Weiss v. Nat'l Westminster Bank PLCWeiss v. Nat'l Westminster Bank PLC
DORA L. IRIZARRY, Chief United States District Judge
BACKGROUND
The Plaintiffs first filed a complaint in Weiss v. National Westminster Bank PLC
Defendant first moved for summary judgment pursuant to
On January 12, 2015, in light of the decision of the United States Supreme Court in Daimler AG v. Bauman ,
On June 17, 2016, Plaintiffs amended their complaint, adding claims arising from three additional attacks, the Ben Yehuda Street Bombings on December 1, 2001, the Part Junction Bus #32A Bombing on June 18, 2002, and the March 7, 2002 suicide attack on Atzmona (collectively, the "SoL Attacks"). See , Amended Complaint, Weiss Dkt. Entry No. 345 and Amended Complaint, Applebaum , Dkt. Entry No. 218. On August 2, 2016, the Court granted Defendant permission to file a renewed motion for summary judgment with respect to the ATA elements that the Court did not reach in Weiss II , as well as Defendant's motion for summary judgment with respect to Plaintiffs' claims based on the SoL Attacks. On February 24, 2017, Defendant filed a renewed motion for summary judgment. See , Motion for Summary Judgment, Weiss Dkt. Entry No. 358, which Plaintiffs opposed, See , Memorandum in Opposition, Weiss Dkt. Entry No. 362. Defendant replied. Reply, Weiss Dkt. Entry No. 365. On September 30, 2017, the Court granted in part and denied in part Defendant's renewed motion for summary judgment. See , Weiss v. National Westminster Bank PLC ("Weiss IV "),
The Court denied Defendant's summary judgment motion to the extent that: (1) there are genuine issues of material fact as to whether Defendant proximately caused international terrorism under the ATA; (2) there is sufficient admissible evidence for a reasonable jury to conclude that the 13 Charities are alter egos of Hamas under Hamas' control; (3) Plaintiffs' expert Ronni Shaked may testify to put factual evidence into context to establish Hamas's responsibility for an attack, but not to establish the basic facts in the first instance; (4) Plaintiffs' witness Evan Kohlmann may testify as an expert about Hamas' background and use of propaganda, but his summaries of the attacks and recitation of the presented evidence, without using any expertise, is not admissible; (5) there is sufficient admissible evidence for a reasonable jury to conclude that Hamas committed sixteen of the eighteen attacks; (6) Israeli military court convictions are admissible; and (7) eyewitness accounts are admissible.
On March 14, 2018, the Court granted Defendant permission to file a second renewed motion for summary judgment to address the narrow issue of how the Second Circuit's recent decision in Linde v. Arab Bank, PLC ,
LEGAL STANDARD
I. Summary Judgment
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
II. Primary Liability Under the ATA
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, ortranscend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum ...
Plaintiffs bring their claims under
In Linde , the Second Circuit rejected the argument that providing material support to a known FTO in violation of
In Boim v. Holy Land Foundation for Relief and Development , the Seventh Circuit rejected the plaintiffs' arguments that the defendant's financial donations to Hamas and Hamas-affiliated charities constituted an act of international terrorism as a matter of law when the defendant knew that Hamas used such money to finance the killing of Israeli Jews (some of whom were American citizens).
