Rubin v. Islamic Republic of Iran , 270 F.R.D. 7 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JENNY RUBIN et al., :
:
Plaintiffs, : Civil Action No.: 01-1655 (RMU)
:
v. : Re Document Nos.: 82, 90
:
THE ISLAMIC REPUBLIC OF IRAN :
et al., :
:
Defendants, :
:
and :
:
THE UNITED STATES OF AMERICA, :
:
Intervenor. :
MEMORANDUM OPINION
DENYING THE PROPOSED INTERVENORS’ MOTION TO INTERVENE; DENYING
AS MOOT THE PROPOSED INTERVENORS’ MOTION FOR AN EXTENSION OF TIME
TO FILE A NOTICE OF APPEAL
I. INTRODUCTION
In 2001, the plaintiffs sued the Islamic Republic of Iran and related defendants under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq., for injuries sustained as
a result of a terrorist attack in 1997. The defendants neither appeared in court nor responded to
the complaint. Thus, in 2003, the court issued a default judgment in favor of the plaintiffs for
$71,500,000.
As part of the plaintiffs’ efforts to enforce their judgment, they initiated attachment
proceedings in other districts against the University of Chicago, the Field Museum of Chicago,
Harvard College and the Museum of Fine Arts in Massachusetts (collectively, “the Museums”).
According to the plaintiffs, the Museums possess artifacts belonging to Iran that the plaintiffs
may attach to satisfy their judgment.
The Museums have moved to intervene in this action to seek reconsideration of and
potentially to appeal a June 3, 2008 order of this court authorizing the plaintiffs to attach
property belonging to Iran to satisfy their judgment. Because the Museums assert no valid
justification for waiting until after the order was issued to move for intervention, the court denies
the motion to intervene as untimely.1
II. FACTUAL & PROCEDURAL BACKGROUND
On July 31, 2001, the plaintiffs filed a complaint against the defendants for injuries
sustained as a result of a terrorist attack in Jerusalem in 1997. Comp.; Mem. Order (June 3,
2008). The defendants did not appear in court or respond to the complaint. Mem. Order (June 3,
2008) at 1 n.1. Thus, on March 6, 2002, the Clerk of the Court entered default against the
defendants. Id. The Court then conducted several evidentiary hearings, still without the
participation of the defendants, which resulted in the court issuing a default judgment for the
plaintiffs totaling $71,500,000 on September 10, 2003. Id. As of July 29, 2008, the plaintiffs
had collected only $400,000 against the judgment. Pls.’ Opp’n at 4.
As part of the plaintiffs’ continuing efforts to enforce their judgment, they have attempted
to attach certain artifacts, allegedly belonging to Iran, which are housed at the Museums. Id. at
5-10. These attachment proceedings are being litigated in the United States District Courts for
the Northern District of Illinois and the District of Massachusetts. Id. The two central issues in
1
The Museums have also filed a motion for an extension of time to appeal the court’s June 3, 2008
order. Because, as discussed below, the court denies the Museums’ motion to intervene in this
action, their motion for leave to late-file an appeal of the order is moot.
2
the attachment proceedings are whether the artifacts belong to Iran and whether Iran’s sovereign
immunity prevents the plaintiffs from attaching those artifacts. Id.Under the version of the FSIA in force at the time the default judgment was entered,
plaintiffs were not permitted to attach property owned by foreign sovereign nations to satisfy
judgments against those nations. See 28 U.S.C. § 1609 (providing that “property in the United
States of a foreign state shall be immune from attachment arrest and execution except as
provided in sections 1610 and 1611 of this chapter”). Subsequently, however, Congress
amended the FSIA by enacting the National Defense Authorization Act (“NDAA”), which
broadened the rights of individuals seeking to obtain and enforce judgments against foreign
sovereigns arising out of terrorist acts. See generally Pub. L. No. 110-181, 122 Stat. 3 (2008).
The NDAA established a new cause of action for victims of state-sponsored terrorism, and
removed sovereign immunity protection for sovereign property owned by states responsible for
terrorist acts. 28 U.S.C. §§ 1605A, 1610(g)(2). The NDAA further provided that judgments
entered under the old version of the FSIA “shall, on motion made by plaintiffs to the United
States district court where the action was initially brought . . . be given effect as if the action had
originally been filed under” the amended version of the FSIA. 28 U.S.C. § 1605A(c)(2). Pub. L.
No. 110-181, § 1083(c)(2).
