by contributing to or supporting charities
known to support terrorist activities.
In these Plaintiffs’ view, this is essentially
money laundering and, therefore, a commercial
activity. See, e.g., Federal Plaintiffs’
Opp. to Motion to Dismiss of Prince
Sultan at 18 (citing U.S. v. Goodwin, 141
F.3d 394, 399 (2d Cir.1997)). The Second
Circuit noted in Goodwin that ‘‘[m]oney
laundering is a quintessential economic activity,’’
141 F.3d at 399, but that statement
has no bearing here. In Goodwin the
court was not deciding whether money
laundering is a commercial activity for
purposes of the FSIA. Id. (analyzing constitutionality
of criminal money laundering
statute). The Second Circuit has made
very clear that, for purposes of the FSIA,
a commercial activity must be one in which
a private person can engage lawfully.
Letelier v. Republic of Chile, 748 F.2d 790,
797–98 (2d Cir.1984); see also Saudi Arabia
v. Nelson, 507 U.S. 349, 360–62, 113
S.Ct. 1471, 123 L.Ed.2d 47 (1993) (holding
detaining and torturing plaintiff is not
commercial activity since it ‘‘is not the sort
of action by which private parties can engage
in commerce’’). Since money laundering
is an illegal activity, see 18 U.S.C.
§ 1956 (criminalizing money laundering), it
cannot be the basis for applicability of the
commercial activities exception. See Letelier,
748 F.2d at 798 (holding alleged participation
in an assassination is not a lawful
activity and therefore not a commercial
activity for purposes of the FSIA). Accordingly,
the Court finds that the commercial
activities exception outlined in
§ 1605(a)(2) is inapplicable to the allegations
contained in the Federal complaint
against the Kingdom of Saudi Arabia,
Prince Sultan, and Prince Turki.
2. State Sponsor of Terrorism
[18] Subsection (a)(7) lifts immunity in
cases:
in which money damages are sought
against a foreign state for personal injury
or death that was caused by an act of
torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision
of material support or resources
TTT for such an act TTT except that the
794 349 FEDERAL SUPPLEMENT, 2d SERIES
court shall decline to hear a claim under
this paragraph
(A) if the foreign state was not designated
as a state sponsor of terrorism
TTTT
28 U.S.C. § 1605(a)(7) (emphasis added).
The parties agree that the Kingdom of
Saudi Arabia has not been designated a
state sponsor of terrorism. See 28 U.S.C.
§ 1605(a)(7)(A) (explaining there is no jurisdiction
if ‘‘the foreign state was not
designated as a state sponsor of terrorism
under TTT the Export Administration Act
of 1979 TTT or TTT the Foreign Assistance
Act of 1961’’). Thus, this exception does
not provide an exception to immunity for
any of the Defendants raising the FSIA
defense here.
3. Torts Exception
In relevant part, the torts exception deprives
a foreign sovereign of immunity in
actions:
in which money damages are sought
against a foreign state for personal injury
or death, or damage to or loss of
property, occurring in the United States
and caused by the tortious act or omission
of that foreign state or of any official
or employee of that foreign state
while acting within the scope of his office
or employment; except this [exception]
shall not apply to -
(A) any claim based upon the exercise
or performance or the failure to exercise
or perform a discretionary function
regardless of whether the discretion
be abused.
28 U.S.C. § 1605(a)(5). Second Circuit
law instructs that district courts must determine
whether the defendant’s alleged
acts were tortious under the laws of New
York and, if so, whether the defendant’s
acts were discretionary. Robinson, 269
F.3d at 142 (‘‘If those activities could not
render the Malaysian government liable
for a tort under New York law, then it
remained immune under § 1605(a)(5).’’).
In the event that the act is tortious and
the acts were not discretionary, the alleged
tortfeasor is subject to suit under the
FSIA.
[19] The FSIA’s discretionary function
exception replicates the discretionary function
exception found in the Federal Tort
Claims Act. See 28 U.S.C. § 2680(a).
Courts have found both exceptions are ‘‘intended
to preserve immunity for ‘decisions
grounded in social, economic, and political
policy.’ ’’ Marchisella v. Gov’t of Japan,
No. 02 Civ. 10023(DC), 2004 WL 307248, at
*2 (S.D.N.Y. Feb. 17, 2004) (citing United
States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S.
797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660
(1984) (interpreting FTCA)). Generally,
acts are discretionary if they are performed
at the planning level of government,
as opposed to the operational level.
Kline v. Kaneko, 685 F.Supp. 386, 392
(S.D.N.Y.1988) (finding decision to expel
plaintiff from Mexico was product of enforcement
of immigration laws and therefore
a discretionary function); Marchisella,
2004 WL 307248, at *2 (finding decision
regarding placement of a water hose on a
ship was an operational function and therefore
not discretionary and not protected by
the FSIA); Napolitano v. Tishman
Constr. Corp., No. 96 Civ. 4402(SJ), 1998
WL 102789, at *4 (E.D.N.Y. Feb. 26, 1998)
(finding purchasing consulate buildings
and hiring contractor to renovate is a planning
function and therefore discretionary).
Defendants argue that the Court should
not even consider the torts exception for
two reasons. First, they claim that for
this exception to apply, the entire tort
must have occurred in the United States,
which Defendants argue is not the case
here. Second, Defendants claim that
Plaintiffs impermissibly seek to contort a
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Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
795
§ 1605(a)(7) state sponsor of terrorism
claim into a § 1605(a)(5) tort claim.
With respect to Prince Sultan’s and
Prince Turki’s arguments that the entire
tort, meaning both the tortious conduct
and the injury, must occur in the United
States, Judge Robertson disagreed and
stated the FSIA ‘‘preserves immunity for
tort claims unless injury or death occurs in
the United States.’’ Burnett II, 292
F.Supp.2d at 19 n. 4 (quoting Tel–Oren v.
Libyan Arab Republic, 726 F.2d 774, 775
(D.C.Cir.1984)) (Edwards, J., concurring)
(some emphasis omitted). Courts in the
Second Circuit seem to take the opposite
approach. ‘‘Although cast in terms that
may be read to require that only the injury
rather than the tortious acts occur in the
United States, the Supreme Court has
held that this exception ‘covers only torts
occurring within the territorial jurisdiction
of the United States.’ ’’ Cabiri v. Gov’t of
the Republic of Ghana, 165 F.3d 193, 200
n. 3 (2d Cir.1999) (quoting Amerada Hess,
488 U.S. at 441, 109 S.Ct. 683); see also
Hirsh v. State of Israel, 962 F.Supp. 377,
383–84 (S.D.N.Y.1997) (citing legislative
history stating both the tort and injury
must occur within the United States for
the exception to apply and dismissing complaint
where plaintiffs failed to allege specific
tort or place tort occurred); Kline,
685 F.Supp. at 391 (finding tort exception
inapplicable where victim was abducted in
Mexico City and brought to the United
25. Judge Robertson recognized the same difficulty.
Although he did consider Plaintiffs’s
claims under the tort exception, he found that
the language of the state sponsor of terrorism
exception buttressed his ultimate conclusion
that the tortious acts exception would not
provide subject matter jurisdiction over
Prince Sultan and Prince Turki. Unlike
(a)(7), the tort exception ‘‘makes no mention
of the ‘provision of material support.’ ’’ Burnett
II, 292 F.Supp.2d at 20 n. 5. After reviewing
canons of statutory construction counseling
that Congress acts intentionally when it
States because ‘‘the entire tort must be
committed in the United States’’).
Plaintiffs allege that the Kingdom,
Prince Sultan, and Prince Turki tortiously
aided and abetted the September 11 terrorists
by supporting charities that, in
turn, supported al Qaeda and international
terrorism. Plaintiffs also claim that, in
return for protection of the Kingdom,
these Defendants essentially willfully ignored
the threat that Osama bin Laden
and al Qaeda posed to the United States.
Plaintiffs do not claim that the Kingdom or
the Princes undertook any of their alleged
acts in the United States. Yet, in the
Plaintiffs’ view, the operative torts for the
Court’s consideration are the attacks of
September 11, which did take place in the
United States. See Burnett II, 292
F.Supp.2d at 19 n. 4 (noting death and
injuries occurred in United States). Further,
Plaintiffs claim it would be unjust to
allow foreign nations to escape liability for
tortious acts performed in the United
States if they could show that some act of
planning the tort took place outside the
United States.
Additionally, Defendants submit that,
since the allegations are precisely those
outlined in § 1605(a)(7)—that is, ‘‘personal
injury or death that was caused by an act
of TTT extrajudicial killing, aircraft sabotage
TTT or the provision of material support
or resources TTT for such an act’’—
none of the other exceptions should be
read to apply in its place. 25 Defendants
includes particular language in one section of
a statute but omits it from another, Judge
Robertson concluded that Congress’s omission
of ‘provision of material support’ from
(a)(5) should be treated as intentional. Id.;
see also HCSC–Laundry v. United States, 450
U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1980)
(per curiam) (‘‘[I]t is a basic principle of
statutory construction that a specific statute
TTT controls over a general provision TTT,
particularly when the two are interrelated
and closely positioned.’’).
796 349 FEDERAL SUPPLEMENT, 2d SERIES
argue the Court’s adjudication of Plaintiffs’
claims would interfere with the executive
branch’s discretion to designate state
sponsors of terror. See 28 U.S.C.
§ 1605(a)(7)(A) (listing statutes that give
Secretary of State authority to designate
countries as sponsors of terrorism). Finally,
Defendants submit the purpose
of(a)(5) was ‘‘to eliminate a foreign state’s
immunity for traffic accidents and other
torts committed in the United States, for
which liability is imposed under domestic
tort law.’’ Amerada Hess, 488 U.S. at
439–40, 109 S.Ct. 683; Burnett II, 292
F.Supp.2d at 19 (stating ‘‘the legislative
history [of the FSIA] counsels that the
exception should be narrowly construed so
as not to encompass the farthest reaches
of common law’’).
Plaintiffs respond that if Congress intended
(a)(5) and (a)(7) to be mutually
exclusive or intended that (a)(5) never apply
in the terrorism context, Congress
would have said so. Indeed, Congress did
so very explicitly with respect to (a)(5) and
(a)(2) and between (a)(7) and (a)(2). See
§ 1605(a)(5) (explaining exception can only
be used in situations ‘‘not otherwise encompassed
in paragraph (2)’’);
§ 1605(a)(7) (same). To further buttress
their argument, Plaintiffs note the two exceptions
have been interpreted to encompass
different situations. Subsection (a)(7)
covers acts of terrorism committed abroad
by a state sponsor of terrorism, while subsection
(a)(5) governs tortious acts, including
terrorism, performed in the United
States. See Flatow v. Islamic Republic of
Iran, 999 F.Supp. 1, 15 (D.D.C.1998) (finding
(a)(7) applied to conduct outside the
United States and stating ‘‘28 U.S.C.
§ 1605(a)(5) already provides jurisdiction
over state-sponsored terrorist acts in the
United States, TTT the state sponsored terrorism
exception would be redundant if it
were held to apply only within the United
States’’). Again, Plaintiffs argue that Defendants’
argument of exclusivity would
lead to absurd results, such that if a foreign
sovereign not designated a state sponsor
of terror was involved in a car accident
stemming from negligence it would not be
immune; but if it undertook a deliberate
act of violence it would enjoy immunity
from suit.
The Court understands Plaintiffs’ desire
to find a legal remedy for the horrible
wrongs committed on September 11, 2001.
If appropriate, however, these Defendants
are entitled to immunity from litigating
these gravely serious claims in this forum.
Congress made a policy decision that the
Executive branch, and not the courts, have
the authority to label a foreign nation a
terrorist. See 28 U.S.C. § 1605(a)(7)(A).
But when it drafted the state sponsor of
terror exception it did not include mutually
exclusive language that would preclude the
application of the torts exception here. It
did include such language with respect to
the commercial activities exception. See
28 U.S.C. § 1605(a)(7) (‘‘A foreign state
shall not be immune from jurisdiction of
courts of the United States or of the States
in any case—not otherwise covered by
paragraph (2) above.’’); see also 28 U.S.C.
