15‐3007 Hegna v. Islamic Republic of Iran
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of December, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
EDWENA R. HEGNA, Executrix of the Estate of Charles Hegna, Late of Sterling, Virginia, Individually and Executrix of the Estate of Paul B. Hegna, STEVEN A. HEGNA, CRAIG H. HEGNA, LYNN MARIE HEGNA MOORE, Plaintiffs‐Appellants, 15‐3007‐cv v.
650 FIFTH AVENUE COMPANY, ALAVI FOUNDATION, Appellees,
ASSA, Garnishee‐Appellee,
CARLOS ACOSTA, GREGG SALZMAN, STEVEN M. GREENBAUM, AVI ELISHIS, ALAN D. HAYMAN, SHIRLEE HAYMAN, MARIA ACOSTA, TOVA ETTINGER, ESTATE OF IRVING FRANKLIN, ESTATE OF IRMA FRANKLIN, BARUCH KAHANE, LIBBY KAHANE, ETHEL J. GRIFFIN, NORMAN KAHANE, CIPPORAH KAPLAN, ANNA BEER, HARRY BEER, ESTELLE CARROLL, PHYLISS MAISEL, JASON KIRSCHENBAUM, ISABELLE KIRSCHENBAUM, JOSHUA KIRSCHENBAUM, DAVID KIRSCHENBAUM, DANIELLE TEITLEBAUM, Intervenors,
ISLAMIC REPUBLIC OF IRAN, THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, Defendants.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFFS‐APPELLANTS: RALPH PAUL DUPONT (Barbara J. Dupont, on the brief), The Dupont Law Firm LLP, Stamford, Connecticut.
FOR INTERVENORS: PATRICK N. PETROCELLI (Curtis C. Mechling, James L. Bernard, Nathan H. Stopper, Pamela S. Takefman, on the brief), Stroock & Stroock & Lavan LLP, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
* The Clerk of Court is directed to amend the caption to conform to the above. 2 Plaintiffs‐appellants Edwena R. Hegna, executrix of the estates of Charles
Hegna and Paul B. Hegna, Steven A. Hegna, Craig H. Hegna, and Lynn Marie Hegna
Moore (together, the ʺHegna Partiesʺ) appeal from (1) a December 3, 2013 order denying
without prejudice as not yet ripe the Hegna Partiesʹ April 26, 2013 motion for partial
summary judgment; (2) an August 21, 2014 order denying the Hegna Partiesʹ request for
the district court to issue a scheduling order ʺallowing [them] to proceed on their
pending show cause orderʺ; (3) an October 6, 2014 opinion and order denying the
Hegna Partiesʹ motion to extend their purported judgment lien under New York Civil
Practice Law and Rules 5203(b); and (4) a March 6, 2015 opinion and order denying the
Acosta, Beer, and Kirschenbaum plaintiffs‐claimantsʹ motion for partial summary
judgment as to the priority of their interests in the in rem defendant properties, in which
the district court also refused to consider the Hegna Partiesʹ motion for partial summary
judgment on the enforcement priority of their interests in the defendant properties in
relation to the interests of the other judgment creditor parties.1 The Hegna Parties also
argue on appeal that their claims to the defendant properties have priority over the
governmentʹs civil forfeiture claims, an issue that the district court has not yet
1 The Hegna Partiesʹ corrected notice of appeal notes that they also appeal from the district courtʹs denial of their motion for summary judgment on their innocent owner defenses and grant of the governmentʹs motion to strike or, in the alternative, for summary judgment on those same defenses. The district court entered final judgment pursuant to Federal Rule of Civil Procedure 54(b) as to its ruling on the Hegna Partiesʹ innocent owner defenses on August 11, 2015, at the Hegna Partiesʹ request. That decision is also before this panel, and we heard oral argument on the two actions in tandem given their factual overlap. We dispose of the appeal in the civil forfeiture action in a separate summary order also filed this day. See In re 650 Fifth Avenue, 15‐2882. 3 considered. We assume the partiesʹ familiarity with the underlying facts, procedural
history, and issues on appeal.
