to the jurisdiction of this Court pursuant to the commercial
activity exception of the FSIA. The Court cannot agree.
The first clause of § 1605(a)(2) does not confer subject matter
or personal jurisdiction over foreign states simply by virtue of
the fact that they do unrelated continuing business in the United
States. See Vencedora Oceanica Navigacion S.A. v. Compagnie
Nationale Algerienne de Navigation, 730 F.2d 195, 202 (5th Cir.
1984); see also Barkanic v. General Admin. of Civil Aviation of
the Peoples Republic of China, 822 F.2d 11, 13 (2d Cir.), cert.
denied, 484 U.S. 964, 108 S.Ct. 453, 98 L.Ed.2d 393 (1987)
(expressly approving of the Vencedora Court's analysis);
Harris v. VAO Intourist, Moscow, 481 F. Supp. 1056, 1061
(E.D.N.Y. 1979) ("doing business" in the United States is not
sufficient under clause one of Section 1605(a)(2) to confer
jurisdiction over a foreign state). For this Court to exercise
jurisdiction over the foreign state under the FSIA, the
"commercial activity carried on in the United States by a foreign
state" must itself have substantial contacts with the cause of
action. Thus, in considering whether the claim against a foreign
state is "based upon" a commercial activity carried on in the
United States by the foreign state, the Second Circuit has
required that there be a "nexus" between the foreign state's
activity in the United States and the plaintiff's grievance.
Barkanic, 822 F.2d at 13 (finding nexus between plaintiffs'
grievances and defendant's activity in the United States from the
fact that plaintiffs had purchased their passenger tickets from a
travel agency in Washington D.C.); Darby v. Compagnie Nationale
Air France, 769 F. Supp. 1255, 1265 (S.D.N.Y. 1991) (to satisfy
the first clause of Section 1605(a)(2), courts require a nexus
between the commercial activity in the United States and the
cause of action).
This action is not based upon any commercial activity carried
on by Ente Ferrovie in the United States. Mrs. Casalino purchased
her rail ticket in Milan for transportation on a train operated
by defendant Ente Ferrovie within the borders of Italy. Her
alleged injuries were sustained while a passenger on that
domestic journey in Italy. The fact that plaintiff could have
purchased her ticket from an alleged agent of defendant in New
York does not establish any particular tie between Ente
Ferrovie's activities in the United States and the alleged
injuries sustained by plaintiff in Italy.*fn3
The second commercial activity exception to sovereign immunity
permits a court of the United States to exercise personal and
subject matter jurisdiction over a foreign state if the action is
based upon "an act performed in the United States in connection
with a commercial activity of a foreign state elsewhere."
28 U.S.C. § 1605(a)(2). Because all of the alleged negligent acts of
Ente Ferrovie were performed in Italy, this exception is
inapplicable and cannot serve as a basis for subject matter
jurisdiction over this action. Cf. Harris, 481 F. Supp. at 1061
(second clause of Section 1605(a)(2) not applicable where the
allegedly negligent conduct took place in the Soviet Union).
The third clause of section 1605(a)(2) deals with actions
arising from acts outside the United States with a "direct
effect" within the United States. Courts considering a claim for
personal injuries sustained in a foreign state have consistently
held that the continued physical suffering and consequential
damages that persisted once the plaintiff returned to the United
States did not meet the Act's requirement of "a direct effect in
the United States." See Martin v. Republic of South Africa,
836 F.2d 91, 95 (2d Cir. 1987) (no "direct effect" where injury
occurred in South Africa,
causing American citizen to return to United States permanently
disabled and subject to continuing medical care); see also
Zernicek v. Brown & Root, Inc., 826 F.2d 415 (5th Cir. 1987),
cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 862
(1988); Darby v. Compagnie Nationale Air France, 769 F. Supp. 1255,
1265-66 (S.D.N.Y. 1991); Close v. American Airlines,
Inc., 587 F. Supp. 1062, 1065 (S.D.N.Y. 1984); Upton v. Empire
of Iran, 459 F. Supp. 264, 266 (D.D.C. 1978), aff'd mem.,
607 F.2d 494 (D.C.Cir. 1979). Similarly, that clause is not satisfied
here where as a result of the alleged negligent acts of Ente
Ferrovie in Italy, plaintiff has been obliged to endure physical
suffering and medical expenses after her return to the United
States. The "direct" effects of the defendant's alleged negligent
conduct are Mrs. Casalino's injuries, which occurred outside the
United States. "Any pain and pecuniary loss plaintiffs suffer in
the United States are indirect consequences of the accident in
[Italy]." Tucker v. Whitaker Travel, Ltd., 620 F. Supp. 578, 586
(E.D.Pa. 1985), aff'd mem., 800 F.2d 1140 (3d Cir.), cert.
denied, 479 U.S. 986, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986).
The Court concludes that the instant action comes within none
of the clauses of the "commercial activities" exception to
sovereign immunity. Plaintiffs do not suggest that they are able
to assert jurisdiction under any of the alternative exceptions to
sovereign immunity. Accordingly, this Court lacks subject matter
and personal jurisdiction over the defendant, Ente Ferrovie.
For the foregoing reasons, the motion to dismiss is granted.