Ashton v. Al Qaeda Islamic

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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IN RE: : MEMORANDUM DECISION

: AND ORDER

TERRORIST ATTACKS ON :

SEPTEMBER 11, 2001 03 MDL 1570 (GBD) (SN)

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This document relates to:

Ashton, et al. v. Al Qaeda Islamic Army, et al., No. 02-cv-06977

Fed. Ins. Co., et al. vy. Al Qaida, et al., No. 03-cv-06978

Burnett, et al. v. Al Baraka Inv. & Dev. Corp., et al., No. 03-cv-09849

Estate of John P. O'Neill, Sr., et al. v. Kingdom of Saudi Arabia, et al., No. 04-cv-01922

Cont’l Cas. Co., et al. v. Al Qaeda Islamic Army, et al., No. 04-cv-05970

O'Neill, et al. v. Republic of the Sudan, et al., No. 18-cv-12114

Aronow, et al. vy. Republic of Sudan, No. 20-cv-07733

Betru, et al. v. The Republic of the Sudan, No. 20-cv-10615

Parker, et al. v. The Republic of the Sudan, No. 20-cv-10657

Nolan, et al. v. The Republic of the Sudan, No. 20-cv-10720

GEORGE B. DANIELS, United States District Judge:

Plaintiffs in this multidistrict litigation seek to hold Defendant Republic of the Sudan liable

for allegedly financing, sponsoring, conspiring to sponsor, aiding and abetting, or otherwise

providing material support to Osama bin Laden and the terrorist organization known as al Qaeda,

which resulted in mass death, destruction, and injury during the terrorist attacks on September 11,

2001 (the “9/11 Attacks”). In the Consolidated Amended Complaint (“CAC”) and Ashton

Amended Complaint (“Ashton Compl.”), Plaintiffs allege that Sudan bears responsibility for the

9/11 Attacks because Sudanese government officials, employees, and agents directly and

knowingly provided critical support to al Qaeda in the years leading up to the Attacks.! (See

' O’Neill, on behalf of a class, also alleged injury. See Estate of John P. O'Neill, Sr., et al. v. Republic of

the Sudan, et al., No. 18-cv-12114 (GDB) (SN) (S.D.N.Y, Dec. 21, 2018). This Court denied the O'Neill

Plaintiffs’ motion for class certification. (July 31, 2023 Mem. Decision and Order, ECF No. 9243.)

generally CAC, ECF No. 6539; Ashton Compl., ECF No. 6537.)* Sudan moves to dismiss these

complaints under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Def.’s Mot.

to Dismiss, ECF No. 6574.)

Before this Court is Magistrate Judge Sarah Netburn’s May 2, 2022 Report and

Recommendation (the “Report”), recommending the dismissal of certain federal, state, and

international law claims but otherwise denying Sudan’s motion. (Report, ECF No. 7942, at 1.)

Upon Plaintiffs’ motion for partial reconsideration, (ECF No. 8090), Magistrate Judge Netburn

amended her Report on September 23, 2022, (Am. Report, ECF No. 8549). Magistrate Judge

Netburn advised the parties that failure to file timely objections to the Report would constitute a

waiver of those objections on appeal. (Report at 71; Am. Report at 6.)

Because the parties filed timely objections to the Report, (see CAC Pls.’ Objs., ECF No.

8707; Def.’s Objs., ECF No. 8717), this Court undertakes a de novo review of the Report. After

doing so, this Court ADOPTS Magistrate Judge Netburn’s Report in finding that: (1) this Court

has subject-matter jurisdiction over the claims and personal jurisdiction over Sudan, (Report at 5—

36), (2) Plaintiffs have stated plausible claims to survive Sudan’s motion to dismiss, (id. at 36-63;

Am. Report at 2-3),* and (3) multiple grounds exist to vacate prior entries of default against Sudan,

(Report at 63-70). For the reasons stated herein, Sudan’s motion to dismiss, except in regard to

specific claims noted, is DENIED.

2 Unless otherwise indicated, all docket numbers refer to the main docket sheet for this multidistrict

litigation. See In re Terrorist Attacks on Sept. 11, 2001, No. 03-md-1570.

3 For ease of reference, citations in this Decision to the “Report” refer to Magistrate Judge Netburn’s May

2, 2022 Report and Recommendation as revised through her September 23, 2022 Amended Report.

4 This Court declines to adopt the Report’s recommendations that Plaintiffs state viable Alien Tort Statute

(“ATS”) claims and that the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(d), authorizes secondary

liability claims against foreign sovereigns. See discussion infra Part IV.

I. BACKGROUND*®

Plaintiffs allege that Sudan knowingly provided extensive support to al Qaeda and its

operatives beginning in the early 1990s. (Report at 2 (citing Ashton Compl. J 10; also citing CAC

{ 16).) They allege that this support transformed al Qaeda into the global terrorist organization

capable of conducting the 9/11 Attacks. Ud. (citing Ashton Compl. { 10; also citing CAC 4¥ 15-

17).) Plaintiffs seek to hold Sudan liable for their 9/11-related harms under the Anti-Terrorism

Act (“ATA”), 18 U.S.C. § 2331 et seqg.; Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §

1602 et seq.; Justice Against Sponsors of Terrorism Act (JASTA”), Pub. L. No. 114-222, 130

Stat. 852 (2016); Alien Tort Statute (“ATS”), 28 U.S.C. § 1350; Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C § 1961 ef seq.; international law; and state law.

As detailed in the Report, separate groups of Plaintiffs first filed suit against Sudan between

August 2002 and September 2004. (See Report at 2-4 (summarizing procedural history).) Sudan

did not participate in the proceedings, resulting in the Clerk of Court issuing at least three

certificates of default. Ud at 2-3.) Then, in 2020, Sudan began appearing in this multidistrict

litigation, and the Court approved the filing of two new consolidated complaints: (1) the Ashton

Amended Complaint, filed November 19, 2020; and (2) the CAC, filed the next day on November

20, 2020. Sudan filed the instant motion to dismiss on January 8, 2021.

On May 2, 2022, Magistrate Judge Netburn issued her Report on Sudan’s motion,

recommending dismissing certain federal, state, and international law claims but otherwise

denying the motion. (Report at 1.) Magistrate Judge Netburn amended her Report on September

23, 2022, following Plaintiffs’ motion for reconsideration. (Am. Report.) In its timely objections

> This Court assumes familiarity with the general background of this case and will only restate relevant

background as necessary to address the pending motion. Because this Court adopts the Report unless

otherwise noted, this Court refers to facts detailed in the Report throughout this Decision.

filed with this Court, Sudan argues that the Report incorrectly concludes that this Court has subject-

matter jurisdiction under the FSIA, that this Court has personal jurisdiction over Sudan, and that

Plaintiffs state any viable claims. (See generally Def.’s Objs.) CAC Plaintiffs also filed timely

and limited objections, arguing that this Court should not adopt the Report’s recommendations

regarding the FSIA’s noncommercial tort exception to sovereign immunity, 28 U.S.C. §

1605(a)(5), and that the Report mistakenly narrowed the scope of the FSIA’s terrorism exception

to sovereign immunity, 28 U.S.C. § 1605A. (See generally CAC Pls.’ Objs.) On April 19, 2023,

this Court held oral argument on the parties’ objections.

Il. LEGAL STANDARDS

A. Reports and Recommendations

A court “may accept, reject, or modify, in whole or in part, the findings or

recommendations” set forth in a magistrate judge’s report. 28 U.S.C. § 636(b)(1)(C). The court

must review de novo the portions of a magistrate judge’s report to which a party properly objects.

Id. The court, however, need not conduct a de novo hearing on the matter. See United States v.

Raddatz, 447 U.S. 667, 674-75 (1980). Rather, it is sufficient that the court “arrive at its own,

independent conclusion” regarding those portions of the report to which objections are made.

Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (citation omitted).

Portions of a magistrate judge’s report to which no or “merely perfunctory” objections are

made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y.

2006) (citations omitted). The clear error standard also applies if a party’s “objections are

improper—because they are ‘conclusory,’ ‘general,’ or ‘simply rehash or reiterate the original

briefs to the magistrate judge.’” Stone v. Comm’r of Soc. Sec., No. 17-cv-569 (RJS) (KNF), 2018

WL 1581993, at *3 (S.D.N.Y. Mar. 27, 2018) (citation omitted), aff'd sub nom. Stone v. Comm’r

of Soc. Sec. Admin., 767 F. App’x 207 (2d Cir. 2019). Clear error is present when “upon review

of the entire record, [the court is] ‘left with the definite and firm conviction that a mistake has been

committed.’” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).

