896 F.3d 501 (D.C. Cir. 2018), 16-7142, Kaplan v. Central Bank of Islamic Republic of Iran

Docket Nº:16-7142, 16-7122
Citation:896 F.3d 501, 101 Fed.R.Serv.3d 298
Opinion Judge:Srinivasan, Circuit Judge
Party Name:Chaim KAPLAN, Individually and as Natural Guardian of Plaintiffs M.K.(1), A.L.K., M.K.(2), C.K. and E.K., et al., Appellants v. CENTRAL BANK OF THE ISLAMIC REPUBLIC OF IRAN, also known as Bank Markazi Jomhouri Islami Iran, et al., Appellees Chaim Kaplan, et al., Appellants v. Hezbollah, also known as Hizbullah, also known as Hizbollah, also...
Attorney:Meir Katz, Baltimore, argued the cause for appellants. With him on the briefs was Robert J. Tolchin, Brooklyn. Jeremy D. Frey, Philadelphia, argued the cause for appellees. With him on the brief was Matthew D. Foster, Washington. Anthony F. Shelley, Washington, appointed by the court, argued the ...
Judge Panel:Before: Kavanaugh and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge. Edwards, Senior Circuit Judge, concurring:
Case Date:July 20, 2018
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 501

896 F.3d 501 (D.C. Cir. 2018)

101 Fed.R.Serv.3d 298

Chaim KAPLAN, Individually and as Natural Guardian of Plaintiffs M.K.(1), A.L.K., M.K.(2), C.K. and E.K., et al., Appellants

v.

CENTRAL BANK OF THE ISLAMIC REPUBLIC OF IRAN, also known as Bank Markazi Jomhouri Islami Iran, et al., Appellees Chaim Kaplan, et al., Appellants

v.

Hezbollah, also known as Hizbullah, also known as Hizbollah, also known as Hezballah, also known as Hizballah and Democratic People’s Republic of Korea, also known as North Korea, Appellees

Nos. 16-7142, 16-7122

United States Court of Appeals, District of Columbia Circuit

July 20, 2018

Argued September 12, 2017

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Appeal from the United States District Court for the District of Columbia, (No. 1:10-cv-00483), (No. 1:09-cv-00646)

Meir Katz, Baltimore, argued the cause for appellants. With him on the briefs was Robert J. Tolchin, Brooklyn.

Jeremy D. Frey, Philadelphia, argued the cause for appellees. With him on the brief was Matthew D. Foster, Washington.

Anthony F. Shelley, Washington, appointed by the court, argued the cause as amicus curiae in support of the portions of the District Court’s judgment at issue on appeal. With him on the brief were Ian A. Herbert and Adam W. Braskich, Washington.

Before: Kavanaugh[*] and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.

OPINION

Srinivasan, Circuit Judge

These cases arise from a barrage of rocket attacks launched by Hezbollah into northern Israel in the summer of 2006. Plaintiffs are a group of American, Israeli, and Canadian citizens who sued Hezbollah and two foreign banks for injuries sustained during the attacks. In one action, the American plaintiffs allege that Hezbollah’s rocket attacks amounted to acts of international terrorism, in violation of the Anti-Terrorism Act (ATA). In a second action, all of the plaintiffs accuse the banks of funding Hezbollah’s attacks, in violation of both the ATA and the Alien Tort Statute (ATS).

The district court dismissed both complaints. The court concluded that the ATA’s so-called act-of-war exception precluded the claims under that statute, and that the presumption against extraterritoriality barred the ATS claims.

We vacate the district court’s dismissal with respect to the ATA claims and remand for further proceedings. We conclude that the district court must first determine that it has personal jurisdiction over the defendants before applying the

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statute’s act-of-war exception. We affirm the district court’s dismissal of the claims under the ATS based on the Supreme Court’s recent decision in Jesner v. Arab Bank, PLC, __ U.S. __, 138 S.Ct. 1386, 200 L.Ed.2d 612 (2018), which holds that foreign corporations (like the bank defendants here) are not subject to liability under that statute.

I.

The complaints in these cases contain the following allegations, which we assume are true given that the claims before us on appeal were dismissed based on the alleged facts. See English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).

On July 12, 2006, Hezbollah militants left Lebanon, crossed the Israeli border, and kidnapped and killed several Israeli soldiers. Israel responded by mounting a ground offensive in Lebanon and deploying a bombing campaign against Hezbollah. Hezbollah then initiated a campaign of rocket attacks, firing thousands of unguided rockets into civilian populations in northern Israel, striking cities, towns, and villages. The conflict ended on August 14, 2006, when the United Nations brokered a cease-fire between Hezbollah, Israel, and Lebanon. Over the course of the 34-day conflict, numerous persons lost their lives, including more than 1,000 Lebanese civilians, between 250 and 500 members of Hezbollah, 119 Israeli soldiers, and 43 Israeli civilians.

