Court filing on FSIA and jurisdiction issues in 9/11 survivor lawsuits

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 167 Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005) (18) survivors failed to state cause of ac- tion under ATA against banks; and (19) survivors stated cause of action against bank chairman under ATA. Order accordingly. 1. Federal Courts 157 Although district court would review and give deference to opinion issued by judge of another district court prior to transfer of case by Multidistrict Litigation Panel, district court was required to evalu- ate motions to dismiss on merits de novo, and was bound by Second Circuit law, not District of Columbia law, which was ap- plied by the other district court. 28 U.S.C.A. § 1407; Fed.Rules Civ.Proc.Rule 12(b), 28 U.S.C.A. 2. International Law <-10.38 Under the Foreign Sovereign Immu- nities Act (FSIA), a foreign state and its instrumentalities are presumed immune from United States courts’ jurisdiction. 28 U.S.C.A. § 1602 et seq. 3. International Law ¢>10.31 The exceptions to immunity provided by the Foreign Sovereign Immunities Act (F'SIA) provide the sole basis for obtaining subject matter jurisdiction over a foreign state and its instrumentalities in federal court. 28 U.S.C.A. § 1602 et seq. 4, International Law <>7 A federal court must inquire at the threshold of every action against a foreign state whether the exercise of its jurisdic- tion is appropriate. 5. International Law <-10.38 On a motion to dismiss challenging subject matter jurisdiction under the For- eign Sovereign Immunities Act (FSIA), the defendant must first present a prima facie case that it is a foreign sovereign; in response, the plaintiff must present evi- dence that one of the statute’s exceptions nullifies the immunity. 28 U.S.C.A. § 1602 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(1), 28 ULS.C.A. 6. International Law <-10.38 In challenging the District Court’s subject matter jurisdiction under the For- eign Sovereign Immunities Act (FSIA) on a motion to dismiss, the defendants retain the ultimate burden of persuasion. 28 U.S.C.A. § 1602 et seq.; Fed.Rules Civ. Proc.Rule 12(b)(1), 28 U.S.C.A. 7. International Law 10.38 The District Court must consult out- side evidence if resolution of a proffered factual issue may result in the dismissal of a complaint, pursuant to the Foreign Sov- ereion Immunities Act (FSIA), for lack of jurisdiction. 28 U.S.C.A. § 1602 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. 8. Federal Civil Procedure €—1264 A delicate balance exists between permitting discovery to substantiate ex- ceptions to statutory foreign sovereign im- munity and protecting a sovereign’s or sovereign’s agency’s legitimate claim to immunity from discovery. 28 U.S.C.A. § 1602 et seq. 9. International Law <-10.38 In deciding whether a defendant is entitled to immunity under the Foreign Sovereign Immunities Act (FSIA), the Dis- trict Court gives great weight to any ex- trinsic submissions made by the foreign defendant regarding the scope of his offi- cial responsibilities. 28 U.S.C.A. § 1602 et seq. 10. International Law <-10.33 Director of Saudi Arabia’s Depart- ment of General Intelligence (DGI) was immune from Antiterrorism Act (ATA) suit by survivors of victims of Septem- HOUSE_OVERSIGHT_017832