14-4371-cv
Baker v. Gates


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of December, two thousand fifteen.

PRESENT: REENA RAGGI,
           RICHARD C. WESLEY,
           CHRISTOPHER F. DRONEY,
                 Circuit Judges.
_____________________________________

PATRICK SCOTT BAKER, individually and as the
personal representative of the Estate of David Baker,
JERRY BAKER, individually and as the personal
representative of the Estate of David Baker, LOIS
BAKER, individually and as the personal
representative of the Estate of David Baker, STACIE
BAKER, individually and as the substitute executrix
and successor in interest of the Estate of Scarlett
Rogencamp, and as the executrix of the Estate of Hetty
E. Peterson, VALERIE PETERSON, as executor of the
estate of Vernon W. Peterson, PATRICIA A. HENRY,
individually and as the substitute executrix and
successor in interest of the Estate of Scarlett
Rogencamp, and as the executrix of the Estate of Hetty
E. Peterson, KATHARINE D. DORIS, PAUL G.
PETERSON, MICHELLE Y. HOLBROOK, JACKIE

                                             1
NINK PFLUG, RYLMA NINK, EUGENE NINK,
GLORIA NINK, MARY NINK, SCOTT PFLUG,
               Petitioners-Cross
               Defendants-Third-Party
               Defendants-Appellees,

CRAIG BAKER, individually and as the personal
representative of the Estate of David Baker,
                      Petitioner-Third-Party
                      Defendant-Appellee

                   v.                                  No. 14-4371-cv

FRANCIS GATES, individually and as administrator
for the Estate of Olin Eugene “Jack” Armstrong, PATI
HENSLEY, SARA HENSLEY, JAN SMITH,
                      Third-Party Defendants-Cross
                      Defendants-Appellants,

NATIONAL BANK OF EGYPT, CITIBANK, N.A.,
INTESA SANPAULO S.P.A, COMMERZBANK AG,
              Respondents,

JPMORGAN CHASE & CO., JPMORGAN CHASE
BANK, N.A.,
             Respondents-Third-Party
             Plaintiffs,

BANK OF NEW YORK MELLON,
              Respondent-Third-Party
              Plaintiff-Counter Defendant,

ESTATE OF JACK HENSLEY, BANCA UBAE,
S.P.A., MSC MEDITERRANEAN SHIPPING
COMPANY S.A., VANBREDA INTERNATIONAL,
N.V., MEDITERRANEAN SHIPPING COMPANY
(CYPRUS) LTD., LEBANON & GULF BANK,
S.A.L., UNITED NATIONS ENVIRONMENT
PROGRAMME TRUST FUND, COMMERCIAL
BANK    OF   SYRIA, DEVELOPMENT   OF

                                          2
NATIONAL BIO-SAFETY, AYMAN KALAI, BLOM
BANK S.A.L., INDUSTRIAL BANK OF KOREA,
SEETECH CO., LTD., EBLA PETROLEUM
COMPANY, BANK OF MONTREAL, LONKAR
SERVICES LTD., SUNCOR ENERGY GERMANY
GMBH, f.k.a. Petrocanada Germany Gmbh, HSBC
TRINKAUS & BURKHARDT (INTERNATIONAL)
SA, HSBC BANK USA, N.A., BUFFALO BRANCH,
DOHA BANK PETRONASH FZE, STANDARD
CHARTERED BANK, NEW YORK, ALTUWAIJRY
BELAL ABDULLAHA, MINISTRY OF CULTURE,
CENTRAL BANK OF SYRIA, ARAB LIBYAN
MAURITANIAN          BANK      FOR      TRADE       &
DEVELOPMENT, ARAB CULTURAL AND
COMMUNITY           CENTER,      AL      ALAMIAH
EXCHANGE         GROUP        LTD.,     STANDARD
CHARTERED BANK, SYRIATEL MOBILE
TELECOM        S.A.,   SYRIAN       TELECOM         &
TECHNOLOGY,           GENERAL          PETROLEUM
COMPANY, ESTATE OF JACK ARMSTRONG,
NATIONAL BANK OF KUWAIT SAK, NATIONAL
BANK OF KUWAIT, NEW YORK, A.H. ALSAGAR
& BROS., CREDIT SUISSE, SWITZERLAND,
RIYAD BANK, ABDULRAHMAN ABDULLAH AL
ZAMIL, HSBC PRIVATE BANK SUISSE S.A.,
HONG KONG, REX BERNARD MARTIN, JR.,
BANK MUSCAT, ONIC HOLDING, AMWAL
Q.S.C., ABN AMRO BANK N.V., NEW YORK, ABN
AMRO BANK N.V., DUBAI, ABRAAJ GROUP, as
successor to Abraaj Capital (Cayman) Limited, ABU
DHABI COMMERCIAL BANK, P.J.S.C., MAJID AL
FUTTAIM TRUST LLC, HSBC BANK MIDDLE
EAST         LIMITED,         DUBAI,         DUBAI
INTERNATIONAL CAPITAL LLC, INHERITORS
OF LATE ABDULAZIZ AL SAGAR, EMIRATES
NBD, as successor to National Bank of Dubai, Ltd., AL
FUTTAIM CAPITAL COMPANY, LLC, KHALID
ABDULLA AL SAGAR CHAM HOLDING
COMPANY S.A.L., NATIONAL BANK OF RAS AL
KHAIMAH, TRIAD SOFTWARE SERVICES,

