In re Nazi Era, (C.D. Cal.) C.A. No. 2:00-9624 (D. N.J. 3/1/2001)
| Decision Date | 01 March 2001 |
| Docket Number | MDL. No. 337.,Civ. No. 00-5496 (WGB).,D.N.J. Lead Civ. No. 98-4104 (WGB).,(C.D. Cal.) C.A. No. 2:00-9624 |
| Parties | In re: NAZI ERA CASES AGAINST GERMAN DEFENDANTS LITIGATION. This Matter Relates To: Simon Frumkin et al. v. JA Jones, Inc. et al. |
| Court | U.S. District Court — District of New Jersey |
Barry Fischer, Esq. Los Angeles, California Counsel for Plaintiff Simon Frumkin,
Bud G. Holman, Esq. KELLEY DRYE & WARREN LLP New York, New York Counsel for Defendant J.A. Jones, Inc.,
Allyn Z. Lite, Esq. LITE DEPALMA GREENBERG & RIVAS, LLC Newark, New Jersey, Liaison Counsel for Plaintiffs.
John J. Gibbons, Esq. GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE A Professional Corporation Newark, New Jersey, Liaison Counsel for Defendants.
Plaintiff Simon Frumkin seeks recovery against Defendants Philipp Holzmann AG, Philipp Holzmann USA, and J.A. Jones, Inc., for damages resulting from his forced labor in Nazi Germany from July, 1944 to April, 1945. The Nazi government contracted with Defendants1 to construct a secret underground airplane hanger/factory complex during World War II.2 Plaintiff claims that he and his deceased father were exploited, tortured, starved, and forced to perform crushing labor by Holzmann in the construction of the complex.
Defendants move to dismiss under FRCP 12(b) on numerous grounds, only two of which are addressed in this opinion: the political question doctrine and international comity. After thorough consideration of the voluminous submissions of the parties and the Statement of Interest filed by the United States government, and after having heard oral argument, this Court concludes that Plaintiff's claims should be dismissed with prejudice. The Court grants Defendants' motion, on the grounds that Plaintiff's claims present non-justiciable political questions, and that the Court should decline to exercise jurisdiction in the interests of international comity.
This is the last of more than fifty cases that were consolidated before the Court as the result of a "motion for centralization," pursuant to 28 U.S.C. § 1407, brought before the Judicial Panel on Multidistrict Litigation ("MDL Panel"). (MDL Transfer Order, Docket No. 1337 (August 4, 2000)). In the overwhelming majority of the consolidated cases, Plaintiffs sought voluntary dismissal with prejudice. Voluntary dismissal in those cases was subsequently granted, pursuant to an opinion of the Court dated December 5, 2000. See In re: Nazi Era Cases Against German Defendants Litigation, 198 F.R.D. 429 (D.N.J. 2000).
In its transfer order, the MDL Panel indicated that common to the actions before the Court were claims against German companies, including banks, insurance companies, and industrial corporations, (collectively "German Industry"), which arose from conduct occurring during the Nazi era. These cases were transferred in light of "an important international agreement which promises to present significant common pretrial issues pertaining to the settlement or dismissal of the actions." (MDL Order at 2).
The "important international agreement" referred to in the Transfer Order is that embodied in the German Foundation "Remembrance, Responsibility and the Future" ("The Foundation"). The Foundation is the result of a collaboration among American plaintiffs' attorneys, representatives of German Industry, numerous governments including those of the United States, Germany, and Israel, and other non-governmental organizations. The Foundation was designed to provide some measure of compensation to the many surviving victims of the Nazi era whose claims rest on the conduct of German Industry during that period, and whose claims have allegedly been ignored by prior efforts to compensate victims of Nazi aggression. In exchange for this compensation, surviving victims agree to provide German Industry with legal peace.3
As agreed to during negotiations, the Foundation provides that before any victims receive individual compensation, the legal peace promised to German Industry must be secured in the form of dismissal with prejudice of all lawsuits brought by victims against German Industry pending in the courts of the United States. Given the unique opportunity presented by the Foundation, the overwhelming majority of Plaintiffs with claims before the Court either noticed or moved for voluntary dismissal of their claims with prejudice. Also in keeping with the goals of the Foundation, Defendant companies have moved to dismiss with prejudice the only action remaining in this Court, namely that brought by Plaintiff Frumkin.
