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In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001., 2012 WL 257568 (2012)

Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009) (allowing TVPA action against corporate defendant), and Khulumani, 504 F.3d at 260, with Mohamad v. Rajoub, 634 F.3d 604, 607-08 (D.C. Cir. 2011) (holding that TVPA liability does not extend to non-natural persons), and Aziz v. Alcolac, Inc., 658 F.3d 388, 392 (4th Cir. 2011) (same), and Bowoto v. Chevron Corp., 621 F.3d 1116, 1126-27 (9th Cir. 2010) (same). In the interest of judicial economy, plaintiffs respectfully request that this Court defer deciding their appeal of the dismissal of their TVPA claims until the Supreme Court has decided Mohamad and the Court can obtain the benefit thereafter of the parties’ views of the implications of that decision for this case.

Alternatively, should Mohamad not result in an opinion or if this Court is inclined to reach a decision on the TVPA claims independently of Mohamad, it should vacate the district court’s dismissals. The TVPA *138 creates an action in tort and, therefore, should be interpreted in light of the well-established common law (and international law) presumption that organizations are liable in tort for the acts of their agents. See Balt. & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317, 330 (1883); Br. for Petitioners at 12-17, Mohamad v. Palestinian Authority, No. 11-88 (Sup. Ct. Dec. 14, 2011) (“Mohamad Br.”). Moreover, the TVPA’s use of the term “individual” comports with this presumption because this term has often been construed as synonymous with the term “person,” which has a broad legal meaning that includes organizational entities, such as corporations. See, e.g., Clinton v. City of New York, 524 U.S. 417, 428 & n.13 (1998); Mohamad Br. at 19-20 (citing cases from federals courts of appeals); see also id. at 17-18 (noting that dictionary definitions of the word “individual” often include non-natural entities).

Furthermore, such a broad interpretation is consistent with the structure of the TVPA, which incorporates agency principles by imposing liability on individuals who “subject[]” a victim to torture or extrajudicial killing. Id. at 25-26. This construction also is consistent with the fact that organizational liability exists under other federal statutes that provide civil remedies to victims of torture and extrajudicial killing. See, e.g., *139 Brentwood Acad. v. Term. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001) (permitting a section 1983 suit against an association); Ungar v. Palestine Liberation Org., 402 F.3d 274, 276 (1st Cir. 2005) (affirming ATA judgment against terrorist organizations); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 72 (D.D.C. 2010) (finding terrorist organization liable under 28 U.S.C. § 1605A(c)); see also Mohamad Br. at 30-34. Finally, the legislative history of the TVPA reveals that Congress’s use of the term “individual” in the TVPA was only to “make crystal clear that foreign states or their entities cannot be sued ....” S. Rep. No. 102-249, at 6 (1991), and that Congress repeatedly assumed that organizations would be proper defendants in TVPA lawsuits. Mohamad Br. at 43-49. For these and other reasons elaborated in the briefs before the Supreme Court in Mohamad, Congress clearly intended the TVPA to provide a remedy against a broader set of defendants that includes entities other than natural persons.

IV. The District Court Improperly Dismissed the Negligence And Intentional Tort Claims

Plaintiffs pleaded a number of state law tort claims against defendants subject to this appeal, including negligence, negligent infliction of emotional distress (“NIED”), intentional infliction of emotional distress (“IIED”), assault and battery, trespass, and recovery under New York’s *140 wrongful death and survival statutes. The district court wrongly dismissed claims against defendants under each of these theories of tort liability.

A. The District Court Wrongly Dismissed the Negligence Claims

The district court dismissed plaintiffs’ claims for negligence and NIED based on its conclusion that the plaintiffs failed to “allege or identify a duty owed to Plaintiffs” by the defendants. SPA55 (Terrorist Attacks I); cf. SPA232 n.6 (Terrorist Attacks V); SPA88 (Terrorist Attacks II). The court was simply wrong about this: plaintiffs expressly alleged a duty owed and violated by the defendants. See R.3916 (“By virtue of their participation in the conspiracy to commit acts of international terrorism against the United States, its nationals and allies, including the September 11th Attack, the defendants negligently, intentionally, recklessly, willfully and wantonly breached duties of care owed to plaintiffs and the employees of plaintiffs’ insureds.”) (emphasis added).

Because the district court overlooked the plain language of the pleadings, it did not conduct an analysis of whether defendants did, in fact, owe plaintiffs a duty of care. Had it done so, it would have found the duty to be manifest. In New

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