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Wultz v. Bank of China Ltd.

United States District Court, District of Columbia

May 30, 2014

SHERYL WULTZ, YEKUTIEL WULTZ, AMANDA WULTZ, and A.L.W., a minor, Plaintiffs,
v.
BANK OF CHINA, LTD, Defendant, RIVKA MARTHA MORIAH, et al., Intervenors, THE STATE OF ISRAEL, Movant.

MEMORANDUM OPINION

REGGIE B. WALTON United States District Judge

On November 15, 2013, the State of Israel (“Israel”) filed a motion with this Court to quash the third party deposition subpoena issued to former Israeli national security officer Uzi Shaya in connection with litigation pending in the United States District Court for the Southern District of New York (“Israel’s Mot.”). Both the plaintiffs in the above captioned matter and the intervenors oppose Israel’s motion. Respondents’ Memorandum of Law in Opposition to Petitioner’s Motion to Quash, ECF No. 18; Intervenor-Plaintiffs’ Memorandum of Law in Opposition to Non-Party State of Israel’s Motion to Quash Subpoena, ECF No. 21. On December 2, 2013, the intervenors filed their Motion of Intervenor-Plaintiffs to Strike Non-Party State of Israel’s Motion to Quash on the Ground that the State of Israel has not Moved to Intervene in This Case, and in the Alternative[, ] to Transfer This Proceeding to the Southern District of New York (“Intervenors’ Mot.”). Israel opposes the Intervenors’ motion. After carefully considering the parties’ submissions, [1] the Court concludes that it must deny in part and grant in part the intervenors’ motion, and for the following reasons, Israel’s motion to quash and all related filings, which includes the component of the intervenors’ motion that seeks to have Israel’s motion to quash stricken, are transferred to the Southern District of New York.

I. BACKGROUND

A. The New York Litigation[2]

In 2009, the plaintiffs filed a lawsuit in this district against the Bank of China, Ltd. (“Bank”) seeking to establish the Bank’s liability for the 2006 terrorist attack in Tel Aviv, Israel that resulted in the death of sixteen-year-old American citizen Daniel Wultz. Israel’s Mem. at 2– 3. Another member of this Court transferred the plaintiffs’ lawsuit to the Southern District of New York after finding that this Court did not have jurisdiction over the Bank. Id. at 2–3. The case was then assigned to Judge Shira Scheindlin of the Southern District of New York, and she is currently presiding over that litigation. Intervenors’ Mot. at 3 n.1.[3]

Similar terrorist attacks have resulted in the death or injury of other United States and Israeli citizens (“Intervenors”). Id. at 3. Consequently, five other lawsuits have been brought against the Bank alleging that the Bank “allowed and facilitated transfers of funds to the [responsible] terrorist organizations, ” id. at 3–4, and those cases are also currently being litigated in the Southern District of New York or the New York Supreme Court (“intervenors’ lawsuits”), see id. at 3 n.1. One of these five lawsuits, Moriah v. Bank of China, 12-cv-1594 (SAS) (S.D.N.Y.), is also being litigated before Judge Scheindlin. Id. “[T]here is a discovery coordination order in effect which provides that discovery shall be coordinated between [the two cases pending before Judge Scheindlin] and all discovery generated in Wultz is usable in Moriah.” Id.

