Amidax Trading Grp. v. S.W.I.F.T. SCRL

Decision Date19 December 2011
Docket NumberDocket No. 09–3293–cv.
Citation671 F.3d 140
PartiesAMIDAX TRADING GROUP, on behalf of itself and all others similarly situated, Plaintiff–Appellant, v. S.W.I.F.T. SCRL, S.W.I.F.T. Pan–American Inc., S.W.I.F.T., Inc., John Snow, in his personal capacity, Stuart Levey, in his personal capacity, David S. Cohen, * in his professional capacity, United States Department of Treasury, George W. Bush, in his personal capacity, Barack Obama, in his professional capacity, Central Intelligence Agency, Richard Cheney, in his personal capacity, Joseph R. Biden, Jr., in his professional capacity, George Tenet, in his personal capacity, Michael Hayden, in his personal capacity, Leon E. Panetta, in his personal capacity, David Petraeus, in his professional capacity, Henry M. Paulson, Jr., in his personal capacity, and Timothy F. Geithner, in his professional capacity, Defendants–Appellees.**
CourtU.S. Court of Appeals — Second Circuit


Carl J. Mayer, Mayer Law Group, LLC, Princeton, NJ, Steven E. Schwarz, Chicago, IL, Bruce I. Afran, Princeton, NJ, for PlaintiffAppellant.

Andrew S. Marovitz (Catherine A. Bernard, on the brief), Mayer Brown LLP, Chicago, IL, Andrew H. Schapiro, Scott A. Chesin, Mayer Brown LLP, New York, NY, Shawn J. Chen, Cleary, Gottlieb, Steen & Hamilton LLP, Washington, DC, for DefendantsAppellees.

Matthew L. Schwartz, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Federal Appellees.

Before: LEVAL, B.D. PARKER, HALL, Circuit Judges.


PlaintiffAppellant, Amidax Trading Group (Amidax), appeals from a February 17, 2009 judgment of the United States District Court for the Southern District of New York (Castel, J.) dismissing its complaint for lack of subject matter jurisdiction and from the district court's April 23, 2009 order denying Amidax's motion for reconsideration. On appeal, Amidax argues that the district court erred by holding that Amidax lacked standing, by denying jurisdictional discovery, and by denying Amidax leave to amend its complaint. We hold that the district court correctly determined that Amidax did not have Article III standing to assert its claims. Additionally, we hold that the court did not abuse its discretion in denying Amidax's request for jurisdictional discovery and for leave to amend its complaint. Accordingly, we AFFIRM the judgment of the district court dismissing Amidax's complaint for lack of subject matter jurisdiction as well as its order denying Amidax's postjudgment motion for reconsideration.


Amidax is a New Jersey-based sole proprietorship that sells household cleaning products to customers throughout the world. Compl. ¶ 10. Based in Belgium, the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) “provid[es] electronic instructions on how to transfer money among 7,800 financial institutions worldwide.” Id. Ex. C. Although SWIFT provides a messaging service and is not a bank, it is nonetheless considered the “nerve center of the global banking industry,” routing more than 11 million transactions each day “between banks, brokerages, stock exchanges and other institutions.” Id.

In response to the September 11, 2001 terrorist attacks the federal government initiated a classified operation known as the Terrorist Finance Tracking Program (“TFTP”). Id. Through the TFTP, operated by the Central Intelligence Agency (“CIA”) and overseen by the United States Treasury Department (“Treasury”), the government was granted access to SWIFT records by administrative subpoenas issued by the Office of Foreign Asset Control (“OFAC”). Id. The information requested by the subpoenas allowed the government to search SWIFT's data for people and institutions suspected of having ties to terrorists.” Id. Ex. D.

SWIFT, however, was unable to comply with OFAC's initial subpoenas because it could not “extract the particular information [requested] from [its] broad database.” Id. ¶ 1. As a consequence, and notwithstanding that SWIFT was aware the government was seeking access only to information indicating ties to terrorism, SWIFT offered to “give [the government] all the data.” Id. This prompted negotiations concerning the appropriate scope of the disclosure of SWIFT data and the extent that privacy safeguards should be implemented to protect the rights of SWIFT customers. Id. Ex. A, C.

