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United States District Court Eastern District of New Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 1 of 23 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------- x TZIV WEISS, et al., : : Plaintiffs, : : OPINION AND ORDER : 05-CV-4622 (DLI) (RML) -against- : : : NATIONAL WESTMINSTER BANK PLC, : : Defendant. : : ---------------------------------------------------------- x NATAN APPLEBAUM, et al., : : Plaintiffs, : : 07-cv-916 (DLI) (RML) : -against- : : : NATIONAL WESTMINSTER BANK PLC, : : Defendant. : : ---------------------------------------------------------- x DORA L. IRIZARRY, Chief United States District Judge: Approximately 200 individuals and estates of deceased persons (collectively, “Plaintiffs”), brought this consolidated action against defendant National Westminster Bank Plc (“NatWest” or “Defendant”), seeking to recover damages from terrorist attacks in Israel and the Palestine Territories pursuant to the civil liability provision of the Antiterrorism Act of 1992 (“ATA”), 18 U.S.C. § 2333(a) (“Section 2333(a)”). On December 7, 2011, Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Weiss Dkt. Entry No. 264),1 which Plaintiffs opposed (Weiss 1 Citations to the “Weiss Docket” are to docket 05-CV-4622. Citations to the “Applebaum Docket” are to Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 2 of 23 PageID #: <pageID> Dkt. Entry No. 271). Defendant moved on three grounds, the first of which was that no reasonable jury could find that Defendant acted with the requisite scienter under the ATA. On March 28, 2013, the Court granted Defendant’s motion, reaching only the scienter element. (See Opinion & Order, Weiss Dkt. Entry No. 310.)2 On September 22, 2014, the Second Circuit reversed the Court’s grant of summary judgment to Defendant and remanded the case “for further proceedings, including consideration of NatWest's other asserted grounds for summary judgment.” Weiss v. Nat' Westminster Bank Pic, 768 F.3d 202, 212 (2d Cir. 2014). 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 “Am. Compl.,” Weiss Dkt. Entry No. 345 and Amended Complaint “Applebaum Am. Compl.,” Applebaum Dkt. Entry No. 218.) On August 2 and 12, 2016, the Court granted Defendant permission to file this renewed motion for summary judgment with respect to the ATA elements that the Court did not reach in its March 28, 2013 Opinion & Order, as well as Defendant’s motion for summary judgment with respect to Plaintiffs’ claims based on the SoL Attacks. On February 24, 2017, pursuant to the Court’s bundle rule, Defendant filed this motion for summary judgment (See Motion for Summary Judgment, “Mot.,” Weiss Dkt. Entry No. 358), Plaintiffs opposed (See Memorandum in Opposition, “Opp.,” Weiss Dkt. Entry No. 362), and Defendant replied (See Reply in Support re Motion for Summary Judgment, “Reply,” Weiss Dkt. docket 07-CV-916. Where documents have been filed on both dockets, the Court cites to the Weiss Docket only, as the lead case. 2 This Order is written for the parties and familiarity with the underlying facts and circumstances of this action is assumed. For a full recitation of the facts, see the 2013 Opinion & Order. 2 Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 3 of 23 PageID #: <pageID> Entry No. 365). LEGAL STANDARD 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.” Fed. R. Civ. P. 56(a). The court must view all facts in the light most favorable to the nonmoving party, but “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party, however, may not rely on “[c]onclusory allegations, conjecture, and speculation.” Kerzer v. Kingly Mfg., 156 F. 3d 396, 400 (2d Cir. 1998). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F. 3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont’l Grp., Inc., 859 F. 2d 1108, 1114 (2d Cir. 1988)). DISCUSSION I. Proximate Causation A. Proximate Causation under the ATA and Second Circuit Case Law Defendant asserts that Plaintiffs have failed to raise a triable issue of fact of proximate causation because there is insufficient evidence that Defendant’s provision of routine banking services to its customer Interpal proximately caused the terrorist attacks by which Plaintiffs were 3 Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 4 of 23 PageID #: <pageID> injured. (Mot. at 1-2.) Specifically, Defendant contends that Plaintiffs admittedly have no evidence