United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
the Court is  plaintiffs' motion to vacate a portion
of the Court's order issued on September 29, 2017,
dismissing without prejudice all claims against Al Shamal
Islamic Bank for failure to serve Al Shamal in the two years
since this action was filed. Plaintiffs request that the
Court reinstate their complaint as to Al Shamal and provide
them with ninety days to complete service, or face dismissal.
For the reasons explained below, the Court will grant
November 17, 2015, plaintiffs filed a complaint against two
banks, BNP Paribas, S.A. (BNPP) and Al Shamal, alleging that
BNPP, Sudan, Al Shamal, and al Qaeda conspired to defeat
economic sanctions imposed by the United States on Sudan in
1997. Plaintiffs alleged that the 1998 terrorist attacks on
the U.S. embassies in Kenya and Tanzania were carried out in
furtherance of that conspiracy. They brought claims against
BNPP and Al Shamal under (1) the civil liability provision of
the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333, (2) the
Alien Tort Statute (ATS), 28 U.S.C. § 1350, and (3) for
various common law torts.
was served, and moved to dismiss the complaint. See
Joint Stipulation and Proposed Scheduling Order [ECF No. 5]
¶ 1; BNPP's Mot. to Dismiss [ECF No. 13]. On
September 29, 2017, the Court dismissed all claims against
BNPP for failure to state a claim. See Sept. 29,
2017 Mem. Op. & Order [ECF Nos. 30 & 31]. The Court
also dismissed without prejudice all claims against Al Shamal
because plaintiffs "have not filed an affidavit of
service establishing that Al Shamal has been served with the
complaint in this action, which was filed nearly two years
ago, and they [had] not informed the Court of any efforts
they have taken to serve Al Shamal." Sept. 29, 2017 Mem.
Op. at 2 n.l; see Order at 1. Thereafter, plaintiffs moved
for reconsideration of the Court's dismissal of their
claims against BNPP,  and concurrently moved to vacate the
dismissal without prejudice of their claims against Al
Shamal. Pls.' Mot. for Recons. [ECF No. 33]; Pls.'
Mot. to Vacate [ECF No. 34].
have styled their request as a motion for relief under
Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6).
Pls.' Mot. to Vacate at 3-4, 9. The former permits relief
from "a final judgment, order, or proceeding" for
"mistake, inadvertence, surprise, or excusable neglect,
" Fed.R.Civ.P. 60(b)(1), while the latter applies to
"any other reason that justifies relief, "
Fed.R.Civ.P. 60(b)(6). As the text plainly states, relief
under Rule 60(b) is only available "from a
final judgment, order, or proceeding."
Fed.R.Civ.P. 60(b) (emphasis added); see also Isse v. Am.
Univ., 544 F.Supp.2d 25, 29 (D.D.C. 2008) (finding that
it was Rule 54(b) that applied when the challenged order
"constituted an interlocutory-rather than
contend that the September 29 Order was effectively a final
order because they will be time-barred from re-filing certain
common law claims against Al Shamal under applicable statutes
of limitations. See Pls.' Mot. to Vacate at 4,
6-7. True, courts have held that an order of dismissal
without prejudice may operate as a final order where the
statute of limitations had run on the underlying claim at the
time the claim was dismissed, thereby barring the plaintiff
from refiling the claim. See, e.g., Solis v.
Citi Mortgage, Inc., 700 Fed.Appx. 965, 970-71 (11th
Cir. 2017); Atkinson v. Middlesex Cty, 610 Fed.Appx.
109, 111 (3d Cir. 2015). But here, plaintiffs only contend
that they will be barred from re-filing a subset of their
claims (i.e., the common law claims); indeed, they assert
that their ATA and ATS claims do not expire until June 30,
2024.See Pls.' Opp'n to Mot. to
Dismiss [ECF No. 19] at 15. By plaintiffs' reasoning,
then, the September 29 Order was not a final order because it
did not resolve all of their claims against Al Shamal.
See Isse, 544 F.Supp.2d at 29. Rule 60 is therefore
not the proper vehicle for plaintiffs to seek relief.
Court will instead construe plaintiffs' motion as one for
reconsideration under Rule 54(b). A court may revise its own
interlocutory orders "at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities." Fed.R.Civ.P. 54(b); see
Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015) (Rule
54(b) is the proper vehicle for reconsideration of an order
"while a case is still ongoing in district court");
Lucas v. District of Columbia, 214 F.Supp.3d 1, 4-5
(D.D.C. 2016) (analyzing plaintiffs motion for
reconsideration under Rule 54(b) because "the
Court's order dismissing without prejudice plaintiffs
First Amended Complaint was a non-final order"); see
also Murray v. Gilmore, 406 F.3d 708, 712 (D.C. Cir.
2005) ("[D]ismissal of an action without prejudice is a
final disposition but dismissal of a complaint without
prejudice typically isn't."). This will benefit,
rather than harm, plaintiffs because the standard for relief
under Rule 54(b) is somewhat more flexible than that of Rule
60(b). See Lemmons v. Georgetown Univ. Hosp., 241
F.R.D. 15, 22 (D.D.C. 2007).
