Simon v. Republic of Hung.
| Decision Date | 30 December 2021 |
| Docket Number | Civil Action No. 10-cv-1770 (BAH) |
| Citation | 579 F.Supp.3d 91 |
| 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 |
Charles Samuel Fax, Rifkin Weiner Livingston LLC, Bethesda, MD, David H. Weinstein, Pro Hac Vice, Weinstein Kitchenoff & Asher LLC, Philadelphia, PA, Lawrence Marc Zell, Pro Hac Vice, Zell, Aron & Co., Israel, Liesel J. Schopler, Rifkin Weiner Livingston LLC, Annapolis, MD, Paul G. Gaston, Law Offices of Paul G. Gaston, Washington, DC, for Plaintiffs Rosalie Simon, Helen Herman, Charlotte Weiss, Helena Weksberg, Rose Miller, Magda Kopolovich Bar-Or, Yitzhak Pressburger, Alexander Speiser, Moshe Perel Suite E107 620 East McKellips Tempe, AZ 85281.
Audrey E. Stano, Pro Hac Vice, Weil, Gotshal & Manges, LLP, Redwood Shores, CA, Brian Keith Gibson, Pro Hac Vice, Konrad Lee Cailteux, Weil, Gotshal & Manges, LLP, New York, NY, Holly Elizabeth Loiseau, Weil, Gotshal & Manges LLP, Washington, DC, for Defendants Republic of Hungary, Magyar Allamvasutak Zrt.
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, "plaintiffs")—are but a few survivors among the approximately 825,000 Hungarian Jews who were subjected to the atrocities and horrors of the Holocaust at the hands of the Hungarian government between 1941 and 1945. Second Am. Compl. ("SAC") ¶¶ 5–9, 14, 22, 28, 39, 41, 49, 65, 73, 81, 131, ECF No. 118.1 The plaintiffs maintain this suit against the Republic of Hungary ("Hungary") and the Hungarian national railway, Magyar Államvasutak Zrt. ("MÁV"), (collectively, "defendants"), in search of long-overdue restitution for property that was seized from them as part of Hungary's broader effort to eradicate the Jewish people. See SAC ¶¶ 173–215.
After a decade-long tour of the federal court system, bouncing up and down the tiers of appellate review, this case is back in this Court for consideration of defendants’ fourth motion to dismiss—like the three before it, for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), on grounds of sovereign immunity not exempted under the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. § 1602 et seq. The D.C. Circuit twice rejected several bases on which to grant dismissal (both with and without prejudice), but since that time, the Supreme Court has expressly rejected a central pillar of the Circuit's first Simon opinion while vacating the judgment associated with the second Simon opinion. Meanwhile, the paper trail in this case grew further still when this Court last year ruled on defendants’ third motion to dismiss, appellate review of which opinion was cut short by the Supreme Court's direction to remand everything back here. The task before this Court is first to sort out what the state of the law in this case is , given its complex procedural history with intervening changes in case law. Only then can the parties’ arguments be examined in the context of the already-crowded slate on which the Court now writes.
The motion to dismiss is granted in part and denied in part. For the reasons explained below, the outcome of this motion varies by plaintiff. Four plaintiffs must be dismissed with prejudice for an uncurable lack of subject matter jurisdiction due to sovereign immunity, nine plaintiffs may proceed past this motion to dismiss but may still face jurisdictional hurdles down the line, and one remaining plaintiff is the subject of jurisdictional allegations so ambiguous as to warrant dismissal, though without prejudice to a new attempt.
The grim factual background of this eleven-year-old case has been recounted in several prior decisions of this Court and the D.C. Circuit. See generally Simon v. Republic of Hungary ("Simon-2014 "), 37 F. Supp. 3d 381, 385–95 (D.D.C. 2014), aff'd in part, rev'd in part , 812 F.3d 127 (D.C. Cir. 2016) ; Simon v. Republic of Hungary ("Simon I "), 812 F.3d 127, 132–34 (D.C. Cir. 2016), abrogated in part by Federal Republic of Germany v. Philipp , ––– U.S. ––––, 141 S. Ct. 703, --- L.Ed.2d –––– (2021) ; Simon v. Republic of Hungary ("Simon-2017 "), 277 F. Supp. 3d 42, 47–49 (D.D.C. 2017), rev'd , 911 F.3d 1172 (D.C. Cir. 2018) ; Simon v. Republic of Hungary ("Simon II "), 911 F.3d 1172, 1175–76 (D.C. Cir. 2018), vacated per curiam , ––– U.S. ––––, 141 S. Ct. 691, 208 L.Ed.2d 625 (2021) ; Simon v. Republic of Hungary ("Simon-2020 "), 443 F. Supp. 3d 88, 92–94 (D.D.C. 2020). That background is briefly summarized below, followed by review of the lengthy relevant procedural history.
