Case 2:05-cv-03459-GAF -CT Document 141
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Filed 01/18/12 Page 1 of 13 Page ID #:802
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA STREET, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 TELEPHONE (213) 633-6800 FAX (213) 633-6899
Andrew R. Hall (CA SBN 125773)
[email protected] 5 Catherine E. Maxson (CA SBN 187509)
[email protected] 4
6 7 8 9 10 11 12 13 14
OF COUNSEL: DAVIS WRIGHT TREMAINE LLP 1633 BROADWAY NEW YORK, NEW YORK 10019-6708 TELEPHONE (212) 489-8230 FAX (212) 489-8340
Victor A. Kovner (NY SBN 1155688)
[email protected] DAVIS WRIGHT TREMAINE LLP 1201 THIRD AVENUE, SUITE 2200 SEATTLE, WASHINGTON 98101-3045 TELEPHONE (206) 622-3150 FAX (206) 757-7700
Stuart R. Dunwoody (admitted pro hac vice) 15
[email protected] 16 Attorneys for Plaintiffs 17
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DAVID CASSIRER, AVA CASSIRER, and UNITED JEWISH 21 FEDERATION OF SAN DIEGO COUNTY, a California non-profit 22 corporation, 20
Plaintiffs,
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vs.
THYSSEN-BORNEMISZA COLLECTION FOUNDATION, an 26 agency or instrumentality of the Kingdom of Spain, 25
27
Defendant.
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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. CV05-3459-GAF (CTx) EX PARTE APPLICATION FOR LEAVE TO FILE POST-HEARING SUPPLEMENTAL BRIEFING; MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF CATHERINE E. MAXSON Assigned to the Hon. Gary Allen Feess Courtroom: 740
DAVIS WRIGHT TREMAINE LLP
LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
EX PARTE APPLICATION
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Filed 01/18/12 Page 2 of 13 Page ID #:803
TO DEFENDANT AND ITS COUNSEL: PLEASE TAKE NOTICE THAT Plaintiffs David Cassirer, Ava Cassirer, and
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United Jewish Federation of San Diego County (the “Cassirers”) hereby apply to this
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Court for leave to submit the proposed three-page Supplemental Briefing that is
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attached to the Maxson Declaration as Exhibit A. The Cassirers wish to submit this
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Supplemental Briefing to bring to the Court’s attention decisions of the Second
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Circuit in the Bernstein litigations, in which the Second Circuit addressed and
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resolved some of the concerns raised by the Court at the recent hearing in this matter.
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The Cassirers therefore respectfully request that the Court grant the Cassirers leave to file the attached Supplemental Briefing.
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COMPLIANCE WITH LOCAL RULE 7-19 AND WITH PRINCIPLES
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GOVERNING THE PROPER USE OF EX PARTE APPLICATIONS
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Prior to filing this Application, the Cassirers’ counsel emailed a copy of the
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proposed Supplemental Briefing to the Defendant’s counsel, Thaddeus Stauber,
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informed him that the Cassirers would be seeking leave to submit the Supplemental
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Briefing, and asked whether his client would consent to the filing of the
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Supplemental Briefing. The Cassirers offered to provide the Defendant with an
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opportunity to file a response to the Supplemental Briefing. (Maxson Decl. ¶ 3.)
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Subsequently, the Cassirers’ counsel and Mr. Stauber met and conferred
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telephonically pursuant to L.R. 7-3. During that phone call, Mr. Stauber stated that
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his client was opposed to the request to file the Supplemental Briefing. (Id. ¶ 4.)
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Mr. Stauber can be reached by telephone at (213) 629-6053; by facsimile at (866)
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877-2293; and by email at
[email protected]. (Id. ¶ 5.)
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The Cassirers are filing this Application on an ex parte basis because they
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could be prejudiced if they were required to wait ten days after the meet and confer
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to file their motion pursuant to L.R. 7-3, given that the Court may well rule on the
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Defendant’s motion to dismiss before that time. The Cassirers served Mr. Stauber 1 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
Filed 01/18/12 Page 3 of 13 Page ID #:804
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with a copy of this Application and all supporting documents via facsimile and
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electronic mail concurrently with the filing of this Application with the Court. (Id.
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¶ 6.)
