CECILIA M. ALTONAGA, District Judge.
This case is rooted in the modern history of Germany — from that nation's attempt at economic recovery in the wake of World War I, through the dark days of World War II, to the euphoric reunification of the German state in 1990. Plaintiff, Sovereign Bonds Exchange, LLC ("SBE"), filed this suit against Defendants, the Federal Republic of Germany
Because many of these provinces and banks were located in East Germany following World War II, holders of the Bonds were unable to demand payment under the terms of the Agreement on German External Debts, February 27, 1953, 4 U.S.T. 443 (the "London Debt Agreement," the "Agreement" or "LDA"), an international agreement negotiated in 1953 between Germany and twenty-one other nations, including the United States. (See id. ¶¶ 22-27). The London Debt Agreement did, however, include a provision anticipating reunification:
LDA, art. 25, 4 U.S.T. 443.
On June 11, 2010, SBE filed suit against Germany and the German Banks alleging a violation of the London Debt Agreement, Article 25(b) and (c) (Count I) (see Compl. ¶¶ 86-97); breach of contract (Count II) (see id. ¶¶ 98-106); false and/or deceptive marketing under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.201-.23 (Count III) (see id. ¶¶ 107-118); and a claim of fraud, misrepresentation and fraudulent concealment (Count IV) (see id. ¶¶ 119-126). The German Banks filed the present Motion seeking to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Mot. 1; Defs.' Mem. 2 [ECF No. 27]). SBE filed its Response
The German Banks seek to dismiss SBE's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). It is presumed that a federal court lacks jurisdiction in a particular case until the plaintiff demonstrates the court has jurisdiction over the subject matter. See id. (citing Turner v. Bank of No. Am., 4 U.S. 8, 11, 4 Dall. 8, 1 L.Ed. 718 (1799); McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ("It is incumbent upon the plaintiff properly to allege the jurisdictional facts....")). Attacks on subject matter jurisdiction under Rule 12(b)(1) may be either facial or factual. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990). Like a Rule 12(b)(6) motion, "[a] `facial attack' on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in the complaint are taken as true...." Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)).
The German Banks raise a facial challenge to the Complaint and assert a treaty between the United States and Germany "prohibits bondholders from resorting to the courts of the United States to enforce
When the German Banks filed this Motion on July 27, 2010, the Eleventh Circuit Court of Appeals had not yet issued its ruling in World Holdings, LLC v. Germany, 613 F.3d 1310 (11th Cir.2010), affirming the denial of a motion to dismiss for lack of subject matter jurisdiction in a similar German bonds case.
In its Memorandum, SBE points to the Eleventh Circuit's decision in World Holdings and asserts it applies here. (See Pl.'s Mem. 2-3, 7-8). The German Banks disagree. (See Reply 3). While the German Banks correctly summarize the significance of the World Holdings decision — "that the 1953 Treaty did not expressly conflict with the FSIA" (id.), they claim "[t]he present case does not involve this interplay between the 1953 Treaty and the FSIA and, hence, the World Holdings decision is not dispositive" (id.). The German Banks fail, however, to explain why the present case would not "involve the interplay" between the FSIA and the Treaty, especially when SBE directly relies on the World Holdings decision in its Response. Without more, the Court is left to conclude it has subject matter jurisdiction in this matter under the commercial-activity exception to the FSIA.
The German Banks seek to dismiss each of the four counts alleged in SBE's Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although this pleading standard "does not require `detailed factual allegations,' ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir.2009) (citing Iqbal, 129 S.Ct. at 1949).
When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and
The assertions made by the German Banks are analyzed in the order presented in their Motion.
The German Banks contend Count I, "Violation of London Debt Agreement Article 25(b) and (c)" (Compl. ¶¶ 86-97), should be dismissed because (1) the German Banks were not parties to the LDA, and (2) the LDA does not create a private right of action available to SBE. (See Defs.' Mem. 9-10). SBE maintains the German Banks were parties to the LDA because they "are or were wholly owned entities by the sovereign and had an obligation to honor the 1953 Treaty, as well as the 1990 Reunification Treaty."