III. Secondary Liability Under the ATA
Initially, the ATA did not provide a civil remedy against secondary actors who facilitated acts of international terrorism by others. See , Linde ,
"JASTA expressly states that such secondary liability claims are not temporally limited to terrorist acts occurring after that statute's enactment." Linde ,
In enacting JASTA, Congress instructed that the "proper legal framework for how [aiding and abetting] liability should function" under the ATA is the framework identified in Halberstam v. Welch ,
The Second Circuit has explained that, "[a]iding and abetting requires the secondary actor to be aware that, by assisting the principal, it is itself assuming a role in terrorist activities." Linde ,
DISCUSSION
I. Defendant's Primary Liability Under the ATA
Plaintiffs assert, and this Court concluded before the Second Circuit's decision in Linde , that a triable issue of material fact remains as to whether Defendant committed an act of international terrorism by facilitating Interpal's transfers of funds to 13 charities ("13 Charities"), which plaintiffs contend are alter egos of or controlled by Hamas, an FTO. See , Weiss IV ,
For purposes of its summary judgment motion and because the Second Circuit previously ruled in Plaintiffs' favor on the issue, See , Weiss II-A ,
A. Violent Acts or Acts Dangerous to Human Life
Defendant contends that no reasonable juror could find that Defendant's routine banking services to Interpal involved violent acts or acts dangerous to human life. See , Mot. at 9. Defendant argues that undisputed evidence demonstrates that, to Defendant's knowledge, Interpal was a charity "aiming to do good works in a deeply deprived and troubled region." Id. To support this contention, Defendant points to customer information forms and emails between Defendant's employees, internal meeting minutes, internal records, and Interpal's annual reports, all of which indicate that Interpal was a charitable organization. Id. at 9-11; See also , Defendant's
Plaintiffs concede that there is no evidence that any of Interpal's transfers to the 13 Charities processed by Defendant were identified as being for any specific violent or terroristic purpose. See , Plaintiffs' Response to Defendant's 2011
Citing to the experts reports by Levitt and Spitzen, Plaintiffs instead argue that the evidence demonstrates that the 13 Charities were controlled by Hamas founders and that the 13 Charities "were instrumental in organizing and distributing payments to families of suicide bombers and other terrorists." See , Mot. at 10 (citing Plaintiffs' Supplemental
Defendant relies on concessions made by Plaintiffs' own experts, Levitt and Spitzen, to counter the arguments made by Plaintiffs. See , Reply at 6. Specifically, Levitt does not opine that any funds transferred by Interpal through Defendant accounts were used to perpetrate the 15 attacks
Plaintiffs rely on the fact that the United States designated Interpal as a Specially Designated Global Terrorist ("SDGT") for providing support, including fundraising to Hamas, to support their contention that Defendant's services involved violent or dangerous acts. See , Opp. at 10 (citing Pls.' 56.1 Stmt. ¶ 7 and Schlanger Decl. Ex. 4). Defendant replies that Interpal's designation as an SDGT demonstrates, at best, a violation of
Finally, Plaintiffs maintain that the Union of Good, designated as an SDGT in 2008 as an organization created by Hamas leadership in late 2000 to transfer funds Hamas, was Defendant's customer. See , Opp. at 10, n.12 (citing Pls.' 56.1 Stmt ¶ 12 and Schlanger Decl. Ex. 9). Defendant's disputes this assertion. See , Reply at 7. Additionally, Defendant argues that, even if Union of Good were Defendant's customer, that evidence, at best, would show a violation of
On appeal from this Court's initial grant of summary judgment to Defendant, the Second Circuit held that Plaintiffs' allegations survive summary judgment as to whether Defendant had the requisite scienter under the material support statute,
Plaintiffs assert that the issue of whether Defendant's conduct satisfies the elements of
The Second Circuit remanded the Linde case for the jury to determine whether the
Without guidance from the Second Circuit as to the types of activities that would constitute violent acts or acts dangerous to human life, the Court looks to the plain language of the statute. Black's Law Dictionary offers three definitions of 'violent': (1) "[o]f, relating to, or characterized by strong physical force;" (2) "[r]esulting from extreme or intense force;" and (3) "[v]ehemently or passionately threatening." Violent , Black's Law Dictionary (10th ed. 2014). Black's Law Dictionary offers two definitions of 'dangerous': (1) "( [o]f a condition, situation, etc.) perilous; hazardous; unsafe;" and (2) "( [o]f a person, an object, etc.) likely to cause serious bodily harm." Dangerous,
While the evidence Plaintiffs rely upon is sufficient to demonstrate a triable issue of fact as to whether Defendant provided material support to a foreign terrorist organization in violation of
Plaintiffs contend that Defendant's banking services to Interpal and the 13 Charities contributed to terrorism merely because those organizations engage in terroristic
Thus, Defendant's motion for summary judgment as to the violent acts and acts dangerous to human life prong of
B. Terroristic Intent
The terrorist intent prong of
Plaintiffs rely on evidence tending to show that Defendant provided material support to a terrorist organization to argue that an issue of fact exists as to whether Defendant had the requisite terroristic intent under
In Linde the Second Circuit provided an example of an action that would constitute material support and satisfy the requirements for international terrorism as defined by
Most obviously, a person who voluntarily acts as a suicide bomber for Hamas in Israel can thereby provide material support to that terrorist organization while also committing an act of terrorism himself. The suicide bombing is unquestionably a violent act whose apparent intent is to intimidate civilians or influence government.
