Opinion

Iwanowa v. Ford Motor Co.

67 F. Supp. 2d 424
1999 WL 1040169

Court: District Court, D. New Jersey
Filed: Oct 28, 1999
Status: Published
Author: Greenaway
On the bench: Greenaway
Cited by: 160 cases
Authority: More cited than 92.9%

stating in reference to claim brought pursuant to Torture Victims Protection Act, enacted as a note to ATCA, that equitable tolling, may be appropriate where defendant has “actively misled” plaintiff, but, to avoid dismissal, a complaint asserting equitable tolling must contain “particularized allegations” that the defendant actively misled the plaintiff

How later courts described this case

stating in reference to claim brought pursuant to Torture Victims Protection Act, enacted as a note to ATCA, that equitable tolling, may be appropriate where defendant has “actively misled” plaintiff, but, to avoid dismissal, a complaint asserting equitable tolling must contain “particularized allegations” that the defendant actively misled the plaintiff
finding “[t]he specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task for this Court to tackle than the [court in Kelberine v. Societe Internationale, 363 F.2d 989 (D.C.Cir.1966) ] 11 could have ever contemplated.”
dismissing similar forced labor claims, noting that “[t]he specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task for [the New Jersey District Court] to tackle than the Kelberine Court could have ever contemplated”
rejecting the plaintiff’s argument that she was not asserting claims for reparations but rather for restitution for forced labor on grounds that both the German Supreme Court and the German Federal Government had held that forced labor claims are reparations claims

Written by the judges who cited it.

The opinion

AMENDED OPINION

GREENAWAY, District Judge.

INTRODUCTION

This matter comes before the Court on the motion of defendants Ford Motor Company (“Ford”) and its German subsidiary, Ford Werke A.G. (“Ford Werke”) (collectively “Defendants”), seeking to dismiss plaintiff Elsa Iwanowa’s (“Iwanowa” or “Plaintiff’) Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Before this Court ruled on the above-mentioned motion, Defendants filed a second motion to dismiss on the grounds of nonjusticiability and international comity. This Court shall consider each of Defendants’ motions.

This action arises out of Iwanowa’s allegations that Ford Werke coerced her, and thousands of other persons, to perform forced labor under inhuman conditions during World War II without compensa

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tion.

The Complaint asserts causes of action against Defendants (1) for restitution/unjust enrichment and quantum me-ruii/quasi-contract under Michigan and Delaware law

; (2) for restitution/unjust enrichment under German law; and (3) for violations of the law of nations. Iwanowa seeks disgorgement of all economic benefits which have accrued to Defendants as a result of her forced labor, compensation for the reasonable value of her services and damages for the inhuman conditions Ford Werke inflicted upon her.

For the reasons set forth below, Defendants’ motion to dismiss the claims under international law for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), is denied. Defendants’ motion to dismiss all of the claims, pursuant to Rule 12(b)(6), is granted. Defendants’ motion to dismiss on the grounds of nonjusticiability and international comity is also granted. Accordingly, the Complaint is dismissed in its entirety, with prejudice.

BACKGROUND

NAZI GERMANY

Ford established its German subsidiary, Ford Werke, in 1925. (Compl.f 6.) In 1931, Ford Werke moved its headquarters and manufacturing plant to Cologne, Ger-many.

(Id.)

Ford Werke’s Cologne plant produced passenger vehicles until 1938, when it began manufacturing tracked vehicles for the German government to be used to transport troops and military equipment during World War II. (Comply 11.) By 1941, Ford Werke had ceased production of passenger vehicles and had begun to devote its entire production capacity to the manufacture of military trucks.

(Id.)

The Complaint alleges that Ford Werke produced approximately sixty percent (60%) of the three-ton tracked vehicles the German army used during World War II.

(Id.)

By December, 1941, the German National Socialist Party (the “Nazis”)

had achieved domination over territories, in Europe and elsewhere, with an aggregate population of 350,000,000 people. (Compl.f 8.) The Nazi juggernaut required more labor than the voluntary labor the German people could provide.

(Id.)

In order to support its war effort, the Nazi regime turned to unpaid, forced labor.

(Id.)

Specifically, the Nazis used forced labor from the captive population, inmates of concentration camps and prisoners of war.

(Id.)

On March 21, 1942, the Nazi Party appointed Fritz Sauckel (“Sauckel”) as Nazi Plenipotentiary General for the Allocation of Labor, with explicit authority over all available manpower, including workers recruited from abroad and prisoners of war.

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(Comply 9.) After Sauckel’s appointment, the Nazi regime obtained forced laborers by conducting manhunts in the streets, movie houses and churches.

(Id.)

The Nazi regime forcibly deported over 7,500,-000 persons from occupied territories to Germany to support its war effort.

(Id.)

Sauckel encouraged German industries to bid for forced laborers in order to meet production quotas and to increase their profits.

(Id.

f 10.) The Complaint alleges that Ford Werke began utilizing French prisoners of war as forced laborers in 1941 and continued utilizing thousands of forced laborers throughout World War II.

(Id.)

The Complaint further alleges that by 1942, unpaid, forced laborers comprised twenty-five percent (25%) of Ford Werke’s work force.

(Id.)

By 1943, that percentage had risen to fifty percent (50%), where it remained until the end of the war.

(Id.)

The forced laborers at Ford Werke’s Cologne plant included French prisoners of war; Russian, Ukrainian, Italian and Belgian civilians; and concentration camp inmates from Buchenwald.

(Id.)

The Complaint alleges that Ford Werke profited from the use of forced laborers because, although it paid the Nazi government

for

its use of the prisoners, it did not compensate the laborers for their work. (Comply 12.) Consequently, Ford Werke’s annual profits doubled between 1939 and 1943.

(Id.)

The Complaint further alleges that Ford Werke placed its wartime profits in a growing reserve account or reinvested them in the company through the building of additional production capacity.

(Id.)

In the years succeeding the war, as a result of its economic reserves and increased production capacity, Ford Werke continued producing trucks at a substantial profit, even though most of Europe, and specifically the German economy, was devastated.

(Id.

¶ 14.) Iwanowa alleges that Ford Werke’s internal reserves and large production capacity resulted from the work of unpaid, forced laborers.

(Id.)

In addition to bringing suit against Ford Werke, Iwanowa has also named Ford, Ford Werke’s parent company, as a defendant. Ford is a party based on its ownership of between fifty-two percent (52%) to seventy-five percent (75%) of Ford Werke’s outstanding shares during World War II.

(Id.

¶ 15.) Although the Nazi party nationalized or confiscated many American companies in Germany, the Nazis did not confiscate Ford Werke as enemy property; instead, the Nazis allowed Ford to continue its controlling ownership of Ford Werke.

(Id.

¶¶ 16-17.) Indeed, the Nazis named Robert H. Schmidt (“Schmidt”), Ford Werke’s CEO,

Wehr-wirtschaftsfuehrer,

meaning Military Economic Leader.

(Id.

¶ 17.) In addition to his duties as Military Economic Leader, Schmidt continued to manage Ford Werke on Ford’s behalf until the end of the War. (Id.)

IWANOWA

Plaintiff Iwanowa was born in 1925, in Rostov, Russia. Starting in November, 1941, the Nazi army occupied Rostov. (Compl-¶ 24.) In June, 1942, the Nazi army began abducting adolescents as young as fourteen (14) years of age for transportation to Germany as forced laborers.

(Id.)

On October 6, 1942, Nazi troops abducted Iwanowa and transported her to Germany with approximately 2,000 other adolescents.

(Id.

f 25.) When Iwanowa arrived in Wuppertal, Germany, a representative of Ford Werke purchased her, along with thirty-eight (38) other adolescents from Rostov.

(Id.)

Ford Werke’s representative had Iwanowa, and the other adolescents, transported to Ford Werke’s plant in Cologne.

(Id.)

Once in Cologne, Ford Werke placed Iwanowa with approximately sixty-five Ukrainian deportees in a

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wooden hut, without heat, running water or sewage facilities.

(Id.)

They slept in three-tiered bunks without bedding and were locked in at night.

(Id.)

From 1942-1945, Ford Werke required Iwanowa to perform heavy labor at its Cologne plant.

(Id.

¶ 26.) Iwanowa’s assignment consisted of drilling holes into the motor blocks of engines for military trucks.

(Id.)

Ford Werke security officials supervised the forced laborers, at times using rubber truncheons to beat those who failed to meet production quotas.

(Id.)

Iwanowa continued to perform forced labor for Ford Werke until 1945, when the victorious Allied Powers

liberated her, and thousands of other slave laborers, in 1945. After the War, she became a citizen of Belgium, where she presently resides. Ford Werke’s forced laborers, including Iwanowa, have never received compensation for their years of forced labor.

