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

present at the time of death or injury to recover under NIED. Bovsun, 61 N.Y.2d at 233. Here, plaintiffs -- many of them the surviving family members of 9/11 victims -- allege that the defendants’ knowing material support of al-Qaeda was instrumental in allowing the organization to develop and perpetrate the 9/11 attacks, e.g., JA3779-80, and fit easily under the bystander theory.

*145 Given the express allegation of a duty of care in plaintiffs’ pleadings, the clear existence of defendants’ duty under traditional tort principles, and the deferential standard afforded to the complaint at the motion to dismiss stage, Matson, 631 F.3d at 72, the Court should vacate the dismissal of plaintiffs’ negligence and NIED claims.

B. The District Court Wrongly Dismissed the Intentional Tort Claims

The district court dismissed plaintiffs’ intentional tort claims for assault, battery, and IIED for a number of equally misguided reasons.

1. Plaintiffs’ Claims Are Not Time-Barred.

The court first held that all of the Federal Ins. plaintiffs’ claims are barred because they were filed outside of New York’s one-year limitations period that applies to these intentional torts. SPA232 n.6 (Terrorist Attacks V); SPA210 (Terrorist Attacks IV); SPA101-02 (DMI-Kamel); SPA87-88 (Terrorist Attacks II); SPA53 (Terrorist Attacks I) (citing Holmes v. Lorch, 329 F. Supp. 2d 516, 523 (S.D.N.Y. 2004)); N.Y. C.P.L.R. 215(3) (McKinney 2002)).

The court failed to recognize, however, that certain of the Federal plaintiffs’ claims arise from injuries suffered in Pennsylvania and Virginia. Applying New York choice-of-law principles, the district court should have *146 found the Virginia and Pennsylvania-based claims timely under those States’ two-year statutes of limitations. Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir. 2005) (where “jurisdiction is grounded in diversity, we apply the forum state’s choice-of-law rules”); Neumeier v. Kuehner, 286 N.E.2d 454, 457-58 (N.Y. 1972) (where the plaintiff and defendant are domiciled in different states, New York courts generally apply the law of the state where the injury occurred.); Va. Code § 8.01-243(A) (two-year default statute of limitations for personal injury claims); Luddeke v. Amana Refrigeration, Inc., 387 S.E.2d 502, 504 (Va. 1990) (under Virginia law, both intentional infliction of emotional distress and assault and battery claims are subject to a two-year statute of limitations.); 42 Pa. Consol. Stat. §§ 5524(1) (two-year statute of limitations for assault and battery actions) & 5524(7) (two-year default statute of limitations for personal injury actions); Bougher v. Univ. of Pittsburgh, 882 F.2d 74 (3d Cir. 1989) (applying two year statute of limitations to a claim for intentional infliction of emotional distress); SPA53-54 (Terrorist Attacks I) (recognizing that the Federal plaintiffs filed their complaint less than two years after the 9/11 attacks).

*147 For those claims that are subject to New York’s statute of limitations, the district court should have applied equitable tolling principles. All of plaintiffs’ claims arise from the defendants’ participation in the conspiracy to conduct terrorist attacks against the United States, which was designed to hide the identity of the participants from disclosure to the outside world. As a result, the statute of limitations was tolled until the plaintiffs reasonably should have become aware of the defendants’ involvement in the conspiracy, itself a question of fact to be determined through discovery. Yeadon v. New York Transit Auth., 719 F. Supp. 204, 209 (S.D.N.Y. 1989) (If “a defendant has concealed facts that are critical to a cause of action, then the statute of limitations is tolled until plaintiff discovers or with reasonable diligence should have discovered his claim”); In re Issuer Plaintiff Initial Pub. Offering Antitrust Litig., 00 CIV 7804 (LMM), 2004 WL 487222, at *5 (S.D.N.Y. Mar. 12, 2004). Given the clandestine nature of the conspiracy in which the defendants participated, equitable principles require that the statute of limitations be tolled. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (holding that “[e]quitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances”).

*148 1. Plaintiffs Pleaded That Defendants Materially Supported al-Qaeda.

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