2 2

- 1039 Honickman v. B lom Bank SAL

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 TH E NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 29 th day o f February , two thousand twenty four

. 3

4 PRESENT: 5 D ENNIS J ACOBS , 6 R ICHARD C. W ESLEY , 7 B ETH R OBINSON , 8 Circuit Judges

. 9

_________________________________________ 10

11 M ICHAL H ONICKMAN , Individually and for the Estate of 12 H OWARD G OLDSTEIN , E UGENE G OLDSTEIN , L ORRAINE 13 G OLDSTEIN , R ICHARD G OLDSTEIN , B ARBARA G OLDSTEIN 14 I NGARDIA , M ICHAEL G OLDSTEIN , C HANA F REEDMAN , 15 D AVID G OLDSTEIN , M OSES S TRAUSS , P HILIP S TRAUSS , 16 B LUMA S TRAUSS , A HRON S TRAUSS , R OISIE E NGELMAN , 17 J OSEPH S TRAUSS , T ZVI W EISS , L EIB W EISS , Individually 18 and for the Estate of M ALKA W EISS , Y ITZCHAK W EISS , 19 Y ERUCHAIM W EISS , E STHER D EUTSCH , M ATANYA 20 N ATHANSEN , Individually and for the Estate of T EHILLA 21 N ATHANSEN , C HANA N ATHANSEN , Individually and for 22 the Estate of T EHILLA N ATHANSEN , Y EHUDIT 23 N ATHANSEN , S.N., a minor
, H EZEKIAL T OPOROWITCH , 24 P EARL B. T OPOROWITCH , Y EHUDA T OPOROWITCH , D AVID 252 T OPOROWITCH , S HAINA C HAVA N ADEL , B LUMY R OM , 1 R IVKA P OLLACK , R ACHEL P OTOLSKI , O VADIA 2 T OPOROWITCH , T EHILLA G REINIMAN , Y ISRAEL 3 T OPOROWITCH , Y ITZCHAK T OPOROWITCH , H ARRY 4 L EONARD B EER , Individually and as the executor of the 5 Estate of A LAN B EER AND A NNA B EER , P HYLLIS M AISEL , 6 E STELLE C AROLL , S ARRI A NNE S INGER , J UDITH S INGER , 7 E RIC M. S INGER , R OBERT S INGER , J ULIE A VERBACH , 8 Individually and for the Estate of S TEVEN A VERBACH , 9 T AMIR A VERBACH , D EVIR A VERBACH , S EAN A VERBACH , 10 A DAM A VERBACH , M AIDA A VERBACH , Individually and 11 for the Estate of D AVID A VERBACH , M ICHAEL 12 A VERBACH , E ILEEN S APADIN , D ANIEL R OZENSTEIN , J ULIA 13 R OZENSTEIN S CHON , A LEXANDER R OZENSTEIN , E STHER 14 R OZENSTEIN , J ACOB S TEINMETZ , Individually and for the 15 Estate of A MICHAI S TEINMETZ , D EBORAH S TEINMETZ , 16 Individually and for the Estate of A MICHAI S TEINMETZ , 17 N AVA S TEINMETZ , O RIT M AYERSON , N ETANEL 18 S TEINMETZ , A NN C OULTER , for the Estate of R OBERT L. 19 C OULTER , S R ., D IANNE C OULTER M ILLER , Individually 20 and for the Estate of J ANIS R UTH C OULTER , R OBERT L 21 C OULTER , J R ., Individually and for the Estate of J ANIS 22 R UTH C OULTER , L ARRY C ARTER , Individually and as the 23 Administrator of the Estate of D IANE L ESLIE C ARTER , 24 S HAUN C HOFFEL , R ICHARD B LUTSTEIN , Individually and 25 for the Estate of B ENJAMIN B LUTSTEIN , K ATHERINE 26 B AKER , Individually and for the Estate of B ENJAMIN 27 B LUSTEIN , R EBEKAH B LUTSTEIN , N EVENKA G RITZ , 28 Individually and for the Estate of D AVID G RITZ and 29 N ORMAN G RITZ , J ACQUELINE C HAMBERS , Individually 30 and as the Administrator of the Estate of E STHER 31 B ABLAR , L EVANA C OHEN , Individually as the 32 Administrator of the Estate of Esther B ABLAR , E LI 33 C OHEN , S ARAH E LYAKIM , J OSEPH C OHEN , G RETA 34 G ELLER , as the Administrator of the Estate of H ANNAH 35 R OGEN , I LANA D ORFMAN , as the Administrator of the 36 Estate of H ANNAH R OGEN , R EPHAEL K ITSIS , as the 37 Administrator of the Estate of H ANNAH R OGEN , T OVA 38 G UTTMAN , as the Administrator of the Estate of 39 H ANNAH R OGEN , T EMIMA S PETNER , J ASON 403 K IRSCHENBAUM , I SABELLE K IRSCHENBAUM , Individually 1 and for the Estate of M ARTIN K IRSCHENBAUM , J OSHUA 2 K IRSCHENBAUM , S HOSHANA B URGETT , D AVID 3 K IRSCHENBAUM , D ANIELLE T EITELBAUM , N ETANEL 4 M ILLER , C HAYA M ILLER , A HARON M ILLER , S HANI 5 M ILLER , A DIYA M ILLER , A LTEA S TEINHERZ , J ONATHAN 6 S TEINHERZ , T EMIMA S TEINHERZ , J OSEPH G INZBERG , 7 P ETER S TEINHERZ , L AUREL S TEINHERZ , G ILA A LUF , 8 Y ITZHAK Z AHAVY , J ULIE Z AHAVY , T ZVEE Z AHAVY , 9 B ERNICE Z AHAVY , 10

