UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
03 MDL 1570 (RCC)
ECF Case
This document relates to:
Kathleen Ashton, et al.
- against –
Al Qaida Islamic Army, et al.
03 CV 6977 (RCC)
Ernesto Barrera, et al.
- against –
Al Qaeda Islamic Army, et al.
03 CV 7036 (RCC)
Thomas Burnett, Sr., et al.
- against –
Al Baraka Investment & Development Corp., et al.,
03 CV 5738 (RCC)
Gladys H. Salvo, et al.
- against –
Al Qaeda Islamic Army, et al.
03 CV 5071 (RCC)
Walter Tremsky, et al.
- against –
Osama bin Laden, et al.
03 CV 7300(RCC)
PLAINTIFFS’ CONSOLIDATED MEMORANDUM OF LAW IN OPPOSITION TO MOTION
OF DEFENDANT TURKI AL-FAISAL BIN ABDULAZIZ AL-SAUD TO DISMISS AND TO
QUASH SERVICE
May 14, 2004
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................................................................................................... ii
INTRODUCTION .................................................................................................................................1
ARGUMENT ..................................................................................................................................2
I. THIS COURT HAS JURISDICTION OVER THE CLAIMS AGAINST TURKI IN HIS
OFFICIAL CAPACITY ......................................................................2
A. The “Tortious Act” Exception Is Not Limited to Traffic Accidents and
Applies Here ................................................................................................4
B. The “Discretionary Function” Clause Does Not Immunize Turki From the
Claims Alleged in These Lawsuits ..............................................................9
C. The September 11 Attacks Took Place in the United States .....................12
D. Section 1605(a)(7) Does Not Preclude Application of the “Tortious Act”
Exception ...................................................................................................15
II. TURKI IS NOT ENTITLED TO DIPLOMATIC IMMUNITY .............................................17
III. TURKI’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD BE
DENIED ........................................................................................................20
CONCLUSION ................................................................................................................................22
i
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TABLE OF AUTHORITIES
Page
Cases
Aidi v. Yaron, 672 F.Supp. 516 (D.D.C. 1987)............................................................................. 20
Aramony v. United Way of America, 254 F.3d 403 (2d Cir. 2001) ................................................ 5
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) ............................... 14
Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C. Cir. 1984) ....... 13, 14
Astarte Shipping Co. v. Allied Steel & Export Service, 767 F.2d 86 (5th Cir.1985) ...................... 5
Bergman v. De Sieyes, 170 F.2d 360 (2d Cir. 1948) .................................................................... 19
thBoim v. Quranic Literacy Institute, 291 F.3d 1000 (7 Cir. 2002) ................................................ 8
Burger King v. Rudzewicz, 471 U.S. 462 (1985) .......................................................................... 20
Burnett v. Al Baraka Investment & Development Corp., 292 F.Supp.2d 9 (D.D.C. Nov.
14, 2003) ............................................................................................................................... 5, 12
Calder v. Jones, 465 U.S. 783 (1984)........................................................................................... 21
Daliberti v. Iraq, 97 F.Supp.2d 38 (D.D.C. 2000)........................................................................ 21
Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301 (S.D.N.Y. 1996) .................................. 5, 6
Devilla v. Schriver, 245 F.3d 192 (2d Cir. 2001) ........................................................................... 5
Filus v. Lot Polish Airlines, 907 F.2d 1328 (2d Cir. 1990) .......................................................... 21
Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C. 1998)............................................... 16
Halberstam v. Welch, 705 F.2d 472 (D.C.Cir. 1983) ............................................................. 7, 8, 9
In re Grand Jury Proceedings (Kluger), 827 F.2d 868 (2d Cir. 1987)........................................... 5
In re Long Distance Telecom. Litig., 612 F.Supp. 892 (E.D.Mich.1985), rev'd in part on
other grounds, 831 F.2d 627 (6th Cir.1987)............................................................................... 6
In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671 (D.C.Cir.1981)....................................... 6
In re Sept. 11 Litig., 280 F.Supp.2d 279 (S.D.N.Y. 2003) ............................................................. 9
Lamarca v. United States, 31 F.Supp.2d 110 (E.D.N.Y. 1998)...................................................... 9
Letelier v. Republic of Chile, 488 F.Supp. 665 (D.DC. 1980).................................... 10, 11, 13, 16
Letelier v. Republic of Chile, 502 F.Supp. 259 (D.D.C. 1980)............................................... 11, 13
Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989) ........................................... 10, 11, 14, 16
Marine Midland Bank NA v. Miller, 664 F.2d 899 (2d Cir. 1981) ............................................... 21
Menowitz v. Brown, 991 F.2d 36 (2d Cir. 1993)............................................................................. 5
thOlsen v. Government of Mexico, 729 F.2d 641 (9 Cir. 1984)..................................................... 14
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)........................................................... 21
ii
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Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984) ........................................ 14
Price v. Socialist People’s Libyan Arab Jamahiriaya, 294 F.3d 82 (D.C. Cir. 2002) ................. 16
Pugh v. Socialist People's Libyan Arab Jamahiriya, 290 F.Supp.2d 54 (D.D.C. 2003) ............. 21
Rein v. Socialist People's Libyan Arab Jamahiriya, 995 F.Supp. 325 (E.D.N.Y. 1998),
(2d Cir. 1998)............................................................................................................................ 21
Rezzonico v. H&R Block, Inc., 182 F.3d 144 (2d Cir. 1999).......................................................... 5
Robinson v. Government of Malaysia, 269 F.3d 133 (2d Cir. 2001).......................................... 5, 6
Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521 (D.C. Cir. 2001)........ 21
Smith v. Islamic Emirate of Afghanistan, 262 F.Supp.2d 217 (S.D.N.Y. May 7, 2003) ................ 8
Stanford v. Kuwait Airways Corp., 89 F.3d 117 (2d Cir. 1996) ..................................................... 9
Strategem Devel. Corp. v. Heron Int’l N.V., 153 F.R.D. 535 (S.D.N.Y. 1994) ........................... 21
Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230 (2d Cir. 2003) ......................... 3
Statutes
22 U.S.C. § 254d..................................................................................................................... 18, 20
28 U.S.C. § 1330......................................................................................................................... 2, 3
28 U.S.C. § 1602........................................................................................................................... 14
28 U.S.C. § 1604............................................................................................................................. 3
28 U.S.C. § 1605(a) ............................................................................................................... passim
Rules
F.R.C.P. 54(b) ................................................................................................................................. 5
International Treaties and Conventions
Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, 1972 WL 122692 (U.S.
