Document Text Content
2012 WL 257568 (C.A.2) (Appellate Brief)
United States Court of Appeals, Second Circuit.
In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001.
Nos. 11-3294-cv(L), 11-3407-cv(CON), 11-3490-cv(CON), 11-3494-cv(CON), 11-3495-cv(CON), 11-3496-cv(CON), 11-3500-cv(CON), 11-3501-cv(CON), 11-3502-cv(CON), 11-3503-cv(CON), 11-3505-cv(CON), 11-3506-cv(CON), 11-3507-cv(CON), 11-3508-cv(CON), 11-3509-cv(CON), 11-3510-cv(CON), 11-3511-cv(CON).
January 20, 2012.
On Appeal from the United States District Court for the Southern District of New York
Appellants’ Consolidated Brief with Respect to Dismissals for Failure to State a Claim and Foreign Sovereign Immunity
Ronald L. Motley, Robert T. Haefele, Motley Rice LLC, 28 Bridgeside Boulevard, Mount Pleasant, South Carolina 29464, (843) 216-9000; Stephen A. Cozen, Elliott R. Feldman, Sean P. Carter, Cozen O’Connor, 1900 Market Street, Philadelphia, Pennsylvania 19103, (215) 665-2000, and Carter G. Phillips, Richard Klingler, Sidley Austin LLP, 1501 K Street, N.W., Washington, D.C. 20005, (202) 736-8000, Attorneys for All Plaintiffs-Appellants.
Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher & Hayes, LLP, 112 Madison Avenue, 7th Floor, New York, New York 10016, (212) 784-6400; Robert M. Kaplan, Ferber Chan Essner & Coller, LLP, 530 Fifth Avenue, 23rd Floor, New York, New York 10036, (212) 944-2200; James P. Kreindler, Justin T. Green, Kreindler & Kreindler LLP, 750 Third Avenue, 32nd Floor, New York, New York 10017, (212) 687-8181; Jerry S. Goldman, Anderson Kill & Olick, P.C., 1251 Avenue of the Americas, New York, New York 10020, (212) 278-1000, Chris Leonardo; Adams Holcomb LLP, 1875 Eye Street N.W., Suite 810, Washington, D.C. 20006, (202) 580-8820, Attorneys for All Plaintiffs-Appellants.
*i Corporate Disclosure Statement
In accordance with Federal Rule of Appellate Procedure 26.1, appellants certify as follows:
11-3509 (Ashton v. Al Qaeda Islamic Army):
Appellants are natural persons.
11-3503, 11-3505, 11-3506, 11-3507 (Burnett v. Al Baraka Investment & Development Corp.):
Appellants are natural persons.
11-3508 (Cantor Fitzgerald & Co. v. Akida Bank Private Limited):
Appellants Cantor Fitzgerald & Co.; Cantor Fitzgerald Securities; Cantor Fitzgerald, L.P.; C02e.com, LLC (now known as Cantor C02e, LLC); and Cantor Index Limited have no parent corporation and there is no public corporation that holds more than 10% of any of them.
Appellant eSpeed, Inc. (now known as BGC Partners, Inc.) has no parent corporation and there is no public corporation that holds more than 10% of it; BCG Partners, Inc. is publicly-held.
Appellants Cantor Fitzgerald Associates, L.P. (now known as BGC Capital Markets, L.P.); Cantor Fitzgerald Brokerage, L.P. (now known as BGC Environmental Brokerage Services, L.P.); Cantor Fitzgerald International (now known as BGC International); Cantor Fitzgerald Partners (now known as Seminole Financial); eSpeed Securities, Inc. (now *ii known as Aqua Securities, L.P.); Tradespark, L.P; and eSpeed Government Securities, Inc. (now known as eSpeed Brokerage, L.P.) have no parent corporation; BGC Partners, Inc., a publicly-traded corporation, owns more than 10% of each of them.
The parent company of Appellant Cantor Fitzgerald Europe is Cantor Fitzgerald, L.P.; no publicly-traded corporation owns more than 10% of it. 11-3510 (Continental Cas. Co. v. Al Qaeda Islamic Army):
Appellants Transcontinental Insurance Company, Transportation Insurance Company, National Fire Insurance Company of Hartford and American Casualty Company of Reading, Pennsylvania are wholly-owned subsidiaries of plaintiff-appellant Continental Casualty Company; plaintiff-appellant Valley Forge Insurance Company is a wholly-owned subsidiary of plaintiff-appellant American Casualty Company of Reading, Pennsylvania; and plaintiff-appellant Continental Casualty Company is a wholly-owned subsidiary of CNA Financial Corp., which is publicly traded.
11-3294, 11-3407 (Estate of John P. O’Neill v. Republic of Iraq):
The Estate is not a corporate entity.
*iii 11-3496, 11-3500, 11-3501, 11-3502 (Euro Brokers, Inc. v. Al Baraka Inv. & Dev. Corp.):
Appellant BGC Brokers US, L.P. (successor to Euro Brokers, Inc.) has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
Appellant BGC Financial, L.P. (f/k/a Maxcor Financial, Inc.) has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
BGC Financial Asset Management, Inc. (successor to Maxcor Financial Asset Management, Inc.) dissolved December 23, 2010.
Appellant BGC Information, L.P. (successor to Maxcor Information, Inc.) has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
Seminole Financial Limited (successor to Euro Brokers Ltd.) has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
Appellant Tradesoft Technologies, Inc. has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
*iv Appellant Euro Brokers Financial Services Limited dissolved April 23, 2008.
Appellant Euro Brokers Mexico, S.A. de C.V. has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
Appellant Euro Brokers (Switzerland) S.A. has no parent corporation; BGC Partners, Inc., a publicly-traded corporation, indirectly owns more than 10% of it.
11-3490, 11-3494, 11-3495, 11-3511 (Federal Ins. Co. v. al Qaida):
Appellants Federal Insurance Company, Pacific Indemnity Company, Chubb Custom Insurance Company, Chubb Indemnity Insurance Company, Chubb Insurance Company of Canada, Chubb Insurance Company of New Jersey, Great Northern Insurance Company, and Vigilant Insurance Company are members of the Chubb Group of Insurance Companies. Appellants’ parent organization, The Chubb Corporation, a publicly traded corporation, owns more than 10% of their stock.