11 Plaintiff s

- Appellant s , 12
13 A RIE M ILLER , 14
15 Plaintiff
, 16

17

v. No. 22

- 1039 18
19 B LOM B ANK SAL
, 20

21 Defendant

- Appellee

. 22

_________________________________________ 23

24 FOR APPELLANT S : M ICHAEL R ADINE ( Gary M. Osen, Aaron 25 Schlanger, on the brief ), Osen LLC, 26 Hackensack, NY

. 27

28 FOR APPELLEE: M ICHAEL M C G INLEY , Dechert LLP, 29 Philadelphia, PA

. 30

31 

### Appeal from a judgment of the United States District Court for the Eastern

District of New York ( Matsumoto
, J udg e ).4 

### UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the district court’s order entered on April 8,

2022 is VACATED and the case is REMANDED for further proceedings

.

Plaintiffs

- Appellants are victims and their family members of attacks

carried out by HAMAS, a group the United States has designated as a foreign

terrorist organization . In January 20 19, Plaintiffs sued Defendant

- Appellee

BLOM Bank SAL (“BLOM Bank”) for aiding and abetting HAMAS by providing

financial services to certain customers Plaintiffs allege are affiliated with

HAMAS , in violation of the Anti

- Terrorism Act, 18 U.S.C. § 2333, as amended by

the Justice Against Sponsors of Terrorism Act (“JASTA”)
, id. § 2333(d)(2)

. A year

later , t he district court dismissed Plaintiffs’ complaint for failure to state a claim

upon which relief may be granted. Honickman for Estate of Goldstein v. BLOM

Bank SAL
, 432 F. Supp. 3d 253, 271 (E.D.N.Y. 2020) (“ Honickman I ”).

On appeal, a panel of this Court concluded that the district court applied

the wrong legal standard for aiding

- and

- abetting liability under JASTA

.

Nonetheless, we affirmed the district court’s judgment because Plaintiffs’

complaint still failed to state a claim under the correct standard

. Honickman v.

