The opinion of the court was delivered by: Vaughn R Walker, United States District Judge.
On December 23, 1941, after mounting a brave resistance
against an overwhelming foe, the small American garrison on Wake
Island in the South Pacific surrendered to Imperial Japanese
forces. James King, a former United States Marine, was among
the troops and civilians taken prisoner by the invaders. He was
ultimately shipped to Kyushu, Japan, where he spent the
remainder of the war toiling by day as a slave laborer in a
steel factory and enduring maltreatment in a prison camp by
night. When captured, King was 20 years old, 5 feet 11 inches
tall and weighed 167 pounds. At the conclusion of the war, he
weighed 98 pounds.
James King is one of the plaintiffs in these actions
against Japanese corporations for forced labor in World War II;
his experience, and the undisputed injustice he suffered, are
representative. King and the other plaintiffs seek judicial
redress for this injustice.
These actions are before the court for consolidated
pretrial proceedings pursuant to June 5, 2000, and June 15,
2000, orders of transfer by the Judicial Panel on Multidistrict
Litigation. On August 17, 2000, the court heard oral argument
on plaintiffs' motions for remand to state court and defendants'
motions to dismiss or for judgment on the pleadings.
This order addresses, first, all pending motions for
remand. For the reasons stated below, the court concludes that
notwithstanding plaintiffs' attempts to plead only state law
claims, removal jurisdiction exists because these actions raise
substantial questions of federal law by implicating the federal
common law of foreign relations.
Second, the court addresses the preclusive effect of
the 1951 Treaty of Peace with Japan on a subset of the actions
before the court, namely, those brought by plaintiffs who were
United States or allied soldiers in World War II captured by
Japanese forces and held as prisoners of war. The court
concludes that the 1951 treaty constitutes a waiver of such
This order does not address the pending motions to
dismiss in cases brought by plaintiffs who were not members of
the armed forces of the United States or its allies. Since
these plaintiffs are not citizens of countries that are
signatories of the 1951 treaty, their claims raise a host of
issues not presented by the Allied POW cases and, therefore,
require further consideration in further proceedings.
Defendants may remove to federal court "any civil
action brought in a State court of which the district courts of
the United States have original jurisdiction." 28 U.S.C. § 1441
(a). "The propriety of removal thus depends on whether the
case originally could have been filed in federal court."
Chicago v International College of Surgeons, 522 U.S. 156, 163
Since a defense is not part of a plaintiff's properly pleaded
statement of his claim, a case may not be removed to federal
court on the basis of a federal defense. Rivet v Regions Bank
of La, 522 U.S. 470, 475 (1998).
Defendants' assertion of the Treaty of Peace with Japan
as a defense to plaintiffs' state law causes of action does not,
therefore, confer federal jurisdiction. Recognizing this,
defendants rely on a line of cases committing to federal common
law questions implicating the foreign relations of the United
In Banco Nacional de Cuba v Sabbatino, 376 U.S. 398, 425
(1964), a case in which federal jurisdiction was based on
diversity of citizenship, the Supreme Court held that
development and application of the act of state doctrine was a
matter of federal common law, notwithstanding the general rule
of Erie R Co v Thompkins, 304 U.S. 64, 78 (1938), that federal
courts apply state substantive law in diversity cases. The
court reasoned that because the doctrine concerned matters of
comity between nations, "the problems involved are uniquely
federal in nature." Id at 424. Although the applicable state
law mirrored federal decisions, the Court was "constrained to
make it clear that an issue [involving] our relationships with
other members of the international community must be treated
exclusively as an aspect of federal law." Id at 425.
Under Banco Nacional, federal common law governs
matters concerning the foreign relations of the United States.
See Texas Indus, Inc v Radcliffe Materials, Inc, 451 U.S. 630, 641
(1981). "In these instances, our federal system does not permit
the controversy to be resolved under state law, either because
the authority and duties of the United States as sovereign are
intimately involved or because the * * * international nature of
the controversy makes it inappropriate for state law to
If an examination of the complaint shows that the
plaintiff's claims necessarily require determinations that will
directly and significantly affect United States foreign
relations, a plaintiff's state law claims should be removed.
Republic of Phillipines v Marcos, 806 F.2d 344, 352 (2d Cir
1986). This doctrine has been extended to disputes between
private parties that implicate the "vital economic and sovereign
interests" of the nation where the parties' dispute arose.
Torres v Southern Peru Copper Corp, 113 F.3d 540, 543 n8 (5th Cir
The court concludes that the complaints in the instant
cases, on their face, implicate the federal common law of
foreign relations and, as such, give rise to federal
jurisdiction. Plaintiffs' claims arise out of world war and are
enmeshed with the momentous policy choices that arose in the
war's aftermath. The cases implicate the uniquely federal
interests of the United States to make peace and enter treaties
with foreign nations. As the United States has argued as amicus
curiae, these cases carry potential to unsettle half a century
In addressing the motions to dismiss, the court refers
again to a complaint that is representative of the actions by
United States and Allied POWs, King v Nippon Steel Corp., No 99-
As noted at the outset of this order, plaintiff King
seeks redress for wrongs inflicted by his captors half a century
ago. In count one of the complaint, he asserts a claim under
California Code of Civil Procedure § 354.6, a new law that
permits an action by a "prisoner-of-war of the Nazi regime, its
allies or sympathizers" to "recover compensation for labor
performed as a Second World War slave labor victim * * * from
any entity or successor in interest thereof, for whom that labor
was performed * * * ." Cal Code Civ Pro § 354.6. Count two is
an unjust enrichment claim in which plaintiff seeks disgorgement
and restitution of economic benefits derived from his labor. In
count three, plaintiff seeks damages in tort for battery,
intentional infliction of emotional distress and unlawful
imprisonment. Count four alleges that ...