Appellants One Beacon Insurance Company, One Beacon America Insurance Company, American Employers’ Insurance Company, The Camden Fire Insurance Association, and Homeland Insurance Company of New York are members of the One Beacon Insurance Group. Appellants’ *v parent organization, White Mountains Insurance Group Ltd., a publicly traded corporation, owns more than 10% of their stock.
Appellant TIG Insurance Company is a member of the Fairfax Financial Group. Appellant’s parent organization, Fairfax Financial Holdings Ltd, a publicly traded corporation, owns more than 10% of their stock.
Appellants American Alternative Insurance Corporation, Great Lakes Reinsurance U.K. PLC, and The Princeton Excess and Surplus Lines Insurance Company are members of the Munich Re Group. Appellants’ parent organization, Muenchener Rueckversicherungs-Gesellschaft Aktienqesellschaft, a publicly traded corporation, owns more than 10% of their stock.
Appellant Allstate Insurance Company is a member of The Allstate Insurance Group. Allstate Insurance Company is wholly owned by The Allstate Corporation, a publicly traded corporation.
Appellants Boston Old Colony Insurance Company, The Continental Insurance Company, Commercial Insurance Company of Newark, NJ, CNA Casualty of California, Continental Insurance Company of New Jersey, Fidelity and Casualty Company of New York, Glens Falls Insurance Company, and National Ben Franklin Insurance Company of Illinois are *vi members of the CNA Insurance Companies. Appellants’ parent organization, the CNA Financial Corporation, a publicly traded corporation, owns more than 10% of their stock.
Appellant Hiscox Dedicated Corporation Member, Ltd. is a member of Lloyds’ Syndicate 33.
Appellants ACE American Insurance Company, ACE Capital V Ltd for itself and as representative of all subscribing underwriters for ACE Global Markets Syndicate 2488, ACE Bermuda Insurance Ltd, ACE INA (Canada), ACE Indemnity Insurance Company, ACE Insurance SA-NV, ACE Property & Casualty Insurance Company, Atlantic Employers Insurance Company, Bankers Standard Insurance Company, Indemnity Insurance Company of North America, Insurance Company of North America, Westchester Fire Insurance Company, Westchester Surplus Lines Insurance Company, and Pacific Employers Insurance Company are members of ACE INA Group. Appellants’ parent organization, ACE Limited, a publicly traded corporation, owns more than 10% of their stock.
Appellant Woburn Insurance Ltd. is a captive insurance company, wholly owned by Viacom Inc.
Appellants AXA Corporate Solutions Assurance, AXA Corporate Solutions Insurance Company, AXA Corporate Solutions Assurance UK *vii Branch, AXA Corporate Solutions Assurance (Canada), AXA RE Asia Pacific Pte. Limited, AXA RE, AXA RE Canadian Branch, AXA RE UK Plc., AXA Corporate Solutions Reinsurance Company, AXA Art Insurance Corporation, SPS Reassurance, AXA Re Madeira Branch, Compagnie Gererale de Reinsurance de Monte Carlo, AXA Versicherung AG, AXA Cessions and AXA Global Risks UK, Ltd. are members of the AXA Group. Appellants’ parent organization, AXA S.A., a publicly traded corporation, owns more than 10% of their stock
*i TABLE OF CONTENTS
Corporate Disclosure Statement
i
Table of Authorities
v
Preliminary Statement
1
Statement Of Subject Matter and Appellate Jurisdiction
4
Statement of Issues Presented for Review
6
Statement of The Case
8
Nature of the Case and Course of Proceedings
8
Disposition Below
24
Statement Of Facts
24
The Origins of al-Qaeda
24
The Role of Ostensible Charities in al-Qaeda’s Growth and Development
28
Al-Qaeda’s Collaborators in the Financial Industry
42
Al-Qaeda’s Additional Wealthy Financiers
55
Summary of Argument
59
Standard of Review
62
Argument
63
I. The District Court Improperly Dismissed the Anti-Terrorism Act Claims
63
A. The ATA Is Construed Broadly and Readily Encompasses Defendants’ Alleged Conduct
64
B. The District Court Erred In Finding that Plaintiffs Failed to Plead that Defendants Knowingly or Recklessly Provided Support for Terrorism
72
*ii 1. The District Court Applied an Incorrect, Heightened Standard In Evaluating Plaintiffs’ Pleadings
74
2. The District Court Understated and Ignored Plaintiffs’ Extensive Pleadings Addressing Defendants’ Knowing and Reckless Support of Terrorism
77
(a) Al Rajhi Bank
78
(b) Saudi American Bank
81
(c) Saleh Abdullah Kamel and Dallah al Baraka
83
(d) Dar-Al-Maal Al Islami (“DMI”) Trust
86
3. The District Court Failed to Draw Reasonable Inferences From Plaintiffs’ Extensive Additional Pleadings Establishing Defendants’ Knowing and Reckless Support of Terrorism
90
(a) Reasonable inference based on provision of support to al-Qaeda, a notorious terrorist organization
91
(b) Reasonable inference based on provision of support to charities known to be fronts for al-Qaeda
93
(c) Reasonable inference based on defendants’ extensive relationship with the al-Qaeda network
100
4. The District Court Failed to Accept the Truth of the Facts Alleged
112
C. The District Court Incorrectly Disregarded Extensive Allegations of Support to al-Qaeda by Defendants Dallah al Baraka and Saleh Abdullah Kamel in the Early to Mid 1990s
116
II. The District Court Improperly Dismissed The Alien Tort Statute Claims Because The Statute Encompasses Claims Based On Acts Related To International Terrorism
120
*iii A. 0Plaintiffs Alleged That Defendants Violated the ATS By Intentionally Facilitating International Terrorism
123
B. Acts of International Terrorism are a Violation of Customary International Law
123
1. United Nations Security Council resolutions
125
2. International conventions
126
3. Domestic laws of nations
128
4. Congress and federal courts
129