(Id.

¶ 27.)

On March 8, 1998, Iwanowa filed the instant suit on her own behalf and on behalf of a class of thousands of persons who were compelled to perform forced labor for Ford Werke between 1941-1945. Iwanowa seeks compensation for the reasonable value of her services, restitution of unjust enrichment flowing to Defendants, as a consequence of her labor, and damages for the pain and suffering that Defendants’ imposition of inhuman working conditions caused her.

Defendants moved to dismiss on the grounds that (1) this Court lacks subject matter jurisdiction over the claims under the law of nations; (2) all of the claims are barred by the applicable statute of limitations; (3) the Complaint fails to state a cognizable cause of action; (4) the claims are nonjusticiable; and (5) consideration of the instant claims would violate principles of international comity. This Court heard oral argument on Defendants’ motions on March 8,1999 and August 5,1999.

DISCUSSION

OVERVIEW OF GERMAN JUDICIAL SYSTEM

In their submissions, the parties refer this Court to German cases and statutes; thus, a brief overview of the current German judicial system is essential. Foreign law questions are considered questions of law in the federal courts, and may be resolved by reference to any relevant information. Fed.R.Civ.P. 44.1;

see also Si-dali v. Immigration and Naturalization Serv.,

107 F.3d 191 , 197 (3d Cir.1997) (stating that “[t]he determination of foreign law in the federal courts is a question of law.”).

The German court system creates a dichotomy between ordinary courts and special courts.

See I Business Transactions in Germany

§ 4.04[2] (Campbell et al. eds., 1998)

[“I Business Transactions

”]. Ordinary courts handle all civil and criminal cases not otherwise assigned by law to one of the six special courts: labor courts, administrative courts, social welfare courts, tax courts, constitutional courts and the Federal Patent Court.

Id.

Since its unification in 1991, Germany consists of sixteen states: eleven from the former Federal Republic of Germany (“F.R.G.” or “West Germany”), and five from the former German Democratic Republic (“G.D.R.” or “East Germany”).

See Germany: Lato Digest of the Federal Republic of Germany, in MaHindale-Hub-bell International Law Digest

GER-1, GER-1

[“Germany: Law Digest

”]. There are ordinary courts and special courts at both the federal and state level. So far as here material, German law is

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federal law and, thus, is identical in each of the States.

See I Business Transactions, supra

§ 4.04[2][a]; Benjamin Kaplan et al.,

Phases of German Civil Procedure,

71 Harv.L.Rev. 1193, 1195-96 (1958). Further, although state court judges are appointed and paid by the state where the court sits, the state courts’ jurisdiction and procedure is established by federal law.

See

Kaplan,

supra,

at 1195. Consequently, although the first level of review is always before a state court, unlike the United States, there are no parallel federal and state courts in Germany.

See id.; see also Germany: Law Digest, supra,

at GER-10.

As in most civil law jurisdictions, Ger-many does not follow the rule of

stare decisis. See Randi Seltzer, The Erroneous Interpretation of the Foreign Compulsion Defense in the ADEAc Mahoney v. RFE/RL, Inc.,

23 Brook. J. Int’l L. 655, 682 (1997) (stating that German courts do no more than apply the law when they make a decision, thus, “the decision itself can have no force as law beyond the very case in which it is rendered.”) (citing Norbert Horn et al.,

German Private and Commercial Law: An Introduction

11 (Tony Weir, trans., 1982)); Edward J. Eberle,

Human Dignity, Privacy, and Personality in German and American Constitutional Law,

1997 Utah L.Rev. 963, 970 n. 22 (citing Donald P. Kommers,

The Constitutional Jurisprudence of the Federal Republic of Germany

48 (1989));

see also

(I Tr. at 17:22-25.)

(stating that “German courts don’t abide by stare decisis. There’s no principle of

stare decisis

under German law. They [German courts], respectfully, look at past cases, but each case is supposed to do on its own from the civil code.”).

In practice, however, German courts strive to adhere to precedent and generally follow the holdings of the German Supreme Court, the highest court for civil and criminal matters.

See

Eberle,

supra,

at 970 n. 22;

see also

David S. Clark,

The Selection and Accountability of Judges in West Germany: Implementation of a Rechtstaat,

61 S.Cal.L.Rev. 1795, 1847 (1988) (stating that “judge made law in Germany occupies large areas in the corpus of legal rules. In some ways German judges are just as bold and innovative as their common law colleagues.”);

Interpreting Statutes: A Comparative Study

90, 97 (D. Neil MacCormick & Robert S. Summers eds., 1991) (stating that although precedents are not a formal source of German law, they play an important role in justifying judicial decisions, and the party wishing to depart from precedent carries the burden of argument). Moreover, decisions of the Federal Constitutional Court represent binding interpretations of the German constitution, the

Grundgesetz. See

Eberle,

supra,

at 970 n. 22.

Ordinary Courts

The lowest ordinary courts are the

Amtsgerichte,

the Municipal Courts (also known as Local Courts).

See Germany: Law Digest, supra,

at GER-10. Municipal Courts have jurisdiction over cases where the amount in controversy does not exceed 10,000 deustchmark (“DM”), approximately $5,412.00 American dollars.

Id.

They also have exclusive jurisdiction over landlord-tenant disputes, family law, divorces, bankruptcy and nonlitigation proceedings such as probate and guardianship.

See I Business Transactions, supra

§ 4.04[2][a][I]. There is one Municipal Court per city or county and cases are

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heard by a single judge.

See Germany: Law Digest, supra,

at GER-10. Parties litigating in a Municipal Court may proceed

pro se. See

Astrid Stadler,

The Law of Civil Procedure, in Introduction to German Law

357, 358 (Werner F. Ebke & Matthew W. Finkin, eds., 1996).

Parties may appeal decisions of the Municipal Courts to the

Landgerichte

(“LG”), the state District Courts (also known as Regional Courts).

See Germany: Law Digest, supra,

at GER-10. The District Courts’ venue covers several Municipal Courts.

See id.

District Courts possess both appellate and original jurisdiction.

See id.; I Business Transactions, supra

§ 4.04[2][a][ii]. In addition to reviewing the judgments of the Municipal Courts for findings of fact and conclusions of law, the District Courts are also courts of first resort in matters where the amount in controversy exceeds DM 10,000, and in cases not specifically assigned to the Municipal Courts or special courts.

See Germany: Law Digest, supra,

at GER-10; I

Business Transactions, supra

§ 4.04[2][a][ii]. Specific District Court panels

hear appeals from the Municipal Courts, while other panels handle cases in which the District Courts have original jurisdiction.

See I Business Transactions, supra

§ 4.04[2][a][ii]. Decisions of the District Courts rendered as appellate decisions reviewing the Municipal Courts’ judgments are final; no further appeal to another court exists.

See id.; Germany: Law Digest, supra,

at GER-11; Stadler,

supra,

at 371. Although three judges sit on each District Court panel, a single judge hears each case, unless the case is unusually complex, or is of fundamental importance.

See Germany: Law Digest, supra,

at GER-10;

I Business Transactions, supra

§ 4.04[2][a][ii], Parties appearing before the District Court must be represented by counsel.

See Germany: Law Digest, supra,

at GER-11; Stadler,

supra,

at 358.

Insofar as a District Court acted as a court of first resort, appeals for reasons of fact and/or law are heard by the

Oberlan-desgerichte

(“OLG”), the Courts of Appeals (also known as Higher Regional Courts).

See Germany: Law Digest, supra,

at GER-11;

I Business Transactions, supra

§ 4.04[2][a][iii]; Stadler,

supra,

at 371. Like the Municipal and District Courts, the Courts of Appeals are also state courts. Three judge panels called Senates hear civil appeals and five judge panels hear criminal appeals.

See I Business Transactions, supra

§ 4.04[2][a][iii]. There are up to three Courts of Appeals in each state.

See id.

The highest ordinary court is the

Bun-desgerichtshof

(“BGH”), the Supreme Court (also known as the Federal Court of Justice). This is the highest court for criminal and civil cases. The Supreme Court reviews the decisions of the Courts of Appeals on points of law only.

See Germany: Law Digest, supra,

at GER-11. The Supreme Court’s function,

inter alia,

is to ensure the uniform interpretation of the law. The Supreme Court hears cases only where (1) the sum involved exceeds DM 60,000 (approximately $32,471.00 U.S. dollars)

; (2) a Court of Appeals has granted leave to appeal because the case is of fundamental legal importance; or (3) a Court of Appeals wishes to depart from an existing ruling of the Supreme Court.

