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782 349 FEDERAL SUPPLEMENT, 2d SERIES

November 5, 2004, when the Court heard
oral argument from the Kingdom of Saudi
Arabia in its motion to dismiss the Federal
Insurance complaint.15

I. Subject Matter Jurisdiction Under
the FSIA

[2–4] Under the FSIA, a foreign state
and its instrumentalities are presumed im-
mune from United States courts’ jurisdic-
tion. Saudi Arabia v. Nelson, 507 U.S.
349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47
(1993); 28 U.S.C. §§ 1602–1607. The
FSIA’s exceptions to immunity provide the
sole basis for obtaining subject matter ju-
risdiction over a foreign state and its in-
strumentalities in federal court. Argen-
tine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989); Robinson v. Gov’t of
Malaysia, 269 F.3d 133, 138 (2d Cir.2001).
Federal courts must inquire at the
“threshold of every action” against a for-
eign state whether the exercise of its juris-
diction is appropriate. Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493,
103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).

A. Standard of Review

[5, 6] In a Rule 12(b)(1) motion to dis-
miss challenging subject matter jurisdic-
tion under the FSIA, “the defendant must
first ‘present a prima facie case that it is a
foreign sovereign.’” Virtual Countries v.
Republic of South Africa, 300 F.3d 230,
241 (2d Cir.2002) (quoting Cargill Int’l
S.A. v. M/T Pavel Dybenko, 991 F.2d
1012, 1016 (2d Cir.1993)). In response,
the plaintiff must present evidence that
one of the statute’s exceptions nullifies the
immunity. Virtual Countries, 300 F.3d at
241 (“Determining whether this burden is
met involves a ‘review of the allegations in
the complaint, the undisputed facts, if any,

placed before the court by the parties,
and—if the plaintiff comes forward with
sufficient evidence to carry its burden of
production on this issue—resolution of dis-
puted issues of fact.’”) (citing Robinson,
269 F.3d at 141); Leutwyler v. Office of
Her Majesty Queen Rania Al–Abdullah,
184 F.Supp.2d 277, 287 (S.D.N.Y.2001)
(explaining plaintiff may “rebut the pre-
sumption of immunity ... by proffering
evidence of record that the defendant un-
dertook certain activities that fall within
the scope” of one of the statutory excep-
tions) (citing Drexel Burnham Lambert
Group Inc. v. Comm. of Receivers for
A.W. Galadari, 12 F.3d 317, 325 (2d Cir.
1993)). In challenging this Court’s sub-
ject matter jurisdiction, the moving Defen-
dants retain the ultimate burden of per-
suasion. Virtual Countries, 300 F.3d at
241 (citing Cargill, 991 F.2d at 1016);
Robinson, 269 F.3d at 141 n. 8 (noting
defendant’s burden must be met with a
preponderance of the evidence).

[7] Defendants may “challenge either
the legal or factual sufficiency of the plain-
tiff’s assertion of jurisdiction, or both.”
Robinson, 269 F.3d at 140 (citations omit-
ted). “If the defendant challenges only
the legal sufficiency of the plaintiff’s juris-
dictional allegations, the court must take
all facts alleged in the complaint as true
and draw all reasonable inferences in favor
of the plaintiff.” Id. (internal quotations
and citations omitted); Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir.2000). “But where
evidence relevant to the jurisdictional
question is before the court, ‘the district
court ... may refer to that evidence.’”
Robinson, 269 F.3d at 140 (quoting Maka-
rova v. United States, 201 F.3d 110, 113
(2d Cir.2000)); see also Filetech S.A. v.
France Telecom S.A., 157 F.3d 922, 932

15. The parties have agreed that resolution of
this motion will also apply to Vigilant Insur-

ance v. Kingdom of Saudi Arabia, 03 Civ.
8591(RCC).

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