Treaty), T.I.A.S. No. 7502............................................................................................ 18, 19, 20
Legislative History
H.R. Rep. No. 94-1487 ................................................................................................................... 6
House Report No. 103-702 (August 16, 1994) ............................................................................. 17
Other Authorities
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, (2d ed. 1990) ............. 22
iii
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INTRODUCTION
In these consolidated actions,1 defendant Turki al-Faisal bin Abdulaziz al-Saud (“Turki”)
is alleged to have assisted Osama bin Laden in building and maintaining his terrorist
infrastructure in order to deflect the inevitable fruits of that terrorist activity to countries other
than Saudi Arabia, in particular the United States. Turki asks this Court to dismiss the
allegations against him on the ground that any assistance to al Qaeda (which, of course, he
denies) was provided in his capacity as an official in the government of Saudi Arabia and thus,
he contends, he cannot be held answerable in a U.S. court. Turki also claims that he has
insufficient contact with the United States to be held accountable in his personal capacity. But
Turki’s actions fall outside the permissible scope of any official discretion. Moreover, Turki’s
deliberate intent to deflect al Qaeda’s terrorist activities away from targets in Saudi Arabia
coupled with al Qaeda’s public announcements of its intentions to attack the United States
provide sufficient contact with the United States and with New York to subject Turki to
jurisdiction in this Court.
Turki has been identified in a sworn statement as “the facilitator of . . . money transfers in
support of the Taliban, al Qaeda, and international terrorism.” 4AC ¶¶ 259, 263; AC ¶ 3462 In
addition, the complaints allege that in 1998, Turki reached an agreement with Osama bin Laden
and his followers pursuant to which bin Laden agreed not to use his terrorist infrastructure to
subvert the royal family’s control of Saudi Arabia and Turki agreed that the Saudis would make
1 Turki has filed his motion to dismiss in six actions: Ashton v. Al Qaida Islamic Army, 02-CV-6977; Barrera v. Al
Qaeda Islamic Army, 03-CV-7036; Burnett v. Al Baraka Investment & Development Corp., 03-CV-5738 (“Burnett
SDNY”); Salvo v. Al Qaeda Islamic Army, 03-CV-5071; Tremsky v. Osama bin Laden, 02-CV-7300; and York v. Al
Baraka Investment & Development Corp., 03 CV 5493. The York action was voluntarily dismissed without
prejudice on March 16, 2004; the dismissal was so-ordered by this Court on March 22, 2004. Plaintiffs in the other
five actions respond to Turki’s motion in this memorandum of law.
2 Citations in the form “4AC ¶ __” are references to the Fourth Amended Complaint in the Ashton action.
Citations in the form “AC ¶ __” are references to the Amended Complaint in the Burnett S.D.N.Y. action (03 CV
5738).
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.no demands for the extradition of terrorist individuals, such as Osama bin Laden, and/or for the
closure of terrorist facilities and camps. 4AC ¶ 261; AC ¶ 348. The Complaint further alleges
that under Prince Turki’s direction, the Saudi intelligence service, of which he was director from
1977 through August, 2001, “served as facilitator of Osama bin Laden’s network of charities,
foundations, and other funding sources.” 4AC ¶ 263; AC ¶ 350. Thus, Turki is alleged to have
provided material support to Osama bin Laden directly and, further, is alleged to have done so
with knowledge of bin Laden’s terrorist activities and indeed with the specific purpose of
deflecting those activities to other countries and away from Saudi Arabia. In short, Turki gave
assistance to Osama bin Laden to carry out terrorist attacks on other countries, including the
United States, so that bin Laden would not attack Saudi Arabia. Official discretion does not
extend to this kind of heinous intentional tort and neither the Foreign Sovereign Immunities Act
nor diplomatic immunity shield Turki from answering the allegations against him in this Court.
Moreover, in deliberately deflecting al Qaeda’s terrorist activities away from Saudi
Arabia and towards bin Laden’s announced primary target, the United States, Turki purposefully
directed his activities at residents of the United States. No more is required to subject him to
personal jurisdiction here. Accordingly, as demonstrated below, Turki’s motion to dismiss for
lack of jurisdiction should be denied in its entirety.
ARGUMENT
I. THIS COURT HAS JURISDICTION OVER THE CLAIMS AGAINST TURKI IN
HIS OFFICIAL CAPACITY
The Foreign Sovereign Immunities Act (“FSIA”) confers subject matter and personal
jurisdiction on the district courts for claims against foreign states and their agencies or
instrumentalities unless the sovereign (or agency or instrumentality) has immunity for that claim.
28 U.S.C. § 1330. Turki contends that, to the extent that he is alleged to have acted in his
2
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official capacity, the FSIA provides him with immunity and thus, he argues, the claims in these
lawsuits fall outside the jurisdiction provided by § 1330. While it is true that the FSIA does,
generally speaking, provide immunity from suit for foreign officials acting in their official
capacity, see 28 U.S.C. § 1604, the cloak of immunity provided by the FSIA is not absolute.
Congress has carved out seven exceptions to immunity, specifically providing that a foreign state
“shall not be immune from the jurisdiction of courts of the United States or of the States in any
case” that falls within one of the seven enumerated categories. 28 U.S.C. § 1605(a). Although
plaintiffs have “the burden of going forward with evidence showing that, under exceptions to the
FSIA, immunity should not be granted . . . the ultimate burden of persuasion remains with the
alleged foreign sovereign” to show that the claimed exception does not apply and that immunity
should be granted. Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.
2003) (emphasis added).
In these cases, the claims against Turki fall within one of the FSIA exceptions, the so-
called “tortious act” exception, which lifts immunity for any case:
in which money damages are sought against a foreign state for personal injury or
death or damage to or loss of property, occurring in the United States and caused
by the tortious act or omission of that foreign state or of any official or employee
of that foreign state while acting within the scope of his office or employment . . .
28 U.S.C. § 1605(a)(5). Because plaintiffs’ claims arise from deaths and injuries that ocurred in
the September 11 terrorist attacks, they are seeking money damages for personal injury and/or
death in the United States based on tortious conduct. Their claims fall squarely within this
exception.
Turki makes four arguments why the “tortious act” exception should not be applied, but
as demonstrated below, none is correct.
3
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A. The “Tortious Act ” Exception Is Not Limited to
Traffic Accidents and Applies Here
Turki claims that the allegations in this case fall outside of Congress’s “primary purpose”
in enacting the “tortious act” exception, which Turki claims was “to treat foreign sovereigns like
other employers with respect to respondeat superior liability for injuries caused by their
employees acting within the scope of their employment.” See Turki Br. at 13. But, to the extent
that sovereign immunity is at issue, this lawsuit seeks to accomplish precisely that purpose – to
impose liability for injuries that Turki inflicted while acting within the scope of his employment.
That the tort in this case was horrific, rather than routine, should not insulate Turki from liability.
Quite the contrary. Suggesting that the “tortious act” exception is limited to traffic accidents,
Turki seeks to turn the “tortious act” exception into a “trivial torts” exception. But surely it
makes no sense to say that Congress intended to subject foreign sovereigns to liability for routine
acts of negligence, but not for horrendous, intentional torts.
