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IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
765
tain general jurisdiction over them, all
claims asserted against those individual
defendants are dismissed for lack of personal
jurisdiction.
3. Plaintiffs Are Entitled to Jurisdictional
Discovery as to Privatbank’s
Investing Activities in the United
States
[37] Plaintiffs point out that Privatbank’s
website and its 2001 Annual Report
state that Privatbank engages in transactions
involving securities issued in the
United States. (2001 Annual Report at 3,
attached to Affidavit of Frances E. Bivens
at Exhibit B). There is no allegation that
transactions are related to the claims asserted
here. Accordingly, they are only
relevant to this Court’s determination of
whether the exercise of general jurisdiction
over Privatbank is warranted pursuant
to Rule 4(k)(2) for having such ‘‘continuous
and systematic general business
contacts’’ with the United States. See
Aerogroup Int’l, Inc., 956 F.Supp. at 439.
Because plaintiffs have identified a genuine
issue of jurisdictional fact, the question
of general jurisdiction cannot be resolved
on the pleadings and affidavits
alone. Thus, plaintiffs are entitled to jurisdictional
discovery regarding the extent
of defendant Privatbank’s general business
contacts with the United States in the
years 1992—1998, a period that includes
the relevant period in this action and five
preceding years. See In re Magnetic Audiotape
Antitrust Litig., 334 F.3d at 207–
08; see also, Metropolitan Life Ins. Co., 84
F.3d at 569–70 (holding that the time period
relevant for determining extent of a
defendant’s contacts for general jurisdiction
purpose should include a number of
years prior to the events giving rise to the
claims asserted).
IV. CONCLUSION
For the reasons set forth above, the
Sovereign defendants’ motion to dismiss is
granted in part and denied in part. Plaintiffs’
claims alleging takings in violation of
international law, promissory estoppel, equitable
estoppel, and unjust enrichment—
counts seven, nine, and ten in the complaint—are
hereby dismissed as against
the Sovereign defendants. In addition, the
motion of individual defendants Horath
and Buchmann to dismiss the complaint
for lack of personal jurisdiction is granted
and all claims asserted against those defendants
are hereby dismissed.
Because this Court finds that an issue of
jurisdictional fact exists as to the existence
of general jurisdiction pursuant to Rule
4(k)(2) as to corporate defendant Privatbank,
its motion to dismiss is denied without
prejudice to its renewal pending conclusion
of jurisdictional discovery on that
issue.
,
In re: TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
Burnett v. Al Baraka Inv. & Dev. Corp.
Ashton v. Al Qaeda Islamic Army
Tremsky v. Qsama Bin Laden Salvo v.
Al Qaeda Islamic Army Burnett v. Al
Baraka Inv. & Dev. Corp. Federal Insurance
v. Al Qaida Barrera v. Al Qaeda
Islamic Army Vigilant Insurance v.
Kingdom of Saudi Arabia
Nos. 03 MDL 1570(RCC), 02 CIV. 1616,
02 CIV. 6977, 02 CIV. 7300, 03 CIV.
5071, 03 CIV. 5738, 03 CIV. 6978, 03
CIV. 7036, 03 CIV. 8591.
United States District Court,
S.D. New York.
Jan. 18, 2005.
Background: Survivors, family members,
and representatives of victims of Septem-
766 349 FEDERAL SUPPLEMENT, 2d SERIES
ber 11, 2001 terrorist attacks, as well as
insurance carriers, brought actions against
al Qaeda, al Qaeda’s members and associates,
alleged state sponsors of terrorism,
and individuals and entities who allegedly
provided support to Al Qaeda, asserting
causes of action under Torture Victim Protection
Act (TVPA), Antiterrorism Act
(ATA), Alien Tort Claims Act (ATCA), and
Racketeer Influenced and Corrupt Organizations
Act (RICO), as well as claims for
aiding and abetting, conspiracy, intentional
infliction of emotional distress, negligence,
survival, wrongful death, trespass, and assault
and battery. Actions were consolidated
by Multidistrict Litigation Panel. Various
defendants filed motions to dismiss.
Holdings: The District Court, Casey, J.,
held that:
(1) jurisdictional discovery was warranted
on issue whether Saudi Arabian bank
was immune under Foreign Sovereign
Immunities Act (FSIA);
(2) claims against Saudi Arabia and two of
its officials based on alleged contributions
to charities were not subject to
commercial activities exception of
FSIA;
(3) complaint alleging that Saudi Princes
contributed to charities that supported
al Qaeda failed to allege causal connection
sufficient to satisfy New York
standard for concerted action liability,
for purposes of torts exception of
FSIA;
(4) claims against Saudi Arabian Prince
arising from alleged contributions to
charities were barred by discretionary
function exception to torts exception of
FSIA;
(5) claims against Saudi Arabian Prince
arising from alleged decisions regarding
treatment of Taliban and al Qaeda
leader were barred by discretionary
function exception to torts exception of
FSIA;
(6) claims against Saudi Arabia arising
from alleged decisions to make charitable
contributions were barred by discretionary
function exception to torts
exception of FSIA;
(7) survivors failed to make prima facie
showing necessary to establish personal
jurisdiction over Princes and others
under New York’s long-arm statute;
(8) modified due process standard appropriate
for mass torts would not be
applied to question of personal jurisdiction;
(9) allegations were insufficient to establish
general personal jurisdiction over
Princes;
(10) survivors failed to establish personal
jurisdiction over founder of Saudi
Arabian company;
(11) limited discovery would be permitted
with regard to whether Saudi Arabian
bank’s contacts with United States
were sufficient for exercise of personal
jurisdiction;
(12) survivors failed to establish personal
jurisdiction over director of charity;
(13) jurisdictional discovery was warranted
to determine if Saudi Arabian construction
company purposefully directed
its activities at United States;
(14) jurisdictional discovery was warranted
to determine which of charitable
network’s entities had presence in
Virginia, for purposes of personal jurisdiction;
(15) survivors made prima facie showing
of personal jurisdiction over bank
chairman;
(16) survivors failed to state cause of action
under RICO;
(17) attacks were extreme and outrageous,
as required for intentional infliction of
emotional distress;
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
767
(18) survivors failed to state cause of action
under ATA against banks; and
(19) survivors stated cause of action
against bank chairman under ATA.
Order accordingly.
1. Federal Courts O157
Although district court would review
and give deference to opinion issued by
judge of another district court prior to
transfer of case by Multidistrict Litigation
Panel, district court was required to evaluate
motions to dismiss on merits de novo,
and was bound by Second Circuit law, not
District of Columbia law, which was applied
by the other district court. 28
U.S.C.A. § 1407; Fed.Rules Civ.Proc.Rule
12(b), 28 U.S.C.A.
2. International Law O10.38
Under the Foreign Sovereign Immunities
Act (FSIA), a foreign state and its
instrumentalities are presumed immune
from United States courts’ jurisdiction. 28
U.S.C.A. § 1602 et seq.
3. International Law O10.31
The exceptions to immunity provided
by the Foreign Sovereign Immunities Act
(FSIA) provide the sole basis for obtaining
subject matter jurisdiction over a foreign
state and its instrumentalities in federal
court. 28 U.S.C.A. § 1602 et seq.
4. International Law O7
A federal court must inquire at the
threshold of every action against a foreign
state whether the exercise of its jurisdiction
is appropriate.
5. International Law O10.38
On a motion to dismiss challenging
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA),
the defendant must first present a prima
facie case that it is a foreign sovereign; in
response, the plaintiff must present evidence
that one of the statute’s exceptions
nullifies the immunity. 28 U.S.C.A.
§ 1602 et seq.; Fed.Rules Civ.Proc.Rule
12(b)(1), 28 U.S.C.A.
6. International Law O10.38
In challenging the District Court’s
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA) on
a motion to dismiss, the defendants retain
the ultimate burden of persuasion. 28
U.S.C.A. § 1602 et seq.; Fed.Rules Civ.
Proc.Rule 12(b)(1), 28 U.S.C.A.
7. International Law O10.38
The District Court must consult outside
evidence if resolution of a proffered
factual issue may result in the dismissal of
a complaint, pursuant to the Foreign Sovereign
Immunities Act (FSIA), for lack of
jurisdiction. 28 U.S.C.A. § 1602 et seq.;
Fed.Rules Civ.Proc.Rule 12(b)(1), 28
U.S.C.A.
8. Federal Civil Procedure O1264
A delicate balance exists between
permitting discovery to substantiate exceptions
to statutory foreign sovereign immunity
and protecting a sovereign’s or
sovereign’s agency’s legitimate claim to
immunity from discovery. 28 U.S.C.A.
§ 1602 et seq.
9. International Law O10.38
In deciding whether a defendant is
entitled to immunity under the Foreign
Sovereign Immunities Act (FSIA), the District
Court gives great weight to any extrinsic
submissions made by the foreign
defendant regarding the scope of his official
responsibilities. 28 U.S.C.A. § 1602 et
seq.
10. International Law O10.33
Director of Saudi Arabia’s Department
of General Intelligence (DGI) was
immune from Antiterrorism Act (ATA)
suit by survivors of victims of Septem-
768 349 FEDERAL SUPPLEMENT, 2d SERIES
ber 11, 2001 attacks for his official acts,
notwithstanding that he was also Saudi
Arabia’s ambassador to United Kingdom,
unless exception to Foreign Sovereign
Immunities Act (FSIA) applied. 18
U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1603.
11. International Law O10.33
Saudi Arabia’s Minister of Defense
and Aviation, as third-highest ranking
member of Saudi government, was immune
from Antiterrorism Act (ATA) suit
by survivors of victims of September 11,
2001 attacks for his official acts, unless
exception to Foreign Sovereign Immunities
Act (FSIA) applied. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1603.
12. International Law O10.34
Saudi Arabia’s ownership of bank was
required to be direct for bank to enjoy
immunity, pursuant to Foreign Sovereign
Immunities Act (FSIA), from Antiterrorism
Act (ATA) suit by survivors of victims
of September 11, 2001 attacks; that is,
bank would not be immune as instrumentality
of Saudi Arabia if its majority owner,
known as Public Investment Fund (PIF),
was agency, instrumentality, or organ of
Saudi Arabia. 18 U.S.C.A. § 2331 et seq.;
28 U.S.C.A. § 1603(b)(2).
13. Federal Civil Procedure O1264
Limited jurisdictional discovery was
warranted, on Saudi Arabian bank’s motion
to dismiss Antiterrorism Act (ATA)
suit filed by survivors of victims of September
11, 2001 attacks, on issue whether
bank was immune under Foreign Sovereign
Immunities Act (FSIA), where resolution
of status of bank’s majority owner was
not determinable on current record, majority
owner might qualify either as organ or
political subdivision of Saudi Arabia, and
parties’ affidavits had not been subjected
to cross examination and were self-serving.
18 U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1603(b)(2); Fed.Rules Civ.Proc.Rule
12(b)(2), 28 U.S.C.A.
14. International Law O10.33
In deciding whether to apply the commercial
activities exception to the Foreign
Sovereign Immunities Act (FSIA), courts
must inquire whether the foreign state’s
actions are the type of actions by which a
private party engages in trade and traffic
or commerce. 28 U.S.C.A. § 1605(a)(2).
15. International Law O10.33
To extent that Antiterrorism Act
(ATA) claims against Saudi Arabia and
two of its government officials by survivors
of victims of September 11, 2001 attacks
were based on defendants’ alleged contributions
to charities, those alleged acts
were not commercial and thus were not
subject to commercial activities exception
of Foreign Sovereign Immunities Act
(FSIA), even if alleged acts constituted
money laundering. 18 U.S.C.A. §§ 1956,
2331 et seq.; 28 U.S.C.A. § 1605(a)(2).
16. International Law O10.33
For purposes of the commercial activity
exception to the Foreign Sovereign Immunities
Act (FSIA), a commercial activity
must be one in which a private person can
engage lawfully. 28 U.S.C.A. § 1605(a)(2).
17. International Law O10.33
Since money laundering is an illegal
activity, it cannot be the basis for applicability
of the commercial activities exception
to the Foreign Sovereign Immunities Act
(FSIA). 18 U.S.C.A. § 1956; 28 U.S.C.A.
§ 1605(a)(2).
18. International Law O10.33
Foreign Sovereign Immunities Act
(FSIA) exception for state sponsors of terrorism
did not apply to Antiterrorism Act
(ATA) claims against Saudi Arabia and
two of its government officials by survivors
of victims of September 11, 2001 attacks,
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
769
where parties agreed that Saudi Arabia
had not been designated state sponsor of
terrorism. 18 U.S.C.A. § 2331 et seq.; 28
U.S.C.A. § 1605(a)(7)(A).
19. International Law O10.33
Generally, acts are ‘‘discretionary,’’ for
purposes of the discretionary function exception
to the torts exception of the Foreign
Sovereign Immunities Act (FSIA), if
the acts are performed at the planning
level of government, as opposed to the
operational level. 28 U.S.C.A.
§ 1605(a)(5).
See publication Words and Phrases
for other judicial constructions
and definitions.
20. International Law O10.33
To fit within the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
plaintiffs must come forward with evidence
demonstrating that the defendants’ tortious
acts or omissions caused the plaintiffs’
injuries. 28 U.S.C.A. § 1605(a)(5).
21. International Law O10.33
To extent that Saudi Arabian Princes’
alleged donations to charities that supported
terrorist organizations were made
in Princes’ personal capacities, Antiterrorism
Act (ATA) claims arising from such
alleged donations, asserted by survivors of
victims of September 11, 2001 attacks,
were not subject to protection of torts
exception of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et
seq.; 28 U.S.C.A. § 1605(a)(5).
22. Conspiracy O1.1
Torts O21
In New York, conspiracy and aiding
and abetting are varieties of concerted action
liability, for which there must be: (1)
an express or tacit agreement to participate
in a common plan or design to commit
a tortious act; (2) tortious conduct by each
defendant; and (3) the commission by one
of the defendants, in pursuance of the
agreement, of an act that constitutes a
tort.
23. Conspiracy O2
Under New York law, liability for conspiracy
requires an agreement to commit a
tortious act.
24. Torts O21
Under New York law, aiding and
abetting liability requires that the defendant
have given substantial assistance or
encouragement to the primary wrongdoer.
25. International Law O10.43
Antiterrorism Act (ATA) complaint by
survivors of victims of September 11, 2001
attacks, alleging that Saudi Princes contributed
to charities that supported al
Qaeda, and that al Qaeda repeatedly and
publicly targeted United States, failed to
allege causal connection sufficient to satisfy
New York standard for concerted action
liability, for purposes of torts exception of
Foreign Sovereign Immunities Act
(FSIA), absent allegations from which it
could be inferred that Princes knew charities
were fronts for al Qaeda. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1605(a)(5).
26. International Law O10.43
To allege a causal connection sufficient
to invoke the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
in connection with a defendant’s contributions
to organizations that are not themselves
designated terrorists, there must be
some facts presented to support the allegation
that the defendant knew the receiving
organization to be a solicitor, collector,
supporter, front or launderer for such an
entity; there must be some facts to support
an inference that the defendant knowingly
provided assistance or encouragement to
the wrongdoer. 28 U.S.C.A. § 1605(a)(5).
770 349 FEDERAL SUPPLEMENT, 2d SERIES
27. International Law O10.43
Plaintiffs may not circumvent the jurisdictional
hurdle of the Foreign Sovereign
Immunities Act (FSIA) by inserting
vague and conclusory allegations of tortious
conduct in their complaints, and then
relying on the federal courts to conclude
that some conceivable non-discretionary
tortious act falls within the purview of
these generic allegations under the applicable
substantive law. 28 U.S.C.A.
§ 1605(a)(5).
28. International Law O10.33
In determining whether functions are
discretionary, for purposes of the discretionary
function exception to the torts exception
of the Foreign Sovereign Immunities
Act (FSIA), the District Court must
decide whether the actions involved an element
of choice or judgment based on considerations
of public policy. 28 U.S.C.A.
§ 1605(a)(5).
29. International Law O10.33
Alleged decisions to make charitable
contributions to terrorist organizations,
made by Saudi Arabian Prince, as chairman
of Supreme Council of Islamic Affairs,
which was charged with making
recommendations to Council of Ministers
regarding requests for aid from Islamic
organizations located abroad, and as head
of Special Committee of Council of Ministers,
which was charged with deciding
which grants should be made to Islamic
charities, were discretionary, such that
Antiterrorism Act (ATA) claims against
Prince by survivors of victims of September
11, 2001 attacks arising from such
alleged contributions were barred by discretionary
function exception to torts exception
of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et seq.;
28 U.S.C.A. § 1605(a)(2).
30. International Law O10.33
Alleged decisions regarding treatment
of Taliban and al Qaeda leader made by
Saudi Prince, as head of Saudi Arabia’s
Department of General Intelligence (DGI),
were discretionary, such that Antiterrorism
Act (ATA) claims against Prince by
survivors of victims of September 11, 2001
attacks arising from such alleged decisions
were barred by discretionary function exception
to torts exception of Foreign Sovereign
Immunities Act (FSIA). 18
U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1605(a)(2).
31. International Law O10.33
Saudi Arabia’s decisions to make charitable
contributions to organizations that
allegedly supported terrorism were discretionary,
such that Antiterrorism Act (ATA)
claims against Saudi Arabia by survivors
of victims of September 11, 2001 attacks
arising from contributions were barred by
discretionary function exception to torts
exception of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et
seq.; 28 U.S.C.A. § 1605(a)(2).
32. International Law O10.32
A waiver of Foreign Sovereign Immunities
Act (FSIA) immunity must be explicit.
28 U.S.C.A. § 1602 et seq.
33. Federal Courts O96
Because motions to dismiss for lack of
personal jurisdiction were brought before
discovery and decided without evidentiary
hearing, plaintiffs were required only to
make prima facie showing that personal
jurisdiction existed in order to survive motions.
Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
34. Federal Courts O96
In responding to motions to dismiss
for lack of personal jurisdiction brought
before discovery and decided without evidentiary
hearing, plaintiffs could rely en-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
771
tirely on factual allegations, and would
prevail even if defendants made contrary
arguments. Fed.Rules Civ.Proc.Rule
12(b)(2), 28 U.S.C.A.
35. Federal Courts O96
In resolving motions to dismiss for
lack of personal jurisdiction, the district
court reads the complaints and affidavits
in a light most favorable to the plaintiffs.
Fed.Rules Civ.Proc.Rule 12(b)(2), 28
U.S.C.A.
36. Federal Courts O96
In resolving a motion to dismiss for
lack of personal jurisdiction, the district
court will not accept legally conclusory
assertions or draw argumentative inferences.
Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
37. Federal Courts O417
A federal court sitting in diversity exercises
personal jurisdiction over a foreign
defendant to the same extent as courts of
general jurisdiction of the state in which it
sits. Fed.Rules Civ.Proc.Rule 4(k)(1)(A),
28 U.S.C.A.
38. Courts O12(2.20)
For New York’s long-arm statute to
provide a basis for personal jurisdiction in
a civil conspiracy action, the plaintiffs are
not required to establish the existence of a
formal agency relationship between the defendants
and their putative co-conspirators.
N.Y.McKinney’s CPLR 302(a)(2).
39. Courts O12(2.20)
The bland assertion of conspiracy is
insufficient to establish personal jurisdiction
under New York’s long-arm statute.
N.Y.McKinney’s CPLR 302(a)(2).
40. Courts O12(2.20)
To establish personal jurisdiction on a
conspiracy theory under New York’s longarm
statute, the plaintiffs must make a
prima facie showing of conspiracy, allege
specific facts warranting the inference that
the defendant was a member of the conspiracy,
and show that the defendant’s coconspirator
committed a tort in New York.
N.Y.McKinney’s CPLR 302(a)(2).
41. Courts O12(2.20)
To warrant the inference that an outof-state
defendant was a member of a conspiracy,
as required for a court to exercise
personal jurisdiction under New York’s
long-arm statute on the basis of the acts of
co-conspirators in New York, plaintiffs
must show that: (1) the 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 coconspirators
acting in New York acted at
the direction or under the control or at the
request of or on behalf of the out-of-state
defendant. N.Y.McKinney’s CPLR
302(a)(2).
42. Federal Courts O94, 96
Allegations by victims’ survivors, that
various defendants, including Saudi Arabian
Princes, conspired with al Qaeda terrorists
to perpetrate September 11, 2001
attacks, failed to make prima facie showing
necessary to establish personal jurisdiction
as to Antiterrorism Act (ATA) claims under
New York’s long-arm statute, absent
specific facts from which district court
could infer that defendants directed, controlled,
or requested al Qaeda to undertake
its terrorist activities, or specific allegations
of defendants’ knowledge of or
consent to those activities. 18 U.S.C.A.
§ 2331 et seq.; N.Y.McKinney’s CPLR
302(a)(2).
43. Constitutional Law O305(5)
Federal Courts O76.5
For jurisdiction to exist under the
rule establishing personal jurisdiction in
any district court for cases arising under
772 349 FEDERAL SUPPLEMENT, 2d SERIES
federal law where the 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 the defendant in any state, and
the defendant must have sufficient contacts
with the United States 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.
44. Constitutional Law O305(5)
To comply with the Due Process
Clause, jurisdiction based on the Antiterrorism
Act (ATA), or on the rule establishing
personal jurisdiction in any district
court for cases arising under federal law
where the defendant has sufficient contacts
with the United States as a whole but
is not subject to jurisdiction in any particular
state, requires minimum contacts with
the United States, which may be established
under a ‘‘personally directed’’ theory.
U.S.C.A. Const.Amend. 5; 18 U.S.C.A.
§ 2334(a); Fed.Rules Civ.Proc.Rule 4(k)(2),
28 U.S.C.A.
45. Constitutional Law O305(5)
Federal Courts O76.25, 86
Modified due process standard appropriate
for mass torts would not be applied
to question whether district court had personal
jurisdiction over Saudi Arabian
Princes and other defendants in Antiterrorism
Act (ATA) action by survivors of
victims of September 11, 2001 attacks, given
questions as to defendants’ contacts
with forum and attenuated nature of their
alleged involvement with al Qaeda.
U.S.C.A. Const.Amend. 5; 18 U.S.C.A.
§ 2331 et seq.
46. Constitutional Law O305(4.1)
Any exercise of personal jurisdiction
must comport with the requirements of
due process. U.S.C.A. Const.Amend. 5.
47. Constitutional Law O305(4.1)
Depending on the basis for personal
jurisdiction, due process under either the
Fifth or Fourteenth Amendment applies.
U.S.C.A. Const.Amends. 5, 14.
48. Courts O12(2.5)
Personal jurisdiction under the New
York long-arm statute requires minimum
contacts with New York pursuant to the
Fourteenth Amendment. U.S.C.A. Const.
Amend. 14; N.Y.McKinney’s CPLR
302(a)(2).
49. Constitutional Law O305(5)
Pursuant to the Fifth Amendment,
personal jurisdiction, under the rule establishing
personal jurisdiction in any district
court for cases arising under federal law
where the defendant has sufficient contacts
with the United States as a whole but
is not subject to jurisdiction in any particular
state, requires contacts with the United
States as a whole. U.S.C.A. Const.Amend.
5; Fed.Rules Civ.Proc.Rule 4(k)(2), 28
U.S.C.A.
50. Constitutional Law O305(5)
The due process minimum contacts
requirement is known as ‘‘fair warning,’’
such that the defendant’s contacts with the
forum should be sufficient to make it reasonable
to be haled into court there.
U.S.C.A. Const.Amends. 5, 14.
51. Constitutional Law O305(5)
The ‘‘fair warning’’ requirement of the
Due Process Clause is satisfied if the defendant
has purposefully directed his activities
at the residents of the forum and the
litigation results from alleged injuries that
arise out of or relate to those activities.
U.S.C.A. Const.Amends. 5, 14.
52. Constitutional Law O305(5)
Federal Courts O76.5, 76.10
For purposes of the minimum contacts
inquiry required by the Due Process
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
773
Clause, a distinction is made between specific
and general jurisdiction, such that
‘‘specific jurisdiction’’ exists when the forum
exercises jurisdiction over the defendant
in a suit arising out of the defendant’s
contacts with that forum, while ‘‘general
jurisdiction’’ is based on the defendant’s
general business contacts with the forum;
because the defendant’s contacts are not
related to the suit, a considerably higher
level of contacts is generally required for
general jurisdiction. U.S.C.A. Const.
Amends. 5, 14.
See publication Words and Phrases
for other judicial constructions
and definitions.
53. Constitutional Law O305(5)
In determining whether the exercise
of personal jurisdiction is reasonable under
the Due Process Clause, a court is to
consider: (1) the burden that the exercise
of jurisdiction will impose on the defendant;
(2) the interests in the forum state
in adjudicating the case; (3) the plaintiff’s
interest in obtaining convenient and effective
relief; (4) the interstate judicial system’s
interest in obtaining the most efficient
resolution of the controversy; and (5)
the shared interest of the states in furthering
substantive social policies. U.S.C.A.
Const.Amends. 5, 14.
54. Federal Courts O86
In general, great care and reserve
should be exercised when extending notions
of personal jurisdiction into the international
field.
55. Federal Civil Procedure O1267.1
In evaluating jurisdictional motions,
district courts enjoy broad discretion in
deciding whether to order discovery.
56. Federal Civil Procedure O1269.1
Courts are not obligated to subject a
foreign defendant to discovery where the
allegations of jurisdictional facts, construed
in plaintiffs’ favor, fail to state a
basis for the exercise of jurisdiction or
where discovery would not uncover sufficient
facts to sustain jurisdiction.
57. Federal Courts O94
Allegations that Saudi Royal Family
members owned substantial assets in and
did substantial business in United States,
and used profits therefrom to fund international
terrorist acts, including those
leading to September 11 attacks, and that
Saudi Arabian Prince was ex-officio Chairman
of Board of Saudi Arabia Airlines,
which did business in United States and
internationally, were insufficient to establish
general personal jurisdiction over
Prince in Antiterrorism Act (ATA) action
by survivors of victims of September 11
attacks. 18 U.S.C.A. § 2331 et seq.
58. Federal Courts O94
Allegations that Saudi Arabian Prince
aided and abetted terrorism, and that he
donated to charities that he knew to be
supporters of international terrorism, were
insufficient to establish personal jurisdiction
under ‘‘purposefully directed activities’’
theory in Antiterrorism Act (ATA)
action by survivors of victims of September
11, 2001 attacks. 18 U.S.C.A. § 2331
et seq.
59. Federal Courts O94
Allegations that Saudi Arabian Prince
donated money to charities were insufficient
to establish personal jurisdiction in
Antiterrorism Act (ATA) action by survivors
of victims of September 11, 2001 attacks,
absent specific factual allegations
that he knew charities were funding money
to terrorists. 18 U.S.C.A. § 2331 et
seq.
60. Federal Courts O86
Saudi Arabian Prince’s alleged contacts
with United States, during ten-year
period prior to September 11, 2001 at-
774 349 FEDERAL SUPPLEMENT, 2d SERIES
tacks, consisting of one speech in United
States, and handful of investments in United
States through banks with which he
was affiliated, were not sufficiently systematic
and continuous for general personal
jurisdiction in Antiterrorism Act (ATA)
action by survivors of victims of attacks.
18 U.S.C.A. § 2331 et seq.
61. Federal Courts O76.20, 86
Even assuming that district court had
personal jurisdiction over Saudi Arabian
financial institutions in Antiterrorism Act
(ATA) action by survivors of victims of
September 11, 2001 attacks, Saudi Arabian
Prince’s position as officer of such institutions
was not basis for personal jurisdiction
over him, where there was no allegation
he had knowledge or involvement in
any al Qaeda accounts at any banks he
chaired. 18 U.S.C.A. § 2331 et seq.
62. Courts O12(2.20)
The mere fact that a corporation is
subject to jurisdiction in New York does
not mean that individual officers may be
hauled before New York courts without
any showing that the individuals themselves
maintained a presence or conducted
business in New York.
63. Federal Courts O96
Even assuming that name of founder
of Saudi Arabian company appeared in
‘‘Golden Chain,’’ which allegedly listed early
direct donors to al Qaeda, such list was
insufficient to establish personal jurisdiction
in Antiterrorism Act (ATA) action by
survivors of victims of September 11, 2001
attacks, absent indications of who wrote
list, when it was written, or for what purpose
it was written. 18 U.S.C.A. § 2331 et
seq.
64. Federal Courts O96
Appearance of Saudi Arabian watch
retailer’s name in ‘‘Golden Chain,’’ which
allegedly listed early direct donors to al
Qaeda, was insufficient to establish personal
jurisdiction in Antiterrorism Act (ATA)
action by survivors of victims of September
11, 2001 attacks, inasmuch as list did
not establish his involvement in terrorist
conspiracy culminating in attacks and did
not demonstrate that he purposefully directed
his activities at United States. 18
U.S.C.A. § 2331 et seq.
65. Federal Courts O97
Limited discovery would be permitted,
at dismissal stage of Antiterrorism Act
(ATA) action by survivors of victims of
September 11, 2001 attacks, with regard to
whether Saudi Arabian bank’s contacts
with United States were sufficient for exercise
of personal jurisdiction consistent
with due process, inasmuch as contacts,
including former presence of bank’s
branch office and subsidiary in United
States, bank’s instigation of lawsuit in
United States, and its advertisements in
United States publications, when taken together,
might establish personal jurisdiction.
U.S.C.A. Const.Amend. 5; 18
U.S.C.A. § 2331 et seq.; Fed.Rules Civ.
Proc.Rule 12(b)(1), 28 U.S.C.A.
66. Federal Courts O94
Allegations of survivors of victims of
September 11, 2001 attacks were insufficient
to establish personal jurisdiction over
director of charity in Antiterrorism Act
(ATA) action, inasmuch as complaint did
not contain any specific actions by director
from which district court could infer that
he purposefully directed his activities at
United States, his affiliations with entities
that were alleged to have United States
contacts would not sustain jurisdiction, and
his being shareholder in United States
company was not sufficient for jurisdiction.
18 U.S.C.A. § 2331 et seq.
67. Federal Courts O94
Allegations of survivors of victims of
September 11, 2001 attacks were insuffi-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
775
cient to establish personal jurisdiction in
Antiterrorism Act (ATA) action over individuals
allegedly affiliated with Saudi Arabian
construction company, inasmuch as
complaint did not contain any factual allegations
from which district court could infer
that they purposefully directed their
activities at United States, that they were
members of conspiracy pursuant to New
York long-arm statute, or that they had
any general business contacts with United
States. 18 U.S.C.A. § 2331 et seq.;
N.Y.McKinney’s CPLR 302(a)(2).
68. Federal Courts O97
Jurisdictional discovery was warranted,
at dismissal stage of Antiterrorism Act
(ATA) action by survivors of victims of
September 11, 2001 attacks, to determine
if Saudi Arabian construction company
purposefully directed its activities at United
States for purposes of personal jurisdiction.
Fed.Rules Civ.Proc.Rule 12(b)(2), 28
U.S.C.A.
69. Federal Courts O97
Discovery would be permitted, at dismissal
stage of Antiterrorism Act (ATA)
action by survivors of victims of September
11, 2001 attacks, to determine which of
charitable network’s entities had presence
in Virginia, and which entities transferred
money to alleged al Qaeda operatives, for
purposes of determining whether personal
jurisdiction existed over network. Fed.
Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
70. Federal Courts O96
Survivors of victims of September 11,
2001 attacks made prima facie showing of
personal jurisdiction over bank chairman
in Antiterrorism Act (ATA) action, by alleging,
inter alia, that Department of
Treasury designated him as Specially Designated
Global Terrorist, and that he was
involved in United States operations of
designated terrorist organization. 18
U.S.C.A. § 2331 et seq.
71. War and National Emergency O50
To prove that defendants provided
material support to terrorists, in violation
of Antiterrorism Act (ATA), plaintiffs were
required to present sufficient causal connection
between that support and injuries
suffered by plaintiffs; proximate cause
would support such connection. 18
U.S.C.A. §§ 2339A(b), 2339B(g).
72. Conspiracy O1.1
Torts O21
To be liable for conspiracy or aiding
and abetting under New York law, a defendant
must know the wrongful nature of
the primary actor’s conduct, and the conduct
must be tied to a substantive cause of
action.
73. International Law O10.11
Aircraft hijacking is generally recognized
as violation of international law, for
purposes of the requirement that an act be
committed in violation of international law
in order to be subject to the Alien Tort
Claims Act (ATCA). 28 U.S.C.A. § 1350.
