Ofisi v. Bnp Paribas S.A. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY OFISI, et al.,
Plaintiffs,
v. Civil Action No. 15-2010 (JDB)
BNP PARIBAS, S.A., et al.,
Defendants.
MEMORANDUM OPINION
On September 29, 2017, the Court dismissed plaintiffs’ claims against defendant BNP
Paribas, S.A. (BNPP) under (1) the civil liability provision of the Anti-Terrorism Act (ATA), 18
U.S.C. § 2333, (2) the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and (3) various common-law
tort doctrines, for allegedly conspiring with Sudan, Sudanese banks, and al Qaeda to defeat U.S.
sanctions against Sudan. Plaintiffs have now moved for reconsideration or, in the alternative,
requested leave to amend their complaint. For the reasons explained below, plaintiffs’ motion for
reconsideration and their request for leave to amend will be denied.
DISCUSSION
A. Motion for Reconsideration
Plaintiffs move for reconsideration under Federal Rule of Civil Procedure 59(e), but that
rule applies only to the amendment of final judgments. See Cobell v. Jewell, 802 F.3d 12, 19 (D.C.
Cir. 2015). Because the September 29 Order was interlocutory in nature, the Court will construe
plaintiffs’ motion as a request for reconsideration under Rule 54. See Fed. R. Civ. P. 54(b) (“[A]ny
order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised at any time
1
before the entry of a judgment . . . .”). The Court has broad discretion to hear a motion for
reconsideration under Rule 54(b). See Flythe v. District of Columbia, 4 F. Supp. 3d 216, 218
(D.D.C. 2014); see also Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85
(D.D.C. 2009) (“[I]n order to promote finality, predictability and economy of judicial resources,
‘as a rule [a] court should be loathe to [revisit its own prior decisions] in the absence of
extraordinary circumstances such as where the initial decision was clearly erroneous and would
work a manifest injustice.’” (second and third alterations in original) (quoting Lederman v. United
States, 539 F. Supp. 2d 1, 2 (D.D.C. 2008)). In this jurisdiction, relief under Rule 54(b) may be
granted “as justice requires.” Parker v. John Moriarty & Assocs., 221 F. Supp. 3d 1, 2 (D.D.C.
2016). Generally, “a court will grant a motion for reconsideration of an interlocutory order only
when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new
evidence not previously available; or (3) a clear error in the first order.” Id. (internal quotation
marks omitted); accord Bloomgarden v. U.S. Dep’t of Justice, No. CV 12-0843 (ESH), 2016 WL
7839115, at *1 (D.D.C. Apr. 13, 2016); Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008).
Plaintiffs do not assert that there has been an intervening change in controlling law or that
new evidence has become available. Instead, they contend that the Court committed two clear
errors when it dismissed their ATA, ATS, and common-law claims:1 (1) the Court ignored factual
allegations sufficient to establish a plausible inference of conspiracy to defeat U.S. sanctions
against Sudan; and (2) it failed properly to apply to their claims the law of civil conspiracy liability
set forth in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). See Pls.’ Mot. for Recons. [ECF
No. 33] at 12. Neither argument convinces the Court that relief is appropriate here.
1
Plaintiffs do not seek reconsideration of the Court’s dismissal of their claims for fraudulent conveyance
(which they recast as a claim for tortious interference with prospective economic advantage) or punitive damages.
See Sept. 29, 2017 Mem. Op. [ECF No. 31] at 33–34 [hereinafter “Mem. Op.”].
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1. ATA Claims
To bring a claim under the ATA’s civil liability provision, a plaintiff must plead: (1) injury
to a U.S. national, (2) an act of international terrorism, and (3) causation. Mem. Op. at 8–9 (citing
18 U.S.C. § 2333). Plaintiffs have alleged that BNPP violated three criminal provisions of the
ATA, which constitute the requisite “act of international terrorism”: 18 U.S.C. §§ 2332d, 2339A,
and 2339C. Id. at 9. The Court dismissed plaintiffs’ claim predicated on § 2339C because that
statute was enacted in 2002, four years after the relevant conduct in this case. Id. at 10. Plaintiffs
do not challenge this in their motion. The Court dismissed plaintiffs’ claim based on § 2332d
because, after considering plaintiffs’ arguments to the contrary, it concluded that BNPP, “a French
multinational bank, incorporated under the laws of France,” does not qualify as a “United States
person” under the statute. Mem. Op. at 12 (quoting Compl. [ECF No. 1] ¶ 18). Plaintiffs state
that they “respectfully disagree” with this conclusion for reasons previously argued, see Pls.’ Mot.
for Recons. at 21 n.8, but that is not a valid basis for reconsideration, see McLaughlin v. Holder,
864 F. Supp. 2d 134, 141 (D.D.C. 2012) (alterations in original) (court may deny a motion for
reconsideration that “raise[s] . . . arguments for reconsideration the court ha[s] . . . already rejected
on the merits”).