See

Stadler,

supra,

at 372. The Senates of the civil section of the Supreme Court are comprised of five judges.

See I Business Transactions, supra

§ 4.04[2][a][iv]. In order to assure uniformity of judicial decisions, however, the civil section and the criminal section each have nine judge panels, known as Great Senates, which rule on cases in which one Senate intends to de

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part from the rulings of another Senate.

See id.

Special Courts

As stated

supra,

there are six special courts in Germany: (1) labor courts; (2) administrative courts; (3) social welfare courts; (4) tax courts; (5) constitutional courts; and (6) the Federal Patent Court.

See I Business Transactions, supra

§ 4.04[2]. Labor courts have jurisdiction over disputes between employers and employees, collective bargaining agreements and the regulation of trade unions.

See Germany: Law Digest, supra,

at GER-11;

I Business Transactions, supra

§ 4.04[2][e][I], Administrative courts have jurisdiction over matters involving zoning, immigration, state licenses, health, sanitation, transportation, regulation of the professions and the civil service.

See Germany: Law Digest, supra

at GER-11;

I Business Transactions, supra

§ 4.04[2][b]. Administrative courts also preside over claims against public authorities (federal, state or local) for violations of individual rights.

See I Business Transactions, supra

§ 4.04[2][b]. Social welfare courts hear cases involving social security, public mandatory health insurance and aid for the unemployed or disabled.

See Germany: Law Digest, supra,

at GER-11;

I Business Transactions, supra

§ 4.04[2][e][iii]. The structure of the labor, administrative and social welfare courts contains three levels of review. The respective special District Courts and Courts of Appeals represent the first two levels of review. The respective Federal Court (e.g., the Federal Labor Court, the Federal Administrative Court or the Federal Social Welfare Court) entertains the final appeal.

See I Business Transactions, supra

§§ 4.04[2][b], [c].

Tax courts have jurisdiction over tax matters, including custom duties and taxes on international and foreign trade.

See Germany: Law Digest, supra,

at GER-11. Constitutional courts preside over all constitutional matters. The tax courts and constitutional courts have only two levels of review. Only one tax court and one constitutional court exist in each state. The next and final level of review is at the federal level by the Federal Tax Court or the Federal Constitutional Court.

See Germany: Law Digest, supra,

at GER-11. The Federal Constitutional Court (the “

Bundesverfassungsgericht ”

or “BVerfG”) reviews the law and decisions of other courts, including other Federal Courts, when challenged on constitutional grounds.

See I Business Transactions, supra

§ 4.04[3][d];

Germany: Law Digest, supra,

at GER-11.

As stated in

supra

note 9, state courts lack jurisdiction over patent or trademark matters. Instead, parties may appeal decisions of the Federal Patent Office directly to the Federal Patent Court. Appeals from decisions of the Federal Patent Court are heard by the Supreme Court on points of law only.

See I Business Transactions, supra

§ 4.04[2][c][ii].

II.

CLAIMS UNDER THE LAW OF NATIONS

Iwanowa asserts that “[b]y knowingly utilizing unpaid, forced labor under inhuman conditions, [Defendants] violated the law of nations, including the Hague Convention and the Geneva Convention.” (Compl.f40.) Defendants have moved to dismiss Iwanowa’s claims under the law of nations based on (1) lack of subject matter jurisdiction; (2) failure to state a claim; and (3) expiration of the applicable limitations period.

Motion to dismiss for lack of Subject Matter Jurisdiction

Standard for Dismissal

Pursuant to Federal Rule of Civil Procedure 12(h)(3), “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.” Thus, a motion to dismiss for lack of subject matter jurisdiction may be made

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at any time.

See id.; Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884, 891 (3d Cir.1977).

A defendant may attack a district court’s subject matter jurisdiction in one of two ways.

See Mortensen,

549 F.2d at 891 . First, a defendant may challenge subject matter jurisdiction by asserting that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction.

See id.; see also Cardio-Medical Assocs. Ltd. v. Crozer-Chester Med. Ctr.,

721 F.2d 68 , 75 (3d Cir.1983). In assessing a Rule 12(b)(1) motion based on the pleadings, the court “must assume that the allegations contained in the complaint are true.”

Cardio-Medical,

721 F.2d at 75;

Mortensen,

549 F.2d at 891 ;

see also

Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, art. 7 ¶ 1(c), (d).

Second, courts have repeatedly held that “deportation to slave labor” violates the law of nations.

See Handel,

601 F.Supp. at 1426 n. 2;

Kadic,

70 F.3d at 239 (holding that conduct related to slave trade violates the law of nations);

Princz,

26 F.3d at 1180 (acknowledging that forced labor of civilians during World War II violated international law);

Siderman de

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Blake,

965 F.2d at 715 (finding that “[t]he universal and fundamental rights of human beings identified by Nuremberg—rights against genocide, enslavement, and other inhumane acts ... are the direct ancestors of the universal and fundamental norms recognized as

jus cogens.”); Tel-Oren,

726 F.2d at 781 (Edwards, J., concurring) (reiterating that genocide and slavery are “heinous actions—each of which violates definable, universal and obligatory norms”); LG [District Court] Bremen, 1 O 2889/90, at 7 (1998) (F.R.G.) [“LG Bremen (1998)”]

(‘Among these prevailing rules of international law is the law that prisoners of war and civilians in occupied territories may not be murdered or enslaved.”);

Krakauer v. Federal Republic of Germany,

LG [District Court] Bonn, 1 O 134/92, at 21 (1997) (F.R.G.)

[“Krakauer I,

LG Bonn (1997)”] (same),

rev’d on other grounds,

OLG [Court of Appeals] Cologne

[“Krakauer II,

OLG Cologne (1998)”], 7 U 222/97 (1998) (F.R.G.). Thus, the case law and statements of the Nuremberg Tribunals unequivocally establish that forced labor violates customary international law.

Defendants assert that even if forced labor violates the law of nations, Iwanowa has failed to establish subject matter jurisdiction under the ATCA because (1) no private right of action exists for violations of the law of nations and (2) the ATCA only applies to state actors. The Court shall address each of these arguments separately.

b. Private Right of Action for Violations of the Law of Nations

Defendants argue that the law of nations mimics treaties in that neither is self-executing and thus, neither is enforceable by private parties absent legislation. Defendants contend that the ATCA merely provides district courts with jurisdiction to address an alien’s claims under the law of nations in limited instances; namely, those in which Congress has enacted specific legislation authorizing a private right of action for such violations.

The majority of courts addressing claims under the law of nations have rejected Defendants’ narrow interpretation of the ATCA. Instead, those courts have concluded that the ATCA provides both subject matter jurisdiction and a cause of action for claims alleging violations of customary international law.

See Jama,

22 F.Supp.2d at 362-63;

Abebe-Jira v. Negewo,

72 F.3d 844, 848 (11th Cir.1996) (“we read the [ATCA] as requiring no more than an allegation of a violation of the law of nations in order to invoke section

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1350.”);

Kadic,

70 F.3d at 236 (concluding that the ATCA “appears to provide a remedy for the appellants’ allegations of violations related to genocide, war crimes and official torture”);

In re Estate of Ferdinand Marcos, Human Rights Litig., 25

F.3d 1467, 1475 (9th Cir.1994) ((iWe thus join the Second Circuit in concluding that the [ATCA], 28 U.S.C. § 1350 , creates a cause of action for violations of specific, universal and obligatory international human rights standards,” and “nothing more than a violation of the law of nations is required to invoke section 1350.”);

Xuncax v. Gramajo,

886 F.Supp. 162, 179 (D.Mass. 1995) (“ § 1350 yields both a jurisdictional grant and a private right to sue for tor-tious violations of international law ... without recourse to other law as a source of the cause of action.”);

Paul v. Avril,

812 F.Supp. 207, 212 (S.D.Fla.1993) (“The plain language of the [ATCA] and the use of the words ‘committed in violation’ strongly implies that a well pled tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause of action].”);

But see Tel-Oren,

726 F.2d at 810-20 (Bork, J., concurring).

The only case in this Circuit addressing the issue,

Jama,

followed this line of cases in holding that the ATCA provides both subject matter jurisdiction and a cause of action for violations of the law of nations.

See Jama,

22 F.Supp.2d at 363. The

Jama

Court noted that, after the Second Circuit’s decision in

Filartiga v. Peña-Irala,

630 F.2d 876 (2d Cir.1980)

; Congress could have amended the ATCA when it enacted the Torture Victim Protection Act of 1991 (“TVPA”)

to reflect its dis

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agreement with the courts’ interpretation of the ATCA.

