Rosenberg v. Lashkar-E-Taiba

Decision Date30 September 2013
Docket NumberNos. 10–CV–5382 (DLI)(CLP).,Nos. 10–CV–5381 (DLI)(CLP).,Nos. 11–CV–3893 (DLI)(CLP).,Nos. 12–CV–5816 (DLI)(CLP).,Nos. 10–CV–5448 (DLI)(CLP).,s. 10–CV–5381 (DLI)(CLP).,s. 10–CV–5382 (DLI)(CLP).,s. 10–CV–5448 (DLI)(CLP).,s. 11–CV–3893 (DLI)(CLP).,s. 12–CV–5816 (DLI)(CLP).
Citation980 F.Supp.2d 336
PartiesShimon ROSENBERG, et al., Kia Scherr, et al., Emunah Chroman, et al., Linda Ragsdale, et al., Autumn Gilles, et al., Plaintiffs, v. LASHKAR–E–TAIBA et al., Defendants.
CourtU.S. District Court — Eastern District of New York

OPINION TEXT STARTS HERE

James P. Kreindler, Kreindler & Kreindler, LLP, New York, NY, for Plaintiffs.

Kevin J. Walsh, Jeffrey Steven Kramer, Locke Lord LLP, Allen C. Wasserman, Lord Bissell & Brook LLP, New York, NY, for Defendants.

OPINION AND ORDER

DORA L. IRIZARRY, District Judge.

The plaintiffs in these cases (collectively, Plaintiffs) are American and Israeli citizens who were injured or whose relatives were killed during the 2008 terrorist attacks in Mumbai, India. (Complaint, 10–CV–5381(DLI)(CLP) ( Complaint) ¶¶ 1–5; Complaint, 10–CV5382(DLI)(CLP) (Scherr Complaint) ¶ 1; Complaint, 10–CV–5448(DLI)(CLP) (Chroman Complaint) ¶ 1; Complaint, 11–CV–3893(DLI)(CLP) (Ragsdale Complaint) ¶ 1; Complaint, 12–CV–5816(DLI)(CLP) ( Gilles Complaint) ¶ 1.) 1 Plaintiffs assert claims arising under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and the Antiterrorism Act (“ATA”), 18 U.S.C. § 2333, against the terrorist organization Lashkar–e–Taiba (“LeT”), and several of its known leaders, as well as the Inter–Services Intelligence Directorate of the Islamic Republic of Pakistan (“ISI”), and two of its former Directors General, Ahmed Shuja Pasha (“Pasha”) and Nadeem Taj (“Taj”). ( See generally Compl.) Defendants ISI, Pasha, and Taj (collectively, the Moving Defendants) move, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for dismissal of each of the complaints against them for lack of subject matter jurisdiction ( see Moving Defendants' Memorandum of Law in Support of Motion to Dismiss (“Defs.' Mem.”), Dkt. Entry No. 12), which Plaintiffs oppose ( see Plaintiffs' Memorandum of Law in Opposition to Moving Defendants' Motion to Dismiss (“Pls.' Opp'n”), Dkt. No. 15). For the reasons set forth more fully below, the motion to dismiss is granted. The Moving Defendants, a foreign sovereign state and two foreign officials, are immune from these actions.

BACKGROUND

Plaintiffs allege that LeT, a terrorist organization designated by the United States government as a Foreign Terrorist Organization, bases its operations in Pakistan. (Compl.¶ 6.) Plaintiffs further allege that Pakistani members of LeT planned, trained, and prepared for the Mumbai terror attacks in Pakistan. ( Id. ¶ 21.) All ten of the terrorists who committed the Mumbai terror attacks were Pakistani nationals. ( Id. ¶ 20.) Over the course of four days, beginning on November 26, 2008, the LeT terrorists killed 166 individuals and wounded 304 others at various locations in Mumbai. ( Id. ¶ 19.)

Plaintiffs allege that the ISI “was a Pakistani organization carrying out intelligencegathering and operations domestically and internationally on behalf of the military of the Islamic Republic of Pakistan.” ( Id. ¶ 11.) Plaintiffs claim further that the “ISI has long nurtured and used international terrorist groups, including LeT, to accomplish its goals and has provided material support to LeT and other international terrorist groups.” ( Id.) With respect to the Mumbai terror attacks, Plaintiffs allege that the ISI “provided critical planning, material support, control and coordination of the attacks.” ( Id. ¶ 21.) Defendant Taj purportedly “was the Director General of the ISI from September 2007 until September 2008.” ( Id. ¶ 13.) Defendant Pasha purportedly has been the Director General of the ISI since September 2008. ( Id. ¶ 12.)

Fairly early in the litigation of these cases, the Moving Defendants sought dismissal for lack of subject matter jurisdiction. The ISI, an agency for the government of Pakistan, asserted that it was immune from jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1603 et seq. (FSIA). (Defs.' Mem. at 10–14.) Pasha and Taj, as foreign officials, asserted that they were entitled to immunity for the acts alleged in the Complaint as those acts were alleged to have been undertaken in their official capacity. ( Id. at 15–18.) Additionally, the Moving Defendants sought dismissal on the ground that the claims presented a “political question” inappropriate for resolution by the judicial branch.2 ( Id. at 18–30.) Plaintiffs opposed their motion contending that: (1) the Court should defer its ruling on sovereign immunity until after Plaintiffs had conducted limited discovery and the Executive Branch had the opportunity to submit a statement of interest; and (2) the Court should deny the political question motion as these actions are fully justiciable. ( See generally Pls.'s Opp'n.)

