Owens v. Republic of Sudan

Page 99

412 F.Supp.2d 99

James OWENS, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.

No. CIV.A.01-2244(JDB).

United States District Court, District of Columbia.

January 26, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas Fortune Fay, Steven R. Perles, Tuna Mecit, Law Offices of Fay & Perles, Washington, DC, Ronald Alvin Karp, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Rockville, MD, for Plaintiffs.

Douglas K. Bemis, Jr., Hunton & Williams LLP, Washington, DC, for the Sudan Defendants.

MEMORANDUM OPINION

BATES, District Judge.

This civil action arises out of the August 7, 1998, terrorist attacks on the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The nearly simultaneous bombings killed at least 224 individuals and wounded more than 4,000 others, among them the ten principal plaintiffs in this action.¹ Pursuant to a 1996 amendment to the Foreign Sovereign Immunities Act ("FSIA") that revoked jurisdictional protection for terrorist-sponsoring governments, plaintiffs filed this suit against the Republic of Iran, the Republic of Sudan, and two of their respective ministries on the theory that they provided material support to al Qaeda and Hizbollah²—the organizations believed to be responsible for the bombings—and thus are subject to civil liability in the United States for the harms caused by their actions. Plaintiffs allege that the injuries they sustained as a result of the embassy bombings were a "direct and proximate consequence of the intentional acts of the agents of the Defendants," who aided, abetted, or conspired with the attackers. See, e.g., Third Am. Compl. ¶¶ 4, 14. As compensation for those injuries, plaintiffs seek money damages from defendants, jointly and severally, in the amount of $258 million.³

Consistent with the requirements of the FSIA, plaintiffs served each defendant with a copy of the complaint and summons via diplomatic channels. When defendants failed to appear, the Clerk of this Court recorded an entry of default on May 9, 2003. As is customary in these cases, the Court scheduled an ex parte trial on liability and damages.⁴ Several months later, while plaintiffs were in the process of collecting evidence to support their claims, the Republic of Sudan and its Ministry of the Interior ("the Sudan defendants") entered an appearance in this case through counsel. Soon thereafter, on March 10, 2004, the Sudan defendants filed a motion to dismiss, which contended that, inter alia, (1) the Court lacked jurisdiction over the claims against them because the FSIA gave them immunity and plaintiffs failed to demonstrate that the case met the requirements of 28 U.S.C. § 1605(a)(7), the terrorism exception to foreign sovereign immunity; (2) plaintiffs failed to state a claim upon which relief could be granted because the complaint did not assert proper causes of action; and (3) plaintiffs' claims were foreclosed by the act-of-state and politicalquestion doctrines.

On March 29, 2005, the Court granted in part and denied in part the Sudan defendants' motion to dismiss. To the extent that it granted the motion, however, the Court permitted plaintiffs to amend the complaint to cure the deficiencies observed. The Sudan defendants timely filed a notice of appeal,⁵ but asked the Court of Appeals to hold their appeal in abeyance to permit them to challenge the sufficiency of the amended complaint before this Court. The Court of Appeals granted that request. Plaintiffs filed their Third Amended Complaint on May 3, 2005,⁶ and the Sudan defendants moved to dismiss that complaint on June 24, 2005. Having received extensive briefing from the parties on the pertinent legal questions, and having carefully considered those arguments and the entire record of this case, the Court will deny the motion to dismiss the Third Amended Complaint for the reasons that follow.

BACKGROUND

On August 7, 1998, terrorists detonated massive vehicle bombs outside two U.S. diplomatic outposts in East Africa within a span of just a few minutes. At approximately 10:30 a.m., a truck that contained a large bomb exploded in the rear parking area of the U.S. Embassy in Nairobi, Kenya. The explosion killed 213 people, including forty-four Embassy employees (twelve of whom were American citizens), and injured an estimated 4,000 people— mostly Kenyan civilians—who were either at the Embassy or in the vicinity. Moments later, at approximately 10:39 a.m., a suicide bomber drove a truck laden with explosives up to a vehicular gate at the U.S. Embassy in Dar es Salaam, Tanzania, and ignited a blast that killed eleven people and injured another eighty-five. See generally Department of State, Report of the Accountability Review Boards on the Embassy Bombings in Nairobi and Dar es Salaam on August 7, 1998, at http:// www.state. gov/www/regions/ africa/accountability _report.html.