Plaintiffs’ remaining arguments, then, concern BNPP’s alleged violation of § 2339A.
Plaintiffs first contend that the Court erred when it failed to apply the conspiracy liability standard
from Halberstam to their ATA claims, and that under that standard BNPP can be found vicariously
liable for the actions of al Qaeda. See Pls.’ Mot. for Recons. at 2–3, 12, 18 n.7. But plaintiffs
already raised this argument in their opposition to BNPP’s motion to dismiss, see Pls.’ Opp’n [ECF
No. 19] at 3, 23, and the Court considered and rejected it, concluding that the version of the ATA
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applicable to plaintiffs’ claims does not provide for secondary liability under § 2333,2 Mem. Op.
at 11; see Am. Action Network, Inc. v. Cater Am., LLC, No. 12-CV-1972 (RC), 2014 WL
12675253, at *1 (D.D.C. Feb. 12, 2014) (“Rule 54(b) affords no opportunity for the parties to
reargue facts and theories upon which a court has already ruled.”). The Court’s holding in this
regard is consistent with both courts of appeals that have considered the issue, see Rothstein v.
UBS AG, 708 F.3d 82, 98 (2d Cir. 2013); Boim v. Holy Land Found. for Relief and Dev., 549
F.3d 685, 689 (7th Cir. 2008) (en banc) (“[S]tatutory silence on the subject of secondary liability
means there is none . . . .”), as well as a recent tide of district court decisions, see Owens v. BNP
Paribas, S.A., 235 F. Supp. 3d 85, 92 (D.D.C. 2017) (collecting cases). The Court’s decision to
follow these appellate and recent district court decisions finding secondary liability unavailable
under the ATA 3 instead of earlier district court decisions cited by plaintiffs, see Pls.’ Opp’n at 23
(citing Wultz v. Islamic Rep. of Sudan, 755 F. Supp. 2d 1, 54 (D.D.C. 2010)), does not constitute
clear error.
Plaintiffs next maintain that the Court erroneously ignored or rejected factual allegations
that satisfy the ATA’s scienter standard. See Pls.’ Mot. for Recons. at 12–18. As an initial matter,
plaintiffs misstate the scienter standard when they claim that BNPP is civilly liable under the ATA
because the embassy bombings were a “reasonably foreseeable” result of the conspiracy to defeat
U.S. sanctions. Id. at 15. Section 2333 incorporates the scienter standard of the underlying “act
of international terrorism,” Mem. Op. at 9; thus, plaintiffs must allege that BNPP provided
2
Vicarious liability is a form of secondary liability. See Halberstam, 705 F.2d at 476–77 (describing
conspiracy and aiding and abetting as two bases for vicarious liability and distinguishing them from liability for a
primary act).
3
Congress’ September 2016 amendments to the ATA—recognizing secondary liability under certain
circumstances, see 18 U.S.C. 2333(d)(2)—have no bearing in this case because those amendments only apply to
persons injured on or after September 11, 2001, see Mem. Op. at 11 n.3.
4
financial services “knowing or intending” that the services “are to be used in preparation for, or in
carrying out” a terrorist attack, id. at 15 (quoting 18 U.S.C. § 2339A(a)).
Contrary to plaintiffs’ argument, the Court did consider their well-pled factual allegations
concerning BNPP’s conduct prior to the August 1998 terrorist attacks. See id. (accepting that after
the sanctions were imposed, BNPP agreed to become the sole correspondent bank for Sudan in
Europe; Sudan’s central bank directed all major Sudanese commercial banks to use BNPP as their
correspondent bank; BNPP established relationships with unaffiliated regional banks; BNPP
channeled transactions through these regional banks to circumvent U.S. sanctions; and BNPP
processed illegal U.S. dollar transactions for Sudan prior to the attacks). The Court found these
allegations insufficient, however, because plaintiffs did not plausibly allege that BNPP knew that
Sudan or any Sudanese bank was acting as an agent of al Qaeda or any terrorist, or that the ultimate
beneficiaries of any financial services provided would be a terrorist organization. Id. at 15–19;
see also Owens, 235 F. Supp. 3d at 99 (“Processing funds for Sudan [or Sudanese banks] is not
the same as processing funds for a terrorist organization or a terrorist front.”). The allegations that
plaintiffs highlight in their motion, which describe Sudan’s activities with terrorists throughout the
1990s, see Pls.’ Mot. for Recons. at 13–14, do not alter this conclusion. 4 Even accepting that
BNPP was fully aware of Sudan’s activities as a state sponsor of terrorism prior to 1997, “the fact
remains that [Sudan] is a government, and as such it has many legitimate agencies, operations, and
programs to fund.” Rothstein, 708 F.3d at 97. Plaintiffs simply cannot equate the transfer of
money to Sudan with the transfer of money to al Qaeda. Owens, 235 F. Supp. 3d at 99.
