Jenny Rubin v. Islamic Republic of
2011 U.S. App. LEXIS 6394
| 7th Cir. | 2011Background
- Iran appeals two interlocutory orders arising from attachment of three Persian artifact collections in Chicago museums to satisfy a $71.5 million FSIA judgment for terrorism-related injuries.
- Plaintiffs registered the Washington, D.C. judgment in the Northern District of Illinois and sought to attach Persepolis, Chogha Mish (Oriental Institute) and Herzfeld Collection (Field Museum).
- District court held § 1609 immunity is an affirmative defense requiring appearance; ordered broad general-asset discovery beyond the identified assets.
- Iran appeared and asserted § 1609 attachment immunity; discovery disputes ensued over scope and whether immunity should be resolved with or without Iran’s appearance.
- Court treated this as a collateral-order appeal, reversing the general-asset discovery order and the appearance/pleading requirement as inconsistent with FSIA text and practice.
- Court held that foreign-state property in the United States is presumptively immune from attachment and must be evaluated for an exception against the specific identified property, not via broad asset discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether general-asset discovery violates § 1609 immunity | Rubin argues broad discovery necessary to prove attachable assets under § 1610/1610(a)(7) and TRIA. | Iran contends broad discovery is permissible to locate assets and evaluate immunity. | General-asset discovery reversed; discovery limited to identified property and applicable exceptions. |
| Whether § 1609 immunity is an affirmative defense requiring appearance | Plaintiffs rely on appearance to raise immunity issues and obtain discovery. | Iran contends immunity is not tied to appearance, and court must determine immunity itself. | Immunity inheres in the property; may be raised by the property holder or court sua sponte, without Iran’s appearance. |
| Whether the proper appellate vehicle/appellate jurisdiction exists for review | Collateral-order review is appropriate for immunity-related discovery orders. | Timely appeal should follow final judgment; § 1292(b) certification unnecessary. | Appeal properly available under collateral-order doctrine; review of related immunity order permissible with timely appeal of the discovery order. |
| Whether the FSIA requires identifying specific property before discovery | Discovery should extend to assets beyond the three collections to locate other attachable property. | Discovery should be circumscribed to the specific property potentially subject to attachment under § 1610/TRIA. | Plaintiffs must identify specific property; discovery is limited to that property and applicable exceptions. |
Key Cases Cited
- Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737 (7th Cir. 2007) (FSIA §1609 immunity requires identifying specific property for attachment)
- Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528 (5th Cir. 1992) (tension between discovery to verify immunity and protecting immunity from discovery)
- First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172 (2d Cir. 1998) (limited discovery against instrumentality to verify alter-ego or attachable assets)
- Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992) (distinguishable; instrumentality vs. state; support for circumscribed discovery)
- EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d Cir. 2007) (discovery should be circumspect and focus on specific immunity facts)
- Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (Supreme Court 1983) (immunity rules and deference to executive policy; statutory structure of immunity)