United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE
in Hoglan v. Islamic Republic of Iran, 11-cv-7550
(GBD) (SN), one of numerous related actions filed on behalf
of the estates and family members of the victims of the
attacks of September 11, 2001, sought entry of default
judgment awarding them compensatory and punitive damages
against the Islamic Republic of Iran, Ayatollah Ali Hoseini
Khamenei, Hezbollah, and other Iranian individuals and
entities. This Order resolves the remaining group of claims
presented in the Hoglan damages inquest.
group of claims concerns the economic and pain and suffering
damages claims made by the Estates of Hagay Shefi and
Nicholas Rowe, as well as nine solatium damages claims made
by non-citizen immediate family members derived from Shefi
and Rowe's deaths on September 11, 2001 (collectively
referred to as "Plaintiffs"). Shefi, a citizen of
Israel, and Rowe, a citizen of South Africa, were both U.S.
lawful permanent residents at the time of the attacks, but
were not U.S. citizens by birth or naturalization.
January 6, 2017, the case was referred to Magistrate Judge
Sarah Netburn (ECF No. 3418.) Before this Court is Magistrate
Judge Netburn's Report and Recommendation (the
'"Report, " ECF No. 3374), recommending that
this Court deny Plaintiffs' damages claims.
Report, Magistrate Judge Netburn advised the parties that
failure to file timely objections to the Report would
constitute a waiver of those objections on appeal.
(Id. at 15); see also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Plaintiffs filed timely
objections to the Report (PI. Obj. to Report ("PL
Obj."), ECF Nos. 3416, 3417) and Defendants did not
respond. This Court overrules Plaintiffs' objections and
fully adopts Magistrate Judge Netburn's recommendation.
Plaintiffs' damages claims are DENIED.
district court may accept, reject or modify, in whole or in
part, the findings and recommendations set forth within the
Report. See 28 U.S.C. § 636(b)(1)(C). When no
objections to the Report are made, the Court may adopt the
Report if "there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).
there are objections to the Report, this Court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). It is sufficient that this Court "arrive at its
own, independent conclusions" regarding those portions
to which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation
omitted); see United Stales v. Raddatz, 447 U.S.
667, 675-76 (1980). However, where a litigant's
objections are conclusory, repetitious, or perfunctory, the
standard of review is clear error. McDonaugh v.
Astrue, 672 F.Supp.2d 542, 547-48 (S.D.N.Y. 2009).
PLAINTIFFS FAIL TO CLAIM RELIEF UNDER FSIA
Report properly held that Plaintiffs failed to bring a
"pass-through" claim under New York's wrongful
death and survival statutes, qualify as U.S. nationals under
8 U.S.C. § 1101(a)(22), claim recovery under §
1605A(c)'s private cause of action, or assert their claim
through the noncommercial tort exception to the FSIA, 28
U.S.C. § 1605(a)(5). There was no clear error in
Magistrate Judge Netburn's findings. Plaintiffs objected
only to the portion of the Report concluding that Plaintiffs
failed to qualify as U.S. nationals by demonstrating their
allegiance under 8 U.S.C. § 1101(a)(22) for purposes of
the FSIA. (PI. Obj. at 1-2.) This court reviews that portion
of the Report de novo. See 28 U.S.C. §
636(b)(1)(C); see also Rivera, 423 F.Supp.2d at 273.
Judge Netburn found that "Plaintiffs' argument is
plainly foreclosed by precedent from the Court of Appeals for
the Second Circuit, with which its sister circuits are in
near-unanimous agreement." (Report at 10.) Accordingly,
Magistrate Judge Netburn recommended that Plaintiffs
"may not avail themselves of the FSIA terrorism
exception's jurisdictional provisions in 28 U.S.C. §
1605A(a) or its private cause of action in 28 U.S.C. §
1605A(c)." (Id. at 12.) The Second Circuit law
is clear: one cannot "qualify as a U.S. national under 8
U.S.C. § 1101(a)(22)(B) by a manifestation of
'permanent allegiance' to the United States."
Marquez-Almanzar v. I.N.S., 418 F.3d 210, 218-19 (2d
Cir. 2005) (holding that the provision in question could not
possibly confer U.S. national status, no matter how strong
the petitioner's equities).
outside of the Second Circuit also supports this
interpretation. For example, in Mohammadi v. Islamic
Republic of Iran, the court reached the same conclusion,
noting that the reference to persons owing
'"permanent allegiance' to the United
States" is "descriptive of someone who has attained
the status of United States nationality through other
statutory provisions; it does not itself set forth an
independent basis by which to obtain that status." 782
F.3d 9, 14-15 (D.C. Cir. 2015). Because Plaintiffs cannot
claim U.S. nationality by demonstrating their permanent
allegiance to the United States independent of an additional
statutory provision, Plaintiffs were not U.S. nationals at
the time of the terrorist attacks of September 11, 2001, and
therefore may not avail themselves of the FSIA terrorism
exception. Accordingly, Plaintiffs' damages claims are
reviewed Magistrate Judge Netburn's Report and
Recommendation, this Court overrules Plaintiffs'