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RUBIN v. ISLAMIC REPUBLIC OF IRAN

December 15, 2005.

JENNY RUBIN, et al., Plaintiffs,
v.
THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants, v. THE UNIVERSITY OF CHICAGO, et al., Citation Third Party Respondents.



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, Plaintiffs, Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersch, Renay Frym, Noam Rozenman, Elena Rozenman, and Tvi Rozenman, move this Court for partial summary judgment establishing as a matter of law that no party other than The Islamic Republic of Iran (a/k/a Iran, The Republic of Iran, Republic of Iran, The Government of Iran, Iranian Government, and Imperial Government of Iran), may assert Iran's foreign sovereign immunity defenses under Sections 1609 and 1610 of the Foreign Sovereign Immunity Act, 28 U.S.C. § 1602 et seq. ("FSIA"). Citation respondents, The University of Chicago, Gil Stein, and the Field Museum of Natural History, oppose Plaintiffs' motion. This ruling is needed now so as to define the limits of discovery in this citation proceeding. This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1.

I. Background

  On July 31, 2001, Plaintiffs brought a personal injury suit against Iran, The Iranian Ministry of Information and Security, Ayatolla Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani (collectively "Defendants") in the courts of the United States. Campuzano, et al. v. Islamic Republic of Iran, et al., 281 F. Supp. 2d 258, 260-61 (D.D.C. 2003). Jurisdiction over these claims was based on the FSIA. Id. at 260, 270-71. On September 10, 2003, the United States District Court for the District of Columbia entered judgments on behalf of Plaintiffs against Defendants. Id. at 279.

  Attempting to enforce their judgment against Defendant Iran, Plaintiffs seek execution or attachment of various collections of Persian artifacts currently in the possession of Citation Respondents.*fn1 Persian artifacts in Citation Respondents' possession include, but are not limited to, collections of ancient Persian seal impressions and cuneiform writings found on clay tablets and tablet fragments known as the Persepolis Fortification Texts and the Chogha Mish collection. The Persepolis Fortification Texts and the Chogha Mish collection were loaned to Citation Respondents, in the 1930s and 1960s respectively, to study for philological and archeological purposes with the understanding that the collections would be returned to Iran when Citation Respondents' studies were complete. Citation Respondents have argued all along that Plaintiffs cannot attach the Persian collections, nor demand discovery based on the collections, until they demonstrate that a commercial activity exception to Section 1609 of the FSIA applies. Initially, Plaintiffs appeared to agree with Citation Respondents and demanded in-depth discovery from Citation Respondents in an effort to determine whether the collections in Citation Respondents' possession were being used for commercial activities. Citation Respondents resisted and, on November 30, 2004, this Court rejected Plaintiffs' discovery demands. In short, this Court held that, under Section 1610(a) of the FSIA, Plaintiffs were not entitled to additional discovery from Citation Respondent University of Chicago because the existence of a commercial activity exception to Section 1609 depends upon the actions of the foreign state, Iran, and not the actions of Citation Respondents. Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108, 1111-13 (N.D. Ill. 2004). Significantly, Iran has not been shown to have engaged in commercial activity as to the items in question. On March 18, 2005, Judge Manning overruled Plaintiffs' objections to this Court's ruling. Refusing to be deterred, on August 19, 2005, Plaintiffs shifted their focus from Section 1610(a)'s commercial activity exception to Section 1609's immunity from attachment provision and moved this Court to find that Citation Respondents lack standing to raise Iran's Section 1609 immunity arguments. (Pls.' Mot. Part. Summ. J. at 4.) Iran has been given notice of these proceedings but has not appeared. II. Discussion

  A. Plaintiffs' Motion For Partial Summary Judgment is Appropriate and Not Time Barred.

  Plaintiffs move for partial summary judgment establishing that as a matter of law no party other than Iran may raise Iran's Section 1609 immunity defenses. Citation Respondents argue that Plaintiffs' motion for partial summary judgment is procedurally improper and that Plaintiffs waited too long to raise the issue of standing. Specifically, Citation Respondents argue that (1) the courts of the Northern District of Illinois do not issue partial summary judgments, especially where no claims have been filed against the nonmovant, and (2) Plaintiffs waived their standing arguments by not raising them sooner. (Field Br. at 14; Univ. Chicago Br. at 12-13.)

