IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
765
tain general jurisdiction over them, all
claims asserted against those individual
defendants are dismissed for lack of personal
jurisdiction.
3. Plaintiffs Are Entitled to Jurisdictional
Discovery as to Privatbank’s
Investing Activities in the United
States
[37] Plaintiffs point out that Privatbank’s
website and its 2001 Annual Report
state that Privatbank engages in transactions
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 asserted
here. Accordingly, they are only
relevant to this Court’s determination of
whether the exercise of general jurisdiction
over Privatbank is warranted pursuant
to Rule 4(k)(2) for having such ‘‘continuous
and systematic general business
contacts’’ with the United States. See
Aerogroup Int’l, Inc., 956 F.Supp. at 439.
Because plaintiffs have identified a genuine
issue of jurisdictional fact, the question
of general jurisdiction cannot be resolved
on the pleadings and affidavits
alone. Thus, plaintiffs are entitled to jurisdictional
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 Audiotape
Antitrust Litig., 334 F.3d at 207–
08; see also, Metropolitan Life Ins. Co., 84
F.3d at 569–70 (holding that the time period
relevant for determining extent of a
defendant’s contacts for general jurisdiction
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
granted in part and denied in part. Plaintiffs’
claims alleging takings in violation of
international law, promissory estoppel, equitable
estoppel, and unjust enrichment—
counts seven, nine, and ten in the complaint—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 defendants
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 Privatbank,
its motion to dismiss is denied without
prejudice to its renewal pending conclusion
of jurisdictional discovery on that
issue.
,
In re: TERRORIST ATTACKS ON
SEPTEMBER 11, 2001
Burnett v. Al Baraka Inv. & Dev. Corp.
Ashton v. Al Qaeda Islamic Army
Tremsky v. Qsama Bin Laden Salvo v.
Al Qaeda Islamic Army Burnett v. Al
Baraka Inv. & Dev. Corp. Federal Insurance
v. Al Qaida Barrera v. Al Qaeda
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-
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 associates,
alleged state sponsors of terrorism,
and individuals and entities who allegedly
provided support to Al Qaeda, asserting
causes of action under Torture Victim Protection
Act (TVPA), Antiterrorism Act
(ATA), Alien Tort Claims Act (ATCA), and
Racketeer Influenced and Corrupt Organizations
Act (RICO), as well as claims for
aiding and abetting, conspiracy, intentional
infliction of emotional distress, negligence,
survival, wrongful death, trespass, and assault
and battery. Actions were consolidated
by Multidistrict Litigation Panel. Various
defendants filed 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 contributions
to charities were not subject to
commercial activities exception of
FSIA;
(3) complaint alleging that Saudi Princes
contributed to charities that supported
al Qaeda failed to allege causal connection
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 regarding
treatment of Taliban and al Qaeda
leader were barred by discretionary
function exception to torts exception of
FSIA;
(6) claims against Saudi Arabia arising
from alleged decisions to make charitable
contributions were barred by discretionary
function exception to torts
exception of FSIA;
(7) survivors failed to make prima facie
showing necessary to establish personal
jurisdiction over Princes and others
under New York’s long-arm statute;
(8) modified due process standard appropriate
for mass torts would not be
applied to question of personal jurisdiction;
(9) allegations were insufficient to establish
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 personal
jurisdiction;
(12) survivors failed to establish personal
jurisdiction over director of charity;
(13) jurisdictional discovery was warranted
to determine if Saudi Arabian construction
company purposefully directed
its activities at United States;
(14) jurisdictional discovery was warranted
to determine which of charitable
network’s entities had presence in
Virginia, for purposes of personal jurisdiction;
(15) survivors made prima facie showing
of personal jurisdiction over bank
chairman;
(16) survivors failed to state cause of action
under RICO;
(17) attacks were extreme and outrageous,
as required for intentional infliction of
emotional distress;
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
767
(18) survivors failed to state cause of action
under ATA against banks; and
(19) survivors stated cause of action
against bank chairman under ATA.
Order accordingly.
1. Federal Courts O157
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 evaluate
motions to dismiss on merits de novo,
and was bound by Second Circuit law, not
District of Columbia law, which was applied
by the other district court. 28
U.S.C.A. § 1407; Fed.Rules Civ.Proc.Rule
12(b), 28 U.S.C.A.
2. International Law O10.38
Under the Foreign Sovereign Immunities
Act (FSIA), a foreign state and its
instrumentalities are presumed immune
from United States courts’ jurisdiction. 28
U.S.C.A. § 1602 et seq.
3. International Law O10.31
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 O7
A federal court must inquire at the
threshold of every action against a foreign
state whether the exercise of its jurisdiction
is appropriate.
5. International Law O10.38
On a motion to dismiss challenging
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA),
the defendant must first present a prima
facie case that it is a foreign sovereign; in
response, the plaintiff must present evidence
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 O10.38
In challenging the District Court’s
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA) on
a motion to dismiss, the defendants retain
the ultimate burden of persuasion. 28
U.S.C.A. § 1602 et seq.; Fed.Rules Civ.
Proc.Rule 12(b)(1), 28 U.S.C.A.
7. International Law O10.38
The District Court must consult outside
evidence if resolution of a proffered
factual issue may result in the dismissal of
a complaint, pursuant to the Foreign Sovereign
Immunities Act (FSIA), for lack of
jurisdiction. 28 U.S.C.A. § 1602 et seq.;
Fed.Rules Civ.Proc.Rule 12(b)(1), 28
U.S.C.A.
8. Federal Civil Procedure O1264
A delicate balance exists between
permitting discovery to substantiate exceptions
to statutory foreign sovereign immunity
and protecting a sovereign’s or
sovereign’s agency’s legitimate claim to
immunity from discovery. 28 U.S.C.A.
§ 1602 et seq.
9. International Law O10.38
In deciding whether a defendant is
entitled to immunity under the Foreign
Sovereign Immunities Act (FSIA), the District
Court gives great weight to any extrinsic
submissions made by the foreign
defendant regarding the scope of his official
responsibilities. 28 U.S.C.A. § 1602 et
seq.
10. International Law O10.33
Director of Saudi Arabia’s Department
of General Intelligence (DGI) was
immune from Antiterrorism Act (ATA)
suit by survivors of victims of Septem-
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.C.A.
§ 1603.
11. International Law O10.33
Saudi Arabia’s Minister of Defense
and Aviation, as third-highest ranking
member of Saudi government, was immune
from Antiterrorism Act (ATA) suit
by survivors of victims of September 11,
2001 attacks for his official acts, unless
exception to Foreign Sovereign Immunities
Act (FSIA) applied. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1603.
12. International Law O10.34
Saudi Arabia’s ownership of bank was
required to be direct for bank to enjoy
immunity, pursuant to Foreign Sovereign
Immunities Act (FSIA), from Antiterrorism
Act (ATA) suit by survivors of victims
of September 11, 2001 attacks; that is,
bank would not be immune as instrumentality
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.C.A. § 1603(b)(2).
13. Federal Civil Procedure O1264
Limited jurisdictional discovery was
warranted, on Saudi Arabian bank’s motion
to dismiss Antiterrorism Act (ATA)
suit filed by survivors of victims of September
11, 2001 attacks, on issue whether
bank was immune under Foreign Sovereign
Immunities Act (FSIA), where resolution
of status of bank’s majority owner was
not determinable on current record, majority
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.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1603(b)(2); Fed.Rules Civ.Proc.Rule
12(b)(2), 28 U.S.C.A.
14. International Law O10.33
In deciding whether to apply the commercial
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 O10.33
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 contributions
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 O10.33
For purposes of the commercial activity
exception to the Foreign Sovereign Immunities
Act (FSIA), a commercial activity
must be one in which a private person can
engage lawfully. 28 U.S.C.A. § 1605(a)(2).
17. International Law O10.33
Since money laundering is an illegal
activity, it cannot be the basis for applicability
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 O10.33
Foreign Sovereign Immunities Act
(FSIA) exception for state sponsors of terrorism
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,
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
769
where parties agreed that Saudi Arabia
had not been designated state sponsor of
terrorism. 18 U.S.C.A. § 2331 et seq.; 28
U.S.C.A. § 1605(a)(7)(A).
19. International Law O10.33
Generally, acts are ‘‘discretionary,’’ for
purposes of the discretionary function exception
to the torts exception of the Foreign
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 Phrases
for other judicial constructions
and definitions.
20. International Law O10.33
To fit within the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
plaintiffs must come forward with evidence
demonstrating that the defendants’ tortious
acts or omissions caused the plaintiffs’
injuries. 28 U.S.C.A. § 1605(a)(5).
21. International Law O10.33
To extent that Saudi Arabian Princes’
alleged donations to charities that supported
terrorist organizations were made
in Princes’ personal capacities, Antiterrorism
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 Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et
seq.; 28 U.S.C.A. § 1605(a)(5).
22. Conspiracy O1.1
Torts O21
In New York, conspiracy and aiding
and abetting are varieties of concerted action
liability, for which there must be: (1)
an express or tacit agreement to participate
in a common plan or design to commit
a tortious act; (2) tortious conduct by each
defendant; and (3) the commission by one
of the defendants, in pursuance of the
agreement, of an act that constitutes a
tort.
23. Conspiracy O2
Under New York law, liability for conspiracy
requires an agreement to commit a
tortious act.
24. Torts O21
Under New York law, aiding and
abetting liability requires that the defendant
have given substantial assistance or
encouragement to the primary wrongdoer.
25. International Law O10.43
Antiterrorism Act (ATA) complaint by
survivors of victims of September 11, 2001
attacks, alleging that Saudi Princes contributed
to charities that supported al
Qaeda, and that al Qaeda repeatedly and
publicly targeted United States, failed to
allege causal connection sufficient to satisfy
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 charities
were fronts for al Qaeda. 18 U.S.C.A.
§ 2331 et seq.; 28 U.S.C.A. § 1605(a)(5).
26. International Law O10.43
To allege a causal connection sufficient
to invoke the torts exception of the
Foreign Sovereign Immunities Act (FSIA),
in connection with a defendant’s contributions
to organizations that are not themselves
designated terrorists, there must be
some facts presented to support the allegation
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.C.A. § 1605(a)(5).
770 349 FEDERAL SUPPLEMENT, 2d SERIES
27. International Law O10.43
Plaintiffs may not circumvent the jurisdictional
hurdle of the Foreign Sovereign
Immunities Act (FSIA) by inserting
vague and conclusory allegations of tortious
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 applicable
substantive law. 28 U.S.C.A.