"[A] treaty is ... primarily a compact between independent nations." Medellin v. Texas, 552 U.S. 491, 505, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). "It is well established that individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereigns involved." Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.1990). "Thus, the general rule is that `[international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.'" Gandara v. Bennett, 628 F.3d 823, 827 (11th Cir.2008) (quoting Cornejo v. Cnty. of San Diego, 504 F.3d 853, 859 (9th Cir.2007) (citation omitted)). One of those exceptions is the self-executing treaty, which "has automatic domestic effect as federal law upon ratification.... [A] `non-self-executing' treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress." Medellin, 552 U.S. at 505 n. 2, 128 S.Ct. 1346. The question here is whether the LDA and, specifically, Article 25 of the Agreement, is self-executing.
To determine whether a treaty is self-executing, courts first look to the text of the treaty. See id. at 506-7, 128 S.Ct. 1346 (citing Air France v. Saks, 470 U.S. 392, 396-97, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)). If at all ambiguous, the context of the treaty is also considered to determine whether the drafters intended the treaty or its provisions to benefit individuals. See Gandara, 528 F.3d at 827 (concluding the context of the Vienna Convention establishes it was not intended to create individual rights). This includes examining the travaux preparatoires,
SBE's allegation that the German Banks violated Article 25 of the LDA fails to state a claim because this provision of the LDA is clearly not self-executing. The text of Article 25 is unambiguous and directed solely to the "Parties to the present Agreement." LDA, art. 25, 4 U.S.T. 443. Article 3 defines "Party to the present Agreement" as "any Government as to which the present Agreement has entered into force in accordance with the provisions of Article 35 or Article 36 thereof," which includes the signatory nations and any later acceding Government. Id., arts. 3(h), 35(1), 36(1). Because SBE is only a "creditor"
The German Banks assert SBE cannot claim a breach of contract because SBE has not complied, nor does it allege it complied with the validation requirements of the Validation Treaty. (See Defs.' Mem. 10-11). The German Banks rely on Mortimer Off Shore Services, Ltd. v. Germany, 615 F.3d 97, 117 (2nd Cir.2010), where the court determined the plaintiff, a non-assenting bondholder, failed to state a claim with respect to its bonds because it could not enforce those bonds unless it had complied with the validation procedures. Quoting from Mortimer, the German Banks assert "[b]ecause [plaintiff] has failed to plausibly allege that it either met the statutory validation requirements aimed to represent valid, legal obligation or was not required to do so," SBE has failed to state a claim. (Defs.' Mem. 11 (quoting Mortimer, 615 F.3d at 114)).
Mortimer is distinguishable from the instant case because unlike the plaintiff in Mortimer, SBE does allege the non-assenting bondholders "were not required to go through The Validation Process" and "have never been able to get ... the responsible obligor, successor corporate entities or financial institutions to redeem, pay or honor the Bond debt." (Compl. ¶¶ 35-36). SBE also alleges "timely demand for payment ... was made upon Defendant[s]...." (Id. ¶ 71; see also id. ¶ 105). The German Banks have not established the breach of contract claim should be dismissed because the bonds were not validated.
The German Banks also seek to dismiss SBE's breach of contract claim on the ground it is time-barred under New York State law, which limits claims "`upon
The Complaint indicates the Bonds were payable in New York, Massachusetts and Illinois (see Compl. ¶ 46), sold on the New York Stock Exchange and in this district (see id.), with principal and interest payable in New York, Massachusetts and Illinois (see id. ¶ 48).
The German Banks contend section 213(2) is the appropriate statute (see Defs.' Mem. 12), while SBE relies on section 211(a) (see Pl.'s Mem. 12-13). Section 213(2) requires "an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen — a of this article or article 2 of the uniform commercial code or article 36-B of the general business law" be commenced within six years. N.Y. C.P.L.R. § 213(2) (McKINNEY 2010). In support, the German Banks cite a litany of cases involving actions to recover on bonds, foreign and domestic, in which the New York six-year limitations period was applied to the detriment of bondholders. (See Defs.' Mem. 13).