C. International Terrorism Is Sufficiently Definite and of Mutual Concern to States
132
III. The District Court Improperly Dismissed the Torture Victim Protection Act Claims
135
IV. The District Court Improperly Dismissed the Negligence And Intentional Tort Claims
139
A. The District Court Wrongly Dismissed the Negligence Claims
140
B. The District Court Wrongly Dismissed the Intentional Tort Claims
145
1. Plaintiffs’ Claims Are Not Time-Barred
145
1. Plaintiffs Pleaded That Defendants Materially Supported al-Qaeda
148
2. Defendants Who Supported al-Qaeda Through Its Network Are Liable
149
V. The Court Should Reverse The Dismissals Of NCB and the Sovereign Defendants Based Upon Doe v. Bin Laden
151
A. The Sovereign Defendants And NCB Were Dismissed Under Terrorist Attacks III
152
B. Doe Overruled Terrorist Attacks III
154
*iv C. The Court Should Reverse the Dismissals of the Sovereign Defendants and NCB and Remand For Jurisdictional Discovery
155
Conclusion
156
Certificate Of Compliance Pursuant to FRAP 32(a)(7)(A)
160
*v TABLE OF AUTHORITIES
Cases
Abdullahi v. Pfizer, Inc., 130 S. Ct. 3541 (2010)
124
Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009)
124, 136, 137
Abecassis v. Wyatt, 785 F. Supp. 2d 614 (S.D. Tex. 2011)
68, 71, 101, 118
Abrahams v. Young & Rubicam Inc., 79 F.3d 234 (2d Cir. 1996)
66
Ahern v. Cnty. of Nassau, 118 F.3d 118 (2d Cir. 1997)
158
Al Alwi v. Obama, 653 F.3d 11 (D.C. Cir. 2011)
111, 112
Al-Adahi v. Obama, 131 S. Ct. 1001 (2011)
103
Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010)
passim
Al-Bihani v. Obama, 131 S. Ct. 1814 (2011)
111
Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)
111, 112
Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007)
100, 131, 132, 136
Amaker v. N.Y. State Dep’t of Corr. Servs., 435 F. App’x 52 (2d Cir. 2011)
65
Arndt v. UBS AG, 342 F. Supp. 2d 132 (E.D.N.Y. 2004)
138
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)
passim
Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011)
103, 0109, 116, 140
Balt. & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317 (1883)
140
Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008)
passim
Boim v. Quranic Literacy Inst. & Holy Land Found. for Relief and Dev., 291 F.3d 1000 (7th Cir. 2002)
67, 71, 78
Bougher v. Univ. of Pittsburgh, 882 F.2d 74 (3d Cir. 1989)
149
Bovsun v. Sanperi, 61 N.Y.2d 219 (1984)
147
Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010)
140
*vi Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001)
141
Calder v. Jones, 465 U.S. 783 (1984)
15
Carpenter v. Republic of Chile, 610 F.3d 776 (2d Cir. 2010)
16
Carter v. Barry, 468 F.2d 821 (2d Cir. 1972)
158
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002)
65
Clinton v. City of New York, 524 U.S. 417 (1998)
94, 141
Doe v. Bin Laden, 663 F.3d 64, 2011 U.S. App. Lexis 22516 (2d Cir. 2011)
passim
Ex parte Quirin, 317 U.S. 1 (1942)
126
Federal Ins. Co. v. Kingdom of Saudi Arabia, 129 S. Ct. 2859 (2009)
16
Federal Ins. Co. v. Kingdom of Saudi Arabia, 2009 WL 1539068 (2009)
iii, 15
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
126
Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325 (2d Cir. 2005)
148
Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003)
126, 137
Foster v. Auburn Univ., No. 11-CV-503, 2011 U.S. Dist. LEXIS 141056 (M.D. Ala. Dec. 8, 2011)
100
Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Rep., 582 F.3d 393 (2d Cir. 2009)
23, 156
Goldberg v. UBS AG, 660 F. Supp. 2d 410 (E.D.N.Y. 2009)
101, 153
Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001)
143, 146
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)
68, 71, 72
Holmes v. Lorch, 329 F. Supp. 2d 516 (S.D.N.Y. 2004)
148
In re Chiquita Brands Int’l, Inc., 690 F. Supp. 2d 1296 (S.D. Fla. 2010)
99
In re Issuer Plaintiff Initial Pub. Offering Antitrust Litig., 00 CTV 7804 (LMM), 2004 WL 487222 (S.D.N.Y. Mar. 12, 2004)
150
*vii In re Terrorist Attacks on September 11, 2001,349 F. Supp. 2d 765 (S.D.N.Y 2005)
passim
In re Terrorist Attacks on September 11, 2001, 392 F. Supp. 2d 539 (S.D.N.Y 2005)
passim
In re Terrorist Attacks on September 11, 2001, 462 F. Supp. 2d 561 (S.D.N.Y. 2006)
passim
In re Terrorist Attacks on September 11, 2001, 464 F. Supp. 2d 335 (S.D.N.Y. 2006)
passim
In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008)
passim
In re Terrorist Attacks on September 11, 2001, 718 F. Supp. 2d 456 (S.D.N.Y. 2010)
passim
In re Terrorist Attacks on September 11, 2001, 740 F. Supp. 2d 494 (S.D.N.Y. 2010)
passim
Johnson v. Nyack Hosp., 86 F.3d 8 (2d Cir. 1996)
150
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996)
125
Khulumani v. Barclay Nat’l Bank. Ltd., 504 F.3d 254 (2d Cir. 2007)
139
Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005)
71, 81
Luddeke v. Amana Refrigeration, Inc., 387 S.E.2d 502 (Va. 1990)
149
Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57 (2d Cir. 2011)
92, 115, 116, 147
Mohamad v. Rajoub, 132 S. Ct. 454 (2011)
98, 139, 140, 141
Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (D.D.C. 2010)
141
Nat’l Council of Resistance of Iran v. Dep’t of State, 373 F.3d 152 (D.C. Cir. 2004)
118, 153
Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972)
148
Redding v. Edwards, 569 F. Supp. 2d 129 (D.D.C. 2008)
100
Rivera v. Heyman, 157 F.3d 101 (2d Cir. 1998)
158
Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010)
103, 111, 113, 114
Samantar v. Yousuf, et al., 130 S. Ct. 2278 (2010)
16
*viii Schneberger v. Wheeler, 859 F.2d 1477 (11th Cir. 1988)
100
Sickles v. Montgomery Ward & Co., 167 N.Y.S.2d 977 (N.Y. Sup. Ct. 1957)
145
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009)
139
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
124, 133, 136
