The opinion of the court was delivered by: NINA GERSHON, District Judge
Plaintiffs in the above captioned suits are United States
citizens, or their estates, survivors, and heirs, who have been
victims of terrorist attacks in Israel since September 2000. The
sole defendant in all three cases, and in four additional suits
filed by separate groups of plaintiffs,*fn1 is a financial institution headquartered in Jordan with a federally
licensed and regulated branch office in New York. Plaintiffs
bring several claims under the civil remedy provision of the
Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333, and bring common
law claims for intentional infliction of emotional distress. The
Linde plaintiffs' motion for a preliminary injunction, which was
premised on the fifth claim for relief in the Linde First Amended
Complaint, was denied on November 29, 2004. See Linde v. Arab
Bank, PLC, 353 F.Supp.2d 327 (E.D.N.Y. 2004). Defendant now
brings motions to dismiss the complaints in these three suits
under Rule 12(b)(6) of the Federal Rules of Civil Procedure and
on forum non conveniens grounds. (The Linde plaintiffs and the
Litle plaintiffs have each filed a First Amended Complaint, while
the Coulter plaintiffs have filed only a complaint. For purposes
of this opinion, all three documents will be referred to simply
as "complaints.")
FACTUAL ALLEGATIONS AND CLAIMS
All three complaints contain nearly identical allegations
regarding Arab Bank's conduct and each posit the same theories of
culpability. The factual allegations concerning each plaintiff's
injuries are, of course, unique to each plaintiff. To the extent
these factual differences impact the legal analysis, they will be
explained separately below. The following is a summary of the
allegations common to all three complaints. The alleged facts are
assumed to be true for the purposes of defendant's motions to
dismiss.*fn2 Plaintiffs allege that, on September 29, 2000, following the
collapse of peace negotiations between the State of Israel and
the Palestinian Authority, Palestinian terrorist groups launched
what quickly became known in Arab parlance as the Al Aqsa
Intifada or Intifada Al Quds the "Second Intifada" in western
parlance. This Second Intifada was marked from the outset by
numerous acts of extreme violence, including multiple murders of
civilians by Palestinian terrorist groups. These terrorists
utilize suicide bombers as their preferred method of carrying out
such attacks. The suicide bombers are regarded as martyrs by the
terrorist groups and their sympathizers.*fn3 The objectives
of the Second Intifada include intimidating and coercing the
civilian population of Israel and attempting to influence the
policy of the Israeli government to withdraw from territory it
presently controls.
The complaints identify the Islamic Resistance Movement
("HAMAS"), the Palestinian Islamic Jihad ("PIJ"), and the Al Aqsa
Martyrs Brigade ("AAMB") as prominent terrorist organizations
operating in Palestinian controlled territory. Each of these
organizations has been designated as a Foreign Terrorist
Organization ("FTO") by the United States Secretary of State. The
complaints also identify several charities that plaintiffs allege
operate as front organizations for HAMAS, assisting it in
carrying out its terrorist activities. These include Al-Ansar
Charity, Ramalla Charitable Committee, Tulkarem Charitable
Committee, the Islamic Association (Gaza) a/k/a Al Jamay
Al-Islamiya, Al Mujama Al-Islami, Nablus Charitable Committee,
Jenin Charitable Committee, and Islamic Charity Society of Hebron. Plaintiffs
allege that these charitable organizations are in reality agents
of HAMAS. Although these organizations hold themselves out as
legitimate charities and collect money in the name of
humanitarian purposes, they in fact route large sums of money to
support the violent activities of HAMAS and other terrorist
organizations. These organizations thus serve as agents of HAMAS
and are able both to solicit and to launder money on HAMAS's
behalf. They raise money to support all areas of HAMAS's
operations. Several of the charities maintain bank accounts at
Arab Bank through which the Bank provides them with financial
services, such as receiving deposits and processing wire
transfers. The complaints allege that the Bank knows that these
organizations are fronts which support HAMAS's terrorist
activities, and that the Bank's continued provision of banking
services to these groups facilitates their illegal activities.
The complaints identify one Arab Bank account number that
plaintiffs allege belongs to HAMAS itself, and which HAMAS uses
to collect funds in support of violent activities.*fn4
On or about October 16, 2000, the Saudi Committee In Support of
the Intifada Al Quds ("Saudi Committee") was established as a
private charity registered with the Kingdom of Saudi Arabia.
