In re Terrorist Attacks On September 11, 2001
| Decision Date | 21 September 2005 |
| Docket Number | No. 03 Civ. 9849.,No. 03 MDL 1570(RCC).,No. 03 Civ. 6978.,No. 02 Civ. 6977.,03 MDL 1570(RCC).,02 Civ. 6977.,03 Civ. 6978.,03 Civ. 9849. |
| Citation | 392 F.Supp.2d 539 |
| Parties | In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001 |
| Court | U.S. District Court — Southern District of New York |
David C. Cook, Francis G. Fleming, James P. Kreindler, Justin Timothy Green, Lee S. Kreindler, Marc S. Moller, Milton G. Sincoff, Noah H. Kushlefsky, Paul S. Edelman, Robert James Spragg, Steven R. Pounian, Kreindler & Kreindler, New York City, Elliot R. Feldman, J. Scott Tarbutton, John M. Popilock, Sean P. Carter, Stephen A. Cozen O'Connor (Philadelphia), Philadelphia, PA, for Plaintiffs.
David P. Gersch, Arnold & Porter, L.L.P., Donna M. Sheinbach, Michael D. McNeely, Nancy Luque, Steven A. Maddox, Gray Cary Ware and Friedenrich LLP (DC), Mitchell Rand Berger, Ronald Stanley Liebman, Patton Boggs LLP (DC), Martin Francis McMahon, Stephanie Wall Fell, Martin F. McMahon, and Associates, Thomas Peter Steindler, McDermott, Will and Emery (DC), James Ernest Gauch, Jennifer Allyson Shumaker, Jonathan Chapman Rose, Melissa Danielle Stear, Michael Peter Gurdak, Michael Rollin Shumaker, Stephen Joseph Brogan, Timothy John Finn, Jones Day (DC), Louis Richard Cohen, Wilmer, Cutler & Pickering (Washington), William Horace Jeffress, Jr., Christopher R. Cooper, Sara E. Kropf, Jamie S. Kilberg, Baker Botts LLP (DC), Christopher Mark Curran, White & Case LLP (DC), David Charles Frederick, John Christopher Rozendaal, Mark Charles Hansen, Michael John Guzman, Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans PLLC (DC), Lawrence Saul Robbins, Robbins Russel Englert Orseck & Untereiner LLP, Washington, DC, Jean Engelmayer Kalicki, Arnold & Porter, LLP, John Joseph Walsh, Carter Ledyard & Milburn LLP, Omar T. Mohammedi, Law Office of Omar T. Mohammedi, Brian Howard Polovoy, Shearman & Sterling LLP (New York), Geoffrey S. Stewart, Michael Bradley, Jones Day, Matthew Phineas Previn, Wilmer, Cutler & Pickering, L.L.P., T. Barry Kingham, Curtis, Mallet-Prevost, Colt and Mosle LLP, New York City, Wilmer Parker, III, Gillen Parker and Withers LLC, Atlanta, GA, Lynne Bernabei, Alan R. Kabat, Bernabei & Katz, PLLC, Washington, DC, for Defendants.
Michael J. Sommi, Cozen O'Connor, New York City, for Movants.
The Court presumes familiarity with the factual background giving rise to this multi-district litigation. See In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y.2005) ("Terrorist Attacks I"). Generally, Plaintiffs are representatives, survivors, and insurance carriers of the victims of the attacks of September 11, 2001, who allege, pursuant to various theories of liability including the Antiterrorism 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.; the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note; theories of aiding and abetting, civil conspiracy, intentional infliction of emotional distress, negligence, survival, wrongful death, trespass, and assault and battery, that Defendants are responsible for those attacks as terrorists, state sponsors of terror, or material sponsors of terror. In Terrorist Attacks I, the Court resolved several motions to dismiss the complaints by various Defendants. Additional motions remain pending before the Court.
