Mwani v. Bin Laden, 04-5266.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation417 F.3d 1
Docket NumberNo. 04-5266.,04-5266.
PartiesOdilla Mutaka MWANI, et al., Appellants v. Osama BIN LADEN and Afghanistan, a Foreign State, Appellees.
Decision Date05 August 2005

Appeal from the United States District Court (USDC) for the District of Columbia (No. 99cv00125).

Philip M. Musolino argued the cause and filed the briefs for appellants.

R. Michael Smith argued the cause and filed the brief for appellee. Carolyn M. Welshhans entered an appearance.

Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

On August 7, 1998, a devastating truck bomb exploded outside the American embassy in Nairobi, Kenya. The blast killed more than 200 people, including 12 Americans, and wounded more than 4000 others. Most of the casualties were Kenyan. The plaintiffs in this case are all Kenyan: victims, relatives of victims, and businesses harmed in the attack. They sued defendants Osama bin Laden and al Qaeda for orchestrating the bombing, and defendant Afghanistan for providing logistical support to bin Laden and al Qaeda. The district court dismissed the claims against Afghanistan for lack of subject matter jurisdiction, and those against bin Laden and al Qaeda for lack of personal jurisdiction.

Although we agree that the Foreign Sovereign Immunities Act bars the plaintiffs' claims against Afghanistan, we reverse the dismissal of their actions against bin Laden and al Qaeda. Those defendants "engaged in unabashedly malignant actions directed at [and] felt" in this country. GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C.Cir. 2000). Bin Laden and al Qaeda should therefore "reasonably anticipate being haled into court" here by those injured as a result of those actions, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-74, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), regardless of the plaintiffs' nationality.

I

In early 1999, Odilla Mutaka Mwani and his fellow plaintiffs filed this action in the United States District Court for the District of Columbia. They sought compensatory damages and other relief from Osama bin Laden, the terrorist organization known as al Qaeda, and the nation of Afghanistan for the injuries they sustained in the embassy bombing.1 The plaintiffs predicated subject matter jurisdiction for their claims against Afghanistan on the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., and for those against bin Laden and al Qaeda on the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350. The latter provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Id.

On February 12, 1999, the plaintiffs moved to serve defendants bin Laden and al Qaeda by publication. On August 2, 1999, the district court granted the plaintiffs leave to serve those defendants by "publishing. . . notice for six weeks in the Daily Washington Law Reporter, the International Herald Tribune, and Al-Quds Al-Arabi (in Arabic)." Mwani v. United States, No. 99-125, Order at 4 (D.D.C. Aug. 2, 1999) ("August 1999 Order"). The plaintiffs later advised the court that the notice had run in all three newspapers, as well as in two additional East African publications.

To no one's surprise, neither bin Laden nor al Qaeda responded. On August 11, 2000, the plaintiffs moved for entry of default against them. Because the district court was not satisfied that it had personal jurisdiction over bin Laden and al Qaeda, it denied the motion without prejudice, granting plaintiffs additional time to pursue the issue. See Mwani v. United States, No. 99-125, Mem. Op. at 2-3, 5 (D.D.C. Mar. 15, 2001) ("March 2001 Opinion"). The plaintiffs responded with a renewed motion for entry of default in July 2001, and with supplemental memoranda in August, September, and October of that year. In these papers, the plaintiffs argued that bin Laden and al Qaeda had sufficient nationwide contacts with the United States to satisfy constitutional limits on the court's exercise of jurisdiction.2

On September 30, 2002, the district court held that, to enter a default, it "must have jurisdiction over the party against whom the judgment is sought," and the plaintiffs must demonstrate such jurisdiction by a preponderance of the evidence. Mwani v. United States, No. 99-125, Mem. Op. at 2 (D.D.C. Sept. 30, 2002) ("September 2002 Opinion") (internal quotation marks omitted). Applying those principles, the court concluded that the plaintiffs had "failed to sustain their burden of proving that this Court can exercise personal jurisdiction over" bin Laden and al Qaeda. Id. That was so, the court said, both because of the quality of the plaintiffs' evidence, and because of its failure to establish sufficient contacts between the defendants and the forum to permit the exercise of jurisdiction under the District of Columbia's long-arm statute and the U.S. Constitution. See id. at 9-11.

