Chabad V. Russian Federation, 466 F.Supp.2D 6 (2006)
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LIBRARIES AND ARCHIVES: RESTITUTION OF RECORDED CULTURAL HERITAGE Chabad v. Russian Federation, 466 F.Supp.2d 6 (2006) United States v. Gourary, 650 F.Supp. 1463, 1464 (E.D.N.Y.1987), aff'd, 833 F.2d 431 (2d Cir.1987) Chabad Memorandum Opinion Chabad v. Russia Order State of Netherlands v. Fed. Reserve Bank of New York, 201 F.2d 455, 459 n. 4 (2d Cir.1953) Millicom Int'l Cellular v. Republic of Costa Rica, 995 F.Supp. 14, 23 (D.D.C.1998) Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Dispute Derails Art Loans From Russia Carol Vogel and Clifford J. Levy, The New York Times, February 2, 2011 The Postwar Fate of Einsatzstab Reichsleiter Rosenberg Archival and Library Plunder, and the Dispersal of ERR Records P.K. Grimsted, Journal of Holocaust and Genocide Studies Flyer: Reconstructing the Record of Nazi Cultural Plunder: A Survey of the Dispersed Archives of the Einsatzstab Reichsleiter Rosenberg (ERR) Why Do Captured Archives Go Home? Restitution Achievements under the Russian Law, International Journal of Cultural Property, 2010 Cambridge University Press 6 466 FEDERAL SUPPLEMENT, 2d SERIES 2006); Turner & Newall, P.L.C. v. Cana- Accordingly, after weighing all relevant dian Universal Ins. Co., 652 F.Supp. 1308, factors, the Court concludes that this case 1310 (D.D.C.1987) (noting that the pre- should be transferred to the Northern Di- sumption against disturbing plaintiff’s vision of the United States District Court choice of forum ‘‘may switch to defendants’ for the District of Maryland in Baltimore. favor in the District of Columbia when Defendant’s motion to transfer [Dkt. # 9] neither party resides in the chosen forum is GRANTED, and the Clerk of the Court and the cause of action arises elsewhere’’). is ordered to transfer this case to the Both plaintiffs reside in Maryland, and the United States District Court for the Dis- only factual connection to the District of trict of Maryland. Columbia that they articulate is that they SO ORDERED. conducted a small portion of their business on behalf of Allstate here. Plaintiffs as- sert that Onyeneho sold between two and , five insurance policies in the District of Columbia, and Adu–Nyamekya sold ap- proximately ten policies here.3 (Pl. Opp. at 2.) Defendant claims that its records show that Onyeneho sold a total of 174 AGUDAS CHASIDEI CHABAD OF policies for Allstate, three of which were UNITED STATES, Plaintiff, sold to D.C. residents, and Adu–Nyameke v. sold 137 policies, four of which were sold to RUSSIAN FEDERATION, D.C. residents. (Crupper Decl. ¶¶ 9, 10.) et al., Defendants. The relatively small percentage of Allstate business that plaintiffs conducted in the Civ. Action No. 05–01548 (RCL). District of Columbia is insufficient to per- United States District Court, suade the Court that the District has any District of Columbia. significant interest in the parties or their claims. In short, plaintiffs’ claims do not Dec. 4, 2006. have any meaningful ties to the District of Background: Religious corporation Columbia, and their selection of this forum brought action under the Foreign Sover- thus carries little weight. See Liban, 305 eign Immunities Act (FSIA), alleging that F.Supp.2d at 142. the Russian Federation and several Rus- 3. Plaintiffs have also filed the declaration of tion, and it will not consider the D.C. activi- Latine Halstead, a current Allstate agent for- ties of a non-party in its evaluation of this merly employed in the same eighteen-month motion. Moreover, while courts have consid- training program as plaintiffs Onyeneho and ered the distribution of a putative class in Adu–Nyamekye, who states she has sold 130 deciding transfer motions, see Berenson, 319 policies to D.C. residents. (Halstead Aff. ¶ 5.) F.Supp.2d at 3; Ellis v. Costco Wholesale Halstead attests that she is ‘‘interested’’ in Corp., 372 F.Supp.2d 530, 543 (N.D.Cal. joining this action, but is reluctant to do so 2005), plaintiffs have made no claim that the because she is concerned about retaliation by class is likely to include a large number of Allstate and ‘‘other adverse consequences.’’ D.C. residents. On the contrary, defendant (Id. ¶ 3.) While the Court does not doubt that has attested that no trainee-agent in the same R3000 trainee insurance agents at Allstate training program as plaintiffs maintained an sold insurance policies in the District of Co- office in the District of Columbia. (Crupper lumbia, it declines to speculate on which, if any, additional employees might join this ac- Decl. ¶ 12.) AGUDAS CHASIDEI CHABAD v. RUSSIAN FEDERATION 7 Cite as 466 F.Supp.2d 6 (D.D.C. 2006) sian state agencies violated international 5. International Law O10.33 law by taking and continuing to hold a For purposes of an action under the collection of Jewish religious books, manu- Foreign Sovereign Immunities Act (FSIA), scripts, and other documents. Russian a taking violates international law if (1) it Federation moved to dismiss. The United was not for a public purpose, (2) it was States District Court for the Central Dis- discriminatory, or (3) no just compensation trict of California transferred proceedings. was provided for the property taken. 