                                          3
SYRIA DUTY FREE SHOPS, LEBANESE
CANADIAN BANK, SAL, BLOM BANK S.A.L.,
CYPRUS, I.B.C.S. TRADING AND DISTRIBUTION
CO. LTD., PUIG MIDDLE EAST FZCO, ARAB
UNION REINSURANCE COMPANY, SUEZ
CANAL INSURANCE COMPANY, SUEZ CANAL
BANK, BYBLOS BANK S.A.L., UNION BANK OF
INDIA, J.B. BODA REINSURANCE BROKERS
PVT. LTD., SYRICAN ARAB AIRLINES, BRITISH
ARAB COMMERCIAL BANK PLC, BANK OF
IRELAND, SHANNONSIDE AVIATION SERVICES
LTD.,
                  Third-Party Defendants,

FRONTIER OPPORTUNITIES FUND I, L.P.,
SHUAA CAPITAL PSC,
                 Third-Party Defendants-Cross
                 Claimants-Counter Claimants.*
_____________________________________

APPEARING FOR APPELLANTS:                     JOHN F. SALTER, Barnes Law Group LLC,
                                              Marietta, Georgia (James P. Bonner, Stone
                                              Bonner & Rocco LLP, New York, New York,
                                              on the brief).

APPEARING FOR APPELLEES:                      SANDRA CAVAZOS (Michael Dockterman,
                                              on the brief), Steptoe & Johnson LLP, New
                                              York, New York.

         Appeal from a judgment of the United States District Court for the Southern District

of New York (George B. Daniels, Judge).




*
    The Clerk of Court is directed to amend the official caption as shown above.

                                              4
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment deemed to have been entered on March 19, 2015, is

AFFIRMED.1

       Appellants, a group of default judgment creditors against the Syrian Arab Republic

(“Syria”) collectively referred to as the “Gates Plaintiffs,” appeal from the denial of their

motion to vacate a default judgment entered in favor of a different group of judgment

creditors, collectively referred to as the “Baker Plaintiffs,” against Syria. See Fed. R. Civ.

P. 60(b)(4). “We review a district court’s decision on a Rule 60(b) motion for abuse of

discretion,” Johnson ex rel. United States v. University of Rochester Med. Ctr., 642 F.3d

121, 125 (2d Cir. 2011), though the denial of a Rule 60(b)(4) motion challenging an

underlying judgment as void is reviewed de novo, see Central Vt. Pub. Serv. Corp. v.

Herbert, 341 F.3d 186, 189 (2d Cir. 2003). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal, which we

reference only as necessary to explain our decision to affirm.

       The Gates Plaintiffs’ default judgment arose out of the 2004 murders of U.S.

civilian contractors Jack Armstrong and Jack Hensley by al-Qaeda in Iraq, for which a

United States District Court for the District of Columbia found Syria liable to their estates

and surviving family members in the amount of $412,909,587. See Gates v. Syrian Arab
1
  Because the district court did not enter a separate judgment as required by Fed. R. Civ. P.
58(a), a judgment is deemed to have been entered 150 days after the October 20, 2014 entry
of the district court’s order denying appellants’ motion and dismissing them from the
action. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii).
                                              5
Republic, 580 F. Supp. 2d 53 (D.D.C. 2008). The Baker Plaintiffs’ default judgment

arose out of the 1985 hijacking of EgyptAir Flight 648 and the shooting of three

Americans, one of whom—Scarlett Rogenkamp—was killed, and two of whom—Patrick

Baker and Jackie Pflug—were grievously injured. See Baker v. Socialist People’s Libyan

