     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 ELECTRONIC 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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   1st day of December, two thousand seventeen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               RICHARD C. WESLEY,
 7               PETER W. HALL,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   HARBI HUSSEIN, on behalf of himself and as a representative of the Estate of Saado Ali
12   Warsame, RIYAK ALI, AYANLE ALI, on behalf of himself and as a representative of the
13   Estate of Abdullahi Ali Anshoor, MARYAN ALI,
14
15                                      Plaintiffs-Appellants,
16
17                             v.                                                   17-432-cv
18
19   DAHABSHIIL TRANSFER SERVICES LTD, DAHABSHIL, INC., DAHAB-SHIL, INC.,
20   DAHABSHIIL PVT,
21
22                           Defendants-Appellees.
23   _____________________________________________________
24
25   Appearing for Appellant:           Joshua D. Arisohn, Bursor & Fisher, P.A., New York, N.Y.
26
27   Appearing for Appellee:            A. Katherine Toomey, Lewis Baach Kaufmann Middlemiss PLLC
28                                      (Elizabeth L. Marvin, Tara J. Plochocki, on the brief), Washington,
29                                      D.C., for Dahabshil, Inc. and Dahab-Shil, Inc.;
30
 1                                  Daniel L. Brown, Sheppard, Mullin, Richter & Hampton LLP,
 2                                  New York, N.Y., for Dahabshiil Transfer Services LTD and
 3                                  Dahabshiil PVT.
 4
 5   Appeal from the United States District Court for the Southern District of New York (Caproni,
 6   J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
10
11           Plaintiffs-Appellants Harbi Hussein, Ayanle Ali, Maryan Ali and Riyak Ali appeal the
12   January 27, 2017 opinion and order of the United States District Court for the Southern District
13   of New York (Caproni, J.) dismissing their first amended complaint with prejudice. Plaintiffs
14   raised claims under the material support provisions of the Anti-Terrorism Act (“ATA”), codified
15   at 18 U.S.C. §§ 2339A-2339C, and alleged that defendants conspired to provide support to the
16   terrorist organization al-Shabaab, which murdered plaintiffs’ relatives in Somalia in 2014. We
17   assume the parties’ familiarity with the underlying facts, procedural history, and specification of
18   issues for review.
19
20           We review de novo a district court’s dismissal of a complaint for failure to state a claim.
21   Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013). “To survive a motion to dismiss, a
22   complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
23   plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
24   citation omitted).
25
26           Each of the ATA material support provisions requires that a defendant act with a
27   specified degree of scienter, ranging from “knowingly” to the arguably higher standard of
28   “unlawfully and willfully.” 18 U.S.C. §§ 2339B, 2339C; see also Weiss v. Nat’l Westminster
29   Bank PLC, 768 F.3d 202, 207-08 (2d Cir. 2014) (discussing mental state requirement for civil
30   ATA claims brought pursuant to Section 2339B); United States v. George, 386 F.3d 383, 389 (2d
31   Cir. 2004) (“Divining the meaning of ‘willfully’ … has long bedeviled American courts.”).
32
33           Here, plaintiffs failed to raise a plausible allegation that defendants performed any
34   banking services in favor of al-Shabaab while acting with the requisite mental state. In their
35   complaint, plaintiffs assert that four transfers originating in Minnesota were made by defendants
36   on behalf of al-Shabaab. However, the complaint also indicates that all four transfers were sent
37   by individuals unaffiliated with defendants, who deliberately concealed the nature of the
38   transactions by sending the money under false names, or to individuals with no public
39   association with al-Shabaab. The remaining allegations in the complaint are highly generalized
40   and do not contain enough detail to “nudge[] their claims across the line from conceivable to
41   plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As a result, the complaint
42   does not provide a plausible basis to infer that defendants, either individually or collectively,
43   knew or were deliberately indifferent to the fact that their services were used to send funds to al-
44   Shabaab on any specific occasion. Cf. Weiss, 768 F.3d at 208.
45




                                                       2
 1           Plaintiffs argue that defendants must have known that they were providing financial
 2   services to al-Shabaab, because al-Shabaab members likely entered defendants’ branch locations
 3   in Somalia and were recognized on sight by employees. This celebrity-based theory of
 4   knowledge is speculative at best. Even assuming that members of al-Shabaab physically entered
 5   defendants’ branch locations—an assertion not contained in the complaint—it is pure conjecture
 6   to claim that defendants’ employees would have instantly known the identity and affiliation of
 7   such individuals. Even high-level members of terrorist organizations may be unknown to the
 8   public at large, unknown to the specific employees on duty, known only by name, or appear
 9   different in person.
10
11            For many of these same reasons, we also affirm the district court’s denial of leave to
12   amend the complaint. We generally review such decisions for abuse of discretion. McCarthy v.
13   Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). However, we review de novo the
14   district court’s denial of leave to amend where “the denial was based on an interpretation of law,
15   such as futility.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir.
16   2012). Plaintiffs did not specify below the details of how they would amend their complaint, but,
17   on appeal, plaintiffs propose a host of additional allegations. These generally relate to the
18   notoriety of the al-Shabaab affiliates that allegedly entered defendants’ branch locations, and
19   other instances where defendants allegedly assisted other terrorist networks, such as al-Qaeda.
20   Even overlooking plaintiffs’ failure to raise these allegations below, none of these proposed
21   additions would cure the deficiencies in the complaint. As discussed, speculation that members
22   of al-Shabaab would have been recognized by defendants’ employees is an insufficient basis to
23   infer scienter. And allegations pertaining to other terrorist organizations are no substitute for
24   facts indicating the defendants knowingly rendered services to al-Shabaab, as required for
25   plaintiffs to bring their claims under the ATA.
26
27           We have considered the remainder of plaintiffs’ arguments and find them to be without
28   merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
29   own costs.
30
31
32                                                        FOR THE COURT:
33                                                        Catherine O’Hagan Wolfe, Clerk
34




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