§ 1605(a)(5) (‘‘A foreign state shall not be
immune from jurisdiction of courts of the
United States or of the States in any
case—not otherwise encompassed in paragraph
(2) above.’’). Particularly in a case
such as this where interests of sovereignty,
comity, international relations, and separation
of powers are implicated, the Court
must be vigilant to exercise discipline to
apply the law only as it is written. While
there are certainly obstacles to (a)(5)’s application—and
the Court is not convinced
the Plaintiffs have or can overcome
them—the Court will not rule as a matter
of law that subsections (a)(7) and (a)(5) are
mutually exclusive. Accordingly, the
Court will consider Plaintiffs’ evidence
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797
demonstrating the torts exception outlined
in (a)(5) provides a basis for subject matter
jurisdiction here.
[20] To fit within the exception outlined
in § 1605(a)(5), the Plaintiffs must
come forward with evidence demonstrating
the Princes’ or Kingdom’s tortious acts or
omissions caused Plaintiffs’ injuries. 26 28
U.S.C. § 1605(a)(5); Virtual Countries,
300 F.3d at 241; Cargill, 991 F.2d at 1016.
‘‘Any terrorist act, including the September
11 attacks, might have been the natural
and probable consequence of knowingly
and intentionally providing financial support
to al Qaeda, given [the complaints’]
allegations that, prior to September 11, al
Qaeda and Osama bin Laden had proclaimed
their intentions to commit murderous
terrorist activities against the United
States and its citizens, TTT and had accompanied
these words with actions by implementing,
and publicly acknowledging responsibility
for, such terrorist schemes as
the 1993 bombing of the World Trade Center,
the 1998 attack of the U.S. embassies
in Kenya and Tanzania, and the 2000 attack
of the U.S.S. Cole in Yemen.’’ Burnett
I, 274 F.Supp.2d at 105; see also
Ashton Complaint ¶¶ 105–108 (1993 World
Trade Center attack), 130–136 (embassy
bombings), 152–55 (Cole attack); Federal
Complaint ¶ 77 (alleging Osama Bin Laden
established al Qaeda to wage war with the
United States).
26. Plaintiffs argue that Judge Robertson held
them to an unnecessarily stringent theory of
causation and submit that the D.C. Circuit’s
subsequent decision in Kilburn v. Socialist
People’s Libyan Arab Jamahiriya, 376 F.3d
1123 (D.C.Cir.2004), effectively overrules the
holding in Burnett II. See Kilburn, 376 F.3d at
1129 (evaluating a claim under § 1605(a)(7)
and holding the requirement for jurisdictional
causation was proximate cause). This Court
does not read Burnett II as requiring but-for
causation and Defendants agreed at oral argument
that the proper inquiry at this stage of
a. Prince Sultan and Prince Turki
[21] Both Princes are alleged to have
tortiously aided and abetted terrorism
through their contributions to, and support
of, Islamic charities that they knew or
should have known were supporting terrorist
organizations such as al Qaeda. 27
Additionally, Plaintiffs allege Prince Turki
aided and abetted the terrorists by attempting
to deflect their activities away
from Saudi Arabia and by serving as a
‘‘facilitator of Osama bin Laden’s network
of charities.’’ Ashton Complaint ¶ 261;
Burnett Complaint ¶ 350. Plaintiffs allege
both Princes must have known that the
United States would have been al Qaeda’s
target, making the attacks on September
11 a foreseeable result of the Princes’ actions.
[22–24] Pursuant to the Second Circuit’s
instruction, the Court must first determine
whether the Princes’ acts are tortious
under New York law. Robinson, 269
F.3d at 142. In New York, conspiracy and
aiding and abetting are varieties of concerted
action liability. Pittman v. Grayson,
149 F.3d 111, 122 (2d Cir.1998).
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.’ ’’ Id. (quoting
the litigation is the presence of proximate
causation. See Sept. 14, 2004 Tr. at 121.
27. To the extent that the consolidated Plaintiffs
and the Federal Plaintiffs allege that
Prince Sultan and Prince Turki made donations
in their personal capacities, see, e.g.,
Ashton Complaint ¶ 269 (Prince Sultan); Federal
Complaint ¶¶ 451–52 (Prince Turki),
those claims are not subject to the FSIA’s
protection. The Court will determine whether
it has personal jurisdiction over Prince
Sultan and Prince Turki in Part II.
798 349 FEDERAL SUPPLEMENT, 2d SERIES
Rastelli v. Goodyear Tire & Rubber Co.,
79 N.Y.2d 289, 295, 582 N.Y.S.2d 373, 591
N.E.2d 222 (1992)). Conspiracy ‘‘requires
an agreement to commit a tortious act.’’
Id. at 122–23. Aiding and abetting ‘‘requires
that the defendant have given substantial
assistance or encouragement to
the primary wrongdoer.’’ Id. at 123.
‘‘[U]nder either theory, the defendant
must know the wrongful nature of the
primary actor’s conduct.’’ Id. (finding no
concerted action liability where airline had
no knowledge mother was removing
daughter from country without father’s approval).
i. Causation
Judge Robertson found his consideration
of Prince Sultan’s and Prince Turki’s FSIA
defenses did not present an opportunity
for a general discourse on causation since
Plaintiffs’ theory would stretch causation
to ‘‘terra incognita.’’ Burnett II, 292
F.Supp.2d at 20. This Court agrees with
Judge Robertson’s conclusion, but it undertakes
the causation analysis because a
similar review will be necessary in its consideration
of the Defendants’ motions for
failure to state a claim. See Part III
below.
Plaintiffs place great reliance on Halberstam
v. Welch, 705 F.2d 472 (D.C.Cir.1983)
and Boim v. Quranic Literacy Institute. &
Holy Land Foundation for Relief & Development,
291 F.3d 1000, 1023 (7th Cir.2002)
(‘‘Boim II ’’). Neither of these cases concern
the tortious activity exception to the
FSIA, but they do explain liability under
the ATA and for aiding and abetting and
conspiracy. 28 In Halberstam, the defendant
was found liable as a joint venturer
for a killing that occurred during a burglary
at which she was not present. Halberstam,
705 F.2d at 488; see also Lumbard
v. Maglia, Inc., 621 F.Supp. 1529, 1536
(S.D.N.Y.1985) (‘‘[T]hose who aid or abet
or conspire in tortious conduct are jointly
and severally liable with other participants
in the tortious conduct, regardless of the
degree of their participation or culpability
in the overall scheme.’’). The court found
that the defendant’s intimate relationship
with the burglar and her assistance in his
other illegal ventures ‘‘defie[d] credulity
that [she] did not know that something
illegal was afoot.’’ Halberstam, 705 F.2d
at 486.
In Boim, the district court had denied a
motion to dismiss by U.S.-based charities
alleged to have aided and abetted international
terrorism. Boim v. Quranic Literacy
Inst. & Holy Land Found., 127
F.Supp.2d 1002, 1018 (N.D.Ill.2001)
(‘‘Boim I ’’). The Seventh Circuit affirmed
the decision and held that the parents of a
yeshiva student killed in 1996 in Israel by
members of the military wing of Hamas
could prove that the defendants aided and
abetted their son’s murder under the ATA
if they could demonstrate that the charities
‘‘knew of Hamas’ illegal activities, that
they desired to help those activities succeed,
and they engaged in some act of
helping the illegal activities.’’ Boim II,
291 F.3d at 1023. The court explained
that ‘‘[f]oreseeability is the cornerstone of
28. The court in Halberstam outlined the elements
of aiding and abetting as: ‘‘(1) the
party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role
as part of an overall illegal or tortious activity
at the time that he provides the assistance;
(3) the defendant must knowingly and substantially
assist the principal violation.’’ Halberstam,
705 F.2d at 477. It described the
elements of civil conspiracy as: ‘‘(1) an agreement
between two or more persons; (2) to
participate in an unlawful act, or a lawful act
in an unlawful manner; (3) an injury caused
by an unlawful overt act performed by one of
the parties to the agreement; (4) which overt
act was done pursuant to and in furtherance
of the common scheme.’’ Id.
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799
proximate cause, and in tort law, a defendant
will be held liable only for those
injuries that might have reasonably been
anticipated as a natural consequence of the
defendant’s actions.’’ Id. at 1012. Plaintiffs
submit the court’s decision in Boim—
that the ATA was designed ‘‘to extend
liability to all points along the causal chain
of terrorism’’—supports the finding that
Prince Sultan’s and Prince Turki’s conduct
caused the attacks on September 11, 2001.
Id. at 1011.
Plaintiffs exert much effort outlining the
connections between al Qaeda and the Defendant
charities that Prince Sultan and
Prince Turki supported. Plaintiffs argue
that the indirect nature of the Princes’
contributions to al Qaeda is not fatal to
their claims since they allegedly knew that
funds they donated to the Defendant charities
were being diverted to al Qaeda. See
Bierstein Aff. in Opp. to Prince Sultan’s
Motion to Dismiss, Exs. 1–24. The Court
has reviewed the exhibits on which Plaintiffs
rely and finds only a handful relate to
Plaintiffs’ arguments.
Exhibit 11 is a report allegedly prepared
for the President of the U.N. Security
Council regarding a Saudi connection to
terror financing. The report mentions
Prince Sultan once in his role as the head
of the Supreme Council of Islamic Affairs
and does not conclude or suggest that he
had any knowledge that charities to which
he allegedly donated were funneling money
to al Qaeda.
Exhibit 12 is a statement by the former
French Minister of the Interior in which
he claims to have met with Prince Sultan,
Prince Turki, and other members of the
Saudi Royal family in November 1994 and
to have raised the ‘‘question of financial aid
furnished by Saudi charitable organizations
enjoying state support TTT to Islamist
movements or terrorist groups.’’ The
only charity he names in his statement is
the World Islamic League, not one of the
charities to which the Princes allegedly
donated.
Exhibits 21–24 are excerpts from The
Muslim World regarding Prince Sultan’s
donations to IIRO and the Joint Saudi
Committee for Relief of Kosovar Refugees
(‘‘JSCR’’). There is no indication in these
exhibits that IIRO or JSCR was funneling
donations to al Qaeda. Even construing
these allegations and exhibits in the light
most favorable to Plaintiffs, and drawing
all inferences in their favor, none of these
exhibits amount to admissible evidence
that Prince Sultan or Prince Turki knew
the charities they supported were fronts
for al Qaeda.
Alternatively, Plaintiffs argue that, since
Osama bin Laden and al Qaeda made no
effort to hide their hatred for the United
States, Prince Sultan and Prince Turki had
to have been aware that the United States
was a target, making the atrocities of September
11, 2001 a foreseeable result of
their actions. See, e.g., Bierstein Aff. in
Opp. to Prince Sultan’s Motion to Dismiss,
Exs. 2–10, 14, 15, 18, 20 (including reports
and fatwas summarizing Osama bin Laden’s
and al Qaeda’s repeated public threats
to and denouncement of the United
States). There is no question that in the
years leading up to the September 11 attacks,
Osama bin Laden and al Qaeda were
increasingly vocal in their hatred of the
United States and its interests. The question
remains, however, whether Plaintiffs
have adequately alleged that Prince Sultan’s
and Prince Turki’s specific acts aided
and abetted those terrorists.
Both Prince Sultan and Prince Turki
claim Plaintiffs cannot demonstrate their
alleged tortious activity caused Plaintiffs’
injuries. They argue that Plaintiffs ignore
that Osama bin Laden also targeted the
Saudi Royal family. See, e.g., Bierstein
Aff. in Opp. to Prince Sultan’s Motion to
800 349 FEDERAL SUPPLEMENT, 2d SERIES
Dismiss, Ex. 16 (Prince Turki, ‘‘Allied
Against Terrorism,’’ September 17, 2002,
Washington Post, editorial in which Prince
Turki explains the Saudis’ practice of sharing
information regarding Osama bin Laden
and al Qaeda with the CIA and states
that al Qaeda also targeted the Kingdom);
Exs. 3, 5, 6 (fatwas issued by Osama bin
Laden and Sheikh Omar Abdel Rahman
targeting Americans and expressing extreme
bitterness toward the Saudi Royal
family). Prince Sultan argues that Plaintiffs
blur the distinction between charities
he is on record of supporting, IIRO and
WAMY, and those he is not, Al Haramain
and MWL. See supra note 20. Both
Princes also distinguish the instant case
from Boim and other cases cited by the
Plaintiffs on the basis that groups that
they are alleged to have supported were
not designated as terrorist organizations
by the United States government. See
Boim II, 291 F.3d at 1002 (noting Hamas
was designated a terrorist organization by
President Clinton in 1995 and by the Secretary
of State in 1997); see also Consolidated
Plaintiffs’ Opp. to Prince Sultan’s
Motion to Dismiss at 16–17 (citing Flatow,
999 F.Supp. at 18 (holding Iran, a state
sponsor of terrorism, liable as provider of
material support to terrorist organization
Palestine Islamic Jihad pursuant to 18
U.S.C. § 1605(a)(7)); Smith v. Islamic
Emirate of Afghanistan, 262 F.Supp.2d
217, 232 (S.D.N.Y.2003) (granting default
judgment against Iraq, a designated state
sponsor of terror, after plaintiffs demonstrated
it provided material support to
Osama bin Laden and al Qaeda)); Consolidated
Plaintiffs’ Opp. to Prince Turki’s
Motion to Dismiss at 8 (same).