Over time the OFAC narrowed the scope of the subpoenas, both with respect to the geographical areas targeted and the type of data requested, and safeguards were instituted to help ensure the data accessed by the government was indeed linked to matters legitimately the subject of terrorism investigations. 1 Id. Ex. A. While the TFTP has “allowed counterterrorism authorities to gain access to millions of records of transactions routed through SWIFT,” government investigators have used the data to do “at least tens of thousands, maybe hundreds of thousands of searches of people and institutions suspected of having ties to terrorists.” Id. Ex D.

Following its discovery of the TFTP, Amidax 2 filed its complaint in 2008 against three SWIFT entities,3 the United States Treasury Department, the CIA, and eleven current or former high-ranking federal officials. The complaint asserts claims against all defendants under the First and Fourth Amendments to the United States Constitution and under the Right to Financial Privacy Act, 12 U.S.C. §§ 3401– 3422, as well as under state constitutions and various anti-wiretapping, consumer protection, and deceptive trade practices laws. Additionally, the complaint alleges contract and quasi-contract claims against SWIFT. In support of these claims the complaint contains three principal allegations: first, Amidax used the SWIFT network to complete international financial transactions, Compl. ¶ 11; second, SWIFT turned over its entire database to the government pursuant to the TFTP, Compl. ¶ 27; and third, SWIFT turned over records of Amidax's transactions to the government, Compl. ¶ 28. Amidax attached a number of exhibits to the complaint, including two New York Times articles dated June 23 and June 24, 2006 that brought to light the TFTP as well as a DVD of a press conference held by Treasury on June 23, 2006 to explain the program. In response, SWIFT and the federal defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction.

In February 2009, the district court granted the defendants' motions to dismiss. In arriving at this decision the court first noted that Amidax pleaded the same injury for each cause of action—i.e., that Amidax's financial information was unlawfully obtained by the government from SWIFT. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 607 F.Supp.2d 500, 505 (S.D.N.Y.2009). The court observed that Amidax “either has standing to assert all its claims, or no standing to assert any of them, depending upon whether this injury has been adequately alleged.” Id.

After thus framing the standing issue and assuming for the purposes of the motion that Amidax's data was contained in the SWIFT database, the district court concluded that the entirety of the complaint, including the exhibits attached thereto, “fatally undermines the allegation that the government obtained the entire SWIFT database.” Id. at 507. Furthermore, the court concluded that Amidax “has not made any showing that the government is now, or ever was, in possession of its financial information.” Id. at 508. Accordingly, the court held that because Amidax's complaint “is premised upon conjecture” and “does not allege a concrete and particularized injury,” Amidax has failed to allege an injury in fact and therefore lacks standing to sue. Id. The court subsequently denied Amidax's request to conduct jurisdictional discovery as well as its request for leave to amend its complaint. Id. at 509 n. 5.

On March 5, 2009, Amidax filed a motion for reconsideration pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, alleging several errors on the part of the district court. The court denied the motion on April 22, 2009 concluding, inter alia, that it did not err in declining to permit jurisdictional discovery because Amidax's “mere speculation that it might have suffered a constitutional injury” does not entitle it to obtain sensitive discovery from either SWIFT or the government. Amidax Trading Grp. v. S.W.I.F.T. SCRL, No. 08 Civ. 5689, 2009 WL 1110788, at *2, 2009 U.S. Dist. Lexis 34845, at *7–8 (S.D.N.Y. Apr. 23, 2009). This appeal followed.


We review de novo a district court's dismissal of a complaint for lack of subject matter jurisdiction. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79–80 (2d Cir.2005). In conducting this review we note that Amidax bears the burden of establishing standing “in the same way as any other matter on which [it] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, to survive SWIFT's and the federal defendant's Rule 12(b)(1) motion to dismiss, Amidax must allege facts that affirmatively and plausibly suggest that it has standing to sue. See Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)); see also Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir.2007).

In reviewing a facial attack to the court's jurisdiction, we draw all facts—which we assume to be true unless contradicted by more specific allegations or documentary evidence—from...

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