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Ofisi v. Al Shamal Islamic Bank

United States District Court, District of Columbia

March 19, 2019

MARY OFISI, et al., Plaintiffs,
v.
AL SHAMAL ISLAMIC BANK, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES, UNITED STATES DISTRICT JUDGE

         Plaintiffs are victims of the 1998 terrorist bombings of the United States embassies in Kenya and Tanzania. The attacks were perpetrated by al Qaeda with the assistance of the Republic of Sudan. See generally Owens v. Republic of Sudan, 864 F.3d 751, 765-99 (D.C. Cir. 2017). In 2015, plaintiffs filed suit against BNP Paribas, S.A. (“BNPP”) and Al Shamal Islamic Bank, alleging that the embassy attacks were part of a conspiracy among BNPP, Al Shamal, the Republic of Sudan, and al Qaeda to defeat economic sanctions the United States imposed on Sudan in 1997. The Court previously dismissed plaintiffs' complaint against BNPP for failure to state a claim under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and various common law torts. See generally Ofisi v. BNP Paribas, S.A., 278 F.Supp.3d 84 (D.D.C. 2017).[1] Currently before the Court is [57] Al Shamal's motion to dismiss plaintiffs' nearly identical claims against it for lack of personal jurisdiction and for failure to state a claim. For the reasons stated below, the Court will grant in part and deny in part the motion to dismiss and order limited jurisdictional discovery.

         BACKGROUND

         I. Facts[2]

         In 1997, the United States imposed economic sanctions on the Republic of Sudan in response to Sudan's continued material support of terrorism. Compl. [ECF No. 1] ¶¶ 5, 103, 105. Because of these sanctions, “virtually all trade and investment activities involving the U.S. financial system, including the processing of U.S. dollar transactions through the United States, were prohibited” as to Sudan, its agencies, or instrumentalities. Id. ¶ 105.

         BNPP is a multinational bank headquartered and incorporated in France with branches all over the world. Id. ¶ 18. Shortly after the imposition of U.S. sanctions, BNPP Geneva became the sole correspondent bank in Europe for Sudan's central bank. Id. ¶ 22. Sudan's central bank subsequently directed all major Sudanese commercial banks to use BNPP Geneva as their primary correspondent bank in Europe. Id. ¶¶ 22-23. As a result, most major Sudanese banks eventually held U.S. dollar-denominated accounts with BNPP, which they ultimately used to evade U.S. sanctions. Id. ¶ 87. One of those Sudanese banks was Al Shamal Islamic Bank, which was originally capitalized in part through a $50 million contribution from Osama Bin Laden, and which knowingly maintained and serviced bank accounts used by al Qaeda operatives. Id. ¶¶ 25, 69, 154.

         In 1998, al Qaeda bombed United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing 224 people and injuring thousands. Id. ¶ 118. Plaintiffs are American and Kenyan victims and family members of victims of the bombings who previously obtained a judgment against the Republic of Sudan for its role in providing financial and military support to al Qaeda throughout the 1990s. See Owens v. Republic of Sudan, 174 F.Supp.3d 242, 250-53 (D.D.C. 2016); see generally Owens, 864 F.3d at 769.

         In 2014, BNPP pled guilty to violating federal law in connection with intentionally conducting and concealing U.S. dollar-denominated transactions on behalf of sanctioned entities, including Sudan and Sudanese banks. See Compl. ¶¶ 86-91. BNPP stipulated in its plea that it knowingly violated U.S. sanctions imposed on Sudan between 2002 and 2012, based on banking relationships it had earlier established. See BNPP Plea Agreement Statement of Facts ¶¶ 14-17, Ex. A to Notice of Def. BNP Paribas S.A.'s Mot. to Dismiss the Compl. [ECF No. 13-2].

