Windhoek — United States District Court Judge Laura Taylor Swain on Tuesday denied Germany's motion to dismiss a class-action lawsuit filed by Ovaherero and Nama people in the United States Federal Court in New York for alleged crimes against humanity.
The Ovaherero and Nama people filed a lawsuit on January 5, 2017, suing Germany for excluding them from current negotiations between the German and Namibian governments concerning the 1904-1908 genocide committed on Namibian soil.
The court order, seen by New Era, states that in a civil case, prior to requesting a conference on any discovery issue, the parties must use their best efforts to resolve informally the matters in controversy.
The court documents further show that such efforts must include, but need not be limited to, an exchange of letters outlining their respective legal and factual positions on the matter and at least on telephonic or in-person discussion of the matters.
"The plaintiff or counter claimant must indicate whether it wishes to amend the subject pleading prior to motion practice, and the parties must consider in good faith a stipulation permitting such amendment," the court document reads.
Additionally, the document shows that if a motion or a discovery conference request remains necessary, the notice of the motion or written discovery conference request must include a separate paragraph certifying in clear terms that the movant or requesting party has used its best efforts to resolve informally the matters raised in its submission.
"If the motion is one pursuant to or the certification must also state whether the challenged pleading has been amended in response to the arguments raised in the motion".
The court finds that such prior communication is often useful in facilitating settlement, consensual resolution of the subject matter of the motion or, at a minimum, narrowing of issues presented for decision by the court.
The court ordered that the motion by the Germans is terminated for the court's docket, without prejudice to reinstatement upon application filed on or before February 9, 2018, upon notice to adverse parties and accompanied by the requisite certification.
The US court also ordered, that no response to the motion is required unless a reinstatement application is granted, in which case the time to respond of any adverse party will be calculated from the date of services of the order reinstatement and in accordance with Local Civil Rule 6.1 of the New York court.
Berlin on Wednesday insisted the US district court has no jurisdiction over an independent state, saying it rejected the court summons that was served on it last year, based on the principle of state immunity.
"The Federal Republic of Germany rejected the service of this action - via the US State Department and the US Embassy Berlin - because the service of the complaint on foreign State violates the principle of 'State Immunity' -a core principle of public international law," Berlin said in a statement. According to this principle, Berlin said domestic courts do not have jurisdiction over sovereign acts of foreign states.
But according to the Hague Convention, failure by the Germans not to appear in next week Thursday court hearing will risk the possibility of having a default judgement to be entered against it without the opportunity to present arguments or evidence on its behalf.
A default judgment is a binding judgment in favour of either party based on some failure to take action by the other party. Most often, it is a judgment in favour of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.