B. The Instant Action

On September 18, 2013, former Israeli national security officer Uzi Shaya was personally served with a nonparty subpoena by process server Ted Metzger while he was in the District of Columbia. Id. at 4; Israel’s Mem. at 3; Israel’s Mem., Exhibit (“Ex.”) A (Subpoena). The subpoena commanded Mr. Shaya to appear at a deposition to be held at 5301 Wisconsin Avenue, Suite 800, Washington, D.C., on November 25, 2013, in connection with the Wultz litigation. Israel’s Mem., Ex. A (Subpoena). The intervenors contend that “by agreement with Mr. Shaya, the location of the deposition was moved to New York, and Judge Scheindlin agreed that the deposition could be conducted in her courtroom and that she herself would preside over the deposition.” Intervenors’ Mot. at 4. On November 15, 2013, Judge Scheindlin entered an order specifying that “[t]he Court is scheduled to supervise Uzi Shaya’s deposition on November 25, 2013, ” Order at 1, Wultz v. Bank of China, Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y. Nov. 15, 2013), ECF No. 394, and set forth the rules that would govern that deposition, id. at 1–4. In anticipation of the deposition, Judge Scheindlin contacted the State of Israel’s Department of International Affairs to inform it of the upcoming deposition and to ascertain the State of Israel’s position on Mr. Shaya’s participation. Judge Scheindlin’s Letter, Wultz v. Bank of China, Ltd., No. 11-cv-1266 (SAS) (S.D.N.Y. Sept. 27, 2013), ECF No. 337.

On November 4, 2013, the intervenors filed a motion in this Court requesting that they be “[p]ermitt[ed] . . . to intervene in [the above-captioned miscellaneous] case regarding the enforcement and other matters related to the subpoena served . . . on Uzi Shaya.” Proposed Intervenors’ Motion to Intervene at 8, No. 13-mc-1248 (RBW) (D.D.C. Nov. 4, 2013), ECF No. 1. On November 15, 2013, Israel, which is not a party to the New York litigation or the intervenors’ lawsuits, filed its motion with this Court to quash the subpoena served on Mr. Shaya. Israel’s Mot. at 1. On November 19, 2013, unaware of Judge Scheindlin’s previously-entered orders pertaining to Mr. Shaya’s deposition, this Court entered an Order staying the deposition pending the resolution of Israel’s motion to quash, instituting a briefing schedule, and ordering that a motions hearing be convened on January 15, 2014, to resolve the motion to quash. Order, ECF No. 5. On November 26, 2013, after the plaintiffs and Israel consented, the Court granted the intervenors’ motion to intervene and consolidated the cases. Minute Order, Nov. 26, 2013.

On December 2, 2013, after changes to the Federal Rules of Civil Procedure became effective, the intervenors filed their motion to strike or transfer. Intervenors’ Mot. at 1–2. Israel opposed the intervenors’ motion as to all relief requested. The Court then stayed the January 15, 2014 hearing pending resolution of the intervenors’ motion.

II. LEGAL ANALYSIS

The intervenors request that this Court either strike Israel’s motion to quash, Intervenors’ Mot. at 1, or alternatively “transfer[] this proceeding, including the question of whether the motion to quash should be stricken, to Judge Shira Scheindlin of the United States District Court for the Southern District of New York, where the underlying action is pending, ” id. at 2. Because striking Israel’s motion would have the same impact on Mr. Shaya’s deposition as would denying Israel’s motion, for the reasons discussed in this Opinion, the Court concludes that resolution of these requests should be addressed by Judge Scheindlin. In deciding which court should resolve these requests, the only issue addressed in this Opinion is the merits of the intervenors’ request that this Court transfer Israel’s motion to quash to the Southern District of New York for resolution.

A. Local Rule 7(m)

Israel first argues that the Court should not even address the merits of the intervenors’ motion to strike or transfer, but instead “should deny [the i]ntervenors’ motion in its entirety because [the i]ntervenors did not confer with counsel for the State of Israel about the relief requested before filing the motion, ” as is required by Local Civil Rule 7(m). Israel’s Opp’n at 1. However, Israel concedes that its counsel received an email from the intervenors’ counsel indicating that “he would oppose any future motion to quash” on the basis that “Israel was required to intervene in an action in order to contest the subpoena and assert immunity on behalf of the Israeli Official.” Id. at 2–3. In their reply, the intervenors’ counsel confirms for the Court that he sent an email to Israel’s counsel “to discuss the merits of the instant motion” and that the email exchange “made clear that the respective positions of the [i]ntervenors[] and Israel [were] (and remain[]) irreconcilable.” Intervenors’ Reply at 1. Israel maintains that ...


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