Nor does case law support Turki’s effort to narrow the “tortious act” exception. In
Letelier v. Republic of Chile, 488 F.Supp. 665 (D.DC. 1980), a former Chilean diplomat was
assassinated in Washington, D.C. at the direction of the Chilean government. The court held that
the assassination fell within the “tortious act” exception and that, accordingly, Chile could not
claim sovereign immunity in the wrongful death suit that ensued. Indeed, the Letelier court
specifically rejected the narrow construction of the “tortious act” exception urged here by Turki,
holding that although the problem of automobile accidents may have brought the issue to
Congress’s attention, “the applicability of the Act was not so limited, for the committees made it
quite clear that the Act ‘is cast in general terms as applying to all tort actions for money
damages’ . . . .” 488 F.Supp. at 672. See also Liu v. Republic of China, 892 F.2d 1419 (9th Cir.
1989) (Taiwan not immune from suit in case arising from assassination in California).
4
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Turki also claims that the “tortious act” exception does not extend to what he
characterizes as plaintiffs’ “novel and attenuated” theory of causation. See Turki Br. at 14. But
the Second Circuit has plainly held that the scope of the “tortious act” exception is the same as
the scope of the substantive tort law under which the action is brought. See Robinson v.
Government of Malaysia, 269 F.3d 133, 143 (2d Cir. 2001).3 Indeed, the House Report on the
3 Turki relies on the contrary ruling of the D.C. district court in Burnett v. Al Baraka Investment & Development
Corp., 292 F.Supp.2d 9, 19-20 (D.D.C. Nov. 14, 2003), but Burnett is not controlling here. To the extent that the
D.C. court applied a narrow standard of causation to the FSIA than is applicable to the underlying tort, that decision
conflicts with the Second Circuit law as set forth in Robinson, 269 F.2d at 143.
Even in Burnett itself, the decision of the D.C. district court is not a final decision and need not be adhered
to. Rule 54(b) of the Federal Rules of Civil Procedure expressly provides that an order dismissing fewer than all of
the defendants from an action “is subject to revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.” F.R.C.P. 54(b) (emphasis added). See also Rezzonico v. H&R
Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999) (“rulings of the district court are subject to revision by that court ‘at
any time before the entry of final judgment’”). The only exception to this rule is where the court issuing the order
“direct[s] entry of a final judgment as to one or more but fewer than all of the . . . parties . . . .” F.R.C.P. 54(b). The
D.C. court neither issued such a directive with respect to the claims against Prince Turki nor made the findings
required to support one. No final judgment was entered. Accordingly, the order of the D.C. court was not final and
it is, accordingly, subject to revision at any time in this Court. Moreover, even the so-called “law of the case”
doctrine does not require this Court to adhere to the D.C. court’s ruling. As applicable to non-final rulings, the “law
of the case” doctrine is wholly discretionary; it “does not constitute a limitation on the court's power.” Devilla v.
Schriver, 245 F.3d 192, 197 (2d Cir. 2001); accord Aramony v. United Way of America, 254 F.3d 403, 410 (2d Cir.
2001).
Significantly, the Second Circuit has held that, following a transfer under 28 U.S.C. § 1407, “[t]he
transferee district court has the power and the obligation to modify or rescind any orders in effect in the transferred
case which it concludes are incorrect.’ In re Grand Jury Proceedings (Kluger), 827 F.2d 868, 871 n.3 (2d Cir. 1987)
(emphasis added); see also Astarte Shipping Co. v. Allied Steel & Export Service, 767 F.2d 86 (5th Cir.1985)
(same); Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301, 1308-1309 (S.D.N.Y. 1996) (re-considering ruling of
district court in Texas after transfer). Such reconsideration is especially necessary where the transferee court is
located in a different circuit than the transferor court. For the Second Circuit also has held that “a transferee federal
court should apply its interpretations of federal law, not the constructions of federal law of the transferor circuit.”
Menowitz v. Brown, 991 F.2d 36, 40-41 (2d Cir. 1993). That this Court is empowered to revisit the ruling in Burnett
ensures that consistent results can be reached and applied in all of the actions consolidated into this multidistrict
proceeding. See Menowitz, 991 F.2d at 41 (application by the transferee court of the law of its own circuit serves the
goals of administrative efficiency by permitting court to apply the same law to all of the various related cases).
Judge Sweet of this court applied these principles in Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301
(S.D.N.Y. 1996), a case with nearly identical circumstances. In Degulis, six actions were consolidated in the
Southern District of New York. One of those actions, the “Weiss action” had been commenced in the Southern
District of Texas. Prior to the transfer of the Weiss action to New York, the defendants in that action moved to
dismiss; the district court in Texas denied the motion. After the transfer was accomplished, defendants in four of the
other cases moved to dismiss. One of the Weiss defendants then sought reconsideration, pursuant to F.R.C.P. 54(b),
of the Texas court’s denial of its motion to dismiss. 928 F.Supp. at 1306. The court agreed to re-consider the ruling
of the Texas court. Judge Sweet held:
Regardless of the merits of the Texas Court's decision, here compelling reasons exist for
reconsideration. The peculiar circumstances of the transfer and the posture of the related actions
in this case argue strongly for it. Reconsideration following transfer by the JPML can ensure
consistent pretrial rulings. See In re Long Distance Telecom. Litig., 612 F.Supp. 892, 902-03
5
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legislation shows that the purpose of the “tortious act” exception was to permit a plaintiff “to
maintain an action against [a] foreign state to the extent otherwise provided by law.” H.R. Rep.
No. 94-1487, at 21, 1976 U.S.C.C.A.N. at 6620 (emphasis added). For that reason, the Second
Circuit in Robinson held that a plaintiff is required to meet the same standard to fall within the
“tortious act” exception as would be required to prevail on the merits. The FSIA does not
purport to change the substantive law of torts, but only to lift immunity under certain
circumstances for those acts that are considered “tortious” under governing law. Thus, the
complaints fall within the scope of the “tortious act” exception to the extent that plaintiffs have
stated a claim against Turki for the torts in question. If Turki can be held liable under the law for
these torts, then his acts fall within the “tortious act” exception.
In these cases, plaintiffs have adequately pleaded the causal connection between Turki
and the murderous attacks that took place on September 11, 2001 such that Turki can be held
legally responsible for the deaths and injuries that occurred. Plaintiffs allege that Turki
proximately caused the deaths and injuries of September 11 because he knowingly aided and
abetted al Qaeda in carrying them out by facilitating funding for al Qaeda and by making an
explicit arrangement with bin Laden whereby Saudi Arabia would give bin Laden a free hand to
operate its terrorist training camps so long as bin Laden directed the resulting terrorist activities
outside Saudi Arabia.
