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KeyCite Yellow Flag - Negative Treatment
Distinguished by Abecassis v. Wyatt, S.D.Tex., March 31, 2010
392 F.Supp.2d 539
United States District Court,
S.D. New York.
In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Nos. 03 MDL 1570(RCC), 02 Civ. 6977, 03 Civ. 6978, 03 Civ. 9849.
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Sept. 21, 2005.
Synopsis
Background: Representatives, survivors, and insurance carriers of victims of September 11, 2001 terrorist attacks brought actions against terrorist organization responsible for the attacks and its members and associates, alleged state sponsors of terrorism, and individuals and entities who allegedly provided support to the terrorist organization, 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 under New York law for aiding and abetting, conspiracy, intentional infliction of emotional distress, negligence, survival, wrongful death, trespass, and assault and battery. Actions were consolidated, various defendants filed motions to dismiss, and plaintiffs moved to supplement the record.
Holdings: The District Court, Casey, J., held that:
[1] Saudi High Commission (SHC) was entitled to immunity under discretionary function exception to Foreign Sovereign Immunities Act (FSIA);
[2] chairman of SHC and Saudi Minister of Interior were entitled to immunity under discretionary function exception to FSIA;
[3] two Saudi officials did not have such minimum contacts with the United States as to support a finding of general personal jurisdiction;
[4] complaint alleging that various Islamic charities and organizations provided support for September 11th attacks, failed to state a claim under TVPA;
[5] allegation that defendant provided a satellite phone battery to terrorist leader sufficiently stated a claim under ATA; and
[6] absent any allegation that defendant had any role in directing an enterprise, allegation that he funneled money to terrorist organization through the charities with which he was involved failed to state a claim under RICO.
Motions granted in part and denied in part.
See also 349 F.Supp.2d 765.
West Headnotes (46)
[1]
International Law
Evidence of immunity, and fact questions
Pursuant to the Foreign Sovereign Immunities Act (FSIA), a foreign state and its instrumentalities are presumed immune from jurisdiction unless one of the statute’s exceptions applies. 28 U.S.C.A. § 1602 et seq.
Cases that cite this headnote
[2]
International Law
Evidence of immunity, and fact questions
In a challenge to subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), the defendant must present a prima facie case that it is a foreign sovereign; thereafter plaintiff has burden of going forward with evidence showing that, under the exceptions to FSIA, immunity should not be granted. 28 U.S.C.A. § 1602 et seq.
2 Cases that cite this headnote
[3]
Federal Civil Procedure
Matters considered in general
Article stating that Islamic aid organizations in Afghanistan, Bosnia, Somalia, and Tajikistan provided funds and cover to terrorists would not be admitted to supplement record on motion to dismiss in action, arising out of the September 11 terrorist attacks, alleging that two Saudi officials involved with Islamic charities were knowingly providing funding for terrorists; plaintiffs failed to explain why they were only able to obtain and translate the article on eve of oral argument, article and its translation were not authenticated, and article did not say officials were put on notice regarding specific charities or that they continued to contribute to those charities with intent that donations would assist terrorists.
Cases that cite this headnote
[4]
International Law
Extent and effect of immunity
Immunity under Foreign Sovereign Immunities Act (FSIA) extends to agents of a foreign state acting in their official capacities, inasmuch as a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly. 28 U.S.C.A. § 1602 et seq.
1 Cases that cite this headnote
[5]
International Law
Evidence of immunity, and fact questions
Court is required to give great weight, in determining whether foreign defendants are entitled to immunity under the Foreign Sovereign Immunities Act (FSIA), to any extrinsic submissions made by the foreign defendants regarding the scope of their official responsibilities. 28 U.S.C.A. § 1602 et seq.
2 Cases that cite this headnote
[6]
International Law
Corporations and other instrumentalities
Saudi High Commission (SHC) made prima facie showing it was entitled to immunity, under Foreign Sovereign Immunities Act (FSIA), in action alleging it had provided funding for terrorists; SHC was created by the Council of Ministers of Kingdom of Saudi Arabia to provide Kingdom’s aid to Bosnia and was governed by a Saudi official, its employees were Saudi civil servants, and it could be sued in the Kingdom’s administrative court like other Saudi government agencies, and SHC made no explicit waiver of its sovereign immunity inasmuch as any contrary representations by SHC were made prior to the action. 28 U.S.C.A. § 1602 et seq.
Cases that cite this headnote
[7]
International Law
Extent and effect of immunity
To extent that complaint, in action alleging support for terrorist organizations, alleged that two Saudi officials provided such support through actions undertaken in their government positions, officials made prima facie showing of entitlement to immunity under the Foreign Sovereign Immunities Act (FSIA). 28 U.S.C.A. § 1602 et seq.
Cases that cite this headnote
[8]
International Law
Extent and effect of immunity
For jurisdiction over agents of a foreign government to be proper under torts exception to Foreign Sovereign Immunities Act (FSIA), plaintiffs must show that defendants’ tortious acts caused plaintiffs’ injuries and that defendants’ actions were not discretionary, i.e., not grounded in their governments’ social, economic, or political policies. 28 U.S.C.A. § 1605(a)(5).
3 Cases that cite this headnote
[9]
International Law
Extent and effect of immunity
Under the Foreign Sovereign Immunities Act’s (FSIA) discretionary function exception, acts which are performed at the planning level of government, as opposed to those at the operational level, are entitled to immunity. 28 U.S.C.A. § 1605(a)(5).
Cases that cite this headnote
[10]
International Law
Extent and effect of immunity
Relief agency established by government of Saudi Arabia was entitled to immunity, under discretionary function exception to Foreign Sovereign Immunities Act (FSIA), in action alleging it had provided funding for terrorist organization responsible for September 11th attacks; agency’s decisions regarding the distribution of humanitarian relief funds were within the discretion of its chairman and his advisors and were guided by government policies. 28 U.S.C.A. § 1605(a)(5).