The plaintiffs filed such a motion on March 28, 2008. See generally Pls.’ Mot. for Order
Pursuant to § 1083(c)(2) of the Nat’l Defense Authorization Act (“Pls.’ NDAA Mot.”). The
Museums, concerned that granting the motion would adversely affect them in the ongoing
attachment proceedings, mailed a letter to the Clerk of the Court on May 30, 2008, explaining
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why they believed the motion should not be granted.2 Museums’ Reply at 5 n.1. They also
faxed the letter to chambers on June 3, 2008. Museums’ Mot. at 4-5. They did not, however,
move to intervene, and the court granted the plaintiffs’ motion. See generally Mem. Order (June
2, 2008); Mem. Order (June 3, 2008).3
On June 16, 2008, two weeks after the court granted the plaintiffs’ motion, the Museums
moved to intervene “for the purposes of seeking reconsideration of this Court’s Memorandum
Orders of June 2, 2008 and June 3, 2008 and preserving an appeal.” Museums’ Mot. at 1. The
Museums assert that they are entitled to intervene as a matter of right under Rule 24(a) and, in
the alternative, that they are entitled to permissive intervention under Rule 24(b). Museums’
Mot. at 1; Museums’ Mem. at 12. The plaintiffs filed an opposition on July 29, 2008, claiming,
inter alia, that the Museums have no legally cognizable interest in the action and that the motion
to intervene is untimely. Pls.’ Opp’n at 2, 17. With the Museums’ motion fully briefed, the
court turns to the applicable legal standards and the parties’ arguments.
III. ANALYSIS
A. Legal Standard for a Motion to Intervene
Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right
and permissive intervention. FED. R. CIV. P. 24; Fund for Animals, Inc. v. Norton, 322 F.3d 728,
731 (D.C. Cir. 2003). Rule 24(a) provides for intervention as of right, stating that
2
As the Museums point out, their May 30, 2008 letter was not received by the court until June 2,
2008, the date on which the court granted the plaintiffs’ NDAA motion. See Museums’ Reply at
5 n.1.
3
The court granted the plaintiff’s motion in a memorandum order issued June 2, 2008. See
generally Mem. Order (June 2, 2008). The court issued a corrected version of that memorandum
order on June 3, 2008. See generally Mem. Order (June 3, 2008).
4
[o]n timely motion, the court must permit anyone to intervene who: (1) is given
an unconditional right to intervene by a federal statute; or (2) claims an interest
relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties adequately
represent that interest.
FED. R. CIV. P. 24(a).
This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application
to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the
action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an
adequate representative of the applicant’s interests.’” Karsner v. Lothian, 532 F.3d 876, 885
(D.C. Cir. 2008) (quoting Sec. Exch. Comm’n v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C.
Cir. 1998)). In addition, an applicant must demonstrate that it has standing. Jones v. Prince
George’s County, Md., 348 F.3d 1014, 1017-18 (D.C. Cir. 2003).
Alternatively, Rule 24(b) authorizes permissive intervention for an applicant who timely
files a motion when a federal statute confers a conditional right to intervene or the applicant’s
claim or defense has a question of law or fact in common with the main action. FED. R. CIV. P.
24(b). In considering a motion for permissive intervention, a court must determine whether the
proposed intervention “will unduly delay or prejudice the adjudication of the rights of the
original parties.”4 Id.Timeliness is a threshold question for both permissive intervention and intervention as of
right. NAACP v. New York, 413 U.S. 345, 365 (1973). “Whether intervention be claimed of
right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule
24(b), that the application must be ‘timely.’ If it is untimely, intervention must be denied.” Id.;
4
In this Circuit, “there is uncertainty over whether standing is necessary for permissive
intervention.” In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C. Cir. 2000).
5
see also United States v. British Am. Tobacco Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir.
2006) (holding that “[a]s a threshold matter . . . Rule 24 requires prospective intervenors to file a
‘timely application’”); Acree v. Republic of Iraq, 370 F.3d 41, 49 (D.C. Cir. 2004) (noting that
“[u]nder either [Rule 24(a) or Rule 24(b)], the prospective intervenors’ motion must be
‘timely’”), abrogated on other grounds sub nom., Republic of Iraq v. Beaty, 129 S. Ct. 2183(2009); Mass. Sch. of Law v. United States, 118 F.3d 776, 783 n.5 (D.C. Cir. 1997) (noting that
“untimeliness in seeking intervention may justify its denial without consideration of the merits”).
