MEMORANDUM OPINION
Royce
C. Lamberth, United States District Judge.
Plaintiffs
now ask the Court to sever their Anti-Terrorism Act (ATA)
claims against defendant Bank Saderat PLC, (BSPLC) and to
transfer, those claims to the United States District Court
for the Eastern District of New York. Pis.' Mot. to
Transfer Venue, ECF No. 72. BSPLC does not oppose this
motion, subject to the reservations that it "reserve[es]
all its rights, contest[s] personal jurisdiction in the
United States, and [does not] admit[] or agree[] with
plaintiffs' claims and assertions." Id.
I.
Background
This
action arises out of a series of rocket attacks by Hezbollah
on civilians in Israel during a 34-day conflict in 2006 along
the border between Israel and Lebanon. Some plaintiffs
allegedly suffered injuries in these attacks, others claim to
be the family members or personal representatives of the
estates of victims. Defendants Bank Saderat Iran (BSI) and
Bank Saderat, PLC (BSPLC) allegedly transmitted funds from
defendant Iran to Hezbollah. The complaint asserted four
types of claims: (1) Foreign Sovereign Immunities Act (FSIA)
state-sponsor of terrorism, 28 U.S.C. § 1605A(c), claims
by the American plaintiffs against Iran, the Central Bank of
Iran (CBI), and BSI (but not BSPLC), Compl. ¶¶
117-26 (Claims I & II), ECF No. 3 [hereinafter Compl.];
(2) ATA, 18 U.S.C. § 2333(a), claims by the American
plaintiffs against BSPLC (but not BSI), Compl. ¶¶
127-15 (Claims III & IV); (3) Alien Tort Statute (ATS),
28 U.S.C. § 1350, claims by the non-American plaintiffs
against BSI and BSPLC, Compl. ¶¶ 146-153 (Claim V);
and (4) Israeli tort claims by all plaintiffs against BSI and
BSPLC, Compl. ¶¶ 154-73 (Claims VI & VII).
In
2013, this Court issued an opinion regarding the claims
against BSI and BSPLC. Kaplan v. Cent. Bank of the
Islamic Republic of Iran, 961 F.Supp.2d 185 (D.D.C.
2013). This Court dismissed the FSIA claims against BSI
because BSI was not an "agency or instrumentality"
under the FSIA because it was not majority-owned by a foreign
state at the time the suit was filed. Id. at 198-99.
Also, this Court dismissed the ATA claims against BSPLC based
on the ATA's act-of-war exception. Id. at
203-04. The ATA's act-of-war exception provides that
"[n]o action shall be maintained under section 2333 of
[title 18 of the U.S. Code] for injury or loss by
reason'of an act of war." 18 U.S.C. § 2336(a).
The term "act of war" is defined by the ATA as to
include "any act occurring in the course of any of the
following: a "declared war," an "armed
conflict, whether or not war has been declared, between two
or more nations," or an "armed conflict between
military forces of any origin." Id. §
2331(4). At time of the 2013 opinion, the term "military
force" was not defined. Further, this Court dismissed
the non-American plaintiffs' ATS claims against BSI and
BSPLC because the attacks at issue in this case did not
"touch and concern the territory of the United States .
. . with sufficient force to displace the presumption against
extraterritorial application [of the ATS]" under the
Supreme Court's decision in Kiobel. Kaplan, 961
F.Supp.2d at 204-05; see Kiobel v. Royal Dutch Petroleum
Co., 569 U.S. 108, 124-25 (2013). Finally, this Court
declined to exercise supplemental jurisdiction over
plaintiffs' Israeli tort claims against BSI and BSPLC
because the court dismissed all federal causes of action
against these defendants and comity principles indicated the
Israeli tort claims would be best addressed by Israeli
courts. Kaplan, 961 F.Supp. 2d. at 205-06.
Subsequently,
this Court addressed the FSIA claims against Iran and CBI in
a 2016 opinion and order and judgment. Kaplan v.
Hezbollah, 213 F.Supp.3d 27 (D.D.C. 2016). This Court
ruled in favor of the plaintiffs regarding the FSIA claims
against Iran. Id. However, the Court dismissed the
FSIA claims against CBI because plaintiffs did not present
any evidence concerning CBI's liability. Order, ECF No.
53.
In July
2018, the D.C. Circuit vacated this Court's dismissal
with respect to the ATA claims and remanded for further
proceedings. Kaplan v. Cent. Bank of the Islamic Republic
of Iran, 896 F.3d 501 (D.C. Cir. 2018). The D.C. Circuit
concluded that this Court first needed to determine that it
has personal jurisdiction over defendants before applying the
ATA's act-of-war exception. Id. at 512-14. The
D.C. Circuit affirmed this Court's dismissal of the ATS
claims in that same opinion. Id. at 514-16. In
October 2018, the President signed the Anti-Terrorism
Clarification Act of 2018 (ATCA) into law, which amended the
ATA to eliminate the "act of war" defense in new or
pending ATA actions where the attack at issue was carried out
by a designated "foreign terrorist organization."
