In re Terrorist Attacks

• Decision Date: 17 April 2023
• Docket Number: 03 MDL 1570 (GBD) (SN)
• Parties: IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 This document relates to: All Actions
• Court: U.S. District Court — Southern District of New York

1

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 This document relates to: All Actions

No. 03 MDL 1570 (GBD) (SN)

United States District Court, S.D. New York

April 17, 2023

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, United States District Judge.

Plaintiffs asserting claims against Defendant Kingdom of Saudi Arabia through the Plaintiffs' Executive Committees' Consolidated Amended Complaint (“CAC,” ECF No 3463) (hereinafter “CAC Plaintiffs”), filed a motion to revise a March 2018 Order pursuant to Federal Rule of Civil Procedure 54(b) and this Court's inherent powers.^[1] (CAC Mot. to Revise, ECF No. 7431.) On February 7, 2023, this Court denied both the motion to revise and a separate motion from Ashton Plaintiffs joining the CAC motion and seeking to compel Saudi Arabia to produce further documents. (The “Decision,” ECF No. 8862 at 28 (denying Ashton Mot, to Compel and Revise, ECF No. 7481).)

Before this Court is Ashton Plaintiffs' motion to reconsider the rulings that aiding-and- abetting and conspiracy causes of action under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(d), are not available as causes of action against foreign sovereign defendants, and the separate determination that two recent cases from the United States Court of Appeals for the Second Circuit, Kaplan v Lebanese Canadian Bank, 999 F.3d 842 (2d Cir. 2021), and Honickman v. BLOM Bank SAL, 6 F.4th 487 (2d Cir. 2021), are inapposite to Plaintiffs' claims against Saudi Arabia. (Ashton Mot. for Recons., ECF No. 8870.) CAC Plaintiffs also moved to amend the Decision to certify the same holdings for interlocutory appeal.^[2] (CAC Mot. to Certify, ECF No. 8864.) Both As/tfcv? Plaintiffs' and CAC Plaintiffs' motions are hereby DENIED.

I. BACKGROUND^[3]

Plaintiffs in this multidistrict litigation seek to hold multiple defendants liable for allegedly financing, sponsoring, conspiring to sponsor, aiding and abetting, or otherwise providing material support to Osama bin Laden and the terrorist organization al Qaeda in the physical destruction, deaths, and injuries stemming from the terrorist attacks on September 11, 2001 (the “9/11 Attacks”). On March 28, 2018, this Court granted Plaintiffs limited jurisdictional discovery against Saudi Arabia on allegations of specific facts relevant to the immunity determination under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. In re Terrorist Attacks on Sept. 11, 2001, 298 F.Supp.3d 631, 640 (S.D.N.Y. 2018).

On December 7,2021, CAC Plaintiffs filed their motion to revise this Court's March 2018 Order regarding jurisdiction over Saudi Arabia pursuant to Federal Rule of Civil Procedure 54(b) and this Court's inherent powers, citing the Second Circuit's decisions in Kaplan and Honickman. (CAC Mot. to Revise.) Relatedly, Ashton Plaintiffs filed a motion joining CAC Plaintiffs and seeking to compel Saudi Arabia to produce documents pursuant to the “limited jurisdictional discovery” granted in the March 2018 Order. (Ashton Mot. to Compel and Revise.) On February 7, 2023, this Court denied both motions, holding that the aiding-and-abetting and conspiracy causes of action under ATA 18 U.S.C. § 2333(d) are unavailable against foreign state defendants, and that Kaplan and Honickman's framework for the § 2333(d) analysis was inapplicable against foreign sovereign Saudi Arabia. (See Decision at 12 21.) The instant motions seek reconsideration or the certification for interlocutory appeal of these holdings.

II. LEGAL STANDARDS

A. Reconsideration

Under Local Rule 6.3, reconsideration is not favored and is “an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” U.S. Bank Nat'l Ass 'n v. Triaxx Asset Mgmt. LLC, 352 F.Supp.3d 242,246 (S.D.N.Y. 2019) (citation omitted). “The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Narrow grounds justifying reconsideration include “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd,, 956 F.2d 1245, 1255 (2d Cir. 1992) (citations omitted).