74. Racketeer Influenced and Corrupt
Organizations O75
Survivors of victims of September 11,
2001 attacks failed to allege injury from
defendants’ alleged investment of racketeering
income, and thus failed to state
cause of action in complaint for violations
of Racketeer Influenced and Corrupt Organizations
Act (RICO) provision prohibiting
receipt of income derived from pattern
of racketeering activity. 18 U.S.C.A.
§ 1962(a).
75. Racketeer Influenced and Corrupt
Organizations O50
A defendant must have had some part
in directing the operation or management
of the enterprise itself to be liable under
the Racketeer Influenced and Corrupt Organizations
Act (RICO) provision prohibit-
776 349 FEDERAL SUPPLEMENT, 2d SERIES
ing participation in the conduct of an enterprise’s
affairs through a pattern of
racketeering activity. 18 U.S.C.A.
§ 1962(c).
76. Racketeer Influenced and Corrupt
Organizations O50
Allegations of complaint filed by survivors
of victims of September 11, 2001
attacks, including that bank and charitable
network may have assisted al Qaeda, failed
to state cause of action under Racketeer
Influenced and Corrupt Organizations Act
(RICO) conspiracy provision, or provision
prohibiting participation in conduct of enterprise’s
affairs through pattern of racketeering
activity, in that allegations did not
include anything approaching active management
or operation. 18 U.S.C.A.
§ 1962(c, d).
77. International Law O10.11
Only individuals may be sued under
the Torture Victim Protection Act (TVPA).
28 U.S.C.A. § 1350 note.
78. International Law O10.11
Survivors of victims of September 11,
2001 attacks failed to state cause of action
in complaint against two individuals under
Torture Victim Protection Act (TVPA),
where there were no allegations individuals
acted under color of law. 28 U.S.C.A.
§ 1350 note.
79. War and National Emergency O50
To adequately plead the provision of
material support under the Antiterrorism
Act (ATA), a plaintiff has to allege that the
defendant knew about the terrorists’ illegal
activities, the defendant desired to help
those activities succeed, and the defendant
engaged in some act of helping those activities.
18 U.S.C.A. § 2333(a).
80. Conspiracy O7, 18
To state cause of action under Antiterrorism
Act (ATA) pursuant to conspiracy
theory, survivors of victims of September
11, 2001 attacks were required to
allege that defendants were involved in
agreement to accomplish unlawful act and
that attacks were reasonably foreseeable
consequence of that conspiracy; survivors
did not have to allege that defendants
knew specifically about attacks or that
they committed any specific act in furtherance
of attacks. 18 U.S.C.A.
§ 2333(a).
81. Death O31(3.1)
Survivors of victims of September 11,
2002 attacks could state claims for wrongful
death and survival under New York law
if they were personal representatives of
victims and sufficiently alleged that defendants
supported, aided and abetted, or
conspired with September 11 terrorists.
N.Y.McKinney’s EPTL 5–4.1, 11–3.2(b).
82. Assault and Battery O21
Limitation of Actions O31
The statute of limitations for assault
and battery and intentional infliction of
emotional distress claims under New York
law is one year. N.Y.McKinney’s CPLR
215(3).
83. Damages O57.22
In actions for intentional infliction of
emotional distress under New York law,
courts are to determine whether the alleged
conduct is sufficiently extreme and
outrageous enough to permit recovery.
84. Damages O57.25(1)
Attacks of September 11, 2001 were
extreme and outrageous, as required for
liability for intentional infliction of emotional
distress under New York law.
85. Trespass O30
To extent that survivors of victims of
September 11, 2001 attacks sufficiently
pled that defendants acted in concert with
September 11 hijackers, they stated cause
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
777
of action for trespass under New York law
pursuant to concerted action theory.
86. Damages O57.14, 57.27
In New York, a plaintiff may establish
negligent infliction of emotional distress
under the bystander or direct duty theory.
87. Damages O57.27
Under the bystander theory for proving
negligent infliction of emotional distress
under New York law, a defendant’s
conduct is negligent as creating an unreasonable
risk of bodily harm to a plaintiff,
and such conduct is a substantial factor in
bringing about injuries to the plaintiff in
consequence of shock or fright resulting
from his or her contemporaneous observation
of serious physical injury or death
inflicted by the defendant’s conduct on a
member of the plaintiff’s immediate family
in his or her presence.
88. Damages O57.14
Under the direct duty theory for
proving negligent infliction of emotional
distress under New York law, a plaintiff
suffers emotional distress caused by defendant’s
breach of a duty which unreasonably
endangered the plaintiff’s own physical
safety.
89. Negligence O202
To establish a claim for negligence
under New York law, a plaintiff must show
that the defendant owed the plaintiff a
cognizable duty of care, that the defendant
breached that duty, and that the plaintiff
suffered damages as a proximate cause of
that breach.
90. Negligence O210
The most basic element of a negligence
claim under New York law is the
existence of a duty owed to plaintiffs by
defendants.
91. Banks and Banking O100
Under New York negligence law,
banks do not owe non-customers a duty to
protect them from the intentional torts of
their customers.
92. Damages O57.18
Negligence O210
Survivors of victims of September 11,
2001 attacks failed to state causes of action
in complaint against alleged supporters of
terrorists for negligence and negligent infliction
of emotional distress, inasmuch as
they failed to allege or identify duty owed
to them by defendants.
93. War and National Emergency O50
In light of extreme nature of charge of
terrorism, fairness required extra-careful
scrutiny of allegations by survivors of victims
of September 11, 2001 attacks as to
any particular defendant, to ensure that
he, or it, had fair notice of claims, including
claims under Antiterrorism Act (ATA).
18 U.S.C.A. § 2331 et seq.
94. Banks and Banking O226
Allegations in complaint by survivors
of victims of September 11, 2001 attacks,
that Saudi Arabian bank aided and abetted
terrorists by donating to charities and acting
as bank for charities, failed to state
cause of action under Antiterrorism Act
(ATA) against bank, in that survivors offered
no facts to support conclusion that
bank knew of charities’ alleged support for
terrorism, and failed to allege relationship
between Hamas, with which bank allegedly
had ties, and September 11 terrorists. 18
U.S.C.A. § 2331 et seq.
95. Conspiracy O1.1
Torts O21
Under New York law, concerted action
liability, pursuant to a conspiracy or
aiding and abetting theory, requires general
knowledge of the primary actor’s conduct.
778 349 FEDERAL SUPPLEMENT, 2d SERIES
96. Banks and Banking O226
Allegations in complaint by survivors
of victims of September 11, 2001 attacks,
that bank based in Rihadh, Saudi Arabia
provided material support to al Qaeda,
failed to state cause of action under Antiterrorism
Act (ATA) against bank, absent
allegations that bank knew that anything
relating to terrorism was occurring
through services it provided. 18 U.S.C.A.
§ 2331 et seq.
97. Banks and Banking O226
Allegations in complaints by survivors
of victims of September 11, 2001 attacks,
that bank headquartered in Egypt provided
financial services and other material
support to terrorist organizations including
al Qaeda, failed to state cause of action
under Antiterrorism Act (ATA) against
bank, in that complaints did not include
facts to support inference that bank knew
or had to know that it was providing material
support to terrorists by providing financial
services to charities or by processing
wire transfers in Spain. 18 U.S.C.A.
§ 2331 et seq.
98. Brokers O106
War and National Emergency O50
Allegations in complaints by survivors
of victims of September 11, 2001 attacks
failed to state cause of action under Antiterrorism
Act (ATA) against investment
company based in Jeddah, Saudi Arabia or
against Saudi Arabian bank founder, in
that majority of allegations regarding investment
company actually concerned another
entity, survivors alleged that company
supported charity but did not allege
that company knew that charity was supporting
terrorism, and allegation that employee
of other entity’s subsidiary financially
supported two hijackers did not
translate into allegation that bank founder
provided material support to terrorism or
aided and abetted those who provided material
support. 18 U.S.C.A. § 2331 et seq.
99. Federal Civil Procedure O1269.1
Limited jurisdictional discovery was
warranted, on Saudi Arabian bank’s motion
to dismiss Antiterrorism Act (ATA)
suit by survivors of victims of September
11, 2001 attacks, as to issue whether bank
was immune from suit as instrumentality
of Saudi Arabia, and as to whether District
Court could exercise personal jurisdiction
over bank. 18 U.S.C.A. § 2331 et seq.;
Fed.Rules Civ.Proc.Rule 12(b)(2, 6), 28
U.S.C.A.
100. Federal Civil Procedure O1269.1
Limited jurisdictional discovery was
warranted, on Saudi Arabian construction
company’s motion to dismiss Antiterrorism
Act (ATA) suit by survivors of victims of
September 11, 2001 attacks, as to issue
whether company purposefully directed its
activities at United States, for purposes of
personal jurisdiction. 18 U.S.C.A. § 2331
et seq.; Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
101. Federal Civil Procedure O1269.1
Limited jurisdictional discovery was
warranted, on charitable network’s motion
to dismiss Antiterrorism Act (ATA) suit by
survivors of victims of September 11, 2001
attacks, as to which entities were subject
to District Court’s personal jurisdiction
and whether entities transferred money to
terror fronts. 18 U.S.C.A. § 2331 et seq.;
Fed.Rules Civ.Proc.Rule 12(b)(2, 6), 28
U.S.C.A.
102. War and National Emergency O50
Allegations of complaint filed by survivors
of victims of September 11, 2001
attacks stated cause of action against bank
chairman under Antiterrorism Act (ATA),
in that allegations and his designation by
Department of Treasury as Specially Designated
Global Terrorist were sufficient to
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
779
permit inference that he provided support
to al Qaeda. 18 U.S.C.A. § 2331 et seq.
Andrew J. Maloney, III, Blanca I. Rodriguez,
Brian J. Alexander, 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, 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 Russell 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.
On September 11, 2001, nineteen members
of the al Qaeda terrorist network
hijacked four United States passenger airplanes
and flew them into the twin towers
of the World Trade Center in New York
City, the Pentagon in Arlington, Virginia,
and—due to passengers’ efforts to foil the
hijackers—an open field in Shanksville,
Pennsylvania. Thousands of people on the
planes, in the buildings, and on the ground
were killed in those attacks, countless others
were injured, and billions of dollars of
property was destroyed.
Pursuant to 28 U.S.C. § 1407, on December
9, 2003 the Multidistrict Litigation
Panel centralized six then-pending September
11–related cases before this Court
‘‘for coordinated or consolidated pretrial
proceedings.’’ Additional actions, that are
not the subject of this opinion, have since
been filed. Plaintiffs in these consolidated
actions are more than three thousand survivors,
family members, and representatives
of victims, and insurance carriers
seeking to hold responsible for the attacks
the persons and entities that supported
and funded al Qaeda. The complaints al-
780 349 FEDERAL SUPPLEMENT, 2d SERIES
lege that over two hundred defendants
directly or indirectly provided material
support to Osama bin Laden and the al
Qaeda terrorists. Generally, these defendants
fall into one of several categories: al
Qaeda and its members and associates;
state sponsors of terrorism; and individuals
and entities, including charities, banks,
front organizations, terrorist organizations,
and financiers who provided financial, logistical,
and other support to al Qaeda. 1
See, e.g., Ashton Complaint ¶ 5; Burnett
Complaint ‘‘Introduction’’; Federal Complaint
¶¶ 42–66. The complaints assert
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (‘‘FSIA’’),
28 U.S.C. § 1602 et seq.; and causes of
action under the Torture Victim Protection
Act (‘‘TVPA’’), 28 U.S.C. § 1350 note; the
Antiterrorism Act (‘‘ATA’’), 18 U.S.C.
1. According to Plaintiffs, Osama bin Laden
formed al Qaeda, which means ‘‘the Base’’ or
‘‘the Vanguard,’’ into an international terrorist
organization with the aim of violently opposing
non-Islam governments and Islamic
states too beholden to the West. See, e.g.,
Burnett Complaint at 275.
2. Before the Multidistrict Panel transferred
Burnett v. Al Baraka Inv. & Dev. Corp., 02 Civ.
1616, to this Court, Judge Robertson of the
United States District Court for the District of
Columbia dismissed the claims against Prince
Sultan relating to acts performed in his official
capacity for lack of subject matter jurisdiction.
Burnett v. Al Baraka Inv. & Dev.
Corp., 292 F.Supp.2d 9, 23 (D.D.C.2003)
(hereinafter ‘‘Burnett II ’’). Finding that the
court lacked personal jurisdiction over Prince
Sultan, Judge Robertson dismissed without
prejudice the allegations concerning acts taken
in his personal, as opposed to official,
capacity. Id. Judge Robertson dismissed the
complaint against Prince Turki for lack of
subject matter jurisdiction as well. Id.
Prince Sultan and Prince Turki both move
to dismiss the complaints against them in
Ashton v. Al Qaeda Islamic Army, 02 Civ.
6977 (S.D.N.Y.); Barrera v. Al Qaeda Islamic
Army, 03 Civ. 7036 (S.D.N.Y.); Burnett v. Al
Baraka Inv. & Dev. Corp., 02 Civ. 1616
(D.D.C.); Burnett v. Al Baraka Inv. & Dev.
§ 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.;
theories of aiding and abetting, conspiracy,
intentional infliction of emotional distress,
negligence, survival, wrongful death, trespass,
and assault and battery.
[1] Several motions to dismiss are
pending before the Court. At the suggestion
of counsel, the Court scheduled oral
arguments in groups organized generally
by grounds for dismissal. On September
14, 2004, the Court heard oral argument
on the motions to dismiss for lack of subject
matter jurisdiction under the FSIA by
HRH Prince Sultan bin Abdulaziz Al–Saud
(‘‘Prince Sultan’’), HRH Prince Turki Al–
Faisal bin Abdulaziz Al–Saud (‘‘Prince
Turki’’), 2 and the National Commercial
Corp., 03 Civ. 5738 (S.D.N.Y.); Salvo v. Al
Qaeda Islamic Army, 03 Civ. 5071 (S.D.N.Y.);
and Tremsky v. Osama bin Laden, 02 Civ.
7300 (S.D.N.Y.). Plaintiffs in these cases filed
consolidated responses to Prince Sultan’s and
Prince Turki’s motions. In Plaintiffs’ words,
the New York Burnett action is materially
identical to the D.C. Burnett action and was
filed as a ‘‘prophylactic’’ measure in the event
the D.C. court found that it lacked subject
matter jurisdiction. Burnett Complaint at
265. Additionally, at Plaintiffs’ counsel request,
this Court ordered the Barrera action
consolidated with the Ashton case on December
6, 2004.
Prince Sultan and Prince Turki have each
also filed a separate motion to dismiss in
Federal Insurance v. Al Qaida, 03 Civ. 6978
(S.D.N.Y.), both of which are fully submitted
and are resolved in this opinion. The Federal
Insurance Plaintiffs are forty-one insurance
companies that have paid and reserved claims
in excess of $4.5 billion as a result of the
September 11 attacks.
The Burnett Plaintiffs filed a motion for
reconsideration in conjunction with Prince
Sultan’s and Prince Turki’s motions to dismiss
certain consolidated complaints. While
this Court reviews and gives deference to
Judge Robertson’s thoughtful opinion, it must
evaluate Prince Sultan’s and Prince Turki’s
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
781
Bank (‘‘NCB’’). 3 On October 12, 2004 the
Court heard oral argument from Defendants
who filed motions to dismiss for lack
of personal jurisdiction, including Prince
Sultan, HRH Prince Mohamed Al–Faisal
Al–Saud (‘‘Prince Mohamed’’), 4 the estate
of Mohammad Abdullah Aljomaih, 5 Sheikh
Hamad Al–Husani, 6 NCB, Abdulrahman
bin Mahfouz, 7 the Saudi Binladin Group,
Tariq Binladin, Omar Binladin, and Bakr
Binladin. 8 Although their counsel did not
argue on that day, motions to dismiss by
the African Muslim Agency, Grove Corporate,
Inc., Heritage Education Trust, International
Institute of Islamic Thought,
Mar–Jac Investments, Inc., Mena Corporation,
Reston Investments, Inc., Safa
Trust, Sana–Bell Inc., Sterling Charitable
motions on the merits de novo. See In re
Grand Jury Proceedings (Kluger), 827 F.2d
868, 871 n. 3 (2d Cir.1987) (‘‘A transfer under
28 U.S.C. § 1407 ‘transfers the action lock,
stock, and barrel. The transferee district
court has the power and the obligation to
modify or rescind any orders in effect in the
transferred case which it concludes are incorrect.’
’’) (internal citations omitted). The
Court bears in mind that it is bound by Second
Circuit precedent while Judge Robertson
applied D.C. Circuit law. Menowitz v. Brown,
991 F.2d 36, 40–41 (2d Cir.1993) (explaining
transferee court is to apply its interpretation
of federal law, not that of the transferor circuit);
In re Air Crash at Belle Harbor, New
York, No. 02 Civ. 8411(RWS), 2003 WL
124677, at *3 (S.D.N.Y. Jan. 15, 2003) (applying
Second Circuit law after 28 U.S.C. § 1407
transfer from a district court in the Fifth
Circuit).
3. NCB moves to dismiss the complaints
against it in Ashton and Burnett.
4. Prince Mohamed moves to dismiss the complaints
against him in Ashton and Federal
Insurance.
5. The estate of Mohammad Abdullah Aljomaih
moves to dismiss the complaint in Burnett.
6. Sheikh Hamad Al–Husani moves dismiss
the complaint in Burnett.
Gift Fund, Sterling Management Group,
Inc., and York Foundation, (hereinafter
collectively referred to as the ‘‘SAAR Network’’),
9 Prince Turki, and Adel A.J. Batterjee,
10 also raised personal jurisdiction
defenses. On October 14, 2004 the Court
heard oral argument from certain Defendants
arguing Plaintiffs had failed to state
a claim, including Al Rajhi Banking &
Investment Corporation (hereinafter ‘‘Al
Rajhi Bank’’), 11 the Saudi American
Bank, 12 Arab Bank, 13 NCB, the SAAR
Network, Prince Mohamed, Al Baraka Investment
& Development Corporation and
Saleh Abdullah Kamel, 14 Abdulrahman bin
Mahfouz, the Saudi Binladin Group, and
Adel A.J. Batterjee. Finally, the last of
this group of motions was entertained on
7. Abdulrahman bin Mahfouz moves to dismiss
the complaint in Burnett.
8. The Saudi Binladin Group moves to dismiss
the complaints against it in Burnett and Ashton.
Tariq Binladin, Omar Binladin, and
Bakr Binladin move to dismiss the Burnett
complaint.
9. The SAAR Network moves to dismiss the
Federal Insurance complaint.
10. Adel A.J. Batterjee moves to dismiss the
complaint in Burnett.
11. Al Rajhi Bank renews its motion to dismiss
the Burnett complaint. Judge Robertson denied
its original motion and permitted it to
serve a Rule 12(e) request on the Burnett
Plaintiffs. Burnett v. Al Baraka Invest. & Dev.
Corp., 274 F.Supp.2d 86, 110 (D.D.C.2003)
(hereinafter ‘‘Burnett I ’’).
12. Saudi American Bank moves to dismiss
the Ashton and Burnett complaints.
13. Arab Bank moves to dismiss the Burnett
and Federal Insurance complaints.
14. Al Baraka Investment & Development Corporation
and Saleh Abdullah Kamel move to
dismiss the Ashton and Burnett complaints.
782 349 FEDERAL SUPPLEMENT, 2d SERIES
November 5, 2004, when the Court heard
oral argument from the Kingdom of Saudi
Arabia in its motion to dismiss the Federal
Insurance complaint. 15
I. Subject Matter Jurisdiction Under
the FSIA
[2–4] Under the FSIA, a foreign state
and its instrumentalities are presumed immune
from United States courts’ jurisdiction.
Saudi Arabia v. Nelson, 507 U.S.
349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47
(1993); 28 U.S.C. §§ 1602–1607. The
FSIA’s exceptions to immunity provide the
sole basis for obtaining subject matter jurisdiction
over a foreign state and its instrumentalities
in federal court. Argentine
Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989); Robinson v. Gov’t of
Malaysia, 269 F.3d 133, 138 (2d Cir.2001).
Federal courts must inquire at the
‘‘threshold of every action’’ against a foreign
state whether the exercise of its jurisdiction
is appropriate. Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493,
103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).
A. Standard of Review
[5, 6] In a Rule 12(b)(1) motion to dismiss
challenging subject matter jurisdiction
under the FSIA, ‘‘the defendant must
first ‘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)). In response,
the plaintiff must present evidence that
one of the statute’s exceptions nullifies the
immunity. Virtual Countries, 300 F.3d at
241 (‘‘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.’ ’’) (citing Robinson,
269 F.3d at 141); Leutwyler v. Office of
Her Majesty Queen Rania Al–Abdullah,
184 F.Supp.2d 277, 287 (S.D.N.Y.2001)
(explaining plaintiff may ‘‘rebut the presumption
of immunity TTT by proffering
evidence of record that the defendant undertook
certain activities that fall within
the scope’’ of one of the statutory exceptions)
(citing Drexel Burnham Lambert
Group Inc. v. Comm. of Receivers for
A.W. Galadari, 12 F.3d 317, 325 (2d Cir.
1993)). In challenging this Court’s subject
matter jurisdiction, the moving Defendants
retain the ultimate burden of persuasion.
Virtual Countries, 300 F.3d at
241 (citing Cargill, 991 F.2d at 1016);
Robinson, 269 F.3d at 141 n. 8 (noting
defendant’s burden must be met with a
preponderance of the evidence).
[7] Defendants may ‘‘challenge either
the legal or factual sufficiency of the plaintiff’s
assertion of jurisdiction, or both.’’
Robinson, 269 F.3d at 140 (citations omitted).
‘‘If the defendant challenges only
the legal sufficiency of the plaintiff’s jurisdictional
allegations, the court must take
all facts alleged in the complaint as true
and draw all reasonable inferences in favor
of the plaintiff.’’ Id. (internal quotations
and citations omitted); Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir.2000). ‘‘But where
evidence relevant to the jurisdictional
question is before the court, ‘the district
court TTT may refer to that evidence.’ ’’
Robinson, 269 F.3d at 140 (quoting Makarova
v. United States, 201 F.3d 110, 113
(2d Cir.2000)); see also Filetech S.A. v.
France Telecom S.A., 157 F.3d 922, 932
15. The parties have agreed that resolution of
this motion will also apply to Vigilant Insurance
v. Kingdom of Saudi Arabia, 03 Civ.
8591(RCC).
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783
(2d Cir.1998) (explaining, where there are
factual disputes regarding the immunity
question, the court may not ‘‘accept the
mere allegations of the complaint as a
basis for finding subject matter jurisdiction’’).
Thus, ‘‘on a ‘challenge to the district
court’s subject matter jurisdiction, the
court may resolve disputed jurisdictional
fact issues by reference to evidence outside
the pleadings, such as affidavits.’ ’’
Filetech, 157 F.3d at 932 (explaining a
court should consider all the submissions
of the parties and may, if necessary, hold
an evidentiary hearing to resolve the jurisdictional
question) (quoting Antares Aircraft,
L.P. v. Federal Republic of Nigeria,
948 F.2d 90, 96 (2d Cir.1991)). The court
must consult outside evidence if resolution
of a proffered factual issue may result in
the dismissal of the complaint for lack of
jurisdiction. Robinson, 269 F.3d at 141 n.
6. Defendants here challenge both the legal
and factual sufficiency of Plaintiffs’
claims. The Court will consider the affidavits
submitted by the parties as necessary.
[8] Before turning to the allegations
against the Defendants claiming immunity,
the Court notes it is keenly aware of the
‘‘delicate balanc[e] ‘between permitting
discovery to substantiate exceptions to
statutory foreign sovereign immunity and
protecting a sovereign’s or sovereign’s
agency’s legitimate claim to immunity from
discovery.’ ’’ First City, Texas–Houston,
N.A. v. Rafidain Bank, 150 F.3d 172, 176
(2d Cir.1998) (ordering full discovery
against defendant over whom court already
had subject matter jurisdiction because
such discovery would provide plaintiff
an opportunity to obtain jurisdictional
discovery regarding potentially sovereign
alter ego co-defendant without further impinging
that defendant’s immunity) (quoting
Arriba Ltd. v. Petroleos Mexicanos,
962 F.2d 528, 534 (5th Cir.1992) (‘‘At the
very least, discovery should be ordered
circumspectly and only to verify allegations
of specific facts crucial to an immunity
determination.’’)). The Second Circuit
has instructed ‘‘that generally a plaintiff
may be allowed limited discovery with respect
to the jurisdictional issue; but until
[plaintiff] has shown a reasonable basis for
assuming jurisdiction, she is not entitled to
any other discovery.’’ First City, 150 F.3d
at 176–77 (quoting Filus v. Lot Polish
Airlines, 907 F.2d 1328, 1332 (2d Cir.
1990)). Still, the Plaintiffs must allege
sufficient facts to warrant jurisdictional
discovery. Robinson, 269 F.3d at 146 (citing
Jazini v. Nissan Motor Co., 148 F.3d
181, 185 (2d Cir.1998) (refusing jurisdictional
discovery where plaintiffs’ allegations
lacked factual specificity to confer
jurisdiction)); see also Burnett II, 292
F.Supp.2d at 15 (denying Plaintiffs’ request
for discovery from Prince Turki
where ‘‘suggestions of [his] individual activity
are only conclusory’’).
B. Allegations Against Defendants
Asserting Foreign Sovereign Immunity
1. Prince Sultan
Prince Sultan has been Saudi Arabia’s
Minister of Defense and Aviation and Inspector
General of its Armed Forces since
1962. Ashton Complaint ¶ 265; Burnett
Complaint ¶ 352; Federal Complaint ¶ 427;
William H. Jeffress, Jr. Decl. ¶ 4 at Notice
of HRH Prince Sultan Bin Abdulaziz Al–
Saud’s Motion to Dismiss Consolidated
Complaint (hereinafter ‘‘Consolidated Jeffress
Decl.’’); Andrea Bierstein Aff. in
Opp. to Prince Sultan’s Motion to Dismiss
Consolidated Complaints Ex. 1, Sultan Bio,
available at http://saudiembassy.net/Country/Government/SultanBio.asp.
In 1982,
his brother King Fahd bin Abdulaziz Al–
Saud named him Second Deputy President
of Saudi Arabia’s Council of Ministers, the
Kingdom’s governing body. Nizar Bin
784 349 FEDERAL SUPPLEMENT, 2d SERIES
Obaid Nadani Decl. ¶ 2 at Notice of HRH
Prince Sultan Bin Abdulaziz al-Saud’s Motion
to Dismiss Certain Consolidated Complaints
Ex. 1 (hereinafter ‘‘Nadani Decl.’’);
Consolidated Jeffress Decl. ¶ 4; Federal
Complaint ¶ 427; Sultan Bio. As such, he
is the third-highest ranking member of the
Saudi government.
Especially relevant here, Prince Sultan
is the Chairman of the Supreme Council of
Islamic Affairs, which was established in
1995 and is responsible for the Kingdom’s
Islamic policy abroad. Consolidated Jeffress
Decl. ¶ 5; Ashton Complaint ¶ 265;
Federal Complaint ¶ 427. Prince Sultan
disagrees with Plaintiffs’ claim that the
Supreme Council monitors and approves
domestic and foreign charitable giving on
behalf of the Kingdom. Prince Sultan prefers
the characterization that the Supreme
Council ‘‘carr[ies] out the foreign policy of
Saudi Arabia as determined by the Council
of Ministers.’’ Abdulaziz H. Al–Fahad
Decl. ¶ 5, at Sara E. Kropf Decl. Ex. 2.
Finally, Prince Sultan, as the head of the
Special Committee of the Council of Ministers,
which is a foreign policy advisory
resource for King Saud, exercises authority
over disbursements by the Special Committee.
Consolidated Jeffress Decl. ¶ 6. In
the past, these disbursements, which are
government funded, have included grants
to Islamic charities. Id. at ¶ 6.
The various complaints make substantially
similar accusations against Prince
Sultan. See Consolidated Jeffress Decl.
16. IIRO is allegedly an al Qaeda front that
has been tied to the 1993 World Trade Center
attack and the 1998 embassy bombings. See,
e.g., Burnett Complaint ¶¶ 156, 240, 242.
17. Beginning in 2002, certain branches of Al
Haramain were designated by the United
States as terrorist organizations. See Exec.
Order No. 13224, 31 C.F.R. 595, available at
http://www.treas.gov/offices/enforcement/ofac/sanctions/t11ter.pdf
(hereinafter
‘‘Exec. Order No. 13224’’). Judge Robertson
Ex. C (summarizing allegations against
Prince Sultan in consolidated complaints).
Prince Sultan is alleged to have met with
Osama bin Laden after Iraq invaded Kuwait
in the summer of 1990. Ashton Complaint
¶ 253; Burnett Complaint ¶ 340. At
that meeting, which Prince Turki also attended,
bin Laden purportedly offered his
family’s support to Saudi military forces.
Ashton Complaint ¶ 253. Plaintiffs allege
that, at the time of the Gulf War, Prince
Sultan ‘‘took radical stands against western
countries and publicly supported and
funded several Islamic charities that were
sponsoring Osama bin Laden and al Qaeda
operations.’’ Ashton Complaint ¶ 266;
Burnett Complaint ¶ 353. After the attacks
of September 11, Prince Sultan allegedly
advocated against granting the United
States use of Saudi military bases to
stage attacks against Afghanistan. Ashton
Complaint ¶ 273; Burnett Complaint
¶ 356.
Prince Sultan allegedly made personal
contributions, totaling $6,000,000 since
1994, to various Islamic charities that
Plaintiffs claim sponsor or support al Qaeda.
Ashton Complaint ¶ 269; Burnett
Complaint ¶ 359; Federal Complaint ¶ 430.
The specific charities that Prince Sultan
donated to include Defendants International
Islamic Relief Organization (‘‘IIRO’’), 16
Al Haramain, 17 Muslim World League
(‘‘MWL’’), 18 and the World Assembly of
Muslim Youth (‘‘WAMY’’). 19 Ashton Com-
denied Al Haramain’s motion to dismiss the
Burnett action. Burnett I, 274 F.Supp.2d at
107.
18. MWL is the parent of IIRO. See, e.g., Burnett
Complaint ¶ 236.
19. WAMY is a suspected al Qaeda front, allegedly
‘‘preaching good TTT while plotting evil,’’
connected to charity Defendant Benevolence
International Foundation (‘‘BIF’’). BIF is
now a designated terrorist, but it previously
concealed its relationship with Osama bin
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785
plaint ¶¶ 269–272; Burnett Complaint
¶¶ 354, 359; Federal Complaint ¶ 430. According
to Plaintiffs, with respect to his
alleged donations, ‘‘[a]t best, Prince Sultan
was grossly negligent in the oversight and
administration of charitable funds, knowing
they would be used to sponsor international
terrorism, but turning a blind eye.
At worse, Prince Sultan directly aided and
abetted and materially sponsored al Qaeda
and international terrorism.’’ Burnett
Complaint ¶ 363; Federal Complaint
¶¶ 429–31 (alleging Prince Sultan knew
and intended that the contributions he
made to various charities would be used to
fund al Qaeda and international terrorism).
20
Laden and al Qaeda. See, e.g., Burnett Complaint
¶¶ 160, 205, 229, 362; Exec. Order
13224.
20. Prince Sultan denies making any grants to
Al Haramain and MWL and argues that contributions
made to IIRO and WAMY were
made strictly in his official capacity on behalf
of the Saudi government. Further, he claims
the four charities searched their records and
confirmed that Prince Sultan did not make
any personal contributions. These transmittal
letters and government checks were included
in Prince Sultan’s motion to dismiss the D.C.
Burnett action. Judge Robertson found these
documents had ‘‘limited probative value, [as
they] lack[ed] proper foundations to establish
that the affiants could have known the actual
source of the moneys they received.’’ Burnett
2. Prince Turki
Prince Turki is currently the Kingdom
of Saudi Arabia’s ambassador to the United
Kingdom. Ashton Complaint ¶ 263.
From 1977 until August 2001, he was the
Director of Saudi Arabia’s Department of
General Intelligence (‘‘DGI,’’ also known
by its Arabic name, Istakhbarat). Ashton
Complaint ¶ 255; Burnett Complaint ¶ 343;
Federal Complaint ¶ 445. As such, Plaintiffs
allege he was or should have been
aware of the terrorist threat posed by
Osama bin Laden, al Qaeda, and the Taliban.
Ashton Complaint ¶ 256; Burnett
Complaint ¶ 343. Prince Turki allegedly
met with Osama bin Laden five times in
the mid–1980s and mid–1990s. Ashton
Complaint ¶ 257; Burnett Complaint ¶ 344.