4
These allegations do not undermine the Court’s finding that “the complaint does not contain any detailed
factual allegations that BNPP knew about [Al Shamal’s] supposed connections to al Qaeda” prior to the bombings.
Pls.’ Mot. for Recons. at 13 (quoting Mem. Op. at 16). Indeed, none of these allegations even refer to Al Shamal.
5
Finally, plaintiffs attempt to relitigate their argument that they sufficiently pled causation.
See Pls.’ Mot. for Recons. at 3 n.3 (stating BNPP is liable for the “foreseeable conduct” undertaken
in furtherance of the conspiracy to defeat sanctions); Opp’n at 22–23 (same). In considering this
argument, the Court found that § 2333’s “by reason of” language requires a showing of proximate
cause as that “term is typically defined.” Mem. Op. at 12 (citing Siegel v. SEC, 592 F.3d 147, 159
(D.C. Cir. 2010); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 105 (D.D.C. 2003)).
The Court found plaintiffs’ allegations wanting because, as was true in Rothstein and Owens, the
complaint here contained no well-pled allegations that BNPP provided money directly to any
terrorist group, that any transaction BNPP processed for Sudan or Sudanese banks was transferred
to al Qaeda prior to the attacks, or that Sudan would have been unable to assist al Qaeda without
the funds that BNPP processed. Id. at 19. Plaintiffs fail to show that this ruling was clear error.
Instead, they largely repeat the same allegations that the Court has already considered. See Pls.’
Mot. for Recons. at 4–11. These include admissions from the June 2014 Consent Order between
New York State and BNPP, which provides that BNPP illegally circumvented U.S. sanctions for
Sudan and Sudanese banks, as well as conclusory allegations that BNPP knew that it was
facilitating terrorist activity by processing transactions with Sudan and Sudanese banks. 5
Repackaged here, these allegations nonetheless remain insufficient. In sum, plaintiffs have failed
to convince the Court that dismissal of their ATA claims was erroneous.
5
Compare, e.g., Compl. ¶ 272 (“BNPP knew or should have known that the millions of dollars in illegal
transfers to Al Shamal and Sudan were used to support, encourage, entice and make possible terrorist attacks including
but not limited to the 1998 East African Embassy Attacks.”), with Rothstein, 708 F.3d at 97 (allegations that defendant
“knew full well that the cash dollars it was providing to a state-sponsor of terrorism such as Iran would be used to
cause and facilitate terrorist attacks” were “conclusory allegations that do not meet Twombly’s plausibility standard
with respect to the need for a proximate causal relationship between the cash transferred by [defendant] to Iran and
the terrorist attacks by Hizbollah and Hamas that injured plaintiffs”).
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2. ATS Claims
Plaintiffs next claim that the Court’s failure to apply Halberstam to their ATS claims
warrants reconsideration. See Pls.’ Mot. for Recons. at 3 n.2, 18 n.7. This argument fails for two
reasons. First, plaintiffs agreed in their opposition to BNPP’s motion to dismiss that international
law, not Halberstam,6 provides the applicable legal standards for their ATS claims. See Pls.’
Opp’n at 45–46. A motion for reconsideration is not “an opportunity for a party to relitigate an
issue that was or should have been raised at an earlier stage in the litigation.” Paleteria La
Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 79 F. Supp. 3d 60, 72 (D.D.C.
2015); Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005).
Moreover, plaintiffs are incorrect that the Court should have applied Halberstam to their
ATS claims. In this Circuit, secondary liability claims under the ATS are evaluated under
international law, not common law. See Mem. Op. at 27 (citing Doe v. Exxon Mobil Corp., 654
F.3d 11, 33 (D.C. Cir. 2011) (holding that for ATS claims, “[t]he court . . . looks to customary
international law to determine the standard for assessing aiding and abetting liability”), vacated on
other grounds, 527 F. App’x 7 (mem.)). 7 This Court relied on the same authoritative international
law sources identified by the D.C. Circuit, see Exxon Mobil Corp., 654 F.3d at 33–34, to define
the elements of aiding and abetting liability. See Mem. Op. at 27–29 (finding an aider and abettor
must knowingly and substantially assist in the principal violation of the law of nations). 8 The
6
Halberstam, which concerned claims brought under the common law of the District of Columbia, does not
invoke or refer to customary international law. 705 F.2d at 478–79.