(E.D.Mich.1985), rev'd in part on other grounds, 831 F.2d 627 (6th Cir.1987). Moreover,
transfer of an action by the JPML can constitute, as here, the type of ‘significant’ and
‘fundamental’ change warranting reconsideration of the order by the transferee court. Id. at 903.
Here, the Court has before it motions to dismiss in four of the other related actions, which involve
in large part the same facts and legal issues. To achieve consistent rulings on the motions to
dismiss currently pending before the Court in all of the Blech Securities matters, it is appropriate,
regardless of the merits of the Texas Court's order, to readdress the TBC Defendants' motion to
dismiss in Weiss. See In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 678 (D.C.Cir.1981)
("Proper coordination of complex litigation may be frustrated if other courts do not follow the lead
of the transferee court.").
Degulis, 928 F.Supp. at 1309. Similarly, this Court can reconsider the D.C. Circuit’s ruling that Turki is entitled to
sovereign immunity in order to harmonize the result in Burnett and the cases that are the subject of this motion.
6
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The doctrine of aiding and abetting does not require that plaintiffs plead a direct link
between Turki’s conduct and the specific attacks of September 11. In Halberstam v. Welch, 705
F.2d 472 (D.C.Cir. 1983), the court explained the three requisites for holding a defendant liable
for aiding and abetting: “(1) the party whom the defendant aids must perform a wrongful act that
causes an injury; (2) the defendant must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides the assistance; (3) the defendant must
knowingly and substantially assist the principal violation.” In applying these elements to the
facts before it, the Halberstam court held that the defendant Hamilton could be liable for aiding
and abetting her co-defendant Welch in the murder of the plaintiff’s husband during the course
of a burglary. Hamilton was not present at the burglary and claimed not to have known that
Welch was a burglar at all. Finding that Hamilton had assisted Welch for years in disposing of
large quantities of jewelry and precious metals, the Court held:
It was not necessary that Hamilton knew specifically that Welch was committing
burglaries. Rather, when she assisted him, it was enough that she knew he was
involved in some type of personal property crime at night--whether as a fence,
burglar, or armed robber made no difference--because violence and killing is a
foreseeable risk in any of these enterprises.
Halberstam, 705 F.2d at 489 (emphasis added). Thus, the Court reasoned, Hamilton was liable
not only for the burglaries – whether she knew about them or not – but also for the murder that
Welch committed during the course of one of them. Id.4
4 It is important to emphasize that in Halberstam, the court found that Hamilton “knew” that Welch was involved in
personal property crimes – and thus could be held liable for the murder that Welch committed during one of his
burglaries – without any direct evidence of that knowledge. 705 F.2d at 486-87. As noted above, Hamilton denied
knowing that Welch was engaged in criminal activities. But the court was able to infer that Hamilton must have
known because she carefully logged all of Welch’s sales of jewelry and precious metals but had no records of any
purchases, because of the extravagant lifestyle that she enjoyed as a result of Welch’s crimes, and because of
Welch’s mysterious evening absences over the course of their relationship. The court applied common sense to
determine that a person in Hamilton’s position must have known that Welch was committing crimes and the D.C.
Circuit upheld liability based on that inferred knowledge. 705 F.2d at 486-87.
7
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In Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C. 1998), the court applied the
same standard used in Halberstam, holding: “[A] plaintiff need not establish that the material
support or resources provided by a foreign state for a terrorist act contributed directly to the act
from which his claim arises . . . Sponsorship of a terrorist group which causes the personal injury
or death of a United States national alone is sufficient . . . .” 999 F. Supp. at 18. More recently,
and more pertinent to the facts of this case, in Smith v. Islamic Emirate of Afghanistan, 262
F.Supp.2d 217, 232 (S.D.N.Y. 2003), the court granted a default judgment to plaintiffs against
Iraq for injuries arising out of the September 11 attacks after plaintiffs provided “a sufficient
basis for a reasonable jury to draw inferences which could lead to the conclusion that Iraq
provided material support to al Qaeda and that it did so with knowledge and intent to further al
Qaeda’s criminal acts.” See also Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1023 (7th
Cir. 2002) (plaintiffs need show only that defendants knew of the terrorist organization’s illegal
activities, that they desired to help those activities, and they engaged in some act of helping the
illegal activities).
Under Boim, Halberstam, Flatow, and Smith plaintiffs need not allege nor prove that
Turki participated in the planning or carrying out of the September 11 attacks or even that the
assistance he provided was used specifically to assist in those attacks. See Boim, 291 F.3d 1000;
Halberstam, 705 F.2d 472; Smith, 262 F.Supp.2d 217; Flatow, 999 F.Supp. 1. Substituting the
situation of this case into the framework of Halberstam, and using that court’s own language, it
is not necessary that Turki knew specifically that al Qaeda was going to commit the atrocities of
September 11. Rather, it is enough that, when he provided assistance to al Qaeda, he knew that
8
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al Qaeda was involved in terrorist activity, because the attacks of September 11 were a
foreseeable risk of that terrorist activity. See Halberstam, 705 F.2d at 489. 5
Here, there is no doubt that Turki knew that bin Laden and al Qaeda were plotting
terrorist acts. Turki admits as much when he contends that he went to Afghanistan in order to
persuade the Taliban to turn bin Laden over to Saudi Arabia. Moreover, plaintiffs allege that the
specific purpose of Turki’s assistance to al Qaeda was to deflect those terrorist acts away from
Saudi Arabia. Nor could there have been any doubt about where al Qaeda would strike instead:
bin Laden repeatedly declared “war” on the United States an announced that the United States
was his intended target. See, e.g., 4AC ¶ 120; AC at p. 318; see also Declaration of Andrea
Bierstein in Opposition to Motion to Dismiss of Sultan bin Abdulaziz al-Saud & exhibits thereto.
The September 11 attacks, thus, were the plainly foreseeable result of any assistance that Turki
provided to al Qaeda and Turki can thus be held liable for his role in them.6
Because Turki’s role in the September 11 attacks is encompassed within traditional tort
doctrines of “aiding and abetting” and causation, it is also encompassed in the “tortious act”
exception to the FSIA.
B. The “Discretionary Function ” Clause Does Not Immunize
Turki From the Claims Alleged in These Lawsuits
Turki also contends that his acts fall within the “discretionary function” exclusion of
§ 1605(a)(5) (A). But courts have refused to recognize a foreign official’s “discretion” to violate
international law or commit crimes against humanity. Liu v. Republic of China, 892 F.2d 1419
5 That terrorist attacks, including those of September 11, are a foreseeable risk of terrorist activity is nearly a
tautology that requires little elaboration, especially in light of the D.C. Circuit’s ruling in Halberstam that “violence
and killing is a foreseeable risk” of criminal enterprises involving property crimes. Halberstam, 705 F.2d at 489.