§ 1605(a)(5).
28. International Law O10.33
In determining whether functions are
discretionary, for purposes of the discretionary
function exception to the torts exception
of the Foreign Sovereign Immunities
Act (FSIA), the District Court must
decide whether the actions involved an element
of choice or judgment based on considerations
of public policy. 28 U.S.C.A.
§ 1605(a)(5).
29. International Law O10.33
Alleged decisions to make charitable
contributions to terrorist organizations,
made by Saudi Arabian Prince, as chairman
of Supreme Council of Islamic Affairs,
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 Ministers,
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 September
11, 2001 attacks arising from such
alleged contributions were barred by discretionary
function exception to torts exception
of Foreign Sovereign Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et seq.;
28 U.S.C.A. § 1605(a)(2).
30. International Law O10.33
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 Antiterrorism
Act (ATA) claims against Prince by
survivors of victims of September 11, 2001
attacks arising from such alleged decisions
were barred by discretionary function exception
to torts exception of Foreign Sovereign
Immunities Act (FSIA). 18
U.S.C.A. § 2331 et seq.; 28 U.S.C.A.
§ 1605(a)(2).
31. International Law O10.33
Saudi Arabia’s decisions to make charitable
contributions to organizations that
allegedly supported terrorism were discretionary,
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 Immunities
Act (FSIA). 18 U.S.C.A. § 2331 et
seq.; 28 U.S.C.A. § 1605(a)(2).
32. International Law O10.32
A waiver of Foreign Sovereign Immunities
Act (FSIA) immunity must be explicit.
28 U.S.C.A. § 1602 et seq.
33. Federal Courts O96
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 facie showing that personal
jurisdiction existed in order to survive motions.
Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
34. Federal Courts O96
In responding to motions to dismiss
for lack of personal jurisdiction brought
before discovery and decided without evidentiary
hearing, plaintiffs could rely en-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
771
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 O96
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.
Fed.Rules Civ.Proc.Rule 12(b)(2), 28
U.S.C.A.
36. Federal Courts O96
In resolving a motion to dismiss for
lack of personal jurisdiction, the district
court will not accept legally conclusory
assertions or draw argumentative inferences.
Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
37. Federal Courts O417
A federal court sitting in diversity exercises
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 O12(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 defendants
and their putative co-conspirators.
N.Y.McKinney’s CPLR 302(a)(2).
39. Courts O12(2.20)
The bland assertion of conspiracy is
insufficient to establish personal jurisdiction
under New York’s long-arm statute.
N.Y.McKinney’s CPLR 302(a)(2).
40. Courts O12(2.20)
To establish personal jurisdiction on a
conspiracy theory under New York’s longarm
statute, the plaintiffs must make a
prima facie showing of conspiracy, allege
specific facts warranting the inference that
the defendant was a member of the conspiracy,
and show that the defendant’s coconspirator
committed a tort in New York.
N.Y.McKinney’s CPLR 302(a)(2).
41. Courts O12(2.20)
To warrant the inference that an outof-state
defendant was a member of a conspiracy,
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-conspirators
in New York was to the benefit of the
out-of-state conspirators; and (3) the coconspirators
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 O94, 96
Allegations by victims’ survivors, that
various defendants, including Saudi Arabian
Princes, conspired with al Qaeda terrorists
to perpetrate September 11, 2001
attacks, failed to make prima facie showing
necessary to establish personal jurisdiction
as to Antiterrorism Act (ATA) claims under
New York’s long-arm statute, absent
specific facts from which district court
could infer that defendants directed, controlled,
or requested al Qaeda to undertake
its terrorist activities, or specific allegations
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 O305(5)
Federal Courts O76.5
For jurisdiction to exist under the
rule establishing personal jurisdiction in
any district court for cases arising under
772 349 FEDERAL SUPPLEMENT, 2d SERIES
federal law where the defendant has sufficient
contacts with the United States as a
whole but is not subject to jurisdiction in
any particular state, there must be a federal
claim, personal jurisdiction must not
exist over the defendant in any state, and
the defendant must have sufficient contacts
with the United States as a whole
such that the exercise of jurisdiction does
not violate Fifth Amendment due process.
U.S.C.A. Const.Amend. 5; Fed.Rules Civ.
Proc.Rule 4(k)(2), 28 U.S.C.A.
44. Constitutional Law O305(5)
To comply with the Due Process
Clause, jurisdiction based on the Antiterrorism
Act (ATA), or on the rule establishing
personal jurisdiction in any district
court for cases arising under federal law
where the defendant has sufficient contacts
with the United States as a whole but
is not subject to jurisdiction in any particular
state, requires minimum contacts with
the United States, which may be established
under a ‘‘personally directed’’ theory.
U.S.C.A. Const.Amend. 5; 18 U.S.C.A.
§ 2334(a); Fed.Rules Civ.Proc.Rule 4(k)(2),
28 U.S.C.A.
45. Constitutional Law O305(5)
Federal Courts O76.25, 86
Modified due process standard appropriate
for mass torts would not be applied
to question whether district court had personal
jurisdiction over Saudi Arabian
Princes and other defendants in Antiterrorism
Act (ATA) action by survivors of
victims of September 11, 2001 attacks, given
questions as to defendants’ contacts
with forum and attenuated nature of their
alleged involvement with al Qaeda.
U.S.C.A. Const.Amend. 5; 18 U.S.C.A.
§ 2331 et seq.
46. Constitutional Law O305(4.1)
Any exercise of personal jurisdiction
must comport with the requirements of
due process. U.S.C.A. Const.Amend. 5.
47. Constitutional Law O305(4.1)
Depending on the basis for personal
jurisdiction, due process under either the
Fifth or Fourteenth Amendment applies.
U.S.C.A. Const.Amends. 5, 14.
48. Courts O12(2.5)
Personal jurisdiction under the New
York long-arm statute requires minimum
contacts with New York pursuant to the
Fourteenth Amendment. U.S.C.A. Const.
Amend. 14; N.Y.McKinney’s CPLR
302(a)(2).
49. Constitutional Law O305(5)
Pursuant to the Fifth Amendment,
personal jurisdiction, under the rule establishing
personal jurisdiction in any district
court for cases arising under federal law
where the defendant has sufficient contacts
with the United States as a whole but
is not subject to jurisdiction in any particular
state, requires contacts with the United
States as a whole. U.S.C.A. Const.Amend.
5; Fed.Rules Civ.Proc.Rule 4(k)(2), 28
U.S.C.A.
50. Constitutional Law O305(5)
The due process minimum contacts
requirement is known as ‘‘fair warning,’’
such that the defendant’s contacts with the
forum should be sufficient to make it reasonable
to be haled into court there.
U.S.C.A. Const.Amends. 5, 14.
51. Constitutional Law O305(5)
The ‘‘fair warning’’ requirement of the
Due Process Clause is satisfied if the defendant
has purposefully directed his activities
at the residents of the forum and the
litigation results from alleged injuries that
arise out of or relate to those activities.
U.S.C.A. Const.Amends. 5, 14.
52. Constitutional Law O305(5)
Federal Courts O76.5, 76.10
For purposes of the minimum contacts
inquiry required by the Due Process
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
773
Clause, a distinction is made between specific
and general jurisdiction, such that
‘‘specific jurisdiction’’ exists when the forum
exercises jurisdiction over the defendant
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.
See publication Words and Phrases
for other judicial constructions
and definitions.
53. Constitutional Law O305(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 defendant;
(2) the interests in the forum state
in adjudicating the case; (3) the plaintiff’s
interest in obtaining convenient and effective
relief; (4) the interstate judicial system’s
interest in obtaining the most efficient
resolution of the controversy; and (5)
the shared interest of the states in furthering
substantive social policies. U.S.C.A.
Const.Amends. 5, 14.
54. Federal Courts O86
In general, great care and reserve
should be exercised when extending notions
of personal jurisdiction into the international
field.
55. Federal Civil Procedure O1267.1
In evaluating jurisdictional motions,
district courts enjoy broad discretion in
deciding whether to order discovery.
56. Federal Civil Procedure O1269.1
Courts are not obligated to subject a
foreign defendant to discovery where the
allegations of jurisdictional facts, construed
in plaintiffs’ favor, fail to state a
basis for the exercise of jurisdiction or
where discovery would not uncover sufficient
facts to sustain jurisdiction.
57. Federal Courts O94
Allegations that Saudi Royal Family
members owned substantial assets in and
did substantial business in United States,
and used profits therefrom to fund international
terrorist acts, including those
leading to September 11 attacks, and that
Saudi Arabian Prince was ex-officio Chairman
of Board of Saudi Arabia Airlines,
which did business in United States and
internationally, were insufficient to establish
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 O94
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 jurisdiction
under ‘‘purposefully directed activities’’
theory in Antiterrorism Act (ATA)
action by survivors of victims of September
11, 2001 attacks. 18 U.S.C.A. § 2331
et seq.
59. Federal Courts O94
Allegations that Saudi Arabian Prince
donated money to charities were insufficient
to establish personal jurisdiction in
Antiterrorism Act (ATA) action by survivors
of victims of September 11, 2001 attacks,
absent specific factual allegations
that he knew charities were funding money
to terrorists. 18 U.S.C.A. § 2331 et
seq.
60. Federal Courts O86
Saudi Arabian Prince’s alleged contacts
with United States, during ten-year
period prior to September 11, 2001 at-
774 349 FEDERAL SUPPLEMENT, 2d SERIES
tacks, consisting of one speech in United
States, and handful of investments in United
States through banks with which he
was affiliated, were not sufficiently systematic
and continuous for general personal
jurisdiction in Antiterrorism Act (ATA)
action by survivors of victims of attacks.
18 U.S.C.A. § 2331 et seq.
61. Federal Courts O76.20, 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 institutions
was not basis for personal jurisdiction
over him, where there was no allegation
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 O12(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 themselves
maintained a presence or conducted
business in New York.
63. Federal Courts O96
Even assuming that name of founder
of Saudi Arabian company appeared in
‘‘Golden Chain,’’ which allegedly listed early
direct donors to al Qaeda, such list was
insufficient to establish personal jurisdiction
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 purpose
it was written. 18 U.S.C.A. § 2331 et
seq.
64. Federal Courts O96
Appearance of Saudi Arabian watch
retailer’s name in ‘‘Golden Chain,’’ which
allegedly listed early direct donors to al
Qaeda, was insufficient to establish personal
jurisdiction in Antiterrorism Act (ATA)
action by survivors of victims of September
11, 2001 attacks, inasmuch as list did
not establish his involvement in terrorist
conspiracy culminating in attacks and did
not demonstrate that he purposefully directed
his activities at United States. 18
U.S.C.A. § 2331 et seq.
