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Fischer v. Zrt

United States Court of Appeals, Seventh Circuit

June 13, 2018

Paul Chaim Shlomo Fischer, et al., Plaintiffs-Appellants,
Magyar Államvasutak Zrt., Defendant-Appellee.

          Argued May 23, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 868 - Samuel Der-Yeghiayan, Judge.

          Before Wood, Chief Judge, and Bauer and Scudder, Circuit Judges.


         Paul Chaim Shlomo Fischer appeals an order denying a motion to reopen an action he and other Hungarian Jews brought against an instrumentality of the Hungarian government, the national railway, under an exception to the Foreign Sovereign Immunities Act for harms suffered during the Holocaust. Although Fischer seeks our review of the district court's order, he is not the individual the district court treated as filing the motion leading to the order. The district court read the motion as coming from Iren Gittel Kellner, a putative member of the class Fischer sought to have certified in the action previously ordered dismissed without prejudice to permit an exhaustion of any remedies available in Hungary. Indeed, the district court denied the motion on this precise and limited basis-Kellner's lack of "standing" to seek to reopen an action in which a class never was certified. In these circumstances, this court, too, faces an insurmountable barrier: we lack authority to consider an appeal from a party not subject to the order sought to be challenged.


         This litigation began in 2010, and now makes its third visit to our court. In 2012, the court issued multiple opinions ad- dressing aspects of claims that Hungarian survivors of the Holocaust brought in the Northern District of Illinois against several Hungarian banks and the Hungarian national railway. Relevant here is the class-action complaint Fischer and twenty other individuals filed against the Hungarian national rail- way. Fischer alleged that in 1944 the railway, known as Magyar Államvasutak Zrt., transported him and up to 500, 000 other Jews from Hungary to Auschwitz and other concentration camps. In terms jarring and difficult to read, Fischer's complaint recounted allegations of horrific personal harm and losses of valuable and treasured personal possessions experienced by Hungarian Jews forcibly transported to concentration camps by the national railway.

         In 2012, the court concluded that the plaintiffs, including Fischer, had neither exhausted remedies that may be available in Hungary nor established that the national railway is engaged in commercial activity in the United States-requirements necessary to support the district court's exercise of subject matter jurisdiction under the FSIA's expropriation exception. Our 2012 opinion explained these requirements in much detail. See Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 671, 678-86, 694-95 (7th Cir. 2012).

         This court reached the same conclusion three years later, holding that the district court (on remand from our first opinion) committed no error in determining that the plaintiffs had failed to offer a compelling reason for foregoing the pursuit of remedies in Hungary. See Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847, 859-66 (7th Cir. 2015). Our 2015 opinion also took care to qualify the bounds of the exhaustion mandate: "If plaintiffs attempt to bring suit in Hungary and are blocked arbitrarily or unreasonably, United States courts could once again be open to these claims against the national railway and bank." Id. at 865-66.

         In February 2016, Iren Gittel Kellner, a member of the putative class defined in the amended complaint, filed her own complaint against the Hungarian national railway in Budapest's Capital Regional Court. She sought to recover for losses of personal property, including religious articles, currency and clothing, and family photographs, as well as for other harm (resulting from the intentional infliction of emotional distress and false imprisonment) experienced while traveling to Auschwitz in an overcrowded national railcar with her father, mother, and eight siblings.

         In October 2016, the Hungarian court issued a written decision dismissing Kellner's case. The court determined that Hungarian law required Kellner to support her claim to re- cover for any losses of personal property with evidence independent of her own testimony (for example, documentary evidence of some kind). As for Kellner's claim for damages for personal injuries, the Hungarian court concluded that any Holocaust-related claim for noneconomic damages based upon events alleged to have occurred before March 1978 was not cognizable under the applicable provision of the Hungarian Civil Code.

         What transpired next gave rise to this appeal. In June 2017, the district court received a three-page motion styled "Motion to Reinstate." While purportedly brought by the "Plaintiff, " the motion sought reinstatement of the previously dismissed amended complaint on the basis of "class member" Kellner's efforts to exhaust remedies in Hungary. Those efforts, the motion urged, demonstrated that "Ms. Kellner's efforts on behalf of herself and other plaintiffs herein, to obtain remedies before Hungarian courts have been 'frustrated unreasonably or arbitrarily, '" within the meaning of the standard articulated in our 2015 opinion. See Fischer, 777 F.3d at 852.

         The district court treated the motion as filed by Kellner and issued a summary order declining to reinstate the com- plaint. The court's reasoning was clear and limited:

[A]lthough there was a proposed class in this case and Kellner may have been a putative class member, Kellner is not a "class member" as she claims in her motion. No class was certified in this case. Kellner was not and is not a named party in this ...

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