NCB does not act as a broker-dealer for
securities sold in the United States and is
not so licensed. Juco Decl. ¶ 14; Bersch v.
Drexel Firestone, Inc., 519 F.2d 974, 998
(2d Cir.1975) (finding Canadian securities
broker not ‘‘doing business’’ in New York
when it arranges for its Canadian customers
to buy and sell U.S. securities through
U.S. broker). In 2002, less than 2% of the
securities NCB traded for its own account
were issued by U.S. entities. Juco Decl.
¶ 15; Schenker, 2002 WL 1560788, at *3–5
(finding that a single bank account in the
United States, constituting small fraction
of defendant’s total assets, is insufficient to
form the basis for personal jurisdiction).
[65] Taken individually, NCB’s contacts
with the United States would not
satisfy due process requirements. However,
when they are examined as a whole—
the presence of a branch office until 1992,
a subsidiary until 2001, taking advantage
of the privilege of its presence in New
York by instigating a lawsuit in this forum,
advertisements in U.S. publications—the
Court finds that they may, with the help of
limited jurisdictional discovery, comport
with due process. NCB’s motion to dismiss
is therefore denied without prejudice.
7. Abdulrahman bin Mahfouz
Abdulrahman bin Mahfouz is a Defendant
in the Burnett action. He is the son
of Defendant Khalid bin Mahfouz and a
director of the Defendant charity Blessed
Relief Society, also known as Muwaffaq.
Burnett Complaint ¶¶ 331; 445. Blessed
37. The Burnett Plaintiffs voluntarily dismissed
their claims against Nimir LLC. See Mem. in
Relief is a branch of the Human Concern
International Society, which Osama bin
Laden identified as a supporter in 1995.
Id. ¶ 333. He is a shareholder and the
CEO of former Defendant Nimir, LLC,
also known as Nimir Petroleum Ltd. Id.
¶ 443. 37 Finally, Plaintiffs claim that Mr.
bin Mahfouz was a member of the board
and Vice Chairman of the Executive Management
Committee of Defendant National
Commercial Bank. Id. ¶ 445.
Plaintiffs base their personal jurisdiction
arguments on their claim that Mr. bin
Mahfouz was a participant in the conspiracy
of terror that purposefully directed its
conduct at the United States and included
the September 11 hijackers. Plaintiffs
also claim that he has business interests in
the United States. Specifically he is a
shareholder in U.S.-based companies, and
his company, Al Murjan, allegedly has
dealings with the American phone company
Hughes Technologies, Inc.
Mr. bin Mahfouz disputes the manner in
which he was served. His name appeared
in Plaintiffs’ notice by publication in The
International Herald, which only has circulation
of 199 in the entire Kingdom of
Saudi Arabia, and Al Quds al-Arabia,
which is banned in the Kingdom. He submits
that he has no personal contacts with
the United States and there is no basis for
exercising personal jurisdiction over him.
[66] The Burnett complaint does not
contain any specific actions by Mr. bin
Mahfouz from which the Court could infer
that he purposefully directed his activities
at the United States. His affiliations with
entities that are alleged to have U.S. contacts
will not sustain jurisdiction. Family
Internet, 1999 WL 796177, at *4. Finally,
being a shareholder in a United States
Supp. of Motion to Dismiss Ex. 1.
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821
company is not sufficient to establish general
personal jurisdiction over Mr. bin
Mahfouz. Bersch, 519 F.2d at 998; see
also Schenker, 2002 WL 1560788, at *3–5
(finding single bank account in United
States constituting small fraction of defendant’s
total assets is not a sufficient basis
for personal jurisdiction). Mr. bin Mahfouz’s
motion to dismiss the Burnett complaint
as against him for lack of personal
jurisdiction is accordingly granted.
8. Saudi Binladin Group, Tariq Binladin,
Omar Binladin, and Bakr
Binladin
The Ashton and Burnett complaints
name the Saudi Binladin Group (‘‘SBG’’) as
a Defendant. The Burnett complaint also
names Tariq Binladin, Omar Binladin, and
Bakr Binladin, Osama’s half-brothers, as
Defendants. In both actions, these Defendants
move to dismiss the complaint or for
a more definite statement.
Based in Jeddah, Saudi Arabia, SBG is
the successor to a construction company
founded by Mohammed Binladin, the father
of Osama bin Laden. Ashton Complaint
¶ 543; Burnett Complaint ¶ 311. It
is now one of the largest engineering and
construction companies in the Arab world
and is managed by Osama bin Laden’s
half brothers, including defendants Bakr
Binladin, who runs SBG, and Tariq Binladin,
who holds a position on the board.
Ashton Complaint ¶ 545; Burnett Complaint
¶ 313. Tariq Binladin allegedly had
a prominent role at IIRO in 1990. Ashton
Complaint ¶ 557; Burnett Complaint
¶ 326. Osama bin Laden purportedly used
SBG to build an infrastructure in Afghanistan.
Ashton Complaint ¶¶ 546, 547; Burnett
Complaint ¶¶ 314–316. After the Soviets
withdrew from Afghanistan in 1989,
Osama bin Laden returned to work with
SBG in Jeddah. Ashton Complaint ¶ 548;
Burnett Complaint ¶ 317. SBG allegedly
continued to support Osama bin Laden
after he relocated to Sudan in 1991. Ashton
Complaint ¶ 548; Burnett Complaint
¶ 317. For example, SBG, through two
subsidiaries allegedly supported Osama
bin Laden’s participation in the construction
of the Tahaddi road and Port Sudan
Airport. Ashton Complaint ¶¶ 550; 552,
553; Burnett Complaint ¶¶ 319–322.
Plaintiffs claim Osama bin Laden’s name
is still listed on SBG corporate records.
Ashton Complaint ¶ 558; Burnett Complaint
¶ 329. Defendants dispute this and
argue he was formally removed from
SBG’s ownership documents in June 1993.
SBG’s Mem. in Supp. of Motion to Dismiss
Ashton Complaint at 2. Plaintiffs also
claim that Osama bin Laden never ‘‘broke’’
with his family after he was exiled to
Sudan and that SBG continued to provide
him financial assistance and engineering
support. Ashton Complaint ¶ 549; Burnett
Complaint ¶ 318. Defendants also
dispute this statement and argue that
Bakr formally ostracized Osama from the
family and the company in a February
1994 statement. SBG’s Mem. in Supp. of
Motion to Dismiss Ashton Complaint at 2.
SBG ‘‘sheltered and directly supported
operatives of the al Qaeda terrorist organization.’’
Ashton Complaint ¶ 555; Burnett
Complaint ¶ 324. Mohammad Jamal Khalifa,
allegedly a key al Qaeda operative, was
taken in by a branch of SBG, the Mohammed
Bin Laden Organization. Ashton
Complaint ¶ 555; Burnett Complaint ¶ 324.
The Mohammed Bin Laden Organization is
allegedly a wholly-owned subsidiary of
SBG and its board members include defendants
Bakr, Tariq, and Omar Binladin.
Ashton Complaint ¶ 556; Burnett Complaint
¶ 325. Khalifa listed the Mohammed
Bin Laden Organization address
on his visa application. Ashton Complaint
¶ 555; Burnett Complaint ¶ 324. Additionally,
U.S.-designated terrorist Yassin Abdullah
al-Kadi was allegedly introduced to
822 349 FEDERAL SUPPLEMENT, 2d SERIES
the Global Diamond Resource’s Chairman
by an executive of SBG. Ashton Complaint
¶ 459; Burnett Complaint ¶ 328.
Plaintiffs claim that SBG had an address
in Rockville, Maryland until very recently.
Ashton Complaint ¶ 545; Burnett Complaint
¶ 313. SBG claims the Rockville
address was the headquarters of a separately
incorporated company, SBG USA,
which was formally dissolved in December
1999. See SBG Memorandum in Support
of Motion to Dismiss Ashton Complaint at
7 & Ex. 2 (articles of dissolution); see also
Klinghoffer v. S.N.C. Achille Lauro, 937
F.2d 44, 52 (2d Cir.1991) (personal jurisdiction
contacts determined at time complaint
is filed); but 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 year of lawsuit
and finding six years was reasonable).
[67] The Burnett complaint does not
contain any factual allegations against Tariq,
Omar, or Bakr Binladin from which the
Court could infer that they purposefully
directed their activities at the United
States, that they were members of a conspiracy
pursuant to the New York longarm
statute, or that they have any general
business contacts with the United States.
Accordingly, the Burnett complaint against
these three individuals is dismissed.
[68] Rather than permitting a 12(e)
statement, the Court finds jurisdictional
discovery is warranted to determine if
SBG purposefully directed its activities at
the United States. See Asip v. Nielsen
Media Research, No. 03 Civ. 5866(SAS),
2004 WL 315269, at *2 (S.D.N.Y. Feb. 18,
2004) (noting the purpose of Rule 12(e) is
to ‘‘strike at unintelligibility rather than
want of detail and TTT allegations that are
unclear due to lack of specificity are more
appropriately clarified by discovery’’).