In 2009 and 2010, plaintiffs filed two separate actions to recover for their injuries from Hezbollah’s rocket attacks. In the first action, a group of American plaintiffs brought Anti-Terrorism Act claims against Hezbollah, Foreign Sovereign Immunities Act claims against North Korea for funding the rocket attacks, and common law tort claims against both defendants. In the second action, the same American plaintiffs brought ATA claims against Bank Saderat PLC for transferring funds from Iran to Hezbollah, and Foreign Sovereign Immunities Act claims against Iran, the Central Bank of Iran, and Bank Saderat Iran for supporting the rocket attacks. The second action also included claims by a group of non-American plaintiffs against Bank Saderat Iran and Bank Saderat PLC under the Alien Tort Statute. In addition, all plaintiffs in the second action raised claims under Israeli tort law against Bank Saderat Iran and Bank Saderat PLC.

The district court largely addressed the two cases together. Because Hezbollah and North Korea failed to appear after being served, the plaintiffs moved for a default judgment against those defendants. Bank Saderat Iran and Bank Saderat PLC both appeared and moved to dismiss the claims against them for lack of subject-matter jurisdiction or personal jurisdiction, and for failure to state a claim.

On August 20, 2013, the district court dismissed the Anti-Terrorism Act claims (which had been brought against Hezbollah and Bank Saderat PLC), holding that the ATA’s act-of-war exception precluded liability. The court also dismissed the Alien Tort Statute claims (which had been brought against Bank Saderat PLC and Bank Saderat Iran), based on the presumption against extraterritoriality. Kaplan v. Cent. Bank of Islamic Republic of Iran, 961 F.Supp.2d 185, 204-05 (D.D.C. 2013). And the court dismissed the Foreign Sovereign Immunities Act claims against Bank Saderat Iran, because the bank was not the "agency or instrumentality of a foreign state." Id. at 198-99.

On July 24, 2014, the district court issued an opinion concluding that Iran and North Korea, but not the Central Bank of Iran, had materially supported Hezbollah’s attacks in violation of the Foreign Sovereign Immunities Act. On September 30,

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2016, after further proceedings on the claims against Iran and North Korea, the district court entered a default judgment against those defendants, awarding the plaintiffs more than $169 million in compensatory and punitive damages.

The plaintiffs now appeal the dismissal of their Anti-Terrorism Act claims against Hezbollah and Bank Saderat PLC, as well as the dismissal of their Alien Tort Statute claims against Bank Saderat PLC and Bank Saderat Iran. Because Hezbollah had not entered an appearance, we appointed an amicus curiae to present arguments supporting the portions of the district court’s judgment at issue on appeal.

II.

We initially consider two challenges to our appellate jurisdiction. Under 28 U.S.C. § 1291, we may review "final decisions" of the district courts in civil cases if an appeal is taken within thirty days of entry of the judgment or order being challenged. See Fed. R. App. P. 4(a)(1)(A). Bank Saderat PLC and Bank Saderat Iran (the Banks) argue that plaintiffs’ appeal is untimely because the district court entered its order dismissing the claims against the Banks on August 20, 2013, more than three years before the plaintiffs (on November 27, 2016) filed their notice of appeal concerning those claims. Amicus, for its part, argues that plaintiffs’ appeal of the dismissal of the claims against Hezbollah is premature because the district court’s September 30, 2016, order was not a "final" decision within the meaning of Section 1291. We disagree on both counts.

A.

We first address the timeliness of the plaintiffs’ appeal of the August 2013 dismissal of their claims against the Banks. Federal Rule of Civil Procedure 54(b) governs the entry of final judgment in a case involving multiple claims and parties. In order to enter "a final judgment as to one or more, but fewer than all, claims or parties," a district court must "expressly determine[ ] that there is no just reason for delay." Fed.R.Civ.P. 54(b). Otherwise, any decision "that adjudicates ... the rights and liabilities of fewer than all the parties" is not a final, appealable judgment. Id.

Relatedly, our court has determined that unserved defendants "are not ‘parties’ within the meaning of Rule 54(b)." Cambridge Holdings Grp., Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1360 (D.C. Cir. 2007). Therefore, "a district court order disposing of all claims against all properly served defendants" generally constitutes a final judgment "even if claims against those not properly served remain unresolved." Id. at 1360-61.

Relying on that aspect of our decision in Cambridge, the Banks contend that the plaintiffs appeal is untimely. The Banks observe that, at the time...

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