1 United States Court of Appeals,

Fifth Circuit.

No. 93-7647.

Dennis MORAN, Plaintiff-Appellant,

v.

The KINGDOM OF SAUDI ARABIA, et al., Defendants-Appellees.

July 29, 1994.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Dennis Moran ("Moran") appeals the district court's

granting of The Kingdom of Saudi Arabia's ("Saudi Arabia") motion

to dismiss Moran's complaint pursuant to F ED .R.C IV .P. 12(b)(1). The

motion was predicated upon lack of subject matter and personal

juri sdiction under the Foreign Sovereign Immunities Act of 1976

("FSIA" ), 28 U.S.C. § 1602, e t seq. The court dismissed Moran's

complaint, finding that none of the exceptions to the FSIA applied

to t he facts of the case, and that Saudi Arabia was therefore

immune from the court's jurisdiction. WE AFFIRM.

FACTS AND PROCEDURAL HISTORY

On December 21, 1987 Master Sergeant Al-Shareef ("Al-Shareef")

was driving an automobile owned by Master Sergeant Al-Qahtani ("AlQahtani") on Keesler Air Force Base ("Kee sler") in Biloxi,

Mississippi when he apparently failed to yield the right of way in

disregard of the traffic signal at an intersection and struck the

side of ano ther automobile driven by Moran, a civilian barber2

emp loyed at Keesler by the United States Department of Defense.

Moran was ser iously injured in the accident, having suffered

permanent injuries to his head, neck and back.

Both Al-Shareef and Al-Qahtani are airmen in the Royal Saudi

Arabian Air Force temporarily assigned to Keesler by the Saudi

Arabian Air Force to receive air traffic controller t raining

pursuant to a contract that Saudi Arabia had entered into with the

United States Air Force. At the time of the accident, Al-Shareef

was driving from his dormitory to the base hosp ital in order to

make a doctor's appointment for an alleged "p ersonal illness,"

which had been scheduled during a break from his training classes

that day. By virtue of their assignment to Keesler, Al-Shareef and

Al-Qah tani were entitled to receive medical benefits and health

care at the base hospital, although they we re instructed during

their orientation at Keesler to schedu le "routine" doctor

appointments during non-training hours.

Al-Shareef and Al-Qahtani were authorized to own personal

vehicles, but they were instructed that if they chose to do so they

were required to maintain insurance and to agree to obey base

traffic laws and regulations. Al-Shareef and Al-Qahtani obtained

automobile insurance and license tags, and each contributed his own

money to pay for the automobile expenses. Neither the United

States nor the Sa udi Arabian government ever reimbursed them for

the purchase price of the automobile or for any expenses relating

to it. Both Al-Shareef and Al-Qahtani used the automobile for

personal reasons.1 The district court also dismissed Moran's claims against

the United States Department of the Air Force and the Secretary

of Defense. However, Moran does not seek appeal on that ruling.

3 Moran filed suit against the United States Department of the

Air Force, the United States Secretary of Defense, Saudi Arabia,

Al-Shareef and Al-Qahtani based on personal injury an d other

related claims arising out of Al-Shareef's negligen t failure to

obey traffic signals and Al-Qahtani's negligent entrustment of his

vehicle to Al-Shareef. Moran further alleged that Saudi Arabia was

liable under the doctrine of respondeat superior for the negligence

of Al-Shareef and Al-Qahtani. After allowing discovery on the

jurisdictional issue, the district court dismissed the complaint

against Saudi Arabia pursuant to Rule 12(b)(1) for lack of subject

matter and personal jurisdiction, denying Moran's request for an

evidentiary hearing. 1 The court found that none of the exceptions

to the Foreign Sovereign Immunities Act applied to the facts of the

case, and that Saudi Arabia was therefore immune from the court's

jurisdiction.