BLOM Bank SAL , 6 F.4th 487, 490 (2d Cir. 2021) (“ Honickman II ”).5 

### Armed with this Court’s clarification s , Plaintiffs returned to the district

court and moved under Federal Rules of Civil Procedure 60(b)(6) and 15(a)(2) to

vacate the judgment of dismissal and grant them leave to file a first amended

complaint

. The court denied Plaintiffs’ motion in an April 2022 order
, Honickman

v. BLOM Bank SAL
, No. 19

- CV

- 0008, 2022 WL 1062315 , at * 5 ( E.D.N.Y. Apr. 8,

2022) (“ Honickman III ”)
, which Plaintiffs now appeal. We assume the parties’

familiarity with the underlying facts, procedural history, and arguments on

appeal, to which we refer only as necessary to explain our decision to vacate and

remand.

We review for abuse of discretion both a district court’s “ denial of a

motion to vacate a judgment under Rule 60(b)(6 )” and its “ denial of a post

judgment motion for leave to replead .” Mandala v. NTT Data, Inc.
, 88 F.4th 353,

359 (2d Cir. 2023). 1 

### That means “ we must affirm the denial of vacatur, unless the

ruling is based on an erroneous view of the law or on a clearly erroneous

assessment of the evidence. ” Id. Where, as here, plaintiffs “seek to file a first

amended complaint .

. . it is an abuse of discretion to deny post judgment relief

‘without any justifying reason,’ such as ‘undue delay, bad faith or dilatory

1 In quotations from case law and the parties’ briefing, this opinion omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.6 

### motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, [or] futility of amendment.’” Id. at 362

(quoting Foman v. Davis
, 371 U.S. 178, 182 (1962)).

We conclude that t he district court exceeded its discretion by basing its

ruling on an erroneous view of the law because it failed to balance Rule 60(b)’s

finality principles and Rule 15(a)’s liberal pleading principles. 2



### A plaintiff is ordinarily entitled to Rule 60(b)(6) relief “ only when there are

extraordinary circumstances justifying relief, when the judgment may work an

extreme and undue hardship, and when the asserted grounds for relief are not

recognized in clauses (1)

– (5) of the Rule .” Metzler Investment Gmbh v. Chipotle

Mexican Grill, Inc.
, 970 F.3d 133, 143 (2d Cir. 2020). But “ [w] hen vacatur is sought

in order to obtain leave to file an amended complaint, special considerations

come into play.” Mandala , 88 F.4 th at 361. In such cases, the district court must

give “due regard” to “ both the philosophy favoring finality of judgments .

. . and

the liberal amendment policy of Rule 15(a).” Id. Therefore, when presented with

2 Because “abuse of discretion,” which is a legal term of art, can apply to determinations that do not involve “ ‘ abuse’ in the ordinary sense of the word,” we use the more precise term “exceeded” to describe the same thing. JTH Tax, LLC v. Agnant , 62 F.4th 658, 666 n.1 (2d Cir. 2023)

.7 

### a motion to vacate and amend, the district court is required to consider Rule

60(b) finality and Rule 15(a) liberality in tandem.

Here, the district court evaluated Plaintiffs’ motion under only Rule 60(b)’s

standard. T he court concluded that it “would be contradictory to entertain a

motion to amend the complaint ” under Rule 15(a) without “a valid basis to

vacate the previously entered judgment ” under Rule 60(b )

. Honickman III , 2022

WL 1062315, at *2 n.2. As a result
, it incorrectly treated Plaintiffs’ motion to

vacate and amend as calling for two distinct analyses, requiring Plaintiffs to

successfully navigate Rule 60(b)’s finality gauntlet before they could invoke Rule

15(a)’s liberal repleading policy

. The district court’s framework for analyzing

Plaintiffs’ motion was erro neous as a matter of law.

We accordingly vacate the district court’s order and remand the case for

the court to reconsider Plaintiffs’ motion applying the above standards. In doing

so, the district court should balance Rule 60(b)’s finality and Rule 15(a)’s liberal

amendment policies
, and it should examine all the “special considerations [that]

come into play” “[ w ] hen vacatur is sought in order to obtain leave to file an

amended complaint.” Mandala , 88 F.4th at 361. Our discussion of the various8 

### considerations in Mandala will be particularly helpful to the district court’s

analysis. Id . at 361

– 65.

For the foregoing reasons, the District Court ’s order is VACATED , and the

case is REMANDED for further proceedings consistent with this summary

order

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court