Splawnik v. DiCaprio, 540 N.Y.S.2d 615 (N.Y. App. Div. 1989)
144
Strauss v. Credit Lyonnais, S.A., No. CV-06-0702, 2006 U.S. Dist. LEXIS 72649 (E.D.N.Y. Oct. 5, 2006)
101
Sys. v. Masterson Mktg., No. 11-CV-695, 2011 U.S. Dist. LEXIS 135216 (S.D. Cal. Nov. 23, 2011)
100
Thorpe v. Housing Auth., 393 U.S. 268 (1969)
158
U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., No. 10-CV-1842, 2011 U.S. Dist. LEXIS 106657 (N.D. Tex. Sept. 19, 2011)
100
Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005)
141
United States v. Augustin, 661 F.3d 1105 (11th Cir. 2011)
100
United States v. Bahlul, No. 09-001, 2011 U.S. CMCR LEXIS 3 (CMCR Sept. 9, 2011)
passim
United States v. Bin Laden, et al., 397 F. Supp. 2d 465 (S.D.N.Y. 2005)
47
United States v. El-Mezain, No. 09-1560, 2011 U.S. App. LEXIS 24216 (5th Cir. Dec. 7, 2011)
100
United States v. Hamdan, 801 F. Supp. 2d 1247 (CMCR 2011)
131, 132, 137
United States v. Kassir, No. 09-CR-356, 2009 U.S. Dist. LEXIS 83075 (S.D.N.Y. Sept. 11, 2009)
101
United States v. Smith, 18 U.S. 153 (1820)
136
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003)
passim
United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991)
125
Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011)
111, 113, 114
Weiss v. Nat’l Westminster Bank PLC, 453 F. Supp. 2d 609 (E.D.N.Y. 2006)
passim
*ix Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1 (D.D.C. 2010)
passim
Yeadon v. New York Transit Auth., 719 F. Supp. 204 (S.D.N.Y. 1989)
150
Statutes, Rules, and Regulations
10 U.S.C. § 950v(b)(24)
133
10 U.S.C. § 950v(b)(25)(A)
133
18 U.S.C. § 2332B
70
18 U.S.C. § 2333
65
18 U.S.C. § 2333(a)
69
18 U.S.C § 2339A
70, 100, 134
18 U.S.C. § 2339B
68, 70, 78, 100
18 U.S.C. § 2339C
70, 134
28 U.S.C. § 1350
5, 7, 123, 138
42 Pa. Consol. Stat. § 5524(1)
149
42 Pa. Consol. Stat. § 5524(7)
149
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 301(a)(7), 110 Stat. 1214 (1996)
68
Fed. R. Civ. P. 8(a)(2)
76
N.Y. C.P.L.R. 215(3)
148
Other Authorities
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charges, 50 I.L.M. 513, 536 (Spec. Trib. For Leb. July 2011)
130, 131
International Convention for the Suppression of the Financing of Terrorism (Dec. 9, 1999)
130
Restatement (Second) of Torts (1965), § 390
144
S. Rep. No. 102-249 (1991)
142
S.C. Res. (Oct. 8, 2004)
129
*x S.C. Res. 1189, U.N. Doc. S/RES/1189 (Aug. 13, 1998)
127
S.C. Res. 1214, U.N. Doc. S/RES/1214 (Dec. 8, 1998)
128
S.C. Res. 1373 (Sept. 28, 2001)
128
S.C. Res. 1377 (Nov. 12, 2001)
128
*1 Preliminary Statement
Plaintiffs-Appellants are family members of the nearly 3,000 people killed in the September 11, 2001 terrorist attacks; thousands of individuals who were severely injured as a result of the attacks; and commercial entities that incurred billions of dollars of property damage and other losses as a result of the attacks (collectively “the September 11th plaintiffs” and/or “plaintiffs”). Consistent with the rights conferred upon them by the Anti-Terrorism Act (ATA), Torture Victim Protection Act (TVPA), Alien Tort Statute (ATS), and long-standing principles of common law concerted action liability, plaintiffs brought these lawsuits, which were consolidated below by the Judicial Panel on Multi-District Litigation, to hold accountable the charities, financial institutions, individuals and other parties that knowingly provided material support or resources to al-Qaeda for more than a decade before September 11, 2001, and thereby provided al-Qaeda with the means to successfully conceive, plan, coordinate, and carry out the September 11th Attacks. The district court dismissed plaintiffs’ claims against five defendants-appellees (“Defendants”) pursuant to Fed.R.Civ.P. 12(b)(6), holding that, despite the existence of remedies specifically designed for victims of terrorist attacks, plaintiffs *2 were entitled to seek no relief against those who had supported, conspired with, and/or aided and abetted al-Qaeda in carrying out the worst terrorist attack ever to take place on American soil.1 This Court should reverse the district court’s rulings with respect to these Defendants -- Al Rajhi Banking & Investment Corp. (“Al Rajhi Bank”), Saudi American Bank, Saleh Abdullah Kamel, Dallah al Baraka, and Dar-Al-Maal Al Islami (“DMI”) Trust -- because the pleadings sufficiently allege that each of these Defendants knowingly provided material support and resources to al Qaeda in the years leading up to the September 11th Attacks, so that each of them is properly held accountable under the ATA, the TVPA, RICO, the ATS, and/or the common law.
Taken collectively, the facts and allegations contained in the plaintiffs’ complaints, RICO and More Definite Statements, and extrinsic materials formed a vast record, spanning literally tens of thousands of *3 pages. Evaluated in a manner consistent with the standards of review for motions addressed to the adequacy of pleadings, the vast record presented by plaintiffs to the district court established that plaintiffs’ allegations were sufficient to state claims against the Defendants under the ATA and other relevant causes of action.
In the face of these extraordinarily detailed and supported pleadings, which more than satisfied the requirements of Rule 8, the district court nonetheless held plaintiffs to an improper heightened pleading standard, specially applicable to cases involving allegations of terrorism. Nothing in the Federal Rules of Civil Procedure, and no precedent of this Court or any other of which plaintiffs are aware, authorized this heightened standard, nor is such a heightened standard appropriate for plaintiffs who have suffered such grievous injuries or for defendants who are alleged to have committed such heinous acts.
