The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
The Bank of China, Ltd. ("Bank of China," "Bank," or BOC) has moved the Court to dismiss all claims against it. Def. BOC's Mot. to Dismiss the 1st Am. Compl., Mar. 5, 2009, ECF No. 15 [hereinafter BOC's Mot.]. The Bank has advanced several arguments in favor of its motion: that the case is non-justiciable because plaintiffs lack standing, id. at 4--5, and because plaintiffs' claims raise political questions, id. at 5--12; that the Court lacks personal jurisdiction over the Bank, id. at 12--18; that venue is improper, Reply Mem. of P. & A. in Support of BOC's Mot. 4--9, July 24, 2009, ECF No. 42 [hereinafter BOC's Reply]; that plaintiffs fail to state any claim upon which relief can be granted, BOC's Mot.at 18--28, 29--44; and that plaintiffs make duplicative claims, id. at 28--29. To this list, the Court will sua sponte add consideration of whether the Bank is entitled to immunity from suit as an instrumentality of China. Plaintiffs oppose all arguments. Pls.' Mem. in Opp'n to BOC's Mot., May 26, 2009, ECF No. 31. [hereinafter Pls.' Opp'n]; Pls.' Surreply, Oct. 20, 2010, ECF No. 80.
In this memorandum opinion, the Court will first provide an overview of plaintiffs claims against BOC and will second discuss why the Court will reach the merits of those claims: plaintiffs have standing, plaintiffs' claims do not raise non-justiciable political questions, the Bank is not entitled to sovereign immunity, the Court has personal jurisdiction over the Bank, venue is proper, plaintiffs have adequately pled claims upon which relief may be granted, and plaintiffs have not pled duplicative claims. The Court will thus deny the Bank's motion.
Plaintiffs make five claims against BOC: that BOC committed an act of international terrorism in violation of U.S. law, that BOC aided and abetted acts of international terrorism committed by others in violation of U.S. law, that BOC is liable for negligence under Israeli law, that BOC is liable for a breach of a statutory duty under Israeli law, and that BOC is vicariously liable for acts of the Palestinian Islamic Jihad (PIJ) under Israeli law. All five claims arise under the same set of alleged facts. This part of the opinion summarizes those facts and claims.
A. A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv
On April 17, 2006, a Palestinian suicide bomber allegedly attacked a restaurant in Tel Aviv, State of Israel ("Israel") ("Tel Aviv bombing" or, as referred to by plaintiffs, the "Terrorist Bombing"). 1st Am. Compl. ¶ 1, Jan. 13, 2009, ECF No. 12 [hereinafter FAC]. Daniel Wultz allegedly suffered severe physical injuries, resulting in his death, further resulting in economic injuries to his estate. Id. ¶¶ 87, 100. Daniel's father also allegedly suffered physical injuries in the attack. Id. ¶¶ 88, 101. Finally, several of Daniel's family members allegedly also suffered emotional and financial injuries. Id. ¶¶ 101--02.
In the wake of the bombing, Mr. Wultz's estate and family members ("plaintiffs") have brought suit against several defendants, including BOC. See FAC. Concerning BOC, plaintiffs specifically allege that between 2003 and the date of the attack, "BOC executed dozens of dollar wire transfers for the PIJ, totaling several million dollars." Id. ¶ 69. These transfers allegedly "were initiated by the PIJ leadership in Iran, Syria[,] and elsewhere in the Middle East, and were executed by and through BOC's branches in the United States." Id. Transferred moneys were allegedly received into accounts owned by officers and agents of the PIJ and used "for the purpose of planning, preparing for[,] and executing terrorist attacks" in general. Id. ¶¶ 69--70.
These transfers, therefore, allegedly "substantially increased and facilitated PIJ's ability to plan, to prepare for[,] and to carry out" the particular bombing at issue in this case. Id. ¶¶ 74, 92.
During the years when the alleged transfers were made, the PIJ was designated by the U.S. Department of State as a "foreign terrorist organization." Review of Designation of Foreign Terrorist Organizations, 74 Fed. Reg. 4069, 4069 (Jan. 22, 2009); Redesignation of Foreign Terrorist Organizations, 68 Fed. Reg. 56,860, at 56,861 (Oct. 2, 2003); Designation of Foreign Terrorist Organizations, 64 Fed. Reg. 55,112, at 55,112 (Oct. 8, 1999); FAC ¶ 6. During this same time, the PIJ was also listed by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) as a "specially designated terrorist" and "specially designated global terrorist" entity. 31 C.F.R. ch. V, app. A (2006); 31 C.F.R. ch. V, app. A (2005); 31 C.F.R. ch. V, app. A (2004); 31 C.F.R. ch. V, app. A (2003). The holder of a BOC account for whom transfers were made-Said al-Shurafa-however, has never been similarly designated by the State or Treasury Departments. See generally U.S. Dep't of the Treasury, OFAC, Terrorism: What You Need to Know About U.S. Sanctions (Oct. 19, 2010), http://www.treasury.gov/offices/ enforcement/ofac/programs/terror/terror.pdf (identifying designees, not including Mr. AlShurafa). Notably, the transfers allegedly continued even after Israel notified the People's Republic of China (PRC or "China") of the transfers and demanded that China force BOC to cease any further transfers. FAC ¶ 77.
B. Plaintiffs Make Five Claims Against BOC Related to the Tel Aviv Bombing
In count two of their first amended complaint, plaintiffs' claim that BOC committed "an act of international terrorism" subjecting it to civil suit under the Antiterrorism Act (ATA), which, in relevant part, permits "[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, [to] sue therefor in any appropriate district court of the United States." 18 U.S.C. § 2333(a).*fn1 Plaintiffs base their claim on a chain-of-corporations theory, alleging that BOC intentionally and knowingly provided financial services to an agent of the PIJ, thereby proximately causing plaintiffs' injury. FAC ¶¶ 106--15. Plaintiffs thus assert a theory of primary liability: BOC is allegedly liable for its own acts.
In count three of their first amended complaint, plaintiffs' second claim that BOC aided and abetted the commission of an act of terrorism by the PIJ. Id. ¶¶ 116--25. Plaintiffs thus allege a theory of secondary liability: BOC is allegedly liable for acts of the PIJ.*fn2
In counts four, five, and six of their first amended complaint, plaintiffs third, fourth, and fifth claim that, under the law of Israel, BOC committed the civil wrong of negligence by providing financial services to the PIJ knowing it would conduct terrorist attacks, id. ¶¶ 126--40, committed a breach of a statutory obligation by violating several Israeli criminal laws, id. ¶¶ 141--52, and should be held vicariously liable for actions of the PIJ, id. ¶¶ 153--58.
This section will first evaluate BOC's arguments relating to justiciability: that plaintiffs lack standing and raise political questions. They do not. The Court will then turn to subject-matter jurisdictional issues: whether BOC is entitled to sovereign immunity as an instrumentality of China. Because BOC is not such an instrumentality, it is not entitled to immunity from this suit. The Court will then address personal jurisdictional issues: whether fundamental fairness permits plaintiffs to haul BOC into this Court. It does. The Court will then examine venue, concluding that this Court is a proper place for plaintiffs to raise their claims. Finally, the Court will evaluate defendant's remaining arguments concerning plaintiffs' individual claims: that plaintiffs fail to state any claims upon which relief may be granted and make duplicative claims. Plaintiffs' claims may warrant relief and are not duplicative.
