Rubin v. Islamic Republic of Iran, 03 C 9370.

• Decision Date: 15 December 2005
• Docket Number: No. 03 C 9370.,03 C 9370.
• Parties: Jenny RUBIN, et al., Plaintiffs, v. THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants, v. The University of Chicago, et al., Citation Third Party Respondents.
• Court: U.S. District Court — Northern District of Illinois

408 F.Supp.2d 549

Jenny RUBIN, et al., Plaintiffs, v. THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants, v. The University of Chicago, et al., Citation Third Party Respondents.

No. 03 C 9370.

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

December 15, 2005.

David J. Strachman, Robert S. Parker, McIntyre, Tate, Lynch & Holt, Providence, RI, Robert D. Cheifetz, Daniel A. Shmikler, Sperling & Slater, P.C., Chicago, IL, for Plaintiffs.

Thomas A. Doyle, Matthew G. Allison, Baker & McKenzie, L.L.P., Chicago, IL, Lawrence W. Newman, Jacob M. Kaplan, Baker & McKenzie, L.L.P., New York, NY, R. Clay Bennett, Thomas J. Cunningham, Lord, Bissell & Brook, L.L.P., Chicago, IL, for Citation Third Party Respondents.

MEMORANDUM OPINION AND ORDER

ASHMAN, United States Magistrate Judge.

Pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, Plaintiffs, Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersch, Renay Frym, Noam Rozenman, Elena Rozenman, and Tvi Rozenman, move this Court for partial summary judgment establishing as a matter of law that no party other than The Islamic Republic of Iran (a/k/a Iran, The Republic of Iran, Republic of Iran, The Government of Iran, Iranian Government, and Imperial Government of Iran), may assert Iran's foreign sovereign immunity defenses under Sections 1609 and 1610 of the Foreign Sovereign Immunity Act, 28 U.S.C. § 1602 et seq. ("FSIA"). Citation respondents, The University of Chicago, Gil Stein, and the Field Museum of Natural History, oppose Plaintiffs' motion. This ruling is needed now so as to define the limits of discovery in this citation proceeding. This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1.

I. Background

On July 31, 2001, Plaintiffs brought a personal injury suit against Iran, The Iranian Ministry of Information and Security, Ayatolla Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani (collectively "Defendants") in the courts of the United States. Campuzano, et al. v. Islamic Republic of Iran, et al., 281 F.Supp.2d 258, 260-61 (D.D.C. 2003). Jurisdiction over these claims was based on the FSIA. Id. at 260, 270-71. On September 10, 2003, the United States District Court for the District of Columbia entered judgments on behalf of Plaintiffs against Defendants. Id. at 279.

Attempting to enforce their judgment against Defendant Iran, Plaintiffs seek execution or attachment of various collections of Persian artifacts currently in the possession of Citation Respondents.¹ Persian artifacts in Citation Respondents' possession include, but are not limited to, collections of ancient Persian seal impressions and cuneiform writings found on clay tablets and tablet fragments known as the Persepolis Fortification Texts and the Chogha Mish collection. The Persepolis Fortification Texts and the Chogha Mish collection were loaned to Citation Respondents, in the 1930s and 1960s respectively, to study for philological and archeological purposes with the understanding that the collections would be returned to Iran when Citation Respondents' studies were complete.

Citation Respondents have argued all along that Plaintiffs cannot attach the Persian collections, nor demand discovery based on the collections, until they demonstrate that a commercial activity exception to Section 1609 of the FSIA applies. Initially, Plaintiffs appeared to agree with Citation Respondents and demanded in-depth discovery from Citation Respondents in an effort to determine whether the collections in Citation Respondents' possession were being used for commercial activities. Citation Respondents resisted and, on November 30, 2004, this Court rejected Plaintiffs' discovery demands. In short, this Court held that, under Section 1610(a) of the FSIA, Plaintiffs were not entitled to additional discovery from Citation Respondent University of Chicago because the existence of a commercial activity exception to Section 1609 depends upon the actions of the foreign state, Iran, and not the actions of Citation Respondents. Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111-13 (N.D.Ill.2004). Significantly, Iran has not been shown to have engaged in commercial activity as to the items in question. On March 18, 2005, Judge Manning overruled Plaintiffs' objections to this Court's ruling. Refusing to be deterred, on August 19, 2005, Plaintiffs shifted their focus from Section 1610(a)'s commercial activity exception to Section 1609's immunity from attachment provision and moved this Court to find that Citation Respondents lack standing to raise Iran's Section 1609 immunity arguments. (Pls.' Mot. Part. Summ. J. at 4.) Iran has been given notice of these proceedings but has not appeared.

