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HIRSH v. STATE OF ISRAEL

April 7, 1997

WEINBERG HIRSH, HENRY EISLER, THEODORE HILSENRATH, BENZION BERKOWITZ, and Others, Plaintiffs, against STATE OF ISRAEL and STATE OF GERMANY, Defendants.


The opinion of the court was delivered by: KEENAN

 JOHN F. KEENAN, United States District Judge:

 Defendants State of Israel ("Israel") and Federal Republic of Germany ("Germany") move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1), (2), (4), and (5). For the reasons set forth below, the Court grants Defendants' motions to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).

 BACKGROUND

 Plaintiffs Weinberg Hirsh, Henry Eisler, Theodore Hilsenrath, and Benzion Berkowitz bring this action on behalf of themselves and a putative class of Holocaust survivors to recover reparation payments allegedly due them pursuant to the terms of a treaty Germany and Israel entered into in 1952 known as the Luxembourg Agreement. *fn1" According to the complaint, the government of West Germany assumed an obligation under the treaty to compensate Holocaust survivors for their loss of freedom, loss of income, pain and suffering, bodily injury, and property damages at the hands of the Nazis during World War II. See Compl. P 4. Plaintiffs also aver that Israel assumed an obligation to make payments to Holocaust survivors who immigrated to Israel out of a fund established by West Germany pursuant to the treaty. See id.

 Plaintiffs charge in this action that Israel and Germany have failed to compensate Holocaust survivors in accordance with the Luxembourg Agreement. Specifically, Plaintiffs claim that Israel has failed to make adequate payments because it has grossly mismanaged or embezzled the funds provided by West Germany. See id. PP 4, 6. Plaintiffs allege that Germany is liable for this shortfall as Israel's "principal" with respect to payment of Holocaust survivors. See id. P 5. Plaintiffs also claim that the Federal Republic of Germany, which was formed in 1990 with the reunification of the former East and West Germany, is obligated to pay additional compensation to Holocaust survivors on behalf of the former East Germany, which allegedly has never paid reparations to Holocaust victims. See id. PP 4-5. Plaintiffs seek a total of $40 billion in damages against Defendants. See id. PP 7-8.

 DISCUSSION

 Defendants Israel and Germany move to dismiss this action for lack of subject matter jurisdiction and personal jurisdiction, and for insufficiency of process and service of process. Plaintiffs oppose the motions in a three-page memorandum of law entitled "Memorandum of Law by Plaintiffs" ("Pl. Mem.") and a seven-page memorandum entitled "Response by Plaintiffs" ("Pl. Resp."). *fn2" Plaintiffs have not submitted affidavits in opposition to the motions. The Court must first consider whether it has subject matter jurisdiction to adjudicate this action. See Cargill Int'l, S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993) ("Subject matter jurisdiction must be ascertained first.") (citing FSIA legislative history in House Report 13, reprinted in 1976 U.S.C.C.A.N. at 6612).

 I. The Foreign Sovereign Immunities Act

 The Foreign Sovereign Immunities Act of 1976 (the "FSIA"), 28 U.S.C. § 1602 et. seq., provides the exclusive source of subject matter jurisdiction over suits against foreign states brought in United States courts. *fn3" See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610-11, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). The statute confers original jurisdiction on federal district courts

 
without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity . . . .

 28 U.S.C. § 1330(a). However, the general rule is that a foreign state is presumptively immune from jurisdiction unless a court finds that one of the specific exceptions to immunity provided in sections 1605 to 1607 of the FSIA applies. See id. § 1604; see also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983).

 It is undisputed that Defendants Germany and Israel are "foreign states" within the meaning of section 1603(a) of the FSIA. See 28 U.S.C. § 1603(a). Therefore, Plaintiffs have the burden of going forward with evidence demonstrating that their claims fall within one of the statutory exceptions to sovereign immunity, although 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) (citing Cargill Int'l, 991 F.2d at 1016), cert. denied, 511 U.S. 1069, 128 L. Ed. 2d 365, 114 S. Ct. 1644, 114 S. Ct. 1645 (1994). Absent a showing by Plaintiffs that an exception to foreign sovereign immunity exists, the Court is without subject matter jurisdiction over this action.

 Although the allegations in Plaintiffs' complaint and arguments in their motion papers are vague and almost entirely conclusory, the Court construes Plaintiffs as claiming five separate exceptions under the FSIA to Israel's and Germany's presumptive sovereign immunity: the waiver exception in section 1605(a)(1), the commercial activity exception in section 1605(a)(2), the property exception in section 1605(a)(3), the noncommercial tort exception in section 1605(a)(5), and the arbitration exception in section 1605(a)(6). Plaintiffs also claim that the Alien Tort Statute, 28 U.S.C. § ...


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