that any of the funds that Defendant transferred at Interpal’s request actually were used to perpetrate any of the attacks, and, therefore, Plaintiffs cannot establish indirect causation. (Id. at 3.) Defendant further contends that merely transferring money to the 13 Charities is not sufficient to show direct causation without establishing that the 13 Charities are legally the same as Hamas, such that the transfers to the 13 Charities were in fact direct transfers to Hamas itself. (Id.) Defendant also maintains that the evidence upon which Plaintiffs rely to show that the 13 Charities and Hamas are one and the same is inadequate for that purpose as a matter of law under Second Circuit precedent. (Id.) Plaintiffs counter that, given the amount and proximity of the funds transferred by Defendant to Hamas-controlled organizations, Defendant cannot establish as a matter of law that the funds did not aid in the attacks. (Opp. at 5.) Section 2333(a) provides for recovery by individuals injured “by reason of” international terrorism. 18 U.S.C. § 2333(a). The Second Circuit has held that the phrase “by reason of” requires that plaintiffs show that their damages were proximately caused by defendant. See Rothstein v. UBS AG, 708 F. 3d 82, 95 (2d Cir. 2013) (“We are not persuaded that Congress intended to permit recovery under § 2333 on a showing of less than proximate cause . .”). In its holding, the court rejected the plaintiffs’ contention that the “‘by reason of’ language chosen by Congress in creating a civil right of action under the ATA was intended to permit recovery on a showing of less than proximate cause, as the term is ordinarily used.” Id. As the term is “ordinarily used,” proximate cause requires a showing that Defendant’s actions were “a substantial factor in the sequence of responsible causation,” and that the injury was “reasonably foreseeable or anticipated as a natural consequence.” Lerner v. Fleet Bank, N.A., 318 F. 3d 113, 123 (2d Cir. 2003). 4 Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 5 of 23 PageID #: <pageID> Two months later, in Al Rajhi Bank, the Second Circuit revisited proximate causation under the ATA, reaffirming Rothstein. See In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118 (2d Cir. 2013) (“Al Rajhi Bank”) (“Rothstein holds that proximate cause is required to state a claim under § 2333”). The court found, as it did in Rothstein, that plaintiffs’ allegations were insufficient for the purposes of establishing proximate causation. Id. at 124. In Rothstein, the Second Circuit held that plaintiffs failed to establish proximate cause based on the allegation that defendant provided Iran with hundreds of millions of dollars in cash knowing that Iran: (1) promoted terrorism to injure and intimidate Jewish residents of Israel; (2) provided Hamas and Hizbollah with millions of dollars to fund terrorist attacks; and (3) conditioned that funding on an agreement by those organizations to conduct terrorist attacks on Israel and its residents. Rothstein, 708 F. 3d at 92. In Al Rajhi Bank, the Second Circuit held that plaintiffs failed to establish proximate cause based on the allegation that defendants provided funding to charities known to support terrorism, that, in turn, provided funding to al Qaeda and other terrorist organizations. 714 F.3d at 124. The court held that plaintiffs’ allegations “fell short” of establishing proximate cause because plaintiffs did not allege that defendants: (1) participated in the terrorist attacks; (2) provided money directly to al Qaeda; or (3) donated money to the charities that actually was transferred to al Qaeda and aided the terrorist attacks. Id. The court held that it was “not persuaded that providing routine banking services to organizations and individuals said to be affiliated with al Qaeda – as alleged by plaintiffs – proximately caused the September 11, 2001 attacks or plaintiffs’ injuries. Id. B. Proximate Cause and Routine Banking Here, Plaintiffs argue that there is nothing “routine” about knowingly providing banking services to fund terrorism. The district court in Al Rajhi Bank remarked that “[p]roviding routine 5 Case 1:05-cv-04622-DLI-RML Document 375 Filed 09/30/17 Page 6 of 23 PageID #: <pageID> banking services, without having knowledge of the terrorist activities, cannot subject [bank] to liability.” 349 F.
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