Philipp v. Federal Republic of Germany
253 F. Supp. 3d 84
| D.D.C. | 2017Background
- Plaintiffs are successors to three Frankfurt art-dealer firms; they allege Germany/SPK wrongfully possess the medieval "Welfenschatz" because its 1935 sale was coerced under Nazi persecution.
- Plaintiffs filed ten claims; Defendants moved to dismiss all counts. The Court dismissed five counts but allowed five to proceed: declaratory relief, replevin, conversion, unjust enrichment, and bailment.
- The Court found those five surviving claims plausibly fall within the FSIA expropriation exception, so Defendants appealed that sovereign-immunity ruling to the D.C. Circuit as of right.
- Defendants then moved to certify the District Court’s March 31, 2017 Order under 28 U.S.C. § 1292(b) to include three non-FSIA issues (preemption/foreign policy, non-justiciability/international comity, and forum non conveniens) in the interlocutory appeal.
- Defendants also moved to stay proceedings pending the interlocutory appeal; Plaintiffs opposed both motions.
- The District Court granted certification under § 1292(b) for the full order and granted a stay pending resolution of the interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should certify non-FSIA issues for interlocutory appeal under 28 U.S.C. § 1292(b) | Philipp: Certification is unnecessary and promotes piecemeal appeals; factors do not support review | Germany: Certification appropriate because issues are controlling, have substantial grounds for difference, and appeal will materially advance litigation | Court certified the March 31 Order in its entirety under § 1292(b) for interlocutory appeal |
| Whether Plaintiffs' claims are preempted by U.S. foreign policy (foreign affairs preemption) | Philipp: Claims are justiciable and not displaced by U.S. foreign policy interests | Germany: Adjudication would intrude on foreign-policy prerogatives and should be dismissed as preempted | Court found substantial grounds for difference of opinion and included the issue for interlocutory review |
| Whether Plaintiffs' claims are non-justiciable under international comity | Philipp: Comity does not bar adjudication here | Germany: International comity renders the claims non-justiciable | Court found the existence of substantial grounds for difference and certified the question for appeal |
| Whether the case should be stayed pending the interlocutory appeal | Philipp: Opposes stay; case should proceed | Germany: Stay warranted because appeal raises dispositive jurisdictional and immunity issues and avoids wasted litigation effort | Court granted a stay pending resolution of the D.C. Circuit appeal |
Key Cases Cited
- Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004) (denial of sovereign immunity is subject to interlocutory review)
- Landis v. North American Co., 299 U.S. 248 (1936) (district courts have inherent power to stay proceedings for docket control and equity)
- Clinton v. Jones, 520 U.S. 681 (1997) (standards for managing stay and litigation while exceptional claims are pending)
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (district court has discretion whether to certify interlocutory appeal)
- APCC Servs. v. Sprint Communs. Co., 297 F. Supp. 2d 90 (D.D.C. 2003) (discussion of § 1292(b) controlling-question and substantial-ground standards)