The district court also ignored the wealth of details provided by plaintiffs in their supplemental filings, failed to credit the allegations in the pleadings, and failed to draw inferences in the plaintiffs’ favor. The court also misconstrued the scope of the Alien Tort Statute, under the erroneous belief that acts of international terrorism do not, in and of themselves, *4 violate the “laws of nations” unless they involve the hijacking of an airplane. The court also applied the wrong statute of limitations to certain of plaintiffs’ claims and misconstrued the scope of the TVPA. The combination of these errors resulted in the dismissal of all of plaintiffs’ claims against some of the most significant financial institutions that provided knowing support to al-Qaeda, enabling it to train the September 11 hijackers and plan and carry out the attacks. And, in dismissing three Defendants on the basis of sovereign immunity, the district court applied a decision of this Court that has since been overruled.
This Court should reverse the judgment of the district court and hold that plaintiffs may pursue their claims against these financial sponsors of terrorism.
Statement Of Subject Matter and Appellate Jurisdiction
The United States District Court for the Southern District of New York had subject matter jurisdiction over these actions pursuant to 28 U.S.C. § 1330, 1331, 1332, 1350, 1367, 1407, and 1605, 18 U.S.C. §§ 1964 and 2338, and 49 U.S.C. §40101. Plaintiffs assert claims under the Anti-Terrorism Act, 18 U.S.C. §§ 2331 et seq., and under the Racketeer-Influenced and Corrupt Organizations (“RICO”) statute, *5 18 U.S.C. §§ 1962 et seq., which conferred jurisdiction on the district court through the specific grants of jurisdiction applicable to each statute and pursuant to 28 U.S.C. § 1331. In some of the underlying cases, plaintiffs and defendants were diverse, in that defendants were citizens of foreign states or of states different from the states in which plaintiffs were citizens. Plaintiffs who are not U.S. persons assert claims for violations of international law, over which the district court had jurisdiction pursuant to the Alien Tort Statute, 28 U.S.C. § 1350. The district court further had supplemental jurisdiction over plaintiffs’ common law claims pursuant to 28 U.S.C. § 1367. Where defendants claimed immunity under the Foreign Sovereign Immunities Act and plaintiffs asserted the application of one or more exceptions to immunity, the court had jurisdiction pursuant to 28 U.S.C. §§ 1330 & 1605. In addition, actions originally filed in other jurisdictions were transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C. § 1407.
This Court has appellate jurisdiction of this matter pursuant to 28 U.S.C. § 1291. The district court dismissed defendants in this case in six orders dated January 18, 2005 (In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (“Terrorist Attacks”) (S.D.N.Y 2005)); September *6 21, 2005 (In re Terrorist Attacks on September 11, 2001, 392 F. Supp. 2d 539 (“Terrorist Attacks II”) (S.D.N.Y 2005)); November 20, 2006 (In re Terrorist Attacks on September 11, 2001, 462 F. Supp. 2d 561 (“SAMBA I”) (S.D.N.Y. 2006)); December 14, 2006 (In re Terrorist Attacks on September 11, 2001, 464 F. Supp. 2d 335 (“DMI-Kamel”) (S.D.N.Y. 2006)); June 17, 2010 (In re Terrorist Attacks on September 11, 2001, 718 F. Supp. 2d 456 (“Terrorist Attacks IV”) (S.D.N.Y. 2010)); and September 13, 2010 (In re Terrorist Attacks on September 11, 2001, 740 F. Supp. 2d 494 (“Terrorist Attacks V”) (S.D.N.Y. 2010)).2 Additional defendants remain in the case, which is still pending below. On July 14, 2011, the district court entered a partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure in favor of 75 defendants dismissed in those four orders, including each of the appellees. Plaintiffs timely filed their notices of appeal on August 9, 2011, August 10, 2011, and August 11, 2011.
Statement of Issues Presented for Review
1. Whether plaintiffs’ allegations, accepted as true and with all reasonable inferences drawn from them in plaintiffs’ favor, constitute a *7 prima facie showing that each of five defendants, for purposes of 18 U.S.C. § 2333, knew that or recklessly disregarded whether al-Qaeda was the recipient of the financial and other support each defendant was providing to al-Qaeda.
2. Whether, for purposes of claims asserting violations of “the law of nations” under the Alien Tort Statute, 28 U.S.C. § 1350, such violations include acts of international terrorism or are limited to the hijacking of commercial airplanes.
3. Whether claims arising under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, can be asserted against defendants who are not natural persons, including corporations and other legal entities.
4. Whether plaintiffs’ allegations, accepted as true and with all reasonable inferences drawn from them in plaintiffs’ favor, constitute a prima facie showing that defendants who provided material support to al-Qaeda owed a duty of care, in relation to negligence claims, to victims of an al-Qaeda attack in the United States.
5. Whether plaintiffs’ intentional tort claims related to the September 11, 2001 attacks in Virginia and Pennsylvania are subject to New York’s one-year statute of limitations.
*8 6. Whether plaintiffs’ intentional tort claims related to the September 11, 2001 attacks in New York, Virginia, and Pennsylvania are subject to equitable tolling even if subject to New York’s one-year statute of limitations.
7. Whether the dismissals of three defendants, based on a decision of this Court construing 28 U.S.C. § 1605(a)(5), should be vacated because this Court has overruled that earlier decision since the filing of notices of appeals.
Statement of The Case
Nature of the Case and Course of Proceedings
On September 11, 2001, members of the al-Qaeda3 terrorist organization hijacked four commercial airliners and used those planes as weapons in a coordinated attack on the United States (“the September 11th Attacks”). The September 11th Attacks were the culmination of a campaign to wage jihad against the United States, set in motion with the formation of al-Qaeda in 1988 and made possible by the massive financial, logistic, and material support provided to al-Qaeda by its collaborators and *9 sympathizers over a period of many years. That support allowed al-Qaeda to build the global infrastructure necessary to plan and conduct the September 11th Attacks.