Accordingly, Defendant's summary judgment motion as to the terroristic intent prong of
II. Plaintiffs' Aiding and Abetting Claims
Although Judge Sifton dismissed Plaintiffs' aiding and abetting claims in 2006, Plaintiffs contend that they properly have asserted an aiding and abetting claim by including a claim pursuant to
A. The Joint Pretrial Order
In the proposed joint pretrial order, Plaintiffs allege that Defendant is liable under
(1) Hamas was responsible for the attacks that injured the Plaintiffs; (2) Defendant provided substantial assistance to Hamas for its terrorist activities, including these attacks, by transferring significant sums of money to organizations that it knew (or consciously avoided knowing) were controlled by Hamas; and (3) Defendant's acts were a substantial factor in causing the Plaintiffs' injuries and those injuries were a reasonably foreseeable result of the significant sums of money Defendant sent to Hamas.
Id. at 5 (footnote omitted). Plaintiffs concede that the Court dismissed Plaintiffs' common law aiding and abetting claim previously, but they allege that, because JASTA expressly is retroactive,
As a threshold matter, the Court must decide whether it will permit Plaintiffs to include an aiding and abetting claim under
The Court instead will consider whether it grants Plaintiffs leave to amend their complaint pursuant to
Here, a June 1, 2016 order set the deadline, June 17, 2016, for Plaintiffs to file the operative amended complaints. See , June 1, 2016 Order. Although Plaintiffs met that deadline by filing Amended Complaints on June 17, 2016, See , Amended Complaint, Weiss Dkt. Entry No. 345, and Amended Complaint, Applebaum , Dkt. Entry No. 218, Plaintiffs could not have included their JASTA claims in the amended complaints because Congress enacted JASTA over three months later on September 28, 2016. "A finding of good cause depends on the diligence of the moving party." Grochowski v. Phoenix Constr. ,
B. Summary Judgment on Plaintiffs'
Finally, Defendant maintains that, even if the Court were to permit Defendant to amend its complaint to include an aiding and abetting claim under JASTA, the amendment would be futile because Defendant would be entitled to summary judgment as to that claim. See , Opp. at 21-24. As a general matter, a Rule 12(b)(6) motion is the benchmark for determining whether amendment is futile. See , Lucente v. International Business Machines Corp. ,
Plaintiffs cannot demonstrate that Defendant had the requisite knowledge required by JASTA. As explained in Linde , "[a]iding an abetting requires the secondary actor to be 'aware' that, by assisting
Plaintiffs again rely on evidence that tends to support a finding that Defendant had the requisite scienter required for providing material support to a terrorist organization under
Plaintiffs' proposed JASTA aiding and abetting claim cannot survive summary judgment. Accordingly, such amendment would be futile and Plaintiffs' motion for leave to amend the complaint is denied with prejudice.
CONCLUSION
For the foregoing reasons, Defendant's summary judgment motion as to Plaintiffs' remaining claims of civil liability under the ATA is granted in its entirety. Plaintiffs' motion for leave to amend the complaint to add a claim under JASTA is denied. Accordingly, this action is dismissed.
SO ORDERED.
Notes
The Court assumes familiarity with the facts and circumstances underlying this action, which are summarized more fully in the Court's previous orders. See, e.g. , Weiss v. National Westminster Bank PLC ("Weiss II "),
By order dated December 27, 2007, Weiss and Applebaum were formally consolidated for pretrial proceedings. Citations to the "Weiss Docket" or "Weiss " are to Weiss v. National Westminster Bank PLC , 05-CV-4622. Citations to the "Applebaum Docket" or "Applebaum " are to Applebaum v. National Westminster Bank PLC , 07-CV-916. Where documents have been filed on both dockets, the Court cites to the Weiss Docket only, as the lead case.
Defendant refers to 15 attacks because, at the time of the experts' concessions, Plaintiffs' claims arose from 15 attacks between March 27, 2002 and September 24, 2004 that Plaintiffs allege were perpetrated by Hamas. See , Pls.' Resp. to 2011 56.1 Stmt. ¶ 241. After this Court's decision in Weiss IV , Plaintiffs' claims now arise out of 16 attacks. See , Weiss IV ,
The Expert Report of Dr. Matthew Levitt refers only to twelve of the 13 Charities. See , Mot. at 12, n.8.