In 1944, "the Nazis and Hungary, knowing that they had lost [the war], raced to complete their eradication of the Jews before the Axis surrendered." SAC ¶ 3. As part of their broader plan to eradicate the Jewish people, defendants stripped Hungarian Jews of their possessions, including cash, jewelry, heirlooms, art, valuable collectibles, and gold and silver, loaded them onto trains, and transported them in squalid conditions to concentration camps where they were either murdered or forced to work as slave laborers. Id. ¶¶ 12, 17, 20, 23–26, 32–34, 44–48, 52–58, 69–71, 75–76, 81. "In less than two months, ... over 430,000 Hungarian Jews were deported, mostly to Auschwitz, in 147 trains." Id. ¶ 120; id. , Ex. B, ECF No. 118-2 (). The "vast majority" of the Hungarian Jews sent "to the killing fields and death camps of Nazi Germany-occupied Poland and the Ukraine" died. SAC ¶ 3. "The overall loss of Hungarian Jewry during the Second World War, excluding those who fled abroad, was 564,507." Id. ¶ 131. Hungary "does not dispute that the treatment of Hungarian Jews during the Holocaust was reprehensible." Hungary's & MÁV Magyar Államvasutak Zrt.’s Mem. Supp. Mot. Dismiss Second Am. Class Action Compl. ("Defs.’ Mem.") at 19, ECF No. 165-1.
After the armistice agreement ended the hostilities of World War II, SAC ¶ 137, Hungary signed the "Paris Peace Treaty of February 10, 1947" ("1947 Treaty") that incorporated "a number of provisions relating to the restoration of confiscated property," with promises to undertake the restoration of, and make fair compensation for, property, legal rights, or interests confiscated from persons " ‘on account of the racial origin or religion of such persons,’ " id. ¶ 138 (citation omitted) (quoting 1947 Treaty art. 27, ¶ 1, 61 Stat. 2065, 2124, 41 U.N.T.S. 135). Article 27 of the 1947 Treaty and related provisions "were not self-executing (they needed appropriate municipal legislation and enforcement to prevail); and they did not provide for sanction in case of non-compliance, other than the implied possible litigation before an international tribunal." Id. (quoting 2 RANDOLPH L. BRAHAM , THE POLITICS OF GENOCIDE: THE HOLOCAUST IN HUNGARY 1308–09 (rev. ed. 1994)).
Plaintiffs acknowledge that the Hungarian government "implement[ed] an array of legislative enactments and remedial statutes," but Hungarian Jews "saw no tangible results with respect to restitution and indemnification" for their seized property. SAC ¶ 138. Moreover, "[w]ith the Communist party in power in Hungary" after World War II, " ‘the issue of compensation or restitution was squashed,’ " and to the extent the Hungarian government had set aside funds for victims of the Holocaust, "the funds were rarely used for their intended purpose and they were frequently raided by the Communists for financing their own political projects." Id. ¶¶ 141–42 (quoting 2 BRAHAM , supra , at 1309). In 1992, "two years after the downfall of the Communist regime" in Hungary, the Hungarian government adopted at least two laws to provide remedies to Hungarian Jews victimized in the Holocaust: one of these laws "provid[ed] compensation for material losses incurred between May 1, 1939 and June 8, 1949," and the other "provid[ed] compensation for those who, for political reasons, were illegally deprived of their lives or liberty between March 11, 1939 and October 23, 1989," but, in plaintiffs’ view, the remedies provided under those programs were "paltry and wholly inadequate." Id. ¶ 143.
In sum, plaintiffs claim never to have been properly compensated for the personal property seized from them by defendants as plaintiffs were being deported. SAC ¶¶ 83–84. Further, plaintiffs allege that defendants "liquidated [this] stolen property, mixed the resulting funds with their general revenues, and devoted the proceeds to funding various governmental and commercial operations." Id. ¶ 97. Thus, plaintiffs claim that the "stolen property or property exchanged for such stolen property is owned and operated by Hungary and MÁV," some of which property "is present in the United States in connection with commercial activity carried on in the United States by Hungary," id. ¶ 98, including, for example, "fees and payments, offices, furniture, furnishings, bank accounts, artwork, stock and bond certificates, securities held in ‘street name’ and airplanes," id. ¶ 101.
In 2010, sixty-five years after the end of World War II and twenty years after the fall of the Hungarian communist regime, plaintiffs filed the instant action against Hungary and MÁV, seeking, inter alia , restitution for the possessions seized from them and their families during the Holocaust, and to certify a class consisting of "all surviving Jewish victims of the Holocaust" and "the heirs ... and open estates ... of the deceased Jewish victims of the Holocaust," where such victims were residents of...
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