Specifically, although the complaints are
not specific about when, at the very least,
SBG provided construction support to Osama
bin Laden. Ashton Complaint ¶¶ 550,
552–53; Burnett Complaint ¶¶ 319–22. A
branch of SBG allegedly look in an al
Qaeda operative who listed the SBG
branch address on his visa application.
Ashton Complaint ¶ 555; Burnett Complaint
¶ 324. It is alleged to have ties to
U.S.-designated terrorist Yassin Abdullah
Al–Kadi. Ashton Complaint ¶ 459; Burnett
Complaint ¶ 328. At this stage, the
Court must accept as true Plaintiffs’ contentions
that SBG still contains Osama bin
Laden’s name in its corporate documents.
Ashton Complaint ¶ 558; Burnett Complaint
¶ 329. Additionally, although it
would not satisfy the due process requisites
on its own, SBG’s presence in Maryland
three years before the complaints
were filed, also warrants some discovery.
Accordingly, SBG’s motion to dismiss the
Ashton and Burnett complaints are denied
without prejudice.
9. SAAR Network
The Federal Plaintiffs claim the SAAR
Network is a network of ‘‘interrelated ostensible
charities’’ that was established in
the 1980s ‘‘to generate and surreptitiously
transfer funds to terrorist organizations,
including al-Qaeda.’’ Federal Complaint
¶ 222. Several organizations within the
SAAR Network, including SAAR Foundation,
SAAR International, Safa Group,
Mar–Jac Poultry, Mar–Jac Holdings, Inc.,
Safa Trust, Inc. and Aradi, Inc., were established,
funded or closely affiliated with
Defendant Suleiman Abdul Aziz al Rajhi.
Id. at ¶ 223. By September 11, 2001, there
were allegedly over one hundred entities in
this network, ‘‘including the U.S. branches
of MWL, IIRO and WAMY, [and the
SAAR Network Defendants moving to dismiss
here,] African Muslim Agency, Grove
Corporate, Inc., Heritage Education Trust,
International Institute of Islamic Thought,
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823
Mar–Jac Investment, Inc., Mena Corporation,
Reston Investment, Inc., Sterling
Charitable Gift Fund, Sterling Management
Group, Inc., Success Foundation, and
York Foundation.’’ Id. ¶ 224. Allegedly,
many of the entities are related by common
management, few of them maintained
a physical presence at their purported
place of business, and they all ‘‘have long
acted as fully integrated components of al
Qaeda’s logistical and financial support infrastructure.’’
Id. ¶¶ 225, 226.
Plaintiffs argue the Court has personal
jurisdiction over the SAAR Network because
it participated in the conspiracy that
resulted in catastrophic effects in this district.
After an ongoing investigation in
the Eastern District of Virginia, federal
authorities raided the offices of several of
these Defendants in Herndon, Virginia in
March 2002. Id. ¶ 227. The investigation
has allegedly revealed that SAAR Network
funds have been transferred to designated
terrorists and al Qaeda operatives
Youssef Nada and Ahmed Idris Nasreddin.
Id. ¶ 228; see Exec. Order No. 13224
(designating individuals as terrorists).
Additionally, Plaintiffs claim that the investigation
has revealed that SAAR Network
entities have engaged in transactions
with Bait Ul-mal, Inc. (BMI), which has
transferred funds to terrorist organizations
including al Qaeda, and materially
supported the 1998 embassy bombings in
Africa. Federal Complaint ¶¶ 229–230.
[69] At this stage, the Court must accept
as true Plaintiffs’ allegations concerning
the relationships of the SAAR
Network. Id. ¶¶ 222, 226. Defendants
correctly argue, however, that Defendants
have provided scant basis for linking
these entities under the SAAR Network
title. Certain of these groups may be
subject to personal jurisdiction in light of
Plaintiffs’ allegation that they purposefully
directing its activities at the United
States by transferring money to designated
terrorists Youssef Nada and Ahmed
Idris Nasreddin, particularly if they intended
the money to support terrorism.
Id. ¶ 228. Additionally, general jurisdiction
could be appropriate for the SAAR
Network entities having offices in Virginia.
Id. ¶ 227. Accordingly, the SAAR
Network’s motion to dismiss is denied
without prejudice. The parties are to engage
in jurisdictional discovery to determine
which of the Network’s entities have
a presence in Virginia and which entities
transferred money to Nada and Nasreddin.
10. Adel A.J. Batterjee
The Burnett Plaintiffs claim that Defendant
Adel A.J. Batterjee is an associate of
Osama bin Laden. Burnett Complaint
¶ 181. On December 21, 2004, the U.S.
Department of Treasury designated Mr.
Batterjee as a Specially Designated Global
Terrorist. See Dec. 23, 2004 Bierstein letter
to Court; Exec. Order No. 13224. Mr.
Batterjee is the chairman of Al Shamal
Islamic Bank, ‘‘an instrumental bank in
Osama bin Laden’s financial support network.’’
Burnett Complaint ¶ 365. Mr.
Batterjee is also chairman of al-Bir Saudi
Organization, whose United States branch,
Defendant BIF, is allegedly a ‘‘front for al
Qaeda sponsorship.’’ Burnett Complaint
¶¶ 75, 196, 199. BIF is also a designated
terrorist organization. See Exec. Order
No. 13224. The Saudi government closed
Al–Bir in 1993 ‘‘at the same time it was
closing other organizations for ties to terrorism.’’
Burnett Complaint ¶ 183. Mr.
Batterjee then allegedly moved the charity’s
headquarters to Chicago in the name
of BIF. Id. ¶ 183. Mr. Batterjee is listed
as one of BIF’s three founders in its articles
of incorporation filed in Illinois. Id.
¶ 183. Through an alias, Mr. Batterjee
allegedly sent money to BIF’s branches.
824 349 FEDERAL SUPPLEMENT, 2d SERIES
Id. ¶ 184; see also Decl. of Jodi Westbrook
Flowers in Opp. to Batterjee Motion to
Dismiss (‘‘Flowers Decl.’’) Att. 5, p. 7 (BIF
record showing $48,464 contribution by
Abdel Abdul Jalil Batterjee). Mr. Batterjee
allegedly transferred control of BIF to
Defendant Enaam M. Arnaout, on September
15, 1997. 38 Burnett Complaint ¶ 183.
In October 2001, Arnaout allegedly told
Batterjee he was worried about being under
scrutiny of the U.S. government and in
January 2002, Batterjee requested that
Aranout relocate his family to Saudi Arabia.
Id. ¶¶ 217–218. Plaintiffs also claim
that Mr. Batterjee’s name is on a BIF list
of wealthy Saudi Arabian sponsors of al
Qaeda and Osama bin Laden. Id. ¶ 219.
Plaintiffs also claim that Defendant
charity WAMY and BIF are closely connected
and that Mr. Batterjee was the
Secretary General of WAMY when he
founded BIF in the United States. Id.
¶ 229; see also Flowers Decl. Att. 4, p. 3
(December 5, 1992 New York Times article
quoting Adel A. Batterjee as the chairman
of WAMY). In his capacity as Secretary
General of WAMY, Mr. Batterjee allegedly
commissioned a biography of Osama bin
Laden and the origins of al Qaeda, which
was jointly published by WAMY and BIF
in 1991. Burnett Complaint ¶ 230.
With respect to his contacts with the
United States, Plaintiffs claim that the
documents filed in 1992 in conjunction with
the establishment of BIF in Chicago state
that Mr. Batterjee is a founder of BIF and
that BIF’s founders travel to the United
States on a regular basis. See Flowers
38. Mr. Arnaout was ‘‘criminally indicted for
his role in the September 11, 2001 attacks.’’
Burnett Complaint ¶ 199. But in its ‘‘written
plea agreement, the government agreed to
dismiss sensational and highly publicized
charges of providing material support to terrorists
and terrorist organizations.’’ United
States v. Arnaout, 282 F.Supp.2d 838, 843
(N.D.Ill.2003). The Burnett Plaintiffs allege
Decl. Att. 2, pp. 2–3. In 1993 BIF filed an
application to conduct business in Florida
and listed Mr. Batterjee as a director with
an address in Florida. See id. at Att. 3, p.
4. BIF’s authorization to do business in
Florida was revoked on August 26, 1994.
Id. at p. 1.
Mr. Batterjee disputes the claims
against him in a declaration filed in conjunction
with his motion to dismiss. Batterjee
Decl. ¶ 8. He states he was born in
Saudi Arabia, attended college in the United
States in the 1960s, and returned to
Saudi Arabia. Id. ¶¶ 3, 5. He claims he
was last in the United States in June 2000
for personal reasons. Id. ¶ 5. He denies
owning any real property, bank accounts,
or investments in the United States. Id.