1 Cases that cite this headnote
[11]
International Law
Extent and effect of immunity
Chairman of relief agency established by government of Saudi Arabia, and Saudi Minister of Interior, were entitled to immunity, under discretionary function exception to Foreign Sovereign Immunities Act (FSIA), in action alleging their decisions regarding distribution of humanitarian relief funds provided support for terrorist organization responsible for September 11th attacks; allegations stemmed from officials’ discretionary functions inasmuch as their decisions were grounded in government’s social, economic, and political policy. 28 U.S.C.A. § 1605(a)(5).
5 Cases that cite this headnote
[12]
Federal Courts
Presumptions and burden of proof
In considering a motion to dismiss for lack of personal jurisdiction, court reviews the complaints and affidavits in the light most favorable to plaintiffs, but does not accept conclusory allegations or draw argumentative inferences. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
8 Cases that cite this headnote
[13]
Constitutional Law
Non-residents in general
Federal Courts
Contacts with United States as a whole; nationwide jurisdiction
For jurisdiction to exist under rule establishing personal jurisdiction in any district court for cases arising under federal law where defendant has sufficient contacts with the United States as a whole but is not subject to jurisdiction in any particular state, there must be a federal claim, personal jurisdiction must not exist over defendant in any state, and defendant must have sufficient contacts with the U.S. as a whole such that the exercise of jurisdiction does not violate Fifth Amendment due process. U.S.C.A. Const.Amend. 5; Fed.Rules Civ.Proc.Rule 4(k)(2), 28 U.S.C.A.
3 Cases that cite this headnote
[14]
Courts
Allegations, pleadings, and affidavits
To establish personal jurisdiction based on a conspiracy theory under New York’s long-arm statute, plaintiffs must make a prima facie showing of conspiracy and allege facts warranting an inference that defendant was a member of the conspiracy. NY.McKinney’s CPLR 302(a)(2).
3 Cases that cite this headnote
[15]
Conspiracy
Nature and Elements in General
Conspiracy
Pleading
To plead a valid cause of action for conspiracy, a plaintiff must allege the primary tort and four elements: (1) a corrupt agreement between two or more persons, (2) an overt act in furtherance of the agreement, (3) the parties’ intentional participation in the furtherance of a plan or purpose, and (4) the resulting damage or injury.
Cases that cite this headnote
[16]
Courts
Conspiracy and co-conspirators
To warrant the inference that a defendant was a member of the conspiracy, as would establish personal jurisdiction under New York’s long-arm statute, plaintiffs must show that (1) defendant had an awareness of the effects in New York of its activity, (2) the activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators, and (3) the co-conspirators acting in New York acted at the direction or under the control of or at the request of or on behalf of the out-of-state defendant. N.Y.McKinney’s CPLR 302(a)(2).
3 Cases that cite this headnote
[17]
Constitutional Law
Non-residents in general
The exercise of personal jurisdiction must comport with due process requirements, i.e., there must be minimum contacts and the exercise of jurisdiction must be reasonable. U.S.C.A. Const.Amends. 5, 14.
1 Cases that cite this headnote
[18]
Federal Courts
Related contacts and activities; specific jurisdiction
Federal Courts
Business contacts and activities; transacting or doing business
Specific jurisdiction over a nonresident defendant exists when the forum exercises jurisdiction over the defendant in a suit arising out of defendant’s contacts with that forum; general jurisdiction is based on a defendant’s general business contacts with the forum.
Cases that cite this headnote
[19]
Federal Courts
Terrorism
Two officials of Saudi Arabian government did not have such minimum contacts with the United States as to support a finding of general personal jurisdiction, in action alleging their decisions regarding distribution of humanitarian relief funds provided support for terrorist organization responsible for September 11th attacks, despite alleged donations of money to established humanitarian organizations that might have been diverting funds to support terrorists and despite one official’s visit to the White House twelve years before the attacks. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
1 Cases that cite this headnote
[20]
Federal Civil Procedure
Jurisdictional discovery
Federal Courts
Dismissal or other disposition
District Court would deny without prejudice purported Islamic charitable trust’s motion to dismiss, for lack of personal jurisdiction, complaint in action alleging provision of support for terrorists involved in September 11th attacks, pending further jurisdictional discovery as to whether trust’s activities were directed at the United States; U.S. Government had designated the trust a Specially Designated Global Terrorist Entity. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
1 Cases that cite this headnote
[21]
Federal Civil Procedure
Jurisdictional discovery
Courts enjoy great discretion in deciding whether to order jurisdictional discovery before resolving motions to dismiss for lack of personal jurisdiction. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
1 Cases that cite this headnote
[22]
Federal Courts
Terrorism
Pursuant to rule establishing personal jurisdiction in any district court for cases arising under federal law where defendant had sufficient contacts with the United States as a whole but was not subject to jurisdiction in any particular state, District Court had personal jurisdiction, in action alleging provision of support for terrorists involved in September 11th attacks, over defendant alleged to be a founder and leader of terrorist organization responsible for the attacks; defendant had purposefully directed his activities at the U.S. Fed.Rules Civ.Proc.Rules 4(k)(2), 12(b)(2), 28 U.S.C.A.
