Chariss Finan, et al. v. Lafarge S.A., et al.; Tamara Fields, et al. v. Lafarge S.A., et al.; Diane Foley, et al. v. Lafarge S.A., et al.

• Court: District Court, E.D. New York
• Decided: October 20, 2025
• Docket: 1:23-cv-05691
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK CHARISS FINAN, et al., Plaintiffs, MEMORANDUM & ORDER -against- 22-CV-7831 (NGG) (PK) LAFARGE S.A., et al., Defendants. TAMARA FIELDS, et al., Plaintiffs, 23-CV-0169 (NGG) (PK) -against- LAFARGE S.A., et al., Defendants. DIANE FOLEY, et al., Plaintiffs, 23-GV-5691 (NGG) (PK) -against- LAFARGE S.A., et al., Defendants.

NICHOLAS G. GARAUFIS, United States District Judge. Defendants Lafarge S.A., Lafarge Cement Holding Limited, and Lafarge Cement Syria S.A. (collectively, “Defendants”) have filed a motion to certify for interlocutory appeal the court’s Memoran- dum and Order entered on August 29, 2025 granting in part and denying in part their combined motions to dismiss the operative complaints in the three above-captioned actions (the “August 29 Order”). (See generally Defs.’ Mem. in Support of Defs.’ Mot. to Certify the August 29 Order for Interlocutory Appeal, Foley v. Lafarge S.A., No. 23-CV-5691 (NGG) (PK) (E.D.N.Y. Aug. 5,

2024) (Dkt. 102-1) (“Defs.’ Mot.”).") Plaintiffs in all three actions oppose the motion. (See Pls.’ Joint Opp’n to Defs.’ Mot. (Dkt. 105 in Foley) (Pls. Opp.”).) For the following reasons, the court DE- NIES Defendants’ motion.” Defendants seek appellate review of the court’s determinations that it has personal jurisdiction under Federal Rule of Civil Pro- cedure 4(k)(2) and that Plaintiffs stated plausible claims for conspiracy under the Antiterrorism Act (the “ATA”). (See Defs.’ Mot. at 1.) With regard to the former, it contends that immediate appeal is needed to resolve “[w]hether Fuld v. Palestine Liberation Org., 606 U.S. 1 (2025) ... overrul[es] long-standing Second Circuit precedent requiring an assessment of the defendant’s con- tacts with the United States.” (See id. at 1, 10 (citing Porina v. Marward Shipping Co., 521 F.3d 122, 127 (2d Cir. 2008)); see also id. 5-6 (arguing that this question presents a controlling question of law)). With regard to the latter, Defendants argue that immediate review is needed to determine which of two legal standards a court must apply “when asserting whether a plaintiff has plausibly alleged a shared co-conspiratorial purpose” under the ATA. (See id. at 1 (first citing Freeman v. HSBC Holdings PLC, 57 F.4th 66 (2d Cir. 2023); and then citing United States v. Kha- lupsky, 5 F.4th 279 (2d Cir. 2021)); see also id. at (arguing that this question presents a controlling question of law)). For each determination, Defendants also contend that “there is a substan- tial ground for difference of opinion.” (See id. at 2-3, 6-13.) They further argue that “permitting an interlocutory appeal will expe- dite this litigation’ and potentially curtail the need to conduct

1 Hereinafter, references made to Defendants’ combined and Plaintiffs’ joint briefings correspond to the docket entries in Foley, and are cited as “[Document Name] (Dkt. [Docket Number] in Foley).” ? Defendants also move for reconsideration of portions of the August 29 Order, which Plaintiffs oppose. (See generally Defs.’ Mot. for Reconsidera- tion (Dkt. 101 in Foley); Pls.’ Joint Opp’n to Defs.’ Mot. for Reconsideration (Dkt. 106 in Foley).) The court will issue a separate ruling on that motion.