According to the Saudi Committee, its purpose is to support the
"Intifada Al Quds" and "all suffering families the families of
the martyrs and the injured Palestinians and the disabled."
According to plaintiffs, the Saudi Committee constitutes a
professional fundraising apparatus intended to subsidize the
Palestinian terror campaign and to bankroll HAMAS and the PIJ.
The Saudi Committee furnishes what plaintiffs variously term a
"comprehensive insurance death benefit" or a "universal death and dismemberment plan,"
consisting of a payment of $5,316.06, to the families of
Palestinian terrorists killed in service of the Intifada. (At
oral argument, plaintiffs explained that this sum is the U.S.
Dollar equivalent of 20,000 Saudi Riyals.) Lesser benefits are
provided when the terrorist is either injured or captured by
Israeli security forces. Although plaintiffs sometimes refer to
these payments as "insurance" benefits, the scheme is not alleged
to be a traditional pooled risk insurance plan, where individuals
pay premiums against the risk of some future event. Rather,
plaintiffs are alleging that the plan is, in effect, a reward for
perpetrators of suicide attacks. Families claim this reward by
obtaining an official certification of their deceased relative's
status as a martyr, which includes an individualized martyr
identification number. In order to obtain this certificate,
families must provide the Saudi Committee with the martyr's name,
personal information, and details concerning the date and manner
of death.
Plaintiffs allege that the Bank is the exclusive administrator
of the death and dismemberment benefit plan. Once the Saudi
Committee prepares a list of eligible martyrs, the list is
provided to the Bank. Arab Bank, in consultation with the Saudi
Committee and local representatives of HAMAS, finalizes the
lists, maintains a database of persons eligible to receive
benefits under the death and dismemberment plan, and opens a
dollar account for each beneficiary. Families who choose to
collect the benefit must present to the Bank an official
certification from the Palestinian Authority that includes the
individualized identification number of the martyr. If the
documentation proves satisfactory, Arab Bank issues a receipt to
the designated recipient of the benefit. Plaintiffs allege that
these payments create an incentive to engage in terrorist acts by
rewarding all Palestinian terrorists, regardless of their
affiliation with a particular group.
The complaints detail the numerous terrorist attacks in which
plaintiffs themselves or their decedents were injured. For the sake of brevity, only one attack
from each complaint will be described. The Linde complaint
describes an attack on May 18, 2003. On that day, plaintiff
Steven Averbach, a citizen of the United States and of Israel,
was seated on a commuter bus heading toward Jerusalem when a man
dressed as a religious Jew boarded the bus and then detonated
explosives. Seven people were killed and twenty injured in the
attack, including plaintiff Averbach, who sustained severe damage
to his spinal cord when a ball bearing that had been packed in
the explosives lodged between his C3 and C4 vertebrae, rendering
him a quadriplegic. HAMAS claimed responsibility for the attack,
and the bomber was later identified by his family as Bassem Jamil
Tarkrouri.
The Litle complaint describes the bombing of Bus No. 2 in
Jerusalem on August 19, 2003, from which a number of plaintiffs
derive their injuries. HAMAS claimed responsibility for the
bombing, in which plaintiff Mendy Reinitz, a citizen of the
United States and of Israel, sustained shrapnel wounds in the
shoulder and back and underwent surgery. Although some shrapnel
was removed, some will remain in his body for the rest of his
life. Mendy's brother, Yissocher Dov Reinitz, and father,
Mordechai Reinitz, were also riding the bus that day; both were
killed in the attack. Other relatives are also plaintiffs.
The Coulter complaint describes the suicide bombing of a Sbarro
pizza restaurant on August 9, 2001, in Jerusalem. Fifteen people
were killed and approximately 130 injured in this attack, in
which a suicide bomber detonated a bomb packed with nails and
metal bolts. The claims of the Nachenberg, Finer, Green,
Greenbaum, and Danzig families, brought in the Coulter complaint,
stem from this attack. The bomber was identified as Izz Ad-Din
Shuhail Ahmad Al-Masri, a terrorist acting on behalf of HAMAS.
