November 5, 2004, when the Court heard

782 November 5, 2004, when the Court heard oral argument from the Kingdom of Saudi Arabia in its motion to dismiss the Federal Insurance complaint. I. Subject Matter Jurisdiction Under the FSIA [2-4] Under the FSIA, a foreign state and its instrumentalities are presumed im- mune from United States courts’ jurisdic- tion. Saudi Arabia v. Nelson, 507 US. 349, 355, 1138 S.Ct. 1471, 128 L.Ed.2d 47 (1993); 28 U.S.C. §§ 1602-1607. The FSIA’s exceptions to immunity provide the sole basis for obtaining subject matter ju- risdiction over a foreign state and its in- strumentalities in federal court. Argen- tine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); Robinson v. Gov't of Malaysia, 269 F.3d 133, 188 (2d Cir.2001). Federal courts must inquire at the “threshold of every action” against a for- eign state whether the exercise of its juris- diction is appropriate. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). A. Standard of Review [5,6] In a Rule 12(b)() motion to dis- miss challenging subject matter jurisdic- tion under the FSIA, “the defendant must first ‘present a prima facie case that it is a foreign sovereign.’” Virtual Cowntries v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.2002) (quoting Cargill Intl S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993)). In response, the plaintiff must present evidence that one of the statute’s exceptions nullifies the immunity. Virtual Countries, 300 F.3d at 241 (“Determining whether this burden is met involves a ‘review of the allegations in the complaint, the undisputed facts, if any, 15. The parties have agreed that resolution of this motion will also apply to Vigilant Insur- 349 FEDERAL SUPPLEMENT, 2d SERIES placed before the court by the parties, and—if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue—resolution of dis- puted issues of fact.’”) (citing Robinson, 269 F.3d at 141); Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F.Supp.2d 277, 287 (S.D.N.Y.2001D (explaining plaintiff may “rebut the pre- sumption of immunity ... by proffering evidence of record that the defendant un- dertook certain activities that fall within the scope” of one of the statutory excep- tions) (citing Drexel Burnham Lambert Group Inc. v. Comm. of Receivers for A.W. Galadari, 12 F.3d 317, 325 (2d Cir. 1993)). In challenging this Court’s sub- ject matter jurisdiction, the moving Defen- dants retain the ultimate burden of per- suasion. Virtual Countries, 300 F.3d at 241 (citing Cargill, 991 F.2d at 1016); Robinson, 269 F.3d at 141 n. 8 (noting defendant’s burden must be met with a preponderance of the evidence). [7] Defendants may “challenge either the legal or factual sufficiency of the plain- tiff’s assertion of jurisdiction, or both.” Robinson, 269 F.3d at 140 (citations omit- ted). “If the defendant challenges only the legal sufficiency of the plaintiffs juris- dictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.’ Jd. Ginternal quotations and citations omitted); Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000). “But where evidence relevant to the jurisdictional question is before the court, ‘the district court ... may refer to that evidence.’ ” Robinson, 269 F.3d at 140 (quoting Maka- rova v. United States, 201 F.3d 110, 118 (2d Cir.2000)); see also Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 ance v. Kingdom of Saudi Arabia, 03 Civ. 8591(RCC). HOUSE_OVERSIGHT_017847