May 23, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 C 868 - Samuel
Wood, Chief Judge, and Bauer and Scudder, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
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
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.
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).
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.
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.
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.
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.
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 ...