Cabrera v. Black & Veatch Special Projects Corp.

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AUGUST CABRERA, et al., Plaintiffs, v. BLACK & VEATCH SPECIAL PROJECT CORPORATION, et al., Defendants.

Civil Action No. 19-3833 (LLA)

United States District Court, District of Columbia

March 28, 2024

MEMORANDUM OPINION AND ORDER

LOREN L. ALIKHAN UNITED STATES DISTRICT JUDGE

In December 2019, U.S. citizens killed or injured by terrorist attacks in Afghanistan brought this suit against seventeen corporate entities under the Antiterrorism Act of 1992, 18 U.S.C. § 2333(a) (the “ATA”).^[1] ECF No. 1; ECF No. 82. In short, Plaintiffs allege that Defendants violated the ATA by supporting the Taliban and other terrorist groups in order to protect or further their corporate business interests. Id. ¶ 1. Plaintiffs now move for leave to file a Second Amended Complaint. ECF No. 171. Most Defendants do not oppose this motion. ECF No. 172. Three defendants, MTN Group Limited, MTN (Dubai) Limited, and MTN Afghanistan-collectively, the “MTN Defendants”-object to Plaintiffs' addition of a new theory of liability: the “Irancell theory.” ECF No. 173. The MTN Defendants argue that amendment is improper under Federal Rule of Civil Procedure 15 because Plaintiffs unduly delayed in asserting this theory, that delay prejudices the MTN Defendants, and the new claims are time-barred as to most Plaintiffs and do not relate back to the original complaint. Id. at 2-3. For the reasons explained below, the court finds that amendment is in the interests of justice under Rule 15. The court therefore GRANTS Plaintiffs' motion for leave to file a Second Amended Complaint.

I. Procedural Background

The procedural history of this case is complex. Plaintiffs filed their complaint on December 27, 2019. ECF No. 1. All Defendants moved to dismiss. ECF Nos. 71-78. Plaintiffs amended their complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), filing their First Amended Complaint on June 5, 2020. ECF No. 82. All Defendants again moved to dismiss, arguing (among other things) that Plaintiffs had failed to state a claim under the ATA. ECF Nos. 102-111. The MTN Defendants also moved to dismiss for lack of personal jurisdiction. ECF No. 102 at 13-15. Plaintiffs filed oppositions, ECF Nos. 117-119, and Defendants filed replies, ECF Nos. 123-127, 130-135.

The court referred the case to Magistrate Judge Zia M. Faruqui for full case management.^[2]See July 20, 2020 & Sept 14, 2020 Minute Orders. On July 30, 2021, Judge Faruqui issued a sixty-page Report and Recommendation (“R&R”), recommending that the court grant Defendants' motions to dismiss. ECF No. 142 at 1-2. Drawing on a recent district court decision in an analogous case, Atchley v. AstraZeneca UK Ltd., 474 F.Supp.3d 194 (D.D.C. 2020), Judge Faruqui concluded that Plaintiffs had failed to plausibly allege either primary or secondary liability under the ATA. Id. at 50, 60. A defendant is primarily (or, directly) liable under the ATA if it commits an act of terrorism and is secondarily liable if it aids and abets an act of terrorism. Id. at 33-34; see 18 U.S.C. § 2333(a), (d)(2). Judge Faruqui also determined that the court lacked personal jurisdiction over the MTN Defendants because they did not “expressly aim[]” their conduct at the United States or “purposefully avail” themselves of the benefits of the United States. ECF No. 142 at 22-27.

Ten days after the R&R was issued, Plaintiffs moved to stay the case pending the D.C. Circuit's review of Atchley, 474 F.Supp.3d 194. ECF No. 144. The district court granted the stay over Defendants' objections, “in view of the R&R's heavy reliance on the trial court's decision in Atchley,” and “because the D.C. Circuit's decision in Atchley will likely ‘narrow the issues in the pending case[] and assist in the determination of the questions of law involved.'” Aug. 26, 2021 Minute Order (quoting Landis v. North Am. Co., 299 U.S. 248, 253 (1936)).

In January 2022, the D.C. Circuit reversed the district court's decision in Atchley. 22 F.4th 204 (D.C. Cir. 2022). In February 2023, that court denied rehearing en banc. Atchley v. AstraZeneca UK Ltd., No. 20-7077, 2023 WL 1479424 (D.C. Cir. Feb. 2, 2023).

