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Ofisi v. BNP Paribas, S.A.

United States District Court, District of Columbia

January 11, 2018

MARY OFISI, et al., Plaintiffs,
BNP PARIBAS, S.A., et al., Defendants.



         On September 29, 2017, the Court dismissed plaintiffs' claims against defendant BNP Paribas, S. A. (BNPP) 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) various common-law tort doctrines, for allegedly conspiring with Sudan, Sudanese banks, and al Qaeda to defeat U.S. sanctions against Sudan. Plaintiffs have now moved for reconsideration or, in the alternative, requested leave to amend their complaint. For the reasons explained below, plaintiffs' motion for reconsideration and their request for leave to amend will be denied.


         A. Motion for Reconsideration

         Plaintiffs move for reconsideration under Federal Rule of Civil Procedure 59(e), but that rule applies only to the amendment of final judgments. See Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015). Because the September 29 Order was interlocutory in nature, the Court will construe plaintiffs' motion as a request for reconsideration under Rule 54. See Fed.R.Civ.P. 54(b) ("[A]ny order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment . . . ."). The Court has broad discretion to hear a motion for reconsideration under Rule 54(b). See Flythe v. District of Columbia, 4 F.Supp.3d 216, 218 (D.D.C. 2014); see also Pueschel v. Nat'l Air Traffic Controllers' Ass'n, 606 F.Supp.2d 82, 85 (D.D.C. 2009) ("[I]n order to promote finality, predictability and economy of judicial resources, 'as a rule [a] court should be loathe to [revisit its own prior decisions] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.'" (second and third alterations in original) (quoting Lederman v. United States, 539 F.Supp.2d 1, 2 (D.D.C. 2008)). In this jurisdiction, relief under Rule 54(b) may be granted "as justice requires." Parker v. John Moriarty & Assocs., 221 F.Supp.3d 1, 2 (D.D.C. 2016). Generally, "a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order." Id. (internal quotation marks omitted); accord Bloomgarden v. U.S. Dep't of Justice, No. CV 12-0843 (ESH), 2016 WL 7839115, at *1 (D.D.C. Apr. 13, 2016); Zeigler v. Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008).

         Plaintiffs do not assert that there has been an intervening change in controlling law or that new evidence has become available. Instead, they contend that the Court committed two clear errors when it dismissed their ATA, ATS, and common-law claims:[1] (1) the Court ignored factual allegations sufficient to establish a plausible inference of conspiracy to defeat U.S. sanctions against Sudan; and (2) it failed properly to apply to their claims the law of civil conspiracy liability set forth in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). See Pls.' Mot. for Recons. [ECF No. 33] at 12. Neither argument convinces the Court that relief is appropriate here.

         1. ATA Claims

         To bring a claim under the ATA's civil liability provision, a plaintiff must plead: (1) injury to a U.S. national, (2) an act of international terrorism, and (3) causation. Mem. Op. at 8-9 (citing 18 U.S.C. § 2333). Plaintiffs have alleged that BNPP violated three criminal provisions of the ATA, which constitute the requisite "act of international terrorism": 18 U.S.C. §§ 2332d, 2339A, and 2339C. LI at 9. The Court dismissed plaintiffs' claim predicated on § 2339C because that statute was enacted in 2002, four years after the relevant conduct in this case. LI at 10. Plaintiffs do not challenge this in their motion. The Court dismissed plaintiffs' claim based on § 2332d because, after considering plaintiffs' arguments to the contrary, it concluded that BNPP, "a French multinational bank, incorporated under the laws of France, " does not qualify as a "United States person" under the statute. Mem. Op. at 12 (quoting Compl. [ECF No. 1] ¶ 18). Plaintiffs state that they "respectfully disagree" with this conclusion for reasons previously argued, see Pls.' Mot. for Recons. at 21 n.8, but that is not a valid basis for reconsideration, see McLaughlin v. Holder, 864 F.Supp.2d 134, 141 (D.D.C. 2012) (alterations in original) (court may deny a motion for reconsideration that "raise[s] ... arguments for reconsideration the court ha[s] ... already rejected on the merits").

         Plaintiffs' remaining arguments, then, concern BNPP's alleged violation of § 2339A. Plaintiffs first contend that the Court erred when it failed to apply the conspiracy liability standard from Halberstam to their ATA claims, and that under that standard BNPP can be found vicariously liable for the actions of al Qaeda. See Pls.' Mot. for Recons. at 2-3, 12, 18 n.7. But plaintiffs already raised this argument in their opposition to BNPP's motion to dismiss, see Pls.' Opp'n [ECF No. 19] at 3, 23, and the Court considered and rejected it, concluding that the version of the ATA applicable to plaintiffs' claims does not provide for secondary liability under § 2333, [2] Mem. Op. at 11; see Am. Action Network, Inc. v. Cater Am., LLC, No. 12-CV-1972 (RC), 2014 WL 12675253, at *1 (D.D.C. Feb. 12, 2014) ("Rule 54(b) affords no opportunity for the parties to reargue facts and theories upon which a court has already ruled."). The Court's holding in this regard is consistent with both courts of appeals that have considered the issue, see Rothstein v. UBS AG, 708 F.3d 82, 98 (2d Cir. 2013); Boim v. Holy Land Found, for Relief and Dev, 549 F.3d 685, 689 (7th Cir. 2008) (en banc) ("[S]tatutory silence on the subject of secondary liability means there is none . . . ."), as well as a recent tide of district court decisions, see Owens v. BNP Paribas, S.A., 235 F.Supp.3d 85, 92 (D.D.C. 2017) (collecting cases). The Court's decision to follow these appellate and recent district court decisions finding secondary liability unavailable under the ATA[3] instead of earlier district court decisions cited by plaintiffs, see Pls.' Opp'n at 23 (citing Wultz v. Islamic Rep, of Sudan, 755 F.Supp.2d 1, 54 (D.D.C. 2010)), does not constitute clear error.