Saudi High Commission ("SHC"), HRH Prince Salman bin Abdulaziz Al-Saud ("Prince Salman"), and HRH Prince Naif bin Abdulaziz Al-Saud ("Prince Naif") move to dismiss the complaints for lack of subject matter jurisdiction pursuant to the FSIA, lack of personal jurisdiction, and failure to state a claim for relief. Immediately prior to the Court's scheduled oral argument on these motions, the Federal Plaintiffs moved to supplement the record against Prince Salman and Prince Naif.
Defendants Rabita Trust, Wa`el Jalaidan, and International Islamic Relief Organization ("IIRO") move to dismiss the complaints for lack of personal jurisdiction and failure to state a claim.
Other Defendants move to dismiss the complaints for failure to state a claim. Tarik Hamdi and Abdulrahman Alamoudi move to dismiss the Burnett and Federal complaints. Success Foundation moves to dismiss the Burnett complaint. The Burnett Plaintiffs denominate certain Defendants as the "SAAR Network entities." The SAAR Network entities, which include African Muslim Agency, Grove Corporate, Heritage Education Trust, International Institute of Islamic Thought ("IIIT"), Mar-Jac Investments, Mar-Jac Poultry, Reston Investments, Safa Trust, and York Foundation, move to dismiss the Burnett complaint. IIIT also moves to dismiss the Ashton complaint. In addition to its motion to dismiss Burnett, Mar-Jac Poultry moves to dismiss the Ashton and Federal complaints. The Federal Plaintiffs label certain individuals "SAAR Network executives." These Defendants, including Taha Al-Awani, Muhammad Ashraf, M. Omar Ashraf, M. Yaqub Mirza, Iqbal Unus, and Jamal Barzinji, move to dismiss the Federal complaint.
Finally, Defendant National Commercial Bank ("NCB") moves for reconsideration of this Court's denial without prejudice of its motions to dismiss the Ashton and Burnett complaints. The Court resolves all the aforementioned motions in this opinion.
Pursuant to the FSIA, a foreign state and its instrumentalities are presumed immune from this Court's jurisdiction unless one of the statute's exceptions applies. Robinson v. Gov't of Malaysia, 269 F.3d 133, 138 (2d Cir.2001). "In contrast to a Rule 12(b)(6) motion to dismiss for failure to state a claim, in a challenge to FSIA subject matter jurisdiction, the defendant must present a `prima facie case that it is a foreign sovereign.'" Virtual Countries v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.2002) (quoting Cargill Int'l S.A. v. M/T PAVEL DYBENKO, 991 F.2d 1012, 1016 (2d Cir.1993)). "Then, the plaintiff `has the burden of going forward with evidence showing that, under the exceptions to the FSIA, immunity should not be granted.'" Virtual Countries, 300 F.3d at 241 (quoting Cargill, 991 F.2d at 1016); see also Terrorist Attacks I, 349 F.Supp.2d at 792-797 (). Determining whether this burden is met involves a `review [of] the allegations in the complaint, the undisputed facts, if any, placed before [the court] by the parties, and — if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue — [resolution of] disputed issues of fact.'" Virtual Countries, 300 F.3d at 241 (quoting Robinson, 269 F.3d at 141). Throughout the inquiry, Defendants retain the burden of persuasion, which they must meet by a preponderance of the evidence. Virtual Countries, 300 F.3d at 241; see also Robinson, 269 F.3d at 141 n. 8.
In 1993, then-King Fahad bin Abdulaziz Al-Saud, the President of the Council of Ministers of Saudi Arabia, decreed the formation of SHC, also known as the Saudi High Relief Commission, by High Order 17419. The same High Order named Defendant Prince Salman the President of SHC.
