Shakour v. Federal Republic of Germany

• Decision Date: 02 May 2002
• Docket Number: No. 00CV2326 (ADS)(ARL).,00CV2326 (ADS)(ARL).
• Citation: 199 F.Supp.2d 8
• Parties: John D. SHAKOUR, Korneliske Shakour, Robert A. Shakour, Marina S. Haber-Shakour and Richard K. Shakour, Plaintiffs, v. The FEDERAL REPUBLIC OF GERMANY and The Estate of John D. Hollingsworth, Decedent, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 8

199 F.Supp.2d 8

John D. SHAKOUR, Korneliske Shakour, Robert A. Shakour, Marina S. Haber-Shakour and Richard K. Shakour, Plaintiffs, v. The FEDERAL REPUBLIC OF GERMANY and The Estate of John D. Hollingsworth, Decedent, Defendants.

No. 00CV2326 (ADS)(ARL).

United States District Court, E.D. New York.

May 2, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John D. Shakour, Baldwin, NY, Pro se.

Korneliske Shakour, Totowa, NJ, Pro se.

Robert A. Shakour, West Vancouver, British Columbia, Pro se.

Marina Haber-Shakour, Totowa, NJ, Pro se.

Richard K. Shakour, Dowington, PA, Pro se.

Dechert Price & Rhoads by Robert A. Cohen, Debra D. O'Gorman, and Najma Q. Rana, New York City, for Defendant The Estate of John D. Hollingsworth.

No Appearance, The Federal Republic of Germany.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This action arises out of a claim by pro se plaintiffs John D. Shakour ("J. Shakour"), Korneliske Shakour ("K. Shakour"), Robert A. Shakour ("R.A. Shakour"), Marina S. Haber-Shakour ("Haber-Shakour") and Richard K. Shakour ("R.K. Shakour") (collectively, the "plaintiffs") against the defendants the Federal Republic of Germany ("Germany") and the Estate of John D. Hollingsworth (the "Hollingsworth Estate"). The plaintiffs allege that the defendants engaged in a conspiracy to deprive them of rights to certain property in Germany. Presently before the Court is a motion by the Hollingsworth Estate to dismiss the amended complaint pursuant to Rules 8(a), 12(b)(2), 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure.

I. BACKGROUND

The following facts are taken from the amended complaint. At the outset, the Court notes that the amended complaint is largely unintelligible and it contains a number of unexplained exhibits, many written in German.

The plaintiffs allege that one Margarethe Otto ("M. Otto") conveyed her estate, involving three factories in the former East Germany, namely one in Leisnig, Germany and two in Mittweida, Germany, to J. Shakour in her will of July 6, 1980. The factories produced unspecified products in the carding industry. Carding involves the process in which machines clean and straighten wool or cotton in preparation for the spinning and weaving of material into clothing or fabric.

The plaintiffs further allege that in 1948, prior to the disposition set forth above, the German Democratic Republic (the "GDR") had expropriated the three factories at issue in this case. The GDR then renamed the factories and operated them until the downfall of the GDR in 1990. The plaintiffs also allege that the GDR purchased an additional factory in Neustadt (Orla), Germany on March 4, 1949 which expanded its operation in the carding industry.

The plaintiffs next allege that since 1990, they have attempted unsuccessfully to obtain restitution for or the return of the factories allegedly conveyed to J. Shakour from various German courts and administrative agencies. The plaintiffs also claim that they retained attorneys in Germany who advised them that they are not entitled to the factories allegedly conveyed to J. Shakour on the ground that the GDR expropriated the property in 1948.

