Motion for Leave to File a Supplemental Declaration or a Second Amended Complaint

On October 31, 2018, Plaintiffs filed a motion seeking leave to file a supplemental declaration in support of their motion to dismiss or, in the alternative, to file a Second Amended Complaint. The proposed supplemental declaration proffers additional facts related to, among other things, the history and provenance of the AMNH Remains (docket entry no. 61-2, Supp. Decl. ¶¶ 5-7), von Luschan's relationship with the Museum of Ethnology in Berlin (id. ¶¶ 4, 31-36), the Museum of Ethnology's acquisition and study of human remains from other institutions within and outside of the United States (id. ¶¶ 8-14, 24-26), von Luschan's acquisition of other remains from the United States (id. ¶¶ 24, 27-30), the collection of other human remains by other individuals and institutions in Germany (id. ¶¶ 17-23), the repatriation of certain Ovaherero and Nama remains to Namibia (id. ¶¶ 38-39), and the repatriation of certain human remains from Germany to the United States (id. ¶¶ 40-41). Plaintiffs' proposed Second Amended Complaint primarily adds factual allegations substantially similar to those presented in their proposed supplemental declaration. (See generally docket entry no. 61-3.)

Federal Rule of Civil Procedure 15(a) provides that leave to amend the pleadings “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Leave to amend may, however, be denied if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile. Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018). Other than a general reference to delays and difficulties in gaining access to research documents, Plaintiffs offer no explanation as to why the facts alleged in the proposed supplemental declaration and Second Amended Complaint—which are primarily derived from historical and scholarly documents, the contents of which have presumably been available to Plaintiffs for decades since the events described in the AC—were not included in earlier iterations of their complaint. The initial complaint in this action was filed over two years ago, on January 5, 2017, and Plaintiffs have already availed themselves of an opportunity to amend their complaint. The instant motion to dismiss has been fully briefed twice and oral argument was held on the motion on July 31, 2018. The Court finds that Plaintiffs' undue delay in supplementing their motion and seeking leave to file an amended pleading is prejudicial to Germany at this late stage.

*9 Furthermore, even if the Court were to consider the additional factual material proffered in the supplemental declaration and Second Amended Complaint, leave to amend must be denied as futile. As discussed above, the presence of Ovaherero and Nama remains at the AMNH is insufficient to give rise to subject matter jurisdiction under either the commercial activity or the takings exception to the FSIA. The additional factual allegations regarding the history and provenance of the AMNH Remains that Plaintiffs have proffered do not alter the Court's conclusion that the transfer of these remains ten years after the events described in the AC is not a direct effect of the acts of genocide upon which Plaintiffs' claims are based. The same is true with respect to the Court's conclusion regarding the applicability of the takings exception. While the facts proffered in Plaintiffs' supplemental declaration and proposed Second Amended Complaint now suggest that Germany's “bone trade” activities bore some relationship to the United States in the early twentieth century, they do not sufficiently demonstrate that Germany's ongoing “bone trade” activities in the form of repatriation efforts entail substantial, commercial contact with the United States or share a substantive or causal connection to the AMNH Remains, nor do they provide any basis from which the Court can conclude that the activities of the German entities engaged in these repatriation efforts can all fairly be considered activities of the German state. In this context, the Court finds that allegations regarding the recent repatriation of certain Hawaiian and Alaskan remains from Germany are insufficient to demonstrate that the AMNH Remains are “present in the United States in connection with” a German commercial activity having substantial contact with the United States. Accordingly, Plaintiffs' motion for leave to file a supplemental declaration or, in the alternative, to file a Second Amended Complaint is denied.