     09-0318-cv
     Freund v. SNCF



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. C ITATION TO A SUMMARY ORDER
     FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF
     A PPELLATE P ROCEDURE 32.1 AND THIS COURT’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE F EDERAL
     A PPENDIX 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the   7 th day of September, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                         Circuit Judge,
10                GEORGE B. DANIELS,
11                         District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -x
14
15       MATHILDE FREUND, LEO BRETHOLZ, FREDDIE
16       KNOLLER, KURT SCHAECHTER, RAYMOND BONI,
17       PIERRE CHANOVER, ABRAHAM DRESDNER,
18       MARGOT FEIGENBAUM, SOLOMON HECHT,
19       GINETTE KALISH, BEATRICE KARP, MAURICE
20       KORNBERG, RUDOLPH LOEBEL, REGINA LOEBEL,
21       RAYMOND MAGER, BERTHE BANIA PALUMBO,

               *
               District Judge George B. Daniels, of the United
         States District Court for the Southern District of New York,
         sitting by designation.

                                                1
 1   SUSAN PHILLIP, INGEBORG PRICE,
 2   MARGUERITE ELIAS QUDDUS, SUZANNE RINGEL,
 3   SUZANNE RAPPOPORT RIPTON, VERA
 4   REICHMAN, COLETTE RORLS-THOMASSIN,
 5   MAURICE SALCFAS, LILIANE SCHIMKOVITZ,
 6   JACOB HECHT, on behalf of themselves and
 7   all others similarly situated,
 8
 9                   Plaintiffs-Appellants,
10
11            - v.-                                No. 09-0318-cv
12
13   SOCIÉTÉ NATIONALE DES CHEMINS DE FER
14   FRANÇAIS,
15
16                   Defendant-Appellee,
17
18   REPUBLIC OF FRANCE and CAISSE DES
19   DÉPÔTS ET CONSIGNATIONS,
20
21                   Defendants.
22
23   - - - - - - - - - - - - - - - - - - - -x
24
25   FOR APPELLANTS:          Isaac Lidsky, Akin Gump Strauss
26                            Hauer & Feld, London, United Kingdom
27                            (Harriet Tamen, Law Offices of
28                            Harriet Tamen, New York, NY; Stephen
29                            T. Rodd, Abbey Spanier Rodd &
30                            Abrams, LLP, New York, NY; Professor
31                            Lucille A. Roussin, New York, NY;
32                            Professor Malvina Halberstam,
33                            Benjamin N. Cardozo School of Law,
34                            New York, NY; William H. Davidson,
35                            New York, NY, on the brief).
36
37   FOR APPELLEE:            Professor Andreas S. Lowenfeld
38                            (Professor Linda J. Silberman, on
39                            the brief), New York University
40                            School of Law, New York, NY.
41
42   FOR AMICUS CURIAE:       Professor Jordan J. Paust,
43                            University of Houston Law Center,
44                            Houston, TX, for Amicus Curiae The
45                            Human Rights Committee of the

                                    2
 1                          American Branch of the International
 2                          Law Association.
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiffs, a putative class of Holocaust survivors and
 9   the heirs and beneficiaries of Holocaust survivors and
10   victims, appeal from the judgment of the United States
11   District Court for the Southern District of New York
12   (Sullivan, J.), which dismissed their claims relating to the
13   spoliation of personal property during forced railroad
14   deportations to holding camps in France and Nazi
15   concentration camps. Plaintiffs brought suit against the
16   Republic of France; the French national depository, Caisse
17   des Dépôts et Consignations (“CDC”); and the French national
18   railway, Société Nationale des Chemins de Fer Français
19   (“SNCF”). The district court granted the motions filed by
20   each of the three defendants seeking dismissal, inter alia,
21   for lack of subject matter jurisdiction under the Foreign
22   Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602
23   et seq. Plaintiffs appeal only as to the dismissal of their
24   claims against SNCF. We assume the parties’ familiarity
25   with the underlying facts, the procedural history, and the
26   issues presented for review.
27
28        “The standard of review applicable to district court
29   decisions regarding subject matter jurisdiction under the
30   FSIA is clear error for factual findings and de novo for
31   legal conclusions.” Robinson v. Gov’t of Malay., 269 F.3d
32   133, 138 (2d Cir. 2001). Under the FSIA, “[o]nce the
33   defendant presents a prima facie case that it is a foreign
34   sovereign, the plaintiff has the burden of going forward
35   with evidence showing that, under exceptions to the FSIA,
36   immunity should not be granted, although the ultimate burden
37   of persuasion remains with the alleged foreign sovereign.”
38   Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016
39   (2d Cir. 1993).
40
41        It is not necessary in this case to track the shift of
42   burdens or to assess the sufficiency of evidence because (i)
43   SNCF’s motion to dismiss asserts foreign sovereign immunity;
44   (ii) the only exception at issue is the takings exception,
45   28 U.S.C. § 1605(a)(3); and (iii) the complaint itself
46   alleges a sequence of events that runs counter to any
47   inference that the stolen “property or any property

