Paul Chaim Shlomo Fischer v. Magyar Á Llamvasutak Zrt .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3487
P AUL C HAIM SHLOMO FISCHER , et al.,
Plaintiffs‐Appellants,
v.
MAGYAR Á LLAMVASUTAK ZRT .,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 868 — Samuel Der‐Yeghiayan, Judge.
____________________
A RGUED MAY 23, 2018 — D ECIDED J UNE 13, 2018
____________________
Before WOOD, Chief Judge, and BAUER and SCUDDER , Circuit
Judges.
SCUDDER , Circuit Judge. Paul Chaim Shlomo Fischer
appeals an order denying a motion to reopen an action he and
other Hungarian Jews brought against an instrumentality of
the Hungarian government, the national railway, under an
exception to the Foreign Sovereign Immunities Act for harms
suffered during the Holocaust. Although Fischer seeks our
review of the district court’s order, he is not the individual the

-- 1 of 8 --

2 No. 17‐3487
district court treated as filing the motion leading to the order.
The district court read the motion as coming from Iren Gittel
Kellner, a putative member of the class Fischer sought to have
certified in the action previously ordered dismissed without
prejudice to permit an exhaustion of any remedies available
in Hungary. Indeed, the district court denied the motion on
this precise and limited basis—Kellner’s lack of “standing” to
seek to reopen an action in which a class never was certified.
In these circumstances, this court, too, faces an
insurmountable barrier: we lack authority to consider an
appeal from a party not subject to the order sought to be
challenged.
I
This litigation began in 2010, and now makes its third visit
to our court. In 2012, the court issued multiple opinions ad‐
dressing aspects of claims that Hungarian survivors of the
Holocaust brought in the Northern District of Illinois against
several Hungarian banks and the Hungarian national railway.
Relevant here is the class‐action complaint Fischer and twenty
other individuals filed against the Hungarian national rail‐
way. Fischer alleged that in 1944 the railway, known as Mag‐
yar Államvasutak Zrt., transported him and up to 500,000
other Jews from Hungary to Auschwitz and other concentra‐
tion camps. In terms jarring and difficult to read, Fischer’s
complaint recounted allegations of horrific personal harm
and losses of valuable and treasured personal possessions ex‐
perienced by Hungarian Jews forcibly transported to concen‐
tration camps by the national railway.
In 2012, the court concluded that the plaintiffs, including
Fischer, had neither exhausted remedies that may be available

-- 2 of 8 --

No. 17‐3487 3
in Hungary nor established that the national railway is en‐
gaged in commercial activity in the United States—require‐
ments necessary to support the district court’s exercise of sub‐
ject matter jurisdiction under the FSIA’s expropriation excep‐
tion. Our 2012 opinion explained these requirements in much
detail. See Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 671,
678–86, 694–95 (7th Cir. 2012).
This court reached the same conclusion three years later,
holding that the district court (on remand from our first
opinion) committed no error in determining that the plaintiffs
had failed to offer a compelling reason for foregoing the
pursuit of remedies in Hungary. See Fischer v. Magyar
Államvasutak Zrt., 777 F.3d 847, 859–66 (7th Cir. 2015). Our
2015 opinion also took care to qualify the bounds of the
exhaustion mandate: “If plaintiffs attempt to bring suit in
Hungary and are blocked arbitrarily or unreasonably, United
States courts could once again be open to these claims against
the national railway and bank.” Id. at 865–66.
In February 2016, Iren Gittel Kellner, a member of the pu‐
tative class defined in the amended complaint, filed her own
complaint against the Hungarian national railway in Buda‐
pest’s Capital Regional Court. She sought to recover for losses
of personal property, including religious articles, currency
and clothing, and family photographs, as well as for other
harm (resulting from the intentional infliction of emotional
distress and false imprisonment) experienced while traveling
to Auschwitz in an overcrowded national railcar with her fa‐
ther, mother, and eight siblings.
In October 2016, the Hungarian court issued a written de‐
cision dismissing Kellner’s case. The court determined that