B. Motions to Dismiss

To survive a motion to dismiss, the complaint must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is facially plausible when the factual content pled allows a court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the line between possibility and plausibility

of entitlement to relief.” Jd. (cleaned up).

In considering a motion to dismiss, a district court “accept[s] all factual claims in the

complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Lotes Co. v. Hon

Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014) (citation omitted). However, this

tenet is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Igbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 555). Instead, the pleading’s “factual allegations must be enough to raise a right to

relief above the speculative level, ... ie., enough to make the claim plausible.” Arista Records,

LIC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (cleaned up).

C. The Foreign Sovereign Immunities Act

“The FSIA ‘provides the sole basis for obtaining jurisdiction over a foreign state in federal

court.’” Chettri y. Nepal Rastra Bank, 834 F.3d 50, 55 (2d Cir. 2016) (quoting Argentine Republic

v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989)). The FSIA renders foreign states, as

well as their agencies and instrumentalities, 28 U.S.C. § 1603(a), “presumptively immune from

the jurisdiction of United States courts,” unless a specific exception applies, Saudi Arabia v.

Nelson, 507 U.S. 349, 355 (1993); see also First Fid. Bank, N.A. v. Gov't of Antigua & Barbuda—

Permanent Mission, 877 F.2d 189, 195 (2d Cir. 1989) (“The FSIA begins with a presumption of

immunity which the plaintiff must overcome by showing that the defendant sovereign’s activity

falls under one of the statutory exceptions.”). Accordingly, “[o]nce the defendant presents a prima

facie case that it is a foreign sovereign [or an instrumentality of a foreign sovereign], the plaintiff

has the burden of going forward with evidence showing that, under exceptions to the FSIA,

immunity should not be granted, although the ultimate burden of persuasion remains with the

alleged foreign sovereign.” Jn re Terrorist Aitacks on Sept. 11, 2001, 714 F.3d 109, 114 (2d Cir.

2013) (“Terrorist Attacks IP’) (citation omitted).

“Determining whether this burden is met involves a review of the allegations in the

complaint, the undisputed facts, if any, placed before the court by the parties, and—if the plaintiff

comes forward with sufficient evidence to carry its burden of production on this issue—resolution

of disputed issues of fact.” In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 80 (2d Cir.

2008) (cleaned up), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010); see

also MMA Consultants I, Inc. v. Republic of Peru, 245 F. Supp. 3d 486, 497 (S.D.N.Y. 2017)

(“When resolving issues of subject matter jurisdiction, a district court is not confined to the

complaint and may refer to evidence outside the pleadings, such as affidavits and exhibits.”

(citations omitted)). In doing so, the court “generally must accept the material factual allegations

in the complaint as true, but does not draw all reasonable inferences in the plaintiffs favor.”

Figueroa v. Ministry for Foreign Affairs of Sweden, 222 F. Supp. 3d 304, 307 (S.D.N.Y. 2016);

see also In re Terrorist Attacks on Sept. 11, 2001, 298 F. Supp. 3d 631, 641 (S.D.N.Y. 2018)

(“Terrorist Attacks IV”) (quoting same).

“IBly permitting the district court to go beyond the bare allegations of the complaint, it

preserves the effectiveness of the immunity doctrine by avoiding putting the foreign government

defendant to the expense of defending what may be a protracted lawsuit without an opportunity to

obtain an authoritative determination of its amenability to suit at the earliest possible opportunity.”

Robinson v. Gov't of Malaysia, 269 F.3d 133, 142 (2d. Cir. 2001) (cleaned up); see also Bolivarian

Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 581 U.S. 170, 174 (2017)

(“[C]onsistent with foreign sovereign immunity’s basic objective, namely, to free a foreign

sovereign from suit, the court should normally resolve . . . factual disputes and reach a decision

about immunity as near to the outset of the case as is reasonably possible.” (citation omitted)).

II. THIS COURT HAS SUBJECT-MATTER JURISDICTION OVER THE CLAIMS

AGAINST SUDAN UNDER FSIA § 1605(a)(7) (REPEALED), § 16054, AND § 1605B, AS

WELL AS PERSONAL JURISDICTION OVER SUDAN

This Court has subject-matter jurisdiction over the claims against Sudan under 28 U.S.C.

§ 1605(a)(7), its successor provision of § 1605A, and § 1605B.° This Court also has personal

jurisdiction over Sudan.

A. The FSIA Terrorism Exceptions of § 1605(a)(7) (repealed), § 1605A, and § 1605B

FSIA § 1605(a)(7) offers an exception to foreign sovereign immunity that confers subject-

matter jurisdiction over the claims against Sudan. This exception waives sovereign immunity for

cases against designated state sponsors of terrorism

6 Because Plaintiffs do not allege that the entire tort took place in the United States, this Court holds that

the noncommercial tort exception of FSIA § 1605(a)(5) does not confer subject-matter jurisdiction over

Plaintiffs’ claims. (See Report at 35-36.) “[A] court should decide the foreign sovereign’s immunity

defense ‘[a]t the threshold’ of the action.” Helmerich & Payne Int'l, 581 U.S. at 187 (quoting Verlinden

B.V. vy. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983)). Contrary to CAC Plaintiffs’ arguments, (see

CAC Pls.’ Objs. at 3-10), Magistrate Judge Netburn properly reached the issue of subject-matter

jurisdiction under § 1605(a)(5), which Plaintiffs themselves had asserted was an applicable FSIA exception,

(see, e.g., Pls.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 6649, at 8), and correctly determined this

exception is not available.

in which money damages are sought against a foreign state for personal injury or

death that was caused by an act of... . extrajudicial killing, aircraft sabotage, hostage

taking, or the provision of material support or resources (as defined in section

2339A of title 18) for such an act if such act or provision of material support is

engaged in by an official, employee, or agent of such foreign state while acting

within the scope of his or her office, employment, or agency ....

28 U.S.C. § 1605(a)(7) (version effective Oct. 6, 2006 to Jan. 27, 2008); see also Opati v. Republic

of Sudan, 140 S. Ct. 1601, 1605 (2020) (The “exception permits certain plaintiffs to bring suits

against countries who have committed or supported specified acts of terrorism and who are

designated by the State Department as state sponsors of terror.”). The United States designated

Sudan a state sponsor of terrorism in 1993. (Report at 12); see also discussion infra Section III.B.2.

FSIA § 1605A offers another exception to foreign sovereign immunity for subject-matter

jurisdiction over the claims against Sudan.’ The National Defense Authorization Act for Fiscal

Year 2008, Pub. L. No. 110-181 (*2008 NDAA”), repealed 28 U.S.C. § 1605(a)(7) and replaced

it with 28 U.S.C. § 1605A, “Terrorism Exception to the Jurisdictional Immunity of a Foreign

State.” This “new exception withdrew immunity, granted jurisdiction, and authorized suits against

state sponsors of terrorism for ‘personal injury or death’ arising from the same predicate acts” as

§ 1605(a)(7). Owens v. Republic of Sudan, 864 F.3d 751, 765 (D.C. Cir. 2017) (quoting 28 U.S.C.

§ 1605A(a)(1)), certified question answered, 194 A.3d 38 (D.C. 2018), and vacated and remanded

on other grounds sub nom. Opati, 140 S. Ct. 1601; (see also Report at 6 (quoting same)). Section

1605A provides a private right of action against state sponsors of terrorism, see 28 U.S.C. §

7 In 2020, Congress enacted the Sudan Claims Resolution Act (“SCRA”), Pub. L. No. 116-260, 134 Stat.

3291 (2020) (codified at 28 U.S.C. § 1605A (note)), “which effectively restored Sudan’s sovereign

immunity with respect to terrorism claims” but “preserved only one class of suits—the ongoing proceedings

brought by ‘victims and family members of the September 11, 2001, terrorist attacks.’” Mark v. Republic

of the Sudan, No. 21-5250, 2023 WL 4672260, at *2 (D.C. Cir. July 21, 2023) (quoting SCRA

§ 1706(a)(2)(A)).

1605A(c), and a party may also seek to recover reasonably foreseeable property loss based on the

same acts, see id. § 1605A(d).