In May 2023, the U.S. Supreme Court decided another case concerning the ATA, Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023). A unanimous Court held that social media companies could not be held secondarily liable under the ATA for their failure to remove ISIS content from their platforms. Id. at 477-78.

In June 2023, the Atchley defendants petitioned the Supreme Court for certiorari. AstraZeneca UK Ltd. v. Atchley, petition for cert. pending, No. 23-9 (filed June 30, 2023). The petition remains pending. Id.

II. Proposed Second Amended Complaint

In light of the shifting legal landscape, Plaintiffs now seek to file a Second Amended Complaint. ECF No. 171. Their request is, for the most part, uncontroversial. No Defendant takes issue with Plaintiffs' requests to:

• “drop[] Plaintiffs' direct-liability claims (Counts One through Four) against all Defendants except the MTN Defendants”;

• “drop[] claims brought by some Plaintiffs who voluntarily dismissed their claims”;

• “correct certain details-like attack dates or geographies, or biographical information” for certain Plaintiffs;

• “modestly refine[] Plaintiffs' . . . allegations about MTN's protection payments and tower shutdowns”;

• “make[] limited changes to the broader protection-payment allegations to make . . . clear[] that Defendants' conduct is sufficiently ‘culpable' under Twitter, 598 U.S. at 490”; and

• “supplement[] Plaintiffs' allegations about the roles played by al-Qaeda and the Haqqani Network in Plaintiffs' attacks.”

Id. at 4-7.

The MTN Defendants object to one addition to the proposed Second Amended Complaint: the “Irancell theory.” ECF No. 173 at 1-2. The Irancell theory alleges that MTN provided support to the Iranian Revolutionary Guards Corps (“IRGC”), a foreign terrorist organization; that the IRGC armed and financed the Taliban; and that the Taliban in turn carried out the attacks against Plaintiffs. ECF No. 171-3 ¶¶ 364-370, 2549, 2556. Counts One and Two of the proposed Second Amended Complaint allege that the MTN Defendants are directly liable under the ATA because they “provided material support to the Taliban and/or the Haqqani Network . . . by . . . entering a security agreement with and procuring communications equipment for the IRGC.” Id. ¶ 2549; see id. ¶ 2556. Counts Four and Five of the proposed Second Amended Complaint allege that the MTN Defendants are secondarily liable under the ATA because they “aided and abetted and knowingly provided substantial assistance to the Taliban's [and the Haqqani Network's] attacks on Plaintiffs . . . by entering a security agreement with and procuring equipment for the IRGC.” Id. ¶ 2575; see id. ¶ 2587.

III. Legal Standard

Pursuant to Federal Rule of Civil Procedure 15, a party may amend its pleading once as a matter of course, and thereafter “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a). The court should freely grant such leave “when justice so requires.” Id. “[T]he grant or denial of leave to amend is committed to a district court's discretion.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). However, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as ‘undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by [previous] amendments . . . [or] futility of amendment.'” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “Consideration of whether delay is undue . . . should generally take into account the actions of other parties and the possibility of any resulting prejudice.” Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996). “If the district court denies leave [to amend], it must state its reasons.” Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 38 (D.C. Cir. 2014).

Even if an amendment is permitted under Rule 15(a), “an amendment adding a new ground for relief to the complaint must contend with the applicable statute of limitations.” Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). “In limited circumstances, Rule 15(c) saves an otherwise untimely amendment by deeming it to ‘relate back' to the timely-filed claims the plaintiff alleged in the original complaint.” Id. An amendment relates back if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). An amendment does not relate back “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). The key inquiry is “whether the original complaint adequately notified the defendants of the basis for liability the plaintiffs would later advance in the amended complaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir. 2008).

IV. Discussion

The MTN Defendants argue that Plaintiffs' motion to amend the complaint to add the Irancell claims is improper under Rule 15. First, the MTN Defendants argue that amendment is improper under Rule 15(a) because Plaintiffs have unduly delayed in advancing this new theory of liability. ECF No 173 at 2-3. The MTN Defendants contend that undue delay alone, without prejudice, is sufficient to deny leave to amend. Id. In the alternative, the MTN Defendants argue that they are prejudiced by Plaintiffs' delay, and the court should therefore deny leave to amend. Id. Second, the MTN Defendants argue that amendment is improper because the Irancell claims are time-barred as to many Plaintiffs and do not relate...