## Facts

- Numerous civil actions arising from the September 11, 2001 attacks were consolidated in a multidistrict litigation in the Southern District of New York.
- Plaintiffs included victims’ families and estates, injured individuals, and insurers and businesses claiming property and economic losses.
- The moving defendants were the Kingdom of Saudi Arabia (KSA) and the Saudi High Commission for Relief of Bosnia & Herzegovina (SHC), alleged to be a Saudi state instrumentality.
- Plaintiffs alleged KSA and SHC bore responsibility because they supported charities and individuals in ways that foreseeably enabled al Qaeda and related entities before 9/11.
- The principal allegations centered on foreign conduct: funding decisions, oversight failures, and related activities occurring primarily outside the United States.
- Plaintiffs also cited U.S.-based assistance by certain Saudi nationals to some hijackers, but did not allege those persons acted in an official capacity or within the scope of employment for KSA while in the United States.
- After appellate proceedings addressing FSIA immunity and the scope of the noncommercial tort exception, the case returned to the district court to determine whether an FSIA exception supplied subject-matter jurisdiction.
- On remand, KSA and SHC moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction based on FSIA immunity.

## Issues

1. Whether the FSIA noncommercial tort exception, 28 U.S.C. § 1605(a)(5), removed immunity for KSA and SHC for injuries from the September 11 attacks.
2. Whether the “entire tort” requirement for § 1605(a)(5) was satisfied where the alleged tortious acts or omissions by KSA and SHC occurred largely outside the United States, even though the injuries occurred in the United States.
3. Whether alleged U.S.-based acts of private individuals could be attributed to KSA or SHC as acts of officials or employees acting within the scope of office or employment for purposes of § 1605(a)(5).

## Decision

- The court granted KSA’s and SHC’s motions to dismiss for lack of subject-matter jurisdiction.
- The court held KSA and SHC were presumptively immune under the FSIA and plaintiffs failed to establish an applicable statutory exception.
- The court ruled § 1605(a)(5) did not apply because the alleged tortious conduct by KSA and SHC did not occur entirely in the United States.
- The court concluded that alleged assistance in the United States by certain Saudi nationals could not establish the exception because the pleadings did not allege those individuals acted officially for KSA within the scope of employment.
- Because no FSIA exception applied, the court dismissed the claims against KSA and SHC under Rule 12(b)(1).

## Legal Principles

- Under the FSIA, foreign states and their agencies or instrumentalities are immune from suit in U.S. courts unless a statutory exception applies; the plaintiff bears the burden to show an exception.
- The FSIA noncommercial tort exception (§ 1605(a)(5)) permits money-damages claims for personal injury, death, or property damage occurring in the United States and caused by a foreign state’s tortious act or omission by an official or employee acting within the scope of office or employment.
- The § 1605(a)(5) exception requires that the “entire tort” occur in the United States; domestic injury alone is insufficient if the tortious acts or omissions occurred abroad.
- Conduct in the United States cannot be used to invoke § 1605(a)(5) against a foreign state absent allegations tying that conduct to officials or employees acting within the scope of their employment for the foreign state.
- If no FSIA exception applies, federal courts lack subject-matter jurisdiction over claims against the foreign state under 28 U.S.C. § 1330(a).

## Conclusion

The court dismissed claims against KSA and SHC for lack of subject-matter jurisdiction, holding the FSIA’s noncommercial tort exception did not apply because the alleged tortious conduct by those defendants occurred abroad and U.S.-based acts cited by plaintiffs were not pleaded as official, scope-of-employment conduct attributable to the foreign sovereign.


In re Terrorist Attacks on September 11, 2001, 134 F. Supp. 3d 774 (S.D.N.Y. 2015)