6 The result is the same under general tort principles of causation. See, e.g., Stanford v. Kuwait Airways Corp., 89
F.3d 117, 127 (2d Cir. 1996); In re Sept. 11 Litig., 280 F.Supp.2d 279, 309 (S.D.N.Y. 2003); Lamarca v. United
States, 31 F.Supp.2d 110, 127 (E.D.N.Y. 1998). See also Plaintiffs’ Memorandum of Law in Opposition to Prince
Mohammed al-Faisal al-Saud’s Motion to Dismiss.
9
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(9th Cir. 1989) ); Letelier v. Republic of Chile, 488 F.Supp. 665 (D.DC. 1980). This Court should
do the same.
The Letelier case grew out of the assassination of former Chilean ambassador and foreign
minister Orlando Letelier. The assassination took place in Washington, D.C. by means of a car
bomb that was constructed, planted and detonated by a group of individuals in the United States.
The Letelier plaintiffs alleged that the individuals had acted “in concert and purportedly at the
direction and with the aid of” the Republic of Chile and its intelligence organ the Centro
Nacional de Intelligencia. 488 F.Supp. at 665. The court held that Chile was not immune from
suit because plaintiffs’ claims fit within the “tortious act” exception. In determining that the
“discretionary function” clause did not provide Chile with immunity, the court in Letelier
explained:
Whatever policy options may exist for a foreign country, it has no “discretion” to
perpetrate conduct designed to result in the assassination of an individual or
individuals, action that is clearly contrary to the precepts of humanity as
recognized in both national and international law. Accordingly there would be no
“discretion” within the meaning of section 1605(a)(5)(A) to order or to aid in an
assassination and were it to be demonstrated that a foreign state has undertaken
any such act in this country, that foreign state could not be accorded sovereign
immunity under subsection (A) for any tort claims resulting from its conduct.
488 F.Supp. at 673 (citations omitted).
Similarly, in Liu, the director of the Taiwanese Defense Intelligence Bureau was accused
of arranging the murder of a Taiwanese expatriate living in the United States. The Ninth Circuit
found that it had jurisdiction over the Republic of China under the “tortious act” exception to the
FSIA and further found that the murder did not fall within the “discretionary exception” clause,
because the Taiwanese official had no discretion to carry out an assassination in the United
States. Liu, 892 F.2d at 1431.
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Just as a foreign sovereign has no discretion to plan and direct the assassination of an
individual, so too a foreign sovereign and its agents or instrumentalities have no discretion to
perpetrate conduct designed to result in terrorist attacks killing thousands of people. If, as
alleged in the Complaint, that is what this defendant did, the FSIA does not cloak him with
immunity.
Turki claims that Letelier and Liu are distinguishable because the assassins in those cases
were, according to him, “agents of the foreign government,” while the September 11 hijackers
were not agents of the Saudi government or of Turki. See Turki Br. at 15-16. But this argument
is entirely conclusory. In Liu, plaintiffs’ decedent was assassinated in California by two men,
Wu and Tung, who were recruited in the United States by a third man, Chen Chi-Li, who was
acting on instructions from Admiral Wong, the Director of the Taiwanese Defense Intelligence
Bureau. Admiral Wong was acting contrary to Taiwanese law in instigating this assassination.
Wu and Tang, members of the Chinese Bamboo Union Gang of criminals, were no more
connected to the Taiwanese government than the September 11 hijackers were to the Saudi
government. They were “agents” of the government only in the sense that the Ninth Circuit held
that Wong and the government of Taiwan could be held legally responsible for the assassination
and that the “tortious act” exception lifted any immunity they otherwise would have had.
Similarly, as described in a later decision in the Letelier litigation, Orlando Letelier was
murdered by members of an anti-Castro group of Cuban exiles, recruited in New Jersey by an
American, Robert Townley, a civilian contract employee of the Chilean intelligence service. See
Letelier v. Republic of Chile, 502 F.Supp. 259 (D.D.C. 1980). Once again, the actual murderers
were several steps removed from the sovereign entity whose immunity was abrogated by the
“tortious act” exception. And in both cases, the court refused to apply the “discretionary
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function” clause to immunize the instigators of these murders, removed though they were from
the actual commission of the crimes.
C. The September 11 Attacks Took Place in the United
States
Turki also claims that the “tortious act” exception is inapplicable because not all of the
planning and funding for the September 11 attacks took place in the United States. In its
November, 2003 decision, the D.C. district court held that plaintiffs here are seeking redress for
deaths and injuries that “occurred in the United States” within the meaning of § 1605(a)(5).
Burnett, 292 F.Supp.2d at 19 n.4. Although previous decisions in this case are not binding in this
Court, see infra Point I.A, this particular decision of the D.C. district court was plainly correct
and should be followed. There is no doubt that the September 11 attacks took place in their
entirety with the United States. The terrorists boarded the aircraft at U.S. airports. The airplanes
were hijacked in U.S. airspace. The planes were turned into bombs and deliberately crashed into
buildings in the United States or, in the case of the Flight 93, accidentally crashed in
Pennsylvania. The FSIA defines “United States” as including “all territory and waters,
continental and insular, subject to the jurisdiction of the United States.” 28 U.S.C. § 1603(c).
There can be no question that the September 11 attacks took place here.
Turki, however, focuses not on the September 11 attacks themselves, but on his alleged
role part in them. Thus, he alleges that none of his acts in support of al Qaeda and terrorism
occurred in the United States. In doing so, Turki loses sight of the nature of the allegations
against it. He is alleged to have aided and abetted or conspired with the terrorists who carried
out the attacks. Because the underlying tort for which plaintiffs seek to hold Turki responsible
occurred in the United States, there is no geographical barrier to the use of § 1605(a)(5) to obtain
jurisdiction in this case.
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Turkic claims, however, that the “entire tort,” including the acts of all the co-conspirators
or aiders and abettors must occur in the United States for the “tortious act” exception to apply.
But the only two cases with facts remotely similar to this case -- Letelier and Liu -- demonstrate
otherwise. In Letelier, the murder itself took place in Washington, D.C., but the plot to
assassinate Orlando Letelier was begun in Chile, where Robert Townley was recruited to go to
the United States and carry out the murder. See Letelier II, 502 F.Supp. 259. Similarly, in Liu,
all of the recruitment and training were conducted in Taiwan. The assassins then traveled to
California and carried out the murder there. In both cases, the court applied the “tortious act”
exception to lift the immunity of the sovereign alleged to be responsible.
