The opinion of the court was delivered by: William C. Conner, District Judge.
Plaintiffs, Denice Casalino and her husband, Gino Casalino,
bring this action against defendant Ente Ferrovie dello Stato
("Ente Ferrovie"), a foreign corporation created and existing
under the laws of Italy, for injuries sustained by Mrs. Casalino
while a passenger on a train operated by defendant. This motion
is presently before the Court on Ente Ferrovie's motion to
dismiss the Complaint for lack of subject matter jurisdiction and
personal jurisdiction pursuant to Rules 12(b)(1) and 12(b)(2) of
the Federal Rules of Civil Procedure.
Plaintiff Denice Casalino alleges that she sustained personal
injuries, including a fractured right wrist, while a passenger on
a "Super Rapido" train being operated between the cities of
Milan, Italy and Verona, Italy. Complaint at ¶ 7. Mrs. Casalino's
alleged injuries occurred when the train being operated by
defendant "suddenly and without warning, changed tracks" and
entered into a turn at a high rate of speed, causing plaintiff to
fall. Complaint at ¶ 8. The passenger ticket pursuant to which
Mrs. Casalino was travelling at the time of the alleged accident
was purchased at the Milan train station in Italy. See
Deposition of Denice Casalino, dated August 6, 1991, at pp.
19-20, annexed to Tompkins Aff. as Exh. B.*fn1
Defendant alleges that it is a public body created by the
Italian government with its principal place of business in Rome,
Italy and is operated and controlled by the Ministry of
Transport. See Aff. of Dott. Stefano Spinelli, a Manager in the
Legal Department of Ente Ferrovie. Thus, defendant argues that it
is a foreign state within the meaning of the Foreign Sovereign
Immunities Act of 1976 ("FSIA")*fn2 and immune from suit in the
courts of the United States. Plaintiffs contend that while Ente
Ferrovie may be a foreign state as defined in the FSIA, this suit
comes within an exception to sovereign immunity set forth in
Section 1605(a)(2) of the FSIA, because it is based upon a
commercial activity carried on in the United States by Ente
The FSIA is "the exclusive source of subject matter
jurisdiction over all suits involving foreign states or their
instrumentalities." Letelier v. Republic of Chile,
748 F.2d 790, 793 (2d Cir. 1984), cert. denied, 471 U.S. 1125, 105 S.Ct.
2656, 86 L.Ed.2d 273 (1985). A "foreign state" as defined in the
FSIA includes "an agency or instrumentality of a foreign state,"
which is further defined to mean any entity:
(1) which is a separate legal person, corporate or
(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose shares or
other ownership interest is owned by a foreign state
or political subdivision thereof, and
(3) which is neither a citizen of a State of the
United States as defined in section 1332(c) and (d)
of this title, nor created under the laws of any
Plaintiffs do not dispute that Ente Ferrovie is an "agency or
instrumentality of a foreign state" within the meaning of
28 U.S.C. § 1603(b). Thus, if this Court is to exercise jurisdiction
over plaintiffs' claims against Ente Ferrovie, it can do so only
in accordance with the provisions of the FSIA.
According to Section 1604 of the FSIA, "foreign states" are
immune from suit in the courts of the United States unless the
conduct complained of comes within the exceptions enumerated in
28 U.S.C. § 1605 to 1607. See Martin v. Republic of South
Africa, 836 F.2d 91 (2d Cir. 1987); Letelier, 748 F.2d at 793.
Ente Ferrovie argues that the exceptions to sovereign immunity in
the FSIA do not apply to it in this action. Plaintiffs argue that
the "commercial activities" exceptions contained in § 1605(a)(2)
are applicable to the facts of this action.
28 U.S.C. § 1605(a)(2) provides that "a foreign state shall not
be immune from the jurisdiction of courts of ...