See Jama,

22 F.Supp.2d at 363. Indeed, the TVPA is codified as a statutory note to the ATCA.

See supra

note 22. Congress, however, did not address whether the ATCA provides a private cause of action for violations of international law although it enacted the TVPA to codify the cause of action (torture) recognized in

Filartiga

under the ATCA.

See Kadic,

70 F.3d at 241.

The Eleventh Circuit, persuaded by both Congress’ silent endorsement of

Fi-lartiga

and subsequent interpretations of the ATCA, also found that the ATCA provides a private right of action.

See Abebe-Jira,

72 F.3d at 848 . The

Abebe-Jira

Court noted that the legislative history indicated that Congress was aware that

[t]he TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 [the ATCA], which permits Federal district courts to hear claims by aliens for torts committed in violation of the law of nations.

Abebe-Jira,

72 F.3d at 848 (quoting H.R.Rep. No. 367, 102d Cong., 2d Sess. 3,

reprinted in

1992 U.S.C.C.A.N. 84, 86). Based on this statement, the

Abebe-Jira

Court concluded that Congress recognized that courts viewed the ATCA as conferring both a forum and a private right of action to aliens alleging violations of international law. 72 F.3d at 848 .

This Court concludes that if Congress had disagreed with the courts’ finding of a private right of action under the ATCA, Congress could have, and likely would have, amended the ATCA to reflect its intent. Further, the “ ‘committed in violation’ language of the [ATCA] suggests that Congress did not intend to require an alien plaintiff to invoke a separate enabling statute as a precondition to relief under the [ATCA].”

Abebe-Jira,

72 F.3d at 847 ;

see also

Paris Reparations Treaty, Part I, Art. 1. The signatory nations agreed that Germany would pay reparations in the form of industrial and capital equipment, merchants ships, German external assets and monetary gold.

See

Paris Reparations Treaty, Part I, Art. 1.A, Part III. Further, the Western Powers agreed to dismantle and transfer Germany’s industrial plants located in their respective zones, along with any other German assets, to the Inter-Allied Reparation Agency

by the end of 1947, for redistribution as war reparations.

See IARA 1946 Report,

at 8.

Pursuant to the Paris Reparations Treaty, each signatory nation’s share of reparations was supposed to satisfy any and all claims held by a nation, or its nationals, against the German government or German companies. Specifically, the Paris Reparations Treaty provided that:

The Signatory Governments agree among themselves that their respective shares of reparation, as determined by the present Agreement,

shall be regarded by each of them as covering all its claims and those of its nationals against the former German Government and its Agencies, of a governmental or private nature arising out of the war....

Paris Reparations Treaty, Part I, Art. 2.A (“Article 2.A” or “Art. 2.A”) (emphasis added). In sum, the Paris Reparations Treaty authorized the Western Powers to seize Germany’s assets for distribution to the signatory nations in accordance with the Treaty, thereby satisfying any claims the signatory nations, or their nationals, might have against the German government or its “Agencies”.

The German Supreme Court has held that the term “Agencies” encompasses private corporations using forced laborers, such as Defendants.

See

BGH (1973), at 9;

Stancher,

BGH (1963), at 5. Thus, the parties agree that Article 2.A of the Paris Reparations Treaty subsumed the claims of the signatory nations, and their nationals, thereby precluding nationals of the signatory nations from bringing forced labor claims against the German government or German companies.

(See

II Tr. at 5:13-18.)

As stated by Professor Neu-borne at oral argument,

it would have been illogical to allow “private litigation against corporations all of whose assets were being seized, dismantled and taken and literally distributed to the people on whose behalf the litigation would have been brought.” (II Tr. at 10:3-8.)

However, the Paris Reparations Treaty did not subsume all individual claims.

*450

The War had produced a class of persons categorized as “nonrepatriable victims of German action” who had no national government to protect their interests. Consequently, the reparations scheme set forth in the Paris Reparations Treaty could not satisfy their claims. In order to assist nonrepatriable victims, the signatories inserted a provision in the Paris Reparations Treaty establishing a fund to assist nonrepatriable persons. Article 8 titled

Allocation of a Reparation Share to Nonrepatriable Victims of German Action

provides in relevant part:

In recognition of the fact that large numbers of persons have suffered heavily at the hands of the Nazis and now stand in dire need of aid to promote their rehabilitation but will be unable to claim the assistance of any Government receiving reparation from Germany, the Governments of the United States, France, the United Kingdom, Czechoslovakia and Yugoslavia, in consultation with the Inter-Governmental Committee on Refugees, shall as soon as possible work out in common agreement a plan on the following general lines:

A. A share of reparation consisting of all the non-monetary gold found by the Allied Armed Forces in Germany and in addition a sum not exceeding 25 million dollars shall be allocated for the rehabilitation and resettlement of nonrepatria-ble victims of German action.

* * * * * *

D. The persons eligible for aid under the plan in question shall be restricted to true victims of Nazi persecution and to their immediate families and dependents, in the following classes:

% ¡¡t %

* *

(iii) Nationals of countries formerly occupied by the Germans who cannot be repatriated or are not in a position to be repatriated within a reasonable time....

Part I, Art. 8 (“Article 8” or “Art. 8”). This fund, however, would not be used to satisfy nonrepatriable victims’ individual claims. Section H provides that “[t]he fund shall be used, not for the compensation of individual victims, but to further the rehabilitation or resettlement of persons in the eligible classes.” Paris Reparations Treaty, Part I, Art. 8, § H. Furthermore, Article 8 preserved the right of nonrepatriable victims to press claims against a future German government. Specifically, section I provides that “[n]othing in this Article shall be considered to prejudice the claims which individual refugees may have against a future German Government, except to the amount of the benefits that such refugees may have received from the sources referred to ... above.” Paris Reparations Treaty, Part I, Art. 8, § I.

Although Article 8 applies only to stateless refugees asserting war related claims against the government, Iwanowa asserts that Article 8, § I is evidence that the Paris Reparations Treaty contemplated that individuals like herself could, and would, assert such claims at a later date. This Court disagrees with Plaintiffs assertion.

As shown in Part II.B.3.a,

infra,

when the terms of a treaty are unambiguous, courts must interpret the treaty’s terms according to their ordinary plain meaning.

See Santovincenzo v. Egan,

284 U.S. 30, 40 , 52 S.Ct. 81 , 76 L.Ed. 151 (1931) (holding that court must construe terms of a treaty “in their ordinary meaning”);

United States v. M.H. Pulaski Co.,

243 U.S. 97, 106 , 37 S.Ct. 346 , 61 L.Ed. 617 (1917) (stating that there “is a strong presumption that the literal meaning [of a treaty] is the true one”);

Brink’s Ltd. v. South African Airways,

93 F.3d 1022, 1027 (2d Cir. 1996) (stating that interpretation of a treaty must begin “with the literal language” and where the language is “ ‘reasonably susceptible of only one interpretation, [the court’s] task of interpretation ends there.”);

Victoria Sales Corp. v. Emery Air Freight, Inc.,

917 F.2d 705, 707 (2d Cir.1990) (stating that when the text is unambiguous, “a court shall not, through

*451

interpretation, alter or amend the treaty.”).

Article 8’s plain language indicates that the Paris Reparations Treaty contemplated that nonrepatriable victims of German action could bring individual claims against the German government in the future. There is no evidence, however, that the signatories to the Paris Reparations Treaty envisioned that persons other than nonrepatriable victims could press individual claims against the German government or its agencies. Since Iwanowa has never alleged that she is a nonrepatriable victim of German action, within the meaning of Article 8, this Court finds that only Article 2.A, precluding individual claims, is relevant to this action.

Halt of Reparations

Tensions between the Western Powers and the U.S.S.R. developed over the issue of reparations. The Soviets felt that they were entitled to seize as much of Germa-ny’s industrial equipment as possible as compensation for the Nazis’ destruction and ravaging of the U.S.S.R. Accordingly, they dismantled and shipped entire factories, motor vehicles and railroad rails from the Soviet Zone to the U.S.S.R.

See

Turner,

supra,

at 13. In addition, they seized a portion of the current production of German factories in the Soviet Zone and shipped it to the U.S.S.R.

See id.

These actions were unacceptable to the Western Powers. First, because the Soviets never shipped food and raw materials to the Western Zones, as agreed in Potsdam, those Zones (which did not produce enough food to feed their population) had to export industrial products to pay for the cost of importing food.

Id.

at 14. Second, the reduction in Germany’s industrial productivity as a result of reparations to the Soviets shifted the cost of feeding the Germans to the Western Powers.