Through their suits, plaintiffs seek to hold accountable the states, purported charities, banks, organizations and individuals who knowingly provided material support or resources to al-Qaeda, thereby making the September 11th Attacks possible. Plaintiffs’ complaints assert claims under the Anti-Terrorism Act, Alien Tort Statute, Torture Victim Protection Act, and common law theories of concerted action liability. Plaintiffs initiated their respective actions between August 15, 2002 and September 2, 2004.
In presenting their substantive claims and theories of jurisdiction against the defendants, and in responding to the various motions to dismiss, plaintiffs offered detailed factual allegations in their respective complaints concerning the origins of al-Qaeda, the vast infrastructure that fueled that organization’s growth and development, and al-Qaeda’s systematic and public targeting of the United States and its citizens beginning in 1988. JA3775-78.4 Within this broader framework, the *10 pleadings described the particular character of the defendants’ collaboration with al-Qaeda, and the nature of the material support and resources they provided to al-Qaeda in furtherance of its jihad against the United States. JA3602-3728, 3778-3876.
Plaintiffs in virtually all cases later filed one or more amended complaints, and numerous RICO Statements and/or More Definite Statements as to individual defendants, which served to amend their respective complaints.5 Those supplemental pleadings offered additional details concerning the individual defendants’ roles in supporting al-Qaeda, based largely on the flow of new evidence and information uncovered as a result of the intensive investigations initiated following the September 11th Attacks concerning the sources of al-Qaeda’s vast financial and logistical support.
On December 9, 2003, the Judicial Panel on Multidistrict Litigation issued an order transferring the Burnett action from the District of Columbia to the Southern District of New York and consolidating all then-indicated, citations to the record refer to the docket numbers on the MDL 1570 docket sheet. *11 pending cases against al-Qaeda’s material sponsors and supporters arising from the September 11th Attacks. The September 11th MDL was assigned to Judge Richard Casey, who presided over the consolidated proceedings until his death on March 22, 2007. On April 20, 2007, the September 11th MDL was re-assigned to Judge George Daniels, who has since presided over the trial court proceedings.
Between 2002 and 2005, approximately 100 defendants entered appearances in the cases comprising the September 11th MDL and, with one exception, moved to dismiss the claims against them. In general terms, the defendants’ motions sought dismissal principally under one or more of the following theories: (1) lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA); (2) lack of personal jurisdiction; and/or (3) failure to state a claim.
In response to defendants’ motions seeking dismissal for lack of personal jurisdiction and/or subject matter jurisdiction and under the Foreign Sovereign Immunities Act (FSIA), plaintiffs supplemented their already detailed allegations record relevant to those jurisdictional disputes through extrinsic information and evidence filed in support of their oppositions to the Defendants’ motions to dismiss. These materials *12 included, inter alia, governmental and intelligence reports, documents released in response to Defendants’ Freedom of Information Act (FOIA) requests, U.S. filings in criminal trials, Congressional testimony, analyses authored by counterterrorism experts and think tanks, Treasury Department statements concerning designations of terror sponsors and supporters pursuant to Executive Order 13224, as well as relevant public reporting.
On January 18, 2005, Judge Casey issued his decision in Terrorist Attacks I, dismissing claims against, inter alia, the Kingdom of Saudi Arabia and several Saudi Princes on sovereign immunity and personal jurisdiction grounds. Judge Casey held that the FSIA protected the Princes from claims arising from actions undertaken in their official capacities. SPA25. The decision also dismissed claims against Al Rajhi Bank in the Burnett action for failure to state a claim, a ruling that was then extended to the remaining MDL cases by Order dated May 5, 2005. SPA57, 2548-51.
On September 21, 2005, Judge Casey issued a second opinion, Terrorist Attacks II, dismissing claims in certain of the MDL cases against two additional Saudi Princes, again on FSIA and personal jurisdiction grounds, as well as claims against the Saudi High Commission for Relief of *13 Bosnia & Herzegovina (SHC), a purported charity operating as an alter-ego of the Saudi government, also under the FSIA. SPA76-77, 81, 98.
On December 16, 2005, the district court certified as final pursuant to Rule 54(b) its orders of January 18, 2005, May 5, 2005, and September 21, 2005 with respect to the Kingdom, Princes, SHC, and several other defendants, but not as to Al Rajhi Bank. Docket # 1554.
Plaintiffs filed appeals as to the dismissals of the Kingdom, five Princes and SHC, and a panel of this Court issued a decision concerning those appeals on August 14, 2008. Terrorist Attacks III, 538 F.3d 71. Affirming the dismissals of the Kingdom and SHC, the Panel held that tort claims against foreign states for injuries resulting from a terrorist attack on U.S. soil may not be brought under the FSIA’s non-commercial torts exception, 28 U.S.C. §1605(a)(5), but must instead be brought exclusively under the FSIA’s so-called State Sponsor of Terrorism exception, 28 U.S.C. §1605A. Id. at 80-86. Because Saudi Arabia is not a designated State Sponsor of Terrorism, the Panel deemed the Kingdom and SHC immune from the September 11th plaintiffs’ tort claims. Id. In also affirming dismissals of four of the Princes for conduct undertaken in their official capacities, the Panel ruled that individual foreign officials are entitled to *14 the protections of the FSIA. Id. at 90-92. Finally, the Panel affirmed the dismissals of all five Princes for claims arising from their personal, nongovernmental activities, holding that the exercise of personal jurisdiction over them for the claims as pled would not comport with due process. Id. at 93-95.
Plaintiffs thereafter sought review by the U.S. Supreme Court of each of these three principal holdings. In response to a request from the Supreme Court, the United States filed an amicus brief on May 29, 2009, expressing its views that this Court’s reasoning was flawed with respect to each of the holdings. Br. for the United States, Federal Ins. Co. v. Kingdom of Saudi Arabia, 2009 WL 1539068 (2009). With regard to the decision’s due process analysis, the United States stated “[i]t is unclear precisely what legal standard the court of appeals applied in affirming the district court’s holding that it lacked personal jurisdiction over the Princes for their personal actions .... To the extent the court of appeals’ language suggests that a defendant must specifically intend to cause injury to residents in the forum before a court there may exercise jurisdiction over him, that is incorrect. It is sufficient that the defendant took ‘intentional * * * tortious, actions’ and ‘knew that the brunt of th[e] injury would be felt’ in the *15 foreign forum.” Id. at *19, (quoting Calder v. Jones, 465 U.S. 783, 789-790 (1984)). Even so, the United States argued that the questions presented by the Petition did not warrant review by the Court. Id. at *22. The Supreme Court denied the petition for review. Federal Ins. Co. v. Kingdom of Saudi Arabia, 129 S. Ct. 2859 (2009).