BOC raises two arguments concerning justiciability: that plaintiffs lack standing and raise political questions. If plaintiffs lack standing to sue the Bank of China or if the complaint raises political questions, then the case is non-justiciable and must be dismissed. This case is justiciable because plaintiffs have standing to sue BOC and plaintiffs' claims do not raise political questions.
Parties must have standing to sue. That is, a plaintiff must have suffered an injury in fact that was caused by a defendant and that is redressable by a court. If plaintiffs lack standing to sue BOC, then this case is non-justiciable and must be dismissed. Because plaintiffs sufficiently allege a causal chain between BOC and alleged injuries suffered that are redressable under various theories of recovery pled by plaintiffs, plaintiffs have standing.
a. Standing Requires Injury in Fact, Causation, and Redressability
The Constitution "limits the jurisdiction of federal courts to 'Cases' and 'Controversies.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 559--60 (1992) (quoting U.S. Const. art. III, § 2, cl. 1). The requirement that plaintiffs have standing to sue is born of this case-or-controversy requirement. Id. at 560 (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). Whether a plaintiff has standing is composed of three elements. "First, the plaintiff must have suffered an 'injury in fact.'" Id. To constitute an "injury in fact" the injury must be "concrete and particularized"- that is, it "must affect the plaintiff in a personal and individual way." Id. at 560, 560 n.1 (citing Allen, 468 U.S. at 751; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740--41 (1972)). The injury must also be "actual or imminent, not 'conjectural' or 'hypothetical.'" Id. at 560 (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). "Second, there must be a causal connection between the injury and the conduct complained of." Id. A causal connection exists where the injury is "'fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Id. at 560--61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41--42 (1976)). "Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Id. at 561 (quoting Simon, 426 U.S. at 38, 43).
The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these three elements. Devlin v. Scardelletti, 536 U.S. 1, 6--7 (2005) (citing Defenders of Wildlife, 504 U.S. at 555). When ruling on a motion to dismiss for want of standing, the trial court "must accept as true all material allegations of the complaint." Warth v. Seldin, 422 U.S. 490, 501 (1975). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Defenders of Wildlife, 504 U.S. at 561 (quoting Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 889 (1990)). With these considerations in mind, the Court now turns to plaintiffs' allegations relating to standing and BOC's arguments that such allegations are insufficient.
b. Plaintiffs Have Standing
BOC does not contest that the claimant has suffered an injury in fact, nor does it argue that the injuries alleged are non-redressable. See BOC's Mot. Rather, BOC argues that "[s]tanding cannot be established here because [p]laintiffs' alleged injuries are too causally attenuated from the wire transfers allegedly executed by the Guangzhou branch of BOC." Id. at 5. According to BOC, because "[t]here are innumerable third parties without whose 'independent action' [p]laintiffs would not have been injured," the injuries on which the claims are based are not fairly traceable to its alleged execution of the fund transfers. Id. (quoting Greenberg v. Bush, 150 F. Supp. 2d 447, 455 (E.D.N.Y. 2001). The issue, however, is not merely whether independent third parties are involved, but rather whether a sufficient causal chain is established between the alleged actions of a defendant and the injury suffered by the claimant. See Allen v. Wright, 468 U.S. 737, 759 (1984).
The circumstances of Greenberg, 150 F. Supp. 2d at 447, the case cited by BOC for the proposition that causation is too attenuated, are quite different from the facts alleged in this case. In Greenberg, plaintiffs argued that foreign-policy actions of the executive branch supporting the establishment of a Palestinian state had "weaken[ed] and paralyze[d]" Israel in violation of longstanding policy favoring the creation and maintenance of a Jewish homeland in the Middle East. The plaintiffs thus concluded that these actions resulted in terrorist attacks on Israel. Id. at 449--50. The plaintiffs made no attempt to prove a causal chain between these foreign-policy decisions and the terrorist acts perpetrated by third parties. The absence of that causal chain led the court to conclude that the plaintiffs lacked standing. Id. at 454--55. According to the court, "[i]t would be difficult to imagine a clearer example of a third party's actions breaking the causal chain." Id. at 455.
This case is distinguishable from Greenberg because, per plaintiffs' allegations, there are links in a causal chain-and plaintiffs have connected them. According to defendant's motion, the "implausible conclusory assertions that the wire transfers 'enable[d]' PLJ to carry out the attacks . . . are plainly insufficient" for purposes of standing. BOC's Mot. 5 (quoting FAC ¶ 72). Defendant's assertion is an oversimplified characterization of plaintiffs' allegations. The first amended complaint alleges that for several years predating the bombing, BOC executed dozens of wire transfers totaling several million dollars to and from an account owned by Mr. AlShurafa. FAC ¶ 69. Those transfers were allegedly initiated by the PIJ, executed in part through BOC branches in the United States, and eventually directed to members of the PIJ to plan, prepare for, and execute terrorist activities, including the bombing at issue in this case. Id. ¶¶ 69--70, 74, 77, 92. Based on these allegations, the Court finds that plaintiffs have adequately pled injuries that are fairly traceable to BOC's alleged actions.
This finding is supported by two other recent decisions addressing standing for claims brought against financial institutions under the ATA. In Rothstein v. UBS AG, scores of victims and their families brought suit alleging that UBS had executed fund transfers to Hamas and Hezbollah, the perpetrators of the attacks out of which the suit arose. 647 F. Supp. 2d 292 (S.D.N.Y. 2009), appeal dismissed, No. 09-4108-cv (2d Cir. Aug. 26, 2010), filed as Pls.' Notice of New Appellate Auth. Relevant to Def. BOC's Pending Mot. to Dismiss, Ex. A, ECF No. 77-1. The court explained the causal chain alleged by the plaintiffs:
[The] plaintiffs allege that the Iranian government is a recognized sponsor of terrorism and has funded and supported Hamas, Hezbollah, and other Palestinian terrorist organizations; that these terrorist organizations require U.S. cash dollars to carry out their activities; and that UBS's involvement in banknote transactions with Iranian counterparties had the effect of providing U.S. cash dollars to the Iranian government, which, in turn, supplied the aforementioned terrorist organizations with U.S. cash dollars that were used to facilitate terrorist acts. This indirect facilitation, plaintiffs argue, makes UBS liable to plaintiffs for the harms they suffered at the hands of the terrorist groups.
Id. at 294. The court then identified several breaks in that chain: (1) the plaintiffs did "not allege that UBS is a primary or even relatively significant source of U.S. banknotes for the Iranian government"; (2) the plaintiffs did not consider that "cash dollars have multiple legitimate uses besides funding terrorism"; and (3) the plaintiffs made no allegations "showing that the terrorist groups here in question raise their funds from monies transferred from Iran." Id. The court thus concluded that the "plaintiffs' allegations here are far too speculative to provide the plausible indication of . . . causation necessary to establish plaintiffs' standing in this case." Id. In the instant case, however, plaintiffs have alleged a flow of money directly into the coffers of the PIJ, FAC ¶ 69-an organization entirely devoted to terrorist activity, and thus one that is unlikely to use wired moneys for any other purpose, see Holly Fletcher, Council on Foreign Relations, Palestinian Islamic Jihad (Apr. 10, 2008), http://www.cfr.org/publication/15984 (noting that "the PIJ offers no social services," but rather engages solely in terroristic violence). The claimants' causation allegations are therefore not speculative like those considered in Rothstein.
