Owens v. Taliban, 22-CV-1949 (VEC)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtVALERIE CAPRONI, United States District Judge
PartiesJAMES OWENS, et al., Plaintiffs, v. TALIBAN a/k/a ISLAMIC EMIRATE OF AFGHANISTAN, Defendant.
Docket Number22-CV-1949 (VEC)
Decision Date11 April 2022

JAMES OWENS, et al., Plaintiffs,
v.

TALIBAN a/k/a ISLAMIC EMIRATE OF AFGHANISTAN, Defendant.

No. 22-CV-1949 (VEC)

United States District Court, S.D. New York

April 11, 2022


OPINION AND ORDER

VALERIE CAPRONI, United States District Judge

On August 7, 1998, al-Qaeda killed more than 200 people and injured thousands in terrorist attacks on the U.S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya (“Embassy Bombings”). Although al-Qaeda was responsible for the attack, several countries and groups provided assistance that made the attacks possible, including Iran, Sudan, and, allegedly, the Taliban, a fundamentalist Islamic organization that then controlled, and now again controls, Afghanistan.

In 2021, about 20 years after being ousted from Afghanistan, the Taliban effectively reseized control of Afghanistan, after which it laid claim to funds held by the Afghan central bank at the Federal Reserve Bank of New York (“N.Y. Fed.”). In February 2022, President Joseph R. Biden issued an Executive Order blocking the Taliban from moving or using those funds; that Executive Order also designated some of the blocked funds for payment of civil judgments that have been obtained by victims of the Taliban's acts of terrorism. See McGill Decl., Ex. 1, Dkt. 6-1. The Executive Order prompted approximately 200 surviving victims, estates of victims who did not survive, and family members of the victims of the Embassy Bombings, both domestic and foreign, to sue the Taliban for its alleged role in the attack. See

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generally Compl., Dkt. 1. To preserve their chance of collecting on a future judgment, they have filed an ex parte emergency motion seeking pre-judgment attachment of the funds. See Dkt. 4. For the reasons that follow, their motion is GRANTED.

BACKGROUND[1]

In 1996, after being expelled from Sudan, al-Qaeda and its leader, Osama bin Laden, relocated to Afghanistan, where the Taliban had recently emerged as a fundamentalist movement that was attempting to take over Afghanistan. Once in Afghanistan, al-Qaeda allegedly began to receive support from the Taliban in the form of, among other things, weapons, training, facilities, and protection. McGill Decl., Ex. 5, Part II at 66, Dkt. 6-6; McGill Decl., Ex. 6 at 3, Dkt. 6-8. While he was allegedly being protected by the Taliban, bin Laden declared war on the United States in a 1996 fatwa; he reiterated that declaration in February 1998. McGill Decl., Ex. 7 at 1- 2, Dkt. 6-9; McGill Decl., Ex. 8 at 2, Dkt. 6-10. Eventually, bin Laden and al-Qaeda orchestrated the attacks on two U.S. embassies in the summer of 1998, killing hundreds and injuring thousands. McGill Decl., Ex. 10 at 2, Dkt. 6-12.

Horrific in their own right, the 1998 bombings were a harbinger of what was to come. On September 11, 2001, al-Qaeda perpetrated terrorist attacks against the United States with far-reaching domestic and international consequences. See generally McGill Decl., Ex. 18, Dkt. 6-20. The Taliban was pushed from power in Afghanistan when North Atlantic Treaty Organization (“NATO”) forces, led by the United States, invaded the country. Id. Although a fragile democracy was formed, Afghanistan was rocked by insurgent attacks from the Taliban for years. Eventually, in the summer of 2021, NATO allies and the United States withdrew their troops from the country, and the Taliban retook control. Id. Although no country has recognized

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it as an official, legitimate government, the Taliban is currently governing Afghanistan. McGill Decl., Ex. 19 at 1, Dkt. 6-21. In that role, the Taliban laid claim to roughly $7 billion in assets of the Afghan central bank held at the N.Y. Fed. McGill Decl., Ex. 20 at 2, Dkt. 6-22. On February 11, 2022, President Biden, via Executive Order, froze those assets and made half of them available for victims of terrorism to collect on civil judgments. McGill Decl., Ex. 1, Dkt. 6-1.[2]