At one of those meetings, which Prince
Sultan also attended, bin Laden allegedly
offered the Saudis the use of his family’s
engineering equipment and suggested bolstering
Saudi military forces with militants.
Ashton Complaint ¶ 253. Prince
Turki is alleged to have close ties with an
al Qaeda financier, Mr. Zouaydi, and is
allegedly implicated in Mr. Zouaydi’s financial
support of al Qaeda. Ashton Complaint
¶ 241; Burnett Complaint ¶ 345.
Further, Plaintiffs claim Prince Turki met
with members of the Taliban and, in 1995,
gave the Taliban financial and material
support. Ashton Complaint ¶ 257; Federal
Complaint ¶¶ 447–48 (alleging that, at
the time Prince Turki provided support,
the Taliban maintained a symbiotic relationship
with al Qaeda and thus Prince
Turki knew al Qaeda would benefit from
the Kingdom’s support). In July 1998,
Prince Turki is alleged to have met with
members of the Taliban and representatives
of bin Laden and agreed to not extradite
bin Laden or close terrorist camps in
exchange for bin Laden’s protection of the
II, 292 F.Supp.2d at 16. This Court has reviewed
these affidavits and agrees with Judge
Robertson’s assessment. For example, one
declarant who provided information regarding
alleged contributions relied on his personal
knowledge of a charity’s records, yet he
had only been in his position for two months.
See Decl. of Saleh Abdullah Al Saykhan ¶ 2, at
Decl. of Sara E. Kropf in Support of Prince
Sultan’s Motion to Dismiss the D.C. Burnett
action. As Judge Robertson pointed out, ‘‘the
value of plaintiffs’ showing that Prince Sultan
did give money to these organizations in his
personal capacity, however, is no greater.’’
Burnett II, 292 F.Supp.2d at 16 (referring to
Saudi press reports of Prince Sultan’s contributions).
786 349 FEDERAL SUPPLEMENT, 2d SERIES
Saudi Royal family. Ashton Complaint
¶ 261; Burnett Complaint ¶ 348. Plaintiffs
allege Prince Turki facilitated money
transfers from wealthy Saudis to the Taliban
and al Qaeda. Ashton Complaint
¶ 259; Federal ¶ 451. Additionally, the
Federal Plaintiffs claim that, while Prince
Turki was the head of DGI, Saudi Arabian
intelligence officers allegedly trained a
member of the al Qaeda Spanish cell in
explosives and provided material support
to two of the September 11 hijackers.
Federal Complaint ¶ 449. The Federal
complaint also alleges that Prince Turki
made personal contributions to Saudibased
charities that he knew were sponsors
of al Qaeda, including IIRO, MWL,
WAMY, BIF, the Saudi High Commission,
Saudi Joint Relief Committee for Kosovo
and Chechnya (‘‘SJRC’’), and Al Haramain.
Federal Complaint ¶¶ 451–52.
[9] Prince Turki denies the allegations
against him in a declaration prepared in
concert with his motion to dismiss the D.C.
Burnett action. In reviewing this declaration,
the Court gives ‘‘great weight to any
extrinsic submissions made by the foreign
defendant[ ] regarding the scope of [his]
official responsibilities.’’ Leutwyler, 184
F.Supp.2d at 287 (internal quotation marks
omitted). Prince Turki explains that the
DGI ‘‘is involved in the collection and analysis
of foreign intelligence and in carrying
out foreign operations.’’ Decl. of HRH
Prince Turki ¶ 5, at HRH Prince Turki’s
Motion to Dismiss Certain Consolidated
Complaints Ex. 1 (hereinafter ‘‘Prince
Turki Decl.’’). He was active in Saudi
Arabia’s efforts to combat terrorism generally
and the threat posed by Osama bin
Laden and al Qaeda specifically, and
served on a joint information-sharing committee
with the United States beginning in
1997. Id. ¶¶ 6, 10. He states that all of
his interactions with Osama bin Laden and
the Taliban were part of his official functions.
Id. ¶ 5. In June 1998, King Fahd
sent Prince Turki to Kandahar to meet
with the Taliban and to relay the official
Saudi request that Osama bin Laden be
extradited to Saudi Arabia for trial. Id.
¶ 11. The Taliban denied the Saudi request
and Saudi Arabia subsequently suspended
diplomatic relations with the Taliban
in September 1998. Id. ¶ 13. Prince
Turki denies facilitating money transfers
to Osama bin Laden or al Qaeda, he denies
offering material assistance to Osama bin
Laden, his representatives, or al Qaeda in
return for their not attacking Saudi Arabia,
he denies promising or providing oil or
financial assistance to the Taliban, and denies
ever hearing of the Syrian financier
Mr. Zouaydi, with whom he is alleged to
have ties. Id. ¶¶ 14, 16, 17.
3. Kingdom of Saudi Arabia
The Federal Plaintiffs claim that ‘‘[m]ore
than any other factor, al Qaida’s phenomenal
growth and development into a sophisticated
global terrorist network were made
possible by the massive financial, logistical
and other support it received from the
Kingdom of Saudi Arabia, members of the
Saudi Royal family, and prominent members
of Saudi society.’’ Federal Complaint
¶ 398. Further, the Federal Plaintiffs allege
September 11 was ‘‘a direct, intended
and foreseeable product of the Kingdom of
Saudi Arabia’s participation in al Qaida’s
jihadist campaign.’’ Id. ¶ 425. Specifically,
the Kingdom allegedly maintained and
controlled several of the charities within al
Qaeda’s infrastructure. Id. ¶ 399. The
Federal Plaintiffs claim Saudi Arabia knew
the threat that these charities posed particularly
to the United States, and did
nothing to stop it. Id. ¶¶ 400–02. The
Kingdom allegedly used its relationship
with the Taliban to sustain al Qaeda in the
mid–1990s. Id. ¶¶ 403, 407. To the extent
the Federal Plaintiffs rely on actions by
members of the Saudi Royal family as
allegations against the Kingdom, they
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make no claim that these individuals were
acting on behalf of or at the behest of the
Kingdom. See, e.g., id. ¶ 420 (claiming
that in January 1999 Princess Haifa made
payments to Al–Bayoumi, a Defendant alleged
to have paid rent on behalf of two of
the hijackers). Finally, Plaintiffs allege
that members of the Saudi Royal family
provided support to al Qaeda in their official
capacities as members of the Supreme
Council of Islamic Affairs. Federal Complaint
¶¶ 426–464.
21. The Ashton Plaintiffs moved to amend this
allegation to claim that the Public Investment
Fund (‘‘PIF’’), not the Saudi government, purchased
a majority of NCB shares in 1999.
Ashton Docket ## 137, 138.
4. National Commercial Bank
NCB was established in 1950 by Salim
bin Mahfouz, the father of Defendant
Khalid bin Mahfouz, as the first commercial
bank of Saudi Arabia. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88. The
Ashton Plaintiffs allege that the bin Mahfouz
family controlled NCB until 1999
when the Saudi government bought a majority
of its shares. Ashton Complaint
¶ 573. 21 The Ashton and Burnett Plaintiffs
claim that NCB has a wholly-owned subsidiary
in New York, SNCB Securities,
Ltd., through which it operates an international
banking business. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88.
Plaintiffs claim Osama bin Laden and al
Qaeda used NCB as ‘‘a financial arm, operating
as a financial conduit for [their] operations.’’
Ashton Complaint ¶ 564; Burnett
Complaint ¶ 89. In 1986, Khalid bin Mahfouz
became NCB’s President and CEO
and remained so until 1999. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88.
Also in 1986, Khalid bin Mahfouz became
the Chief Operating Officer and a major
shareholder of the Bank of Credit and
Commerce International (‘‘BCCI’’). Ashton
Complaint ¶¶ 564, 566; Burnett Complaint
¶¶ 89, 91. He was subsequently indicted
in New York state in connection
with his involvement in BCCI’s fraudulent
practices, which also implicated NCB. Ashton
Complaint ¶¶ 564, 566; Burnett Complaint
¶¶ 89, 91.
Plaintiffs claim both NCB and BCCI
supported international terrorism. Ashton
Complaint ¶¶ 564–68; Burnett Complaint
¶¶ 91–93. Specifically, a ‘‘1999 United
States Senate Report on the BCCI scheme
detailed the role of [NCB] in hiding assets,
money laundering, the cover-up and obstruction
of a Senate investigation, and
sponsoring international terrorism.’’ Burnett
Complaint ¶ 89. Additionally, a 1998
NCB bank audit revealed irregularities involving
direct donations to several charities
and that $74 million had been funneled
by the bank’s Zakat Committee to IIRO. 22
Ashton Complaint ¶¶ 569–71; Burnett
¶¶ 94, 95. NCB also allegedly made loans
to charitable organizations without the
knowledge of the Zakat Committee. Id.
Plaintiffs allege ‘‘direct donations were received
through NCB facilities to the Red
Crescent Committee, [IIRO], and the Muwaffaq
Foundation,’’ all Defendants in
these actions. Ashton Complaint ¶ 570;
Burnett Complaint ¶ 95. Muwaffaq allegedly
provided Osama bin Laden with $3
million in 1998. Ashton Complaint ¶ 573.
Plaintiffs claim NCB knew or should have
known it was materially supporting al Qaeda,
Osama bin Laden, and international
terrorism. Ashton Complaint ¶ 570; Burnett
Complaint ¶ 95.
C. Defendants’ Status as Foreign
States for FSIA Purposes
The Court must first determine if the
moving Defendants are ‘‘foreign states’’ for
22. Zakat is required almsgiving by all Muslims.
See, e.g., Burnett Complaint at 275; id.
¶ 40.
788 349 FEDERAL SUPPLEMENT, 2d SERIES
purposes of the FSIA. A ‘‘foreign state’’ is
statutorily defined:
(a) A ‘‘foreign state’’ TTT 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 TTT nor
created under the laws of any third
country.
28 U.S.C. § 1603. There is no dispute
that the Kingdom of Saudi Arabia is a
foreign state. The status of each of the
Princes and NCB are discussed below.
1. Prince Sultan and Prince Turki
Several courts have recognized that
‘‘[i]mmunity under the FSIA extends also
to agents of a foreign state acting in their
official capacities [since] ‘[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.’ ’’ 23 Bryks v. Canadian
Broad. Corp., 906 F.Supp. 204, 210
(S.D.N.Y.1995) (quoting Chuidian v. Philippine
Nat’l Bank, 912 F.2d 1095, 1101
(9th Cir.1990) (‘‘Nowhere in the text or
legislative history does Congress state that
individuals are not encompassed within 28
U.S.C. § 1603(b).’’)); see also Velasco v.
Gov’t of Indonesia, 370 F.3d 392, 398–99
(4th Cir.2004) (collecting cases extending
23. The FSIA is silent on the subject. Neither
the Supreme Court nor the Second Circuit
FSIA immunity to individuals sued in their
official capacities); Byrd v. Corporacion
Forestal y Industrial de Olancho S.A., 182
F.3d 380, 388 (5th Cir.1999) (acknowledging
the FSIA protects individuals to
the extent they act within their official
duties); El–Fadl v. Cent. Bank of Jordan,
75 F.3d 668, 671 (D.C.Cir.1996) (dismissing
claims against government officials since
they were sued in their official capacities);
Leutwyler, 184 F.Supp.2d at 286–87 (‘‘[I]t
has been generally recognized that individuals
employed by a foreign state’s agencies
or instrumentalities are deemed ‘foreign
states’ when they are sued for actions undertaken
within the scope of their official
capacities.’’) (citing Bryks, 906 F.Supp. at
210); Flatow v. Islamic Republic of Iran,
999 F.Supp. 1, 11 n. 3 (D.D.C.1998) (noting
favorable practice of applying FSIA to individuals).
Thus, this Court finds that immunity
may be available to Prince Sultan,
as the third-highest ranking member of
the Saudi government, and to Prince
Turki, as the Director of Saudi Arabia’s
Department of General Intelligence, to the
extent their alleged actions were performed
in their official capacities.
[10] The Federal Plaintiffs argue that
the FSIA cannot apply to Prince Turki
because, as of September 10, 2003 when
the complaint was filed, Prince Turki was
the Saudi ambassador to the United Kingdom,
a position the Federal Plaintiffs allege
is not entitled to immunity under the
FSIA. In support of this argument, the
Federal Plaintiffs cite Dole Food Co. v.
Patrickson, 538 U.S. 468, 480, 123 S.Ct.
1655, 155 L.Ed.2d 643 (2003), in which the
Supreme Court held that instrumentality
status is determined at the time of the
filing of the complaint.
has specifically addressed the issue.
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789
24. After the parties submitted their briefs and
argued the FSIA issue, the Ashton Plaintiffs
filed supplemental affidavits, without leave of
the Court, to contest, for the first time, the
timing of the PIF’s majority ownership. See
03 MD 1570 Docket # 455. The parties agree
that the PIF bought 50% of NCB shares in
May 1999. See John Fawcett Sept. 23, 2004
Supplemental Affidavit at Ex. 1 (‘‘Fawcett
Supp. Aff.’’). Later in 1999, the PIF sold 10%
of its shares to the General Organization for
[11] The Court disagrees with this reliance
on Dole Food. The Supreme Court
resolved two questions in Dole Food. ‘‘The
first [was] whether a corporate subsidiary
can claim instrumentality status where the
foreign state does not own a majority of its
shares but does own a majority of the
shares of a corporate parent one or more
tiers above the subsidiary. The second
question [was] whether a corporation’s instrumentality
status is defined as of the
time an alleged tort or other actionable
wrong occurred or, on the other hand, at
the time the suit is filed.’’ Id. at 471, 123
S.Ct. 1655. The Supreme Court held that
a foreign state’s ownership of an entity
must be direct for the entity to be considered
an instrumentality. Id. at 474, 123
S.Ct. 1655. The Supreme Court also ruled
that ownership must be determined as of
the date on which the complaint was filed.
Id. at 480, 123 S.Ct. 1655. Neither of
these points of law speaks, however, to the
circumstances under which an individual is
covered by the FSIA. Indeed, numerous
other courts that have addressed this issue
have held that the relevant inquiry for
individuals is simply whether the acts in
question were undertaken at a time when
the individual was acting in an official capacity.
See, e.g., Velasco, 370 F.3d at 398–
99; Byrd, 182 F.3d at 388; Bryks, 906
F.Supp. at 210. This Court considers that
precedent to be more consistent with the
FSIA and unaltered by the decision in
Dole Food. Thus, it deems Prince Turki
the equivalent of the foreign state inasmuch
as the complaints allege actions taken
in his official capacity as the head of the
DGI. Accordingly, both Prince Sultan and
Prince Turki are immune from suit for
their official acts unless an exception under
the FSIA applies.
2. National Commercial Bank
NCB submits that it is an instrumentality
of the Kingdom of Saudi Arabia and
therefore immune from suit. See Decl. of
Nizar Bin Obaid Madani, Assistant Minister
of Foreign Affairs of Kingdom of Saudi
Arabia ¶ 2, at Berger Decl. Ex. 7 (‘‘It is
the position of the Ministry of Foreign
Affairs that NCB is a government instrumentality
of the Kingdom of Saudi Arabia.’’).
To enjoy immunity from suit under
the FSIA, NCB must demonstrate that it
is an agency or instrumentality, or a political
subdivision of the Kingdom. 28 U.S.C.
§ 1603(a). As explained above, the FSIA
defines an ‘‘agency or instrumentality’’ as
(1) ‘‘a separate legal person, TTT(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) a non-U.S. citizen.
28 U.S.C. § 1603(b). Accordingly, NCB
claims that (1) it is a separate legal person,
(2) at the time the suit was filed a majority
of its shares were owned by an administrative
unit of the Saudi Ministry of Finance,
the Public Investment Fund (‘‘PIF’’), 24 and
(3) it is not a citizen of the United States
Social Insurance. Fawcett Supp. Aff. at Ex.
2. Late in 2002 the PIF agreed to buy 30% of
the remaining shares from the bin Mahfouz
family, but Plaintiffs claim the purchase was
not completed until January 2003, after the
lawsuit was filed on September 4, 2002. See
Fawcett Supp. Aff. at Ex. 3 & 4 (news accounts
of sale). For the reasons that will be
explained below, the Court finds it unnecessary
to resolve this dispute at this time.
790 349 FEDERAL SUPPLEMENT, 2d SERIES
or created under the laws of a third country.
[12] In Dole Food, the Supreme Court
held ‘‘that only direct ownership of a majority
of shares by the foreign state satisfies
the statutory requirement’’ outlined in
§ 1603(b). 538 U.S. at 474, 123 S.Ct. 1655.
Accordingly, the Kingdom of Saudi Arabia’s
ownership of NCB must be direct for
NCB to enjoy immunity under the FSIA.
That is, NCB will not be deemed an instrumentality
of the Kingdom if the PIF, its
majority owner, is determined to be an
agency, instrumentality, or organ of the
Kingdom. See § 1603(b)(2) (stating agency
or instrumentality is entity whose majority
ownership interest is held by either
the foreign state or a political subdivision
thereof); Filler v. Hanvit Bank, 378 F.3d
213 (2d Cir.2004) (holding an organ’s ownership
of two banks did not, in turn, make
the banks organs or instrumentalities of
foreign state); see also In re Ski Train
Fire in Kaprun, Austria, 198 F.Supp.2d
420, 426 (S.D.N.Y.2002) (holding ski resort
owner, which was owned in part by instrumentality
of Austrian government, was not
instrumentality because it was not owned
directly by the state or a subdivision thereof);
Hyatt Corp. v. Stanton, 945 F.Supp.
675, 688 (S.D.N.Y.1996) (concluding ‘‘that
corporations a majority of whose shares
are owned by agencies or instrumentalities
of foreign states are not themselves agencies
or instrumentalities’’). Thus, NCB
must demonstrate that the PIF is the
equivalent of the Kingdom of Saudi Arabia
or a political subdivision thereof.
The PIF was established by Royal Decree
with the sole function of ‘‘financing
TTT investments in productive projects of
a commercial nature whether they belong
to the Government or the industrial lending
institutions connected to it or to its
public corporations and whether these
projects are undertaken independently or
in partnership between these administrative
parties and private institutions.’’ PIF
Charter ¶ 2, at Berger Aff. Ex. 4B (‘‘PIF
Charter’’); Affidavit of Abdallah Bin Hamad
Al–Wohaibi ¶ 3, the Director of the
Legal Department of the Ministry of Finance,
at Berger Aff. Ex. 4 (‘‘Al–Wohaibi
Aff.’’). Its board of directors are all Saudi
officials named in its charter, its employees
are civil servants, and the Ministry of
Finance is responsible for its costs. Id.
¶¶ 4, 8, 10; see also PIF Charter ¶¶ 4, 7.
Its board must submit an annual report to
Saudi Arabia’s Council of Ministers summarizing
its financial position and major
operations. Al–Wohaibi Aff. ¶ 10. It has
no separate legal status from the Ministry
of Finance. Id. ¶ 4. The PIF holds shares
of corporations and operational assets,
‘‘generally TTT on behalf of the Ministry of
Finance.’’ Id. ¶ 9. It may be sued as a
department of the Ministry of Finance,
and as such, the Ministry of Finance
would be named as the defendant. Id.
¶ 12. It funds investments on behalf of
the Kingdom and it provides financing
terms for projects that commercial lenders
do not. Id. ¶ 5; Supplemental Al–Wohaibi
Aff. ¶¶ 8–10 (hereinafter ‘‘Supp. Al–Wohaibi
Aff.’’).
a. Status of the PIF
In Filler v. Hanvit Bank, a case with
facts very similar to those presented here,
the Second Circuit reiterated Dole Food ’s
requirement of direct ownership for instrumentality
status. Two defendants were
commercial banks majority-owned by the
Korean Deposit Insurance Corporation
(‘‘KDIC’’), a ‘‘governmental institution’’
run by the Korean Ministry of Finance
and the Economy of the Republic of Korea.
Filler, 378 F.3d at 215–16. In determining
if KDIC was an organ of Korea,
the court considered several factors:
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791
(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 (citing Kelly v. Syria Shell
Petroleum Dev. B.V., 213 F.3d 841, 846–47
(5th Cir.2000) (alteration in original)).
The Second Circuit held that the KDIC
was an organ of Korea because it was
formed by statute and presidential decree;
it performs the governmental functions of
protecting depositors and promoting financial
stability; its directors are appointed
by the Ministry of Finance and Economy;
its president is appointed by the President
of the Republic of Korea; and many of its
operations are overseen by the Ministry of
Finance and Economy. Id.
The banks argued that once the court
determined KDIC was an organ of the
foreign state, the banks automatically became
instrumentalities or agencies of the
state because KDIC owned a majority of
their stock. Id. The Second Circuit rejected
this argument, finding such a holding
would ‘‘permit an infinite number of subsidiaries
to enjoy sovereign immunity, TTT
would be incompatible with the purpose of
the FSIA, which is to grant governmental,
not private corporate immunity, and TTT
would reflect infidelity to the Supreme
Court’s reasoning in Dole Food.’’ Id. at
218. Accordingly, it reiterated that ‘‘ ‘a
subsidiary of an instrumentality is not itself
entitled to instrumentality status’ TTT
and that ‘only direct ownership of a majority
of shares by the foreign state satisfies
the statutory requirement.’ ’’ Id. (quoting
Dole Food, 538 U.S. at 473–74, 123 S.Ct.
1655).
The Second Circuit determined the
KDIC was an organ of Korea by considering
whether it was created and supervised
by a foreign state and whether public employees
were performing public functions.
Id. at 217. Under its reasoning, it would
appear the PIF is also an organ. It was
created by royal decree, it is supervised by
the Kingdom’s Council of Ministers and
staffed with government employees. See
PIF Charter.
Yet, under the ‘‘legal characteristics’’
test, the PIF could qualify as a political
subdivision. See Hyatt, 945 F.Supp. at
680. In Hyatt, a court in this district
reasoned that a statutory requirement of
an agency or instrumentality, as opposed
to a political subdivision, is that it is a
‘‘separate legal person TTT that can function
independent of the state.’’ Id. at 684.
If an entity could sue and be sued, own
property, and contract in its own name, it
would be considered an agency or instrumentality
and not a political subdivision.
Id. at 685. NCB submits the PIF sues
and is sued as, and generally holds property
on behalf of, the Ministry of Finance.
Al–Wohaibi Aff. ¶¶ 9, 12.
NCB argues the Court should employ
the ‘‘core functions’’ test outlined in Transaero,
Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148 (D.C.Cir.1994), to find that the
PIF is the equivalent of the Kingdom.
Under this test, if the entity’s core functions
are governmental, it is considered
the state itself. Id. at 153. If its functions
are commercial in nature, it is considered
an instrumentality. Id. This Court is governed
by Second Circuit precedent and
finds Filler and Hyatt to be controlling.
Even if it were to adopt Transaero, however,
the Court finds on the record before it
that the PIF’s emphasis on commercial
projects precludes a finding that its core
functions are governmental in nature. See
PIF Charter ¶ 2 (noting the PIF’s primary
792 349 FEDERAL SUPPLEMENT, 2d SERIES
function of ‘‘financing TTT investments in
productive projects of a commercial nature’’).
NCB also urges that O’Connell Machinery
Co. v. M.V. ‘‘Americana,’’ 734 F.2d 115
(2d Cir.1984), mandates the finding that
the PIF is a political subdivision of the
Kingdom. In O’Connell, the Second Circuit
reasoned that the legislative history of
the FSIA indicated that ‘‘political subdivisions’’
were intended to include ‘‘all governmental
units beneath the central government.’’
Id. (quoting H.R.Rep. No.
1487, 94th Cong., 2d Sess. 15, reprinted in,
1976 U.S.C.C.A.N. 6604, 6613). Given the
PIF’s position under the Ministry of Finance,
O’Connell could lead to the conclusion
that the PIF is a political subdivision
of the Kingdom of Saudi Arabia. Id.; but
see In re Ski Train Fire, 198 F.Supp.2d at
425 n. 9 (distinguishing O’Connell on
grounds that the court based its holding on
a finding that the Italian government double-tiered
its administrative agencies);
Hyatt, 945 F.Supp. at 683–84 (finding definition
of ‘‘political subdivision’’ in O’Connell
too broad and suggesting the case
should be limited to its facts and not applied
widely). In the twenty years since
O’Connell was decided, however, courts
have been inclined to limit the FSIA’s
grant of immunity. See, e.g., Dole Food,
538 U.S. at 473–74, 123 S.Ct. 1655; Filler,
378 F.3d at 218. Accordingly, the Court
will not rely on O’Connell here.
b. Limited Jurisdictional Discovery
is Warranted
[13] The Court finds that resolution of
the PIF’s and thereby NCB’s status is not
determinable on the current record and,
therefore, limited jurisdictional discovery
is warranted. As explained above, the
PIF could qualify either as an organ or
political subdivision of the Kingdom of Saudi
Arabia. Additionally, the affidavits on
which the parties ask the Court to rely
have not been subjected to cross examination
and are rather self-serving. The parties
should have the opportunity to take
discovery of the jurisdictionally relevant
facts. First City, 150 F.3d at 177; see also
In re Magnetic Audiotape Antitrust Litig.,
334 F.3d 204, 208 (2d Cir.2003) (instructing
district court to permit discovery before
granting motion to dismiss based on factsensitive,
multi-factor test). Accordingly,
NCB’s motion to dismiss for lack of subject
matter jurisdiction based on the FSIA
is denied without prejudice. Limited jurisdictional
discovery will be permitted to
explore PIF’s function, organizational
structure, and place within the Kingdom of
Saudi Arabia.
D. Application of FSIA Exceptions
to the Princes and Kingdom of
Saudi Arabia
Three exceptions to foreign sovereign
immunity are implicated in these motions—the
commercial activities exception,
28 U.S.C. § 1605(a)(2), the state sponsor of
terrorism exception, 28 U.S.C.
§ 1605(a)(7), and the torts exception, 28
U.S.C. § 1605(a)(5).
1. Commercial Activities Exception
[14] Section 1605(a)(2) states:
A foreign state shall not be immune TTT
in any case TTT in which the action is
based TTT upon an act performed in the
United States in connection with a commercial
activity of the foreign state elsewhere;
or upon an act outside the territory
of the United States in connection
with a commercial activity of the foreign
state elsewhere and that act causes a
direct effect in the United States.
28 U.S.C. § 1605(a)(2). The statute defines
‘‘commercial activity’’ as ‘‘either a
regular course of commercial conduct or a
particular commercial transaction or act.
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793
The commercial character of an activity
shall be determined by reference to the
nature of the course of conduct or particular
transaction or act, rather than by reference
to its purpose.’’ 28 U.S.C. § 1603(d).
The Supreme Court has explained, ‘‘when
a foreign government acts, not as a regulator
of the market, but in the manner of a
private player within it, the foreign sovereign’s
actions are ‘commercial’ within the
meaning of the FSIA.’’ Weltover, 504 U.S.
at 614, 112 S.Ct. 2160. Courts must inquire
whether the foreign state’s actions
‘‘are the type of actions by which a private
party engages in trade and traffic or commerce.’’
Id. (internal citations omitted).
[15] Judge Robertson determined that
the commercial activity exception did not
apply to the Burnett Plaintiffs’ claims
against Prince Sultan and Prince Turki
because ‘‘the act of contributing to a foundation
is not within our ordinary understanding
of ‘trade and traffic or commerce’
nor, apparently was it within the contemplation
of TTT Congress.’’ Burnett II, 292
F.Supp.2d at 18 (citing H.R.Rep. No. 94–
1487, at 16, reprinted in 1976
U.S.C.C.A.N. at 6615). Thus, the consolidated
Plaintiffs do not assert that the commercial
activities exception is applicable to
any of the Defendants raising FSIA defenses
here. This Court adopts Judge
Robertson’s reasoning. To the extent any
Plaintiffs’ claims are based on a Defendant’s
contributions to charities, those acts
cannot be considered commercial.
[16, 17] The Federal Plaintiffs allege
that the Kingdom of Saudi Arabia, Prince
Sultan, and Prince Turki financed terrorism
by contributing to or supporting charities
known to support terrorist activities.
In these Plaintiffs’ view, this is essentially
money laundering and, therefore, a commercial
activity. See, e.g., Federal Plaintiffs’
Opp. to Motion to Dismiss of Prince
Sultan at 18 (citing U.S. v. Goodwin, 141
F.3d 394, 399 (2d Cir.1997)). The Second
Circuit noted in Goodwin that ‘‘[m]oney
laundering is a quintessential economic activity,’’
141 F.3d at 399, but that statement
has no bearing here. In Goodwin the
court was not deciding whether money
laundering is a commercial activity for
purposes of the FSIA. Id. (analyzing constitutionality
of criminal money laundering
statute). The Second Circuit has made
very clear that, for purposes of the FSIA,
a commercial activity must be one in which
a private person can engage lawfully.
Letelier v. Republic of Chile, 748 F.2d 790,
797–98 (2d Cir.1984); see also Saudi Arabia
v. Nelson, 507 U.S. 349, 360–62, 113
S.Ct. 1471, 123 L.Ed.2d 47 (1993) (holding
detaining and torturing plaintiff is not
commercial activity since it ‘‘is not the sort
of action by which private parties can engage
in commerce’’). Since money laundering
is an illegal activity, see 18 U.S.C.
§ 1956 (criminalizing money laundering), it
cannot be the basis for applicability of the
commercial activities exception. See Letelier,
748 F.2d at 798 (holding alleged participation
in an assassination is not a lawful
activity and therefore not a commercial
activity for purposes of the FSIA). Accordingly,
the Court finds that the commercial
activities exception outlined in
§ 1605(a)(2) is inapplicable to the allegations
contained in the Federal complaint
against the Kingdom of Saudi Arabia,
Prince Sultan, and Prince Turki.
2. State Sponsor of Terrorism
[18] Subsection (a)(7) lifts immunity in
cases:
in which money damages are sought
against a foreign state for personal injury
or death that was caused by an act of
torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision
of material support or resources
TTT for such an act TTT except that the
794 349 FEDERAL SUPPLEMENT, 2d SERIES
court shall decline to hear a claim under
this paragraph
(A) if the foreign state was not designated
as a state sponsor of terrorism
TTTT
28 U.S.C. § 1605(a)(7) (emphasis added).
The parties agree that the Kingdom of
Saudi Arabia has not been designated a
state sponsor of terrorism. See 28 U.S.C.
§ 1605(a)(7)(A) (explaining there is no jurisdiction
if ‘‘the foreign state was not
designated as a state sponsor of terrorism
under TTT the Export Administration Act
of 1979 TTT or TTT the Foreign Assistance
Act of 1961’’). Thus, this exception does
not provide an exception to immunity for
any of the Defendants raising the FSIA
defense here.
3. Torts Exception
In relevant part, the torts exception deprives
a foreign sovereign of immunity in
actions:
in which money damages are sought
against a foreign state for personal injury
or death, or damage to or loss of
property, occurring in the United States
and caused by the tortious act or omission
of that foreign state or of any official
or employee of that foreign state
while acting within the scope of his office
or employment; except this [exception]
shall not apply to -
(A) any claim based upon the exercise
or performance or the failure to exercise
or perform a discretionary function
regardless of whether the discretion
be abused.
28 U.S.C. § 1605(a)(5). Second Circuit
law instructs that district courts must determine
whether the defendant’s alleged
acts were tortious under the laws of New
York and, if so, whether the defendant’s
acts were discretionary. Robinson, 269
F.3d at 142 (‘‘If those activities could not
render the Malaysian government liable
for a tort under New York law, then it
remained immune under § 1605(a)(5).’’).
In the event that the act is tortious and
the acts were not discretionary, the alleged
tortfeasor is subject to suit under the
FSIA.
[19] The FSIA’s discretionary function
exception replicates the discretionary function
exception found in the Federal Tort
Claims Act. See 28 U.S.C. § 2680(a).
Courts have found both exceptions are ‘‘intended
to preserve immunity for ‘decisions
grounded in social, economic, and political
policy.’ ’’ Marchisella v. Gov’t of Japan,
No. 02 Civ. 10023(DC), 2004 WL 307248, at
*2 (S.D.N.Y. Feb. 17, 2004) (citing United
States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S.
797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660
(1984) (interpreting FTCA)). Generally,
acts are discretionary if they are performed
at the planning level of government,
as opposed to the operational level.