In Goldberg v. UBS AG, the plaintiffs brought significantly similar claims alleging that UBS had transferred funds to Hamas, the perpetrator of the bombing out of which the suit arose. 660 F. Supp. 2d 410 (E.D.N.Y. 2009). The court explained the causal chain: (1) the plaintiffs alleged that Hamas is financed through false charities, one of which is the Association de Secours Palestinien (ASP); (2) UBS maintained an account for ASP and transferred money to ASP and other Hamas-controlled entities; and (3) that because Hamas had been designated a foreign terrorist organization by the State Department, and because ASP had been designated as a Hamas fundraising entity by the OFAC, UBS knew the result of transferring the money-the funding of terrorist violence. Id. at 415--16. Thus, where UBS had transferred funds directly to a terrorist-affiliated entity, and knew or had reason to know of that entity's terrorist affiliation, the court found that the plaintiffs had adequately pled standing.
The circumstances of Goldberg parallel those now before the Court. BOC allegedly transferred funds directly from PIJ operatives to an account it maintained for Mr. Al-Shurafa, a PIJ agent. FAC ¶ 69. BOC urges the Court to distinguish Goldberg from this case, arguing that here, BOC performed financial services for an individual "who has never been designated as a member of a terrorist organization by any Government agency, and has never appeared on the OFAC list." Def. BOC's Resp. to Pls.' Notice of New Auth. 2, Sept. 29, 2010, ECF No. 54 [hereinafter BOC's Resp. to Pls.' New Auth.]. BOC thus claims that, unlike the defendant in Goldberg, it had no knowledge that it was effectively providing financial services to the PIJ. Id. Below, the Court discusses an overarching knowledge requirement applicable to civil actions brought under 18 U.S.C. § 2333(a). See discussion infra Part III.E.2.e.i. As more fully discussed in that part, Israeli officials allegedly informed China, which informed BOC, that the transfers were enabling the terrorist activities of the PIJ. FAC ¶ 77. Therefore, as in Goldberg, plaintiffs have pled the knowing provision of financial services to terrorists resulting in terrorist violence.
In addition to its attenuation argument, BOC contends that causation fails because "[t]here can be no genuine claim that PIJ lacked the means to finance and carry out the April 17, 2006 bombing without the wire transfers from Guangzhou." BOC's Mot. 5. But the question is not whether, absent the wire transfers by BOC, it would have been impossible for the PIJ to carry out the bombing. Rather, the question is whether "it could reasonably be inferred that," absent the wire transfers, "there is a substantial probability" that plaintiffs would not have been injured. Greenberg, 150 F. Supp. 2d at 455. Such an inference may be based on "general factual allegations of injury resulting from the defendant's conduct" because, on a motion to dismiss, courts will "'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Defenders of Wildlife, 504 U.S. at 561 (quoting Nat'l Wildlife Fed., 497 U.S. at 889).
A review of the factual allegations set forth in the first amended complaint demonstrates that plaintiffs have sufficiently pled causation for purposes of standing. First, plaintiffs allege that "[t]he PIJ is subject to strict economic sanctions programs imposed by the United States as the result of its designation" as a foreign terrorist organization and specially designated global terrorist entity, the enforcement of which is intended to limit the PIJ's "ability to plan, to prepare[,] and to carry out terrorist attacks." FAC ¶¶ 63--64. Second, were these sanctions universally enforced by financial institutions, plaintiffs allege that "the ability of PIJ to conduct banking activities would be severely restricted, and PIJ's ability to plan, to prepare[,] and to carry out terrorist attacks would be significantly reduced." Id. ¶ 66. Third, plaintiffs allege that "very few banks and financial institutions . . . do not observe and enforce the U.S. Sanctions Regime," among which is BOC. Id. ¶ 67. Finally, the first amended complaint alleges that BOC executed "dozens of . . . wire transfers . . . totaling several million dollars" on behalf of Mr. AlShurafa, a BOC account holder and "a senior officer and agent both of the PIJ and of the Hamas terrorist organization," which were "necessary for planning, preparing and carrying out" the attack for which relief is sought. Id. ¶¶ 69, 73 (emphasis added). Rather than "implausible conclusory assertions," BOC's Mot. 5, these allegations are supported by specific references to dates, amounts, and geographical distribution of funds by BOC on behalf of the PIJ's leadership. In light of these factual allegations, it can reasonably be inferred that, absent the wire transfers, there is a substantial probability that claimants would not have suffered the harm alleged.
2. Political-Question Doctrine
Political questions are those that have been reserved to the executive or legislative branches of government and that are not well suited for determination by courts. If plaintiffs' claims raise political questions, then this case would be non-justiciable and must be dismissed. Although plaintiffs' claims allege facts concerning the conduct of the Chinese government, those allegations do not intrude upon the foreign policy of the United States, and BOC's allegations concerning unsuitability for determination by courts are unripe. Accordingly, plaintiffs' claims do not raise non-justiciable political questions.
a. Political Questions Are Those Issues Reserved for the Political Branches and Unsatisfactory for Judicial Determination.
The political question doctrine "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution" by the executive and legislative branches. Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986). Thus, the doctrine makes non-justiciable those "political decisions that are by their nature committed to the political branches to the exclusion of the judiciary." Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) (quoting Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989)). Two considerations guide a court's testing for non-justiciable political questions: "the appropriateness under our system of government of attributing finality to the action of the political departments" and "the lack of satisfactory criteria for a judicial determination." Baker v. Carr, 369 U.S. 186, 210 (1962) (citing Coleman v. Miller, 307 U.S. 433 (1939)).
Based on those considerations, the Supreme Court in Baker identified "six independent tests for the existence of a political question":
 a textually demonstrable constitutional commitment of the issue to a coordinate political department; or  a lack of judicially discoverable and manageable standards for resolving it; or  the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or  the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or  an unusual need for unquestioning adherence to a political decision already made; or  the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (quoting Baker, 369 U.S. at 217) (quotation marks removed). Under the Baker analysis, "[t]o find a political question . . . [a court] need only conclude that one factor is present, not all." Schneider, 412 F.3d at 194. However, upon finding that a claim implicates "none of the [six] characteristics that Baker v. Carr identified as essential to . . . rais[ing] a political question," a court may treat that claim as justiciable for purposes of the political question doctrine. U.S. v. Munoz-Flores, 495 U.S. 385, 395 (1990).