¶ 6. With respect to the allegations contained
in the complaint, Mr. Batterjee
claims BIF was never a branch of Al Bir
or vice versa. Id. ¶ 9. He claims he never
sent money to BIF in all of its history. Id.
He states he transferred away all control
of BIF in 1993. Id. He claims he never
served as an executive of WAMY, never
wrote a biography of Osama bin Laden,
and denies having any knowledge of Osama
bin Laden’s or al Qaeda’s activities
other than what is widely published in the
press. Id. ¶¶ 9, 10.
Mr. Batterjee also disputes the manner
in which he was served. Plaintiffs reasoned
that Al–Quds Al–Arabia had published
Osama bin Laden’s fatwas in the
past and could, therefore, reach his supporters
regardless of their location. Further,
The International Herald Tribune is
Mr. Arnaout and Osama bin Laden have ties.
For example, law enforcement officials in
Bosnia–Herzegovina raided BIF’s offices in
March 2002 and allegedly recovered documents
establishing direct communications between
Mr. Arnaout and Osama bin Laden in
the late 1980s and early 1990s. Burnett Complaint
¶¶ 188, 196, 199.
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825
available to the world community. Additionally,
Plaintiffs submit that these cases
have been widely reported in the Arabic
media and the complaints have been available
on numerous websites for over two
years. In light of these considerations and
Judge Robertson’s March 23, 2003 order
approving service by publication for Defendants
including Mr. Batterjee, the
Court denies Mr. Batterjee’s motion to
quash service.
[70] The Court finds the Burnett
Plaintiffs made a prima facie showing of
personal jurisdiction over Mr. Batterjee.
While perhaps not dispositive on its own,
Mr. Batterjee’s designation as a terrorist
lends substantial weight to Plaintiffs’
claims that he purposefully directed his
activities at the United States and that the
exercise of personal jurisdiction over him
comports with due process. See Biton,
310 F.Supp.2d at 178. Mr. Batterjee purportedly
commissioned a book about al
Qaeda and Osama bin Laden. He is the
chairman of Al Shamal Islamic Bank, a
bank with admitted and substantial ties to
Osama bin Laden. Burnett Complaint
¶¶ 70, 79. Additionally, he is involved in
the United States operations of designated
terrorist, BIF. In the ten years leading up
to the commencement of this action, Mr.
Batterjee has had contacts with the United
States that could be related to the terrorist
attacks inasmuch as BIF participated in
those attacks. Specifically, Mr. Batterjee
traveled to Chicago for BIF and had an
address in Florida for BIF. Accordingly,
Mr. Batterjee’s motion to dismiss the Burnett
complaint for lack of personal jurisdiction
is denied.
III. Failure to State a Claim
In considering Defendants’ motions to
dismiss for failure to state a claim under
Rule 12(b)(6), the Court must ‘‘accept all of
Plaintiffs’ factual allegations in the complaint
as true and draw inferences from
those allegations in the light most favorable
to the Plaintiffs.’’ Desiderio v. Nat’l
Ass’n of Sec. Dealers, Inc., 191 F.3d 198,
202 (2d Cir.1999). Dismissal is not appropriate
unless it appears beyond doubt,
‘‘even when the complaint is liberally construed,
that the plaintiff can prove no set
of facts which would entitle him to relief.’’
Id.; Conley v. Gibson, 355 U.S. 41, 45–46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Federal
Rule of Civil Procedure 8(a) requires that
a complaint contain ‘‘a short and plain
statement of the claim showing that the
pleader is entitled to relief.’’ Fed.R.Civ.P.
8(a)(2). The Supreme Court reinforced
these liberal pleading standards in Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512,
122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (observing
the ‘‘short and plain statement’’
required by Rule 8 ‘‘must simply ‘give the
defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it
rests’ ’’) (quoting Conley, 355 U.S. at 47, 78
S.Ct. 99). When presented with a 12(b)(6)
motion, the district court may not consider
matters outside of the pleadings without
converting the motion into a motion for
summary judgment. Courtenay Communications
Corp. v. Hall, 334 F.3d 210, 213
(2d Cir.2003); Friedl v. City of New York,
210 F.3d 79, 83–84 (2d Cir.2000).
A. Elements of Claims
[71] Plaintiffs claim that each Defendant
provided material support to the al
Qaeda terrorists who perpetrated the attacks
on September 11, 2001. Under the
ATA, material support includes money, financial
services, lodging, training, safehouses,
and false documentation or identification.
18 U.S.C. §§ 2339A(b), 2339B(g).
Assuming such support is alleged, Plaintiffs
will have to present a sufficient causal
connection between that support and the
injuries suffered by Plaintiffs. See Bur-
826 349 FEDERAL SUPPLEMENT, 2d SERIES
nett I, 274 F.Supp.2d at 104. Proximate
cause will support this connection. See
First Nationwide Bank v. Gelt Funding
Corp., 27 F.3d 763, 769 (2d Cir.1994)
(‘‘Central to the notion of proximate cause
is the idea that a person is not liable to all
those who may have been injured by his
conduct, but only to those with respect to
whom his acts were a substantial factor in
the sequence of responsible causation, and
whose injury was reasonably foreseeable
or anticipated as a natural consequence.’’).
In light of al Qaeda’s public acknowledgments
of its war against the United States,
the September 11 attacks may be the natural
and probable consequence of knowingly
and intentionally providing material support
to al Qaeda. Burnett I, 274
F.Supp.2d at 104.
[72] Plaintiffs rely on theories of concerted
action liability—conspiracy and aiding
and abetting—in support of this causal
link. ‘‘Concerted action liability under
New York law is based on the principle
that ‘[a]ll those who, in pursuance of a
common plan or design to commit a tortious
act, actively take part in it, or further
it by cooperation or request, or who lend
aid or encouragement to the wrongdoer
TTT are equally liable with him.’ ’’ Pittman,
149 F.3d at 122 (quoting Bichler v.
Eli Lilly & Co., 55 N.Y.2d 571, 580, 450
N.Y.S.2d 776, 436 N.E.2d 182 (1982)). To
be liable under either conspiracy or aiding
and abetting, however, the defendant
‘‘must know the wrongful nature of the
primary actor’s conduct,’’ id. at 123, and
the conduct must be tied to a substantive
cause of action, Chrysler Capital Corp.,
778 F.Supp. at 1267. In this regard, Plaintiffs
rely on the ATCA, RICO, the TVPA,
the ATA, and various state laws, including
wrongful death, survival, intentional infliction
of emotional distress, trespass, assault
and battery, negligence, and negligent infliction
of emotional distress.
1. ATCA
[73] The Alien Tort Claims Act provides
that ‘‘[t]he district courts shall have
original jurisdiction of any civil action by
an alien for a tort only, committed in violation
of the law of nations or a treaty of the
United States.’’ 28 U.S.C. § 1350. ‘‘This
statute confers subject matter jurisdiction
when the following three conditions are
satisfied: (1) an alien sues (2) for a tort (3)
committed in violation of the law of nations
(i.e., international law).’’ Kadic v. Karadzic,
70 F.3d 232, 238 (2d Cir.1995); see
also Flores v. Southern Peru Corp., 343
F.3d 140, 143 n. 2 (2d Cir.2003). Certain
Plaintiffs in these actions are aliens and
the complaints all allege common law torts.
The Court finds that ‘‘aircraft hijacking is
generally recognized as a violation of international
law.’’ Burnett I, 274 F.Supp.2d at
100 (citing Kadic, 70 F.3d at 240; Bigio v.
Coca–Cola Co., 239 F.3d 440, 447–49 (2d
Cir.2000)). Further, ‘‘courts, including the
Second Circuit, have almost unanimously
permitted actions premised on a theory of
aiding and abetting and conspiracy.’’
Presbyterian Church of Sudan v. Talisman
Energy, Inc., 244 F.Supp.2d 289, 311
(S.D.N.Y.2003). Accordingly, the ATCA
may provide a basis for a concerted action
claim of material support by alien-Plaintiffs
here. See Burnett I, 274 F.Supp.2d at
100.
2. RICO
‘‘To state a claim under civil RICO, a
plaintiff must plead seven elements: (1)
that the defendant (2) through the commission
of two or more acts (3) constituting a
‘pattern’ (4) of ‘racketeering activity’ (5)
directly or indirectly invests in, maintains
an interest in, or participates in (6) an
‘enterprise’ (7) the activities of which affect
interstate or foreign commerce.’’ Berk v.
Tradewell, Inc., Nos. 01 Civ. 9035, 01 Civ.
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827
10068(MBM), 2003 WL 21664679, at *11
(S.D.N.Y. July 16, 2003) (quoting Moss v.
Morgan Stanley, Inc., 719 F.2d 5, 17 (2d
Cir.1983)); see also 18 U.S.C. § 1962.
