### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3487

P AUL C HAIM S HLOMO F ISCHER

, et al

., Plaintiffs

‐ Appellants

,

v.

M AGYAR Á LLAMVASUTAK Z RT

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 868

— Samuel Der

‐ Yeghiayan

, Judge

.

____________________

A RGUED M AY 23, 2018

— D ECIDED J UNE 13, 2018

____________________

Before W OOD

, Chief Judge

, and B AUER and S CUDDER

, Circuit

Judges

.

S CUDDER

, Circuit Judge

. 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 the2 No. 17

‐ 3487

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.

I

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 Mag

‐

yar Államvasutak Zrt., transported him and up to 500,000

other Jews from Hungary to Auschwitz and other concentra

‐

tion 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 ex

‐ perienced by Hungarian Jews forcibly transported to concen

‐

tration camps by the national railway.

In 2012, the court concluded that the plaintiffs, including

Fischer, had neither exhausted remedies that may be availableNo. 17

‐ 3487 3

in Hungary nor established that the national railway is en

‐ gaged in commercial activity in the United States—require

‐

ments necessary to support the district court’s exercise of sub

‐ ject matter jurisdiction under the FSIA’s expropriation excep

‐

tion. 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 pu

‐

tative class defined in the amended complaint, filed her own

complaint against the Hungarian national railway in Buda

‐ pest’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 fa

‐

ther, mother, and eight siblings.

In October 2016, the Hungarian court issued a written de

‐

cision dismissing Kellner’s case. The court determined that4 No. 17

‐ 3487

Hungarian law required Kellner to support her claim to re

‐

cover for any losses of personal property with evidence inde

‐ pendent of her own testimony (for example, documentary ev

‐

idence 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 Hungar

‐

ian 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 mo

‐

tion urged, demonstrated that “Ms. Kellner’s efforts on behalf

of herself and other plaintiffs herein, to obtain remedies be

‐

fore 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 case and lacks any

standing to reopen this case.No. 17

‐ 3487 5

Neither party to the proceeding below asked the district

court to reconsider its order. Nobody, for instance, asked the

district court to treat the motion to reinstate as being filed not

by Kellner (as a putative class member), but instead by Fischer

(as a named plaintiff). Such a request would have been rea

‐

sonable, as the motion to reinstate could have been viewed as

coming from Fischer. Regardless, the record is clear that the

district court, right or wrong, treated the motion as coming

from Kellner, and Fischer did not seek reconsideration of that

decision. See Dietz v. Bouldin

, 136 S. Ct. 1885, 1891–92 (2016)

(explaining that “the Court has recognized that a dis

‐

trict court ordinarily has the power to modify or rescind its

orders at any point prior to final judgment in a civil case”).

Foregoing a path of reconsideration, Fischer—not

Kellner—then chose to notice this appeal and seek our review

of the district court’s order. Briefing ensued with Fischer and

the Hungarian national railway focused, first, on whether the

district court properly found that Kellner filed the motion

and, second, whether Kellner experienced any unreasonable

or arbitrary frustration of her attempt to pursue remedies in

Hungary. Concerned that appellate jurisdiction may be lack

‐ ing, we then sought supplemental briefing on whether the

district court had entered a final decision within the meaning

of 28 U.S.C. § 1291 and, more specifically, whether the district

court’s order denying the motion to reinstate constituted a

“clear legal bar” to the revival of the claims brought against

the Hungarian national railway. Chessie Logistics Co. v. Krinos

Holdings, Inc.

, 867 F.3d 852, 856 (7th Cir. 2017).

II

We lack authority to consider Fischer’s appeal. The district

court treated the motion to reinstate as coming solely from6 No. 17

‐ 3487

Kellner. Yet it is Fischer who seeks our review. Fischer, how

‐

ever, has suffered no “adverse effect” from the denial of the

motion to reinstate on the ground that Kellner lacked stand

‐ ing, so he cannot appeal the basis for that decision. Wachovia

Securities, LLC v. Loop Corp.

, 726 F.3d 899, 907 (7th Cir. 2013)

(quoting Transamerica Ins. Co. v. South

, 125 F.3d 392, 396 (7th

Cir. 1997)); see also Cabral v. City of Evansville, Ind.

