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IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
765
tain general jurisdiction over them, all
claims asserted against those individual
defendants are dismissed for lack of personal
jurisdiction.
3. Plaintiffs Are Entitled to Jurisdictional
Discovery as to Privatbank’s
Investing Activities in the United
States
[37] Plaintiffs point out that Privatbank’s
website and its 2001 Annual Report
state that Privatbank engages in transactions
involving securities issued in the
United States. (2001 Annual Report at 3,
attached to Affidavit of Frances E. Bivens
at Exhibit B). There is no allegation that
transactions are related to the claims asserted
here. Accordingly, they are only
relevant to this Court’s determination of
whether the exercise of general jurisdiction
over Privatbank is warranted pursuant
to Rule 4(k)(2) for having such ‘‘continuous
and systematic general business
contacts’’ with the United States. See
Aerogroup Int’l, Inc., 956 F.Supp. at 439.
Because plaintiffs have identified a genuine
issue of jurisdictional fact, the question
of general jurisdiction cannot be resolved
on the pleadings and affidavits
alone. Thus, plaintiffs are entitled to jurisdictional
discovery regarding the extent
of defendant Privatbank’s general business
contacts with the United States in the
years 1992—1998, a period that includes
the relevant period in this action and five
preceding years. See In re Magnetic Audiotape
Antitrust Litig., 334 F.3d at 207–
08; see also, Metropolitan Life Ins. Co., 84
F.3d at 569–70 (holding that the time period
relevant for determining extent of a
defendant’s contacts for general jurisdiction
purpose should include a number of
years prior to the events giving rise to the
claims asserted).
IV. CONCLUSION
For the reasons set forth above, the
Sovereign defendants’ motion to dismiss is
granted in part and denied in part. Plaintiffs’
claims alleging takings in violation of
international law, promissory estoppel, equitable
estoppel, and unjust enrichment—
counts seven, nine, and ten in the complaint—are
hereby dismissed as against
the Sovereign defendants. In addition, the
motion of individual defendants Horath
and Buchmann to dismiss the complaint
for lack of personal jurisdiction is granted
and all claims asserted against those defendants
are hereby dismissed.
Because this Court finds that an issue of
jurisdictional fact exists as to the existence
of general jurisdiction pursuant to Rule
4(k)(2) as to corporate defendant Privatbank,
its motion to dismiss is denied without
prejudice to its renewal pending conclusion
of jurisdictional discovery on that
issue.
,
In re: TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
Burnett v. Al Baraka Inv. & Dev. Corp.
Ashton v. Al Qaeda Islamic Army
Tremsky v. Qsama Bin Laden Salvo v.
Al Qaeda Islamic Army Burnett v. Al
Baraka Inv. & Dev. Corp. Federal Insurance
v. Al Qaida Barrera v. Al Qaeda
Islamic Army Vigilant Insurance v.
Kingdom of Saudi Arabia
Nos. 03 MDL 1570(RCC), 02 CIV. 1616,
02 CIV. 6977, 02 CIV. 7300, 03 CIV.
5071, 03 CIV. 5738, 03 CIV. 6978, 03
CIV. 7036, 03 CIV. 8591.
United States District Court,
S.D. New York.
Jan. 18, 2005.
Background: Survivors, family members,
and representatives of victims of Septem-
766 349 FEDERAL SUPPLEMENT, 2d SERIES
ber 11, 2001 terrorist attacks, as well as
insurance carriers, brought actions against
al Qaeda, al Qaeda’s members and associates,
alleged state sponsors of terrorism,
and individuals and entities who allegedly
provided support to Al Qaeda, asserting
causes of action under Torture Victim Protection
Act (TVPA), Antiterrorism Act
(ATA), Alien Tort Claims Act (ATCA), and
Racketeer Influenced and Corrupt Organizations
Act (RICO), as well as claims for
aiding and abetting, conspiracy, intentional
infliction of emotional distress, negligence,
survival, wrongful death, trespass, and assault
and battery. Actions were consolidated
by Multidistrict Litigation Panel. Various
defendants filed motions to dismiss.