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DATED: January 18, 2012
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DAVIS WRIGHT TREMAINE LLP STUART R. DUNWOODY VICTOR KOVNER CATHERINE E. MAXSON ANDREW R. HALL
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By:
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/s/ Catherine E. Maxson Catherine E. Maxson
Attorneys for Plaintiffs DAVID CASSIRER, AVA CASSIRER, and UNITED JEWISH FEDERATION OF SAN DIEGO COUNTY
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2 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
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Filed 01/18/12 Page 4 of 13 Page ID #:805
MEMORANDUM OF POINTS AND AUTHORITIES
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At oral argument regarding the Defendant’s motion to dismiss the Cassirers’
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complaint, the Court expressed its concern that the statute of limitations in Section
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338(c)(3) of the California Code of Civil Procedure would unduly interfere with the
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federal government’s foreign affairs powers. After hearing the nature of the Court’s
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concerns at oral argument, the Cassirers believe that the decisions of the Second
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Circuit in the Bernstein litigations would be helpful to the Court. In the Bernstein
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decisions, the Second Circuit addressed and resolved some of the concerns raised by
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the Court at the recent hearing in this matter.
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The Cassirers therefore respectfully request that the Court grant it leave to file
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the Supplemental Briefing addressing the Bernstein decisions that is attached to the
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Maxson Declaration as Exhibit A.
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DATED: January 18, 2012
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DAVIS WRIGHT TREMAINE LLP STUART R. DUNWOODY VICTOR KOVNER CATHERINE E. MAXSON ANDREW R. HALL
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By:
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/s/ Catherine E. Maxson Catherine E. Maxson
Attorneys for Plaintiffs DAVID CASSIRER, AVA CASSIRER, and UNITED JEWISH FEDERATION OF SAN DIEGO COUNTY
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3 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
Filed 01/18/12 Page 5 of 13 Page ID #:806
DECLARATION OF CATHERINE E. MAXSON
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I, Catherine E. Maxson, declare as follows:
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1.
I am an attorney with the law firm of Davis Wright Tremaine LLP and
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one of the attorneys representing plaintiffs David Cassirer, Ava Cassirer, and United
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Jewish Federation of San Diego County (the “Cassirers”) in this case. Each
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statement made in this declaration is based on my personal knowledge. If called
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upon to testify, I would testify in a manner consistent with each statement made
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herein.
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2.
At oral argument on January 9, 2012, regarding the Defendant’s motion
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to dismiss, the Court expressed its concern that the statute of limitations in Section
11
338(c)(3) of the California Code of Civil Procedure would unduly interfere with the
12
federal government’s foreign affairs powers. After hearing the nature of the Court’s
13
concerns at oral argument, the Cassirers believe that the decisions of the Second
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Circuit in the Bernstein litigations would be helpful to the Court, and have prepared
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Supplemental Briefing discussing Bernstein. Attached as Exhibit A is the Cassirers’
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Supplemental Briefing discussing the Bernstein decisions.
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3.
Prior to this Application, on January 17, 2012, Stuart Dunwoody, one of
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the attorneys representing the Cassirers in this matter, emailed a copy of the
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Supplemental Briefing to the Defendant’s counsel, Thaddeus Stauber, and informed
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him that the Cassirers would be seeking leave to submit the Supplemental Briefing,
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and asked whether his client would consent to the filing of the Supplemental
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Briefing. Mr. Dunwoody offered to provide the Defendant an opportunity to file a
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response to the Supplemental Briefing.
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4.
Prior to this Application, on January 18, 2012, Mr. Dunwoody and I met
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and conferred telephonically with Mr. Stauber pursuant to L.R. 7-3. During that
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phone call, Mr. Stauber stated that his client was opposed to the motion seeking leave
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to file the Supplemental Briefing.
28 4 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
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5.
Filed 01/18/12 Page 6 of 13 Page ID #:807
Mr. Stauber can be reached by telephone at (213) 629-6053; by
facsimile at (866) 877-2293; and by email at
[email protected]. 6.
I served Mr. Stauber with a copy of this Application and all supporting
4
documents via facsimile and electronic mail concurrently with the filing of this
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Application with the Court.
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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 18, 2012 at Seattle, Washington.