Kline v. Kaneko, 685 F.Supp. 386, 392
(S.D.N.Y.1988) (finding decision to expel
plaintiff from Mexico was product of enforcement
of immigration laws and therefore
a discretionary function); Marchisella,
2004 WL 307248, at *2 (finding decision
regarding placement of a water hose on a
ship was an operational function and therefore
not discretionary and not protected by
the FSIA); Napolitano v. Tishman
Constr. Corp., No. 96 Civ. 4402(SJ), 1998
WL 102789, at *4 (E.D.N.Y. Feb. 26, 1998)
(finding purchasing consulate buildings
and hiring contractor to renovate is a planning
function and therefore discretionary).
Defendants argue that the Court should
not even consider the torts exception for
two reasons. First, they claim that for
this exception to apply, the entire tort
must have occurred in the United States,
which Defendants argue is not the case
here. Second, Defendants claim that
Plaintiffs impermissibly seek to contort a
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795
§ 1605(a)(7) state sponsor of terrorism
claim into a § 1605(a)(5) tort claim.
With respect to Prince Sultan’s and
Prince Turki’s arguments that the entire
tort, meaning both the tortious conduct
and the injury, must occur in the United
States, Judge Robertson disagreed and
stated the FSIA ‘‘preserves immunity for
tort claims unless injury or death occurs in
the United States.’’ Burnett II, 292
F.Supp.2d at 19 n. 4 (quoting Tel–Oren v.
Libyan Arab Republic, 726 F.2d 774, 775
(D.C.Cir.1984)) (Edwards, J., concurring)
(some emphasis omitted). Courts in the
Second Circuit seem to take the opposite
approach. ‘‘Although cast in terms that
may be read to require that only the injury
rather than the tortious acts occur in the
United States, the Supreme Court has
held that this exception ‘covers only torts
occurring within the territorial jurisdiction
of the United States.’ ’’ Cabiri v. Gov’t of
the Republic of Ghana, 165 F.3d 193, 200
n. 3 (2d Cir.1999) (quoting Amerada Hess,
488 U.S. at 441, 109 S.Ct. 683); see also
Hirsh v. State of Israel, 962 F.Supp. 377,
383–84 (S.D.N.Y.1997) (citing legislative
history stating both the tort and injury
must occur within the United States for
the exception to apply and dismissing complaint
where plaintiffs failed to allege specific
tort or place tort occurred); Kline,
685 F.Supp. at 391 (finding tort exception
inapplicable where victim was abducted in
Mexico City and brought to the United
25. Judge Robertson recognized the same difficulty.
Although he did consider Plaintiffs’s
claims under the tort exception, he found that
the language of the state sponsor of terrorism
exception buttressed his ultimate conclusion
that the tortious acts exception would not
provide subject matter jurisdiction over
Prince Sultan and Prince Turki. Unlike
(a)(7), the tort exception ‘‘makes no mention
of the ‘provision of material support.’ ’’ Burnett
II, 292 F.Supp.2d at 20 n. 5. After reviewing
canons of statutory construction counseling
that Congress acts intentionally when it
States because ‘‘the entire tort must be
committed in the United States’’).
Plaintiffs allege that the Kingdom,
Prince Sultan, and Prince Turki tortiously
aided and abetted the September 11 terrorists
by supporting charities that, in
turn, supported al Qaeda and international
terrorism. Plaintiffs also claim that, in
return for protection of the Kingdom,
these Defendants essentially willfully ignored
the threat that Osama bin Laden
and al Qaeda posed to the United States.
Plaintiffs do not claim that the Kingdom or
the Princes undertook any of their alleged
acts in the United States. Yet, in the
Plaintiffs’ view, the operative torts for the
Court’s consideration are the attacks of
September 11, which did take place in the
United States. See Burnett II, 292
F.Supp.2d at 19 n. 4 (noting death and
injuries occurred in United States). Further,
Plaintiffs claim it would be unjust to
allow foreign nations to escape liability for
tortious acts performed in the United
States if they could show that some act of
planning the tort took place outside the
United States.
Additionally, Defendants submit that,
since the allegations are precisely those
outlined in § 1605(a)(7)—that is, ‘‘personal
injury or death that was caused by an act
of TTT extrajudicial killing, aircraft sabotage
TTT or the provision of material support
or resources TTT for such an act’’—
none of the other exceptions should be
read to apply in its place. 25 Defendants
includes particular language in one section of
a statute but omits it from another, Judge
Robertson concluded that Congress’s omission
of ‘provision of material support’ from
(a)(5) should be treated as intentional. Id.;
see also HCSC–Laundry v. United States, 450
U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1980)
(per curiam) (‘‘[I]t is a basic principle of
statutory construction that a specific statute
TTT controls over a general provision TTT,
particularly when the two are interrelated
and closely positioned.’’).
796 349 FEDERAL SUPPLEMENT, 2d SERIES
argue the Court’s adjudication of Plaintiffs’
claims would interfere with the executive
branch’s discretion to designate state
sponsors of terror. See 28 U.S.C.
§ 1605(a)(7)(A) (listing statutes that give
Secretary of State authority to designate
countries as sponsors of terrorism). Finally,
Defendants submit the purpose
of(a)(5) was ‘‘to eliminate a foreign state’s
immunity for traffic accidents and other
torts committed in the United States, for
which liability is imposed under domestic
tort law.’’ Amerada Hess, 488 U.S. at
439–40, 109 S.Ct. 683; Burnett II, 292
F.Supp.2d at 19 (stating ‘‘the legislative
history [of the FSIA] counsels that the
exception should be narrowly construed so
as not to encompass the farthest reaches
of common law’’).
Plaintiffs respond that if Congress intended
(a)(5) and (a)(7) to be mutually
exclusive or intended that (a)(5) never apply
in the terrorism context, Congress
would have said so. Indeed, Congress did
so very explicitly with respect to (a)(5) and
(a)(2) and between (a)(7) and (a)(2). See
§ 1605(a)(5) (explaining exception can only
be used in situations ‘‘not otherwise encompassed
in paragraph (2)’’);
§ 1605(a)(7) (same). To further buttress
their argument, Plaintiffs note the two exceptions
have been interpreted to encompass
different situations. Subsection (a)(7)
covers acts of terrorism committed abroad
by a state sponsor of terrorism, while subsection
(a)(5) governs tortious acts, including
terrorism, performed in the United
States. See Flatow v. Islamic Republic of
Iran, 999 F.Supp. 1, 15 (D.D.C.1998) (finding
(a)(7) applied to conduct outside the
United States and stating ‘‘28 U.S.C.
§ 1605(a)(5) already provides jurisdiction
over state-sponsored terrorist acts in the
United States, TTT the state sponsored terrorism
exception would be redundant if it
were held to apply only within the United
States’’). Again, Plaintiffs argue that Defendants’
argument of exclusivity would
lead to absurd results, such that if a foreign
sovereign not designated a state sponsor
of terror was involved in a car accident
stemming from negligence it would not be
immune; but if it undertook a deliberate
act of violence it would enjoy immunity
from suit.
The Court understands Plaintiffs’ desire
to find a legal remedy for the horrible
wrongs committed on September 11, 2001.
If appropriate, however, these Defendants
are entitled to immunity from litigating
these gravely serious claims in this forum.
Congress made a policy decision that the
Executive branch, and not the courts, have
the authority to label a foreign nation a
terrorist. See 28 U.S.C. § 1605(a)(7)(A).
But when it drafted the state sponsor of
terror exception it did not include mutually
exclusive language that would preclude the
application of the torts exception here. It
did include such language with respect to
the commercial activities exception. See
28 U.S.C. § 1605(a)(7) (‘‘A foreign state
shall not be immune from jurisdiction of
courts of the United States or of the States
in any case—not otherwise covered by
paragraph (2) above.’’); see also 28 U.S.C.
§ 1605(a)(5) (‘‘A foreign state shall not be
immune from jurisdiction of courts of the
United States or of the States in any
case—not otherwise encompassed in paragraph
(2) above.’’). Particularly in a case
such as this where interests of sovereignty,
comity, international relations, and separation
of powers are implicated, the Court
must be vigilant to exercise discipline to
apply the law only as it is written. While
there are certainly obstacles to (a)(5)’s application—and
the Court is not convinced
the Plaintiffs have or can overcome
them—the Court will not rule as a matter
of law that subsections (a)(7) and (a)(5) are
mutually exclusive. Accordingly, the
Court will consider Plaintiffs’ evidence
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demonstrating the torts exception outlined
in (a)(5) provides a basis for subject matter
jurisdiction here.
[20] To fit within the exception outlined
in § 1605(a)(5), the Plaintiffs must
come forward with evidence demonstrating
the Princes’ or Kingdom’s tortious acts or
omissions caused Plaintiffs’ injuries. 26 28
U.S.C. § 1605(a)(5); Virtual Countries,
300 F.3d at 241; Cargill, 991 F.2d at 1016.
‘‘Any terrorist act, including the September
11 attacks, might have been the natural
and probable consequence of knowingly
and intentionally providing financial support
to al Qaeda, given [the complaints’]
allegations that, prior to September 11, al
Qaeda and Osama bin Laden had proclaimed
their intentions to commit murderous
terrorist activities against the United
States and its citizens, TTT and had accompanied
these words with actions by implementing,
and publicly acknowledging responsibility
for, such terrorist schemes as
the 1993 bombing of the World Trade Center,
the 1998 attack of the U.S. embassies
in Kenya and Tanzania, and the 2000 attack
of the U.S.S. Cole in Yemen.’’ Burnett
I, 274 F.Supp.2d at 105; see also
Ashton Complaint ¶¶ 105–108 (1993 World
Trade Center attack), 130–136 (embassy
bombings), 152–55 (Cole attack); Federal
Complaint ¶ 77 (alleging Osama Bin Laden
established al Qaeda to wage war with the
United States).
26. Plaintiffs argue that Judge Robertson held
them to an unnecessarily stringent theory of
causation and submit that the D.C. Circuit’s
subsequent decision in Kilburn v. Socialist
People’s Libyan Arab Jamahiriya, 376 F.3d
1123 (D.C.Cir.2004), effectively overrules the
holding in Burnett II. See Kilburn, 376 F.3d at
1129 (evaluating a claim under § 1605(a)(7)
and holding the requirement for jurisdictional
causation was proximate cause). This Court
does not read Burnett II as requiring but-for
causation and Defendants agreed at oral argument
that the proper inquiry at this stage of
a. Prince Sultan and Prince Turki
[21] Both Princes are alleged to have
tortiously aided and abetted terrorism
through their contributions to, and support
of, Islamic charities that they knew or
should have known were supporting terrorist
organizations such as al Qaeda. 27
Additionally, Plaintiffs allege Prince Turki
aided and abetted the terrorists by attempting
to deflect their activities away
from Saudi Arabia and by serving as a
‘‘facilitator of Osama bin Laden’s network
of charities.’’ Ashton Complaint ¶ 261;
Burnett Complaint ¶ 350. Plaintiffs allege
both Princes must have known that the
United States would have been al Qaeda’s
target, making the attacks on September
11 a foreseeable result of the Princes’ actions.
[22–24] Pursuant to the Second Circuit’s
instruction, the Court must first determine
whether the Princes’ acts are tortious
under New York law. Robinson, 269
F.3d at 142. In New York, conspiracy and
aiding and abetting are varieties of concerted
action liability. Pittman v. Grayson,
149 F.3d 111, 122 (2d Cir.1998).
There must be ‘‘(1) an express or tacit
agreement to ‘participate in a common
plan or design to commit a tortious act,’ (2)
tortious conduct by each defendant, and (3)
the commission by one of the defendants,
in pursuance of the agreement, of an act
that constitutes a tort.’ ’’ Id. (quoting
the litigation is the presence of proximate
causation. See Sept. 14, 2004 Tr. at 121.
27. To the extent that the consolidated Plaintiffs
and the Federal Plaintiffs allege that
Prince Sultan and Prince Turki made donations
in their personal capacities, see, e.g.,
Ashton Complaint ¶ 269 (Prince Sultan); Federal
Complaint ¶¶ 451–52 (Prince Turki),
those claims are not subject to the FSIA’s
protection. The Court will determine whether
it has personal jurisdiction over Prince
Sultan and Prince Turki in Part II.
798 349 FEDERAL SUPPLEMENT, 2d SERIES
Rastelli v. Goodyear Tire & Rubber Co.,
79 N.Y.2d 289, 295, 582 N.Y.S.2d 373, 591
N.E.2d 222 (1992)). Conspiracy ‘‘requires
an agreement to commit a tortious act.’’
Id. at 122–23. Aiding and abetting ‘‘requires
that the defendant have given substantial
assistance or encouragement to
the primary wrongdoer.’’ Id. at 123.
‘‘[U]nder either theory, the defendant
must know the wrongful nature of the
primary actor’s conduct.’’ Id. (finding no
concerted action liability where airline had
no knowledge mother was removing
daughter from country without father’s approval).
i. Causation
Judge Robertson found his consideration
of Prince Sultan’s and Prince Turki’s FSIA
defenses did not present an opportunity
for a general discourse on causation since
Plaintiffs’ theory would stretch causation
to ‘‘terra incognita.’’ Burnett II, 292
F.Supp.2d at 20. This Court agrees with
Judge Robertson’s conclusion, but it undertakes
the causation analysis because a
similar review will be necessary in its consideration
of the Defendants’ motions for
failure to state a claim. See Part III
below.
Plaintiffs place great reliance on Halberstam
v. Welch, 705 F.2d 472 (D.C.Cir.1983)
and Boim v. Quranic Literacy Institute. &
Holy Land Foundation for Relief & Development,
291 F.3d 1000, 1023 (7th Cir.2002)
(‘‘Boim II ’’). Neither of these cases concern
the tortious activity exception to the
FSIA, but they do explain liability under
the ATA and for aiding and abetting and
conspiracy. 28 In Halberstam, the defendant
was found liable as a joint venturer
for a killing that occurred during a burglary
at which she was not present. Halberstam,
705 F.2d at 488; see also Lumbard
v. Maglia, Inc., 621 F.Supp. 1529, 1536
(S.D.N.Y.1985) (‘‘[T]hose who aid or abet
or conspire in tortious conduct are jointly
and severally liable with other participants
in the tortious conduct, regardless of the
degree of their participation or culpability
in the overall scheme.’’). The court found
that the defendant’s intimate relationship
with the burglar and her assistance in his
other illegal ventures ‘‘defie[d] credulity
that [she] did not know that something
illegal was afoot.’’ Halberstam, 705 F.2d
at 486.
In Boim, the district court had denied a
motion to dismiss by U.S.-based charities
alleged to have aided and abetted international
terrorism. Boim v. Quranic Literacy
Inst. & Holy Land Found., 127
F.Supp.2d 1002, 1018 (N.D.Ill.2001)
(‘‘Boim I ’’). The Seventh Circuit affirmed
the decision and held that the parents of a
yeshiva student killed in 1996 in Israel by
members of the military wing of Hamas
could prove that the defendants aided and
abetted their son’s murder under the ATA
if they could demonstrate that the charities
‘‘knew of Hamas’ illegal activities, that
they desired to help those activities succeed,
and they engaged in some act of
helping the illegal activities.’’ Boim II,
291 F.3d at 1023. The court explained
that ‘‘[f]oreseeability is the cornerstone of
28. The court in Halberstam outlined the elements
of aiding and abetting as: ‘‘(1) the
party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role
as part of an overall illegal or tortious activity
at the time that he provides the assistance;
(3) the defendant must knowingly and substantially
assist the principal violation.’’ Halberstam,
705 F.2d at 477. It described the
elements of civil conspiracy as: ‘‘(1) an agreement
between two or more persons; (2) to
participate in an unlawful act, or a lawful act
in an unlawful manner; (3) an injury caused
by an unlawful overt act performed by one of
the parties to the agreement; (4) which overt
act was done pursuant to and in furtherance
of the common scheme.’’ Id.
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799
proximate cause, and in tort law, a defendant
will be held liable only for those
injuries that might have reasonably been
anticipated as a natural consequence of the
defendant’s actions.’’ Id. at 1012. Plaintiffs
submit the court’s decision in Boim—
that the ATA was designed ‘‘to extend
liability to all points along the causal chain
of terrorism’’—supports the finding that
Prince Sultan’s and Prince Turki’s conduct
caused the attacks on September 11, 2001.
Id. at 1011.
Plaintiffs exert much effort outlining the
connections between al Qaeda and the Defendant
charities that Prince Sultan and
Prince Turki supported. Plaintiffs argue
that the indirect nature of the Princes’
contributions to al Qaeda is not fatal to
their claims since they allegedly knew that
funds they donated to the Defendant charities
were being diverted to al Qaeda. See
Bierstein Aff. in Opp. to Prince Sultan’s
Motion to Dismiss, Exs. 1–24. The Court
has reviewed the exhibits on which Plaintiffs
rely and finds only a handful relate to
Plaintiffs’ arguments.
Exhibit 11 is a report allegedly prepared
for the President of the U.N. Security
Council regarding a Saudi connection to
terror financing. The report mentions
Prince Sultan once in his role as the head
of the Supreme Council of Islamic Affairs
and does not conclude or suggest that he
had any knowledge that charities to which
he allegedly donated were funneling money
to al Qaeda.
Exhibit 12 is a statement by the former
French Minister of the Interior in which
he claims to have met with Prince Sultan,
Prince Turki, and other members of the
Saudi Royal family in November 1994 and
to have raised the ‘‘question of financial aid
furnished by Saudi charitable organizations
enjoying state support TTT to Islamist
movements or terrorist groups.’’ The
only charity he names in his statement is
the World Islamic League, not one of the
charities to which the Princes allegedly
donated.
Exhibits 21–24 are excerpts from The
Muslim World regarding Prince Sultan’s
donations to IIRO and the Joint Saudi
Committee for Relief of Kosovar Refugees
(‘‘JSCR’’). There is no indication in these
exhibits that IIRO or JSCR was funneling
donations to al Qaeda. Even construing
these allegations and exhibits in the light
most favorable to Plaintiffs, and drawing
all inferences in their favor, none of these
exhibits amount to admissible evidence
that Prince Sultan or Prince Turki knew
the charities they supported were fronts
for al Qaeda.
Alternatively, Plaintiffs argue that, since
Osama bin Laden and al Qaeda made no
effort to hide their hatred for the United
States, Prince Sultan and Prince Turki had
to have been aware that the United States
was a target, making the atrocities of September
11, 2001 a foreseeable result of
their actions. See, e.g., Bierstein Aff. in
Opp. to Prince Sultan’s Motion to Dismiss,
Exs. 2–10, 14, 15, 18, 20 (including reports
and fatwas summarizing Osama bin Laden’s
and al Qaeda’s repeated public threats
to and denouncement of the United
States). There is no question that in the
years leading up to the September 11 attacks,
Osama bin Laden and al Qaeda were
increasingly vocal in their hatred of the
United States and its interests. The question
remains, however, whether Plaintiffs
have adequately alleged that Prince Sultan’s
and Prince Turki’s specific acts aided
and abetted those terrorists.
Both Prince Sultan and Prince Turki
claim Plaintiffs cannot demonstrate their
alleged tortious activity caused Plaintiffs’
injuries. They argue that Plaintiffs ignore
that Osama bin Laden also targeted the
Saudi Royal family. See, e.g., Bierstein
Aff. in Opp. to Prince Sultan’s Motion to
800 349 FEDERAL SUPPLEMENT, 2d SERIES
Dismiss, Ex. 16 (Prince Turki, ‘‘Allied
Against Terrorism,’’ September 17, 2002,
Washington Post, editorial in which Prince
Turki explains the Saudis’ practice of sharing
information regarding Osama bin Laden
and al Qaeda with the CIA and states
that al Qaeda also targeted the Kingdom);
Exs. 3, 5, 6 (fatwas issued by Osama bin
Laden and Sheikh Omar Abdel Rahman
targeting Americans and expressing extreme
bitterness toward the Saudi Royal
family). Prince Sultan argues that Plaintiffs
blur the distinction between charities
he is on record of supporting, IIRO and
WAMY, and those he is not, Al Haramain
and MWL. See supra note 20. Both
Princes also distinguish the instant case
from Boim and other cases cited by the
Plaintiffs on the basis that groups that
they are alleged to have supported were
not designated as terrorist organizations
by the United States government. See
Boim II, 291 F.3d at 1002 (noting Hamas
was designated a terrorist organization by
President Clinton in 1995 and by the Secretary
of State in 1997); see also Consolidated
Plaintiffs’ Opp. to Prince Sultan’s
Motion to Dismiss at 16–17 (citing Flatow,
999 F.Supp. at 18 (holding Iran, a state
sponsor of terrorism, liable as provider of
material support to terrorist organization
Palestine Islamic Jihad pursuant to 18
U.S.C. § 1605(a)(7)); Smith v. Islamic
Emirate of Afghanistan, 262 F.Supp.2d
217, 232 (S.D.N.Y.2003) (granting default
judgment against Iraq, a designated state
sponsor of terror, after plaintiffs demonstrated
it provided material support to
Osama bin Laden and al Qaeda)); Consolidated
Plaintiffs’ Opp. to Prince Turki’s
Motion to Dismiss at 8 (same).
Although they did not involve New York
law, the Court agrees that Halberstam
and Boim are instructive. In Halberstam,
the defendant enjoyed an extravagant lifestyle
made entirely possible by her longterm
live-in boyfriend’s regular burglaries.
The court concluded that she had to know
of his criminal activities because she acted
as a money launderer for her boyfriend’s
stolen metals business. Halberstam, 705
F.2d at 486–88. The court found the defendant
was so close to the illegal activity
that she had to be aware of her role in it.
Id. at 486. In Boim, the court denied the
defendants’ motion to dismiss because the
complaint contained specific factual allegations
tying the defendants to Hamas. For
example, one defendant entity allegedly
employed an individual designated as a
terrorist affiliated with Hamas, another
entity admitted providing funds to Hamas,
two individual defendants had documented
and admitted ties to Hamas, and numerous
links existed between the individual
terrorist defendants and the entity defendants.
Boim I, 127 F.Supp.2d at 1006–
1008. Unlike Hamas in Boim, none of the
organizations the Princes are alleged to
have supported in an official capacity were
designated a sponsor of terrorism at the
time of the alleged contributions. In fact,
only BIF and certain branches of Al Haramain
have since been designated. See
Exec. Order No. 13224 (designating BIF
(November 19, 2002) and branches of Al
Haramain (Bosnia, Somalia on March 11,
2002; Indonesia, Kenya, Pakistan, Tanzania
on January 22, 2004; Afghanistan, Albania,
Bangladesh, Ethiopia, the Netherlands
on June 2, 2004)). Thus, pursuant
to Boim, the Plaintiffs would have to allege
specific facts showing that the
Princes knew or should have known that
the charities they supported were actually
fronts for al Qaeda. See Burnett I, 274
F.Supp.2d at 106.
[25–27] Plaintiffs have pleaded al Qaeda’s
repeated, public targeting of the United
States. They have not, however, pleaded
facts to support an inference that the
Princes were sufficiently close to the terrorists’
illegal activities to satisfy Halber-
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801
stam or New York law. Similarly, Plaintiffs
have not pleaded facts to suggest the
Princes knew they were making contributions
to terrorist fronts and provided substantial
assistance or encouragement to
the terrorists to satisfy Boim or New York
law. The Court has reviewed the complaints
in their entirety and finds no allegations
from which it can infer that the
Princes knew the charities to which they
donated were fronts for al Qaeda. The
Court is not ruling as a matter of law that
a defendant cannot be liable for contributions
to organizations that are not themselves
designated terrorists. But in such a
case, there must be some facts presented
to support the allegation that the defendant
knew the receiving organization to be
a solicitor, collector, supporter, front or
launderer for such an entity. There must
be some facts to support an inference that
the defendant knowingly provided assistance
or encouragement to the wrongdoer.
Here, there are no such factual bases presented,
there are only conclusions. See
Robinson, 269 F.3d at 146 (‘‘[W]e note that
the conclusory nature of [plaintiff’s] allegations
alone would give us pause before we
would allow them to sustain jurisdiction.’’)
(citing Zappia Middle East Const. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253
(2d Cir.2000) (finding, in context of FSIA
12(b)(1) motion, conclusory allegations in
plaintiffs affidavit insufficient to sustain
jurisdiction)). The law does not permit
Plaintiffs
to circumvent the jurisdictional hurdle of
the FSIA by inserting vague and conclusory
allegations of tortious conduct in
their complaints—and then TTT rely on
the federal courts to conclude that some
conceivable non-discretionary tortious
act falls within the purview of these
generic allegations under the applicable
substantive law. This is at odds with
the goal of the FSIA to enable a foreign
government to obtain an early dismissal
when the substance of the claim against
it does not support jurisdiction.
Robinson, 269 F.3d at 146.
ii. Discretionary Function
Plaintiffs argue that there is no discretion
to conduct illegal activities and the
so-called discretionary function exception
to the tortious act exception should not
apply to Prince Sultan or Prince Turki.
See, e.g., Liu v. Republic of China, 892
F.2d 1419, 1421, 1431 (9th Cir.1989) (finding
no discretion to violate Chinese law
prohibiting murder where gunmen acting
on direction of China’s Director of Defense
Intelligence Bureau killed plaintiff’s
husband); Birnbaum v. United States,
588 F.2d 319, 329–30 (2d Cir.1978) (finding
in FTCA case that the CIA had no
authority and therefore no discretion to
open U.S. first class mail departing for
and arriving from the Soviet Union);
Glickman v. United States, 626 F.Supp.
171, 175 (S.D.N.Y.1985) (finding in FTCA
case that CIA agent’s secret administration
of LSD to plaintiff was not discretionary
function); Letelier v. Republic of Chile,
488 F.Supp. 665, 673 (D.D.C.1980)
(holding no discretion to order or aid assassination
of former Chilean ambassador
and foreign minister). Prince Sultan insists
that any recommendation of government
grants to Islamic charities was a
discretionary function. Prince Turki
makes a similar argument regarding his
actions as the head of DGI and urges the
Court to find that all of his alleged actions
should be subsumed by the discretionary
function exception.
[28] The Court finds the discretionary
function exception independently bars
Plaintiffs’ claims against Prince Sultan and
Prince Turki. Both Princes are accused of
donating money or recommending government
grants to charities that allegedly supported
al Qaeda. As the head of DGI,
802 349 FEDERAL SUPPLEMENT, 2d SERIES
Prince Turki is also alleged to have attempted
to protect Saudi Arabia from terrorism
and to have implemented the Kingdom’s
foreign relations with the Taliban
and Osama bin Laden. In determining
whether these were discretionary functions,
the Court must decide whether the
actions involved an element of choice or
judgment based on considerations of public
policy. See Callahan v. United States, 329
F.Supp.2d 404, 408 (S.D.N.Y.2004) (interpreting
FTCA); Berkovitz v. United
States, 486 U.S. 531, 536, 108 S.Ct. 1954,
100 L.Ed.2d 531 (1988) (construing FTCA).
[29, 30] There can be little doubt that,
as the chairman of the Supreme Council of
Islamic Affairs, charged with making recommendations
to the Council of Ministers
regarding requests for aid from Islamic
organizations located abroad, and as the
head of the Special Committee of the
Council of Ministers, charged with deciding
which grants should be made to Islamic
charities, Prince Sultan’s decisions were
made at the planning level of government,
Kline, 685 F.Supp. at 392, and ‘‘grounded
in social, economic, and political policy,’’
Varig Airlines, 467 U.S. at 814, 104 S.Ct.
2755. Similarly, as the head of DGI,
Prince Turki’s decisions regarding the
treatment of the Taliban and Osama bin
Laden were judgments based on considerations
of public policy. See Callahan v.
United States, 329 F.Supp.2d at 408; see
also Burnett II, 292 F.Supp.2d at 20–21
(‘‘[T]his conclusion would be nearly selfevident:
Prince Turki, as director of intelligence,
taking acts to protect Saudi Arabia
from terrorism, and Prince Sultan, as
chairman of the Supreme Council, making
recommendations to the Council of Ministers
about requests for assistance from
Islamic organizations outside Saudi Arabia
or, as head of the Special Committee, deciding
what disbursements should be made
to Islamic charitable organizations, were
clearly making ‘decisions grounded in social,
economic, and political policy.’ ’’)
(quoting Varig Airlines, 467 U.S. at 814,
104 S.Ct. 2755).
Accordingly, to the extent that Plaintiffs
allege acts Prince Sultan and Prince Turki
performed in their official capacities,
Prince Sultan’s and Prince Turki’s motions
to dismiss the certain consolidated complaints
29 and the Federal complaint are
granted. The Court denies Plaintiffs’ request
for jurisdictional discovery because
Plaintiffs have not presented any factual
basis for believing that discovery might
reasonably be expected to result in evidence
that would overcome the discretionary
function exception. See 28 U.S.C.
§ 1605(a)(5)(A) (exception not applicable to
‘‘any claim based upon the exercise or
performance or the failure to exercise or
perform a discretionary function regardless
of whether the discretion be abused.’’)
The Court will consider the appropriateness
of exercising personal jurisdiction
over Prince Sultan’s and Prince Turki’s
personal acts in Part II below.
b. Kingdom of Saudi Arabia
There is no dispute that the Kingdom of
Saudi Arabia is a foreign state within the
meaning of the FSIA. Federal Complaint
¶ 63. The Federal Plaintiffs have the
‘‘burden of going forward with evidence
that, under exceptions to the FSIA, immunity
should not be granted.’’ Virtual
Countries, 300 F.3d at 241 (internal quotations
omitted). As explained above, the
only possible applicable exception is the
torts exception under 28 U.S.C.
§ 1605(a)(5).
[31, 32] The Federal Plaintiffs’ allegations
arise ‘‘predominantly from miscon-
29. The consolidated complaints are Ashton, Barrera, Burnett, Salvo, and Tremksy.
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803
duct of ostensible charities under the
Kingdom’s control.’’ Federal Opp. to Motion
to Dismiss of the Kingdom of Saudi
Arabia at 1. 30 Thus, the Federal Plaintiffs
claim the Kingdom of Saudi Arabia aided
and abetted the terrorists through these
charities. In attempting to overcome the
presumption of the Kingdom’s sovereign
immunity, the Federal Plaintiffs argue the
merits of their claims against the charities.
31 Based on news accounts that the
Kingdom has dissolved its international
charities and terrorist financing reports
that implicate certain charities, the Federal
Plaintiffs urge the Court to find that the
Kingdom had previously willfully ignored
the charities’ support for terrorism. See,
e.g., Federal Opp. to Kingdom of Saudi
Arabia Motion to Dismiss Ex. 2 (‘‘Terrorist
Financing, Report of an Independent Task
Force Sponsored by the Council on Foreign
Relations’’), Ex. 3 (CNN.com June 2,
2004 ‘‘Saudis reform charities as antiterror
measure’’ (mentioning only Al Haramain
Islamic Foundation)), Ex. 5 (Senate Subcommittee
Testimony, July 31, 2003 by
Steven Emerson with Jonathan Levin,
‘‘Terrorism Financing: Origination, Organization,
and Prevention: Saudi Arabia,
Terrorist Financing and the War on Terror’’).
30. The Federal Plaintiffs allege that each of
the following charities, which are all named
as Defendants and represented by counsel in
these actions, are agencies, instrumentalities,
arms or organs of the Kingdom: MWL, IIRO,
WAMY, Al Haramain Islamic Foundation, Saudi
High Commission for Relief to Bosnia and
Herzegovina, SJRC, Rabita Trust, Saudi Red
Crescent, and BIF. The Kingdom disputes the
instrumentality status of MWL, IIRO, WAMY,
Al Haramain Islamic Foundation, Rabita
Trust, and BIF. These Plaintiffs request discovery
as to the instrumentality status of these
charities. The request is denied at this time
and may be more appropriate when the Court
considers each of the charities’ motions to
dismiss.
In response, the Kingdom argues that
Plaintiffs ignore Osama bin Laden’s public
targeting of the Kingdom. See, e.g., Bierstein
Aff. in Opp. to Prince Sultan’s Motion
to Dismiss, Ex. 3 & 4; The 9/11 Commission
Report: Final Report of the National
Commission on Terrorist Attacks Upon
the United States, 48, 373 (July 2004)
(hereinafter ‘‘9/11 Report ’’). The Kingdom
also submits it has worked with the
United States to share information in the
fight against terrorism. 9/11 Report, at
115–22; Prince Turki Decl. ¶¶ 7, 8, 10.
The U.S. State Department has not designated
the Kingdom a state sponsor of terrorism.
Additionally, the presidentiallyappointed
September 11 commission found
no evidence of the Kingdom’s funding or
support for the September 11 terrorists.
9/11 Report, at 171 (‘‘[W]e have found no
evidence that the Saudi government as an
institution or senior Saudi officials individually
funded the organization.’’).
