Opinion
Civil Action 10-1770 (BAH)
03-15-2024
ROSALIE SIMON, et al., individually, for themselves and for all others similarly situated, Plaintiffs, v. REPUBLIC OF HUNGARY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
BERYL A. HOWELL United States District Judge
The parties in this long-running litigation have presented divergent proposals, set forth as separate attachments to an ostensible “joint” status report, regarding what “jurisdictional discovery or evidentiary submissions,” if any, may be appropriate to aid in making factual determinations necessary to resolving defendants' forthcoming fifth motion to dismiss, this time to plaintiffs' third amended complaint (“TAC”), for lack of subject matter jurisdiction, consistent with the D.C. Circuit's mandate in Simon v. Republic of Hungary (“Simon III”), 77 F.4th 1077, 1119 (D.C. Cir. 2023). See Jt. Status Report (“JSR”), ECF No. 197; id., Ex. A, Pls.' Submission, ECF No. 197-1; id., Ex. B, Defs.' Submission, ECF No. 197-2; TAC, ECF No. 196.
In Simon III, the D.C. Circuit affirmed in part and reversed in part the two most recent rulings by this Court. Simon III, 77 F.4th at 1123. Specifically, the Circuit affirmed this Court's ruling in Simon v. Republic of Hungary (“Simon-2020”) regarding defendants' third motion to dismiss plaintiffs' second amended complaint (“SAC”), that the commercial-activity element of the expropriation exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., was satisfied as to Hungary, as well as affirmed this Court's ruling in Simon v. Republic of Hungary (“Simon-2021”) regarding defendants' fourth motion to dismiss plaintiffs' SAC, allowing the claims of four of the fourteen originally named plaintiffs-Magda Kopolovich Bar-Or, Yitzhak Pressburger, Alexander Speiser, and Moshe Perel-to proceed under the expropriation exception, and dismissing with prejudice the claims of two plaintiffs-Zehava (Olga) Friedman and Vera Deutsch Danos-whose claims fell within the domestic takings rule incorporated by the expropriation exception. Id. at 1088-89, 1123; see Simon-2021, 579 F.Supp.3d 91, 140-41 (D.D.C. 2021), aff'd in part, vacated in part, remanded, 77 F.4th 1077 (D.C. Cir. 2023) (granting in part and denying in part defendants' fourth motion to dismiss); Simon-2020, 443 F.Supp.3d 88, 106-11 (D.D.C. 2020), aff'd in part, remanded in part, 77 F.4th 1077 (D.C. Cir. 2023) (denying defendants' third motion to dismiss).
At the same time, in Simon III, the Circuit reversed this Court's disposition in Simon-2021 that certain plaintiffs' claims could proceed under the expropriation exception and other plaintiffs' claims were to be dismissed with prejudice, directing dismissal of both sets of those plaintiffs' claims without prejudice. Simon III, 77 F.4th at 1089, 1123. In addition, the Circuit vacated this Court's ruling in Simon-2020 regarding satisfaction of “the property component of the [commercial activity] nexus in relation to both Hungary and MAV, as well as on MAV's commercial activity,” and “remand[ed] for [this Court] to make factual determinations on those points, as necessary to resolve the Hungarian defendants' challenge to the remaining plaintiffs' invocation of the expropriation exception.” Id. at 1123.
Specifically, the Circuit directed dismissal without prejudice of the claims of two plaintiffs-Ella Feuerstein Schlanger and Tzvi Zelikovitch-whose claims this Court had ordered dismissed with prejudice, as well as the claims of five plaintiffs-Rosalie Simon, Helen Herman, Charlotte Weiss, Helena Weksberg, and Rose Miller (“the Lebovics Sisters”)-whose claims this Court had held could proceed. Simon III, 77 F.4th at 1089, 1123; see Simon-2021, 579 F.Supp.3d at 140 . “Neither party appeal[ed] the dismissal without prejudice of Ze'ev Tibi Ram's claim.” Simon III, 77 F.4th at 1099. As a result, following Simon III, the claims of ten of the original fourteen named plaintiffs were dismissed, two with prejudice and eight without prejudice, while four plaintiffs' claims were permitted to proceed. Id. at 1088-89, 1099, 1123. Plaintiffs' TAC reasserts claims by twelve of the original fourteen named plaintiffs, whose claims were permitted to proceed or were dismissed without prejudice, reflecting a new attempt to plead nationality, together with three additional named plaintiffs-Naomi Shpirer, Peri Hirsch, and Martha Klein- for a total, currently, of fifteen named plaintiffs. See TAC ¶ 6.
In accord with this multi-pronged mandate, defendants have requested limited jurisdictional discovery regarding “(1) the property allegedly expropriated, including any property to which Plaintiffs claim an interest as heirs (and support for that alleged status); and (2) Plaintiffs' alleged nationalities,” along with modifications to the scheduling order issued on December 24, 2023, to accommodate the limited discovery process. JSR, Ex. B, Defs.' Submission at 1, 4; see also Minute Order (Dec. 24, 2023) (scheduling order directing the filing of plaintiffs' TAC and briefing on defendants' motion to dismiss). Plaintiffs, on the other hand, resist any discovery requests from defendants and have no jurisdictional discovery requests of their own. Id., Ex. A, Pls.' Submission at 2-3.
For the reasons set out below, defendants' requests for limited jurisdictional discovery and a modification of the Scheduling Order are granted.
I. BACKGROUND
Given the duration of this litigation-despite not yet passing the subject matter jurisdiction threshold-with multiple round trips to the appellate courts, a brief review of the legal and procedural background is helpful context to resolving the instant discovery dispute.
A. The FSIA's Expropriation Exception
Notwithstanding the general burden borne by any plaintiff to establish the subject matter jurisdiction of the chosen court, when a plaintiff invokes an FSIA exception as the basis for asserting jurisdiction over a foreign country otherwise entitled to sovereign immunity, the D.C. Circuit has instructed that the burden shifts so that “the sovereign ‘defendant bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity.'” Simon III, 77 F.4th at 1116 (quoting Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192, 197 (D.C. Cir. 2004)).