When undertaking the Baker analysis, a court must remember that "the mere fact that a case touches on the political process does not necessarily create a political question beyond courts' jurisdiction." In re Nazi Era Cases Against German Defs. Litig., 129 F. Supp. 2d 370 (D.N.J. 2001) (citing Nixon v. Herndon, 273 U.S. 536, 540 (1927); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994)). For instance, "[d]isputes involving . . . foreign policy decisions are 'quintessential sources of political questions.'" El-Shifa Pharm. Indus. v. United States, 559 F.3d 578, 583 (D.C. Cir. 2009) (quoting Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006)). Nonetheless, "it is 'error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.'" Japan Whaling Ass'n, 478 U.S. at 229--30 (quoting Baker, 369 U.S. at 211). Unless applicable Baker factors are "inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence." Baker, 369 U.S. at 217.
b. Plaintiffs' Claims Do Not Raise Political Questions
BOC argues that the first amended complaint raises non-justiciable political questions under two prongs of the Baker analysis. First, BOC maintains that the complaint "involve[s] issues which are constitutionally committed" to the Executive Branch by virtue of its plenary power over foreign affairs. BOC's Mot. 9. Second, BOC argues nonjusticiability due to the lack of "'satisfactory criteria for a judicial determination' of the issues." Id. at 10 (quoting Baker, 369 U.S. at 210). The Court will deny BOC's motion with respect to the political-question doctrine, finding that the Court may adjudicate all claims presented without implicating "policy choices and value determinations constitutionally committed for resolution" by the executive and legislative branches, Japan Whaling Ass'n, 478 U.S. at 230, and that concerns about the difficulty of evidentiary compulsion raised by BOC's motion are unripe.
i. Adjudication of Plaintiffs' Claims Does Not Intrude Upon Foreign Relations of the Executive Branch
BOC first contends that the claimants' allegations raise "issues which are constitutionally committed to a coordinate political department"-the Executive Branch. BOC's Mot. 9. It is true that "foreign relations are 'quintessential sources of political questions,'" id. (quoting Bancoult, 445 F.3d at 433), and that "the power to conduct foreign affairs is constitutionally committed to the political branches," id. (citing Ange v. Bush,752 F. Supp. 509, 512 (D.D.C. 1990)). These broad generalizations do not, however, render non-justiciable all claims that have some relation to a foreign government's "political policies and goals . . . with respect to other foreign powers." Id.
Acceptance of BOC's characterization of the political question doctrine would be a significant departure from the traditionally accepted scope of the doctrine in the context of foreign affairs. For instance, in Japan Whaling Ass'n, the petitioners argued that the claims against them were "unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lack[ed] the judicial power" to hear those claims under the Baker analysis. 478 U.S. at 221. The Court rejected the petitioner's reasoning, ruling that "Baker carefully pointed out that . . . it is 'error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.'" Id. at 229--30 (quoting Baker,369 U.S. at 211). Unless one of the six factors of the Baker analysis is "inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence." Baker, 369 U.S. at 217 (emphasis added). To the extent that the claimant's allegations implicate any of the Baker factors, the Court finds that those allegations are extricable from the Court's adjudication of the underlying claims.
BOC argues that "[p]laintiffs' attempt to litigate the political policies and goals of the Chinese government with respect to other foreign powers, including the United States and Israel, its relationship to Chinese citizens and corporations in connection with its policies, the alleged communications between Israeli and Chinese counterterrorism officials, and the Chinese government's alleged disregard of Israeli government concerns about terrorism invite[s] judicial encroachment on matters assigned by the Constitution exclusively to the political branches of government." BOC's Mot. 9--10. BOC thus takes issue with three paragraphs of plaintiffs' complaint: paragraph 77, which alleges that Israeli officials informed China, which informed BOC, that the wire transfers at issue were enabling the terrorist activities of the PIJ, and paragraphs 112 and 123, which allege that BOCactually intended to "intimidate or coerce a civilian population"; "influence the policy of a government by intimidation or coercion"; or "affect the conduct of a government by mass destruction." 18 U.S.C. § 2331(1)(B).
Concerning paragraphs 112 and 123, because, as the Court concludes below, actual intent is not required-plaintiffs need only plead the appearance of intent-the Court need not consider these allegations with respect to the plaintiffs' claims under the ATA. See discussion infra Part III.E.2.d.iii. These allegations of actual intent also have nothing to do with plaintiffs' claims under Israeli law. Pls.' Opp'n 41. Because the Court will not consider them, there is no concern that these allegations will raise a political question to be decided by the Court.
Concerning paragraph 77, whatever political character there may be to allegations that Israeli officials met with Chinese officials, and that BOC thereafter knew it was providing financial services to the PIJ but did nothing to stop it, is extricable from the resolution of plaintiffs' claims. Plaintiffs do not attempt, as BOC puts it, to "litigate . . . political policies and goals." BOC's Mot. 9. Plaintiffs do not ask this court to "pass judgment" on whether those policies are "valid or invalid, good or evil." Pls.' Opp'n 41. Indeed, considering the Court's determination that only appearance of intent is relevant under § 2331(1)(B), plaintiffs do not ask the Court to say anything at all with respect to the actual policies or goals of China. Plaintiffs merely ask the Court to determine whether, as a matter of fact, China received certain information from Israel. See discussion infra Part III.E.2.e.i. (discussing in detail plaintiffs' allegations made in FAC ¶ 77). Ruling on that issue will not require the Court to intrude on the foreign policy prerogatives of the executive.
BOC, through an expert declaration on the nuances of the Sino-U.S. relationship, argues that judicial determination of other, more sensitive policy issues, would intrude on those prerogatives. Freeman Decl. 7--17, Mar. 4, 2009, ECF No. 15-16 (arguing that adjudication of allegations as to, among other things, Chinese direction of BOC decisions for ideological purposes, Chinese foreign policy goals of undermining the United States and Israel, and Chinese support for radical Islamic terrorism would intrude on the foreign policy of the United States). Because only the appearance of intent is at issue under § 2331(1)(B), the Court need not consider these allegations, which relate to actual intent. BOC does not explain how or why adjudication of the mere fact that China received certain information from Israel will in any way affect foreign affairs. The Court is content that it may therefore decide the issue at trial.
This conclusion is buttressed by Lev v. Arab Bank, P.L.C., a recent case also involving the alleged provision of financial services by a foreign bank to Hamas. No. 08-cv-3251, 2010 WL 623636 (E.D.N.Y. Jan. 29, 2010). Although Lev concerned claims brought under the Alien Tort Claims Act, id. at *1, the district court's reasoning on the political-question issue is apposite to analysis under the ATA. In Lev, as here, "no action by a coordinate branch of the United States government . . . is involved." Id. at *4. And as discussed above, any political ingredient of the Court's consideration plaintiffs' alleged facts is merely incidental. Moreover, "the United States has enacted legislation implementing international conventions condemning . . . the provision of financial services to terrorist groups." Id. (citing Almog v. Arab Bank, P.L.C., 471 F. Supp. 2d 257, 282--83 (E.D.N.Y. 2007)). If anything, then, far from intruding on the political branches' political interests, the Court's application of those laws furthers those interests. See also Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86, 110 n.19 (D.D.C. 2003) [hereinafter Burnett I] (concluding, without significant discussion, that suit under the ATA against a Saudi Arabian bank for allegedly providing financial services to Al-Qaeda did not raise non-justiciable political questions).
ii. The Issue of Whether Adjudication of Plaintiffs' Claims Depends on Criteria Unsatisfactory for Judicial Determination Is Unripe
The second argument BOC advances for dismissal under the Baker analysis is a lack of "'satisfactory criteria for a judicial determination' of the issues" presented. BOC's Mot. 10 (quoting Baker, 369 U.S. at 210). According to BOC, "the Judiciary has neither the aptitude, facilities[,] nor responsibility" to overcome the difficulties of evidentiary compulsion in "the realm of foreign affairs where the Constitution grants operational powers only to the two political branches." Id. (citing Ange v. Bush,752 F. Supp. 509, 513 (D.D.C. 1990). "What discovery will take place to develop evidence in support of, and in opposition to, the FAC's contentions about the Chinese government's policies with respect to Israel, the United States, terrorism, and counterterrorism?" asks BOC. Id. "Do [p]laintiffs expect the Court to require Chinese and Israeli government officials to produce documents in response to discovery requests, and to submit to depositions, on the subject of governmental policies and goals with respect to terrorism, including an exploration of the inner councils of these governments?" BOC adds rhetorically. Id.