  Partial summary judgment, per Rule 56(d), provides for the situation when judgment is not rendered upon the entire case, but only a potion thereof. Fed.R.Civ.P. 56(d). A motion for partial summary judgment that partitions a single claim for relief into constituent parts and then seeks partial summary judgment on some but not all of the constituent parts is not permitted. Capitol Records, Inc. v. Progress Record Distr., Inc., 106 F.R.D. 25, 28 (N.D. Ill. 1985). Where a party seeks judgment on a complete affirmative defense, however, courts in the Northern District of Illinois routinely entertain motions for partial summary judgment. Wildey v. Springs, No. 92 C 8146, 1993 WL 350195, at *1 (N.D. Ill. Sept. 7, 1993). See also Fidelity Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat'l Title Ins. Co., No. 00 C 5658, 2002 WL 1466806, at *12 (N.D. Ill. July 8, 2002); LCI Intern. Telecom Corp., Inc. v. Am. Teletronics Long Distance, Inc., 978 F. Supp. 799, 802 (N.D. Ill. 1997). Courts in this district have explained Rule 56(d) as follows: Although . . . commonly referred to as a "partial summary judgment," it is really no more than a pretrial adjudication, interlocutory in character, specifying certain issues to be "deemed established" for trial. 6 J. Moore & J. Wicker, Moore's Federal Practice ¶ 56.20 (2ed. 1948). Its purpose is to "salvage some results from the judicial effort involved in the denial of a motion for summary judgment," and to "frame and narrow the triable issues if the court finds that such an order would be helpful to the progress of the litigation."

 Wildey, 1993 WL 350195 at *1 (quoting Lovejoy Elecs., Inc. v. O'Berto, 616 F. Supp. 1464, 1473 (N.D. Ill. 1985)). Because Plaintiffs' motion addresses a complete affirmative defense raised by Citation Respondents as a matter of law and does not attempt to partition a single claim for relief into constituent parts, and because resolution of Plaintiffs' motion promotes judicial economy, the Court will rule on the merits of the motion.

  Plaintiffs did not waive their right to challenge Citation Respondents' standing to raise Section 1609 and 1610 immunity arguments. As an initial matter, standing is jurisdictional and not subject to waiver, Lewis v. Casey, 518 U.S. 343, 349 n. 1 (1996); Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir. 2000). Next, Plaintiffs did not wait too long to raise their standing challenge, as the parties are still in the early stages of litigation. Compare Robinson v. Gov't of Malaysia, 269 F.3d 133, 146 (2d Cir. 2001) (refusing to entertain arguments raised for first time on appeal). To date, the parties have litigated a few discovery matters and this Court issued a ruling interpreting Section 1610(a) as it appeared to relate to the scope of discovery in this case, but that is all. Furthermore, when Judge Manning overruled Plaintiffs' objections to this Court's ruling interpreting Section 1610(a), she explicitly stated that this Court's decision on a discovery issue would not necessarily be the law of this case when it came time to rule on a merits argument. Rubin v. Islamic Republic of Iran, No. 03 C 9370, 2005 WL 783057, at *1 (N.D. Ill. Mar. 18, 2005). Plaintiffs' motion for partial summary judgment now before the Court is just such a merits argument. Finally, Plaintiffs' motion is certainly not estopped as it pertains to Citation Respondent Field Museum, as the Field Museum received their notice of citation to discover assets in March 2005 and have only recently appeared in this case. In short, due to both jurisdictional concerns and the manner in which litigation in this case has proceeded, addressing the standing issue now before the Court is required under the Constitution and is not unduly prejudicial or unfair. Accordingly, Plaintiffs are not barred from filing the motion now before the Court.

  B. Sections 1609 and 1610 of the FSIA

  Attempting to enforce their judgment against Iran, Plaintiffs seek to attach property of Iran currently in Citation Respondents' possession. Under Rule 69 of the Federal Rules of Civil Procedure, proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, except that any statute of the United States governs to the extent that it is applicable. Fed.R.Civ.P. 69(a). The FSIA is an applicable statute of the United States and is the jurisdictional basis for Plaintiffs' original action. Campuzano, 281 F. Supp. 2d at 270-72. Sections 1609 through 1611 of the FSIA deal explicitly with attachment of property in the United States of a foreign state. Sections 1609 and 1610(a)(1) read:
Section 1609. Immunity from attachment and execution of property of a foreign state
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter.
Section 1610. Exceptions to the immunity from attachment or execution
(a) The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if —
(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver. . . .
28 U.S.C. §§ 1609-10. The parties disagree on how to interpret and apply these sections of the FSIA. Plaintiffs claim that only Iran has standing to raise Section 1609 immunity defenses to protect its property because Section 1609 is an affirmative defense personal to Iran. Citation Respondents argue that foreign sovereign immunity in the attachment context is not an affirmative defense and that the Court's subject matter jurisdiction over the property in issue requires the Court to apply Section 1609 regardless of who raises the issue of foreign sovereign immunity. No court in this circuit has addressed the issue of standing under Section 1609 of the FSIA.

  1. Summary Judgment Standard

  Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sinkler v. Midwest Prop. Mgmt. Ltd. P'ship, 209 F.3d 678, 683 (7th Cir. 2000). On summary judgment, the Court must view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992). If taking the record in its entirety cannot lead a rational trier of fact to find for ...


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