The Court finds the Plaintiffs’ allegations
cannot overcome the discretionary
function exception to the tortious acts exception.
Marchisella v. Gov’t of Japan,
2004 WL 307248, at *2 (explaining acts
performed at the planning, as opposed to
operational, level of government are protected
by immunity); Robinson, 269 F.3d
at 146 (noting conclusory nature of allega-
31. Rather than pleading specific facts showing
that the Kingdom caused Plaintiffs’ injuries,
the Federal Plaintiffs focus predominantly
on the charities’ actions. For example,
these Plaintiffs argue that the Kingdom has
waived the defense of sovereign immunity because
certain charities, which have not been
designated as instrumentalities of the Kingdom
and which are represented by separate
counsel, did not raise the FSIA defense in
their motions to dismiss. The Court is not
convinced by this argument because the waiver
of FSIA immunity must be explicit. See
Banco de Seguros del Estado v. Mutual Marine
Office, Inc., 344 F.3d 255, 261 (2d Cir.2003).
804 349 FEDERAL SUPPLEMENT, 2d SERIES
tions would not sustain jurisdiction). Saudi
Arabia’s treatment of and decisions to
support Islamic charities are purely planning
level ‘‘decisions grounded in social,
economic, and political policy.’’ Varig Airlines,
467 U.S. at 814, 104 S.Ct. 2755; see
also Kline, 685 F.Supp. at 392. The Federal
Plaintiffs have not met their burden of
demonstrating an exception to the FSIA
applies to negate the Kingdom’s immunity.
‘‘[S]overeign immunity under the FSIA is
immunity from suit, not just from liability.’’
Moran v. Kingdom of Saudi Arabia,
27 F.3d 169, 172 (5th Cir.1994). Because
there were no factual disputes raised in
the Court’s resolution of this motion, no
jurisdictional discovery is necessary. See
Filetech S.A. v. France Telecom S.A., 304
F.3d 180, 183 (2d Cir.2002). The Kingdom
of Saudi Arabia’s motion to dismiss the
Federal complaint for lack of subject matter
jurisdiction is granted.
II. Personal Jurisdiction
[33–36] To avoid dismissal for lack of
personal jurisdiction under Rule 12(b)(2),
Plaintiffs must establish personal jurisdiction
over each Defendant. Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir.1999). Because
these motions are brought before discovery
and decided without an evidentiary
hearing, Plaintiffs need only make a prima
facie showing that personal jurisdiction exists.
PDK Labs, Inc. v. Friedlander, 103
F.3d 1105, 1108 (2d Cir.1997); A.I. Trade
Finance, Inc. v. Petra Bank, 989 F.2d 76,
79 (2d Cir.1993). Plaintiffs may rely entirely
on factual allegations, Jazini v. Nissan
Motor Co., 148 F.3d 181, 184 (2d Cir.
1998), and they will prevail even if Defendants
make contrary arguments, A.I
Trade, 989 F.2d at 79. In resolving the
motions, the Court will read the complaints
and affidavits in a light most favorable
to Plaintiffs. PDK Labs, 103 F.3d at
1108. It will not, however, accept legally
conclusory assertions or draw ‘‘argumentative
inferences.’’ Mende v. Milestone
Tech., Inc., 269 F.Supp.2d 246, 251
(S.D.N.Y.2003) (citing Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 507
(2d Cir.1994)).
A. Bases for Personal Jurisdiction
1. New York Long–Arm Statute
[37] ‘‘In a federal question case where
a defendant resides outside the forum
state, a federal court applies the forum
state’s personal jurisdiction rules if the
federal statute does not specifically provide
for national service of process.’’ PDK
Labs, 103 F.3d at 1108. Similarly, a federal
court sitting in diversity exercises personal
jurisdiction over a foreign defendant
to the same extent as courts of general
jurisdiction of the state in which it sits
pursuant to Federal Rule of Civil Procedure
4(k)(1)(A). Bank Brussels Lambert
v. Fiddler Gonzalez & Rodriguez, 305 F.3d
120, 124 (2d Cir.2002). In such cases,
courts must determine if New York law
would confer jurisdiction through its longarm
statute, and then decide if the exercise
of such jurisdiction comports with the
requisites of due process under the Fourteenth
Amendment. Id. (citing Bank
Brussels, 171 F.3d at 784); Bensusan
Rest. Corp. v. King, 126 F.3d 25, 27 (2d
Cir.1997).
a. Conspiracy Theory
Plaintiffs claim that New York’s longarm
statute provides a basis for personal
jurisdiction. Rule 302(a)(2) of New York’s
Civil Practice Law & Rules states in part:
‘‘(a) As to a cause of action arising from
any of the acts enumerated in this section,
a court may exercise personal jurisdiction
over any non-domiciliary, or his executor
or administrator, who in person or through
an agent TTT (2) commits a tortious act
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805
within the state TTTT’’ N.Y. C.P.L.R.
§ 302(a)(2) (McKinney 2002). Courts have
defined ‘‘agent’’ to include a defendant’s
co-conspirators ‘‘under certain circumstances.’’
Chrysler Capital Corp. v. Century
Power Corp., 778 F.Supp. 1260, 1266
(S.D.N.Y.1991) (citing Lehigh Valley Indus.,
Inc. v. Birenbaum, 389 F.Supp. 798,
806–07 (S.D.N.Y.1975), aff’d, 527 F.2d 87
(2d Cir.1975)). Thus, ‘‘acts committed in
New York by the co-conspirator of an outof-state
defendant pursuant to a conspiracy
may subject the out-of-state defendant
to jurisdiction under C.P.L.R. 302(a)(2).’’
Chrysler Capital Corp. 778 F.Supp. at
1266.
[38–40] Plaintiffs are not required to
establish the existence of a ‘‘formal agency
relationship’’ between the Defendants and
their putative co-conspirators. Daventree
Ltd. v. Republic of Azerbaijan, 349
F.Supp.2d 736, at 759, 2004 WL 2997881,
at *18 (S.D.N.Y.2004). Yet, ‘‘the bland
assertion of conspiracy TTT is insufficient
to establish jurisdiction for the purposes of
section 302(a)(2).’’ Lehigh Valley Indus.
Inc., 527 F.2d at 93–94; Lamarr v. Klein,
35 A.D.2d 248, 315 N.Y.S.2d 695, 697–98
(1st Dep’t 1970) (holding that conclusory
statements about defendant’s role in conspiracy
were insufficient to establish jurisdiction
under the co-conspirator doctrine).
To establish personal jurisdiction on a conspiracy
theory, Plaintiffs must make a prima
facie showing of conspiracy, allege specific
facts warranting the inference that
the defendant was a member of the conspiracy,
and show that the defendant’s coconspirator
committed a tort in New York.
Chrysler Capital Corp., 778 F.Supp. at
1266 (citing Singer v. Bell, 585 F.Supp.
300, 302 (S.D.N.Y.1984)).
[41] ‘‘To plead a valid cause of action
for conspiracy under New York law, a
plaintiff must allege the primary tort and
four elements: ‘(a) a corrupt agreement
between two or more persons, (b) an overt
act in furtherance of the agreement, (c) the
parties’ intentional participation in the furtherance
of a plan or purpose, and (d) the
resulting damage or injury.’ ’’ Chrysler
Capital Corp. 778 F.Supp. at 1267 (quoting
Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d
Cir.1986)). To warrant the inference that
a defendant was a member of the conspiracy,
Plaintiffs must show that ‘‘(a) the defendant
had an awareness of the effects in
New York of its activity; (b) the activity of
the co-conspirators in New York was to
the benefit of the out-of-state conspirators;
and (c) the co-conspirators acting in New
York acted ‘at the direction or under the
control’ or ‘at the request of or on behalf
of’ the out-of-state defendant.’’ Chrysler
Capital Corp., 778 F.Supp. at 1268–69
(quoting Dixon v. Mack, 507 F.Supp. 345,
350 (S.D.N.Y.1980)).
‘‘Whether an alleged conspiracy TTT existed
is ‘a mixed question of law and
fact.’ ’’ Daventree, 349 F.Supp.2d 736, at
760, 2004 WL 2997881, at *19 (quoting
Mario Valente Collezioni Ltd. v. Confezioni
Semeraro Paolo, S.R.L., 264 F.3d 32,
36 (2d Cir.2001)). Accordingly, the Court
cannot accept ‘‘conclusory assertions on
those issues; instead it must resolve such
questions based upon an independent examination
of the factual allegations while
mindful of its duty to draw all factual
inferences in plaintiffs’ favor.’’ Id. (rejecting
conspiracy theory of personal jurisdiction
without permitting jurisdictional discovery).
[42] Plaintiffs claim that all Defendants
in these actions conspired with the al
Qaeda terrorists to perpetrate the attacks
of September 11. See, e.g., Ashton Complaint
¶ 296; Federal Complaint ¶¶ 66, 72–
74. Without supporting factual allegations,
such a statement is insufficient to
establish an agency relationship. Lehigh
Valley Indus. Inc., 527 F.2d at 93–94; Daventree,
349 F.Supp.2d 736 at 762–63, 2004
806 349 FEDERAL SUPPLEMENT, 2d SERIES
WL 2997881, at *22 (citing First Capital
Asset Mgmt. v. Brickellbush, Inc. 218
F.Supp.2d 369, 395 (S.D.N.Y.2002)). As
will be highlighted below, the complaints
do not allege any specific facts from which
the Court could infer that Prince Sultan,
Prince Turki, Mohammed Abdullah Aljomaih,
Sheikh Hamad Al–Husani, or Abdulrahman
bin Mahfouz directed, controlled,
or requested al Qaeda to undertake its
terrorist activities. Nor are there any
specific allegations of their knowledge of,
or consent to those activities. See Daventree,
349 F.Supp.2d 736 at 762–63, 2004
WL 2997881, at *22 (finding no personal
jurisdiction under a conspiracy theory because
there was no basis from which the
court could impute to defendants the conduct
of their putative co-conspirators);
Chrysler Capital Corp., 778 F.Supp. at
1266 (requiring specific facts warranting
the inference that the defendant was a
member of the conspiracy). Accordingly,
for Prince Sultan, Prince Turki, Mohammed
Abdullah Aljomaih, Sheik Hamad
Al–Husani, and Abdulrahman bin Mahfouz,
personal jurisdiction cannot be based
on a New York long-arm conspiracy theory.
The Court will examine the possibility
of exercising conspiracy theory personal
jurisdiction over the remaining moving Defendants
when it examines the specific
claims against each of them below.
32. Although the Court does not have subject
matter jurisdiction over any of the moving
Defendants pursuant to the FSIA, that statute
also provides for personal jurisdiction if service
is proper and subject matter jurisdiction
has been established. 28 U.S.C. § 1330(b)
(‘‘[P]ersonal jurisdiction over a foreign defendant
shall exist as to every claim for relief of
which the district courts have jurisdiction TTT
where service has been made under section
1608 of this title.’’); Rein v. Socialist People’s
Libyan Arab Jamahiriya, 995 F.Supp. 325,
329–330 (E.D.N.Y.1998).
33. The Federal Plaintiffs pursue claims under
RICO, which some courts outside the Second
2. Federal Rule of Civil Procedure
4(k)
Under Federal Rule of Civil Procedure
4(k)(1)(D), service of process will establish
personal jurisdiction over a defendant
when so authorized by a federal statute. 32
Here, the ATA contains a nationwide service
of process provision, such that proper
service will confer personal jurisdiction. 33
18 U.S.C. § 2334(a) (providing for nationwide
service of process and venue); Burnett
I, 274 F.Supp.2d at 95–96. Courts
asked to analyze personal jurisdiction under
the ATA’s national service of process
provision have concluded that a plaintiff
‘‘must demonstrate that the defendant has
sufficient minimum contacts to satisfy a
traditional due process analysis.’’ Estates
of Ungar v. Palestinian Auth., 153
F.Supp.2d 76, 95 (D.R.I.2001); see also
Biton v. Palestinian Interim Self–Gov’t
Auth., 310 F.Supp.2d 172, 179 (D.D.C.
2004) (dismissing complaint pursuant to 18
U.S.C. § 2333 because individual defendants
lacked contacts with the United
States). ‘‘The relevant inquiry under such
circumstances is whether the defendant
has minimum contacts with the United
States as a whole [to satisfy Fifth Amendment
due process requirements], rather
than TTT with the particular state in which
the federal court sits.’’ Ungar, 153
F.Supp.2d at 87. Many of the moving
Circuit have held also provides for nationwide
service of process and jurisdiction. See 18
U.S.C. § 1965; Republic of Panama v. BCCI
Holdings (Luxembourg) S.A., 119 F.3d 935,
942 (11th Cir.1997) (finding 18 U.S.C.
§ 1965(d) provides for nationwide jurisdiction);
cf. PT United Can Co. Ltd. v. Crown
Cork & Seal Co., Inc., 138 F.3d 65, 71 (2d
Cir.1998) (finding ‘‘ § 1965 does not provide
for nationwide personal jurisdiction over every
defendant in every civil RICO case, no
matter where the defendant is found’’). The
Federal Plaintiffs do not use their RICO
claims as a basis for personal jurisdiction and
the Court focuses on the ATA.
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807
Defendants either dispute the manner in
which they were served or were not served
in the United States. Accordingly, the
Court must consider an alternative basis
for personal jurisdiction.
[43] If the New York long-arm statute
or the ATA does not establish personal
jurisdiction, the Court will engage in a
Rule 4(k)(2) analysis. Rule 4(k)(2) states:
If the exercise of jurisdiction is consistent
with the Constitution and laws of
the United States, serving a summons or
filing a waiver of service is also effective,
with respect to claims arising under federal
law, to establish personal jurisdiction
over the person of any defendant
who is not subject to the jurisdiction of
the courts of general jurisdiction of any
state.
Fed.R.Civ.P. 4(k)(2). Rule 4(k)(2) ‘‘fill[s] a
gap in the enforcement of federal law’’ for
courts to exercise personal jurisdiction
over defendants with sufficient contacts
with the United States generally, but insufficient
contacts with any one state in
particular. Fed.R.Civ.P. 4(k)(2) advisory
committee’s note; United States v. Int’l
Bhd. of Teamsters, 945 F.Supp. 609, 616–
17 (S.D.N.Y.1996). For jurisdiction under
Rule 4(k)(2), there must be a federal claim,
personal jurisdiction must not exist over
the defendant in New York or any other
state, and the defendant must have sufficient
contacts with the United States as a
whole such that the exercise of jurisdiction
does not violate Fifth Amendment due process.
Int’l Bhd. of Teamsters, 945 F.Supp.
at 617.
a. Purposefully Directed Activities
Theory
Personal jurisdiction based on Rule 4(k)
requires minimum contacts with the United
States to satisfy Fifth Amendment due
process requirements. Plaintiffs claim
these requirements are met because Defendants
purposefully directed their activities
at the United States. Burger King v.
Rudzewicz, 471 U.S. 462, 472, 479, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985) (explaining
jurisdiction is appropriate if defendant
‘‘purposefully directed his activities at residents
of the forum and the litigation results
from alleged injuries that arise out of
or relate to those activities’’ and finding
minimum contacts existed since dispute
arose from a contract with substantial contacts
with the forum) (internal quotations
and citations omitted); Calder v. Jones,
465 U.S. 783, 789, 104 S.Ct. 1482, 79
L.Ed.2d 804 (1984) (finding personal jurisdiction
appropriate over non-resident defendants
who ‘‘expressly aimed’’ intentionally
tortious conduct at residents of forum
state, even where defendants were never
physically present in forum); see also Daventree,
349 F.Supp.2d 736 at 762–63, 2004
WL 2997881, at *22 (finding exercise of
personal jurisdiction under Rule 4(k)(2) is
appropriate if defendants ‘‘purposefully directed
their activities at residents of the
forum, and the litigation results from alleged
injuries that arise out of or related
to those activities’’). Pursuant to the holdings
in Burger King, Calder, and three
recent terrorism cases—Rein v. Socialist
People’s Libyan Arab Jamahiriya, 995
F.Supp. 325 (E.D.N.Y.1998), Daliberti v.
Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.
2000), and Pugh v. Socialist People’s Libyan
Arab Jamahiriya, 290 F.Supp.2d 54
(D.D.C.2003)—Plaintiffs submit that the
moving Defendants knew that the primary
target of Osama bin Laden’s and al Qaeda’s
campaign of terror was the United
States and that by providing assistance to
these terrorists, who Plaintiffs claim were
Defendants’ co-conspirators, Defendants
aimed their conduct at the United States.
In Rein, the court denied defendants’
motions to dismiss for lack of subject matter
and personal jurisdiction in a case aris-
808 349 FEDERAL SUPPLEMENT, 2d SERIES
ing from the bombing of Pan Am Flight
103 over Lockerbie, Scotland. The court
found it had subject matter jurisdiction
over defendant Libya, a designated state
sponsor of terror, pursuant to § 1605(a)(7)
of the FSIA. Rein, 995 F.Supp. at 329–30.
Noting that the FSIA provides for personal
jurisdiction as long as subject matter
jurisdiction exists and proper service was
effected, the court turned to Libya’s contacts
with the United States. Id. at 330
(citing Burger King, 471 U.S. at 472, 105
S.Ct. 2174). It found that Libya’s contacts
with the United States were sufficient because
its allegedly ‘‘intentional, tortious actions
[were] TTT ‘expressly aimed at’ the
United States,’’ and included ‘‘destruction
of a United States flag aircraft TTT while
en route to the United States TTT with 189
United States nationals on board.’’ Id.
(citing Calder, 465 U.S. at 789, 104 S.Ct.
1482). The court concluded that its exercise
of personal jurisdiction was appropriate
since ‘‘[a]ny foreign state would know
that the United States has substantial interests
in protecting its flag carriers and
its nationals from terrorist activities and
should reasonably expect that if these interests
were harmed, it would be subject
to a variety of potential responses, including
civil actions in the United States.’’ Id.
Similarly, in Daliberti the court found it
had subject matter jurisdiction over defendant
Iraq, a designated state sponsor of
terror, in a case stemming from the alleged
torture of several United States citizens
who were working in Kuwait. Daliberti,
97 F.Supp.2d at 46. Iraq argued
that exercising personal jurisdiction over it
would offend constitutional due process
since the FSIA ‘‘abrogates the minimum
contacts requirement.’’ Id. at 52. The
court disagreed and explained that ‘‘Congress
expressly addressed the minimum
contacts requirement in enacting the FSIA
by providing that ‘[p]ersonal jurisdiction
over a foreign state shall exist as to every
claim for relief over which the district
courts have jurisdiction.’ ’’ Id. (citing 28
U.S.C. § 1330(b); Shapiro v. Republic of
Bolivia, 930 F.2d 1013, 1020 (2d Cir.1991)).
The court acknowledged that the foreign
state’s contacts with the United States
might be more attenuated in the context of
the state sponsor of terrorism exception
than in the FSIA’s other exceptions, but
concluded ‘‘in the context of this statute,
the purpose for which it was enacted, and
the nature of the activity toward which it
is directed, TTT it is reasonable that foreign
states be held accountable in the
courts of the United States for terrorist
actions perpetrated against U.S. citizens
anywhere.’’ Id. at 54. Finally, it noted
that the ‘‘detention of these three plaintiffs
had a direct effect in the United States
and was consciously designed to affect
United States policy TTT Iraq cannot now
claim surprise at the assertion of jurisdiction
by this Court.’’ Id.
Most recently, in Pugh, representatives
of passengers killed in the bombing of a
French airliner in Africa survived a motion
to dismiss by the individual defendants.
The court found it had subject matter jurisdiction
over seven Libyan officials, including
Muammar Qadhafi, pursuant to
the state sponsor of terrorism exception of
the FSIA outlined in § 1605(a)(7). Pugh,
290 F.Supp.2d at 58. In its personal jurisdiction
analysis, the court concluded that
the individuals had sufficient contacts with
the United States to satisfy due process
since they had ‘‘conspired to sabotage’’ a
flight, which was scheduled to ‘‘stop in
several nations,’’ thus making it foreseeable
that ‘‘passengers of many nationalities
would be on board.’’ Id. at 59. From
their actions, the defendants could have
expected to be haled into ‘‘the courts of
those nations whose citizens would die.’’
Id. Given the number of passengers on the
plane, it was also foreseeable that Ameri-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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809
cans would be on board. Id. Finally, the
court reasoned that the ‘‘interest of the
United States in preventing and punishing
international terrorism has been a matter
of worldwide common knowledge for
years.’’ Id. (citing statutes criminalizing
terrorist acts). ‘‘It logically follows that if
federal courts may constitutionally exercise
criminal jurisdiction over such individuals,
the Constitution should be no bar to
those same federal courts, in a civil action
TTT exercising civil in personam jurisdiction
over those same individuals for the
same acts.’’ Id.
[44] The courts in Rein, Daliberti, and
Pugh properly exercised personal jurisdiction
over each of the defendants in those
cases pursuant to the FSIA, which specifically
provides that personal jurisdiction exists
where proper service and subject matter
jurisdiction have been established. 28
U.S.C. § 1330(b); Rein, 995 F.Supp. at
329–30; Daliberti, 97 F.Supp.2d at 52;
Pugh, 290 F.Supp.2d at 58. While the
FSIA is not the basis for personal jurisdiction
here, jurisdiction based on the ATA or
Rule 4(k)(2) also requires minimum contacts
with the United States. Accordingly,
Plaintiffs may rely on their ‘‘purposefully
directed’’ theory to establish these minimum
contacts. But as existed in Burger
King, Calder, and the three terrorism
cases, Plaintiffs must allege some personal
or direct involvement by the Defendants in
the conduct giving rise to their claims.
See, e.g., Daliberti, 97 F.Supp.2d at 41
(explaining that defendant Iraq had held
and tortured plaintiffs and that three of
four plaintiffs were released only after
U.S. officials’ explicit negotiations with
their Iraqi counterparts); Pugh, 290
F.Supp.2d at 56 (noting that seven individual
Libyan defendants were sued in the
United States after extensive official
French investigation and that these defendants
were deemed to be responsible for
the bombings in both civil and criminal
proceedings); see also In re Magnetic Audiotape,
334 F.3d at 208 (2d (stating a
‘‘court may exercise personal jurisdiction
over defendant consistent with due process
when defendant is primary participant in
intentional wrongdoing—albeit extraterritorially—expressly
directed at forum’’)
(citing Calder v. Jones, 465 U.S. at 789–90,
104 S.Ct. 1482)); Time, Inc. v. Simpson,
No. 02 Civ. 4917(MBM), 2003 WL
23018890, at *5 (S.D.N.Y. Dec. 22, 2003)
(finding Calder turned on ‘‘personal involvement
of the individual defendants in
the particular conduct that gave rise to the
plaintiff’s claim’’ and granting motion to
dismiss because plaintiff had not demonstrated
that defendant had had any personal
involvement in the events giving rise
to the lawsuit). Accordingly, regardless of
whether personal jurisdiction is based on
the ATA’s nationwide service of process
provision or Rule 4(k)(2), to satisfy the
Fifth Amendment’s due process requirements,
Plaintiffs must make a prima facie
showing of each Defendant’s personal or
direct participation in the conduct giving
rise to Plaintiffs’ injuries.
3. Mass Torts Theory
[45] In addition to the arguments articulated
above, the Federal Plaintiffs submit
that the Court should utilize a modified
due process standard appropriate for
mass torts. See, e.g., Federal Prince Turki
Opp. at 23; Federal Prince Mohammed
Opp. at 12; SAAR Network Opp. at 12–13.
Courts in the Eastern District of New
York have outlined the modified standard
in products liability cases as follows: the
state’s interests in the litigation replace
contacts with the forum as the constitutional
touchstone and the ‘‘reasonableness’’
inquiry is replaced with a hardship analysis.
Simon v. Philip Morris, 86 F.Supp.2d
95, 129 (E.D.N.Y.2000); In re DES Cases,
789 F.Supp. 552, 587 (E.D.N.Y.1992). The
810 349 FEDERAL SUPPLEMENT, 2d SERIES
Court declines to adopt this standard.
There was no question that, at a minimum,
the defendants in these products liability
actions had substantial contacts with the
forum, in these cases being New York, and
were involved in the sale or production of
the products at issue. In re DES Cases,
789 F.Supp. at 559; Simon, 86 F.Supp.2d
at 99–100. Here, however, there are questions
as to the Defendants’ contacts with
the forum, whether it be the United States
generally or New York specifically, and
the Defendants’ alleged involvement with
al Qaeda is much more attenuated.
B. Due Process Requirements
[46–49] Any exercise of personal jurisdiction
must comport with the requirements
of due process. ‘‘The due process
test for personal jurisdiction has two related
components: the ‘minimum contacts’
inquiry and the ‘reasonableness’ inquiry.’’
Metro. Life Ins. Co. v. Robertson–Ceco
Corp., 84 F.3d 560, 567 (2d Cir.1996). Depending
on the basis for personal jurisdiction,
due process under either the Fifth or
Fourteenth Amendment applies. ‘‘[T]he
due process analysis is basically the same
under both the Fifth and Fourteenth
Amendments. The principal difference is
that under the Fifth Amendment the court
can consider the defendant’s contacts
throughout the United States, while under
the Fourteenth Amendment only the contacts
with the forum state may be considered.’’
Chew v. Dietrich, 143 F.3d 24, 28
n. 4 (2d Cir.1998). Here, personal jurisdiction
under the New York long-arm statute
requires minimum contacts with New York
pursuant to the Fourteenth Amendment.
The exercise of personal jurisdiction under
Rule 4(k) requires contacts with the United
States as a whole pursuant to the Fifth
Amendment.
1. Minimum Contacts
[50, 51] Minimum contacts are required
so ‘‘that the maintenance of the suit
does not offend traditional notions of fair
play and substantial justice.’’ Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 90 L.Ed. 95 (1945); see also
World–Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292, 100 S.Ct. 559, 62
L.Ed.2d 490 (1980). The minimum contacts
requirement is also known as ‘‘fair
warning,’’ such that the defendant’s contacts
with the forum should be sufficient
to make it reasonable to be haled into
court there. Burger King, 471 U.S. at
474, 105 S.Ct. 2174. The ‘‘ ‘fair warning’
requirement is satisfied if the defendant
has ‘purposefully directed’ his activities at
the residents of the forum TTT and the
litigation results from alleged injuries that
‘arise out of or relate to’ those activities.’’
Id. (internal citations omitted); see also
World–Wide Volkswagen, 444 U.S. at 297–
98, 100 S.Ct. 559 (finding purposefully directed
activities where defendant delivered
products into stream of commerce with expectation
they would be purchased by residents
of forum); Calder, 465 U.S. at 789–
90, 104 S.Ct. 1482 (finding publishing activities
outside of forum were calculated to
cause injury to plaintiff in forum where
she lived and which also had the highest
subscription rate). ‘‘Although it has been
argued that foreseeability of causing injury
in another State should be sufficient to
establish such contacts there when policy
considerations so require, the Court has
consistently held that this kind of foreseeability
is not a ‘sufficient benchmark’ for
exercising personal jurisdiction.’’ Burger
King, 471 U.S. at 474, 105 S.Ct. 2174
(quoting World–Wide Volkswagen, 444
U.S. at 295, 100 S.Ct. 559). In every case,
there must be ‘‘some act by which the
defendant purposefully avails itself of the
privilege of conducting activities within the
forum State, thus invoking the benefits
and protections of its laws.’’ Id. (quoting
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811
Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).
[52] For purposes of the minimum contacts
inquiry, a distinction is made between
specific and general jurisdiction.
Specific jurisdiction exists when the forum
exercises jurisdiction over the defendant in
a suit arising out of the defendant’s contacts
with that forum. Metro. Life Ins. 84
F.3d at 567–68. General jurisdiction is
based on the defendant’s general business
contacts with the forum; because the defendant’s
contacts are not related to the
suit, a considerably higher level of contacts
is generally required. 34 Id. at 568.
2. Reasonableness
[53] In determining whether the exercise
of personal jurisdiction is reasonable,
a court is to consider:
(1) the burden that the exercise of jurisdiction
will impose on the defendant; (2)
the interests in the forum state in adjudicating
the case; (3) the plaintiff’s interest
in obtaining convenient and effective
relief; (4) the interstate judicial
system’s interest in obtaining the most
efficient resolution of the controversy;
and (5) the shared interest of the states
in furthering substantive social policies.
Metro. Life, 84 F.3d at 568 (citing Asahi
Metal Indus. Co. v. Superior Court, 480
U.S. 102, 113–16, 107 S.Ct. 1026, 94
L.Ed.2d 92 (1987)). ‘‘These considerations
sometimes serve to establish the reasonableness
of jurisdiction upon a lesser showing
of minimum contacts than would otherwise
be required.’’ Burger King, 471 U.S.
at 477, 105 S.Ct. 2174.
[54] There obviously are competing
policy considerations at play here. In general,
‘‘ ‘great care and reserve should be
exercised when extending our notions of
personal jurisdiction into the international
field.’ ’’ Asahi Metal Indus., 480 U.S. at
115, 107 S.Ct. 1026 (quoting United States
v. First Nat’l City Bank, 379 U.S. 378, 404,
85 S.Ct. 528, 13 L.Ed.2d 365 (1965) (Harlan,
J., dissenting)). ‘‘[T]he unique burdens
placed upon one who must defend
oneself in a foreign legal system should
have significant weight in assessing the
reasonableness of stretching the long arm
of personal jurisdiction over national borders.’’
Id. at 114, 107 S.Ct. 1026. On the
other hand, ‘‘[t]here is some merit TTT to
the plaintiffs’ argument that no foreign
terrorist today can fairly assert a lack of
‘fair warning’ that it could be ‘haled into
court’ in [this forum.]’’ Biton v. Palestinian
Interim Self–Government, 310
F.Supp.2d 172, 178 (D.D.C.2004).
C. Jurisdictional Discovery
[55, 56] Plaintiffs urge the Court to
deny Defendants’ motions and order jurisdictional
discovery. In evaluating jurisdictional
motions, district courts enjoy broad
discretion in deciding whether to order
discovery. See, e.g., APWU v. Potter, 343
F.3d 619, 627 (2d Cir.2003) (noting a court
may ‘‘devis[e] the procedures [to] ferret
out the facts pertinent to jurisdiction’’);
Marine Midland Bank, N.A. v. Miller, 664
F.2d 899, 904 (2d Cir.1981) (noting a court
has considerable procedural leeway in deciding
whether discovery would assist resolution
of motion to dismiss for lack of
personal jurisdiction); Lehigh Valley Indus.
v. Birenbaum, 527 F.2d 87, 93–94 (2d
Cir.1975) (finding no abuse of discretion in
denying discovery where the complaint
failed to plead sufficient facts to establish
34. At oral argument, Plaintiffs focused on
specific jurisdiction, see Oct. 12, 2004 Transcript
at 44, but Plaintiffs include general
jurisdiction arguments in many of their opposition
briefs, see, e.g., Ashton Opp. to Prince
Mohamed at 22–24; Burnett Opp. to Aljomaih
at 11. The Court considers all arguments.
812 349 FEDERAL SUPPLEMENT, 2d SERIES
jurisdiction). ‘‘If a plaintiff has identified
a genuine issue of jurisdictional fact, jurisdictional
discovery is appropriate even in
the absence of a prima facie showing as to
the existence of jurisdiction.’’ Daventree,
349 F.Supp.2d 736 at 761, 2004 WL
2997881, at *20 (citing In re Magnetic
Audiotape, 334 F.3d at 207–08). Courts
are not obligated to subject a foreign defendant
to discovery, however, where the
allegations of jurisdictional facts, construed
in plaintiffs’ favor, fail to state a
basis for the exercise of jurisdiction or
where discovery would not uncover sufficient
facts to sustain jurisdiction. Id. (citing
Jazini, 148 F.3d at 183–85 (granting
motion to dismiss and denying jurisdictional
discovery where complaint was described
as ‘‘sparse’’ and ‘‘conclusory’’)); see
also Cornell v. Assicurazioni Generali
S.p.A., Consolidated, Nos. 97 Civ. 2262, 98
Civ. 9186(MBM), 2000 WL 284222, at *2
(S.D.N.Y. Mar. 16, 2000) (granting motion
to dismiss and denying request for jurisdictional
discovery where the complaint
stated, without any supporting facts, that
the defendant ‘‘participates in a ‘multinational
insurance arrangement’ present in
the State of New York’’); In re Ski Train
Fire in Kaprun, Austria, 230 F.Supp.2d at
410–413 (granting motion to dismiss and
denying jurisdictional discovery where
complaint only contained conclusory allegations).
