have already made that inquiry and come up with nothing. See FSIA
Interrog. No. 12 at 18 (answering that OE AG has not funded any marketing
or advertising effort in the United States, except that OE AG makes its
Internet home page, which mentions tourism, available in
English)(emphasis added). Plaintiffs now request depositions "to test [OE
AG's] conclusory assertions [regarding funds given to TT]." Pl. Opp'n. at
10. As noted earlier, Judge Katz has closed jurisdictional discovery, see
10/23/01 Katz Order, and there is no assertion that Judge Katz acted
erroneously or contrary to law. See PKFinans, 1996 WL 675772, at *1.
Plaintiffs' final argument for the commercial activity exception relies
on the fact that OE AG markets and sells American Depository Receipts
(ADRs) to investors in the United States. However, this argument fails
because plaintiffs' suit is certainly not based on that activity. The
deaths in Austria are no more based on that capital-raising activity than
they are on the leasing transactions.
B. Rule 56 Versus Rule 12
OE AG's motion is to be treated as a motion to dismiss rather than as a
motion for summary judgment. Because the parties have submitted
evidentiary materials outside of the pleadings on which to assist the
court in deciding this issue, plaintiffs beseech this Court to consider
OE AG's motion as one for summary judgment in the hope that the Court
will then allow plaintiff additional discovery. It is well-established
that a district court may refer to evidence outside the pleadings to
resolve a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1). See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000); Zappia Middle East Construction Co. v. Emirate of Abu Dhabi,
215 F.3d 247, 253 (2d Cir. 2000); Sheahan v. Brady, 866 F. Supp. 770, 771
(S.D.N.Y. 1994). A party may seek limited discovery on the issue of
jurisdiction. See Filus, 907 F.2d at 1332. Plaintiffs' strategy in
requesting jurisdictional discovery, then pointing to the court's
consideration of it as grounds for converting the motion into one for
summary judgment in order to obtain further discovery, fails if the limit
on jurisdictional discovery is to have any meaning.
C. Motion to Dismiss
1. Legal Standard
Dismissal of a complaint for failure to state a claim pursuant to Rule
12(b)(6) is proper only where "`it appears beyond doubt that the
plaintiff[s] can prove no set of facts in support of [their] claim that
would entitle [them] to relief.'" ICOM Holding, Inc. v. MCI Worldcom,
Inc., No. 00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting
Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the
Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to
prevail ultimately, but whether the claimant is entitled to offer evidence
to support the claims. Indeed it may appear on the face of the pleading
that a recovery is very remote and unlikely but that is not the test.'"
Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quotation marks omitted)).
The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to
assess the legal feasibility of the complaint, not to assay the weight of
the evidence which might be offered in support thereof.'" Sims, 230 F.3d
at 20 (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quotation marks omitted)).
To rule properly on a Rule 12(b)(6) motion, the court must accept as
true all material facts alleged in the complaint and
draw all reasonable
inferences in the nonmoving party's favor.*fn15 See ICOM Holding, 2001
WL 46675, at *1. Nevertheless, "[t]o survive a motion to dismiss,
[plaintiffs'] claims must be `supported by specific and detailed factual
allegations' not stated `in wholly conclusory terms.'" Friedl v. City of
New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
The Court is under no obligation to accept conclusory allegations as
true, see Friedl, 210 F.3d at 85-86, and may instead find jurisdictional
facts. See, e.g., Robinson v. Government of Malaysia, No. 00-7730, 2001
WL 1239708, at *11 (2d Cir. Oct. 11, 2001) (Sotomayor,
concurring)(explaining that when a plaintiff alleges that a foreign state
waived its immunity and defendant contests that allegation in a Rule
12(b)(1) motion, "[t]he district court would then have to resolve [the]
issue of fact as a jurisdictional matter."). Plaintiffs allege that
defendant OE AG owned and controlled the train and tunnel at the time of
the accident. See Compl. ¶ 13. OE AG's Annual Report indicates that
GBK owned and controlled the train and tunnel. See Annual Report at 37;
see also Compl. ¶ 13 (stating same); Pl. Mot. at 2 (same).
Plaintiffs appear to argue that because OE AG owns a controlling share of
GBK, OE AG also owns and controls the train and tunnel. See id. Because
the plaintiffs do not argue that OE AG is the alter ego of GBK, OE AG did
not own or control the train or tunnel. In fact, plaintiffs have offered
nothing to show that OE AG acted as the alter ego of any of its
subsidiaries. Without that showing, plaintiffs may not pierce the
corporate veil to hold OE AG liable for any tort committed by its
subsidiaries AHP, TT, or GBK.*fn16
The Court accepts as true, for the purposes of this motion, that the
tunnel was of inadequate width, lighting, ventilation, escape routes,
emergency equipment, fire precautions, et cetera, that the train was
defectively designed, built, constructed and maintained, and that it also
suffered from numerous defects such as inadequate safety equipment. See
Compl. ¶¶ 38-40. The Court also accepts that if there had been proper
exits in the train and adequate routes for escape from the tunnel, that
one or all of plaintiffs' decedents would have survived. Id. ¶ 59.
Finally, the Court accepts as true plaintiffs' allegations that the
families of the victims have suffered increased grief due to OE AG's
frustration of their investigation, and lack of concern and compassion.
Id. ¶¶ 64-66.
Even if plaintiffs can prove negligence,*fn17 OE AG is still immune
Plaintiffs have not sustained their burden of showing that OE
AG has waived immunity under either section 1605(a)(1) or 1605(a)(2) of
OE AG's motion to dismiss is hereby granted for lack of subject matter
jurisdiction. All additional requests for jurisdictional discovery as to
OE AG are hereby denied.