BOC thus argues that discovery via compulsion orders to China is the only way plaintiffs could prove up their case, but that the Court cannot issue such orders, so plaintiffs' claims depend on criteria that are unsatisfactory for judicial determination. This argument is unripe. Plaintiffs have not yet attempted to acquire evidence of their allegations through discovery. The Court will not guess how plaintiffs will attempt to prove their case, whether through discovery requests to China, Israel, or any other entity, or whether through some other as-yet unimagined means. Just as "it is premature to dismiss the case as involving political questions on the chance that discovery may bump up against issues of confidentiality," Al-Quraishi v. Nakhla, No. 08-cv-1696, 2010 WL 3001986, at *19 (D. Md. July 29, 2010), so too is it premature to dismiss this case on the chance that discovery may bump up against non-cooperation by China or Israel. Not until the Court is presented with a discovery dispute, or at least until after the parties formulate a discovery plan, can the Court decide whether plaintiffs have raised a political question with respect to evidentiary compulsion.
B. Subject-Matter Jurisdiction
Although neither party has raised the issue of sovereign immunity, the general impression that BOC is linked to China herself gives the Court pause to consider the issue sua sponte. If BOC is entitled to sovereign immunity as a corporate instrumentality of China, for the Court to have jurisdiction over the subject-matter of this case, BOC must fall into some exception to that immunity. BOC, however, is not such an instrumentality and is therefore not entitled to immunity. BOC has not made any arguments in its motion that the Court lacks subject-matter jurisdiction, and the Court finds no other subject-matter jurisdictional issues necessary to address sua sponte.
1. Subject-Matter Jurisdiction Over a Case to Which a Foreign Sovereign Is a Party Turns on Sovereign Immunity
The Foreign Sovereign Immunities Act of 1976 (FSIA) provides "the sole basis for obtaining jurisdiction over a foreign state in federal court." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). The FSIA jurisdictional provisions consist of two parts. First, "[28 U.S.C.] § 1604 bars federal and state courts from exercising jurisdiction when a foreign state is entitled to immunity." Id. at 434. Second, "[28 U.S.C.] § 1330(a) confers jurisdiction on district courts to hear suits brought by United States citizens and by aliens when a foreign state is not entitled to immunity." Id. Thus, under the FSIA, "a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see 28 U.S.C. §§ 1605--1605A (enumerating exceptions to the general rule of foreign sovereign immunity).
Because "subject-matter jurisdiction turns on the existence of an exception to foreign sovereign immunity," the Court may raise the issue sua sponte. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 495 n.20 (1983). Further, because a foreign sovereign has "immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits," Foremost-McKesson, 905 F.2d at 443, this Circuit requires a district court "to decide the predicate issues of jurisdiction and sovereign immunity at its earliest opportunity," Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268, 271 n.2 (D.D.C. 2008) (citing Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000)). "To defer the question . . . [would] 'frustrate the significance and benefit of entitlement to immunity from suit.'" Phoenix Consulting, 216 F.3d at 39 (quoting Foremost-McKesson, 905 F.2d at 449). Although neither plaintiffs nor BOC have raised the issue of sovereign immunity, BOC has previously been presumed immune when "the Bank was wholly owned and operated by the People's Republic of China." Orient Mineral Co. v. Bank of China, 506 F.3d 980, 985, 991-- 1001 (10th Cir. 2007). Accordingly, and because it is appropriately early in this litigation, the Court should raise and resolve this issue sua sponte.
2. Instrumentalities of Foreign States Are Presumptively Immune
Other than for purposes of service of process, a "foreign state" entitled to immunity under the FSIA is defined to include any "agency or instrumentality" of that state. 28 U.S.C. § 1603(a). This Circuit "follows a categorical approach when determining whether a foreign governmental entity should be considered 'a foreign state or political subdivision' rather than an 'agency or instrumentality of the nation.'" In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 48 n.10 (D.D.C. 2009) (quoting Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003)). "Under the categorical approach, if the core functions of the entity are governmental, it is considered the foreign state itself." Id. If the core functions are commercial, however, then the entity qualifies as an agency or instrumentality of a foreign state. Id.
The Court's analysis does not end, however, with this categorical distinction. Upon finding that an entity's core functions are commercial, a district court must also determine whether the entity constitutes an agency or instrumentality as defined by the FSIA. The entity thus must be (1) a separate legal person, corporate or otherwise, from the foreign state; (2) "an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof"; and (3) "neither a citizen of a State of the United States . . . nor created under the laws of any third country." 28 U.S.C. § 1603(b)(1)--(3). Concerning the second criterion, the Supreme Court has held that "a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA." Dole Food Co. v Patrickson, 538 U.S. 468, 480 (2003). Therefore, "a subsidiary of an instrumentality is not itself entitled to instrumentality status," regardless of the degree of control the foreign state exercises over that subsidiary. Id. at 473, 477. Importantly, "instrumentality status is determined at the time of the filing of the complaint." Id. at 480.
3. BOC Is Not an Instrumentality of China
Pleadings and papers filed with the Court state that BOC is "the fifth largest commercial bank in the world," BOC's Mot. 14, and that it "does extensive business throughout the United States and holds significant assets in the United States." FAC ¶ 24. BOC's core functions are therefore commercial in nature, and BOC is therefore properly considered an instrumentality of China under the categorical analysis.
Concerning the definitional analysis, BOC satisfies the first and third criteria for classification as an agency or instrumentality of China: BOC is a legal person separate from China and is neither a citizen of this country nor created under the laws of a country other than the United States or China. BOC, Annual Report 2008, at 1 (2008), http://pic.bankofchina.com/ bocappd/report/200904/P020090430343687728848.pdf (discussing BOC's history, including its incorporation in China). It is less clear, however, that BOC satisfies the second criterion, which limits instrumentality status to those corporations in which a foreign state directly owns a majority of shares or other ownership interest at the time the suit was filed. Dole Food, 538 U.S. at 478, 480.
