced in the
Statement of Interest. Erste is not entitled to obtain a ruling based on an incomplete
record without giving Plaintiffs a fair opportunity to conduct the discovery that is
necessary to respond to a dispositive motion on the political question defense.
Erste also argues that federal courts in general give deference to the Executive
Branch in Holocaust-related actions, particularly where executive agreements are
involved. Erste argues that it is an “Austrian company” as defined in the United
States-Austrian Executive Agreements. Erste contends that the United States
Executive Branch and the Austrian Ambassador to the United States have submitted
statements agreeing that the United States-Austrian Executive Agreements cover
Erste. As the court indicated earlier, the court asked the Government’s counsel at the
hearing whether the Plaintiffs could presently file claims as to the Austrian general
fund referenced in the Statement of Interest, and the Government’s counsel indicated
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that she did not know the answer, but the Government counsel indicated her
willingness to put Plaintiffs in touch with the appropriate officials both in that regard
and with respect to potential resolution. Therefore, questions still remained as to the
applicability of the Statement of Interest to the parties in this case. Thus, it is
premature to resolve the issue of deference to executive agreements based on the
facts of this case at this stage of the proceedings. This court also notes that, as
discussed above in regard to MKB’s motion to reconsider, the parties have yet to
propose a discovery plan, including limited discovery relating to certain issues or
claims. Therefore, based on all of the above, Erste’s motion for reconsideration is
denied.
V. Erste’s Motion for Certification
Erste moves in the alternative for the court to certify an interlocutory appeal
on the issue of the justiciability of the claims against Erste and the timeliness of the
action under the applicable statute of limitations pursuant to 28 U.S.C. § 1292(b)
(Section 1292(b)). Section 1292(b) provides the following:
(b) When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state
in writing in such order. The Court of Appeals which would have jurisdiction
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of an appeal of such action may thereupon, in its discretion, permit an appeal
to be taken from such order, if application is made to it within ten days after
the entry of the order: Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b); see also Ahrenholz, 219 F.3d at 675 (stating that “[t]here are
four statutory criteria for the grant of a section 1292(b) petition to guide the district
court: there must be a question of law, it must be controlling, it must be contestable,
and its resolution must promise to speed up the litigation”)(emphasis in original). As
to the issues that Erste seeks to certify for an interlocutory appeal, this court is not of
the opinion, and Erste has not shown, that there is substantial ground for difference
of opinion on the issues that Erste seeks to certify, nor that an immediate appeal from
the order would materially advance the ultimate termination of the litigation. As
indicated above, the court also notes that interlocutory appeals are generally
disfavored. See, e.g., Blair, 181 F.3d at 835 (indicating that “a principal reason why
interlocutory appeals are so disfavored in the federal system” is “because that
procedure interrupts the progress of a case and prolongs its disposition”). The court
is not of the opinion that this matter is suitable for an interlocutory appeal.
In addition to Erste’s above motion for certification, Erste also indicates that it
joins in the motions for certification filed by co-Defendants Magyar Nemzeti Bank
(MNB) and OTP Bank (OTP). On June 17, 2001, the motions for certification
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brought by MNB and OTP were denied, and to the extent that Erste joins in their
motions, Erste’s motion for certification is also denied for the same reasons.
Therefore, based on all of the above, Erste’s motion for certification of an
interlocutory appeal is denied.
CONCLUSION
Based on the foregoing analysis, MKB’s motion for reconsideration is denied,
MKB’s alternative motion for clarification is stricken and in the alternative is denied,
and MKB’s alternative motion for certification is denied. Erste’s motion for
reconsideration and alternative motion for certification are denied.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: August 11, 2011
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