65. Federal Courts O97
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 exercise
of personal jurisdiction 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 together,
might establish personal jurisdiction.
U.S.C.A. Const.Amend. 5; 18
U.S.C.A. § 2331 et seq.; Fed.Rules Civ.
Proc.Rule 12(b)(1), 28 U.S.C.A.
66. Federal Courts O94
Allegations of survivors of victims of
September 11, 2001 attacks were insufficient
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.C.A. § 2331 et seq.
67. Federal Courts O94
Allegations of survivors of victims of
September 11, 2001 attacks were insuffi-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
775
cient to establish personal jurisdiction in
Antiterrorism Act (ATA) action over individuals
allegedly affiliated with Saudi Arabian
construction company, inasmuch as
complaint did not contain any factual allegations
from which district court could infer
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 O97
Jurisdictional discovery was warranted,
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 United
States for purposes of personal jurisdiction.
Fed.Rules Civ.Proc.Rule 12(b)(2), 28
U.S.C.A.
69. Federal Courts O97
Discovery would be permitted, at dismissal
stage of Antiterrorism Act (ATA)
action by survivors of victims of September
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.C.A.
70. Federal Courts O96
Survivors of victims of September 11,
2001 attacks made prima facie showing of
personal jurisdiction over bank chairman
in Antiterrorism Act (ATA) action, by alleging,
inter alia, that Department of
Treasury designated him as Specially Designated
Global Terrorist, and that he was
involved in United States operations of
designated terrorist organization. 18
U.S.C.A. § 2331 et seq.
71. War and National Emergency O50
To prove that defendants provided
material support to terrorists, in violation
of Antiterrorism Act (ATA), plaintiffs were
required to present sufficient causal connection
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 O1.1
Torts O21
To be liable for conspiracy or aiding
and abetting under New York law, a defendant
must know the wrongful nature of
the primary actor’s conduct, and the conduct
must be tied to a substantive cause of
action.
73. International Law O10.11
Aircraft hijacking is generally recognized
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 O75
Survivors of victims of September 11,
2001 attacks failed to allege injury from
defendants’ alleged investment of racketeering
income, and thus failed to state
cause of action in complaint for violations
of Racketeer Influenced and Corrupt Organizations
Act (RICO) provision prohibiting
receipt of income derived from pattern
of racketeering activity. 18 U.S.C.A.
§ 1962(a).
75. Racketeer Influenced and Corrupt
Organizations O50
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 Organizations
Act (RICO) provision prohibit-
776 349 FEDERAL SUPPLEMENT, 2d SERIES
ing participation in the conduct of an enterprise’s
affairs through a pattern of
racketeering activity. 18 U.S.C.A.
§ 1962(c).
76. Racketeer Influenced and Corrupt
Organizations O50
Allegations of complaint filed by survivors
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 enterprise’s
affairs through pattern of racketeering
activity, in that allegations did not
include anything approaching active management
or operation. 18 U.S.C.A.
§ 1962(c, d).
77. International Law O10.11
Only individuals may be sued under
the Torture Victim Protection Act (TVPA).
28 U.S.C.A. § 1350 note.
78. International Law O10.11
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 individuals
acted under color of law. 28 U.S.C.A.
§ 1350 note.
79. War and National Emergency O50
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 activities.
18 U.S.C.A. § 2333(a).
80. Conspiracy O7, 18
To state cause of action under Antiterrorism
Act (ATA) pursuant to conspiracy
theory, survivors of victims of September
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 furtherance
of attacks. 18 U.S.C.A.
§ 2333(a).
81. Death O31(3.1)
Survivors of victims of September 11,
2002 attacks could state claims for wrongful
death and survival under New York law
if they were personal representatives of
victims and sufficiently alleged that defendants
supported, aided and abetted, or
conspired with September 11 terrorists.
N.Y.McKinney’s EPTL 5–4.1, 11–3.2(b).
82. Assault and Battery O21
Limitation of Actions O31
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 O57.22
In actions for intentional infliction of
emotional distress under New York law,
courts are to determine whether the alleged
conduct is sufficiently extreme and
outrageous enough to permit recovery.
84. Damages O57.25(1)
Attacks of September 11, 2001 were
extreme and outrageous, as required for
liability for intentional infliction of emotional
distress under New York law.
85. Trespass O30
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
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
777
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 proving
negligent infliction of emotional distress
under New York law, a defendant’s
conduct is negligent as creating an unreasonable
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 observation
of serious physical injury or death
inflicted by the defendant’s conduct on a
member of the plaintiff’s 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 defendant’s
breach of a duty which unreasonably
endangered the plaintiff’s own physical
safety.
89. Negligence O202
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 negligence
claim under New York law is the
existence of a duty owed to plaintiffs by
defendants.
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 O210
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 infliction
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 victims
of September 11, 2001 attacks as to
any particular defendant, to ensure that
he, or it, had fair notice of claims, including
claims under Antiterrorism Act (ATA).
18 U.S.C.A. § 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 acting
as bank for charities, failed to state
cause of action under Antiterrorism Act
(ATA) against bank, in that survivors offered
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.C.A. § 2331 et seq.
95. Conspiracy O1.1
Torts O21
Under New York law, concerted action
liability, pursuant to a conspiracy or
aiding and abetting theory, requires general
knowledge of the primary actor’s conduct.
778 349 FEDERAL SUPPLEMENT, 2d SERIES
96. Banks and Banking O226
Allegations in complaint by survivors
of victims of September 11, 2001 attacks,
that bank based in Rihadh, Saudi Arabia
provided material support to al Qaeda,
failed to state cause of action under Antiterrorism
Act (ATA) against bank, absent
allegations that bank knew that anything
relating to terrorism was occurring
through services it provided. 18 U.S.C.A.
§ 2331 et seq.
97. Banks and Banking O226
Allegations in complaints by survivors
of victims of September 11, 2001 attacks,
that bank headquartered in Egypt provided
financial services and other material
support to terrorist organizations including
al Qaeda, 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 material
support to terrorists by providing financial
services to charities or by processing
wire transfers in Spain. 18 U.S.C.A.
§ 2331 et seq.
98. Brokers O106
War and National Emergency O50
Allegations in complaints by survivors
of victims of September 11, 2001 attacks
failed to state cause of action under Antiterrorism
Act (ATA) against investment
company based in Jeddah, Saudi Arabia or
against Saudi Arabian bank founder, in
that majority of allegations regarding investment
company actually concerned another
entity, survivors alleged that company
supported charity but did not allege
that company knew that charity was supporting
terrorism, and allegation that employee
of other entity’s subsidiary financially
supported two hijackers did not
translate into allegation that bank founder
provided material support to terrorism or
aided and abetted those who provided material
support. 18 U.S.C.A. § 2331 et seq.
99. Federal Civil Procedure O1269.1
Limited jurisdictional discovery was
warranted, on Saudi Arabian bank’s motion
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.C.A.
100. Federal Civil Procedure O1269.1
Limited jurisdictional discovery was
warranted, 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 States, for purposes of
personal jurisdiction. 18 U.S.C.A. § 2331
et seq.; Fed.Rules Civ.Proc.Rule 12(b)(2),
28 U.S.C.A.
101. Federal Civil Procedure O1269.1
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.C.A.
102. War and National Emergency O50
Allegations of complaint filed by survivors
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 Designated
Global Terrorist were sufficient to
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
779
permit inference that he provided support
to al Qaeda. 18 U.S.C.A. § 2331 et seq.
Andrew J. Maloney, III, Blanca I. Rodriguez,
Brian J. Alexander, David Beekman,
David C. Cook, Francis G. Fleming,
James P. Kreindler, Justin Timothy Green,
Lee S. Kreindler, Marc S. 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. Carter,
Stephen A. Cozen, Cozen O’Connor
(Philadelphia), Philadelphia, PA, for Plaintiffs.
David P. Gersch, Arnold & Porter,
L.L.P., Donna M. Sheinbach, Michael D.
McNeely, Nancy Luque, Steven A. Maddox,
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 Associates,
Thomas Peter Steindler, McDermott,
Will and Emery (DC), James Ernest
Gauch, Jennifer Allyson Shumaker, Jonathan
Chapman Rose, Melissa Danielle
Stear, Michael Peter Gurdak, Michael Rollin
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 Guzman,
Michael K. Kellogg, Kellogg, Huber,
Hansen, Todd & Evans PLLC (DC), Lawrence
Saul Robbins, Robbins Russell Englert
Orseck & Untereiner LLP, Washington,
DC, Jean Engelmayer Kalicki, Arnold
& Porter, LLP, John Joseph Walsh, Carter
Ledyard & Milburn LLP, Omar T.
Mohammedi, Law Office of Omar T. Mohammedi,
Brian Howard Polovoy, Shearman
& 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, Alan R. Kabat, Bernabei
& Katz, PLLC, Washington, DC, for
Defendants.
Michael J. Sommi, Cozen O’Connor,
New York City, for Movants.
Opinion and Order
CASEY, District Judge.
On September 11, 2001, nineteen members
of the al Qaeda terrorist network
hijacked four United States passenger airplanes
and flew them into the twin towers
of the World Trade Center in New York
City, the Pentagon in Arlington, Virginia,
and—due to passengers’ efforts to foil the
hijackers—an open field in Shanksville,
Pennsylvania. Thousands of people on the
planes, in the buildings, and on the ground
were killed in those attacks, countless others
were injured, and billions of dollars of
property was destroyed.
Pursuant to 28 U.S.C. § 1407, on December
9, 2003 the Multidistrict Litigation
Panel centralized six then-pending September
11–related cases before this Court
‘‘for coordinated or consolidated pretrial
proceedings.’’ Additional actions, that are
not the subject of this opinion, have since
been filed. Plaintiffs in these consolidated
actions are more than three thousand survivors,
family members, and representatives
of victims, and insurance carriers
seeking to hold responsible for the attacks
the persons and entities that supported
and funded al Qaeda. The complaints al-
780 349 FEDERAL SUPPLEMENT, 2d SERIES
lege that over two hundred defendants
directly or indirectly provided material
support to Osama bin Laden and the al
Qaeda terrorists. Generally, these defendants
fall into one of several categories: al
Qaeda and its members and associates;
state sponsors of terrorism; and individuals
and entities, including charities, banks,
front organizations, terrorist organizations,
and financiers who provided financial, logistical,
and other support to al Qaeda. 1
See, e.g., Ashton Complaint ¶ 5; Burnett
Complaint ‘‘Introduction’’; Federal Complaint
¶¶ 42–66. The complaints assert
subject matter jurisdiction under the Foreign
Sovereign Immunities Act (‘‘FSIA’’),
28 U.S.C. § 1602 et seq.; and causes of
action under the Torture Victim Protection
Act (‘‘TVPA’’), 28 U.S.C. § 1350 note; the
Antiterrorism Act (‘‘ATA’’), 18 U.S.C.