Plaintiffs, all United States citizens claiming personal injuries resulting from the bombings, brought this action pursuant to the state-sponsored terrorism exception to foreign sovereign immunity. Their complaint contends that defendants furnished material support, in the form of "cover, sanctuary, technical assistance, explosive devices and training," to al Qaeda and Hizbollah, the two terrorist organizations alleged to have carried out the embassy bombings. Third Am. Compl. ¶ 2. As to the Sudan defendants in particular, the complaint alleges that they "entered into an agreement with al Qaeda and Hezbollah under which those organizations received shelter and protection from interference while carrying out planning and training of various persons for terrorist attacks, including the attacks of August 7, 1998." Id. at ¶ 18. The complaint goes on to allege specifically (albeit in terms that are somewhat imprecise with respect to timing) a series of actions taken by agents of the government of Sudan to furnish Osama bin Laden,⁷ the putative leader of al Qaeda, and his associates with shelter, security, financial and logistical support, and business opportunities. See id. at ¶¶ 8(a), 8(e), 8(h), 8(I), 8(k), 8(l), 8(m), 8(n), 8(o), 8(r), 8(t), 8(v), 8(w). Those actions, plaintiffs contend, led directly to the 1998 embassy bombings in Nairobi and Dar es Salaam and, therefore, not only are sufficient to divest the Republic of Sudan of sovereign immunity under 28 U.S.C. § 1605(a)(7), but also will support substantive claims for assault and battery, intentional infliction of emotional distress, and loss of consortium under the common law of the plaintiffs' respective home states.⁸

The Sudan defendants have moved to dismiss the Third Amended Complaint on two grounds: (1) that the Sudan defendants are entitled to sovereign immunity and, therefore, the court is deprived of subject-matter jurisdiction over claims against them, see Fed.R.Civ.P. 12(b)(1); and (2) that plaintiffs' pleading is legally insufficient and therefore fails to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6).

ANALYSIS

I. Subject-matter Jurisdiction

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Sudan defendants have moved to dismiss the action against them for want of subject-matter jurisdiction based on an assertion of sovereign immunity. Ordinarily, when reviewing a motion to dismiss that contests the court's subject-matter jurisdiction, the court must accept as true all the factual allegations contained in the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517, (1993). Based on those allegations—and any other materials that the court considers relevant to the jurisdictional inquiry—the court must determine, as a matter of law, whether the plaintiff has met its burden of establishing a sufficient basis for the court's exercise of jurisdiction. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). But where, as here, the jurisdictional challenge turns on a defendant's claim of entitlement to sovereign immunity—a claim that may require the court to resolve not only questions of law but also questions of fact at the outset of the litigation—the standard of review is altered slightly.

A. Standard of Review

Because sovereign immunity is in the nature of an affirmative defense, the plaintiff need not prove the absence of sovereign immunity in the first instance; rather, "the defendant bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000) (emphasis added). If the foreign-sovereign defendant proves that no exception applies, then "immunity under the FSIA is complete: The district court lacks subject matter jurisdiction over the plaintiff's case." Id. at 39. In attempting to prove the inapplicability of any of the statutory exceptions to immunity, the defendant "may challenge either the legal sufficiency or the factual underpinning of an exception." Id. (emphasis added). When a defendant challenges the factual basis of the court's jurisdiction, the court "must go beyond the pleadings and resolve any disputed issues of fact" that are relevant to the jurisdictional determination. Id. Here, however, the Sudan defendants do not challenge the truth of the complaint's factual assertions for purposes of the motion to dismiss, see Sudan Defs.' Mem. in Supp. of Mot. to Dismiss at 2 n. 2, so the Court will "take plaintiff[s'] factual allegations as true and determine whether they bring the case within any of the exceptions to immunity," see Phoenix Consulting, 216 F.3d at 40, keeping in mind that the ultimate burden rests on the defendant to persuade the Court that plaintiffs' claims are, as a matter of law, incapable of satisfying any of the FSIA exceptions. Thus, when the facts are undisputed for purposes of a Rule 12(b)(1) challenge asserting...