Lastly, FSIA § 1605B offers another means to find subject-matter jurisdiction for the

claims against Sudan for “physical injury to person or property or death” caused by a combination

of international terrorism and the tortious acts of foreign states or their officials. 28 U.S.C. §

1605B(b); (see also Report at 6 (same)). Unlike the above provisions, this FSIA exception does

not require the designation of the foreign sovereign as a “state sponsor of terrorism.” Terrorist

Attacks IV, 298 F. Supp. 3d at 639 (citing 28 U.S.C. § 1605B(b)).

B. Plaintiffs Have Adequately Pled Proximate Causation, the Appropriate Standard

for Jurisdictional Causation Under the FSIA Terrorism Exceptions

The law of the case in this multidistrict litigation provides that jurisdictional causation

under § 1605(a)(7), § 1605A, and § 1605B requires only proximate causation, not but-for

causation. (Report at 7 (citing Jn re Terrorist Attacks on Sept. I1, 2001, No. 03-md-1570 (GBD)

(SN), 2011 WL 13244047, at *41 (S.D.N.Y. Dec. 22, 2011); also citing Terrorist Attacks IV, 298

F. Supp. 3d at 645).) Other courts have similarly found that proximate causation is the appropriate

standard for jurisdictional causation under the FSIA terrorism exceptions. (See id. at 7-8 (citing

cases from the D.C. Circuit and Fourth Circuit).) In turn, proximate causation requires “some

reasonable connection between the act or omission of the defendant and the damage which the

plaintiff has suffered.” Terrorist Aitacks IV, 298 F. Supp. 3d at 645 (quoting Owens, 864 F.3d at

794). Such proximate causation exists when (1) a defendant’s acts were a “substantial factor”

leading to the injury and (2) the injury was a “reasonably foreseeable” or “natural consequence”

of those actions. Jd. at 645-46.

Plaintiffs have met their burden in showing jurisdictional causation under this proximate

causation standard. This analysis requires a court to “accept the material factual allegations in the

complaint as true, but [a court] does not draw all reasonable inferences in the plaintiffs favor.”

Figueroa, 222 F. Supp. 3d at 307; see also Terrorist Attacks IV, 298 F. Supp. 3d at 641. As the

Report details, Plaintiffs have adequately pled that: (1) Sudan’s provision of support to al Qaeda

was a “substantial factor” in the 9/11 Attacks; and (2) mass death, injury, and destruction on 9/11

were “reasonably foreseeable” consequences of Sudan’s support. (Report at 8-20.)

I. Sudan’s Support Was a “Substantial Factor” in al Qaeda’s Ability to Launch

the 9/11 Attacks

In assessing the factual allegations, the first inquiry is whether the professed aid from

Sudan was a “substantial factor” in building al Qaeda into an organization that could launch the

9/11 Attacks—not if any individual form of alleged aid was itself a substantial factor in the specific

attacks on 9/11. (See Report at 8—9 (citing Kilburn v. Socialist People’s Libyan Arab Jamahiriya,

376 F.3d 1123, 1130 (D.C. Cir. 2004).) After Sudanese Army Colonel Omar al-Bashir took over

the country with support from Hassan al-Turabi’s National Islamic Front (“NIF”) in a coup d’état

in 1989, Sudan’s new government “reached out to al Qaeda and invited Osama bin Laden’s nascent

terror[ist] group to relocate to Sudan.” (d. at 10 (citing CAC {J 30-34; also citing Ashton Compl.

13-15).) Bin Laden had not been welcome in Afghanistan after the Soviet Union’s withdrawal

in 1989 and had been “expelled [from his home country of Saudi Arabia] in 1990 for his continued

support of terrorism.” Rux v. Republic of Sudan, 495 F. Supp. 2d 541, 549 (E.D. Va. 2007) (“Rux

IT’). By 1992, bin Laden, al Qaeda, and its leadership operated from the Sudanese capital of

Khartoum. (Report at 10 (citing CAC { 58).) “Sudan’s invitation ... allowed al Qaeda to extricate

itself from a war-torn Afghanistan and organize its terrorist enterprise in a stable safe haven.”

Owens, 864 F.3d at 797.

Plaintiffs adequately plead that Sudan then “mobilized its sovereign might” to protect and

bolster the fledgling terrorist group of al Qaeda. (Report at 10.) Sudanese intelligence and security

10

services worked with al Qaeda to vet potential recruits and protected al Qaeda’s six militant

training camps in Sudan. (d. (citing CAC J§ 69, 137-39).) Sudan also “assigned 15 to 20

uniformed soldiers to act as personal bodyguards for bin Laden and other al Qaeda members,”

even “foil[ing] an assassination attempt against bin Laden in Khartoum.” Owens, 864 F.3d at 783.

President al-Bashir provided al Qaeda operatives with official documents to bypass Sudanese

security screenings and gave operatives Sudanese citizenship, passports, and diplomatic papers for

international travel. (Report at 11 (citing CAC 4] 70, 72; also citing Ashton Compl. J] 57, 65).)

Al Qaeda then sent multiple operatives from Sudan to receive flight training abroad, including in

the United States. (Ud. at 14 (citing CAC J§ 157-58).) Beyond personnel, the Sudanese

government transported weapons and equipment from Afghanistan to Sudan via its state-run

airline, planned to manufacture chemical weapons with al Qaeda, and discussed securing uranium

for nuclear weapons with the terrorist group. (id. at 11 (citing CAC {{ 73, 154; also citing Ashton

Compl. { 67).)

The Sudanese government and al Qaeda also maintained an economic relationship. “Bin

Laden completed civil infrastructure projects [in Sudan] and started numerous enterprises with

wealthy NIF members,” to include banks that enabled “al Qaeda to access the international

monetary system.” (Report at 11 (citing CAC ff 123-24; also citing Ashton Compl. JJ 32-36).)

“Sudan allowed its banking institutions to be used by Al Qaeda to launder money,” Ru IZ, 495 F.

Supp. 2d at 549, to include a scheme that moved $26 to 28 million from Sudan for bin Laden,

(Report at 14 (citing Ashton Compl. JJ 106-111)). As the Report details, “Sudan and al Qaeda set

up agricultural enterprises that maintained a near-monopoly over key exports, front charities to

generate revenue and cover operatives’ movements, and a host of other enterprises that gave al

Qaeda and its operatives access to cash and jobs.” (Ud. at 11-12 (internal citations omitted).)

11

From 1990 to 1996, the Sudanese government’s purported sponsorship transformed and

empowered al Qaeda to use its newfound resources as global terrorists. Al Qaeda’s early

membership of approximately 60 individuals—when it operated near the Afghanistan-Pakistan

border—grew to around 2,000 by the early 1990s. (Report at 12 (citing CAC {J 45, 57).) In 1991,

al-Turabi arranged meetings between the NIF, al Qaeda, and Iran, leading Sudan to broker “an

agreement with Iran and Hezbollah to transfer their vast terrorist expertise to al Qaeda.” (Ud. (citing

CAC ff 75—82).) Al Qaeda then sent operatives to Lebanon and Iran for training in explosives,

security, and intelligence tactics. (fd. (citing CAC {J 84-85).) The CIA concluded that “[w]hile

based in Sudan from 1992-1996, [al Qaeda] was transformed from an only partially realized idea

to an international organization ready to operate on its own.” (/d. (quoting CAC { 44).)

Amid mounting international pressure on Sudan in the mid-1990s, bin Laden left the

country in 1996, but Sudanese support allegedly persisted. The U.S. State Department assessed

that “an amicable separation” occurred to allow bin Laden to continue running his Sudanese

enterprises through intermediaries. (Report at 12-13 (citing Ashton Compl. { 80).) Despite

Sudan’s assertion that bin Laden left the country “with practically nothing” because “the Sudanese

government expropriated all his assets,” (see Def.’s Objs. at 8 (quoting NAT’L COMM’N ON

TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 63, 170 (2004))), U.S. State

Department reports indicate that several of bin Laden’s businesses were still operating in Sudan

by June 2000, with possible concealment by the Sudanese government, (see Report at 13-14

(citing CAC § 135).) In 1998, a State Department terrorism report concluded that “Sudan

continued to serve as a meeting place, safehaven, and training hub for a number of international

terrorist groups, particularly Usama Bin Ladin’s al-Qaida organization.” (/d. at 13 (quoting CAC

12

4 41).) This annual terrorism report “continued to describe Sudan as an al Qaeda sanctuary”

through 2001. (/d. (citing CAC { 41; also citing Ashton Compl. § 118).)

