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 . ...