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March 27, 2001


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.


Plaintiff Rajaa Al Mukaddam ("Mukaddam") was employed by the defendant Permanent Mission of Saudi Arabia to the United Nations (the "Mission") for over 14 years. Plaintiff contends that she was wrongfully terminated by defendant in April 1998 following a pattern of harassment and gender discrimination that began in 1996. She asserts claims of wrongful termination and retaliation under Title VII of the Civil Rights Act of 1964*fn1 and the New York State Human Rights Law ("NYSHRL").*fn2 Defendant moved to dismiss on the grounds that it is immune from suit in the United States pursuant to the Foreign Sovereign Immunities Act ("FSIA")*fn3 and that the mission is not an "employer" for purposes of Title VII or the NYSHRL. The Court denied the motion in a memorandum opinion dated September 8, 2000, familiarity with which is assumed.*fn4 Defendant now moves (1) for reconsideration (2) to supplement the record, and (3) in the alternative, for certification for interlocutory appeal the denial of the motion to dismiss on the ground that the mission is not an "employer" under the applicable laws.


Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York authorizes the filing of a motion for reconsideration or reargument when counsel believes there are "matters or controlling decisions which . . . the court has overlooked." *fn5 In order to obtain reargument, a party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion."*fn6 Local Rule 6.3 does not invite reargument of issues that have been considered fully by the court.*fn7 Nor does a motion under Rule 6.3 serve as a vehicle in which to advance arguments that the movant failed to make on the underlying motion. The movant therefore "may not advance new facts, issues or arguments not previously presented to the court."*fn8

Defendant moves for reconsideration and dismissal on the grounds that this Court (1) failed to apply the proper standard of proof for motions to dismiss for lack of subject matter jurisdiction; (2) overlooked "factual matters" in its analysis of plaintiff's employment contract and plaintiff's statements prior to being represented by counsel; and (3) overlooked statutes and regulations in its analysis of whether plaintiff was a "civil servant" for purposes of the FSIA.

A. Standard of Proof

Defendant argues that a party asserting subject matter jurisdiction in response to a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction has the burden of proving the jurisdictional facts by a preponderance of evidence and that the court accordingly may make a jurisdictional determination with reference to evidence outside the pleadings, including affidavits and, if necessary, testimony obtained at an evidentiary hearing. Defendant, however, fails to understand the importance of the procedural context in which the jurisdictional issue has been raised in this case.

In Ball v. Metallurgie Hoboken-Overpelt, S.A.*fn9 the Second Circuit held that a plaintiff's burden of proof in a jurisdictional challenge "varies depending on the procedural posture of the litigation." The Court explained:

"Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith . . . legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff's prima facie showing may be established solely by allegations. After discovery, the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant. . . . At that point, the prima facie showing must be factually supported."*fn10

It noted that a plaintiff's averment of jurisdictional facts may be countered either in a Rule 12(b) motion,*fn11 a Rule 56 motion, or by a request for an adjudication of disputed jurisdictional facts, and that the burdens of proof at the different procedural stages vary accordingly. "If the defendant is content to challenge only the sufficiency of the plaintiff's factual allegation, in effect demurring by filing a Rule 12(b)(2) motion, the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction." If the defendant proceeds on Rule 56 motion the Court must determine "if undisputed facts exist to warrant the relief sought." Finally, "if the defendant contests the plaintiff's factual allegations, then a hearing is required, at which the plaintiff must prove the existence of jurisdiction by a preponderance of the evidence."*fn12

This Court's September 8 ruling discussed the evidentiary standard in Rule 12(b) motions generally rather than focusing specifically on the standard for Rule 12(b)(1) motions asserting lack of jurisdiction. Nevertheless, the correct standard was applied. Defendant sought dismissal on the complaint alone. It submitted no evidence. The Court therefore considered only the complaint and a document effectively incorporated in it, plaintiff's employment contract. In those circumstances, defendant's motion assumed the truth of plaintiff's allegations and all inferences reasonably drawn from them. In denying the motion, the Court did no more than hold that it could not exclude at the pleading stage the possibility that plaintiff might prove facts establishing jurisdiction. That is all that was required. Of course, the burden of proving facts sufficient to establish subject matter jurisdiction always rests with its proponent.

B. Plaintiff's Prior Statement and the Employment Contract

The Court did not overlook Mukaddam's statement, made in a memorandum of law filed pro se, that she was a civil servant, or the provision in her employment contract calling for disputes arising thereunder to "be referred to the General Directorate of Civil Service Commission in the kingdom of Saudi Arabia."*fn13 While both points are relevant, they are not conclusive. It is well established that an admission in a pleading, once withdrawn, is merely evidence of the facts ...

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