STANDARD OF REVIEW

We review de novo the district court's granting of Saudi

Arabia's motion to dismiss for lack of subject matter and personal

jurisdiction due to Saudi Arabia's immunity under the FSIA. W alter

Fuller Aircraft Sales v. Rep. of Philippines, 965 F.2d 1375, 1383

(5th Cir.1992). The court's denial of an evidentiary hearing is

subject to an abuse of discretion standard of review. W ichita

Falls Office Associates v. Banc One Corp., 978 F.2d 915, 918 (5th

Cir.1992), cert. denied,

--- U.S. ----, 113 S.Ct. 2340, 124 L.Ed.2d4

251 (1993). The court's factual determinations may be set aside

only if clearly erroneous. Villar v. Crowley Maritime Corp., 990

F.2d 1489, 1497 (5th Cir.1993), cert. denied,

--- U.S. ----, 114

S.Ct. 690, 126 L.Ed.2d 658 (1994).

JURISDICTIONAL IMMUNITY UNDER THE FSIA

The general rule under the FSIA is that foreign states are

immune from the jurisdiction of the United States Courts. 28

U.S.C. § 1604 (1994). However, a district court can exercise

subject matter jurisdiction over a foreign state if one of the

statute's exceptions apply. I d. The foreign state bears the

burden of persuasion on the issue of immunity under the FSIA, but

once a prima facie showing of immunity has been made, the plaintiff

seeking to litigate in the district court bears the burden of

coming forwar d with facts showing that an exception applies.

Walter Fuller Aircraft Sales, 965 F.2d at 1383.

Moran contends that the district court erred in dismissing his

c omplaint for lack of subject matter and personal jurisdiction

because the disputed jurisdictional facts concerning immunity under

the FSIA were inextricably intertwined with the merits of

respondeat superior liability alleged in his claim. He argues that

the district court erroneously applied a 12(b)(1) standard to

resolve the jurisdictional issue on the basis of facts dispositive

of the merits as well as the jurisdictional issue, and that instead

the court should have applied a summary judgment standard. Because

the affidavits submitted to the court contained disputed facts, the

application of the summary judgment standard would have resulted in2 853 F.2d 445, 450 (6th Cir.1988).

5 the court's denial of Saudi Arabia's motion to dismiss.

The Sixth Circuit has been the only circuit thus far to

resolve the is sue of the standard to be applied by the district

court in resolution of the issue of jurisdictional immunity under

the FSIA. In Gould, Inc. v. Pechiney Ugine Kuhlmann, 2 the Court

reasoned that because sovereign immunity under the FSIA is immunity

from suit, not just from liability, "postponing the determination

of subject matter jurisdiction until some point during or after

trial would be inappropri ate." G ould, 853 F.2d at 451. Indeed,

this Court has previously held that immunity under the FSIA is

effectively lost if a case is permitted to go to trial. See S tena

Reder i AB v. Comision de Contratos del Comite Ejecutivo General,

923 F.2d 380, 385 (5th Cir.1991).

A F ED .R.C IV .P. 12(b)(1) motion for lack of subject matter and

personal jurisdiction must be considered by the d istrict court

before other challenges "since the court must find jur isdiction

before determining the validity of a claim." G ould, 853 F.2d at

450, citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90

L.Ed. 939 (1946). When a party challenges subject matter

jurisdiction, the court is given the authority to resolve factual

disputes, along with the discretion to devise a method for making

a determination with regard to the jurisdictional issue. See L and

v. Dollar, 330 U.S. 731, 735 and n. 4, 67 S.Ct. 1009, 1011 and n.

4, 91 L.Ed. 1209 (1947); see also Williamson v. Tucker, 645 F.2d

404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 706

L.E d.2d 212 (1981). The court's authority to consider evidence

presented beyond the pleadings allows it to devise a procedure

which may include considering affidavits, allowing further

discovery, hearing oral testimony, conducting an evidentiary

hearing. See G ould, 853 F.2d at 451. If the court chooses to

allow additional discovery, it should be limited to only that which

is necessary to determine the prelim inary jurisdictional issue.

Id.

In reviewing Saudi Arabia's 12(b)(1) motion to dismiss, the

district court devised a procedure allowing a dditional limited

discovery on the issue of jurisdictional immunity under the FSIA.

After discovery was complete, th e district court considered the

allegations of the complaint along with the evidence produced

during discovery including: Moran's affidavit, Al-Shareef's

declaration and a witness's deposition. Therefore, we find that

the district court did not err in applying a 12(b)(1) standard in

determining the jurisdictional immuni t y issue under the FSIA.