Intervenors Carlos Acosta, Gregg Salzman, Steven M. Greenbaum, Avi
Elishis, Alan D. Hayman, Shirlee Hayman, Maria Acosta, Tova Ettinger, Estate of Irving
Franklin, Estate of Irma Franklin, Baruch Kahane, Libby Kahane, Ethel J. Griffin,
Norman Kahane, Cipporah Kaplan, Anna Beer, Harry Beer, Estelle Carroll, Phyllis
Maisel, Jason Kirschenbaum, Isabelle Kirschenbaum, Joshua Kirschenbaum, David
Kirschenbaum, Danielle Teitlebaum (the ʺIntervenor Judgment Creditorsʺ) and the
Hegna Parties are victims, the estates of victims, and the family members of victims of
terrorist attacks linked to the Islamic Republic of Iran who hold unsatisfied money
judgments against Iran. The orders the Hegna Parties appeal from were entered in their
turnover action in the district court, which was initiated by order to show cause, against
the Islamic Republic of Iran and the Iranian Ministry of Information and Security. That
action, as well as turnover actions filed by other private judgment creditors of Iran,
have been consolidated with the governmentʹs civil action seeking forfeiture of the
interests of the Alavi Foundation, the 650 Fifth Avenue Company, Assa Corporation,
Assa Company Limited, and Bank Melli Iran in several properties including a 36‐story
office building at 650 Fifth Avenue in Manhattan.2
2 A more comprehensive history of the civil forfeiture action and judgment creditor turnover actions can be found in our opinions in Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 107 (2d Cir. 2016), and In re 650 Fifth Ave. & Related Props., 830 F.3d 66 (2d Cir. 2016).
4 In general, we have appellate jurisdiction over only final orders under 28
U.S.C. § 1291 or Rule 54(b) of the Federal Rules of Civil Procedure, orders relating to an
injunction or other matters enumerated in 28 U.S.C. § 1292(a), interlocutory orders
certified under 28 U.S.C. § 1292(b), and orders falling within the collateral order
doctrine. See Whiting v. Lacara, 187 F.3d 317, 319 (2d Cir. 1999); 28 U.S.C. §§ 1291, 1292.
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15‐3007 Hegna v. Islamic Republic of Iran
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of December, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
EDWENA R. HEGNA, Executrix of the Estate of Charles Hegna, Late of Sterling, Virginia, Individually and Executrix of the Estate of Paul B. Hegna, STEVEN A. HEGNA, CRAIG H. HEGNA, LYNN MARIE HEGNA MOORE, Plaintiffs‐Appellants, 15‐3007‐cv v.
650 FIFTH AVENUE COMPANY, ALAVI FOUNDATION, Appellees,
ASSA, Garnishee‐Appellee,
CARLOS ACOSTA, GREGG SALZMAN, STEVEN M. GREENBAUM, AVI ELISHIS, ALAN D. HAYMAN, SHIRLEE HAYMAN, MARIA ACOSTA, TOVA ETTINGER, ESTATE OF IRVING FRANKLIN, ESTATE OF IRMA FRANKLIN, BARUCH KAHANE, LIBBY KAHANE, ETHEL J. GRIFFIN, NORMAN KAHANE, CIPPORAH KAPLAN, ANNA BEER, HARRY BEER, ESTELLE CARROLL, PHYLISS MAISEL, JASON KIRSCHENBAUM, ISABELLE KIRSCHENBAUM, JOSHUA KIRSCHENBAUM, DAVID KIRSCHENBAUM, DANIELLE TEITLEBAUM, Intervenors,
ISLAMIC REPUBLIC OF IRAN, THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, Defendants.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFFS‐APPELLANTS: RALPH PAUL DUPONT (Barbara J. Dupont, on the brief), The Dupont Law Firm LLP, Stamford, Connecticut.
FOR INTERVENORS: PATRICK N. PETROCELLI (Curtis C. Mechling, James L. Bernard, Nathan H. Stopper, Pamela S. Takefman, on the brief), Stroock & Stroock & Lavan LLP, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
* The Clerk of Court is directed to amend the caption to conform to the above. 2 Plaintiffs‐appellants Edwena R. Hegna, executrix of the estates of Charles
Hegna and Paul B. Hegna, Steven A. Hegna, Craig H. Hegna, and Lynn Marie Hegna
Moore (together, the ʺHegna Partiesʺ) appeal from (1) a December 3, 2013 order denying
without prejudice as not yet ripe the Hegna Partiesʹ April 26, 2013 motion for partial
summary judgment; (2) an August 21, 2014 order denying the Hegna Partiesʹ request for
the district court to issue a scheduling order ʺallowing [them] to proceed on their
pending show cause orderʺ; (3) an October 6, 2014 opinion and order denying the
Hegna Partiesʹ motion to extend their purported judgment lien under New York Civil
Practice Law and Rules 5203(b); and (4) a March 6, 2015 opinion and order denying the
Acosta, Beer, and Kirschenbaum plaintiffs‐claimantsʹ motion for partial summary
judgment as to the priority of their interests in the in rem defendant properties, in which
the district court also refused to consider the Hegna Partiesʹ motion for partial summary
judgment on the enforcement priority of their interests in the defendant properties in
relation to the interests of the other judgment creditor parties.1 The Hegna Parties also
argue on appeal that their claims to the defendant properties have priority over the
governmentʹs civil forfeiture claims, an issue that the district court has not yet
1 The Hegna Partiesʹ corrected notice of appeal notes that they also appeal from the district courtʹs denial of their motion for summary judgment on their innocent owner defenses and grant of the governmentʹs motion to strike or, in the alternative, for summary judgment on those same defenses. The district court entered final judgment pursuant to Federal Rule of Civil Procedure 54(b) as to its ruling on the Hegna Partiesʹ innocent owner defenses on August 11, 2015, at the Hegna Partiesʹ request. That decision is also before this panel, and we heard oral argument on the two actions in tandem given their factual overlap. We dispose of the appeal in the civil forfeiture action in a separate summary order also filed this day. See In re 650 Fifth Avenue, 15‐2882. 3 considered. We assume the partiesʹ familiarity with the underlying facts, procedural
history, and issues on appeal.