Anti-Terrorism Clarification Act of 2018, Pub. L. 115-253,
§ 2 (codified at 18 U.S.C. § 2331). Hezbollah has
been continuously designated a "foreign terrorist
organization" since 1997, making the act-of-war
exception no longer applicable to this case.
II.
Discussion
The ATA
provides that "[a]ny civil action under section 2333 of
this title against any person may be instituted 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. Process in such a civil action may
be served in any district where the defendant resides, is
found, or has an agent." 18 U.S.C. § 2334(a). The
first sentence of § 2334(a) is the venue provision and
the second sentence is the nationwide service provision. In
Wultz v. Islamic Republic of Iran, 762 F.Supp.2d 18
(D.D.C. 2011), this Court held that an ATA plaintiff may only
rely on a defendant's nationwide jurisdictional contacts
when the plaintiff complies with the ATA's venue
provision. Absent that, an ATA plaintiff must demonstrate
that the defendant has sufficient jurisdictional contacts
with the individual forum in which the ATA action was
brought.
Plaintiffs
concede that they are not aware of any basis for venue under
§ 2334(a) in this case. Thus, under Wultz,
plaintiffs cannot rely on BSPLC's nationwide
jurisdictional contacts, and must show sufficient
jurisdictional contacts between BSPLC and the District of
Columbia for venue to be proper in this Court. However,
plaintiffs again concede that they are unaware that BSPLC has
any D.C. contact. Accordingly, this Court lacks jurisdiction
over BSPLC.
The
Court is left with two options: dismiss the case for lack of
personal jurisdiction or transfer the case to a district
where it could have been brought. 28 U.S.C. § 1631
authorizes this Court to transfer a case over which it lacks
jurisdiction to any other court where the action originally
could have been brought as long as the transfer is in the
"interest of justice." 28 U.S.C. §1631.
Plaintiffs
point to the U.S. District Court for the District of
Massachusetts' decision in Lelchook v. Islamic
Republic of Iran, 224 F.Supp.3d 108 (D. Mass. 2016), in
support of their argument that this Court should transfer the
claims against BSPLC to the E.D.N.Y. In Lelchook,
plaintiffs brought an ATA suit against BSPLC, among other
claims against multiple other defendants. The claims at issue
in Lelchook involved different rocket attacks during
the same conflict at the heart of this case along the border
between Israel and Lebanon. The Lelchook plaintiffs
included several assertions regarding BSPLC's alleged use
of the New York banking system. See Lelchook, 224
F.Supp.3d at 112, 116 (D. Mass. 2016). The Lelchook
court assessed that there was likely personal jurisdiction in
New York based on plaintiffs' allegation that BSPLC
transferred funds to Hezbollah through the U.S. financial
system that was likely routed through New York. The court
found that New York law had supported the exercise of
personal jurisdiction in similar circumstances. See
Lelchook, 224 F.Supp.3d at 117 (citing Licci v.
Lebanese Canadian Bank, 20 N.Y.3d 327, 340 (N.Y. 2012)
(finding personal jurisdiction over a foreign bank that
maintained and utilized a correspondent account in New York
to process dollar-denominated . transactions similar to those
at issue in Lelchook)). Thus, the court found that
it was in the interest of justice to transfer the case to the
E.D.N.Y. pursuant to 28 U.S.C. § 1631.
Similarly,
this Court now finds that it is in the interest of justice to
sever plaintiffs' ATA claims against BSPLC and to
transfer those claims to the E.D.N.Y. The Lelchook
plaintiffs' jurisdictional allegations are also
applicable to the claims against BSPLC in this case. Both of
these ATA suits against BSPLC are premised on BSPLC's
alleged financial support for Hezbollah, which
"enable[ed] and caus[ed] Hezbollah to carry out
terrorist attacks against American and Israeli targets."
Compl. ¶ 35; Lelchook, Amend. Compl., ECF No.
81, ¶ 109-12. Accordingly, despite the fact that the
plaintiffs in this case did not specifically make allegations
regarding BSPLC's contacts with New York, the Court finds
that it is appropriate to look to Lelchook's
discussion on personal jurisdiction given how closely related
these cases are and the fact that they both involve defendant
BSPLC. This Court therefore concurs with the
Lelchook court's determination that New York
plausibly has jurisdiction over this case. The Court finds
that it is in the interest of justice to transfer this case
to the Eastern District of New York pursuant to 28 U.S.C.
§1631.
III.
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