Although they did not involve New York
law, the Court agrees that Halberstam
and Boim are instructive. In Halberstam,
the defendant enjoyed an extravagant lifestyle
made entirely possible by her longterm
live-in boyfriend’s regular burglaries.
The court concluded that she had to know
of his criminal activities because she acted
as a money launderer for her boyfriend’s
stolen metals business. Halberstam, 705
F.2d at 486–88. The court found the defendant
was so close to the illegal activity
that she had to be aware of her role in it.
Id. at 486. In Boim, the court denied the
defendants’ motion to dismiss because the
complaint contained specific factual allegations
tying the defendants to Hamas. For
example, one defendant entity allegedly
employed an individual designated as a
terrorist affiliated with Hamas, another
entity admitted providing funds to Hamas,
two individual defendants had documented
and admitted ties to Hamas, and numerous
links existed between the individual
terrorist defendants and the entity defendants.
Boim I, 127 F.Supp.2d at 1006–
1008. Unlike Hamas in Boim, none of the
organizations the Princes are alleged to
have supported in an official capacity were
designated a sponsor of terrorism at the
time of the alleged contributions. In fact,
only BIF and certain branches of Al Haramain
have since been designated. See
Exec. Order No. 13224 (designating BIF
(November 19, 2002) and branches of Al
Haramain (Bosnia, Somalia on March 11,
2002; Indonesia, Kenya, Pakistan, Tanzania
on January 22, 2004; Afghanistan, Albania,
Bangladesh, Ethiopia, the Netherlands
on June 2, 2004)). Thus, pursuant
to Boim, the Plaintiffs would have to allege
specific facts showing that the
Princes knew or should have known that
the charities they supported were actually
fronts for al Qaeda. See Burnett I, 274
F.Supp.2d at 106.
[25–27] Plaintiffs have pleaded al Qaeda’s
repeated, public targeting of the United
States. They have not, however, pleaded
facts to support an inference that the
Princes were sufficiently close to the terrorists’
illegal activities to satisfy Halber-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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801
stam or New York law. Similarly, Plaintiffs
have not pleaded facts to suggest the
Princes knew they were making contributions
to terrorist fronts and provided substantial
assistance or encouragement to
the terrorists to satisfy Boim or New York
law. The Court has reviewed the complaints
in their entirety and finds no allegations
from which it can infer that the
Princes knew the charities to which they
donated were fronts for al Qaeda. The
Court is not ruling as a matter of law that
a defendant cannot be liable for contributions
to organizations that are not themselves
designated terrorists. But in such a
case, 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.
Here, there are no such factual bases presented,
there are only conclusions. See
Robinson, 269 F.3d at 146 (‘‘[W]e note that
the conclusory nature of [plaintiff’s] allegations
alone would give us pause before we
would allow them to sustain jurisdiction.’’)
(citing Zappia Middle East Const. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253
(2d Cir.2000) (finding, in context of FSIA
12(b)(1) motion, conclusory allegations in
plaintiffs affidavit insufficient to sustain
jurisdiction)). The law does not permit
Plaintiffs
to circumvent the jurisdictional hurdle of
the FSIA by inserting vague and conclusory
allegations of tortious conduct in
their complaints—and then TTT rely 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. This is at odds with
the goal of the FSIA to enable a foreign
government to obtain an early dismissal
when the substance of the claim against
it does not support jurisdiction.
Robinson, 269 F.3d at 146.
ii. Discretionary Function
Plaintiffs argue that there is no discretion
to conduct illegal activities and the
so-called discretionary function exception
to the tortious act exception should not
apply to Prince Sultan or Prince Turki.
See, e.g., Liu v. Republic of China, 892
F.2d 1419, 1421, 1431 (9th Cir.1989) (finding
no discretion to violate Chinese law
prohibiting murder where gunmen acting
on direction of China’s Director of Defense
Intelligence Bureau killed plaintiff’s
husband); Birnbaum v. United States,
588 F.2d 319, 329–30 (2d Cir.1978) (finding
in FTCA case that the CIA had no
authority and therefore no discretion to
open U.S. first class mail departing for
and arriving from the Soviet Union);
Glickman v. United States, 626 F.Supp.
171, 175 (S.D.N.Y.1985) (finding in FTCA
case that CIA agent’s secret administration
of LSD to plaintiff was not discretionary
function); Letelier v. Republic of Chile,
488 F.Supp. 665, 673 (D.D.C.1980)
(holding no discretion to order or aid assassination
of former Chilean ambassador
and foreign minister). Prince Sultan insists
that any recommendation of government
grants to Islamic charities was a
discretionary function. Prince Turki
makes a similar argument regarding his
actions as the head of DGI and urges the
Court to find that all of his alleged actions
should be subsumed by the discretionary
function exception.
[28] The Court finds the discretionary
function exception independently bars
Plaintiffs’ claims against Prince Sultan and
Prince Turki. Both Princes are accused of
donating money or recommending government
grants to charities that allegedly supported
al Qaeda. As the head of DGI,
802 349 FEDERAL SUPPLEMENT, 2d SERIES
Prince Turki is also alleged to have attempted
to protect Saudi Arabia from terrorism
and to have implemented the Kingdom’s
foreign relations with the Taliban
and Osama bin Laden. In determining
whether these were discretionary functions,
the Court must decide whether the
actions involved an element of choice or
judgment based on considerations of public
policy. See Callahan v. United States, 329
F.Supp.2d 404, 408 (S.D.N.Y.2004) (interpreting
FTCA); Berkovitz v. United
States, 486 U.S. 531, 536, 108 S.Ct. 1954,
100 L.Ed.2d 531 (1988) (construing FTCA).
[29, 30] There can be little doubt that,
as the chairman of the Supreme Council of
Islamic Affairs, charged with making recommendations
to the Council of Ministers
regarding requests for aid from Islamic
organizations located abroad, and as the
head of the Special Committee of the
Council of Ministers, charged with deciding
which grants should be made to Islamic
charities, Prince Sultan’s decisions were
made at the planning level of government,
Kline, 685 F.Supp. at 392, and ‘‘grounded
in social, economic, and political policy,’’
Varig Airlines, 467 U.S. at 814, 104 S.Ct.
2755. Similarly, as the head of DGI,
Prince Turki’s decisions regarding the
treatment of the Taliban and Osama bin
Laden were judgments based on considerations
of public policy. See Callahan v.
United States, 329 F.Supp.2d at 408; see
also Burnett II, 292 F.Supp.2d at 20–21
(‘‘[T]his conclusion would be nearly selfevident:
Prince Turki, as director of intelligence,
taking acts to protect Saudi Arabia
from terrorism, and Prince Sultan, as
chairman of the Supreme Council, making
recommendations to the Council of Ministers
about requests for assistance from
Islamic organizations outside Saudi Arabia
or, as head of the Special Committee, deciding
what disbursements should be made
to Islamic charitable organizations, were
clearly making ‘decisions grounded in social,
economic, and political policy.’ ’’)
(quoting Varig Airlines, 467 U.S. at 814,
104 S.Ct. 2755).
Accordingly, to the extent that Plaintiffs
allege acts Prince Sultan and Prince Turki
performed in their official capacities,
Prince Sultan’s and Prince Turki’s motions
to dismiss the certain consolidated complaints
29 and the Federal complaint are
granted. The Court denies Plaintiffs’ request
for jurisdictional discovery because
Plaintiffs have not presented any factual
basis for believing that discovery might
reasonably be expected to result in evidence
that would overcome the discretionary
function exception. See 28 U.S.C.
§ 1605(a)(5)(A) (exception not applicable to
‘‘any claim based upon the exercise or
performance or the failure to exercise or
perform a discretionary function regardless
of whether the discretion be abused.’’)
The Court will consider the appropriateness
of exercising personal jurisdiction
over Prince Sultan’s and Prince Turki’s
personal acts in Part II below.
b. Kingdom of Saudi Arabia
There is no dispute that the Kingdom of
Saudi Arabia is a foreign state within the
meaning of the FSIA. Federal Complaint
¶ 63. The Federal Plaintiffs have the
‘‘burden of going forward with evidence
that, under exceptions to the FSIA, immunity
should not be granted.’’ Virtual
Countries, 300 F.3d at 241 (internal quotations
omitted). As explained above, the
only possible applicable exception is the
torts exception under 28 U.S.C.
§ 1605(a)(5).
[31, 32] The Federal Plaintiffs’ allegations
arise ‘‘predominantly from miscon-
29. The consolidated complaints are Ashton, Barrera, Burnett, Salvo, and Tremksy.
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803
duct of ostensible charities under the
Kingdom’s control.’’ Federal Opp. to Motion
to Dismiss of the Kingdom of Saudi
Arabia at 1. 30 Thus, the Federal Plaintiffs
claim the Kingdom of Saudi Arabia aided
and abetted the terrorists through these
charities. In attempting to overcome the
presumption of the Kingdom’s sovereign
immunity, the Federal Plaintiffs argue the
merits of their claims against the charities.
31 Based on news accounts that the
Kingdom has dissolved its international
charities and terrorist financing reports
that implicate certain charities, the Federal
Plaintiffs urge the Court to find that the
Kingdom had previously willfully ignored
the charities’ support for terrorism. See,
e.g., Federal Opp. to Kingdom of Saudi
Arabia Motion to Dismiss Ex. 2 (‘‘Terrorist
Financing, Report of an Independent Task
Force Sponsored by the Council on Foreign
Relations’’), Ex. 3 (CNN.com June 2,
2004 ‘‘Saudis reform charities as antiterror
measure’’ (mentioning only Al Haramain
Islamic Foundation)), Ex. 5 (Senate Subcommittee
Testimony, July 31, 2003 by
Steven Emerson with Jonathan Levin,
‘‘Terrorism Financing: Origination, Organization,
and Prevention: Saudi Arabia,
Terrorist Financing and the War on Terror’’).
30. The Federal Plaintiffs allege that each of
the following charities, which are all named
as Defendants and represented by counsel in
these actions, are agencies, instrumentalities,
arms or organs of the Kingdom: MWL, IIRO,
WAMY, Al Haramain Islamic Foundation, Saudi
High Commission for Relief to Bosnia and
Herzegovina, SJRC, Rabita Trust, Saudi Red
Crescent, and BIF. The Kingdom disputes the
instrumentality status of MWL, IIRO, WAMY,
Al Haramain Islamic Foundation, Rabita
Trust, and BIF. These Plaintiffs request discovery
as to the instrumentality status of these
charities. The request is denied at this time
and may be more appropriate when the Court
considers each of the charities’ motions to
dismiss.
In response, the Kingdom argues that
Plaintiffs ignore Osama bin Laden’s public
targeting of the Kingdom. See, e.g., Bierstein
Aff. in Opp. to Prince Sultan’s Motion
to Dismiss, Ex. 3 & 4; The 9/11 Commission
Report: Final Report of the National
Commission on Terrorist Attacks Upon
the United States, 48, 373 (July 2004)
(hereinafter ‘‘9/11 Report ’’). The Kingdom
also submits it has worked with the
United States to share information in the
fight against terrorism. 9/11 Report, at
115–22; Prince Turki Decl. ¶¶ 7, 8, 10.
