15‐3007

Hegna v. Islamic Republic of Iran

      

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 COURTʹS 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 ʺSUMMARY ORDERʺ).  A

PARTY CITING 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 8th day of December, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,

ROBERT D. SACK,  

    DENNY CHIN,

      Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

EDWENA R. HEGNA, Executrix of the Estate of

Charles Hegna, Late of Sterling, Virginia, Individually

and Executrix of the Estate of Paul B. Hegna, STEVEN

A. HEGNA, CRAIG H. HEGNA, LYNN MARIE

HEGNA MOORE,  

Plaintiffs‐Appellants,

           15‐3007‐cv

v.      

   

650 FIFTH AVENUE COMPANY, ALAVI

FOUNDATION,  

Appellees,

ASSA,  

Garnishee‐Appellee,

CARLOS ACOSTA, GREGG SALZMAN, STEVEN M.
2

GREENBAUM,  AVI ELISHIS, ALAN D. HAYMAN,

SHIRLEE HAYMAN, MARIA ACOSTA, TOVA

ETTINGER, ESTATE OF IRVING FRANKLIN,

ESTATE OF IRMA FRANKLIN, BARUCH KAHANE,

LIBBY KAHANE, ETHEL J. GRIFFIN, NORMAN

KAHANE, CIPPORAH KAPLAN, ANNA BEER,

HARRY BEER, ESTELLE CARROLL, PHYLISS

MAISEL, JASON KIRSCHENBAUM, ISABELLE

KIRSCHENBAUM, JOSHUA KIRSCHENBAUM,

DAVID KIRSCHENBAUM, DANIELLE

TEITLEBAUM,

Intervenors,  

ISLAMIC REPUBLIC OF IRAN, THE IRANIAN

MINISTRY OF INFORMATION AND SECURITY,

Defendants.

*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFFS‐APPELLANTS: RALPH PAUL DUPONT (Barbara J. Dupont,

on the brief), The Dupont Law Firm LLP,

Stamford, Connecticut.

FOR INTERVENORS: PATRICK N. PETROCELLI (Curtis C.

Mechling, James L. Bernard, Nathan H.

Stopper, Pamela S. Takefman, on the brief),

Stroock & Stroock & Lavan LLP, New York,

New York.

   

Appeal from the United States District Court for the Southern District of

New York (Forrest, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED.

                                                 

* The Clerk of Court is directed to amend the caption to conform to the above.
3

Plaintiffs‐appellants Edwena R. Hegna, executrix of the estates of Charles

Hegna and Paul B. Hegna, Steven A. Hegna, Craig H. Hegna, and Lynn Marie Hegna

Moore (together, the ʺHegna Partiesʺ) appeal from (1) a December 3, 2013 order denying

without prejudice as not yet ripe the Hegna Partiesʹ April 26, 2013 motion for partial

summary judgment; (2) an August 21, 2014 order denying the Hegna Partiesʹ request for

the district court to issue a scheduling order ʺallowing [them] to proceed on their

pending show cause orderʺ; (3) an October 6, 2014 opinion and order denying the

Hegna Partiesʹ motion to extend their purported judgment lien under New York Civil

Practice Law and Rules 5203(b); and (4) a March 6, 2015 opinion and order denying the

Acosta, Beer, and Kirschenbaum plaintiffs‐claimantsʹ motion for partial summary

judgment as to the priority of their interests in the in rem defendant properties, in which

the district court also refused to consider the Hegna Partiesʹ motion for partial summary

judgment on the enforcement priority of their interests in the defendant properties in

relation to the interests of the other judgment creditor parties.1   The Hegna Parties also

argue on appeal that their claims to the defendant properties have priority over the

governmentʹs civil forfeiture claims, an issue that the district court has not yet

                                                 

1   The Hegna Partiesʹ corrected notice of appeal notes that they also appeal from

the district courtʹs denial of their motion for summary judgment on their innocent owner

defenses and grant of the governmentʹs motion to strike or, in the alternative, for summary

judgment on those same defenses.  The district court entered final judgment pursuant to Federal

Rule of Civil Procedure 54(b) as to its ruling on the Hegna Partiesʹ innocent owner defenses on

August 11, 2015, at the Hegna Partiesʹ request.  That decision is also before this panel, and we

heard oral argument on the two actions in tandem given their factual overlap.  We dispose of

the appeal in the civil forfeiture action in a separate summary order also filed this day.  See In re

650 Fifth Avenue, 15‐2882.
4

considered.  We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.   