         Plaintiffs next maintain that the Court erroneously ignored or rejected factual allegations that satisfy the ATA's scienter standard. See Pls.' Mot. for Recons. at 12-18. As an initial matter, plaintiffs misstate the scienter standard when they claim that BNPP is civilly liable under the ATA because the embassy bombings were a "reasonably foreseeable" result of the conspiracy to defeat U.S. sanctions. LI at 15. Section 2333 incorporates the scienter standard of the underlying "act of international terrorism, " Mem. Op. at 9; thus, plaintiffs must allege that BNPP provided financial services "knowing or intending" that the services "are to be used in preparation for, or in carrying out" a terrorist attack, Id. at 15 (quoting 18 U.S.C. § 2339A(a)).

         Contrary to plaintiffs' argument, the Court did consider their well-pled factual allegations concerning BNPP's conduct prior to the August 1998 terrorist attacks. See Id. (accepting that after the sanctions were imposed, BNPP agreed to become the sole correspondent bank for Sudan in Europe; Sudan's central bank directed all major Sudanese commercial banks to use BNPP as their correspondent bank; BNPP established relationships with unaffiliated regional banks; BNPP channeled transactions through these regional banks to circumvent U.S. sanctions; and BNPP processed illegal U.S. dollar transactions for Sudan prior to the attacks). The Court found these allegations insufficient, however, because plaintiffs did not plausibly allege that BNPP knew that Sudan or any Sudanese bank was acting as an agent of al Qaeda or any terrorist, or that the ultimate beneficiaries of any financial services provided would be a terrorist organization. LI at 15-19; see also Owens, 235 F.Supp.3d at 99 ("Processing funds for Sudan [or Sudanese banks] is not the same as processing funds for a terrorist organization or a terrorist front."). The allegations that plaintiffs highlight in their motion, which describe Sudan's activities with terrorists throughout the 1990s, see Pls.' Mot. for Recons. at 13-14, do not alter this conclusion.[4] Even accepting that BNPP was fully aware of Sudan's activities as a state sponsor of terrorism prior to 1997, "the fact remains that [Sudan] is a government, and as such it has many legitimate agencies, operations, and programs to fund." Rothstein, 708 F.3d at 97. Plaintiffs simply cannot equate the transfer of money to Sudan with the transfer of money to al Qaeda. Owens, 235 F.Supp.3d at 99.

         Finally, plaintiffs attempt to relitigate their argument that they sufficiently pled causation. See Pls.' Mot. for Recons. at 3 n.3 (stating BNPP is liable for the "foreseeable conduct" undertaken in furtherance of the conspiracy to defeat sanctions); Opp'n at 22-23 (same). In considering this argument, the Court found that § 2333 's "by reason of language requires a showing of proximate cause as that "term is typically defined." Mem. Op. at 12 (citing Siegel v. SEC, 592 F.3d 147, 159 (D.C. Cir. 2010); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86, 105 (D.D.C.2003)). The Court found plaintiffs' allegations wanting because, as was true in Rothstein and Owens, the complaint here contained no well-pled allegations that BNPP provided money directly to any terrorist group, that any transaction BNPP processed for Sudan or Sudanese banks was transferred to al Qaeda prior to the attacks, or that Sudan would have been unable to assist al Qaeda without the funds that BNPP processed. LI at 19. Plaintiffs fail to show that this ruling was clear error. Instead, they largely repeat the same allegations that the Court has already considered. See Pls.' Mot. for Recons. at 4-11. These include admissions from the June 2014 Consent Order between New York State and BNPP, which provides that BNPP illegally circumvented U.S. sanctions for Sudan and Sudanese banks, as well as conclusory allegations that BNPP knew that it was facilitating terrorist activity by processing transactions with Sudan and Sudanese banks.[5]Repackaged here, these allegations nonetheless remain insufficient. In sum, plaintiffs have failed to convince the Court that dismissal of their ATA claims was erroneous.

         2. ATS Claims

         Plaintiffs next claim that the Court's failure to apply Halberstam to their ATS claims warrants reconsideration. See Pls.' Mot. for Recons. at 3 n.2, 18 n.7. This argument fails for two reasons. First, plaintiffs agreed in their opposition to BNPP's motion to dismiss that international law, not Halberstam,[6] provides the applicable legal standards for their ATS claims. See Pls.' Opp'n at 45-46. A motion for reconsideration is not "an opportunity for a party to relitigate an issue that was or should have been raised at an earlier stage in the litigation." Paleteria La Michoacana, Inc. ...

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