‘‘Civil RICO is an unusually potent weapon
TTT ‘courts should strive to flush out frivolous
RICO allegations at an early stage of
the litigation.’ ’’ Katzman v. Victoria’s Secret,
167 F.R.D. 649, 655 (S.D.N.Y.1996).
[74] The Federal complaint asserts a
RICO claim under § 1962(a), which states
in part: ‘‘It shall be unlawful for any person
who has received any income derived,
directly or indirectly, from a pattern of
racketeering activity or through collection
of an unlawful debt in which such person
has participated a principal within the
meaning of 18 U.S.C. § 2, to use or invest,
directly or indirectly, any part of such
income, or the proceeds of such income, in
acquisition of any interest in, or the establishment
or operation of, any enterprise
which is engaged in, or the activities of
which affect, interstate or foreign commerce.’’
18 U.S.C. § 1962(a). ‘‘Because
the conduct constituting a violation of
§ 1962(a) is investment of racketeering income,
a plaintiff must allege injury from
the defendant’s investment of the racketeering
income to recover under
§ 1962(a).’’ Ouaknine v. MacFarlane, 897
F.2d 75, 83 (2d Cir.1990). The Federal
Plaintiffs have not done that here and
seem to abandon the § 1962(a) claim in
their RICO statements. Accordingly, the
Federal Plaintiffs have not stated a claim
under 18 U.S.C. § 1962(a).
The Federal Plaintiffs’ RICO statements
against Arab Bank and the SAAR Network
assert claims under § 1962(c) and
§ 1962(d). See 03 MDL 1570 Docket
## 307, 309. Subsection (c) states, in
part: ‘‘It shall be unlawful for any person
employed by or associated with any enterprise
engaged in, or the activities of which
affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs
through a pattern of racketeering
activity.’’ 18 U.S.C. § 1962(c). ‘‘The four
elements of Section 1962(c) are ‘(1) conduct
(2) of an enterprise (3) through a pattern
(4) of racketeering activity.’ ’’ U.S. Fire
Ins. Co. v. United Limousine Serv., Inc.,
303 F.Supp.2d 432, 451 (S.D.N.Y.2004).
‘‘The elements of section 1962(c) must be
established as to each individual defendant.’’
Id. Paragraph (d) states that it
‘‘shall be unlawful for any person to conspire
to violate any provision of’’ § 1962(a)-
(c). 18 U.S.C. § 1962(d). ‘‘The Second
Circuit has held in the context of a motion
to dismiss that to state a claim under [§ ]
1962(d), the ‘complaint must allege some
factual basis for a finding of a conscious
agreement among the defendants.’ ’’ Am.
Arbitration Ass’n, Inc. v. DeFonseca, No.
93 Civ. 2424(CSH), 1996 WL 363128, at *7
(S.D.N.Y. June 28, 1996) (quoting Hecht v.
Commerce Clearing House, 897 F.2d 21,
26 n. 4 (2d Cir.1990)); see also Schmidt v.
Fleet Bank, 16 F.Supp.2d 340, 354
(S.D.N.Y.1998) (‘‘Bare and conclusory allegations
are insufficient to withstand a motion
to dismiss and a plaintiff must plead
facts sufficient to show that each defendant
knowingly agreed to participate in
the [RICO] conspiracy.’’).
[75, 76] Assuming for now that the
Plaintiffs have pleaded an enterprise,
‘‘[u]nder Reves v. Ernst & Young, 507 U.S.
170, 179, 113 S.Ct. 1163, 122 L.Ed.2d 525
(1993), an alleged RICO defendant must
have had ‘some part in directing’ the ‘operation
or management’ of the enterprise
itself to be liable.’’ Dubai Islamic Bank v.
Citibank, N.A., 256 F.Supp.2d 158, 164
(S.D.N.Y.2003). The complaints allege the
moving Defendants may have assisted al
Qaeda, but they do not allege ‘‘anything
approaching active ‘management or operation.’
’’ Id. Accordingly, the Court finds
828 349 FEDERAL SUPPLEMENT, 2d SERIES
Plaintiffs have failed to state a RICO claim
against the moving Defendants. See id.;
Redtail Leasing, Inc. v. Bellezza, 95 Civ.
5191(JFK), 1997 WL 603496, at *5
(S.D.N.Y.1997) (‘‘A defendant does not ‘direct’
an enterprise’s affairs under
§ 1962(c) merely by engaging in wrongful
conduct that assists the enterprise.’’);
Dep’t of Econ. Dev. v. Arthur Andersen &
Co., 924 F.Supp. 449, 466–67 (S.D.N.Y.
1996) (providing services to racketeering
enterprise is not directing the enterprise);
LaSalle Nat’l Bank v. Duff & Phelps Credit
Rating Co., 951 F.Supp. 1071, 1090
(S.D.N.Y.1996) (same). Plaintiffs’ RICO
claim under § 1962(d) fails for the same
reason. Plaintiffs have not alleged that
the moving Defendants were central figures
in the underlying schemes or for conspiracy
liability under § 1962(d). The
RICO claims against the moving Defendants
are dismissed.
3. TVPA
[77, 78] ‘‘The TVPA establishes a cause
of action in federal court against an individual
who, under actual or apparent authority,
or color of law, of any foreign
nation subjects an individual to torture or
extrajudicial killing.’’ Arndt v. UBS AG,
342 F.Supp.2d 132, 141 (E.D.N.Y.2004)
(citing Flores, 343 F.3d at 153); 28 U.S.C.
§ 1350 note. Only individuals maybe sued
under the TVPA. Arndt, 342 F.Supp.2d at
141 (citing Friedman v. Bayer Corp., No.
99 Civ. 3675, 1999 WL 33457825, at *2
(E.D.N.Y. Dec. 15, 1999)). Accordingly, to
the extent Plaintiffs have not already withdrawn
these claims, the TVPA claims are
dismissed against Al Rajhi Bank, Saudi
American Bank, Arab Bank, Al Baraka
Investment & Development Corp., NCB,
Saudi Binladin Group, and the SAAR Network.
Similarly, there have been no allegations
that Saleh Abdullah Kamel or Adel
Batterjee acted under color of law and,
therefore, the TVPA claims against these
individuals are dismissed as well.
4. ATA
[79, 80] The ATA provides a civil remedy
for ‘‘[a]ny national of the United
States injured in his or her person, property,
or business by reason of an act of
international terrorism, or his or her estate,
survivors, or heirs.’’ 18 U.S.C.
§ 2333(a). 39 To adequately plead the provision
of material support under this section,
a plaintiff would have to allege that
the defendant knew about the terrorists’
illegal activities, the defendant desired to
help those activities succeed, and the defendant
engaged in some act of helping
those activities. Boim II, 291 F.3d at
1023; see also Boim v. Quranic Literacy
Inst., 340 F.Supp.2d 885, 906–913 (N.D.Ill.
2004) (‘‘Boim III ’’) (granting summary
judgment against two entity defendants
where record evidence demonstrated the
charities’ concession that Hamas used terrorism
in pursuit of its goals, the organizations’
repeated desire to help Hamas by
39. The ATA defines international terrorism as:
activities that—(A) involve violent acts or
acts dangerous to human life that are a
violation of the criminal laws of the United
States or of any State, or that would be a
criminal violation if committed within the
jurisdiction of the United States or of any
State; (B) appear to be intended—to intimidate
or coerce a civilian population; (ii) to
influence the policy of a government by
intimidation or coercion; or (iii) to affect
the conduct of a government by assassination
or kidnapping; and (C) occur primarily
outside the territorial jurisdiction of the
United States, or transcend national boundaries
in terms of the means by which they
are accomplished, the persons they appear
intended to intimidate or coerce, or the
locale in which their perpetrators operate
or seek asylum.
18 U.S.C. § 2331(1). For now, the Court
assumes the attacks of September 11 were an
act of international terrorism.
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829
recruiting donations to the Holy Land
Foundation, a known supporter of Hamas,
distributing pro-Hamas literature, and featuring
pro-Hamas speakers at their meetings);
see also Burnett I, 274 F.Supp.2d at
107 (noting the complaint in Boim was
quite specific in its allegation of a causal
link). Under a conspiracy theory, the
Plaintiffs have to allege that the Defendants
were involved in an agreement to
accomplish an unlawful act and that the
attacks of September 11 were a reasonably
foreseeable consequence of that conspiracy.
See Boim III, 340 F.Supp.2d at 895
(framing analysis as what plaintiffs have to
prove to succeed on summary judgment).
Plaintiffs do not have to allege that Defendants
knew specifically about the September
11 attacks or that they committed any
specific act in furtherance of that attack.
Id.