Since the initiation of this litigation over a decade ago, plaintiffs have consistently asserted subject matter jurisdiction pursuant to the FSIA's expropriation exception, 28 U.S.C. § 1605(a)(3), which exception permits suit against a foreign sovereign or its agencies or instrumentalities in United States courts to vindicate “rights in property taken in violation of international law” when an adequate commercial nexus is present between the United States and the defendant. 28 U.S.C. § 1605(a)(3); see TAC ¶¶ 28-34; SAC ¶¶ 89-101, ECF No. 118. “[T]he exception has two requirements: (1) the claim must put in issue ‘rights in property taken in violation of international law,' and (2) there must be an adequate connection between the defendant and both the expropriated property and some form of commercial activity in the United States,” which latter requirement the D.C. Circuit has termed the “commercial-activity nexus requirement.” Simon III, 77 F.4th at 1091 (quoting 28 U.S.C. § 1605(a)(3)).
With respect to the first requirement, in 2021, the Supreme Court in Federal Republic of Germany v. Philipp clarified that “the phrase ‘rights in property taken in violation of international law' . . . refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.” 592 U.S. 169, 187 (2021) (quoting 28 U.S.C. § 1605(a)(3)). “Under the domestic takings rule, a foreign sovereign's taking of its own nationals' property is not a violation of the international law of expropriation.” Simon III, 77 F.4th at 1091 (citing Philipp, 592 U.S. at 176). “Philipp thus generally bars plaintiffs who were nationals of the expropriating state at the time of the alleged taking from invoking the expropriation exception.” Id. (citing Philipp, 592 U.S. at 186-87).
The second requirement for the expropriation exception to apply “requires that the property at issue in the suit ‘or any property exchanged for such property' be either (1) ‘present in the United States in connection with a commercial activity carried on in the United States by the foreign state' or (2) ‘owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,'” with the first clause “address[ing] immunity of foreign states in terms of the states' own conduct,” and the second, “in terms of actions of foreign-state agencies or instrumentalities.” Id. at 1115 (quoting 28 U.S.C. § 1605(a)(3)) (citation omitted). “[E]ach clause specifies a requisite connection between the defendant and both (i) the expropriated property or proceeds thereof and (ii) some kind of commercial activity in the United States,” which two components the D.C. Circuit has termed the “property element” and “commercial-activity element,” respectively. Id. (quotation marks and citation omitted).
B. Defendants' Four Prior Motions to Dismiss
The narrow issue presented in the parties' JSR comes on the heels of this case's more than “a decade-long tour of the federal court system, bouncing up and down the tiers of appellate review,” with review focused exclusively on the threshold question of subject matter jurisdiction. Simon-2021, 579 F.Supp.3d at 97. In the more than thirteen years since this case was filed, defendants have presented four motions to dismiss, with the first two motions granted, the third denied, and the fourth granted in part and denied in part by this Court, interspersed with the D.C. Circuit's affirmance in part and reversal in part of this Court's grant of the first motion, its reversal of this Court's grant of the second motion, and, in Simon III, with its affirmance in part and reversal in part of this Court's disposition regarding the third and fourth motions. In the course of this tour of the federal court system, plaintiffs' jurisdictional theory has significantly evolved in tandem with the changing FSIA jurisprudential landscape. Compare, e.g., Simon III, 77 F.4th at 1126 (“[T]he Simon plaintiffs represented to the Supreme Court in the clearest possible terms that they were all Hungarian nationals when the takings occurred . . . that too had been our court's understanding when the case reached us on appeal ....”) (Randolph, J., concurring in part and dissenting in part) (citation omitted)), and Compl. ¶ 1, ECF No. 1 (“This class action complaint is brought by Holocaust survivors, former residents of geographic areas of what is today or what once was, at all times relevant to this Complaint, part of the Republic of Hungary[.]”), with TAC ¶ 32 (“When Defendants expropriated Plaintiffs' property, Plaintiffs were not Hungarian nationals, but were nationals of states other than Hungary.”).
See Simon III, 77 F.4th at 1123-24; Simon v. Republic of Hungary (“ Simon II”), 911 F.3d 1172, 1190 (D.C. Cir. 2018), vacated and remanded, 592 U.S. 207 (2021); Simon v. Republic of Hungary (“Simon I”), 812 F.3d 127, 151 (D.C. Cir. 2016), abrogated by Fed. Republic of Germany v. Philipp, 592 U.S. 169 (2021); Simon-2021, 579 F.Supp.3d at 140-41; Simon-2020, 443 F.Supp.3d at 116; Simon v. Republic of Hungary (“Simon-2017”), 277 F.Supp.3d 42, 67 (D.D.C. 2017), rev'd and remanded, 911 F.3d 1172 (D.C. Cir. 2018), vacated and remanded, 592 U.S. 207 (2021); Simon v. Republic of Hungary (“Simon-2014”), 37 F.Supp.3d 381, 444 (D.D.C. 2014), aff'd in part, rev'd in part, 812 F.3d 127 (D.C. Cir. 2016).
1. First Motion to Dismiss (Simon-2014 ; Simon I).
In Simon I, the Circuit affirmed in part and reversed in part this Court's order in Simon v. Republic of Hungary (“Simon-2014”) granting defendants' first motion to dismiss. Simon I, 812 F.3d at 151; see Simon-2014, 37 F.Supp.3d at 444. The Circuit rejected application of the “treaty exception” to the FSIA, finding the exception “does not foreclose jurisdiction over the plaintiffs' claim.” Id. at 140.Then, considering whether “the FSIA's expropriation exception . . . allows for jurisdiction over [plaintiffs'] claims,” Simon I, 812 F.3d at 140, the Circuit affirmed this Court's dismissal of “plaintiffs' non-property claims,” id. at 151, albeit without specifying precisely which claims were so characterized, id. at 141-42, while holding that plaintiffs' property claims, including for conversion, unjust enrichment, and restitution, id. at 142, “involve property ‘taken in violation of international law'” because the “alleged takings of property” themselves “amounted to the commission of genocide, and genocide violates international law,” id. (quoting 28 U.S.C. § 1605(a)(3)). As to the commercial-activity nexus requirement, the Circuit held that “plaintiffs' allegations suffice[d] to withstand dismissal as to the claims against MAV but not as to the claims against Hungary,” for which plaintiffs' allegations were insufficient to satisfy the commercialactivity element of the nexus requirement. Id. at 147.
Under the “treaty exception,” “the FSIA's baseline grant of immunity to foreign sovereigns is ‘[s]ubject to existing international agreements to which the United States [was] a party at the time of enactment' of the FSIA.” Simon III, 77 F.4th at 1091 (alterations in original) (quoting 28 U.S.C. § 1604). In Simon I, the Circuit held that plaintiffs' “action based on common-law claims did not create an express conflict between the treaty provision on which the Hungarian defendants relied, Article 27 of the 1947 Treaty [of Peace with Hungary], and the FSIA immunity provisions,” id. at 1092 (citing Simon I, 812 F.3d at 140), reversing this Court's “holding that the FSIA's treaty exception immunized them from suit,” id. (citing Simon-2014, 37 F.Supp.3d at 424).