SHC allegedly has contributed $600 million to aid "Bosnian Muslims impoverished by the country's recent civil war." (Ashton Compl. ¶ 446; Burnett Compl. ¶ 392.) Plaintiffs claim, however, that SHC does not provide support to the needy but actually diverts funds for terrorist activities. (Ashton Compl. ¶ 454; Burnett Compl. ¶ 404.) In support, Plaintiffs allege that Prince Salman received a letter in September 2000 from a Bosnian association claiming SHC did not provide charitable assistance, and that none of the money collected after the fall of Srebrenica in July 1995 actually reached the Srebrenican people. (Ashton Compl. ¶¶ 454-55; Burnett Compl. ¶¶ 404-05; Federal Compl. ¶¶ 185, 457.) Plaintiffs claim SHC's financial records fail to account for $41 million. (Ashton Compl. ¶ 456; Burnett Compl. ¶ 407; Federal Compl. ¶ 460.) SHC allegedly made donations to charity Defendant Taibah and the bin Laden Establishment. (Ashton Compl. ¶¶ 376, 462 (); Burnett Compl. ¶ 298.) Plaintiffs also claim that SHC is responsible for "importing the extreme form of Saudi Islam, Wahhabism" to Bosnia. (Ashton Compl. ¶ 447; Burnett Compl. ¶ 393.)
The Federal Plaintiffs allege that al Qaeda fighters began entering Bosnia-Herzegovina in 1992 disguised as SHC relief workers. (Federal Compl. ¶ 183.) On October 21, 2001, a group of Algerians who were supposedly part of the al Qaeda network were arrested in Bosnia Herzegovina on charges of terrorism directed at the United States embassy. (Ashton Compl. ¶¶ 448-49; Burnett Compl. ¶¶ 394-95.) One of the arrested, Sabir Lamar, apparently worked for SHC as an Arabic language teacher. (Ashton Compl. ¶ 450; Burnett Compl. ¶ 396.) Also in October 2001, Plaintiffs claim that United States forces raided the Sarajevo branch of SHC and "found computer hard drives with photographs of the World Trade Center before and after its collapse as well as photos of United States embassies in Kenya and Tanzania and the U.S.S. Cole." (Ashton Compl. ¶ 451; Burnett Compl. ¶ 397; Federal Compl. ¶¶ 186, 458.) The U.S. forces also apparently found files on pesticides and crop dusters, the locations of...
To continue reading
Request your trial
-
Swarna v. Al-Awadi
...discretionary when they are "grounded in the social, economic, or political policies" of the sovereign. In re Terrorist Attacks on Sept. 11, 2001, 392 F.Supp.2d 539, 554 (S.D.N.Y.2005), aff'd 538 F.3d 71 (2d Cir. 2008). "Under the FSIA's discretionary function exception, acts which are perf......
-
Christian v. Town of Riga
...cases was contrary to the Federal Rules' structure of liberal pleading requirements." Id. at 1973; see In re Terrorist Attacks on Sept. 11, 2001, 392 F.Supp.2d 539, 564 (S.D.N.Y.2005) ("While Swierkiewicz made clear that pleading a McDonnell Douglas prima facie case was not necessary to sur......
-
Democratic Nat'l Comm. v. Russian Fed'n
...Court. Therefore, the Court need not reach any issues raised by the political question doctrine.14 On reconsideration in part, 392 F. Supp. 2d 539 (S.D.N.Y. 2005), aff'd, 538 F.3d 71 (2d Cir. 2008), aff'd, 714 F.3d 118 (2d Cir. 2013).15 Assange is alleged to have operated WikiLeaks during t......
-
John Doe I v. Nestle
...grounds, 503 F.3d 974 (9th Cir.2007); Doe v. Exxon Mobil Corp., 393 F.Supp.2d 20, 28 (D.D.C.2005); In re Terrorist Attacks on September 11, 2001, 392 F.Supp.2d 539, 565 (S.D.N.Y.2005); Mujica v. Occidental Petrol. Corp., 381 F.Supp.2d 1164, 1175 (C.D.Cal.2005); In re Agent Orange Prod. Liab......
-
The immunity of state officials under the UN Convention on Jurisdictional Immunities of States and Their Property.
...at the planning level of government, as opposed to those at the operational level." (citing In re Terrorist Attacks on Sept. 11, 2001, 392 F. Supp. 2d 539, 554 (S.D.N.Y. 2005)), aff'd, 538 F.3d 71 (2d Cir. 2008). See generally JOSEPH W. DELLAPENNA, SUING FOREIGN GOVERNMENTS AND THEIR CORPOR......