Court Opinion on Personal Jurisdiction in Post‑9/11 Terrorism Lawsuits

IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 809 Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005) cans would be on board. /d. Finally, the court reasoned that the “interest of the United States in preventing and punishing international terrorism has been a matter of worldwide common knowledge for years.” Jd. (citing statutes criminalizing terrorist acts). “It logically follows that if federal courts may constitutionally exer- cise criminal jurisdiction over such individ- uals, the Constitution should be no bar to those same federal courts, in a civil action . exercising civil im personam jurisdic- tion over those same individuals for the same acts.” Id. [44] The courts in Rein, Daltberti, and Pugh properly exercised personal jurisdic- tion over each of the defendants in those cases pursuant to the FSIA, which specifi- cally provides that personal jurisdiction ex- ists where proper service and subject mat- ter jurisdiction have been established. 28 U.S.C. § 1830(b); Rein, 995 F.Supp. at 329-30; Daliberti, 97 F.Supp.2d at 52; Pugh, 290 F.Supp.2d at 58. While the FSIA is not the basis for personal jurisdic- tion here, jurisdiction based on the ATA or Rule 4(k)(2) also requires minimum con- tacts with the United States. Accordingly, Plaintiffs may rely on their “purposefully directed” theory to establish these mini- mum contacts. But as existed in Burger King, Calder, and the three terrorism cases, Plaintiffs must allege some personal or direct involvement by the Defendants in the conduct giving rise to their claims. See, eg. Daliberti, 97 F.Supp.2d at 41 (explaining that defendant Iraq had held and tortured plaintiffs and that three of four plaintiffs were released only after U.S. officials’ explicit negotiations with their Iraqi counterparts); Pugh, 290 F.Supp.2d at 56 (noting that seven individ- ual Libyan defendants were sued in the United States after extensive official French investigation and that these defen- dants were deemed to be responsible for the bombings in both civil and criminal proceedings); see also In re Magnetic Au- diotape, 334 F.3d at 208 (2d (stating a “court may exercise personal jurisdiction over defendant consistent with due process when defendant is primary participant in intentional wrongdoing—albeit extraterri- torially—expressly directed at forum”) (citing Calder v. Jones, 465 U.S. at 789-90, 104 S.Ct. 1482)); Time, Inc. v. Sumpson, No. 02 Civ. 49170MBM), 2003 WL 23018890, at *5 (S.D.N.Y. Dec. 22, 2003) (finding Calder turned on “personal in- volvement of the individual defendants in the particular conduct that gave rise to the plaintiffs claim” and granting motion to dismiss because plaintiff had not demon- strated that defendant had had any per- sonal involvement in the events giving rise to the lawsuit). Accordingly, regardless of whether personal jurisdiction is based on the ATA’s nationwide service of process provision or Rule 4(k)@), to satisfy the Fifth Amendment’s due process require- ments, Plaintiffs must make a prima facie showing of each Defendant’s personal or direct participation in the conduct giving rise to Plaintiffs’ injuries. 3. Mass Torts Theory [45] In addition to the arguments ar- ticulated above, the Federal Plaintiffs sub- mit that the Court should utilize a modi- fied due process standard appropriate for mass torts. See, e.g., Federal Prince Turki Opp. at 23; Federal Prince Mohammed Opp. at 12; SAAR Network Opp. at 12-13. Courts in the Eastern District of New York have outlined the modified standard in products liability cases as follows: the state’s interests in the litigation replace contacts with the forum as the constitu- tional touchstone and the “reasonableness” inquiry is replaced with a hardship analy- sis. Simon v. Philip Morris, 86 F.Supp.2d 95, 129 (E.D.N.Y.2000); In ve DES Cases, 789 F.Supp. 552, 587 (E.D.N.Y.1992). The HOUSE_OVERSIGHT_017874