Burnett v. Al Baraka Inv. And Development Corp.

• Citation: 274 F.Supp.2d 86
• Decision Date: 25 July 2003
• Docket Number: No. CIV.A.02-1616 (JR).,CIV.A.02-1616 (JR).
• Parties: Thomas BURNETT, Sr., et al., Plaintiffs, v. AL BARAKA INVESTMENT AND DEVELOPMENT CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

274 F.Supp.2d 86

Thomas BURNETT, Sr., et al., Plaintiffs, v. AL BARAKA INVESTMENT AND DEVELOPMENT CORPORATION, et al., Defendants.

No. CIV.A.02-1616 (JR).

United States District Court, District of Columbia.

July 25, 2003.

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Mitchell R. Berger, Patton Boggs LLP, Lynne A. Bernabei, Alan Robert Kabat, Bernabei & Katz, PLLC, Washington, DC, Louis Richard Cohen, David Patrick Donovan, Wilmer, Cutler & Pickering, Ugo A. Colella, Ronald S. Liebman, Patton Boggs, LLP, Brian Arthur Coleman, Michael J. McManus, Drinker, Biddle & Reath, Washington, DC, Victor E. Cretella, III, Matthew Henry Simmons, Roger C. Simmons, Gordon & Simmons, Frederick, MD, Christopher M. Curran, Nicole Erb, Frank Panopoulos, White & Case LLP, Jonathan L. Greenblatt, Shearman & Sterling, Michael J. Guzman, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, DC, Michael Hadeed, Becker, Hadeed, Kellogg & Berry, Springfield, VA, Maher H. Hanania, Hanania Khader & Nawash, Falls Church, VA, Mark C. Hansen, Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans, PLLC, William H. Jeffress, Jr., Baker Botts L.L.P., Peter J. Kahn, Williams & Connolly LLP, Matthew H. Kirtland, Fulbright & Jaworski, LLP, Nancy Luque, Christopher Talbott Lutz, Steptoe & Johnson LLP, Martin F. McMahon, Washington, DC, Brian Howard Polovoy, Henry Sabath Weisburg, Shearman & Sterling, New York City, John David Shakow, King & Spalding, Donna M. Sheinbach, Luque Sheinbach, LLP, Washington, DC, for defendants.

George R. Blakey, Notre Dame Law School, Notre Dame, IN, Harry Huge, Washington, DC, Edward D. Robertson, Mary Doerhoff Winter, Bartimus, Frickleton, Robertson & Obetz, Jefferson City, MO, for plaintiffs.

Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for movant.

MEMORANDUM OPINION

ROBERTSON, District Judge.

In this action, more than two thousand victims, family members of victims or representatives of victims of the terrorist attacks of September 11, 2001, seek to hold accountable the persons and entities that funded and supported the international terrorist organization known as al Qaeda, which is now generally understood to have carried out the attacks. Plaintiffs have sued nearly two hundred entities or persons — governments, government agencies, banks, charitable foundations, and individuals, including members of the Saudi royal family — broadly alleging that each of them, in one way or another, directly or indirectly, provided material support, aided and abetted, or conspired with the terrorists who perpetrated the attacks. The Third Amended Complaint ("3AC") asserts claims under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note, the Anti-terrorism Act (ATA), 18 U.S.C. § 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., and the common law theories of aiding and abetting, conspiracy, wrongful death, survival, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Plaintiffs demand damages, including punitive damages, in excess of one trillion dollars.

As of the date of this decision, twenty seven defendants have entered appearances in this court, and nineteen have filed motions to dismiss.¹ On June 24, 2003, I heard oral arguments on the first five dispositive motions that were fully briefed and ripe for decision. One of those five motions is moot, because the movant has been dismissed from this action. The other four raise issues applicable to many, if not most, of the defendants: Al Rajhi Banking & Investment Corporation (Al Rajhi) asserts that the Southern District of New York has exclusive subject matter jurisdiction over claims arising from the September 11 attacks, that plaintiffs lack standing to bring their civil RICO claim, and that the claims against it present a nonjusticiable political question. Al-Haramain Islamic Foundation (AHIF), Muslim World League (MWL), and Soliman J. Khudeira (Khudeira) assert that venue has been improperly laid in the District of Columbia. MWL moves to dismiss for insufficient process and insufficient service of process. All four defendants challenge this court's personal jurisdiction over them. And three of the four assert, in varying ways, that the complaint fails to state any cause of action against them upon which relief can be granted.