1. According to Plaintiffs, Osama bin Laden
formed al Qaeda, which means ‘‘the Base’’ or
‘‘the Vanguard,’’ into an international terrorist
organization with the aim of violently opposing
non-Islam governments and Islamic
states too beholden to the West. See, e.g.,
Burnett Complaint at 275.
2. Before the Multidistrict Panel transferred
Burnett v. Al Baraka Inv. & Dev. Corp., 02 Civ.
1616, to this Court, Judge Robertson of the
United States District Court for the District of
Columbia dismissed the claims against Prince
Sultan relating to acts performed in his official
capacity for lack of subject matter jurisdiction.
Burnett v. Al Baraka Inv. & Dev.
Corp., 292 F.Supp.2d 9, 23 (D.D.C.2003)
(hereinafter ‘‘Burnett II ’’). Finding that the
court lacked personal jurisdiction over Prince
Sultan, Judge Robertson dismissed without
prejudice the allegations concerning acts taken
in his personal, as opposed to official,
capacity. Id. Judge Robertson dismissed the
complaint against Prince Turki for lack of
subject matter jurisdiction as well. Id.
Prince Sultan and Prince Turki both move
to dismiss the complaints against them in
Ashton v. Al Qaeda Islamic Army, 02 Civ.
6977 (S.D.N.Y.); Barrera v. Al Qaeda Islamic
Army, 03 Civ. 7036 (S.D.N.Y.); Burnett v. Al
Baraka Inv. & Dev. Corp., 02 Civ. 1616
(D.D.C.); Burnett v. Al Baraka Inv. & Dev.
§ 2331 et seq.; the Alien Tort Claims Act
(‘‘ATCA’’), 28 U.S.C. § 1350; the Racketeer
Influenced and Corrupt Organizations
Act (‘‘RICO’’), 18 U.S.C. § 1961 et seq.;
theories of aiding and abetting, conspiracy,
intentional infliction of emotional distress,
negligence, survival, wrongful death, trespass,
and assault and battery.
[1] Several motions to dismiss are
pending before the Court. At the suggestion
of counsel, the Court scheduled oral
arguments in groups organized generally
by grounds for dismissal. On September
14, 2004, the Court heard oral argument
on the motions to dismiss for lack of subject
matter jurisdiction under the FSIA by
HRH Prince Sultan bin Abdulaziz Al–Saud
(‘‘Prince Sultan’’), HRH Prince Turki Al–
Faisal bin Abdulaziz Al–Saud (‘‘Prince
Turki’’), 2 and the National Commercial
Corp., 03 Civ. 5738 (S.D.N.Y.); Salvo v. Al
Qaeda Islamic Army, 03 Civ. 5071 (S.D.N.Y.);
and Tremsky v. Osama bin Laden, 02 Civ.
7300 (S.D.N.Y.). Plaintiffs in these cases filed
consolidated responses to Prince Sultan’s and
Prince Turki’s motions. In Plaintiffs’ words,
the New York Burnett action is materially
identical to the D.C. Burnett action and was
filed as a ‘‘prophylactic’’ measure in the event
the D.C. court found that it lacked subject
matter jurisdiction. Burnett Complaint at
265. Additionally, at Plaintiffs’ counsel request,
this Court ordered the Barrera action
consolidated with the Ashton case on December
6, 2004.
Prince Sultan and Prince Turki have each
also filed a separate motion to dismiss in
Federal Insurance v. Al Qaida, 03 Civ. 6978
(S.D.N.Y.), both of which are fully submitted
and are resolved in this opinion. The Federal
Insurance Plaintiffs are forty-one insurance
companies that have paid and reserved claims
in excess of $4.5 billion as a result of the
September 11 attacks.
The Burnett Plaintiffs filed a motion for
reconsideration in conjunction with Prince
Sultan’s and Prince Turki’s motions to dismiss
certain consolidated complaints. While
this Court reviews and gives deference to
Judge Robertson’s thoughtful opinion, it must
evaluate Prince Sultan’s and Prince Turki’s
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
781
Bank (‘‘NCB’’). 3 On October 12, 2004 the
Court heard oral argument from Defendants
who filed motions to dismiss for lack
of personal jurisdiction, including Prince
Sultan, HRH Prince Mohamed Al–Faisal
Al–Saud (‘‘Prince Mohamed’’), 4 the estate
of Mohammad Abdullah Aljomaih, 5 Sheikh
Hamad Al–Husani, 6 NCB, Abdulrahman
bin Mahfouz, 7 the Saudi Binladin Group,
Tariq Binladin, Omar Binladin, and Bakr
Binladin. 8 Although their counsel did not
argue on that day, motions to dismiss by
the African Muslim Agency, Grove Corporate,
Inc., Heritage Education Trust, International
Institute of Islamic Thought,
Mar–Jac Investments, Inc., Mena Corporation,
Reston Investments, Inc., Safa
Trust, Sana–Bell Inc., Sterling Charitable
motions on the merits de novo. See In re
Grand Jury Proceedings (Kluger), 827 F.2d
868, 871 n. 3 (2d Cir.1987) (‘‘A transfer under
28 U.S.C. § 1407 ‘transfers the action lock,
stock, and barrel. The transferee district
court has the power and the obligation to
modify or rescind any orders in effect in the
transferred case which it concludes are incorrect.’
’’) (internal citations omitted). The
Court bears in mind that it is bound by Second
Circuit precedent while Judge Robertson
applied D.C. Circuit law. Menowitz v. Brown,
991 F.2d 36, 40–41 (2d Cir.1993) (explaining
transferee court is to apply its interpretation
of federal law, not that of the transferor circuit);
In re Air Crash at Belle Harbor, New
York, No. 02 Civ. 8411(RWS), 2003 WL
124677, at *3 (S.D.N.Y. Jan. 15, 2003) (applying
Second Circuit law after 28 U.S.C. § 1407
transfer from a district court in the Fifth
Circuit).
3. NCB moves to dismiss the complaints
against it in Ashton and Burnett.
4. Prince Mohamed moves to dismiss the complaints
against him in Ashton and Federal
Insurance.
5. The estate of Mohammad Abdullah Aljomaih
moves to dismiss the complaint in Burnett.
6. Sheikh Hamad Al–Husani moves dismiss
the complaint in Burnett.
Gift Fund, Sterling Management Group,
Inc., and York Foundation, (hereinafter
collectively referred to as the ‘‘SAAR Network’’),
9 Prince Turki, and Adel A.J. Batterjee,
10 also raised personal jurisdiction
defenses. On October 14, 2004 the Court
heard oral argument from certain Defendants
arguing Plaintiffs had failed to state
a claim, including Al Rajhi Banking &
Investment Corporation (hereinafter ‘‘Al
Rajhi Bank’’), 11 the Saudi American
Bank, 12 Arab Bank, 13 NCB, the SAAR
Network, Prince Mohamed, Al Baraka Investment
& Development Corporation and
Saleh Abdullah Kamel, 14 Abdulrahman bin
Mahfouz, the Saudi Binladin Group, and
Adel A.J. Batterjee. Finally, the last of
this group of motions was entertained on
7. Abdulrahman bin Mahfouz moves to dismiss
the complaint in Burnett.
8. The Saudi Binladin Group moves to dismiss
the complaints against it in Burnett and Ashton.
Tariq Binladin, Omar Binladin, and
Bakr Binladin move to dismiss the Burnett
complaint.
9. The SAAR Network moves to dismiss the
Federal Insurance complaint.
10. Adel A.J. Batterjee moves to dismiss the
complaint in Burnett.
11. Al Rajhi Bank renews its motion to dismiss
the Burnett complaint. Judge Robertson denied
its original motion and permitted it to
serve a Rule 12(e) request on the Burnett
Plaintiffs. Burnett v. Al Baraka Invest. & Dev.
Corp., 274 F.Supp.2d 86, 110 (D.D.C.2003)
(hereinafter ‘‘Burnett I ’’).
12. Saudi American Bank moves to dismiss
the Ashton and Burnett complaints.
13. Arab Bank moves to dismiss the Burnett
and Federal Insurance complaints.
14. Al Baraka Investment & Development Corporation
and Saleh Abdullah Kamel move to
dismiss the Ashton and Burnett complaints.
782 349 FEDERAL SUPPLEMENT, 2d SERIES
November 5, 2004, when the Court heard
oral argument from the Kingdom of Saudi
Arabia in its motion to dismiss the Federal
Insurance complaint. 15
I. Subject Matter Jurisdiction Under
the FSIA
[2–4] Under the FSIA, a foreign state
and its instrumentalities are presumed immune
from United States courts’ jurisdiction.
Saudi Arabia v. Nelson, 507 U.S.
349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47
(1993); 28 U.S.C. §§ 1602–1607. The
FSIA’s exceptions to immunity provide the
sole basis for obtaining subject matter jurisdiction
over a foreign state and its instrumentalities
in federal court. Argentine
Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989); Robinson v. Gov’t of
Malaysia, 269 F.3d 133, 138 (2d Cir.2001).
Federal courts must inquire at the
‘‘threshold of every action’’ against a foreign
state whether the exercise of its jurisdiction
is appropriate. Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493,
103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).
A. Standard of Review
[5, 6] In a Rule 12(b)(1) motion to dismiss
challenging subject matter jurisdiction
under the FSIA, ‘‘the defendant must
first ‘present a prima facie case that it is a
foreign sovereign.’ ’’ Virtual Countries v.
