The opinion of the court was delivered by: Berman, District Judge.
On July 21, 2001, Yuka Kato ("Kato" or "Plaintiff") filed a
complaint ("Complaint") against her employer, the Tokyo
Metropolitan Government ("TMG"), and Shintaro Ishihara
("Ishihara"), the Governor of Tokyo, Japan (collectively,
"Defendants"), seeking damages and declaratory and injunctive
relief for alleged sexual harassment and retaliation, in
violation of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et. seq., as amended, New York State
Human Rights Law, N.Y. Exec. Law § 291 et. seq. ("NYSHRL"),
and the New York City Human Rights Law, N.Y.C. Admin. Code §
On March 28, 2002, Defendants moved to dismiss Plaintiffs
claims ("Defendants' Motion") pursuant to Federal Rule of Civil
Procedure ("Fed.R.Civ.P.") 12(b)(1), 12(b)(2), and 12(b)(6),
arguing, among other things, that (i) "Kato's Title VII claims
arising out of alleged acts that occurred in the United States
are time barred," (ii) "the alleged retaliation occurred outside
of the United States," (iii) "TMG is immune from liability under
the Foreign Sovereign Immunities Act (`FSIA')," (iv) "the
Complaint must be dismissed on the ground of forum non
conveniens," and (v) "claims against Ishihara must be dismissed
for lack of personal jurisdiction." Defendants' Motion at 2-3.
On May 17, 2002, Plaintiff opposed the motion ("Plaintiffs
Opposition") and, on or about July 5, 2002, Defendants filed a
reply ("Defendants' Reply").
For the reasons set forth below, the Court grants Defendants'
Motion to dismiss the Complaint.
"[A] foreign state is presumptively immune from the
jurisdiction of the United States courts; unless a specified
exception applies, a federal court lacks subject matter
jurisdiction over a claim against a foreign state." Saudi
Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471,
123 L.Ed.2d 47 (1993). "On a motion under Fed.R.Civ.P. 12(b)(1),
challenging the district court's subject matter jurisdiction,
the court may resolve disputed jurisdictional fact issues by
reference to evidence outside the pleadings, such as
affidavits." Antares Aircraft, L.P. v. Federal Republic of
Nigeria, 948 F.2d 90, 96 (2d Cir. 1991).
"[A]n employment discrimination complaint . . . must contain
only `a short and plain statement of the claim showing that the
pleader is entitled to relief.'"
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 998,
152 L.Ed.2d 1 (2002) (quoting Fed.R.Civ.P. 8(a)(2)).
A court may dismiss an action pursuant to Rule 12(b)(6) only
if "`it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim which would entitle [her] to
relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957)). The court "must accept the factual
allegations of the complaint as true and must draw all
reasonable inferences in favor of the plaintiff." Bernheim v.
Litt, 79 F.3d 318, 321 (2d Cir. 1996). The issue to be resolved
by the court is not whether the plaintiff will ultimately
prevail on his or her claim; it may, in fact, appear on the face
of the pleadings that a recovery is unlikely. Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
The test is whether or not the plaintiff is entitled to offer
evidence in support of the allegations in his or her complaint.
Id. The Court is "limited to the factual allegations in
plaintiffs . . . complaint, which are accepted as true, to
documents attached to the complaint as an exhibit or
incorporated in it by reference, to matters of which judicial
notice may be taken, or to documents either in plaintiffs
possession or of which plaintiff had knowledge and relied on
in bringing suit." McNulty v. New York City Dep't of Fin.,
941 F. Supp. 452, 453 (S.D.N.Y. 1996) (quoting Brass v. Am. Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
The facts set forth in the Complaint are accepted as true.
A. TMG and Ishihara are Immune from Suit
TMG and Ishihara are immune from suit in the United States.
See 28 U.S.C. § 1604 ("a foreign state shall be immune from
the jurisdiction of the courts of the United States and of the
States"). Under the FSIA, a foreign state and its agencies and
instrumentalities — such as TMG and Ishihara here — are immune
from suit in the United States "absent an express waiver of
immunity or an applicable statutory exception."*fn2 Mukaddam
v. Permanent Mission of Saudi Arabia to the United Nations,
111 F. Supp.2d 457, 463 (S.D.N.Y. 2000); see 28 U.S.C. § 1603.