In re Terrorist Attacks on September 11, 2001 (Al Rajhi Bank), 041613 FED2, 11-3294-cv(L)

Docket Nº:11-3294-cv(L), 11-3407-cv, 11-3490-cv, 11-3494-cv, 11-3495-cv, 11-3496-cv, 11-3500-cv, 11-3501-cv, 11-3502-cv, 11-3503-cv, 11-3505-cv, 11-3506-cv, 11-3507-cv, 11-3508-cv, 11-3509-cv, 11-3510-cv, 11-3511-cv, 12-949-cv, 12-1457-cv, 12-1458-cv, 12-1459-cv.
Opinion Judge:Jos
Party Name:In re Terrorist Attacks on September 11, 2001 (Al Rajhi Bank, et al.) v. Al Rajhi Bank, Saudi American Bank, Dar Al-Maal Al-Islami Trust, Saleh Abdullah Kamel, Dallah Al Baraka Group LLC, Defendants-Appellees. [*] John Patrick O'Neill, Jr., et al., Plaintiffs-Appellants,
Attorney:Sean P. Carter (Stephen A. Cozen, Elliott R. Feldman, Cozen O'Connor, Philadelphia, PA; Ronald L. Motley, Robert T. Haefele, Motley Rice, LLC, Mount Pleasant, SC; Carter G. Phillips, Richard Klingler, Sidley Austin, LLP, Washington, DC; Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher & H...
Judge Panel:Before: CABRANES, RAGGI, Circuit Judges, and RAKOFF, District Judge
Case Date:April 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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In re Terrorist Attacks on September 11, 2001 (Al Rajhi Bank, et al.)

John Patrick O'Neill, Jr., et al., Plaintiffs-Appellants,

v.

Al Rajhi Bank, Saudi American Bank, Dar Al-Maal Al-Islami Trust, Saleh Abdullah Kamel, Dallah Al Baraka Group LLC, Defendants-Appellees. [*]

Nos. 11-3294-cv(L), 11-3407-cv, 11-3490-cv, 11-3494-cv, 11-3495-cv, 11-3496-cv, 11-3500-cv, 11-3501-cv, 11-3502-cv, 11-3503-cv, 11-3505-cv, 11-3506-cv, 11-3507-cv, 11-3508-cv, 11-3509-cv, 11-3510-cv, 11-3511-cv, 12-949-cv, 12-1457-cv, 12-1458-cv, 12-1459-cv.

United States Court of Appeals, Second Circuit

April 16, 2013

Sean P. Carter (Stephen A. Cozen, Elliott R. Feldman, Cozen O'Connor, Philadelphia, PA; Ronald L. Motley, Robert T. Haefele, Motley Rice, LLC, Mount Pleasant, SC; Carter G. Phillips, Richard Klingler, Sidley Austin, LLP, Washington, DC; Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher & Hayes, LLP, New York, NY; Robert M. Kaplan, Ferber Chan Essner & Coller, LLP, New York, NY; James P. Kreindler, Justin T. Green, Andrew J. Maloney, III, Kreindler & Kreindler LLP, New York, NY; Jerry S. Goldman, Anderson Kill & Olick, P.C., New York, NY; Chris Leonardo, Adams Holcomb LLP, Washington, DC, on the brief), Cozen O'Connor, Philadelphia, PA, for Plaintiffs-Appellants on Rule 12(b)(6) Issues.

Christopher M. Curran (Nicole Erb, Matthew S. Leddicotte, on the brief), White & Case LLP, Washington, DC, for Defendant-Appellee Al Rajhi Bank.

Henry Weisburg, Brian H. Polovoy, Shearman & Sterling LLP, New York, NY, for Defendant-Appellee Saudi American Bank.

James J. McGuire, Timothy J. McCarthy, Aimee R. Kahn, Daniel A. Mandell, Mishcon de Reya New York LLP, New York, NY, for Defendant-Appellee Dar Al-Maal Al-Islami Trust.

