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December 27, 2002


The opinion of the court was delivered by: Berman, District Judge.


I. Introduction

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 § 8-107 ("NYCHRL").*fn1

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.

II. Standard of Review

"[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)).

III. Analysis

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.

Plaintiff argues that the "commercial activity" exception to the FSIA applies here.*fn3 TMG "should not be permitted to claim the protections afforded by the FSIA" because TMG engaged in "patently commercial activity" in New York, and Plaintiff engaged, in part, in "purely commercial activities." Plaintiffs Opposition at 14. Plaintiff alleges that, among other things, she "promoted Japanese products, attended trade shows, . . . [and] engaged in sales activities" in New York. Id. at 11-12. Defendants respond that "TMG is immune under the FSIA because it is indisputable that Kato [Plaintiff] is a Japanese civil servant," Defendants' Motion at 2, and "[c]lassification of an individual as a civil servant is determinative of the issue regardless of the tasks being performed." Id. at ...

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