The dismissal of the plaintiffs' claims against bin Laden and al Qaeda left Afghanistan as the only remaining defendant. The plaintiffs effected service of process by certified mail on Afghanistan's Ministry of Foreign Affairs, through that country's embassy in the District of Columbia. An appearance was entered by the Transitional Islamic State of Afghanistan (hereinafter Afghanistan)"the interim government for Afghanistan established by the Bonn Accords of December 2002, which were implemented under the United Nations' auspices after the Taliban's armed forces were defeated by an international coalition and the Northern Alliance." Appellees Br. at 4. Afghanistan then moved to dismiss the plaintiffs' claims for lack of personal and subject matter jurisdiction, citing the FSIA.

In June 2004, the district court granted Afghanistan's motion to dismiss, rejecting the plaintiffs' contention that the case fell within two exceptions to the FSIA — for implicit waiver and commercial activities. Mwani v. United States, No. 99-125, Mem. Op. at 12 (D.D.C. June 22, 2004) ("June 2004 Opinion"). At the same time, it denied the plaintiffs' request for jurisdictional discovery because it did "`not see what facts additional discovery could produce that would affect [its] jurisdictional analysis.'" Id. at 11 (quoting Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C.Cir.1994)).

The plaintiffs filed a timely appeal. In Part II, we consider their contention that the district court erred in dismissing the claims against bin Laden and al Qaeda. In Part III, we address their challenge to the dismissal of the claims against Afghanistan.

II

We review the dismissal of a claim for lack of jurisdiction de novo. See, e.g., Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.Cir.2002). In evaluating the district court's dismissal of the claims against bin Laden and al Qaeda, we must consider two distinct determinations made by the court. The first is the appropriate burden and standard of proof for establishing personal jurisdiction over an absent defendant at this stage of the litigation. The second is whether the plaintiffs satisfied those requirements.

A

The district court correctly noted that the entry of a default judgment3 is not automatic, and that a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant. March 2001 Opinion at 2.4 The court acknowledged that when ruling upon personal jurisdiction without an evidentiary hearing, a court ordinarily demands only a prima facie showing of jurisdiction by the plaintiffs. September 2002 Opinion at 6.5 It is only if the court takes evidence on the issue or rules on the personal jurisdiction question in the context of a trial that a heightened, preponderance of the evidence standard applies. Id.6 Nonetheless, the district court concluded that in this case it should require the plaintiffs to establish jurisdiction by a preponderance of the evidence, because it was "on the cusp of a default judgment proceeding . . ., and . . . Defendants are not presently before the Court." September 2002 Opinion at 6. And it further determined that, to satisfy that burden, the plaintiffs would have to proffer evidence meeting the standards of admissibility ordinarily reserved for the summary judgment and trial stages of litigation. See id. at 12-14.

We reject this approach. The absence of the defendant is precisely the reason the Federal Rules of Civil Procedure provide for default judgments, which safeguard plaintiffs "when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights." Jackson v. Beech, 636 F.2d 831, 836 (D.C.Cir.1980) (internal quotation marks omitted). Far from constituting a rationale for increasing the plaintiffs' burden of proof, if anything the absence of the defendants counsels greater flexibility toward the plaintiffs because it impedes their ability to obtain jurisdictional discovery. There is thus no reason for the district court to insist upon an evidentiary hearing, and it did not do so in this case.

In the absence of an evidentiary hearing, although the plaintiffs retain "the burden of proving personal jurisdiction, [they] can satisfy that burden with a prima facie showing." Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.Cir.1991) (citation omitted). Moreover, to establish a prima facie case, plaintiffs are not limited to evidence that meets the standards of admissibility required by the district court. Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they...

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