A few months later, the Supreme Court accepted review of another case raising the applicability of the FSIA to claims against individual foreign officials and unanimously held that the FSIA does not apply to individual officials of foreign states. Samantar v. Yousuf, et al., 130 S. Ct. 2278 (2010). This Court subsequently acknowledged that Samantar “abrogated [Terrorist Attacks III] insofar as it held FSIA applied to individual officials.” Carpenter v. Republic of Chile, 610 F.3d 776 (2d Cir. 2010).
Throughout the course of the prior appeals to this Court and related proceedings before the Supreme Court, approximately 90 initial Rule 12 motions remained pending before the district court. Following Terrorist Attacks III, the district court directed the parties to submit supplemental briefs concerning the import of that decision to the remaining motions to *16 dismiss, as well as lists identifying those defendants’ motions as to which the holdings in Terrorist Attacks III were dispositive.
In their submissions, plaintiffs conceded that Terrorist Attacks III was dispositive as to the immunity defenses asserted by the Saudi Red Crescent Society (SRC) and Saudi Joint Relief Committee for Kosovo and Chechnya (SJRC), two purported charity alter-egos of the Kingdom. As Terrorist Attacks III purported to resolve the entitlement of only senior foreign officials to FSIA immunity, plaintiffs asserted that the import of that holding as to the immunity defenses asserted by several remaining defendants, who allegedly held more junior positions in foreign governments, was unclear. Struggling to interpret the precise meaning of Terrorist Attacks III’s personal jurisdiction holding, plaintiffs submitted that the decision could be interpreted as drawing a distinction between direct and indirect support of terrorism for due process purposes, and that Terrorist Attacks III should not be read to allow defendants with direct ties to al-Qaeda to evade jurisdiction. Plaintiffs expressly reserved their right to argue on appeal that, among other things, a rule immunizing indirect sponsors of terrorism from the jurisdiction of U.S. courts for injuries *17 suffered in the United States on due process grounds is incorrect and inconsistent with controlling precedent.
For their part, the defendants asserted that Terrorist Attacks III should be read to require, for purposes of due process, a showing that the defendant “intentionally provided funding to support the September 11 attacks against the United States.” R.2140, 1-2, 13.
On February 4, 2009, plaintiffs filed a Notice of Supplemental Authority bringing to the district court’s attention the Seventh Circuit’s decision in Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685, 693 (7th Cir. 2008 (en banc) (Boim III). R. 2156. In its decision, the Seventh Circuit comprehensively discussed the substantive liability standards governing civil claims under the ATA, and the findings and policies that prompted the Legislative and Executive Branches to establish a civil cause of action for the benefit of terror victims against material sponsors and supporters of terrorism. The Boim III court held that liability under the ATA extends to any person who knowingly or recklessly provided material support or resources to the terrorist organization responsible for the plaintiff’s injuries, whether directly or indirectly, and that a plaintiff in an ATA case need not allege any specific or temporal link *18 between the defendant’s support and the attack producing the plaintiff’s injury. Id. at 688-702.
On June 17, 2010, Judge Daniels issued an opinion, Terrorist Attacks IV, resolving the motions to dismiss of thirty-seven defendants, and holding that thirty-six of those defendants were entitled to dismissal for lack of personal jurisdiction. SPA152-211. The defendants dismissed through that decision included Appellees Abdullah bin Laden, Bakr bin Laden, Omar bin Laden, Tariq bin Laden, Yeslam bin Laden, Dallah Avco Trans-Arabia Co. Ltd. (Dallah Avco), DMI Administrative Services, Faisal Islamic Bank, Saleh al Hussayen, Yousef Jameel, Abdulrahman bin Mahfouz, Khaled bin Mahfouz, National Commercial Bank (NCB), Abdullah al Obeid (Obeid), Abdullah al Rajhi, Saleh al Rajhi, Suleiman al Rajhi, Schreiber & Zindel Treuhand Anstalt, Frank Zindel, Engelbert Schreiber, Sr., Engelbert Schreiber, Jr., Al Shamal Islamic Bank (Shamal), Abdul Rahman al Swailem (Swailem), Tadamon Islamic Bank (Tadamon), Abdullah Muhsen al Turki (Turki), Martin Wachter, Erwin Wachter, Sercor Treuhand Anstalt, and Asat Trust (Asat).
Generally, the district court predicated the dismissals of those Appellees on its conclusions that: (1) a defendant’s indirect funding of al- *19 Qaeda through a charitable intermediary “is, under controlling Second Circuit law, of no jurisdictional import,” see SPA196; or (2) plaintiffs were required, but failed, to present allegations and facts sufficient to demonstrate the defendant’s “specific intent that [his support for al-Qaeda] be used to aid al-Qaeda in the commission of a terrorist attack against the United States, see SPA197. In certain cases, the district court went further, appearing to require allegations or facts (or even evidence) directly linking the defendant to the September 11th Attacks. See SPA194.
