EFTA00795030.pdf

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 765 ate as 349 F.Supp2d 765 (S.D.N.Y. 2005) taro general jurisdiction over them, all granted in part and denied in part. Plain- claims asserted against those individual tiffs' claims alleging takings in violation of defendants are dismissed for lack of per- international law, promissory estoppel, eq- sonal jurisdiction. uitable estoppel, and unjust enrichment— counts seven, nine, and ten in the com- 3. Plaintiffs Are Entitled to Jurisdic- plaint—are hereby dismissed as against tional Discovery as to Privatbank's the Sovereign defendants. In addition, the Investing Activities in the United motion of individual defendants Horath States and Buchmann to dismiss the complaint [37] Plaintiffs point out that Privat- for lack of personal jurisdiction is granted bank's website and its 2001 Annual Report and all claims asserted against those de- state that Privatbank engages in transac- fendants are hereby dismissed. tions involving securities issued in the United States. (2001 Annual Report at 3, Because this Court finds that an issue of attached to Affidavit of Frances E. Bivens jurisdictional fact exists as to the existence at Exhibit B). There is no allegation that of general jurisdiction pursuant to Rule transactions are related to the claims as- 4(k)(2) as to corporate defendant Privat- serted here. Accordingly, they are only bank, its motion to dismiss is denied with- relevant to this Court's determination of out prejudice to its renewal pending con- whether the exercise of general jurisdic- clusion of jurisdictional discovery on that tion over Privatbank is warranted pursu- issue. ant to Rule 4(kX2) for having such "con- tinuous and systematic general business contacts" with the United States. See Aerogroup Intl, Inc., 956 F.Supp. at 439. Because plaintiffs have identified a gen- uine issue of jurisdictional fact, the ques- In re: TERRORIST ATTACKS ON tion of general jurisdiction cannot be re- SEPTEMBER 11, 2001 solved on the pleadings and affidavits alone. Thus, plaintiffs are entitled to ju- Burnett v. Al Baraka Inv. & Der. Corp. risdictional discovery regarding the extent Ashton v. Al Qaeda Islamic Army of defendant Privatbank's general business Tremsky v. Qsama Bin Laden Salvo v. contacts with the United States in the Al Qaeda Islamic Army Burnett v. Al years 1992-1998, a period that includes Baraka Inv. & Der. Corp. Federal In- the relevant period in this action and five surance v. Al Qaida Barrera v. Al Qae- preceding years. See In re Magnetic Au- da Islamic Army Vigilant Insurance v. diotape Antitrust Litig., 334 F.3d at 207- Kingdom of Saudi Arabia 08; see also, Metropolitan Life Ins. Co., 84 Nos. 03 MDL 1570(RCC), 02 CIV. 1616, F.3d at 569-70 (holding that the time peri- 02 CIV. 6977, 02 CIV. 7300, 03 CIV. od relevant for determining extent of a 5071, 03 CIV. 5738, 03 CIV. 6978, 03 defendant's contacts for general jurisdic- CIV. 7036, 03 CIV. 8591. tion purpose should include a number of years prior to the events giving rise to the United States District Court, claims asserted). S.D. New York IV. CONCLUSION Jan. 18, 2005. For the reasons set forth above, the Background: Survivors, family members, Sovereign defendants' motion to dismiss is and representatives of victims of Septem- EFTA00795030 766 349 FEDERAL SUPPLEMENT, 2d SERIES ber 11, 2001 terrorist attacks, as well as (6) claims against Saudi Arabia arising insurance carriers, brought actions against from alleged decisions to make charita- al Qaeda, al Qaeda's members and associ- ble contributions were barred by dis- ates, alleged state sponsors of terrorism, cretionary function exception to torts and individuals and entities who allegedly exception of FSIA; provided support to Al Qaeda, asserting (7) survivors failed to make prima fade causes of action under Torture Victim Pro- showing necessary to establish person- tection Act (TVPA), Antiterrorism Act al jurisdiction over Princes and others (ATA), Alien Tort Claims Act (ATCA), and under New York's long-arm statute; Racketeer Influenced and Corrupt Organi- zations Act (RICO), as well as claims for (8) modified due process standard appro- aiding and abetting, conspiracy, intentional priate for mass torts would not be infliction of emotional distress, negligence, applied to question of personal juris- survival, wrongful death, trespass, and as- diction; sault and battery. Actions were consoliclab (9) allegations were insufficient to estab- ed by Multiclistrict Litigation Panel. Vari- lish general personal jurisdiction over ous defendants fded motions to dismiss. Princes; Holdings: The District Court, Casey, J., (10) survivors failed to establish personal held that jurisdiction over founder of Saudi (1) jurisdictional discovery was warranted Arabian