At the beginning of 2008, BOC was principally owned by China SAFE Investments Limited ("SAFE"), which held 67.49% of BOC's shares. BOC, Annual Report 2007, at 89 (2007), http://www.boc.cn/en/investor/ir3/200812/P020081212710831551281.pdf. By the end of 2008, SAFE had marginally increased its holdings to 67.52%. BOC, Annual Report 2008, supra, at 77 (2008). It is therefore reasonable to infer that SAFE owned a majority interest in BOC on August 22, 2008, the date on which this action was filed.
SAFE, which stands for "State Administration of Foreign Exchange," is also known by its Chinese name: Central Huijin Investment Company, Ltd. ("Huijin"). Wang Jianxi, Executive Vice President, Chief Risk Officer, China Investment Corp., Commercial Banking Reform, in China's Emerging Financial Markets107, 114 (Min et al. eds., 2009). Huijin operates as an investment arm of the Chinese government. Id.; BOC, Annual Report 2008, supra, at 79 ("Huijin makes equity investment in key state-owned financial institutions . . . ."). But Huijin is not directly owned by China; instead, Huijin is a subsidiary of the China Investment Corporation (CIC), China's sovereign wealth fund. CIC, Overview, http://www.china-inv.cn/cicen/about_cic /aboutcic_overview.html (last visited Oct. 20, 2010) ("CIC is an investment institution established as a wholly state-owned company . . . . Huijin is wholly-owned subsidiary of CIC."); Amadan Int'l, The Creation of the China Investment Corporation 6, 16 (2008), http://www.amadaninternational.com/reports/TheCreationoftheChinaInvestmentCorporation.pdf; see also Jamil Anderlini, China Investment Arm Emerges From Shadows, Fin. Times, Jan. 5, 2008, http://www.ft.com/cms/s/0/fd0b7e6e-bb2f-11dc-9fbc-0000779fd2ac.html; China's Trillion-Dollar Kitty Is Ready, Asia Times Online, Oct. 2, 2007, http://www.atimes.com/atimes/ China_Business/IJ02Cb01.html.
Thus, when this action was filed on August 22, 2008, BOC was several corporate entities removed from direct ownership by China. Unfortunately for BOC, a transitive property of ownership does not apply under the FSIA: although China owns CIC, CIC owns Huijian, and Huijian owns BOC, China does not therefore directly own BOC. As an indirect subsidiary of China, BOC is not an instrumentality of China and is not presumed immune under the FSIA. The Court, therefore, is not statutorily barred from exercising subject-matter jurisdiction over claims against BOC.
BOC has not made any arguments in its motion that the Court lacks subject-matter jurisdiction, and the Court finds no other subject-matter jurisdictional issues necessary to address sua sponte. Accordingly, the Court will now turn to issues of personal jurisdiction.
BOC argues that the Court lacks personal jurisdiction over it. Plaintiffs thus have the burden of asserting jurisdictional facts supporting the Court's exercise of personal jurisdiction over BOC. As discussed below, plaintiffs have satisfied their burden.
1. Plaintiffs Have the Burden of Alleging Jurisdictional Facts
"When a defendant asserts that the court lacks personal jurisdiction, the burden is on the plaintiff to prove that jurisdiction can be exercised." Burnett I, 274 F. Supp. 2d at 97 (citing Baltierra v. W.V. Bd. of Med., 253 F. Supp. 2d 9, 13 (D.D.C. 2003)). Satisfaction of plaintiffs' burden requires "a prima facie showing of jurisdiction, but the burden is 'only a minimal one.'" Id. (quoting Jacobsen v. Oliver, 201 F. Supp. 2d 93, 104 (D.D.C. 2002)); see Fed. R. Civ. P. 12(b)(2). "In order to meet its burden, plaintiffs must allege specific facts on which personal jurisdiction can be based; it cannot rely on conclusory allegations." Estate of Klieman v. Palestinian Auth., 467 F. Supp. 2d 107, 111 (D.D.C. 2006) (citing GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998)).
When assessing whether a plaintiff has adequately pled jurisdiction over a defendant, "the Court must resolve factual discrepancies in the record in favor of the plaintiff." Gilmore v. Palestinian Interim Self-Gov't., 422 F. Supp. 2d 96, 99 (quoting Crane v. New York Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990)) (internal quotation marks omitted). However, "the Court need not treat all of the plaintiffs' allegations as true." Estate of Klieman, 467 F. Supp. 2d at 112. "Instead, the court 'may [also] receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional facts.'" Id. (quoting Jung v. Assoc. of Am. Med. Colls., 300 F. Supp. 2d 119, 127 (D.D.C. 2004)).
2. Plaintiffs Have Met Their Burden
First, the Court has personal jurisdiction under the ATA, which permits national service of process. Second, BOC has sufficient minimum contacts, both general and specific, with the United States such that requiring its defense of plaintiff's ATA claims in this Court does not offend traditional notions of fair play and substantial justice. Third, as to plaintiffs' claims based on Israeli law, the Court may exercise pendent personal jurisdiction over BOC.
a. The Court Has Personal Jurisdiction Under the ATA
The Federal Rules of Civil Procedure provide that "[s]erving a summons . . . establishes personal jurisdiction over a defendant . . . when authorized by a federal statute." Fed. R. Civ. P. 4(k)(1). The ATA authorizes nationwide service of process to establish personal jurisdiction over a defendant. 18 U.S.C. § 2334(a) (noting that a defendant "may be served in any district where the defendant resides, is found, or has an agent"). "A plaintiff may utilize a statute's nationwide service of process to establish personal jurisdiction . . . if the plaintiff asserts merely a colorable claim under the statute." Burnett I, 274 F. Supp. 2d at 97--98 (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 941--42 (11th Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993)). If a defendant moves for dismissal for failure to state a colorable claim under 18 U.S.C. § 2334(a), that motion "should be granted 'only if the right claimed is so insubstantial, implausible, foreclosed by prior decisions of the court, or otherwise devoid of merit as not to involve a federal controversy.'" Burnett I, 274 F. Supp. 2d at 98 (quoting Republic of Panama, 119 F.3d at 947).
BOC argues that plaintiffs fail to state a colorable ATA claim-that is, that plaintiffs' ATA claim is not one upon which relief may be granted. BOC's Mot. 13. This argument falls flat. For the reasons stated below, the Court finds that plaintiffs have stated an ATA claim upon which relief may be granted. See discussion infra Part III.E.2.--3. The Court will not belabor that discussion here. BOC does not argue that it was served not with process within the United States, and the docket sheet for this case indicates that summons was issued to BOC. See Fed. R. Civ. P. 4. The Court therefore has no reason to doubt that BOC was appropriately served under § 2334. Therefore, the Court has jurisdiction over BOC under the ATA.
b. The Court Has Personal Jurisdiction Under the Fifth Amendment
Although the Court has personal jurisdiction under the ATA, it still must inquire whether it has personal jurisdiction under the Due Process Clause of the Fifth Amendment-that is, whether requiring BOC to defend against ATA claims in this forum comports with traditional notions of fair play and substantial justice. That inquiry, however, is informed by the national-service-of-process provision of the ATA; when evaluating BOC's minimum contacts with this forum, the forum is the entire United States. Based on BOC's contacts with the United States, both in general and specific to the facts alleged in this case, the Court has personal jurisdiction over BOC as to plaintiffs' ATA claims.
i. BOC Must Have Sufficient Minimum Contacts With the United States
Nationwide service of process does not dispense with the requirement that an exercise of personal jurisdiction comport with the Due Process Clause of the Fifth Amendment. Due process requires that a defendant "have certain minimum contacts with . . . [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Wash., 326 U.S. 310, 320 (1945) (internal quotation marks omitted); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). Depending on the sort of contacts a defendant has with a given jurisdiction, a court may exercise either general personal jurisdiction or specific personal jurisdiction over a defendant. A court has specific personal jurisdiction when a defendant's contacts with the forum derive from the defendant having purposefully directed its activities toward the forum and when the litigation arises out or of relates to those activities. Rudzewicz, 471 U.S. at 472; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Conversely, a court has general personal jurisdiction when a defendant has sufficiently minimum contacts with the forum, but where those contacts are unrelated to the litigation. Helicopteros,466 U.S. at 414 n.9.