The Al-Masri family received two payments into an Arab Bank account following this act, one from the Saudi Committee,
totaling $5,316.16 (or 20,000 Saudi Riyals), and one from the
Al-Ansar charity, totaling $6000.
All three complaints describe a specific benefit transaction
for a suicide bomber named Dia A-Tawil. After perpetrating a
suicide bombing attack on behalf of HAMAS on March 27, 2001, he
was designated Palestinian Authority martyr number 449. His
father, Hussien Mohamed Favah Tawil, presented the martyr
certification to the Bank and received a confirmatory receipt
stating that the benefit was paid to his Arab Bank account in
Ramallah.
Plaintiffs also allege that funds raised by the Saudi Committee
in Saudi currency, and deposited in the Committee's Arab Bank
accounts, are then routed through the Bank's New York branch
office, where they are converted to U.S. dollars, since Saudi
currency cannot easily be converted into Israeli currency; the
funds are then transferred to Arab Bank branches located in the
West Bank in Israel and used to fund terrorist activities.
Based on these allegations, the Linde plaintiffs assert the
following claims: Count One alleges that Arab Bank aided and
abetted the murder, attempted murder, and serious bodily injury
of United States nationals, in violation of 18 U.S.C. § 2332(a),
(b), and (c), by providing substantial assistance to terrorists
through the administration of the universal death and
dismemberment plan for families of suicide bombers, and through
the provision of other financial services. Count One alleges that
Arab Bank "knew or recklessly disregarded" that it was providing
material support for acts of international terrorism, that the
charities were fronts that played a major role in raising funds
for HAMAS, and that the Bank's activities substantially assisted
dangerous criminal acts.
Count Two alleges that Arab Bank conspired to commit murder and
attempted murder, in violation of 18 U.S.C. § 2332(b), by
agreeing to "perform extraordinary banking and administrative services for the Saudi Committee, Hamas, the PIJ, and AAMB,"
including exclusive administration of the death and dismemberment
benefit plan, in order to "support terrorist activities pursuant
to a common scheme to encourage and incentivize acts of
terrorism."
Count Three alleges that Arab Bank provided material support to
terrorists, in violation of 18 U.S.C. § 2339A, by providing
"extraordinary financial and administrative services," including
exclusive administration of the death and dismemberment benefit
plan to the families of suicide bombers and other terrorists.
Count Four alleges that Arab Bank provided material support to
a designated foreign terrorist organization, in violation of
18 U.S.C. § 2339B, by knowingly transferring funds from and to
agents of HAMAS.*fn5 Plaintiffs further allege that, without
the Bank's assistance in this regard, it would have been
substantially more difficult to implement the death and
dismemberment benefit plan.
Count Five alleges that the Bank's failure to comply with
regulatory requirements to retain the assets of designated
foreign terrorist organizations and report them to the Secretary
of State, as required by 18 U.S.C. § 2339B(a)(2), itself
constitutes the provision of material support to a designated
FTO.
Count Six alleges that Arab Bank provided financial services to
HAMAS, the PIJ, AAMB, and the Saudi Committee by collecting
funds, with the knowledge that such funds have been and will be
used to facilitate acts intended to cause death or serious bodily
injury to civilians, such as plaintiffs. Plaintiffs contend that
these financial services constitute financing of terrorism in
violation of 18 U.S.C. § 2339C. Count Seven alleges that Arab Bank's provision of banking and
other services to HAMAS, the PIJ, the AAMB and other
international terrorists, including administering the death and
dismemberment benefit plan, was itself an act of international
terrorism as defined by the ATA, in that these actions were
"involved" in violent criminal acts that injured plaintiffs and
appeared to be intended to coerce or intimidate the people,
government policy, or government conduct of Israel. Although the
complaint does not cite a specific criminal provision identifying
a specific act of international terrorism defendant is alleged to
have committed or aided and abetted or conspired to commit, the
briefs make clear that the crimes are violations of the material
support and financing provisions, Sections 2339A, 2339B, and
2339C.
Finally, Count Eight alleges claims for intentional infliction
of emotional distress.
The legal claims of the Litle plaintiffs and the Coulter
plaintiffs are identical, except that the Litle plaintiffs omit
Count Five of the Linde complaint (which is based on defendant's
failure to comply with regulatory requirements), and the Coulter
complaint omits Count Eight of the Linde ...