Republic of South Africa, 300 F.3d 230,
241 (2d Cir.2002) (quoting Cargill Int’l
S.A. v. M/T Pavel Dybenko, 991 F.2d
1012, 1016 (2d Cir.1993)). In response,
the plaintiff must present evidence that
one of the statute’s exceptions nullifies the
immunity. Virtual Countries, 300 F.3d at
241 (‘‘Determining whether this burden is
met involves a ‘review of the allegations in
the complaint, the undisputed facts, if any,
placed before the court by the parties,
and—if the plaintiff comes forward with
sufficient evidence to carry its burden of
production on this issue—resolution of disputed
issues of fact.’ ’’) (citing Robinson,
269 F.3d at 141); Leutwyler v. Office of
Her Majesty Queen Rania Al–Abdullah,
184 F.Supp.2d 277, 287 (S.D.N.Y.2001)
(explaining plaintiff may ‘‘rebut the presumption
of immunity TTT by proffering
evidence of record that the defendant undertook
certain activities that fall within
the scope’’ of one of the statutory exceptions)
(citing Drexel Burnham Lambert
Group Inc. v. Comm. of Receivers for
A.W. Galadari, 12 F.3d 317, 325 (2d Cir.
1993)). In challenging this Court’s subject
matter jurisdiction, the moving Defendants
retain the ultimate burden of persuasion.
Virtual Countries, 300 F.3d at
241 (citing Cargill, 991 F.2d at 1016);
Robinson, 269 F.3d at 141 n. 8 (noting
defendant’s burden must be met with a
preponderance of the evidence).
[7] Defendants may ‘‘challenge either
the legal or factual sufficiency of the plaintiff’s
assertion of jurisdiction, or both.’’
Robinson, 269 F.3d at 140 (citations omitted).
‘‘If the defendant challenges only
the legal sufficiency of the plaintiff’s jurisdictional
allegations, the court must take
all facts alleged in the complaint as true
and draw all reasonable inferences in favor
of the plaintiff.’’ Id. (internal quotations
and citations omitted); Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir.2000). ‘‘But where
evidence relevant to the jurisdictional
question is before the court, ‘the district
court TTT may refer to that evidence.’ ’’
Robinson, 269 F.3d at 140 (quoting Makarova
v. United States, 201 F.3d 110, 113
(2d Cir.2000)); see also Filetech S.A. v.
France Telecom S.A., 157 F.3d 922, 932
15. The parties have agreed that resolution of
this motion will also apply to Vigilant Insurance
v. Kingdom of Saudi Arabia, 03 Civ.
8591(RCC).
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783
(2d Cir.1998) (explaining, where there are
factual disputes regarding the immunity
question, the court may not ‘‘accept the
mere allegations of the complaint as a
basis for finding subject matter jurisdiction’’).
Thus, ‘‘on a ‘challenge to the district
court’s subject matter jurisdiction, the
court may resolve disputed jurisdictional
fact issues by reference to evidence outside
the pleadings, such as affidavits.’ ’’
Filetech, 157 F.3d at 932 (explaining a
court should consider all the submissions
of the parties and may, if necessary, hold
an evidentiary hearing to resolve the jurisdictional
question) (quoting Antares Aircraft,
L.P. v. Federal Republic of Nigeria,
948 F.2d 90, 96 (2d Cir.1991)). The court
must consult outside evidence if resolution
of a proffered factual issue may result in
the dismissal of the complaint for lack of
jurisdiction. Robinson, 269 F.3d at 141 n.
6. Defendants here challenge both the legal
and factual sufficiency of Plaintiffs’
claims. The Court will consider the affidavits
submitted by the parties as necessary.
[8] Before turning to the allegations
against the Defendants claiming immunity,
the Court notes it is keenly aware of the
‘‘delicate balanc[e] ‘between permitting
discovery to substantiate exceptions to
statutory foreign sovereign immunity and
protecting a sovereign’s or sovereign’s
agency’s legitimate claim to immunity from
discovery.’ ’’ First City, Texas–Houston,
N.A. v. Rafidain Bank, 150 F.3d 172, 176
(2d Cir.1998) (ordering full discovery
against defendant over whom court already
had subject matter jurisdiction because
such discovery would provide plaintiff
an opportunity to obtain jurisdictional
discovery regarding potentially sovereign
alter ego co-defendant without further impinging
that defendant’s immunity) (quoting
Arriba Ltd. v. Petroleos Mexicanos,
962 F.2d 528, 534 (5th Cir.1992) (‘‘At the
very least, discovery should be ordered
circumspectly and only to verify allegations
of specific facts crucial to an immunity
determination.’’)). The Second Circuit
has instructed ‘‘that generally a plaintiff
may be allowed limited discovery with respect
to the jurisdictional issue; but until
[plaintiff] has shown a reasonable basis for
assuming jurisdiction, she is not entitled to
any other discovery.’’ First City, 150 F.3d
at 176–77 (quoting Filus v. Lot Polish
Airlines, 907 F.2d 1328, 1332 (2d Cir.
1990)). Still, the Plaintiffs must allege
sufficient facts to warrant jurisdictional
discovery. Robinson, 269 F.3d at 146 (citing
Jazini v. Nissan Motor Co., 148 F.3d
181, 185 (2d Cir.1998) (refusing jurisdictional
discovery where plaintiffs’ allegations
lacked factual specificity to confer
jurisdiction)); see also Burnett II, 292
F.Supp.2d at 15 (denying Plaintiffs’ request
for discovery from Prince Turki
where ‘‘suggestions of [his] individual activity
are only conclusory’’).
B. Allegations Against Defendants
Asserting Foreign Sovereign Immunity
1. Prince Sultan
Prince Sultan has been Saudi Arabia’s
Minister of Defense and Aviation and Inspector
General of its Armed Forces since
1962. Ashton Complaint ¶ 265; Burnett
Complaint ¶ 352; Federal Complaint ¶ 427;
William H. Jeffress, Jr. Decl. ¶ 4 at Notice
of HRH Prince Sultan Bin Abdulaziz Al–
Saud’s Motion to Dismiss Consolidated
Complaint (hereinafter ‘‘Consolidated Jeffress
Decl.’’); Andrea Bierstein Aff. in
Opp. to Prince Sultan’s Motion to Dismiss
Consolidated Complaints Ex. 1, Sultan Bio,
available at http://saudiembassy.net/Country/Government/SultanBio.asp.
In 1982,
his brother King Fahd bin Abdulaziz Al–
Saud named him Second Deputy President
of Saudi Arabia’s Council of Ministers, the
Kingdom’s governing body. Nizar Bin
784 349 FEDERAL SUPPLEMENT, 2d SERIES
Obaid Nadani Decl. ¶ 2 at Notice of HRH
Prince Sultan Bin Abdulaziz al-Saud’s Motion
to Dismiss Certain Consolidated Complaints
Ex. 1 (hereinafter ‘‘Nadani Decl.’’);
Consolidated Jeffress Decl. ¶ 4; Federal
Complaint ¶ 427; Sultan Bio. As such, he
is the third-highest ranking member of the
Saudi government.
Especially relevant here, Prince Sultan
is the Chairman of the Supreme Council of
Islamic Affairs, which was established in
1995 and is responsible for the Kingdom’s
Islamic policy abroad. Consolidated Jeffress
Decl. ¶ 5; Ashton Complaint ¶ 265;
Federal Complaint ¶ 427. Prince Sultan
disagrees with Plaintiffs’ claim that the
Supreme Council monitors and approves
domestic and foreign charitable giving on
behalf of the Kingdom. Prince Sultan prefers
the characterization that the Supreme
Council ‘‘carr[ies] out the foreign policy of
Saudi Arabia as determined by the Council
of Ministers.’’ Abdulaziz H. Al–Fahad
Decl. ¶ 5, at Sara E. Kropf Decl. Ex. 2.
Finally, Prince Sultan, as the head of the
Special Committee of the Council of Ministers,
which is a foreign policy advisory
resource for King Saud, exercises authority
over disbursements by the Special Committee.
Consolidated Jeffress Decl. ¶ 6. In
the past, these disbursements, which are
government funded, have included grants
to Islamic charities. Id. at ¶ 6.
The various complaints make substantially
similar accusations against Prince
Sultan. See Consolidated Jeffress Decl.
16. IIRO is allegedly an al Qaeda front that
has been tied to the 1993 World Trade Center
attack and the 1998 embassy bombings. See,
e.g., Burnett Complaint ¶¶ 156, 240, 242.
17. Beginning in 2002, certain branches of Al
Haramain were designated by the United
States as terrorist organizations. See Exec.
Order No. 13224, 31 C.F.R. 595, available at
http://www.treas.gov/offices/enforcement/ofac/sanctions/t11ter.pdf
(hereinafter
‘‘Exec. Order No. 13224’’). Judge Robertson
Ex. C (summarizing allegations against
Prince Sultan in consolidated complaints).
Prince Sultan is alleged to have met with
Osama bin Laden after Iraq invaded Kuwait
in the summer of 1990. Ashton Complaint
¶ 253; Burnett Complaint ¶ 340. At
that meeting, which Prince Turki also attended,
bin Laden purportedly offered his
family’s support to Saudi military forces.
Ashton Complaint ¶ 253. Plaintiffs allege
that, at the time of the Gulf War, Prince
Sultan ‘‘took radical stands against western
countries and publicly supported and
funded several Islamic charities that were
sponsoring Osama bin Laden and al Qaeda
operations.’’ Ashton Complaint ¶ 266;
Burnett Complaint ¶ 353. After the attacks
of September 11, Prince Sultan allegedly
advocated against granting the United
States use of Saudi military bases to
stage attacks against Afghanistan. Ashton
Complaint ¶ 273; Burnett Complaint
¶ 356.
Prince Sultan allegedly made personal
contributions, totaling $6,000,000 since
1994, to various Islamic charities that
Plaintiffs claim sponsor or support al Qaeda.
Ashton Complaint ¶ 269; Burnett
Complaint ¶ 359; Federal Complaint ¶ 430.
The specific charities that Prince Sultan
donated to include Defendants International
Islamic Relief Organization (‘‘IIRO’’), 16
Al Haramain, 17 Muslim World League
(‘‘MWL’’), 18 and the World Assembly of
Muslim Youth (‘‘WAMY’’). 19 Ashton Com-
denied Al Haramain’s motion to dismiss the
Burnett action. Burnett I, 274 F.Supp.2d at
107.
18. MWL is the parent of IIRO. See, e.g., Burnett
Complaint ¶ 236.
19. WAMY is a suspected al Qaeda front, allegedly
‘‘preaching good TTT while plotting evil,’’
connected to charity Defendant Benevolence
International Foundation (‘‘BIF’’). BIF is
now a designated terrorist, but it previously
concealed its relationship with Osama bin
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785
plaint ¶¶ 269–272; Burnett Complaint
¶¶ 354, 359; Federal Complaint ¶ 430. According
to Plaintiffs, with respect to his
alleged donations, ‘‘[a]t best, Prince Sultan
was grossly negligent in the oversight and
administration of charitable funds, knowing
they would be used to sponsor international
terrorism, but turning a blind eye.