II. Discussion

A. Plaintiffs' Motion For Partial Summary Judgment is Appropriate and Not Time Barred.

Plaintiffs move for partial summary judgment establishing that as a matter of law no party other than Iran may raise Iran's Section 1609 immunity defenses. Citation Respondents argue that Plaintiffs' motion for partial summary judgment is procedurally improper and that Plaintiffs waited too long to raise the issue of standing. Specifically, Citation Respondents argue that (1) the courts of the Northern District of Illinois do not issue partial summary judgments, especially where no claims have been filed against the nonmovant, and (2) Plaintiffs waived their standing arguments by not raising them sooner. (Field Br. at 14; Univ. Chicago Br. at 12-13.)

Partial summary judgment, per Rule 56(d), provides for the situation when judgment is not rendered upon the entire case, but only a potion thereof. Fed. R.Civ.P. 56(d). A motion for partial summary judgment that partitions a single claim for relief into constituent parts and then seeks partial summary judgment on some but not all of the constituent parts is not permitted. Capitol Records, Inc. v. Progress Record Distr., Inc., 106 F.R.D. 25, 28 (N.D.Ill.1985). Where a party seeks judgment on a complete affirmative defense, however, courts in the Northern District of Illinois routinely entertain motions for partial summary judgment. Wildey v. Springs, No. 92 C 8146, 1993 WL 350195, at *1 (N.D.Ill. Sept.7, 1993). See also Fidelity Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat'l Title Ins. Co., No. 00 C 5658, 2002 WL 1466806, at *12 (N.D.Ill. July 8, 2002); LCI Intern. Telecom Corp., Inc. v. Am. Teletronics Long Distance, Inc., 978 F.Supp. 799, 802 (N.D.Ill.1997). Courts in this district have explained Rule 56(d) as follows:

Although ... commonly referred to as a "partial summary judgment," it is really no more than a pretrial adjudication, interlocutory in character, specifying certain issues to be "deemed established" for trial. 6 J. Moore & J. Wicker, Moore's Federal Practice ¶ 56.20 (2ed.1948). Its purpose is to "salvage some results from the judicial effort involved in the denial of a motion for summary judgment," and to "frame and narrow the triable issues if the court finds that such an order would be helpful to the progress of the litigation." Wildey, 1993 WL 350195 at *1 (quoting Lovejoy Elecs., Inc. v. O'Berto, 616 F.Supp. 1464, 1473 (N.D.Ill.1985)). Because Plaintiffs' motion addresses a complete affirmative defense raised by Citation Respondents as a matter of law and does not attempt to partition a single claim for relief into constituent parts, and because resolution of Plaintiffs' motion promotes judicial economy, the Court will rule on the merits of the motion.

Plaintiffs did not waive their right to challenge Citation Respondents' standing to raise Section 1609 and 1610 immunity arguments. As an initial matter, standing is jurisdictional and not subject to waiver. Lewis v. Casey, 518 U.S. 343, 349 n. 1, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir.2000). Next, Plaintiffs did not wait too long to raise their standing challenge, as the parties are still in the early stages of litigation. Compare Robinson v. Gov't of Malaysia, 269 F.3d 133, 146 (2d Cir.2001) (refusing to entertain arguments raised for first time on appeal). To date, the parties have litigated a few discovery matters and this Court issued a ruling interpreting Section 1610(a) as it appeared to relate to the scope of discovery in this case, but that is all. Furthermore, when Judge Manning overruled Plaintiffs' objections to this Court's ruling interpreting Section 1610(a), she explicitly stated that this Court's decision on a discovery issue would not necessarily be the law of this case when it came time to rule on a merits argument. Rubin v. Islamic Republic of Iran, No. 03 C 9370, 2005 WL 783057, at *1 (N.D.Ill. Mar.18, 2005). Plaintiffs' motion for partial summary judgment now before the Court is just such a merits argument. Finally, Plaintiffs' motion is certainly not estopped as it pertains to Citation Respondent Field Museum, as the Field Museum received their notice of citation to discover assets in March 2005 and have only recently appeared in this case. In short, due to both jurisdictional concerns and the manner in which litigation in this case has proceeded, addressing the standing issue now before the Court is required under the Constitution and is not unduly prejudicial or unfair. Accordingly, Plaintiffs are not barred from filing the motion now before the Court.

B. Sections 1609 and 1610 of the FSIA

Attempting to enforce their judgment against Iran, Plaintiffs seek to attach property of Iran currently in Citation Respondents' possession. Under Rule 69 of the Federal Rules of Civil Procedure, proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, except that any statute of the United States governs to the extent that it is applicable. Fed.R.Civ.P. 69(a). The FSIA is an applicable statute of the United States and is the jurisdictional basis...