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CRIST v. REPUBLIC OF TURKEY

January 23, 1998

TAKEY CRIST, et al., Plaintiffs,
v.
THE REPUBLIC OF TURKEY, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on the various motions filed in this case by the parties after remand from the Court of Appeals. On May 2, 1997, plaintiffs filed a Motion to Amend Complaint. On June 6, 1997, defendant filed a Motion for a More Definite Statement and a Motion to Dismiss the Amended Complaint. In response to the filings of the defendant, on June 20, 1997, plaintiffs filed a Motion for Jurisdictional Discovery and a Motion to Hold in Abeyance a Ruling on Defendant's Motions for a More Definite Statement and to Dismiss the Amended Complaint. Upon consideration of the submissions of the parties and the relevant law, plaintiffs' motions for jurisdictional discovery and to amend their complaint are denied, and this case shall remain dismissed with prejudice.

 I. Background

 As an initial matter, plaintiffs' factual allegations will be presumed true and should be liberally construed in favor of plaintiffs. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 969 (D.C. Cir. 1979) (citing Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). Plaintiffs Takey Crist, Eugene Rossides, and Daniel Rossides are United States citizens of Greek descent who hold title to real property on the island of Cyprus. The properties owned by plaintiffs are located in the northern part of the island and, according to plaintiffs, are currently occupied or otherwise controlled by Turkish military forces. Plaintiffs sued the Republic of Turkey, alleging that Turkey had wrongfully taken their property without compensation and seek damages totaling $ 7.5 million.

 The tumultuous history of this Mediterranean island sets the backdrop of this current litigation. Prior to its annexation to Great Britain, Cyprus was controlled largely by the Ottoman Turks for several hundred years. In the late nineteenth century, Great Britain acquired Cyprus from the Ottoman Empire by agreement and in 1925, Cyprus became a Crown Colony of Great Britain. While an ethnic Turkish minority had established itself on Cyprus during the years of Ottoman rule, the dominant ethnic and demographic character of Cyprus during the colonial years remained Greek. A Greek Cypriot movement for union with Greece accelerated after World War II, punctuated by acts of terrorism and violence directed against Turkish Cypriot and British opponents, while the Turkish minority pressed for partition between Greek and Turkish Cypriots. After several years of armed strife, Greece, Turkey, and Great Britain concluded three treaties separately entitled the Treaty of Establishment, the Treaty of Guaranty, and the Treaty of Alliance (collectively referred to as "the London-Zurich Agreements of 1959-1960"). A compromise joint government with majority Greek representation was approved in 1959, and one year later, Cyprus became an independent republic.

 Despite its independent status, the movement for unification with Greece and accompanying violence continued. In July 1974, the military government in Greece instigated a coup against the Greek Cypriot President of Cyprus and replaced him with a functionary of their choosing. In reliance on the Treaty of Guaranty, Turkish forces invaded Cyprus and by the time hostilities had been quelled one month later through the establishment of a cease-fire, Turkey occupied the northern one-third of the island. The Turkish Cypriots established a functioning government in 1975 as the Turkish Federated State of Cyprus and in 1983, the state declared itself the independent nation of the Turkish Republic of Northern Cyprus. Although the Turkish Republic in Cyprus has sought to gain diplomatic recognition from the world community, to date, no nation other than Turkey has granted any such recognition. Indeed, the community of nations, including the United States, continues to recognize the Republic of Cyprus as the only sovereign power on the island of Cyprus.

 The Turkish invasion and ultimate division of Cyprus has resulted in the forced separation and displacement of ethnic communities on the island. After the Turkish invasion, the Turkish army forcibly expelled Greek Cypriots and foreign nationals of Greek Cypriot descent from the Turkish occupation zone. As a result of this expulsion, these individuals were displaced and excluded from real property in the Turkish occupation zone to which they held proper title under the laws of the Republic of Cyprus. As stated, plaintiffs assert that they own title to real property located in the portion of Cyprus now under the control of Turkish Cypriots.

 In their complaint, plaintiffs allege that in 1974, the local authorities established a committee that purported to handle the claims of foreign nationals to real property in the Turkish occupation zone. Plaintiffs contend that the committee expressly refuses to hear the claims of any foreign national of Greek descent and therefore, they are unable to obtain compensation for their displacement from their real property through any local remedy. For this reason, plaintiffs filed suit in this court against the Republic of Turkey alleging that Turkey has wrongfully taken their property without compensation. As Turkey is a sovereign nation, plaintiffs must premise jurisdiction on certain provisions found in the Foreign Sovereign Immunities Act ("FSIA"). 28 U.S.C. ยงยง 1330, 1602 et seq. (1994).