At worse, Prince Sultan directly aided and
abetted and materially sponsored al Qaeda
and international terrorism.’’ Burnett
Complaint ¶ 363; Federal Complaint
¶¶ 429–31 (alleging Prince Sultan knew
and intended that the contributions he
made to various charities would be used to
fund al Qaeda and international terrorism).
20
Laden and al Qaeda. See, e.g., Burnett Complaint
¶¶ 160, 205, 229, 362; Exec. Order
13224.
20. Prince Sultan denies making any grants to
Al Haramain and MWL and argues that contributions
made to IIRO and WAMY were
made strictly in his official capacity on behalf
of the Saudi government. Further, he claims
the four charities searched their records and
confirmed that Prince Sultan did not make
any personal contributions. These transmittal
letters and government checks were included
in Prince Sultan’s motion to dismiss the D.C.
Burnett action. Judge Robertson found these
documents had ‘‘limited probative value, [as
they] lack[ed] proper foundations to establish
that the affiants could have known the actual
source of the moneys they received.’’ Burnett
2. Prince Turki
Prince Turki is currently the Kingdom
of Saudi Arabia’s ambassador to the United
Kingdom. Ashton Complaint ¶ 263.
From 1977 until August 2001, he was the
Director of Saudi Arabia’s Department of
General Intelligence (‘‘DGI,’’ also known
by its Arabic name, Istakhbarat). Ashton
Complaint ¶ 255; Burnett Complaint ¶ 343;
Federal Complaint ¶ 445. As such, Plaintiffs
allege he was or should have been
aware of the terrorist threat posed by
Osama bin Laden, al Qaeda, and the Taliban.
Ashton Complaint ¶ 256; Burnett
Complaint ¶ 343. Prince Turki allegedly
met with Osama bin Laden five times in
the mid–1980s and mid–1990s. Ashton
Complaint ¶ 257; Burnett Complaint ¶ 344.
At one of those meetings, which Prince
Sultan also attended, bin Laden allegedly
offered the Saudis the use of his family’s
engineering equipment and suggested bolstering
Saudi military forces with militants.
Ashton Complaint ¶ 253. Prince
Turki is alleged to have close ties with an
al Qaeda financier, Mr. Zouaydi, and is
allegedly implicated in Mr. Zouaydi’s financial
support of al Qaeda. Ashton Complaint
¶ 241; Burnett Complaint ¶ 345.
Further, Plaintiffs claim Prince Turki met
with members of the Taliban and, in 1995,
gave the Taliban financial and material
support. Ashton Complaint ¶ 257; Federal
Complaint ¶¶ 447–48 (alleging that, at
the time Prince Turki provided support,
the Taliban maintained a symbiotic relationship
with al Qaeda and thus Prince
Turki knew al Qaeda would benefit from
the Kingdom’s support). In July 1998,
Prince Turki is alleged to have met with
members of the Taliban and representatives
of bin Laden and agreed to not extradite
bin Laden or close terrorist camps in
exchange for bin Laden’s protection of the
II, 292 F.Supp.2d at 16. This Court has reviewed
these affidavits and agrees with Judge
Robertson’s assessment. For example, one
declarant who provided information regarding
alleged contributions relied on his personal
knowledge of a charity’s records, yet he
had only been in his position for two months.
See Decl. of Saleh Abdullah Al Saykhan ¶ 2, at
Decl. of Sara E. Kropf in Support of Prince
Sultan’s Motion to Dismiss the D.C. Burnett
action. As Judge Robertson pointed out, ‘‘the
value of plaintiffs’ showing that Prince Sultan
did give money to these organizations in his
personal capacity, however, is no greater.’’
Burnett II, 292 F.Supp.2d at 16 (referring to
Saudi press reports of Prince Sultan’s contributions).
786 349 FEDERAL SUPPLEMENT, 2d SERIES
Saudi Royal family. Ashton Complaint
¶ 261; Burnett Complaint ¶ 348. Plaintiffs
allege Prince Turki facilitated money
transfers from wealthy Saudis to the Taliban
and al Qaeda. Ashton Complaint
¶ 259; Federal ¶ 451. Additionally, the
Federal Plaintiffs claim that, while Prince
Turki was the head of DGI, Saudi Arabian
intelligence officers allegedly trained a
member of the al Qaeda Spanish cell in
explosives and provided material support
to two of the September 11 hijackers.
Federal Complaint ¶ 449. The Federal
complaint also alleges that Prince Turki
made personal contributions to Saudibased
charities that he knew were sponsors
of al Qaeda, including IIRO, MWL,
WAMY, BIF, the Saudi High Commission,
Saudi Joint Relief Committee for Kosovo
and Chechnya (‘‘SJRC’’), and Al Haramain.
Federal Complaint ¶¶ 451–52.
[9] Prince Turki denies the allegations
against him in a declaration prepared in
concert with his motion to dismiss the D.C.
Burnett action. In reviewing this declaration,
the Court gives ‘‘great weight to any
extrinsic submissions made by the foreign
defendant[ ] regarding the scope of [his]
official responsibilities.’’ Leutwyler, 184
F.Supp.2d at 287 (internal quotation marks
omitted). Prince Turki explains that the
DGI ‘‘is involved in the collection and analysis
of foreign intelligence and in carrying
out foreign operations.’’ Decl. of HRH
Prince Turki ¶ 5, at HRH Prince Turki’s
Motion to Dismiss Certain Consolidated
Complaints Ex. 1 (hereinafter ‘‘Prince
Turki Decl.’’). He was active in Saudi
Arabia’s efforts to combat terrorism generally
and the threat posed by Osama bin
Laden and al Qaeda specifically, and
served on a joint information-sharing committee
with the United States beginning in
1997. Id. ¶¶ 6, 10. He states that all of
his interactions with Osama bin Laden and
the Taliban were part of his official functions.
Id. ¶ 5. In June 1998, King Fahd
sent Prince Turki to Kandahar to meet
with the Taliban and to relay the official
Saudi request that Osama bin Laden be
extradited to Saudi Arabia for trial. Id.
¶ 11. The Taliban denied the Saudi request
and Saudi Arabia subsequently suspended
diplomatic relations with the Taliban
in September 1998. Id. ¶ 13. Prince
Turki denies facilitating money transfers
to Osama bin Laden or al Qaeda, he denies
offering material assistance to Osama bin
Laden, his representatives, or al Qaeda in
return for their not attacking Saudi Arabia,
he denies promising or providing oil or
financial assistance to the Taliban, and denies
ever hearing of the Syrian financier
Mr. Zouaydi, with whom he is alleged to
have ties. Id. ¶¶ 14, 16, 17.
3. Kingdom of Saudi Arabia
The Federal Plaintiffs claim that ‘‘[m]ore
than any other factor, al Qaida’s phenomenal
growth and development into a sophisticated
global terrorist network were made
possible by the massive financial, logistical
and other support it received from the
Kingdom of Saudi Arabia, members of the
Saudi Royal family, and prominent members
of Saudi society.’’ Federal Complaint
¶ 398. Further, the Federal Plaintiffs allege
September 11 was ‘‘a direct, intended
and foreseeable product of the Kingdom of
Saudi Arabia’s participation in al Qaida’s
jihadist campaign.’’ Id. ¶ 425. Specifically,
the Kingdom allegedly maintained and
controlled several of the charities within al
Qaeda’s infrastructure. Id. ¶ 399. The
Federal Plaintiffs claim Saudi Arabia knew
the threat that these charities posed particularly
to the United States, and did
nothing to stop it. Id. ¶¶ 400–02. The
Kingdom allegedly used its relationship
with the Taliban to sustain al Qaeda in the
mid–1990s. Id. ¶¶ 403, 407. To the extent
the Federal Plaintiffs rely on actions by
members of the Saudi Royal family as
allegations against the Kingdom, they
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make no claim that these individuals were
acting on behalf of or at the behest of the
Kingdom. See, e.g., id. ¶ 420 (claiming
that in January 1999 Princess Haifa made
payments to Al–Bayoumi, a Defendant alleged
to have paid rent on behalf of two of
the hijackers). Finally, Plaintiffs allege
that members of the Saudi Royal family
provided support to al Qaeda in their official
capacities as members of the Supreme
Council of Islamic Affairs. Federal Complaint
¶¶ 426–464.
21. The Ashton Plaintiffs moved to amend this
allegation to claim that the Public Investment
Fund (‘‘PIF’’), not the Saudi government, purchased
a majority of NCB shares in 1999.
Ashton Docket ## 137, 138.
4. National Commercial Bank
NCB was established in 1950 by Salim
bin Mahfouz, the father of Defendant
Khalid bin Mahfouz, as the first commercial
bank of Saudi Arabia. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88. The
Ashton Plaintiffs allege that the bin Mahfouz
family controlled NCB until 1999
when the Saudi government bought a majority
of its shares. Ashton Complaint
¶ 573. 21 The Ashton and Burnett Plaintiffs
claim that NCB has a wholly-owned subsidiary
in New York, SNCB Securities,
Ltd., through which it operates an international
banking business. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88.
Plaintiffs claim Osama bin Laden and al
Qaeda used NCB as ‘‘a financial arm, operating
as a financial conduit for [their] operations.’’
Ashton Complaint ¶ 564; Burnett
Complaint ¶ 89. In 1986, Khalid bin Mahfouz
became NCB’s President and CEO
and remained so until 1999. Ashton Complaint
¶ 563; Burnett Complaint ¶ 88.
Also in 1986, Khalid bin Mahfouz became
the Chief Operating Officer and a major
shareholder of the Bank of Credit and
Commerce International (‘‘BCCI’’). Ashton
Complaint ¶¶ 564, 566; Burnett Complaint
¶¶ 89, 91. He was subsequently indicted
in New York state in connection
with his involvement in BCCI’s fraudulent
practices, which also implicated NCB. Ashton
Complaint ¶¶ 564, 566; Burnett Complaint
¶¶ 89, 91.
Plaintiffs claim both NCB and BCCI
supported international terrorism. Ashton
Complaint ¶¶ 564–68; Burnett Complaint
¶¶ 91–93. Specifically, a ‘‘1999 United
States Senate Report on the BCCI scheme
detailed the role of [NCB] in hiding assets,
money laundering, the cover-up and obstruction
of a Senate investigation, and
sponsoring international terrorism.’’ Burnett
Complaint ¶ 89. Additionally, a 1998
NCB bank audit revealed irregularities involving
direct donations to several charities
and that $74 million had been funneled
by the bank’s Zakat Committee to IIRO. 22
Ashton Complaint ¶¶ 569–71; Burnett
¶¶ 94, 95. NCB also allegedly made loans
to charitable organizations without the
knowledge of the Zakat Committee. Id.