2 Cases that cite this headnote
[23]
Constitutional Law
Non-profit, charitable, and educational organizations
Federal Courts
Terrorism
District Court had personal jurisdiction, under rule establishing personal jurisdiction for cases arising under federal law where defendant had sufficient contacts with the United States as a whole but was not subject to jurisdiction in any particular state, over purported Islamic relief organization, for purposes of action alleging provision of support for terrorists involved in September 11th attacks; organization purposefully directed its activities at the U.S., satisfying due process minimum contacts requirement, inasmuch as it operated in the U.S. and was involved in supporting attacks and activities of the terrorist organization. U.S.C.A. Const.Amend. 5; Fed.Rules Civ.Proc.Rules 4(k)(2), 12(b)(2), 28 U.S.C.A.
Cases that cite this headnote
[24]
Racketeer Influenced and Corrupt Organizations
Association with or participation in enterprise; control or intent
To state a claim for liability under civil Racketeer Influenced and Corrupt Organizations Act (RICO), plaintiffs must allege that defendants participated in the operation or management of the enterprise itself, which requires that these defendants must have had some part in directing the enterprise’s affairs. 18 U.S.C.A. § 1962(c).
Cases that cite this headnote
[25]
Aliens, Immigration, and Citizenship
Torture victim protection
Complaint brought under Torture Victim Protection Act (TVPA), alleging that various Islamic charities and organizations provided support for terrorist organization responsible for September 11th attacks, failed to state a claim; TVPA provided a cause of action only against individuals. 28 U.S.C.A. § 1350.
2 Cases that cite this headnote
[26]
Aliens, Immigration, and Citizenship
Torture victim protection
Absent any allegation that named defendants were acting under color of state law, action brought under Torture Victim Protection Act (TVPA), alleging that various individuals provided support for September 11th attacks, failed to state a claim. 28 U.S.C.A. § 1350.
2 Cases that cite this headnote
[27]
Limitation of Actions
Injuries to person
Claims, under New York law, for assault and battery and intentional infliction of emotional distress, asserted in action alleging provision of support for September 11th attacks, were time-barred. N.Y.McKinney’s CPLR 215(3).
Cases that cite this headnote
[28]
Negligence
Necessity and Existence of Duty
Negligence
Protection against acts of third persons
Negligence claims, in action under New York law arising out of September 11th attacks, would be dismissed for failure to state claims inasmuch as they failed to allege or identify duty owed to plaintiffs by defendants.
1 Cases that cite this headnote
[29]
War and National Emergency
Private Remedies
Allegation that defendant provided a satellite phone battery to leader of terrorist organization responsible for September 11th attacks sufficiently stated a claim under Antiterrorism Act (ATA), for purposes of action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 2339A(b).
1 Cases that cite this headnote
[30]
Racketeer Influenced and Corrupt Organizations
Association with or participation in enterprise; control or intent
Complaint which failed to allege that defendant participated in the operation or management of any enterprise thus failed to state a claim under Racketeer Influenced and Corrupt Organizations Act (RICO), for purposes of action alleging provision of support for terrorists involved in September 11th attacks. 18 U.S.C.A. § 1961 et seq.
Cases that cite this headnote
[31]
War and National Emergency
Private Remedies
Complaint which failed to allege that defendant took any action that could be considered the provision of material support for terrorist organization responsible for the September 11th attacks thus failed to state a claim under the Antiterrorism Act (ATA), for purposes of action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 2339A(b).
Cases that cite this headnote
[32]
War and National Emergency
Private Remedies
Allegation that defendant funneled money to terrorist organization responsible for September 11th attacks, through charities in which he was involved, was sufficient to state a claim under Antiterrorism Act (ATA), in action alleging provision of support for those attacks. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[33]
Racketeer Influenced and Corrupt Organizations
Association with or participation in enterprise; control or intent
Complaint which failed to allege that defendant had any role in directing an enterprise thus failed to state a claim under Racketeer Influenced and Corrupt Organizations Act (RICO), for purposes of action alleging provision of support for terrorist organization responsible for September 11th attacks. 18 U.S.C.A. § 1961 et seq.
Cases that cite this headnote
[34]
War and National Emergency
Private Remedies
Absent any allegation that purported charitable organization knew that the money it was transferring between two other organizations would somehow assist terrorist organization responsible for the September 11th attacks, or that it knew that other organizations to which it transferred money were in the business of supporting terrorism, allegation that organization made such transfers failed to state a claim under Antiterrorism Act (ATA), for purposes of action alleging provision of support for those attacks. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[35]
War and National Emergency
Private Remedies
Allegations that defendant was a founder and leader of terrorist organization responsible for the September 11th attacks, that he had been designated a terrorist by the U.S. government, and that he was the head of various non-government organizations providing financial and logistical support to the terrorist network, sufficiently stated a claim under Antiterrorism Act (ATA), for purposes of action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[36]
War and National Emergency
Private Remedies
Allegation that purported Islamic relief organization collected and laundered money for terrorist organization responsible for the September 11th attacks, was involved in numerous attacks and plots, and funded the Taliban and terrorist training camps in Afghanistan sufficiently stated a claim under Antiterrorism Act (ATA), for purposes of action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[37]
Federal Civil Procedure
Time of determination; reserving decision
District Court would deny, without prejudice, purported Islamic charitable trust’s motion to dismiss, for failure to state a claim, complaints against it in action alleging provision of support for terrorists involved in September 11th attacks, where Court had not yet determined whether it had personal jurisdiction over the trust.
1 Cases that cite this headnote
[38]
War and National Emergency
Private Remedies
Allegation, that defendants were co-conspirators, material sponsors, and/or aiders and abettors of a network alleged to have provided support for terrorist, was insufficient, without more, to state a claim under Antiterrorism Act (ATA), for purposes of action alleging provision of support for terrorists involved in September 11th attacks; allegations failed to provide notice of the factual grounds on which the claims were based. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[39]
War and National Emergency
Private Remedies
Absent any allegation that organization knew that two purported Islamic charities it allegedly financed were terrorist cells, or whether and how those cells contributed to agenda of terrorist organization responsible for the September 11th attacks, allegation that the organization provided that financial support were insufficient to state a claim under Antiterrorism Act (ATA), in action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 2339(A).