D. Application of Plaintiffs’ Theories
to Moving Defendants
1. Prince Sultan
The Court outlined the allegations
against Prince Sultan in Part I.B.1. With
respect to Prince Sultan’s contacts with
the United States, Plaintiffs allege that
‘‘Saudi Royal family members own substantial
assets in the United States of
America, and do substantial business in
the United States of America, the profits
of which in part, are used to fund international
terrorist acts, including those which
led to the murderous attacks of September
11, 2001.’’ See Ashton Complaint ¶ 296.
There is no indication of whether these
unspecified members of the Royal family
include Prince Sultan. Most Plaintiffs also
claim Prince Sultan is the ex-officio Chairman
of the Board of Saudi Arabia Airlines,
‘‘which does business in the United States
and internationally.’’ Burnett Complaint
¶ 340; Ashton Complaint ¶ 253; Barrera
Complaint ¶ 255; Salvo Complaint ¶ 245;
Tremsky Complaint ¶ 180. The Federal
Plaintiffs do not make a similar allegation.
[57] To the extent these allegations are
an attempt to establish general jurisdiction
over Prince Sultan, they are insufficient.
See In re Baan Co. Sec. Litig., 245
F.Supp.2d 117, 130 (D.D.C.2003) (refusing
to hold that control status in foreign corporation
with United States office is sufficient
for personal jurisdiction over individual);
Cornell, 2000 WL 284222, at *2
(granting motion to dismiss where complaint
contained one conclusory statement
regarding jurisdiction); Family Internet,
Inc. v. Cybernex, Inc., No. 98 Civ.
0637(RWS), 1999 WL 796177, at *4
(S.D.N.Y. Oct. 6, 1999) (holding that personal
jurisdiction must be individually established
over corporate officers even
when the court has personal jurisdiction
over the corporation itself).
[58] Proceeding under the purposefully
directed activities theory of personal jurisdiction,
Plaintiffs argue that Prince Sultan
knew or should have known the organizations
to which he donated were funneling
money to al Qaeda and that al Qaeda’s
primary target was the United States.
Consol. Plaintiffs’ Opp. at 23. Prince Sultan
argues that his alleged actions cannot
satisfy the minimum contacts requirement
since the Second Circuit’s recent description
of Calder requires ‘‘primary participa[tion]
in intentional wrongdoing.’’ See
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
813
In re Magnetic Audiotape, 334 F.3d at
208.
Judge Robertson dismissed without
prejudice the claims against Prince Sultan
in his personal capacity for lack of personal
jurisdiction. Burnett II, 292 F.Supp.2d
at 21–22. He rejected Plaintiffs’ argument
that Prince Sultan had purposefully directed
his alleged activities at the United
States. Id. at 22–23. Judge Robertson
found that the complaint’s claims that
Prince Sultan donated money to foundations
that allegedly funded al Qaeda
‘‘stop[ ] well short of alleging Prince Sultan’s
actions were ‘expressly aimed’ or
‘purposefully directed’ at the United
States.’’ Id. at 23 (citing Burger King and
Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 774–75, 104 S.Ct. 1473, 79 L.Ed.2d 790
(1984)). Judge Robertson also denied
Plaintiffs’ request for discovery because
they did not provide an ‘‘outline of how
their showing of minimum contacts might
be enhanced by jurisdictional discovery.’’
Id. at 22.
This Court’s record, which Plaintiffs
claim is more extensive than that before
Judge Robertson, contains many examples
of Osama bin Laden’s and al Qaeda’s public
targeting of the United States. See
Bierstein Aff. in Opp. to Prince Sultan’s
Motion to Dismiss, Exs. 1–24. The complaints
also contain conclusory allegations
that Prince Sultan aided and abetted terrorism.
See, e.g., Burnett Complaint
¶ 363; Federal Complaint ¶¶ 429–31. But
Plaintiffs do not offer any facts to lend
support to their allegation that Prince Sultan
purposefully directed his activities at
this forum by donating to charities that he
knew at the time supported international
terrorism. See Exec. Order 13244 (designating
certain branches of Al Haramain in
2002 and later). ‘‘[L]egal conclusions done
up as factual allegations are not facts and
cannot substitute for facts.’’ Cornell, 2000
WL 284222, at *2 (citing Papasan v. Allain,
478 U.S. 265, 286, 106 S.Ct. 2932, 92
L.Ed.2d 209 (1986)). Plaintiffs have note
provided an ‘‘outline of how their showing
of minimum contacts might be enhanced
by jurisdictional discovery.’’ Burnett II
292 F.Supp.2d at 22. Accordingly, Prince
Sultan’s motions to dismiss the certain
consolidated and Federal complaints for
lack of personal jurisdiction over the
claims concerning his personal acts are
granted. Plaintiffs’ request for jurisdictional
discovery with respect to Prince Sultan
is denied. Daventree, 349 F.Supp.2d
736, at 761, 2004 WL 2997881, at *20 (finding
jurisdictional discovery is not necessary
where the allegation of jurisdictional
facts fails to state a basis for the exercise
of personal jurisdiction).
2. Prince Turki
[59] The allegations against Prince
Turki are outlined in Part I.B.2. Because
the consolidated Plaintiffs do not allege
any acts taken by Prince Turki in his
personal capacity, the Court only considers
the Federal Plaintiffs’ claim that Prince
Turki made personal donations to certain
Saudi charities. See Federal Complaint
¶ 452. The Federal complaint does not
make any specific jurisdictional allegations
against Prince Turki. Rather, these Plaintiffs
rely on Calder, Rein, Daliberti, Pugh,
and the modified due process standard for
mass torts to argue that the September 11
attacks were a foreseeable result of Prince
Turki’s alleged support of certain Saudi
charities. See Federal Opp. to Prince
Turki’s Motion to Dismiss at 22–23.
The Federal Plaintiffs have not presented
any specific facts from which this Court
could infer Prince Turki’s primary and
personal involvement in, or support of, international
terrorism and al Qaeda. Conclusory
allegations that he donated money
to charities, without specific factual allega-
814 349 FEDERAL SUPPLEMENT, 2d SERIES
tions that he knew they were funneling
money to terrorists, do not suffice. See
Burnett II, 292 F.Supp.2d at 23 (citing
Burger King and Keeton v. Hustler Magazine,
Inc., 465 U.S. at 774–75, 104 S.Ct.
1473); see also Exec. Order 13244 (designating
certain branches of Al Haramain
and BIF in 2002). Accordingly, Prince
Turki’s motion to dismiss the Federal complaint
for lack of personal jurisdiction is
granted. Jurisdictional discovery is not
appropriate with respect to Prince Turki
because Plaintiffs have not identified any
genuine issue of jurisdictional fact. Daventree,
349 F.Supp.2d 736, at 761, 2004
WL 2997881, at *20.
3. Prince Mohamed
The Ashton and Federal Plaintiffs allege
that Prince Mohamed is or was the chairman
or chief executive officer of three
financial institutions in Saudi Arabia: Dar
al Maal al Islami (‘‘DMI’’), Islamic Investment
Company of the Gulf–Bahrain EC
(‘‘IICG’’), and Faisal Islamic Bank–Sudan
(‘‘FIBS’’), which are all shareholders of
Defendant Al Shamal Islamic Bank. 35 Ashton
Complaint ¶¶ 51, 54; Federal Complaint
¶¶ 307, 309, 473. They claim that
Prince Mohamed knew or should have
known that each of these financial institutions
‘‘acted as an aider and abettor and
material sponsor of al Qaeda, Bin Laden,
and international terrorism.’’ Ashton Complaint
¶ 276; Federal Complaint ¶ 472 (alleging
Prince Mohamed ‘‘has long provided
material support and resources to al Qaeda’’).
The Ashton Plaintiffs claim that
Prince Mohamed is ‘‘heavily involved in
the sponsorship of terror through Faisal
Islamic Bank–Sudan,’’ since at some point
al Qaeda allegedly had an account there.
Ashton Complaint ¶¶ 65, 66, 255, 274; see
also Ashton Opp. to Prince Mohamed’s
Motion to Dismiss at 25 (arguing that al
Qaeda operative Jamal Ahmed Al Fadl
used an account at Al Shamal Islamic
Bank to transfer $250,000 for Osama bin
Laden). These Plaintiffs also claim that
Prince Mohamed has financial ties with
alleged al Qaeda financier Muhammed
Zouaydi. Ashton Complaint ¶ 258. The
Federal Plaintiffs claim that Prince Mohamed
made personal contributions to Saudi-based
charities that he knew or should
have known sponsored the terrorist activities
of al Qaeda. These charities include
IIRO, MWL, WAMY, BIF, the Saudi High
Commission, SJRC, and Al Haramain.
Federal Complaint ¶¶ 475–76
The Ashton complaint contains an unspecific
allegation regarding the Saudi
Royal family’s ownership of property in
the United States. Ashton Complaint
¶ 296. The Ashton Plaintiffs argue that
general jurisdiction is appropriate because
Prince Mohamed attended college and
business school in the United States, gave
two interviews in a New York apartment
in 1978, gave a speech at Harvard in 1999,
and made investments in American businesses
through the banks he chairs in
2001. Ashton Opp. to Prince Mohamed
Motion to Dismiss at 22–23. Plaintiffs assert
jurisdictional discovery is likely to
expose further contacts between Prince
Mohamed and the United States.
If general jurisdiction is not established
through Prince Mohamed’s contacts with
the United States, the Ashton and Federal
Plaintiffs claim that jurisdiction exists under
either the New York long-arm conspiracy
theory or the purposefully directed
activities theory. Ashton Opp. to Prince
Mohamed Motion to Dismiss at 17–22;
Federal Opp. to Prince Mohamed Motion
to Dismiss at 6–12. Specifically, the Ash-
35. Osama bin Laden allegedly capitalized Al
Shamal Islamic Bank with $50 million. Burnett
Complaint ¶ 70. Several al Qaeda operatives,
including Osama bin Laden, held accounts
there. Id. ¶ 79.
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815
ton Plaintiffs bolster their arguments for
personal jurisdiction by citing to paragraphs
in the complaint in support of each
of the requirements for conspiracy. See
Chrysler Capital Corp., 778 F.Supp. at
1268–69 (outlining cause of action for conspiracy).
Plaintiffs claim that Prince Mohamed
and al Qaeda agreed to injure the United
States through acts of international terrorism.
Ashton Complaint ¶¶ 5, 23 (all defendants
are co-conspirators), 51, 105–08
(February 1993 World Trade Center
bombing), 120 (February 1998 fatwa), 130–
36 (1998 embassy bombings), 152–55
(U.S.S. Cole attack), 188, 255, 274–76, 580
(September 11, 2001 attacks); see also
Federal Complaint ¶¶ 66, 72–74 (listing defendants
who have ‘‘aided and abetted,
conspired with, and provided material support
and resources to, defendant al Qaeda
and/or affiliated FTOs, associations, organizations
or persons.’’). Next they claim
the September 11 attacks were perpetrated
in furtherance of that common scheme.
Ashton Complaint ¶¶ 23, 188, 610. According
to Plaintiffs, Prince Mohamed participated
in the conspiracy by providing
funding, financial support, and banking
services through FIBS. Id. ¶¶ 48–54, 63–
66, 255, 274–276, 387, 580, 582. Specifically,
Plaintiffs claim:
1 On October 17, 1983, Prince Mohamed
became CEO of DMI. Under Prince
Mohamed’s chairmanship, DMI developed
banking, investment and insurance
activities in approximately twenty
offices across the world. DMI was
founded in 1981 to foster the spread of
Islamic banking across the Muslim
world and its Board of Directors included
Haydar Mohamed bin Laden, a
half-brother of Osama bin Laden. Id.
¶ 274.
1 Faisal Islamic Bank Sudan was one of
the five main founders of Al Shamal
Islamic Bank TTTT Al Shamal Islamic
Bank is an instrumental bank in bin
Laden’s financial support network.
Bin Laden used Al Shamal Bank for
the funding of his al Qaeda network
leading up to the 1998 United States
embassy bombings in Africa. Defendant
Faisal Islamic Bank was implicated
during Al Fadl’s May 2001 United
States trial testimony regarding the
bombings as holding and managing
bank accounts for al Qaeda operatives.
Id. ¶¶ 274–75.
1 As the head of DMI, Prince Mohamed
knew or should have known of these
and other activities and acted as an
aider and abettor and material sponsor
of al Qaeda, bin Laden, and international
terrorism. Id. ¶ 276.
1 U.S. designated terrorists Wa‘el Julaidan
and Yassin Kadi had accounts in a
DMI subsidiary. Ashton Opp. at 25.
Finally, Plaintiffs allege the that attacks in
question caused many deaths, a fact that
no one disputes. Ashton Complaint ¶¶ 23,
610.
In response, Prince Mohamed argues
that Plaintiffs have failed to demonstrate
that he is ‘‘present’’ in the United States
for general personal jurisdiction purposes.
See Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 411–12, 416–18,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984);
Bersch v. Drexel Firestone, Inc., 519 F.2d
974, 998 (2d Cir.1975) (buying and selling
American securities is insufficient to establish
that defendant was ‘‘doing business’’ in
the United States). Prince Mohamed submits
that some of the contacts on which
Plaintiffs rely are too far removed in time
from September 2001 to be considered by
the Court. See Metro. Life, 84 F.3d at 569
(holding courts should examine a defendant’s
contacts with the forum for a reasonable
period prior to the date on which
the lawsuit was filed, and finding that six
816 349 FEDERAL SUPPLEMENT, 2d SERIES
years was reasonable). Prince Mohamed
correctly submits that his position as an
officer of DMI, IICG, and FIBS would not
be a basis for jurisdiction over him even if
the Court had personal jurisdiction over
these entities. See Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 781 n. 13,
104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)
(‘‘Each defendant’s contacts with the forum
State must be assessed individually.’’).
Finally, Prince Mohamed argues that the
conclusory allegation that he participated
in a terrorist conspiracy, without specific
facts, is insufficient to create personal jurisdiction
over him.
[60] The Court agrees that Plaintiffs
have not presented a prima facie case of
general jurisdiction over Prince Mohamed.
In the ten years before the attacks, Prince
Mohamed’s contacts with the United
States consist of one speech and a handful
of investments in the United States
through the banks with which he is affiliated.
These contacts are not sufficiently
‘‘systematic and continuous’’ to maintain
general jurisdiction over a defendant in
this action. 36 See Helicopteros, 466 U.S. at
416, 104 S.Ct. 1868 (holding that purchasing
in forum, sending personnel for training
in forum, and negotiating a contract in
forum were not sufficient to establish general
jurisdiction).
[61, 62] Plaintiffs have alleged that
DMI and FIBS might have been involved
in the financing of terrorism. See, e.g.,
Ashton Complaint ¶¶ 274–75; Ashton Opp.
at 25. Even assuming that the Court has
personal jurisdiction over these entities,
‘‘[t]he mere fact that a corporation is subject
to jurisdiction TTT does not mean that
individual officer may be hauled before
New York courts without any showing that
the individuals themselves maintained a
36. There is no allegation that Prince Mohamed’s
investments in the United States are
presence or conducted business in New
York.’’ Family Internet, 1999 WL 796177,
at *4. Plaintiffs have not alleged that
Prince Mohamed had any knowledge or
involvement in any al Qaeda accounts at
any of the banks he chaired. FIBS’ relationship
with Al Shamal Islamic Bank,
which purportedly knowingly opened accounts
for al Qaeda operatives, including
Osama bin Laden, is too remote in time
and proximity to implicate Prince Mohamed.
To make a prima facie case of
personal jurisdiction, Plaintiffs must either
allege personal acts by Prince Mohamed
by which he purposefully directed his activities
at the United States by supporting
Osama bin Laden, al Qaeda, or their terrorist
agenda, or demonstrate that the acts
of the banks he chaired can be imputed to
him. Plaintiffs have not met their burden.
Thus, Prince Mohamed’s motions to dismiss
the Ashton and Federal complaints as
against him for lack of personal jurisdiction
are granted.
4. Estate of Mohammad Abdullah
Aljomaih
On May 2, 2003 by Second Addition and
Removal of Defendants Pursuant to Case
Management Order No. 1 imposed by
Judge Robertson, the Burnett Plaintiffs
added a defendant ‘‘Mohammed Bin Abdullah
Al–Jomaith.’’ To date, no specific
allegations have been added to the complaint
with respect to Mr. Aljomaih.
In anticipation of what the claims
against him might be, before his death Mr.
Aljomaih prepared a declaration in support
of his motion to dismiss. He was born in
Saudi Arabia in 1915 and lived in Riyadh
for most of his life. Aljomaih Decl. ¶ 3. He
and his family began a company in the
1940s that now supplies automobiles, soft
drinks, construction equipment, and other
related to any alleged conspiracy or to al
Qaeda’s activities.
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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817
goods and services to large portions of
Saudi Arabia. Id. ¶ 4. In the past ten
years he visited the United States three
times for medical reasons. Id. ¶¶ 5–6.
Prior to these medical visits, he took a
short trip to New York City in 1964. Id.
¶ 7. He owned no property, held no bank
accounts, and conducted no business in
this country. Id. ¶ 10.
Mr. Aljomaih’s estate argues that there
were problems with his service. He was
served pursuant to Judge Robertson’s
March 25, 2003 approving service by publication.
Under that order, Plaintiffs published
a list of defendants in two publications,
The International Herald Tribune
and Al Quds Al Arabia. The notice in The
International Herald Tribune contained
Mr. Aljomaih’s name in English, a language
he could not read. Id. ¶ 11. Al
Quds Al Arabi is published in Arabic, but
is not circulated in Saudi Arabia and the
list did not include Mr. Aljomaih’s name.
Even if service was proper, however, the
estate of Mr. Aljomaih claims the Court
does not have personal jurisdiction over it.
Plaintiffs submit that Mr. Aljomaih is
implicated by the ‘‘Golden Chain.’’ Plaintiffs’
Opp. at 9. The ‘‘Golden Chain’’ is a
group of documents that was discovered
by Bosnian authorities searching the offices
of charity Defendant BIF in March
2002. Plaintiffs claim the ‘‘Golden Chain’’
contains a list of early direct donors to al
Qaeda. Plaintiffs’ Opp. at 9; see also Bierstein
Aff. in Opp. to Al–Husani Motion
to Dismiss, Ex. 2 (‘‘Golden Chain’’ document).
It includes the entry ‘‘Al–Jumaih.
Jeddah (S.A.).’’ Plaintiffs do not dispute
that ‘‘for more than sixty years [Mr. Aljomaih]
lived in Rihadh,’’ not Jeddah, Aljomaih
Decl. ¶ 3, yet they insist the document
identifies him as a direct donor to al
Qaeda. Additionally, Plaintiffs claim that
Mr. Aljomaih’s company donated money to
charity Defendant IIRO. Plaintiffs assert
there are sufficient allegations against Mr.
Aljomaih in the form of general allegations
against all Defendants to put him on notice
of the claims against him. They claim that
jurisdiction over Mr. Aljomaih’s estate is
proper because he ‘‘purposefully directed’’
his activities at the United States by supporting
al Qaeda. Plaintiffs also submit
that Mr. Aljomaih’s company does business
with General Motors and Shell Corporation
and that, therefore, he must have
had contacts with the United States. See
Opp. at 11; Statement of Jamie L. Paye
attached to Plaintiffs’ Opp.
[63] The Court finds the Plaintiffs
have not established a prima facie case of
jurisdiction over Mr. Aljomaih to defeat
his motion or warrant jurisdictional discovery.
Their theory of jurisdiction rests almost
entirely on a document with serious
foundational flaws. Even assuming, as the
Court must, that the ‘‘Golden Chain’’ refers
to Mr. Aljomaih, with no indication of
who wrote the list, when it was written, or
for what purpose, the Court cannot make
the logical leap that the document is a list
of early al Qaeda supporters. Mr. Aljomaih’s
motion to dismiss the Burnett complaint
for lack of personal jurisdiction is
accordingly granted.
5. Sheikh Hamad Al–Husani
The posture of the Burnett Plaintiffs’
case against Sheikh Hamad Al–Husani is
similar to that against Mr. Aljomaih. Mr.
Al–Husani was also added to a list of
defendants to be served by publication and
the complaint contains no specific allegations
against him. Al–Husani Decl. ¶ 10.
He is a watch retailer residing in Saudi
Arabia. Id. ¶¶ 3–4, 7. Mr. Al–Husani has
never visited the United States, owns no
real property here, holds no bank accounts
or investments in the United States, and
does not engage in transactions with any
businesses in the United States. Id. ¶¶ 3,
818 349 FEDERAL SUPPLEMENT, 2d SERIES
5–7. He has never supported any person
or organization that he has known to participate
in any terrorist attacks. Id. ¶ 9.
Mr. Al–Husani submits that Plaintiffs cannot
cure the lack of allegations in the
complaint in its motion papers. Wright v.
Ernst & Young, LLP, 152 F.3d 169, 178
(2d Cir.1998) (explaining a party is not
permitted to amend its complaint through
allegations made in motion papers).
Mr. Al–Husani also claims that he was
not properly served because The International
Herald Tribune has a circulation of
only 199 in Saudi Arabia and is published
in English, and Al Quds Al Arabia is a
London-based paper banned in the Kingdom.
Even if service was proper, however,
Mr. Al–Husani submits this Court does
not have personal jurisdiction over him.
The Burnett Plaintiffs claim that Mr.
Al–Husani is also implicated by the ‘‘Golden
Chain,’’ and thus an early supporter of
al Qaeda. Plaintiffs’ Opp. to Al–Husani
Motion to Dismiss at 10; Bierstein Aff. at
Ex. 2 (document listing ‘‘Hamad Al Husaini,’’
without indicating when list was written,
by whom, or for what purpose). The
Plaintiffs place great weight on the United
States’ inclusion of the ‘‘Golden Chain’’ in
its proffer of evidence in United States v.
Arnaout, the government’s case against an
executive of Defendant charity BIF. See
Bierstein Aff. at Ex. 1 (proffer). The
court presiding over that case, however,
ruled that the document was inadmissible
hearsay. United States v. Arnaout, No.
02 Cr. 892, 2003 WL 255226, at *1–2
(N.D.Ill. Feb. 4, 2003). Nevertheless, by
supporting al Qaeda, Plaintiffs assert Mr.
Al–Husani purposefully directed his activities
toward the United States, making the
exercise of personal jurisdiction appropriate.
See, e.g. Bierstein Aff. Exs. 9–15
(detailing al Qaeda’s hatred for and actions
against the United States). Additionally,
Plaintiffs claim that one of Mr. Al–Husani’s
companies is a supporter of Al–Waqf
al-Islami Foundation, a Dutch entity whose
seminars ‘‘have drilled extremist messages
into the heads of thousands of young Muslims.’’
‘‘Radical Foundation: In ‘Law’
Seminars, A Saudi Group Spreads Extremism,’’
Wall St. J., Apr. 15, 2003, at
Bierstein Aff. Ex. 6.
[64] Plaintiffs have not established a
prima facie showing of jurisdiction over
Mr. Al–Husani to survive his motion to
dismiss or warrant jurisdictional discovery.
The ‘‘Golden Chain’’ does not say what the
Plaintiffs argue it says. It is only a list of
names found in a charity’s office. It does
not establish Mr. Aljomaih’s involvement
in a terrorist conspiracy culminating in the
September 11 attacks and it does not demonstrate
that he purposefully directed his
activities at the United States. Accordingly,
Mr. Al–Husani’s motion to dismiss the
Burnett complaint against him is granted.
6. NCB
The Court outlined the Ashton and Burnett
Plaintiffs’ claims against NCB in Part
I.B.4. For purposes of the personal jurisdiction
analysis, the Court will assume at
this point that the FSIA does not provide
for subject matter and personal jurisdiction
over NCB. Accordingly, the Plaintiffs
will have to make a prima facie showing to
survive NCB’s motion to dismiss. In that
vein, Plaintiffs argue that NCB purposefully
directed its activities at the United
States and participated in a conspiracy
that culminated in the attacks of September
11.
Plaintiffs submit NCB has many contacts
with the United States, including a
wholly-owned subsidiary in New York City
through which it operates an international
banking business. See, e.g., Aff. of John
Fawcett in Support of Ashton Plaintiffs’
Opp. to NCB’s Motion to Dismiss (hereinafter
‘‘Fawcett Aff.’’) ¶ 3, Exs. 2 & 3. NCB
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Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
819
has been a party to lawsuits in the Southern
District of New York, both as a plaintiff
and defendant. Fawcett Aff. ¶ 7. The
Muslim World League Journal, a monthly
publication distributed in American mosques,
ran solicitations from 1998 to 2001
for the Islamic Solidarity Fund & Waqf for
the Organization of the Islamic Conference
and the Khair Funds of the Muslim World
League that provided NCB account numbers
to which donors could contribute directly.
Id. ¶ 8, Ex. 5. Plaintiffs request
jurisdictional discovery to explore further
contacts.
NCB argues that none of Plaintiffs’ submissions
satisfy the constitutionally required
showing of minimum contacts.
NCB closed its New York City branch
office in 1992. Decl. of Jorge Juco (‘‘Juco
Decl.’’) ¶ 5, at Berger Aff. in Support of
NCB’s Motion to Dismiss Ashton and Burnett,
Ex. 5. NCB’s second-tier subsidiary,
SNCB Securities Inc., dissolved in February
2001. Id. (citing Ex. A of Juco Decl.,
the certified copy of the Certificate of Dissolution);
see also Schenker v. Assicurazioni
Generali, S.P.A., No. 98 Civ.
9186(MBM), 2002 WL 1560788, at * 4
(S.D.N.Y. July 15, 2002) (finding no personal
jurisdiction over parent corporation
where New York subsidiary was sold two
months prior to commencement of action).
NCB submits its involvement in lawsuits is
equally unavailing because both were terminated
prior to the filing of this action.
See docket Logan Feed v. Nat’l Commercial
Bank, No. 92 Civ. (S.D.N.Y.) (NCB
terminated July 24, 1995); docket Nat’l
Commercial Bank v. Morgan Stanley Asset
Mgmt., Inc., No. 94 Civ. 3167
(S.D.N.Y.) (closed Feb. 17, 1998). It contends
that its consent to personal jurisdiction
in one case does not open the door to
personal jurisdiction in future cases. See
Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 50 n. 5 (2d Cir.1991); Andros
Compania Maritima, S.A. v. Intertanker
Ltd., 714 F.Supp. 669, 675 (S.D.N.Y.1989)
(holding lawsuits in the forum do not establish
general personal jurisdiction).
NCB argues that there is no indication it
placed the advertisements in The Muslim
World League Journal, or that any donations
were deposited into NCB accounts.
In arguing its absence of contacts with
the United States, NCB reiterates that it
is not domiciled, organized, or maintaining
an office in New York. Juco Decl. ¶ 3. It is
not registered or licensed to do business in
the United States and has no property in
the United States. Id. ¶ 8. Shares of NCB
stock are not sold in the United States,
there are no NCB employees or telephone
numbers in the United States, and the
company does not advertise or solicit business
in the United States. Id. ¶ 11. Its
website is accessible from United States,
but only NCB account holders may access
the inter-active services. Id. The Saudi
Arabian Monetary Agency requires that
NCB’s account holders be Saudi citizens or
residents, Saudi government entities, or
business or charity entities with lawful status
in Saudi Arabia. Juco Decl. ¶ 10.
NCB claims the rare contacts it does
have with the United States do not satisfy
the requirements of due process. Although
it maintains correspondent banking
relationships with U.S. commercial banks,
Juco Decl. ¶ 12, NCB argues such relationships
are insufficient to establish personal
jurisdiction over NCB. Semi Conductor
Materials, Inc. v. Citibank Int’l PLC, 969
F.Supp. 243, 244 (S.D.N.Y.1997) (holding
foreign bank’s correspondent banking relationship
with New York bank is not sufficient
for personal jurisdiction); Casio
Computer Co. v. Sayo, No. 98 Civ.
3772(WK), 2000 WL 1877516, at *26
(S.D.N.Y. Oct. 13, 2000) (holding defendant
bank’s wire transfers to U.S. bank accounts
does not create minimum contacts);
Leema Enters., Inc. v. Willi, 575 F.Supp.
820 349 FEDERAL SUPPLEMENT, 2d SERIES
1533, 1537 (S.D.N.Y.1983) (holding correspondent
banking relationships insufficient
to create general personal jurisdiction).
NCB offers its customers the opportunity
to open accounts directly with United
States-based securities broker-dealers, but
NCB does not act as a broker-dealer for
securities sold in the United States and is
not so licensed. Juco Decl. ¶ 14; Bersch v.
Drexel Firestone, Inc., 519 F.2d 974, 998
(2d Cir.1975) (finding Canadian securities
broker not ‘‘doing business’’ in New York
when it arranges for its Canadian customers
to buy and sell U.S. securities through
U.S. broker). In 2002, less than 2% of the
securities NCB traded for its own account
were issued by U.S. entities. Juco Decl.
¶ 15; Schenker, 2002 WL 1560788, at *3–5
(finding that a single bank account in the
United States, constituting small fraction
of defendant’s total assets, is insufficient to
form the basis for personal jurisdiction).
[65] Taken individually, NCB’s contacts
with the United States would not
satisfy due process requirements. However,
when they are examined as a whole—
the presence of a branch office until 1992,
a subsidiary until 2001, taking advantage
of the privilege of its presence in New
York by instigating a lawsuit in this forum,
advertisements in U.S. publications—the
Court finds that they may, with the help of
limited jurisdictional discovery, comport
with due process. NCB’s motion to dismiss
is therefore denied without prejudice.
7. Abdulrahman bin Mahfouz
Abdulrahman bin Mahfouz is a Defendant
in the Burnett action. He is the son
of Defendant Khalid bin Mahfouz and a
director of the Defendant charity Blessed
Relief Society, also known as Muwaffaq.
Burnett Complaint ¶¶ 331; 445. Blessed
37. The Burnett Plaintiffs voluntarily dismissed
their claims against Nimir LLC. See Mem. in
Relief is a branch of the Human Concern
International Society, which Osama bin
Laden identified as a supporter in 1995.
Id. ¶ 333. He is a shareholder and the
CEO of former Defendant Nimir, LLC,
also known as Nimir Petroleum Ltd. Id.
¶ 443. 37 Finally, Plaintiffs claim that Mr.
bin Mahfouz was a member of the board
and Vice Chairman of the Executive Management
Committee of Defendant National
Commercial Bank. Id. ¶ 445.
Plaintiffs base their personal jurisdiction
arguments on their claim that Mr. bin
Mahfouz was a participant in the conspiracy
of terror that purposefully directed its
conduct at the United States and included
the September 11 hijackers. Plaintiffs
also claim that he has business interests in
the United States. Specifically he is a
shareholder in U.S.-based companies, and
his company, Al Murjan, allegedly has
dealings with the American phone company
Hughes Technologies, Inc.
Mr. bin Mahfouz disputes the manner in
which he was served. His name appeared
in Plaintiffs’ notice by publication in The
International Herald, which only has circulation
of 199 in the entire Kingdom of
Saudi Arabia, and Al Quds al-Arabia,
which is banned in the Kingdom. He submits
that he has no personal contacts with
the United States and there is no basis for
exercising personal jurisdiction over him.
[66] The Burnett complaint does not
contain any specific actions by Mr. bin
Mahfouz from which the Court could infer
that he purposefully directed his activities
at the United States. His affiliations with
entities that are alleged to have U.S. contacts
will not sustain jurisdiction. Family
Internet, 1999 WL 796177, at *4. Finally,
being a shareholder in a United States
Supp. of Motion to Dismiss Ex. 1.
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821
company is not sufficient to establish general
personal jurisdiction over Mr. bin
Mahfouz. Bersch, 519 F.2d at 998; see
also Schenker, 2002 WL 1560788, at *3–5
(finding single bank account in United
States constituting small fraction of defendant’s
total assets is not a sufficient basis
for personal jurisdiction). Mr. bin Mahfouz’s
motion to dismiss the Burnett complaint
as against him for lack of personal
jurisdiction is accordingly granted.
8. Saudi Binladin Group, Tariq Binladin,
Omar Binladin, and Bakr
Binladin
The Ashton and Burnett complaints
name the Saudi Binladin Group (‘‘SBG’’) as
a Defendant. The Burnett complaint also
names Tariq Binladin, Omar Binladin, and
Bakr Binladin, Osama’s half-brothers, as
Defendants. In both actions, these Defendants
move to dismiss the complaint or for
a more definite statement.