Letelier and Liu are on all fours with this case. In those cases, as here, the acts of
violence resulting in the plaintiffs’ injury were carried out in the United States. In Letelier and in
Liu, as in this case, the direct perpetrators, private individuals, acted in this country. In Letelier
and in Liu, as here, a foreign sovereign or its instrumentality was alleged to be vicariously
responsible, even though the foreign sovereign or instrumentality had not performed any act in
the United States to further the assassination. This case is virtually identical to Letelier and Liu
with respect to this issue. Just as the defendants there were found to lack immunity under the
“tortious act” exception, here, too, the tort took place sufficiently within the United States to
bring this case within that exception and strip NCB of any immunity it might have for its role in
this tort.
NCB claims that Letelier was superseded in Asociacion de Reclamantes v. United
Mexican States, 735 F.2d 1517 (D.C. Cir. 1984), but that is not so. Reclamantes simply does not
address the issue before this Court. In the Reclamantes case, the tort that plaintiffs alleged was
unrelated to the acts that took place in the United States. The government of Mexico had entered
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into a settlement with the United States releasing plaintiffs’ claims against the U.S. and
undertaking to compensate plaintiffs instead. But that was not the act that gave rise to plaintiffs’
claim, which was that Mexico had subsequently reneged on its promise to compensate the
plaintiffs. 735 F.2d at 1524-25. This act plainly occurred in Mexico. The Reclamantes court had
no occasion to consider the applicability of the “tortious act” exception where the wrongful act
that caused the injury plainly took place in the United States, but ancillary acts assisting it took
place elsewhere. Nor could Reclamantes, decided in 1984, have superseded the Ninth Circuit’s
decision in Liu, which was decided in 1989.
Moreover, if Turki’s theory were correct and jurisdiction existed only where every single
act in furtherance of the tort took place here, foreign governments could engage in assassinations
and other crimes in the United States with impunity, simply by ensuring that at least one act in
furtherance of the crime took place elsewhere. That is surely not what Congress intended when
it enacted the FSIA to “serve the interests of justice and . . . protect the rights of both foreign
states and litigants in United States courts.” 28 U.S.C. § 1602; see Olsen v. Government of
Mexico, 729 F.2d 641, 646 (9th Cir. 1984). 7
7 The actual language of the “tortious act” exception also supports plaintiffs’ position. As noted above, the statute
abrogates sovereign immunity for claims “in which money damages are sought against a foreign state for personal
injury or death or damage to or loss of property, occurring in the United States.” 28 U.S.C. § 1605(a)(5). The plain
meaning of these words is that only the “injury or death,” not the “tortious act or omission” that caused it, need
occur in the United States. Nonetheless, courts have been reluctant to construe the statute so broadly, most likely
because of the amorphous nature of many injuries that cannot be said to “occur” in any particular locus. See, e.g.,
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (economic loss from sinking of ship off
Argentine coast felt in United States where contractual payments were due); Persinger v. Islamic Republic of Iran,
729 F.2d 835 (D.C. Cir. 1984) (emotional distress resulting from hostage-taking in Iran felt in United States). In this
case, however, there is nothing remotely amorphous about plaintiffs’ injuries or where they occurred. Because
plaintiffs are injuries are, sadly, so concrete, there can be no dispute about where they occurred and thus, there is no
reason to read the FSIA to mean anything other than what it says. Moreover, and tragically, all too many of the
claims in this case arise not from “personal injury” but rather from “death . . . occurring in the United States” 28
U.S.C. § 1605(a)(5). The place of death is too concrete and fixed to introduce any uncertainty into this phrase.
There can be no question that the deaths in this case plainly took place in the United States and defendant cites no
case that holds, or even suggests, that under those circumstances, any more is required.
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D. Section 1605(a)(7) Does Not Preclude Application of the
“ Tortious Act ” Exception
Finally, Turki claims that plaintiffs must obtain jurisdiction over him, if at all, under the
“state-sponsored terrorism” exception to the FSIA, 28 U.S.C. § 1605(a)(7) (which all parties
agree is inapplicable to the claims against this defendant). See Turki Br. at 12-13. This
argument is nonsense. Nothing in the language or history of § 1605(a)(7) precludes the Court
from hearing a claim against a foreign sovereign for an act of terrorism under any of the other
exceptions to the FSIA set forth in other paragraphs of § 1605, so long as the requirements of
that other exception are met. Indeed, in those instances where Congress intended to preclude
overlapping interpretations of the various exceptions, it specifically said so. Thus, the “tortious
act” exception can only be used in cases “not otherwise encompassed in paragraph (2)”;
similarly, the “state-sponsored terrorism” terrorism exception only applies to cases “not
otherwise covered by paragraph (2). 28 U.S.C. §§ 1605(a)(5), (a)(7). If Congress had intended
to limit the applicability of § 1605(a)(5) to cases that did not involve terrorism, it would have
said so.
Nor does plaintiffs’ reliance on the “tortious act” exception represent some kind of “end-
run” around the limitations of § 1605(a)(7) or the policies that underlie them. Each of the
exceptions to sovereign immunity in § 1605 provides a separate and independent basis of
jurisdiction over a foreign sovereign. Use of the “tortious act” exception here in no way
undermines the policies of the “state sponsored terrorism” exception because the two exceptions
address entirely different circumstances. Section 1605(a)(5) provides jurisdiction over all non-
commercial torts, including acts of terrorism, that take place in the United States, while
§ 1605(a)(7) provides jurisdiction for acts that take place abroad, but is limited to acts of
terrorism committed by designated state sponsors of terrorism.
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This was the precise holding of the court in Flatow v. Islamic Republic of Iran, 999
F.Supp. 1 (D.D.C. 1998). In that case, the court considered the extraterritorial application of
§ 1605(a)(7) to determine whether the then-recently enacted state-sponsored terrorism exception
extended to acts of terrorism that occurred outside the United States. Citing Letelier, 488
F.Supp. 665 and Liu, 892 F.2d 1419, the court reasoned: “As 28 U.S.C. § 1605(a)(5) already
provides jurisdiction over state-sponsored terrorist acts in the United States, the state-sponsored
terrorism exception would be redundant if it were held to apply only within the United States.”
Flatow, 999 F.Supp. at 15 (emphasis added; citations omitted). See also Price v. Socialist
People’s Libyan Arab Jamahiriaya, 294 F.3d 82, 88 (D.C. Cir. 2002) (“Under the original FSIA,
therefore, terrorism, torture, and hostage-taking committed abroad were immunized forms of
state activity.”). (Emphasis added.)
Because the terrorism exception in § 1605(a)(7) sweeps so much more broadly than does
the “tortious act” exception, encompassing conduct that takes place entirely outside the United
States, it is understandable that Congress limited the circumstances in which this exception
applies to suits involving terrorist acts and designated state sponsors of terrorism. But there is no
reason similarly to limit the liability of a foreign sovereign when the bomb explodes in the
United States, rather than overseas, and nothing in the FSIA suggests that any such limitation
was intended. Moreover, the considerations of foreign relations and diplomatic policy that may
be implicated when Americans are injured in terrorist conflicts abroad have much less place, if
any, in the context of terrorist attacks at home. The structure of the FSIA recognizes this
distinction by lifting the immunity of a foreign sovereign more freely when Americans are
injured at home than when they are injured abroad. Compare 28 U.S.C. § 1605(a)(5), 28 U.S.C.