More specifically, with respect to the property element of the commercial-activity nexus requirement, the Circuit held that plaintiffs' allegations that “defendants liquidated the stolen property, mixed the resulting funds with their general revenues, and devoted the proceeds to funding various governmental and commercial operations . . . suffice[d] to raise a ‘plausible inference[]' that the defendants retain the property or proceeds thereof.” Id. (second alteration in original) (citation omitted). The Circuit cautioned, however, that since its holding was limited to whether plaintiffs' allegations were sufficient as a matter of law, “plaintiffs ultimately may or may not be able to prove the point,” id. at 147 (quotation marks and citation omitted), and emphasized that “[u]pon any factual challenge by the [] defendants-e.g., concerning whether the defendants in fact still possess the property or proceeds thereof,” the burden shifts, whereby “plaintiffs will bear the burden of production, and the defendants will bear the burden of persuasion to ‘establish the absence of the factual basis by a preponderance of the evidence,'” id. (citation omitted).
Next, the Circuit found the commercial-activity element “satisfied as to MAV,” since “plaintiffs allege that MAV maintains an agency for selling tickets, booking reservations, and conducting similar business in the United States” and “defendants make no attempt to argue that the rail company fails to engage[] in a commercial activity in the United States,” id. at 147-48 (quotation marks and citations omitted), but not as to Hungary, since “plaintiffs put forward only the bare, conclusory assertion that ‘property is present in the United States in connection with commercial activity carried on by Hungary within the United States' . . . [and] nothing more,” id. at 148 (quotation marks and citation omitted).
Simon III briefly states, in its discussion of the procedural history of this case, that the Circuit held, in Simon I, that “plaintiffs' allegations satisfied the commercial-activity nexus of the expropriation exception,” Simon III, 77 F.4th at 1092 (citing Simon I, 812 F.3d at 146-49), but later clarifies, accurately, that “[w]hereas we deemed other allegations sufficient in Simon I, we held that the First Amended Complaint's ‘allegations about Hungary's commercial activity fail[ed] to demonstrate satisfaction of § 1605(a)(3)'s nexus requirement,” id. at 1121 (quoting Simon I, 812 F.3d at 148) (second alteration in original).
The Circuit remanded for this Court to “determine precisely which of the plaintiffs' claims ‘directly implicat[e] property interests or rights to possession,' [] thus satisfying the ‘rights in property . . . in issue' requirement of § 1605(a)(3).” Id. at 142 (first alteration in original) (citation omitted). In addition, the Circuit expressly directed this Court, on remand, to consider “whether, as a matter of international comity, it should refrain from exercising jurisdiction over those claims until the plaintiffs exhaust domestic remedies in Hungary,” id. at 151, and “any other arguments that it has yet to reach and that are unaddressed . . . such as the defendants' forum non conveniens arguments,” id.
While instructing that certain arguments should be considered on remand, the Circuit simultaneously took “off the table” other of defendants' arguments, holding that “plaintiffs' claims do not constitute non-justiciable political questions falling outside of the Judiciary's cognizance.” Simon I, 812 F.3d at 132, 149-51.
2. Second Motion to Dismiss (Simon-2017 ; Simon II).
On remand, plaintiffs filed their SAC and, not surprisingly, given the Circuit's explicit instruction to consider prudential reasons for dismissal, defendants moved to dismiss on grounds of forum non conveniens, international comity and the prudential exhaustion doctrine, which motion this Court granted. Simon-2017, 277 F.Supp.3d at 52, 67. Plaintiffs again appealed, and a divided panel of the D.C. Circuit reversed and remanded a second time. Simon II, 911 F.3d at 1190 .
3. Third Motion to Dismiss (Simon-2020).
With the D.C. Circuit having rejected several grounds for dismissal in Simon I and Simon II, while leaving open the opportunity for defendants to raise factual challenges to plaintiffs' allegations regarding the commercial-activity nexus requirement, see Simon 1, 812 F.3d at 14748, and with plaintiffs having “amended their complaint to allege specific facts regarding Hungary's ongoing commercial activity in the United States,” Simon-2020, 443 F.Supp.3d at 97 (quoting Simon II, 911 F.3d at 1179, and citing SAC ¶ 101), defendants filed a third motion to dismiss plaintiffs' SAC, arguing, again, that plaintiffs failed to satisfy the nexus requirement, id. at 98. Following “a four-month period” during which plaintiffs were permitted, per the parties' stipulation, to propound discovery “‘concerning the averments in the declarations in support of' the defendants' motion to dismiss,” id. at 98 (quoting Jt. Stip., ECF No. 139), this Court denied defendants' motion, in part given “the Circuit's firm finding about MAV's commercial nexus to the United States,” which had become “the law of the case,” id. at 111, 116 (citing Simon I, 812 F.3d at 147-48).
This Court observed, as to the first prong of the expropriation exception, that “no party addressed whether each claim directly implicates a property interest,” id. at 100, notwithstanding the D.C. Circuit's remand for a determination as to “precisely which of the plaintiffs' claims ‘directly implicat[e] property interests or rights to possession,'” Simon I, 812 F.3d at 142 (alteration in original) (citation omitted), but found that “in any event, each of the claims in the [SAC] expressly invoked references to property,” Simon-2021, 579 F.Supp.3d at 108 (citing Simon-2020, 443 F.Supp.3d at 100-01).
As to the commercial-activity nexus prong, this Court found, with respect to Hungary, that the property element was satisfied, given plaintiffs' “allegations concerning Hungary's possession of the commingled expropriated property that Simon I already upheld as sufficient to meet the expropriation exception's pleading requirement and withstand a motion to dismiss,” and given that defendants failed to “affirmatively disprove the plausible inference drawn from the plaintiffs' complaint-that the expropriated property was liquidated, commingled, and retained.” Simon-2020, 443 F.Supp.3d at 104-05. This Court further found that “Hungary's bond offerings and military equipment purchases [were] sufficient to meet the commercial activity prong.” Simon HI, 77 F.4th at 1121 (quoting Simon-2020, 443 F.Supp.3d at 107).