A motion for reconsideration is “not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.'” Analytical Survs., Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted); see also Weiss v. El Al Isr. Airlines, Ltd., 471 F.Supp.2d 356, 358 (S.D.N.Y. 2006) (“A motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue.”).

B. Certification for Immediate Appeal

District courts may certify an issue for immediate appeal under 28 U.S.C. § 1292(b):

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

Id. This provision is “a rare exception to the final judgment rule that generally prohibits piecemeal appeals,” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996). “It is a basic tenet of federal law to delay appellate review until a final judgment has been entered.” Id. Use of “this certification procedure should be strictly limited because only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” In re Flor, 79 F.3d 281, 284 (2d Cir. 1996) (cleaned up).

“The party seeking an interlocutory appeal has the burden of showing [these] ‘exceptional circumstances' to ‘overcome the general aversion to piecemeal litigation.'” In re Perry H. Koplik & Sons, Inc., 377 B.R. 69, 73 (S.D.N.Y. 2007) (quoting Klinghoffer v. S. N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990)). The determination of whether a party has carried this burden is “committed to the discretion of the district court.” Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991).

III. ASHTON PLAINTIFFS' MOTION FOR RECONSIDERATION IS DENIED AS MERITLESS AND IMPROPER

Ashton Plaintiffs move for reconsideration on the flawed ground that Magistrate Judge Sarah Netbum's May 2, 2022 proposed Report and Recommendation on the Republic of Sudan's motion to dismiss (the “Sudan Report”) “diverge[s]” from this Court's Decision. (See Ashton Mot. for Recons, at 2 (citing Sudan Report, ECF No. 7942).) As presented in the Sudan Report, the Magistrate Judge's recommendation on the aiding-and-abetting and conspiracy liability of foreign sovereigns under § 2333(d) has not been adopted by this Court. Moreover, the Magistrate Judge's Sudan Report is neither a “decision” nor a “controlling” one that might justify reconsideration of the district court order. See Local R. 6.3 (“controlling decisions” as grounds for reconsideration).

The Sudan Report is also not a “matter” this Court “overlooked.” See id. This Court had in hand, thoroughly reviewed, and fully considered the Sudan Report's relevant recommendations prior to rendering its Decision on the motions to revise, despite Ashton Plaintiffs' meritless suggestion that this Court “may have overlooked” the Sudan Report. (Ashton Mot, for Recons, at 1,)

Ashton Plaintiffs' remaining “contentions [regarding the statutory interpretations of the ATA, FSIA, and JASTA] are baseless and merely reiterate the same arguments,” see Montanile v. Nat'l Broadcasting Co., 216 F.Supp.2d 341, 342 (S.D.N.Y. 2002), that they joined in their original motion to revise this Court's March 2018 Order, (Compare CAC Reply on Mot. to Revise, ECF No. 7740, at 1 -7, with Ashton Mot. for Recons.) Their repetitive motion to revisit that issue flouts the high standard for such motions and the underlying principles that seek a “conservation of scarce judicial resources,” U.S. Bank Nat‘1 Ass'n, 352 F.Supp.3d at 246 (citation omitted), particularly in light of the volume of activity in this multidistrict litigation. Ashton Plaintiffs' current motion constitutes an improper second^[4] motion for reconsideration, and it fails to present any argument that might warrant the extraordinary further reconsideration of this Court's Decision on the motions to revise its March 2018 Order, IV. CAC PLAINTIFFS' MOTION TO CERTIFY AN INTERLOCUTORY APPEAL IS DENIED

CAC Plaintiffs fail to establish the exceptional circumstances necessary to certify an interlocutory appeal. Based on the jurisprudence for certification, CAC Plaintiffs do not establish that (1) the Decision involves a “controlling question of law,” (2) a “substantial ground for difference of opinion” exists, or (3) an immediate appeal “may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

A. The Decision Does Not Rest on a Controlling Question of Law

CAC Plaintiffs argue that this Court's ruling that the ATA's aiding-and-abetting and conspiracy causes of action are unavailable in cases against foreign states constitute “controlling questions of law” satisfying § 1292(b)'s first element. (CAC Mem. of Law on Mot. to Certify, ECF No. 8865, at 4.) A‘“question of law' must refer to a ‘pure'...