The opinion of the court was delivered by: Mosman, Judge:
Plaintiff seeks an order directing the Holy See to respond to its jurisdictional discovery requests. See Mem. in Supp. (doc. 240). For the reasons that follow, I find that Plaintiff is entitled to limited jurisdictional discovery related to whether Andrew Ronan was an employee of the Holy See. Plaintiff is not, however, entitled to discovery relating to the Holy See's commercial activities, or its control over the Archdioceses of Portland and Chicago ("Archdioceses"), Religious Superiors, or the Order of the Friar Servants of Mary ("Order").
Plaintiff filed this action against the Holy See and other defendants alleging that he was sexually abused by Father Andrew Ronan, a Catholic priest. Plaintiff asserted various causes of action against the Holy See, including: (1) vicarious liability for Ronan's abuse; (2) vicarious liability for the actions of the Portland Archdioceses and other defendants; (3) direct liability for the Holy See's negligent retention of Ronan, and failure to warn; and (4) fraud. The Holy See moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that as a foreign sovereign, it was immune from federal court jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.§§ 1330, 1604-1611, and neither the "tortious act," nor the "commercial activity" exceptions to sovereign immunity applied. 28 U.S.C. §§ 1605(a)(2) & (5).
In Doe v. Holy See (Holy See I), 434 F. Supp. 2d 925 (D. Or. 2006), I dismissed Plaintiff's fraud claim, but denied the Holy See's motion to dismiss Plaintiff's other claims. I found that the court did not have subject matter jurisdiction under FSIA's commercial activity exception to sovereign immunity, but that the tortious activity exception permitted the court to exercise jurisdiction over Plaintiff's vicarious liability and negligence claims. Id. at 957.
The Ninth Circuit affirmed in part, and reversed in part. The Ninth Circuit confirmed that Plaintiff had sufficiently alleged Ronan was an employee of the Holy See acting within the scope of his employment. Doe v. Holy See (Holy See II), 557 F.3d 1066, 1081-83 (9th Cir. 2009). Accordingly, FSIA's tortious activity exception to sovereign immunity permitted the court to exercise jurisdiction over Plaintiff's vicarious liability claim based on Ronan's conduct. Id. The Ninth Circuit held, however, that Plaintiff failed to state a vicarious liability claim against the Holy See based upon the conduct of the Archdioceses and other defendants because Plaintiff failed to allege that the Holy See exerted day-to-day, routine control over those parties. Id. at 1080. The Ninth Circuit also held that the FSIA's "tortious act exception does not provide jurisdiction over Doe's negligent hiring, supervision, and failure to warn claims because they are barred by the discretionary function exclusion." Id. at 1085. The Ninth Circuit therefore dismissed Plaintiff's vicarious liability and negligence claims based on the conduct of the Archdioceses, the Order, and other defendants.
On September 8, 2010, the Holy See filed a second motion to dismiss, challenging the factual basis for this court's jurisdiction under FSIA.*fn1 The Holy See maintains that it is immune from suit because the discovery provided by other defendants demonstrates that Ronan was not an employee and therefore, FSIA's "tortious act" exception to sovereign immunity does not apply. In light of the Holy See's fact-based challenge to subject matter jurisdiction, Plaintiff seeks a court order directing the Holy See to respond to its jurisdictional discovery requests.
Legal Standard for Jurisdictional Discovery Under FSIA
Foreign sovereign immunity under FSIA "was meant to spare foreign states not only from liability on the merits but also from the cost and inconvenience of trial" and litigation. Peterson v. Islamic Rep. Of Iran, 627 F.3d 1117, 1127 (9th Cir. 2010). In determining whether to permit jurisdictional discovery, the court must be cognizant of the "delicate balance between permitting discovery to substantiate exceptions" to FSIA's grant of sovereign immunity and protecting a sovereign's "legitimate claim to immunity from discovery." Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d 1078, 1088 (9th Cir. 1999), withdrawn on other grounds by 237 F.3d 1007 (9th Cir. 2001) (quotation marks and citation omitted). "To ensure that this balance is preserved, discovery should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination." Alpha Therapeutic, 199 F.3d at 1088 (quotation marks and citation omitted).
Generally, a district court's refusal to allow jurisdictional discovery "will not be reversed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant. Discovery may be appropriately granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary." Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008).
Plaintiff's discovery requests fall into four broad categories. First, Plaintiff seeks information relating to the Holy See's commercial activity and financial dealings in the United States. See Pl.'s Mem. in Supp., at 14-17; Finnegan Decl., Ex. A, Request for Produc. ("RFP") Nos. 32-37, 39; Finnegan Decl., Ex. B, Interrog. ("ROG") Nos. 9-10; Finnegan Decl., Ex. C, Request for Admis. ("RFA") Nos. 20-24; (collectively, "Commercial Activity Requests"). Second, Plaintiff seeks information regarding the Holy See's relationship with, and authority over, the Archdioceses, the Order, and Religious Superiors in the United States. See Pl.'s Mem. in Supp., at 7-8, 10; Finnegan Decl., Ex. A, RFP Nos. 1-7, 14, 23-31, 38, 40-42; Finnegan Decl., Ex. B., ROG Nos. 3, 7-8, 17-18, 20; Finnegan Decl., Ex. C, RFA Nos. 8, 13-14, 17-19, 25-31 (collectively, "Agency Requests"). Third, Plaintiff seeks information regarding the Holy See's right to control individual priests, including Father Andrew Ronan. See Finnegan Decl., Ex. A, RFP Nos. 8-13, 15-22; Finnegan Decl., Ex. B, ROG Nos. 2, 4-6, 11-16, 19; Finnegan Decl., Ex. C, RFA Nos. 1-7, 9-12. 15-16 (collectively, "Employment Requests"). Finally, Plaintiff asks the court to order oral depositions of several current and former officials of the Holy See.
A. Commercial Activity and Agency Requests
Plaintiff is not entitled to discovery relating to the Holy See's commercial activity in the United States because he cannot demonstrate that such discovery is "crucial" to the resolution of the only jurisdictional issue before the court (i.e., whether Ronan was an employee of the Holy See at the time of the abuse). Alpha Therapeutic, 199 F.3d at 1088. In my June 7, 2006 Opinion and Order, I analyzed the statutory text of FSIA and the case law interpreting the commercial activity exception, carefully considered Plaintiff's allegations, and concluded that this court did "not have subject matter jurisdiction under the FSIA commercial activity exception to the Holy See's Sovereign immunity." Holy See I, 434 F. Supp. 2d at 940-42. The Ninth Circuit declined to review that finding under the collateral order doctrine. Holy See II, 557 F.3d at 1075-76. Consequently, this court's ruling is the law of the case and FSIA's tortious activity exception to sovereign immunity is the only basis for exercising jurisdiction in this case. For that exception to sovereign immunity to apply, Plaintiff must demonstrate that Ronan was an employee of ...