STANDISH, District Judge.
This is a wrongful death action in which plaintiffs allege that their decedents died as a result of exposure to a chemical weapon, commonly referred to as CS gas, used by the Israeli military in the occupied territories of the West Bank and the Gaza Strip or in the area around Jerusalem. Plaintiffs seek damages from defendants, alleging that defective CS gas was manufactured and negligently sold by defendants to the Israeli government.
Defendants have moved to dismiss plaintiffs' amended complaint for lack of subject matter jurisdiction pursuant to Fed. R.Civ. P. 12(b)(1).
Plaintiffs purport to invoke this court's jurisdiction pursuant to Title 28, United States Code, Section 1332(a)(2), which provides:
28 U.S.C. § 1332(a)(2).
For purposes of diversity jurisdiction, defendant Federal Laboratories, Inc. has a principal place of business in Saltsburg, Pennsylvania, and defendant TransTechnology Corporation is a Delaware corporation with a principal place of business in Union, New Jersey. Plaintiffs Yousra Abu-Karish, Mahmoud El-Attar and Abdullah Gurab allege that they are citizens of Palestine, and the remaining six plaintiffs allege that they are citizens of Palestine and Jordan.
After considering the materials submitted in support of, and in opposition to, defendants' motion to dismiss for lack of subject matter jurisdiction, the court concluded that the opinion of the United States Department of State should be solicited concerning two questions which are relevant to this court's jurisdiction in the above-captioned civil action.
Pursuant to this court's memorandum and order dated December 14, 1993, plaintiffs' counsel wrote to the State Department, requesting an opinion as to the two questions framed by the court concerning the allegations of Palestinian and Jordanian citizenship. By letter dated December 4, 1994, counsel for defendants notified the court that the State Department had responded to plaintiffs' request by letter dated November 21, 1994. The State Department's response to each question will be discussed separately.
It is clear that to fall within the grant of jurisdiction set forth in Title 28, United States Code, Section 1332(a)(2), a civil action must be between citizens of a State and citizens or subjects of a foreign state. Moreover, the foreign state must be recognized by the Executive Branch of the United States government at the time the complaint is filed.
De lure recognition is formal recognition. In the present case, plaintiffs concede that the Executive Branch of the United States government did not formally recognize Palestine at the time their complaint was filed on December 19, 1991. Therefore, plaintiffs cannot rely on de lure recognition of Palestine by the Executive Branch to support the assertion of Palestinian citizenship.
Turning to de facto recognition, such recognition can be accorded a foreign state based upon an objective examination of the relations between the recognized entity and the recognizing state. In connection with de facto recognition of Palestine, the opinion of the State Department was solicited with respect to the following question:
The State Department responded to the question as follows:
In light of the State Department's response to this question, it is clear that plaintiffs cannot rely on Palestinian citizenship in support of diversity jurisdiction under Title 28, United States Code, Section 1332(a)(2). Because plaintiffs Yousra Abu-Karish, Mahmoud El-Attar and Abdullah Gurab allege only Palestinian citizenship, the State Department's answer to the court's first question is dispositive as to these plaintiffs.
With respect to the allegations of Jordanian citizenship by plaintiffs Nabiha Abu-Zeineh, Nuwarah Mash'al, Jihad Abu-Ramouz, Abed Safi, Ahmad Essawi and Nofan El-Khader (the West Bank plaintiffs), whose decedents resided in the West Bank and the area in and around Jerusalem, the State Department was asked the following question and gave the following answer:
(11/21/94 Letter of Conrad K. Harper).
Obviously, this response provides little guidance to the court as to whether the West Bank plaintiffs were citizens of Jordan when the complaint was filed in this action. In their motion to dismiss, defendants maintain that the West Bank plaintiffs have failed to carry their burden of establishing that they are "citizens or subjects" of Jordan. (Defendants' Memorandum, p. 15). After further consideration, the court agrees.
Initially, the court wants to clarify an issue raised by the West Bank plaintiffs concerning the burden of proof on the issue of Jordanian citizenship. In response to defendants' motion to dismiss, the West Bank plaintiffs assert that the United States courts accord a presumption of continuing citizenship as against statelessness;
The court does not agree with the assertion that in a situation such as this one, where it is asserted that citizenship has been revoked, the burden of proof shifts to defendants to establish that the West Bank plaintiffs are not Jordanian citizens. In the court's view, any presumption of "continuing citizenship" would merely shift the burden of production to defendants, and plaintiffs would continue to have the burden of proving their citizenship for purposes of diversity jurisdiction. In the present case, it is clear that defendants successfully rebutted any presumption of "continuing citizenship" through the Declaration of Mr. Sofaer. (Defendants' Memorandum, Exh. B).
As noted above, in support of their motion to dismiss, defendants submitted the Declaration of Abraham D. Sofaer.
The West Bank plaintiffs do not dispute these assertions. (Plaintiffs' Memorandum, p. 15). Rather, they argue, correctly, that Jordanian Citizenship Law has never been amended to reflect Jordan's severing of legal and administrative ties with the West Bank by King Hussein's July 31, 1988 proclamation.
The court agrees with defendants that evidence of the failure of the Jordanian Citizenship Law to be amended in accordance with King Hussein's proclamation and the subsequent statement of Jordan's Prime Minister is insufficient to establish that the West Bank plaintiffs are Jordanian citizens "in the eyes of the Jordanian government."