17-432-cv

Hussein v. Dahabshiil Transfer Servs. Ltd.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2
1 st day of December, two thousand seventeen. 3

4 Present: ROSEMARY S. POOLER, 5 RICHARD C. WESLEY, 6 PETER W. HALL, 7 Circuit Judges

. 8

_____________________________________________________ 9

10 HARBI HUSSEIN, on behalf of himself and as a representative of the Estate of Saado Ali 11 Warsame, RIYAK ALI, AYANLE ALI, on behalf of himself and as a representative of the 12 Estate of Abdullahi Ali Anshoor, MARYAN ALI, 13

14 Plaintiffs-Appellants

, 15

16
v. 17-432-cv 17

18 DAHABSHIIL TRANSFER SERVICES LTD, DAHABSHIL, INC., DAHAB-SHIL, INC., 19 DAHABSHIIL PVT, 20

21 Defendants-Appellees

. 22

_____________________________________________________ 23

24 Appearing for Appellant: Joshua D. Arisohn, Bursor & Fisher, P. A., New York, N.Y. 25

26 Appearing for Appellee: A. Katherine T oomey, Lewis Baach Kauf mann Middlemiss PLLC 27 (Elizabeth L. Marvin, Tara J. Plochocki, on the brief ), Washington, 28 D.C., for Dahabshil, Inc. and Dahab-Shil, Inc. ; 29

302 Daniel L. Brown, Sheppar d, Mullin, Richter & Hampton LLP, 1 New York, N.Y., for Dahabshiil Transfer Services LTD and 2 Dahabshiil PVT

. 3

4 Appeal from the United States Di strict Court for the Southern Di strict of New York (Caproni, 5
J. ). 6

7 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 8 AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

. 9

10 Plaintiffs-Appellants Harbi Hussein, Ayanle Ali, Maryan Ali and Riyak Ali appeal the 11 January 27, 2017 opinion and order of the United Stat es District Court for the Southern District 12 of New York (Caproni, J .) dismissing their first amended co mplaint with prejudice. Plaintiffs 13 raised claims under the material support provisi ons of the Anti-Terrorism Act (“ATA”), codified 14 at 18 U.S.C. §§ 2339A-2339C, and alleged that de fendants conspired to provide support to the 15 terrorist organization al-Shabaab, which murdered plaintiffs’ relatives in Somalia in 2014. We 16 assume the parties’ familiarity with the underlying facts, procedural history, and specification of 17
issues for review. 18

19
We review de novo a district court’s dismissal of a complaint for failure to state a claim. 20 Rothstein v. UBS AG , 708 F.3d 82, 90 (2d Cir. 2013). “To survive a motion to dismiss, a 21 complaint must contain sufficient factual matter, accep ted as true, to state a claim to relief that is 22 plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks and 23 citation omitted). 24

25 Each of the ATA material support provisions requires that a defendant act with a 26 specified degree of scienter, ranging from “know ingly” to the arguabl y higher standard of 27 “unlawfully and willfully.” 18 U.S.C. §§ 2339B, 2339C; see also Weiss v. Nat’l Westminster 28 Bank PLC , 768 F.3d 202, 207-08 (2d Cir. 2014) (discussi ng mental state requirement for civil 29 ATA claims brought pursuant to Section 2339B); United States v. George , 386 F.3d 383, 389 (2d 30 Cir. 2004) (“Divining the meaning of ‘willfully’ ... has long bedeviled American courts.”). 31

32 Here, plaintiffs failed to raise a plausible allegation th at defendants performed any 33 banking services in favor of al-Shabaab while ac ting with the requisite mental state. In their 34 complaint, plaintiffs assert that four transfer s originating in Minnesota were made by defendants 35 on behalf of al-Shabaab. However, the complaint al so indicates that all four transfers were sent 36 by individuals unaffiliated with defendants, w ho deliberately concealed the nature of the 37 transactions by sending the money under false names, or to individuals with no public 38
association with al-Shab aab. The remaining allegations in the complaint are highly generalized 39 and do not contain enough detail to “nudge[] their claims across the line from conceivable to 40 plausible.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). As a result, the complaint 41 does not provide a plausible basis to infer that defendants, either individually or collectively, 42 knew or were deliberately indifferentto the fact that their services were used to send funds to al43 Shabaab on any specific occasion. Cf. Weiss , 768 F.3d at 208. 44

453 Plaintiffs argue that defendants must ha ve known that they we re providing financial 1 services to al-Shabaab, because al-Shabaab memb ers likely entered defendants’ branch locations 2 in Somalia and were recognized on sight by em ployees. This celebrity-based theory of 3 knowledge is speculative at best. Even assuming th at members of al-Shab aab physically entered 4
defendants’ branch locations—an as sertion not contained in the co mplaint—it is pure conjecture 5 to claim that defendants’ employees would have instantly known the identity and affiliation of 6 such individuals. Even high-level members of terrorist organizations may be unknown to the 7 public at large, unknown to the specific empl oyees on duty, known only by name, or appear 8 different in person. 9

10 For many of these same reasons, we also affi rm the district court’s denial of leave to 11 amend the complaint. We generally review such decisions for abuse of discretion. McCarthy v. 12 Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007). However, we review de novo the 13
district court’s denial of leave to amend where “t he denial was based on an interpretation of law, 14 such as futility.” Panther Partners Inc. v. Ikanos Commc’ns, Inc. , 681 F.3d 114, 119 (2d Cir. 15 2012). Plaintiffs did not specify be low the details of how they w ould amend their complaint, but, 16 on appeal, plaintiffs propose a host of additiona l allegations. These generally relate to the 17 notoriety of the al-Shabaab affiliates that allegedly entered defendants’ branch locations, and 18
other instances where defendants a llegedly assisted other terrorist networks, such as al-Qaeda. 19 Even overlooking plaintiffs’ failure to raise th ese allegations below, none of these proposed 20
additions would cure the deficien cies in the complaint. As disc ussed, speculation that members 21 of al-Shabaab would have been recognized by de fendants’ employees is an insufficient basis to 22 infer scienter. And allegations pertaining to othe r terrorist organizations are no substitute for 23 facts indicating the defendants knowingly rendere d services to al-Sha baab, as required for 24 plaintiffs to bring their claims under the ATA. 25

26 We have considered the remainder of plain tiffs’ arguments and find them to be without 27 merit. Accordingly, the order of the district c ourt hereby is AFFIRMED. E ach side to bear its 28

own costs. 29

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FOR THE COURT: 32 Catherine O’Hagan Wolfe, Clerk 33

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