Wultz v. Islamic Republic of Iran

• Decision Date: 20 October 2010
• Docket Number: No. 08–cv–1460(RCL).,08–cv–1460(RCL).
• Citation: 755 F.Supp.2d 1
• Parties: Sheryl WULTZ, et al., Plaintiffs,v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

755 F.Supp.2d 1

Sheryl WULTZ, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

No. 08–cv–1460(RCL).

United States District Court, District of Columbia.

Oct. 20, 2010.

Robert Joseph Tolchin, Brooklyn, NY, for Plaintiffs.Ramsey Clark, Clark & Schilling, New York, NY, David Taylor Case, Sarah P. Kenney, Siubhan J.E. Magee, Walter P. Loughlin, K & L Gates LLP, Mitchell R. Berger, Patton Boggs LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I.Introduction

II.Background

A.

A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv

B.

Plaintiffs Make Five Claims Against BOC Related to the Tel Aviv Bombing

III.Discussion

A.

Justiciability

1.Standing

a.

Standing Requires Injury in Fact, Causation, and Redressability

b.

Plaintiffs Have Standing

2.

Political–Question Doctrine

a.

Political Questions Are Those Issues Reserved for the Political Branches and Unsatisfactory for Judicial Determination

b.

Plaintiffs' Claims Do Not Raise Political Questions

i.

Adjudication of Plaintiffs' Claims Does Not Intrude Upon Foreign Relations of the Executive Branch

ii.

The Issue of Whether Adjudication of Plaintiffs' Claims Depends on Criteria Unsatisfactory for Judicial Determination Is Unripe

B.

Subject–Matter Jurisdiction

1.

Subject–Matter Jurisdiction Over a Case to Which a Foreign Sovereign Is a Party Turns on Sovereign Immunity

2.

Instrumentalities of Foreign States Are Presumptively Immune

3.

BOC Is Not an Instrumentality of China

C.

Personal Jurisdiction

1.

Plaintiffs Have the Burden of Alleging Jurisdictional Facts

2.

Plaintiffs Have Met Their Burden

a.

The Court Has Personal Jurisdiction Under the ATA

b.

The Court Has Personal Jurisdiction Under the Fifth Amendment

i.

BOC Must Have Sufficient Minimum Contacts With the United States

ii.

BOC Has Sufficient Minimum Contacts With the United States

c.

The Court Has Pendent Personal Jurisdiction as to Claims Under Israeli Law

D.

Venue

1.

BOC Waived its Objection to Improper Venue

2.

Regardless, Venue Is Proper Under the Doctrine of Pendent Venue

E.

Sufficiency of Plaintiffs' Pleadings

1.

Plaintiffs Must Plead a Short and Plain Statement Showing That They Are Entitled to Relief

2.

Plaintiffs Have Sufficiently Pled Count Two: Primary Liability

a.

Primary Liability Under the ATA Requires a Chain of Incorporations

b.

Plaintiffs Adequately Plead Eligibility

c.

Plaintiffs Adequately Plead Injury

d.

Plaintiffs Adequately Plead an Act of International Terrorism

i.

Plaintiffs Adequately Plead Acts Dangerous to Human Life

ii.

Plaintiffs Adequately Plead Violations of U.S. Criminal Law

I.

Plaintiffs Adequately Plead Violations of 18 U.S.C. § 2339A

II.

Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339B

III.

Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339C

iii.

Plaintiffs Adequately Plead Appearance of Intention to Intimidate Civilians, Influence Government Policy, or Affect Government Conduct

iv.

Plaintiffs Adequately Plead Transcendence of National Boundaries

e.

Plaintiffs Adequately Plead Ordinary Tort Requirements

i.

Plaintiffs Adequately Plead Intentional Misconduct

ii.

Plaintiffs Adequately Plead Proximate Causation

f.

Conclusions Concerning Count Two

3.

Plaintiffs Have Sufficiently Pled Count Three: Secondary Liability

a.

Secondary Liability Exists Under the ATA

b.

Plaintiffs Adequately Plead a Claim for Secondary Liability

4.

Plaintiffs Have Sufficiently Pled Count Four: Negligence

a.

Liability for Negligence Requires Duty, Breach, Injury, and Causation

b.

Plaintiffs Adequately Plead Duty

i.

Duties Arise When Injury Is Foreseeable

ii.

Plaintiffs Have Adequately Pled That BOC Was Under a Duty

c.

Plaintiffs Adequately Plead Breach

i.

Breach Occurs When a Person Under a Duty Acts Unreasonably With Respect to the Duty

ii.

Plaintiffs Have Adequately Pled that BOC Breached its Duty

d.

Plaintiffs Adequately Plead Injury

e.

Plaintiffs Adequately Plead Causation

i.

Factual Causation Exists Where, But For a Defendant's Act or Omission, a Plaintiff's Injury Would Not Have Occurred

ii.

Plaintiffs Adequately Plead That BOC Factually Caused Their Injury

iii.

Legal Causation Exists Where Injury Is Foreseeable, Within the Field of Risk, and Causation Fits Common Sense

iv.

Plaintiffs Adequately Plead That BOC Legally Caused Their Injury

5.

Plaintiffs Have Sufficiently Pled Count Five: Breach of Statutory Duty

a.

Breach of Statutory Duty Operates as a General Private Cause of Action for Violation of Israeli Law

b.

Plaintiffs Adequately Plead That BOC Was Under A Duty Imposed by Three Israeli Penal Laws

c.

Plaintiffs Adequately Plead That the Relevant Penal Laws Were Intended for the Benefit of the Public

d.