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/s/ Catherine E. Maxson Catherine E. Maxson
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
Filed 01/18/12 Page 7 of 13 Page ID #:808
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EXHIBIT A
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP
LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
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Filed 01/18/12 Page 8 of 13 Page ID #:809
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA STREET, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 TELEPHONE (213) 633-6800 FAX (213) 633-6899
Andrew R. Hall (CA SBN 125773)
[email protected] 5 Catherine E. Maxson (CA SBN 187509)
[email protected] 4
6 7 8 9 10 11 12 13 14
OF COUNSEL: DAVIS WRIGHT TREMAINE LLP 1633 BROADWAY NEW YORK, NEW YORK 10019-6708 TELEPHONE (212) 489-8230 FAX (212) 489-8340
Victor A. Kovner (NY SBN 1155688)
[email protected] DAVIS WRIGHT TREMAINE LLP 1201 THIRD AVENUE, SUITE 2200 SEATTLE, WASHINGTON 98101-3045 TELEPHONE (206) 622-3150 FAX (206) 757-7700
Stuart R. Dunwoody (admitted pro hac vice) 15
[email protected] 16 Attorneys for Plaintiffs 17
UNITED STATES DISTRICT COURT
18
CENTRAL DISTRICT OF CALIFORNIA
19
DAVID CASSIRER, AVA CASSIRER, and UNITED JEWISH 21 FEDERATION OF SAN DIEGO COUNTY, a California non-profit 22 corporation, 20
Plaintiffs,
23 24
vs.
THYSSEN-BORNEMISZA COLLECTION FOUNDATION, an 26 agency or instrumentality of the Kingdom of Spain, 25
27
Defendant.
28
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. CV05-3459-GAF (CTx) POST-HEARING SUPPLEMENTAL BRIEFING ON MOTION TO DISMISS DATE: TIME: PLACE:
January 9, 2012 9:30 a.m. Courtroom 740
Assigned to the Hon. Gary Allen Feess
DAVIS WRIGHT TREMAINE LLP
PLAINTIFFS’ SUPP. BRIEF ON MOT. TO DISMISS DWT 18860471v2 0068251-000001
865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141
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Filed 01/18/12 Page 9 of 13 Page ID #:810
Plaintiffs respectfully submit this Supplemental Brief to bring to the Court’s
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attention two related cases in which the Second Circuit addressed and resolved some
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of the concerns raised by the Court at the recent hearing in this matter.
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The plaintiff in those cases, Arnold Bernstein, was a German Jew who alleged
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that Nazi officials had forced him to give up his ownership interest in several
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shipping companies.
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Bernstein brought suit in New York in 1945 to seek redress for these forced
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transfers. In one action, he sued a Belgian company to recover insurance proceeds
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for a vessel that one of his shipping companies had owned. The district court
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dismissed that suit, and the Second Circuit affirmed by a 2-1 vote. Bernstein v. Van
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Heyghen Freres S.A., 163 F.2d 246 (2d Cir. 1947). Writing for the majority, Judge
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Learned Hand stated that (a) the act of state doctrine prevented the Court from
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reviewing the validity of the Nazi seizure of Bernstein’s interest in the shipping
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company and (b) even after Germany’s defeat, in the absence of any clear statement
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from the Executive Branch to the contrary, the court must continue to refrain from
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passing on the validity of Nazi Germany’s actions, to avoid interfering with possible
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post-war reparations. 163 F.2d at 249-52.
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Bernstein had also filed a second suit, alleging conversion of two ships owned
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by another shipping company whose shares the Nazis had forced him to transfer.
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After the Second Circuit’s ruling in the Van Heyghen Freres case, Bernstein moved
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to amend the complaint in this second suit to avoid making allegations that would
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raise the same act of state defense. The district court allowed the amendment, but
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held the complaint untimely under New York’s three-year statute of limitations for
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conversion. Bernstein v. N.V. Nederlandsche-Amerikaansche
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Stoomvaartmaatschappij, 76 F. Supp. 335 (S.D.N.Y. 1948).
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Within a week of that ruling, and before the district court had entered an order
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of dismissal, the New York legislature amended its borrowing statute to cure
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Bernstein’s statute of limitations problem, providing that the statute of limitations for 1 PLAINTIFFS’ SUPP. BRIEF ON MOT. TO DISMISS DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141 Filed 01/18/12 Page 10 of 13 Page ID #:811 1
a cause of action arising in a foreign country would be tolled during the period that
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the United States or any of its allies was at war with that country. Bernstein v. N.V.
3
Nederlandsche-Amerikaansche Stoomvaartmaatschappij, 79 F. Supp. 38, 39-40
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(S.D.N.Y. 1948). The district court, however, held that Bernstein could not invoke
5
the amended statute because he was a resident of New York and the statute applied
6
only to non-residents, and therefore stood by its earlier decision.