Cases that cite this headnote
[40]
Racketeer Influenced and Corrupt Organizations
Association or participation
Absent any allegation that company had any role in directing an enterprise, allegation that it donated money to a group alleged to have later laundered the money, and that it donated money to unnamed entities who later forwarded it to terrorist organization responsible for the September 11th attacks, were insufficient to state a claim under Racketeer Influenced and Corrupt Organizations Act (RICO), in action alleging provision of support for terrorists involved in those attacks. 18 U.S.C.A. § 1961 et seq.
Cases that cite this headnote
[41]
Racketeer Influenced and Corrupt Organizations
Association or participation
War and National Emergency
Private Remedies
Complaint, alleging that individual defendants aided and abetted, conspired with, and provided material support and resources to terrorist organization responsible for the September 11th attacks and/or affiliated organizations, failed to state claims for violations of Racketeer Influenced and Corrupt Organizations Act (RICO) or Antiterrorism Act (ATA), in action alleging provision of support for terrorists involved in those attacks; complaint did not adequately provide defendants with notice as to how they provided material support to terrorist organization. 18 U.S.C.A. §§ 1961 et seq., 2339(A).
2 Cases that cite this headnote
[42]
War and National Emergency
Private Remedies
Complaint alleging that defendant controlled several bank accounts and transmitted money internationally for terrorist purposes was sufficient to state a claim under Antiterrorism Act (ATA), in action alleging provision of support for September 11th attacks. 18 U.S.C.A. § 2339(A).
2 Cases that cite this headnote
[43]
Racketeer Influenced and Corrupt Organizations
Association or participation
Absent any allegation that defendant participated in the operation or management of alleged terrorist enterprise, allegation that he controlled several bank accounts and transmitted money internationally for terrorist purposes failed to state a claim under Racketeer Influenced and Corrupt Organizations Act (RICO), for purposes of action alleging provision of support for terrorists involved in September 11th attacks. 18 U.S.C.A. § 1961 et seq.
1 Cases that cite this headnote
[44]
Federal Civil Procedure
Error by court
A motion for reconsideration is appropriate where a court overlooks controlling decisions or factual matters that were put before it on the underlying motion and which, had they been considered, might have reasonably altered the result before the court.
Cases that cite this headnote
[45]
Federal Civil Procedure
Justice; prevention of injustice
Federal Civil Procedure
Error by court
A motion for reconsideration may be granted to correct a clear error or prevent manifest injustice.
Cases that cite this headnote
[46]
International Law
Proceedings to determine immunity
On reconsideration of prior order, District Court would postpone further inquiry into bank’s status as a foreign sovereign, for purposes of its assertion that it was entitled to immunity, under Foreign Sovereign Immunities Act (FSIA), in action alleging it provided support for terrorists involved in September 11th attacks, until completion of personal jurisdiction discovery; personal jurisdiction issue was more straightforward and Court was hesitant to subject Kingdom of Saudi Arabia to discovery. 28 U.S.C.A. § 1602 et seq.
3 Cases that cite this headnote
Attorneys and Law Firms
*545 Andrew J. Maloney, III, Blanca I. Rodriguez, Brian J. Alexander, *546 David Beekman, David C. Cook, Francis G. Fleming, James P. Kreindler, Justin Timothy Green, Lee S. Kreindler, Marc S. Moller, Milton G. Sincoff, Noah H. Kushlefsky, Paul S. Edelman, Robert James Spragg, Steven R. Pounian, Kreindler & Kreindler, New York City, Elliot R. Feldman, J. Scott Tarbutton, John M. Popilock, Sean P. Carter, Stephen A. Cozen O’Connor (Philadelphia), Philadelphia, PA, for Plaintiffs.
David P. Gersch, Arnold & Porter, L.L.P., Donna M. Sheinbach, Michael D. McNeely, Nancy Luque, Steven A. Maddox, Gray Cary Ware and Friedenrich LLP (DC), Mitchell Rand Berger, Ronald Stanley Liebman, Patton Boggs LLP (DC), Martin Francis McMahon, Stephanie Wall Fell, Martin F. McMahon, and Associates, Thomas Peter Steindler, McDermott, Will and Emery (DC), James Ernest Gauch, Jennifer Allyson Shumaker, Jonathan Chapman Rose, Melissa Danielle Stear, Michael Peter Gurdak, Michael Rollin Shumaker, Stephen Joseph Brogan, Timothy John Finn, Jones Day (DC), Louis Richard Cohen, Wilmer, Cutler & Pickering (Washington), William Horace Jeffress, Jr., Christopher R. Cooper, Sara E. Kropf, Jamie S. Kilberg, Baker Botts LLP (DC), Christopher Mark Curran, White & Case LLP (DC), David Charles Frederick, John Christopher Rozendaal, Mark Charles Hansen, Michael John Guzman, Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans PLLC (DC), Lawrence Saul Robbins, Robbins Russel Englert Orseck & Untereiner LLP, Washington, DC, Jean Engelmayer Kalicki, Arnold & Porter, LLP, John Joseph Walsh, Carter Ledyard & Milburn LLP, Omar T. Mohammedi, Law Office of Omar T. Mohammedi, Brian Howard Polovoy, Shearman & Sterling LLP (New York), Geoffrey S. Stewart, Michael Bradley, Jones Day, Matthew Phineas Previn, Wilmer, Cutler & Pickering, L.L.P., T. Barry Kingham, Curtis, Mallet-Prevost, Colt and Mosle LLP, New York City, Wilmer Parker, III, Gillen Parker and Withers LLC, Atlanta, GA, Lynne Bernabei, Alan R. Kabat, Bernabei & Katz, PLLC, Washington, DC, for Defendants.