Holdings: The District Court, Casey, J.,
held that:
(1) jurisdictional discovery was warranted
on issue whether Saudi Arabian bank
was immune under Foreign Sovereign
Immunities Act (FSIA);
(2) claims against Saudi Arabia and two of
its officials based on alleged contributions
to charities were not subject to
commercial activities exception of
FSIA;
(3) complaint alleging that Saudi Princes
contributed to charities that supported
al Qaeda failed to allege causal connection
sufficient to satisfy New York
standard for concerted action liability,
for purposes of torts exception of
FSIA;
(4) claims against Saudi Arabian Prince
arising from alleged contributions to
charities were barred by discretionary
function exception to torts exception of
FSIA;
(5) claims against Saudi Arabian Prince
arising from alleged decisions regarding
treatment of Taliban and al Qaeda
leader were barred by discretionary
function exception to torts exception of
FSIA;
(6) claims against Saudi Arabia arising
from alleged decisions to make charitable
contributions were barred by discretionary
function exception to torts
exception of FSIA;
(7) survivors failed to make prima facie
showing necessary to establish personal
jurisdiction over Princes and others
under New York’s long-arm statute;
(8) modified due process standard appropriate
for mass torts would not be
applied to question of personal jurisdiction;
(9) allegations were insufficient to establish
general personal jurisdiction over
Princes;
(10) survivors failed to establish personal
jurisdiction over founder of Saudi
Arabian company;
(11) limited discovery would be permitted
with regard to whether Saudi Arabian
bank’s contacts with United States
were sufficient for exercise of personal
jurisdiction;
(12) survivors failed to establish personal
jurisdiction over director of charity;
(13) jurisdictional discovery was warranted
to determine if Saudi Arabian construction
company purposefully directed
its activities at United States;
(14) jurisdictional discovery was warranted
to determine which of charitable
network’s entities had presence in
Virginia, for purposes of personal jurisdiction;
(15) survivors made prima facie showing
of personal jurisdiction over bank
chairman;
(16) survivors failed to state cause of action
under RICO;
(17) attacks were extreme and outrageous,
as required for intentional infliction of
emotional distress;
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
767
(18) survivors failed to state cause of action
under ATA against banks; and
(19) survivors stated cause of action
against bank chairman under ATA.
Order accordingly.
1. Federal Courts O157
Although district court would review
and give deference to opinion issued by
judge of another district court prior to
transfer of case by Multidistrict Litigation
Panel, district court was required to evaluate
motions to dismiss on merits de novo,
and was bound by Second Circuit law, not
District of Columbia law, which was applied
by the other district court. 28
U.S.C.A. § 1407; Fed.Rules Civ.Proc.Rule
12(b), 28 U.S.C.A.
2. International Law O10.38
Under the Foreign Sovereign Immunities
Act (FSIA), a foreign state and its
instrumentalities are presumed immune
from United States courts’ jurisdiction. 28
U.S.C.A. § 1602 et seq.
3. International Law O10.31
The exceptions to immunity provided
by the Foreign Sovereign Immunities Act
(FSIA) provide the sole basis for obtaining
subject matter jurisdiction over a foreign
state and its instrumentalities in federal
court. 28 U.S.C.A. § 1602 et seq.
4. International Law O7
A federal court must inquire at the
threshold of every action against a foreign
state whether the exercise of its jurisdiction
is appropriate.
5. International Law O10.38
On a motion to dismiss challenging
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA),
the defendant must first present a prima
facie case that it is a foreign sovereign; in
response, the plaintiff must present evidence
that one of the statute’s exceptions
nullifies the immunity. 28 U.S.C.A.
§ 1602 et seq.; Fed.Rules Civ.Proc.Rule
12(b)(1), 28 U.S.C.A.
6. International Law O10.38
In challenging the District Court’s
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA) on
a motion to dismiss, the defendants retain
the ultimate burden of persuasion. 28
U.S.C.A. § 1602 et seq.; Fed.Rules Civ.
Proc.Rule 12(b)(1), 28 U.S.C.A.
7. International Law O10.38
The District Court must consult outside
evidence if resolution of a proffered
factual issue may result in the dismissal of
a complaint, pursuant to the Foreign Sovereign
Immunities Act (FSIA), for lack of
jurisdiction. 28 U.S.C.A. § 1602 et seq.;
Fed.Rules Civ.Proc.Rule 12(b)(1), 28
U.S.C.A.
8. Federal Civil Procedure O1264
A delicate balance exists between
permitting discovery to substantiate exceptions
to statutory foreign sovereign immunity
and protecting a sovereign’s or
sovereign’s agency’s legitimate claim to
immunity from discovery. 28 U.S.C.A.
§ 1602 et seq.