For the proximate causation analysis, Plaintiffs’ allegations demonstrate that Sudan’s

support for al Qaeda was a substantial factor in the 9/11 Attacks. Because “funds—and, in certain

instances, arms and other support—are fungible,” Sudan’s support needed to have only increased

al Qaeda’s “operating capacity” as a global terrorist organization capable of striking the United

States. See Force v. Islamic Republic of Iran, 464 F. Supp. 3d 323, 368 (D.D.C. 2020). As other

courts have found, “Sudan, beginning in the early 1990s and continuing at least until 2000, actively

provided Al Qaeda with the support, guidance, Sudanese diplomatic passports and resources that

allowed it to transform into a sophisticated, worldwide terrorist network.” Rux 7,495 F.Supp.2d □□

at 553, “Although the expulsion of bin Laden may have marked a temporary setback for Al Qaeda,

on balance, the organization benefited greatly from Sudan’s aid during the 1990s.” Owens, 864

F.3d at 797. The Sudanese government’s support thus constituted a substantial factor in al Qaeda’s

ability to launch the 9/11 Attacks.

2. The 9/11 Attacks Were a “Reasonably Foreseeable” Consequence of Sudan’s

Support of al Qaeda

The second factor in the proximate causation analysis is whether an attack on the United

States, such as the 9/11 Attacks, was a “reasonably foreseeable” result of Sudan’s purported

support for al Qaeda. As this Court has found in the personal jurisdiction context, the harm is

foreseeable if a defendant acts to “support some future attack to be planned by al Qaeda against

the United States, reasonably anticipating that the brunt of the injuries will be felt there,” rather

than that the defendant “know[s] . . . the support provided is specifically for the 9/11 attacks.” In

re Terrorist Attacks on Sept. 11, 2001, 718 F. Supp. 2d 456, 481 (S.D.N.Y. 2010) (emphasis

added).

13

The allegations indicate Sudan not only foresaw but desired that its support for al Qaeda

would lead to an attack on the United States. (See Report at 15.) NIF leader al-Turabi sought to

unify Sunni and Shia terrorist organizations against the United States, and he and al-Bashir

considered the United States an enemy of Sudan. (/d. (citing CAC 4] 30, 35).) CIA reports provide

that the NIF, al Qaeda, and Iran agreed to “form a tripartite front against their common enemies

[the United States and Israel]... .” Ud. at 16 (quoting CAC § 82).) Specifically, al Qaeda issued

fatwas calling for attacks on U.S. forces and other Americans in the region in 1991, 1992, and

1993, which Sudan’s intelligence services and the NIF allegedly supported during the 1993 attacks

on U.S. troops in Somalia. (/d. at 16 (citing Ashton Compl. J 70—75).) Plaintiffs allege that al

Qaeda operatives lived in Sudan and used Sudanese passports to travel to Somalia, in conjunction

with NIF support, for these attacks. (Ud. (citing CAC ¥ 104).) Bin Laden issued additional

statements in 1996 and 1998 declaring his intentions to expel American influence from the Middle

East and kill Americans. (/d. (citing Rux 495 F. Supp. 2d at 552; also citing Ashton Compl. §

81).) Sudan then harbored and aided al Qaeda operatives in mass murder through the 1998

bombings of U.S. Embassies in Kenya and Tanzania, as well as the 2000 suicide attack on the USS

Cole (DDG 67) in Yemen. (d. at 16-17 (citing Ashton Compl. J] 82-83, 90).)

Attacks on American soil akin to the 9/11 Attacks were a reasonably foreseeable result of

Sudan’s support for al Qaeda and associated terrorist groups. Following the 1993 bombing of the

World Trade Center by al Qaeda-linked operatives, Sudan is alleged to have aided radical Islamic

terrorists in planned attacks on six New York City landmarks. (Ud. at 17 (citing CAC { 115; also

citing Ashton Compl. {§[ 77—78).) The FBI foiled the plot, and U.S. Secretary of State Warren

Christopher consequently designated Sudan a state sponsor of terrorism, announcing that “Sudan

14

is a country which has repeatedly provided support for acts of international terrorism.”* (Jd. at 12

(quoting Pls.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 6649, at 10 n.6).) As previous courts and

the Report found, Plaintiffs’ allegations, and the “reasonable inferences drawn therefrom,

demonstrate a reasonable connection between Sudan’s actions” and the 9/11 Attacks for purposes

of jurisdictional causation. Ud. at 18 (quoting Rux v. Republic of Sudan, 461 F.3d 461, 474 (4th

Cir, 2006) (“Rux P’)).)

Sudan’s direct support of al Qaeda and its terrorist agenda make the allegations “different

in kind” from the allegations against charities and non-governmental groups, such as the Saudi

High Commission for Relief in Bosnia and Herzegovina (“SHC”), which this Court found to be

indirectly linked to al Qaeda and causally disconnected from the 9/11 Attacks. (See Report at 19

(citing Terrorist Attacks IV, 298 F. Supp. 3d at 647). Contra Def.’s Objs. at 4-13.) The factual

allegations here indicate that the Sudanese government harbored al Qaeda because it wanted the

organization to attack the United States, facilitated meetings about attacking the United States,

sponsored the travel and training of operatives to develop terrorist tactics, helped finance al

Qaeda’s operations, and aided al Qaeda operatives in multiple terrorist attacks on U.S. targets.

This claimed Sudanese government support for al Qaeda was therefore a substantial factor in the

reasonably foreseeable outcome of al Qaeda injuring and killing innocent people when it again

attacked America on September 11, 2001.

C. Sudan’s Alleged Actions Waive Sovereign Immunity and Provide This Court with

Subject-Matter Jurisdiction Under the FSIA’s Terrorism Exceptions

Applying these factual allegations to the FSIA terrorism exceptions, this Court has

jurisdiction over the claims against Sudan. FSIA §§ 1605(a)(7) and 1605A(a)(1) are exceptions

to foreign sovereign immunity for a designated state sponsor of terrorism that provides “material

® This designation remained until 2020. (Report at

support or resources,” as defined by 18 U.S.C. § 2339A(b)(1), for terrorist acts. “Material support

or resources” means

any property, tangible or intangible, or service, including currency or monetary

instruments or financial securities, financial services, lodging, training, expert

advice or assistance, safehouses, false documentation or identification,

communications equipment, facilities, weapons, lethal substances, explosives,

personnel (1 or more individuals who may be or include oneself), and

transportation, except medicine or religious materials.

18 U.S.C. § 2339A(b)(1). This definition clearly includes the Plaintiffs’ allegations of Sudanese

support for al Qaeda, such as the Sudanese government providing banking and financial services

for bin Laden’s companies, facilitating terrorist training of al Qaeda operatives by Iranian and

Hezbollah agents, issuing Sudanese passports and travel documents to known al Qaeda operatives,

providing terrorist recruitment assistance, and transporting al Qaeda’s goods and personnel within

and beyond Sudanese borders in furtherance of terrorist plots. See factual allegations supra

Section III.B. President al-Bashir, NIF leader al-Turabi, and other Sudanese state officials

provided this material support “within the scope of [their] office[s], employment, or agency.” See

28 U.S.C. §§ 1605(a)(7), 1605A(a)(1), 1605B(b)(2). Indeed, aid such as the issuance of Sudanese

identity documents and the deployment of military personnel to protect bin Laden and al Qaeda

training camps within Sudanese borders constituted powers vested only in the sovereign of Sudan.

Plaintiffs also meet separate statutory requirements under the FSIA § 1605B exception. A

foreign state need not be designated a state sponsor of terrorism under this exception, whereby the

state lacks immunity for “an act of international terrorism in the United States” in which the foreign

state or its personnel committed “a tortious act or acts.” 28 U.S.C. § 1605B(b). The basis of a

foreign state’s tortious act or omission must be more than mere negligence, id. § 1605B(d), and

this Court has found that the liability for the underlying ATA cause of action requires knowing or

deliberate indifference, In re Terrorists Attacks on Sept. 11, 2001, 740 F. Supp. 2d 494, 517

16

(S.D.N.Y. 2010) (‘Terrorist Attacks IP’). Here, Plaintiffs sufficiently plead knowing and

deliberate conduct by President al-Bashir, al-Turabi, and multiple levels of Sudanese government

officials and employees in supporting al Qaeda and furthering its terrorist agenda. See factual

allegations supra Section III.B; (see also Report at 21-23).