Michael J. Sommi, Cozen O’Connor, New York City, for Movants.
Opinion and Order
CASEY, District Judge.
The Court presumes familiarity with the factual background giving rise to this multi-district litigation. See In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y.2005) (“Terrorist Attacks I” ). Generally, Plaintiffs are representatives, survivors, and insurance carriers of the victims of the attacks of September 11, 2001, who allege, pursuant to various theories of liability including the Antiterrorism Act (“ATA”), 18 U.S.C. § 2331 et seq.; the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350; the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.; the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note; theories of aiding and abetting, civil conspiracy, intentional infliction of emotional distress, negligence, survival, wrongful death, trespass, and assault and battery, that Defendants are responsible for those attacks as terrorists, state sponsors of terror, or material sponsors of terror. In Terrorist Attacks I, the Court resolved several motions to dismiss the complaints by various Defendants. Additional motions remain pending before the Court.
Saudi High Commission (“SHC”), HRH Prince Salman bin Abdulaziz Al–Saud (“Prince Salman”), and HRH Prince Naif bin Abdulaziz Al–Saud (“Prince Naif”) move to dismiss the complaints for lack of subject matter jurisdiction pursuant to the FSIA, lack of personal jurisdiction, and failure to state a claim for relief. Immediately prior to the Court’s scheduled oral argument on these motions, the Federal Plaintiffs moved to supplement the record against Prince Salman and Prince Naif.
Defendants Rabita Trust, Wa‘el Jalaidan, and International Islamic Relief Organization (“IIRO”) move to dismiss the *547 complaints for lack of personal jurisdiction and failure to state a claim.
Other Defendants move to dismiss the complaints for failure to state a claim. Tarik Hamdi and Abdulrahman Alamoudi move to dismiss the Burnett and Federal complaints. Success Foundation moves to dismiss the Burnett complaint. The Burnett Plaintiffs denominate certain Defendants as the “SAAR Network entities.” The SAAR Network entities, which include African Muslim Agency, Grove Corporate, Heritage Education Trust, International Institute of Islamic Thought (“IIIT”), Mar–Jac Investments, Mar–Jac Poultry, Reston Investments, Safa Trust, and York Foundation, move to dismiss the Burnett complaint. IIIT also moves to dismiss the Ashton complaint. In addition to its motion to dismiss Burnett, Mar–Jac Poultry moves to dismiss the Ashton and Federal complaints. The Federal Plaintiffs label certain individuals “SAAR Network executives.” These Defendants, including Taha Al–Awani, Muhammad Ashraf, M. Omar Ashraf, M. Yaqub Mirza, Iqbal Unus, and Jamal Barzinji, move to dismiss the Federal complaint.
Finally, Defendant National Commercial Bank (“NCB”) moves for reconsideration of this Court’s denial without prejudice of its motions to dismiss the Ashton and Burnett complaints. The Court resolves all the aforementioned motions in this opinion.
I. Subject Matter Jurisdiction Under the FSIA
[1] [2] Pursuant to the FSIA, a foreign state and its instrumentalities are presumed immune from this Court’s jurisdiction unless one of the statute’s exceptions applies. Robinson v. Gov’t of Malaysia, 269 F.3d 133, 138 (2d Cir.2001). “In contrast to a Rule 12(b)(6) motion to dismiss for failure to state a claim, in a challenge to FSIA subject matter jurisdiction, the defendant must present a ‘prima facie case that it is a foreign sovereign.’ ” Virtual Countries v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.2002) (quoting Cargill Int’l S.A. v. M/T PAVEL DYBENKO, 991 F.2d 1012, 1016 (2d Cir.1993)). “Then, the plaintiff ‘has the burden of going forward with evidence showing that, under the exceptions to the FSIA, immunity should not be granted.’ ” Virtual Countries, 300 F.3d at 241 (quoting Cargill, 991 F.2d at 1016); see also Terrorist Attacks I, 349 F.Supp.2d at 792–797 (explaining that the possibly relevant exceptions to immunity in this litigation include the commercial activities, torts, and state sponsor of terrorism exceptions). Determining whether this burden is met involves a ‘review [of] the allegations in the complaint, the undisputed facts, if any, 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] disputed issues of fact.’ ” Virtual Countries, 300 F.3d at 241 (quoting Robinson, 269 F.3d at 141). Throughout the inquiry, Defendants retain the burden of persuasion, which they must meet by a preponderance of the evidence. Virtual Countries, 300 F.3d at 241; see also Robinson, 269 F.3d at 141 n. 8.
A. Allegations Against Defendants Asserting Foreign Sovereign Immunity
1. Saudi High Commission1
In 1993, then-King Fahad bin Abdulaziz Al–Saud, the President of the Council of *548 Ministers of Saudi Arabia, decreed the formation of SHC, also known as the Saudi High Relief Commission, by High Order 17419. (Ashton Compl. ¶ 446; Burnett Compl. ¶ 392; Federal Compl. ¶ 180; see also SHC Mem. in Sup. Mot. to Dismiss at 3.) The same High Order named Defendant Prince Salman the President of SHC. (Ashton Compl. ¶ 446; Burnett Compl. ¶ 392; SHC Mem. in Sup. Mot. to Dismiss at 3.)
