UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) SHERYL WULTZ, et al., ) ) Plaintiffs, ) ) v. ) 08-cv-1460 (RCL) ) ISLAMIC REPUBLIC OF IRAN, et al., ) ) Defendants. ) )

MEMORANDUM

“The standard for granting a leave to file a surreply is whether the party making the

motion would be unable to contest matters presented to the court for the first time in the

opposing party’s reply.” Lewis v. Rumsfeld,

(D.D.C. 2001); see also Ben-

Kotel v. Howard Univ.,

(D.C. Cir. 2003). Plaintiffs seek leave to file a

surreply to BOC’s reply to plaintiffs’ opposition to the Bank of China’s (BOC) motion to

dismiss. Pls.’ Mot. for Leave to File Br. Surreply, Sept. 29, 2009, ECF No. 53.

Plaintiffs allege that BOC raised new issues in its reply: improper venue under

(a), inapplicability of Israeli Civil Wrongs Ordinance § 13(a), and implications that

plaintiffs misled the Court by failing to provide a translation of a particular Israeli Supreme

Court case. Id.; Reply in Further Supp. of Pls.’ Mot for Leave to File Br. Surreply, Oct. 5, 2009,

ECF No. 57. BOC retorts that the “contention is wrong” that BOC raised the issue of venue for

the first time in its reply; that the declaration submitted by Kenneth Mann in BOC’s reply, which

plaintiffs’ allege added a new argument concerning facial inapplicability, did not raise any new

argument; and that the two-month delay in procuring a translation of the Israeli Supreme Court case renders plaintiffs’ motion untimely. Def. BOC’s Opp’n to Pls.’ Mot for Leave to File Br.

Surreply, Oct. 2, 2009, ECF No. 55. The Court agrees with plaintiffs and disagrees with BOC on

all points.

First, BOC raised the issue of venue for the first time in its reply. BOC’s contention that

“[t]his contention is wrong,” id. at 2, is, for lack of a better word, wrong. The only mention of

the word “venue” in BOC’s 45-page motion to dismiss is in a footnote pondering why

“[p]laintiffs and their counsel may have chosen this forum.” Def. BOC’s Mot. to Dismiss the 1st

Am. Compl. 16 n.6, Mar. 5, 2009, ECF No. 15 [hereinafter BOC’s Mot.]. BOC posits that the

reason must have been “because of their focus on the defendants who are foreign state and

foreign government officials . . . and the venue provision specifying that for a civil action

‘brought against a foreign state or political subdivision thereof,’ this District is the appropriate

venue.” Id. (quoting

(f)(4)). Indeed, that section, along with “the rules of

pendent venue,” are what plaintiffs plead as the basis for the propriety of venue in this district.

1st Am. Compl. ¶ 4, Jan. 13, 2009, ECF No. 12. But nowhere in its motion to dismiss does BOC

contest the propriety of venue, either under § 2334(a) or any other theory. BOC’s reply, which

devotes several pages to the subject, is the first document in which BOC makes any allegations

as to the impropriety of venue. Reply Mem. of P. & A. in Support of Def. BOC’s Mot. 4–9, July

24, 2009, ECF No. 42 [hereinafter BOC’s Reply]. Accordingly, plaintiffs will be permitted to

file their surreply to respond to this new issue.

Second, BOC also raised the issue of facial inapplicability of § 13(a) of the Israeli Penal

Law for the first time in a declaration submitted with its reply. Dr. Kenneth Mann, BOC’s expert

on Israeli law, declared that any civil action for violation of § 63 of Israel’s Civil Wrongs

Ordinance could not be based on § 13(a) of Israel’s Penal Law; it would instead have to be based

2 on § 13(b). Mann Decl. ¶¶ 11–13, July 24, 2009, ECF No. 42-1. Dr. Mann declares in detail his

analysis of why § 13(a) does not apply, id., building on the previously submitted declaration of

Peter Gad Naschitz, who merely declared without additional discussion that § 13(a) is “not

applicable to this case,” Naschitz Decl. ¶ 20, Mar. 1, 2009, ECF No. 15-14. Because BOC

developed this argument for the first time in its reply, plaintiffs will be permitted to file their

surreply to it.

Finally, BOC implied nefariousness on the part of plaintiffs in its reply by noting that it is

“curious” that “[p]laintiffs have supplied no translation of Yinon [Food Prods Mfg. & Mktg., Ltd.

v. Kara’an], the decision [of the Israeli Supreme Court] to which they attach so much

importance.” BOC’s Reply 23 n.23. The Court does not share BOC’s timeliness concerns,

particularly considering that no time restriction applies to the submission of a motion for leave to

file a surreply. Therefore, to allow plaintiffs to dispel any implication of nefariousness, and to

assist the Court in adjudicating whether plaintiffs have properly pled their Israeli-law claims, the

Court will permit plaintiffs to submit their translation now.

A separate order consistent with this Memorandum shall issue this date.

Signed by Chief Judge Royce C. Lamberth, Chief Judge, on October 20, 2010.

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