As to MAV, this Court was persuaded by plaintiffs that the law of the case doctrine applied, see Pls.' Mem. Opp'n Defs.' Third Mot. Dismiss at 43, ECF No. 148, and “invoked the D.C. Circuit's ‘firm finding[s]' in Simon I that MAV satisfied the commercial nexus requirement ‘based on the allegation that MAV maintains an agency for selling tickets, booking reservations, and conducting similar business in the United States,'” Simon-2021, 579 F.Supp.3d at 108 (quoting Simon-2020, 443 F.Supp.3d at 111 (quoting Simon 1, 812 F.3d at 147)), and that plaintiffs' allegations as to the property element “raise a ‘plausible inference' that MAV retains proceeds from some portion of the expropriated property,” Simon-2020, 443 F.Supp.3d at 112 (quoting Simon 1, 812 F.3d at 147). This Court further concluded that no new facts or arguments were “persuasive, let alone sufficient to show that the Circuit's prior finding as to MAV's commercial nexus should be set aside as clearly erroneous or manifestly unjust” under the law of the case doctrine. Id.
Defendants appealed this Court's denial of their third motion to dismiss to the D.C. Circuit, but the case was remanded without consideration of the merits in light of the Supreme Court's decision in Philipp, 592 U.S. 169. See Order, Simon v. Republic of Hungary, No. 20-7025 (D.C. Cir. Apr. 28, 2021) (per curiam) (ordering remand for further proceedings consistent with Philipp). Philipp “clarified that genocidal takings do not necessarily constitute takings ‘in violation of international law' for purposes of the FSIA's expropriation exception,” Simon III, 77 F.4th at 1093 (citing Philipp, 592 U.S. at 187), thus partially abrogating the D.C. Circuit's opinion in Simon I, id., and changing the law on the expropriation exception. Whereas under Simon I, the domestic takings rule was held not to apply to plaintiffs' claims of deprivation of property-based on reasoning that those claims “put in issue property ‘taken in violation of international law' . . . because the alleged takings of property” themselves “amounted to the commission of genocide” to which the domestic takings rule did not apply, id. at 1092 (citing Simon 1, 812 F.3d at 142)-in light of Philipp's holding that the expropriation exception “incorporates the domestic takings rule,” id. at 1091 (quoting Philipp, 592 U.S. at 187), “plaintiffs who were nationals of the expropriating state at the time of the alleged taking” could no longer invoke the expropriation exception, id. (citing Philipp, 592 U.S. at 187).
In a brief order, the Supreme Court vacated the judgment of the D.C. Circuit in Simon II and “remanded for further proceedings consistent with the decision in [Philipp].” Republic of Hungary v. Simon, 592 U.S. 207 (2021) (per curiam).
4. Fourth Motion to Dismiss (Simon-2021).
With Philipp foreclosing the use of the expropriation exception by plaintiffs who were Hungarian nationals at the time of the takings at issue-thereby making plaintiffs' nationality a central issue to defendants' challenge to plaintiffs' assertion of subject matter jurisdiction- defendants filed their fourth motion to dismiss the SAC on April 23, 2021, arguing, in pertinent part, that “the domestic takings rule barred the Simon plaintiffs from invoking the expropriation exception.” Simon III, 77 F.4th at 1093; see Simon-2021, 579 F.Supp.3d at 114-15; Defs.' Fourth Mot. Dismiss, ECF No. 165. This Court granted in part and denied in part defendants' motion, with the outcome dependent on the specific factual allegations in the SAC as to each plaintiff. Simon-2021, 579 F.Supp.3d at 140-41.
As relevant here, this Court held, first, that the domestic takings rule mandated dismissal with prejudice of the claims of four plaintiffs-Zehava Friedman, Vera Deutsch Danos, Ella Feuerstein Schlanger, and Tzvi Zelikovitch-who failed to show “anything other than Hungarian nationality at the time of the takings,” and rejected as “irreconcilable with the logic of Philipp ” plaintiffs' argument that the domestic takings rule did not apply because “Hungary's conduct towards its Jewish population rendered the named plaintiffs and others de facto stateless.” Id. at 115-16, 122, 140; see also Simon III, 77 F.4th at 1094. Second, the claims of one named plaintiff-Ze'ev Tibi Ram-were dismissed, without prejudice, since the plaintiff's “jurisdictional allegations . . . ha[d] a level of ambiguity such that no determination may be made as to his nationality.” Simon-2021, 579 F.Supp.3d at 115, 136, 140. Finally, defendants' motion was denied with respect to the claims of the remaining nine named plaintiffs, including “five sisters with the original surname Lebovics”-Rosalie Simon, Helen Herman, Charlotte Weiss, Helena Weksberg, and Rose Miller (“the Lebovics Sisters”)-who had “adequately alleged facts supporting reasonable inferences of Czechoslovakian nationality and a lack of Hungarian nationality.” Id. at 115, 131-32, 140-41.Defendants appealed and plaintiffs cross-appealed. See Simon v. Republic of Hungary, Nos. 22-7010 & 22-7013 (D.C. Cir. docketed Jan. 25, 2022) (consolidated as No. 22-7010).
In so concluding, this Court denied defendants' argument that “judicial admission, judicial estoppel, and waiver” barred “plaintiffs' attempts to argue that at least some named plaintiffs were not Hungarian nationals at the time of the expropriations at issue,” Simon-2021, 579 F.Supp.3d at 123-24 (citation omitted), and defendants' “invit[ation]” to use “the vacatur of Simon II” to “reassert its holdings from Simon-2017 dismissing the case on the grounds of international comity and forum non conveniens,” id. at 136 (citation omitted).
C. Simon III
In Simon III, the D.C. Circuit addressed, in another divided panel, defendants' appeal of the denial of their third motion to dismiss in Simon-2020 and partial denial of their fourth motion in Simon-2021, and plaintiffs' cross-appeal of Simon-2021, which raised, as relevant here, two issues central to plaintiffs' invocation of the FSIA's expropriation exception: plaintiffs' nationality at the time of the alleged takings for purposes of the domestic takings rule, and the commercialactivity nexus requirement.
The Circuit consolidated the Simon appeals and cross-appeal with the claims of a separate set of plaintiffs who “assert[ed] that they were de facto stateless at the time of the alleged takings.” Simon III, 77 F.4th at 1091-93.
As to nationality, the Circuit affirmed, on different grounds, this Court's dismissal with prejudice of the “claims of the [plaintiffs] asserting de facto statelessness.” Simon III, 77 F.4th at 1088, 1094. Next, upon de novo review of this Court's jurisdictional rulings regarding plaintiffs' allegations of Czechoslovakian nationality “under the plausible-pleading standard,” id. at 1105 (citation omitted)-which review involved “look[ing] first to international law to determine the [plaintiffs'] nationality status,” and considering “Czechoslovakian and Hungarian state law governing nationality . . . only ‘in so far as it is consistent with' the international legal obligations set forth in the Treaty of St. Germain and the Treaty of Trianon,” id. at 1106 (citation omitted)- the Circuit largely upheld the rulings regarding those claims, but directed this Court “to convert its allowance of the claims of the Lebovics sisters to proceed and its dismissal of the claims of Zelikovitch and Schlanger to dismissals without prejudice,” id. at 1099, leaving these dismissed plaintiffs with the opportunity, “if they have evidentiary support enabling them, consistent with applicable requirements, to cure the identified shortcomings,” id. at 1110 (citing FED. R. CIV. P. 11(b)(3)).
While concluding that “Philipp does not foreclose the [plaintiffs'] theory” that “because Hungary rendered them de facto stateless by the time of the alleged takings, the domestic takings rule poses no bar to their claims against Hungary,” Simon III, 77 F.4th at 1094, the Circuit held that the plaintiffs had “failed to persuade [it] that a state's taking of a de facto stateless person's property violates the customary international law of expropriation,” id. at 1098. The Circuit nevertheless did “not foreclose the possibility that such support exists in sources of international law not before [it] . . . or based on arguments not advanced here.” Id.
The dissenting, in part, member of the Simon III panel opined that “the Simon plaintiffs . . . did not preserve a claim that they were nationals of a country other than Hungary when the takings occurred,” 77 F.4th at 1126 (Randolph, J., concurring in part and dissenting in part), and thus he “cannot agree that four of the fourteen original Simon plaintiffs may continue with their action[,]” id. at 1124.
As to the commercial-activity nexus requirement, the Circuit remanded “for factfinding as to two points relevant to the [] requirement: first, whether the property at issue in the claims against both Hungary and MAV derived from the Simon plaintiffs' expropriated property and, second, whether MAV engages in commercial activity in the United States.” Id. at 1115. “Finally, as for Hungary's commercial activity,” the Circuit affirmed this Court's “conclusion-based on stipulated facts-that Hungary engaged in the requisite commercial activity through its issuance of bonds in the United States.” Id. at 1116.
Recall that in Simon I, the Circuit limited its holding regarding the commercial-activity nexus requirement being met to whether plaintiffs' allegations were sufficient as a matter of law to satisfy the requirement, see Simon 1, 812 F.3d at 147-48, and cautioned that, as to the property element, “[u]pon any factual challenge by the Hungarian defendants . . . the plaintiffs will bear the burden of production, and the defendants will bear the burden of persuasion to ‘establish the absence of the factual basis by a preponderance of the evidence,'” id. at 147 (citation omitted). In appealing Simon-2020's denial of their third motion to dismiss, defendants argued, consistent with language in Simon I, that plaintiffs had failed to satisfy their threshold burden of production to a factual challenge to jurisdiction. See Simon III, 77 F.4th at 1118 (“[D]efendants contend that . . . they are entitled to reversal because the Simon plaintiffs failed to produce evidence tracing property in the United States or possessed by MAV to property expropriated from them during World War II.” (citation omitted)). In Simon III, the Circuit clarified that “plaintiffs had no such burden here.” Id.
In explaining these jurisdictional rulings, the Circuit stated, in broad strokes, that the “district court's task in assessing jurisdiction under the FSIA varies depending on whether the defendant presents a legal or a factual challenge,” id. at 1116 (citation omitted), such that, when the challenge is the former, i.e., challenging “the legal sufficiency of the plaintiffs jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true,” but, when the latter, i.e., “a defendant moves beyond assuming the truth of well-pleaded facts and seeks at the jurisdictional threshold to challenge the factual basis of the court's jurisdiction . . . ‘the court must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary' to resolve the Rule 12(b)(1) motion,” id. (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).
In parsing the nature of defendants' jurisdictional challenges, the Circuit concluded, as to the property element, that since “the Hungarian defendants [had] raised a factual challenge to the Survivors' allegations regarding [that] element,” id. at 1116, this Court had erroneously “failed to ‘go beyond the pleadings and resolve [the] disputed issues of fact,'” id. at 1115 (quoting Phoenix Consulting Inc., 216 F.3d at 40) (alteration in original). At the same time, defendants' argument that “they are entitled to reversal because the Simon plaintiffs failed to produce evidence tracing property in the United States or possessed by MAV to property expropriated from them during World War II,” was rejected since “plaintiffs had no such burden here.” Id. at 1118 (citation omitted). Recognizing that “once a foreign sovereign sells stolen property and mixes the proceeds with other funds in its possession, those proceeds ordinarily become untraceable to any specific future property or transaction,” the Circuit reasoned that defendants' proposal “[r]equiring plaintiffs ... to allege and prove that they have traced funds in the foreign state's or instrumentality's possession to proceeds of the sale of their property would render the FSIA's expropriation exception a nullity for virtually all claims involving liquidation.” Id. The Circuit “decline[d] to ascribe to Congress an intent to create a safe harbor for foreign sovereigns who choose to commingle rather than segregate or separately account for the proceeds from unlawful takings,” id., and instead held that “defendants who wish to disclaim property they seized and liquidated must at least affirmatively establish by a preponderance of the evidence that their current resources do not trace back to the property originally expropriated,” since the “sovereign defendant bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity.” Id. at 1119 (emphasis in original) (quotation marks and citations omitted).
On the issue of “MAV's commercial activity in the United States,” the Circuit held that this Court had “erroneously relied on the pleading-stage ruling on the point in Simon I as law of the case” once defendants “raised a factual challenge with respect to MAV's commercial activity,” for while it was not “wrong to draw on the legal ruling in Simon I . . . doing so was insufficient once defendants pressed their factual challenge,” id. at 1115-16, 1120 (citations omitted). The Circuit consequently remanded for this Court to “determine as a factual matter . . . whether MAV engages in commercial activity in the United States.” Id. at 1121.
In addressing defendants' factual challenges, the Circuit emphasized that this Court “has wide ‘latitude to devise the procedures' necessary ‘to ferret out the facts pertinent to jurisdiction' . . . should it determine that any additional jurisdictional discovery or evidentiary submissions would be appropriate,” id. at 1119 (brackets omitted) (quoting Phoenix Consulting Inc., 216 F.3d at 40), provided that plaintiffs receive “ample opportunity to secure and present evidence relevant to the existence of jurisdiction,” id. at 1116 (quoting Phoenix Consulting Inc., 216 F.3d at 40).
The Circuit also rejected various arguments presented by both sides, including “the Hungarian defendants' argument that the plaintiffs are judicially estopped from asserting Czechoslovakian nationality,” Simon III, 77 F.4th at 1089; the defendants' argument that, “even assuming they were Czechoslovakian at the time of the takings, the Foreign Sovereign Immunities Act's treaty exception bars their claims,” id.; and plaintiffs' argument “that Hungary's alleged treaty violations enable the plaintiffs to bypass the domestic takings rule,” id.
D. Plaintiffs' Third Amended Complaint
Following issuance of the D.C. Circuit's mandate, the parties submitted, in response to this Court's November 9, 2023, Minute Order, see Min. Order (Nov. 9, 2023), a proposed schedule for the filing of plaintiffs' TAC and briefing on defendants' anticipated motion to dismiss the TAC, see Jt. Status Rep., ECF No. 192. In separate submissions, the parties set forth their disagreement regarding whether “the briefing to date by the parties provides an appropriate basis for the Court to ‘make factual determinations on' ‘the property component of the nexus in relation to both Hungary and MAV, as well as on MAV's commercial activity'” required under the mandate, id., Defs.' Proposed Schedule at 1, ECF No. 192-2 (quoting Simon III, 77 F.4th at 1123). While plaintiffs contended that “no further briefing on these points [was] necessary, and the Court should rule on the basis of the papers previously submitted,” id., Pls.' Proposed Schedule at 1, ECF No. 192-1, defendants maintained that “it would be premature for the Court to make its findings of fact based on a complaint that will be superseded by the TAC,” and therefore urged this Court to “wait and make its factual findings on these issues in connection with deciding the motion to dismiss the TAC,” id., Defs.' Proposed Schedule at 1. Notably, neither party indicated that additional discovery may be necessary to aid making findings of fact “pertinent to jurisdiction,” Simon III, 77 F.4th at 1119 (quoting Phoenix Consulting Inc., 216 F.3d at 40), even though, as the parties acknowledged, see Jt. Status Rep., Pls.' Proposed Schedule; id., Defs.' Proposed Schedule, the D.C. Circuit instructed that such factual findings were necessary while highlighting this Court's “wide ‘latitude to devise the procedures' necessary ‘to ferret out the facts pertinent to jurisdiction' . . . should it determine that any additional jurisdictional discovery or evidentiary submissions would be appropriate,” Simon III, 77 F.4th at 1119 (brackets omitted) (quoting Phoenix Consulting Inc., 216 F.3d at 40). Given the parties' silence on this open issue, as part of the Scheduling Order, they were directed to “submit a joint status report addressing whether ‘additional jurisdictional discovery or evidentiary submissions would be appropriate' to aid the Court's factual determination” on “the property component of the nexus in relation to both Hungary and MAV, as well as on MAV's commercial activity . . . as necessary to resolve the Hungarian defendants' challenge to the remaining plaintiffs' invocation of the [FSIA] expropriation exception.” Min. Order (Dec. 24, 2023) (alteration in original) (quoting Simon III, 77 F.4th at 1119, 1123).
Consistent with this Scheduling Order, on January 26, 2024, plaintiffs filed their TAC, which asserts the same ten Counts as the SAC. See TAC. In addition, the TAC removes two named plaintiffs-Zehava Friedman and Vera Deutsch Danos-whose dismissal with prejudice in Simon-2021 was upheld on appeal, see Simon III, 77 F.4th at 1088, and adds three plaintiffs- Naomi Shpirer, Peri Hirsch, and Martha Klein-for a total of fifteen plaintiffs. TAC ¶¶ 6-21.In addition, given the necessity, post-Philipp and Simon III, for plaintiffs to establish that they were not Hungarian nationals nor stateless at the time of the alleged takings, and given the Circuit's critique of plaintiffs' “failure to plausibly allege Czechoslovakian nationality” as to the five Lebovics sisters, Tzvi Zelikovitch, and Ella Feuerstein Schlanger, Simon III, 77 F.4th at 1089, plaintiffs now allege, expressly, that “[n]o Plaintiff was a national of Hungary when Defendants expropriated his or her property,” TAC ¶ 44, with twelve named plaintiffs alleging they were Czechoslovakian nationals, see id. ¶ 41, and “three new Plaintiffs alleg[ing] they were neither Hungarian nor Czechoslovakian nationals, but rather were Romanian or Yugoslavian,” JSR, Ex. B, Defs.' Submission at 3; see TAC ¶¶ 42-43.
The TAC substitutes certain heirs at law for four plaintiffs named in the SAC who died during the pendency of this action. See TAC ¶ 6 nn. 3-7. Specifically, (1) Gary Herman and William Herman are substituted as heirs at law for plaintiff Helen Herman; (2) Renee Weiss Chase, Florence Weiss Weinstein, and Judith Weiss Mangel are substituted for plaintiff Charlotte Weiss; (3) Rosanna Weksberg Finkelberg and Alfred Weksberg are substituted for plaintiff Helena Weksberg; and (4) Thomas J. Schlanger is substituted for plaintiff Ella Feuerstein Schlanger. Compare SAC ¶¶ 6-8, 73, with TAC ¶ 6. While defendants indicate that “18 [plaintiffs] now allege that they were Czechoslovakian nationals,” this tally includes the number of plaintiffs' new heirs at law, rather than named plaintiffs. JSR, Ex. B, Defs.' Submission at 3.
II. DISCUSSION
This brings us to the parties' joint status report, filed February 5, 2024, in which defendants request to propound discovery on two discrete topics pertinent to jurisdiction and to modify the operative Scheduling Order to account for this discovery phase, both of which requests plaintiffs oppose. See JSR, Ex. B, Defs.' Submission at 1, 4; id., Ex. A, Pls.' Submission at 2-3. Specifically, defendants seek to serve discovery regarding “(1) the property allegedly expropriated, including any property to which Plaintiffs claim an interest as heirs (and support for that alleged status), and (2) Plaintiffs' alleged nationalities.” Id., Ex. B, Defs.' Submission at 1. For the reasons set forth below, defendants' requests are granted and they are permitted to propound discovery on these topics.
Defendants' first discovery request regarding the property element of the commercialactivity nexus requirement is plainly appropriate to aid this Court in “ferret[ing] out the facts pertinent to jurisdiction,” Simon UI, 77 F.4th at 1119 (quoting Phoenix Consulting Inc., 216 F.3d at 40), consistent with the D.C. Circuit's clarification that “defendants who wish to disclaim property they seized and liquidated must at least affirmatively establish by a preponderance of the evidence that their current resources do not trace back to the property originally expropriated,” id. (emphasis in original).
Recall that for the expropriation exception to apply, “(1) the claim must put in issue ‘rights in property taken in violation of international law,'” and (2) the commercial-activity nexus requirement must be satisfied, meaning “there must be an adequate connection between the defendant” and (i) “the expropriated property or proceeds thereof,” i.e., the “property element,” and (ii) “some kind of commercial activity in the United States,” i.e., the “commercial-activity element.” Id. at 1091, 1115 (quoting 28 U.S.C. § 1605(a)(3)) (citation omitted). As to the first requirement, Simon III resolved that, under the Supreme Court's holding in Philipp, certain plaintiffs' claims could proceed, while others required dismissal under the domestic takings rule, since Philipp “generally bars plaintiffs who were nationals of the expropriating state at the time of the alleged taking from invoking the expropriation exception.” Id. at 1091, 1099. As to the second, commercial-activity nexus, requirement, Simon HI resolved that factfinding was required on the (i) property element as to both Hungary and MAV, and that while the (ii) commercial-activity element was satisfied as to Hungary, further factfinding was required on that element as to MAV. Id. at 1115-16. Left to be resolved on remand, therefore, is whether the “rights in property taken in violation of international law” component is met by each plaintiff, whether the property element of the commercial-activity nexus requirement is satisfied as to Hungary and MAV, and whether the commercial-activity element is additionally satisfied as to MAV. See id. at 1091, 1123-24; see 28 U.S.C. § 1605(a)(3).
Neither party seeks additional discovery regarding “whether MAV engages in commercial activity in the United States,” Simon III, 77 F.4th at 1115, presumably resting on previously submitted filings on this issue to comply with the Circuit's instruction that factual findings be made on this element, id. at 1119, 1121; see JSR, Ex. A, Pls.' Submission; id., Ex. B, Defs.' Submission.
In other words, per Simon III, this Court must “make findings of fact germane to the expropriation exception's property element-namely, whether property defendants received in exchange for the Simon plaintiffs' confiscated property is present in the United States in connection with Hungary's commercial activity there or is possessed by MAV,” Simon III, 77 F.4th at 1117 (citations omitted), “as well as [to] MAV's commercial activity,” id. at 1123. As the Circuit explained, “once a foreign sovereign sells stolen property and mixes the proceeds with other funds in its possession, those proceeds ordinarily become untraceable,” with the consequence that placing the burden on plaintiffs to “prove that they have traced funds in the foreign state's or instrumentality's possession to proceeds of the sale of their property . . . could [] thwart most claims under the expropriation exception.” Id. at 1118. Here, where plaintiffs had proffered record evidence that “Hungary nationalized the expropriated property, sold it, and mixed the proceeds with the general state funds, which are used to fund various governmental commercial operations,” id. at 1117 (citations omitted), they satisfied their threshold burden of production against defendants' factual challenge, see Simon 1, 812 F.3d at 147, with the burden of persuasion now shifting to defendants to “affirmatively establish by a preponderance of the evidence that their current resources do not trace back to the property originally expropriated,” Simon HI, 77 F.4th at 1119 (emphasis in original).
This burden shifting makes sense given that defendants hold the most comprehensive set of documentation relevant to “their current resources,” id., including the origin of those resources, and thus are in the best position to bear the burden of showing the expropriation exception is inapplicable. At the same time, plaintiffs were previously permitted, with defendants' consent, to conduct discovery “‘concerning the averments in the declarations [filed] in support of' the Hungarian defendants' [third] motion to dismiss,” id. at 1120 (first alteration in original) (citation omitted), including regarding the traceability of expropriated property, and insofar as plaintiffs may have information relevant to this inquiry given the passage of more than seventy-five years, fairness dictates that defendants should “be permitted to engage in basic discovery to satisfy [their] burden,” JSR, Ex. B, Defs.' Submission at 1.
Plaintiffs respond that “the discovery [defendants] seek can provide no benefit to their sovereign immunity defense, and thus the burden and expense of the proposed discovery outweigh its likely benefit,” because defendants “have declared in prior submissions that ‘it is impossible to trace the whereabouts of the expropriated property, or the proceeds thereof'” and have “produced evidence that the tracing they described is ‘impossible.'” id., Ex. A, Pls.' Submission at 2 (citations omitted). Yet, the D.C. Circuit expressly noted these declarations when explaining that defendants had “raised a factual challenge to the [plaintiffs'] allegations regarding the property element” that required this Court to “make the factual findings necessary to a determination whether the property component of the commercial-activity nexus requirement is satisfied.” Simon III, 77 F.4th at 1116, 1119. Particularly given that “the record established in 2019” was created prior to the D.C. Circuit's clarification of defendants' burden on the issue of “the location of proceeds,” JSR, Ex. B, Defs.' Submission at 2, and given the Supreme Court's instruction that courts “should normally resolve [] factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible” “consistent with foreign sovereign immunity's basic objective . . . to free a foreign sovereign from suit,” Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 581 U.S. 170, 174 (2017) (emphasis in original), jurisdictional discovery regarding the “property allegedly expropriated” is plainly relevant and appropriate to aid this Court's determination of defendants' factual challenge to plaintiffs' allegations regarding the property element, and to advance “foreign sovereign immunity's basic objective,” id.; JSR, Ex. B, Defs.' Submission at 1-2; see also Phoenix Consulting Inc., 216 F.3d at 41 (“The district court was required to resolve th[e] factual dispute material to its subject matter jurisdiction; and in order to preserve the significance and benefit of a foreign sovereign's immunity from suit under the FSIA, the court could not ‘postpon[e] the determination of subject matter jurisdiction[.]'” (citation omitted) (second alteration in original)).