Id.

at 13-14. The Western Powers feared that the extraction of reparations would destroy Germany’s economy, and that they, specifically the U.S., would have had to bear responsibility for providing relief to the Germans.

See

John L. Gaddis,

The United States and the Origins of the Cold War

at 221-22 (1972).

Pursuant to the Potsdam Conference and the Paris Reparations Treaty, the Western Powers were supposed to complete the removal of industrial equipment from their respective Zones by the end of 1947 so that the Inter-Allied Reparation Agency could complete distribution of reparations by June, 1948.

See Resolution by the Inter-Allied Reparation Agency, in II Foreign Relations,

734, 734 (1948). However, taxpayers in the U.S., the U.K. and France began pressuring their governments to reduce costly shipments of food to the Germans in the Western Zones.

Id.

Consequently, in May, 1946, the U.S. halted the dismantling of German industries in its Zone and halted reparation shipments to the Soviet Zone.

See

Turner,

supra,

at 14. Shortly thereafter, the U.K. and France did the same.

See id.

Further, by mid-1947, the Western Powers had suspended the allocation to the Inter-Allied Reparation Agency of all but 250 of the more than 1,600 plants they had estimated would be available for distribution to the Allies.

See

Inter-Allied Reparation Agency,

Report of the Secretary General for the Year 194-8 CIARA 1948 Report”),

at 5. Although the Western Powers later provided the Inter-Allied Reparation Agency with a list of 858 plants that would be available as reparations, by July, 1948, the Western Powers had allocated only 147 of those plants.

Id.

at 5-7;

see generally

Recommendation Concerning the Retention in Germany or Removal as Reparations of the German Industrial Plants Listed by the Humphrey Committee, Mar, 31, 1949, U.S.-Fr.-U.K., 63 Stat. 2901 , T.I.A.S. 2142 (agreeing to dismantle less than ten (10) of the 167 plants reviewed on the ground that the rest of the plants would contribute more to Europe’s economic recovery if they remained in the Western Zones). Furthermore, the plants that the Western Zones allocated to the Inter-Allied Reparation Agency “con

*452

tained a disproportionate amount of machines and equipment of markedly inferior quality or condition.”

LARA 1948 Report.

at 7. Consequently, the Allies never received their respective share of reparations, as negotiated in the Paris Reparations Treaty.

d. Transition Agreement

The German Reich’s military and political collapse in 1945 resulted in state bankruptcy such that the amount of debt precluded complete satisfaction of all liabilities.

See

BVerfG [Federal Constitutional Court], NJW 1996, 2717, at 3 (F.R.G.) [“BVerfG (1996)”]. By 1952, the F.R.G. had not paid its war debts, including the reparations set forth in the Paris Reparations Treaty. Furthermore, as stated above, the Western Powers feared that the payment of reparations would continue to hinder the F.R.G.’s ability to rebuild its economy.

See

Gaddis,

supra,

at 221-22. Consequently, on May 26, 1952, the Western Powers and the F.R.G. entered into the Transition Agreement, whereby the Western Powers agreed to defer payment of their share of reparations until a later date. Specifically, the Transition Agreement provides that:

The problem of reparation shall be settled by the peace treaty between Germa-ny and its former enemies or by earlier agreements concerning this matter. The Three Powers undertake that they will at no time assert any claim for reparation against the current production of the Federal Republic [of Germa-ny].

Ch. 6, Art. 1. Further, in addition to deferring payment of reparations, by agreeing to never seek reparations from the F.R.G.’s current production, the Western Powers gave the F.R.G. the encouragement and freedom it needed to rebuild its industries and stabilize its economy.

e. London Debt Agreement

Many of the signatories to the Paris Reparations Treaty agreed with the Western Powers’ philosophy, as evidenced by the Transition Agreement—that allowing West Germany to rebuild its economy was more important than collecting their respective shares of reparations.

See

LG Bremen, at 8 (stating that the signatories to the London Debt Agreement viewed “the rebuilding and economic consolidation of the [F.R.G. as] urgent—in comparison to compensation and reparations payments.”). Thus, on February 27, 1953, Belgium, Canada, Ceylon, Denmark, France, Greece, Iran, Ireland, Italy, Liechtenstein, Luxembourg, Norway, Pakistan, Spain, Sweden, Switzerland, South Africa, the U.K., the U.S. and Yugoslavia, on the one hand, and the F.R.G., on the other, entered into the London Debt Agreement.

The Preamble to the London Debt Agreement clearly states its intent. It provides in relevant part:

Desiring to remove obstacles to normal economic relations between the [F.R.G.] and other countries and thereby to make a contribution to the devel-. opment of a prosperous community of nations;

Considering that, for about twenty years, payments on German external debts have not, in general, conformed to the contractual terms; that from 1939 to 1945 the existence of a state of war prevented any payments from being made with respect to many of such debts; that since 1945 such payments have been generally suspended; and that the [F.R.G.] desires to put an end to this situation;

Considering that [France, the U.K. and the U.S.] have, since 8th May, 1945, furnished to Germany economic assistance which has substantially contributed to the rebuilding of the German economy, with the effect of facilitating a resumption of payments on the German external debts;

% %

Considering that the Governments of [France, the U.K. and the U.S.] set up

*453

... the Tripartite Commission on German Debts for the purpose of preparing and for working out, with the Government of the [F.R.G.], with other interested Governments and with representatives of creditor and debtor interests, a plan for the orderly overall settlement of German external debts;

Considering that [the Tripartite] Commission informed the representatives of the Government of the [F.R.G.] that the Governments of [France, the U.K. and the U.S.] were prepared to make important economic concessions with respect to the priority of their claims for post-war economic assistance over all other foreign claims against Germany and German nationals and with respect to the total amount of these claims, on condition that a satisfactory and equitable settlement of Germany’s pre-war externals debts was achieved;

Considering that such a settlement of German external debts could be achieved only by a single overall plan which would take into account the relative positions of the various creditor interests, the nature of various categories of claims and the general situation of the [F.R.G.].

London Debt Agreement, Preamble. As stated by the Preamble, the London Debt Agreement’s main purpose was to enable the F.R.G. to establish normal economic relations with other nations and to settle its external debts.

See id.; see also

OVG [Administrative Court of Appeals] Müenster, NJW 1998, 2302, at 8 (F.R.G.) [“OVG Muenster (1998)”]. In order to allow the F.R.G. to settle its external debts, the London Debt Agreement established a list of the debts that the Agreement would settle, along with.a schedule of payments.

The London Debt Agreement’s objective, “to achieve the reestablishment of orderly and normal economic relations with foreign [nations], could only be accomplished” if the F.R.G. could avoid excessive claims for wartime and pre-war debt.

See

BGH

(1973), at 16;

see also

OVG Müenster (1998), at 12 (stating that the final settlement of the reparations issue within the context of Article 5(2) of the London Debt Agreement was necessarily linked to Germany’s reunification “because only a government which representad] all of Germany [could] assert or waive German counterclaims.”).

In Article 7 of the Two-Plus-Four Treaty, the Allied Powers relinquished the rights and responsibilities concerning Berlin and all of Germany that they expressly had reserved in Potsdam.

See supra

note 38. Although the Two-Plus-Four Treaty does not expressly state that the phase of German reparations has ended, it is clear from Article 7 that the Allied nations can demand no further reparations payments from Germany.

See Krakauer I,

LG Bonn

*455

(1997), at 24-27; LG Bremen (1998), at 11. Further, the Two-Plus-Four Treaty’s silence on the issue of reparations can be explained, in part, by the fact that between 1953 and 1990, the F.R.G. resolved the issue of reparations by way of international agreements with the individual Allied nations.

(See

Letter from German Ministerial Director Horst Teltschik to Chancellor Helmut Kohl of 3/15/90, at 2.) Indeed, the F.R.G.’s Federal Government has stated that “45 years after the war, the reparations issue is de facto finished with, owing to the lack of concrete, contractually agreed upon obligations, owing to the renunciations of our former enemies, and owing to already completed efforts of Germany.” (I

d.), see also

OVG Müenster (1998), at 12 (stating that the Two-Plus-Four Treaty must be viewed before the backdrop of (1) the reparations payments which Germany had made during' the first post-war years and (2) the ongoing extensive payments toward the restitution of Nazi wrongs which Germany made to individual persons on the basis of international treaties or contracts with private organizations).

Thus, German courts have held that the signing of the Two-Plus-Four Treaty constitutes the “final settlement of the problem of [World War II] reparations” for purposes of the London Debt Agreement.

See

OVG Müenster (1998), at 9; LG Bremen (1998), at 12;

Krakauer I,

LG Bonn (1997), at 23. Since the Two-Plus-Four Treaty is the final settlement of the reparations issue, the London Debt Agreement no longer bars review of the war related claims of the Allies or their nationals against the German government or German companies.