"Because the . . . [ATA] provides for nationwide service of process, the relevant Due Process inquiry for personal jurisdiction purposes, assuming that the defendant has been properly served, 'is whether the defendant has had minimum contacts with the United States.'" Burnett I, 274 F. Supp. 2d at 95--96 (emphasis added) (quoting Busch v. Buchman, Buchman & O'Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir. 1994)); see also Estate of Ungar v. Palestinian Auth., 400 F. Supp. 2d 541, 548 (S.D.N.Y. 2005) (holding that ATA authorization of nationwide service of process permits due process analysis based on party's contacts with the United States as a whole). It will rarely be the case under the ATA that "a defendant who has minimum contacts with the United States nonetheless will be unduly burdened by the assertion of jurisdiction" such that the "inconvenience rise[s] to a level of constitutional concern." Burnett I, 274 F. Supp. 2d at 96 n.5 (quoting BCCI Holdings, 119 F.3d at 947) (internal quotation marks omitted). "Such instances . . . are highly unusual and . . . require that a defendant make a showing of constitutionally significant inconvenience of litigating in the chosen forum." Id. (citation omitted) (quoting BCCI Holdings, 119 F.3d at 947) (citation omitted) (internal quotation marks omitted).
BOC argues that use of the national-contacts standard is only appropriate to provide "redress to plaintiffs injured by international terrorist organizations which had no traditional ties to or presence in the United States." BOC's Mot. 14. Unfortunately for BOC, nothing in the text of interpretative history of the ATA justifies BOC's attempt to distinguish itself from other litigants to which the national-contacts test has been applied. BOC's interpretation is wholly unsupported by the language of the statute, which provides that the national-contacts test applies to "[a]ny civil action under section 2333 . . . against any person," § 2334(a) (emphasis added), not simply those persons lacking traditional ties to or presence in the United States. In an attempt to convince the Court to read this limitation into the text, BOC cites several cases where the national-contacts test was applied to what BOC calls "shadowy international terrorist organization[s]." BOC's Mot. 14 (citing Estate of Klieman, 467 F. Supp. 2d 107; Biton,310 F. Supp. 2d at 172; Burnett I, 274F. Supp. 2d 86; see Gilmore,422 F. Supp. 2d 96; Burnett v. Al Baraka Inv. & Dev. Corp.,292 F. Supp. 2d 9 (D.D.C. 2003) [hereinafter Burnett II]). None of these cases, however, support the proposition that a national-contacts test applies only to terrorist organizations. The Court, therefore, will not accept BOC's invitation to make a special exception in this case. The national-contacts test applies to BOC.
ii. BOC Has Sufficient Minimum Contacts With the United States
Plaintiffs allege that "BOC has branches in California and New York, does extensive business throughout the United States[,] and holds significant assets in the United States." FAC ¶ 24. The complaint further alleges that "BOC executed dozens of dollar wire transfers for the PIJ, totaling several million dollars," a portion of which "were executed by and through BOC's branches in the United States." Id. ¶ 69. None of these assets are held in the District of Columbia, nor does BOC have a branch in D.C. BOC thus argues that its contacts, or lack thereof, with the District of Columbia, are insufficient to establish either general or specific personal jurisdiction under the relevant provisions of the D.C. Code. BOC's Mot. 12--13 (citing D.C. Code §§ 13-422 to 13-423). BOC's focus on a lack of contacts with the District is misplaced; as the Court has concluded above, the proper inquiry is whether BOC has minimum contacts with the United States as a whole. It does.
The alleged jurisdictional fact that BOC does extensive business in the United States through its own branches supports a finding of general personal jurisdiction. Such a finding is supported by Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V., a case in which a federal court did not find general personal jurisdiction over a foreign bank where the bank merely engaged in a correspondent relationship with banks in the forum. 701 F.2d 889, 891--92 (11th Cir. 1983). Under such relationships, in-forum banks provided financial services to customers of foreign banks. Id. Such a relationship provided insufficiently minimum contacts with the forum by the foreign bank in that case. Id. In this case, however, BOC does business directly through its own branches, not indirectly through third-party correspondents. BOC's contact with the United States is therefore far more significant. See In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 819--20 (S.D.N.Y. 2005) [hereinafter Terrorist Attacks I] (denying foreign bank's motion to dismiss for lack of personal jurisdiction in part because the bank operated a branch office in the United States).*fn3 BOC's contacts with the United States thus support the assertion of general personal jurisdiction.
Moreover, the alleged jurisdictional fact that BOC knowingly performed a wire transfer for the PIJ thorough one of its U.S. branches supports a finding of specific personal jurisdiction. "In the absence of any allegations that a bank has ties to a terrorist organization, or that it knew or had reason to believe that the monies it was processing through the bank would be used to carry out terrorist attacks on civilian targets," the mere provision of routine banking services that benefitted a terrorist organization "in some general, nondescript manner" will not support a finding of specific personal jurisdiction based on the contacts created by such provision. In re Terrorist Attacks on Sept. 11, 2001, No. 03-mdl-570 (GBD), 2010 WL 2484411, at *25 (S.D.N.Y. June 17, 2010) [hereinafter Terrorist Attacks III]. Where a bank has knowledge that it is funding terrorists, however, contacts created by such funding can support such a finding. See, e.g., id. For example, in Terrorist Attacks III, the district court concluded that the Dubai Islamic Bank (DIB) "was an intentional, knowing[,] and direct participant in providing money laundering services to al Qaeda, which allowed for direct funding of terrorist attacks" against the United States, which supported the Court's specific personal jurisdiction over the DIB. Id. Plaintiffs have pled similar jurisdictional facts in this case: Israeli officials allegedly informed China, which informed BOC, that the transfers were enabling the terrorist activities of the PIJ. FAC ¶ 77; see discussion infra Part III.E.2.e.i. BOC's contacts with the United States thus support the assertion of specific personal jurisdiction.
BOC further argues that it could not reasonably anticipate being subject to suit in the District of Columbia due to its lack of contacts with the District and because the Court has no discernable interest in adjudication of the matter due to the attenuated connection between the subject matter of the suit and the District. BOC's Mot. 15--17. Both of these arguments fail.