I. This Court Has Subject-Matter Jurisdiction over Family-Member Claims

Under FSIA §$ 1605A(a) and 1605B

Plaintiff family members of 9/11 victims thus rightly bring their solatium claims against

Sudan under 28 U.S.C. §§ 1605A(a) and 1605B. As the Report found, section 1605A(a)(2)(A)(ii)

extends jurisdiction and waives sovereign immunity for cases where either “the claimant or the

victim” was a national of the United States, member of the armed forces, or government employee.

(See Report at 29-30.) Claims by legal representatives and family members of 9/11 victims are

thus permissible where the claimant or victim was within one of the three groups identified in the

statute. (Ud. (citing § 1605A(a)(2)(A)(i1), (c))); see also Hoglan v. Rafsanjani, 759 F. App’x 99,

105 (2d Cir. 2019); Owens, 864 F.3d at 807. (Contra Def.’s Objs. at 13-14.) Similarly, section

1605B permits family members’ solatium claims for money damages “against a foreign state

for .. . death occurring in the United States” that was caused by international terrorism. 28 U.S.C.

§ 1605B(b); (Report at 31).

2. This Court Has Subject-Matter Jurisdiction over Corporate Claims Under

FSIA $$ 1605A and 1605B

Plaintiff corporations also rightly bring claims against Sudan under §§ 1605A and 1605B.

This Court has jurisdiction over the § 1605A claims by corporate Plaintiffs, namely Federal

Insurance Company and Continental Casualty Company Plaintiffs, because their claims stem from

insurance payments to U.S. national policyholders. (Report at 32-33.) This FSIA exception reads

that once an action is brought under § 1605A(c), “actions may also be brought for reasonably

17

foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under

life and property insurance policies.” 28 U.S.C. § 1605A(d); see also In re Terrorist Attacks on

Sept. 11, 2001, No. 03-md-1570 (GBD) (FM), 2015 WL 9468813, at *2 (S.D.N.Y. Dec. 28, 2015)

(insurance companies may bring claims), report and recommendation adopted as modified sub

nom. In re Terrorist Attacks, No. 03-md-1570 (GBD) (FM), 2016 WL 1029552 (S.D.N.Y. Mar. 9,

2016); Inre Terrorist Attacks on Sept. 11, 2001, No. 03-md-1570 (GBD) (SN), 2018 WL 3323159,

at *2—-3 (S.D.N.Y. June 25, 2018) (same). As to corporate Plaintiffs’ § 1605B claims, section

1605B(c) allows for U.S. nationals to bring previously barred ATA claims for treble damages,

while section 1605B(b) provides a broader grant of jurisdiction for entities such as corporations to

sue for acts of international terrorism in the United States caused by the tortious acts of foreign

states, their agents, or employees. (See Report at 33-35.)

3, This Court Also Has Personal Jurisdiction over Sudan

Sudan therefore lacks immunity under the FSIA terrorism exceptions of §§ 1605(a)(7),

1605A,’ and 1605B, providing this Court with subject-matter jurisdiction over Plaintiffs’ claims.

For this Court to have personal jurisdiction over Sudan, service of process is also necessary. See

28 U.S.C. §§ 1330(b) (personal jurisdiction requiring applicable exception to sovereign immunity

and service of process), 1608. Because “Sudan concedes that it has been properly served,” (see

Pls.’ Opp’n to Def.’s Mot. to Dismiss at 32), this Court has personal jurisdiction over Sudan. (See

Report at 36); Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d

° For the reasons stated in the Report, Plaintiffs’ 28 U.S.C. § 1605A actions are timely as related actions

under § 1605A(b), as provided by § 1083(c)(3) of the 2008 NDAA. (See Report at 23-29.) The plain text

of § 1083(c)(3) allows Plaintiffs to commence related actions under § 1605A if there are still pending

claims, as here, “arising out of an act or incident [that] has been timely commenced under section 1605(a)(7)

of title 28.” (Contra Def.’s Objs. at 16-18.) ig

393, 399 (2d Cir. 2009) (no minimum contacts analysis under the Due Process Clause for personal

jurisdiction over foreign sovereigns).

IV. PLAINTIFFS HAVE STATED PLAUSIBLE CLAIMS TO SURVIVE SUDAN’S

MOTION TO DISMISS

Plaintiffs allege federal claims under 28 U.S.C. § 1605A(c) and (d), the ATA, the ATS,

and RICO. They also allege claims under international and state law. This Court adopts the Report

as to the survival of Plaintiffs’ federal § 1605A(c) and (d), civil RICO, and primary ATA claims,

as well as certain state tort claims. (See Report at 36.) This Court declines to adopt the Report’s

recommendation as to the ATS claims and secondary liability ATA claims, hereby dismissing

those claims for failure to state a claim. This Court also dismisses Plaintiffs’ international law

claims for failure to state a claim. This Court dismisses certain state law claims for assault and

battery on statute of limitations grounds and all state law claims for conspiracy, aiding and

abetting, and punitive damages because New York law does not recognize these causes of action.

Finally, this Court dismisses all state law claims for intentional infliction of emotional distress and

negligence because alternative causes of action exist for the intentional conduct alleged. (See id.

at 36-37.)

A. Some of Plaintiffs’ Federal Claims Under the FSIA Exceptions Survive

1. Plaintiffs Have Adequately Stated Claims Under 28 U.S.C. § 1605A(c) and (d)

The Report appropriately found that Plaintiffs’ claims under 28 U.S.C. § 1605A(c) and (d)

survive Defendant’s motion to dismiss. (See Report at 37-38.) Section 1605A(c) creates a private

right of action against designated state sponsors of terrorism for U.S. nationals, members of the

armed forces, government employees, or their legal representatives, while § 1605A(d) permits

additional actions for “reasonably foreseeable property loss.” 28 U.S.C. §§ 1605A(c)-(d). As the

Report found, Plaintiffs have established the prima facie elements of their § 1605A claims by

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pleading U.S. nationality or insurance payouts to U.S. national policyholders and the requisite

jurisdictional causation standard against Sudan. (See Report at 37-38.)

2. Plaintiffs Have Adequately Stated Primary Liability Claims Under the ATA

The separate FSIA exception of § 1605B allows for Plaintiffs’ primary liability ATA

claims stemming from direct Sudanese support for al Qaeda. The ATA provides a cause of action,

to include against a foreign state, see 28 U.S.C. § 1605B(c), for U.S. nationals injured in their

“nerson, property, or business” by an act of international terrorism, 18 U.S.C. § 2333(a). These

claims require (1) apredicate unlawful action, (2) the proper mental state, and (3) at least proximate

causation. (Report at 38 (citing Waldman v. Palestine Liberation Org., 835 F.3d 317, 335 (2d Cir.

2016)).)

Plaintiffs’ primary liability ATA allegations satisfy these three factors. Sudan’s alleged

predicate acts of “international terrorism,” as defined by 18 U.S.C. § 2331(1), include providing

material support to terrorists, id. § 2339A, and providing material support or resources to

designated foreign terrorist organizations, id. § 2339B. (Report at 38-40 (citing CAC { 248; also

citing Ashton Compl. J 139)); see also factual allegations supra Sections IIJ.B—C (detailing

extensive Sudanese direct material support to al Qaeda). Second, the scienter requirement for the

underlying actions requires a showing that the defendant “both knew that it was providing material

support to [a terrorist group] and knew that [the group] engaged in terrorist activity.” Weiss v.

Nat’l Westminster Bank PLC, 768 F.3d 202, 207 (2d Cir. 2014) (citing 18 U.S.C. § 2339B(a)(1)).

Magistrate Judge Netburn correctly determined that Sudan’s purported provision of aid to al Qaeda

and its awareness of al Qaeda’s terrorist activities was knowing and—even further—deliberate.

(Report at 41-42.) Plaintiffs have also satisfied the third prong of causation for an ATA claim

under § 1605B. See discussion supra Section III.B (proximate causation sufficiently pled).

Plaintiffs’ primary liability ATA claims therefore survive, as do the ATA claims of Federal

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Insurance Company and Continental Casualty Company corporate Plaintiffs under the law of the

case’s subrogation principles. (See Report at 52-53); In re Terrorist Attacks on Sept. 11, 2001,

No. 03-md-1570 (GBD) (FM), 2011 WL 6318975, at *2 (S.D.N.Y. Dec. 16, 2011) (Insurance

“Plaintiffs suffered injury to their ‘property or business’ entitling them to treble damages pursuant

to the ATA on their subrogation claims.”)