See

OVG Müenster (1998), at 8-10. As stated by the Administrative Court of Appeals:

[T]he Two Plus Four Treaty causes the lapse of the postponement agreed upon in [the London Debt Agreement] because the issue of reparations in connection with World War II will no longer arise after the conclusion of this Treaty. It is apparent from the preamble that the [T]reaty was concluded with the goal of agreeing upon the definite settlement with regard to Germany. This makes it clear that there will be no additional (peace) treaty settlements concerning legal questions in connection with World War II and the occupation of Germany.

Id.

at 11. The Administrative Court of Appeals concluded that “it was the intent of the signatory parties that there be no future treaty settlement of the reparation issue with regard to Germany; thus, the reparations issue was ‘settled.’ ”

Id.

at 12. In short, the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium on consideration of the Allies’, or their nationals’, claims against the German government or German companies.

See

LG Bremen (1998), at 13;

Krakauer I,

LG Bonn (1997), at 24.

London Debt Agreement Contemplates Individual Claims

Defendants argue that the Paris Reparations Treaty permanently subsumed all private claims arising out of World War II, thereby precluding the instant claims. Iwanowa agrees that the intent of the Paris Reparations Treaty was to subsume gov

*456

ernment and individual claims arising out of the war into the Treaty and preclude private litigation.

(See

II Tr. at 41:23-42:5.) She asserts, however, that “the entire structure of the Paris [Reparations] Agreement was axed ... because it was self-defeating, and we moved instead to the London Debt Agreement.” (II Tr. at 42:8-12.) Iwanowa argues:,

If, in fact, the [Paris Reparations Treaty] subsumed [private] claims once and for all, and there were no individual claims left, why was it necessary to say [in the London Debt Agreement] that the individual claims would be postponed?

It was because the people who were drafting the London Debt Agreement knew that this was a new regime, that the old regime, in which these claims would have been subsumed, because there was no room for them, was simply over, and that there was a new regime in which these claims had to be thought about, but they wanted to postpone them to give the German corporations a chance to regain their economic health.

(II Tr. at 48:15-25.) In effect, Iwanowa argues that the London Debt Agreement superseded the Paris Reparations Treaty.

Defendants assert that the London Debt Agreement could not have deferred consideration of individual claims because such claims were subsumed into the governmental claims of the signatories to the Paris Reparations Treaty. Defendants assert that the London Debt Agreement only deferred consideration of the claims of governments. (II Tr. at 51:13-20.) German courts have rejected this argument and held that the London Debt Agreement deferred consideration of private claims against the German government and its agencies, including German companies.

See

BGH (1973); BGH [Supreme Court], VI ZR 186/71, at 3 (1964) (F.R.G.) [“BGH (1964)”];

Stancher,

BGH (1963), at 3;

Krakauer I,

LG Bonn (1997), at 23. Specifically, German courts have held that forced labor claims “are to be viewed as claims arising from World War II within the meaning of [the London Debt Agreement], the review of which must be postponed until the final settlement of the reparations issue.”

Krakauer I,

LG Bonn (1997), at 23-24. Until recently, German courts have denied forced labor claims as “unfounded at the time” or “invalid at the present time”; in each instance, the courts have cited Article 5(2) of the London Debt Agreement.

See

BGH (1973), at 16-17; BGH (1964), at 3;

Stancher,

BGH (1963), at 1;

Krakauer I,

LG Bonn (1997), at 24 (“all complaints by

former

forced laborers, even to the extent that they were directed against the business operations themselves, were dismissed as currently without merit.”).

As shown above, the German Supreme Court has repeatedly held that the London Debt Agreement deferred individual forced labor claims until the final settlement of the reparations issue.

See

BGH (1973), at 16-17; BGH (1964), at 3;

Staucher,

BGH (1963), at 1. However, the German Supreme Court has never held that these deferred claims were cognizable. The German Supreme Court refused to address the merits of forced labor claims and merely held that courts could not consider forced labor claims for the time being.

Id.

As such, the issue before this Court is not whether the London Debt Agreement deferred consideration of private claims — the German Supreme Court has already answered that question in the affirmative—but whether such claims are cognizable versus being permanently barred by the Paris Reparations Treaty. For the reasons discussed below, this Court finds that individual claims are cognizable under the London Debt Agreement; however, only the government of the country of which the forced laborer was a national at the time the forced labor claims arose can pursue such claims. In short, Iwanowa must press her individual claims through the governments of the successor states to the U.S.S.R.

*457

a. Standards for Interpreting Treaties

A treaty is a contract between or among sovereign nations.

See Trans World Airlines, Inc. v. Franklin Mint Corp.,

466 U.S. 248 , 253, 104 S.Ct. 1776 , 80 L.Ed.2d 273 (1984);

Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n,

443 U.S. 658, 675 , 99 S.Ct. 3055 , 61 L.Ed.2d 823 (1979). General rules of construction apply to treaties.

See Trans World Airlines,

466 U.S. at 262 , 104 S.Ct. 1776 (Stevens, J., dissenting) (citing

Ware v. Hylton,

3 U.S. 199 , 3 Dall. 199, 240-41 , 1 L.Ed. 568 (1796)). Treaties, like “other contracts ... are to be read in the light of the conditions and circumstances existing at the time they were entered into, with a view to effecting the objects and purposes of the [nations] thereby contracting.”

Trans World Airlines,

466 U.S. at 262 , 104 S.Ct. 1776 (Stevens, J., dissenting) (quoting

Rocca v. Thompson,

223 U.S. 317, 331-32 , 32 S.Ct. 207 , 56 L.Ed. 453 (1912)). The parties’ intentions dictate the interpretation of a treaty.

See United States v. Choctaw Nation,

179 U.S. 494, 531-33 , 21 S.Ct. 149 , 45 L.Ed. 291 (1900).

As with other contracts, there “is a strong presumption that the literal meaning [of a treaty] is the true one”.

United States v. M.H. Pulaski Co.,

243 U.S. 97, 106 , 37 S.Ct. 346 , 61 L.Ed. 617 (1917). Thus, interpretation of a treaty must begin “with the text of the treaty and the context in which the written words are used.”

Air France v. Saks,

470 U.S. 392, 397 , 105 S.Ct. 1338 , 84 L.Ed.2d 289 (1985) (citing

Maximov v. United States,

373 U.S. 49, 53-54 , 83 S.Ct. 1054 , 10 L.Ed.2d 184 (1963));

see also Brink’s Ltd. v. South African Airways,

93 F.3d 1022, 1027 (2d Cir.1996) (stating that interpretation of a treaty must begin “with the literal language.”). A court interpreting a treaty must construe its terms “in their ordinary meaning as understood” by the international community.

See Santovincenzo v. Egan,

284 U.S. 30, 40 , 52 S.Ct. 81 , 76 L.Ed. 151 (1931);

The Pizarra,

15 U.S. 227 , 2 Wheat. 227, 246 , 4 L.Ed. 226 (1817);

see also

OVG Müenster (1998), at 11.

Furthermore, Iwanowa’s argument that she did not realize that the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium- on claims arising out of the War until the publication of the

Krakatier I

opinion lacks merit.

The German Federal Register published notice of the ratification of the Two-Plus-Four Treaty on March 15, 1991. The

Krakauer I

Court noted that the media and the press discussed the Two-Plus-Four Treaty extensively.

See Krakauer I,

LG Bonn (1997), at 30. Indeed, the plaintiffs in

Krakauer I

and in LG Bremen (1998) filed their claims within twelve months and four months, respectively, of the Two-Plus-Four Treaty’s operative date. Hence, it appears that those plaintiffs realized that the Two-Plus-Four Treaty lifted the London Debt Agreement’s moratorium on forced labor claims before a court interpreted it as such. Consequently, Iwa-nowa’s argument that she did not receive adequate notice that the London Debt Agreement no longer barred consideration of forced labor claims until publication of the

Krakauer I

opinion sounds hollow.