company; on issue whether Saudi Arabian bank (11) limited discovery would be permitted was immune under Foreign Sovereign with regard to whether Saudi Arabian Immunities Act (FSIA); bank's contacts with United States (2) claims against Saudi Arabia and two of were sufficient for exercise of person- its officials based on alleged contribu- al jurisdiction; tions to charities were not subject to commercial activities exception of (12) survivors failed to establish personal FSIA; jurisdiction over director of charity; (3) complaint alleging that Saudi Princes (13) jurisdictional discovery was warrant- contributed to charities that supported ed to determine if Saudi Arabian con- al Qaecla failed to allege causal connec- struction company purposefully di- tion sufficient to satisfy New York rected its activities at United States; standard for concerted action liability, (14) jurisdictional discovery was warrant- for purposes of torts exception of ed to determine which of charitable FSIA; network's entities had presence in (4) claims against Saudi Arabian Prince Virginia, for purposes of personal ju- arising from alleged contributions to risdiction; charities were barred by discretionary (15) survivors made prima fade showing function exception to torts exception of of personal jurisdiction over bank FSIA; chairman; (5) claims against Saudi Arabian Prince arising from alleged decisions regard- (16) survivors failed to state cause of ac- ing treatment of Taliban and al Qaecla tion under RICO; leader were barred by discretionary (17) attacks were extreme and outrageous, function exception to torts exception of as required for intentional infliction of FSIA; emotional distress; EFTA00795031  IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 767 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) (18) survivors failed to state cause of ac- dence that one of the statute's exceptions tion under ATA against banks; and nullifies the immunity. 28 U.S.C.A. (19) survivors stated cause of action § 1602 et seq.; Fed.Rules Civ.Proc.Rule against bank chairman under ATA. 12(b)(1), 28 U.S.C.A. Order accordingly. 6. International Law e=10.38 In challenging the District Court's 1. Federal Courts cl=157 subject matter jurisdiction under the For- Although district court would review eign Sovereign Immunities Act (FSIA) on and give deference to opinion issued by a motion to dismiss, the defendants retain judge of another district court prior to the ultimate burden of persuasion. 28 transfer of case by Multidistrict Litigation U.S.CA. § 1602 et seq.; Fed.Rules Civ. Panel, district court was required to evalu- Proc.Rule 12(b)(1), 28 U.S.C.A. ate motions to dismiss on merits de novo, 7. International Law e=10.38 and was bound by Second Circuit law, not The District Court must consult out- District of Columbia law, which was ap- side evidence if resolution of a proffered plied by the other district court 28 factual issue may result in the dismissal of U.S.CA. § 1407; Fed.Rules Civ.Proc.Rule a complaint, pursuant to the Foreign Sov- 12(b), 28 U.S.C.A. ereign Immunities Act (FSIA), for lack of 2. International Law e=10.38 jurisdiction. 28 U.S.CA. § 1602 et seq.; Under the Foreign Sovereign Immu- Fed.Rules Civ.Proc.Rule 12(b)(1), 28 nities Act (FSIA), a foreign state and its U.S.CA. instrumentalities are presumed immune 8. Federal Civil Procedure c=1264 from United States courts' jurisdiction. 28 A delicate balance exists between U.S.CA. § 1602 et seq. permitting discovery to substantiate ex- 3. International Law e=10.31 ceptions to statutory foreign sovereign im- The exceptions to immunity provided munity and protecting a sovereign's or by the Foreign Sovereign Immunities Act sovereign's agency's legitimate claim to (FSIA) provide the sole basis for obtaining immunity from discovery. 28 subject matter jurisdiction over a foreign § 1602 et seq. state and its instrumentalities in federal 9. International Law C=40.38 court. 28 U.S.C.A. § 1602 et seq. In deciding whether a defendant is 4. International Law e=07 entitled to immunity under the Foreign A federal court must inquire at the Sovereign Immunities Act (FSIA), the Dis- threshold of every action against a foreign trict Court gives great weight to any ex- state whether the exercise of its jurisdic- trinsic submissions made by the foreign tion is appropriate. defendant regarding the scope of his offi- cial responsibilities. 28 U.S.C.A. § 1602 et 5. International Law e=10.38 seq. On a motion to dismiss challenging subject matter jurisdiction under the For- 10. International Law C=.10.33 eign Sovereign Immunities Act (FSIA), Director of Saudi Arabia's Depart- the defendant must fast present a prima ment of General Intelligence (DGI) was fade case that it is a foreign sovereign; in immune from Antiterrorism Act (ATM response, the plaintiff must present evi- suit by survivors of victims of Septem- EFTA00795032 768 349 FEDERAL SUPPLEMENT, 2d SERIES ber 11, 2001 attacks for his official acts, 1603(b)(2); Fed.Rules Civ.Proc.Rule notwithstanding that he was also Saudi 12(b)(2), 28 U.S.C.A. Arabia's ambassador to United Kingdom, 14. International Law C=10.33 unless exception to Foreign Sovereign Immunities Act (FSIA) applied. 18 In deciding whether to apply the com- U.S.C.A. § 2331 et seq.; 28 U.S.CA mercial activities exception to the Foreign §1603. Sovereign Immunities Act (FSIA), courts must inquire whether the foreign state's 11. International Law C=10.33 actions are the type of actions by which a Saudi Arabia's Minister of Defense private party engages in trade and traffic and Aviation, as third-highest ranking or commerce. 28 U.S.C.A. § 1605(a)(2). member of Saudi government, was im- mune from Antiterrorism Act (ATA) suit 15. International Law C=10.33 by survivors of victims of September 11, To extent that Antiterrorism Act 2001 attacks for his official acts, unless (ATA) claims against Saudi Arabia and exception to Foreign Sovereign Immuni- two of its government officials by survivors ties Act (FSIA) applied. 18 U.S.CA of victims of September 11, 2001 attacks * 2331 et seq.; 28 U.S.C.A. § 1603. were based on defendants' alleged contri- butions to charities, those alleged acts 12. International Law C=10.34 were not commercial and thus were not Saudi Arabia's ownership of bank was subject to commercial activities exception required to be direct for bank to enjoy of Foreign Sovereign Immunities Act immunity, pursuant to Foreign Sovereign (FSIA), even if alleged acts constituted Immunities Act (FSIA), from Antiterror- money laundering. 18 U.S.C.A. ** 1956, ism Act (ATA) suit by survivors of victims 2331 et seq.; 28 U.S.C.A. § 1605(a)(2). of September 11, 2001 attacks; that is, bank would not be immune as instrumen- 16. International Law C=10.33 tality of Saudi Arabia if its majority owner, For purposes of the commercial activi- known as Public Investment Fund (PIF), ty exception to the Foreign Sovereign Im- was agency, instrumentality, or organ of munities Act (FSIA), a commercial activity Saudi Arabia. 18 U.S.C.A. § 2331 et seq.; must be one in which a private person can 28 U.S.CA. § 1603(13)(2). engage lawfully. 28 U.S.C.A. § 1605(aK2). 13. Federal Civil Procedure C=1264 17. International Law C=10.33 Limited jurisdictional discovery was Since money laundering is an illegal warranted, on Saudi Arabian bank's mo- activity, it cannot be the basis for applica- tion to dismiss Antiterrorism Act (ATA) bility of the commercial activities exception suit filed by survivors of victims of Sep- to the Foreign Sovereign Immunities Act tember 11, 2001 attacks, on issue whether (FSIA). 18 U.S.C.A. § 1956; 28 U.S.C.A. bank was immune under Foreign Sover- 1605(a)(2). eign Immunities Act (FSIA), where resolu- tion of status of bank's majority owner was 18. International Law C=10.33 not determinable on current record, major- Foreign Sovereign Immunities Act ity owner might qualify either as organ or (FSIA) exception for state sponsors of ter- political subdivision of Saudi Arabia, and rorism did not apply to Antiterrorism Act parties' affidavits had not been subjected (ATA) claims against Saudi Arabia and to cross examination and were self-serving. two of its government officials by survivors 18 U.S.CA. § 2331 et seq.; 28 U.S.CA of victims of September 11, 2001 attacks, EFTA00795033  IN RE TERRORIST ATTACKS ON SEPTEMBER IL 2001 769 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) where parties agreed that Saudi Arabia of the defendants, in pursuance of the had not been designated state sponsor of agreement, of an act that constitutes a terrorism. 18 U.S.CA. § 2331 et seq.; 28 tort. U.S.C.A. § 1605(aX7)(A). 23. Conspiracy cz=,2 19. International Law C=.10.33 Under New York law, liability for con- Generally, acts are "discretionary," for spiracy requires an agreement to commit a purposes of the discretionary function ex- tortious act. ception to the torts exception of the For- eign Sovereign Immunities Act (FSIA), if 24. Torts c=21 the acts are performed at the planning Under New York law, aiding and level of government, as opposed to the abetting liability requires that the defen- operational level. 28 U.S.C.A dant have given substantial assistance or 1605(a)(5). encouragement to the primary wrongdoer. See publication Words and Phras- es for other judicial constructions and definitions. 25. International Law C=.10.43 Antiterrorism Act (ATA) complaint by 20. International Law C=.10.33 survivors of victims of September 11, 2001 To fit within the torts exception of the attacks, alleging that Saudi Princes con- Foreign Sovereign Immunities Act (FSIA), tributed to charities that supported al plaintiffs must come forward with evidence Qaeda, and that al Qaeda repeatedly and demonstrating that the defendants tor- publicly targeted United States, failed to tious acts or omissions caused the plain- allege causal connection sufficient to satis- tiffs' injuries. 28 U.S.C.A. § 1605(a)(5). fy New York standard for concerted action 21. International Law C=40.33 liability, for purposes of torts exception of To extent that Saudi Arabian Princes Foreign Sovereign Immunities Act alleged donations to charities that sup- (FSIA), absent allegations from which it ported terrorist organizations were made could be inferred that Princes knew chari- in Princes' personal capacities, Antiterror- ties were fronts for al Qaeda. 18 U.S.C.A. ism Act (ATA) claims arising from such § 2331 et seq.; 28 U.S.CA. * 1605(a)(5). alleged donations, asserted by survivors of 26. International Law C=.10.43 victims of September 11, 2001 attacks, were not subject to protection of torts To allege a causal connection suffi- exception of Foreign Sovereign Immuni- cient to invoke the torts exception of the ties Act (FSIA). 18 U.S.CA. § 2331 et Foreign Sovereign Immunities Act (FSIA), seq.; 28 U.S.CA. § 1605(a)(5). in connection with a defendant's contribu- tions to organizations that are not them- 22. Conspiracy C=>1.1 selves designated terrorists, there must be Torts C=.21 some facts presented to support the allega- In New York, conspiracy and aiding tion that the defendant knew the receiving and abetting are varieties of concerted ac- organization to be a solicitor, collector, tion liability, for which there must be: (1) supporter•, front or launderer for such an an express or tacit agreement to partici- entity; there must be some facts to support pate in a common plan or design to commit an inference that the defendant knowingly a tortious act; (2) tortious conduct by each provided assistance or encouragement to defendant; and (3) the commission by one the wrongdoer. 28 U.S.CA. § 1605(a)(5). EFTA00795034 770 349 FEDERAL SUPPLEMENT, 2d SERIES 27. International Law C=10.43 30. International Law C=10.33 Plaintiffs may not circumvent the ju- Alleged decisions regarding treatment risdictional hurdle of the Foreign Sover- of Taliban and al Qaeda leader made by eign Immunities Act (FSIA) by inserting Saudi Prince, as head of Saudi Arabia's vague and conclusory allegations of tor- Department of General Intelligence (DGI), were discretionary, such that Antiterror- tious conduct in their complaints, and then ism Act (ATM claims against Prince by relying on the federal courts to conclude survivors of victims of September 11, 2001 that some conceivable non-discretionary attacks arising from such alleged decisions tortious act falls within the purview of were barred by discretionary function ex- these generic allegations under the appli- ception to torts exception of Foreign Sov- cable substantive law. 28 U.S.C.A. ereign Immunities Act (FSIA). 18 1605(a)(5). § 2331 et seq.; 28 U.S.CA 28. International Law C=10.33 1605(a)(2). In determining whether functions are 31. International Law C=10.33 discretionary, for purposes of the discre- Saudi Arabia's decisions to make char- tionary function exception to the torts ex- itable contributions to organizations that ception of the Foreign Sovereign Immuni- allegedly supported terrorism were discre- ties Act (FSIA), the District Court must tionary, such that Antiterrorism Act (ATA) decide whether the actions involved an ele- claims against Saudi Arabia by survivors ment of choice or judgment based on con- of victims of September 11, 2001 attacks siderations of public policy. 28 U.S.CA. arising from contributions were barred by 1605(a)(5). discretionary function exception to torts exception of Foreign Sovereign Immuni- 29. International Law C=10.33 ties Act (FSIA). 18 U.S.CA. § 2331 et seq.; 28 U.S.CA. § 1605(a)(2). Alleged decisions to make charitable contributions to terrorist organizations, 32. International Law C=10.32 made by Saudi Arabian Prince, as chair- A waiver of Foreign Sovereign Immu- man of Supreme Council of Islamic Af- nities Act (FSIA) immunity must be ex- fairs, which was charged with making plicit. 28 U.S.CA § 1602 et seq. recommendations to Council of Ministers 33. Federal Courts C=96 regarding requests for aid from Islamic Because motions to dismiss for lack of organizations located abroad, and as head personal jurisdiction were brought before of Special Committee of Council of Minis- discovery and decided without evidentiary ters, which was charged with deciding hearing, plaintiffs were required only to which grants should be made to Islamic make prima fade showing that personal charities, were discretionary, such that jurisdiction existed in order to survive mo- Antiterrorism Act (ATA) claims against tions. Fed.Rules Civ.Proc.Rule 12(6)(2), Prince by survivors of victims of Septem- 28 U.S.CA. ber 11, 2001 attacks arising from such alleged contributions were barred by dis- 34. Federal Courts C=96 cretionary function exception to torts ex- In responding to motions to dismiss ception of Foreign Sovereign Immunities for lack of personal jurisdiction brought Act (FSIA). 18 U.S.CA. § 2331 et seq.; before discovery and decided without evi- 28 U.S.CA § 1605(a)(2). dentiary hearing, plaintiffs could rely en- EFTA00795035  IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 771 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) tirely on factual allegations, and would specific facts warranting the inference that prevail even if defendants made contrary the defendant was a member of the con- arguments. Fed.Rules Civ.Proc.Rule spiracy, and show that the defendant's co- 12(b)(2), 28 U.S.C.A. conspirator committed a tort in New York. N.Y.McKinney's CPLR 302(a)(2). 35. Federal Courts C=.96 In resolving motions to dismiss for 41. Courts C=,12(2.20) lack of personal jurisdiction, the district To warrant the inference that an out- court reads the complaints and affidavits of-state defendant was a member of a con- in a light most favorable to the plaintiffs. spiracy, as required for a court to exercise Fecl.Rules Civ.Proc.Rule 12(b)(2), 28 personal jurisdiction under New York's U.S.C.A. long-arm statute on the basis of the acts of 36. Federal Courts C=.96 co-conspirators in New York, plaintiffs must show that. (1) the defendant had an In resolving a motion to dismiss for awareness of the effects in New York of its lack of personal jurisdiction, the district activity; (2) the activity of the co-conspira- court will not accept legally conclusory tors in New York was to the benefit of the assertions or draw argumentative infer- out-of-state conspirators; and (3) the co- ences. Fed.Rules Civ.Proc.Rule 12(6)(2), conspirators acting in New York acted at 28 U.S.C.A. the direction or under the control or at the 37. Federal Courts C=.417 request of or on behalf of the out-of-state A federal court sitting in diversity ex- defendant. N.Y.McKinney's CPLR ercises personal jurisdiction over a foreign 302(a)(2). defendant to the same extent as courts of general jurisdiction of the state in which it 42. Federal Courts C=.94, 96 sits. Fed.Rules Civ.Proc.Rule 4(k)(1)(A), Allegations by victims' survivors, that 28 U.S.C.A. various defendants, including Saudi Ara- bian Princes, conspired with al Qaeda ter- 38. Courts C=42(2.20) n-mists to perpetrate September 11, 2001 For New York's long-arm statute to attacks, failed to make prima facie showing provide a basis for personal jurisdiction in necessary to establish personal jurisdiction a civil conspiracy action, the plaintiffs are as to Antiterrorism Act (ATA) claims un- not required to establish the existence of a der New York's long-arm statute, absent formal agency relationship between the de- specific facts from which district court fendants and their putative co-conspira- could infer that defendants directed, con- tors. N.Y.McKinney's CPLR 302(a)(2). trolled, or requested al Qaeda to under- 39. Courts (>42(2.20) take its terrorist activities, or specific alle- The bland assertion of conspiracy is gations of defendants' knowledge of or insufficient to establish personal jurisdic- consent to those activities. 18 U.S.C.A. tion under New York's long-arm statute. § 2331 et seq.; N.Y.McKinney's CPLR N.Y.McKinney's CPLR 302(a)(2). 302(a)(2). 40. Courts C=12(2.20) 43. Constitutional Law erD305(5) To establish personal jurisdiction on a Federal Courts O)76.5 conspiracy theory under New York's long- For jurisdiction to exist under the arm statute, the plaintiffs must make a rule establishing personal jurisdiction in prima facie showing of conspiracy, allege any district court for cases arising under EFTA00795036 772 349 FEDERAL SUPPLEMENT, 2d SERIES federal law where the defendant has suffi- 47. Constitutional Law e=305(4.1) cient contacts with the United States as a Depending on the basis for personal whole but is not subject to jurisdiction in jurisdiction, due process under either the any particular state, there must be a fed- Fifth or Fourteenth Amendment applies. eral claim, personal jurisdiction must not U.S.CA. Const.Amends. 5, 14. exist over the defendant in any state, and the defendant must have sufficient con- 48. Courts 0 , 12(2.5) tacts with the United States as a whole Personal jurisdiction under the New such that the exercise of jurisdiction does York long-arm statute requires minimum not violate Fifth Amendment due process. contacts with New York pursuant to the U.S.C.A. ConstAmend. 5; Fed.Rules Civ. Fourteenth Amendment. U.S.CA. Const. Proc.Rule 4(kX2), 28 U.S.C.A. Amend. 14; N.Y.McKinney's CPLR 302(a)(2). 44. Constitutional Law e=305(5) To comply with the Due Process 49. Constitutional Law e=305(5) Clause, jurisdiction based on the Antiter- Pursuant to the Fifth Amendment, rorism Act (ATA), or on the rule establish- personal jurisdiction, under the rule estab- ing personal jurisdiction in any district lishing personal jurisdiction in any district court for cases arising under federal law court for cases arising under federal law where the defendant has sufficient con- where the defendant has sufficient con- tacts with the United States as a whole but tacts with the United States as a whole but is not subject to jurisdiction in any particu- is not subject to jurisdiction in any particu- lar state, requires minimum contacts with lar state, requires contacts with the United the United States, which may be estab- States as a whole. U.S.CA. ConstAmend. lished under a "personally directed" theo- 5; Fed.Rules Civ.Proc.Rule 4(kX2), 28 ry. U.S.CA ConstAmend. 5; 18 U.S.C.A. U.S.CA. § 2334(a); Fed.Rules Civ.Proc.Rule 4(k)(2), 50. Constitutional Law e=305(5) 28 U.S.CA The clue process minimum contacts 45. Constitutional Law e=105(5) requirement is known as "fah• warning," Federal Courts '76.25, 86 such that the defendant's contacts with the Modified due process standard appro- forum should be sufficient to make it rea- priate for mass torts would not be applied sonable to be haled into court there. to question whether district court had per- U.S.CA. Const.Amends. 5, 14. sonal jurisdiction over Saudi Arabian 51. Constitutional Law e=305(5) Princes and other defendants in Antiter- rorism Act (ATA) action by survivors of The "fair warning" requirement of the victims of September 11, 2001 attacks, giv- Due Process Clause is satisfied if the de- en questions as to defendants' contacts fendant has purposefully directed his activ- with forum and attenuated nature of their ities at the residents of the forum and the alleged involvement with al Qaeda. litigation results from alleged injuries that U.S.CA. ConstAmend. 5; 18 U.S.CA. arise out of or relate to those activities. § 2331 et seq. U.S.CA. Const.Amends. 5, 14. 46. Constitutional Law C=305(4.1) 52. Constitutional Law e=305(5) Any exercise of personal jurisdiction Federal Courts '76.5, 76.10 must comport with the requirements of For purposes of the minimum contacts due process. U.S.C.A. ConstAmend. 5. inquiry required by the Due Process EFTA00795037  IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 773 Cut as 349 F.Supp-2d 765 (S.D.N.Y. 2003) Clause, a distinction is made between spe- basis for the exercise of jurisdiction or cific and general jurisdiction, such that where discovery would not uncover suffi- "specific jurisdiction" exists when the fo- cient facts to sustain jurisdiction. rum exercises jurisdiction over the defen- dant in a suit arising out of the defendant's 57. Federal Courts C=94 contacts with that forum, while "general Allegations that Saudi Royal Family jurisdiction" is based on the defendant's members owned substantial assets in and general business contacts with the forum; did substantial business in United States, because the defendant's contacts are not and used profits therefrom to fund inter- related to the suit, a considerably higher national terrorist acts, including those level of contacts is generally required for leading to September 11 attacks, and that general jurisdiction. U.S.C.A. Const. Saudi Arabian Prince was ex-officio Chair- Amends. 5, 14. man of Board of Saudi Arabia Airlines, Sec publication Words and Phras- which did business in United States and es for other judicial constructions internationally, were insufficient to estab- and definitions. lish general personal jurisdiction over 53. Constitutional Law €=305(5) Prince in Antiterrorism Act (ATA) action In determining whether the exercise by survivors of victims of September 11 of personal jurisdiction is reasonable under attacks. 18 U.S.C.A. § 2331 et seq. the Due Process Clause, a court is to 58. Federal Courts C=9,1 consider: (1) the burden that the exercise of jurisdiction will impose on the defen- Allegations that Saudi Arabian Prince dant; (2) the interests in the forum state aided and abetted terrorism, and that he in adjudicating the case; (3) the plaintiffs donated to charities that he knew to be interest in obtaining convenient and effec- supporters of international terrorism, were tive relief; (4) the interstate judicial sys- insufficient to establish personal jurisdic- tem's interest in obtaining the most effi- tion under "purposefully directed activi- cient resolution of the controversy; and (5) ties" theory in Antiterrorism Act (ATA) the shared interest of the states in further- action by survivors of victims of Septem- ing substantive social policies. U.S.C.A ber 11, 2001 attacks. 18 U.S.C.A. § 2331 Const.Amends. 5, 14. et seq. 54. Federal Courts c=86 59. Federal Courts C=94 In general, great care and reserve Allegations that Saudi Arabian Prince should be exercised when extending no- donated money to charities were insuffi- tions of personal jurisdiction into the inter- cient to establish personal jurisdiction in national field. Antiterrorism Act (ATA) action by surviv- 55. Federal Civil Procedure C=1267.1 ors of victims of September 11, 2001 at- In evaluating jurisdictional motions, tacks, absent specific factual allegations that he knew charities were funding mon- district courts enjoy broad discretion in deciding whether to order discovery. ey to terrorists. 18 U.S.CA. § 2331 et seq. 56. Federal Civil Procedure C=1269.1 Courts are not obligated to subject a 60. Federal Courts C=86 foreign defendant to discovery where the Saudi Arabian Prince's alleged con- allegations of jurisdictional facts, con- tacts with United States, during ten-year strued in plaintiffs' favor, fail to state a period prior to September 11, 2001 at- EFTA00795038 774 349 FEDERAL SUPPLEMENT, 2d SERIES tacks, consisting of one speech in United Qaeda, was insufficient to establish person- States, and handful of investments in Unit- al jurisdiction in Antiterrorism Act (ATA) ed States through banks with which he action by survivors of victims of Septem- was affiliated, were not sufficiently sys- ber 11, 2001 attacks, inasmuch as list did tematic and continuous for general person- not establish his involvement in terrorist al jurisdiction in Antiterrorism Act (ATA) conspiracy culminating in attacks and did action by survivors of victims of attacks. not demonstrate that he purposefully di- 18 U.S.CA. § 2331 et seq. rected his activities at United States. 18 U.S.CA. § 2331 et seq. 61. Federal Courts e=76.20, 86 Even assuming that district court had 65. Federal Courts e=97 personal jurisdiction over Saudi Arabian Limited discovery would be permitted, financial institutions in Antiterrorism Act at dismissal stage of Antiterrorism Act (ATA) action by survivors of victims of (ATA) action by survivors of victims of September 11, 2001 attacks, Saudi Arabian September 11, 2001 attacks, with regard to Prince's position as officer of such institu- whether Saudi Arabian bank's contacts tions was not basis for personal jurisdic- with United States were sufficient for ex- tion over him, where there was no allega- ercise of personal jtuisdiction consistent tion he had knowledge or involvement in with due process, inasmuch as contacts, any al Qaeda accounts at any banks he including former presence of bank's chaired. 18 U.S.C.A. § 2331 et seq. branch office and subsidiary in United States, bank's instigation of lawsuit in 62. Courts C=12(2.20) United States, and its advertisements in The mere fact that a corporation is United States publications, when taken to- subject to jurisdiction in New York does gether, might establish personal jurisdic- not mean that individual officers may be tion. U.S.CA. Const_Amencl. 5; 18 hauled before New York courts without U.S.CA. § 2331 et seq.; Fed.Rules Civ. any showing that the individuals them- Proc.Rule 12(b)(1), 28 U.S.C.A. selves maintained a presence or conducted business in New York. 66. Federal Courts e=94 Allegations of survivors of victims of 63. Federal Courts e=96 September 11, 2001 attacks were insuffi- Even assuming that name of founder cient to establish personal jurisdiction over of Saudi Arabian company appeared in director of charity in Antiterrorism Act "Golden Chain," which allegedly listed ear- (ATA) action, inasmuch as complaint did ly direct donors to al Qaeda, such list was not contain any specific actions by director insufficient to establish personal jurisdic- from which district court could infer that tion in Antiterrorism Act (ATA) action by he purposefully directed his activities at survivors of victims of September 11, 2001 United States, his affiliations with entities attacks, absent indications of who wrote that were alleged to have United States list, when it was written, or for what pur- contacts would not sustain jurisdiction, and pose it was written. 18 U.S.C.A. § 2331 et his being shareholder in United States seq. company was not sufficient for jurisdiction. 18 U.S.CA. § 2331 et seq. 64. Federal Courts e=96 Appearance of Saudi Arabian watch 67. Federal Courts e=94 retailer's name in "Golden Chain," which Allegations of survivors of victims of allegedly listed early direct donors to al September 11, 2001 attacks were insuffi- EFTA00795039  IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 775 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) dent to establish personal jurisdiction in 71. War and National Emergency c=50 Antiterrorism Act (ATA) action over indi- To prove that defendants provided viduals allegedly affiliated with Saudi Ara- material support to terrorists, in violation bian construction company, inasmuch as of Antiterrorism Act (ATA), plaintiffs were complaint did not contain any factual alle- required to present sufficient causal con- gations from which district court could in- nection between that support and injuries fer that they purposefully directed their suffered by plaintiffs; proximate cause activities at United States, that they were would support such connection. 18 members of conspiracy pursuant to New U.S.C.A. §§ 2339A(b), 2339B(g). York long-arm statute, or that they had any general business contacts with United 72. Conspiracy e=i1.1 States. 18 U.S.C.A. § 2331 et seq.; Torts C=.21 N.Y.McKinney's CPLR 302(a)(2). To be liable for conspiracy or aiding 68. Federal Courts C=97 and abetting under New York law, a de- Jurisdictional discovery was warrant- fendant must know the wrongful nature of ed, at dismissal stage of Antiterrorism Act the primary actor's conduct, and the con- (ATA) action by survivors of victims of duct must be tied to a substantive cause of September 11, 2001 attacks, to determine action. if Saudi Arabian construction company 73. International Law C=40.11 purposefully directed its activities at Unit- Aircraft hijacking is generally recog- ed States for purposes of personal jurisdic- nized as violation of international law, for tion. Fed.Rules Civ.Proc.Rule 12(bX2), 28 purposes of the requirement that an act be U.S.CA. committed in violation of international law 69. Federal Courts C=097 in order to be subject to the Alien Tort Discovery would be permitted, at dis- Claims Act (ATCA). 28 U.S.C.A. § 1350. missal stage of Antiterrorism Act (ATA) 74. Racketeer Influenced and Corrupt action by survivors of victims of Septem- Organizations C=075 ber 11, 2001 attacks, to determine which of charitable network's entities had presence Survivors of victims of September 11, in Virginia, and which entities transferred 2001 attacks failed to allege injury from money to alleged al Qaeda operatives, for defendants' alleged investment of racke- purposes of determining whether personal teering income, and thus failed to state jurisdiction existed over network. Fed. cause of action in complaint for violations Rules Civ.Proc.Rule 12(b)(2), 28 U.S.CA. of Racketeer Influenced and Corrupt Or- ganizations Act (RICO) provision prohibit- 70. Federal Courts C=.96 ing receipt of income derived from pattern Survivors of victims of September 11, of racketeering activity. 18 U.S.C.A. 2001 attacks made prima fade showing of § 1962(a). personal jurisdiction over bank chairman in Antiterrorism Act (ATA) action, by al- 75. Racketeer Influenced and Corrupt leging, inter alia, that Department of Organizations C=i50 Treasury designated him as Specially Des- A defendant must have had some part ignated Global Terrorist, and that he was in directing the operation or management involved in United States operations of of the enterprise itself to be liable under designated terrorist organization. 18 the Racketeer Influenced and Corrupt Or- U.S.CA. § 2331 et seq. ganizations Act (RICO) provision prohibit- EFTA00795040 776 349 FEDERAL SUPPLEMENT, 2d SERIES ing participation in the conduct of an en- acy theory, survivors of victims of Sep- terprise's affairs through a pattern of tember 11, 2001 attacks were required to racketeering activity. 18 U.S.C.A. allege that defendants were involved in § 1962(c). agreement to accomplish unlawful act and that attacks were reasonably foreseeable 76. Racketeer Influenced and Corrupt consequence of that conspiracy; survivors Organizations C=60 did not have to allege that defendants Allegations of complaint filed by sur- knew specifically about attacks or that vivors of victims of September 11, 2001 they committed any specific act in fur- attacks, including that bank and charitable therance of attacks. 18 U.S.C.A. network may have assisted al Qaeda, failed § 2333(a). to state cause of action under Racketeer Influenced and Corrupt Organizations Act 81. Death e=11(3.1) (RICO) conspiracy provision, or provision Survivors of victims of September 11, prohibiting participation in conduct of en- 2002 attacks could state claims for wrong- terprise's affairs through pattern of racke- ful death and survival under New York law teering activity, in that allegations did not if they were personal representatives of include anything approaching active man- victims and sufficiently alleged that defen- agement or operation. 18 U.S.C.A. dants supported, aided and abetted, or * 1962(c, d). conspired with September 11 terrorists. N.Y.McKinney's EPTL 5-4.1, 11-3.2(6). 77. International Law C=10.11 Only individuals may be sued under 82. Assault and Battery 43=21 the Torture Victim Pr