3. Plaintiffs Have Failed to State Secondary Liability Claims Under the ATA

As discussed in previous decisions in this multidistrict litigation, however, the ATA as

amended by JASTA does not permit secondary liability claims against foreign sovereigns. (See

Feb. 7, 2023 Mem. Decision and Order, ECF No. 8862, at 14-19; Apr. 17, 2023 Mem. Decision

and Order, ECF No. 9020, at 4-8.) The operative text of JASTA does not subject foreign

sovereigns to secondary liability under the ATA because Congress restricted liability to any

“person” as defined in 1 U.S.C § 1 (the “Dictionary Act’), rather than the broader definition of

“person” in the ATA’s “Definitions” section provided in 18 U.S.C. § 2331. Compare 18 U.S.C. §

2333(d)(1) (“In this subsection, the term ‘person’ has the meaning given the term in section 1 of

title 1.”), with id. § 2331(3) (“the term ‘person’ means any individual or entity capable of holding

a legal or beneficial interest in property”). That narrowed definition of “person” from the

Dictionary Act excludes foreign sovereigns from the aiding-and-abetting and conspiracy liability

subsection of § 2333(d)(2). (See Feb. 7, 2023 Mem. Decision and Order at 15-16.)

Cases on which Plaintiffs and the Report rely, such as Pfizer, Inc. v. Gov’t of India, 434

U.S. 308, 318 (1978) (finding foreign sovereigns are “persons” entitled to sue under the Sherman

Act), do not rest on the Dictionary Act’s definition of “person” that § 2333(d)(1) mandates. Nor

do they address the international comity concerns of haling foreign states into U.S. courts on

expansive secondary liability theories. Sudan has raised similar arguments in its briefing on their

Objections to the Report, (see Def.’s Opp’n to CAC Pls.’ Objs., ECF No. 8793, at 11-13; Def.’s

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Reply in Supp. of Objs., ECF No. 8808, at 15), as well as in its motion to dismiss before Magistrate

Judge Netburn, (see Def.’s Mem. of Law on Mot. to Dismiss, ECF No. 6575, at 33-35).

The Report is correct that “JASTA’s text explicitly contemplates suit against foreign

states” through the added FSIA exception of § 1605B. (Report at 43.) But the Report goes beyond

the operative text of JASTA in seeking to apply the entire statute to foreign states.'? JASTA is not

“exclusively concerned with foreign states,” (see id.), because the added FSIA exception of §

1605B constitutes only one section of the Act, while JASTA’s modifications to the ATA regarding

secondary liability in § 2333(d) inarguably apply to non-sovereign defendants. See, e.g., Linde v.

Arab Bank, PLC, 882 F.3d 314, 318-20 (2d Cir. 2018); Kaplan v. Lebanese Canadian Bank, SAL,

999 F.3d 842, 854—56 (2d Cir. 2021); Honickman v. BLOM Bank SAL, 6 F 4th 487, 495-97 (2d

Cir. 2021); Terrorist Attacks IV, 298 F. Supp. 3d at 642 n.6 (describing JASTA’s separate changes

to both the FSIA and ATA). Accordingly, this Court dismisses Plaintiffs’ secondary liability

claims under the ATA against Sudan for failure to state a claim."!

4, Plaintiffs Have Failed to State Claims Under the Alien Tort Statute

The ATS provides a federal court “original jurisdiction of any civil action by an alien for

a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C.

§ 1350; see also Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995). The Report found that

Plaintiffs had adequately stated claims under the ATS. (Report at 60-61.)'? However, the FSIA

10 The Report erroneously inserts “State” into the title of JASTA by referring to the statute as the “Justice

Against State Sponsors of Terrorism Act.” (Report at 2 (emphasis added).) The correct title is the Justice

Against Sponsors of Terrorism Act, Pub. L. No. 114-222, 130 Stat. 852 (2016).

"| Because the ATA does not now allow for secondary liability claims against Sudan, this Court declines to

adopt the related findings in the Report, (see Report at 42-44), or address either the timeliness or sufficiency

of the Plaintiffs’ aiding-and-abetting and conspiracy claims, (see id. at 44-52),

The Report also found that the ATS claims stemming from 9/11 “air piracy” would “firmly” survive

Justice Clarence Thomas’s more restrictive approach of recognizing only “the three historical torts” under

the ATS. (See Report at 60 n.16); Nestle USA, Inc. v. Doe, 141 8. Ct. 1931, 1938-40 (2021) (Thomas, J.,

22

provides “the sole basis for obtaining jurisdiction over a foreign state in federal court.” Amerada

Hess, 488 U.S. at 439; see also United States v. Assa Co. Ltd., 934 F.3d 185, 189 (2d Cir. 2019)

(“If the defendant is a foreign state, the lawsuit must go through the FSIA gateway.”). The FSIA

is so comprehensive that it was not necessary for Congress to “enact an express pro tanto repealer

of the Alien Tort Statute” in order to establish that only the FSIA, and not the ATS, allows for the

exercise of jurisdiction over foreign states. Amerada Hess, 488 U.S. at 437-39; see also Mobil

Cerro Negro, Lid. v. Bolivarian Republic of Venezuela, 863 F.3d 96, 115 (2d Cir. 2017) (“To the

extent the ATS ever provided a source of subject matter jurisdiction over foreign sovereigns, the

Amerada Hess Court found it could no longer confer that authority after the passage of the

FSIA ....”); Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005) (“[T]he Alien Tort Statute

cannot provide jurisdiction over foreign sovereigns... .”).

Given that the FSIA provides the exclusive means of obtaining jurisdiction over foreign

sovereign defendants, Plaintiffs’ ATS claims cannot proceed. The ATS is a purely jurisdictional

statute and “does not expressly provide any causes of action.” Licci by Licci v. Lebanese Canadian

Bank, SAL, 834 F.3d 201, 212 (2d Cir. 2016) (quoting Kiboel v. Royal Dutch Petroleum Co., 569

plurality) (restricting ATS causes of action to violation of safe conducts, infringement of the rights of

ambassadors, and piracy). Courts have differed as to whether “piracy” must be understood as limited to

maritime conduct beyond any nation’s territorial sea. Compare Taveras y. Taveraz, 477 F.3d 767, 772 n.2

(6th Cir. 2006) (“A fundamental element of the offense of piracy is that the acts of robbery or depredation

must have been committed upon the high seas.”), with United States v. Ali, 718 F.3d 929, 939 (D.C. Cir.

2013) (“international law permits prosecuting acts of aiding and abetting piracy committed while not on

the high seas”), and United States v. Shibin 722 F.3d 233, 241 (4th Cir. 2013) (finding that piracy can

merely “incite or intentionally facilitate acts committed against ships, persons, and property on the high

seas”). In contrast here, the 9/11 terrorists hijacked commercial planes in U.S. national airspace, not upon

or above the high seas beyond the jurisdiction of any coastal state. See 9/11 COMMISSION REPORT 32-33.

Aircraft hijacking has also been understood as distinct from piracy. See, e.g., Michael C. McClintock,

Skyjacking: Its Domestic Civil and Criminal Ramifications, 39 J. AIR L. & COM. 29, 32 (1973) (“[P]iracy

in the air is technically hijacking and not piracy.”). It is therefore unclear whether aircraft hijacking would

in fact fall “firmly within the bounds” of the narrower vision of the ATS articulated in Justice Thomas’s

Nestle plurality opinion. (Contra Report at 60 n.16.) Because the ATS does not provide an independent

cause of action, Plaintiffs’ ATS claims fail under the weight of the FSIA’s jurisdictional monopoly over

claims against foreign states, and this Court need not rule on the Report’s alternative “air piracy” reasoning.

23

U.S. 108, 115 (2013)). Plaintiffs’ asserted “violations of the law of nations” that would otherwise

proceed through the ATS’s jurisdictional grant are not embodied in any of the relevant exceptions

to the FSIA. Moreover, only the expropriation exception, 28 U.S.C. § 1605(a)(3), (h)(2), refers to

conduct that constitutes a “violation of international law.” See Amerada Hess, 488 U.S. at 435-

36 (citing the FSIA expropriation exception for “the plain implication that immunity is granted in

those cases involving alleged violations of international law that do not come within one of the

FSIA’s exceptions” (emphasis added)). Because claims against Sudan must proceed through a

FSIA exception and the ATS does not provide an independent cause of action to proceed through

any of the applicable FSIA terrorism exceptions here, this Court dismisses Plaintiffs’ ATS claims

for failure to state a claim.

