The opinion of the court was delivered by: BARBARA JONES, District Judge
This case arises out of a seizure and confiscation of foreign
property allegedly in violation of New York State law. The
Plaintiffs, Raphael Bigio, Bahia Bigio, Ferial Salma Bigio and B.
Bigio & Co. (collectively, "the Bigios") seek damages from the
Defendants, The Coca-Cola Company and The Coca-Cola Export
Corporation (collectively, "Coca-Cola"), for their conduct in
connection with the nationalization of the Bigios' property by
the Egyptian government in the early 1960s. Specifically,
Plaintiffs seek damages for conversion. Defendants move to
dismiss the Complaint on the grounds of: (1) international
comity; (2) forum non conveniens; (3) failure to state a claim;
(4) failure to join two indispensable parties; (5) and that the
claims are time barred.
The factual history of this action is set forth at length in a
previous district court opinion, Bigio v. Coca-Cola Co., 1998
U.S. Dist. LEXIS 8295 (S.D.N.Y. June 5, 1998), dismissing
Plaintiffs' complaint because Plaintiffs had not satisfied the
prerequisites for jurisdiction under the Alien Tort Claims Act,
and because the act of state doctrine barred the court's exercise
of jurisdiction despite the parties' diversity of citizenship.
The Court of Appeals subsequently affirmed that Plaintiffs had no
claims under the Alien Tort Claims Act, but reversed the District
Court's holding that the act of state doctrine barred the claims.
Finding diversity jurisdiction, the Circuit Court remanded for
consideration of whether the principle of international comity
barred consideration of the case. Bigio v. Coca-Cola Co.,
239 F.3d 440 (2d Cir. 2001). Familiarity with those opinions is
assumed, and only a brief summary of the facts appears here.
Plaintiffs Raphael Bigio, his sister Ferial Salma Bigio, and
their mother Bahia Bigio are citizens and residents of Canada.
Plaintiff B. Bigio & Co. is a company owned by the Bigio family,
organized in Egypt in the early 1930s. Defendants the Coca-Cola
Company and the Coca-Cola Export Company are incorporated in the
State of Delaware and headquartered in Atlanta, Georgia. The
Coca-Cola Export Company is a wholly owned subsidiary of the
The property that is the subject of this action consists of
land and factories located in Heliopolis, Egypt, a suburb of
Cairo. The Bigios contend that the Egyptian government under
President Gamal Abdel-Nasser sequestered and nationalized their
property in 1962 because they were Jewish. The Bigios left Egypt
in 1965 without having received compensation.
Once the Egyptian government seized Plaintiffs' property it
transferred ownership to the Misr Insurance Company ("Misr"), a
company wholly owned by the Egyptian government. Misr in turn
leased the property to the El-Nasr Bottling Company ("ENBC"),
another company wholly owned by the Egyptian government.
In 1977, after the death of President Nasser, the Egyptian
government apparently issued an edict revoking the contracts of
sale that had effected the transfer of the Bigios' property to
Misr. In 1979, purportedly pursuant to this edict, the Egyptian
Ministry of Finance issued Decision Number 335, which ordered
Misr to return the Bigios' property, along with any rental burden
and active occupants, or to forward to the Bigios the proceeds of
any sale of the property that might have occurred. However, Misr
did not return the property.
The Bigios brought suit in Egypt in 1980 against Misr, ENBC,
and various government agencies. Plaintiffs do not claim that
they have ever sued Coca-Cola in Egypt. Coca-Cola asserts that
the 1980 claims were dismissed for failure to prosecute. The
Plaintiffs do not dispute this. (Declaration of Ahmed Abou Ali,
August 19, 1997, Chart A.)
Coca-Cola began doing business with the Bigio family in 1938.
Coca-Cola leased land from the Bigios for its bottling plants and
gradually bought bottle caps and other marketing elements from
Bigio factories until the family was dispossessed in 1962. From
1967 to 1979 Coca-Cola was barred from doing business in Egypt
because it did business in Israel. After the peace treaty between
Egypt and Israel, Coca-Cola reentered the Egyptian market.
(Defendants' Answers to Interrogatories at 20.) In 1993,
Coca-Cola sought to invest in the privatization of ENBC, the
Egyptian beverage company.
In 1993, ENBC consisted of a number of distribution and
warehousing facilities throughout Egypt and thirteen bottling
plants, one of which was located on the Bigios' former property.
Two subsidiaries of Coca-Cola Export Company invested in ENBC and
currently own 42% of the company. (Defendants' Renewed Motion at
In February 1994, when Coca-Cola was seeking to buy ENBC,
Raphael Bigio contacted Coca-Cola to discuss the Bigios' claims
regarding the Heliopolis property. Correspondence and two
meetings between the Bigios and the company followed. In July
1995, Coca-Cola advised Mr. Bigio that it would not compensate
him. Coca-Cola asserts that its investigation prior to the
acquisition led it to conclude that ENBC, which leased the land
from Misr Insurance Company, had no liability to the Bigios.
The plaintiffs filed this lawsuit in the United States
District Court for the Southern District of New York on April 21,
1997, seeking compensatory and punitive damages for the
defendants' allegedly improper conduct in "converting plaintiffs'
assets." Their complaint alleged that Coca-Cola engaged in
wrongdoing by "acquiring the assets of ENBC, knowing that
plaintiffs had been deprived of their rights to the property
solely because of their religious faith."
Judge Martin, in his earlier district court opinion, held that
the act of state doctrine applied. The act of state doctrine is
an element of abstention doctrine, which refers to a district
court's decision not to exercise jurisdiction it has. The Second
Circuit examined the abstention issues and disagreed with Judge
Martin's holding on the act of state doctrine. Instead, they
remanded for this Court to determine whether another abstention
doctrine, international comity, applied. Bigio v. Coca-Cola
Co., 239 F.3d 440, 451-455 (2d Cir. 2000).