5. Wrongful Death and Survival
[81] New York Estates, Powers and
Trusts Law governs Plaintiffs’ claims of
wrongful death and survival. ‘‘The personal
representative TTT of a decedent who
is survived by distributees may maintain
an action to recover damages for a wrongful
act, neglect or default which caused the
decedent’s death against a person who
would have been liable to the decedent by
reason of such wrongful conduct if death
had not ensued.’’ N.Y. Est. Powers &
Trusts § 5–4.1 (McKinney 2002); see also
N.Y. Est. Powers & Trusts § 11–3.2(b)
(McKinney 2002) (outlining survival claim:
‘‘No cause of action for injury to person or
property is lost because of the death of the
person in whose favor the cause of action
existed. For any injury an action may be
brought or continued by the personal representative
of the decedent.’’). Accordingly,
the Court finds that if Plaintiffs are
personal representatives and their allegations
sufficiently allege that Defendants
supported, aided and abetted, or conspired
with the September 11 terrorists, they will
have also stated claims for wrongful death
and survival.
6. Assault and Battery and Intentional
Infliction of Emotional Distress
[82] The Federal Plaintiffs bring
claims of assault and battery and intentional
infliction of emotional distress. The
Burnett and Ashton Plaintiffs also allege
claims of intentional infliction of emotional
distress. The statute of limitations for
assault and battery and intentional infliction
of emotional distress is one year.
Holmes v. Lorch, 329 F.Supp.2d 516, 523
(S.D.N.Y.2004); N.Y. C.P.L.R. 215(3)
(McKinney 2002). The Federal Plaintiffs
filed their complaint on September 10,
2003, nearly two years after September 11,
2001. Accordingly, their assault and battery
and intentional infliction of emotional
distress claims are dismissed against the
SAAR Network and Arab Bank.
[83, 84] ‘‘Under New York law, a claim
for intentional infliction of emotional distress
requires a showing of (l ) extreme
and outrageous conduct; (2) intent to
cause, or reckless disregard of a substantial
probability of causing, severe emotional
distress; (3) a causal connection between
the conduct and the injury; and (4)
severe emotional distress.’’ Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir.1999)
(citing Howell v. New York Post Co., 81
N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612
N.E.2d 699 (1993)). ‘‘ ‘Liability has been
found only where the conduct has been so
outrageous in character, and so extreme in
degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized
society.’ ’’ Id. (quoting Howell, 81 N.Y.2d
at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699).
Courts are to determine whether the al-
830 349 FEDERAL SUPPLEMENT, 2d SERIES
leged conduct is sufficiently extreme and
outrageous enough to permit recovery.
Stuto, at 827. The attacks on September
11, 2001 were undoubtedly extreme and
outrageous. The Court finds that if the
Ashton and Burnett Plaintiffs’s allegations
sufficiently allege that Defendants supported,
aided and abetted, or conspired
with the September 11 terrorists, they will
have also stated a claim for intentional
infliction of emotional distress. See Burnett
I, 274 F.Supp.2d at 107–08 (analyzing
claims under New York law).
7. Trespass
[85] The Federal Plaintiffs bring a
claim for trespass on the theory that Defendants
assisted and encouraged those
who intentionally entered the World Trade
Center property. New York courts describe
this cause of action as ‘‘the interference
with a person’s right to possession of
real property either by an unlawful act or
a lawful act performed in an unlawful manner.’’
N.Y. State Nat’l Org. for Women v.
Terry, 886 F.2d 1339, 1361 (2d Cir.1989)
(citing Ivancic v. Olmstead, 66 N.Y.2d 349,
352, 497 N.Y.S.2d 326, 488 N.E.2d 72
(1985)). To the extent that the Federal
Plaintiffs sufficiently plead that Defendants
acted in concert with the September
11 hijackers, they may proceed with this
claim. Wantanabe Realty Corp. v. City of
New York, 01 Civ. 10137(LAK), 2003 WL
22862646, at *4 (S.D.N.Y. Dec. 3., 2003)
(citing Pittman, 149 F.3d at 122–23).
8. Negligence
[86–88] In New York, a plaintiff may
establish negligent infliction of emotional
distress under the bystander or direct
duty theory. Baker v. Dorfman, 239 F.3d
415, 421 (2d Cir.2000). Under the bystander
theory, ‘‘a defendant’s conduct is
negligent as creating an unreasonable risk
of bodily harm to a plaintiff and such
conduct is a substantial factor in bringing
about injuries to the plaintiff in consequence
of shock or fright resulting from
his or her contemporaneous observation of
serious physical injury or death inflicted
by the defendant’s conduct on a member of
the plaintiff’s immediate family in his or
her presence.’’ Bovsun v. Sanperi, 61
N.Y.2d 219, 223–24, 473 N.Y.S.2d 357, 461
N.E.2d 843 (1984). Under the direct duty
theory, a plaintiff suffers emotional distress
caused by ‘‘defendant’s breach of a
duty which unreasonably endangered
[plaintiff’s] own physical safety.’’ Mortise
v. United States, 102 F.3d 693, 696 (2d
Cir.1996).
[89–92] To establish a claim for negligence
under New York law, ‘‘a plaintiff
must show that the defendant owed the
plaintiff a cognizable duty of care, that the
defendant breached that duty, and that the
plaintiff suffered damages as a proximate
cause of that breach.’’ King v. Crossland
Savings Bank, 111 F.3d 251, 259 (2d Cir.
1997). The most basic element of a negligence
claim is the existence of a duty owed
to plaintiffs by defendants. Palsgraf v.
Long Island R.R. Co., 248 N.Y. 339, 342,
162 N.E. 99 (1928); see also Burnett I, 274
F.Supp.2d at 108 (dismissing negligence
claims against Defendant Al Haramain Islamic
Foundation because complaint failed
to allege or identify any duty owed to
Plaintiffs). Banks do not owe non-customers
a duty to protect them from the intentional
torts of their customers. Renner v.
Chase Manhattan Bank, No. 98 Civ.
926(CSH), 1999 WL 47239, at *13
(S.D.N.Y. Feb. 3, 1999) (citing cases);
Burnett I, 274 F.Supp.2d at 109 (‘‘Plaintiffs
offer no support, and we have found none,
for the proposition that a bank is liable for
injuries done with money that passes
through its hands in the form of deposits,
withdrawals, check clearing services, or
any other routine banking service.’’). The
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831
complaints presently before the Court do
not allege or identify a duty owed to Plaintiffs
by moving Defendants. See Burnett
I, 274 F.Supp.2d at 108–09. Accordingly,
the negligence and negligent infliction of
emotional distress claims are dismissed for
failure to state a claim.
B. Analysis of Claims Against the
Moving Defendants
[93] While applying the liberal notice
pleading requirements of Rule 8, the Court
notes that in light of ‘‘the extreme nature
of the charge of terrorism, fairness requires
extra-careful scrutiny of Plaintiffs’
allegations as to any particular defendant,
to ensure that he-or it-does indeed have
fair notice of [the claims].’’ Id. at 103–04.
1. Al Rajhi Bank
[94] Al Rajhi Bank was founded in
1987 and now has a network of nearly 400
branch offices throughout Saudi Arabia
and seventeen worldwide subsidiaries.
Burnett Complaint ¶ 84. All the banking
Defendants are alleged to have ‘‘provided
essential support to the al Qaeda organization
and operations. The banking Defendants
in this lawsuit have acted as instruments
of terror, in raising, facilitating and
transferring money to terrorist organizations.’’
Burnett Complaint ¶ 46. Plaintiffs
claim that Al Rajhi Bank is ‘‘the primary
bank for a number of charities that serve
as al Qaeda front groups,’’ including Al
Haramain, MWL, WAMY, SJRC, and
IIRO. Burnett Complaint ¶ 85; Rule 12(e)
Statement ¶ 31. ‘‘Al Rajhi continues to
maintain Al Haramain’s accounts despite
Al Haramain’s designation on March 11,
2002 as terrorist organizations by both the
United States and Saudi Arabian authorities.’’
Rule 12(e) Statement ¶ 44. The
Burnett Plaintiffs claim Al Rajhi Bank
knew or had to know that its depositors,
Defendant charities WAMY, MWL, IIRC,
and SJRC were material supporters of
terrorism. Rule 12(e) Statement ¶¶ 44–60.
The Burnett Plaintiffs claim that Saudi
Arabia has ‘‘ineffective and/or rudimentary
bank supervisory, anti-money laundering
laws and anti-terrorist financing in place.’’
Rule 12(e) Statement ¶¶ 72–78. In 1999,
William Weschler of the National Security
Council and Richard Newcomb of the Office
of Foreign Assets Control traveled to
Saudi Arabia to warn Al Rajhi Bank and
its regulator, the Saudi Arabian Monetary
Agency (‘‘SAMA’’), ‘‘that their financial
systems were being manipulated or utilized
to fund terrorist organizations such
as Al Qaeda.’’ Id. ¶ 75. The United
States encouraged SAMA to adopt ‘‘know
your customer’’ rules. Id. ‘‘Despite these
warnings, Al Rajhi failed to adopt even the
most minimal standards, [which] resulted
in the use of Al Rajhi as an instrument of
terror and a material supporter, aider and
abettor of al Qaeda and international terrorist
activities.’’ Id. ¶¶ 76–77.