B. The Court Denies the Museums’ Motion to Intervene as Untimely
The Museums assert that their motion to intervene is timely because it was filed “within
the 10 business days for filing a motion for reconsideration under 59(e) and well within the thirty
days permitted for filing a notice of appeal.” Museums’ Mot. at 6-9. The plaintiffs respond that
the Museums’ motion to intervene is untimely because the Museums had the opportunity to file
it before the court granted the plaintiffs’ motion but chose not to do so, instead submitting a letter
opposing the plaintiffs’ § 1083(c)(2) motion and waiting until after the motion was granted to
move to intervene. Pls.’ Opp’n at 17-18. They also assert that sending the letter was improper
and sanctionable. Id. The Museums respond by asserting that they decided to send the letter
instead of moving to intervene because they were “driven by a desire to present important
arguments to the Court in as timely a fashion as possible.” Museums’ Reply at 5-6. They also
state that they sent the letter as soon as they determined that the plaintiffs had misconstrued the
NDAA because they “feared that the Court might soon rule on Plaintiffs’ request . . . without the
benefit of adversarial briefing.” Id.
The timeliness of a motion to intervene “is to be judged in consideration of all the
circumstances, especially weighing the factors of time elapsed since the inception of the suit, the
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purpose for which intervention is sought, the need for intervention as a means of preserving the
applicant’s rights, and the probability of prejudice to those already parties in the case.” British
Am. Tobacco Austl. Servs., 437 F.3d at 1238 (quoting United States v. Am. Tel. & Tel. Co., 642
F.2d 1285, 1295 (D.C. Cir. 1980)). This Circuit has, however, made clear that “[a] motion for
‘intervention after judgment will usually be denied where a clear opportunity for pre-judgment
intervention was not taken.’” Associated Builders & Contractors, Inc. v. Herman, 166 F.3d
1248, 1257 (D.C. Cir. 1999) (quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 193 (D.C. Cir.
1986)).
In Associated Builders, the proposed intervenor filed a motion to intervene several weeks
after the district court had ruled on the parties’ cross-motions for summary judgment. 166 F.3d
at 1254. In reviewing the district court’s denial of the motion, the Circuit noted that the
proposed intervenor “offered no reason, and no reason [was] apparent from the record, why it
could not have sought intervention prior to judgment.” Id. at 1257. In light of this failure, and
“given the presumption that post-judgment motions to intervene will be denied,” the Circuit
affirmed the district court’s denial of the motion, observing that “any motion for intervention
must be ‘timely.’” Id. (citing FED. R. CIV. P. 25) (emphasis added); see also Mass. Sch. of Law,
118 F.3d at 783 n.5 (denying permissive intervention and holding that when “would-be
intervenors . . . inexcusably neglect to try to enter the proceedings before judgment, at a time
when notice of their arguments would have enabled the district court to avert the alleged errors . .
. post-judgment intervention for the purpose of challenging those supposed defects on appeal
would rightly be denied as untimely” (citing NAACP, 413 U.S. at 366-68)); Moten v. Bricklayers
& Plasterers, 543 F.2d 224, 227-28 (D.C. Cir. 1976) (denying a motion to intervene as of right
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and holding that “cases in this Circuit permitting post-judgment intervention should not be
controlling where clear opportunity for pre-judgment intervention . . . was not taken”).
In this case, the Museums were aware long before the court granted the plaintiffs’ motion
in June 2008 that their interests were implicated in these proceedings. See Catanzano v. Wing,
103 F.3d 223, 232 (2d Cir. 1996) (noting that the relevant inquiry for determining timeliness of a
motion to intervene is the point at which the proposed intervenor knew or should have known
that an action could affect his interests). By February 2005, the plaintiffs had initiated
attachment proceedings against the Museums in both the Northern District of Illinois and the
District of Massachusetts seeking to enforce the default judgment issued in this case. See
Museums’ Mot. at 11; Pls.’ Opp’n at 5-10. The Museums must have been aware early in the
course of those proceedings that their interests were implicated in this action.
Moreover, the Museums had reason to intervene beginning on March 28, 2008, when the
plaintiffs filed their motion for retroactive application of the NDAA. The Museums, however,
did not move to intervene at that point, and indeed, took no action for two full months, when,
instead of moving to intervene, they sent a letter to the court expressing their views on the merits
of the plaintiffs’ motion. See Museums’ Reply at 5 n.1. Although the Museums assert that they
sent the letter as soon as they determined that the plaintiffs had misconstrued the NDAA,
Museums’ Reply at 5-6, they offer no explanation for why they waited two months after the
plaintiffs filed their motion regarding the NDAA to raise their arguments to the court. See
generally Museums’ Mot.; Museums’ Reply. Moreover, the Museums offer no explanation for
why they chose to submit a letter5 rather than filing a motion to intervene, in which they could
have referenced their substantive grounds for opposing the plaintiffs’ motion and requested that
5
Even if the court had been inclined to consider the substantive arguments raised by the Museums,
who were non-parties to this action, the Museums’ letter did not arrive at the court until the day
the court issued an order granting the plaintiffs’ motion. See Museums’ Reply at 5 n.1.