The U.S. State Department has not designated
the Kingdom a state sponsor of terrorism.
Additionally, the presidentiallyappointed
September 11 commission found
no evidence of the Kingdom’s funding or
support for the September 11 terrorists.
9/11 Report, at 171 (‘‘[W]e have found no
evidence that the Saudi government as an
institution or senior Saudi officials individually
funded the organization.’’).
The Court finds the Plaintiffs’ allegations
cannot overcome the discretionary
function exception to the tortious acts exception.
Marchisella v. Gov’t of Japan,
2004 WL 307248, at *2 (explaining acts
performed at the planning, as opposed to
operational, level of government are protected
by immunity); Robinson, 269 F.3d
at 146 (noting conclusory nature of allega-
31. Rather than pleading specific facts showing
that the Kingdom caused Plaintiffs’ injuries,
the Federal Plaintiffs focus predominantly
on the charities’ actions. For example,
these Plaintiffs argue that the Kingdom has
waived the defense of sovereign immunity because
certain charities, which have not been
designated as instrumentalities of the Kingdom
and which are represented by separate
counsel, did not raise the FSIA defense in
their motions to dismiss. The Court is not
convinced by this argument because the waiver
of FSIA immunity must be explicit. See
Banco de Seguros del Estado v. Mutual Marine
Office, Inc., 344 F.3d 255, 261 (2d Cir.2003).
804 349 FEDERAL SUPPLEMENT, 2d SERIES
tions would not sustain jurisdiction). Saudi
Arabia’s treatment of and decisions to
support Islamic charities are purely planning
level ‘‘decisions grounded in social,
economic, and political policy.’’ Varig Airlines,
467 U.S. at 814, 104 S.Ct. 2755; see
also Kline, 685 F.Supp. at 392. The Federal
Plaintiffs have not met their burden of
demonstrating an exception to the FSIA
applies to negate the Kingdom’s immunity.
‘‘[S]overeign immunity under the FSIA is
immunity from suit, not just from liability.’’
Moran v. Kingdom of Saudi Arabia,
27 F.3d 169, 172 (5th Cir.1994). Because
there were no factual disputes raised in
the Court’s resolution of this motion, no
jurisdictional discovery is necessary. See
Filetech S.A. v. France Telecom S.A., 304
F.3d 180, 183 (2d Cir.2002). The Kingdom
of Saudi Arabia’s motion to dismiss the
Federal complaint for lack of subject matter
jurisdiction is granted.
II. Personal Jurisdiction
[33–36] To avoid dismissal for lack of
personal jurisdiction under Rule 12(b)(2),
Plaintiffs must establish personal jurisdiction
over each Defendant. Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez,
171 F.3d 779, 784 (2d Cir.1999). Because
these motions are brought before discovery
and decided without an evidentiary
hearing, Plaintiffs need only make a prima
facie showing that personal jurisdiction exists.
PDK Labs, Inc. v. Friedlander, 103
F.3d 1105, 1108 (2d Cir.1997); A.I. Trade
Finance, Inc. v. Petra Bank, 989 F.2d 76,
79 (2d Cir.1993). Plaintiffs may rely entirely
on factual allegations, Jazini v. Nissan
Motor Co., 148 F.3d 181, 184 (2d Cir.
1998), and they will prevail even if Defendants
make contrary arguments, A.I
Trade, 989 F.2d at 79. In resolving the
motions, the Court will read the complaints
and affidavits in a light most favorable
to Plaintiffs. PDK Labs, 103 F.3d at
1108. It will not, however, accept legally
conclusory assertions or draw ‘‘argumentative
inferences.’’ Mende v. Milestone
Tech., Inc., 269 F.Supp.2d 246, 251
(S.D.N.Y.2003) (citing Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 507
(2d Cir.1994)).
A. Bases for Personal Jurisdiction
1. New York Long–Arm Statute
[37] ‘‘In a federal question case where
a defendant resides outside the forum
state, a federal court applies the forum
state’s personal jurisdiction rules if the
federal statute does not specifically provide
for national service of process.’’ PDK
Labs, 103 F.3d at 1108. Similarly, 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
pursuant to Federal Rule of Civil Procedure
4(k)(1)(A). Bank Brussels Lambert
v. Fiddler Gonzalez & Rodriguez, 305 F.3d
120, 124 (2d Cir.2002). In such cases,
courts must determine if New York law
would confer jurisdiction through its longarm
statute, and then decide if the exercise
of such jurisdiction comports with the
requisites of due process under the Fourteenth
Amendment. Id. (citing Bank
Brussels, 171 F.3d at 784); Bensusan
Rest. Corp. v. King, 126 F.3d 25, 27 (2d
Cir.1997).
a. Conspiracy Theory
Plaintiffs claim that New York’s longarm
statute provides a basis for personal
jurisdiction. Rule 302(a)(2) of New York’s
Civil Practice Law & Rules states in part:
‘‘(a) As to a cause of action arising from
any of the acts enumerated in this section,
a court may exercise personal jurisdiction
over any non-domiciliary, or his executor
or administrator, who in person or through
an agent TTT (2) commits a tortious act
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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805
within the state TTTT’’ N.Y. C.P.L.R.
§ 302(a)(2) (McKinney 2002). Courts have
defined ‘‘agent’’ to include a defendant’s
co-conspirators ‘‘under certain circumstances.’’
Chrysler Capital Corp. v. Century
Power Corp., 778 F.Supp. 1260, 1266
(S.D.N.Y.1991) (citing Lehigh Valley Indus.,
Inc. v. Birenbaum, 389 F.Supp. 798,
806–07 (S.D.N.Y.1975), aff’d, 527 F.2d 87
(2d Cir.1975)). Thus, ‘‘acts committed in
New York by the co-conspirator of an outof-state
defendant pursuant to a conspiracy
may subject the out-of-state defendant
to jurisdiction under C.P.L.R. 302(a)(2).’’
Chrysler Capital Corp. 778 F.Supp. at
1266.
[38–40] Plaintiffs are not required to
establish the existence of a ‘‘formal agency
relationship’’ between the Defendants and
their putative co-conspirators. Daventree
Ltd. v. Republic of Azerbaijan, 349
F.Supp.2d 736, at 759, 2004 WL 2997881,
at *18 (S.D.N.Y.2004). Yet, ‘‘the bland
assertion of conspiracy TTT is insufficient
to establish jurisdiction for the purposes of
section 302(a)(2).’’ Lehigh Valley Indus.
Inc., 527 F.2d at 93–94; Lamarr v. Klein,
35 A.D.2d 248, 315 N.Y.S.2d 695, 697–98
(1st Dep’t 1970) (holding that conclusory
statements about defendant’s role in conspiracy
were insufficient to establish jurisdiction
under the co-conspirator doctrine).
To establish personal jurisdiction on a conspiracy
theory, 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.
Chrysler Capital Corp., 778 F.Supp. at
1266 (citing Singer v. Bell, 585 F.Supp.
300, 302 (S.D.N.Y.1984)).
[41] ‘‘To plead a valid cause of action
for conspiracy under New York law, a
plaintiff must allege the primary tort and
four elements: ‘(a) a corrupt agreement
between two or more persons, (b) an overt
act in furtherance of the agreement, (c) the
parties’ intentional participation in the furtherance
of a plan or purpose, and (d) the
resulting damage or injury.’ ’’ Chrysler
Capital Corp. 778 F.Supp. at 1267 (quoting
Kashi v. Gratsos, 790 F.2d 1050, 1055 (2d
Cir.1986)). To warrant the inference that
a defendant was a member of the conspiracy,
Plaintiffs must show that ‘‘(a) the defendant
had an awareness of the effects in
New York of its activity; (b) the activity of
the co-conspirators in New York was to
the benefit of the out-of-state conspirators;
and (c) the co-conspirators acting in New
York acted ‘at the direction or under the
control’ or ‘at the request of or on behalf
of’ the out-of-state defendant.’’ Chrysler
Capital Corp., 778 F.Supp. at 1268–69
(quoting Dixon v. Mack, 507 F.Supp. 345,
350 (S.D.N.Y.1980)).
‘‘Whether an alleged conspiracy TTT existed
is ‘a mixed question of law and
fact.’ ’’ Daventree, 349 F.Supp.2d 736, at
760, 2004 WL 2997881, at *19 (quoting
Mario Valente Collezioni Ltd. v. Confezioni
Semeraro Paolo, S.R.L., 264 F.3d 32,
36 (2d Cir.2001)). Accordingly, the Court
cannot accept ‘‘conclusory assertions on
those issues; instead it must resolve such
questions based upon an independent examination
of the factual allegations while
mindful of its duty to draw all factual
inferences in plaintiffs’ favor.’’ Id. (rejecting
conspiracy theory of personal jurisdiction
without permitting jurisdictional discovery).
[42] Plaintiffs claim that all Defendants
in these actions conspired with the al
Qaeda terrorists to perpetrate the attacks
of September 11. See, e.g., Ashton Complaint
¶ 296; Federal Complaint ¶¶ 66, 72–
74. Without supporting factual allegations,
such a statement is insufficient to
establish an agency relationship. Lehigh
Valley Indus. Inc., 527 F.2d at 93–94; Daventree,
349 F.Supp.2d 736 at 762–63, 2004
806 349 FEDERAL SUPPLEMENT, 2d SERIES
WL 2997881, at *22 (citing First Capital
Asset Mgmt. v. Brickellbush, Inc. 218
F.Supp.2d 369, 395 (S.D.N.Y.2002)). As
will be highlighted below, the complaints
do not allege any specific facts from which
the Court could infer that Prince Sultan,
Prince Turki, Mohammed Abdullah Aljomaih,
Sheikh Hamad Al–Husani, or Abdulrahman
bin Mahfouz directed, controlled,
or requested al Qaeda to undertake its
terrorist activities. Nor are there any
specific allegations of their knowledge of,
or consent to those activities. See Daventree,
349 F.Supp.2d 736 at 762–63, 2004
WL 2997881, at *22 (finding no personal
jurisdiction under a conspiracy theory because
there was no basis from which the
court could impute to defendants the conduct
of their putative co-conspirators);
Chrysler Capital Corp., 778 F.Supp. at
1266 (requiring specific facts warranting
the inference that the defendant was a
member of the conspiracy). Accordingly,
for Prince Sultan, Prince Turki, Mohammed
Abdullah Aljomaih, Sheik Hamad
Al–Husani, and Abdulrahman bin Mahfouz,
personal jurisdiction cannot be based
on a New York long-arm conspiracy theory.
The Court will examine the possibility
of exercising conspiracy theory personal
jurisdiction over the remaining moving Defendants
when it examines the specific
claims against each of them below.
32. Although the Court does not have subject
matter jurisdiction over any of the moving
Defendants pursuant to the FSIA, that statute
also provides for personal jurisdiction if service
is proper and subject matter jurisdiction
has been established. 28 U.S.C. § 1330(b)
(‘‘[P]ersonal jurisdiction over a foreign defendant
shall exist as to every claim for relief of
which the district courts have jurisdiction TTT
where service has been made under section
1608 of this title.’’); Rein v. Socialist People’s
Libyan Arab Jamahiriya, 995 F.Supp. 325,
329–330 (E.D.N.Y.1998).
33. The Federal Plaintiffs pursue claims under
RICO, which some courts outside the Second
2. Federal Rule of Civil Procedure
4(k)
Under Federal Rule of Civil Procedure
4(k)(1)(D), service of process will establish
personal jurisdiction over a defendant
when so authorized by a federal statute. 32
Here, the ATA contains a nationwide service
of process provision, such that proper
service will confer personal jurisdiction. 33
18 U.S.C. § 2334(a) (providing for nationwide
service of process and venue); Burnett
I, 274 F.Supp.2d at 95–96. Courts
asked to analyze personal jurisdiction under
the ATA’s national service of process
provision have concluded that a plaintiff
‘‘must demonstrate that the defendant has
sufficient minimum contacts to satisfy a
traditional due process analysis.’’ Estates
of Ungar v. Palestinian Auth., 153
F.Supp.2d 76, 95 (D.R.I.2001); see also
Biton v. Palestinian Interim Self–Gov’t
Auth., 310 F.Supp.2d 172, 179 (D.D.C.