This action was commenced by Plaintiff Frumkin in the Superior Court of California for the County of Los Angeles on April 14, 2000. The action was subsequently removed to the Central District of California by Defendants. The basis for removal was jurisdiction pursuant to 1) 28 U.S.C. § 1331 (); 2) 28 U.S.C. § 1332(a) (diversity); and 3) 28 U.S.C. § 1367 (supplemental jurisdiction). After removal to the Central District of California, Frumkin's action was transferred to this Court by order of the MDL panel for consolidated pre-trial proceedings, pursuant to 28 U.S.C. § 1407. (MDL Transfer Order, Docket No. 1337 (August 4, 2000)).
The grim reality of German Industrial atrocities committed before and during World War II have been well-documented, by scholars and courts alike. Plaintiff's action is typical of those that were before the Court as a result of the MDL Panel's Transfer Order, all of which asserted claims either stemming from the appropriation of property, or from enslavement, torture, and murder by German Industry. In addition to claims for his own slave-labor related injuries, Frumkin has brought a wrongful death action on behalf of his deceased father, who Defendants allegedly worked to death before Plaintiff's eyes.
Frumkin was born in Kovno, Lithuania, on November 5, 1930, and resided there until that city's military occupation in July of 1944 (Complaint, ¶ 1). He and his father were transported to a labor camp in Germany, where they were forced by Holzmann to construct a subterranean aircraft hanger and warplane manufacturing plant. (Complaint, ¶ 12). The Nazi government entered into a contract with Holzmann for the construction of this facility, which was to be used as a locus for the assembly and concealed operation of warplanes for the Luftwaffe. (Complaint, ¶¶ 10, 12).
Following a daily five-mile trek to the construction site from their camp, twenty thousand laborers, including Frumkin and his father, worked 12-hour shifts, seven days a week, in an effort to complete the facility. (Complaint, ¶¶ 13,15). In order to increase productivity, daily beatings and torture were employed, which resulted in the deaths of more than 5,000 slaves at the hands of Holzmann's supervisors. (Complaint, ¶¶ 28-31). Holzmann's slaves faced the constant threat of being killed if they refused to work. (Complaint, ¶ 40).
Plaintiff's father, Nicholas Frumkin, died as a result of his enslavement on April 7, 1945, just 20 days before the camp's liberation. (Complaint, ¶¶ 1, 46). According to Frumkin, the gold dental work in his father's teeth was then pried out of his father's mouth under Defendant's directive. (Complaint, ¶ 1).
Defendants have assembled a laundry list of legal theories supporting dismissal of Plaintiff's claims.4 A number of these legal arguments, each independently justifying dismissal, have recently been relied on by two courts in this District in dismissing the factually similar claims of other slave laborers. See Burger-Fischer v. DeGussa AG, 65 F.Supp.2d 248 (D.N.J. 1999) (); Iwanowa v. Ford Motor Company, 67 F.Supp.2d 424 (D.N.J. 1999)(claims barred by treaty, expiration of statute of limitations,5 political question doctrine, and international comity).
The Court limits this opinion to the two arguments that are inescapably fatal to Frumkin's action; namely that his claims present non-justiciable political questions, and that in the interests of international comity, this Court should decline to exercise jurisdiction over his claims.6 The Court reaches these conclusions based on the pervasive intervention of the political branches of government into this area over the last 55 years; pervasive intervention which has culminated in the newly-created Foundation "Remembrance, Responsibility, and the Future."
The political question doctrine like standing, mootness and ripeness places constitutional and prudential limits on the power of the federal courts to adjudicate certain kinds of claims. Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983). Because the conduct of the foreign relations of our government was committed by the founding fathers to the Executive and Legislative branches, claims which implicate the government's foreign policy may pose political questions. U.S. CONST. art. II, § 2. The political question doctrine in this area is an entirely judicial extension of that fundamental commitment of power to Congress and the President. Courts have held that "the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). "Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been 'constitutional[ly] commit[ted].'" Goldwater v. Carter, 444 U.S. 996 (1979)(Brennan, J. dissenting), quoting Baker v. Carr, 369 U.S. 186, 211-213 (1962).
"[T]he Framers 'did not make the judiciary...
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