Simon v. Republic Hungary

• Decision Date: 09 May 2014
• Docket Number: Civil Action No. 10-1770 (BAH)
• Parties: ROSALIE SIMON, et al., Individually, for themselves and for all others similarly situated Plaintiffs, v. REPUBLIC OF HUNGARY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

ROSALIE SIMON, et al., Individually,for themselves and for all others similarly situated Plaintiffs, v. REPUBLIC OF HUNGARY, et al., Defendants.

Civil Action No. 10-1770 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date: May 9, 2014

Judge Beryl A. Howell

MEMORANDUM OPINION

In the dark chapter of history that is World War II, Winston Churchill called the shipment of hundreds of thousands of Hungarian Jews to the Nazi death camps in Poland and Germany "probably the greatest and most horrible crime ever committed in the history of the world." First Am. Compl. ("FAC") ¶ 4, ECF No. 21. The fourteen named plaintiffs in this proposed class action, Rosalie Simon, Helen Herman, Charlotte Weiss, Helena Weksberg, Rose Miller, Tzvi Zelikovitch, Magda Kopolovich Bar-Or, Zehava (Olga) Friedman, Yitzhak Pressburger, Alexander Speiser, Ze-ev Tibi Ram, Vera Deutsch Danos, Ella Feuerstein Schlanger, and Moshe Perel (collectively, "the plaintiffs"), survived this vicious aspect of the greater Holocaust. FAC ¶¶ 5-81. The plaintiffs no longer reside in Hungary. See FAC ¶¶ 5-9, 14, 26, 27, 38, 40, 48, 64, 72, 80. Four of the named plaintiffs, Simon, Weiss, Miller, and Schlanger, are now U.S. nationals; two plaintiffs, Herman and Weksberg, are nationals of Canada; one plaintiff, Danos, is a national of Australia; and the remaining seven plaintiffs are nationals of Israel. Id. They seek recompense for alleged atrocities committed against and property allegedly stolen from them during the Holocaust by the three defendants, the Republic of Hungary ("Hungary") and thestate-owned Magyar Államvasutak Zrt. ("MÁV"), which is the Hungarian national railway (collectively, "the Hungary Defendants"); and Rail Cargo Hungaria Zrt. ("RCH"), which is a freight rail company that is the successor-in-interest to MÁV Cargo Árufuvarozási Zrt., f/k/a MÁV Cargo Zrt., a former division of MÁV. Pending before the Court are two Motions to Dismiss filed by the Hungary Defendants, ECF No. 22, and Defendant RCH, ECF No. 70.¹ For the reasons explained below, though the plaintiffs may indeed be deserving of greater restitution than any amounts they have been provided, the defendants' motions are granted.

I. BACKGROUND

The plaintiffs observe that "[n]owhere was the Holocaust," which involved the systematic murder of more than six million people, "executed with such speed and ferocity as it was in Hungary, where in 1944 over a half a million souls were dispatched to their deaths within a period of less than three months." FAC ¶ 1. The gratuitous nature of this slaughter is apparent in the fact that "[m]ost, but not all, of the Hungarian atrocities occurred near the end of the war in 1944, when the Nazis and Hungary, knowing they had lost, raced to complete their eradication of the Jews before the Axis surrendered." Id. ¶ 3. It was only through the complicity and efficiency of Defendants MÁV and RCH's predecessor, the cargo unit of MÁV, that Hungary's Jewish population was "transport[ed] by train to the killing fields and death camps of Nazi Germany-occupied Poland and the Ukraine, where the Jews were tortured and the vast majority died" in such a short period of time. Id. "In less than two months, over 430,000 Hungarian Jews were deported, mostly to Auschwitz, in 147 trains." Id. ¶ 108; see also FAC ¶ 121 ("During the German occupation, over 500,000 Hungarian Jews died from maltreatment or were murdered. The overwhelming majority of these were among the close to 440,000 Jews who were deportedto Auschwitz between May 15 and July 8, 1944."); id. Exs. A-B (data related to Hungarian Jewish ghettoes during World War II and deportation trains). Indeed, all but two of the named plaintiffs in this matter were transported, with the concurrent expropriation of their property, in the spring of 1944. See id. ¶¶ 11-81. These plaintiffs, unlike hundreds of thousands of others, including the plaintiffs' friends and family, survived the Hungarian atrocities. See id. ¶¶ 11-81.

The defendants recognize that "the wrongs inflicted upon Plaintiffs and millions of others were wrongful - they clearly were," and note that "[n]othing said in the defense of this lawsuit can, or should, diminish the world's condemnation of Nazi wrongdoing during World War II." Hungary Defs.' Mem. Supp. Mot. Dismiss ("Hungary Defs.' Mem.") at 1 and n.1, ECF No. 22-1. The FAC describes in vivid detail the horrific experiences endured by the plaintiffs. See FAC ¶¶11-81. While the depredations suffered by the plaintiffs are undisputed and the insufficiency of any direct restitution to them similarly patent, resolution of the instant motions rests on an examination of the Foreign Sovereign Immunities Act ("FSIA") and the Alien Tort Statute ("ATS"), the combination of which statutes bars the plaintiffs' suit. As background, the Court first describes the historical events affecting the plaintiffs and underpinning this lawsuit before turning to the characteristics of the defendants critical to assessing their amenability to suit in the United States. Next, the Court reviews the efforts of the United States and other sovereign nations, including Defendant Hungary, to provide compensation to the victims of the Hungarian Holocaust and the progress of this litigation.