Based in Jeddah, Saudi Arabia, SBG is
the successor to a construction company
founded by Mohammed Binladin, the father
of Osama bin Laden. Ashton Complaint
¶ 543; Burnett Complaint ¶ 311. It
is now one of the largest engineering and
construction companies in the Arab world
and is managed by Osama bin Laden’s
half brothers, including defendants Bakr
Binladin, who runs SBG, and Tariq Binladin,
who holds a position on the board.
Ashton Complaint ¶ 545; Burnett Complaint
¶ 313. Tariq Binladin allegedly had
a prominent role at IIRO in 1990. Ashton
Complaint ¶ 557; Burnett Complaint
¶ 326. Osama bin Laden purportedly used
SBG to build an infrastructure in Afghanistan.
Ashton Complaint ¶¶ 546, 547; Burnett
Complaint ¶¶ 314–316. After the Soviets
withdrew from Afghanistan in 1989,
Osama bin Laden returned to work with
SBG in Jeddah. Ashton Complaint ¶ 548;
Burnett Complaint ¶ 317. SBG allegedly
continued to support Osama bin Laden
after he relocated to Sudan in 1991. Ashton
Complaint ¶ 548; Burnett Complaint
¶ 317. For example, SBG, through two
subsidiaries allegedly supported Osama
bin Laden’s participation in the construction
of the Tahaddi road and Port Sudan
Airport. Ashton Complaint ¶¶ 550; 552,
553; Burnett Complaint ¶¶ 319–322.
Plaintiffs claim Osama bin Laden’s name
is still listed on SBG corporate records.
Ashton Complaint ¶ 558; Burnett Complaint
¶ 329. Defendants dispute this and
argue he was formally removed from
SBG’s ownership documents in June 1993.
SBG’s Mem. in Supp. of Motion to Dismiss
Ashton Complaint at 2. Plaintiffs also
claim that Osama bin Laden never ‘‘broke’’
with his family after he was exiled to
Sudan and that SBG continued to provide
him financial assistance and engineering
support. Ashton Complaint ¶ 549; Burnett
Complaint ¶ 318. Defendants also
dispute this statement and argue that
Bakr formally ostracized Osama from the
family and the company in a February
1994 statement. SBG’s Mem. in Supp. of
Motion to Dismiss Ashton Complaint at 2.
SBG ‘‘sheltered and directly supported
operatives of the al Qaeda terrorist organization.’’
Ashton Complaint ¶ 555; Burnett
Complaint ¶ 324. Mohammad Jamal Khalifa,
allegedly a key al Qaeda operative, was
taken in by a branch of SBG, the Mohammed
Bin Laden Organization. Ashton
Complaint ¶ 555; Burnett Complaint ¶ 324.
The Mohammed Bin Laden Organization is
allegedly a wholly-owned subsidiary of
SBG and its board members include defendants
Bakr, Tariq, and Omar Binladin.
Ashton Complaint ¶ 556; Burnett Complaint
¶ 325. Khalifa listed the Mohammed
Bin Laden Organization address
on his visa application. Ashton Complaint
¶ 555; Burnett Complaint ¶ 324. Additionally,
U.S.-designated terrorist Yassin Abdullah
al-Kadi was allegedly introduced to
822 349 FEDERAL SUPPLEMENT, 2d SERIES
the Global Diamond Resource’s Chairman
by an executive of SBG. Ashton Complaint
¶ 459; Burnett Complaint ¶ 328.
Plaintiffs claim that SBG had an address
in Rockville, Maryland until very recently.
Ashton Complaint ¶ 545; Burnett Complaint
¶ 313. SBG claims the Rockville
address was the headquarters of a separately
incorporated company, SBG USA,
which was formally dissolved in December
1999. See SBG Memorandum in Support
of Motion to Dismiss Ashton Complaint at
7 & Ex. 2 (articles of dissolution); see also
Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 52 (2d Cir.1991) (personal jurisdiction
contacts determined at time complaint
is filed); but see Metro. Life, 84
F.3d at 569 (holding courts should examine
a defendant’s contacts with the forum for a
reasonable period prior to year of lawsuit
and finding six years was reasonable).
[67] The Burnett complaint does not
contain any factual allegations against Tariq,
Omar, or Bakr Binladin from which the
Court could infer that they purposefully
directed their activities at the United
States, that they were members of a conspiracy
pursuant to the New York longarm
statute, or that they have any general
business contacts with the United States.
Accordingly, the Burnett complaint against
these three individuals is dismissed.
[68] Rather than permitting a 12(e)
statement, the Court finds jurisdictional
discovery is warranted to determine if
SBG purposefully directed its activities at
the United States. See Asip v. Nielsen
Media Research, No. 03 Civ. 5866(SAS),
2004 WL 315269, at *2 (S.D.N.Y. Feb. 18,
2004) (noting the purpose of Rule 12(e) is
to ‘‘strike at unintelligibility rather than
want of detail and TTT allegations that are
unclear due to lack of specificity are more
appropriately clarified by discovery’’).
Specifically, although the complaints are
not specific about when, at the very least,
SBG provided construction support to Osama
bin Laden. Ashton Complaint ¶¶ 550,
552–53; Burnett Complaint ¶¶ 319–22. A
branch of SBG allegedly look in an al
Qaeda operative who listed the SBG
branch address on his visa application.
Ashton Complaint ¶ 555; Burnett Complaint
¶ 324. It is alleged to have ties to
U.S.-designated terrorist Yassin Abdullah
Al–Kadi. Ashton Complaint ¶ 459; Burnett
Complaint ¶ 328. At this stage, the
Court must accept as true Plaintiffs’ contentions
that SBG still contains Osama bin
Laden’s name in its corporate documents.
Ashton Complaint ¶ 558; Burnett Complaint
¶ 329. Additionally, although it
would not satisfy the due process requisites
on its own, SBG’s presence in Maryland
three years before the complaints
were filed, also warrants some discovery.
Accordingly, SBG’s motion to dismiss the
Ashton and Burnett complaints are denied
without prejudice.
9. SAAR Network
The Federal Plaintiffs claim the SAAR
Network is a network of ‘‘interrelated ostensible
charities’’ that was established in
the 1980s ‘‘to generate and surreptitiously
transfer funds to terrorist organizations,
including al-Qaeda.’’ Federal Complaint
¶ 222. Several organizations within the
SAAR Network, including SAAR Foundation,
SAAR International, Safa Group,
Mar–Jac Poultry, Mar–Jac Holdings, Inc.,
Safa Trust, Inc. and Aradi, Inc., were established,
funded or closely affiliated with
Defendant Suleiman Abdul Aziz al Rajhi.
Id. at ¶ 223. By September 11, 2001, there
were allegedly over one hundred entities in
this network, ‘‘including the U.S. branches
of MWL, IIRO and WAMY, [and the
SAAR Network Defendants moving to dismiss
here,] African Muslim Agency, Grove
Corporate, Inc., Heritage Education Trust,
International Institute of Islamic Thought,
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
823
Mar–Jac Investment, Inc., Mena Corporation,
Reston Investment, Inc., Sterling
Charitable Gift Fund, Sterling Management
Group, Inc., Success Foundation, and
York Foundation.’’ Id. ¶ 224. Allegedly,
many of the entities are related by common
management, few of them maintained
a physical presence at their purported
place of business, and they all ‘‘have long
acted as fully integrated components of al
Qaeda’s logistical and financial support infrastructure.’’
Id. ¶¶ 225, 226.
Plaintiffs argue the Court has personal
jurisdiction over the SAAR Network because
it participated in the conspiracy that
resulted in catastrophic effects in this district.
After an ongoing investigation in
the Eastern District of Virginia, federal
authorities raided the offices of several of
these Defendants in Herndon, Virginia in
March 2002. Id. ¶ 227. The investigation
has allegedly revealed that SAAR Network
funds have been transferred to designated
terrorists and al Qaeda operatives
Youssef Nada and Ahmed Idris Nasreddin.
Id. ¶ 228; see Exec. Order No. 13224
(designating individuals as terrorists).
Additionally, Plaintiffs claim that the investigation
has revealed that SAAR Network
entities have engaged in transactions
with Bait Ul-mal, Inc. (BMI), which has
transferred funds to terrorist organizations
including al Qaeda, and materially
supported the 1998 embassy bombings in
Africa. Federal Complaint ¶¶ 229–230.
[69] At this stage, the Court must accept
as true Plaintiffs’ allegations concerning
the relationships of the SAAR
Network. Id. ¶¶ 222, 226. Defendants
correctly argue, however, that Defendants
have provided scant basis for linking
these entities under the SAAR Network
title. Certain of these groups may be
subject to personal jurisdiction in light of
Plaintiffs’ allegation that they purposefully
directing its activities at the United
States by transferring money to designated
terrorists Youssef Nada and Ahmed
Idris Nasreddin, particularly if they intended
the money to support terrorism.
Id. ¶ 228. Additionally, general jurisdiction
could be appropriate for the SAAR
Network entities having offices in Virginia.
Id. ¶ 227. Accordingly, the SAAR
Network’s motion to dismiss is denied
without prejudice. The parties are to engage
in jurisdictional discovery to determine
which of the Network’s entities have
a presence in Virginia and which entities
transferred money to Nada and Nasreddin.
10. Adel A.J. Batterjee
The Burnett Plaintiffs claim that Defendant
Adel A.J. Batterjee is an associate of
Osama bin Laden. Burnett Complaint
¶ 181. On December 21, 2004, the U.S.
Department of Treasury designated Mr.
Batterjee as a Specially Designated Global
Terrorist. See Dec. 23, 2004 Bierstein letter
to Court; Exec. Order No. 13224. Mr.
Batterjee is the chairman of Al Shamal
Islamic Bank, ‘‘an instrumental bank in
Osama bin Laden’s financial support network.’’
Burnett Complaint ¶ 365. Mr.
Batterjee is also chairman of al-Bir Saudi
Organization, whose United States branch,
Defendant BIF, is allegedly a ‘‘front for al
Qaeda sponsorship.’’ Burnett Complaint
¶¶ 75, 196, 199. BIF is also a designated
terrorist organization. See Exec. Order
No. 13224. The Saudi government closed
Al–Bir in 1993 ‘‘at the same time it was
closing other organizations for ties to terrorism.’’
Burnett Complaint ¶ 183. Mr.
Batterjee then allegedly moved the charity’s
headquarters to Chicago in the name
of BIF. Id. ¶ 183. Mr. Batterjee is listed
as one of BIF’s three founders in its articles
of incorporation filed in Illinois. Id.
¶ 183. Through an alias, Mr. Batterjee
allegedly sent money to BIF’s branches.
824 349 FEDERAL SUPPLEMENT, 2d SERIES
Id. ¶ 184; see also Decl. of Jodi Westbrook
Flowers in Opp. to Batterjee Motion to
Dismiss (‘‘Flowers Decl.’’) Att. 5, p. 7 (BIF
record showing $48,464 contribution by
Abdel Abdul Jalil Batterjee). Mr. Batterjee
allegedly transferred control of BIF to
Defendant Enaam M. Arnaout, on September
15, 1997. 38 Burnett Complaint ¶ 183.
In October 2001, Arnaout allegedly told
Batterjee he was worried about being under
scrutiny of the U.S. government and in
January 2002, Batterjee requested that
Aranout relocate his family to Saudi Arabia.
Id. ¶¶ 217–218. Plaintiffs also claim
that Mr. Batterjee’s name is on a BIF list
of wealthy Saudi Arabian sponsors of al
Qaeda and Osama bin Laden. Id. ¶ 219.
Plaintiffs also claim that Defendant
charity WAMY and BIF are closely connected
and that Mr. Batterjee was the
Secretary General of WAMY when he
founded BIF in the United States. Id.
¶ 229; see also Flowers Decl. Att. 4, p. 3
(December 5, 1992 New York Times article
quoting Adel A. Batterjee as the chairman
of WAMY). In his capacity as Secretary
General of WAMY, Mr. Batterjee allegedly
commissioned a biography of Osama bin
Laden and the origins of al Qaeda, which
was jointly published by WAMY and BIF
in 1991. Burnett Complaint ¶ 230.
With respect to his contacts with the
United States, Plaintiffs claim that the
documents filed in 1992 in conjunction with
the establishment of BIF in Chicago state
that Mr. Batterjee is a founder of BIF and
that BIF’s founders travel to the United
States on a regular basis. See Flowers
38. Mr. Arnaout was ‘‘criminally indicted for
his role in the September 11, 2001 attacks.’’
Burnett Complaint ¶ 199. But in its ‘‘written
plea agreement, the government agreed to
dismiss sensational and highly publicized
charges of providing material support to terrorists
and terrorist organizations.’’ United
States v. Arnaout, 282 F.Supp.2d 838, 843
(N.D.Ill.2003). The Burnett Plaintiffs allege
Decl. Att. 2, pp. 2–3. In 1993 BIF filed an
application to conduct business in Florida
and listed Mr. Batterjee as a director with
an address in Florida. See id. at Att. 3, p.
4. BIF’s authorization to do business in
Florida was revoked on August 26, 1994.
Id. at p. 1.
Mr. Batterjee disputes the claims
against him in a declaration filed in conjunction
with his motion to dismiss. Batterjee
Decl. ¶ 8. He states he was born in
Saudi Arabia, attended college in the United
States in the 1960s, and returned to
Saudi Arabia. Id. ¶¶ 3, 5. He claims he
was last in the United States in June 2000
for personal reasons. Id. ¶ 5. He denies
owning any real property, bank accounts,
or investments in the United States. Id.
¶ 6. With respect to the allegations contained
in the complaint, Mr. Batterjee
claims BIF was never a branch of Al Bir
or vice versa. Id. ¶ 9. He claims he never
sent money to BIF in all of its history. Id.
He states he transferred away all control
of BIF in 1993. Id. He claims he never
served as an executive of WAMY, never
wrote a biography of Osama bin Laden,
and denies having any knowledge of Osama
bin Laden’s or al Qaeda’s activities
other than what is widely published in the
press. Id. ¶¶ 9, 10.
Mr. Batterjee also disputes the manner
in which he was served. Plaintiffs reasoned
that Al–Quds Al–Arabia had published
Osama bin Laden’s fatwas in the
past and could, therefore, reach his supporters
regardless of their location. Further,
The International Herald Tribune is
Mr. Arnaout and Osama bin Laden have ties.
For example, law enforcement officials in
Bosnia–Herzegovina raided BIF’s offices in
March 2002 and allegedly recovered documents
establishing direct communications between
Mr. Arnaout and Osama bin Laden in
the late 1980s and early 1990s. Burnett Complaint
¶¶ 188, 196, 199.
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825
available to the world community. Additionally,
Plaintiffs submit that these cases
have been widely reported in the Arabic
media and the complaints have been available
on numerous websites for over two
years. In light of these considerations and
Judge Robertson’s March 23, 2003 order
approving service by publication for Defendants
including Mr. Batterjee, the
Court denies Mr. Batterjee’s motion to
quash service.
[70] The Court finds the Burnett
Plaintiffs made a prima facie showing of
personal jurisdiction over Mr. Batterjee.
While perhaps not dispositive on its own,
Mr. Batterjee’s designation as a terrorist
lends substantial weight to Plaintiffs’
claims that he purposefully directed his
activities at the United States and that the
exercise of personal jurisdiction over him
comports with due process. See Biton,
310 F.Supp.2d at 178. Mr. Batterjee purportedly
commissioned a book about al
Qaeda and Osama bin Laden. He is the
chairman of Al Shamal Islamic Bank, a
bank with admitted and substantial ties to
Osama bin Laden. Burnett Complaint
¶¶ 70, 79. Additionally, he is involved in
the United States operations of designated
terrorist, BIF. In the ten years leading up
to the commencement of this action, Mr.
Batterjee has had contacts with the United
States that could be related to the terrorist
attacks inasmuch as BIF participated in
those attacks. Specifically, Mr. Batterjee
traveled to Chicago for BIF and had an
address in Florida for BIF. Accordingly,
Mr. Batterjee’s motion to dismiss the Burnett
complaint for lack of personal jurisdiction
is denied.
III. Failure to State a Claim
In considering Defendants’ motions to
dismiss for failure to state a claim under
Rule 12(b)(6), the Court must ‘‘accept all of
Plaintiffs’ factual allegations in the complaint
as true and draw inferences from
those allegations in the light most favorable
to the Plaintiffs.’’ Desiderio v. Nat’l
Ass’n of Sec. Dealers, Inc., 191 F.3d 198,
202 (2d Cir.1999). Dismissal is not appropriate
unless it appears beyond doubt,
‘‘even when the complaint is liberally construed,
that the plaintiff can prove no set
of facts which would entitle him to relief.’’
Id.; Conley v. Gibson, 355 U.S. 41, 45–46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Federal
Rule of Civil Procedure 8(a) requires that
a complaint contain ‘‘a short and plain
statement of the claim showing that the
pleader is entitled to relief.’’ Fed.R.Civ.P.
8(a)(2). The Supreme Court reinforced
these liberal pleading standards in Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512,
122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (observing
the ‘‘short and plain statement’’
required by Rule 8 ‘‘must simply ‘give the
defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it
rests’ ’’) (quoting Conley, 355 U.S. at 47, 78
S.Ct. 99). When presented with a 12(b)(6)
motion, the district court may not consider
matters outside of the pleadings without
converting the motion into a motion for
summary judgment. Courtenay Communications
Corp. v. Hall, 334 F.3d 210, 213
(2d Cir.2003); Friedl v. City of New York,
210 F.3d 79, 83–84 (2d Cir.2000).
A. Elements of Claims
[71] Plaintiffs claim that each Defendant
provided material support to the al
Qaeda terrorists who perpetrated the attacks
on September 11, 2001. Under the
ATA, material support includes money, financial
services, lodging, training, safehouses,
and false documentation or identification.
18 U.S.C. §§ 2339A(b), 2339B(g).
Assuming such support is alleged, Plaintiffs
will have to present a sufficient causal
connection between that support and the
injuries suffered by Plaintiffs. See Bur-
826 349 FEDERAL SUPPLEMENT, 2d SERIES
nett I, 274 F.Supp.2d at 104. Proximate
cause will support this connection. See
First Nationwide Bank v. Gelt Funding
Corp., 27 F.3d 763, 769 (2d Cir.1994)
(‘‘Central to the notion of proximate cause
is the idea that a person is not liable to all
those who may have been injured by his
conduct, but only to those with respect to
whom his acts were a substantial factor in
the sequence of responsible causation, and
whose injury was reasonably foreseeable
or anticipated as a natural consequence.’’).
In light of al Qaeda’s public acknowledgments
of its war against the United States,
the September 11 attacks may be the natural
and probable consequence of knowingly
and intentionally providing material support
to al Qaeda. Burnett I, 274
F.Supp.2d at 104.
[72] Plaintiffs rely on theories of concerted
action liability—conspiracy and aiding
and abetting—in support of this causal
link. ‘‘Concerted action liability under
New York law is based on the principle
that ‘[a]ll those who, in pursuance of a
common plan or design to commit a tortious
act, actively take part in it, or further
it by cooperation or request, or who lend
aid or encouragement to the wrongdoer
TTT are equally liable with him.’ ’’ Pittman,
149 F.3d at 122 (quoting Bichler v.
Eli Lilly & Co., 55 N.Y.2d 571, 580, 450
N.Y.S.2d 776, 436 N.E.2d 182 (1982)). To
be liable under either conspiracy or aiding
and abetting, however, the defendant
‘‘must know the wrongful nature of the
primary actor’s conduct,’’ id. at 123, and
the conduct must be tied to a substantive
cause of action, Chrysler Capital Corp.,
778 F.Supp. at 1267. In this regard, Plaintiffs
rely on the ATCA, RICO, the TVPA,
the ATA, and various state laws, including
wrongful death, survival, intentional infliction
of emotional distress, trespass, assault
and battery, negligence, and negligent infliction
of emotional distress.
1. ATCA
[73] The Alien Tort Claims Act provides
that ‘‘[t]he district courts shall have
original jurisdiction of any civil action by
an alien for a tort only, committed in violation
of the law of nations or a treaty of the
United States.’’ 28 U.S.C. § 1350. ‘‘This
statute confers subject matter jurisdiction
when the following three conditions are
satisfied: (1) an alien sues (2) for a tort (3)
committed in violation of the law of nations
(i.e., international law).’’ Kadic v. Karadzic,
70 F.3d 232, 238 (2d Cir.1995); see
also Flores v. Southern Peru Corp., 343
F.3d 140, 143 n. 2 (2d Cir.2003). Certain
Plaintiffs in these actions are aliens and
the complaints all allege common law torts.
The Court finds that ‘‘aircraft hijacking is
generally recognized as a violation of international
law.’’ Burnett I, 274 F.Supp.2d at
100 (citing Kadic, 70 F.3d at 240; Bigio v.
Coca–Cola Co., 239 F.3d 440, 447–49 (2d
Cir.2000)). Further, ‘‘courts, including the
Second Circuit, have almost unanimously
permitted actions premised on a theory of
aiding and abetting and conspiracy.’’
Presbyterian Church of Sudan v. Talisman
Energy, Inc., 244 F.Supp.2d 289, 311
(S.D.N.Y.2003). Accordingly, the ATCA
may provide a basis for a concerted action
claim of material support by alien-Plaintiffs
here. See Burnett I, 274 F.Supp.2d at
100.
2. RICO
‘‘To state a claim under civil RICO, a
plaintiff must plead seven elements: (1)
that the defendant (2) through the commission
of two or more acts (3) constituting a
‘pattern’ (4) of ‘racketeering activity’ (5)
directly or indirectly invests in, maintains
an interest in, or participates in (6) an
‘enterprise’ (7) the activities of which affect
interstate or foreign commerce.’’ Berk v.
Tradewell, Inc., Nos. 01 Civ. 9035, 01 Civ.
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
827
10068(MBM), 2003 WL 21664679, at *11
(S.D.N.Y. July 16, 2003) (quoting Moss v.
Morgan Stanley, Inc., 719 F.2d 5, 17 (2d
Cir.1983)); see also 18 U.S.C. § 1962.
‘‘Civil RICO is an unusually potent weapon
TTT ‘courts should strive to flush out frivolous
RICO allegations at an early stage of
the litigation.’ ’’ Katzman v. Victoria’s Secret,
167 F.R.D. 649, 655 (S.D.N.Y.1996).
[74] The Federal complaint asserts a
RICO claim under § 1962(a), which states
in part: ‘‘It shall be unlawful for any person
who has received any income derived,
directly or indirectly, from a pattern of
racketeering activity or through collection
of an unlawful debt in which such person
has participated a principal within the
meaning of 18 U.S.C. § 2, to use or invest,
directly or indirectly, any part of such
income, or the proceeds of such income, in
acquisition of any interest in, or the establishment
or operation of, any enterprise
which is engaged in, or the activities of
which affect, interstate or foreign commerce.’’
18 U.S.C. § 1962(a). ‘‘Because
the conduct constituting a violation of
§ 1962(a) is investment of racketeering income,
a plaintiff must allege injury from
the defendant’s investment of the racketeering
income to recover under
§ 1962(a).’’ Ouaknine v. MacFarlane, 897
F.2d 75, 83 (2d Cir.1990). The Federal
Plaintiffs have not done that here and
seem to abandon the § 1962(a) claim in
their RICO statements. Accordingly, the
Federal Plaintiffs have not stated a claim
under 18 U.S.C. § 1962(a).
The Federal Plaintiffs’ RICO statements
against Arab Bank and the SAAR Network
assert claims under § 1962(c) and
§ 1962(d). See 03 MDL 1570 Docket
## 307, 309. Subsection (c) states, in
part: ‘‘It shall be unlawful for any person
employed by or associated with any enterprise
engaged in, or the activities of which
affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs
through a pattern of racketeering
activity.’’ 18 U.S.C. § 1962(c). ‘‘The four
elements of Section 1962(c) are ‘(1) conduct
(2) of an enterprise (3) through a pattern
(4) of racketeering activity.’ ’’ U.S. Fire
Ins. Co. v. United Limousine Serv., Inc.,
303 F.Supp.2d 432, 451 (S.D.N.Y.2004).
‘‘The elements of section 1962(c) must be
established as to each individual defendant.’’
Id. Paragraph (d) states that it
‘‘shall be unlawful for any person to conspire
to violate any provision of’’ § 1962(a)-
(c). 18 U.S.C. § 1962(d). ‘‘The Second
Circuit has held in the context of a motion
to dismiss that to state a claim under [§ ]
1962(d), the ‘complaint must allege some
factual basis for a finding of a conscious
agreement among the defendants.’ ’’ Am.
Arbitration Ass’n, Inc. v. DeFonseca, No.
93 Civ. 2424(CSH), 1996 WL 363128, at *7
(S.D.N.Y. June 28, 1996) (quoting Hecht v.
Commerce Clearing House, 897 F.2d 21,
26 n. 4 (2d Cir.1990)); see also Schmidt v.
Fleet Bank, 16 F.Supp.2d 340, 354
(S.D.N.Y.1998) (‘‘Bare and conclusory allegations
are insufficient to withstand a motion
to dismiss and a plaintiff must plead
facts sufficient to show that each defendant
knowingly agreed to participate in
the [RICO] conspiracy.’’).
[75, 76] Assuming for now that the
Plaintiffs have pleaded an enterprise,
‘‘[u]nder Reves v. Ernst & Young, 507 U.S.
170, 179, 113 S.Ct. 1163, 122 L.Ed.2d 525
(1993), an alleged RICO defendant must
have had ‘some part in directing’ the ‘operation
or management’ of the enterprise
itself to be liable.’’ Dubai Islamic Bank v.
Citibank, N.A., 256 F.Supp.2d 158, 164
(S.D.N.Y.2003). The complaints allege the
moving Defendants may have assisted al
Qaeda, but they do not allege ‘‘anything
approaching active ‘management or operation.’
’’ Id. Accordingly, the Court finds
828 349 FEDERAL SUPPLEMENT, 2d SERIES
Plaintiffs have failed to state a RICO claim
against the moving Defendants. See id.;
Redtail Leasing, Inc. v. Bellezza, 95 Civ.
5191(JFK), 1997 WL 603496, at *5
(S.D.N.Y.1997) (‘‘A defendant does not ‘direct’
an enterprise’s affairs under
§ 1962(c) merely by engaging in wrongful
conduct that assists the enterprise.’’);
Dep’t of Econ. Dev. v. Arthur Andersen &
Co., 924 F.Supp. 449, 466–67 (S.D.N.Y.
1996) (providing services to racketeering
enterprise is not directing the enterprise);
LaSalle Nat’l Bank v. Duff & Phelps Credit
Rating Co., 951 F.Supp. 1071, 1090
(S.D.N.Y.1996) (same). Plaintiffs’ RICO
claim under § 1962(d) fails for the same
reason. Plaintiffs have not alleged that
the moving Defendants were central figures
in the underlying schemes or for conspiracy
liability under § 1962(d). The
RICO claims against the moving Defendants
are dismissed.
3. TVPA
[77, 78] ‘‘The TVPA establishes a cause
of action in federal court against an individual
who, under actual or apparent authority,
or color of law, of any foreign
nation subjects an individual to torture or
extrajudicial killing.’’ Arndt v. UBS AG,
342 F.Supp.2d 132, 141 (E.D.N.Y.2004)
(citing Flores, 343 F.3d at 153); 28 U.S.C.
§ 1350 note. Only individuals maybe sued
under the TVPA. Arndt, 342 F.Supp.2d at
141 (citing Friedman v. Bayer Corp., No.
99 Civ. 3675, 1999 WL 33457825, at *2
(E.D.N.Y. Dec. 15, 1999)). Accordingly, to
the extent Plaintiffs have not already withdrawn
these claims, the TVPA claims are
dismissed against Al Rajhi Bank, Saudi
American Bank, Arab Bank, Al Baraka
Investment & Development Corp., NCB,
Saudi Binladin Group, and the SAAR Network.
Similarly, there have been no allegations
that Saleh Abdullah Kamel or Adel
Batterjee acted under color of law and,
therefore, the TVPA claims against these
individuals are dismissed as well.
4. ATA
[79, 80] The ATA provides a civil remedy
for ‘‘[a]ny national of the United
States injured in his or her person, property,
or business by reason of an act of
international terrorism, or his or her estate,
survivors, or heirs.’’ 18 U.S.C.
§ 2333(a). 39 To adequately plead the provision
of material support under this section,
a plaintiff would have to allege that
the defendant knew about the terrorists’
illegal activities, the defendant desired to
help those activities succeed, and the defendant
engaged in some act of helping
those activities. Boim II, 291 F.3d at
1023; see also Boim v. Quranic Literacy
Inst., 340 F.Supp.2d 885, 906–913 (N.D.Ill.
2004) (‘‘Boim III ’’) (granting summary
judgment against two entity defendants
where record evidence demonstrated the
charities’ concession that Hamas used terrorism
in pursuit of its goals, the organizations’
repeated desire to help Hamas by
39. The ATA defines international terrorism as:
activities that—(A) involve violent acts or
acts dangerous to human life that are a
violation of the criminal laws of the United
States or of any State, or that would be a
criminal violation if committed within the
jurisdiction of the United States or of any
State; (B) appear to be intended—to intimidate
or coerce a civilian population; (ii) to
influence the policy of a government by
intimidation or coercion; or (iii) to affect
the conduct of a government by assassination
or kidnapping; and (C) occur primarily
outside the territorial jurisdiction of the
United States, or transcend national boundaries
in terms of the means by which they
are accomplished, the persons they appear
intended to intimidate or coerce, or the
locale in which their perpetrators operate
or seek asylum.
18 U.S.C. § 2331(1). For now, the Court
assumes the attacks of September 11 were an
act of international terrorism.
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recruiting donations to the Holy Land
Foundation, a known supporter of Hamas,
distributing pro-Hamas literature, and featuring
pro-Hamas speakers at their meetings);
see also Burnett I, 274 F.Supp.2d at
107 (noting the complaint in Boim was
quite specific in its allegation of a causal
link). Under a conspiracy theory, the
Plaintiffs have to allege that the Defendants
were involved in an agreement to
accomplish an unlawful act and that the
attacks of September 11 were a reasonably
foreseeable consequence of that conspiracy.
See Boim III, 340 F.Supp.2d at 895
(framing analysis as what plaintiffs have to
prove to succeed on summary judgment).
Plaintiffs do not have to allege that Defendants
knew specifically about the September
11 attacks or that they committed any
specific act in furtherance of that attack.
Id.
5. Wrongful Death and Survival
[81] New York Estates, Powers and
Trusts Law governs Plaintiffs’ claims of
wrongful death and survival. ‘‘The personal
representative TTT of a decedent who
is survived by distributees may maintain
an action to recover damages for a wrongful
act, neglect or default which caused the
decedent’s death against a person who
would have been liable to the decedent by
reason of such wrongful conduct if death
had not ensued.’’ N.Y. Est. Powers &
Trusts § 5–4.1 (McKinney 2002); see also
N.Y. Est. Powers & Trusts § 11–3.2(b)
(McKinney 2002) (outlining survival claim:
‘‘No cause of action for injury to person or
property is lost because of the death of the
person in whose favor the cause of action
existed. For any injury an action may be
brought or continued by the personal representative
of the decedent.’’). Accordingly,
the Court finds that if Plaintiffs are
personal representatives and their allegations
sufficiently allege that Defendants
supported, aided and abetted, or conspired
with the September 11 terrorists, they will
have also stated claims for wrongful death
and survival.
6. Assault and Battery and Intentional
Infliction of Emotional Distress
[82] The Federal Plaintiffs bring
claims of assault and battery and intentional
infliction of emotional distress. The
Burnett and Ashton Plaintiffs also allege
claims of intentional infliction of emotional
distress. The statute of limitations for
assault and battery and intentional infliction
of emotional distress is one year.
Holmes v. Lorch, 329 F.Supp.2d 516, 523
(S.D.N.Y.2004); N.Y. C.P.L.R. 215(3)
(McKinney 2002). The Federal Plaintiffs
filed their complaint on September 10,
2003, nearly two years after September 11,
2001. Accordingly, their assault and battery
and intentional infliction of emotional
distress claims are dismissed against the
SAAR Network and Arab Bank.
[83, 84] ‘‘Under New York law, a claim
for intentional infliction of emotional distress
requires a showing of (l ) extreme
and outrageous conduct; (2) intent to
cause, or reckless disregard of a substantial
probability of causing, severe emotional
distress; (3) a causal connection between
the conduct and the injury; and (4)
severe emotional distress.’’ Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir.1999)
(citing Howell v. New York Post Co., 81
N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612
N.E.2d 699 (1993)). ‘‘ ‘Liability has been
found only where the conduct has been so
outrageous in character, and so extreme in
degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized
society.’ ’’ Id. (quoting Howell, 81 N.Y.2d
at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699).
