The opinion of the court was delivered by: Scheindlin, District Judge.
This action arises from the alleged wrongful death of
plaintiffs' children and grandchildren in a ski train accident
that occurred in Kaprun, Austria in November 2000. See Kern v.
Oesterreichische Elektrizitaetswirtschaft Ag, 178 F. Supp.2d 367,
367 (S.D.N.Y. 2001). Plaintiffs are suing Gletscherbahnen
Kaprun AG ("GBK"), an Austrian ski resort operator, among other
corporate and individual defendants, seeking compensatory and
punitive damages as well as injunctive relief.*fn1
GBK now moves to dismiss this action pursuant to the Foreign
Sovereign Immunity Act of 1976 ("the Act" or "FSIA"),
28 U.S.C. § 1330(a), 1602-1611, because the Austrian government
indirectly owns a majority of its shares. For the reasons set
forth below, GBK's motion to dismiss is denied.
GBK is a private company that owns the ski resort located on
Kitzsteinhorn Mountain in Kaprun, Austria. See Declaration of
Johann Peter Praauer, Managing Director at GBK ("Praauer Decl.")
¶ 4. It also owns and operates the ski train and tunnel involved
in the accident. See id. Plaintiffs allege that GBK is
responsible for train and tunnel defects that caused the death
of their family members. See 12/21/01 Consolidated Amended
Complaint ¶¶ 98-101. GBK's parent corporation, Oesterreichische
Elektrizitaetswirtschaft AG ("OE AG"), an Austrian power
generation and tourism conglomerate, owns 45% of GBK's
shares.*fn2 See Praauer Decl. ¶ 5. Gemeinde Kaprun
("Village of Kaprun") owns 33.98%. See id.*fn3
A. Rule 12(b)(1) Generally
"The court properly dismisses a case for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate
it." Tasini v. New York Times Co., 184 F. Supp.2d 350, 353
(S.D.N.Y. 2002) (quotations, alterations omitted). Plaintiffs
bear the burden of proving, by a preponderance of the evidence,
that this Court has subject matter jurisdiction over their case.
See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
When faced with a Rule 12(b)(1) motion that contains a factual
challenge, a court may draw jurisdictional facts from the
complaint, affidavits and exhibits submitted by the parties.
See Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d
Cir. 2001); Kline v. Kaneko, 685 F. Supp. 386, 389-90 (S.D.N.Y.
1988). If the defendant challenges only the legal sufficiency of
plaintiffs' jurisdictional allegations, the court must take all
facts alleged in the complaint as true and draw all reasonable
inferences in favor of plaintiffs. See Robinson, 269 F.3d at
140; Tasini, 184 F. Supp.2d 350, at 353; Virtual Countries,
Inc. v. Republic of South Africa, 148 F. Supp.2d 256, 262
(S.D.N.Y. 2001). Although the only challenge here is legal in
nature, defendant's declaration regarding its shareholder
composition is cited because when "evidence relevant to the
jurisdictional question is before the court, the district court
may refer to that evidence." Robinson, 269 F.3d at 140
(quotation marks, citation and alterations omitted).
B. Rule 12(b)(1) in FSIA Context
The FSIA provides the sole basis for a federal court's subject
matter jurisdiction over a suit against a foreign sovereign.
See Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471,
123 L.Ed.2d 47 (1993); Wasserstein Perella Emerging Mkts. Fin.
LP v. Province of Formosa, No. 97 Civ. 793, 2000 WL 573231, at
*1 (S.D.N.Y. May 11, 2000). Subject matter jurisdiction exists
over matters involving foreign states wherever an exception
deprives the foreign state of immunity, or where an
international agreement applies. See 28 U.S.C. § 1330(a). Once
the defendant presents a prima facie case that it is a foreign
state as defined by the Act, 28 U.S.C. § 1603, it is
presumptively immune and the burden shifts to plaintiffs to go
forward with evidence showing that an exception applies. See
Cargill Int'l SA v. MIT Pavel Dybenko, 991 F.2d 1012, 1016 (2d
Cir. 1993); Wasserstein, 2000 WL 573231, at *4. Where
defendant cannot make out a prima facie case that it is a
foreign state, the Act does not apply at all and plaintiffs may
establish that jurisdiction is proper on some other