7
As a practical matter, the standards for aiding and abetting under common law and international law overlap.
See Exxon Mobil Corp., 654 F.3d at 39 (“For all practical purposes, we agree with appellants that the standard under
federal common law applies inasmuch as the parties suggest no differences between it and the standard under
customary international law.”); Halberstam, 705 F.2d at 477 (requiring, inter alia, that the defendant “knowingly and
substantially assist the principal violation”). Here, of course, the Court found plaintiffs’ claims also failed to establish
aiding and abetting liability under the Halberstam standard. Mem. Op. at 32.
8
Plaintiffs state that the Court erred by relying on the Second Circuit’s standard for aiding and abetting
liability under the ATS that was expressed in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244,
258–59 (2d Cir. 2009), instead of the standard adopted by the D.C. Circuit in Exxon Mobil. Pls.’ Mot. for Recons. at
3 n.4. Not so. The D.C. Circuit disagreed with the Second Circuit’s inclusion of a “purpose” element (i.e., requiring
7
Court then applied that standard and found plaintiffs had not sufficiently pled that BNPP aided and
abetted the terrorist attacks on the U.S. embassies. Id. 29–30. Plaintiffs’ oft-repeated contention
that BNPP should have known or that the attacks were “reasonably foreseeable” is simply
inadequate to satisfy this standard. See Mastafa v. Austl. Wheat Bd. Ltd., No. 07 CIV. 7955
(GEL), 2008 WL 4378443, at *5 (S.D.N.Y. Sept. 25, 2008) (“The knowledge element of aiding
and abetting requires that a defendant have ‘actual knowledge’ that it is assisting in the tortious
conduct,” and “allegations . . . that a bank ‘should have known[]’ will not suffice”). 9 Hence, the
Court applied the correct law when it dismissed the ATS claims and there was no clear error. 10
3. Common Law Claims
Finally, plaintiffs contend that the Court ignored or misapplied Halberstam in dismissing
their common law claims. See Pls.’ Mot. for Recons. at 12, 18–25. Plaintiffs are incorrect that
“[t]he Court rejected Halberstam as the governing standard in this case.” Id. at 22. The Court
relied on Halberstam for the relevant common law standards for conspiracy and aiding and abetting
liability, but ultimately concluded that plaintiffs had failed to plausibly allege those theories. See
Mem. Op. at 31–32. The Court found that plaintiffs’ conspiracy claim failed because allegations
of a conspiracy to evade and defeat sanctions are not sufficient to establish conspiracy liability for
the aider and abettor to share the same purpose as the principal) for aiding and abetting liability. Exxon Mobil Corp.,
654 F.3d at 35–39. This Court did not apply a “purpose” standard; instead, it applied the knowledge standard
recognized by the D.C. Circuit in Exxon Mobil. See Mem. Op. at 29 (“Defendants must ‘know that their acts assist
the commission of the principal offense.’” (quoting Doe v. Exxon Mobil Corp., No. CV 01-1357(RCL), 2015 WL
5042118, at *10 (D.D.C. July 6, 2015)).
9
See also Doe v. Drummond Co., No. 7:09-CV-01041-RDP, 2009 WL 9056091, at *11 (N.D. Ala. Nov. 9,
2009) (“[T]he Pinkerton doctrine—pursuant to which conspirators may be held liable for acts of co-conspirators that
they did not intend, but which were reasonably foreseeable—is not universally recognized under international law,
and therefore it may not be a basis for liability under the ATS.” (citation and internal quotation marks omitted)).
10
Plaintiffs take issue with the Court’s finding that they failed to plead a violation of the law of nations for
extrajudicial killing. Pls.’ Mot. for Recons. at 21 n.9. But it is beyond dispute that plaintiffs only pled two violations
in the complaint, see Compl. ¶¶ 252–292 (alleging the attacks constituted a crime against humanity and infringed the
rights of ambassadors), and failed to include a violation for extrajudicial killing. Because “a party cannot amend its
pleadings by its briefs in opposition to a dispositive motion,” Hajjar-Nejad v. George Washington Univ., 873 F. Supp.
2d 1, 11 (D.D.C. 2012), the Court did not err when it did not consider this argument. See Mem. Op. at 27.