, 759 F.3d

639, 643 (7th Cir. 2014); Raley v. Hyundai Motor Co.

, 642 F.3d

1271, 1274 (10th Cir. 2011) (“After all, it is usually only parties

who are sufficiently aggrieved by a district court’s decision

that they possess Article III and prudential standing to be able

to pursue an appeal of it.”). Nothing changes if we view the

appeal before us as being filed not just by Fischer but by all

plaintiffs named in the amended complaint, for the district

court’s order applies only to Kellner who was not a named

plaintiff.

We also know of no authority permitting us to interchange

or modify the parties to an appeal without regard to the

standards for substitution in Federal Rule of Appellate Proce

‐

dure 43. And, while sympathetic to Fischer’s urgency to pros

‐

ecute what all agree are very serious claims arising out of one

of the worst atrocities in the history of humankind, we remain

a court of limited jurisdiction. We must ensure our authority

over a specific case or controversy covers the party seeking

our review. Here that essential requirement is lacking.

Even if we were to view the motion to reinstate as having

come from Fischer, appellate jurisdiction is still missing in

other necessary dimensions. The essence of Fischer’s appeal

is a plea to us to hold—on the basis of Kellner’s experience

attempting to exhaust remedies in Hungary—that any further

attempts by Fischer or another named plaintiff to exhaustNo. 17

‐ 3487 7

would be futile and thus unnecessary to a renewed effort to

establish subject matter jurisdiction (under FSIA’s expropria

‐

tion exception) in the district court over the claims in the

amended complaint. Nary a word in the district court’s brief

dismissal order addresses these broader and more complex

issues of exhaustion and subject matter jurisdiction, however,

and we cannot do so in the first instance. See Houben v. Telular

Corp.

, 231 F.3d 1066, 1070 (7th Cir. 2000) (recognizing the gen

‐

eral proposition that “[n]ormally the failure to rule on an issue

would deprive this court of jurisdiction, as we have jurisdic

‐

tion only over final judgments of the district courts, 28 U.S.C.

§ 1291, which means that all issues in the litigation must be

resolved”).

By its terms, the district court’s order denying Kellner’s

motion to reinstate contains no reference to Fischer or, for that

matter, any other plaintiff named in the amended complaint.

In no way did the district court’s summary order close the

courthouse door on Fischer or another named plaintiff. To put

the observation in jurisdictional terms, in no way has finality

been reached within the meaning of 28 U.S.C. § 1291 and Fed

‐

eral Rule of Civil Procedure 54 on the claims advanced in the

amended complaint. There is no “clear legal bar to [any]

claim’s revival” in the district court. Chessie Logistics Co.

,

867 F.3d at 856.

While this lack of finality precludes our review, it serves

in these circumstances to afford Fischer and the named plain

‐

tiffs (and any additional party properly joined under Federal

Rule of Civil Procedure 20) flexibility to determine their next

step. Our exchange during oral argument made plain that we

see nothing preventing Fischer or another named plaintiff8 No. 17

‐ 3487

from themselves pursuing remedies in Hungary or instead re

‐ turning to the district court by filing a new complaint on the

basis that Kellner’s experience pursuing relief in Hungary ap

‐ plies and extends to others so as to excuse any further indi

‐

vidualized steps to exhaust remedies. For its part, the Hun

‐ garian national railway likewise will be free to respond to and

oppose any such steps taken by a named (or newly added)

plaintiff.

In the end, it will be up to the district court to determine

whether the plaintiffs have made the showing requisite to es

‐

tablish subject matter jurisdiction. Informed by our two prior

opinions and resolution here, the district court, perhaps

among other issues, will need to consider the adequacy of ef

‐

forts to exhaust any remedies in Hungary, including whether

one individual’s efforts to exhaust can satisfy another’s obli

‐ gation, as well as whether the commercial

‐ nexus requirement

of the expropriation exception to the FSIA discussed but left

unresolved by our 2012 opinion has been demonstrated.

We therefore DISMISS Fischer’s appeal for lack of jurisdic

‐

tion.