Plaintiffs allege ‘‘direct donations were received
through NCB facilities to the Red
Crescent Committee, [IIRO], and the Muwaffaq
Foundation,’’ all Defendants in
these actions. Ashton Complaint ¶ 570;
Burnett Complaint ¶ 95. Muwaffaq allegedly
provided Osama bin Laden with $3
million in 1998. Ashton Complaint ¶ 573.
Plaintiffs claim NCB knew or should have
known it was materially supporting al Qaeda,
Osama bin Laden, and international
terrorism. Ashton Complaint ¶ 570; Burnett
Complaint ¶ 95.
C. Defendants’ Status as Foreign
States for FSIA Purposes
The Court must first determine if the
moving Defendants are ‘‘foreign states’’ for
22. Zakat is required almsgiving by all Muslims.
See, e.g., Burnett Complaint at 275; id.
¶ 40.
788 349 FEDERAL SUPPLEMENT, 2d SERIES
purposes of the FSIA. A ‘‘foreign state’’ is
statutorily defined:
(a) A ‘‘foreign state’’ TTT includes a political
subdivision of a foreign state or an
agency or instrumentality of a foreign
state as defined in subsection (b).
(b) An ‘‘agency or instrumentality of a
foreign state’’ means any entity -
(1) which is a separate legal person,
corporate or otherwise, and
(2) which is an organ of a foreign
state or political subdivision thereof,
or a majority of whose shares or other
ownership interest is owned by a foreign
state or political subdivision
thereof, and
(3) which is neither a citizen of a
State of the United States TTT nor
created under the laws of any third
country.
28 U.S.C. § 1603. There is no dispute
that the Kingdom of Saudi Arabia is a
foreign state. The status of each of the
Princes and NCB are discussed below.
1. Prince Sultan and Prince Turki
Several courts have recognized that
‘‘[i]mmunity under the FSIA extends also
to agents of a foreign state acting in their
official capacities [since] ‘[i]t is generally
recognized that a suit against an individual
acting in his official capacity is the practical
equivalent of a suit against the sovereign
directly.’ ’’ 23 Bryks v. Canadian
Broad. Corp., 906 F.Supp. 204, 210
(S.D.N.Y.1995) (quoting Chuidian v. Philippine
Nat’l Bank, 912 F.2d 1095, 1101
(9th Cir.1990) (‘‘Nowhere in the text or
legislative history does Congress state that
individuals are not encompassed within 28
U.S.C. § 1603(b).’’)); see also Velasco v.
Gov’t of Indonesia, 370 F.3d 392, 398–99
(4th Cir.2004) (collecting cases extending
23. The FSIA is silent on the subject. Neither
the Supreme Court nor the Second Circuit
FSIA immunity to individuals sued in their
official capacities); Byrd v. Corporacion
Forestal y Industrial de Olancho S.A., 182
F.3d 380, 388 (5th Cir.1999) (acknowledging
the FSIA protects individuals to
the extent they act within their official
duties); El–Fadl v. Cent. Bank of Jordan,
75 F.3d 668, 671 (D.C.Cir.1996) (dismissing
claims against government officials since
they were sued in their official capacities);
Leutwyler, 184 F.Supp.2d at 286–87 (‘‘[I]t
has been generally recognized that individuals
employed by a foreign state’s agencies
or instrumentalities are deemed ‘foreign
states’ when they are sued for actions undertaken
within the scope of their official
capacities.’’) (citing Bryks, 906 F.Supp. at
210); Flatow v. Islamic Republic of Iran,
999 F.Supp. 1, 11 n. 3 (D.D.C.1998) (noting
favorable practice of applying FSIA to individuals).
Thus, this Court finds that immunity
may be available to Prince Sultan,
as the third-highest ranking member of
the Saudi government, and to Prince
Turki, as the Director of Saudi Arabia’s
Department of General Intelligence, to the
extent their alleged actions were performed
in their official capacities.
[10] The Federal Plaintiffs argue that
the FSIA cannot apply to Prince Turki
because, as of September 10, 2003 when
the complaint was filed, Prince Turki was
the Saudi ambassador to the United Kingdom,
a position the Federal Plaintiffs allege
is not entitled to immunity under the
FSIA. In support of this argument, the
Federal Plaintiffs cite Dole Food Co. v.
Patrickson, 538 U.S. 468, 480, 123 S.Ct.
1655, 155 L.Ed.2d 643 (2003), in which the
Supreme Court held that instrumentality
status is determined at the time of the
filing of the complaint.
has specifically addressed the issue.
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24. After the parties submitted their briefs and
argued the FSIA issue, the Ashton Plaintiffs
filed supplemental affidavits, without leave of
the Court, to contest, for the first time, the
timing of the PIF’s majority ownership. See
03 MD 1570 Docket # 455. The parties agree
that the PIF bought 50% of NCB shares in
May 1999. See John Fawcett Sept. 23, 2004
Supplemental Affidavit at Ex. 1 (‘‘Fawcett
Supp. Aff.’’). Later in 1999, the PIF sold 10%
of its shares to the General Organization for
[11] The Court disagrees with this reliance
on Dole Food. The Supreme Court
resolved two questions in Dole Food. ‘‘The
first [was] whether a corporate subsidiary
can claim instrumentality status where the
foreign state does not own a majority of its
shares but does own a majority of the
shares of a corporate parent one or more
tiers above the subsidiary. The second
question [was] whether a corporation’s instrumentality
status is defined as of the
time an alleged tort or other actionable
wrong occurred or, on the other hand, at
the time the suit is filed.’’ Id. at 471, 123
S.Ct. 1655. The Supreme Court held that
a foreign state’s ownership of an entity
must be direct for the entity to be considered
an instrumentality. Id. at 474, 123
S.Ct. 1655. The Supreme Court also ruled
that ownership must be determined as of
the date on which the complaint was filed.
Id. at 480, 123 S.Ct. 1655. Neither of
these points of law speaks, however, to the
circumstances under which an individual is
covered by the FSIA. Indeed, numerous
other courts that have addressed this issue
have held that the relevant inquiry for
individuals is simply whether the acts in
question were undertaken at a time when
the individual was acting in an official capacity.
See, e.g., Velasco, 370 F.3d at 398–
99; Byrd, 182 F.3d at 388; Bryks, 906
F.Supp. at 210. This Court considers that
precedent to be more consistent with the
FSIA and unaltered by the decision in
Dole Food. Thus, it deems Prince Turki
the equivalent of the foreign state inasmuch
as the complaints allege actions taken
in his official capacity as the head of the
DGI. Accordingly, both Prince Sultan and
Prince Turki are immune from suit for
their official acts unless an exception under
the FSIA applies.
2. National Commercial Bank
NCB submits that it is an instrumentality
of the Kingdom of Saudi Arabia and
therefore immune from suit. See Decl. of
Nizar Bin Obaid Madani, Assistant Minister
of Foreign Affairs of Kingdom of Saudi
Arabia ¶ 2, at Berger Decl. Ex. 7 (‘‘It is
the position of the Ministry of Foreign
Affairs that NCB is a government instrumentality
of the Kingdom of Saudi Arabia.’’).
To enjoy immunity from suit under
the FSIA, NCB must demonstrate that it
is an agency or instrumentality, or a political
subdivision of the Kingdom. 28 U.S.C.
§ 1603(a). As explained above, the FSIA
defines an ‘‘agency or instrumentality’’ as
(1) ‘‘a separate legal person, TTT(2) which
is an organ of a foreign state or political
subdivision thereof, or a majority of whose
shares or other ownership interest is
owned by a foreign state or political subdivision
thereof,’’ and (3) a non-U.S. citizen.
28 U.S.C. § 1603(b). Accordingly, NCB
claims that (1) it is a separate legal person,
(2) at the time the suit was filed a majority
of its shares were owned by an administrative
unit of the Saudi Ministry of Finance,
the Public Investment Fund (‘‘PIF’’), 24 and
(3) it is not a citizen of the United States
Social Insurance. Fawcett Supp. Aff. at Ex.
2. Late in 2002 the PIF agreed to buy 30% of
the remaining shares from the bin Mahfouz
family, but Plaintiffs claim the purchase was
not completed until January 2003, after the
lawsuit was filed on September 4, 2002. See
Fawcett Supp. Aff. at Ex. 3 & 4 (news accounts
of sale). For the reasons that will be
explained below, the Court finds it unnecessary
to resolve this dispute at this time.
790 349 FEDERAL SUPPLEMENT, 2d SERIES
or created under the laws of a third country.
[12] In Dole Food, the Supreme Court
held ‘‘that only direct ownership of a majority
of shares by the foreign state satisfies
the statutory requirement’’ outlined in
§ 1603(b). 538 U.S. at 474, 123 S.Ct. 1655.
Accordingly, the Kingdom of Saudi Arabia’s
ownership of NCB must be direct for
NCB to enjoy immunity under the FSIA.
That is, NCB will not be deemed an instrumentality
of the Kingdom if the PIF, its
majority owner, is determined to be an
agency, instrumentality, or organ of the
Kingdom. See § 1603(b)(2) (stating agency
or instrumentality is entity whose majority
ownership interest is held by either
the foreign state or a political subdivision
thereof); Filler v. Hanvit Bank, 378 F.3d
213 (2d Cir.2004) (holding an organ’s ownership
of two banks did not, in turn, make
the banks organs or instrumentalities of
foreign state); see also In re Ski Train
Fire in Kaprun, Austria, 198 F.Supp.2d
420, 426 (S.D.N.Y.2002) (holding ski resort
owner, which was owned in part by instrumentality
of Austrian government, was not
instrumentality because it was not owned
directly by the state or a subdivision thereof);
Hyatt Corp. v. Stanton, 945 F.Supp.
675, 688 (S.D.N.Y.1996) (concluding ‘‘that
corporations a majority of whose shares
are owned by agencies or instrumentalities
of foreign states are not themselves agencies
or instrumentalities’’). Thus, NCB
must demonstrate that the PIF is the
equivalent of the Kingdom of Saudi Arabia
or a political subdivision thereof.