2004) (dismissing complaint pursuant to 18
U.S.C. § 2333 because individual defendants
lacked contacts with the United
States). ‘‘The relevant inquiry under such
circumstances is whether the defendant
has minimum contacts with the United
States as a whole [to satisfy Fifth Amendment
due process requirements], rather
than TTT with the particular state in which
the federal court sits.’’ Ungar, 153
F.Supp.2d at 87. Many of the moving
Circuit have held also provides for nationwide
service of process and jurisdiction. See 18
U.S.C. § 1965; Republic of Panama v. BCCI
Holdings (Luxembourg) S.A., 119 F.3d 935,
942 (11th Cir.1997) (finding 18 U.S.C.
§ 1965(d) provides for nationwide jurisdiction);
cf. PT United Can Co. Ltd. v. Crown
Cork & Seal Co., Inc., 138 F.3d 65, 71 (2d
Cir.1998) (finding ‘‘ § 1965 does not provide
for nationwide personal jurisdiction over every
defendant in every civil RICO case, no
matter where the defendant is found’’). The
Federal Plaintiffs do not use their RICO
claims as a basis for personal jurisdiction and
the Court focuses on the ATA.
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807
Defendants either dispute the manner in
which they were served or were not served
in the United States. Accordingly, the
Court must consider an alternative basis
for personal jurisdiction.
[43] If the New York long-arm statute
or the ATA does not establish personal
jurisdiction, the Court will engage in a
Rule 4(k)(2) analysis. Rule 4(k)(2) states:
If the exercise of jurisdiction is consistent
with the Constitution and laws of
the United States, serving a summons or
filing a waiver of service is also effective,
with respect to claims arising under federal
law, to establish personal jurisdiction
over the person of any defendant
who is not subject to the jurisdiction of
the courts of general jurisdiction of any
state.
Fed.R.Civ.P. 4(k)(2). Rule 4(k)(2) ‘‘fill[s] a
gap in the enforcement of federal law’’ for
courts to exercise personal jurisdiction
over defendants with sufficient contacts
with the United States generally, but insufficient
contacts with any one state in
particular. Fed.R.Civ.P. 4(k)(2) advisory
committee’s note; United States v. Int’l
Bhd. of Teamsters, 945 F.Supp. 609, 616–
17 (S.D.N.Y.1996). For jurisdiction under
Rule 4(k)(2), there must be a federal claim,
personal jurisdiction must not exist over
the defendant in New York or any other
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.
Int’l Bhd. of Teamsters, 945 F.Supp.
at 617.
a. Purposefully Directed Activities
Theory
Personal jurisdiction based on Rule 4(k)
requires minimum contacts with the United
States to satisfy Fifth Amendment due
process requirements. Plaintiffs claim
these requirements are met because Defendants
purposefully directed their activities
at the United States. Burger King v.
Rudzewicz, 471 U.S. 462, 472, 479, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985) (explaining
jurisdiction is appropriate if defendant
‘‘purposefully directed his activities at residents
of the forum and the litigation results
from alleged injuries that arise out of
or relate to those activities’’ and finding
minimum contacts existed since dispute
arose from a contract with substantial contacts
with the forum) (internal quotations
and citations omitted); Calder v. Jones,
465 U.S. 783, 789, 104 S.Ct. 1482, 79
L.Ed.2d 804 (1984) (finding personal jurisdiction
appropriate over non-resident defendants
who ‘‘expressly aimed’’ intentionally
tortious conduct at residents of forum
state, even where defendants were never
physically present in forum); see also Daventree,
349 F.Supp.2d 736 at 762–63, 2004
WL 2997881, at *22 (finding exercise of
personal jurisdiction under Rule 4(k)(2) is
appropriate if defendants ‘‘purposefully directed
their activities at residents of the
forum, and the litigation results from alleged
injuries that arise out of or related
to those activities’’). Pursuant to the holdings
in Burger King, Calder, and three
recent terrorism cases—Rein v. Socialist
People’s Libyan Arab Jamahiriya, 995
F.Supp. 325 (E.D.N.Y.1998), Daliberti v.
Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.
2000), and Pugh v. Socialist People’s Libyan
Arab Jamahiriya, 290 F.Supp.2d 54
(D.D.C.2003)—Plaintiffs submit that the
moving Defendants knew that the primary
target of Osama bin Laden’s and al Qaeda’s
campaign of terror was the United
States and that by providing assistance to
these terrorists, who Plaintiffs claim were
Defendants’ co-conspirators, Defendants
aimed their conduct at the United States.
In Rein, the court denied defendants’
motions to dismiss for lack of subject matter
and personal jurisdiction in a case aris-
808 349 FEDERAL SUPPLEMENT, 2d SERIES
ing from the bombing of Pan Am Flight
103 over Lockerbie, Scotland. The court
found it had subject matter jurisdiction
over defendant Libya, a designated state
sponsor of terror, pursuant to § 1605(a)(7)
of the FSIA. Rein, 995 F.Supp. at 329–30.
Noting that the FSIA provides for personal
jurisdiction as long as subject matter
jurisdiction exists and proper service was
effected, the court turned to Libya’s contacts
with the United States. Id. at 330
(citing Burger King, 471 U.S. at 472, 105
S.Ct. 2174). It found that Libya’s contacts
with the United States were sufficient because
its allegedly ‘‘intentional, tortious actions
[were] TTT ‘expressly aimed at’ the
United States,’’ and included ‘‘destruction
of a United States flag aircraft TTT while
en route to the United States TTT with 189
United States nationals on board.’’ Id.
(citing Calder, 465 U.S. at 789, 104 S.Ct.
1482). The court concluded that its exercise
of personal jurisdiction was appropriate
since ‘‘[a]ny foreign state would know
that the United States has substantial interests
in protecting its flag carriers and
its nationals from terrorist activities and
should reasonably expect that if these interests
were harmed, it would be subject
to a variety of potential responses, including
civil actions in the United States.’’ Id.
Similarly, in Daliberti the court found it
had subject matter jurisdiction over defendant
Iraq, a designated state sponsor of
terror, in a case stemming from the alleged
torture of several United States citizens
who were working in Kuwait. Daliberti,
97 F.Supp.2d at 46. Iraq argued
that exercising personal jurisdiction over it
would offend constitutional due process
since the FSIA ‘‘abrogates the minimum
contacts requirement.’’ Id. at 52. The
court disagreed and explained that ‘‘Congress
expressly addressed the minimum
contacts requirement in enacting the FSIA
by providing that ‘[p]ersonal jurisdiction
over a foreign state shall exist as to every
claim for relief over which the district
courts have jurisdiction.’ ’’ Id. (citing 28
U.S.C. § 1330(b); Shapiro v. Republic of
Bolivia, 930 F.2d 1013, 1020 (2d Cir.1991)).
The court acknowledged that the foreign
state’s contacts with the United States
might be more attenuated in the context of
the state sponsor of terrorism exception
than in the FSIA’s other exceptions, but
concluded ‘‘in the context of this statute,
the purpose for which it was enacted, and
the nature of the activity toward which it
is directed, TTT it is reasonable that foreign
states be held accountable in the
courts of the United States for terrorist
actions perpetrated against U.S. citizens
anywhere.’’ Id. at 54. Finally, it noted
that the ‘‘detention of these three plaintiffs
had a direct effect in the United States
and was consciously designed to affect
United States policy TTT Iraq cannot now
claim surprise at the assertion of jurisdiction
by this Court.’’ Id.
Most recently, in Pugh, representatives
of passengers killed in the bombing of a
French airliner in Africa survived a motion
to dismiss by the individual defendants.
The court found it had subject matter jurisdiction
over seven Libyan officials, including
Muammar Qadhafi, pursuant to
the state sponsor of terrorism exception of
the FSIA outlined in § 1605(a)(7). Pugh,
290 F.Supp.2d at 58. In its personal jurisdiction
analysis, the court concluded that
the individuals had sufficient contacts with
the United States to satisfy due process
since they had ‘‘conspired to sabotage’’ a
flight, which was scheduled to ‘‘stop in
several nations,’’ thus making it foreseeable
that ‘‘passengers of many nationalities
would be on board.’’ Id. at 59. From
their actions, the defendants could have
expected to be haled into ‘‘the courts of
those nations whose citizens would die.’’
Id. Given the number of passengers on the
plane, it was also foreseeable that Ameri-
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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809
cans would be on board. Id. Finally, the
court reasoned that the ‘‘interest of the
United States in preventing and punishing
international terrorism has been a matter
of worldwide common knowledge for
years.’’ Id. (citing statutes criminalizing
terrorist acts). ‘‘It logically follows that if
federal courts may constitutionally exercise
criminal jurisdiction over such individuals,
the Constitution should be no bar to
those same federal courts, in a civil action
TTT exercising civil in personam jurisdiction
over those same individuals for the
same acts.’’ Id.
[44] The courts in Rein, Daliberti, and
Pugh properly exercised personal jurisdiction
over each of the defendants in those
cases pursuant to the FSIA, which specifically
provides that personal jurisdiction exists
where proper service and subject matter
jurisdiction have been established. 28
U.S.C. § 1330(b); Rein, 995 F.Supp. at
329–30; Daliberti, 97 F.Supp.2d at 52;
Pugh, 290 F.Supp.2d at 58. While the
FSIA is not the basis for personal jurisdiction
here, jurisdiction based on the ATA or
Rule 4(k)(2) also requires minimum contacts
with the United States. Accordingly,
Plaintiffs may rely on their ‘‘purposefully
directed’’ theory to establish these minimum
contacts. But as existed in Burger
King, Calder, and the three terrorism
cases, Plaintiffs must allege some personal
or direct involvement by the Defendants in
the conduct giving rise to their claims.
See, e.g., Daliberti, 97 F.Supp.2d at 41
(explaining that defendant Iraq had held
and tortured plaintiffs and that three of
four plaintiffs were released only after
U.S. officials’ explicit negotiations with
their Iraqi counterparts); Pugh, 290
F.Supp.2d at 56 (noting that seven individual
Libyan defendants were sued in the
United States after extensive official
French investigation and that these defendants
were deemed to be responsible for
the bombings in both civil and criminal
proceedings); see also In re Magnetic Audiotape,
334 F.3d at 208 (2d (stating a
‘‘court may exercise personal jurisdiction
over defendant consistent with due process
when defendant is primary participant in
intentional wrongdoing—albeit extraterritorially—expressly
directed at forum’’)
(citing Calder v. Jones, 465 U.S. at 789–90,
104 S.Ct. 1482)); Time, Inc. v. Simpson,
No. 02 Civ. 4917(MBM), 2003 WL
23018890, at *5 (S.D.N.Y. Dec. 22, 2003)
(finding Calder turned on ‘‘personal involvement
of the individual defendants in
the particular conduct that gave rise to the
plaintiff’s claim’’ and granting motion to
dismiss because plaintiff had not demonstrated
that defendant had had any personal
involvement in the events giving rise
to the lawsuit). Accordingly, regardless of
whether personal jurisdiction is based on
the ATA’s nationwide service of process
provision or Rule 4(k)(2), to satisfy the
Fifth Amendment’s due process requirements,
Plaintiffs must make a prima facie
showing of each Defendant’s personal or
direct participation in the conduct giving
rise to Plaintiffs’ injuries.
3. Mass Torts Theory
[45] In addition to the arguments articulated
above, the Federal Plaintiffs submit
that the Court should utilize a modified
due process standard appropriate for
mass torts. See, e.g., Federal Prince Turki
Opp. at 23; Federal Prince Mohammed
Opp. at 12; SAAR Network Opp. at 12–13.
Courts in the Eastern District of New
York have outlined the modified standard
in products liability cases as follows: the
state’s interests in the litigation replace
contacts with the forum as the constitutional
touchstone and the ‘‘reasonableness’’
inquiry is replaced with a hardship analysis.
Simon v. Philip Morris, 86 F.Supp.2d
95, 129 (E.D.N.Y.2000); In re DES Cases,
789 F.Supp. 552, 587 (E.D.N.Y.1992). The
810 349 FEDERAL SUPPLEMENT, 2d SERIES
Court declines to adopt this standard.