*466

Iwanowa has not cited any case law showing that the statute of limitations should be tolled until the

Krakauer I

Court expressly interpreted the Two-Plus-Four Treaty as lifting the London Debt Agreement’s moratorium. Thus, this Court concludes that the statute of limitations on Iwanowa’s claims began to run on the effective date of the Two-Plus-Four Treaty,

not when

the

Krakauer I

Court first interpreted such Treaty.

d. Claims Against Ford Werke

Iwanowa filed the instant action on March 5, 1998. The Paris Reparations Treaty tolled the statute of limitations on war related claims against German companies, such as Ford Werke, from 1946 until 1953, when it was replaced by the London Debt Agreement. The London Debt Agreement’s moratorium tolled the limitations period on such claims until March 15, 1991, the operative date of the Two-Plus-Four Treaty. As noted in supra Part II.B.4, the limitations period for claims under the ATCA is ten years. As such, the statute of limitations on Iwanowa’s claims under international law would expire on March 15, 2001. Iwanowa filed the instant claims on March 5, 1998; thus, her claims under the ATCA against Ford Werke are timely.

e. Statute of Limitations is Not Tolled on Claims Against Ford

Iwanowa has asserted claims under international law against both Ford Werke and Ford. The Complaint alleges that “[p]rior to November 5, 1997, plaintiffs’ efforts to seek compensation for forced labor during the Second World War from private corporations were barred under German law.” (Comply 37.) The London Debt Agreement deferred consideration of claims arising out of World War II against the German government and German companies.

See

London Debt Agreement, Art. 5(2); BHG (1973), at 9-10;

Staucher,

BGH (1963), at 11. Ford is not a German company, therefore, it is not covered by the London Debt Agreement. However, Iwanowa argues that the London Debt Agreement tolled her claims against Ford because Ford’s liability is partially derivative of Ford Werke’s liability, thus, any suit against Ford during the period when claims against Ford Werke were precluded, would have been vulnerable to dismissal for (1) failure to join a necessary party, pursuant to Federal Rule of Civil Procedure 19; or (2) interference with the London Debt Agreement’s deferral scheme. Specifically, Iwanowa argues that the London Debt Agreement tolls claims against Ford because Ford would have passed the cost incurred in defending against forced labor claims and any award recovered by forced laborers, onto Ford Werke, thereby defeating the purpose of the London Debt Agreement’s deferral scheme. This reasoning is not persuasive.

Iwanowa has not attempted to explain how claims against Ford would have been vulnerable to dismissal, pursuant to Federal Rule of Civil Procedure 19. Regardless, all lawsuits are subject to potential defenses and are thus, vulnerable to dismissal for countless reasons. A plaintiff cannot delay filing her claims in derogation of the applicable statute of limitations merely because she believes a defendant has valid defenses

*467

or her suit is subject to dismissal.

See Chakonas v. City of Chicago,

42 F.3d 1132, 1135-36 (7th Cir.1994) (refusing to extend statute of limitations simply because plaintiff was not certain his claims would have succeeded if he had brought them earlier). Furthermore, the Complaint

does not

allege that the Paris Reparations Treaty or the London Debt Agreement precluded Iwanowa from asserting claims under international law against Ford, a U.S. corporation, in a U.S. court. The Paris Reparations Treaty covers war related claims “against the former German Government and its Agencies”. Paris Reparations Treaty, Part I, Art. 2.A. The London Debt Agreement defers consideration of claims “against the Reich and agencies of the Reich”. London Debt Agreement, Art. 5(2). Although German courts have held that German corporations utilizing forced labor acted as agents of the Reich, no court has ever held, and the Complaint does not allege, that U.S. corporations (such as Ford) were agents of the German government. Thus, this Court concludes that neither the Paris Reparations Treaty nor the London Debt Agreement prevented Iwanowa from bringing forced labor claims against Ford, a U.S. corporation, under the ATCA, a U.S. statute.

Furthermore, Iwanowa’s argument that Ford would have passed the cost incurred in defending against forced labor claims onto Ford Werke must also fail. Iwa-nowa’s assertion that as the parent company, Ford would pass its losses onto Ford Werke, thereby defeating the purpose of the London Debt Agreement’s deferral scheme, is speculative at best. There is nothing before this Court enunciating what Ford’s accounting practices are or how and to what extent litigation costs or losses incurred would be passed onto Ford Werke. Consequently, neither the Paris Reparations Treaty nor the London Debt Agreement tolled the limitations periods of the claims against Ford under international law.

(1)

Equitable Tolling

Iwanowa argues that even if the London Debt Agreement does not toll the limitations period of her claims against Ford, the statute of limitations was equitably tolled by Ford’s affirmative misstatements denying that it gained any economic advantages from Ford Werke’s use of unpaid, forced labor.

Equitable tolling stops the statute of limitations from running where the claim’s accrual date has already passed.

See Oshiver v. Levin, Fishbein, Sedran & Berman,

38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling may be appropriate,

inter alia,

where the defendant has actively misled the plaintiff.

See id.; see also United States v. Midgley,

142 F.3d 174, 179 (3d Cir.1998);

School Dist. of City of Allentown v. Marshall,

657 F.2d 16, 19-20 (3d Cir.1981). To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled” plaintiff.

See 287 Corporate Ctr. Assocs. v. Township of Bridgewater,

101 F.3d 320, 325 (3d Cir. 1996);

Oshiver,

38 F.3d at 1387 . In the instant case, the Complaint is devoid of any allegations of misrepresentation and concealment.

Iwanowa makes vague claims of misrepresentation by Ford for the first time in her brief in opposition to Defendants’ motions to dismiss. (Pl.’s Opp’n Br. at 41.) She alleges that in 1998, a Ford spokesperson issued a statement denying

*468

that Ford received significant economic benefits from Ford Werke’s use of forced labor.

(Id.)

Iwanowa attempted to expand upon these allegations at oral argument and in her April 5, 1999 supplementary-submissions. (I Tr. 51:1-5; Neuborne Supp.Decl. ¶ 23.) Iwanowa now alleges that in 1974, a Ford spokesperson publicly stated that “Ford Motor Co. had no participation in the operation or financial results of Ford [Werke] while the United States was engaged in World War II.” (Neuborne Supp.Decl. ¶ 23.)

In considering a 12(b)(6) motion, the Court is limited to the facts alleged in the Complaint; a court cannot consider facts raised for the first time in counsel’s legal memorandum.

See Town of Secaucus v. United States Dep’t of Transp.,

889 F.Supp. 779, 791 (D.N.J.1995),

aff'd,

79 F.3d 1139 (3d Cir.1996);

In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1424-25 (3d Cir.1997). Accordingly, this Court must disregard the allegations in Iwanowa’s brief and Professor Neuborne’s Supplemental Declaration. Furthermore, statements made in 1974 and 1998 provide no basis for tolling limitations periods that expired decades ago. In order to provide an effective equitable tolling argument, the statements alluded to would have had to have been made within a relatively short period after the end of the War. Based on the absence of any allegations of misrepresentation and concealment in the Complaint, Iwanowa’s equitable tolling theory must fail.

The U.S.S.R. Waiver

In 1953, the U.S.S.R. and the G.D.R. entered into a bilateral treaty, whereby the U.S.S.R. waived any further reparations payments from the G.D.R.

See

Protocol Between the Union of Soviet Socialist Republics and the German Democratic Republic Concerning the Discontinuance of German Reparations Payments and Other Measures to Alleviate the Financial and Economic Obligations of the German Democratic Republic Arising in Consequence of the War, Aug. 22, 1953, G.D.R.-U.S.S.R., 221 U.N.T.S. 136 (“U.S.S.R.Waiver”).

Defendants argue that by signing the U.S.S.R. Waiver, the U.S.S.R. not only waived its right to seek further reparation payments from Germa-ny, but also waived the right of its citizens to file claims arising from forced labor against Germany or German companies.

This assertion does not pass muster.

It is well-established that countries can waive the war-related claims of their citizens.

See Dames & Moore v. Regan,

453 U.S. 654, 679-80 , 101 S.Ct. 2972 , 69 L.Ed.2d 918 (1981) (“the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries ... by executive agreementfs] ... [ujnder [which] the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments”);

Belk v. United States,

858 F.2d 706, 709 (Fed.Cir.1988) (same). The crucial issue is whether the U.S.S.R. intended to waive its nationals’ rights to file Nazi-era forced labor claims against German companies. The German Federal Constitutional Court has held that some treaties contain waiver provisions that

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“only relate to the claims of states arising from harm to their citizens, but not claims of the citizens themselves.” BVerfG (1996), at 23. However, treaties “expressly regulat[ing] the claims of citizens in addition to the claims of the states” can extinguish individual claims.

Id.

at 24-25.

At least one German court has held that the U.S.S.R. Waiver did not extinguish Soviet citizens’ individual claims for compensation for forced labor.

See Krakauer I,

LG Bonn (1997), at 30-32.

The specific language of the U.S.S.R. Waiver does not mention individual claims. As stated in Part II.B.3.a,

supra,

general rules of construction apply to treaties.

