|Bigio v. Coca Cola
United States District Court for
the Southern District of New
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED SO EARLY IN A CASE INVOLVING MANY
DISPUTED FACTUAL ISSUES AND INFERENCES
A. The Bigios Did Not Waive Their Right to Discovery.
We relied in our opening brief upon well-established authority for the proposition that the abrupt entry of summary judgment in this case, prior to discovery, must be vacated because it deprived the Bigios of their right to obtain the facts they needed to prove their case (Bigio Br.1 at 17-27). Coca-Cola responded that the Bigios waived discovery by cross-moving for partial summary judgment (Coca-Cola Br. 44-45). Coca-Colas brief fails to cite any authority in support of this novel proposition.
Not only does Coca-Cola cite no authority for its "implied waiver" contention, but the policy of Rule 56 of the Federal Rules of Civil Procedure fails to support the argument. No party would move for summary judgment a procedure designed to facilitate prompt adjudication if such a motion evidenced "a conscious decision to forego discovery" (Coca-Cola Br. 43) and would bar later discovery on a waiver theory.
B. Genuine Issues of Material Fact Require Reversal of the Entry of Summary Judgment.
Four central factual disputes, even on this abbreviated record, made summary judgment plainly improper (Bigio Br. 19-27). Coca-Cola is wrong in asserting (Coca-Cola Br. 45) that none of these disputes is material.
First, there is ample evidence in the record (JA 27-38, 42-87) completely ignored by the trial court that the systematic persecution of Egypts Jews was neither an "ordinary tort," as the trial court concluded, nor merely a "land reform" program, as Coca-Cola contends (Coca-Cola Br. 8 n.2). As we have explained, a prolonged national program of religious persecution, unlike "ordinary torts" of trespass or conversion, gives rise to a claim under the Alien Tort Claims Act (Bigio Br. 27-41). The circumstances under which the Bigios property was expropriated are thus clearly material to the establishment of their ATCA claim (Bigio Br. 19-21).
Second, in discrediting the Finance Ministrys annulment orders on the ground that there was no "evidence regarding the[ir] legal effects," the trial court subverted the first principle of summary judgment: that all factual inferences and ambiguities must be resolved in favor of the non-moving party. Quarantino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995) (reversing, on this ground, early grant of summary judgment by same district judge who decided this case). The dispute concerning the annulment orders was unquestionably material because the act of state doctrine has no application where a state has repudiated an unlawful expropriation (Bigio Br. 25-26, 45-47).
Third, the dispute concerning whether Josias Bigio was stripped of his citizenship before or after the discriminatory expropriation is material to the question whether the Bigios property rights, as set forth in § 712 of the Restatement (Third) of the Foreign Relations Law of the United States (1986) ("Restatement"), were violated (Bigio Br. 36 n.9; IAJLJ Br. 12-14). Coca-Cola goes to great lengths to argue that § 712 only vests aliens with property rights, and thus provides no recourse to the Bigios, who were stateless persons (Coca-Cola Br. 35-36). Coca-Cola overlooks the fact that, as stateless persons, the Bigios held the same rights to "movable and immovable" property as those "accorded to aliens in the same circumstances."2 International Convention Relating to the Status of Stateless Persons (1954) (JA 111)3. There is no doubt that a States discriminatory seizure of an aliens property would violate international law today and 4 in 1962 5.
Accordingly, by crediting Coca-Colas assertion that Josias Bigio was denaturalized after the seizure, the trial court prevented the Bigios from proving the violation of their property rights (Bigio Br. 23-24, 36 n.9; IAJLJ Br. 12-14).
Fourth, the trial court considered Coca-Cola an innocent purchaser of the Bigios property, despite the fact that Coca-Cola had knowledge of both the discriminatory expropriation in 1962 (as a long-time tenant and a customer of the Bigios) and of Egypts repudiation of the expropriation in the late 1970s. Any further evidence that may be required to prove that Coca-Cola was a beneficiary, participant, or co-conspirator can only be obtained during discovery. Coca-Colas contention that it is "sheer speculation" that such evidence exists (Coca-Cola Br. 45) relies upon a dismissal "following discovery." DAmico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 118 S. Ct. 2075 (1998). This Court reversed a similar dismissal before discovery, rejecting the defendants contention that the plaintiff had failed to adduce the facts required to invoke the courts jurisdiction. First City, Texas Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998).
1. References to briefs other than this one are as follows: "Bigio Br." for the Brief of Appellants; "Coca-Cola Br." for the Brief of Appellees; "Yale Br." for Amicus Brief of Allard K. Lowenstein International Human Rights Law Clinic; and "IAJLJ Br." for Amicus Brief of the International Association of Jewish Lawyers and Jurists, American Section.2. The Bigios do not contend that they "were discriminated against because they were non-citizens" (Coca-Cola Br. 35) (emphasis added). Coca-Colas argument that the Bigios never made such an allegation in the complaint is a straw man. The complaint alleges that the Bigios were discriminated against because they are Jewish. The fact that they were stateless at the time they were subject to anti-Semitic discrimination makes the expropriation unlawful under § 712 of the Restatement. 3. Filartiga v. Pena-Irala, 630 F.2d 876, 880 n.7 (2d Cir. 1980), and Kadic v. Karadzic, 70 F.3d 232, 238 n.1 (2d Cir. 1995), make clear that an international instrument that reflects an emerging norm in international law is binding upon all states. 4. See Banco Nacional de Cuba v. Chemical Bank, 822 F.2d 230, 237 (2d Cir. 1987) (affirming rule that "[a]s a general principle of international law, a state is liable to a private person who is a national of another state if it takes the foreign nationals property and the taking is discriminatory"); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711-713 (9th Cir. 1992) (holding that discriminatory seizure of aliens property satisfied the international taking exception to the Foreign Sovereign Immunities Act). 5. Coca-Cola erroneously relies upon Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), for the opposite conclusion (Coca-Cola Br. 27 n.4). In Sabbatino, the Supreme Court held that the act of state doctrine barred consideration of Cubas 1960 discriminatory taking of American property located in Cuban waters. The Court, however, did not disturb the lower courts conclusion that the discriminatory seizure targeted at Americans violated international law. After Congress overruled the holding in Sabbatino (22 U.S.C. § 2370), the trial court again found the discriminatory seizure unlawful and this Court affirmed. Banco Nacional de Cuba v. Farr, 383 F.2d 166, 183 (2d Cir. 1967).
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