DISPUTED FACTUAL ISSUES AND INFERENCES

A. The Bigios Did Not Waive Their Right to Discovery.

We relied in our opening brief upon well-established authority for the proposition that the abrupt entry of summary judgment in this case, prior to discovery, must be vacated because it deprived the Bigios of their right to obtain the facts they needed to prove their case (Bigio Br.1 at 17-27). Coca-Cola responded that the Bigios waived discovery by cross-moving for partial summary judgment (Coca-Cola Br. 44-45). Coca-Cola’s brief fails to cite any authority in support of this novel proposition.

Not only does Coca-Cola cite no authority for its "implied waiver" contention, but the policy of Rule 56 of the Federal Rules of Civil Procedure fails to support the argument. No party would move for summary judgment — a procedure designed to facilitate prompt adjudication — if such a motion evidenced "a conscious decision to forego discovery" (Coca-Cola Br. 43) and would bar later discovery on a waiver theory.

B. Genuine Issues of Material Fact Require Reversal of the Entry of Summary Judgment.

Four central factual disputes, even on this abbreviated record, made summary judgment plainly improper (Bigio Br. 19-27). Coca-Cola is wrong in asserting (Coca-Cola Br. 45) that none of these disputes is material.

First, there is ample evidence in the record (JA 27-38, 42-87) — completely ignored by the trial court — that the systematic persecution of Egypt’s Jews was neither an "ordinary tort," as the trial court concluded, nor merely a "land reform" program, as Coca-Cola contends (Coca-Cola Br. 8 n.2). As we have explained, a prolonged national program of religious persecution, unlike "ordinary torts" of trespass or conversion, gives rise to a claim under the Alien Tort Claims Act (Bigio Br. 27-41). The circumstances under which the Bigios’ property was expropriated are thus clearly material to the establishment of their ATCA claim (Bigio Br. 19-21).

Second, in discrediting the Finance Ministry’s annulment orders on the ground that there was no "evidence regarding the[ir] legal effects," the trial court subverted the first principle of summary judgment: that all factual inferences and ambiguities must be resolved in favor of the non-moving party. Quarantino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995) (reversing, on this ground, early grant of summary judgment by same district judge who decided this case). The dispute concerning the annulment orders was unquestionably material because the act of state doctrine has no application where a state has repudiated an unlawful expropriation (Bigio Br. 25-26, 45-47).

Third, the dispute concerning whether Josias Bigio was stripped of his citizenship before or after the discriminatory expropriation is material to the question whether the Bigios’ property rights, as set forth in § 712 of the Restatement (Third) of the Foreign Relations Law of the United States (1986) ("Restatement"), were violated (Bigio Br. 36 n.9; IAJLJ Br. 12-14). Coca-Cola goes to great lengths to argue that § 712 only vests aliens with property rights, and thus provides no recourse to the Bigios, who were stateless persons (Coca-Cola Br. 35-36). Coca-Cola overlooks the fact that, as stateless persons, the Bigios held the same rights to "movable and immovable" property as those "accorded to aliens in the same circumstances."2 International Convention Relating to the Status of Stateless Persons (1954) (JA 111)3. There is no doubt that a State’s discriminatory seizure of an alien’s property would violate international law today and 4 in 1962 5.

Accordingly, by crediting Coca-Cola’s assertion that Josias Bigio was denaturalized after the seizure, the trial court prevented the Bigios from proving the violation of their property rights (Bigio Br. 23-24, 36 n.9; IAJLJ Br. 12-14).

Fourth, the trial court considered Coca-Cola an innocent purchaser of the Bigios’ property, despite the fact that Coca-Cola had knowledge of both the discriminatory expropriation in 1962 (as a long-time tenant and a customer of the Bigios) and of Egypt’s repudiation of the expropriation in the late 1970’s. Any further evidence that may be required to prove that Coca-Cola was a beneficiary, participant, or co-conspirator can only be obtained during discovery. Coca-Cola’s contention that it is "sheer speculation" that such evidence exists (Coca-Cola Br. 45) relies upon a dismissal "following discovery." D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 118 S. Ct. 2075 (1998). This Court reversed a similar dismissal before discovery, rejecting the defendant’s contention that the plaintiff had failed to adduce the facts required to invoke the court’s jurisdiction. First City, Texas Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998).

FOOTNOTES:

1. References to briefs other than this one are as follows: "Bigio Br." for the Brief of Appellants; "Coca-Cola Br." for the Brief of Appellees; "Yale Br." for Amicus Brief of Allard K. Lowenstein International Human Rights Law Clinic; and "IAJLJ Br." for Amicus Brief of the International Association of Jewish Lawyers and Jurists, American Section.

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