§ 1605(a)(7). Indeed, it is notable that, in striking the balance of lifting immunity for acts that
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take place entirely outside the United States, but only for states that have been designated as
sponsors of terrorism, Congress did not at the same time limit the existing “tortious act”
exception, even though it clearly understood that that exception would apply to acts of terrorism
committed in the U.S. See House Report No. 103-702 (August 16, 1994) at *4.
Indeed, plaintiffs cannot help but note that Turki’s interpretation of the FSIA leads to a
fundamental absurdity whereby a foreign sovereign may be sued if one of its employees
accidentally runs down a pedestrian in the District of Columbia with his car, but has immunity if
that employee blows up the pedestrian in a deliberate act of violence instead. The FSIA does not
countenance such absurdities. Rather, it presents a coherent scheme in which injuries
negligently or deliberately inflicted in the United States are actionable under § 1605(a)(5), while
injuries inflicted abroad are actionable only in the more limited circumstances set forth in
§ 1605(a)(7).8
II. TURKI IS NOT ENTITLED TO DIPLOMATIC IMMUNITY
Turki’s claim that diplomatic immunity requires dismissal of this action against him is
frivolous. Turki concedes that he is a diplomat accredited to the United Kingdom, not the United
States. He contends, however, that he is entitled to the same diplomatic immunity in the United
States as he is accorded in the United Kingdom, or, put another way, the same immunity that the
United States accords to the Saudi Arabian Ambassador to the United States. But U.S. law and
the controlling international convention provide otherwise.
8 This is especially true because “terrorism” is not a defined or self-defining term. It is the name we give to certain
murders or assaults because of the motivation and the methods used to carry them out. But the attacks of September
11, 2001 were murders and assaults before they were “terrorism,” and as such they are torts that fall within the
“tortious act” exception to the FSIA. Turki’s suggestion that when murders become terrorist acts, they cease to be
torts would mean that his immunity, and the conditions under which it is abrogated, would depend on the
uncertainty of how a particular event is characterized (and by whom) rather than on the certainty of the deaths or
injuries at issue.
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The scope of diplomatic immunity in the United States is defined in 22 U.S.C. § 254d,
which provides in relevant part that “[a]ny action . . .brought against an individual who is
entitled to immunity with respect to such action or proceeding under the Vienna Convention on
Diplomatic Relations, under section 254b or 254c of this title, or under any other laws extending
diplomatic privileges and immunities, shall be dismissed.” Turki invokes no source of
diplomatic immunity other than the Vienna Convention on Diplomatic Relations, 23 U.S.T.
3227, 1972 WL 122692 (U.S. Treaty), T.I.A.S. No. 7502. (“Vienna Convention”). Thus, this
suit may be dismissed under § 254d only if Turki is “entitled to immunity with respect to [this]
action” under the Vienna Convention. That convention, however, clearly precludes immunity
here.
Article 31 of the Vienna Convention sets forth the immunity to which a diplomat is
entitled in the state to which he is accredited. Article 40 sets forth the immunity to which a
diplomat is entitled in a third state. The contrast between them is most clearly shown in side-by-
side comparison:
Section 31:
“A diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its
civil and administrative jurisdiction . . . .”
Section 40:
“If a diplomatic agent passes through or is in
the territory of a third State, which has granted
him a passport visa if such visa was necessary,
while proceeding to take up or to return to his
post, or when returning to his own country, the
third State shall accord him inviolability and
such other immunities as may be required to
ensure his transit or return.”
Section 31 thus provides a diplomat with a blanket immunity from the civil jurisdiction
“of the receiving state.” Section 40, by contrast, provides a limited immunity from the
jurisdiction of a third state (that is, neither the sending state nor the receiving state). That limited
immunity applies only when the diplomat “passes through or is in the territory of a third State . . .
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while proceeding to take up or to return to his post, or when returning to his own country.”
Moreover, rather than according immunity from all civil and criminal jurisdiction, Section 40
confers immunity only “as may be required to ensure his transit or return.”
None of the conditions set forth in the Vienna Convention for diplomatic immunity in a
third State is satisfied in this case. Turki is not passing through or in the territory of the United
States while proceeding to take up or return to his post in Great Britain or returning to Saudi
Arabia. And nothing in this Court’s exercise of jurisdiction over him will in any way interfere
with his “transit or return.”
Turki asks this Court to read into the Vienna Convention an immunity that is not there.
But, more significantly, Turki asks this Court to extend to him an outdated immunity that was,
apparently, rejected by the Vienna Convention. In Bergman v. De Sieyes, 170 F.2d 360 (2d Cir.
1948), the Second Circuit looked to an earlier international convention on diplomatic immunity,
established at the Sixth International Conference of American States at Havana in 1928. While
recognizing good reasons to limit the scope of diplomatic immunity, that conference nevertheless
had decided to “make[] no distinction between diplomats in transitu and those in situ.” See
Bergman, 170 F.2d at 362.
The Vienna Convention was adopted in 1961, 33 years after the 1928 conference and 13
years after the Bergman decision.9 Unlike the 1928 conference, the Vienna Convention
explicitly chose to differentiate diplomats in situ (that is, in the country to which they are
accredited) from those in transit in a third country and to accord different immunities in the two
different situations. Prince Turki’s argument that this distinction should be ignored and that
diplomats should be accorded the same immunity in every state as they are in the state to which
9 The Vienna Convention was ratified by the President of the United States on November 8, 1972, seven years after
ratification was advised by the Senate. It entered into force with respect to the U.S. on December 13, 1972. See 23
U.S.T. 3227, 1972 WL 122692 (U.S. Treaty), T.I.A.S. No. 7502.
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they are accredited flies in the face of both the language of the Vienna Convention and the
history of international agreements concerning diplomatic immunity.
None of the cases that Turki cites in support of his argument was decided under the
Vienna Convention; indeed, none was decided after 1948 and one is sufficiently outdated to
involve the Ambassador to France from the Republic of Texas (which, in 1839 when the case
was decided, was not an ironic reference to the home of the President of the United States).10
Turki also attempts to argue that extending immunity to him is good policy. But § 254d and the
Vienna Convention foreclose that argument. Under controlling authority, Turki has no immunity
from suit in the United States except in accordance with the provisions of Section 40 of the
Vienna Convention, which are entirely inapplicable here.
III. TURKI’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
SHOULD BE DENIED
Recognizing that the FSIA confers no immunity for actions in his personal capacity,
Turki argues that he cannot be subjected to the jurisdiction of this Court in connection with his
personal donations to al Qaeda front charities because, he contends, he lacks sufficient contact
with the forum to meet the constitutional requirements for the assertion of jurisdiction. Turki is
wrong.