7
The Second Circuit reversed. Bernstein v. N.V. Nederlandsche-Amerikaansche
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Stoomvaartmaatschappij, 173 F.2d 71 (2d Cir. 1949). After ruling that Bernstein
9
could invoke the amended borrowing statute, it upheld the constitutionality of the
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amended statute even though it had revived a claim that was time-barred under the
11
previous statute of limitations. 173 F.2d at 74-75. In light of its previous ruling in
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the Van Heyghen Freres case, however, the court stated that Bernstein must allege in
13
his amended complaint that the duress that caused him to transfer his interest in the
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shipping companies had not been exerted by German government officials.
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Shortly after this second decision by the Second Circuit, the U.S. State
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Department issued a press release stating that the policy of the U.S. government was
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to undo transfers forced by the Nazi regime and “to relieve American courts from
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any restraint upon the exercise of their jurisdiction to pass upon the validity of acts of
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Nazi officials.” Bernstein v. N.V. Nederlandsche-Amerikaansche
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Stoomvaartmaatschappij, 210 F.2d 375, 376 (2d Cir. 1954) (quoting Jurisdiction of
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U.S. Courts Re Suits for Identifiable Property Involved In Nazi Forced Transfers, 20
22
Dep’t of St. Bull. 592 (1949)). Based on this statement by the Department of State,
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the Second Circuit amended its earlier mandate and removed the requirement that
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Bernstein allege that the duress he had suffered had not been exerted by German
25
officials. 210 F.2d at 376.
26
Although they do not explicitly discuss foreign affairs preemption, these
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decisions of the Second Circuit in the Bernstein cases confirm that it has long been
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the policy of the United States to allow suits to recover Nazi-looted assets, and that a 2 PLAINTIFFS’ SUPP. BRIEF ON MOT. TO DISMISS DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141 Filed 01/18/12 Page 11 of 13 Page ID #:812 1
state legislature may constitutionally amend a statute of limitations to make timely a
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claim to redress Nazi looting that otherwise would have been time barred.
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DATED: January 18, 2012
DAVIS WRIGHT TREMAINE LLP STUART R. DUNWOODY VICTOR KOVNER CATHERINE E. MAXSON ANDREW R. HALL
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By:
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/s/ Catherine E. Maxson Catherine E. Maxson
Attorneys for Plaintiffs DAVID CASSIRER, AVA CASSIRER, and UNITED JEWISH FEDERATION OF SAN DIEGO COUNTY
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3 PLAINTIFFS’ SUPP. BRIEF ON MOT. TO DISMISS DWT 18860471v2 0068251-000001
DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
Case 2:05-cv-03459-GAF -CT Document 141 Filed 01/18/12 Page 12 of 13 Page ID #:813
PROOF OF SERVICE BY FACSIMILE AND ECF
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I am employed in the County of Los Angeles, State of California. I am over
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the age of 18 and not a party to the within action. My business address is Davis
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Wright Tremaine LLP, Suite 2400, 865 South Figueroa Street, Los Angeles,
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California 90017-2566. On January 18, 2012, I served the foregoing document described as: EX PARTE
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APPLICATION FOR LEAVE TO FILE POST-HEARING SUPPLEMENTAL BRIEFING;
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MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF CATHERINE E. MAXSON on
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the interested parties to this action, by transmitting copies of the document via
10
facsimile to the following parties at the facsimile machine telephone numbers set
11
forth below:
12
Name
On behalf of
Fax Number(s)
Thaddeus J. Stauber Nixon Peabody LLP
Thyssen-Bornemisza Collection Foundation
(213) 629-6001
13 14 15
(866) 877-2293
16
(FROM FACSIMILE TELEPHONE NO. (213) 633-6899) at Suite 2400, 865 South
17
Figueroa Street, Los Angeles, California. Upon completion of the said facsimile
18
machine transmission, the transmitting machine will issue a transmission report
19
showing that the transmission was complete and without error. On January 18, 2012, links to the foregoing document described as: EX PARTE
20 21
APPLICATION FOR LEAVE TO FILE POST-HEARING SUPPLEMENTAL BRIEFING;
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MEMORANDUM IN SUPPORT THEREOF; DECLARATION OF CATHERINE E. MAXSON will
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be served by the Court’s ECF noticing system on the interested parties set forth
24
below:
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Name
On behalf of
Email Address(es)
26
Sarah E. Andre Thyssen-Bornemisza Nixon Peabody LLP Collection Foundation 28 27
1 LEAVE TO FILE SUPPLEMENTAL BRIEFING DWT 18860471v2 0068251-000001
[email protected],
[email protected] [email protected] DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899
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