diversity requirements, the suit must be dismissed unless all partners
are joined as parties to the suit. HB General, 95 F.3d at 1193. However,
applying the Rule 19(b) factors here, the Court finds that neither KEMYA
nor ECAI is an indispensable party because this Court in equity finds
that any judgment rendered in the party's absence will be adequate and
not prejudicial to such absent parties since each is represented by 50%
partners SABIC and Exxon (as grandparent to ECAI) in this lawsuit.
Furthermore, SABIC will not have an adequate remedy if this action is
dismissed for non-joinder. Neither ECAI or KEMYA will be considered and
added as indispensable parties. Diversity jurisdiction remains.
4. SABIC's Motion to Dismiss the NJ-II Complaint under the Foreign
Sovereign Immunities Act (FSIA)
In NJ-II, SABIC moves to dismiss the complaint claiming immunity as a
foreign state under the Foreign Sovereign Immunities Act,
28 U.S.C. § 1602 et. seq., lack of personal jurisdiction and improper
venue. Alternatively, SABIC argues that the court should abstain from
exercising jurisdiction even if jurisdiction exists. Further, SABIC asks
the Court to dismiss ExxonMobil as a third-party plaintiff because it
lacks standing to assert the third-party beneficiary claims. In the event
that the complaint survives, SABIC contends that the jury demand should
A. Standard of Review
Unlike a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), in a motion to dismiss for lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), no presumption of
truthfulness attaches to the allegations in the complaint and the court
may consider matters outside the pleadings such as affidavits and other
material properly before the court. Mortensen v. First Federal Savings &
Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a Rule 12(b)(1) motion,
"the trial court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case." Mortensen, 549 F.2d at
891. "[T]he existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of jurisdictional
claims. Moreover, the plaintiff will have the burden of proof that
jurisdiction does in fact exist." Id. at 891. The plaintiff must not only
demonstrate that a controversy existed at the time it filed suit but that
it continues to exist throughout the litigation. Spectronics Corp. v.
H.B. Fuller Co., 940 F.2d 631, 635 (Fed. Cir. 1991). A motion to dismiss
for lack of subject matter jurisdiction predicated on the legal
insufficiency of a claim may be granted if the claim "clearly appears to
be immaterial and made solely for the purpose of obtaining jurisdiction
or . . . is wholly insubstantial and frivolous." Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir.), cert. denied,
501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991) (quoting Bell v.
Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
B. Subject Matter Jurisdiction
SABIC contends that this court lacks subject matter jurisdiction under
both of the grounds that Exxon asserts. SABIC argues that this Court
lacks diversity jurisdiction under 28 U.S.C. § 1332 and original
jurisdiction under 28 U.S.C. § 1330, the Foreign Sovereign Immunities
1. Diversity Jurisdiction
As SABIC argues, diversity jurisdiction does not exist in this case.
Section 1332 confers diversity jurisdiction upon "a foreign state,
defined in section 1603(a) of this title, as plaintiff and citizens of a
State or of different States." It is undisputed
that SABIC, an entity of
which approximately 70% is owned by the Kingdom of Saudi Arabia (Al-Ubaid
Decl. ¶ 3), qualifies as a "foreign state" under the definition of
1603(a).*fn13 However, because SABIC is not the party plaintiff, Section
1332 would not confer jurisdiction. (Compl. ¶ 5). See Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 437 n. 5 (1989)
(1976 amendments to § 1332 eliminated diversity jurisdiction over
"foreign state" defendants). As explained by the Supreme Court in
Argentine Republic, "`[s]ince jurisdiction in actions against foreign
states is comprehensively treated by the new section 1330, a similar
jurisdictional basis under section 1332 becomes superfluous.'" Id.
(citing H.R.Rep., at 14, S.Rep., at 13, U.S. Code Cong. & Admin. News
1976, p. 6613).
2. Original Jurisdiction Under the FSIA
SABIC further argues that this Court lacks original jurisdiction over
this matter because of immunities SABIC claims under the Foreign
Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1602 et. seq.
The FSIA "establishes a comprehensive framework for determining whether a
court in this country, state or federal, may exercise jurisdiction over a
foreign state." Republic of Argentina v. Weltover, Inc., 504 U.S. 607,
610, 112 S.Ct. 2160, 2164, 119 L.Ed.2d 394 (1992). The FSIA grants
district courts subject matter jurisdiction over actions against "foreign
states" pursuant to 28 U.S.C. § 1330(a), which provides that
"district courts shall have original jurisdiction without regard to the
amount in controversy of any nonjury civil action against a foreign
state" as to any claim for which "the foreign state is not entitled to
immunity under sections 1605-1607 of this title . . . ." The FSIA
provides the "sole basis" for obtaining jurisdiction over a foreign
sovereign in U.S. state and federal courts. Id.
Section 1604 of the FSIA provides that a foreign state shall be immune
from the jurisdiction of U.S. federal and state courts, unless one of
several statutory exceptions applies. 28 U.S.C. § 1604. When immunity
under the FSIA is contested, the following burden-shifting analysis
should be applied:
[O]nce the defendant presents a prima facie case
that it is a foreign sovereign, the plaintiff has the
burden of going forward with showing that, under
exceptions to the FSIA, immunity should not be
granted, Baglab Ltd. v. Johnson Matthey Bankers Ltd.,
665 F. Supp. 289, 293-4 (S.D.N.Y. 1987), although the
ultimate burden of persuasion remains with the alleged
foreign sovereign. Forsythe v. Saudi Arabian Airlines
Corp., 885 F.2d 285, 289 n. 6 (5th Cir. 1989).
Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W.