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In re Terrorist Attacks on September 11, 2001, 392 F.Supp.2d 539 (2005)
10 A.L.R. Fed. 2d 789

employees are civil servants, it is an organ of the
Kingdom of Saudi Arabia. See Filler, 378 F.3d at 217.
Further, the Court finds SHC has not waived its sovereign
immunity. The representations to the contrary on which
Plaintiffs rely were made before this lawsuit was
contemplated and cannot be read as a waiver of immunity
from this court’s jurisdiction. The Second Circuit has
made clear that the waiver of FSIA immunity must be
explicit. See Banco de Seguros del Estado v. Mutual
Marine Office, Inc., 344 F.3d 255, 261 (2d Cir.2003)
(requiring wavier that unambiguously waives claims of
immunity from legal proceedings in this country). Finally,
Plaintiffs have not identified a factual dispute that would
require jurisdictional discovery. See Filetech S.A. v.
France Telecom S.A., 304 F.3d 180, 183 (2d Cir.2002)
(finding no abuse of discretion where district court
resolved jurisdictional issue without holding evidentiary
hearing because factual disputes were “readily
ascertainable” from the record). Accordingly, Plaintiffs
must demonstrate that an exception under the FSIA
applies to their claims against SHC. See Virtual
Countries, 300 F.3d at 241.

2. Prince Salman and Prince Naif
[7] Aside from allegations regarding personal contributions
to charities that were fronts for terrorists, the Plaintiffs’
claims against Prince Salman and Prince Naif concern
their official functions. The allegations against Prince
Salman, for example, center on his role as President of
SHC, (see, e.g., Ashton Compl. ¶ 457; Burnett Compl. ¶
406; Federal Compl. ¶ 456) or as Governor of Riyadh,
(see Ashton Compl. ¶ 291; Burnett Compl. ¶ 402).
Similarly, the allegations against Prince Naif center on his
role as Minister of Interior of the Kingdom. (See Ashton
Compl. ¶ 286; Burnett Compl. ¶ 382; Federal Compl. ¶
435.) To the extent the allegations concern actions
undertaken in their government positions, the Court finds
that Prince Salman and Prince Naif are foreign states for
FSIA purposes. See Leutwyler, 184 F.Supp.2d at 286–87
(recognizing that “individuals employed by a foreign
state’s agencies or instrumentalities are deemed ‘foreign
states’ when they are sued for actions undertaken within
the scope of their official capacities”). Thus, Plaintiffs
must also show that an FSIA exception applies to Princes
Salman and Naif. Virtual Countries, 300 F.3d at 241.

C. Application of FSIA Torts Exception

Plaintiffs claim any immunity enjoyed by SHC, Prince
Salman, and Prince Naif is overcome by the FSIA’s torts
exception. The Federal Plaintiffs also argue that the
commercial activities exception should lift *554 the
sovereigns’ immunity. For the reasons explained in its
previous opinion, the Court concludes that the torts
exception is the only exception relevant to the allegations
contained in the Ashton, Burnett, and Federal complaints
against SHC, Prince Salman, and Prince Naif. See
Terrorist Attacks I, 349 F.Supp.2d at 793–94 (explaining
that the Federal Plaintiffs’ reliance on the commercial
activities exception is inappropriate because the alleged
acts by Defendants were not the type of actions “by which
a private party engages in trade and traffic or commerce,”
and explaining the state sponsor of terrorism exception
applies only to designated state sponsors of terror, of
which the Kingdom of Saudi Arabia is not).

[8] [9] The torts exception lifts immunity for “personal
injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious
act or omission of that foreign state or any official ... of
that foreign state while acting in the scope of his office.”
28 U.S.C. § 1605(a)(5). For jurisdiction to be proper
under the torts exception, Plaintiffs will have to show,
first, that the Defendants’ tortious acts caused Plaintiffs’
injuries. Robinson v. Gov’t of Malaysia, 269 F.3d 133,
142 (2d Cir.2001) (“If those activities could not render the
Malaysian government liable for a tort under New York
law, then it remained immune under § 1605(a)(5).”).
Second, Plaintiffs must show that Defendants’ actions
were not discretionary, i.e., not grounded in the social,
economic, or political policies of the Kingdom of Saudi
Arabia. Terrorist Attacks I, 349 F.Supp.2d at 794–97; see
also 28 U.S.C. § 1605(a)(5)(A) (providing that the torts
exception is not applicable to “any claim based upon the
exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the
discretion be abused”). “Under the FSIA’s ‘discretionary
function’ exception, ‘acts which are performed at the
planning level of government, as opposed to those at the
operational level, are protected by the immunity.’ ”
Marchisella v. Gov’t of Japan, No. 02 Civ. 10023(DC),
2004 WL 307248, at *2 (S.D.N.Y. Feb.17, 2004) (quoting
Napolitano v. Tishman Constr. Corp., No. 96 Civ.
4402(SJ), 1998 WL 102789, at *4 (E.D.N.Y. Feb.26,
1998)).

Here, since SHC, Prince Salman, and Prince Naif are not
alleged to have been the actual perpetrators of the attacks,
Plaintiffs rely on theories of conspiracy and aiding and
abetting.

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