 In an order dated May 12, 1995, this court granted Turkey's motion to dismiss this suit with prejudice on the grounds that plaintiffs' claims were time-barred by the applicable statute of limitations. On appeal, the Court of Appeals vacated this court's order. Crist, et al. v. Republic of Turkey, 1997 U.S. App. LEXIS 749, No. 95-7149 (D.C. Cir. Jan. 13, 1997). The Court of Appeals concluded that the facts, as alleged by plaintiffs, precluded this court and the Court of Appeals from exercising jurisdiction over their claims in light of the holding in Transaero, Inc. v. La Fuerza Aerea Boliviana, 308 U.S. App. D.C. 86, 30 F.3d 148 (D.C. Cir. 1994). The Court of Appeals remanded the case to this court to determine whether plaintiffs should be allowed to amend their complaint to allege a different ground for jurisdiction, and if so, whether jurisdiction over these claims exists under the FSIA.

 Plaintiffs moved this court to amend their complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure and for jurisdictional discovery. Plaintiffs' motions are denied as it is this court's conclusion that jurisdictional discovery is unwarranted and any amendment to plaintiffs' complaint would be futile. This court does not have subject matter jurisdiction over the Republic of Turkey in this case, and this case shall therefore remain dismissed with prejudice.

 II. Analysis

 Plaintiffs' Motion to Amend Their Complaint

 Rule 15(a) of the Federal Rules of Civil Procedure states in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party . . . and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). In Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court defined the term "when justice so requires" and explained that "in the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" Id. at 182 (emphasis added). Accordingly, "within these bounds, a district court has discretion to grant or deny leave to amend under Rule 15(a)." Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 426 (D.C. Cir. 1996). See also Foman, 371 U.S. at 182 ("The grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant leave without any justifying reason . . . is not an exercise of discretion."); Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (indicating that the granting or denial of leave to amend is committed to the district court's discretion).

 As the Supreme Court stated in Foman, a motion to amend a complaint should be denied when such an amendment would be futile. "It has been repeatedly held that an amended complaint is 'futile' if the complaint as amended would not survive a motion to dismiss." Monroe v. Williams, 705 F. Supp. 621, 623 (D.D.C. 1988) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983)). See also Graves v. United States, 961 F. Supp. 314, 317 (D.D.C. 1997) ("A motion to amend the Complaint should be denied as 'futile' if the complaint as amended could not withstand a motion to dismiss.").

 In the instant case, the Republic of Turkey asserts that plaintiffs' motion to amend their complaint should be denied as futile. Specifically, the Republic of Turkey contends that plaintiffs' proposed amended complaint does not provide sufficient jurisdictional facts to support either subject matter or personal jurisdiction and thus, the Republic of Turkey is immune from suit under the FSIA. In light of these contentions, the Republic of Turkey filed a motion opposing plaintiffs' motion to amend and a motion to dismiss the complaint.

 When considering a motion to dismiss, a district court must accept the allegations of the complaint as true and construe all inferences in the plaintiffs' favor. Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 325 U.S. App. D.C. 117, 115 F.3d 1020, 1027-28 (D.C. Cir. 1997); Foremost-McKesson v. Islamic Republic of Iran, 284 U.S. App. D.C. 333, 905 F.2d 438, 440 n.3 (D.C. Cir. 1990). "Where the motion to dismiss is based on a claim of foreign sovereign immunity, which provides protection from suit and not merely a defense to liability . . . the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial." Jungquist, 115 F.3d at 1027-28 (quotations omitted). In consideration of the arguments presented by the Republic of Turkey, plaintiffs' proposed amended complaint must be examined to determine whether it may withstand a motion to dismiss in light of the appropriate jurisdictional provisions of the FSIA.

 A. The Retroactivity of the FSIA

 The FSIA was enacted in 1976 and "provides the sole basis for obtaining jurisdiction over a foreign state in a federal court." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). The enactment of the FSIA reflects a substantial codification of the restrictive theory of sovereign immunity by Congress. Princz v. Federal Republic of Germany, 307 U.S. App. D.C. 102, 26 F.3d 1166, 1169 (D.C. Cir. 1994); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 241 (2d Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 706 (9th Cir. 1992) ("In essence, the FSIA codified the restrictive theory of sovereign immunity which had become widely accepted in international ...


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