Rosner v. U.S.

• Decision Date: 28 August 2002
• Docket Number: No. 01-1859-CIV-SEITZ.,01-1859-CIV-SEITZ.
• Citation: 231 F.Supp.2d 1202
• Parties: Irving and Ana ROSNER, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

231 F.Supp.2d 1202

Irving and Ana ROSNER, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 01-1859-CIV-SEITZ.

United States District Court, S.D. Florida.

August 28, 2002.

Order Clarifying Opinion on Denial of Reconsideration November 26, 2002.

Steve W. Berman, Hagens & Berman, Seattle, WA, Jeffrey Lee Kravetz, Samuel Johnathan Dubbin, Dubbin & Kravetz, Coral Gables, FL, Jonathan W. Cuneo, The Cuneo Law Group, Washington, DC, for Irving Rosner, Ana Irving, Andrew Tibor, Irene Tibor, Irene Mermelstein, Ethel Klein, Mark Klein, Regina Baskin, Edith Reiner, Leopold Fettman, Marla Simon, Laslo Sokoly, David Mermelstein, plaintiffs.

Robyn Juanita Hermann, United States Attorney's Office, Miami, FL, Caroline Lewis Wolverton, Andrea G. Cohen, Vincent M. Garvey, United States Department of Justice, Washington, DC, for United States of America, defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS

SEITZ, District Judge.

THIS CAUSE is before the Court on Defendant's Motion to Dismiss under Fed. R.Civ.P. 12(b)(1) and 12(b)(6) [D.E. No. 16]. Plaintiffs bring this class action lawsuit on behalf of Hungarian Jews, and their descendants, whose personal property and valuables they believe were stolen and loaded onto the "Hungarian Gold Train" by the pro-Nazi Hungarian government during World War II, and later seized by the United States Army outside of Salzburg, Austria. Specifically, Plaintiffs' Complaint alleges three counts: (1) unconstitutional taking in violation of the Fifth Amendment to the United States Constitution; (2) breach of an implied-in-fact contract of bailment; and (3) violation of conventional and customary international law.

The Government moves to dismiss on the following grounds: (1) Plaintiffs' Complaint is untimely, and therefore, barred in its entirety by sovereign immunity; (2) Plaintiffs' claim of international law violations (Count III) is barred because Congress has not waived sovereign immunity for such a claim; (3) Plaintiffs' Fifth Amendment claim (Count I) fails to state a claim upon which relief can be granted; and (4) Plaintiffs' claim for breach of an implied-in-fact contract of bailment (Count II) fails to state a claim upon which relief can be granted.¹

After hearing oral argument on August 22, 2002, and for the reasons stated below, the Government's motion is granted in-part and denied in-part. Specifically, the Court rules as follows: (1) based on the allegations in the Complaint, Plaintiffs' viable claims are not time-barred under the principles of equitable tolling; (2) to the extent that Plaintiffs seek non-monetary relief pursuant to the Administrative Procedure Act, the international law claim (Count III) is viable; (3) Plaintiffs' Fifth Amendment claim (Count I) fails to state a claim upon which relief can be granted, and thus, will be dismissed with prejudice; and (4) Plaintiffs' claim for breach of an implied-in-fact contract of bailment (Count II) does state a claim upon which relief can be granted.

BACKGROUND

On March 19, 1944, towards the end of World War II, Germany invaded Hungary. Soon thereafter, through a series of discriminatory decrees, the pro-Nazi Hungarian government forced all Jews to turn over their gold, silver, gems, and other personal valuables to the authorities. Ultimately, the Hungarian government decreed that all Jewish-owned wealth and property belonged to the Hungarian government.

In the fall and winter of 1944-45, as the prospect of Germany's defeat loomed larger, the Hungarian government, at the direction of the Nazis, loaded the stolen Jewish property onto a train bound for Germany. Because of the value of the train's cargo, the train became known as the "Gold Train." The lengthy train, consisting of over forty cars, made its way from Hungary into Austria, but never made it to German territory.

On or about May 11, 1945, the U.S. Army seized the Gold Train from pro-Nazi Hungarian troops outside of Salzburg, Austria. Due to the war-ravaged conditions of Europe's rail system, the Gold Train remained south of Salzburg, under guard of American troops, for close to three months. In late July 1945, after the railway system was marginally repaired, the train was moved, via U.S. Army locomotive, to the Maglan suburb of Salzburg. From there, the assets on the Gold Train were moved by truck to storage facilities in Salzburg. According to Plaintiffs, the majority of the assets, with the exception of the 1200 paintings, were stored in the Military Government Warehouse. The artwork was stored elsewhere in Salzburg.

Plaintiffs maintain that the property on the Gold Train was identifiable. The items on the train were in locked containers with the names and addresses of the owners on the outside. The Jewish families placed their items in such containers, along with other identifying marks, to enable them to reclaim their belongings.²

Additionally, Plaintiffs claim that the Government was in possession of overwhelming circumstantial evidence that the property on the Gold Train belonged to Hungarian Jews and that such property was identifiable. Yet, notwithstanding such evidence, and despite repeated requests from the Hungarian Jewish community, Plaintiffs allege that in the summer of 1946, the United States Government declared that it was not possible to identify either the individual owners of the property or even the appropriate country of ownership. Thereafter, unbeknownst to Plaintiffs or the public, the Government sold, distributed and/or requisitioned the property from the Gold Train. According to Plaintiffs, a majority of the property was sold through the Army Exchange Service or donated to international refugee services, some of the property was used by U.S. military officers as home and office furnishings, and a substantial amount of property was looted from the warehouse in Salzburg.

Plaintiffs do not know the ultimate disposition of the property. Because of the amount of time that has elapsed, combined with the classification of many official documents pertaining to their property, most, if not all of the putative class could not have known about the facts giving rise to this lawsuit. These Plaintiffs maintain it was only in October 1999, when the Presidential Advisory Commission on Holocaust Assets released its Report on the Gold Train, that many of the facts presented in their Complaint came to light.

LEGAL STANDARD

As stated above, the Government moves to dismiss the Complaint under both Rule 12(b)(1) and Rule 12(b)(6). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217(1980); Baydar v. Renaissance Cruises, Inc., 35 F.Supp.2d 916, 917 (S.D.Fla. 1999). In evaluating whether subject-matter jurisdiction exists, a court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

Attacks on subject matter jurisdiction arise in two forms: facial attacks and factual attacks. Facial attacks "require [] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citations omitted). "Factual attacks," on the other hand, challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. Here, the Government's first two dismissal arguments assert only facial attacks.

To survive a Rule 12(b)(6) motion to dismiss, a complaint need only provide a short and plain statement of the claim and the grounds on which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A Rule 12(b)(6) motion tests not whether the plaintiff will prevail on the merits, but instead, whether the plaintiff has properly stated a claim. See Fed.R.Civ.P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. Thus, a court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In deciding such a motion, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the nonmovant's favor. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. Regardless of what standard a court uses, the threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. Ancata v. Prison Health Svcs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted).

LEGAL ANALYSIS

A. Sovereign Immunity

1. Statute of Limitations

As a sovereign, the United States cannot be sued in its own courts unless Congress explicitly authorizes such suit. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). "A necessary corollary of this rule is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied." Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). One of those conditions is the statute of limitations, which reflects Congress's decision to waive sovereign immunity only if suit is brought within a particular period of time. See Soriano v. United States, 352 U.S. 270, 273, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). As such, compliance with the applicable statute of...