Reliance on prior briefing alone to make any factual findings regarding the commercial-activity nexus, as plaintiffs urge, see Jt. Status Rep., Pls.' Proposed Schedule at 1, may have an inevitable outcome due to defendants' prior declarations regarding the impossibility of tracing “the current location of the property Hungary allegedly seized or the proceeds thereof,” Simon III, 77 F.4th at 1117 (citations omitted). This Court previously observed that these conclusions would “‘hurt[] rather than help[] the defendants,'” id. at 1119 (quoting Simon-2020, 443 F.Supp.3d at 105) (alterations in original), because the same impossibility may apply to defendants' present task to show that none of their current resources “trace back to the property originally expropriated,” id. at 1117, 1119 (citing defendants' declarations “conclud[ing] that it is impossible to trace the current location of the property Hungary allegedly seized or the proceeds thereof”). Yet, plaintiffs assert in the TAC claims of conversion and accounting, alleging that plaintiffs “owned and had the right to possess personal property that was taken from them by Defendants,” and seeking “an accounting of [plaintiffs'] stolen property, and the profits earned thereby by Defendants.” TAC ¶¶ 200, 237. These allegations suggest that plaintiffs may have some relevant information as to the property at issue since plaintiffs have the burden to press these claims.
Defendants' second discovery request regarding “[plaintiffs' alleged nationalities” is likewise appropriate. JSR, Ex. B, Defs.' Submission at 1. Plaintiffs resist this discovery request because “at this Rule 12(b) stage of the proceedings, the standing vel non of any Plaintiff is an issue of law as to which their allegations are deemed to be true[.]” id., Ex. A, Pls.' Submission at 2. This argument against allowing discovery, however, fails to acknowledge the clarification reflected by incorporation of the domestic takings rule into the expropriation exception that has occurred in the interim from when the record was last created, “under a different operative complaint with different plaintiffs making different allegations of nationality.” id., Ex. B, Defs.' Submission at 2.
Indeed, as plaintiffs recognize in their TAC, the key fact of plaintiffs' non-Hungarian nationality only became relevant after the Supreme Court's 2021 ruling in Philipp that the FSIA expropriation exception “incorporates the domestic takings rule,” thus foreclosing the use of the FSIA's expropriation exception by plaintiffs who were Hungarian nationals at the time of the takings at issue. Philipp, 592 U.S. at 187; see TAC ¶ 2 n.2 (“As a result of Federal Republic Germany v. Philipp, 592 U.S. 169 (2021) and Simon v Republic of Hungary, 77 F.4th 1077 (D.C. Cir. 2023), currently only expropriation claims by Jews who were nationals of countries other than Hungary are at issue. Consequently, this Third Amended Complaint excludes Holocaust expropriation claims by Jews who were Hungarian nationals when their property was expropriated by Defendants during the period 1938-1945.”).
To be sure, defendants previously challenged “whether the pleadings plausibly allege[d] facts that support [plaintiffs'] alleged Czechoslovakian nationality,” which challenge was reviewed under the “plausible-pleading standard,” Simon III, 77 F.4th at 1104-05 (emphasis supplied) (citations omitted). Yet, defendants have indicated their intent to mount a factual challenge to the TAC's untested allegations regarding the named plaintiffs' nationalities, with plaintiffs now alleging that “[n]o Plaintiff was a national of Hungary when Defendants expropriated his or her property,” TAC ¶ 44; that twelve named plaintiffs were Czechoslovak nationals, see id. ¶ 41; and that three new plaintiffs were nationals of Romania or Yugoslavia, id. ¶¶ 42-43. Accordingly, even assuming plaintiffs' nationalities are plausibly alleged, since “a decision about the existence of jurisdiction . . . [will] require[] resolution of factual disputes,” this Court “must go beyond the pleadings and resolve [the] disputed issues of fact” regarding plaintiffs' alleged nationalities in order to resolve defendants' forthcoming Rule 12(b)(1) motion to dismiss. Simon III, 77 F.4th at 1116 (quotation marks and citations omitted). Moreover, as defendants correctly argue, “any burden on Plaintiffs caused by responding to Hungary's proposed discovery would be minimal because the information sought should already be in Plaintiffs' possession given the new allegations” in the TAC, and “would be far outweighed by the benefit of assisting the Court with determining whether it has jurisdiction over this dispute under the FSIA.” JSR, Ex. B, Defs.' Submission at 3-4. Delaying discovery about plaintiffs' nationality may only obligate this Court to return to the issue of subject matter jurisdiction at some subsequent phase of this litigation, no matter the number of years and volume of briefing exhausted in the interim. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“Objections to subject-matter jurisdiction . . . may be raised at any time. . . . And if the trial court lacked jurisdiction, many months of work on the part of the attorneys and the court may be wasted.” (citation omitted)).
III. CONCLUSION AND ORDER
Upon consideration of the parties' Joint Status Report, ECF No. 197, for the reasons set forth above, it is hereby
ORDERED that defendants' request to propound interrogatories and related document requests concerning: (1) the property allegedly expropriated, including any property to which plaintiffs claim an interest as heirs (and support for that alleged status); and (2) plaintiffs' alleged nationalities, is GRANTED; and it is hereby
ORDERED that the March 11, 2024 Minute Order staying the briefing schedule on defendants' forthcoming motion to dismiss pending resolution of the disputes raised in the parties' Joint Status Report, see ECF No. 197, is VACATED; and it is hereby
ORDERED that the Scheduling Order issued on December 24, 2023, to control the timing of proceedings in this case, is MODIFIED as follows:
1. By April 5, 2024, defendants shall serve any discovery requests regarding (1) the property allegedly expropriated, including any property to which plaintiffs claim an interest as heirs (and support for that alleged status); and (2) plaintiffs' alleged nationalities;
2. By May 6, 2024, plaintiffs shall respond to any discovery requests;
3. By June 17, 2024, defendants shall file any motion to dismiss;
4. By July 22, 2024, plaintiffs shall file any opposition to the motion to dismiss;
5. By August 22, 2024, defendants shall file any reply in further support of their motion to dismiss.
This Scheduling Order reflects the amount of time defendants indicate would be required for defendants to propound discovery requests, for plaintiffs to respond, and for defendants to incorporate any new information into a motion to dismiss, see JSR, Ex. B, Defs.' Submission (proposing defendants serve discovery requests within 3 weeks of the filing of the parties' JSR, plaintiffs respond one month following, and defendants move to dismiss roughly six weeks thereafter), and the amount of time set out in the December 24, 2023, Scheduling Order, for briefing on a renewed motion to dismiss, to which plaintiffs urged adherence, see JSR, Ex. A, Pls.' Submission at 2-3.
SO ORDERED.