There was no question that, at a minimum,
the defendants in these products liability
actions had substantial contacts with the
forum, in these cases being New York, and
were involved in the sale or production of
the products at issue. In re DES Cases,
789 F.Supp. at 559; Simon, 86 F.Supp.2d
at 99–100. Here, however, there are questions
as to the Defendants’ contacts with
the forum, whether it be the United States
generally or New York specifically, and
the Defendants’ alleged involvement with
al Qaeda is much more attenuated.
B. Due Process Requirements
[46–49] Any exercise of personal jurisdiction
must comport with the requirements
of due process. ‘‘The due process
test for personal jurisdiction has two related
components: the ‘minimum contacts’
inquiry and the ‘reasonableness’ inquiry.’’
Metro. Life Ins. Co. v. Robertson–Ceco
Corp., 84 F.3d 560, 567 (2d Cir.1996). Depending
on the basis for personal jurisdiction,
due process under either the Fifth or
Fourteenth Amendment applies. ‘‘[T]he
due process analysis is basically the same
under both the Fifth and Fourteenth
Amendments. The principal difference is
that under the Fifth Amendment the court
can consider the defendant’s contacts
throughout the United States, while under
the Fourteenth Amendment only the contacts
with the forum state may be considered.’’
Chew v. Dietrich, 143 F.3d 24, 28
n. 4 (2d Cir.1998). Here, personal jurisdiction
under the New York long-arm statute
requires minimum contacts with New York
pursuant to the Fourteenth Amendment.
The exercise of personal jurisdiction under
Rule 4(k) requires contacts with the United
States as a whole pursuant to the Fifth
Amendment.
1. Minimum Contacts
[50, 51] Minimum contacts are required
so ‘‘that the maintenance of the suit
does not offend traditional notions of fair
play and substantial justice.’’ Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316, 66
S.Ct. 154, 90 L.Ed. 95 (1945); see also
World–Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292, 100 S.Ct. 559, 62
L.Ed.2d 490 (1980). The minimum contacts
requirement is also 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. Burger King, 471 U.S. at
474, 105 S.Ct. 2174. The ‘‘ ‘fair warning’
requirement is satisfied if the defendant
has ‘purposefully directed’ his activities at
the residents of the forum TTT and the
litigation results from alleged injuries that
‘arise out of or relate to’ those activities.’’
Id. (internal citations omitted); see also
World–Wide Volkswagen, 444 U.S. at 297–
98, 100 S.Ct. 559 (finding purposefully directed
activities where defendant delivered
products into stream of commerce with expectation
they would be purchased by residents
of forum); Calder, 465 U.S. at 789–
90, 104 S.Ct. 1482 (finding publishing activities
outside of forum were calculated to
cause injury to plaintiff in forum where
she lived and which also had the highest
subscription rate). ‘‘Although it has been
argued that foreseeability of causing injury
in another State should be sufficient to
establish such contacts there when policy
considerations so require, the Court has
consistently held that this kind of foreseeability
is not a ‘sufficient benchmark’ for
exercising personal jurisdiction.’’ Burger
King, 471 U.S. at 474, 105 S.Ct. 2174
(quoting World–Wide Volkswagen, 444
U.S. at 295, 100 S.Ct. 559). In every case,
there must be ‘‘some act by which the
defendant purposefully avails itself of the
privilege of conducting activities within the
forum State, thus invoking the benefits
and protections of its laws.’’ Id. (quoting
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
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811
Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).
[52] For purposes of the minimum contacts
inquiry, a distinction is made between
specific and general jurisdiction.
Specific jurisdiction exists when the forum
exercises jurisdiction over the defendant in
a suit arising out of the defendant’s contacts
with that forum. Metro. Life Ins. 84
F.3d at 567–68. 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. 34 Id. at 568.
2. Reasonableness
[53] In determining whether the exercise
of personal jurisdiction is reasonable,
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.
Metro. Life, 84 F.3d at 568 (citing Asahi
Metal Indus. Co. v. Superior Court, 480
U.S. 102, 113–16, 107 S.Ct. 1026, 94
L.Ed.2d 92 (1987)). ‘‘These considerations
sometimes serve to establish the reasonableness
of jurisdiction upon a lesser showing
of minimum contacts than would otherwise
be required.’’ Burger King, 471 U.S.
at 477, 105 S.Ct. 2174.
[54] There obviously are competing
policy considerations at play here. In general,
‘‘ ‘great care and reserve should be
exercised when extending our notions of
personal jurisdiction into the international
field.’ ’’ Asahi Metal Indus., 480 U.S. at
115, 107 S.Ct. 1026 (quoting United States
v. First Nat’l City Bank, 379 U.S. 378, 404,
85 S.Ct. 528, 13 L.Ed.2d 365 (1965) (Harlan,
J., dissenting)). ‘‘[T]he unique burdens
placed upon one who must defend
oneself in a foreign legal system should
have significant weight in assessing the
reasonableness of stretching the long arm
of personal jurisdiction over national borders.’’
Id. at 114, 107 S.Ct. 1026. On the
other hand, ‘‘[t]here is some merit TTT to
the plaintiffs’ argument that no foreign
terrorist today can fairly assert a lack of
‘fair warning’ that it could be ‘haled into
court’ in [this forum.]’’ Biton v. Palestinian
Interim Self–Government, 310
F.Supp.2d 172, 178 (D.D.C.2004).
C. Jurisdictional Discovery
[55, 56] Plaintiffs urge the Court to
deny Defendants’ motions and order jurisdictional
discovery. In evaluating jurisdictional
motions, district courts enjoy broad
discretion in deciding whether to order
discovery. See, e.g., APWU v. Potter, 343
F.3d 619, 627 (2d Cir.2003) (noting a court
may ‘‘devis[e] the procedures [to] ferret
out the facts pertinent to jurisdiction’’);
Marine Midland Bank, N.A. v. Miller, 664
F.2d 899, 904 (2d Cir.1981) (noting a court
has considerable procedural leeway in deciding
whether discovery would assist resolution
of motion to dismiss for lack of
personal jurisdiction); Lehigh Valley Indus.
v. Birenbaum, 527 F.2d 87, 93–94 (2d
Cir.1975) (finding no abuse of discretion in
denying discovery where the complaint
failed to plead sufficient facts to establish
34. At oral argument, Plaintiffs focused on
specific jurisdiction, see Oct. 12, 2004 Transcript
at 44, but Plaintiffs include general
jurisdiction arguments in many of their opposition
briefs, see, e.g., Ashton Opp. to Prince
Mohamed at 22–24; Burnett Opp. to Aljomaih
at 11. The Court considers all arguments.
812 349 FEDERAL SUPPLEMENT, 2d SERIES
jurisdiction). ‘‘If a plaintiff has identified
a genuine issue of jurisdictional fact, jurisdictional
discovery is appropriate even in
the absence of a prima facie showing as to
the existence of jurisdiction.’’ Daventree,
349 F.Supp.2d 736 at 761, 2004 WL
2997881, at *20 (citing In re Magnetic
Audiotape, 334 F.3d at 207–08). Courts
are not obligated to subject a foreign defendant
to discovery, however, 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. Id. (citing
Jazini, 148 F.3d at 183–85 (granting
motion to dismiss and denying jurisdictional
discovery where complaint was described
as ‘‘sparse’’ and ‘‘conclusory’’)); see
also Cornell v. Assicurazioni Generali
S.p.A., Consolidated, Nos. 97 Civ. 2262, 98
Civ. 9186(MBM), 2000 WL 284222, at *2
(S.D.N.Y. Mar. 16, 2000) (granting motion
to dismiss and denying request for jurisdictional
discovery where the complaint
stated, without any supporting facts, that
the defendant ‘‘participates in a ‘multinational
insurance arrangement’ present in
the State of New York’’); In re Ski Train
Fire in Kaprun, Austria, 230 F.Supp.2d at
410–413 (granting motion to dismiss and
denying jurisdictional discovery where
complaint only contained conclusory allegations).
D. Application of Plaintiffs’ Theories
to Moving Defendants
1. Prince Sultan
The Court outlined the allegations
against Prince Sultan in Part I.B.1. With
respect to Prince Sultan’s contacts with
the United States, Plaintiffs allege that
‘‘Saudi Royal family members own substantial
assets in the United States of
America, and do substantial business in
the United States of America, the profits
of which in part, are used to fund international
terrorist acts, including those which
led to the murderous attacks of September
11, 2001.’’ See Ashton Complaint ¶ 296.
There is no indication of whether these
unspecified members of the Royal family
include Prince Sultan. Most Plaintiffs also
claim Prince Sultan is the ex-officio Chairman
of the Board of Saudi Arabia Airlines,
‘‘which does business in the United States
and internationally.’’ Burnett Complaint
¶ 340; Ashton Complaint ¶ 253; Barrera
Complaint ¶ 255; Salvo Complaint ¶ 245;
Tremsky Complaint ¶ 180. The Federal
Plaintiffs do not make a similar allegation.
[57] To the extent these allegations are
an attempt to establish general jurisdiction
over Prince Sultan, they are insufficient.
See In re Baan Co. Sec. Litig., 245
F.Supp.2d 117, 130 (D.D.C.2003) (refusing
to hold that control status in foreign corporation
with United States office is sufficient
for personal jurisdiction over individual);
Cornell, 2000 WL 284222, at *2
(granting motion to dismiss where complaint
contained one conclusory statement
regarding jurisdiction); Family Internet,
Inc. v. Cybernex, Inc., No. 98 Civ.
0637(RWS), 1999 WL 796177, at *4
(S.D.N.Y. Oct. 6, 1999) (holding that personal
jurisdiction must be individually established
over corporate officers even
when the court has personal jurisdiction
over the corporation itself).
[58] Proceeding under the purposefully
directed activities theory of personal jurisdiction,
Plaintiffs argue that Prince Sultan
knew or should have known the organizations
to which he donated were funneling
money to al Qaeda and that al Qaeda’s
primary target was the United States.
Consol. Plaintiffs’ Opp. at 23. Prince Sultan
argues that his alleged actions cannot
satisfy the minimum contacts requirement
since the Second Circuit’s recent description
of Calder requires ‘‘primary participa[tion]
in intentional wrongdoing.’’ See
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
813
In re Magnetic Audiotape, 334 F.3d at
208.
Judge Robertson dismissed without
prejudice the claims against Prince Sultan
in his personal capacity for lack of personal
jurisdiction. Burnett II, 292 F.Supp.2d
at 21–22. He rejected Plaintiffs’ argument
that Prince Sultan had purposefully directed
his alleged activities at the United
States. Id. at 22–23. Judge Robertson
found that the complaint’s claims that
Prince Sultan donated money to foundations
that allegedly funded al Qaeda
‘‘stop[ ] well short of alleging Prince Sultan’s
actions were ‘expressly aimed’ or
‘purposefully directed’ at the United
States.’’ Id. at 23 (citing Burger King and
Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 774–75, 104 S.Ct. 1473, 79 L.Ed.2d 790
(1984)). Judge Robertson also denied
Plaintiffs’ request for discovery because
they did not provide an ‘‘outline of how
their showing of minimum contacts might
be enhanced by jurisdictional discovery.’’
Id. at 22.
This Court’s record, which Plaintiffs
claim is more extensive than that before
Judge Robertson, contains many examples
of Osama bin Laden’s and al Qaeda’s public
targeting of the United States. See
Bierstein Aff. in Opp. to Prince Sultan’s
Motion to Dismiss, Exs. 1–24. The complaints
also contain conclusory allegations
that Prince Sultan aided and abetted terrorism.
See, e.g., Burnett Complaint
¶ 363; Federal Complaint ¶¶ 429–31. But
Plaintiffs do not offer any facts to lend
support to their allegation that Prince Sultan
purposefully directed his activities at
this forum by donating to charities that he
knew at the time supported international
terrorism. See Exec. Order 13244 (designating
certain branches of Al Haramain in
2002 and later). ‘‘[L]egal conclusions done
up as factual allegations are not facts and
cannot substitute for facts.’’ Cornell, 2000
WL 284222, at *2 (citing Papasan v. Allain,
478 U.S. 265, 286, 106 S.Ct. 2932, 92
L.Ed.2d 209 (1986)). Plaintiffs have note
provided an ‘‘outline of how their showing
of minimum contacts might be enhanced
by jurisdictional discovery.’’ Burnett II
292 F.Supp.2d at 22. Accordingly, Prince
Sultan’s motions to dismiss the certain
consolidated and Federal complaints for
lack of personal jurisdiction over the
claims concerning his personal acts are
granted. Plaintiffs’ request for jurisdictional
discovery with respect to Prince Sultan
is denied. Daventree, 349 F.Supp.2d
736, at 761, 2004 WL 2997881, at *20 (finding
jurisdictional discovery is not necessary
where the allegation of jurisdictional
facts fails to state a basis for the exercise
of personal jurisdiction).
