District Judge George B. Daniels, of the United *

States District Court for the Southern District of New York,

sitting by designation. 

1

09-0318-cv

Freund v. SNCF

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 7 day of September, two thousand ten. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 Circuit Judge,

10 GEORGE B. DANIELS,

11 District Judge.*

12

13 - - - - - - - - - - - - - - - - - - - -x

14

15 MATHILDE FREUND, LEO BRETHOLZ, FREDDIE 

16 KNOLLER, KURT SCHAECHTER, RAYMOND BONI, 

17 PIERRE CHANOVER, ABRAHAM DRESDNER, 

18 MARGOT FEIGENBAUM, SOLOMON HECHT, 

19 GINETTE KALISH, BEATRICE KARP, MAURICE

20 KORNBERG, RUDOLPH LOEBEL, REGINA LOEBEL,

21 RAYMOND MAGER, BERTHE BANIA PALUMBO, 
2

1 SUSAN PHILLIP, INGEBORG PRICE, 

2 MARGUERITE ELIAS QUDDUS, SUZANNE RINGEL,

3 SUZANNE RAPPOPORT RIPTON, VERA 

4 REICHMAN, COLETTE RORLS-THOMASSIN, 

5 MAURICE SALCFAS, LILIANE SCHIMKOVITZ, 

6 JACOB HECHT, on behalf of themselves and

7 all others similarly situated,

8

9 Plaintiffs-Appellants,

10

11 - v.- No. 09-0318-cv

12

13 SOCIÉTÉ NATIONALE DES CHEMINS DE FER 

14 FRANÇAIS,

15

16 Defendant-Appellee,

17

18 REPUBLIC OF FRANCE and CAISSE DES 

19 DÉPÔTS ET CONSIGNATIONS,

20

21 Defendants.

22

23 - - - - - - - - - - - - - - - - - - - -x

24

25 FOR APPELLANTS: Isaac Lidsky, Akin Gump Strauss

26 Hauer & Feld, London, United Kingdom

27 (Harriet Tamen, Law Offices of

28 Harriet Tamen, New York, NY; Stephen

29 T. Rodd, Abbey Spanier Rodd &

30 Abrams, LLP, New York, NY; Professor

31 Lucille A. Roussin, New York, NY;

32 Professor Malvina Halberstam,

33 Benjamin N. Cardozo School of Law,

34 New York, NY; William H. Davidson,

35 New York, NY, on the brief).

36

37 FOR APPELLEE: Professor Andreas S. Lowenfeld

38 (Professor Linda J. Silberman, on

39 the brief), New York University

40 School of Law, New York, NY.

41

42 FOR AMICUS CURIAE: Professor Jordan J. Paust,

43 University of Houston Law Center,

44 Houston, TX, for Amicus Curiae The

45 Human Rights Committee of the
3

1 American Branch of the International

2 Law Association.

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5 AND DECREED that the judgment of the district court be

6 AFFIRMED. 

7

8 Plaintiffs, a putative class of Holocaust survivors and

9 the heirs and beneficiaries of Holocaust survivors and

10 victims, appeal from the judgment of the United States

11 District Court for the Southern District of New York

12 (Sullivan, J.), which dismissed their claims relating to the

13 spoliation of personal property during forced railroad

14 deportations to holding camps in France and Nazi

15 concentration camps. Plaintiffs brought suit against the

16 Republic of France; the French national depository, Caisse

17 des Dépôts et Consignations (“CDC”); and the French national

18 railway, Société Nationale des Chemins de Fer Français

19 (“SNCF”). The district court granted the motions filed by

20 each of the three defendants seeking dismissal, inter alia,

21 for lack of subject matter jurisdiction under the Foreign

22 Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602

23 et seq. Plaintiffs appeal only as to the dismissal of their

24 claims against SNCF. We assume the parties’ familiarity

25 with the underlying facts, the procedural history, and the

26 issues presented for review. 

27

28 “The standard of review applicable to district court

29 decisions regarding subject matter jurisdiction under the

30 FSIA is clear error for factual findings and de novo for

31 legal conclusions.” Robinson v. Gov’t of Malay., 269 F.3d

32 133, 138 (2d Cir. 2001). Under the FSIA, “[o]nce the

33 defendant presents a prima facie case that it is a foreign

34 sovereign, the plaintiff has the burden of going forward

35 with evidence showing that, under exceptions to the FSIA,

36 immunity should not be granted, although the ultimate burden

37 of persuasion remains with the alleged foreign sovereign.” 