Intervenors Carlos Acosta, Gregg Salzman, Steven M. Greenbaum, Avi
Elishis, Alan D. Hayman, Shirlee Hayman, Maria Acosta, Tova Ettinger, Estate of Irving
Franklin, Estate of Irma Franklin, Baruch Kahane, Libby Kahane, Ethel J. Griffin,
Norman Kahane, Cipporah Kaplan, Anna Beer, Harry Beer, Estelle Carroll, Phyllis
Maisel, Jason Kirschenbaum, Isabelle Kirschenbaum, Joshua Kirschenbaum, David
Kirschenbaum, Danielle Teitlebaum (the ʺIntervenor Judgment Creditorsʺ) and the
Hegna Parties are victims, the estates of victims, and the family members of victims of
terrorist attacks linked to the Islamic Republic of Iran who hold unsatisfied money
judgments against Iran. The orders the Hegna Parties appeal from were entered in their
turnover action in the district court, which was initiated by order to show cause, against
the Islamic Republic of Iran and the Iranian Ministry of Information and Security. That
action, as well as turnover actions filed by other private judgment creditors of Iran,
have been consolidated with the governmentʹs civil action seeking forfeiture of the
interests of the Alavi Foundation, the 650 Fifth Avenue Company, Assa Corporation,
Assa Company Limited, and Bank Melli Iran in several properties including a 36‐story
office building at 650 Fifth Avenue in Manhattan.2
2 A more comprehensive history of the civil forfeiture action and judgment creditor turnover actions can be found in our opinions in Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d 107 (2d Cir. 2016), and In re 650 Fifth Ave. & Related Props., 830 F.3d 66 (2d Cir. 2016).
4 In general, we have appellate jurisdiction over only final orders under 28
U.S.C. § 1291 or Rule 54(b) of the Federal Rules of Civil Procedure, orders relating to an
injunction or other matters enumerated in 28 U.S.C. § 1292(a), interlocutory orders
certified under 28 U.S.C. § 1292(b), and orders falling within the collateral order
doctrine. See Whiting v. Lacara, 187 F.3d 317, 319 (2d Cir. 1999); 28 U.S.C. §§ 1291, 1292.
A final order is an order by the district court that ʺends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.ʺ Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
ʺAn order that . . . adjudicates the rights and liabilities of fewer than all of the remaining
parties[ ] is not a final order unless the court directs the entry of a final judgment as to
the dismissed claims or parties ʹupon an express determination that there is no just
reason for delay.ʹʺ Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 128 (2d Cir.
2000) (quoting Fed. R. Civ. P. 54(b)).
Although the Hegna Parties claim that we have jurisdiction over their
appeal from the non‐final orders listed above under both Rule 54(b) and 28 U.S.C.
§ 1292(b), they offer no explanation as to how such jurisdiction is conferred.3 The
Hegna Parties requested and the district court entered a Rule 54(b) judgment only as to
3 The Hegna Parties did not file a reply to the Intervenor Judgment Creditorsʹ opposition brief. Although the Hegna Parties assert in their reply brief in a separate appeal, In re 650 Fifth Avenue, 15‐2882, that we have appellate jurisdiction over parts of this appeal by virtue of the collateral order doctrine, the Hegna Parties fail to explain whether and how the ʺstringentʺ requirements for collateral appeal are met here. Will v. Hook, 546 U.S. 345, 349 (2006) (requiring that an order ʺ[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgmentʺ (internal citations omitted)). 5 its decision regarding the Hegna Partiesʹ innocent owner defenses. Nor did the Hegna
Parties seek certification of any of the appealed orders for interlocutory appeal pursuant
to section 1292(b). Accordingly, we must dismiss this appeal for lack of jurisdiction.
We have considered all of the Hegna Partiesʹ remaining arguments and
find them to be without merit. Accordingly, for the reasons stated above, we DISMISS
the appeal for lack of appellate jurisdiction.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk