IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 ate as 349 F.Supp2d 765 (S.D.N.Y. 2005) taro general jurisdiction over them, all claims asserted against those individual defendants are dismissed for lack of per- sonal jurisdiction. 3. Plaintiffs Are Entitled to Jurisdic- tional Discovery as to Privatbank's Investing Activities in the United States [37] Plaintiffs point out that Privat- bank's website and its 2001 Annual Report state that Privatbank engages in transac- tions involving securities issued in the United States. (2001 Annual Report at 3, attached to Affidavit of Frances E. Bivens at Exhibit B). There is no allegation that transactions are related to the claims as- serted here. Accordingly, they are only relevant to this Court's determination of whether the exercise of general jurisdic- tion over Privatbank is warranted pursu- 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- tion of general jurisdiction cannot be re- solved on the pleadings and affidavits alone. Thus, plaintiffs are entitled to ju- risdictional discovery regarding the extent of defendant Privatbank's general business contacts with the United States in the years 1992-1998, a period that includes the relevant period in this action and five preceding years. See In re Magnetic Au- diotape Antitrust Litig., 334 F.3d at 207- 08; see also, Metropolitan Life Ins. Co., 84 F.3d at 569-70 (holding that the time peri- od relevant for determining extent of a defendant's contacts for general jurisdic- tion purpose should include a number of years prior to the events giving rise to the claims asserted). IV. CONCLUSION For the reasons set forth above, the Sovereign defendants' motion to dismiss is 765 granted in part and denied in part. Plain- tiffs' claims alleging takings in violation of international law, promissory estoppel, eq- uitable estoppel, and unjust enrichment — counts seven, nine, and ten in the com- plaint—are hereby dismissed as against the Sovereign defendants. In addition, the motion of individual defendants Horath and Buchmann to dismiss the complaint for lack of personal jurisdiction is granted and all claims asserted against those de- fendants are hereby dismissed. Because this Court finds that an issue of jurisdictional fact exists as to the existence of general jurisdiction pursuant to Rule 4(k)(2) as to corporate defendant Privat- bank, its motion to dismiss is denied with- out prejudice to its renewal pending con- clusion of jurisdictional discovery on that issue. In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001 Burnett v. Al Baraka Inv. & Der. Corp. Ashton v. Al Qaeda Islamic Army Tremsky v. Qsama Bin Laden Salvo v. Al Qaeda Islamic Army Burnett v. Al Baraka Inv. & Der. Corp. Federal In- surance v. Al Qaida Barrera v. Al Qae- da Islamic Army Vigilant Insurance v. Kingdom of Saudi Arabia Nos. 03 MDL 1570(RCC), 02 CIV. 1616, 02 CIV. 6977, 02 CIV. 7300, 03 CIV. 5071, 03 CIV. 5738, 03 CIV. 6978, 03 CIV. 7036, 03 CIV. 8591. United States District Court, S.D. New York Jan. 18, 2005. Background: Survivors, family members, and representatives of victims of Septem- EFTA00795030 766 349 FEDERAL SUPPLEMENT, 2d SERIES ber 11, 2001 terrorist attacks, as well as insurance carriers, brought actions against al Qaeda, al Qaeda's members and associ- ates, alleged state sponsors of terrorism, and individuals and entities who allegedly provided support to Al Qaeda, asserting causes of action under Torture Victim Pro- tection Act (TVPA), Antiterrorism Act (ATA), Alien Tort Claims Act (ATCA), and Racketeer Influenced and Corrupt Organi- zations Act (RICO), as well as claims for aiding and abetting, conspiracy, intentional infliction of emotional distress, negligence, survival, wrongful death, trespass, and as- sault and battery. Actions were consoliclab ed by Multiclistrict Litigation Panel. Vari- ous defendants fded motions to dismiss. Holdings: The District Court, Casey, J., held that (1) jurisdictional discovery was warranted on issue whether Saudi Arabian bank was immune under Foreign Sovereign Immunities Act (FSIA); (2) claims against Saudi Arabia and two of its officials based on alleged contribu- tions to charities were not subject to commercial activities exception of FSIA; (3) complaint alleging that Saudi Princes contributed to charities that supported al Qaecla failed to allege causal connec- tion sufficient to satisfy New York standard for concerted action liability, for purposes of torts exception of FSIA; (4) claims against Saudi Arabian Prince arising from alleged contributions to charities were barred by discretionary function exception to torts exception of FSIA; (5) claims against Saudi Arabian Prince arising from alleged decisions regard- ing treatment of Taliban and al Qaecla leader were barred by discretionary function exception to torts exception of FSIA; (6) claims against Saudi Arabia arising from alleged decisions to make charita- ble contributions were barred by dis- cretionary function exception to torts exception of FSIA; (7) survivors failed to make prima fade showing necessary to establish person- al jurisdiction over Princes and others under New York's long-arm statute; (8) modified due process standard appro- priate for mass torts would not be applied to question of personal juris- diction; (9) allegations were insufficient to estab- lish general personal jurisdiction over Princes; (10) survivors failed to establish personal jurisdiction over founder of Saudi Arabian company; (11) limited discovery would be permitted with regard to whether Saudi Arabian bank's contacts with United States were sufficient for exercise of person- al jurisdiction; (12) survivors failed to establish personal jurisdiction over director of charity; (13) jurisdictional discovery was warrant- ed to determine if Saudi Arabian con- struction company purposefully di- rected its activities at United States; (14) jurisdictional discovery was warrant- ed to determine which of charitable network's entities had presence in Virginia, for purposes of personal ju- risdiction; (15) survivors made prima fade showing of personal jurisdiction over bank chairman; (16) survivors failed to state cause of ac- tion under RICO; (17) attacks were extreme and outrageous, as required for intentional infliction of emotional distress; EFTA00795031 IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) (18) survivors failed to state cause of ac- tion under ATA against banks; and (19) survivors stated cause of action against bank chairman under ATA. Order accordingly. 1. Federal Courts cl=157 Although district court would review and give deference to opinion issued by judge of another district court prior to transfer of case by Multidistrict Litigation Panel, district court was required to evalu- ate motions to dismiss on merits de novo, and was bound by Second Circuit law, not District of Columbia law, which was ap- plied by the other district court 28 U.S.CA. § 1407; Fed.Rules Civ.Proc.Rule 12(b), 28 U.S.C.A. 2. International Law e=10.38 Under the Foreign Sovereign Immu- nities Act (FSIA), a foreign state and its instrumentalities are presumed immune from United States courts' jurisdiction. 28 U.S.CA. § 1602 et seq. 3. International Law e=10.31 The exceptions to immunity provided by the Foreign Sovereign Immunities Act (FSIA) provide the sole basis for obtaining subject matter jurisdiction over a foreign state and its instrumentalities in federal court. 28 U.S.C.A. § 1602 et seq. 4. International Law e=07 A federal court must inquire at the threshold of every action against a foreign state whether the exercise of its jurisdic- tion is appropriate. 5. International Law e=10.38 On a motion to dismiss challenging subject matter jurisdiction under the For- eign Sovereign Immunities Act (FSIA), the defendant must fast present a prima fade case that it is a foreign sovereign; in response, the plaintiff must present evi-767 dence that one of the statute's exceptions nullifies the immunity. 28 U.S.C.A. § 1602 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. 6. International Law e=10.38 In challenging the District Court's subject matter jurisdiction under the For- eign Sovereign Immunities Act (FSIA) on a motion to dismiss, the defendants retain the ultimate burden of persuasion. 28 U.S.CA. § 1602 et seq.; Fed.Rules Civ. Proc.Rule 12(b)(1), 28 U.S.C.A. 7. International Law e=10.38 The District Court must consult out- side evidence if resolution of a proffered factual issue may result in the dismissal of a complaint, pursuant to the Foreign Sov- ereign Immunities Act (FSIA), for lack of jurisdiction. 28 U.S.CA. § 1602 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.CA. 8. Federal Civil Procedure c=1264 A delicate balance exists between permitting discovery to substantiate ex- ceptions to statutory foreign sovereign im- munity and protecting a sovereign's or sovereign's agency's legitimate claim to immunity from discovery. 28 § 1602 et seq. 9. International Law C=40.38 In deciding whether a defendant is entitled to immunity under the Foreign Sovereign Immunities Act (FSIA), the Dis- trict Court gives great weight to any ex- trinsic submissions made by the foreign defendant regarding the scope of his offi- cial responsibilities. 28 U.S.C.A. § 1602 et seq. 10. International Law C=.10.33 Director of Saudi Arabia's Depart- ment of General Intelligence (DGI) was immune from Antiterrorism Act (ATM suit by survivors of victims of Septem- EFTA00795032 768 349 FEDERAL SUPPLEMENT, 2d SERIES ber 11, 2001 attacks for his official acts, notwithstanding that he was also Saudi Arabia's ambassador to United Kingdom, unless exception to Foreign Sovereign Immunities Act (FSIA) applied. 18 U.S.C.A. § 2331 et seq.; 28 U.S.CA §1603. 11. International Law C=10.33 Saudi Arabia's Minister of Defense and Aviation, as third-highest ranking member of Saudi government, was im- mune from Antiterrorism Act (ATA) suit by survivors of victims of September 11, 2001 attacks for his official acts, unless exception to Foreign Sovereign Immuni- ties Act (FSIA) applied. 18 U.S.CA * 2331 et seq.; 28 U.S.C.A. § 1603. 12. International Law C=10.34 Saudi Arabia's ownership of bank was required to be direct for bank to enjoy immunity, pursuant to Foreign Sovereign Immunities Act (FSIA), from Antiterror- ism Act (ATA) suit by survivors of victims of September 11, 2001 attacks; that is, bank would not be immune as instrumen- tality of Saudi Arabia if its majority owner, known as Public Investment Fund (PIF), was agency, instrumentality, or organ of Saudi Arabia. 18 U.S.C.A. § 2331 et seq.; 28 U.S.CA. § 1603(13)(2). 13. Federal Civil Procedure C=1264 Limited jurisdictional discovery was warranted, on Saudi Arabian bank's mo- tion to dismiss Antiterrorism Act (ATA) suit filed by survivors of victims of Sep- tember 11, 2001 attacks, on issue whether bank was immune under Foreign Sover- eign Immunities Act (FSIA), where resolu- tion of status of bank's majority owner was not determinable on current record, major- ity owner might qualify either as organ or political subdivision of Saudi Arabia, and parties' affidavits had not been subjected to cross examination and were self-serving. 18 U.S.CA. § 2331 et seq.; 28 U.S.CA 1603(b)(2); Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A. 14. International Law C=10.33 In deciding whether to apply the com- mercial activities exception to the Foreign Sovereign Immunities Act (FSIA), courts must inquire whether the foreign state's actions are the type of actions by which a private party engages in trade and traffic or commerce. 28 U.S.C.A. § 1605(a)(2). 15. International Law C=10.33 To extent that Antiterrorism Act (ATA) claims against Saudi Arabia and two of its government officials by survivors of victims of September 11, 2001 attacks were based on defendants' alleged contri- butions to charities, those alleged acts were not commercial and thus were not subject to commercial activities exception of Foreign Sovereign Immunities Act (FSIA), even if alleged acts constituted money laundering. 18 U.S.C.A. ** 1956, 2331 et seq.; 28 U.S.C.A. § 1605(a)(2). 16. International Law C=10.33 For purposes of the commercial activi- ty exception to the Foreign Sovereign Im- munities Act (FSIA), a commercial activity must be one in which a private person can engage lawfully. 28 U.S.C.A. § 1605(aK2). 17. International Law C=10.33 Since money laundering is an illegal activity, it cannot be the basis for applica- bility of the commercial activities exception to the Foreign Sovereign Immunities Act (FSIA). 18 U.S.C.A. § 1956; 28 U.S.C.A. 1605(a)(2). 18. International Law C=10.33 Foreign Sovereign Immunities Act (FSIA) exception for state sponsors of ter- rorism did not apply to Antiterrorism Act (ATA) claims against Saudi Arabia and two of its government officials by survivors of victims of September 11, 2001 attacks, EFTA00795033 IN RE TERRORIST ATTACKS ON SEPTEMBER IL 2001 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) where parties agreed that Saudi Arabia had not been designated state sponsor of terrorism. 18 U.S.CA. § 2331 et seq.; 28 U.S.C.A. § 1605(aX7)(A). 19. International Law C=.10.33 Generally, acts are "discretionary," for purposes of the discretionary function ex- ception to the torts exception of the For- eign Sovereign Immunities Act (FSIA), if the acts are performed at the planning level of government, as opposed to the operational level. 28 U.S.C.A 1605(a)(5). See publication Words and Phras- es for other judicial constructions and definitions. 20. International Law C=.10.33 To fit within the torts exception of the Foreign Sovereign Immunities Act (FSIA), plaintiffs must come forward with evidence demonstrating that the defendants tor- tious acts or omissions caused the plain- tiffs' injuries. 28 U.S.C.A. § 1605(a)(5). 21. International Law C=40.33 To extent that Saudi Arabian Princes alleged donations to charities that sup- ported terrorist organizations were made in Princes' personal capacities, Antiterror- ism Act (ATA) claims arising from such alleged donations, asserted by survivors of victims of September 11, 2001 attacks, were not subject to protection of torts exception of Foreign Sovereign Immuni- ties Act (FSIA). 18 U.S.CA. § 2331 et seq.; 28 U.S.CA. § 1605(a)(5). 22. Conspiracy C=>1.1 Torts C=.21 In New York, conspiracy and aiding and abetting are varieties of concerted ac- tion liability, for which there must be: (1) an express or tacit agreement to partici- pate in a common plan or design to commit a tortious act; (2) tortious conduct by each defendant; and (3) the commission by one 769 of the defendants, in pursuance of the agreement, of an act that constitutes a tort. 23. Conspiracy cz=,2 Under New York law, liability for con- spiracy requires an agreement to commit a tortious act. 24. Torts c=21 Under New York law, aiding and abetting liability requires that the defen- dant have given substantial assistance or encouragement to the primary wrongdoer. 25. International Law C=.10.43 Antiterrorism Act (ATA) complaint by survivors of victims of September 11, 2001 attacks, alleging that Saudi Princes con- tributed to charities that supported al Qaeda, and that al Qaeda repeatedly and publicly targeted United States, failed to allege causal connection sufficient to satis- fy New York standard for concerted action liability, for purposes of torts exception of Foreign Sovereign Immunities Act (FSIA), absent allegations from which it could be inferred that Princes knew chari- ties were fronts for al Qaeda. 18 U.S.C.A. § 2331 et seq.; 28 U.S.CA. * 1605(a)(5). 26. International Law C=.10.43 To allege a causal connection suffi- cient to invoke the torts exception of the Foreign Sovereign Immunities Act (FSIA), in connection with a defendant's contribu- tions to organizations that are not them- selves designated terrorists, there must be some facts presented to support the allega- tion that the defendant knew the receiving organization to be a solicitor, collector, supporter•, front or launderer for such an entity; there must be some facts to support an inference that the defendant knowingly provided assistance or encouragement to the wrongdoer. 28 U.S.CA. § 1605(a)(5). EFTA00795034 770 349 FEDERAL SUPPLEMENT, 2d SERIES 27. International Law C=10.43 Plaintiffs may not circumvent the ju- risdictional hurdle of the Foreign Sover- eign Immunities Act (FSIA) by inserting vague and conclusory allegations of tor- tious conduct in their complaints, and then relying on the federal courts to conclude that some conceivable non-discretionary tortious act falls within the purview of these generic allegations under the appli- cable substantive law. 28 U.S.C.A. 1605(a)(5). 28. International Law C=10.33 In determining whether functions are discretionary, for purposes of the discre- tionary function exception to the torts ex- ception of the Foreign Sovereign Immuni- ties Act (FSIA), the District Court must decide whether the actions involved an ele- ment of choice or judgment based on con- siderations of public policy. 28 U.S.CA. 1605(a)(5). 29. International Law C=10.33 Alleged decisions to make charitable contributions to terrorist organizations, made by Saudi Arabian Prince, as chair- man of Supreme Council of Islamic Af- fairs, which was charged with making recommendations to Council of Ministers regarding requests for aid from Islamic organizations located abroad, and as head of Special Committee of Council of Minis- ters, which was charged with deciding which grants should be made to Islamic charities, were discretionary, such that Antiterrorism Act (ATA) claims against Prince by survivors of victims of Septem- ber 11, 2001 attacks arising from such alleged contributions were barred by dis- cretionary function exception to torts ex- ception of Foreign Sovereign Immunities Act (FSIA). 18 U.S.CA. § 2331 et seq.; 28 U.S.CA § 1605(a)(2). 30. International Law C=10.33 Alleged decisions regarding treatment of Taliban and al Qaeda leader made by Saudi Prince, as head of Saudi Arabia's Department of General Intelligence (DGI), were discretionary, such that Antiterror- ism Act (ATM claims against Prince by survivors of victims of September 11, 2001 attacks arising from such alleged decisions were barred by discretionary function ex- ception to torts exception of Foreign Sov- ereign Immunities Act (FSIA). 18 § 2331 et seq.; 28 U.S.CA 1605(a)(2). 31. International Law C=10.33 Saudi Arabia's decisions to make char- itable contributions to organizations that allegedly supported terrorism were discre- tionary, such that Antiterrorism Act (ATA) claims against Saudi Arabia by survivors of victims of September 11, 2001 attacks arising from contributions were barred by discretionary function exception to torts exception of Foreign Sovereign Immuni- ties Act (FSIA). 18 U.S.CA. § 2331 et seq.; 28 U.S.CA. § 1605(a)(2). 32. International Law C=10.32 A waiver of Foreign Sovereign Immu- nities Act (FSIA) immunity must be ex- plicit. 28 U.S.CA § 1602 et seq. 33. Federal Courts C=96 Because motions to dismiss for lack of personal jurisdiction were brought before discovery and decided without evidentiary hearing, plaintiffs were required only to make prima fade showing that personal jurisdiction existed in order to survive mo- tions. Fed.Rules Civ.Proc.Rule 12(6)(2), 28 U.S.CA. 34. Federal Courts C=96 In responding to motions to dismiss for lack of personal jurisdiction brought before discovery and decided without evi- dentiary hearing, plaintiffs could rely en- EFTA00795035 IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) tirely on factual allegations, and would prevail even if defendants made contrary arguments. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A. 35. Federal Courts C=.96 In resolving motions to dismiss for lack of personal jurisdiction, the district court reads the complaints and affidavits in a light most favorable to the plaintiffs. Fecl.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A. 36. Federal Courts C=.96 In resolving a motion to dismiss for lack of personal jurisdiction, the district court will not accept legally conclusory assertions or draw argumentative infer- ences. Fed.Rules Civ.Proc.Rule 12(6)(2), 28 U.S.C.A. 37. Federal Courts C=.417 A federal court sitting in diversity ex- ercises personal jurisdiction over a foreign defendant to the same extent as courts of general jurisdiction of the state in which it sits. Fed.Rules Civ.Proc.Rule 4(k)(1)(A), 28 U.S.C.A. 38. Courts C=42(2.20) For New York's long-arm statute to provide a basis for personal jurisdiction in a civil conspiracy action, the plaintiffs are not required to establish the existence of a formal agency relationship between the de- fendants and their putative co-conspira- tors. N.Y.McKinney's CPLR 302(a)(2). 39. Courts (>42(2.20) The bland assertion of conspiracy is insufficient to establish personal jurisdic- tion under New York's long-arm statute. N.Y.McKinney's CPLR 302(a)(2). 40. Courts C=12(2.20) To establish personal jurisdiction on a conspiracy theory under New York's long- arm statute, the plaintiffs must make a prima facie showing of conspiracy, allege 771 specific facts warranting the inference that the defendant was a member of the con- spiracy, and show that the defendant's co- conspirator committed a tort in New York. N.Y.McKinney's CPLR 302(a)(2). 41. Courts C=,12(2.20) To warrant the inference that an out- of-state defendant was a member of a con- spiracy, as required for a court to exercise personal jurisdiction under New York's long-arm statute on the basis of the acts of co-conspirators in New York, plaintiffs must show that. (1) the defendant had an awareness of the effects in New York of its activity; (2) the activity of the co-conspira- tors in New York was to the benefit of the out-of-state conspirators; and (3) the co- conspirators acting in New York acted at the direction or under the control or at the request of or on behalf of the out-of-state defendant. N.Y.McKinney's CPLR 302(a)(2). 42. Federal Courts C=.94, 96 Allegations by victims' survivors, that various defendants, including Saudi Ara- bian Princes, conspired with al Qaeda ter- n-mists to perpetrate September 11, 2001 attacks, failed to make prima facie showing necessary to establish personal jurisdiction as to Antiterrorism Act (ATA) claims un- der New York's long-arm statute, absent specific facts from which district court could infer that defendants directed, con- trolled, or requested al Qaeda to under- take its terrorist activities, or specific alle- gations of defendants' knowledge of or consent to those activities. 18 U.S.C.A. § 2331 et seq.; N.Y.McKinney's CPLR 302(a)(2). 43. Constitutional Law erD305(5) Federal Courts O)76.5 For jurisdiction to exist under the rule establishing personal jurisdiction in any district court for cases arising under EFTA00795036 772 349 FEDERAL SUPPLEMENT, 2d SERIES federal law where the defendant has suffi- cient contacts with the United States as a whole but is not subject to jurisdiction in any particular state, there must be a fed- eral claim, personal jurisdiction must not exist over the defendant in any state, and the defendant must have sufficient con- tacts with the United States as a whole such that the exercise of jurisdiction does not violate Fifth Amendment due process. U.S.C.A. ConstAmend. 5; Fed.Rules Civ. Proc.Rule 4(kX2), 28 U.S.C.A. 44. Constitutional Law e=305(5) To comply with the Due Process Clause, jurisdiction based on the Antiter- rorism Act (ATA), or on the rule establish- ing personal jurisdiction in any district court for cases arising under federal law where the defendant has sufficient con- tacts with the United States as a whole but is not subject to jurisdiction in any particu- lar state, requires minimum contacts with the United States, which may be estab- lished under a "personally directed" theo- ry. U.S.CA ConstAmend. 5; 18 U.S.C.A. § 2334(a); Fed.Rules Civ.Proc.Rule 4(k)(2), 28 U.S.CA 45. Constitutional Law e=105(5) Federal Courts '76.25, 86 Modified due process standard appro- priate for mass torts would not be applied to question whether district court had per- sonal jurisdiction over Saudi Arabian Princes and other defendants in Antiter- rorism Act (ATA) action by survivors of victims of September 11, 2001 attacks, giv- en questions as to defendants' contacts with forum and attenuated nature of their alleged involvement with al Qaeda. U.S.CA. ConstAmend. 5; 18 U.S.CA. § 2331 et seq. 46. Constitutional Law C=305(4.1) Any exercise of personal jurisdiction must comport with the requirements of due process. U.S.C.A. ConstAmend. 5. 47. Constitutional Law e=305(4.1) Depending on the basis for personal jurisdiction, due process under either the Fifth or Fourteenth Amendment applies. U.S.CA. Const.Amends. 5, 14. 48. Courts 0,12(2.5) Personal jurisdiction under the New York long-arm statute requires minimum contacts with New York pursuant to the Fourteenth Amendment. U.S.CA. Const. Amend. 14; N.Y.McKinney's CPLR 302(a)(2). 49. Constitutional Law e=305(5) Pursuant to the Fifth Amendment, personal jurisdiction, under the rule estab- lishing personal jurisdiction in any district court for cases arising under federal law where the defendant has sufficient con- tacts with the United States as a whole but is not subject to jurisdiction in any particu- lar state, requires contacts with the United States as a whole. U.S.CA. ConstAmend. 5; Fed.Rules Civ.Proc.Rule 4(kX2), 28 U.S.CA. 50. Constitutional Law e=305(5) The clue process minimum contacts requirement is known as "fah• warning," such that the defendant's contacts with the forum should be sufficient to make it rea- sonable to be haled into court there. U.S.CA. Const.Amends. 5, 14. 51. Constitutional Law e=305(5) The "fair warning" requirement of the Due Process Clause is satisfied if the de- fendant has purposefully directed his activ- ities at the residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. U.S.CA. Const.Amends. 5, 14. 52. Constitutional Law e=305(5) Federal Courts '76.5, 76.10 For purposes of the minimum contacts inquiry required by the Due Process EFTA00795037 IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 Cut as 349 F.Supp-2d 765 (S.D.N.Y. 2003) Clause, a distinction is made between spe- cific and general jurisdiction, such that "specific jurisdiction" exists when the fo- rum exercises jurisdiction over the defen- dant in a suit arising out of the defendant's contacts with that forum, while "general jurisdiction" is based on the defendant's general business contacts with the forum; because the defendant's contacts are not related to the suit, a considerably higher level of contacts is generally required for general jurisdiction. U.S.C.A. Const. Amends. 5, 14. Sec publication Words and Phras- es for other judicial constructions and definitions. 53. Constitutional Law €=305(5) In determining whether the exercise of personal jurisdiction is reasonable under the Due Process Clause, a court is to consider: (1) the burden that the exercise of jurisdiction will impose on the defen- dant; (2) the interests in the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effec- tive relief; (4) the interstate judicial sys- tem's interest in obtaining the most effi- cient resolution of the controversy; and (5) the shared interest of the states in further- ing substantive social policies. U.S.C.A Const.Amends. 5, 14. 54. Federal Courts c=86 In general, great care and reserve should be exercised when extending no- tions of personal jurisdiction into the inter- national field. 55. Federal Civil Procedure C=1267.1 In evaluating jurisdictional motions, district courts enjoy broad discretion in deciding whether to order discovery. 56. Federal Civil Procedure C=1269.1 Courts are not obligated to subject a foreign defendant to discovery where the allegations of jurisdictional facts, con- strued in plaintiffs' favor, fail to state a 773 basis for the exercise of jurisdiction or where discovery would not uncover suffi- cient facts to sustain jurisdiction. 57. Federal Courts C=94 Allegations that Saudi Royal Family members owned substantial assets in and did substantial business in United States, and used profits therefrom to fund inter- national terrorist acts, including those leading to September 11 attacks, and that Saudi Arabian Prince was ex-officio Chair- man of Board of Saudi Arabia Airlines, which did business in United States and internationally, were insufficient to estab- lish general personal jurisdiction over Prince in Antiterrorism Act (ATA) action by survivors of victims of September 11 attacks. 18 U.S.C.A. § 2331 et seq. 58. Federal Courts C=9,1 Allegations that Saudi Arabian Prince aided and abetted terrorism, and that he donated to charities that he knew to be supporters of international terrorism, were insufficient to establish personal jurisdic- tion under "purposefully directed activi- ties" theory in Antiterrorism Act (ATA) action by survivors of victims of Septem- ber 11, 2001 attacks. 18 U.S.C.A. § 2331 et seq. 59. Federal Courts C=94 Allegations that Saudi Arabian Prince donated money to charities were insuffi- cient to establish personal jurisdiction in Antiterrorism Act (ATA) action by surviv- ors of victims of September 11, 2001 at- tacks, absent specific factual allegations that he knew charities were funding mon- ey to terrorists. 18 U.S.CA. § 2331 et seq. 60. Federal Courts C=86 Saudi Arabian Prince's alleged con- tacts with United States, during ten-year period prior to September 11, 2001 at- EFTA00795038 774 349 FEDERAL SUPPLEMENT, 2d SERIES tacks, consisting of one speech in United States, and handful of investments in Unit- ed States through banks with which he was affiliated, were not sufficiently sys- tematic and continuous for general person- al jurisdiction in Antiterrorism Act (ATA) action by survivors of victims of attacks. 18 U.S.CA. § 2331 et seq. 61. Federal Courts e=76.20, 86 Even assuming that district court had personal jurisdiction over Saudi Arabian financial institutions in Antiterrorism Act (ATA) action by survivors of victims of September 11, 2001 attacks, Saudi Arabian Prince's position as officer of such institu- tions was not basis for personal jurisdic- tion over him, where there was no allega- tion he had knowledge or involvement in any al Qaeda accounts at any banks he chaired. 18 U.S.C.A. § 2331 et seq. 62. Courts C=12(2.20) The mere fact that a corporation is subject to jurisdiction in New York does not mean that individual officers may be hauled before New York courts without any showing that the individuals them- selves maintained a presence or conducted business in New York. 63. Federal Courts e=96 Even assuming that name of founder of Saudi Arabian company appeared in "Golden Chain," which allegedly listed ear- ly direct donors to al Qaeda, such list was insufficient to establish personal jurisdic- tion in Antiterrorism Act (ATA) action by survivors of victims of September 11, 2001 attacks, absent indications of who wrote list, when it was written, or for what pur- pose it was written. 18 U.S.C.A. § 2331 et seq. 64. Federal Courts e=96 Appearance of Saudi Arabian watch retailer's name in "Golden Chain," which allegedly listed early direct donors to al Qaeda, was insufficient to establish person- al jurisdiction in Antiterrorism Act (ATA) action by survivors of victims of Septem- ber 11, 2001 attacks, inasmuch as list did not establish his involvement in terrorist conspiracy culminating in attacks and did not demonstrate that he purposefully di- rected his activities at United States. 18 U.S.CA. § 2331 et seq. 65. Federal Courts e=97 Limited discovery would be permitted, at dismissal stage of Antiterrorism Act (ATA) action by survivors of victims of September 11, 2001 attacks, with regard to whether Saudi Arabian bank's contacts with United States were sufficient for ex- ercise of personal jtuisdiction consistent with due process, inasmuch as contacts, including former presence of bank's branch office and subsidiary in United States, bank's instigation of lawsuit in United States, and its advertisements in United States publications, when taken to- gether, might establish personal jurisdic- tion. U.S.CA. Const_Amencl. 5; 18 U.S.CA. § 2331 et seq.; Fed.Rules Civ. Proc.Rule 12(b)(1), 28 U.S.C.A. 66. Federal Courts e=94 Allegations of survivors of victims of September 11, 2001 attacks were insuffi- cient to establish personal jurisdiction over director of charity in Antiterrorism Act (ATA) action, inasmuch as complaint did not contain any specific actions by director from which district court could infer that he purposefully directed his activities at United States, his affiliations with entities that were alleged to have United States contacts would not sustain jurisdiction, and his being shareholder in United States company was not sufficient for jurisdiction. 18 U.S.CA. § 2331 et seq. 67. Federal Courts e=94 Allegations of survivors of victims of September 11, 2001 attacks were insuffi- EFTA00795039 IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 Cite as 349 F.Supp-2d 765 (S.D.N.Y. 2005) dent to establish personal jurisdiction in Antiterrorism Act (ATA) action over indi- viduals allegedly affiliated with Saudi Ara- bian construction company, inasmuch as complaint did not contain any factual alle- gations from which district court could in- fer that they purposefully directed their activities at United States, that they were members of conspiracy pursuant to New York long-arm statute, or that they had any general business contacts with United States. 18 U.S.C.A. § 2331 et seq.; N.Y.McKinney's CPLR 302(a)(2). 68. Federal Courts C=97 Jurisdictional discovery was warrant- ed, at dismissal stage of Antiterrorism Act (ATA) action by survivors of victims of September 11, 2001 attacks, to determine if Saudi Arabian construction company purposefully directed its activities at Unit- ed States for purposes of personal jurisdic- tion. Fed.Rules Civ.Proc.Rule 12(bX2), 28 U.S.CA. 69. Federal Courts C=097 Discovery would be permitted, at dis- missal stage of Antiterrorism Act (ATA) action by survivors of victims of Septem- ber 11, 2001 attacks, to determine which of charitable network's entities had presence in Virginia, and which entities transferred money to alleged al Qaeda operatives, for purposes of determining whether personal jurisdiction existed over network. Fed. Rules Civ.Proc.Rule 12(b)(2), 28 U.S.CA. 70. Federal Courts C=.96 Survivors of victims of September 11, 2001 attacks made prima fade showing of personal jurisdiction over bank chairman in Antiterrorism Act (ATA) action, by al- leging, inter alia, that Department of Treasury designated him as Specially Des- ignated Global Terrorist, and that he was involved in United States operations of designated terrorist organization. 18 U.S.CA. § 2331 et seq. 775 71. War and National Emergency c=50 To prove that defendants provided material support to terrorists, in violation of Antiterrorism Act (ATA), plaintiffs were required to present sufficient causal con- nection between that support and injuries suffered by plaintiffs; proximate cause would support such connection. 18 U.S.C.A. §§ 2339A(b), 2339B(g). 72. Conspiracy e=i1.1 Torts C=.21 To be liable for conspiracy or aiding and abetting under New York law, a de- fendant must know the wrongful nature of the primary actor's conduct, and the con- duct must be tied to a substantive cause of action. 73. International Law C=40.11 Aircraft hijacking is generally recog- nized as violation of international law, for purposes of the requirement that an act be committed in violation of international law in order to be subject to the Alien Tort Claims Act (ATCA). 28 U.S.C.A. § 1350. 74. Racketeer Influenced and Corrupt Organizations C=075 Survivors of victims of September 11, 2001 attacks failed to allege injury from defendants' alleged investment of racke- teering income, and thus failed to state cause of action in complaint for violations of Racketeer Influenced and Corrupt Or- ganizations Act (RICO) provision prohibit- ing receipt of income derived from pattern of racketeering activity. 18 U.S.C.A. § 1962(a). 75. Racketeer Influenced and Corrupt Organizations C=i50 A defendant must have had some part in directing the operation or management of the enterprise itself to be liable under the Racketeer Influenced and Corrupt Or- ganizations Act (RICO) provision prohibit- EFTA00795040 776 349 FEDERAL SUPPLEMENT, 2d SERIES ing participation in the conduct of an en- terprise's affairs through a pattern of racketeering activity. 18 U.S.C.A. § 1962(c). 76. Racketeer Influenced and Corrupt Organizations C=60 Allegations of complaint filed by sur- vivors of victims of September 11, 2001 attacks, including that bank and charitable network may have assisted al Qaeda, failed to state cause of action under Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy provision, or provision prohibiting participation in conduct of en- terprise's affairs through pattern of racke- teering activity, in that allegations did not include anything approaching active man- agement or operation. 18 U.S.C.A. * 1962(c, d). 77. International Law C=10.11 Only individuals may be sued under the Torture Victim Protection Act (TVPA). 28 U.S.CA. * 1350 note. 78. International Law C=10.11 Survivors of victims of September 11, 2001 attacks failed to state cause of action in complaint against two individuals under Torture Victim Protection Act (TVPA), where there were no allegations individu- als acted under color of law. 28 U.S.CA. § 1350 note. 79. War and National Emergency C=50 To adequately plead the provision of material support under the Antiterrorism Act (ATA), a plaintiff has to allege that the defendant knew about the terrorists' illegal activities, the defendant desired to help those activities succeed, and the defendant engaged in some act of helping those activ- ities. 18 U.S.C.A. § 2333(a). 80. Conspiracy C=7, 18 To state cause of action under Anti- terrorism Act (ATA) pursuant to conspir-acy theory, survivors of victims of Sep- tember 11, 2001 attacks were required to allege that defendants were involved in agreement to accomplish unlawful act and that attacks were reasonably foreseeable consequence of that conspiracy; survivors did not have to allege that defendants knew specifically about attacks or that they committed any specific act in fur- therance of attacks. 18 U.S.C.A. § 2333(a). 81. Death e=11(3.1) Survivors of victims of September 11, 2002 attacks could state claims for wrong- ful death and survival under New York law if they were personal representatives of victims and sufficiently alleged that defen- dants supported, aided and abetted, or conspired with September 11 terrorists. N.Y.McKinney's EPTL 5-4.1, 11-3.2(6). 82. Assault and Battery 43=21 Limitation of Actions Se31 The statute of limitations for assault and battery and intentional infliction of emotional distress claims under New York law is one year. N.Y.McKinney's CPLR 215(3). 83. Damages C=67.22 In actions for intentional infliction of emotional distress under New York law, courts are to determine whether the al- leged conduct is sufficiently extreme and outrageous enough to permit recovery. M. Damages C=67.25(1) Attacks of September 11, 2001 were extreme and outrageous, as required for liability for intentional infliction of emo- tional distress under New York law. 85. Trespass C=30 To extent that survivors of victims of September 11, 2001 attacks sufficiently pled that defendants acted in concert with September 11 hijackers, they stated cause EFTA00795041 IN RE TERRORIST ATTACKS ON SEPTEMBER IL 2001 ate as 349 F.Supp-2d 765 (S.D.N.Y. 2005) of action for trespass under New York law pursuant to concerted action theory. 86. Damages O57.14, 57.27 In New York, a plaintiff may establish negligent infliction of emotional distress under the bystander or direct duty theory. 87. Damages O57.27 Under the bystander theory for prov- ing negligent infliction of emotional dis- tress under New York law, a defendant's conduct is negligent as creating an unrea- sonable risk of bodily harm to a plaintiff, and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observa- tion of serious physical injury or death inflicted by the defendant's conduct on a member of the plaintiffs immediate family in his or her presence. 88. Damages O57.14 Under the direct duty theory for proving negligent infliction of emotional distress under New York law, a plaintiff suffers emotional distress caused by defen- dant's breach of a duty which unreason- ably endangered the plaintiffs own physi- cal safety. 89. Negligence 0,202 To establish a claim for negligence under New York law, a plaintiff must show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate cause of that breach. 90. Negligence O210 The most basic element of a negli- gence claim under New York law is the existence of a duty owed to plaintiffs by defendants. 777 91. Banks and Banking O100 Under New York negligence law, banks do not owe non-customers a duty to protect them from the intentional torts of their customers. 92. Damages O57.18 Negligence 0,210 Survivors of victims of September 11, 2001 attacks failed to state causes of action in complaint against alleged supporters of terrorists for negligence and negligent in- fliction of emotional distress, inasmuch as they failed to allege or identify duty owed to them by defendants. 93. War and National Emergency O50 In light of extreme nature of charge of terrorism, fairness required extra-careful scrutiny of allegations by survivors of vic- tims of September 11, 2001 attacks as to any particular defendant, to ensure that he, or it, had fair notice of claims, includ- ing claims under Antiterrorism Act (ATA). 18 U.S.CA. * 2331 et seq. 94. Banks and Banking O226 Allegations in complaint by survivors of victims of September 11, 2001 attacks, that Saudi Arabian bank aided and abetted terrorists by donating to charities and act- ing as bank for charities, failed to state cause of action under Antiterrorism Act (ATA) against bank, in that survivors of- fered no facts to support conclusion that bank knew of charities' alleged support for terrorism, and failed to allege relationship between Hamas, with which bank allegedly had ties, and September 11 terrorists. 18 U.S.CA. § 2331 et seq. 95. Conspiracy e=.1.1 Torts 0,21 Under New York law, concerted ac- tion liability, pursuant to a conspiracy or aiding and abetting theory, requires gener- al knowledge of the primary actor's con- duct. EFTA00795042 778 349 FEDERAL SUPPLEMENT, 2d SERIES 96. Banks and Banking C=126 Allegations in complaint by survivors of victims of September 11, 2001 attacks, that bank based in Rihaclh, Saudi Arabia provided material support to al Qaeda, failed to state cause of action under Anti- terrorism Act (ATA) against bank, absent allegations that bank knew that anything relating to terrorism was occurring through services it provided. 18 U.S.CA. § 2331 et seq. 97. Banks and Banking C=126 Allegations in complaints by survivors of victims of September 11, 2001 attacks, that bank headquartered in Egypt provid- ed financial services and other material support to terrorist organizations including al Qaecla, failed to state cause of action under Antiterrorism Act (ATA) against bank, in that complaints did not include facts to support inference that bank knew or had to know that it was providing mate- rial support to terrorists by providing fi- nancial services to charities or by process- ing wire transfers in Spain. 18 U.S.C.A. § 2331 et seq. 98. Brokers e=.106 War and National Emergency 6=50 Allegations in complaints by survivors of victims of September 11, 2001 attacks failed to state cause of action under Anti- terrorism Act (ATA) against investment company based in Jeddah, Saudi Arabia or against Saudi Arabian bank founder, in that majority of allegations regarding in- vestment company actually concerned an- other entity, survivors alleged that compa- ny supported charity but did not allege that company knew that charity was sup- porting terrorism, and allegation that em- ployee of other entity's subsidiary finan- cially supported two hijackers did not translate into allegation that bank founder provided material support to terrorism or aided and abetted those who provided ma- terial support 18 U.S.CA. § 2331 et seq. 99. Federal Civil Procedure 04269.1 Limited jurisdictional discovery was warranted, on Saudi Arabian bank's mo- tion to dismiss Antiterrorism Act (ATA) suit by survivors of victims of September 11, 2001 attacks, as to issue whether bank was immune from suit as instrumentality of Saudi Arabia, and as to whether District Court could exercise personal jurisdiction over bank. 18 U.S.C.A. § 2331 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(2, 6), 28 U.S.CA. 100. Federal Civil Procedure +::.1269.1 Limited jurisdictional discovery was anted, on Saudi Arabian construction company's motion to dismiss Antiterrorism Act (ATA) suit by survivors of victims of September 11, 2001 attacks, as to issue whether company purposefully directed its activities at United Slates, for purposes of personal jurisdiction. 18 U.S.C.A. § 2331 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.CA. 101. Federal Civil Procedure (3=1.269.1 Limited jurisdictional discovery was warranted, on charitable network's motion to dismiss Antiterrorism Act (ATA) suit by survivors of victims of September 11, 2001 attacks, as to which entities were subject to District Court's personal jurisdiction and whether entities transferred money to terror fronts. 18 U.S.C.A. § 2331 et seq.; Fed.Rules Civ.Proc.Rule 12(b)(2, 6), 28 U.S.CA. 102. War and National Emergency (Z=50 Allegations of complaint filed by sur- vivors of victims of September 11, 2001 attacks stated cause of action against bank chairman under Antiterrorism Act (ATA), in that allegations and his designation by Department of Treasury as Specially Des- ignated Global Terrorist were sufficient to EFTA00795043 IN RE TERRORIST ATTACKS ON SEPTEMBER IL 2001 ate as 349 F.Supp-2d 765 (S.D.N.Y. 2005) permit inference that he provided support to al Qaeda. 18 U.S.C.A. § 2331 et seq. Andrew J. Maloney, III, Blanca I. Rod- riguez, Brian J. Alexander, David Beek- man, David C. Cook, Francis G. Fleming, James P. Kreindler, Justin Timothy Green, Lee S. Kreindler, Marc 5. Moller, Milton G. Sincoff, Noah H. Kushlefsky, Paul S. Edelman, Robert James Spragg, Steven R. Pounian, Kreindler & Kreindler, New York City, Elliot R. Feldman, J. Scott Tarbutton, John M. Popilock, Sean P. Car- ter, Stephen A. Cozen, Cozen O'Connor (Philadelphia), Philadelphia, PA, for Plain- tiffs. David P. Gersch, Arnold & Porter, L.L.P., Donna M. Sheinbach, Michael D. McNeely, Nancy Luque, Steven A. Mad- dox, Gray Cary Ware and Friedenrich LLP (DC), Mitchell Rand Berger, Ronald Stanley Liebman, Patton Boggs LLP (DC), Martin Francis McMahon, Stephanie Wall Fell, Martin F. McMahon and Associ- ates, Thomas Peter Steindler, McDermott, Will and Emery (DC), James Ernest Gauch, Jennifer Allyson Shumaker, Jona- than Chapman Rose, Melissa Danielle Stear, Michael Peter Gurdak, Michael Rol- lin Shumaker, Stephen Joseph Brogan, Timothy John Finn, Jones Day (DC), Louis Richard Cohen, Wilmer, Cutler & Pickering (Washington), William Horace Jeffress, Jr., Christopher R. Cooper, Sara E. Kropf, Jamie S. Kilberg, Baker Botts LLP (DC), Christopher Mark Curran, White & Case LLP (DC), David Charles Frederick, John Christopher Rozendaal, Mark Charles Hansen, Michael John Guz- man, Michael K. Kellogg, Kellogg, Huber, Hansen, Todd & Evans PLLC (DC), Law- rence Saul Robbins, Robbins Russell Eng- lert Orseck & Untereiner LLP, Washing- ton, DC, Jean Engelmayer Kalicki, Arnold 779 & Porter, LLP, John Joseph Walsh, Car- ter Ledyarcl & Milburn LLP, Omar T. Mohammedi, Law Office of Omar T. Mo- hammedi, Brian Howard Polovoy, Shear- man & Sterling LLP (New York), Geoffrey S. Stewart, Michael Bradley, Jones Day, Matthew Phineas Previn, Wilmer, Cutler & Pickering, L.L.P., T. Barry Kingham, Curtis, Mallet—Prevost, Colt and Mosle LLP, New York City, Wilmer Parker, III, Gillen Parker and Withers LLC, Atlanta, GA, Lynne Bernabei, Man R. Rabat, Ber- nabei & Katz, PLLC, Washington, DC, for Defendants. Michael J. Somrni, Cozen O'Connor, New York City, for Mov