President Biden's order set off a race among creditors to attach funds. Among the terrorism victims seeking to lay claim to those funds are victims of the September 11, 2001 terrorist attacks - many of whom have been engaged in a complex set of lawsuits filed years ago in this District - who wish to levy previously-stayed writs of execution on the now-available funds in the amount of more than $2.1 billion. Order, In Re: Terrorist Attacks on September 11, 2001, No. 03-MD-01570, Dkt. 7717 (S.D.N.Y. Mar. 2, 2022) (lifting stays on writs of execution for two sets of plaintiffs in cases related to the September 11 attacks). Those plaintiffs are now engaged in turnover proceedings, which will be fully briefed at the end of April 2022. Order, In Re: Terrorist Attacks on September 11, 2001, No. 03-MD-01570, Dkt. 7750 (S.D.N.Y. Mar. 14, 2022) (setting briefing schedule). In part because of those judgment creditors, this case was filed with an ex parte emergency motion for prejudgment attachment. Pls. Mem., Dkt. 5 at 1, 25.[3] Although Plaintiffs seek pre-judgment attachment of Taliban assets in the amount of approximately $4.6 billion plus pre-judgment interest, with respect to the funds located at the N.Y. Fed., they seek only their expected compensatory damages, in the amount of

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approximately $1.4 billion plus pre-judgment interest (the amount of the funds that have not already been attached). Id. at 25. After oral argument, the Court granted Plaintiffs' motion, indicating that an opinion would follow. Order, Dkt. 32.

DISCUSSION

I. Legal Standard

Pursuant to Federal Rule of Civil Procedure 64, New York state law governs the ability of a party to attach property prior to obtaining a judgment. Fed.R.Civ.P. 64. Under New York law, in order to obtain a pre-judgment attachment, the plaintiff must show that: (1) the plaintiff has a cause of action for a money judgment; (2) it is probable that the plaintiff's claim will succeed on the merits; (3) one or more grounds for attachment provided under New York law exist; and (4) the amount demanded from the defendant exceeds all counterclaims known to the plaintiff. CPLR § 6212(a). A plaintiff must make this showing via affidavit or other written evidence. Id. The remedy of pre-judgment attachment “is discretionary with the Court and should be used sparingly.” Katz Agency, Inc. v. Evening News Ass'n, 514 F.Supp. 423, 429 (S.D.N.Y. 1981), aff'd sub nom. Katz Commc'ns, Inc. v. Evening News Ass'n, 705 F.2d 20 (2d Cir. 1983) (citation omitted). Although the remedy is discretionary, the Second Circuit has made clear that where all the statutory requirements have been satisfied, a district court has no option but to grant pre-judgment attachment. Cap. Ventures Int'l v. Republic of Argentina, 443 F.3d 214, 222 (2d Cir. 2006) (“Where . . . a statutory ground for attachment exists and both need and likelihood of success are established, [a district court's] discretion does not permit denial of the

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remedy for some other reason, at least absent extraordinary circumstances and perhaps even then.”).

New York law provides for granting orders of attachment without notice to the adversarial party. See CPLR § 6211(a). The adversary is protected by the fact that if the order of attachment is obtained ex parte, the plaintiff must then serve a motion on the defendant seeking to confirm the order of attachment within a certain time period, or the order of attachment will be vacated. Herzi v. Ateliers De La Haute-Garonne, No. 15-CV-7702, 2015 WL 8479676, at *1 (S.D.N.Y. Oct. 13, 2015). In the Southern District of New York, Local Rule 6.1 allows for an ex parte application so long as the moving party provides an affidavit with good and sufficient reasons why proceeding ex parte is necessary; Plaintiffs have satisfied that requirement. See generally McGill Decl., Ex. 1, Dkt. 6-1.

II. Plaintiffs Meet the Requirements for Pre-Judgment Attachment Under New York Law

Although this litigation may present other complicated issues of law at a later stage, Plaintiffs have met the statutory requirements to be granted pre-judgment attachment.

A. Plaintiffs Have Brought a Cause of Action for a Money Judgment

Plaintiffs bring claims under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a); the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for foreign Plaintiffs; and New York state tort law claims for different subsets of Plaintiffs. See generally Compl., Dkt. 7. These are clearly causes of action that, were they to succeed, would result in a money judgment. See, e.g., Mem. and Order, Mattel Inc. v. Entities et al., No. 20-CV-11075, Dkt. 55 at 10 (finding “[t]here is, of course, a cause of action here” where plaintiff brought standard trademark claim); Disney Enterprises, Inc. v. Finanz St. Honore, B.V., No. 13-CV-6338, 2017 WL 1862211, at *2 (E.D.N.Y. May 8, 2017) (noting in passing “there is a cause of action” in trademark case);

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Centauro Liquid Opportunities Master Fund, L.P. v. Bazzoni, No. 15-CV-9003, 2018 WL 6340600, at *1 (S.D.N.Y. July 23, 2018) (finding cause of action in passing in case bringing breach of contract claim). Plaintiffs therefore easily meet the first prong for pre-judgment attachment under New York law. CPLR § 6212(a).

B. Plaintiffs Have Demonstrated a Probability of...

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