8
terrorist attacks, and there were no plausible allegations that BNPP acted in furtherance of a
common plan with any terrorist organization, or that BNPP, Sudan, and al Qaeda were mutually
dependent on one another. Id. Plaintiffs’ aiding and abetting claim was deficient because the
complaint failed to plausibly allege that BNPP had the requisite knowledge or provided substantial
assistance to the terrorist attacks on the U.S. embassies. 11 Id. at 32.
Plaintiffs disagree with the Court’s application of Halberstam. In Halberstam, the court
found the live-in partner of a burglar civilly liable, as a co-conspirator and an aider and abettor,
for a murder which occurred during the course of a burglary. 705 F.2d at 474. The partner had
actual knowledge of the ongoing tortious activity of her companion and she provided substantial
assistance to directly further the continued success of the illicit burglary scheme. Id. at 486 (the
partner “knew full well the purpose of the [burglar’s] evening forays”; she “was a willing partner
in his criminal activities” and “knowingly” facilitated the sale of stolen goods). The court inferred
an agreement between the two, as necessary to impose conspiracy liability, based on their direct
contact, “symbiotic” activities, and performance of “parts of the illegal operation together at the
same location,” and because the partner’s “continuous participation reflected her intent and desire
to make the [criminal] venture succeed.” Id. at 481, 486–88. In contrast, here plaintiffs failed to
plausibly allege that BNPP directly funded any terrorist group, had knowledge of Sudan’s use of
BNPP-provided funds to sponsor terrorist activities, or knew that BNPP’s conduct actually enabled
the attacks. For those reasons, the Court found the comparison to Halberstam flawed. Mem. Op.
at 32. Plaintiffs’ mere disagreement with the Court’s conclusion that Halberstam does not present
11
Plaintiffs fail to address the Court’s dismissal of the aiding and abetting theory in their motion. Instead,
for the first time in their reply brief, they cite Bassi v. Patten, 2008 WL 4876326 (D.D.C. Nov. 12, 2008)—a case
involving the question whether an individual could be held liable as an aider and abettor for a skirmish outside of a
bar—and restate many of the same arguments that they raised in earlier submissions. Pls.’ Reply Pls.’ Reply [ECF
No. 36] at 16–18. That approach does not convince the Court that it erred when it rejected plaintiffs’ aiding and
abetting theory.
9
facts analogous to those here ultimately does not warrant reconsideration. 12 See Singh, 383 F.
Supp. 2d at 102.
B. Request to Amend the Complaint
In the alternative, plaintiffs request leave to amend their complaint. Pls.’ Mot. for Recons.
at 2, 26. Federal Rule of Civil Procedure 15(a) provides that a district court “should freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, to receive the
benefit of this standard in this Circuit, one must file a motion for leave to amend a complaint
accompanied by a copy of the proposed amended complaint. Rollins v. Wackenhut Servs., Inc.,
703 F.3d 122, 130 (D.C. Cir. 2012); L. Civ. R. 15.1 (“A motion for leave to file an amended
pleading shall be accompanied by a copy of the proposed pleading as amended.”); L. Civ. R. 7(i)
(same). Plaintiffs’ request here neither included a proposed amended complaint nor otherwise
indicated that they would be able to plausibly allege facts that would state a claim for relief.
Plaintiffs’ cursory request to amend—consisting of a single sentence repeated at the beginning and
end of their motion—does not constitute a motion to amend within the contemplation of Rule
15(a). See Rollins, 703 F.3d at 130 (“[A] bare request in an opposition to a motion to dismiss—
without any indication of the particular grounds on which amendment is sought—does not
constitute a motion within the contemplation of Rule 15(a).”); Mouzon v. Radiancy, Inc., 309
F.R.D. 60, 64 (D.D.C. 2015) (denying plaintiffs’ request to amend because it “was limited to a
single sentence in the conclusion” of plaintiffs’ opposition to the motion to dismiss). Plaintiffs’
deficient request for leave to amend will therefore be denied.
12
Plaintiffs’ request for oral argument, see Pls.’ Mot. for Recons. at 2, will be denied as moot.
10
CONCLUSION
For the foregoing reasons, plaintiffs have failed to convince the Court that it committed
clear error when it dismissed their ATA, ATS, and common law claims. Plaintiffs’ motion for
reconsideration is therefore denied. Because plaintiffs have failed to follow the law of this Circuit
in requesting leave to amend, that request will also be denied.
/s/
JOHN D. BATES
United States District Judge
Dated: January 11, 2018
11