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Rubin v. Islamic Republic of Iran

United States District Court, N.D. Illinois, Eastern Division

March 27, 2014

JENNY RUBIN, DEBORAH RUBIN, DANIEL MILLER, ABRAHAM MENDELSON, STUART E HERSCH, RENAY FRYM, NOAM ROZENMAN, ELENA ROZENMAN, TZVI ROSENMAN, Plaintiffs,
v.
THE ISLAMIC REPUBLIC OF IRAN, THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, AYATOLLAH ALI HOSEINI KHAMENEI, ALI AKBAR HASHEMI-RAFSANJANI, ALI FALLAHIAN-KHUZESTANI, Defendants. THE UNIVERSITY OF CHICAGO, THE FIELD MUSEUM OF NATURAL HISTORY, Citation Respondents

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For Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E Hersch, Renay Frym, Noam Rozenman, Elena Rozenman, Tzvi Rozenman, Plaintiffs: David J. Strachman, LEAD ATTORNEY, Robert S. Parker, McIntyre, Tate, Lynch & Holt, Providence, RI; Daniel A. Shmikler, Matthew H Rice, Robert David Cheifetz, Sperling & Slater PC, Chicago, IL; David Julian Cook, PRO HAC VICE, Cook Collection Attorneys, PLC, San Francisco, CA.

For The Islamic Republic of Iran, Defendant: Thomas Joseph Wiegand, LEAD ATTORNEY, MoloLamken LLP, Chicago, IL; Emily Sarah Deininger, Molo Lamken LLP, New York, NY; Jeffrey A. Lamken, PRO HAC VICE, Molo Lamken Llp, Washington, DC; Laina C. Wilk, Thomas G. Corcoran, Berliner, Corcoran & Rowe, LLP, Washington, DC.

For University of Chicago, Gil Stein, Respondents: Thomas Anthony Doyle, LEAD ATTORNEY, Matthew G. Allison, Baker & McKenzie LLP (Chicago), Chicago, IL.

For Deborah D. Peterson, Attorneys for Plaintiffs Deborah D. Peterson et al. in Case No. 108cv1592, Intervenor Plaintiff: Austin William Bartlett, James Francis Murphy, Adler Murphy & McQuillen LLP, Chicago, IL; David Julian Cook, PRO HAC VICE, Cook Collection Attorneys, PLC, San Francisco, CA; Thomas Fortune Fay, PRO HAC VICE, Fay Law, PA, Washington, DC.

For The National Iranian-American Council, Amicus: Daniel O. Herrera, Cafferty Clobes Meriwether & Sprengel LLP, Chicago, IL.

For United States of America, Movant: United States Attorney's Office, LEAD ATTORNEY, Chicago, IL; Lesley R. Farby, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, Washington, DC; Lynn Lee, PRO HAC VICE, U.S. Department of Justice, Civil Division, Federal Programs, Washington, DC; Rupa Bhattacharyya, United States Department of Justice, Federal Programs Branch, Washington, DC.

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MEMORANDUM OPINION AND ORDER

Robert W. Gettleman, United States District Judge.

In this action, plaintiffs seek to attach and execute on numerous ancient Persian artifacts in the possession of the University of Chicago and the Field Museum of Natural History (" the Museums" ) to satisfy a default judgment entered against the Islamic Republic of Iran (" Iran" ).[1] Both the Museums and Iran (collectively, " defendants" )

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have moved for summary judgment, asserting that the artifacts are not subject to attachment under any of the statutes cited by plaintiffs. For the reasons described below, the defendants' motions for summary judgment are granted.