On September 13, 2010, Judge Daniels issued another decision concerning the motions to dismiss for lack of personal jurisdiction of an additional seven defendants, and thirty-three defendants’ motions to dismiss for failure to state a claim. SPA214-253 (Terrorist Attacks V, 740 F. Supp. 2d 494). The district court granted the motions of all seven defendants seeking dismissal for lack of personal jurisdiction, thereby dismissing Appellees Abdullah Naseef (Naseef), Sulaiman al-Ali (Ali), Adnan Basha (Basha), Jamal Khalifa (Khalifa), Aqeel Al-Aqeel (Aqeel), Yassin al Kadi (al Kadi), and Soliman al-Buthe (al-Buthe). SPA217-227. The reasoning in support of those dismissals generally followed that offered by the district court relative to the dismissals in Terrorist Attacks *20 TV. As a component of its rulings dismissing two of the defendants-Appellees, the district court specifically held that a defendant’s “terrorist designation” by the U.S. government for sponsoring al-Qaeda is insufficient to confer personal jurisdiction, Terrorist Attacks V, 740 F. Supp. 2d at 508, and that a defendant’s status as “a key al Qeda operative” and direct participation in several al-Qaeda plots and attacks other than 9/11 was insufficient to establish jurisdiction absent an allegation that he “played any role in the 9/11 terrorist attacks” or “had authority to steward the direction of al-Qaeda’s terrorist operation.” SPA223. Terrorist Attacks Valso granted motions to dismiss for failure to state a claim, under the Anti-Terrorism Act, of Appellees Dar al-Maal-al Islami Trust (DMI Trust), Saleh Abdullah Kamel (Kamel), and al Baraka Investment and Development Corp (al Baraka). The dismissal was primarily based on the conclusion that plaintiffs did not adequately allege that those defendants knew, or recklessly disregarded, that the recipients of their support advanced al-Qaeda’s activities -- despite plaintiffs’ detailed pleading of defendants’ extensive dealings with al-Qaeda and its network of supporting entities. The Court also granted particular defendants’ motions *21 to dismiss claims predicated on the Torture Victims’ Protection Act, the Alien Tort Statute, RICO, and common law causes of action.
On October 7, 2010, the parties jointly requested that the district court enter Rule 54(b) final judgments in favor of all defendants dismissed through Terrorist Attacks IV and Terrorist Attacks V, as well as with respect to dismissals effectuated through the Terrorist Attacks I and Terrorist Attacks II decisions, to the extent not within the scope of the January 10, 2006 Rule 54(b) judgment. Seventy-five defendants fell within the scope of that joint request.
The district court granted the parties’ joint request for entry of Rule 54(b) judgments on July 13, 2011, and the clerk of court entered final judgment in favor of the seventy-five defendants pursuant to Rule 54(b) on July 14, 2011. Plaintiffs in all actions filed timely Notices of Appeal as to all Rule 54(b) defendants within the scope of their respective actions.
Following the filing of plaintiffs’ Notices of Appeal, this Court issued its decision in Doe v. Bin Laden, 663 F.3d 64, 2011 U.S. App. Lexis 22516 (2d Cir. 2011) (per curiam), another of the cases comprising the September 11th MDL. In Doe, the Court held that the FSIA’s “terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort *22 exception, provides an additional basis for jurisdiction.” Id. at *19 (emphasis added). Therefore, the Court concluded, “the noncommercial tort exception [§ 1605(a)(5)] can be a basis for a suit arising from the terrorist acts of September 11, 2001.” Id. The Court remanded the case against Afghanistan for jurisdictional discovery. Id. at *20-21.
The Court recognized that its holding conflicted with and abrogated the prior panel’s decision in Terrorist Attacks III, and noted that the Circuit had employed its mini-en banc procedure, whereby the new decision had been circulated to all active judges and had received no objections, including from members of the panel that decided Terrorist Attacks III. Id. at *19-20 n.10. Doe, therefore, is now the law of this Circuit, and Terrorist Attacks Ill’s holding regarding § 1605(a)(5) has been overruled. See Frontera, 582 F.3d at 400 (applying the mini-en banc process and holding that “to the extent that” an earlier opinion “conflicts with our holding today ... it is overruled”).
In light of Doe, plaintiffs moved this Court to summarily vacate the dismissals in favor of defendants’ SRC, SJRC and NCB, and remand those claims for discovery, on the grounds that Doe abrogates and overrules the legal basis for those dismissals. Appellants’ Motion to Summarily Vacate *23 and Remand, Case No. 11-3294, Docket # 243, at p. 7. Those defendants sought and received an extension of time until January 23, 2012 to respond to that Motion, which remains pending as of the date of the filing of this brief.
In an effort to narrow the scope of these appeals, plaintiffs in all cases agreed voluntarily to withdrew the appeals as to twenty-two defendants.6 Several additional non-dispositive stipulations of dismissal were filed in individual cases as to other Appellees. As a result, these appeals now focus on the dismissals for failure to state a claim of defendants Al Rajhi Bank, Saudi American Bank (SAMBA), DMI Trust, Kamel, and Dallah al Baraka, and the dismissals for lack of personal jurisdiction of defendants Abdullah bin Laden, Bakr bin Laden, Omar bin Laden, Tariq bin Laden, Yeslam bin Laden, Dallah Avco, DMI Administrative Services, Faisal Islamic Bank, Saleh al Hussayen, Yousef Jameel, Abdulrahman bin Mahfouz, Khaled bin Mahfouz, NCB, Obeid, Abdullah al Rajhi, Saleh al Rajhi, Suleiman al Rajhi, Schreiber & Zindel Treuhand Anstalt, Frank Zindel, Engelbert Schreiber, Sr., Engelbert Schreiber, Jr., Shamal, Swailem, Tadamon, Turki, Martin *24 Wachter, Erwin Wachter, Sercor Treuhand Anstalt, Asat, Naseef, Ali, Basha, Khalifa, Aqeel, al Kadi, and al-Buthe. Disposition Below
As noted above, in Terrorist Attacks I, Terrorist Attacks II, SAMBA I, DMI-Kamel, Terrorist Attacks IV, and Terrorist Attacks V, the district court dismissed all claims against the defendant-appellees. Thereafter, the court entered partial final judgment pursuant to Rule 54(b). This brief addresses the district court’s dismissals of plaintiffs’ ATA, ATS, TVPA, and torts claims against Al Rajhi Bank, Saudi American Bank, DMI Trust, Saleh Abdullah Kamel, and Dallah al Baraka for failure to state a claim under Rule 12(b)(6), and dismissals of the Saudi Joint Relief Committee, Saudi Red Crescent Society, and National Commercial Bank for lack of subject matter jurisdiction under the FSIA.
Statement Of Facts
The Origins of al-Qaeda
As alleged in plaintiffs’ pleadings and confirmed by countless governmental investigations, al-Qaeda has its origins in the jihad against the Soviet occupation of Afghanistan, which served as a rallying point for *25 Islamic extremists in the Middle East.7 In 1980, Osama bin Laden tra