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Discussion

*3 As other courts in this circuit have noted in similar circumstances, “strong moral claims are not easily converted into successful legal causes of action.” Garb v. Republic of Poland, 440 F.3d 579, 581 (2d Cir. 2006) (internal quotations omitted).

 

The FSIA provides the “sole basis for obtaining jurisdiction over a foreign sovereign in the United States,” Argentina v. Weltover, 504 U.S. 607, 611 (1992) (internal quotations omitted), and thus the “the capacity of United States courts to exercise jurisdiction over [P]laintiffs' claims hinges on a legal inquiry narrowly circumscribed by statute,” Garb, 440 F.3d at 581. Under the FSIA, foreign states and their agencies and instrumentalities are presumptively immune from the jurisdiction of the courts of the United States, unless a statutory exception to immunity applies. 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). “Once the defendant presents prima facie evidence that it is a foreign sovereign, the burden falls on the plaintiff to establish by a preponderance of the evidence that an exception under the FSIA permits jurisdiction over the foreign sovereign. Where the plaintiff satisfies [its] burden that an FSIA exception applies, the foreign sovereign then bears the ultimate burden of persuasion that the FSIA exception does not apply.” Swarna v. Al-Awadi, 622 F.3d 123, 144 (2d Cir. 2010) (internal citations omitted). If the claim does not fall within one of the FSIA's statutory exceptions, federal courts lack subject matter jurisdiction of the claim, as well as personal jurisdiction over the foreign state defendant. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 & n.14 (1983).

 

It is uncontested here that Germany is a foreign state and is therefore generally immune from liability under FSIA, unless a statutory exception applies. Plaintiffs argue that their claims fall within two of the exceptions to immunity specified in the FSIA: the commercial activity exception, 28 U.S.C. § 1605(a)(2), #$%1 and the takings exception, 28 U.S.C. § 1605(a)(3).