2. Prince Turki
[59] The allegations against Prince
Turki are outlined in Part I.B.2. Because
the consolidated Plaintiffs do not allege
any acts taken by Prince Turki in his
personal capacity, the Court only considers
the Federal Plaintiffs’ claim that Prince
Turki made personal donations to certain
Saudi charities. See Federal Complaint
¶ 452. The Federal complaint does not
make any specific jurisdictional allegations
against Prince Turki. Rather, these Plaintiffs
rely on Calder, Rein, Daliberti, Pugh,
and the modified due process standard for
mass torts to argue that the September 11
attacks were a foreseeable result of Prince
Turki’s alleged support of certain Saudi
charities. See Federal Opp. to Prince
Turki’s Motion to Dismiss at 22–23.
The Federal Plaintiffs have not presented
any specific facts from which this Court
could infer Prince Turki’s primary and
personal involvement in, or support of, international
terrorism and al Qaeda. Conclusory
allegations that he donated money
to charities, without specific factual allega-
814 349 FEDERAL SUPPLEMENT, 2d SERIES
tions that he knew they were funneling
money to terrorists, do not suffice. See
Burnett II, 292 F.Supp.2d at 23 (citing
Burger King and Keeton v. Hustler Magazine,
Inc., 465 U.S. at 774–75, 104 S.Ct.
1473); see also Exec. Order 13244 (designating
certain branches of Al Haramain
and BIF in 2002). Accordingly, Prince
Turki’s motion to dismiss the Federal complaint
for lack of personal jurisdiction is
granted. Jurisdictional discovery is not
appropriate with respect to Prince Turki
because Plaintiffs have not identified any
genuine issue of jurisdictional fact. Daventree,
349 F.Supp.2d 736, at 761, 2004
WL 2997881, at *20.
3. Prince Mohamed
The Ashton and Federal Plaintiffs allege
that Prince Mohamed is or was the chairman
or chief executive officer of three
financial institutions in Saudi Arabia: Dar
al Maal al Islami (‘‘DMI’’), Islamic Investment
Company of the Gulf–Bahrain EC
(‘‘IICG’’), and Faisal Islamic Bank–Sudan
(‘‘FIBS’’), which are all shareholders of
Defendant Al Shamal Islamic Bank. 35 Ashton
Complaint ¶¶ 51, 54; Federal Complaint
¶¶ 307, 309, 473. They claim that
Prince Mohamed knew or should have
known that each of these financial institutions
‘‘acted as an aider and abettor and
material sponsor of al Qaeda, Bin Laden,
and international terrorism.’’ Ashton Complaint
¶ 276; Federal Complaint ¶ 472 (alleging
Prince Mohamed ‘‘has long provided
material support and resources to al Qaeda’’).
The Ashton Plaintiffs claim that
Prince Mohamed is ‘‘heavily involved in
the sponsorship of terror through Faisal
Islamic Bank–Sudan,’’ since at some point
al Qaeda allegedly had an account there.
Ashton Complaint ¶¶ 65, 66, 255, 274; see
also Ashton Opp. to Prince Mohamed’s
Motion to Dismiss at 25 (arguing that al
Qaeda operative Jamal Ahmed Al Fadl
used an account at Al Shamal Islamic
Bank to transfer $250,000 for Osama bin
Laden). These Plaintiffs also claim that
Prince Mohamed has financial ties with
alleged al Qaeda financier Muhammed
Zouaydi. Ashton Complaint ¶ 258. The
Federal Plaintiffs claim that Prince Mohamed
made personal contributions to Saudi-based
charities that he knew or should
have known sponsored the terrorist activities
of al Qaeda. These charities include
IIRO, MWL, WAMY, BIF, the Saudi High
Commission, SJRC, and Al Haramain.
Federal Complaint ¶¶ 475–76
The Ashton complaint contains an unspecific
allegation regarding the Saudi
Royal family’s ownership of property in
the United States. Ashton Complaint
¶ 296. The Ashton Plaintiffs argue that
general jurisdiction is appropriate because
Prince Mohamed attended college and
business school in the United States, gave
two interviews in a New York apartment
in 1978, gave a speech at Harvard in 1999,
and made investments in American businesses
through the banks he chairs in
2001. Ashton Opp. to Prince Mohamed
Motion to Dismiss at 22–23. Plaintiffs assert
jurisdictional discovery is likely to
expose further contacts between Prince
Mohamed and the United States.
If general jurisdiction is not established
through Prince Mohamed’s contacts with
the United States, the Ashton and Federal
Plaintiffs claim that jurisdiction exists under
either the New York long-arm conspiracy
theory or the purposefully directed
activities theory. Ashton Opp. to Prince
Mohamed Motion to Dismiss at 17–22;
Federal Opp. to Prince Mohamed Motion
to Dismiss at 6–12. Specifically, the Ash-
35. Osama bin Laden allegedly capitalized Al
Shamal Islamic Bank with $50 million. Burnett
Complaint ¶ 70. Several al Qaeda operatives,
including Osama bin Laden, held accounts
there. Id. ¶ 79.
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815
ton Plaintiffs bolster their arguments for
personal jurisdiction by citing to paragraphs
in the complaint in support of each
of the requirements for conspiracy. See
Chrysler Capital Corp., 778 F.Supp. at
1268–69 (outlining cause of action for conspiracy).
Plaintiffs claim that Prince Mohamed
and al Qaeda agreed to injure the United
States through acts of international terrorism.
Ashton Complaint ¶¶ 5, 23 (all defendants
are co-conspirators), 51, 105–08
(February 1993 World Trade Center
bombing), 120 (February 1998 fatwa), 130–
36 (1998 embassy bombings), 152–55
(U.S.S. Cole attack), 188, 255, 274–76, 580
(September 11, 2001 attacks); see also
Federal Complaint ¶¶ 66, 72–74 (listing defendants
who have ‘‘aided and abetted,
conspired with, and provided material support
and resources to, defendant al Qaeda
and/or affiliated FTOs, associations, organizations
or persons.’’). Next they claim
the September 11 attacks were perpetrated
in furtherance of that common scheme.
Ashton Complaint ¶¶ 23, 188, 610. According
to Plaintiffs, Prince Mohamed participated
in the conspiracy by providing
funding, financial support, and banking
services through FIBS. Id. ¶¶ 48–54, 63–
66, 255, 274–276, 387, 580, 582. Specifically,
Plaintiffs claim:
1 On October 17, 1983, Prince Mohamed
became CEO of DMI. Under Prince
Mohamed’s chairmanship, DMI developed
banking, investment and insurance
activities in approximately twenty
offices across the world. DMI was
founded in 1981 to foster the spread of
Islamic banking across the Muslim
world and its Board of Directors included
Haydar Mohamed bin Laden, a
half-brother of Osama bin Laden. Id.
¶ 274.
1 Faisal Islamic Bank Sudan was one of
the five main founders of Al Shamal
Islamic Bank TTTT Al Shamal Islamic
Bank is an instrumental bank in bin
Laden’s financial support network.
Bin Laden used Al Shamal Bank for
the funding of his al Qaeda network
leading up to the 1998 United States
embassy bombings in Africa. Defendant
Faisal Islamic Bank was implicated
during Al Fadl’s May 2001 United
States trial testimony regarding the
bombings as holding and managing
bank accounts for al Qaeda operatives.
Id. ¶¶ 274–75.
1 As the head of DMI, Prince Mohamed
knew or should have known of these
and other activities and acted as an
aider and abettor and material sponsor
of al Qaeda, bin Laden, and international
terrorism. Id. ¶ 276.
1 U.S. designated terrorists Wa‘el Julaidan
and Yassin Kadi had accounts in a
DMI subsidiary. Ashton Opp. at 25.
Finally, Plaintiffs allege the that attacks in
question caused many deaths, a fact that
no one disputes. Ashton Complaint ¶¶ 23,
610.
In response, Prince Mohamed argues
that Plaintiffs have failed to demonstrate
that he is ‘‘present’’ in the United States
for general personal jurisdiction purposes.
See Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 411–12, 416–18,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984);
Bersch v. Drexel Firestone, Inc., 519 F.2d
974, 998 (2d Cir.1975) (buying and selling
American securities is insufficient to establish
that defendant was ‘‘doing business’’ in
the United States). Prince Mohamed submits
that some of the contacts on which
Plaintiffs rely are too far removed in time
from September 2001 to be considered by
the Court. See Metro. Life, 84 F.3d at 569
(holding courts should examine a defendant’s
contacts with the forum for a reasonable
period prior to the date on which
the lawsuit was filed, and finding that six
816 349 FEDERAL SUPPLEMENT, 2d SERIES
years was reasonable). Prince Mohamed
correctly submits that his position as an
officer of DMI, IICG, and FIBS would not
be a basis for jurisdiction over him even if
the Court had personal jurisdiction over
these entities. See Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 781 n. 13,
104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)
(‘‘Each defendant’s contacts with the forum
State must be assessed individually.’’).
Finally, Prince Mohamed argues that the
conclusory allegation that he participated
in a terrorist conspiracy, without specific
facts, is insufficient to create personal jurisdiction
over him.
[60] The Court agrees that Plaintiffs
have not presented a prima facie case of
general jurisdiction over Prince Mohamed.
In the ten years before the attacks, Prince
Mohamed’s contacts with the United
States consist of one speech and a handful
of investments in the United States
through the banks with which he is affiliated.
These contacts are not sufficiently
‘‘systematic and continuous’’ to maintain
general jurisdiction over a defendant in
this action. 36 See Helicopteros, 466 U.S. at
416, 104 S.Ct. 1868 (holding that purchasing
in forum, sending personnel for training
in forum, and negotiating a contract in
forum were not sufficient to establish general
jurisdiction).
[61, 62] Plaintiffs have alleged that
DMI and FIBS might have been involved
in the financing of terrorism. See, e.g.,
Ashton Complaint ¶¶ 274–75; Ashton Opp.
at 25. Even assuming that the Court has
personal jurisdiction over these entities,
‘‘[t]he mere fact that a corporation is subject
to jurisdiction TTT does not mean that
individual officer may be hauled before
New York courts without any showing that
the individuals themselves maintained a
36. There is no allegation that Prince Mohamed’s
investments in the United States are
presence or conducted business in New
York.’’ Family Internet, 1999 WL 796177,
at *4. Plaintiffs have not alleged that
Prince Mohamed had any knowledge or
involvement in any al Qaeda accounts at
any of the banks he chaired. FIBS’ relationship
with Al Shamal Islamic Bank,
which purportedly knowingly opened accounts
for al Qaeda operatives, including
Osama bin Laden, is too remote in time
and proximity to implicate Prince Mohamed.
To make a prima facie case of
personal jurisdiction, Plaintiffs must either
allege personal acts by Prince Mohamed
by which he purposefully directed his activities
at the United States by supporting
Osama bin Laden, al Qaeda, or their terrorist
agenda, or demonstrate that the acts
of the banks he chaired can be imputed to
him. Plaintiffs have not met their burden.
Thus, Prince Mohamed’s motions to dismiss
the Ashton and Federal complaints as
against him for lack of personal jurisdiction
are granted.
4. Estate of Mohammad Abdullah
Aljomaih
On May 2, 2003 by Second Addition and
Removal of Defendants Pursuant to Case
Management Order No. 1 imposed by
Judge Robertson, the Burnett Plaintiffs
added a defendant ‘‘Mohammed Bin Abdullah
Al–Jomaith.’’ To date, no specific
allegations have been added to the complaint
with respect to Mr. Aljomaih.
In anticipation of what the claims
against him might be, before his death Mr.