One of the hijackers on board American
Airlines Flight 11, Abdulaziz al-Omari,
held an account at Al Rajhi Bank. Burnett
Complaint ¶ 85; Rule 12(e) Statement ¶ 43.
Another hijacker, Mohammed Atta, made
a transfer to this account at some time.
Rule 12(e) Statement ¶ 43. Plaintiffs claim
al Qaeda financier Zouaydi asked Abdullah
bin Abdul Muhsen al Turki, a counselor to
the government of Saudi Arabia, to send
money through Al Rajhi. Burnett Complaint
¶¶ 388, 538.
The Burnett Plaintiffs also claim that Al
Rajhi Bank has relationships with Hamas
and other terrorists. Rule 12(e) Statement
¶¶ 61–69. Al Rajhi Bank chose Texas-based
Infocom to host its website. Id.
¶¶ 65, 66. Infocom has provided funding
to Hamas and is owned and operated by
Hamas leader and designated terrorist,
Mousa Marzook. Id. There have been
transfers made to Marzook and Infocom
832 349 FEDERAL SUPPLEMENT, 2d SERIES
from Al Rajhi accounts. Id. In ‘‘December
1999, Al Rajhi directly funded Tulkarm
Charity Committee, a known front for Hamas.’’
Id. ¶ 71.
Members of the Al Rajhi family, which
owns and controls Al Rajhi Bank, are alleged
to have ties to Osama bin Laden’s
personal secretary. Id. ¶ 79. The Al Rajhi
family is purportedly a major donor to
the SAAR Network, a Defendant here,
being investigated by federal authorities in
Virginia. Id. ¶¶ 80–84. Finally, Al Rajhi
family members are allegedly closely associated
with wealthy donors to Osama bin
Laden. Id. ¶ 85 (alleging ties with the
Golden Chain).
Judge Robertson found that the only
allegation in the Third Amended Burnett
Complaint that stated a claim upon which
relief could be granted was that Al Rajhi
Bank acted as an instrument ‘‘of terror, in
raising, facilitating and transferring money
to terrorist organizations.’’ Burnett I, 274
F.Supp.2d at 109 (quoting Burnett Complaint
¶ 46). Judge Robertson noted that
there was no support ‘‘for the proposition
that a bank is liable for injuries done with
money that passes through its hands in the
form of deposits, withdrawals, check clearing
services, or any other routine banking
service.’’ Id. In light of the liberal pleading
standards, however, Judge Robertson
denied Al Rajhi Bank’s motion to dismiss
and permitted it to request a more definitive
statement under Rule 12(e). Id. at
110. The Burnett Plaintiffs provided an
89–paragraph response on August 27,
2003. Thereafter, Al Rajhi Bank renewed
its motion to dismiss pursuant to Rule
12(b)(6).
40. Under Islamic banking laws, Hararm is
forbidden income that must be given away.
The disposal of Hararm cannot be considered
charitable giving. Rule 12(e) Statement ¶ 9.
In the 12(e) statement, the Burnett Plaintiffs
explain that al Qaeda takes advantage of the
under-regulated Islamic banking system to
Al Rajhi Bank argues that Plaintiffs offer
no factual allegations in support of
their conclusion that Al Rajhi Bank had to
know that the charities it supported
through Zakat and Hararm 40 payments
were really fronts for al Qaeda. Al Rajhi
Bank contends it had a legal and religious
duty to make its charitable donations and
any terrorist activity by the recipient charities
was unknown to Al Rajhi Bank. See
Rule 12(e) Statement ¶¶ 26, 29. Contrary
to Plaintiffs’ arguments, Al Rajhi Bank
submits it did not have a duty, or a right,
to inspect the Defendant charities’ financial
transactions to ascertain the ultimate
destination of its donations. But see Rule
12(e) Statement ¶ 32 (‘‘Al Rajhi is required
to determine that the ultimate recipients of
these contributions fall within one of the
categories prescribed in the Quran for recipients
of Zakat.’’). Al Rajhi Bank submits
that SAMA did not implement any
duty to investigate Zakat payments after
its meeting with representatives of the National
Security Council and Office of Foreign
Assets Control.
[95] Plaintiffs do not allege that Al
Rajhi Bank provided direct material support
to al Qaeda. Rather, Plaintiffs claim
Al Rajhi Bank aided and abetted the September
11 terrorists by donating to certain
Defendant charities and acting as the bank
for these Defendants. New York law and
the courts interpreting the ATA in Boim
make very clear that concerted action liability
requires general knowledge of the
primary actor’s conduct. See Pittman, 149
F.3d at 123; Boim II, 291 F.3d at 1023;
Boim III, 340 F.Supp.2d at 906. Even
move and launder money. 12(e) Statement
¶ 1. Plaintiffs allege that al Qaeda has perverted
the Zakat and Hararm principles in Islamic
banking to collect and distribute money to
individuals and cells throughout the world.
Id. ¶¶ 4–9; see also Burnett Complaint ¶ 43.
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833
with the opportunity to clarify their claims
against Al Rajhi Bank, the Burnett Plaintiffs
do not offer facts to support their
conclusions that Al Rajhi Bank had to
know that Defendant charities WAMY,
MWL, IIRC, and SJRC were supporting
terrorism. See Rule 12(e) Statement
¶¶ 44–60. ‘‘[A] complaint which consists of
conclusory allegations unsupported by factual
assertions fails even on the liberal
standard of Rule 12(b)(6).’’ De Jesus v.
Sears, Roebuck & Co., 87 F.3d 65, 70 (2d
Cir.1996).
This Court, like Judge Robertson before
it, has found no basis for a bank’s liability
for injuries funded by money passing
through it on routine banking business.
See Burnett I, 274 F.Supp.2d at 109. Similarly,
allegations concerning the Al Rajhi
family cannot support a claim against Al
Rajhi Bank because there is no allegation
that the family members were acting in
furtherance of Al Rajhi Bank business.
Tasso v. Platinum Guild Int’l, 94 Civ.
8288(LAP), 1997 WL 16066, at *6
(S.D.N.Y. Jan. 16, 1997). Plaintiffs attach
to their opposition brief a September 2002
SAMA report summarizing the initiatives
and actions taken by the Kingdom of Saudi
Arabia to combat money laundering and
terrorist financing. See Burnett Plaintiffs’
Opp. to Al Rajhi Motion to Dismiss, Ex. 2.
Neither this document, nor the complaint,
alleges that SAMA or Al Rajhi Bank implemented
‘‘know your customer’’ rules
that Al Rajhi failed to follow with respect
to accounts held by the Defendant charities.
Finally, Plaintiffs’ allegations that Al
Rajhi Bank has connections to Hamas supporters
fails to state a claim because Plaintiffs
have not alleged any relationship between
Hamas and al Qaeda or the terrorist
41. The Ashton Plaintiffs voluntarily dismissed
its claims against the Saudi Cement Company
and the Arabian Cement Company on June
10, 2004. See 03 MD 1570 Docket # 230.
attacks of September 11. Even accepting
all the allegations against Al Rajhi Bank as
true, Plaintiffs have failed to state a claim
that would entitle them to relief. Accordingly,
Al Rajhi Bank’s motion to dismiss
the Burnett complaint is granted in its
entirety.
2. Saudi American Bank
[96] Saudi American Bank is based in
Rihadh, Saudi Arabia and was formed in
1980 pursuant to a royal decree to take
over the then-existing branches of Citibank
in Riyadh and Jeddah. Ashton Complaint
¶ 603; Burnett Complaint ¶ 140. It
is the second largest bank in Saudi Arabia
and has offices in the United States, based
in New York. Ashton Complaint ¶ 604;
Burnett Complaint ¶¶ 141–42. Its chairman,
Abdullahziz Bin Hamad Al Gosaibi is
also the Chairman of the Saudi Cement
Company in Damman, Saudi Arabia. Ashton
Complaint ¶ 605; Burnett Complaint
¶ 142. 41 Ahmed Ali Jumale, purportedly a
close associate of Osama bin Laden and
responsible for helping Defendant Al Baraka
penetrate the United States banking
system, allegedly worked for Saudi American
Bank as a senior employee from 1979
to 1986. Ashton Complaint ¶ 602; Burnett
Complaint ¶ 148. 42
Plaintiffs claim that Saudi American
Bank is the official correspondent of the al
Baraka Bank Lebanon; the Riyadh correspondent
of Defendant Al Faisal Islamic
Bank, which is managed by Defendant
Prince Mohamed; and the Riyadh correspondent
bank for a branch of Defendant
Al Shamal Islamic Bank, which is involved
in the financing of al Qaeda. Ashton Complaint
¶¶ 606, 608; Burnett Complaint
¶¶ 143, 146. It is also the bank for Defen-
42. The Ashton Plaintiffs voluntarily dismissed
their claims against Ahmed Nur Ali Jumale on
June 10, 2004. See 03 MD 1570 Docket
# 230.
834 349 FEDERAL SUPPLEMENT, 2d SERIES
dant Dallah Al Baraka Group, which is
chaired by Defendant Saleh Abdullah Kamel.