Further, the district court did not abuse its discretion in denying

Moran's request for an evidentiary hearing. A court "may" consider

oral evidence along with written, but an evidentiary hearing is not

required. W illiamson, 645 F.2d at 413. The court's consideration

of the availability of Al-Shareef and Al-Qahtani to testify, having

already returned to Saudi Arabia, and the ample written evidence

before the court support its decision to deny Moran's request for

an evidentiary hearing.

TORTIOUS ACTIVITY EXCEPTION3 The "tortious activities" exception provides in pertinent

part:

(a) A foreign states shall not be immune from the

jurisdiction of the courts of the United States or of

the States in any case—

(5) ... in which money damages are sought against a

foreign state for personal injury or death, or damage

to or loss of property, occurring in the United States

and caused by the tortious act or omission of that

foreign state or of any official or employee of that

foreign state while acting within the scope of his

office or employment....

28 U.S.C. § 1605(a)(5) (1994).

7 Moran asserts that the "tortious activities" exception to the

general rule of immunity under the FSIA applies in this case. This

exception provides that a foreign state is not immune from suit

where money damages are sought for losses of property or personal

injury caused by the tortious acts or omissions of its officers or

employees. D e Sanchez v. Banco Central De Nicaragua, 770 F.2d

1385, 1398 (5th Cir.1985). 3 However, a foreign state does not lose

its presumed immunity from jurisdiction merely because one of its

officers or employees commits a tortious act or omission. The

exception can only be met if the officer or employee of the foreign

state was acting within the scope of his employment at the time he

committed the tortious act or omission. L iu v. Republic of China,

892 F.2d 1419, 1425 (9th Cir.1989), cert. dismissed, 497 U.S. 1058,

111 S.Ct. 27, 111 L.Ed.2d 840 (1990). Therefore, the "scope of

employment" provision of the "tortious activity" exception requires

a finding that the doctrine of respondeat superior applies to the

tortious act or omission committed by the officer or employee of8

the foreign state. I d., citing Joseph v. Office of Consulate

G eneral of Nigeria, 830 F.2d 1018, 1025 (9th Cir.1987), cert.

denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988).

The district court properly applied Mississippi law in

determining whether, at the time of the accident, Al-Shareef's act

of driving to the hospital on Keesler for a doctor's appointment

was within the scope of his employment as required by the "tortious

activity" exception under the FSIA. State law, not federal common

law, governs whether an o fficer's or employee's action is within

the scope of employme nt in determining the applicability of the

FSIA. F irst Nat'l City Bank v. Banco Para el Comercio Exterior de

Cuba, 462 U.S. 611, 622 n . 11, 103 S.Ct. 2591, 2598 n. 11, 77

L.Ed.2d 46 (1983); L iu, 892 F.2d at 1425. Under Mississippi law,

a determination that an employee's conduct falls within the scope

of employment under the doctrine of respondeat superior requires a

finding that the cond uct was performed "incident to the ultimate

purpose which constitutes [the employee's] job." M arter v. Scott,

514 So.2d 1240, 1242 (Miss.1987).

Moran argues that Al-Shareef's act of driving to the base

h ospital during duty hours to receive medical attention was

incidental to his training assignment because he was assisting his

employer by ensuring he would be able to perform his duty to attend

training classes. At the time of the accident, he had a duty to

obey military regulations on base, including traffic signals.

Therefore , his trip to the base hospital during normal training

hours constituted, at most, a minor deviation which did not take9

his actions outside the scope of his employment.

Acting on its aut hority to resolve disputed facts, the

district court found that at the time of the accident Al-Shareef

was driving to the hospital on Keesler for personal reasons. The

court's findings contain a detailed accou nt of the substantial

amount of supporting evidence. Therefore, we hold that the

district court's resolution of disputed facts regarding the reason

why Al-Shareef was driving to the hospital on Keesler was not

clearly erroneous. Further, we hold that the district court did

not err in concluding that Al-Shareef's trip to the base hospital

for personal reasons was outside the scope of his employment. AlShareef's duty was to receive training on Keesler, not to make

trips to the base hospital. Even if he was required to seek

medical attention at the time of the accident, he was in control of

all the details surrounding the task assigned: he was free to

choose how to get medical treatment; where to get it; and when to

get it.

CONCLUSION

For the reasons stated above, the judgment of the district

court is AFFIRMED.