SHC allegedly has contributed $600 million to aid “Bosnian Muslims impoverished by the country’s recent civil war.” (Ashton Compl. ¶ 446; Burnett Compl. ¶ 392.) Plaintiffs claim, however, that SHC does not provide support to the needy but actually diverts funds for terrorist activities. (Ashton Compl. ¶ 454; Burnett Compl. ¶ 404.) In support, Plaintiffs allege that Prince Salman received a letter in September 2000 from a Bosnian association claiming SHC did not provide charitable assistance, and that none of the money collected after the fall of Srebrenica in July 1995 actually reached the Srebrenican people. (Ashton Compl. ¶¶ 454–55; Burnett Com pl. ¶¶ 404–05; Federal Compl. ¶¶ 185, 457.) Plaintiffs claim SHC’s financial records fail to account for $41 million. (Ashton Compl. ¶ 456; Burnett Compl. ¶ 407; Federal Compl. ¶ 460.) SHC allegedly made donations to charity Defendant Taibah and the bin Laden Establishment. (Ashton Compl. ¶¶ 376, 462 (relying on 1995 bin Laden interview); Burnett Compl. ¶ 298.) Plaintiffs also claim that SHC is responsible for “importing the extreme form of Saudi Islam, Wahhabism” to Bosnia. (Ashton Compl. ¶ 447; Burnett Compl. ¶ 393.)
The Federal Plaintiffs allege that al Qaeda fighters began entering Bosnia–Herzegovina in 1992 disguised as SHC relief workers. (Federal Compl. ¶ 183.) On October 21, 2001, a group of Algerians who were supposedly part of the al Qaeda network were arrested in Bosnia Herzegovina on charges of terrorism directed at the United States embassy. (Ashton Compl. ¶¶ 448–49; Burnett Compl. ¶¶ 394–95.) One of the arrested, Sabir Lamar, apparently worked for SHC as an Arabic language teacher. (Ashton Compl. ¶ 450; Burnett Compl. ¶ 396.) Also in October 2001, Plaintiffs claim that United States forces raided the Sarajevo branch of SHC and “found computer hard drives with photographs of the World Trade Center before and after its collapse as well as photos of United States embassies in Kenya and Tanzania and the U.S.S. Cole.” (Ashton Compl. ¶ 451; Burnett Compl. ¶ 397; Federal Compl. ¶ ¶ 186, 458.) The U.S. forces also apparently found files on pesticides and crop dusters, the locations of Washington government buildings, fake State Department badges, and cash. (Ashton Compl. ¶¶ 451, 453; Burnett Compl. ¶¶ 397, 399; Federal Compl. ¶¶ 186, 459.) After the raid, the Financial Police of the Federation of Bosnia Herzegovina Ministry of Finance analyzed the seized documents and stated that some did “not belong in the scope of work of a humanitarian organization.” (Federal Compl. ¶¶ 187, 459; see also Ashton Compl. ¶ 452; Burnett Compl. ¶ 398.) The Federal Plaintiffs claim that the SHC “has long acted as a fully integrated component of al Qaida’s logistical and financial support infrastructure ... [and that the attacks of September 11 were] a direct, intended and foreseeable product of [its] participation in al Qaida’s jihadist campaign.” (Federal Compl. ¶¶ 182, 189.)
*549 2. Prince Salman2
Prince Salman is a member of the Kingdom of Saudi Arabia’s Council of Ministers, the governor of the province of Riyadh, and the President of Defendant SHC. (Prince Salman Mem. in Sup. Mot. to Dismiss at 2.) Plaintiffs allege that Prince Salman provided material support to Osama bin Laden and al Qaeda. (Ashton Compl. ¶ 255; Burnett Compl. ¶ 403; Federal Compl. ¶¶ 455, 463; see also Federal RICO Statement Applicable to Saudi Princes at Ex. A.) The Federal Plaintiffs claim Prince Salman “fully intended [SHC] would serve as a vehicle for funding and supporting Islamic militants in Bosnia, including elements of the al Qaida movement.” (Federal Compl. ¶ 456.) “Prince Salman knowingly failed to take appropriate actions regarding the management and use of funds of the SHC in Bosnia.” (Ashton Compl. ¶ 457; Burnett Compl. ¶ 406.) On December 30, 2000, the Embassy of the State of Palestine in Riyadh sent Prince Salman a letter expressing Yasser Arafat’s concern regarding the funding of radical organizations in Palestine. (Ashton Compl. ¶ 291; Burnett Compl. ¶ 402.) Further, Plaintiffs claim Prince Salman “has a history of funding Islamic extremism,” because he was named the Chairman of the General Donation Committee for Afghanistan in 1980, which gave $39 million to aid the Afghan mujahideen. (Ashton Compl. ¶ 289; Burnett Compl. ¶ 400.)
In 1994, Prince Salman allegedly stated that he had personally raised more than six million Saudi Riyals for Defendant IIRO and Sanabel al-Kheer. (Federal Compl. ¶ 462.) And in 1998, he allegedly donated one million Saudi Riyals during a fundraising drive by IIRO and Sanabel al-Kheer. (Federal Compl. ¶ 461.) In 1999, Prince Salman donated $400,000 during a fundraising event organized by charity Defendants IIRO, World Assembly of Muslim Youth (“WAMY”), and Al–Haramain Foundation for the benefit of Bosnia Herzegovina and Chechnya. (Ashton Compl. ¶ 290; Burnett Compl. ¶ 401; Federal Compl. ¶ 461.) Finally, Plaintiffs claim that members of the Saudi royal family have assets and do business in the United States. (Ashton Compl. ¶ 296.)