With regard to BOC's capacity to foresee suit in the District of Columbia, the Court notes that BOC is a sophisticated international financial institution that plaintiffs allege "has branches in California and New York, does extensive business throughout the United States[,] and holds significant assets in the United States." FAC ¶ 24. As such, it is reasonable to presume that BOC is fully aware of U.S. law concerning financial institutions, including provisions of the ATA criminalizing material support to terrorist organizations. Likewise, BOC should be aware that any party subject to a civil claim under § 2333 may be hauled into any U.S. District Court, per the provision of nationwide service of process. § 2334(a). Taking plaintiffs' allegations to be true, the Court therefore finds that BOC could have reasonably foreseen that providing Mr. Al-Shurafa and PIJ with financial services would give rise to a civil claim under § 2333 and, by virtue of that claim, that BOC would be subject to litigation in any U.S. district court in this country.
As for this jurisdiction's interest in adjudication of the matter, the Court finds the Circuit's reasoning in Mwani v. Bin Laden persuasive. 417 F.3d 1 (D.C. Cir. 2005). In Mwani, Kenyan victims and their families brought suit against Osama bin Laden, Al-Qaeda, and the then-named Transitional Islamic State of Afghanistan in relation to the terrorist bombing outside the American embassy in Kenya. Id. With regard to Mr. Bin Laden and Al-Qaeda, the district court concluded that personal jurisdiction was inappropriate, in part due to a lack of physical connections between the District of Columbia, the defendants, and the underlying events. Id. at 11. On appeal, however, the Court of Appeals ruled that when personal jurisdiction is based on national contacts under Federal Rule of Civil Procedure 4(k)(2), due process is satisfied so long an actor has "purposefully directed his activities at residents of the forum." Id. at 12 (internal quotation marks omitted).
Thus, the Court of Appeals found that Mr. Bin Laden and Al-Qaeda had purposefully directed their activities toward the District of Columbia by orchestrating the bombing of the American embassy in Kenya to kill American and Kenyan employees; attempting to "cause pain and sow terror in the embassy's home country, the United States"; and engaging in an "ongoing conspiracy to attack the United States, with overt acts occurring within [the United States'] borders." Id. at 13. Because plaintiffs' injuries arose from those activities, and those activities were directed generally at residents of the United States, this Circuit concluded that an exercise of personal jurisdiction was proper based on the purposeful direction of the activities toward the District of Columbia as the U.S. capital. This due-process analysis set forth in Mwani is readily applicable to this case. Like Mwani, the exercise of personal jurisdiction is based on the defendant's contacts with the nation as a whole, the claimants and defendant are all nonresidents of the forum, and plaintiffs' injuries were attributable to a terrorist attack on foreign soil.
Plaintiffs further allege that "[a]t all times, BOC had actual knowledge that the PIJ Transfers were being made by the PIJ for the purpose of carrying out terrorist attacks" targeting American interests. FAC ¶ 77. Similar to Mwani, then, the direction of terrorist activities toward American interests in this case shows that the PIJ "engaged in unabashedly malignant actions directed at [and] felt in this forum." Mwani, 417 F.3d at 13 (internal quotation marks omitted). Just as the Court would have an interest in adjudicating a suit against the PIJ for those malignant actions, so too does it have an interest in the adjudication of a suit against BOC, which plaintiffs allege has provided material support to the PIJ that "enhanced the PIJ's ability to plan, prepare for and carry out . . . [terrorist] attacks." FAC ¶ 77.
Because PIJ allegedly purposefully directed terrorist activities toward the United States with the allegedly knowing support of BOC through the provision of financial services, it comports with due process to require BOC to defend itself in this Court. Because BOC allegedly does business with and holds assets in the United States, BOC has sufficient minimum contacts with the United States to support the exercise of general personal jurisdiction. Because BOC allegedly performed a transfer of money through one of its branches in the United States as part of the provision of financial services to the PIJ at issue in this case, BOC has sufficient specific minimum contacts to support specific personal jurisdiction. Therefore, the Court has personal jurisdiction over BOC with respect to plaintiffs' ATA claims.
c. The Court Has Pendent Personal Jurisdiction as to Claims Under Israeli Law
On deciding a motion for dismissal of claims arising under Israel's Civil Wrongs Ordinance, another court of this District explained:
[T]he D.C. Circuit has adopted the doctrine of "pendent personal jurisdiction," whereby a court may assert personal jurisdiction over a defendant "with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction."
Sisso v. Islamic Republic of Iran, 448 F. Supp. 2d 76, 90--91 (D.D.C. 2006) (quoting Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (citing Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 5 (D.C. Cir. 1977))).*fn4 Requiring claims with respect to which the Court will entertain pendent personal jurisdiction to derive from a nucleus of operative fact common with other claims with respect to which the Court has original personal jurisdiction insures against due-process concerns over hauling the defendant into court to defend against the former, because the defendant is already justifiably hauled in to defend against the latter. See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1069.7 (discussing due process concerns implicated by pendent personal jurisdiction); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
The Court has already found personal jurisdiction to be appropriate with regard to plaintiffs' ATA claims. See discussion supra Part III.C.2.a.--b. Furthermore, plaintiffs' ATA claims and those raised under Israeli law derive from a common nucleus of operative fact: BOC's alleged provision of financial services to the PIJ and the PIJ's subsequent attack giving rise to plaintiffs' injuries. Therefore, the Court has pendent personal jurisdiction over BOC with respect to plaintiffs' claims under Israeli law.
By not raising the issue of improper venue until it filed its reply to plaintiffs' opposition to its motion to dismiss, BOC waived its right to challenge venue as improper. To allow BOC to dispute venue for the first time in its reply would unduly burden plaintiffs by forcing them to respond to the new argument and risk hasty decisionmaking by this Court without full briefing on the issue. Plaintiffs, however, have undercut this concern by volunteering a response in the form of a surreply. Accordingly, the Court considers whether venue is appropriate and concludes that it is, not under the ATA, but as pendent to venue over plaintiffs' main claim brought under the Foreign Sovereign Immunities Act.
1. BOC Waived its Objection to Improper Venue
Venue is proper under the ATA "in the district court of the United States for any district where any plaintiff resides or where any defendant resides or is served, or has an agent." § 2334(a). In its reply to plaintiffs' opposition to BOC's motion, BOC argues, for the first time, that this Court is an improper venue for this action because plaintiffs do not reside in this district and because BOC does not reside, was not served, and does not have an agent in this district. BOC's Reply 4--9. BOC, however, has waived its venue objections. Fed. R. Civ. P. 12(h)(1).
The only mention of the word "venue" in BOC's 45-page motion to dismiss is in a footnote pondering why "[p]laintiffs and their counsel may have chosen this forum." BOC's Mot. 16 n.6. BOC posits that it must have been "because of their focus on the defendants who are foreign state and foreign government officials . . . and the venue provision specifying that for a civil action 'brought against a foreign state or political subdivision thereof,' this District is the appropriate venue." Id. (quoting 28 U.S.C. § 1391(f)(4)). Indeed, that section, along with "the rules of pendent venue," are what plaintiffs plead as the basis for the propriety of venue in this district. FAC ¶ 4. But nowhere in its motion does BOC contest the propriety of venue, either under § 2334(a), ...