Ashton v. Al Qaeda Islamic

Background

This memorandum decision and order was issued in the multidistrict litigation In re: Terrorist Attacks on September 11, 2001 and relates to several cases, including Ashton, et al. v. Al Qaeda Islamic Army, et al., No. 02-cv-06977. The plaintiffs alleged that the Republic of the Sudan financed, sponsored, conspired to sponsor, aided and abetted, or otherwise provided material support to Osama bin Laden and al Qaeda, contributing to the September 11, 2001 attacks and the resulting deaths, injuries, and destruction. They asserted claims under the Foreign Sovereign Immunities Act, the Anti-Terrorism Act, the Justice Against Sponsors of Terrorism Act, the Alien Tort Statute, the Racketeer Influenced and Corrupt Organizations Act, international law, and state law.

Sudan moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). These rules address, respectively, subject-matter jurisdiction, personal jurisdiction, and failure to state a legally sufficient claim. Magistrate Judge Sarah Netburn issued a report and recommendation addressing the motion. After the parties objected, Judge Daniels independently reviewed the challenged portions of the report and adopted it in part.

Jurisdiction and Causation

The court held that it had subject-matter jurisdiction over the claims against Sudan under the terrorism exceptions in Foreign Sovereign Immunities Act sections 1605(a)(7), 1605A, and 1605B. It rejected jurisdiction under the Act’s noncommercial-tort exception because the plaintiffs did not allege that the entire tort occurred in the United States. The court also held that it had personal jurisdiction over Sudan because Sudan conceded that it had been properly served.

For jurisdictional causation, the court applied a proximate-cause standard. The plaintiffs had to plausibly allege a reasonable connection between Sudan’s conduct and their injuries, including that Sudan’s conduct was a substantial factor in al Qaeda’s ability to conduct the attacks and that the resulting injuries were reasonably foreseeable. The court found that the allegations satisfied that standard at the motion-to-dismiss stage. The court emphasized that it was evaluating the sufficiency of the pleadings, not making a final finding of liability.

Claims That Survived

The court held that the plaintiffs adequately pleaded claims under sections 1605A(c) and 1605A(d) of the Foreign Sovereign Immunities Act. It also held that the plaintiffs adequately pleaded primary-liability claims under the Anti-Terrorism Act based on allegations that Sudan directly provided material support to al Qaeda. The court found that the plaintiffs adequately alleged a knowing provision of support, a qualifying terrorist act, and proximate causation.

The court also held that the plaintiffs adequately pleaded civil claims under the Racketeer Influenced and Corrupt Organizations Act. In addition, it held that the plaintiffs’ state-law claims were not preempted by the federal terrorism statutes. All trespass claims survived, as did the Ashton and Burnett plaintiffs’ assault and battery claims because those claims were sufficiently pleaded and timely filed. The court also recognized the corporate plaintiffs’ claims under the applicable statutory and subrogation theories described in the opinion.

Claims Dismissed

The court dismissed the plaintiffs’ secondary-liability claims under the Anti-Terrorism Act, including aiding-and-abetting and conspiracy theories. It held that the statute’s applicable definition of “person” does not subject foreign sovereigns to those forms of secondary liability.

The court dismissed the Alien Tort Statute claims because the Foreign Sovereign Immunities Act provides the exclusive route for obtaining jurisdiction over a foreign sovereign in federal court, and the Alien Tort Statute could not independently supply jurisdiction or a cause of action against Sudan in these circumstances. The court also dismissed the claims alleging violations of international law because the plaintiffs identified no applicable private right of action separate from the statutory causes of action.

Under state law, the court dismissed claims for conspiracy, aiding and abetting, punitive damages, intentional infliction of emotional distress, and negligence. It dismissed assault and battery claims brought after September 11, 2002, as untimely. The court concluded that the trespass claims were timely because they were filed before September 11, 2004.

Defaults and Disposition

The court held that the amended complaints became the operative master complaints and therefore mooted prior entries of default against Sudan. Alternatively, the court held that good cause existed to set aside the defaults because, despite Sudan’s lengthy failure to appear, setting aside the defaults would not prejudice the plaintiffs and Sudan presented potentially meritorious defenses.

The court adopted Magistrate Judge Netburn’s report in part. It denied Sudan’s motion to dismiss for lack of subject-matter jurisdiction and found that the court had jurisdiction over the claims. It granted Sudan’s motion to dismiss for failure to state a claim as to the specified state-law claims, international-law claims, Alien Tort Statute claims, and Anti-Terrorism Act aiding-and-abetting and conspiracy claims. It directed the Clerk to vacate the identified certificates of default and close Sudan’s motion to dismiss. Judge George B. Daniels’s order addressed pleading sufficiency and jurisdiction; it did not determine Sudan’s ultimate liability.