Saudi American Bank is close to the
Saudi Bin Laden family, TTT appears on its
financial transactions’’ and provides banking
services to its Sudanese operations.
Ashton Complaint ¶¶ 607–8; Burnett Complaint
¶¶ 144, 146.
‘‘In the year 2000, the Saudi American
Bank participated in the fundraising campaign
in Saudi Arabia for collecting donations
to the ‘heroes of the Al Quds uprising’
(Intifada) by providing a bank account
and facilities to receive donations for a
committee of charity organizations including
Defendants WAMY, IIRO and Al Haramain
Foundation.’’ Ashton Complaint
¶ 609; Burnett Complaint ¶ 147.
The essence of Plaintiffs’ claim is that
through its relationships with other banks
and support of the Saudi Binladin group’s
work in Sudan, Saudi American Bank provided
material support to al Qaeda. It is
not alleged to have done anything to directly
support al Qaeda, Osama bin Laden,
or their terrorist agenda. As the Court
has stated before, there can be no bank
liability for injuries caused by money routinely
passing through the bank. Saudi
American Bank is not alleged to have
known that anything relating to terrorism
was occurring through the services it provided.
The Ashton Plaintiffs have dismissed
their claims against Ahmed Nur Ali
Jumale, allegedly an associate of Osama
bin Laden. To the extent the Burnett
Plaintiffs continue their claims against
him, his employment at Saudi American
Bank from 1979 to 1986 cannot be grounds
for relief. Osama bin Laden did not organize
al Qaeda until the late 1980s, Saudi
American Bank is not alleged to have provided
Jumale with a veil of legitimacy or
shelter. Cf. Burnett I, 274 F.Supp.2d at
104 (finding Al Haramain’s employment of
al Qaeda operative during height of al
Qaeda activity a sufficient allegation of
providing material support). The complaints
have provided Saudi American
Bank with no notice of Plaintiffs’ claims or
grounds for relief. Accordingly, Saudi
American Bank’s motions to dismiss the
Ashton and Burnett complaints are granted
in their entirety.
3. Arab Bank
[97] The Federal Plaintiffs claim Arab
Bank is a financial institution headquartered
in Egypt with branch offices
throughout the world, including New York.
Federal Complaint ¶ 357. Arab Bank
claims it is actually a Jordanian bank
headquartered in Amman, Jordan. Arab
Bank allegedly has ‘‘long provided financial
services and other forms of material
support to terrorist organizations, including
al Qaeda.’’ Federal Complaint ¶ 358.
Further, these Plaintiffs allege that the
September 11 attacks were a ‘‘direct, intended
and foreseeable product of Arab
Bank’s participation in al Qaeda’s jihadist
campaign.’’ Id. ¶¶ 364, 363. These claims
are based on the allegation that Arab Bank
has ‘‘long known that accounts it maintained
were being used to solicit and transfer
funds to terrorist organizations [and
despite this knowledge] Arab Bank has
continued to maintain those accounts.’’ Id.
¶ 362. Specifically, the Federal Plaintiffs
claim Arab Bank accounts have been used
for al Qaeda money transfers throughout
the world and that Arab Bank maintains
accounts for Defendant charities including
IIRO, MWL, WAMY, BIF, Blessed Relief
(Muwaffaq) Foundation, and Al Haramain.
Id. ¶¶ 359, 360. Israeli officials allegedly
have seized funds associated with several
Arab Bank accounts maintained on behalf
of known fronts for Hamas and identified
by Arab Bank employees, ‘‘confirming the
bank’s specific knowledge that accounts it
maintained were being used to sponsor
terrorist activity.’’ Id. ¶ 361.
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The Burnett Plaintiffs claim that members
of the Spanish al Qaeda cell used
Arab Bank to make wire transfers. Burnett
Complaint ¶ 138 (alleging Arab Bank
is ‘‘used regularly by al Qaeda’s Spanish
cell for transfers of cash to members of al
Qaeda operating in Germany, Pakistan, Afghanistan,
Lebanon, Yemen, Bosnia, and
elsewhere’’); id. ¶¶ 139, 528 (alleging
$6,400 wire transfer through Arab Bank
from member of Spanish al Qaeda cell to
an extremist associated with Chej Salah in
Spain). These Plaintiffs conclude that
‘‘Arab Bank PLC has materially supported,
aided, and abetted and financed al
Qaeda.’’ Id. ¶ 138.
The Federal and Burnett complaints do
not include any facts to support the inference
that Arab Bank knew or had to know
that it was providing material support to
terrorists by providing financial services to
the charity Defendants or by processing
wire transfers in Spain. The paragraphs
do not allege any involvement by, knowledge
of, or participation in any wrongful
conduct by Arab Bank. These Plaintiffs do
not claim that Arab Bank ignored any
regulations regarding their customer accounts.
Providing routine banking services,
without having knowledge of the terrorist
activities, cannot subject Arab Bank
to liability. While claiming Arab Bank has
ties with known Hamas fronts, the Federal
complaint does not contain any allegation
of a connection between Hamas and Osama
bin Laden, al Qaeda, or the September
11 attacks. A complaint alleging conclusions
without supporting facts will not survive
a Rule 12(b)(6) motion. In re Cross
Media Mktg. Corp. Sec. Litig., 314
F.Supp.2d 256, 261 (S.D.N.Y.2004). The
Federal Plaintiffs asked for leave to amend
their complaint with respect to Arab Bank,
but they have not offered any facts to
support an amendment. Therefore, Arab
Bank’s motions to dismiss the Federal and
Burnett complaints are granted in their
entirety.
4. Al Baraka Investment & Development
Corporation and Saleh Abdullah
Kamel
[98] The Ashton and Burnett complaints
detail nearly identical claims
against Al Baraka Investment & Development
Corp. (‘‘Al Baraka’’) and Saleh Abdullah
Kamel. Ashton Complaint ¶¶ 583–
601; Burnett Complaint ¶¶ 47–66. Saleh
Abdullah Kamel was born in Saudi Arabia
in 1941 and founded Dallah Albaraka
Group LLC in 1969. Ashton Complaint
¶ 587; Burnett Complaint ¶ 51. Dallah Albaraka
is a diversified conglomerate based
in Jeddah and includes twenty-three banks
in Arab and Islamic countries. Ashton
Complaint ¶ 588; Burnett Complaint ¶ 52.
Dallah Albaraka is a shareholder of Aqsa
Islamic Bank, a bank that Israel has refused
to approve, ‘‘citing its obvious ties
with known terrorists.’’ Ashton Complaint
¶¶ 596, 597; Burnett Complaint ¶¶ 60, 61.
One of Dallah Albaraka’s subsidiaries is
Dallah Avco Trans–Arabia Co., based in
Jeddah. Ashton Complaint ¶ 589; Burnett
Complaint ¶ 53. Omar al Bayoumi, a suspect
wanted by the FBI in connection with
the September 11 attacks, was the Assistant
to the Director of Finance for Dallah
Avco and paid rent in San Diego for the
house occupied by two September 11 hijackers
of American Airlines Flight 77.
Ashton Complaint ¶¶ 590, 592; Burnett
Complaint ¶¶ 55, 54. Mr. Kamel is also
one of three founders of Defendant Al
Shamal Islamic Bank. Ashton Complaint
¶ 594; Burnett Complaint ¶ 58.
Dallah Albaraka’s financial arm is Al
Baraka Investment & Development Corp.,
a wholly owned subsidiary based in Jeddah.
Ashton Complaint ¶ 593; Burnett
Complaint ¶ 57. Al Baraka is a holding
company with 43 subsidiaries, which are
836 349 FEDERAL SUPPLEMENT, 2d SERIES
mainly banks in Arab and Islamic countries.
Ashton Complaint ¶ 583; Burnett
Complaint ¶ 47. It also has banks in Chicago,
Illinois and Houston, Texas. Burnett
Complaint ¶ 47. Al Baraka allegedly
provided financial infrastructures in Sudan
to Osama bin Laden through Defendant
charity Al Haramain. Ashton Complaint
¶¶ 584, 585, 598; Burnett Complaint ¶¶ 48,
49, 62.