-- 3 of 8 --

4 No. 17‐3487
Hungarian law required Kellner to support her claim to re‐
cover for any losses of personal property with evidence inde‐
pendent of her own testimony (for example, documentary ev‐
idence of some kind). As for Kellner’s claim for damages for
personal injuries, the Hungarian court concluded that any
Holocaust‐related claim for noneconomic damages based
upon events alleged to have occurred before March 1978 was
not cognizable under the applicable provision of the Hungar‐
ian Civil Code.
What transpired next gave rise to this appeal. In June 2017,
the district court received a three‐page motion styled “Motion
to Reinstate.” While purportedly brought by the “Plaintiff,”
the motion sought reinstatement of the previously dismissed
amended complaint on the basis of “class member” Kellner’s
efforts to exhaust remedies in Hungary. Those efforts, the mo‐
tion urged, demonstrated that “Ms. Kellner’s efforts on behalf
of herself and other plaintiffs herein, to obtain remedies be‐
fore Hungarian courts have been ‘frustrated unreasonably or
arbitrarily,’” within the meaning of the standard articulated
in our 2015 opinion. See Fischer, 777 F.3d at 852.
The district court treated the motion as filed by Kellner
and issued a summary order declining to reinstate the com‐
plaint. The court’s reasoning was clear and limited:
[A]lthough there was a proposed class in this case and
Kellner may have been a putative class member,
Kellner is not a “class member” as she claims in her
motion. No class was certified in this case. Kellner was
not and is not a named party in this case and lacks any
standing to reopen this case.

-- 4 of 8 --

No. 17‐3487 5
Neither party to the proceeding below asked the district
court to reconsider its order. Nobody, for instance, asked the
district court to treat the motion to reinstate as being filed not
by Kellner (as a putative class member), but instead by Fischer
(as a named plaintiff). Such a request would have been rea‐
sonable, as the motion to reinstate could have been viewed as
coming from Fischer. Regardless, the record is clear that the
district court, right or wrong, treated the motion as coming
from Kellner, and Fischer did not seek reconsideration of that
decision. See Dietz v. Bouldin, 136 S. Ct. 1885, 1891–92 (2016)
(explaining that “the Court has recognized that a dis‐
trict court ordinarily has the power to modify or rescind its
orders at any point prior to final judgment in a civil case”).
Foregoing a path of reconsideration, Fischer—not
Kellner—then chose to notice this appeal and seek our review
of the district court’s order. Briefing ensued with Fischer and
the Hungarian national railway focused, first, on whether the
district court properly found that Kellner filed the motion
and, second, whether Kellner experienced any unreasonable
or arbitrary frustration of her attempt to pursue remedies in
Hungary. Concerned that appellate jurisdiction may be lack‐
ing, we then sought supplemental briefing on whether the
district court had entered a final decision within the meaning
of 28 U.S.C. § 1291 and, more specifically, whether the district
court’s order denying the motion to reinstate constituted a
“clear legal bar” to the revival of the claims brought against
the Hungarian national railway. Chessie Logistics Co. v. Krinos
Holdings, Inc., 867 F.3d 852, 856 (7th Cir. 2017).
II
We lack authority to consider Fischer’s appeal. The district
court treated the motion to reinstate as coming solely from