Intervenors Carlos Acosta, Gregg Salzman, Steven M. Greenbaum,  Avi

Elishis, Alan D. Hayman, Shirlee Hayman, Maria Acosta, Tova Ettinger, Estate of Irving

Franklin, Estate of Irma Franklin, Baruch Kahane, Libby Kahane, Ethel J. Griffin,

Norman Kahane, Cipporah Kaplan, Anna Beer, Harry Beer, Estelle Carroll, Phyllis

Maisel, Jason Kirschenbaum, Isabelle Kirschenbaum, Joshua Kirschenbaum, David

Kirschenbaum, Danielle Teitlebaum (the ʺIntervenor Judgment Creditorsʺ) and the

Hegna Parties are victims, the estates of victims, and the family members of victims of

terrorist attacks linked to the Islamic Republic of Iran who hold unsatisfied money

judgments against Iran.  The orders the Hegna Parties appeal from were entered in their

turnover action in the district court, which was initiated by order to show cause, against

the Islamic Republic of Iran and the Iranian Ministry of Information and Security.  That

action, as well as turnover actions filed by other private judgment creditors of Iran,

have been consolidated with the governmentʹs civil action seeking forfeiture of the

interests of the Alavi Foundation, the 650 Fifth Avenue Company, Assa Corporation,

Assa Company Limited, and Bank Melli Iran in several properties including a 36‐story

office building at 650 Fifth Avenue in Manhattan.2

                                                 

2   A more comprehensive history of the civil forfeiture action and judgment

creditor turnover actions can be found in our opinions in Kirschenbaum v. 650 Fifth Ave. & Related

Props., 830 F.3d 107 (2d Cir. 2016), and In re 650 Fifth Ave. & Related Props., 830 F.3d 66 (2d Cir.

2016).
5

In general, we have appellate jurisdiction over only final orders under 28

U.S.C. § 1291 or Rule 54(b) of the Federal Rules of Civil Procedure, orders relating to an

injunction or other matters enumerated in 28 U.S.C. § 1292(a), interlocutory orders

certified under 28 U.S.C. § 1292(b), and orders falling within the collateral order

doctrine.  See Whiting v. Lacara, 187 F.3d 317, 319 (2d Cir. 1999); 28 U.S.C. §§ 1291, 1292.  

A final order is an order by the district court that ʺends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.ʺ  Coopers & Lybrand v.

Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).  

ʺAn order that . . . adjudicates the rights and liabilities of fewer than all of the remaining

parties[ ] is not a final order unless the court directs the entry of a final judgment as to

the dismissed claims or parties ʹupon an express determination that there is no just

reason for delay.ʹʺ  Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 128 (2d Cir.

2000) (quoting Fed. R. Civ. P. 54(b)).

Although the Hegna Parties claim that we have jurisdiction over their

appeal from the non‐final orders listed above under both Rule 54(b) and 28 U.S.C.

§ 1292(b), they offer no explanation as to how such jurisdiction is conferred.3  The

Hegna Parties requested and the district court entered a Rule 54(b) judgment only as to

                                                 

3   The Hegna Parties did not file a reply to the Intervenor Judgment Creditorsʹ 

opposition brief.  Although the Hegna Parties assert in their reply brief in a separate appeal, In

re 650 Fifth Avenue, 15‐2882, that we have appellate jurisdiction over parts of this appeal by

virtue of the collateral order doctrine, the Hegna Parties fail to explain whether and how the

ʺstringentʺ requirements for collateral appeal are met here.  Will v. Hook, 546 U.S. 345, 349 (2006)

(requiring that an order ʺ[1] conclusively determine the disputed question, [2] resolve an

important issue completely separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgmentʺ (internal citations omitted)).
6

its decision regarding the Hegna Partiesʹ innocent owner defenses.  Nor did the Hegna

Parties seek certification of any of the appealed orders for interlocutory appeal pursuant

to section 1292(b).  Accordingly, we must dismiss this appeal for lack of jurisdiction.   

We have considered all of the Hegna Partiesʹ remaining arguments and

find them to be without merit.  Accordingly, for the reasons stated above, we DISMISS

the appeal for lack of appellate jurisdiction.

     FOR THE COURT:

     Catherine OʹHagan Wolfe, Clerk