Plaintiffs Seek to Pierce Saudi Sovereign Immunity Over 9/11 Allegations Involving Prince Salman and Prince Naif

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 (1 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. J 457; Burnett Compl. J 406; Federal Compl. J 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. J 286; Burnett Compl. J 382; Federal Compl. J 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 WESTLAW 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 [, 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). (1 1 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, ie., not grounded in the social, economic, or political policies of the Kingdom of Saudi Arabia. Terrorist Attacks [. 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 vy. 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. HOUSE_OVERSIGHT_017918