FSIA Immunity Found In Suit Against Germany; Neither Commericial Activity Nor Takings Exceptions Applies To Real Property Located In Germany

Hammerstein v. The Federal Republic of Germany, 09-CV-443 (ARR)(RLM) (E.D.N.Y. Aug. 2011), dismisses for want of subject matter jurisdiction claims asserted against Germany. Plaintiff fought over the right to own the property located in Germany, ultimately won that fight against claims of ownership by both the government of Schwerin, Germany and the Conference on Jewish Material Claims Against Germany, and then sued for the diminution in the value of the property because of alleged neglect and malfeasance occurring while the court battles were going on to determine ownership. Only the Republic of Germany was sued.

The international practice issues addressed in the case include the following:

First, in assessing the subject matter jurisdiction challenge, the Court accepted as true "all material factual allegations in the complaint" but, on the basis two Second Circuit cases, refused to "draw inferences favorable to the party asserting jurisdiction". For other approaches to the issue of how to assess the presence or absence of subject matter jurisdiction, see our discussion of subject matter jurisdiction in our e-book, International Practice: Topics and Trends and our blog posting here (among other places).

Second, the Court followed settled law that in finding that the commercial...