Aljomaih prepared a declaration in support
of his motion to dismiss. He was born in
Saudi Arabia in 1915 and lived in Riyadh
for most of his life. Aljomaih Decl. ¶ 3. He
and his family began a company in the
1940s that now supplies automobiles, soft
drinks, construction equipment, and other
related to any alleged conspiracy or to al
Qaeda’s activities.
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
817
goods and services to large portions of
Saudi Arabia. Id. ¶ 4. In the past ten
years he visited the United States three
times for medical reasons. Id. ¶¶ 5–6.
Prior to these medical visits, he took a
short trip to New York City in 1964. Id.
¶ 7. He owned no property, held no bank
accounts, and conducted no business in
this country. Id. ¶ 10.
Mr. Aljomaih’s estate argues that there
were problems with his service. He was
served pursuant to Judge Robertson’s
March 25, 2003 approving service by publication.
Under that order, Plaintiffs published
a list of defendants in two publications,
The International Herald Tribune
and Al Quds Al Arabia. The notice in The
International Herald Tribune contained
Mr. Aljomaih’s name in English, a language
he could not read. Id. ¶ 11. Al
Quds Al Arabi is published in Arabic, but
is not circulated in Saudi Arabia and the
list did not include Mr. Aljomaih’s name.
Even if service was proper, however, the
estate of Mr. Aljomaih claims the Court
does not have personal jurisdiction over it.
Plaintiffs submit that Mr. Aljomaih is
implicated by the ‘‘Golden Chain.’’ Plaintiffs’
Opp. at 9. The ‘‘Golden Chain’’ is a
group of documents that was discovered
by Bosnian authorities searching the offices
of charity Defendant BIF in March
2002. Plaintiffs claim the ‘‘Golden Chain’’
contains a list of early direct donors to al
Qaeda. Plaintiffs’ Opp. at 9; see also Bierstein
Aff. in Opp. to Al–Husani Motion
to Dismiss, Ex. 2 (‘‘Golden Chain’’ document).
It includes the entry ‘‘Al–Jumaih.
Jeddah (S.A.).’’ Plaintiffs do not dispute
that ‘‘for more than sixty years [Mr. Aljomaih]
lived in Rihadh,’’ not Jeddah, Aljomaih
Decl. ¶ 3, yet they insist the document
identifies him as a direct donor to al
Qaeda. Additionally, Plaintiffs claim that
Mr. Aljomaih’s company donated money to
charity Defendant IIRO. Plaintiffs assert
there are sufficient allegations against Mr.
Aljomaih in the form of general allegations
against all Defendants to put him on notice
of the claims against him. They claim that
jurisdiction over Mr. Aljomaih’s estate is
proper because he ‘‘purposefully directed’’
his activities at the United States by supporting
al Qaeda. Plaintiffs also submit
that Mr. Aljomaih’s company does business
with General Motors and Shell Corporation
and that, therefore, he must have
had contacts with the United States. See
Opp. at 11; Statement of Jamie L. Paye
attached to Plaintiffs’ Opp.
[63] The Court finds the Plaintiffs
have not established a prima facie case of
jurisdiction over Mr. Aljomaih to defeat
his motion or warrant jurisdictional discovery.
Their theory of jurisdiction rests almost
entirely on a document with serious
foundational flaws. Even assuming, as the
Court must, that the ‘‘Golden Chain’’ refers
to Mr. Aljomaih, with no indication of
who wrote the list, when it was written, or
for what purpose, the Court cannot make
the logical leap that the document is a list
of early al Qaeda supporters. Mr. Aljomaih’s
motion to dismiss the Burnett complaint
for lack of personal jurisdiction is
accordingly granted.
5. Sheikh Hamad Al–Husani
The posture of the Burnett Plaintiffs’
case against Sheikh Hamad Al–Husani is
similar to that against Mr. Aljomaih. Mr.
Al–Husani was also added to a list of
defendants to be served by publication and
the complaint contains no specific allegations
against him. Al–Husani Decl. ¶ 10.
He is a watch retailer residing in Saudi
Arabia. Id. ¶¶ 3–4, 7. Mr. Al–Husani has
never visited the United States, owns no
real property here, holds no bank accounts
or investments in the United States, and
does not engage in transactions with any
businesses in the United States. Id. ¶¶ 3,
818 349 FEDERAL SUPPLEMENT, 2d SERIES
5–7. He has never supported any person
or organization that he has known to participate
in any terrorist attacks. Id. ¶ 9.
Mr. Al–Husani submits that Plaintiffs cannot
cure the lack of allegations in the
complaint in its motion papers. Wright v.
Ernst & Young, LLP, 152 F.3d 169, 178
(2d Cir.1998) (explaining a party is not
permitted to amend its complaint through
allegations made in motion papers).
Mr. Al–Husani also claims that he was
not properly served because The International
Herald Tribune has a circulation of
only 199 in Saudi Arabia and is published
in English, and Al Quds Al Arabia is a
London-based paper banned in the Kingdom.
Even if service was proper, however,
Mr. Al–Husani submits this Court does
not have personal jurisdiction over him.
The Burnett Plaintiffs claim that Mr.
Al–Husani is also implicated by the ‘‘Golden
Chain,’’ and thus an early supporter of
al Qaeda. Plaintiffs’ Opp. to Al–Husani
Motion to Dismiss at 10; Bierstein Aff. at
Ex. 2 (document listing ‘‘Hamad Al Husaini,’’
without indicating when list was written,
by whom, or for what purpose). The
Plaintiffs place great weight on the United
States’ inclusion of the ‘‘Golden Chain’’ in
its proffer of evidence in United States v.
Arnaout, the government’s case against an
executive of Defendant charity BIF. See
Bierstein Aff. at Ex. 1 (proffer). The
court presiding over that case, however,
ruled that the document was inadmissible
hearsay. United States v. Arnaout, No.
02 Cr. 892, 2003 WL 255226, at *1–2
(N.D.Ill. Feb. 4, 2003). Nevertheless, by
supporting al Qaeda, Plaintiffs assert Mr.
Al–Husani purposefully directed his activities
toward the United States, making the
exercise of personal jurisdiction appropriate.
See, e.g. Bierstein Aff. Exs. 9–15
(detailing al Qaeda’s hatred for and actions
against the United States). Additionally,
Plaintiffs claim that one of Mr. Al–Husani’s
companies is a supporter of Al–Waqf
al-Islami Foundation, a Dutch entity whose
seminars ‘‘have drilled extremist messages
into the heads of thousands of young Muslims.’’
‘‘Radical Foundation: In ‘Law’
Seminars, A Saudi Group Spreads Extremism,’’
Wall St. J., Apr. 15, 2003, at
Bierstein Aff. Ex. 6.
[64] Plaintiffs have not established a
prima facie showing of jurisdiction over
Mr. Al–Husani to survive his motion to
dismiss or warrant jurisdictional discovery.
The ‘‘Golden Chain’’ does not say what the
Plaintiffs argue it says. It is only a list of
names found in a charity’s office. It does
not establish Mr. Aljomaih’s involvement
in a terrorist conspiracy culminating in the
September 11 attacks and it does not demonstrate
that he purposefully directed his
activities at the United States. Accordingly,
Mr. Al–Husani’s motion to dismiss the
Burnett complaint against him is granted.
6. NCB
The Court outlined the Ashton and Burnett
Plaintiffs’ claims against NCB in Part
I.B.4. For purposes of the personal jurisdiction
analysis, the Court will assume at
this point that the FSIA does not provide
for subject matter and personal jurisdiction
over NCB. Accordingly, the Plaintiffs
will have to make a prima facie showing to
survive NCB’s motion to dismiss. In that
vein, Plaintiffs argue that NCB purposefully
directed its activities at the United
States and participated in a conspiracy
that culminated in the attacks of September
11.
Plaintiffs submit NCB has many contacts
with the United States, including a
wholly-owned subsidiary in New York City
through which it operates an international
banking business. See, e.g., Aff. of John
Fawcett in Support of Ashton Plaintiffs’
Opp. to NCB’s Motion to Dismiss (hereinafter
‘‘Fawcett Aff.’’) ¶ 3, Exs. 2 & 3. NCB
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
819
has been a party to lawsuits in the Southern
District of New York, both as a plaintiff
and defendant. Fawcett Aff. ¶ 7. The
Muslim World League Journal, a monthly
publication distributed in American mosques,
ran solicitations from 1998 to 2001
for the Islamic Solidarity Fund & Waqf for
the Organization of the Islamic Conference
and the Khair Funds of the Muslim World
League that provided NCB account numbers
to which donors could contribute directly.
Id. ¶ 8, Ex. 5. Plaintiffs request
jurisdictional discovery to explore further
contacts.
NCB argues that none of Plaintiffs’ submissions
satisfy the constitutionally required
showing of minimum contacts.
NCB closed its New York City branch
office in 1992. Decl. of Jorge Juco (‘‘Juco
Decl.’’) ¶ 5, at Berger Aff. in Support of
NCB’s Motion to Dismiss Ashton and Burnett,
Ex. 5. NCB’s second-tier subsidiary,
SNCB Securities Inc., dissolved in February
2001. Id. (citing Ex. A of Juco Decl.,
the certified copy of the Certificate of Dissolution);
see also Schenker v. Assicurazioni
Generali, S.P.A., No. 98 Civ.
9186(MBM), 2002 WL 1560788, at * 4
(S.D.N.Y. July 15, 2002) (finding no personal
jurisdiction over parent corporation
where New York subsidiary was sold two
months prior to commencement of action).
NCB submits its involvement in lawsuits is
equally unavailing because both were terminated
prior to the filing of this action.
See docket Logan Feed v. Nat’l Commercial
Bank, No. 92 Civ. (S.D.N.Y.) (NCB
terminated July 24, 1995); docket Nat’l
Commercial Bank v. Morgan Stanley Asset
Mgmt., Inc., No. 94 Civ. 3167
(S.D.N.Y.) (closed Feb. 17, 1998). It contends
that its consent to personal jurisdiction
in one case does not open the door to
personal jurisdiction in future cases. See
Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 50 n. 5 (2d Cir.1991); Andros
Compania Maritima, S.A. v. Intertanker
Ltd., 714 F.Supp. 669, 675 (S.D.N.Y.1989)
(holding lawsuits in the forum do not establish
general personal jurisdiction).
NCB argues that there is no indication it
placed the advertisements in The Muslim
World League Journal, or that any donations
were deposited into NCB accounts.
In arguing its absence of contacts with
the United States, NCB reiterates that it
is not domiciled, organized, or maintaining
an office in New York. Juco Decl. ¶ 3. It is
not registered or licensed to do business in
the United States and has no property in
the United States. Id. ¶ 8. Shares of NCB
stock are not sold in the United States,
there are no NCB employees or telephone
numbers in the United States, and the
company does not advertise or solicit business
in the United States. Id. ¶ 11. Its
website is accessible from United States,
but only NCB account holders may access
the inter-active services. Id. The Saudi
Arabian Monetary Agency requires that
NCB’s account holders be Saudi citizens or
residents, Saudi government entities, or
business or charity entities with lawful status
in Saudi Arabia. Juco Decl. ¶ 10.
NCB claims the rare contacts it does
have with the United States do not satisfy
the requirements of due process. Although
it maintains correspondent banking
relationships with U.S. commercial banks,
Juco Decl. ¶ 12, NCB argues such relationships
are insufficient to establish personal
jurisdiction over NCB. Semi Conductor
Materials, Inc. v. Citibank Int’l PLC, 969
F.Supp. 243, 244 (S.D.N.Y.1997) (holding
foreign bank’s correspondent banking relationship
with New York bank is not sufficient
for personal jurisdiction); Casio
Computer Co. v. Sayo, No. 98 Civ.
3772(WK), 2000 WL 1877516, at *26
(S.D.N.Y. Oct. 13, 2000) (holding defendant
bank’s wire transfers to U.S. bank accounts
does not create minimum contacts);
Leema Enters., Inc. v. Willi, 575 F.Supp.
820 349 FEDERAL SUPPLEMENT, 2d SERIES
1533, 1537 (S.D.N.Y.1983) (holding correspondent
banking relationships insufficient
to create general personal jurisdiction).
NCB offers its customers the opportunity
to open accounts directly with United
States-based securities broker-dealers, but