See Trans World Airlines,

466 U.S. at 262 , 104 S.Ct. 1776 (Stevens, J., dissenting) (citing

Ware v. Hylton,

3 U.S. 199 , 3 Dali. 199, 240-41, 1 L.Ed. 568 (1796)). Thus, when construing a treaty, the Court must give the treaty’s terms their ordinary meaning.

See, e.g., Air France,

470 U.S. at 397 , 105 S.Ct. 1338 (1985);

Santovincenzo,

284 U.S. at 40 , 52 S.Ct. 81 ;

M.H. Pulaski Co.,

243 U.S. at 106 , 37 S.Ct. 346 ;

The Pizarro,

2 Wheat, at 246;

Trans World Airlines,

466 U.S. at 262-63 , 104 S.Ct. 1776 (Stevens, J., dissenting);

Xerox Corp.,

41 F.3d at 652 . The U.S.S.R. Waiver’s plain language does not address individual citizens’ claims. Thus, in accordance with the canons of interpretation, it is only logical to find that the U.S.S.R. Waiver only precludes claims by the U.S.S.R. against the G.D.R. and does not extinguish Soviet citizens’ private claims.

The German Federal Government has taken the position that the U.S.S.R.’s Waiver of further reparations applies to the successor states of the U.S.S.R. and all citizens of those states.

See

German Federal Government,

Comprehensive Report on Previous Restitution Payments by German Companies,

at 2 (June 3, 1996). The German Federal Government’s report does not cite any authority demonstrating that German civil law supports its position. Even if this Court were to agree with the German Federal Government’s position, the U.S.S.R. Waiver is not applicable in the instant case. Specifically, the U.S.S.R. Waiver only waived further reparations payments from the G.D.R., not from its agencies.

Hence, the U.S.S.R. Waiver clearly does not apply to claims against German companies. Accordingly, this Court finds that the U.S.S.R. Waiver did not extinguish individual claims against Defendants under the law of nations.

Defendants have failed to show that the Paris Reparations Treaty or the U.S.S.R. Waiver permanently barred individual forced labor claims. However, Iwa-nowa’s claims against Ford, for violations of international law, are time-barred.

See supra

Part II.B.4.e. Furthermore, although Iwanowa’s claims against Ford Werke, for violations of the law of nations, are timely, they must be dismissed on the ground that the London Debt Agreement contemplated that individual claims would be pursued by way of government-to-government negotiations, not private litigation.

See supra

Part II.B.3.e. Consequently, Defendants’ motion to dismiss Iwanowa’s claims for violations of the law of nations is granted.

III.

CLAIMS UNDER U.S. LAW

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and Delaware

to disgorge to plaintiff, and the Class, all profits and other economic benefits earned or derived from the forced labor of plaintiff and the Class.” (Comply 38.) She further attests that “[b]y knowingly utilizing unpaid, forced labor to generate enormous profits, [Defendants] are obliged under the laws of ... Michigan and Delaware to pay to plaintiff, and the Class, the reasonable value of their services.”

(Id.

¶ 39.) In sum, Iwa-nowa asserts claims for restitution/unjust enrichment and quantum meruit.

Defendants have moved to dismiss Iwa-nowa’s claims under U.S. law, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that they are time-barred.

Subject Matter Jurisdiction

This Court has diversity jurisdiction over Iwanowa’s common law claims, pursuant to 28 U.S.C. § 1332 , which provides in relevant part:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between — ... (2) citizens of a State and citizens or subjects of a foreign state;

28 U.S.C. § 1332 (a)(2). Iwanowa is a Belgian citizen, Ford is a citizen of Delaware, and Ford Werke is a citizen of Germany. Iwanowa asserts that the matter in controversy exceeds $75,000, exclusive of interests and costs. Thus, this Court has diversity jurisdiction over Iwanowa’s claims under Michigan or Delaware law. Venue is proper pursuant to 28 U.S.C. § 1391 (d).

Substantive Law

In deciding state law claims, a federal district court sitting in diversity must apply the choice of law principles of the forum state to determine which state’s law governs.

See Van Dusen v. Barrack,

376 U.S. 612, 645-46 , 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964);

Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 494 , 61 S.Ct. 1020 , 85 L.Ed. 1477 (1941);

Shuder v. McDonald’s Corp.,

859 F.2d 266, 269 (3d Cir. 1988);

Rohm and Haas Co. v. Adco Chem. Co.,

689 F.2d 424, 429 (3d Cir.1982). Since New Jersey is the forum state, New Jersey’s choice of law principles apply.

New Jersey has adopted a governmental interest analysis when determining which jurisdiction’s substantive law governs.

See Veazey v. Doremus,

103 N.J. 244, 247 , 510 A.2d 1187 (1986);

Mellk v. Sarahson,

49 N.J. 226, 229-30 , 229 A.2d 625 (1967). Under the governmental interest analysis, New Jersey courts must apply the substantive law of the state with the greatest interest in resolving the issue raised in the underlying litigation.

See Gantes v. Kason Corp.,

145 N.J. 478, 484 , 679 A.2d 106 (1996);

Veazey,

103 N.J. at 248 , 510 A.2d 1187 . The first step in the analysis requires determining whether an actual conflict exists between the laws of the interested states, in this case, Michigan and Delaware.

See Gantes,

145 N.J. at 484 , 679 A.2d 106 . If no conflict exists, the Court need not make a choice of law determination.

Restitution/Unjust Enrichment

To assert a claim for restitu- ■ tion under Delaware law, a plaintiff must

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show that (1) the defendant was unjustly enriched at plaintiffs expense and (2) the defendant secured a benefit which would be unconscionable for the defendant to retain.

See Fleer Corp. v. Topps Chewing Gum, Inc.,

539 A.2d 1060, 1063 (Del.1988). Similarly, Michigan courts have held that “[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.”

Kammer Asphalt Paving Co., Inc. v. East China Township Schools,

443 Mich. 176 , 504 N.W.2d 635, 640 (1993);

see also B & M Die Co. v. Ford Motor Co.,

167 Mich.App. 176 , 421 N.W.2d 620, 622 (1988) (same);

Hofmann v. Auto Club Ins. Ass’n,

162 Mich.App. 424 , 413 N.W.2d 455, 457 (1987) (finding that “[a] quasi-contractual obligation arises when a defendant receives a benefit from a plaintiff which is inequitable for the defendant to retain.”).

Unjust enrichment is a necessary element of the doctrine of restitution. Hence, before a court may order restitution, it must find that the defendant was unjustly enriched at the plaintiffs expense.

See Fleer Corp.,

539 A.2d at 1062 . Unjust enrichment is defined as “the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.”

Id-

(quoting 66 Am.Jur.2d, Restitution & Implied Contracts § 3, p. 945 (1973)). To assert a claim for unjust enrichment under Delaware law, a plaintiff must show: (1) an enrichment of defendants, (2) a loss to plaintiff, (3) a lack of justification for the enrichment, (4) the absence of any other available remedy and (5) the absence of law barring the remedy.

See Phoenix Canada Oil Co. Ltd. v. Texaco, Inc.,

658 F.Supp. 1061, 1063 (D.Del.1987)

aff'd

842 F.2d 1466 (3d Cir.1988);

Cantor Fitzgerald v. Cantor,

724 A.2d 571, 585 (Del.Ch.1998).

Similarly, to assert a claim for unjust enrichment under Michigan law, a plaintiff must show that (l)-the defendant received a benefit from the plaintiff and (2) it would be inequitable for the defendant to retain such benefit.

See Dumas v. Auto Club Ins. Ass’n,

437 Mich. 521 , 473 N.W.2d 652, 663 (1991);

B & M Die,

421 N.W.2d at 622 .

Quantum Meruit

The equitable doctrine of quantum me-ruit requires a defendant to pay a plaintiff the reasonable value of services rendered even though there was no contract to do so.

See United States v. Snider,

779 F.2d 1151, 1159 (6th Cir.1985);

Kamalnath v. Mercy Mem. Hosp. Corp.,

194 Mich.App. 543 , 487 N.W.2d 499, 504 (1992). “Quantum meruit literally means ‘as much as he deserves’; it is the reasonable worth or value of services rendered for the benefit of another.”

Marta v. Nepa,

385 A.2d 727, 730 (Del.1978) (citation omitted). A quantum meruit recovery is available under principles of restitution where recovery under contract is not possible.

See Nepa v. Marta,

415 A.2d 470, 472 (Del.1980). In effect, the court implies an intent by defendant to pay for plaintiffs services, in order to prevent unjust enrichment.

See Roznowski v. Bozyk,

73 Mich.App. 405 , 251 N.W.2d 606, 608 (1977);

Bellanca Corp. v. Bellanca,

169 A.2d 620, 623 (Del.1961);