The PIF was established by Royal Decree
with the sole function of ‘‘financing
TTT investments in productive projects of
a commercial nature whether they belong
to the Government or the industrial lending
institutions connected to it or to its
public corporations and whether these
projects are undertaken independently or
in partnership between these administrative
parties and private institutions.’’ PIF
Charter ¶ 2, at Berger Aff. Ex. 4B (‘‘PIF
Charter’’); Affidavit of Abdallah Bin Hamad
Al–Wohaibi ¶ 3, the Director of the
Legal Department of the Ministry of Finance,
at Berger Aff. Ex. 4 (‘‘Al–Wohaibi
Aff.’’). Its board of directors are all Saudi
officials named in its charter, its employees
are civil servants, and the Ministry of
Finance is responsible for its costs. Id.
¶¶ 4, 8, 10; see also PIF Charter ¶¶ 4, 7.
Its board must submit an annual report to
Saudi Arabia’s Council of Ministers summarizing
its financial position and major
operations. Al–Wohaibi Aff. ¶ 10. It has
no separate legal status from the Ministry
of Finance. Id. ¶ 4. The PIF holds shares
of corporations and operational assets,
‘‘generally TTT on behalf of the Ministry of
Finance.’’ Id. ¶ 9. It may be sued as a
department of the Ministry of Finance,
and as such, the Ministry of Finance
would be named as the defendant. Id.
¶ 12. It funds investments on behalf of
the Kingdom and it provides financing
terms for projects that commercial lenders
do not. Id. ¶ 5; Supplemental Al–Wohaibi
Aff. ¶¶ 8–10 (hereinafter ‘‘Supp. Al–Wohaibi
Aff.’’).
a. Status of the PIF
In Filler v. Hanvit Bank, a case with
facts very similar to those presented here,
the Second Circuit reiterated Dole Food ’s
requirement of direct ownership for instrumentality
status. Two defendants were
commercial banks majority-owned by the
Korean Deposit Insurance Corporation
(‘‘KDIC’’), a ‘‘governmental institution’’
run by the Korean Ministry of Finance
and the Economy of the Republic of Korea.
Filler, 378 F.3d at 215–16. In determining
if KDIC was an organ of Korea,
the court considered several factors:
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791
(1) whether the foreign state created
the entity for a national purpose; (2)
whether the foreign state actively supervises
the entity; (3) whether the foreign
state requires the hiring of public employees
and pays their salaries; (4)
whether the entity holds exclusive rights
to some right in the [foreign] country;
and (5) how the entity is treated under
foreign state law.
Id. at 217 (citing Kelly v. Syria Shell
Petroleum Dev. B.V., 213 F.3d 841, 846–47
(5th Cir.2000) (alteration in original)).
The Second Circuit held that the KDIC
was an organ of Korea because it was
formed by statute and presidential decree;
it performs the governmental functions of
protecting depositors and promoting financial
stability; its directors are appointed
by the Ministry of Finance and Economy;
its president is appointed by the President
of the Republic of Korea; and many of its
operations are overseen by the Ministry of
Finance and Economy. Id.
The banks argued that once the court
determined KDIC was an organ of the
foreign state, the banks automatically became
instrumentalities or agencies of the
state because KDIC owned a majority of
their stock. Id. The Second Circuit rejected
this argument, finding such a holding
would ‘‘permit an infinite number of subsidiaries
to enjoy sovereign immunity, TTT
would be incompatible with the purpose of
the FSIA, which is to grant governmental,
not private corporate immunity, and TTT
would reflect infidelity to the Supreme
Court’s reasoning in Dole Food.’’ Id. at
218. Accordingly, it reiterated that ‘‘ ‘a
subsidiary of an instrumentality is not itself
entitled to instrumentality status’ TTT
and that ‘only direct ownership of a majority
of shares by the foreign state satisfies
the statutory requirement.’ ’’ Id. (quoting
Dole Food, 538 U.S. at 473–74, 123 S.Ct.
1655).
The Second Circuit determined the
KDIC was an organ of Korea by considering
whether it was created and supervised
by a foreign state and whether public employees
were performing public functions.
Id. at 217. Under its reasoning, it would
appear the PIF is also an organ. It was
created by royal decree, it is supervised by
the Kingdom’s Council of Ministers and
staffed with government employees. See
PIF Charter.
Yet, under the ‘‘legal characteristics’’
test, the PIF could qualify as a political
subdivision. See Hyatt, 945 F.Supp. at
680. In Hyatt, a court in this district
reasoned that a statutory requirement of
an agency or instrumentality, as opposed
to a political subdivision, is that it is a
‘‘separate legal person TTT that can function
independent of the state.’’ Id. at 684.
If an entity could sue and be sued, own
property, and contract in its own name, it
would be considered an agency or instrumentality
and not a political subdivision.
Id. at 685. NCB submits the PIF sues
and is sued as, and generally holds property
on behalf of, the Ministry of Finance.
Al–Wohaibi Aff. ¶¶ 9, 12.
NCB argues the Court should employ
the ‘‘core functions’’ test outlined in Transaero,
Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148 (D.C.Cir.1994), to find that the
PIF is the equivalent of the Kingdom.
Under this test, if the entity’s core functions
are governmental, it is considered
the state itself. Id. at 153. If its functions
are commercial in nature, it is considered
an instrumentality. Id. This Court is governed
by Second Circuit precedent and
finds Filler and Hyatt to be controlling.
Even if it were to adopt Transaero, however,
the Court finds on the record before it
that the PIF’s emphasis on commercial
projects precludes a finding that its core
functions are governmental in nature. See
PIF Charter ¶ 2 (noting the PIF’s primary
792 349 FEDERAL SUPPLEMENT, 2d SERIES
function of ‘‘financing TTT investments in
productive projects of a commercial nature’’).
NCB also urges that O’Connell Machinery
Co. v. M.V. ‘‘Americana,’’ 734 F.2d 115
(2d Cir.1984), mandates the finding that
the PIF is a political subdivision of the
Kingdom. In O’Connell, the Second Circuit
reasoned that the legislative history of
the FSIA indicated that ‘‘political subdivisions’’
were intended to include ‘‘all governmental
units beneath the central government.’’
Id. (quoting H.R.Rep. No.
1487, 94th Cong., 2d Sess. 15, reprinted in,
1976 U.S.C.C.A.N. 6604, 6613). Given the
PIF’s position under the Ministry of Finance,
O’Connell could lead to the conclusion
that the PIF is a political subdivision
of the Kingdom of Saudi Arabia. Id.; but
see In re Ski Train Fire, 198 F.Supp.2d at
425 n. 9 (distinguishing O’Connell on
grounds that the court based its holding on
a finding that the Italian government double-tiered
its administrative agencies);
Hyatt, 945 F.Supp. at 683–84 (finding definition
of ‘‘political subdivision’’ in O’Connell
too broad and suggesting the case
should be limited to its facts and not applied
widely). In the twenty years since
O’Connell was decided, however, courts
have been inclined to limit the FSIA’s
grant of immunity. See, e.g., Dole Food,
538 U.S. at 473–74, 123 S.Ct. 1655; Filler,
378 F.3d at 218. Accordingly, the Court
will not rely on O’Connell here.
b. Limited Jurisdictional Discovery
is Warranted
[13] The Court finds that resolution of
the PIF’s and thereby NCB’s status is not
determinable on the current record and,
therefore, limited jurisdictional discovery
is warranted. As explained above, the
PIF could qualify either as an organ or
political subdivision of the Kingdom of Saudi
Arabia. Additionally, the affidavits on
which the parties ask the Court to rely
have not been subjected to cross examination
and are rather self-serving. The parties
should have the opportunity to take
discovery of the jurisdictionally relevant
facts. First City, 150 F.3d at 177; see also
In re Magnetic Audiotape Antitrust Litig.,
334 F.3d 204, 208 (2d Cir.2003) (instructing
district court to permit discovery before
granting motion to dismiss based on factsensitive,
multi-factor test). Accordingly,
NCB’s motion to dismiss for lack of subject
matter jurisdiction based on the FSIA
is denied without prejudice. Limited jurisdictional
discovery will be permitted to
explore PIF’s function, organizational
structure, and place within the Kingdom of
Saudi Arabia.
D. Application of FSIA Exceptions
to the Princes and Kingdom of
Saudi Arabia
Three exceptions to foreign sovereign
immunity are implicated in these motions—the
commercial activities exception,
28 U.S.C. § 1605(a)(2), the state sponsor of
terrorism exception, 28 U.S.C.
§ 1605(a)(7), and the torts exception, 28
U.S.C. § 1605(a)(5).
1. Commercial Activities Exception
[14] Section 1605(a)(2) states:
A foreign state shall not be immune TTT
in any case TTT in which the action is
based TTT upon an act performed in the
United States in connection with a commercial
activity of the foreign state elsewhere;
or upon an act outside the territory
of the United States in connection
with a commercial activity of the foreign
state elsewhere and that act causes a
direct effect in the United States.
28 U.S.C. § 1605(a)(2). The statute defines
‘‘commercial activity’’ as ‘‘either a
regular course of commercial conduct or a
particular commercial transaction or act.
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793
The commercial character of an activity
shall be determined by reference to the
nature of the course of conduct or particular
transaction or act, rather than by reference
to its purpose.’’ 28 U.S.C. § 1603(d).
The Supreme Court has explained, ‘‘when
a foreign government acts, not as a regulator
of the market, but in the manner of a
private player within it, the foreign sovereign’s
actions are ‘commercial’ within the
meaning of the FSIA.’’ Weltover, 504 U.S.
at 614, 112 S.Ct. 2160. 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.’’
Id. (internal citations omitted).
[15] Judge Robertson determined that
the commercial activity exception did not
apply to the Burnett Plaintiffs’ claims
against Prince Sultan and Prince Turki
because ‘‘the act of contributing to a foundation
is not within our ordinary understanding
of ‘trade and traffic or commerce’
nor, apparently was it within the contemplation
of TTT Congress.’’ Burnett II, 292
F.Supp.2d at 18 (citing H.R.Rep. No. 94–
1487, at 16, reprinted in 1976
U.S.C.C.A.N. at 6615). Thus, the consolidated
Plaintiffs do not assert that the commercial
activities exception is applicable to
any of the Defendants raising FSIA defenses
here. This Court adopts Judge
Robertson’s reasoning. To the extent any
Plaintiffs’ claims are based on a Defendant’s
contributions to charities, those acts
cannot be considered commercial.
[16, 17] The Federal Plaintiffs allege
that the Kingdom of Saudi Arabia, Prince
Sultan, and Prince Turki financed terrorism