Arab Jamahirya, 775 F. Supp. 2d 48 (D.D.C. 2011). Syria did not initially make an

appearance in Baker, and default judgment in the amount of $601,969,151.50 was entered

by a magistrate judge, to whom the case had been referred for all purposes. See App’x

140–41. Syria subsequently appeared in Baker to challenge the default on grounds that,

inter alia, it had not consented to the exercise of jurisdiction by a magistrate judge pursuant

to 28 U.S.C. § 636(c)(1). The magistrate judge rejected this argument, see Baker v.

Socialist People’s Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 98–99 (D.D.C. 2011), and

Syria, after initially appealing the default judgment, voluntarily dismissed its appeal, see

Baker v. Qadhdhafi, No. 11-7034, 2011 WL 5515579 (D.C. Cir. Oct. 19, 2011).

       The Baker Plaintiffs subsequently registered their judgment in the Southern District

of New York and filed a turnover petition pursuant to Fed. R. Civ. P. 69 and N.Y. C.P.L.R.

§§ 5225, 5227. Petition respondents JPMorgan Chase & Co. and Bank of New York

Mellon interpleaded, inter alia, the Gates Plaintiffs, who unsuccessfully moved under Fed.

R. Civ. P. 60(b)(4) in that action to vacate the Baker judgment as void.

       We need not here decide the merits of the Gates Plaintiffs’ challenge to the Baker

judgment, because we conclude that the Gates Plaintiffs lacked standing to bring the Rule


                                              6
60(b) motion. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997)

(“It is beyond cavil that an appellate court may affirm the judgment of the district court on

any ground appearing in the record.”). On its face, Rule 60(b) affords relief from

judgment only to “a party or its legal representative.” Fed. R. Civ. P. 60(b). Under

certain circumstances, we have held that a nonparty “sufficiently connected and identified

with” an action can obtain relief under Rule 60. Dunlop v. Pan Am. World Airways, Inc.,

672 F.2d 1044, 1052 (2d Cir. 1982). The non-parties to whom we applied this conclusion

in Dunlop were Pan Am employees suing the airline under state law. They made a Rule

60(b) motion to modify a stipulation of dismissal in a federal case between the Secretary of

Labor and Pan Am to clarify that the dismissal did not preclude their state action. See id.

at 1047–49. We held that “[a]lthough Rule 60(b)(6) would not ordinarily be available to

non-parties to modify final judgments, . . . on the facts of this case appellants were

sufficiently connected and identified with the Secretary’s suit to entitle them to standing to

invoke Rule 60(b)(6).” Id. at 1052 (emphasis added) (footnote omitted). We have on

one other occasion extended Rule 60(b) to a non-party. In Grace v. Bank Leumi Trust Co.

of New York, 443 F.3d 180 (2d Cir. 2006), we held that

              [W]here plaintiffs enter into a settlement agreement with a
              judgment-proof, pro se defendant with the intent at the time of
              the settlement to collect from a third party that allegedly
              received fraudulent conveyances, and further, they attempt to
              use the judgment as a predicate for a fraudulent conveyance
              action against the third party, the third party is “strongly
              affected” by the judgment and entitled to standing to bring a
              Rule 60(b) motion.

                                              7
Id. at 188. As in Dunlop, however, we limited the holding to the facts of the case. See id.

       These extensions of Rule 60(b) are so factually cabined that we have summarily

refused to construe Dunlop or Grace to reach more broadly. See Federman v. Artzt, 339

F. App’x 31, 34 (2d Cir. 2009) (summary order) (“Both Dunlop and Grace involved

extraordinary circumstances in which a non-party had interests on which the outcome of

the proceedings had significant consequences for the movants, yet those interests had not

been adequately represented during litigation, because of the peculiar structure of each

case. There is nothing similarly extraordinary about the situation before us.”). Nothing

about the instant situation is sufficiently extraordinary to warrant a different conclusion.

       We have considered all of appellants’ remaining arguments and conclude that they

are without merit. Accordingly, we AFFIRM the order of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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