A. The Plaintiffs

Twelve of the named plaintiffs allege that they were transported in 1944 by Defendants MÁV and/or RCH from their homes in Hungary to labor or death camps in various countries as part of the Nazi-led assault on the Jewish people. See FAC ¶¶ 11, 22-24, 31, 43, 50-51, 66-68, 72-74, 80, 100. Plaintiff Zelikovitch was transported in 1941 by MÁV or RCH and again in1944. Id. ¶¶ 15, 19. All but two of the plaintiffs were, at some point, sent to the Nazi concentration camp at Auschwitz on Defendants MÁV and/or RCH's trains. Id. ¶ 100.

Thirteen plaintiffs allege that their possessions and those of their families "were taken from them by MÁV and/or [RCH] as they boarded the trains for embarkation." Id. The plaintiffs complain that defendants MÁV and/or RCH "sold, liquidated or otherwise converted" the plaintiffs' property and "commingled those funds with other revenues." Id. Eleven of the plaintiffs also allege that Hungarian government officials participated or colluded in the confiscation of their property when they arrived at MÁV train stations or during their transport by MÁV officials. Id. ¶¶ 12, 16, 23, 30, 43, 65-66, 80. Specifically, the plaintiffs assert that during the ghettoization of the Hungarian Jews, Hungarian officials inventoried the property left behind in Jewish homes, which "was then expropriated by Defendant Hungary and converted to cash through sales and other means[]" and that "[t]he proceeds were transferred to the Hungarian government treasury and co-mingled with other Hungarian government revenues." Id. ¶ 99. Additionally, the plaintiffs allege, "[a]ll expenses associated with ghettoization were taxed on the Jews, including the Plaintiffs herein." Id. ¶ 98.

The fourteenth plaintiff, Pressburger, was not transported by Defendant Hungary or Defendant MÁV or RCH, but alleges that his family's property "was likewise stolen by MÁV and/or [RCH], never to be returned[]" in the spring of 1944, when his father's agricultural cargo was confiscated by a MÁV stationmaster upon delivery to a train station for shipment. Id. ¶¶ 39, 100.

In addition to confiscating the personal possessions of those who were transported by the defendants, the plaintiffs complain that the defendants "collaborat[ed] in murder and willful and grotesque violations of international law[]" by delivering Hungarian Jews in inhumaneconditions to hostile authorities in "Nazi Germany-occupied Poland and the Ukraine." Id. ¶¶ 3-4.

The plaintiffs' Amended Complaint outlines the World War II experiences of each of the named plaintiffs, and the Court will briefly recount below the chilling details of the defendants' roles in persecuting these individuals, their families and communities because they were Jewish.

Plaintiffs Simon, Weiss, Miller, Herman, and Weksberg (collectively, under their maiden names, "the Lebovics sisters") "were raised in Tarackoz in Hungarian-annexed Ruthenia." Id. ¶ 10. Simon, Weiss, and Miller currently live in the United States, while Herman and Weksberg live in Canada. Id. at ¶¶ 5-9. In the spring of 1944, the Lebovics sisters, along with their brother and parents, were deported via Defendant "MÁV's trains to the ghetto in Mateszalka, and then to Auschwitz." Id. ¶ 11. Some of their possessions were confiscated by Hungarian government officials in Teresva, and some were confiscated by Defendants MÁV and/or RCH as they boarded the train for Auschwitz. Id. ¶ 12. The plaintiffs allege that the Lebovics sisters' property, after being confiscated by the Hungary Defendants and/or Defendant RCH, was liquidated "to pay Defendants MÁV and/or [RCH] for the cost of transporting the family from their home in Teresva and later from the ghetto in Mateszalka to Auschwitz." Id. ¶ 13.

Plaintiff Zelikovitch is a citizen of Israel, but was born "in Uglya in Carpatorus, part of Hungarian-annexed Ruthenia," in 1928. Id. ¶ 14. In the summer of 1941, "the entire Jewish population of Uglya, including . . . [Zelikovitch] and his family, were deported by" Defendant MÁV or RCH across the border to Ukraine, which was under Nazi control. Id. ¶ 15. Before arriving in the Ukraine, Zelikovitch's family's possessions "were confiscated by officials of the Hungarian government" and MÁV or RCH personnel at train stations in Tecevo and Jatzin. Id. ¶ 16. Zelikovitch eventually escaped and returned to Hungary to find that his family's home andproperty had been confiscated. Id. ¶ 18. Zelikovitch was recaptured by Hungarian police in 1944 and handed over to MÁV or RCH. Id. ¶ 19. His remaining possessions were confiscated and he was transported to Auschwitz by trains "owned and operated by MÁV or [RCH]." Id. ¶¶ 19.

Plaintiff Bar-Or, a citizen of Israel, was born in...