3. Prince Naif3
Prince Naif has been the Minister of Interior of the Kingdom of Saudi Arabia since 1975. (Ashton Compl. ¶ 286; Federal Compl. ¶ 433; Prince Naif Mem. in Supp. Mot. to Dismiss at 1, 5.) According to Plaintiffs, the Minister of Interior “controls the activities of Islamic Charities and is empowered to verify their legality and conduct.” (Ashton Compl. ¶ 286; Burnett Compl. ¶ 382; see also Federal Compl. ¶ 435 (alleging that as Minister of Interior Prince Naif is “responsible for the oversight of charities based within Saudi Arabia, including the operations of the Saudi Joint Relief Committee [ (‘SJRC’) ], Muslim World League [ (‘MWL’) ], IIRO, Saudi Red Crescent, WAMY, and al Haramain Foundation”).) He is also a member of the Council of Ministers and serves on the Supreme Council for Islamic Affairs. (Plaintiff’s Mem. in Opp’n to Prince Naif’s Mot. at 2–3, 5.)
Plaintiffs claim that “Prince Naif has engaged in a pattern of conduct that aids, abets, and materially sponsors international terrorism and Al Qaeda.” (Ashton Compl. ¶¶ 288, 255; Burnett Compl. ¶¶ 342, 381; Federal Compl. ¶ 434; see also Federal RICO Statement Applicable to Saudi Princes at Ex. A.) They claim that along with other Saudi princes, Prince *550 Naif made “monetary payoffs to Osama bin Laden’s al Qaeda.” (Ashton Compl. ¶ 288; Burnett Compl. ¶ 381.) “In 1996, according to various intelligence sources, a group of Saudi princes ... met in Paris and agreed to continue contributing, sponsoring, aiding and abetting Osama bin Laden’s terrorist network.” (Burnett Compl. ¶ 347.) Plaintiffs claim that Prince Naif and the Saudi government received warnings from the United States and France that charitable donations to Islamic charities were being used to fund terrorism. (See Plaintiffs’ Mem. in Opp’n to Naif’s Mot. to Dismiss at 5.) Prince Naif was present for one such meeting in 1994 with French Interior Minister Charles Pasqua. (Id.) The Federal Plaintiffs allege that Prince Naif has used his position as the Minister of Interior to “protect al Qaida’s support infrastructure.” (Federal Compl. ¶ 438.)
The Federal complaint further alleges that “[b]etween 1998 and 2000, the Kingdom of Saudi Arabia, through SJRC, diverted more than $74 million to al Qaida members and loyalists affiliated with SJRC bureaus. Throughout this time, [SJRC] was under the supervision and control of ... Prince Naif.” (Federal Compl. ¶¶ 126, 436.) “Prince Naif also heads the Saudi Committee for Relief to Afghans, ... [i]n this position, Prince Naif has channeled substantial financial and logistical support to sustain al Qaida’s presence and operations in Afghanistan.” (Id. ¶ 437.) Plaintiffs allege that Prince Naif is the “Chairman of the Saudi Arabian Committee for Support of the Intifada al Quds, [which] knowingly transferred large sums of money to the families of Hamas terrorists who had executed murderous attacks against Israelis.” (Ashton Compl. ¶ 287; Burnett Compl. ¶ 379; Federal Compl. ¶ 439; see also Burnett Compl. ¶ 380 (citing letter written on behalf of Yasser Arafat and claiming this committee funds radical groups).) As a result, Plaintiffs assert that “Prince Naif ... supports suicide martyrs.” (Ashton Compl. ¶ 287; Burnett Compl. ¶ 379.) The Federal Plaintiffs also allege that in 2003, U.S. Senator Charles Schumer asked that Prince Naif be replaced as Interior Minister because of his “well-documented history of supporting terrorist financing and ignoring the evidence when it comes to investigating terrorist attacks on Americans.” (Federal Compl. ¶ 441.) Finally, the Federal Plaintiffs claim Prince Naif made significant personal contributions to Saudi-based charities that were sponsors of al Qaida’s operations, including IIRO, MWL, WAMY, BIF, SHC, SJRC, and al Haramain. (Federal Compl. ¶¶ 442–43.)
[3] The Federal Plaintiffs seek leave to supplement the record against Prince Salman and Prince Naif with an article that appeared in Rus al Yusef, an Egyptian publication, in August 1998. The unidentified author writes that Islamic aid organizations located in Afghanistan, Bosnia, Somalia, and Tajikistan provided funds and cover to terrorists. (See Federal Mot. to Supplement Record on Prince Naif and Prince Salman, Ex. 2, at 2.) Donors to these unidentified organizations “probably ha[d] no idea where their charity money ha[d] gone.” (Id.) Prince Naif reportedly responded that “if charity money is going to illegitimate targets, it must stop immediately.” (Id.) From this submission, the Plaintiffs argue that the Princes knew their charitable donations were going to terrorists.
The submission is problematic for a variety of reasons and will not be accepted. First, Plaintiffs do not provide an explanation as why they were only able to obtain and translate the article on the eve of oral argument—well after the motions were fully submitted. Second, the article and *551 its translation have not been authenticated. More pointedly, however, it simply does not say that the Princes were put on notice regarding specific charities and that they continued to contribute to those charities with the intent that their donations would assist al Qaeda. The Federal Plaintiffs’ motion to supplement the record against Prince Salman and Prince Naif is denied.
B. Defendants’ Status as Foreign States for FSIA Purposes
[4] The FSIA provides the following definition of “foreign state”:
(a) A “foreign state” ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
(b) An “agency or instrumentality of a foreign state” means any entity—
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country.
28 U.S.C. § 1603. Further, “immunity under the FSIA extends also to agents of a foreign state acting in their official capacities [because] [i]t is generally recognized that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly.” Bryks v. Canadian Broad. Corp., 906 F.Supp. 204, 210 (S.D.N.Y.1995) (internal quotations omitted); see also Terrorist Attacks I, 349 F.Supp.2d at 788–89 (finding Princes Sultan and Turki were foreign states for FSIA purposes to the extent Plaintiffs alleged liability for actions taken in their official capacities).
