UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) SHERYL WULTZ, et al., ) ) Plaintiffs, ) ) v. ) 08-cv-1460 (RCL) ) ISLAMIC REPUBLIC OF IRAN, et al., ) ) Defendants. ) )

MEMORANDUM “The standard for granting a leave to file a surreply is whether the party making the motion would be unable to contest matters presen ted to the court for the first time in the opposing party’s reply.” Lewis v. Rumsfeld , 154 F. Supp. 2d 56 (D.D.C. 2001); see also BenKotel v. Howard Univ. , 319 F.3d 532, 536 (D.C. Cir. 2003). Plai ntiffs seek leave to file a surreply to BOC’s reply to plaintiffs’ opposition to the Bank of China’s (BOC) motion to dismiss. Pls.’ Mot. for Leave to Fi le Br. Surreply, Sept. 29, 2009, ECF No. 53. Plaintiffs allege that BOC raised new issues in its reply: imprope r venue under 18 U.S.C. § 2334(a), inapplicability of Is raeli Civil Wrongs Ordinance § 13(a), and implications that plaintiffs misled the Court by fa iling to provide a translation of a particular Israeli Supreme
Court case. Id. ; Reply in Further Supp. of Pls.’ Mot fo r Leave to File Br. Surreply, Oct. 5, 2009, ECF No. 57. BOC retorts that the “contention is wrong” that BOC raised the issue of venue for the first time in its reply; that the declarati on submitted by Kenneth Mann in BOC’s reply, which plaintiffs’ allege added a new argument concerning facial inapp licability, did not raise any new argument; and that the two-month delay in procur ing a translation of th e Israeli Supreme Court2 case renders plaintiffs’ motion unt imely. Def. BOC’s Opp’n to Pls.’ Mot for Leave to File Br. Surreply, Oct. 2, 2009, ECF No. 55. The Court agrees with plaintiffs and disagrees with BOC on all points. First, BOC raised the issue of venue for the fi rst time in its reply. BOC’s contention that “[t]his contention is wrong,” id. at 2, is, for lack of a better word, wrong. The only mention of the word “venue” in BOC’s 45-page motion to dismiss is in a footnote pondering why “[p]laintiffs and their counsel may have chosen th is forum.” Def. BOC’s Mot. to Dismiss the 1st Am. Compl. 16 n.6, Mar. 5, 2009, ECF No. 15 [hereina fter BOC’s Mot.]. BOC posits that the reason must have been “because of their focus on the defendants who are foreign state and foreign government officials . . . and the venue provision specifying that for a civil action ‘brought against a foreign state or political subdivision thereof,’ th is District is the appropriate
venue.” Id. (quoting 28 U.S.C. § 1391(f)(4)). Indee d, that section, along with “the rules of pendent venue,” are what plaintiffs plead as the basis for the proprie ty of venue in this district. 1st Am. Compl. ¶ 4, Jan. 13, 2009, ECF No. 12. Bu t nowhere in its motion to dismiss does BOC contest the propriety of venue, either under § 233 4(a) or any other theo ry. BOC’s reply, which devotes several pages to the subject, is the firs t document in which BOC makes any allegations as to the impropriety of venue. Reply Mem. of P. & A. in Support of Def. BOC’s Mot. 4–9, July 24, 2009, ECF No. 42 [hereinafter BOC’s Reply]. Accordingly, plaintiffs will be permitted to file their surreply to re spond to this new issue. Second, BOC also raised the issue of facial in applicability of § 13(a) of the Israeli Penal Law for the first time in a declaration submitted with its reply. Dr. Kenneth Mann, BOC’s expert on Israeli law, declared that any civil action for violation of § 63 of Israel’s Civil Wrongs Ordinance could not be based on § 13(a) of Israel’s Penal Law; it would instead have to be based3 on § 13(b). Mann Decl. ¶¶ 11–13, July 24, 2009, ECF No. 42-1. Dr. Mann declares in detail his analysis of why § 13(a) does not apply, id. , building on the previously submitted declaration of Peter Gad Naschitz, who merely declared withou t additional discussion th at § 13(a) is “not applicable to this case,” Naschitz Decl . ¶ 20, Mar. 1, 2009, ECF No. 15-14. Because BOC developed this argument for the first time in its reply, plaintiffs will be permitted to file their surreply to it. Finally, BOC implied nefariousness on the part of plaintiffs in its reply by noting that it is “curious” that “[p]laintiffs ha ve supplied no translation of Yinon [Food Prods Mfg. & Mktg., Ltd. v. Kara’an] , the decision [of the Israeli Supreme C ourt] to which they attach so much importance.” BOC’s Reply 23 n.23. The Court does not share BOC’s timeliness concerns, particularly considering that no time restriction applies to the s ubmission of a motion for leave to file a surreply. Therefore, to allow plaintiffs to dispel any implication of nefariousness, and to assist the Court in adjudicating wh ether plaintiffs have properly pl ed their Israeli-law claims, the Court will permit plaintiffs to submit their translation now. A separate order consistent with this Memorandum shall issue this date. Signed by Chief Judge Royce C. Lamb erth, Chief Judge, on October 20, 2010.