Rule 54(b), a court may grant relief "as justice
requires, " Capitol Sprinkler Inspection, Inc. v.
Guest Servs. Inc., 630 F.3d 217, 227 (D.C. Cir. 2011),
which requires "determining, within the Court's
discretion, whether reconsideration is necessary under the
relevant circumstances, " Cobell v. Norton, 355
F.Supp.2d 531, 539 (D.D.C. 2005). To determine whether
"justice requires" reconsideration of a previously
issued interlocutory order, the court considers whether it
"patently misunderstood a party . . . has made an error
not of reasoning but of apprehension, or where a controlling
or significant change in the law or facts [has occurred]
since the submission of the issue to the Court."
Singh v. George Washington Univ., 383 F.Supp.2d 99,
101 (D.D.C. 2005) (citation omitted). Furthermore, the party
moving for reconsideration under Rule 54(b) must show that
some harm would accompany a denial of its motion. In Def.
of Animals v. Nat'l Institutes of Health, 543
F.Supp.2d 70, 76 (D.D.C. 2008).
well-established that "[d]istrict courts have inherent
power to dismiss a case sua sponte for a plaintiff s
failure to prosecute." Peterson v. Archstone Cmtys.
LLC, 637 F.3d 416, 418 (D.C. Cir. 2011); see
also Local Civ. R. 83.23 ("A dismissal for failure
to prosecute may be ordered by the Court . . . upon the
Court's own motion."). However, "[b]ecause
disposition of claims on the merits is favored[, ] the harsh
sanction of dismissal for failure to prosecute is ordinarily
limited to cases involving egregious conduct by particularly
dilatory plaintiffs, after less dire alternatives have been
tried without success." Peterson, 637 F.3d at
418 (alterations and internal quotation marks omitted). A
dismissal for failure to prosecute due to a delay in service
is appropriate '"only when there is no reasonable
probability that service can be obtained' or there is a
'lengthy period of inactivity.'" Angellino
v. Royal Family Al-Saud, 688 F.3d 771, 775 (D.C. Cir.
2012); see Novak v. World Bank, 703 F.2d 1305, 1310
(D.C. Cir. 1983) ("[Dismissal is not appropriate when
there exists a reasonable prospect that service can be
obtained."). Here, the Court dismissed without prejudice
the claims again Al Shamal because nearly two years had
passed since the complaint was filed and the record contained
no evidence that plaintiffs had made any attempt to serve Al
Shamal. Sept. 29, 2017 Mem. Op. at 2 n.l; see Nvlok Corp.
v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir.
2005). Though dismissal without prejudice was appropriate
based on the record before the Court when it considered the
issue, plaintiffs have now provided the Court with
significant new facts and demonstrated that they will be
harmed absent reconsideration.
begin with, plaintiffs have for the first time informed the
Court of steps they took to serve Al Shamal, beginning
shortly after they filed the complaint. Pls.' Mot. to
Vacate at 2-3. Specifically, plaintiffs' counsel
identified and corresponded with an American lawyer, Martin
McMahon, who had represented Al Shamal in prior U.S.-based
litigation relating to the September 11 terrorist attacks.
Approximately two weeks after filing the complaint,
plaintiffs' counsel sent a letter to Mr. McMahon asking
if he would be willing to accept service on behalf of Al
Shamal.On January 28, 2016, Mr. McMahon responded
that he was in the process of being hired to represent Al
Shamal in this action, and he asked plaintiffs for an
extension of time to respond to the complaint in the event
that he was retained. Plaintiffs' counsel last followed
up with Mr. McMahon on April 13, 2016, to inquire whether he
had been retained by Al Shamal and to again ask whether he
would accept service. Mr. McMahon responded that he was
resolving an issue concerning retainer terms, and indicated
that he would accept service if retained.
initial efforts to effect service through Mr. McMahon, as
opposed to other avenues, appear reasonable in light of the
circumstances. The Court is, however, troubled by
plaintiffs' lengthy period of inactivity after this
initial push-plaintiffs apparently made no further effort to
follow up with Mr. McMahon after April 2016, and have not
otherwise attempted to serve Al Shamal over the last twenty
months. By letting this lead go cold, plaintiffs may have
hindered the prospect of serving Al Shamal through U.S.
counsel. But ultimately, the Court concludes that plaintiffs
have shown at least a "reasonable prospect that service
can be obtained." Novak, 703 F.2d at 1310; see
Smith-Bey v. Cripe,852 F.2d 592, 594 (D.C. Cir.
1988) (dismissal of plaintiff's complaint for failure to
prosecute not warranted where "it is probable that
service could yet be obtained"). Even if Mr. McMahon is
not retained, he may know who has been or may be able to
provide plaintiffs with information about how they can serve
Al Shamal. The Court will therefore provide plaintiffs with a
limited window to ...