‘extensive and costly discovery involving multiple parties and third-parties in the United States and abroad.” (Id. at 14 (quoting Republic of Colom. v. Diageo N. Am. Inc., 619 F. Supp. 2d 7, 11 (E.D.N.Y. 2007)).) Accordingly, they ask the court to “exercise its discretion to permit an immediate appeal.” (Id. (quoting Dia- geo, 619 F. Supp. 2d at 11).) Plaintiffs oppose Defendants’ motion on all accounts. First, they argue that neither determination presents a controlling issue of law but a “run-of-the-mill quarrel with the [c]ourt’s application of law to facts [that] does not warrant an interlocutory appeal.” (See Pls.’ Opp. at 1; see also id. at 6-9 (arguing each determination presents mixed questions of law and facts).) Second, Plaintiffs contend that a reversal of the court’s jurisdictional holding “would not significantly affect (much less terminate) the litiga- tion because New York’s long-arm statute supplies an alternative basis for personal jurisdiction.”* (Id. at 7 (citing August 29 Order (Dkt. 97 in Foley) at 23-24).) With regard to the court’s ATA de- termination, Plaintiffs argue that Defendants’ two—and purportedly distinct—standards “do not conflict” because both cases convey the same “core proposition” that “co-conspirators must pursue a common object but need not share the same mo- tive” and that the court’s conclusion that Defendants and ISIS “shared a common objective—JSIS remaining in power-—that ISIS’s attacks furthered” meets this standard. (Id. at 9 (citing Kha- lupsky, 5 F.4th at 289 and Freeman, 57 F.4th at 80) and then quoting August 29 Order at 48).) Third, Plaintiffs argue that an appeal now would not “advance or terminate the litigation.”

3 The court acknowledges that while it addressed personal jurisdiction un- der New York’s long-arm statute at length in the August 29 Order, (see August 29 Order (Dkt. 97 in Foley) at 24-33), it ultimately declined to de- cide whether it has jurisdiction under the statute “because the court has personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2),” (id. at 33).

They note that, should the Second Circuit reverse this court’s ju- risdictional determination, this court would have to address whether personal jurisdiction exists under New York’s long-arm statute” on remand. (Pls.’ Opp. at 16.) Additionally, should the Circuit reverse the ATA determination, they maintain that any error would be “harmless” given that the August 29 Order satis- fies either standard offered by Defendants. (See id. at 16-17.) Finally, Plaintiffs independently urge the court to exercise its dis- cretion to deny certification. Ud. at 18.) On this last argument, Plaintiffs first point to the lack of district court cases addressing the issue, indicating that the ordinary appellate process would allow for more clear definition of the issue’s importance, scope, and nature.” (Id. at 19.) Plaintiffs then argue that “[t]he equi- ties... weigh strongly against an interlocutory appeal” because “delaying the case .. . ‘increases the danger of prejudice result- ing from the loss of evidence.” They note that the “misconduct at the heart of this case is now more than a decade old” and the “Te]vidence and witnesses are in many countries.” (Ud. at 19 (quoting Clinton v. Jones, 520 U.S. 681, 707-08 (1997)) (stating the same in denying a stay of proceedings).) The court agrees with Plaintiffs. A district court may choose to certify an order for interlocutory appeal if three conditions are met: (1) the order “involves a controlling question of law’; (2) there is a “substantial ground for difference of opinion” on that question of law; and (3) an immediate appeal “may materi- ally advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Even then, the court must independently exercise its discretion to determine whether “exceptional circumstances... justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” AMTEC Int! of N.Y. Corp. v. Beverage All. LLC, No. 10-CV-1147 (NGG) (SMG), 2011 WL 4597480, at *2 (E.D.N.Y. Sept. 30, 2011) (quoting In

