363 F. Supp. 3d 436
S.D. Ill.2019Background
- Plaintiffs are members and descendants of the Ovaherero and Nama peoples alleging genocide, mass killings, enslavement, and seizure of land and property by German colonial authorities in German South West Africa (circa 1885–1909).
- Plaintiffs assert tort, conversion, unjust enrichment, takings, and declaratory/injunctive claims seeking damages and repatriation; they also seek recognition as successors and inclusion in Germany–Namibia negotiations.
- Plaintiffs allege some human remains and documents related to the genocide are now in the United States (notably at the American Museum of Natural History and the New York Public Library) and that proceeds from colonial expropriations were commingled into German coffers and later used to buy New York real estate.
- Germany moved to dismiss under Rules 12(b)(1) and 12(b)(2) asserting FSIA immunity; it also invoked the political question doctrine and urged dismissal on forum non conveniens and prudential exhaustion grounds (the Court did not reach those latter arguments).
- The Court treated the AC's factual allegations as true for the jurisdictional motion and considered whether plaintiffs met exceptions to sovereign immunity under the FSIA: the commercial-activity exception and the takings exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA commercial-activity exception applies | Germany's colonial commercial activities (e.g., "bone trade", railways) and presence of genocide-related materials/descendants in US produced a direct effect in US | Plaintiffs' claims rest on expropriation/genocide (governmental acts), not on alleged commercial acts; asserted US contacts are indirect or too attenuated | Denied — commercial-activity exception does not apply; gravamen is takings/genocide and plaintiffs failed to allege a direct, immediate effect in the US |
| Whether FSIA takings exception applies (property present in US and "in connection with" German commercial activity) | New York properties were purchased with commingled proceeds from expropriations; human remains at AMNH and other US contacts qualify as property/presence | Even if property exchanged for expropriated assets is in US, plaintiffs fail to show those US properties/remains are present "in connection with" a commercial activity carried on in US by Germany | Denied — plaintiffs plausibly allege property exchanged for takings is in US but fail as a matter of law to show a sufficient commercial nexus with Germany |
| Whether plaintiffs may plead jurisdictional facts more fully via supplemental declaration / second amended complaint | Additional provenance and repatriation facts would cure defects regarding AMNH remains and commercial contacts | Additional facts are late, prejudicial, and would be futile because they do not establish the required direct effect or commercial nexus | Denied — leave to supplement/amend denied for undue delay and futility |
| Whether the AMNH human remains constitute a direct effect or property present "in connection with" German commercial activity | Remains at AMNH and the Blue Book in NY show direct US presence/ties and constitute taken property | Transfer/sale to AMNH occurred years later (private sale); any transfer was independent of state's genocidal takings and lacks the immediacy/substantial contacts required | Denied — transfers were not immediate consequences and lack sufficient substantial commercial contact to satisfy FSIA exceptions |
Key Cases Cited
- Garb v. Republic of Poland, 440 F.3d 579 (2d Cir.) (FSIA exceptions require identification of the gravamen; moral claims do not automatically create jurisdiction)
- Argentina v. Weltover, 504 U.S. 607 (1992) (FSIA provides the sole basis for subject-matter jurisdiction over foreign states)
- OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015) (identify the particular conduct that is the gravamen of the suit)
- Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir.) (burden-shifting framework for FSIA jurisdictional showing)
- Guirlando v. TC Ziraat Bankasi A.S., 602 F.3d 69 (2d Cir.) (direct effect requires immediacy; effects that depend on independent variables do not qualify)
- Helmerich & Payne Intl. Drilling Co. v. Venezuela, 137 S. Ct. 1312 (2017) (pleading standard for takings exception requires more than a nonfrivolous claim; courts must evaluate takings elements at pleading stage)
- Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir.) (property losses from genocidal expropriation can be takings under FSIA but commercial nexus requirements still apply)
- Nelson v. Saudi Arabia, 507 U.S. 349 (1993) (commercial-activity test asks whether the state acted like a private market participant)