SBE maintains the limitations period for bond claims under New York law is twenty years under section 211(a) and points the Court to the March 29, 2010 Order in Kupfer v. Germany, No. 07-Civ-08589-PAC [ECF No. 31] (S.D.N.Y. March 29, 2010). (See Pl.'s Mem. 12-13; see also id. Ex. 4 ("Kupfer Order") [ECF No. 43-4]). In Kupfer, a German bearer bonds case alleging breach of contract, the court denied Germany and the German Banks' motion to dismiss on the ground the limitations period was six years where the pro se plaintiff maintained the limitations period was twenty years under section 211(a). The court allowed the case to proceed to discovery "in light of the existence of other substantial questions of law and fact." (Kupfer Order 3). But as the German Banks correctly note, the Kupfer court did not determine section 211(a) applied as a matter of law. (See Defs.' Reply 6). In fact, the Kupfer court made no determination on the appropriate limitations period. (See Kupfer Order 3).
Section 211(a) provides an extended limitations period for a narrowly-defined category of bonds:
N.Y. C.P.L.R. § 211(a) (McKINNEY 2010). The German Banks address this provision in a footnote of their Memorandum, stating the law applies "only where a bond is secured by a pledge of the faith and credit of the issuer, which does not apply here as Plaintiff alleges that each Prussian Province was responsible for the debt of the bank located within its borders." (Defs.' Mem. 12 n. 11 (citing Compl. ¶ 50)). In support of their argument, the German Banks cite Vigilant Ins. Co. v. Hous. Auth. of City of El Paso, Tex., 87 N.Y.2d 36, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995), where the New York court held the limitations period was six years for bonds issued by the City of El Paso Housing Authority and backed by the "full faith and credit of the United States." Id., 637 N.Y.S.2d 342, 660 N.E.2d at 1124. (See Defs.' Mem. 12 n. 11; Reply 6-7).
Which limitations period is applicable — six years or twenty years — thus turns on whether the Bonds were "secured only by a pledge of the faith and credit of the issuer." N.Y. C.P.L.R. § 211(a) (McKINNEY 2010) (emphasis added). In each of the cases cited by the German Banks in support of the six-year limitations period, the bonds were secured by something more than good faith. See Schmidt v. Polish People's Republic, 742 F.2d 67, 68 (2d Cir.1984) (bondholder acquired interest in railway cars); Morris v. People's Republic of China, 478 F.Supp.2d 561, 564 (S.D.N.Y.2007) ("secured by revenues from the Salt Administration of China and central government taxes on four specified Chinese provinces"); Dar El-Bina Eng'g & Contracting Co., Ltd. v. Iraq, 79 F.Supp.2d 374, 389 (S.D.N.Y.2000) (Iraqi promissory notes secured by bank); Town of Brookhaven v. MIC Prop. & Cas. Ins. Corp., 245 A.D.2d 365, 668 N.Y.S.2d 37, 38 (1997) (municipal surety bonds).
In the instant case, SBE alleges the Bonds are the obligations of the Defendants, Germany — as legal successor to the German Reich and the former provinces (see Compl. ¶ 2), and the German Banks (see id. ¶ 49). SBE further alleges the German Banks were "owned in whole or in part by a German province and each province was legally responsible for all obligations of its banks." (Id. ¶ 50). SBE's Complaint does not describe a factual scenario similar to Vigilant Ins. Co. because the legal relationship between the German Banks and the former East German provinces does not parallel the relationship between the City of El Paso Housing Authority and the United States of America. The United States had no ownership interest in the City of El Paso Housing Authority.
But this determination does not fully resolve the issue as the question of when the twenty year limitations period began to run is yet unanswered. Interest payments on the bonds were periodically due on June 1 and December 1 of each year, commencing in the year of issue (1928) and continuing until maturity in 1958. (See Compl. ¶¶ 46, 48). However, the interest payments ceased in 1933 when the German government issued a moratorium. (See id. ¶ 53). The German Banks contend the limitations period for each interest payment commenced on the day after each interest payment was due, and for the bond redemption, the day after the bond matured on June 1, 1958. (See Defs.' Mem. 13-14). Under a twenty-year limitations period, the German Banks' position would be that no cause of action could lie after June 1, 1978.
However, SBE asserts the limitations period was tolled as non-assenting bondholders were required to wait to make their redemption claims until after the reunification of East and West Germany, which occurred on September 19, 1990.
September 19, 1990 as the commencement of the twenty-year limitations period, SBE's Complaint was filed in a timely manner on June 11, 2010, and the German Banks have not established the limitations period on SBE's breach of contract claim has expired.