-- 5 of 8 --

6 No. 17‐3487
Kellner. Yet it is Fischer who seeks our review. Fischer, how‐
ever, has suffered no “adverse effect” from the denial of the
motion to reinstate on the ground that Kellner lacked stand‐
ing, so he cannot appeal the basis for that decision. Wachovia
Securities, LLC v. Loop Corp., 726 F.3d 899, 907 (7th Cir. 2013)
(quoting Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th
Cir. 1997)); see also Cabral v. City of Evansville, Ind., 759 F.3d
639, 643 (7th Cir. 2014); Raley v. Hyundai Motor Co., 642 F.3d
1271, 1274 (10th Cir. 2011) (“After all, it is usually only parties
who are sufficiently aggrieved by a district court’s decision
that they possess Article III and prudential standing to be able
to pursue an appeal of it.”). Nothing changes if we view the
appeal before us as being filed not just by Fischer but by all
plaintiffs named in the amended complaint, for the district
court’s order applies only to Kellner who was not a named
plaintiff.
We also know of no authority permitting us to interchange
or modify the parties to an appeal without regard to the
standards for substitution in Federal Rule of Appellate Proce‐
dure 43. And, while sympathetic to Fischer’s urgency to pros‐
ecute what all agree are very serious claims arising out of one
of the worst atrocities in the history of humankind, we remain
a court of limited jurisdiction. We must ensure our authority
over a specific case or controversy covers the party seeking
our review. Here that essential requirement is lacking.
Even if we were to view the motion to reinstate as having
come from Fischer, appellate jurisdiction is still missing in
other necessary dimensions. The essence of Fischer’s appeal
is a plea to us to hold—on the basis of Kellner’s experience
attempting to exhaust remedies in Hungary—that any further
attempts by Fischer or another named plaintiff to exhaust

-- 6 of 8 --

No. 17‐3487 7
would be futile and thus unnecessary to a renewed effort to
establish subject matter jurisdiction (under FSIA’s expropria‐
tion exception) in the district court over the claims in the
amended complaint. Nary a word in the district court’s brief
dismissal order addresses these broader and more complex
issues of exhaustion and subject matter jurisdiction, however,
and we cannot do so in the first instance. See Houben v. Telular
Corp., 231 F.3d 1066, 1070 (7th Cir. 2000) (recognizing the gen‐
eral proposition that “[n]ormally the failure to rule on an issue
would deprive this court of jurisdiction, as we have jurisdic‐
tion only over final judgments of the district courts, 28 U.S.C.
§ 1291, which means that all issues in the litigation must be
resolved”).
By its terms, the district court’s order denying Kellner’s
motion to reinstate contains no reference to Fischer or, for that
matter, any other plaintiff named in the amended complaint.
In no way did the district court’s summary order close the
courthouse door on Fischer or another named plaintiff. To put
the observation in jurisdictional terms, in no way has finality
been reached within the meaning of 28 U.S.C. § 1291 and Fed‐
eral Rule of Civil Procedure 54 on the claims advanced in the
amended complaint. There is no “clear legal bar to [any]
claim’s revival” in the district court. Chessie Logistics Co.,
867 F.3d at 856.
While this lack of finality precludes our review, it serves
in these circumstances to afford Fischer and the named plain‐
tiffs (and any additional party properly joined under Federal
Rule of Civil Procedure 20) flexibility to determine their next
step. Our exchange during oral argument made plain that we
see nothing preventing Fischer or another named plaintiff

-- 7 of 8 --

8 No. 17‐3487
from themselves pursuing remedies in Hungary or instead re‐
turning to the district court by filing a new complaint on the
basis that Kellner’s experience pursuing relief in Hungary ap‐
plies and extends to others so as to excuse any further indi‐
vidualized steps to exhaust remedies. For its part, the Hun‐
garian national railway likewise will be free to respond to and
oppose any such steps taken by a named (or newly added)
plaintiff.
In the end, it will be up to the district court to determine
whether the plaintiffs have made the showing requisite to es‐
tablish subject matter jurisdiction. Informed by our two prior
opinions and resolution here, the district court, perhaps
among other issues, will need to consider the adequacy of ef‐
forts to exhaust any remedies in Hungary, including whether
one individual’s efforts to exhaust can satisfy another’s obli‐
gation, as well as whether the commercial‐nexus requirement
of the expropriation exception to the FSIA discussed but left
unresolved by our 2012 opinion has been demonstrated.
We therefore DISMISS Fischer’s appeal for lack of jurisdic‐
tion.

-- 8 of 8 --