28 Holdings: The District Court, Lamberth, U.S.C.A. § 1605(a)(3). J., held that 6. International Law O10.33 (1) Court lacked jurisdiction over claim Union of Soviet Socialist Republics did with regard to Library of Jewish reli- not violate international law when it seized gious books and manuscripts, but Library of Jewish religious books and (2) Court had jurisdiction with regard to manuscripts, requiring dismissal, for lack Archive of handwritten teachings, cor- of jurisdiction, of Jewish religious corpora- respondence, and records. tion’s action against the Russian Federa- Motion granted in part and denied in part. tion, under the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), seeking possession of the library; 1. Federal Courts O33 taking of Library occurred when Soviet A court may rely on materials outside government moved it to a state facility or the pleadings to determine whether it has when it gave the owner an opportunity to jurisdiction. reclaim it, which he could not afford to do, at which times owner was a Soviet citizen. 2. International Law O10.31 28 U.S.C.A. § 1605(a)(3); Fed.Rules Civ. The Foreign Sovereign Immunities Proc.Rule 12(b)(1), 28 U.S.C.A. Act (FSIA) provides the exclusive basis for asserting jurisdiction over a foreign state 7. International Law O10.33 in a United States court. 28 U.S.C.A. Archive of handwritten teachings, cor- § 1602 et seq. respondence, and records of a Jewish rab- bi were illegally expropriated, for purposes 3. International Law O10.38 of determining District Court’s jurisdiction The defendant-state has the ultimate in action against the Russian Federation burden of establishing immunity under the under the Foreign Sovereign Immunities Foreign Sovereign Immunities Act (FSIA). Act (FSIA), when Nazi Germany seized 28 U.S.C.A. § 1602 et seq. Archive in Poland during World War II, or when the Soviet Army took it from the 4. International Law O10.38 Nazis at end of War; Nazi taking was Under the Foreign Sovereign Immu- discriminatory, both takings were not for nities Act (FSIA), once the defendant any public purpose and were not compen- makes a prima facie showing that it is a sated, and at time of takings, rabbi was no foreign state, plaintiff bears burden of as- longer a citizen of the Soviet Union. 28 serting at least some facts showing that U.S.C.A. § 1605(a)(3); Fed.Rules Civ.Proc. one of the FSIA exceptions applies; there- Rule 12(b)(1), 28 U.S.C.A. after the burden shifts back to defendant to prove, by a preponderance of the evi- 8. International Law O10.33 dence, that the alleged exception does not For purposes of an action under the apply. 28 U.S.C.A. § 1602 et seq. Foreign Sovereign Immunities Act’s 8 466 FEDERAL SUPPLEMENT, 2d SERIES (FSIA) expropriation exception, the defen- (FSIA), alleging taking of the Archive of a dant-state need not be the state that took Jewish rabbi in violation of international the property in violation of international law; RSMA intended to and did generate law. 28 U.S.C.A. § 1605(a)(3). income from sales of its materials in the U.S. 28 U.S.C.A. § 1605(a)(3); Fed.Rules 9. International Law O10.33 Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. For purposes of determining jurisdic- tion in an action under the Foreign Sover- 13. International Law O10.31 eign Immunities Act’s (FSIA) expropria- tion exception, FSIA does not include any Act of state doctrine precludes a court requirement that the plaintiff have ex- from ruling on a claim under the Foreign hausted his legal remedies in the foreign Sovereign Immunities Act (FSIA) when its state. 28 U.S.C.A. § 1605(a)(3). resolution turns upon the legality of a for- eign sovereign’s official action within its 10. International Law O10.33 own territory. 28 U.S.C.A. § 1602 et seq. Rights to Archive of handwritten teachings, correspondence, and records of 14. International Law O10.31 a Jewish rabbi were at issue, for purposes Act of state doctrine applies in an of determining District Court’s jurisdiction action under the Foreign Sovereign Immu- in action against the Russian Federation nities Act (FSIA) even if the plaintiff alleg- under expropriation exception to the For- es that a foreign sovereign’s action violated eign Sovereign Immunities Act (FSIA), international law.