Martin F. McMahon, Martin F. McMahon & Associates, Washington, DC, for Defendants- Appellees Dallah Al Baraka Group LLC & Saleh Abdullah Kamel. 1

Before: CABRANES, RAGGI, Circuit Judges, and RAKOFF, District Judge [**]

These appeals involve claims by families and estates of the victims of the September 11, 2001 terrorist attacks, individuals injured by the attacks, and various commercial entities that incurred damages and losses as a result of the attacks (jointly, "plaintiffs"). Before us are claims under the Anti-Terrorism Act ("ATA"), the Alien Tort Statute ("ATS"), the Torture Victim Protection Act ("TVPA"), as well as various common law tort claims against purported charities, financial institutions, and other individuals who allegedly provided support and resources to Osama Bin Laden and al Qaeda. The United States District Court for the Southern District of New York (George B. Daniels, Judge), granted judgment in favor of seventy-six defendants, dismissing them on various grounds, including: (1) lack of personal jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) immunity from suit pursuant to the Foreign Sovereign Immunities Act. This opinion addresses only the five defendants who prevailed before the District Court on the ground that plaintiffs had failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (jointly, "Rule 12(b)(6) defendants").

Plaintiffs assert that the District Court erred by dismissing their ATA, ATS, TVPA, and common law tort claims. Their arguments, however, are not persuasive. First, in light of our recent decision in Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013), the ATA claims properly were dismissed because plaintiffs (1) cannot allege aiding-and-abetting claims under the ATA, and (2) do not make the necessary allegation under the ATA that the actions of the Rule 12(b)(6) defendants proximately caused their injuries. Second, plaintiffs' ATS claims are without merit because no universal norm against "terrorism" existed under customary international law (i.e., the "law of nations") as of September 11, 2001, as is required by the ATS. Third, the TVPA claims fail in light of the Supreme Court's decision in Mohamad v. Palestinian Authority, 132 S.Ct. 1702, 1710-11 (2012), which held that the TVPA only imposes liability on natural persons, and because plaintiffs do not make the necessary allegation that Saleh Abdullah Kamel—the sole natural person defendant—acted under color of law. Fourth, and finally, the District Court properly dismissed the common law tort claims because plaintiffs failed to make the necessary allegation that the Rule 12(b)(6) defendants owed them a duty or that the actions of the Rule 12(b)(6) defendants proximately caused their injuries.

José A. Cabranes, Circuit Judge

These appeals involve claims by families and estates of the victims of the September 11, 2001 terrorist attacks, individuals injured by the attacks, and various commercial entities that incurred damages and losses as a result of the attacks (jointly, "plaintiffs"). Before us are claims under the Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333, the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note, as well as various common law tort claims against purported charities, financial institutions, and other individuals who are alleged to have provided support and resources to Osama Bin Laden and al Qaeda. The United States District Court for the Southern District of New York (George B. Daniels, Judge), granted judgment in favor of seventy-six defendants, dismissing them on various grounds, including: (1) lack of personal jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) immunity from suit pursuant to the Foreign Sovereign Immunities Act ("FSIA").

Due to the logistical challenges associated with these appeals, we address the various issues they raise in separate decisions. This opinion addresses only the five defendants who prevailed before the District Court on the ground that plaintiffs had failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). These defendants are: (1) Al Rajhi Bank, (2) Saudi American Bank, (3) Saleh Abdullah Kamel, (4) Dallah al Baraka Group LLC, and (5) Dar Al-Maal Al-Islami ("DMI") Trust (jointly, "Rule 12(b)(6) defendants"). In separate opinions filed today, we address the claims against the defendants dismissed by the District Court for lack of personal jurisdiction, as well as the claims against the defendants dismissed by the District Court for want of jurisdiction pursuant to the FSIA.

In this appeal, we are asked to consider whether the District Court properly dismissed plaintiffs' ATA...

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