The German Banks seek to dismiss Count III, SBE's FDUTPA claim, and assert SBE lacks standing because it has not alleged an actual injury (see Defs.' Mem. 13-14); its pleading is insufficient to state a claim for relief (see id. 14); the FDUTPA does not apply to banks (see id. 14-15); and the FDUTPA claim is simply a breach of contract claim (see id. 15-16). Because the issue of whether the FDUTPA applies to the German Banks is dispositive of the claim, it is the only argument addressed.
Florida law provides the FDUTPA does not apply to "[a]ny person or activity regulated under laws administered by ... [b]anks or savings and loan associations regulated by federal agencies...." FLA. STAT. 501.212(4)(c); see also Bankers Trust Co. v. Basciano, 960 So.2d 773, 778 (Fla. 5th DCA 2007) ("FDUTPA does not apply to banks and savings and loan associations regulated by the state or federal government."). SBE alleges the German Banks "are actively engaged in the marketing and/or sales of bonds and other securities in the United States and in Florida." (Compl.¶ 109). The Court takes judicial notice that foreign banks are subject to
The German Banks seek to dismiss SBE's claim of fraud, misrepresentation and fraudulent concealment (Count IV) because the claim is not pleaded with particularity under the heightened requirements of Federal Rule of Civil Procedure 9(b), nor does it meet the standard pleading requirements of Rule 8. (See Defs.' Mem. 16-18). SBE maintains the "complaint contains a detailed analysis of the basis upon which Plaintiff's [sic] allege that the Defendants committed and/or were involved in a fraud against Plaintiff and other bondholders." (Pl.'s Mem. 13).
"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." FED. R. CIV. P. 9(b).
Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir.2001) (quoting Brooks, 116 F.3d at 1371 (internal quotation omitted)). To conform to the heightened pleading standards of Rule 9(b) a complaint should allege "specifically when, where, by whom or specifically what the representation was," id., although courts have permitted alternative methods of satisfying the particularity requirement. See Durham v. Business Mgmt. Assocs., 847 F.2d 1505, 1512 (11th Cir.1988) (recognizing statements regarding fraud made with particularity in an affidavit).
SBE has failed to allege its fraud count with the specificity required by Rule 9(b) because the Complaint does not plead any details regarding the fraud-related allegations found in paragraphs 16 to 84, or 120 to 126. All of the allegations are pleaded generally. For example, SBE alleges the Defendant Banks "made knowingly false statements and/or misrepresentations of fact related to [the Bonds] by alleging that Plaintiff's predecessors did not make timely claims to validate or not being able to validate their bonds...." (Compl. ¶ 121). To be pleaded sufficiently under Rule 9(b), SBE is required to provide the time and date of the statements; identify who — specifically, the person writing or making the oral representation — made the statement; the content of the statement; how the statement was made; and what the Defendants obtained because of their fraud. Despite the length of SBE's Complaint, the fraud allegations do not meet the standard required by the Federal
Defendant, Dekabank Deutsche, Girozentrale ("DekaBank"), seeks to be dismissed from the Complaint because "the sole alleged basis of DekaBank's liability is that it is a successor to Defendant Deutsche Landesbankenzentrale AG which it cannot be as Defendant Deutsche Landesbankenzentrale AG is still in existence and is named as a defendant." (Defs.' Mem. 19 (emphasis added)). DekaBank also asserts the "allegation is merely a legal conclusion not entitled to the presumption of truth and is without any factual support." (Id.). In response, SBE maintains Dekabank's argument is inaccurate. (See Resp. ¶¶ 19-20).
DekaBank mischaracterizes SBE's allegations. In paragraph 8 of the Complaint SBE alleges DekaBank "is owned in part by Defendants LBBW, Helaba, HSH Nordbank, WEstLB and Nord/LB, as well as various public savings associations in both West and East Germany, also including successors to the original obligors." (Compl. ¶ 8). Unlike In re IndyMac Mortg.-Backed Secs. Litig., 718 F.Supp.2d 495, 507-09 (S.D.N.Y.2010), where the plaintiff only alleged a defendant was a successor-in-interest, and the complaint was "completely devoid of any factual allegations against the [defendant]," id., SBE makes factual allegations against DekaBank, as one of the German Banks, throughout its Complaint. Finally, while the Complaint may not be artfully pleaded, it is plausible and not necessarily contradictory — or even impossible in fact — that both a successor bank and its legal predecessor be named defendants in a complaint of this nature.
Based on the foregoing, it is