5. Plaintiffs Have Adequately Stated Claims Under RICO

Plaintiffs allege facts that support a plausible inference of a potential “conscious

agreement” between Sudanese officials and al Qaeda “to commit two predicate acts in furtherance

of the common purpose” of a RICO enterprise against U.S. targets. Cf Terrorist Attacks I, 740

F. Supp. 2d at 515 (citing 18 U.S.C. § 1962(d)). Whether Sudan took part “in directing the affairs

of the al Qaeda enterprise,” Terrorist Attacks I, 740 F. Supp. 2d at 515, is a fact-bound

determination and plausible at this stage based on allegations that al-Bashir, al-Turabi, and other

Sudanese officials maintained regular, direct communications with senior al Qaeda operatives and

bolstered the organization’s development. See factual allegations supra Sections III.B—C. As the

Magistrate Judge properly found, Sudan does not present a fact-driven argument foreclosing

Plaintiffs’ RICO claims, unlike previous insufficient RICO claims against other defendants in

Terrorist Attacks II. (See Report at 61.) In conjunction with the FSIA terrorism exceptions to

Sudan’s sovereign immunity, Plaintiffs have sufficiently pled RICO claims against Sudan.

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B. Some of Plaintiffs’ State Law Claims Survive

I. FSIA Exceptions of $$ 16054 and 1605B Do Not Preempt State Law

Sudan unpersuasively argues that 28 U.S.C. §§ 1605A and 1605B preempt Plaintiffs’ state

law claims because the federal statutes are the exclusive source of relief against state sponsors of

terrorism. (See Def.’s Objs. at 22—23.) In particular, Sudan asserts that 28 U.S.C. § 1606 served

originally as a “gateway” for state law claims by subjecting foreign sovereigns to liability through

cases brought under § 1605, and Congress “closed” the gateway in the subsequent passage of 28

U.S.C. §§ 1605A and 1605B. (See Report at 53.) However, nothing in the text of § 1605A

“displace[d] a claimant’s ability to pursue claims under applicable state or foreign law upon the

waiver of sovereign immunity.” Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 572 (7th

Cir. 2012) (citation omitted). This Court joins other courts in rejecting Sudan’s “strained

‘gateway’ argument.” Owens, 864 F.3d at 809.

The preemption doctrine counsels further in favor of finding that neither §§ 1605A nor

1605B preempted state tort law. Courts expect to see a “clear and manifest purpose of Congress”

to find preemption. Rice vy. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Where Congress

has not explicitly preempted state law, a court may find that preemption is implied if (1) a pervasive

regulatory scheme leaves “no room for the States to supplement,” (2) regulation is in an area where

federal law predominates, or (3) a state scheme would frustrate the federal scheme. Jd. Sections

1605A and 1605B do not pervasively regulate the field of terrorism-related suits, in part because

§§ 1605A(c) and 1605B (through an ATA cause of action) do not provide a remedy for family

members of foreign nationals killed in U.S. terrorist attacks. In effect, Sudan urges this Court to

hold that a foreigner’s family lacks any legal relief in America if a state-sponsored terrorist flies a

plane into a New York City skyscraper, murdering that foreigner. (Cf Def.’s Objs. at 22—23.)

“State tort law fills this gap in the federal terrorism-liability scheme.” (Report at 54.) As to the

25

other Rice factors, tort law is an area in which state, and not federal, law historically predominates,

see, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996), and increasing the potential liability

of state sponsors of terrorism in no way “frustrates the federal scheme,” see Leibovitch, 697 F.3d

at 571 (goal of the FSIA terrorism exceptions is to “permit[] massive judgments of civil liability

against nations that sponsor terrorism”). Plaintiffs’ state law claims are neither explicitly nor

implicitly preempted.

2. Only Plaintiffs’ Assault, Battery, and Trespass Claims Are Viable State Law

Claims

Plaintiffs plead a variety of state law claims, to include assault, battery, trespass,

conspiracy, aiding and abetting, punitive damages, intentional infliction of emotional distress, and

claims sounding in negligence. (See Report at 53.) The parties’ briefing and the Report assume

New York law applies for the state law claims, in line with previous cases in this multidistrict

litigation. (See Report at 55 n.14.) This Court thus addresses the common law claims under New

York law. As Magistrate Judge Netbum found, “Sudan’s arguments on causation have been

denied in the context of the ATA and subject matter jurisdiction and are denied here [in the context

of the state law claims] for the same reasons.” (Report at 56.)

Plaintiffs have alleged the necessary intent for their intentional tort claims of assault,

battery, and trespass. The Report rightly finds that assault requires that the tortfeasor intend to put

“another person in fear of imminent harmful or offensive contact.” Green v. City of New York,

465 F.3d 65, 86 (2d Cir. 2006) (citing Charkhy v. Altman, 678 N.Y.S.2d 40, 41 (1st Dep’t 1998)).

Civil battery entails an intention to make “wrongful physical contact with another person without

consent.” Charkhy, 678 N.Y.S.2d at 41. Lastly, trespass requires intentionally invading another’s

property. Scribner v. Summers, 84 F.3d 554, 557 (2d Cir. 1996); (see also Report at 56-57 (same)).

For Sudan, its alleged “[c]oncerted action liability rests upon the principle that ‘[a]l] those who, in

26

pursuance of a common plan or design to commit a tortious act, actively take part in it... are

equally liable....’” Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 580 (1982) (quoting PROSSER,

TorTs § 46, at 292 (4th ed.)). Plaintiffs have adequately alleged knowing support of al Qaeda,

sufficient for the intentional concerted action required for their trespass, assault, and battery

claims. See, e.g., Scollo vy. Nunez, 874 N.Y.S.2d 380, 380 (2d Dep’t 2009) (“[T]here are triable

issues of fact as to whether the appellants acted tortiously pursuant to a tacit agreement to assault

or batter the plaintiffs ... .”); In re Terrorist Attacks on Sept. 11, 2001, 392 F. Supp. 2d 539, 566

(S.D.N.Y. 2005) (“[If] Plaintiffs plead that Defendants here acted in concert with the September

11 hijackers, they will have stated a claim for relief for trespass.”); (Report at 57 (same)).

Some of these intentional tort claims, however, must be dismissed on statute of limitations

grounds. The statute of limitations is one year for assault and battery and three years for trespass.

(Report at 57 (citing New York statutes and cases).) The Report thus appropriately dismissed the

assault and battery claims for all Plaintiffs who brought claims after September 11, 2002. (a. at

57-58 (finding Ashton and Burnett Plaintiffs’ assault and battery claims as timely filed).) As noted

in the Amended Report and uncontested by Sudan, all Plaintiffs’ trespass claims are timely because

they were filed before September 11, 2004. (See Am. Report at 2-3.)

Turning to the other state claims, this Court dismisses the common law claims for

conspiracy, aiding and abetting, and punitive damages because New York law does not recognize

these causes of action. Terrorist Attacks IT, 740 F. Supp. 2d at 514 n.6 (S.D.N.Y. 2010) (‘Since

no independent cause of action exists for punitive damages, conspiracy, or aiding and abetting,

those purported causes of action are dismissed.”).

Plaintiffs’ claims for intentional infliction of emotional distress and those sounding in

negligence must also be dismissed. Claims for intentional infliction of emotional distress are not

27

available because such claims are a last resort, and federal and state law provide alternative causes

of action. Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015) (“[A]n intentional infliction tort

may ‘be invoked only as a last resort,’. . . “to provide relief in those circumstances where traditional

theories of recovery do not... .’” (internal citations omitted)). For Plaintiffs’ negligence claims,

section 1605B(d) provides that “a foreign state shall not be subject to the jurisdiction of the courts

of the United States . . . on the basis of an omission or a tortious act or acts [of international

terrorism] that constitute mere negligence.” Moreover, Plaintiffs’ negligent hiring and supervision

claims fail because “Plaintiffs have plausibly alleged that it was Sudanese officials [deliberately]

carrying out government policy”—not their negligent acts—“that caused the” 9/11 Attacks. (See

Report at 59.) Moreover, Plaintiffs “do not plausibly allege that Sudanese employees acted outside

the scope of their employment when they executed that policy.” (Cd. (citing Terrorist Attacks I,

740 F. Supp. 2d at 514 n.6 (“Dismissal is also warranted with regard to the negligence claim”

because “|t]he moving defendants are alleged to have acted knowingly and intentionally in

providing material support to al Qaeda.’’)).)