1. SHC
[5] SHC contends that it is an organ, agency, or instrumentality of the Kingdom of Saudi Arabia and acts on behalf of the Kingdom to fund a range of humanitarian relief efforts to Bosnia, Egypt, and Somalia. (See generally Al–Roshood Decl., at Huffman Decl. Ex. A.) In support of its position as a foreign state, SHC submits the affidavits of Dr. Al–Nafissa, a Saudi Arabian lawyer and a Minister of State on the Council of Ministers in the Kingdom of Saudi Arabia, and Mr. Al–Roshood, who has been the Director of the Executive Office of SHC since its inception. The Court notes it is “required to give ‘great weight’ to any extrinsic submissions made by the foreign defendants regarding the scope of their official responsibilities.” Leutwyler v. Office of Her Majesty Queen Rania Al–Abdullah, 184 F.Supp.2d 277, 287 (S.D.N.Y.2001).
King Faud authorized Dr. Al–Nafissa to make his declaration concerning SHC. (Al–Nafissa Decl. ¶ 2, at Huffman Decl. Ex. C.) Dr. Al–Nafissa attests that SHC is “an arm of the Saudi Arabian government [and that its actions] are in keeping with the foreign and domestic governmental policies of the Kingdom of Saudi Arabia.” (Id. ¶ 3.) SHC was formed by Decision of the President of the Council of Ministers in 1993. (Al–Roshood Decl. ¶ 6.) In the same Decision, the Council of Ministers appointed Prince Salman as President of SHC. (Id. ¶ 7.) As President of SHC, Prince Salman is the head of SHC’s Executive Committee and Supreme Commission, members of which Prince Salman appoints. (Id.) SHC is staffed by civil servant employees of the Kingdom of Saudi Arabia. (Id. ¶ 10.)
Dr. Al–Nafissa states that private charities in the Kingdom of Saudi Arabia receive governmental approval through Royal Order, are run by boards, and disburse *552 funds in accordance with their charters. (Al–Nafissa Decl. ¶ 5.) In contrast, governmental commissions, such as SHC, are chaired by a governmental official, like Prince Salman, and conduct their affairs in accordance with the Kingdom’s policy objectives. (Id. ¶ 5.) According to Dr. Al–Nafissa, “[d]ecisions regarding causes to support and recipients for Saudi High Commission funds are within the discretion of the Executive Committee, the Supreme Commission, and Prince Salman.” (Id. ¶ 8.) The Kingdom of Saudi Arabia is SHC’s largest source of funding, having provided approximately 30% of the funds used and distributed by SHC. (Al–Roshood Decl. ¶ 24.) The remainder of SHC funds are collected through fundraisers “in accordance with the directives of ... King Fahd.” (Id. ¶ 5.) SHC can be sued for its administrative acts in the Board of Grievances. (Al–Nafissa Decl. ¶ 8.)
In their complaint, the Federal Plaintiffs alleged that SHC is “an agency, instrumentality and organ of the Kingdom of Saudi Arabia.” (Federal Compl. ¶ 181.) They now back away from that allegation and join other Plaintiffs in disputing SHC’s status. Plaintiffs submit that SHC has repeatedly and systematically described itself as a non-governmental organization in representations to the Bosnian government. (See Plaintiffs’ Mem. in Opp’n to SHC Mot. to Dismiss at 10.) Thus, even if SHC is considered a foreign state, Plaintiffs assert it has implicitly waived its immunity through those representations. See 28 U.S.C. § 1605(a)(1) (FSIA waiver provision). Plaintiffs also argue that it is disingenuous for SHC to simultaneously maintain that it is an organ of the Kingdom and that this Court lacks personal jurisdiction over it when the Kingdom itself did not dispute the personal jurisdiction issue.
In response to Plaintiffs’ arguments that it described itself as a non-governmental organization to Bosnian authorities, SHC submits the declaration of Hadsimuratovic Hajrudin, a Bosnian lawyer who serves as a legal advisor to SHC. (See generally Hajrudin Decl. at SHC Reply Ex. A.) Mr. Hajrudin states that SHC characterized itself as non-governmental in accordance with Article 22 of the Law on Humanitarian Activities and Humanitarian Organizations of the Federation of Bosnia and Herzegovina because SHC is “not considered part of the government of Bosnia–Herzegovina.” (Id. ¶ 4.) Mr. Hajrudin attests that the head of SHC’s European Office received diplomatic status in Bosnia–Herzegovina in 1996 because SHC is an organization of the Saudi government. (Id. ¶ 6.) He also states that the Kingdom of Saudi Arabia is represented by SHC when it makes donations to Bosnia–Herzegovina. (Id.)
[6] There is no dispute that SHC is a separate legal person from the Kingdom and not a citizen of the United States or any third country. See 28 U.S.C. § 1603. Accordingly, the only dispute regarding SHC’s status is whether it is an organ of the Kingdom. In Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir.2004), the Second Circuit considered various factors to determine whether an entity could be considered an organ of a foreign sovereign. Id. at 217. The factors include:
(1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law.
Id. at 217 (citations omitted).
SHC offers undisputed evidence that it was created by the Kingdom’s Council of *553 Ministers to “centralize all charitable giving from the Kingdom to Bosnia–Herzegovina [and that it was] vested with the sole authority to collect and distribute charitable funds in Bosnia.” (Al–Roshood Decl. ¶¶ 5–6; Hajrudin Decl. ¶ 6 & Ex. D (noting the Kingdom of Saudi Arabia provides humanitarian relief to Bosnia through SHC).) The Council of Ministers appointed Prince Salman to supervise SHC. (Al Roshood Decl. ¶¶ 7–9.) The salaries of SHC employees are paid by either the Kingdo