38 Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016

39 (2d Cir. 1993). 

40

41 It is not necessary in this case to track the shift of

42 burdens or to assess the sufficiency of evidence because (i)

43 SNCF’s motion to dismiss asserts foreign sovereign immunity;

44 (ii) the only exception at issue is the takings exception,

45 28 U.S.C. § 1605(a)(3); and (iii) the complaint itself

46 alleges a sequence of events that runs counter to any

47 inference that the stolen “property or any property
4

1 exchanged for such property is owned or operated by” SNCF--

2 as required by the takings exception in the context of this

3 litigation, id.; see also Garb v. Republic of Pol., 440 F.3d

4 579, 581 (2d Cir. 2006). 

5

6 In the complaint, the term “Defendants” encompasses

7 France, the CDC, and SNCF. See Compl. ¶ 1. There is no

8 specific allegation that SNCF itself currently possesses the

9 stolen property or any derivative property. The complaint

10 alleges that SNCF seized the property without alleging that

11 SNCF (as opposed to France or the CDC or even Germany)

12 retained the property, or any derivative property:

13

14 • “SNCF took the suitcases and other valuables,

15 telling the victims that the Property would be

16 returned to them. It was not.” Compl. ¶ 18. 

17

18 • “During the War, Defendants, by their own conduct

19 individually took, and in concert with each other,

20 aided and abetted and conspired to take, the

21 Property of Plaintiffs, in violation of

22 international law, both customary and treaty, by

23 taking Property on a discriminatory basis, for no

24 public purpose and without just compensation.” 

25 Compl. ¶ 68.

26

27 • “The Defendants have failed to return Property to

28 their rightful owners and have intentionally and

29 wrongfully concealed from the Plaintiffs

30 information about the Property and the value and

31 profits derived theref[rom].” Compl. ¶ 77. 

32

33 See also Compl. ¶¶ 27, 30-31, 33-36, 38-39, 41-43, 45-46,

34 48-50. 

35

36 The only allegation that references retention of the

37 stolen property (or proceeds) is pleaded in the collective,

38 merging the roles of the original defendants in the taking

39 and retention of the property:

40

41 Defendants have willfully and wrongfully taken,

42 retained and converted the Property and its

43 derivative profits into their own property, and

44 Defendants’ exercise of the rights of ownership

45 and control over the Property were and are

46 inconsistent with Plaintiffs’ rights, were and are
5

1 without authorization, and such acts constitute a

2 conversion. 

3

4 Compl. ¶ 73. Such collective pleading generally is

5 unremarkable; but here the complaint itself runs counter to

6 the possibility that the stolen property (or any derivative

7 property) remains lodged with SNCF:

8

9 The CDC was the depository for most of the funds

10 spoliated from the Jews and other detainees in the

11 holding camps. The CDC was also the recipient of

12 funds, both during and after the War, arising from

13 the sales and auctions of Jewish Property.

14

15 Compl. ¶ 20 (emphasis added); see also id. ¶ 22. 

16

17 Plaintiffs’ briefing argues that among various

18 contingencies--loss, destruction, sale, or retention of the

19 stolen property--“the most plausible explanation is that

20 SNCF still has the Property.” But this argument contradicts

21 the thrust of Plaintiffs’ complaint and ignores the roles

22 alleged to have been played by France and the CDC. 

23

24 In reviewing the denial of jurisdictional discovery, we

25 consider only whether remand is warranted for jurisdictional

26 discovery as against SNCF. (No appeal is taken from the

27 dismissal of the claims against France and the CDC.) Since,

28 as we conclude above, the claims against SNCF are defeated

29 on the pleadings, we decline to order jurisdictional

30 discovery. 

31

32 Plaintiffs forfeited their request for leave to

33 replead. Plaintiffs did not make that request until their

34 appellate reply brief. “We generally do not consider issues

35 raised in a reply brief for the first time because if an

36 appellant raises a new argument in a reply brief an appellee

37 may not have an adequate opportunity to respond to it.” In

38 re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006) (internal

39 quotation marks and citations omitted).

40

41 For the foregoing reasons, we AFFIRM the judgment of

42 the district court on the ground that SNCF’s foreign

43 sovereign immunity deprived the federal courts of subject

44 matter jurisdiction over this action. We need not, and do

45 not, reach the international comity considerations on which

46 the district court alternatively relied, or any of the other
6

1 issues presented on appeal or raised in the district court

2 proceedings. 

3 

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

8 ___________________