Therefore, this Court dismisses Plaintiffs’ claims for conspiracy, aiding and abetting,

punitive damages, intentional infliction of emotional distress, and claims sounding in negligence.

All of Plaintiffs’ trespass claims and Ashton and Burnett Plaintiffs’ assault and battery claims

survive as sufficiently pled and timely filed. (See Report at 59; Am. Report at 2-3.)

C. Plaintiffs’ International Law Claims Are Dismissed

Finally, the Report correctly determined that Plaintiffs fail to assert viable claims for

“violations of international law.” (Report at 61-63 (quoting CAC § 333).) In Sosa v. Alvarez-

Machain, Justice Antonin Scalia wrote that “creating a federal command (federal common law)

out of ‘international norms,’ and then constructing a cause of action to enforce that command

through the purely jurisdictional grant of the ATS, is nonsense upon stilts.” 542 U.S. 692, 743

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(Scalia, J. concurring). Unlike in the context of the ATS, Plaintiffs’ claims of “violations of

international law” are untethered from even any alleged jurisdictional grant. “[A] decision to

create a private right of action is one better left to legislative judgment in the great majority of

cases.” Sosa, 542 U.S. at 727. Indeed, Congress has already created private rights of action to

address international terrorism supported by foreign states, namely through 28 U.S.C. § 1605A(c)

and § 1605B(c) with the ATA. “It would be inappropriate for courts to displace this considered

statutory and regulatory structure” by holding a foreign sovereign liable through a common law-

based approach of assessing “international law violations.” See Jesner vy. Arab Bank, PLC, 138 S.

Ct. 1386, 1405 (2018). This Court thus dismisses Plaintiffs’ international law claims for failure to

state a claim.

PLAINTIFFS’ AMENDED COMPLAINTS MOOTED PRIOR ENTRIES OF

DEFAULT AGAINST SUDAN, AND GOOD CAUSE EXISTS TO VACATE

THOSE CERTIFICATES

A. Prior Entries of Default Against Sudan Are Now Moot

Magistrate Judge Netburn correctly determined that the Plaintiffs’ amended complaints are

the operative “master complaints” against Sudan. (Report at 63.) In a multidistrict litigation, a

consolidated complaint may be either a “master complaint... which supersede[s] prior individual

pleadings,” or “a pleading with[out] legal effect [that is] only an administrative summary of the

claims brought by all the plaintiffs.” Gelboim v. Bank of Am. Corp., 574 U.S. 405, 413 n.3 (2015)

(internal citations omitted). To determine the status of a pleading, courts look to

(1) how the plaintiffs labeled the new complaint, (2) whether the plaintiffs served

the defendants with the new complaint instead of the original pleadings, (3) whether

key deadlines were set in relation to the new complaint, (4) whether the court

entertained motions to dismiss the consolidated complaint, and (5) whether the

parties and the court looked solely to the allegations in the consolidated complaint

when arguing and deciding such motions.

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Bell y, Publix Super Markets, Inc., 982 F.3d 468, 490 (7th Cir. 2020). Here, “the Court said that

the Ashton [C]omplaint and CAC were to be the operative pleadings,” setting deadlines for both

the “amended complaints” and Sudan’s instant consolidated motion to dismiss. (Report at 64.)

Sudan also consented to service of these amended complaints by electronic filing. Ud. at 65 n.17.)

Moreover, many of the causes of action and jurisdictional waivers at issue, such as 28 U.S.C. §

1605A, § 1605B, and JASTA, did not exist when Plaintiffs filed their prior complaints. (See id. at

64.) Although Plaintiffs stated that the complaints were “not intended to replace prior operative

pleadings,” (Report at 65 (citing CAC § 2; also citing Ashton Compl. at 2)), all other Bell factors

weigh in favor of the amended complaints operating as “master complaints” against Sudan.

Because Plaintiffs’ amended complaints are the operative complaints, they mooted the

Court’s prior entries of default against Sudan. (Report at 63.) “It is well established that an

amended complaint ordinarily supersedes the original and renders it of no legal effect.” □□□□□□

Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Thus, any entries of default predicated

on original complaints against Sudan have become moot. (Report at 65-66 (citing cases).)

Moreover, Plaintiffs did not object to the Report’s conclusion that the amended complaints have

become the operative complaints mooting these prior defaults. (See generally CAC Pls.’ Objs.)

Reviewing Magistrate Judge Netburn’s determination for clear error, this Court lacks any “firm

conviction that a mistake has been committed.” See Snow, 462 F.3d at 72 (citation omitted). The

amended complaints in the form of the CAC and Ashton Complaint therefore mooted the prior

defaults against Sudan.

B. Alternatively, Good Cause Exists to Vacate Default Certificates

Even if the amended complaints did not moot the entries of defaults, a “court may set aside

an entry of default for good cause... Fed. R. Civ. P. 55(c). This determination warrants a

‘lenient standard” based on whether (1) the default was willful, (2) setting it aside would prejudice

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the adversary, and (3) a meritorious defense is presented. Meehan v. Snow, 652 F.2d 274, 277 (2d

Cir. 1981). A defendant’s failure to meet one factor is not dispositive, and “when doubt exists as

to whether a default should be granted or vacated, the doubt should be resolved in favor of the

defaulting party.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Further, “default

judgments are disfavored, especially ... against foreign sovereigns.” First Fid. Bank, 877 F.2d at

196.

Under this lenient standard, Magistrate Judge Netburn rightly found good cause to set aside

the defaults. (Report at 67-70.) The first factor on willfulness weighs against Sudan, which was

grossly negligent if not willful in its defaults, because it was served with multiple complaints from

Plaintiffs between 2003 and 2013 but did not enter an appearance until February 2020. (/d. at 68.)

The other two factors, however, support vacating the defaults. Setting aside the defaults would

not prejudice Plaintiffs because Plaintiffs have not shown that such action would “result in the loss

of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and □

collusion.” Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (quoting 10 C. WRIGHT, A. MILLER,

& M. KANE, FED. PRAC. & PROC. CIv. § 2699, at 536-37 (4th ed. 1983)). Sudan also presents

meritorious defenses that exceed the low standard of “giv[ing] the factfinder some determination

to make.” Am. All. Ins. Co. v. Eagle Ins, Co., 92 F.3d 57, 61 (2d Cir, 1996) (citation omitted).

Indeed, some of Sudan’s defenses based on lack of subject-matter jurisdiction, the statute of

limitations, and failure to state a claim have prevailed. Magistrate Judge Netburn therefore rightly

determined that good cause exists to set aside the entries of default against Sudan for the Ashton,

Burnett, and Federal Insurance Company cases, even if those defaults had not been mooted by the

amended complaints. (Report at 70.)

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VI. CONCLUSION

This Court ADOPTS Magistrate Judge Netburn’s Report in part by denying Sudan’s

motion to dismiss, (ECF No. 6574), for lack of subject-matter jurisdiction and finding that this

Court has jurisdiction over the claims against Sudan. Plaintiffs have sufficiently pled their 28

U.S.C. § 1605A(c) and (d), ATA primary liability, and civil RICO claims. Plaintiffs have also

sufficiently pled state law trespass claims, and Ashton and Burnett Plaintiffs have sufficiently pled

state law assault and battery claims.

This Court also ADOPTS the Report by granting Sudan’s motion to dismiss for failure to

state a claim as to the (1) Plaintiffs’ state law claims for punitive damages, conspiracy, aiding and

abetting, intentional infliction of emotional distress, negligence, and assault and battery brought

after September 11, 2002; and (2) Plaintiffs’ international law claims. This Court declines to adopt

the Report regarding the Plaintiffs’ ATS claims and secondary liability ATA claims, hereby

granting Sudan’s motion to dismiss for failure to state a claim as to Plaintiffs’ ATS claims and

ATA aiding-and-abetting and conspiracy claims.

This Court directs the Clerk of Court to vacate the Certificates of Default at ECF Nos. 2511

and 2575 and the associated Certificate dated September 9, 2005 for Federal Insurance Company.

The Clerk of Court is directed to close the open motion at ECF No. 6574 accordingly.

Dated: August 10, 2023

New York, New York

SO ORDERED.

fig Bb Doiwl.

O B. DANIELS

ited States District Judge

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