On April 21, 2000, the plaintiffs commenced this action against the Federal Republic of Germany alleging that the German government, the German courts and administrative agencies and the plaintiffs' attorneys in Germany participated in a conspiracy to deprive them of their rights to the property allegedly conveyed in the will of M. Otto. On March 15, 2001, shortly after K. Shakour read an article about the death of John D. Hollingsworth ("Hollingsworth") and Hollingsworth's involvement in the textile industry, the plaintiffs filed an amended complaint adding the Hollingsworth Estate as a defendant. In particular, the plaintiffs allege that Hollingsworth was part of the conspiracy with Germany because he purchased the factory in Neustadt (Orla) on April 12, 1991. The amended complaint contains no specific causes of action. Presently before the Court is a motion by the Hollingsworth Estate to dismiss the amended complaint pursuant to Rules 8(a), 12(b)(2), 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure.

II. DISCUSSION

In addressing the present motion, the Court is mindful that the plaintiffs are proceeding pro se and that their submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers....'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993). The Court recognizes that it must make reasonable allowances so that pro se plaintiffs do not forfeit rights by virtue of their lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983).

Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law....'" Traguth, 710 F.2d at 95 (citation omitted).

The Court will address the issues of jurisdiction first because a dismissal for lack of jurisdiction renders all other claims moot. See Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 1570, 143 L.Ed.2d 760 (1999) (stating that subject matter jurisdiction and personal jurisdiction go to the power of the court to adjudicate the merits of a case). Here, the Court will analyze its subject matter jurisdiction before addressing personal jurisdiction. See Ruhrgas, 526 U.S. at 583, 119 S.Ct. at 1569 (stating that the district court may choose to first address either subject matter jurisdiction or personal jurisdiction).

A. Subject Matter Jurisdiction

District courts must police subject matter jurisdiction on their own initiative. Fed.R.Civ.P. 12(h)(3); Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir.2000) ("[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte."). When evaluating subject matter jurisdiction, a court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir.2001); Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir.1976).

A court must accept as true all material factual allegations in the complaint, but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992). Hearsay statements contained in affidavits may not be considered. Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986).

1. As to Germany

The Foreign Sovereign Immunities Act of 1976 (the "FSIA") provides the sole basis for securing subject matter jurisdiction over a foreign state in federal court. Reiss v. Societe Centrale Du Groupe Des Assurances Nationales, 235 F.3d 738, 746 (2d Cir.2000). Under the FSIA, a foreign state is immune from suit unless one of the statutory exceptions applies. Reiss, 235 F.3d at 746-47. A plaintiff bears the burden of establishing that her or his claim falls within one of the statutory exceptions to sovereign immunity, while the ultimate burden of persuasion remains with the foreign state. See Drexel Burnham Lambert Group Inc. v. Committee of Receivers for Galadari, 12 F.3d 317, 325 (2d Cir.1993).

The statutory exceptions are essentially: (1) where the foreign state waives immunity; (2) where the action is based on a commercial activity by the foreign state carried on in the United States or has a direct effect in the United States; (3) where the action relates to the expropriation of property located in the United States; (4) where the action relates to property in the United States acquired by succession or gift; (5) where the action relates to a tort committed in the United States; (6) where the action relates to the enforcement of an arbitration agreement; and (7) where the action relates to personal injury or death caused by acts of torture, extrajudicial killing, aircraft sabotage or hostage taking. See 28 U.S.C. § 1605(a)(1)-(7) (2002).

It is undisputed that Germany is a foreign state under the FSIA. See 28 U.S.C. § 1603 (2002). As such, to have subject matter jurisdiction in their action against Germany, the plaintiffs must establish that one of the statutory exceptions to immunity exists. Neither the amended complaint nor the affidavit submitted in opposition to the motion to dismiss set forth any of the exceptions to sovereign immunity.

In addition, the Court finds that none of the exceptions apply. The first exception does not apply because Germany has not waived its right to immunity. The second exception does not apply because the action is not based on a commercial activity of the German government. In particular, the action is based upon the expropriation of property by the GDR. This is a public, not a commercial act. See Saudi Arabia v. Nelson, 507 U.S. 349, 359-60, 113 S.Ct. 1471, 1478-79, 123 L.Ed.2d 47 (1993) (stating that as to the commercial activity exception "a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those that are private or commercial in character (jure gestionis)."). Moreover, neither the GDR's expropriation of the factories nor the...