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the court delay ruling on the plaintiffs’ motion pending resolution of the motion to intervene.
See generally Museums’ Mot.; Museums’ Reply. Instead, the Museums submitted a letter, with
the apparent hope that the court would consider arguments submitted by a non-party to the
litigation. This hope, however, was unfounded and does not justify their failure to seek formal
intervention in a timely fashion. Thus, the Museums had a clear opportunity to intervene in this
action prior to the resolution of the plaintiffs’ motion but chose not to do so.
The Museums rely on United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977), to
assert that motions to intervene are timely as long as they are filed within the time period for
filing an appeal or seeking reconsideration. See Museums’ Mot. at 6. Yet in McDonald, the
post-judgment motion for permissive intervention was granted because “there was no reason for
the [intervenor] to suppose that [the named plaintiffs] would not take an appeal until . . . after the
trial court had entered its final judgment.” McDonald, 432 U.S. at 394. Indeed, the Court noted
“the critical fact” that “as soon as it became clear to the [intervenor] that the interests of the [non-
parties] would no longer be protected by the named [parties], she promptly moved to intervene.”
Id.In construing the holding of McDonald, this Circuit has required that motions to
intervene be filed before the entry of judgment unless the proposed intervenor does not know
until after judgment is entered that the named parties will not protect its interests. See Smoke v.
Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (granting a post-judgment motion to intervene as of
right because “the potential inadequacy of representation came into existence only at the
appellate stage” (quoting Dimond, 792 F.2d at 193)); Associated Builders, 166 F.3d at 1257(noting that in McDonald, “the necessity of intervention did not arise until after judgment had
been entered” (citing McDonald, 432 U.S. at 393-94)). In this case, the Museums knew that
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intervention would be needed to protect their interests long before the plaintiffs’ motion was
granted, given the defendants’ failure to participate at any point in this action. At the very least,
the Museums must have been aware of the need for intervention when the deadline for opposing
the plaintiffs’ NDAA motion passed without any action from the defendants. Accordingly, the
exception for post-judgment intervention set forth in McDonald does not apply. See Associated
Builders, 166 F.3d at 1257 (citing McDonald, 432 U.S. at 393-94); Moten, 543 F.2d at 227-28.
The Museums also rely on Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), in
which this Circuit held that the district court abused its discretion in denying a post-judgment
motion to intervene. Museums’ Mot. at 6. In Acree, however, the Circuit stated that it was
making an exception to the established rule due to the “unique circumstances of [the] case,” –
namely, that it was “a case with undeniable impact on the Government’s conduct of foreign
policy.” Acree, 370 F.3d at 50. Indeed, the Circuit explicitly grounded its holding on the foreign
policy implications of the case, stating that although “[c]ourts are generally reluctant to permit
intervention after a suit has proceeded to final judgment, particularly where the applicant had the
opportunity to intervene prior to judgment . . . in light of its clear foreign policy interests, the
United States was entitled to intervene as of right.” Id. at 49-50.
The motion to intervene now before the court has not been brought by the United States
based on its foreign policy interests in the action, but instead by a group of museums. See
generally Museums’ Mot. Moreover, the United States has already intervened in this action to
assert its foreign policy interests. See Minute Order (July 15, 2004); see generally United States’
Motion to Quash Pls.’ Writ of Attachment (Aug. 2, 2004). The Museums’ motion to intervene,
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therefore, does not merit the exception that was applied in Acree.6
In short, the Museums have offered no explanation for their failure to seek intervention
prior to the court’s resolution of the plaintiffs’ motion, despite the fact that they had a clear
opportunity to do so. Accordingly, their motion to intervene is untimely and must be denied.
IV. CONCLUSION
For the foregoing reasons, the court denies the Museums’ motion to intervene and denies
as moot the Museums’ motion for an extension of time to appeal. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued this 8th day of September,
2010.
RICARDO M. URBINA
United States District Judge
6
The Museums also rely on Benzman v. Whitman, 2006 WL 3771014 (S.D.N.Y. Dec. 15, 2006).
Museums’ Mot. at 6. Yet Benzman concerned a case in which the motion to intervene had
already been denied, and the motion to reconsider that denial was found to be timely. 2006 WL
37710014, at *1, 3. Accordingly, the Museums’ reliance on Benzman is misplaced.
11