9. International Law O10.38
In deciding whether a defendant is
entitled to immunity under the Foreign
Sovereign Immunities Act (FSIA), the District
Court gives great weight to any extrinsic
submissions made by the foreign
defendant regarding the scope of his official
responsibilities. 28 U.S.C.A. § 1602 et
seq.
10. International Law O10.33
Director of Saudi Arabia’s Department
of General Intelligence (DGI) was
immune from Antiterrorism Act (ATA)
suit by survivors of victims of Septem-
768 349 FEDERAL SUPPLEMENT, 2d SERIES
ber 11, 2001 attacks for his official acts,
notwithstanding that he was also Saudi
Arabia’s ambassador to United Kingdom,
unless exception to Foreign Sovereign
Immunities Act (FSIA) applied. 18
U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1603.
11. International Law O10.33
Saudi Arabia’s Minister of Defense
and Aviation, as third-highest ranking
member of Saudi government, was immune
from Antiterrorism Act (ATA) suit
by survivors of victims of September 11,
2001 attacks for his official acts, unless
exception to Foreign Sovereign Immunities
Act (FSIA) applied. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1603.
12. International Law O10.34
Saudi Arabia’s ownership of bank was
required to be direct for bank to enjoy
immunity, pursuant to Foreign Sovereign
Immunities Act (FSIA), from Antiterrorism
Act (ATA) suit by survivors of victims
of September 11, 2001 attacks; that is,
bank would not be immune as instrumentality
of Saudi Arabia if its majority owner,
known as Public Investment Fund (PIF),
was agency, instrumentality, or organ of
Saudi Arabia. 18 U.S.C.A. § 2331 et seq.;
28 U.S.C.A. § 1603(b)(2).
13. Federal Civil Procedure O1264
Limited jurisdictional discovery was
warranted, on Saudi Arabian bank’s motion
to dismiss Antiterrorism Act (ATA)
suit filed by survivors of victims of September
11, 2001 attacks, on issue whether
bank was immune under Foreign Sovereign
Immunities Act (FSIA), where resolution
of status of bank’s majority owner was
not determinable on current record, majority
owner might qualify either as organ or
political subdivision of Saudi Arabia, and
parties’ affidavits had not been subjected
to cross examination and were self-serving.
18 U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1603(b)(2); Fed.Rules Civ.Proc.Rule
12(b)(2), 28 U.S.C.A.
14. International Law O10.33
In deciding whether to apply the commercial
activities exception to the Foreign
Sovereign Immunities Act (FSIA), courts
must inquire whether the foreign state’s
actions are the type of actions by which a
private party engages in trade and traffic
or commerce. 28 U.S.C.A. § 1605(a)(2).
15. International Law O10.33
To extent that Antiterrorism Act
(ATA) claims against Saudi Arabia and
two of its government officials by survivors
of victims of September 11, 2001 attacks
were based on defendants’ alleged contributions
to charities, those alleged acts
were not commercial and thus were not
subject to commercial activities exception
of Foreign Sovereign Immunities Act
(FSIA), even if alleged acts constituted
money laundering. 18 U.S.C.A. §§ 1956,
2331 et seq.; 28 U.S.C.A. § 1605(a)(2).
16. International Law O10.33
For purposes of the commercial activity
exception to the Foreign Sovereign Immunities
Act (FSIA), a commercial activity
must be one in which a private person can
engage lawfully. 28 U.S.C.A. § 1605(a)(2).
17. International Law O10.33
Since money laundering is an illegal
activity, it cannot be the basis for applicability
of the commercial activities exception
to the Foreign Sovereign Immunities Act
(FSIA). 18 U.S.C.A. § 1956; 28 U.S.C.A.
§ 1605(a)(2).
18. International Law O10.33
Foreign Sovereign Immunities Act
(FSIA) exception for state sponsors of terrorism
did not apply to Antiterrorism Act
(ATA) claims against Saudi Arabia and
two of its government officials by survivors
of victims of September 11, 2001 attacks,
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
769
where parties agreed that Saudi Arabia
had not been designated state sponsor of
terrorism. 18 U.S.C.A. § 2331 et seq.; 28
U.S.C.A. § 1605(a)(7)(A).
19. International Law O10.33
Generally, acts are ‘‘discretionary,’’ for
purposes of the discretionary function exception
to the torts exception of the Foreign
Sovereign Immunities Act (FSIA), if
the acts are performed at the planning
level of government, as opposed to the
operational level. 28 U.S.C.A.
§ 1605(a)(5).
See publication Words and Phrases
for other judicial constructions
and definitions.
20. International Law O10.33
To fit within the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
plaintiffs must come forward with evidence
demonstrating that the defendants’ tortious
acts or omissions caused the plaintiffs’
injuries. 28 U.S.C.A. § 1605(a)(5).
21. International Law O10.33
To extent that Saudi Arabian Princes’
alleged donations to charities that supported
terrorist organizations were made
in Princes’ personal capacities, Antiterrorism
Act (ATA) claims arising from such
alleged donations, asserted by survivors of
victims of September 11, 2001 attacks,
were not subject to protection of torts
exception of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et
seq.; 28 U.S.C.A. § 1605(a)(5).
22. Conspiracy O1.1
Torts O21
In New York, conspiracy and aiding
and abetting are varieties of concerted action
liability, for which there must be: (1)
an express or tacit agreement to participate
in a common plan or design to commit
a tortious act; (2) tortious conduct by each
defendant; and (3) the commission by one
of the defendants, in pursuance of the
agreement, of an act that constitutes a
tort.
23. Conspiracy O2
Under New York law, liability for conspiracy
requires an agreement to commit a
tortious act.
24. Torts O21
Under New York law, aiding and
abetting liability requires that the defendant
have given substantial assistance or
encouragement to the primary wrongdoer.
25. International Law O10.43
Antiterrorism Act (ATA) complaint by
survivors of victims of September 11, 2001
attacks, alleging that Saudi Princes contributed
to charities that supported al
Qaeda, and that al Qaeda repeatedly and
publicly targeted United States, failed to
allege causal connection sufficient to satisfy
New York standard for concerted action
liability, for purposes of torts exception of
Foreign Sovereign Immunities Act
(FSIA), absent allegations from which it
could be inferred that Princes knew charities
were fronts for al Qaeda. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1605(a)(5).
26. International Law O10.43
To allege a causal connection sufficient
to invoke the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
in connection with a defendant’s contributions
to organizations that are not themselves
designated terrorists, there must be
some facts presented to support the allegation
that the defendant knew the receiving
organization to be a solicitor, collector,
supporter, front or launderer for such an
entity; there must be some facts to support
an inference that the defendant knowingly
provided assistance or encouragement to
the wrongdoer. 28 U.S.C.A. § 1605(a)(5).
770 349 FEDERAL SUPPLEMENT, 2d SERIES
27. International Law O10.43
Plaintiffs may not circumvent the jurisdictional
hurdle of the Foreign Sovereign
Immunities Act (FSIA) by inserting
vague and conclusory allegations of tortious
conduct in their complaints, and then
relying on the federal courts to conclude
that some conceivable non-discretionary
tortious act falls within the purview of
these generic allegations under the applicable
substantive law. 28 U.S.C.A.
§ 1605(a)(5).
28. International Law O10.33
In determining whether functions are
discretionary, for purposes of the discretionary
function exception to the torts exception
of the Foreign Sovereign Immunities
Act (FSIA), the District Court must
decide whether the actions involved an element
of choice or judgment based on considerations
of public policy. 28 U.S.C.A.
§ 1605(a)(5).
29. International Law O10.33
Alleged decisions to make charitable
contributions to terrorist organizations,
made by Saudi Arabian Prince, as chairman
of Supreme Council of Islamic Affairs,
which was charged with making
recommendations to Council of Ministers
regarding requests for aid from Islamic
organizations located abroad, and as head
of Special Committee of Council of Ministers,
which was charged with deciding
which grants should be made to Islamic
charities, were discretionary, such that
Antiterrorism Act (ATA) claims against
Prince by survivors of victims of September
11, 2001 attacks arising from such
alleged contributions were barred by discretionary
function exception to torts exception
of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et seq.;
28 U.S.C.A. § 1605(a)(2).
30. International Law O10.33
Alleged decisions regarding treatment
of Taliban and al Qaeda leader made by
Saudi Prince, as head of Saudi Arabia’s
Department of General Intelligence (DGI),
were discretionary, such that Antiterrorism
Act (ATA) claims against Prince by
survivors of victims of September 11, 2001
attacks arising from such alleged decisions
were barred by discretionary function exception
to torts exception of Foreign Sovereign
Immunities Act (FSIA). 18
U.S.C.A. § 2331 et seq.; 28 U.S.C.A.