re Flor, 79 F.3d 281, 284 (2d Cir.1996) and citing Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.1996)). The court declines to exercise its discretion to grant certification.* This litigation involves eight separate cases filed by eight distinct sets of plaintiffs.° These sets of plaintiffs are grouped into three bundles that sit at distinct stages of the pretrial process. Defend- ants’ motion only concerns one of those bundles,® for which it seeks to create parallel appellate proceedings. Enough is enough. Although this case has become exceptional in its procedural com- plexity, that is precisely why it does not present “exceptional circumstances” necessary for immediate appellate review. See In re Flor, 79 F.3d at 284 (requiring such circumstances to “justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment” and warrant the certifi- cation). Where possible, courts seek to avoid the “prolong[ed] judicial proceedings” and “add[ed] delay” spawned by interlocu- tory appeals. Ramos v. SimplexGrinnell LP, No. 07-CV-981 (SMG), 2011 WL 3472341, at *1 (E.D.N.Y. Aug. 8, 2011) (“Be- cause interlocutory appeals prolong judicial proceedings, add delay and expense, burden appellate courts, and present issues for review on incomplete records, a court should grant applica- tions brought under Section 1292(b) only in exceptional circumstances.”) (citing In re Flor, 79 F.3d at 284 and Lothian 4 For this reason, it omits analysis of the three 28 U.S.C. § 1292(b) require- ments. See In re Roman Catholic Diocese of Albany, Inc., 745 F.3d 30, 36 (2d Cir. 2014) (even if order qualifies “for certification under 28 U.S.C. § 1292(b), the certification decision is entirely a matter of discretion for the district court”). 5 The litigation involves not only the three above-captioned cases, but also five other related actions: Wilson v. LaFarge S.A., No. 22-CV-01975 (NGG) (PK), Murad v. LaFarge S.A., No. 23-CV-9186, Goldman v. LaFarge S.A., No. 24-CV-1043 (NGG) (PK), Shirley v. LaFarge S.A., No. 25-CV-4248 (NGG) (PR), Black et al. v. Lafarge S.A., No. 25-CV-8901 (NGG) (PK). © As discussed, the bundle at issue includes only the three above-captioned cases.

Cassidy LLC v. Ransom, No. 10-CV-0420 (ENV) (SMG), 2010 WL 3767617 *1 (E.D.N.Y. Sept.17, 2010)); see In re Brookhaven Nat! Lab’y Trichloroethylene Cases, 514 F. Supp. 3d 546, 551 (E.D.N.Y. 2021) (denying certification because “[f]urther delays of the kind that certification would bring are unjustifiable, particularly in light of the serious injuries suffered by the plaintiffs in this case, allegedly at defendants’ hands”). Because granting Defend- ants’ motion would unjustifiably invite those delays,” the court DENIES Defendants’ motion to certify the August 29 Order for interlocutory appeal. SO ORDERED.

Dated: — Brooklyn, New York October /?,, 2025 s/Nicholas G. Garaufis ICGHOLAS G. GARAUFIS United States District Judge

7 Defendants’ arguments to the contrary are unavailing. Specifically, De- fendants’ argument that “the parties have agreed on a discovery plan and corresponding schedule,” which would proceed in this court alongside the requested appellate proceedings. (Defs.’ Reply Mem. in Support of Defs.’ Mot. to Certify the August 29 Order for Interlocutory Appeal (Dkt. 107 in Foley) at 9-10; see also Defs.’ Mot. at 14 (arguing that “[a]n interlocutory appeal is appropriate in this case because it is the most efficient means of advancing or disposing of the litigation” (quoting Diageo, 619 F. Supp. 2d at 11)).) This, however, ignores the practical reality of delay—and added expense—that courts in this district have explicitly and repeatedly recog- nized when denying requests for certification. See, e.g., In re Brookhaven, 514 F. Supp. 3d at 551; AMTEC Int'l of N.Y. Corp., 2011 WL 4597480, at *2; Lohan Cassidy LLC v. Ransom, 2010 WL 3767617, at *1 (E.D.N.Y. Sept. 17, 2010).