Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, 10 C 1884.

• Decision Date: 11 August 2011
• Docket Number: No. 10 C 1884.,10 C 1884.
• Citation: 807 F.Supp.2d 699
• Parties: HOLOCAUST VICTIMS OF BANK THEFT, Plaintiffs, v. MAGYAR NEMZETI BANK, et. al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

807 F.Supp.2d 699

HOLOCAUST VICTIMS OF BANK THEFT, Plaintiffs,

v.MAGYAR NEMZETI BANK, et. al., Defendants.

No. 10 C 1884.

United States District Court,N.D. Illinois,Eastern Division.

Aug. 11, 2011.

Anthony Alfred D'Amato, Northwestern, Jamie Elisabeth Weiss, George K. Lang, Jeffrey A. Leon, Freed & Weiss LLC, Robert James Pavich, John J. Pavich, Monico, Pavich & Spevack, Agnes E Grossman, Law Office of Richard D. Grossman, Chicago, IL, Richard H. Weisberg, Cardoza Law School, New York City, NY, for Plaintiffs.

Anthony L. Paccione, Jonathan J. Faust, Katten Muchin Rosenman LLP, Alan M. Kanzer, Amber C. Wessels, Alston & Bird, LLP–NY, Mark G. Hanchet, Mayer Brown LLP, New York, NY, Brian J. Poronsky, Christian T. Kemnitz, Katten Muchin Rosenman LLP, SharonRenae Albrecht, Steven L. Baron, Mandell Menkes LLC, Justin Adam McCarty, Tyrone C. Fahner, Mayer Brown LLP, Gregory L. Stelzer, James R. Figliulo, Figliulo & Silverman, Chicago, IL, Laina Catherine Wilk Lopez, Thomas G. Corcoran, Berliner, Corcoran & Rowe, LLP, Washington, DC, for Defendants.

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 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 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 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, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (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:

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 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...