BACKGROUND[2]

The facts of this case have been described in previous district court and appellate opinions, see Rubin v. The Islamic Republic of Iran, 637 F.3d 783, 786 (7th Cir. 2011),[3] and the court will not rehash those facts in detail here. In short, on September 4, 1997, Hamas carried out a horrific triple suicide bombing in Jerusalem that killed five individuals and wounded 200. Plaintiffs are American citizens who were either wounded or suffered severe emotional and loss-of-companionship injuries as a result of the attack. Plaintiffs sued Iran in the federal district court in Washington, D.C., alleging that Iran was responsible for the bombings as a result of the training and support it had provided to Hamas, and obtained a $71.5 million default judgment. Plaintiffs now seek to collect on that judgment by attaching alleged assets of Iran located within the United States. The assets relevant to this case are a number of collections of artifacts [4] currently in the possession of the Museums.

The Persepolis and Chogha Mish Collections are in the possession of the University of Chicago. Both belong to the National Museum of Iran and are on long-term loan to the University of Chicago's Oriental Institute (" the Institute" ) for scholarly study.

The Chogha Mish Collection consists of a small number of clay seal impressions recovered from excavations in Iran in the 1960s. Iran loaned the Chogha Mish Collection to the Institute for the purpose of academic study in the 1960s, and most of the collection was returned in 1970. In 1982, Iran informed the Institute that some items in the collection were missing. The Institute agreed to search for and return any inadvertently retained artifacts. In 1983, Iran filed a claim in the Iran-U.S. Claims Tribunal (" the Tribunal" ) seeking the return of the missing objects. Since the claim was filed, the Institute has located some of the missing objects, but has not returned those objects due to the citation entered in this case on May 20, 2004.[5]

The Persepolis Collection consists of approximately 30,000 clay tablets and fragments in the possession of the Institute. In 1937, Iran agreed to loan the Persepolis Collection to the Institute to be read and translated. The terms of the agreement allowed the Institute to retain 500 bricks upon completion of the deciphering operation, with the remaining 29,500 bricks to

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be returned to Iran. Over the years, Iran has made numerous inquiries into the timeline for the return of the bricks. Most recently, in 2004, the Institute entered into an agreement with Iran to return 300 tablets and to deliver the remainder to Iran " gradually and soon."

The Museums allege that the remaining artifacts of Iranian origin are the property of the Museums, while plaintiffs argue that they are the property of Iran. The Herzfeld Collection is a collection of roughly 1,200 prehistoric Persian artifacts purchased by the Field Museum in 1945 from Dr. Ernst Herzfeld, a German archeologist who worked in Persia from 1905 to 1936. The Field Museum purchased the collection in April 1945 for $7,300. The Field Museum subsequently sold part of the collection to the Institute in 1945, but took back six pieces in December 1946. Plaintiffs allege that Herzfeld is widely believed to have removed antiquities from Iran without the permission of Persian officials, and that he failed to provide evidence of his right to own and possess the items. Because of the lack of provenance of the items, plaintiffs argue that the Herzfeld Collection remains the property of Iran.

The remaining artifacts are small collections that the Museum defendants refer to collectively as " the OI collection." [6] The Institute states these items were acquired through a division of joint excavation finds with Iran or as gifts from third parties, and claims that the Institute owns the items. Plaintiffs claim that the items were improperly removed from Iran and remain Iranian property.

Defendants have each moved for summary judgment, arguing that no legal mechanism exists that would permit the attachment of these antiquities. Iran seeks summary judgment with regard to the Persepolis Collection and the Chogha Mish Collection. The Museums seek summary judgment with respect to the Herzfeld Collection and the OI Collection. Specifically, defendants argue that there is no basis for plaintiffs to attach the artifacts under the exceptions to the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1602 et seq., or the Terrorism Risk Prevention Act, 28 U.S.C. § 1610 note.

DISCUSSION

I. Standard

A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show that there is no

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genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed.R.Civ.P. 56(c); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Green v. Carlson, 826 F.2d 647, 650 (7th Cir. 1987) (" [W]hen considering the qualified immunity issue on a motion for summary judgment, a district court should consider all of the undisputed evidence in the record, read in the light most favorable to the non-movant." ); Fisher v. Transco Services-Milwaukee Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).

A genuine issue of material fact exists when " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). The nonmoving party must, however, do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The mere existence of a scintilla of evidence in support of the [nonmoving party's] position ...


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