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 1   exchanged for such property is owned or operated by” SNCF--
 2   as required by the takings exception in the context of this
 3   litigation, id.; see also Garb v. Republic of Pol., 440 F.3d
 4   579, 581 (2d Cir. 2006).
 5
 6        In the complaint, the term “Defendants” encompasses
 7   France, the CDC, and SNCF. See Compl. ¶ 1. There is no
 8   specific allegation that SNCF itself currently possesses the
 9   stolen property or any derivative property. The complaint
10   alleges that SNCF seized the property without alleging that
11   SNCF (as opposed to France or the CDC or even Germany)
12   retained the property, or any derivative property:
13
14        •   “SNCF took the suitcases and other valuables,
15            telling the victims that the Property would be
16            returned to them. It was not.” Compl. ¶ 18.
17
18        •   “During the War, Defendants, by their own conduct
19            individually took, and in concert with each other,
20            aided and abetted and conspired to take, the
21            Property of Plaintiffs, in violation of
22            international law, both customary and treaty, by
23            taking Property on a discriminatory basis, for no
24            public purpose and without just compensation.”
25            Compl. ¶ 68.
26
27        •   “The Defendants have failed to return Property to
28            their rightful owners and have intentionally and
29            wrongfully concealed from the Plaintiffs
30            information about the Property and the value and
31            profits derived theref[rom].” Compl. ¶ 77.
32
33   See also Compl. ¶¶ 27, 30-31, 33-36, 38-39, 41-43, 45-46,
34   48-50.
35
36        The only allegation that references retention of the
37   stolen property (or proceeds) is pleaded in the collective,
38   merging the roles of the original defendants in the taking
39   and retention of the property:
40
41            Defendants have willfully and wrongfully taken,
42            retained and converted the Property and its
43            derivative profits into their own property, and
44            Defendants’ exercise of the rights of ownership
45            and control over the Property were and are
46            inconsistent with Plaintiffs’ rights, were and are


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 1            without authorization, and such acts constitute a
 2            conversion.
 3
 4   Compl. ¶ 73. Such collective pleading generally is
 5   unremarkable; but here the complaint itself runs counter to
 6   the possibility that the stolen property (or any derivative
 7   property) remains lodged with SNCF:
 8
 9            The CDC was the depository for most of the funds
10            spoliated from the Jews and other detainees in the
11            holding camps. The CDC was also the recipient of
12            funds, both during and after the War, arising from
13            the sales and auctions of Jewish Property.
14
15   Compl. ¶ 20 (emphasis added); see also id. ¶ 22.
16
17        Plaintiffs’ briefing argues that among various
18   contingencies--loss, destruction, sale, or retention of the
19   stolen property--“the most plausible explanation is that
20   SNCF still has the Property.” But this argument contradicts
21   the thrust of Plaintiffs’ complaint and ignores the roles
22   alleged to have been played by France and the CDC.
23
24        In reviewing the denial of jurisdictional discovery, we
25   consider only whether remand is warranted for jurisdictional
26   discovery as against SNCF. (No appeal is taken from the
27   dismissal of the claims against France and the CDC.) Since,
28   as we conclude above, the claims against SNCF are defeated
29   on the pleadings, we decline to order jurisdictional
30   discovery.
31
32        Plaintiffs forfeited their request for leave to
33   replead. Plaintiffs did not make that request until their
34   appellate reply brief. “We generally do not consider issues
35   raised in a reply brief for the first time because if an
36   appellant raises a new argument in a reply brief an appellee
37   may not have an adequate opportunity to respond to it.” In
38   re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006) (internal
39   quotation marks and citations omitted).
40
41        For the foregoing reasons, we AFFIRM the judgment of
42   the district court on the ground that SNCF’s foreign
43   sovereign immunity deprived the federal courts of subject
44   matter jurisdiction over this action. We need not, and do
45   not, reach the international comity considerations on which
46   the district court alternatively relied, or any of the other


                                  5
1   issues presented on appeal or raised in the district court
2   proceedings.
3
4
5                     FOR THE COURT:
6                     CATHERINE O’HAGAN WOLFE, CLERK
7
8                     ___________________




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