Plaintiffs Adequately Plead That BOC Breached its Duties

i.

Plaintiffs Adequately Plead a Violation of Israel's Prevention of Terrorism Ordinance

ii.

Plaintiffs Adequately Plead a Violation of Israel's Penal Law

iii.

Plaintiffs Adequately Plead a Violation of Israel's Defense (Emergency) Regulations

iv.

The Court Will Not Consider Whether Plaintiffs Have Pled a Violation of Israel's Prohibition on Terrorist Financing Law

e.

Plaintiffs Adequately Plead That Their Injuries Were Caused by BOC's Breach

f.

Plaintiffs Adequately Plead That They Suffered Injuries of the Sort Intended to Have Been Prevented by the Relevant Penal Statutes

g.

The Double–Actionability Rule Has Been Replaced, and Its Replacement Does Not Apply

6.

Plaintiffs Have Sufficiently Pled Count Six: Vicarious Liability

F.

Duplicity of Plaintiffs' Claims

1.

Claims Duplicative of Others Should Be Dismissed

2.

Plaintiffs' Secondary–Liability Claim Is Not Duplicative of Their Primary–Liability Claim

IV.Conclusion

I.Introduction.

The Bank of China, Ltd.(“Bank of China,”“Bank,” or BOC) has moved the Court to dismiss all claims against it.Def. BOC's Mot. to Dismiss the 1st Am. Compl., Mar. 5, 2009, ECF No. 15[hereinafter BOC's Mot.].The Bank has advanced several arguments in favor of its motion: that the case is nonjusticiable because plaintiffs lack standing, id. at 4–5, and because plaintiffs' claims raise political questions, id. at 5–12; that the Court lacks personal jurisdiction over the Bank, id. at 12–18; that venue is improper, Reply Mem. of P. & A. in Support of BOC'sMot. 4–9, July 24, 2009, ECF No. 42[hereinafter BOC's Reply]; that plaintiffs fail to state any claim upon which relief can be granted, BOC's Mot.at 18–28, 29–44; and that plaintiffs make duplicative claims, id. at 28–29.To this list, the Court will sua sponte add consideration of whether the Bank is entitled to immunity from suit as an instrumentality of China.Plaintiffs oppose all arguments.Pls.'Mem. in Opp'n to BOC's Mot., May 26, 2009, ECF No. 31.[hereinafter Pls.' Opp'n];Pls.' Surreply, Oct. 20, 2010, ECF No. 80.

In this memorandum opinion, the Court will first provide an overview of plaintiffs claims against BOC and will second discuss why the Court will reach the merits of those claims: plaintiffs have standing, plaintiffs' claims do not raise nonjusticiable political questions, the Bank is not entitled to sovereign immunity, the Court has personal jurisdiction over the Bank, venue is proper, plaintiffs have adequately pled claims upon which relief may be granted, and plaintiffs have not pled duplicative claims.The Court will thus deny the Bank's motion.

II.Background.

Plaintiffs make five claims against BOC: that BOC committed an act of international terrorism in violation of U.S. law, that BOC aided and abetted acts of international terrorism committed by others in violation of U.S. law, that BOC is liable for negligence under Israeli law, that BOC is liable for a breach of a statutory duty under Israeli law, and that BOC is vicariously liable for acts of the Palestinian Islamic Jihad (PIJ) under Israeli law.All five claims arise under the same set of alleged facts.This part of the opinion summarizes those facts and claims.

A.A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv.

On April 17, 2006, a Palestinian suicide bomber allegedly attacked a restaurant in Tel Aviv, State of Israel (“Israel”)(“Tel Aviv bombing” or, as referred to by plaintiffs, the “Terrorist Bombing”). 1st Am. Compl. ¶ 1, Jan. 13, 2009, ECF No. 12[hereinafter FAC].Daniel Wultz allegedly suffered severe physical injuries, resulting in his death, further resulting in economic injuries to his estate.Id.¶¶ 87, 100.Daniel's father also allegedly suffered physical injuries in the attack.Id.¶¶ 88, 101.Finally, several of Daniel's family members allegedly also suffered emotional and financial injuries.Id.¶¶ 101–02.

In the wake of the bombing, Mr. Wultz's estate and family members (“plaintiffs”) have brought suit against several defendants, including BOC.See FAC.Concerning BOC, plaintiffs specifically allege that between 2003 and the date of the attack, “BOC executed dozens of dollar wire transfers for the PIJ, totaling several million dollars.”Id.¶ 69.These transfers allegedly “were initiated by the PIJ leadership in Iran, Syria[,] and elsewhere in the Middle East, and were executed by and through BOC's branches in the United States.”Id.Transferred moneys were allegedly received into accounts owned by officers and agents of the PIJ and used “for the purpose of planning, preparing for[,] and executing terrorist attacks” in general.Id.¶¶ 69–70.These transfers, therefore, allegedly “substantially increased and facilitated PIJ's ability to plan, to prepare for[,] and to carry out” the particular bombing at issue in this case.Id.¶¶ 74, 92.

During the years when the alleged transfers were made, the PIJ was designated by the U.S. Department of State as a “foreign terrorist organization.”Review of Designation of Foreign Terrorist Organizations, 74 Fed.Reg. 4069, 4069(Jan. 22, 2009);Redesignation of Foreign Terrorist Organizations, 68 Fed.Reg. 56,860, at 56,861(Oct. 2, 2003);Designation of Foreign Terrorist Organizations, 64 Fed.Reg....