Courts are to determine whether the al-
830 349 FEDERAL SUPPLEMENT, 2d SERIES
leged conduct is sufficiently extreme and
outrageous enough to permit recovery.
Stuto, at 827. The attacks on September
11, 2001 were undoubtedly extreme and
outrageous. The Court finds that if the
Ashton and Burnett Plaintiffs’s allegations
sufficiently allege that Defendants supported,
aided and abetted, or conspired
with the September 11 terrorists, they will
have also stated a claim for intentional
infliction of emotional distress. See Burnett
I, 274 F.Supp.2d at 107–08 (analyzing
claims under New York law).
7. Trespass
[85] The Federal Plaintiffs bring a
claim for trespass on the theory that Defendants
assisted and encouraged those
who intentionally entered the World Trade
Center property. New York courts describe
this cause of action as ‘‘the interference
with a person’s right to possession of
real property either by an unlawful act or
a lawful act performed in an unlawful manner.’’
N.Y. State Nat’l Org. for Women v.
Terry, 886 F.2d 1339, 1361 (2d Cir.1989)
(citing Ivancic v. Olmstead, 66 N.Y.2d 349,
352, 497 N.Y.S.2d 326, 488 N.E.2d 72
(1985)). To the extent that the Federal
Plaintiffs sufficiently plead that Defendants
acted in concert with the September
11 hijackers, they may proceed with this
claim. Wantanabe Realty Corp. v. City of
New York, 01 Civ. 10137(LAK), 2003 WL
22862646, at *4 (S.D.N.Y. Dec. 3., 2003)
(citing Pittman, 149 F.3d at 122–23).
8. Negligence
[86–88] In New York, a plaintiff may
establish negligent infliction of emotional
distress under the bystander or direct
duty theory. Baker v. Dorfman, 239 F.3d
415, 421 (2d Cir.2000). Under the bystander
theory, ‘‘a defendant’s conduct is
negligent as creating an unreasonable risk
of bodily harm to a plaintiff and such
conduct is a substantial factor in bringing
about injuries to the plaintiff in consequence
of shock or fright resulting from
his or her contemporaneous observation of
serious physical injury or death inflicted
by the defendant’s conduct on a member of
the plaintiff’s immediate family in his or
her presence.’’ Bovsun v. Sanperi, 61
N.Y.2d 219, 223–24, 473 N.Y.S.2d 357, 461
N.E.2d 843 (1984). Under the direct duty
theory, a plaintiff suffers emotional distress
caused by ‘‘defendant’s breach of a
duty which unreasonably endangered
[plaintiff’s] own physical safety.’’ Mortise
v. United States, 102 F.3d 693, 696 (2d
Cir.1996).
[89–92] To establish a claim for negligence
under New York law, ‘‘a plaintiff
must show that the defendant owed the
plaintiff a cognizable duty of care, that the
defendant breached that duty, and that the
plaintiff suffered damages as a proximate
cause of that breach.’’ King v. Crossland
Savings Bank, 111 F.3d 251, 259 (2d Cir.
1997). The most basic element of a negligence
claim is the existence of a duty owed
to plaintiffs by defendants. Palsgraf v.
Long Island R.R. Co., 248 N.Y. 339, 342,
162 N.E. 99 (1928); see also Burnett I, 274
F.Supp.2d at 108 (dismissing negligence
claims against Defendant Al Haramain Islamic
Foundation because complaint failed
to allege or identify any duty owed to
Plaintiffs). Banks do not owe non-customers
a duty to protect them from the intentional
torts of their customers. Renner v.
Chase Manhattan Bank, No. 98 Civ.
926(CSH), 1999 WL 47239, at *13
(S.D.N.Y. Feb. 3, 1999) (citing cases);
Burnett I, 274 F.Supp.2d at 109 (‘‘Plaintiffs
offer no support, and we have found none,
for the proposition that a bank is liable for
injuries done with money that passes
through its hands in the form of deposits,
withdrawals, check clearing services, or
any other routine banking service.’’). The
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complaints presently before the Court do
not allege or identify a duty owed to Plaintiffs
by moving Defendants. See Burnett
I, 274 F.Supp.2d at 108–09. Accordingly,
the negligence and negligent infliction of
emotional distress claims are dismissed for
failure to state a claim.
B. Analysis of Claims Against the
Moving Defendants
[93] While applying the liberal notice
pleading requirements of Rule 8, the Court
notes that in light of ‘‘the extreme nature
of the charge of terrorism, fairness requires
extra-careful scrutiny of Plaintiffs’
allegations as to any particular defendant,
to ensure that he-or it-does indeed have
fair notice of [the claims].’’ Id. at 103–04.
1. Al Rajhi Bank
[94] Al Rajhi Bank was founded in
1987 and now has a network of nearly 400
branch offices throughout Saudi Arabia
and seventeen worldwide subsidiaries.
Burnett Complaint ¶ 84. All the banking
Defendants are alleged to have ‘‘provided
essential support to the al Qaeda organization
and operations. The banking Defendants
in this lawsuit have acted as instruments
of terror, in raising, facilitating and
transferring money to terrorist organizations.’’
Burnett Complaint ¶ 46. Plaintiffs
claim that Al Rajhi Bank is ‘‘the primary
bank for a number of charities that serve
as al Qaeda front groups,’’ including Al
Haramain, MWL, WAMY, SJRC, and
IIRO. Burnett Complaint ¶ 85; Rule 12(e)
Statement ¶ 31. ‘‘Al Rajhi continues to
maintain Al Haramain’s accounts despite
Al Haramain’s designation on March 11,
2002 as terrorist organizations by both the
United States and Saudi Arabian authorities.’’
Rule 12(e) Statement ¶ 44. The
Burnett Plaintiffs claim Al Rajhi Bank
knew or had to know that its depositors,
Defendant charities WAMY, MWL, IIRC,
and SJRC were material supporters of
terrorism. Rule 12(e) Statement ¶¶ 44–60.
The Burnett Plaintiffs claim that Saudi
Arabia has ‘‘ineffective and/or rudimentary
bank supervisory, anti-money laundering
laws and anti-terrorist financing in place.’’
Rule 12(e) Statement ¶¶ 72–78. In 1999,
William Weschler of the National Security
Council and Richard Newcomb of the Office
of Foreign Assets Control traveled to
Saudi Arabia to warn Al Rajhi Bank and
its regulator, the Saudi Arabian Monetary
Agency (‘‘SAMA’’), ‘‘that their financial
systems were being manipulated or utilized
to fund terrorist organizations such
as Al Qaeda.’’ Id. ¶ 75. The United
States encouraged SAMA to adopt ‘‘know
your customer’’ rules. Id. ‘‘Despite these
warnings, Al Rajhi failed to adopt even the
most minimal standards, [which] resulted
in the use of Al Rajhi as an instrument of
terror and a material supporter, aider and
abettor of al Qaeda and international terrorist
activities.’’ Id. ¶¶ 76–77.
One of the hijackers on board American
Airlines Flight 11, Abdulaziz al-Omari,
held an account at Al Rajhi Bank. Burnett
Complaint ¶ 85; Rule 12(e) Statement ¶ 43.
Another hijacker, Mohammed Atta, made
a transfer to this account at some time.
Rule 12(e) Statement ¶ 43. Plaintiffs claim
al Qaeda financier Zouaydi asked Abdullah
bin Abdul Muhsen al Turki, a counselor to
the government of Saudi Arabia, to send
money through Al Rajhi. Burnett Complaint
¶¶ 388, 538.
The Burnett Plaintiffs also claim that Al
Rajhi Bank has relationships with Hamas
and other terrorists. Rule 12(e) Statement
¶¶ 61–69. Al Rajhi Bank chose Texas-based
Infocom to host its website. Id.
¶¶ 65, 66. Infocom has provided funding
to Hamas and is owned and operated by
Hamas leader and designated terrorist,
Mousa Marzook. Id. There have been
transfers made to Marzook and Infocom
832 349 FEDERAL SUPPLEMENT, 2d SERIES
from Al Rajhi accounts. Id. In ‘‘December
1999, Al Rajhi directly funded Tulkarm
Charity Committee, a known front for Hamas.’’
Id. ¶ 71.
Members of the Al Rajhi family, which
owns and controls Al Rajhi Bank, are alleged
to have ties to Osama bin Laden’s
personal secretary. Id. ¶ 79. The Al Rajhi
family is purportedly a major donor to
the SAAR Network, a Defendant here,
being investigated by federal authorities in
Virginia. Id. ¶¶ 80–84. Finally, Al Rajhi
family members are allegedly closely associated
with wealthy donors to Osama bin
Laden. Id. ¶ 85 (alleging ties with the
Golden Chain).
Judge Robertson found that the only
allegation in the Third Amended Burnett
Complaint that stated a claim upon which
relief could be granted was that Al Rajhi
Bank acted as an instrument ‘‘of terror, in
raising, facilitating and transferring money
to terrorist organizations.’’ Burnett I, 274
F.Supp.2d at 109 (quoting Burnett Complaint
¶ 46). Judge Robertson noted that
there was no support ‘‘for the proposition
that a bank is liable for injuries done with
money that passes through its hands in the
form of deposits, withdrawals, check clearing
services, or any other routine banking
service.’’ Id. In light of the liberal pleading
standards, however, Judge Robertson
denied Al Rajhi Bank’s motion to dismiss
and permitted it to request a more definitive
statement under Rule 12(e). Id. at
110. The Burnett Plaintiffs provided an
89–paragraph response on August 27,
2003. Thereafter, Al Rajhi Bank renewed
its motion to dismiss pursuant to Rule
12(b)(6).
40. Under Islamic banking laws, Hararm is
forbidden income that must be given away.
The disposal of Hararm cannot be considered
charitable giving. Rule 12(e) Statement ¶ 9.
In the 12(e) statement, the Burnett Plaintiffs
explain that al Qaeda takes advantage of the
under-regulated Islamic banking system to
Al Rajhi Bank argues that Plaintiffs offer
no factual allegations in support of
their conclusion that Al Rajhi Bank had to
know that the charities it supported
through Zakat and Hararm 40 payments
were really fronts for al Qaeda. Al Rajhi
Bank contends it had a legal and religious
duty to make its charitable donations and
any terrorist activity by the recipient charities
was unknown to Al Rajhi Bank. See
Rule 12(e) Statement ¶¶ 26, 29. Contrary
to Plaintiffs’ arguments, Al Rajhi Bank
submits it did not have a duty, or a right,
to inspect the Defendant charities’ financial
transactions to ascertain the ultimate
destination of its donations. But see Rule
12(e) Statement ¶ 32 (‘‘Al Rajhi is required
to determine that the ultimate recipients of
these contributions fall within one of the
categories prescribed in the Quran for recipients
of Zakat.’’). Al Rajhi Bank submits
that SAMA did not implement any
duty to investigate Zakat payments after
its meeting with representatives of the National
Security Council and Office of Foreign
Assets Control.
[95] Plaintiffs do not allege that Al
Rajhi Bank provided direct material support
to al Qaeda. Rather, Plaintiffs claim
Al Rajhi Bank aided and abetted the September
11 terrorists by donating to certain
Defendant charities and acting as the bank
for these Defendants. New York law and
the courts interpreting the ATA in Boim
make very clear that concerted action liability
requires general knowledge of the
primary actor’s conduct. See Pittman, 149
F.3d at 123; Boim II, 291 F.3d at 1023;
Boim III, 340 F.Supp.2d at 906. Even
move and launder money. 12(e) Statement
¶ 1. Plaintiffs allege that al Qaeda has perverted
the Zakat and Hararm principles in Islamic
banking to collect and distribute money to
individuals and cells throughout the world.
Id. ¶¶ 4–9; see also Burnett Complaint ¶ 43.
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833
with the opportunity to clarify their claims
against Al Rajhi Bank, the Burnett Plaintiffs
do not offer facts to support their
conclusions that Al Rajhi Bank had to
know that Defendant charities WAMY,
MWL, IIRC, and SJRC were supporting
terrorism. See Rule 12(e) Statement
¶¶ 44–60. ‘‘[A] complaint which consists of
conclusory allegations unsupported by factual
assertions fails even on the liberal
standard of Rule 12(b)(6).’’ De Jesus v.
Sears, Roebuck & Co., 87 F.3d 65, 70 (2d
Cir.1996).
This Court, like Judge Robertson before
it, has found no basis for a bank’s liability
for injuries funded by money passing
through it on routine banking business.
See Burnett I, 274 F.Supp.2d at 109. Similarly,
allegations concerning the Al Rajhi
family cannot support a claim against Al
Rajhi Bank because there is no allegation
that the family members were acting in
furtherance of Al Rajhi Bank business.
Tasso v. Platinum Guild Int’l, 94 Civ.
8288(LAP), 1997 WL 16066, at *6
(S.D.N.Y. Jan. 16, 1997). Plaintiffs attach
to their opposition brief a September 2002
SAMA report summarizing the initiatives
and actions taken by the Kingdom of Saudi
Arabia to combat money laundering and
terrorist financing. See Burnett Plaintiffs’
Opp. to Al Rajhi Motion to Dismiss, Ex. 2.
Neither this document, nor the complaint,
alleges that SAMA or Al Rajhi Bank implemented
‘‘know your customer’’ rules
that Al Rajhi failed to follow with respect
to accounts held by the Defendant charities.
Finally, Plaintiffs’ allegations that Al
Rajhi Bank has connections to Hamas supporters
fails to state a claim because Plaintiffs
have not alleged any relationship between
Hamas and al Qaeda or the terrorist
41. The Ashton Plaintiffs voluntarily dismissed
its claims against the Saudi Cement Company
and the Arabian Cement Company on June
10, 2004. See 03 MD 1570 Docket # 230.
attacks of September 11. Even accepting
all the allegations against Al Rajhi Bank as
true, Plaintiffs have failed to state a claim
that would entitle them to relief. Accordingly,
Al Rajhi Bank’s motion to dismiss
the Burnett complaint is granted in its
entirety.
2. Saudi American Bank
[96] Saudi American Bank is based in
Rihadh, Saudi Arabia and was formed in
1980 pursuant to a royal decree to take
over the then-existing branches of Citibank
in Riyadh and Jeddah. Ashton Complaint
¶ 603; Burnett Complaint ¶ 140. It
is the second largest bank in Saudi Arabia
and has offices in the United States, based
in New York. Ashton Complaint ¶ 604;
Burnett Complaint ¶¶ 141–42. Its chairman,
Abdullahziz Bin Hamad Al Gosaibi is
also the Chairman of the Saudi Cement
Company in Damman, Saudi Arabia. Ashton
Complaint ¶ 605; Burnett Complaint
¶ 142. 41 Ahmed Ali Jumale, purportedly a
close associate of Osama bin Laden and
responsible for helping Defendant Al Baraka
penetrate the United States banking
system, allegedly worked for Saudi American
Bank as a senior employee from 1979
to 1986. Ashton Complaint ¶ 602; Burnett
Complaint ¶ 148. 42
Plaintiffs claim that Saudi American
Bank is the official correspondent of the al
Baraka Bank Lebanon; the Riyadh correspondent
of Defendant Al Faisal Islamic
Bank, which is managed by Defendant
Prince Mohamed; and the Riyadh correspondent
bank for a branch of Defendant
Al Shamal Islamic Bank, which is involved
in the financing of al Qaeda. Ashton Complaint
¶¶ 606, 608; Burnett Complaint
¶¶ 143, 146. It is also the bank for Defen-
42. The Ashton Plaintiffs voluntarily dismissed
their claims against Ahmed Nur Ali Jumale on
June 10, 2004. See 03 MD 1570 Docket
# 230.
834 349 FEDERAL SUPPLEMENT, 2d SERIES
dant Dallah Al Baraka Group, which is
chaired by Defendant Saleh Abdullah Kamel.
Saudi American Bank is close to the
Saudi Bin Laden family, TTT appears on its
financial transactions’’ and provides banking
services to its Sudanese operations.
Ashton Complaint ¶¶ 607–8; Burnett Complaint
¶¶ 144, 146.
‘‘In the year 2000, the Saudi American
Bank participated in the fundraising campaign
in Saudi Arabia for collecting donations
to the ‘heroes of the Al Quds uprising’
(Intifada) by providing a bank account
and facilities to receive donations for a
committee of charity organizations including
Defendants WAMY, IIRO and Al Haramain
Foundation.’’ Ashton Complaint
¶ 609; Burnett Complaint ¶ 147.
The essence of Plaintiffs’ claim is that
through its relationships with other banks
and support of the Saudi Binladin group’s
work in Sudan, Saudi American Bank provided
material support to al Qaeda. It is
not alleged to have done anything to directly
support al Qaeda, Osama bin Laden,
or their terrorist agenda. As the Court
has stated before, there can be no bank
liability for injuries caused by money routinely
passing through the bank. Saudi
American Bank is not alleged to have
known that anything relating to terrorism
was occurring through the services it provided.
The Ashton Plaintiffs have dismissed
their claims against Ahmed Nur Ali
Jumale, allegedly an associate of Osama
bin Laden. To the extent the Burnett
Plaintiffs continue their claims against
him, his employment at Saudi American
Bank from 1979 to 1986 cannot be grounds
for relief. Osama bin Laden did not organize
al Qaeda until the late 1980s, Saudi
American Bank is not alleged to have provided
Jumale with a veil of legitimacy or
shelter. Cf. Burnett I, 274 F.Supp.2d at
104 (finding Al Haramain’s employment of
al Qaeda operative during height of al
Qaeda activity a sufficient allegation of
providing material support). The complaints
have provided Saudi American
Bank with no notice of Plaintiffs’ claims or
grounds for relief. Accordingly, Saudi
American Bank’s motions to dismiss the
Ashton and Burnett complaints are granted
in their entirety.
3. Arab Bank
[97] The Federal Plaintiffs claim Arab
Bank is a financial institution headquartered
in Egypt with branch offices
throughout the world, including New York.
Federal Complaint ¶ 357. Arab Bank
claims it is actually a Jordanian bank
headquartered in Amman, Jordan. Arab
Bank allegedly has ‘‘long provided financial
services and other forms of material
support to terrorist organizations, including
al Qaeda.’’ Federal Complaint ¶ 358.
Further, these Plaintiffs allege that the
September 11 attacks were a ‘‘direct, intended
and foreseeable product of Arab
Bank’s participation in al Qaeda’s jihadist
campaign.’’ Id. ¶¶ 364, 363. These claims
are based on the allegation that Arab Bank
has ‘‘long known that accounts it maintained
were being used to solicit and transfer
funds to terrorist organizations [and
despite this knowledge] Arab Bank has
continued to maintain those accounts.’’ Id.
¶ 362. Specifically, the Federal Plaintiffs
claim Arab Bank accounts have been used
for al Qaeda money transfers throughout
the world and that Arab Bank maintains
accounts for Defendant charities including
IIRO, MWL, WAMY, BIF, Blessed Relief
(Muwaffaq) Foundation, and Al Haramain.
Id. ¶¶ 359, 360. Israeli officials allegedly
have seized funds associated with several
Arab Bank accounts maintained on behalf
of known fronts for Hamas and identified
by Arab Bank employees, ‘‘confirming the
bank’s specific knowledge that accounts it
maintained were being used to sponsor
terrorist activity.’’ Id. ¶ 361.
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Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
835
The Burnett Plaintiffs claim that members
of the Spanish al Qaeda cell used
Arab Bank to make wire transfers. Burnett
Complaint ¶ 138 (alleging Arab Bank
is ‘‘used regularly by al Qaeda’s Spanish
cell for transfers of cash to members of al
Qaeda operating in Germany, Pakistan, Afghanistan,
Lebanon, Yemen, Bosnia, and
elsewhere’’); id. ¶¶ 139, 528 (alleging
$6,400 wire transfer through Arab Bank
from member of Spanish al Qaeda cell to
an extremist associated with Chej Salah in
Spain). These Plaintiffs conclude that
‘‘Arab Bank PLC has materially supported,
aided, and abetted and financed al
Qaeda.’’ Id. ¶ 138.
The Federal and Burnett complaints do
not include any facts to support the inference
that Arab Bank knew or had to know
that it was providing material support to
terrorists by providing financial services to
the charity Defendants or by processing
wire transfers in Spain. The paragraphs
do not allege any involvement by, knowledge
of, or participation in any wrongful
conduct by Arab Bank. These Plaintiffs do
not claim that Arab Bank ignored any
regulations regarding their customer accounts.
Providing routine banking services,
without having knowledge of the terrorist
activities, cannot subject Arab Bank
to liability. While claiming Arab Bank has
ties with known Hamas fronts, the Federal
complaint does not contain any allegation
of a connection between Hamas and Osama
bin Laden, al Qaeda, or the September
11 attacks. A complaint alleging conclusions
without supporting facts will not survive
a Rule 12(b)(6) motion. In re Cross
Media Mktg. Corp. Sec. Litig., 314
F.Supp.2d 256, 261 (S.D.N.Y.2004). The
Federal Plaintiffs asked for leave to amend
their complaint with respect to Arab Bank,
but they have not offered any facts to
support an amendment. Therefore, Arab
Bank’s motions to dismiss the Federal and
Burnett complaints are granted in their
entirety.
4. Al Baraka Investment & Development
Corporation and Saleh Abdullah
Kamel
[98] The Ashton and Burnett complaints
detail nearly identical claims
against Al Baraka Investment & Development
Corp. (‘‘Al Baraka’’) and Saleh Abdullah
Kamel. Ashton Complaint ¶¶ 583–
601; Burnett Complaint ¶¶ 47–66. Saleh
Abdullah Kamel was born in Saudi Arabia
in 1941 and founded Dallah Albaraka
Group LLC in 1969. Ashton Complaint
¶ 587; Burnett Complaint ¶ 51. Dallah Albaraka
is a diversified conglomerate based
in Jeddah and includes twenty-three banks
in Arab and Islamic countries. Ashton
Complaint ¶ 588; Burnett Complaint ¶ 52.
Dallah Albaraka is a shareholder of Aqsa
Islamic Bank, a bank that Israel has refused
to approve, ‘‘citing its obvious ties
with known terrorists.’’ Ashton Complaint
¶¶ 596, 597; Burnett Complaint ¶¶ 60, 61.
One of Dallah Albaraka’s subsidiaries is
Dallah Avco Trans–Arabia Co., based in
Jeddah. Ashton Complaint ¶ 589; Burnett
Complaint ¶ 53. Omar al Bayoumi, a suspect
wanted by the FBI in connection with
the September 11 attacks, was the Assistant
to the Director of Finance for Dallah
Avco and paid rent in San Diego for the
house occupied by two September 11 hijackers
of American Airlines Flight 77.
Ashton Complaint ¶¶ 590, 592; Burnett
Complaint ¶¶ 55, 54. Mr. Kamel is also
one of three founders of Defendant Al
Shamal Islamic Bank. Ashton Complaint
¶ 594; Burnett Complaint ¶ 58.
Dallah Albaraka’s financial arm is Al
Baraka Investment & Development Corp.,
a wholly owned subsidiary based in Jeddah.
Ashton Complaint ¶ 593; Burnett
Complaint ¶ 57. Al Baraka is a holding
company with 43 subsidiaries, which are
836 349 FEDERAL SUPPLEMENT, 2d SERIES
mainly banks in Arab and Islamic countries.
Ashton Complaint ¶ 583; Burnett
Complaint ¶ 47. It also has banks in Chicago,
Illinois and Houston, Texas. Burnett
Complaint ¶ 47. Al Baraka allegedly
provided financial infrastructures in Sudan
to Osama bin Laden through Defendant
charity Al Haramain. Ashton Complaint
¶¶ 584, 585, 598; Burnett Complaint ¶¶ 48,
49, 62.
Plaintiffs do not offer any factual allegations
against Al Baraka or Mr. Kamel to
withstand their motions to dismiss. The
majority of the complaints’ allegations regarding
Al Baraka actually concern Dallah
Albaraka. The specific allegations against
Al Baraka are that through Al Haramain it
provided financial infrastructures in Sudan,
it provided support to Al Haramain,
and it is present in the Sudan banking
business through banks it holds. The
complaints do not allege that Al Baraka
knew or had any reason to know that Al
Haramain was supporting terrorism, nor
do they allege facts from which such an
inference could be drawn.
The allegation that an employee of a
Dallah Albaraka subsidiary financially supported
two of the hijackers in San Diego
does not translate into an allegation that
Mr. Kamel provided material support to
terrorism or aided and abetted those that
provided material support. An employee’s
actions cannot be a basis for employer
liability unless the employee was acting in
furtherance of the employer’s business.
Tasso, 1997 WL 16066, at *6. There is no
allegation that Mr. Kamel knew Mr. al
Bayoumi or directed anyone at the Della
Albaraka subsidiary to support al Qaeda or
the hijackers. Similarly, the allegation
that Mr. Kamel was one of three founders
of Al Shamal Islamic Bank in 1983, without
additional allegations, does not state a
claim for relief. Thus, the Ashton and
Burnett claims against Al Baraka and Mr.
Kamel are dismissed in their entirety.
5. NCB
[99] The Ashton and Burnett Plaintiffs’
allegations against NCB are outlined
in Part I.B.4. The Court finds it would be
premature to analyze Plaintiffs’ largely
conclusory claims against NCB under Rule
12(b)(6) at this time. NCB may be immune
from suit and further discovery if it
is found to be an instrumentality of the
Kingdom of Saudi Arabia and its actions
do not fit within the FSIA’s exceptions to
immunity. Additionally, the Court is not
yet convinced that it would be proper to
exercise personal jurisdiction over NCB.
Accordingly, NCB’s motion to dismiss for
failure to state a claim is denied without
prejudice. NCB may renew its motion
upon completion of the limited jurisdictional
discovery—first with respect to its instrumentality
status—outlined by the
Court above.
6. Saudi Binladin Group
[100] The Ashton and Burnett allegations
against the SBG are outlined in Part
II.C.8. The same allegations that warrant
limited jurisdictional discovery to investigate
whether SBG purposefully directed
its activities at the United States and its
contacts with the United States preclude
dismissal under 12(b)(6) at this time. SBG
provided construction support to Osama
bin Laden. Ashton Complaint ¶¶ 550,
552–53; Burnett Complaint ¶¶ 319–22. A
branch of SBG purportedly provided shelter
to an al Qaeda operative. Ashton
Complaint ¶ 555; Burnett Complaint ¶ 324.
SBG has, at some point, had a close relationship
with Osama bin Laden, but the
complaints do not specify when or whether
the relationship continues. While these
allegations are certainly not sufficient to
reach a jury, if Plaintiffs demonstrate that
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
837
this Court has personal jurisdiction over
SBG they are entitled the opportunity to
develop these claims. SBG’s motions to
dismiss the Ashton and Burnett complaints
for failure to state a claim are therefore
denied without prejudice.
7. SAAR Network
[101] The Federal Plaintiffs’ allegations
against the SAAR Network are outlined
in Part II.C.9. The Court’s analysis
of the SAAR Network’s arguments in favor
of 12(b)(6) dismissal depend on a predicate
finding of which entities are subject
to this Court’s personal jurisdiction and
which entities—and under what circumstances—transferred
money to terror
fronts. Accordingly, the SAAR Network’s
motion to dismiss is denied without prejudice.
It may be renewed upon completion
of personal jurisdiction discovery.
8. Adel A.J. Batterjee
[102] The Burnett Plaintiffs’ allegations
against Mr. Batterjee are outlined in
Part II.C.10. For substantially the same
reasons the Court found it had personal
jurisdiction over Mr. Batterjee, it denies
his motion to dismiss for failure to state a
claim. The allegations against him and his
designation as a terrorist are sufficient to
permit the inference that he provided support
to al Qaeda directly or through Al
Shamal Islamic Bank, BIF, or WAMY.
Burnett Complaint ¶¶ 75–76, 183–84, 196,
199, 230; Exec. Order 13224.
IV. Conclusion and Order
For the reasons explained above, Prince
Sultan’s motions to dismiss the Burnett,
Ashton, Tremsky, Salvo, Barrera, and
Federal Insurance complaints for lack of
subject matter and personal jurisdiction
are granted. Prince Turki’s motions to
dismiss the Burnett, Ashton, Tremsky,
Salvo, Barrera, and Federal Insurance
complaints for lack of subject matter and
personal jurisdiction are granted. The
Kingdom of Saudi Arabia’s motion to dismiss
the Federal Insurance and Vigilant
Insurance complaints for lack of subject
matter jurisdiction are granted. Prince
Mohamed’s motions to dismiss the Ashton
and Federal Insurance complaints for lack
of personal jurisdiction are granted. Mohammad
Abdullah Aljomaih’s motion to
dismiss the Burnett complaint for lack of
personal jurisdiction is granted. Sheikh
Hamad al Husani’s motion to dismiss the
Burnett complaint for lack of personal jurisdiction
is granted. Abdulrahman bin
Mahfouz’s motion to dismiss the Burnett
complaint for lack of personal jurisdiction
is granted. Tariq, Omar, and Bakr Binladin’s
motion to dismiss the Burnett complaint
for lack of personal jurisdiction is
granted. Al Rajhi Bank’s motion to dismiss
the Burnett complaint for failure to
state a claim is granted. Saudi American
Bank’s motions to dismiss the Burnett and
Ashton complaints for failure to state a
claim are granted. Arab Bank’s motions
to dismiss the Burnett and Federal Insurance
complaints for failure to state a claim
are granted. Al Baraka and Saleh Abdullah
Kamel’s motions to dismiss the Burnett
and Ashton complaints for failure to state
a claim are granted. NCB’s motions to
dismiss the Burnett and Ashton complaints
for lack of subject matter and personal
jurisdiction are denied without prejudice.
The Burnett and Ashton negligence claims
against NCB are dismissed for failure to
state a claim. The Saudi Binladin Group’s
motions to dismiss the Burnett and Ashton
complaints for lack of personal jurisdiction
and failure to state a claim are denied
without prejudice, but the TVPA and negligence
claims against SBG are dismissed.
The SAAR Network’s motion to dismiss
the Federal complaint for lack of personal
jurisdiction and failure to state a claim is
denied without prejudice. T he RICO,
838 349 FEDERAL SUPPLEMENT, 2d SERIES
TVPA, assault and battery, intentional infliction
of emotional distress, and negligence
claims against the SAAR Network
are dismissed. Adel Batterjee’s motion to
dismiss the Burnett complaint is denied.
So ordered.
,
Lawrence AGEE Plaintiff,
v.
Richard GRUNERT, M.D., Chris Fukuda,
M.D., Fletcher Allen Health Care,
Inc., and Copley Hospital Defendants.
No. 2:00–CV–169.
United States District Court,
D. Vermont.
Oct. 1, 2004.
Background: Physician brought federal
statutory and state contract and tort
claims against former partners in medical
group practice and others, after partners
reported his alleged mental unfitness to
practice medicine and placed him on disability
leave. Partners moved for summary
judgment, and physician cross-moved for
summary judgment.
Holdings: The District Court, Sessions,
Chief Judge, held that:
(1) under Vermont law, partners did not
make false and defamatory statements
about physician in reporting his conduct;
(2) partners’ statements were conditionally
privileged;
(3) physician did not have claim for ‘‘restriction
of trade’’ against doctors who
raised legitimate concerns about his
fitness to practice;
(4) partners’ behavior in reporting physician’s
suspected mental unfitness was
not extreme and outrageous conduct
that intentionally inflicted emotional
distress;
(5) partners did not negligently inflict
emotional distress;
(6) physician failed to exhaust administrative
remedies on ADA claim; and
(7) physician was not employee for purposes
of ADA claim.
Motions granted in part and denied in
part.
1. Federal Civil Procedure O2554
On defendants’ motion for summary
judgment, district court would not consider
new claims raised for first time in plaintiff’s
memorandum in opposition to motion.
Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.
2. Libel and Slander O1
Under Vermont law, the elements of
defamation are: (1) a false and defamatory
statement concerning another; (2) some
negligence, or greater fault, in publishing
the statement; (3) publication to at least
one third person; (4) lack of privilege in
the publication; (5) special damages, unless
actionable per se; and (6) some actual
harm so as to warrant compensatory damages.
3. Libel and Slander O30
Under Vermont law, partners in medical
practice did not make false and defamatory
statements in telling hospitals that
physician had been determined to be disabled
and that he was on disability leave;
partners were required under ethics code
to question physician’s fitness when he
attempted surgery despite not having slept
for weeks and while on sleep medication,
and their group practice agreement provided
for his acquiescence in determination