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CASALINO v. ENTE FERROVIE DELLO STATO

December 18, 1991

DENICE CASALINO AND GINO CASALINO, PLAINTIFFS,
v.
ENTE FERROVIE DELLO STATO, DEFENDANT.



The opinion of the court was delivered by: William C. Conner, District Judge.

OPINION AND ORDER

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.

BACKGROUND

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 Ferrovie.

DISCUSSION

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
  otherwise, and,
  (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
  third country.

28 U.S.C. § 1603(b).

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. ยง 1605(a)(2) provides that "a foreign state shall not be immune from the jurisdiction of courts of ...


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