Gutch v. Federal Republic of Germany

• Decision Date: 27 July 2006
• Docket Number: Civil Action No. 05-2338 (RMU).
• Citation: 444 F.Supp.2d 1
• Parties: Harold William GUTCH, Plaintiff, v. FEDERAL REPUBLIC OF GERMANY, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

444 F.Supp.2d 1

Harold William GUTCH, Plaintiff, v. FEDERAL REPUBLIC OF GERMANY, Defendant.

Civil Action No. 05-2338 (RMU).

United States District Court, District of Columbia.

July 27, 2006.

COPYRIGHT MATERIAL OMITTED

Harold William Gutch, pro se.

Jeffrey Harris, Rubin, Winston, Diercks, Harris & Cooke, Washington, DC, for Defendant.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING THE DEFENDANT'S MOTION TO DISMISS AND DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO PERFECT SERVICE OF PROCESS

I. INTRODUCTION

The pro se plaintiff, a dual U.S. and German citizen, brings suit challenging tax assessments levied by the defendant against the plaintiffs deceased father. The plaintiff claims that his father was immune from German taxation as a member of the Allied Forces of Berlin from 1957 to 1989. Before the court are the defendant's motion to dismiss and the plaintiff's motion for leave to perfect service of process.¹ Because the court lacks subject-matter jurisdiction over the plaintiff's claims, the court grants the defendant's motion to dismiss. Consequently, because granting the plaintiff leave to perfect service would be futile, the court denies the plaintiff's motion to perfect service of process.

II. BACKGROUND

A. Factual History

The plaintiffs father, Dr. Samuel L. Kobre, began practicing law in Berlin in 1950. Compl. ¶ 95. In 1951, during the Allied Forces occupation of Germany, Kobre became a member of the Allied Forces of Berlin. Id. ¶¶ 95-98. As a member of the Allied Forces, according to the plaintiff, Kobre was immune from taxation in Germany. Id. ¶ 98. Between 1955 and 1957, however, Kobre received three letters informing him that his status as a member of the Allied Forces had terminated. Id. ¶ 115. But the plaintiff alleges that the letters Kobre received were insufficient to end his special status and terminate his immunity from the defendant's jurisdiction. Id. ¶¶ 115-23. Moreover, the plaintiff maintains that Kobre's status as a member of the Allied Forces did not automatically terminate in 1955 when the occupation of West Germany ended, id., and that Kobre continued to enjoy immunity from German jurisdiction and taxation, id. ¶ 133.

The plaintiff alleges that German authorities tried Kobre in a German criminal court for tax evasion for the period from 1957 to 1987, and the court concluded that because his status as a member of the Allied Forces had ended, he was not immune from taxation or jurisdiction in German courts. Id. ¶¶ 124-29. The court allegedly found Kobre guilty of tax evasion on February 23, 1989. Id. ¶ 129, p. 107.² In 1987, German revenue authorities filed a parallel civil suit concerning the tax assessments from 1957 to 1987, and in 1989, they initiated another suit involving assessments for the years 1988 through 1989. Id. ¶ 128, p. 108. Kobre died before the case was resolved, and the assessments passed to the plaintiff as inheritance debt. Id.

The plaintiff brought a civil suit to challenge the tax assessments. Id. ¶ 129, p. 108. The civil court also ruled against the plaintiff, concluding that Kobre's special status ended in 1955. Id. ¶¶ 130-134, p. 109-115. The German Federal Fiscal Court, the appellate court in Germany, dismissed the plaintiffs subsequent appeal in 1994 as unfounded, and the German Constitutional Court, the court of last resort, elected not to hear the case in 1996. Id. ¶¶ 141, 143. In 1999, the European Commission on Human Rights rejected the plaintiff's appeal. Id. ¶ 143.

B. Procedural History

On December 7, 2005, the plaintiff brought this action, claiming that his debt to the defendant is invalid because his father was a member of the Allied Forces of Berlin from 1951 until his death, and he was consequently immune from German jurisdiction and taxation. See Compl. He asserts that the court has jurisdiction over this case based on the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C §§ 1330 et seq., the Alien Tort Claims Act ("ATCA"), 28 U.S.C. §§ 1350 et seq., and federal question jurisdiction, 28 U.S.C. § 1331. Id. ¶ 4.

On December 7, 2005, the plaintiff attempted to serve the defendant by mailing the complaint and summons to the Embassy of the Federal Republic of Germany in Washington, D.C. Def.'s Mot. at 1; Not. of Mailing of Compl. at 2. On January 3, 2006, the defendant moved the court to dismiss the plaintiff's complaint for lack of proper service of process and for lack of personal jurisdiction. The plaintiff opposes the defendant's motion to dismiss and moves for leave to perfect service. The court first turns to the defendant's motion.

III. ANALYSIS

A. The Court Grants the Defendant's Motion to Dismiss

The defendant moves the court to dismiss the complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and because service was improper. Def.'s Mot. at 4. The plaintiff responds to the motion by asking the court for leave to perfect service. Pl.'s Mot. at 4. In order to establish personal jurisdiction under the FSIA, a plaintiff must demonstrate subject-matter jurisdiction and proper service of process. Transaero, Inc., v. LaFuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C.Cir.1994) (citing Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981)). Because the court lacks subject-matter jurisdiction over the plaintiff's claims, it dismisses the complaint for lack of personal jurisdiction, and it denies the plaintiff's motion to perfect service.

1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").

Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C.Cir.2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), vacated on other grounds, 542 U.S. 155, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004)).

Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiffs factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Moreover, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, to determine whether it has jurisdiction over the claim, the court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992).

2. Legal Standard for the Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act is "the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The basic premise of the FSIA is that foreign sovereigns are immune from suit in the United States unless the action falls under one of the specific exceptions enumerated in the statute. 28 U.S.C. § 1604; Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192, 196 (D.C.Cir.2004). If a foreign sovereign is not immune, the federal district courts have exclusive jurisdiction over the action. 28 U.S.C. §§ 1330, 1604; Daliberti v. Republic of Iraq, 97 F.Supp.2d 38, 42 (D.D.C.2000) (citing Amerada Hess, 488 U.S. at 434-35, 109 S.Ct. 683).

Under the FSIA, a foreign sovereign has "immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C.Cir.2000) (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990)). The special circumstances of a foreign sovereign require the court to engage in more than the usual pretrial factual and legal determinations. Foremost-McKesson, 905 F.2d at 449. The D.C. Circuit has noted that it is particularly important that the court "satisfy itself of its authority to hear the case" before trial. Id. (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179 (D.C.Cir.1984)).

3. The Defendant is Entitled to Sovereign Immunity

At the outset, the court notes that the parties do not dispute that the defendant is a sovereign. Pl.'s Compl. ¶ 7 (stating that "[t]he defendant, the Federal Republic of Germany (Germany), is a foreign state" and that the FSIA governs the plaintiff's claims); Def.'s Mot. at 1 (challenging the plaintiffs service of process as failing to...