On April 23, 2012, the Court stayed the case and requested that the United States Department of State (Department of State) provide the Court with a statement of interest on the question of whether the Moving Defendants are immune from suit. ( See Apr. 23, 2012 Order, Dkt. Entry No. 23.) On December 17, 2012, the United States submitted its Statement of Interest and Suggestion of Immunity (“Statement of Interest” or “Stmt.”). (Stmt., Dkt. Entry No. 35.) It is the position of the United States that the ISI, a fundamental part of the government of Pakistan, qualifies for foreign state immunity under the FSIA and no exception to immunity applies. (Stmt. at 2–6.) 3 Furthermore, it is the position of the United States that defendants Pasha and Taj are entitled to immunity from civil suit under federal common law because they are foreign officials who were sued in their official capacities. ( Id. at 7–11.)

Plaintiffs submitted a Response to the Statement of Interest, arguing that defendants Pasha and Taj are not entitled to immunity. (Plaintiffs' Response to Stmt. (“Pls.' Resp.”), Dkt. Entry No. 40.) Notably, Plaintiffs' Response lacked any opposition to the United States' position as to the ISI's immunity. Indeed, the parties' subsequent submissions focused on whether defendants Pasha and Taj, foreign officials, are immune from these actions. Plaintiffs contend that defendants Pasha and Taj are not entitled to foreign official immunity because they “individually engaged in orchestrating the Mumbai attacks and ... they thus are independently liable for acts of murder, torture and terrorism, classic violations of jus cogens norms.” 4 ( Id. at 1.) Plaintiffs assert that the United States' “view of common law immunity is not dispositive” and that Plaintiffs “must be afforded an opportunity to conduct discovery on the question of whether Pasha and Taj participated in the torture, extrajudicial killing, sabotage and hostage taking of the United States victims of the Mumbai terror attacks, as individuals who violate internationally accepted jus cogens norms, even if under color of official authority....” ( Id.)

The Moving Defendants oppose Plaintiffs contending that: (1) Plaintiffs' conceded earlier in the litigation that, if the United States suggested that defendants Pasha and Taj were immune, dismissal would be appropriate; (2) the United States' suggestion of immunity for defendants Pasha and Taj is entitled to deference; (3) there is no jus cogens exception to federal common law on foreign official immunity; and (4) Plaintiffs are not entitled to discovery on this issue. (Moving Defendants' Memorandum of Law in Opposition to Pls.'s Resp. (“Defs.' Opp'n to Pls.' Resp.”), Dkt. Entry No. 41–1.) 5

DISMISSAL UNDER RULE 12(b)(1)

The FSIA provides the sole basis for the exercise of jurisdiction over a foreign state in United States courts. Argentine Repub. v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); see also USAA Cas. Ins. Co. v. Permanent Mission of Repub. of Namibia, 681 F.3d 103, 107 (2d Cir.2012). Under the FSIA, a foreign state includes the foreign sovereign itself as well as its political subdivisions, agencies and instrumentalities. See28 U.S.C. §§ 1603(a) and (b); see alsoH.R.Rep. No. 94–1487, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6613. A foreign state is presumptively immune from the jurisdiction of United States courts unless a specified exception to the FSIA applies. See28 U.S.C. § 1604 ([A] foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.”). Accordingly, absent the applicability of an exception set forth in 28 U.S.C. §§ 1605 to 1607, a federal court lacks subject matter jurisdiction over any claims brought against a foreign state. USAA Cas. Ins. Co., 681 F.3d at 107.

In the context of a Rule 12(b)(1) challenge to subject matter jurisdiction under the FSIA, the Court looks to “the substance of the allegations to determine whether one of the exceptions to the FSIA's general exclusion of jurisdiction over foreign sovereigns applies.” Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d Cir.2001) (quotation marks and citations omitted). Moreover, when a foreign state moves to dismiss a complaint on the grounds that the court lacks jurisdiction over the foreign state, “the Court must look beyond the pleadings to the factual record to determine whether to grant the motion to dismiss.” Servaas Inc. v. Repub. of Iraq, 686 F.Supp.2d 346, 353–354 (S.D.N.Y.2010) (citations omitted) (emphasis in original).

To determine whether a court lacks jurisdiction over a defendant pursuant to the FSIA, the defendant has the burden to “present a prima facie case that it is a foreign sovereign.” Virtual Countries, Inc. v. Repub. of South Africa, 300 F.3d 230, 241 (2d Cir.2002) (quotation marks omitted). Once the defendant meets that initial burden, “the plaintiff has the burden of going forward with evidence showing that, under exceptions to the FSIA, immunity should not be granted.” Rogers v. Petroleo Brasileiro, S.A....

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