                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 17 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

EMIL ALPERIN, et al.,                             No. 09-17761

               Plaintiffs-Appellants,             D.C. No. 99CV04941 MMC

  v.
                                                  MEMORANDUM *
THE FRANCISCAN ORDER (ORDER
OF FRIARS MINOR), et al.,

               Defendant-Appellee.


            Appeal from Final Judgment of the United States District Court
                       for the Northern District of California,
                    Maxine M. Chesney, District Judge Presiding

                      Argued and Submitted February 18, 2011
                             San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**

       Plaintiffs, Holocaust survivors, their heirs and related organizations, brought

this action against a variety of defendants claiming that during World War II the

Nazis installed the Ustasha Regime, a fascist organization, as the ruler of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
Yugoslavia and that the Regime persecuted Serbs, Jews, Roma, and others.

Plaintiffs also alleged that in addition to committing genocide and war crimes, the

Ustasha Regime systematically looted the property of holocaust survivors placing

it in the Ustasha Treasury.

      The district court dismissed plaintiffs’ claims as presenting non-justiciable

political questions. Alperin v. Vatican Bank, 242 F. Supp. 2d 686 (N.D. Cal. 2003).

On appeal, this court affirmed the district court’s dismissal of plaintiffs’ claims

involving alleged violations of human rights and international law. Alperin v.

Vatican Bank, 410 F.3d 532 (9th Cir. 2005) (Alperin I). However, the court found

that plaintiffs’ “garden-variety legal and equitable claims for the recovery of

property” did not fall into the political question category, id. at 548, and remanded

those claims to the district court for further consideration.

      In the district court, plaintiffs filed their sixth amended complaint alleging

that after the war ended the sole remaining defendant, The Order of Friars Minor

(“OFM”), a Catholic Order headquartered in Rome, aided and abetted the Ustasha

Regime’s crimes. The district court dismissed the complaint for lack of subject

matter jurisdiction. The court determined that it lacked jurisdiction under the Alien

Tort Statute (“ATS”), 28 U.S.C. § 1350, because plaintiffs’ claims for the recovery

of property did not involve violations of the law of nations and because, under



                                            2
Alperin I, plaintiffs’ human rights claims presented non-justiciable political

questions. The court also concluded that it lacked diversity jurisdiction under 28

U.S.C. § 1332(a) because the complaint included both foreign plaintiffs and a

foreign defendant. Subsequently, plaintiffs sought to reopen the judgment so that

they could amend their complaint, drop the foreign plaintiffs and thus perfect

diversity jurisdiction. However, the district court denied the motion. Plaintiffs

appeal both of the district court’s rulings.

      For a claim to be cognizable under the ATS, a complaint must allege that the

defendant committed acts which contravene a specific, universal, obligatory norm

of international character. Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25, 732

(2004) (citing favorably In re Estate of Marcos Human Rights Litig., 25 F.3d 1467

(9th Cir. 1994)). Plaintiffs argue that they satisfy this burden by having alleged

that the OFM aided and abetted the Ustasha Regime’s commission of the offense

of brigandage. Plaintiffs contend that brigandage is akin to piracy, an offense

which indisputably violates international law.

      We agree with the district court that plaintiffs failed to allege an offense

cognizable under the ATS. Blacks Law Dictionary 219 (9th ed. 2009) defines

brigandage as “plundering and banditry carried out by bands of robbers.” We have

found no authority holding that such conduct violates a “specific, universal and



                                               3
obligatory” norm of international character. Moreover, even if we define

brigandage broadly, as plaintiffs do, to include organized robbery by a

governmental entity, plaintiffs’ claim presents a non-justiciable political question.

Alperin I at 559-61 (holding that claim that defendants committed war crimes by

assisting Ustasha Regime in preserving its Treasury was non-justiciable because it

would require a court to review the foreign policy judgment of a coordinate

political branch).

      Plaintiffs do not dispute that the district court correctly determined that their

complaint did not establish diversity jurisdiction under § 1332(a) because of the

presence of foreign plaintiffs and a foreign defendant. See Nike, Inc. v. Comercial

Iberica De Exclusivas Departivas, S.A., 20 F.3d 987, 991 (9th Cir. 1994). Rather,

they suggest that the court should have permitted them to reopen the judgment to

amend their complaint by dropping the foreign plaintiffs. The district court

concluded that plaintiffs made a tactical decision to rely exclusively on the ATS

rather than on diversity jurisdiction and that they lacked a basis to reopen the

judgment under either Federal Rule of Civil Procedure 59 or 60. In reaching this

conclusion, the district court did not abuse its discretion.

      Finally, plaintiffs ask this court to dismiss the foreign plaintiffs under

Federal Rule of Civil Procedure 21 to assist it in perfecting diversity jurisdiction.



                                            4
Although in rare cases an appellate court may drop a dispensable nondiverse party

in the interest of efficiency, see, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490

U.S. 826, 832-33, 837-38 (1989), it would be improper to do so here. Even if we

dropped the foreign plaintiffs, plaintiffs would still need to reopen the judgment of

dismissal and, as discussed, the district court reasonably concluded that they

presented no grounds to do so. Therefore, the decision of the district court is

AFFIRMED.




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