By Louis M. Solomon
v. The Federal Republic of Germany, 09-CV-443 (ARR)(RLM) (E.D.N.Y. Aug. 2011) [enhanced version available to lexis.com subscribers], dismisses for want of subject matter
jurisdiction claims asserted against Germany. Plaintiff fought over
the right to own the property located in Germany, ultimately won that fight against
claims of ownership by both the government of Schwerin, Germany and the Conference
on Jewish Material Claims Against Germany, and then sued for the diminution in the
value of the property because of alleged neglect and malfeasance occurring while
the court battles were going on to determine ownership. Only the Republic
of Germany was sued.
The international practice issues addressed
in the case include the following:
First, in assessing the subject matter
jurisdiction challenge, the Court accepted as true "all material factual allegations
in the complaint" but, on the basis two Second Circuit cases, refused to "draw inferences
favorable to the party asserting jurisdiction". For other approaches to the
issue of how to assess the presence or absence of subject matter jurisdiction, see
our discussion of subject matter jurisdiction in our e-book, International
Practice: Topics and Trends and our blog posting here (among other places).
Court followed settled law that in finding that the commercial activity exception
to the FSIA did not apply because the allegedly improper running of the business
on the property and alleged mis-use of the property did not have a "direct effect"
in the U.S. Relying on Antares Aircraft, L.P. v. Federal Republic of Nigeria,
948 F.2d 90 (2d Cir. 1991) [enhanced version ], the Court found damage to the property
in Germany was the paramount damage and that the effects on the plaintiff in the
U.S. were not "legally significant" but was "incidental and inconsequential".
Third, the takings exception did not
apply to a case where "the property at issue in not in the United States, and the
defendant is a foreign sovereign and not an agency or instrumentality". The
Court rejected the argument that Germany had appropriated the property in violation
of international law.
Visit OneWorld International Practice
Law Blog for more analysis of international and foreign law issues.
For more information about LexisNexis
products and solutions connect with us through our corporate site.