HOGLAN et al v. ISLAMIC REPUBLIC OF IRAN et al

Filing 217

MEMORANDUM DECISION AND ORDER for (3374 in 1:03-md-01570-GBD-SN) Report and Recommendations: In her Report, Magistrate Judge Netburn advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Id. at 15); see also 28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b). Plaintiffs filed timely objections to the Report (Pl. Obj. to Report ("Pl. Obj."), ECF Nos. 3416, 3417) and Defendants did not respond. Having reviewed Magistrate Judge Netburn's Report and Recommendation, this Court overrules Plaintiffs' objection and adopts the Report in full. (Signed by Judge George B. Daniels on 6/20/2017) Filed In Associated Cases: 1:03-md-01570-GBD-SN, 1:11-cv-07550-GBD-SN(jwh)

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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INRE:
TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
MEMORANDUM DECISION
AND ORDER
03-MDL-1570 (GBD) (SN)

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GEORGE B. DANIELS, United States District Judge:
Plaintiffs in Hoglan v. Islamic Republic of Iran, l l-cv-7550 (GBD) (SN), one of
numerous related actions filed on behalf of the estates and family members of the victims of the
attacks of September 11, 2001, sought entry of default judgment awarding them compensatory
and punitive damages against the Islamic Republic of Iran, Ayatollah Ali Hoseini Khamenei,
Hezbollah, and other Iranian individuals and entities. This Order resolves the remaining group
of claims presented in the Hoglan damages inquest.
This group of claims concerns the economic and pain and suffering damages claims made
by the Estates of Hagay Shefi and Nicholas Rowe, as well as nine solatium damages claims
made by non-citizen immediate family members derived from Shefi and Rowe's deaths on
September 11, 2001 (collectively referred to as "Plaintiffs"). Shefi, a citizeri of Israel, and Rowe,
a citizen of South Africa, were both U.S. lawful permanent residents at the time of the attacks,
but were not U.S. citizens by birth or naturalization.

On January 6, 2017, the case was referred to Magistrate Judge Sarah Netbum (ECF No.
3418.)

Before this Court is Magistrate Judge Netbum's Report and Recommendation (the

'"Report," ECF No. 3374), recommending that this Court deny Plaintiffs' damages claims. 1
In her Report, Magistrate Judge Netburn advised the parties that failure to file timely
objections to the Report would constitute a waiver of those objections on appeal. (Id. at 15); see

also 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). Plaintiffs filed timely objections to the Report
(Pl. Obj. to Report ("Pl. Obj."), ECF Nos. 3416, 3417) and Defendants did not respond. This
Court

overrules

Plaintiffs'

objections

and

fully

adopts

Magistrate

Judge

Netburn's

recommendation. Plaintiff<;' damages claims are DENIED.
I. LEGAL ST AND ARD

A district court may accept, reject or modify, in whole or in part, the findings and
recommendations set forth within the Report.

See 28 U.S.C. § 636(b)(l)(C).

When no

objections to the Report are made, the Court may adopt the Report if "there is no clear error on
the face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y.
2005) (citation omitted).
When there are objections to the Report, this Court must make a de nova determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). It is sufficient that this Court "arrive at its own,
independent conclusions" regarding those portions to which objections were made. Nelson v.

Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation omitted); see United States
v. Raddatz, 447 U.S. 667, 675-76 (1980). However, where a litigant's objections are conclusory,

1

The relevant procedural and factual background is set forth in detail in the Report and is incorporated

herein.

2

repetitious, or perfunctory, the standard of review is clear error. McDonaugh v. Astrue, 672 F.
Supp. 2d 542 7 547-48 (S.D.N.Y. 2009).

II. PLAINTIFFS FAIL TO CLAIM RELIEF UNDER FSIA
The Report properly held that Plaintiffs failed to bring a "pass-through" claim under New
York's wrongful death and survival statutes, qualify as U.S. nationals under 8 U.S.C. §
l 10l(a)(22), claim recovery under § 1605A(c)'s private cause of action, or assert their claim
through the noncommercial tort exception to the FSIA, 28 U.S.C. §1605(a)(5). There was no
clear error in Magistrate Judge Netburn's findings. Plaintiffs objected only to the portion of the
Report concluding that Plaintiffs failed to qualify as U.S. nationals by demonstrating their
allegiance under 8 U.S.C. § 1101(a)(22) for purposes of the FSIA. (Pl. Obj. at 1-2.) This court
reviews that portion of the Report de nova. See 28 U.S.C. § 636(b )(1 )(C); see also Rivera, 423
F. Supp. 2d at 273.
Magistrate Judge Netburn found that "Plaintiffs' argument is plainly foreclosed by
precedent from the Court of Appeals for the Second Circuit, with which its sister circuits are in
near-unanimous

agreement."

(Report at

10.) Accordingly,

Magistrate

Judge

Netburn

recommended that Plaintiffs "may not avail themselves of the FSIA terrorism exception's
jurisdictional provisions in 28 U.S.C. § 1605A(a) or its private cause of action in 28 U.S.C. §
1605A(c)." (Id. at 12.) The Second Circuit law is clear: one cannot "qualify as a U.S. national
under 8 U.S.C. § l 101(a)(22)(B) by a manifestation of 'permanent allegiance' to the United
States." Marquez-Almanzar v. I.NS., 418 F.3d 210, 218-19 (2d Cir. 2005) (holding that the
provision in question could not possibly confer U.S. national status, no matter how strong the
petitioner's equities).

3

Precedent outside of the Second Circuit also supports this interpretation. For example, in

Mohammadi v. Islamic Republic of Iran, the court reached the same conclusion, noting that the
reference to persons owing '"permanent allegiance' to the United States" is "descriptive of
someone who has attained the status of United States nationality through other statutory
provisions; it does not itself set forth an independent basis by which to obtain that status." 782
F.3d 9, 14-15 (D.C. Cir. 2015).

Because Plaintiffs cannot claim U.S. nationality by

demonstrating their permanent allegiance to the United States independent of an additional
statutory provision, Plaintiffs were not U.S. nationals at the time of the terrorist attacks of
September 11, 2001, and therefore may not avail themselves of the FSIA terrorism exception.
Accordingly, Plaintiffs' damages claims are properly denied.

III. CONCLUSION
Having reviewed Magistrate Judge Netburn's Report and Recommendation, this Court
overrules PJaintiffs' objectim1

~gc,i,_a,_ggpts

the,.Report in full.

Dated: New York, New York
June_, 20jtJ

N2 0 2017
SO ORDERED.

8. J);;rwffe
United States District Judge

4