Ski Train Fire in Kaprun, Austria On Nov. 11, 2000

• Decision Date: 19 March 2002
• Docket Number: No. MDL No. 1428 (SAS).,MDL No. 1428 (SAS).
• Citation: 198 F.Supp.2d 420
• Parties: IN RE SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000 This Document Relates To: Defendant Gletscherbahnen Kaprun AG
• Court: U.S. District Court — Southern District of New York

198 F.Supp.2d 420

IN RE SKI TRAIN FIRE IN KAPRUN, AUSTRIA ON NOVEMBER 11, 2000

This Document Relates To: Defendant Gletscherbahnen Kaprun AG

No. MDL No. 1428 (SAS).

United States District Court, S.D. New York.

March 19, 2002.

Robert Swift, Martin J. D'Urso, Kohn, Swift & Graf, PC, Philadelphia, PA, Jay J. Rice, Nagel, Rice, Dreifuss & Mazie LLP, Edward D. Fagan, Fagan & Associates, Livingston, NJ, Kenneth Nolan, Christina Frye, Speiser, Krause, Nolan & Granito, New York City, for Plaintiffs.

Robert A. Weiner, McDermott, Will & Emery, New York City, for Defendant.

OPINION AND ORDER

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.¹

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.

I. BACKGROUND

GBK is a private company that owns the ski resort located on Kitzsteinhorn Mountain in Kaprun, Austria. See Declaration of Johann Peter Praäuer, Managing Director at GBK ("Praäuer 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.² See Praäuer Decl. ¶ 5. Gemeinde Kaprun ("Village of Kaprun") owns 33.98%. See id.³

II. LEGAL STANDARD

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.2000).

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

Because "`sovereign immunity is immunity from suit, not just from liability,' a motion to dismiss based on an assertion of foreign sovereign immunity has particular significance because of the necessity of resolving that issue early on if possible." Robinson, 269 F.3d at 141 (quoting Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994)). Sovereign immunity "`is effectively lost if a case is erroneously permitted to go to trial.'" Id. at 142 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (alterations added)).

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. M/T 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 ground.⁴

III. DISCUSSION

A. Introduction

The only issue presented by this motion is whether GBK is an "agency or instrumentality" of a foreign state such that this Court must afford it sovereign immunity. GBK argues that it satisfies the test for agency or instrumentality because it is 45% owned by OE AG, a foreign state, and 33.98% owned by the Village of Kaprun, a political subdivision, for a total of 78.98% ownership by a "foreign state or political subdivision thereof" as required by the Act. 28 U.S.C. § 1603(b).

The dispositive question, therefore, is one of statutory interpretation: whether OE AG (defendant's parent corporation) is a foreign state as the term is used in the definition of agency or instrumentality. See id. § 1603(b); infra Part II.B. In an opinion issued on November 15, 2001, this Court held that OE AG is immune from suit because it is an agency or instrumentality of a foreign state due to Austria's 51% ownership of its shares. See Kern, 178 F.Supp.2d at 373.⁵ Agencies and instrumentalities are treated as "foreign states" under the Act. See 28 U.S.C. § 1603(a); Kern, 178 F.Supp.2d at 373; infra Part II.B. GBK thus contends that a "foreign state" owns 45% of its shares. For the reasons below, this argument is rejected.

B. The Act

The FSIA was enacted in 1976 to "address `the potential sensitivity of actions against foreign states.'" Cargill Int'l, 991 F.2d at 1016 (quoting H.R.Rep. No. 1487, 94th Cong., 2d Sess. 32 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6631). By conferring immunity on foreign states or providing a right to a federal nonjury trial wherever an exception to immunity applies, the Act "aimed `to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation.'" Id. (quoting 1976 U.S.C.C.A.N. at 6634).

"A `foreign state,' except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b)." 28 U.S.C. § 1603(a) (emphasis added). In turn, an "agency or instrumentality" is defined to

mean any entity—(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

Id. § 1603(b) (emphasis added).

Because it is not disputed that GBK meets requirements (1) and (3) of the definition, the debate centers on the second requirement. GBK can only satisfy the second requirement by demonstrating that it is majority-owned by a "foreign state or political subdivision thereof."⁶ Id.

C. "Foreign State" as Used to Define Agency or Instrumentality, a.k.a. the Tiering Issue

There is disagreement among the Circuits on the proper interpretation of "foreign state" as the term is used in the definition of agency or instrumentality. See Patrickson v. Dole Food Co., 251 F.3d 795, 807 (9th Cir.2001) (noting Circuit split on this issue). The Fifth and Seventh Circuits have ruled that section 1603(b)(2)'s reference to "foreign state" includes agencies and instrumentalities.⁷ See Delgado v. Shell Oil Co., 231 F.3d 165, 176 (5th Cir.2000), cert. denied, 532 U.S. 972, 121 S.Ct. 1603, 149 L.Ed.2d 470 (2001); In re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, 96 F.3d 932, 939-41 (7th Cir.1996). Thus, these courts have held that an entity that is owned by an agency or instrumentality is an agency or instrumentality because it is owned by a "foreign state," allowing subsidiaries of state-owned corporations to come within the Act's protection by virtue of indirect, or "tiered," ownership by the actual foreign state.⁸ The Ninth Circuit, on the other hand, has held that section 1603(b)'s use of the term "foreign state" clearly refers to foreign states themselves, not their controlled corporations, thus "limiting an instrumentality to the first tier of ownership: those entities owned directly by the foreign state itself or by a political subdivision." Patrickson, 251 F.3d at 807. See also Gates v. Victor Fine Foods, 54 F.3d 1457, 1461-63 (9th Cir. 1995).

The Second Circuit has yet to rule on this issue. See Lehman Bros., 169 F.Supp.2d at 190 (stating that the Second Circuit had not yet squarely addressed the question); United States Fidelity and Guaranty Co. et al. v. Braspetro Oil...