This memorandum opinion sets forth my reasons for concluding: that this Court does have subject matter jurisdiction of plaintiffs' claims; that this Court has personal jurisdiction of MWL, Khudeira, and AHIF; that personal jurisdiction of Al Rajhi is uncertain, and plaintiffs may take limited jurisdictional discovery with respect to that party; that venue is properly laid in the District of Columbia; that plaintiffs' civil RICO claims must be dismissed for want of standing; that the complaint adequately states ATA, ATCA, and common law intentional tort claims against AHIF; that plaintiffs' negligence and negligent infliction of emotional distress claims against AHIF must be dismissed for failure to state a claim; and that Al Rajhi and Khudeira may move for more definite statements of plaintiffs' claims against them before they will be required to answer the complaint or respond to discovery.

SUBJECT MATTER JURISDICTION

Plaintiffs invoke the jurisdiction of this court under the ATA for the claims of the plaintiffs who are United States nationals and the ATCA for the claims of those 198 plaintiffs who are foreign nationals. Subject matter jurisdiction is challenged only by Al Rajhi, which argues that the Air Transportation Safety and System Stabilization Act (ATSSSA), Pub.L. No. 107-42, 115 Stat. 230 (Sept. 22, 2001) (reprinted, as amended, at 49 U.S.C.A. § 40101 note (Supp.2003)), vests exclusive jurisdiction over the claims of these plaintiffs in the United States District Court for the Southern District of New York.

The ATSSSA was enacted by Congress eleven days after the September 11 terrorist attacks "[t]o preserve the continued viability of the United States air transportation system," Pub.L. No. 107-42, 115 Stat. 230, 230, and "to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." ATSSSA § 403. The Act is organized into six titles: Title I, Airline Stabilization; Title II, Domestic Insurance and Reimbursement of Insurance Costs; Title III, Tax Provisions; Title IV, Victim Compensation; Title V, Air Transportation Safety; and Title VI, Separability. The purpose of Title IV, which established the September 11th Victim Compensation Fund, see ATSSSA §§ 404-407, was to "protect the airline industry and other potentially liable entities from financially fatal liabilities while ensuring that those injured or killed in the terrorist attacks receive adequate compensation." Canada Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52, 54-55 (2d Cir.2003) (citation omitted).

Al Rajhi's motion focuses on Section 408, which is found within Title IV. Before its amendment in November 2001, that section was entitled "Limitation on Air Carrier Liability." It now reads, in pertinent part:

Sec. 408. Limitation on liability.

(a) In general. — (1) Liability limited to insurance coverage. — Notwithstanding any other provision of law, liability for all claims, whether for compensatory or punitive damages or for contribution or indemnity, arising from the terrorist-related aircraft crashes of September 11, 2001, against an air carrier, aircraft manufacturer, airport sponsor, or person with a property interest in the World Trade Center, on September 11, 2001, whether fee simple, lease hold or easement, direct or indirect, or their directors, officers, employees, or agents, shall not be in an amount greater than the limits of liability insurance coverage maintained by that air carrier, aircraft manufacturer, airport sponsor, or person.

. . .

(b) Federal cause of action. —

(1) Availability of action. — There shall exist a Federal cause of action for damages arising out of the hijacking and subsequent crashes of American Airlines flights 11 and 77, and United Airlines flights 93 and 175, on September 11, 2001. Notwithstanding section 40120(c) of title 49, United States Code [49 U.S.C.A. § 40120(c), this cause of action shall be the exclusive remedy for damages arising out of the hijacking and subsequent crashes of such flights.

(2) Substantive law. — The substantive law for decision in any such suit shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.

(3)Jurisdiction. — The United States District Court for the Southern District of New York shall have original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001.

(c) Exclusion. — Nothing in this section shall in any way limit any liability of any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act. Subsections (a) and (b) do not apply to civil actions to recover collateral source obligations.

ATSSSA § 408 (emphasis supplied).

A court presented with a dispute about the meaning of a statute must first look at the language. If the language has a "plain and unambiguous meaning," the court's inquiry ends — "so long as the resulting statutory scheme is coherent and consistent. Whether statutory language is plain depends on the language itself, the specific context in which the language is used, and the...