A defendant is subject to jurisdiction in the United States if he “purposefully directed his
activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of
or relate to’ those activities.” Burger King v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations
omitted). Physical presence is not a requirement. Id. at 475. Where a defendant’s intentional,
10 The section of Turki’s brief addressing diplomatic immunity includes a citation to Aidi v. Yaron, 672 F.Supp.
516 (D.D.C. 1987), see Turki Br. at 21, but Aidi involved a diplomat accredited to the United States and resident in
Washington, D.C. Turki does not cite it as support for his claim that he should be accorded diplomatic immunity,
but only in support of his contention that if diplomatic immunity is applicable, service may be quashed.
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and allegedly tortious, actions were expressly aimed at the forum, the “due process” requirement
of minimum contacts is satisfied. See Calder v. Jones, 465 U.S. 783, 789 (1984).11
Three recent cases involving terrorism against Americans apply this test and hold that
due process is not violated when those who deliberately target Americans are made to answer in
American courts of law. Pugh v. Socialist People's Libyan Arab Jamahiriya, 290 F.Supp.2d 54
(D.D.C. 2003); Rein v. Socialist People's Libyan Arab Jamahiriya, 995 F.Supp. 325, 330
(E.D.N.Y. 1998), aff’d in part, dis’d in part, 162 F.3d 748 (2d Cir. 1998); Daliberti v. Iraq, 97
F.Supp.2d 38, 54 (D.D.C. 2000) (assertion of personal jurisdiction did not offend “traditional
notions of fair play and substantial justice” where defendant’s targeting of Americans in overseas
attack provided a sufficient nexus with the United States to satisfy due process concerns).
Here, as noted above, Turki clearly knew that bin Laden and al Qaeda were plotting
terrorist acts. See supra pp. 1-2, 9. In this way, Turki directed his conduct at the United States
when he provided assistance to bin Laden and al Qaeda. No more is required to subject him to
jurisdiction in the United States. See also Plaintiffs’ NCB Brief at Point III-B; Jurisdiction
Brief.12
11 Rather than repeat the arguments set forth at length in Plaintiffs’ Memorandum of Law in opposition to the
motion to dismiss filed by the National Commercial Bank (“Plaintiffs’ NCB Brief”), which was previously
submitted in this action, and in Plaintiffs' Memorandum of Law In Support of Their Prima Facie Showing of
Personal Jurisdiction and In Opposition to Defendants' Challenges to Personal Jurisdiction (“Jurisdiction Brief”)
being filed in connection with various motions to dismiss in the consolidated actions, plaintiffs hereby incorporate
by reference the arguments set forth therein and respectfully refer the Court to those briefs.
12 In any event, plaintiffs should be permitted to take jurisdictional discovery concerning . . . that give rise to
plaintiffs’ claims in this action. A plaintiff faced with a motion to dismiss for lack of personal jurisdiction “is
entitled to reasonable discovery.” Second Amendment Found. v. United States Conference of Mayors, 274 F.3d 521,
525 (D.C. Cir. 2001); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (“where issues
arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues”); Filus v. Lot
Polish Airlines, 907 F.2d 1328, 1332 (2d Cir. 1990) (“generally a plaintiff may be allowed limited discovery with
respect to the jurisdictional issue”); Marine Midland Bank NA v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (court
may decide challenge to personal jurisdiction “on the basis of affidavits alone; or it may permit discovery in aid of
the motion; or it may conduct an evidentiary hearing on the merits of the motion”); Strategem Devel. Corp. v. Heron
Int’l N.V., 153 F.R.D. 535 (S.D.N.Y. 1994) (where plaintiff had not made prima facie showing of jurisdiction, but
had made “a sufficient start toward establishing personal jurisdiction” court order jurisdictional discovery).
Moreover, “[a] district court has discretion whether to hold in abeyance a decision on a motion to dismiss for lack of
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CONCLUSION
For the foregoing reason, this Court should deny Turki’s consolidated motion to dismiss
and to quash service in its entirety.
Dated: New York, NY Respectfully submitted,
May 14, 2004
/s/______________________________
Ronald L. Motley, Esq. (RM-2730)
Jodi Westbrook Flowers, Esq.
Donald A. Migliori, Esq.
Michael Elsner, Esq. (ME-8337)
MOTLEY RICE LLC
28 Bridgeside Boulevard
P.O. Box 1792
Mount Pleasant, South Carolina 29465
Telephone: (843) 216-9000
James P. Kreindler, Esq.
Justin T. Green, Esq.
Andrew Maloney, Esq.
Vincent Parrett, Esq.
KREINDLER & KREINDLER LLP
100 Park Avenue
New York, New York 10017-5590
Telephone: (212) 687-8181
Paul J. Hanly, Jr., Esq. (PH-5486)
Jayne Conroy, Esq. (JC-8611)
Andrea Bierstein, Esq. (AB-4618)
HANLY CONROY BIERSTEIN & SHERIDAN, LLP
415 Madison Avenue
New York, NY 10017-1111
Telephone: (212) 401-7600
Harry Huge, Esq. (D.C. Bar #55640)
HARRY HUGE LAW FIRM, LLP
Market Square North
1401 Ninth Street, N.W., Suite 450
Washington, D.C. 20004
Telephone: (202) 824-6046
personal jurisdiction to enable a party to conduct discovery. 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure, § 1351, at 253-59 (2d ed. 1990).
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Allan Gerson, Esq. (DC Bar #327494)
Attorney At Law
4221 Lenore Lane
Washington, DC 20008
Telephone: (202) 966-8557
Ken Nolan, Esq.
Frank Granito, III, Esq.
SPEISER KRAUSE NOLAN & GRANITO
140 East 45th Street, 34th Floor
New York, NY 10017
Telephone: (212) 661-0011
Michel Baumeister, Esq.
Thea Capone, Esq.
BAUMEISTER & SAMUELS, P.C.
One Exchange Place, 15th Floor
New York, NY 10006-3008
Telephone: (212) 363-1200
Thomas E. Mellon, Jr., Esq.
MELLON WEBSTER & SHELLEY
87 North Broad Street
Doylestown, PA 18901
Telephone: (215) 348-7700
Richard D. Hailey, Esq.
RAMEY & HAILEY
3815 River Crossing Parkway, Suite 340
Indianapolis, IN 46240
Telephone: (317) 848-3249
J.D. Lee
LEE, LEE, & LEE
422 S. Gay Street
Knoxville, TN 37902
Telephone: (865) 544-0101
Attorneys for Plaintiffs in the Personal Injury and Death
Cases
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Case 1:03-md-01570-GBD -FM Document 155 Filed 05/14/04 Page 27 of 27
