Abdulaziz v. McKinsey & Co.
| Decision Date | 22 September 2021 |
| Docket Number | 21 Civ. 1219 (LGS) |
| Court | U.S. District Court — Southern District of New York |
| Parties | OMAR ABDULAZIZ, Plaintiff, v. MCKINSEY & COMPANY, INC. et al., Defendants. |
Defendants McKinsey & Company, Inc., McKinsey & Company, Inc. United States and McKinsey & Company, Inc. International (collectively, “McKinsey”) move to dismiss the Complaint of Plaintiff Omar Abdulaziz for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted.
The following facts are taken from the Complaint and are assumed to be true for purposes of this motion. See R.M. Bacon LLC v. Saint-Gobain Performance Plastics Corp., 959 F.3d 509, 512 (2d Cir. 2020).
Abdulaziz is a political dissident from the Kingdom of Saudi Arabia (“KSA”) residing in Canada. From 2009 onward Abdulaziz posted online political commentary critical of KSA, addressing the ruling regime's corruption, foreign policy, governance and human rights violations. In 2013, Abdulaziz applied for asylum in Canada after KSA cancelled his salary and school scholarship for what he believed was his criticism of KSA. Abdulaziz was a close political ally and friend of Jamaal Khashoggi. Government agencies have concluded that in October 2018, KSA agents, acting at the direction of Saudi crown prince Mohammad Bin Salman (“MBS”), tortured and killed Khashoggi in the Saudi consulate in Istanbul and dismembered his body.
In December 2016, McKinsey prepared a PowerPoint presentation (the “Report”) that identified Plaintiff as one of the three most influential dissidents using Twitter to criticize an austerity plan forwarded by MBS. McKinsey labeled the Report “Major influencers in Saudi driving discussion regarding austerity measures.” The Report noted that Abdulaziz had “182.65 K” followers and described him as a “Saudi influencer with high following, mainly uses Twitter and Snapchat.” The Report also noted that “Omar [Abdulaziz] has a multitude of negative tweets on topics such as austerity and the royal decrees.” One of the other two individuals identified in the Report as a major influencer on austerity measures was subsequently imprisoned. The other disappeared. A separate dissenter whose tweet critical of KSA was quoted in the Report was imprisoned in March 2017. The McKinsey client for whom the report was prepared has not been publicly identified. McKinsey has a long history of extensively advising KSA government agencies.
Approximately seventeen months after the report was prepared, in May 2018, Abdulaziz declined KSA agents' requests to come to the KSA embassy in Ottawa, Canada, after those agents requested that he cease his dissident activity. In July and August of 2018, KSA agents raided Abdulaziz's family home in Jeddah, Saudi Arabia and imprisoned his two brothers. His brothers remain imprisoned, where they are regularly tortured and have called Abdulaziz to ask him to stop his political activities. Abdulaziz's friends and family have been subjected to travel bans that prevent them from leaving KSA, and KSA sent agents to Canada with the intent of assassinating Abdulaziz and another Saudi dissident. That attempt was foiled by law enforcement.
In October 2018, the existence of the Report was made public in a New York Times article, which noted KSA activities against the three dissidents identified therein. Abdulaziz first learned of the Report from the New York Times article.
The Complaint was originally filed in the Supreme Court, County of New York, on February 2, 2021, and timely removed to federal court on the basis of diversity jurisdiction.[1]
The Complaint asserts four causes of action against McKinsey for:
For each claim, Abdulaziz asserts that McKinsey's wrongful conduct directly injured him by forcing him into hiding, causing severe emotional distress, forcing him to withdraw from university and forego regular employment. The Complaint also asserts that McKinsey's wrongful conduct caused KSA and MBS to harm Abdulaziz by using unconscionable tactics to pressure him, including actions directed at him and arresting and torturing his friends and family. The Complaint seeks monetary damages for lost income, pain and suffering, and punitive damages.
On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party, Montero v. City of Yonkers, 890 F.3d 386, 391 (2d Cir. 2018), but gives “no effect to legal conclusions couched as factual allegations.” Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017) (quoting Starr v. Sony BMG Music Ent., 592 F.3d 314, 321 (2d Cir. 2010)). To withstand a motion to dismiss, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. It is not enough for a plaintiff to allege facts that are consistent with liability; the complaint must “nudge[ ]” claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. ShaarFund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). In ruling on a motion to dismiss, the court may consider: (1) the complaint; (2) documents attached to the complaint, quoted therein or incorporated by reference; and (3) documents upon which the plaintiff relies and which are integral to the complaint. Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011); accordBergesen v. Manhattanville College, No. 20 Civ. 3689, 2021 WL 3115170, at *2 (S.D.N.Y. July 20, 2021).
The causes of action for IIED and prima facie tort (to the extent the latter asserts an intentional tort) are time barred by the one-year statute of limitations. For both claims, the Complaint alleges that McKinsey provided the Report to KSA and/or MBS some time after its creation in December 2016, and injured Plaintiff once he became aware of the Report from the New York times article in October 2018. Plaintiff agrees that his causes of action accrued in October 2018. This action was commenced over two years later in February 2021.
Under New York law, [2] the statute of limitations for IIED and other intentional torts is one year. See Trayvilla v. Japan Airlines, 111 N.Y.S.3d 224, 225 (2d Dep't 2019) (citing CPLR § 215(3)). Claims sounding in negligence are normally subject to a three-year statute of limitations. See Durstenberg v. Electrolux Home Prod., Inc., 120 N.Y.S.3d 313, 314 (1st Dep't 2020) (citing N.Y. CPLR § 214) (negligence and NIED); Demian v. Calmenson, 66 N.Y.S.3d 462, 463 (1st Dep't 2017) (prima facie tort). Where claims for negligence, NIED or prima facie tort are premised only on intentional conduct, a one-year limitations period applies. See Trayvilla, 111 N.Y.S.3d at 225 (negligence and NIED); 10 Ellicott Square Ct. Corp. v. Violet Realty, Inc., 916 N.Y.S.2d 705, 708 (4th Dep't 2011) (prima facie tort).
The statute of limitations begins to run when a tort cause of action accrues -- “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief.” B.F. v. Reproductive Med. Assoc. of New York, LLP, 92 N.E.3d 766, 769-770 (N.Y. 2017). “As with other torts in which damage is an essential element, the claim 'is not enforceable until damages are sustained.'” IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140 (2009) (quoting Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)). The Complaint alleges that Abdulaziz was first damaged -- i.e., suffered emotional distress -- in October 2018 when he read the New York Times article that made him aware of the Report.
The Complaint's claim for IIED (Count One) is barred by New York's one-year statute of limitations for intentional torts, as the IIED claim accrued in October 2018 -- outside the limitations period. In response, Abdulaziz invokes the continuing tort doctrine, citing the Complaint's allegations that he and third parties continue to suffer the complained-of harm to this day.
New York's continuing tort doctrine tolls the statute of limitations based on “wrongful conduct occurring more than one year prior to commencement of the action, so long as the final actionable event...
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