Court Discusses Sovereign Immunity and Discovery Limits Involving Saudi Prince Sultan

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 783 Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005) (2d Cir.1998) (explaining, where there are factual disputes regarding the immunity question, the court may not “accept the mere allegations of the complaint as a basis for finding subject matter jurisdic- tion”). Thus, “on a ‘challenge to the dis- trict court’s subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence out- side the pleadings, such as affidavits. ” Filetech, 157 F.3d at 932 (explaining a court should consider all the submissions of the parties and may, if necessary, hold an evidentiary hearing to resolve the juris- dictional question) (quoting Antares Avr- craft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991)). The court must consult outside evidence if resolution of a proffered factual issue may result in the dismissal of the complaint for lack of jurisdiction. Robinson, 269 F.3d at 141 n. 6. Defendants here challenge both the le- gal and factual sufficiency of Plaintiffs’ claims. The Court will consider the affida- vits submitted by the parties as necessary. [8] Before turning to the allegations against the Defendants claiming immunity, the Court notes it is keenly aware of the “delicate balancle] ‘between permitting discovery to substantiate exceptions to statutory foreign sovereign immunity and protecting a sovereign’s or sovereign’s agency’s legitimate claim to immunity from discovery.” First City, Texas—Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir.1998) (ordering full discovery against defendant over whom court al- ready had subject matter jurisdiction be- cause such discovery would provide plain- tiff an opportunity to obtain jurisdictional discovery regarding potentially sovereign alter ego co-defendant without further im- pinging that defendant’s immunity) (quot- ing Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (th Cir.1992) (“At the very least, discovery should be ordered circumspectly and only to verify allega- tions of specific facts crucial to an immuni- ty determination.”)). The Second Circuit has instructed “that generally a plaintiff may be allowed limited discovery with re- spect to the jurisdictional issue; but until [plaintiff] has shown a reasonable basis for assuming jurisdiction, she is not entitled to any other discovery.” First City, 150 F.3d at 176-77 (quoting Filus v. Lot Polish Airlines, 907 F.2d 1328, 138382 (2d Cir. 1990)). Still, the Plaintiffs must allege sufficient facts to warrant jurisdictional discovery. Robinson, 269 F.3d at 146 (it- ing Jazini v. Nissan Motor Co., 148 F.3d 181, 185 @d Cir.1998) @efusing jurisdic- tional discovery where plaintiffs’ allega- tions lacked factual specificity to confer jurisdiction)); see also Burnett If, 292 F.Supp.2d at 15 (denying Plaintiffs’ re- quest for discovery from Prince Turki where “suggestions of [his] individual ac- tivity are only conclusory”). B. Allegations Against Defendants Asserting Foreign Sovereign Im- munity 1. Prince Sultan Prince Sultan has been Saudi Arabia’s Minister of Defense and Aviation and In- spector General of its Armed Forces since 1962. Ashton Complaint 1265; Burnett Complaint 1352; Federal Complaint { 427; William H. Jeffress, Jr. Decl. 14 at Notice of HRH Prince Sultan Bin Abdulaziz Al- Saud’s Motion to Dismiss Consolidated Complaint (hereinafter “Consolidated Jef- fress Decl.”); Andrea Bierstein Aff. in Opp. to Prince Sultan’s Motion to Dismiss Consolidated Complaints Ex. 1, Sultan Bio, available at http://saudiembassy.net/Coun- try/Government/SultanBio.asp. In 1982, his brother King Fahd bin Abdulaziz Al- Saud named him Second Deputy President of Saudi Arabia’s Council of Ministers, the Kingdom’s governing body. Nizar Bin HOUSE_OVERSIGHT_017848