         II. Procedural History

         Plaintiffs brought this suit in 2015 alleging that BNPP conspired with Sudan, the Central Bank of Sudan, and Sudanese banks, including Al Shamal, to provide Sudan access to the U.S. financial system in violation of the sanctions regime. Compl. ¶¶ 1-2. Sudan and these banks, plaintiffs allege, then used that access to provide material support to al Qaeda in connection with the embassy attacks. Id. ¶¶ 3, 33. Based on that alleged conduct, plaintiffs brought suit against Al Shamal and BNPP under (1) the civil liability provision of the ATA, id. ¶¶ 293-326; (2) the ATS, id. ¶¶ 255-292; and (3) for aiding and abetting and conspiracy to commit tortious acts in connection with the embassy bombings, id. ¶¶ 226-254.[3]

         Because plaintiffs had failed to effect service on Al Shamal, the Court's previous opinion considered only claims against BNPP. See Ofisi, 278 F.Supp.3d at 92 n.1.[4] The Court first narrowed plaintiffs' cognizable claims under the ATA to a violation of 18 U.S.C. § 2339A, which “makes it a crime to ‘provide[] material support or resources [to terrorists] . . . knowing or intending that they are to be used in preparation for, or in carrying out, a violation of' various criminal statutes” prohibiting inter alia the “extraterritorial bombing of a . . . [U.S.] government facility.” Ofisi, 278 F.Supp.3d at 97-100 (citations omitted); see 18 U.S.C. § 2332f(a)(1). Plaintiffs nevertheless failed to state a claim under that section, the Court held, because “most of the facts alleged with respect to BNPP's conduct post-date the embassy bombings.” Ofisi, 278 F.Supp.3d at 100. This was “unsurprising, ” the Court observed, “because the complaint draws heavily from the contents of BNPP's guilty plea in 2014, where BNPP admitted to conspiring to violate U.S. sanctions against Sudan from 2002 to 2012, ” well after the 1998 attacks. Id. at 100 n.8 (emphasis added).

         The Court next dismissed plaintiffs' claims against BNPP for conspiracy and aiding and abetting. See id. at 110-11. “[T]here is no private right of action for sanctions violations, ” the Court explained, and so any conspiracy must plausibly plead a nexus to the tortious acts underlying plaintiffs' claims-here, the 1998 bombings. Id. at 110. But no such nexus was pled because, as the Court found in dismissing the ATA claim, BNPP's only specifically alleged misconduct postdated the bombings. See id. at 100. The Court therefore concluded that “the complaint does not plausibly allege that BNPP knew of the existence of any conspiracy between Sudan and al Qaeda to carry out the embassy bombings, ” “plaintiffs have not sufficiently pled that BNPP knowingly or substantially assisted the terrorist attacks, ” and plaintiffs' conspiracy and aiding and abetting claims “must be dismissed.” Id. at 110-11.

         Finally, the Court dismissed plaintiffs' remaining claims against BNPP, including under the ATS, on grounds not relevant here. See id. at 103-12.

         In March 2018, plaintiffs successfully served Al Shamal with a copy of the summons and complaint. Al Shamal has moved to dismiss the complaint for lack of personal jurisdiction and, in the alternative, for failure to state a claim. See Al Shamal Islamic Bank's Mem. of P. & A. in Supp. of Its Mot. to Dismiss (“Def.'s Mot.”) [ECF No. 57-1]. The motion is fully briefed and ripe for resolution.

         LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss an action for lack of personal jurisdiction. When personal jurisdiction is challenged, it is plaintiffs' burden to make a prima facie showing that the Court has personal jurisdiction. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). “‘Conclusory statements' or a ‘bare allegation of conspiracy or agency' do not satisfy this burden.” Livnat v. Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017) (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988)). “When deciding personal jurisdiction without an evidentiary hearing, ” the Court “must resolve factual disputes in favor of the plaintiff, ” but “need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts.” Id. (citations omitted).

         DISCUSSION

         Al Shamal raises both jurisdictional and merits objections to plaintiffs' complaint. See Def.'s Mot. at 2-15. The Court begins, as it must, with whether it has jurisdiction. See Broudy v. Mather, 460 F.3d 106, 111 (D.C. Cir. 2006).

         I. Personal Jurisdiction

         The personal jurisdiction inquiry asks whether defendant, through its intentional acts, is subject “to the [forum's] coercive power.” Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S.Ct. 1773, 1779 (2017) (citation omitted); see J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879-881 (2011). “To establish personal jurisdiction over a non-resident [defendant] like [Al Shamal], ” courts ordinarily “decide whether statutory jurisdiction exists under the [forum state's] long-arm statute and, if it does, then . ...


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