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ALPERIN v. VATICAN BANK

May 29, 2003

EMIL ALPERIN, ET AL., PLAINTIFFS,
v.
VATICAN BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

ORDER DENYING MOTION FOR JUDGMENT BY DEFAULT; DISMISSING ACTION
Before the Court is plaintiffs' motion, filed April 10, 2001, for judgment by default on plaintiffs' Third Amended Complaint ("TAC") against defendant Croation Liberation Movement (Hrvatski Oslobodilacki Pokret) ("HOP") pursuant to Federal Rule of Civil Procedure 55(b)(22).

BACKGROUND

By order dated January 3, 2003, the Court dismissed, under the political question doctrine, the action against defendants Order of Friars Minor (OFM") and Instituto per le Opere di Religione ("IOR"). By separate order filed concurrently therewith, the Court provided plaintiffs the opportunity to demonstrate that the political question doctrine was not equally applicable to plaintiffs' claims against HOP and further to demonstrate that the Court has personal jurisdiction over HOP. On January 31, 2003, plaintiffs filed a memorandum addressing both issues and, on February 3, 2003, filed a supplemental memorandum further addressing the issue of personal jurisdiction.

DISCUSSION

A. Political Question Doctrine

As discussed in the Court's order of January 3, 2003, by which the Court granted the motions to dismiss filed by defendants OFM and IOR, "[t]he political question doctrine holds that a federal court having jurisdiction over a dispute should decline to adjudicate it on the ground that the case raises questions which should be addressed by the political branches of government:" See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 483-84 (N.J. 1999). As further discussed in that order, the Supreme Court has identified the features that characterize a case raising a nonjusticiable political question:

1] A textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; [4] or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217. If any one of these factors is "inextricable from the case," the court should dismiss the case as nonjusticiable on the ground that it involves a political question. See Baker, 369 U.S. at 217.

For the reasons expressed in its January 3, 2003 Order Granting Defendants' Motions to Dismiss, which order the Court incorporates in full by reference herein, the issues raised by the claims against HOP are equally nonjusticiable under the political question doctrine.

1. Commitment of the Issue to a Coordinate Political Department
Plaintiffs argue that in the absence of defendants OFM and IOR, the case no longer "fit[s] neatly into the category of Holocaust restitution as pursued by the Executive branch to date." (See Plaintiffs' Memorandum of Law Distinguishing HOP on Political Question Issue ("Pls.' Mem.") at 2:11-12.)

To the extent plaintiffs' argument is based on their contention the case against HOP is distinguishable from that against OFM and IOR because the Ustasha persecuted Christian Serbs, (see id. at 2:10, 15-17), plaintiffs' argument lacks merit. The events underlying plaintiffs' claims against OFM and IOR are the same events underlying plaintiffs' claims against HOP.*fn1

To the extent plaintiffs contend the case against HOP is distinguishable on the ground that HOP is neither a "governmental entity nor connected with any government," (see id. at 3:3.), plaintiffs' argument likewise fails. Governmental status has not been deemed a prerequisite for application of the political question doctrine. See, e.g., Iwanowa v. Ford Motor Company, 67 F. Supp.2d 424, 485-86 (N.J. 1999) (holding class action against German automobile manufacturer and its American parent nonjusticiable under political question doctrine where plaintiffs sought compensation and damages for forced labor in manufacturer's factory during World War II); Burger-Fischer v. Degussa AG, 65 F. Supp.2d 258, 282, 284-85 (N.J. 1999) (holding class action against German corporations nonjusticiable under political question doctrine where plaintiffs alleged defendants participated in Nazi regime's looting of gold and personal property and in using and profiting from forced labor). Citing Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), plaintiff argues that HOP is "better equated with other Balkan legal personalities which have been successfully sued in Federal Court for human rights violations." (See Pls.' Mem. at 4:6-8.) Kadic, however, did not involve claims arising from World War II, but rather from the recent Bosnian civil war. See Kadic, 70 F.3d at 236-37.

In any event, even if plaintiffs were successful in distinguishing their claims against HOP on such grounds, such distinction ultimately is unavailing as the Court lacks judicially discoverable and manageable standards for resolving the issues against HOP.

2. Lack of Judicially Discoverable and Manageable Standards for Resolving the Issues
At the outset, it should be noted that, for purposes of determining the question of discoverable and manageable standards, the fact HOP has not responded to the TAC does not itself serve to distinguish plaintiffs claims against HOP from those against OFM and IOR. Although a defendant, by reason of its failure to respond to a complaint, is deemed to have admitted the well-pleaded factual allegations contained therein, "necessary facts not contained in the pleadings and claims which are legally insufficient are not established by default." See Cripps v. Life Insurance Co. of No. America, 980 F.2d 1261, 1267 (9th Cir. 1992).

Here, although the TAC consists of 29 pages, few references are made therein to HOP. Rather, the TAC describes in detail the atrocities committed by the Ustasha and other Nazi sympathizers. Neither the Ustasha nor the Independent State of Croatia, on whose behalf the Ustasha acted, is named as a defendant, nor are any of the leaders of the Ustasha, who, as alleged in the TAC, include" [Ante] Pavelic, (President of Puppet Croatia), [Andrija] Artukovic (Ustasha Minister of Justice), [Dinko] ...


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