Plaintiffs do not offer any factual allegations
against Al Baraka or Mr. Kamel to
withstand their motions to dismiss. The
majority of the complaints’ allegations regarding
Al Baraka actually concern Dallah
Albaraka. The specific allegations against
Al Baraka are that through Al Haramain it
provided financial infrastructures in Sudan,
it provided support to Al Haramain,
and it is present in the Sudan banking
business through banks it holds. The
complaints do not allege that Al Baraka
knew or had any reason to know that Al
Haramain was supporting terrorism, nor
do they allege facts from which such an
inference could be drawn.
The allegation that an employee of a
Dallah Albaraka subsidiary financially supported
two of the hijackers in San Diego
does not translate into an allegation that
Mr. Kamel provided material support to
terrorism or aided and abetted those that
provided material support. An employee’s
actions cannot be a basis for employer
liability unless the employee was acting in
furtherance of the employer’s business.
Tasso, 1997 WL 16066, at *6. There is no
allegation that Mr. Kamel knew Mr. al
Bayoumi or directed anyone at the Della
Albaraka subsidiary to support al Qaeda or
the hijackers. Similarly, the allegation
that Mr. Kamel was one of three founders
of Al Shamal Islamic Bank in 1983, without
additional allegations, does not state a
claim for relief. Thus, the Ashton and
Burnett claims against Al Baraka and Mr.
Kamel are dismissed in their entirety.
5. NCB
[99] The Ashton and Burnett Plaintiffs’
allegations against NCB are outlined
in Part I.B.4. The Court finds it would be
premature to analyze Plaintiffs’ largely
conclusory claims against NCB under Rule
12(b)(6) at this time. NCB may be immune
from suit and further discovery if it
is found to be an instrumentality of the
Kingdom of Saudi Arabia and its actions
do not fit within the FSIA’s exceptions to
immunity. Additionally, the Court is not
yet convinced that it would be proper to
exercise personal jurisdiction over NCB.
Accordingly, NCB’s motion to dismiss for
failure to state a claim is denied without
prejudice. NCB may renew its motion
upon completion of the limited jurisdictional
discovery—first with respect to its instrumentality
status—outlined by the
Court above.
6. Saudi Binladin Group
[100] The Ashton and Burnett allegations
against the SBG are outlined in Part
II.C.8. The same allegations that warrant
limited jurisdictional discovery to investigate
whether SBG purposefully directed
its activities at the United States and its
contacts with the United States preclude
dismissal under 12(b)(6) at this time. SBG
provided construction support to Osama
bin Laden. Ashton Complaint ¶¶ 550,
552–53; Burnett Complaint ¶¶ 319–22. A
branch of SBG purportedly provided shelter
to an al Qaeda operative. Ashton
Complaint ¶ 555; Burnett Complaint ¶ 324.
SBG has, at some point, had a close relationship
with Osama bin Laden, but the
complaints do not specify when or whether
the relationship continues. While these
allegations are certainly not sufficient to
reach a jury, if Plaintiffs demonstrate that
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
837
this Court has personal jurisdiction over
SBG they are entitled the opportunity to
develop these claims. SBG’s motions to
dismiss the Ashton and Burnett complaints
for failure to state a claim are therefore
denied without prejudice.
7. SAAR Network
[101] The Federal Plaintiffs’ allegations
against the SAAR Network are outlined
in Part II.C.9. The Court’s analysis
of the SAAR Network’s arguments in favor
of 12(b)(6) dismissal depend on a predicate
finding of which entities are subject
to this Court’s personal jurisdiction and
which entities—and under what circumstances—transferred
money to terror
fronts. Accordingly, the SAAR Network’s
motion to dismiss is denied without prejudice.
It may be renewed upon completion
of personal jurisdiction discovery.
8. Adel A.J. Batterjee
[102] The Burnett Plaintiffs’ allegations
against Mr. Batterjee are outlined in
Part II.C.10. For substantially the same
reasons the Court found it had personal
jurisdiction over Mr. Batterjee, it denies
his motion to dismiss for failure to state a
claim. The allegations against him and his
designation as a terrorist are sufficient to
permit the inference that he provided support
to al Qaeda directly or through Al
Shamal Islamic Bank, BIF, or WAMY.
Burnett Complaint ¶¶ 75–76, 183–84, 196,
199, 230; Exec. Order 13224.
IV. Conclusion and Order
For the reasons explained above, Prince
Sultan’s motions to dismiss the Burnett,
Ashton, Tremsky, Salvo, Barrera, and
Federal Insurance complaints for lack of
subject matter and personal jurisdiction
are granted. Prince Turki’s motions to
dismiss the Burnett, Ashton, Tremsky,
Salvo, Barrera, and Federal Insurance
complaints for lack of subject matter and
personal jurisdiction are granted. The
Kingdom of Saudi Arabia’s motion to dismiss
the Federal Insurance and Vigilant
Insurance complaints for lack of subject
matter jurisdiction are granted. Prince
Mohamed’s motions to dismiss the Ashton
and Federal Insurance complaints for lack
of personal jurisdiction are granted. Mohammad
Abdullah Aljomaih’s motion to
dismiss the Burnett complaint for lack of
personal jurisdiction is granted. Sheikh
Hamad al Husani’s motion to dismiss the
Burnett complaint for lack of personal jurisdiction
is granted. Abdulrahman bin
Mahfouz’s motion to dismiss the Burnett
complaint for lack of personal jurisdiction
is granted. Tariq, Omar, and Bakr Binladin’s
motion to dismiss the Burnett complaint
for lack of personal jurisdiction is
granted. Al Rajhi Bank’s motion to dismiss
the Burnett complaint for failure to
state a claim is granted. Saudi American
Bank’s motions to dismiss the Burnett and
Ashton complaints for failure to state a
claim are granted. Arab Bank’s motions
to dismiss the Burnett and Federal Insurance
complaints for failure to state a claim
are granted. Al Baraka and Saleh Abdullah
Kamel’s motions to dismiss the Burnett
and Ashton complaints for failure to state
a claim are granted. NCB’s motions to
dismiss the Burnett and Ashton complaints
for lack of subject matter and personal
jurisdiction are denied without prejudice.
The Burnett and Ashton negligence claims
against NCB are dismissed for failure to
state a claim. The Saudi Binladin Group’s
motions to dismiss the Burnett and Ashton
complaints for lack of personal jurisdiction
and failure to state a claim are denied
without prejudice, but the TVPA and negligence
claims against SBG are dismissed.
The SAAR Network’s motion to dismiss
the Federal complaint for lack of personal
jurisdiction and failure to state a claim is
denied without prejudice. T he RICO,
838 349 FEDERAL SUPPLEMENT, 2d SERIES
TVPA, assault and battery, intentional infliction
of emotional distress, and negligence
claims against the SAAR Network
are dismissed. Adel Batterjee’s motion to
dismiss the Burnett complaint is denied.
So ordered.
,
Lawrence AGEE Plaintiff,
v.
Richard GRUNERT, M.D., Chris Fukuda,
M.D., Fletcher Allen Health Care,
Inc., and Copley Hospital Defendants.
No. 2:00–CV–169.
United States District Court,
D. Vermont.
Oct. 1, 2004.
Background: Physician brought federal
statutory and state contract and tort
claims against former partners in medical
group practice and others, after partners
reported his alleged mental unfitness to
practice medicine and placed him on disability
leave. Partners moved for summary
judgment, and physician cross-moved for
summary judgment.
Holdings: The District Court, Sessions,
Chief Judge, held that:
(1) under Vermont law, partners did not
make false and defamatory statements
about physician in reporting his conduct;
(2) partners’ statements were conditionally
privileged;
(3) physician did not have claim for ‘‘restriction
of trade’’ against doctors who
raised legitimate concerns about his
fitness to practice;
(4) partners’ behavior in reporting physician’s
suspected mental unfitness was
not extreme and outrageous conduct
that intentionally inflicted emotional
distress;
(5) partners did not negligently inflict
emotional distress;
(6) physician failed to exhaust administrative
remedies on ADA claim; and
(7) physician was not employee for purposes
of ADA claim.
Motions granted in part and denied in
part.
1. Federal Civil Procedure O2554
On defendants’ motion for summary
judgment, district court would not consider
new claims raised for first time in plaintiff’s
memorandum in opposition to motion.
Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.
2. Libel and Slander O1
Under Vermont law, the elements of
defamation are: (1) a false and defamatory
statement concerning another; (2) some
negligence, or greater fault, in publishing
the statement; (3) publication to at least
one third person; (4) lack of privilege in
the publication; (5) special damages, unless
actionable per se; and (6) some actual
harm so as to warrant compensatory damages.
3. Libel and Slander O30
Under Vermont law, partners in medical
practice did not make false and defamatory
statements in telling hospitals that
physician had been determined to be disabled
and that he was on disability leave;
partners were required under ethics code
to question physician’s fitness when he
attempted surgery despite not having slept
for weeks and while on sleep medication,
and their group practice agreement provided
for his acquiescence in determination