the government of Iraq and Congressman Bill Richardson who had
been dispatched by President Clinton to secure their release.
Compl. ¶ 9. Daliberti and Barloon's complaints arise out of acts
that occurred entirely within the borders of Iraq.
Plaintiffs Kathy Daliberti, Robin Beaty, Elizabeth Hall and
Linda Barloon (the "spouse plaintiffs") seek recovery for claims
of intentional infliction of emotional distress and loss of
consortium as a result of the acts committed against their
husbands. Compl. ¶¶ 17, 20, 21, 25. None of the spouse plaintiffs
was in the territory of Iraq at any time relevant to these
proceedings. The spouse plaintiffs therefore allege harm based on
conduct committed only in Kuwait and Iraq, but affecting them in
the United States.
Each of the male plaintiffs is seeking compensatory damages of
$20 million, and each of the spouse plaintiffs is seeking
compensatory damages of $5 million. Compl. at 13-14. Plaintiffs
ask that any judgment in their favor be enforced through the
seizure of Iraqi assets in this country. Compl. ¶ 32.
Plaintiffs filed their complaint in May 1996. As part of the
process to secure jurisdiction under the FSIA, they afforded the
defendant an opportunity to arbitrate these claims pursuant to
international rules of arbitration. Compl. ¶ 1; see also
28 U.S.C. § 1605(a)(7)(B)(i) (claim will be dismissed unless there
is an offer to arbitrate). Summonses were served on the defendant
via the United States Interests Section of the Polish Embassy in
Baghdad. See Notice of Service of Summons & Complaint, Sept.
12, 1996. On October 25, 1996, plaintiffs moved for, and
subsequently were granted, an entry of default against the
defendant for its failure to file a response. See Default, Nov.
27, 1996. Plaintiffs were directed by the Court to file a motion
for default judgment accompanied by factual evidence of their
claims, see 28 U.S.C. § 1608(e); Order of Jan. 13, 1997, which
plaintiffs did on January 29, 1997. On February 23, 1998, the
parties jointly filed a stipulation asking that the default
entered by the Clerk be vacated. The Court approved the
stipulation, set aside the entry of default and denied
plaintiffs' motion for default judgment as moot. See Order of
Mar. 6, 1998; Order of Mar. 9, 1998.
II. THE FOREIGN SOVEREIGN IMMUNITIES ACT
The Foreign Sovereign Immunities Act is "the sole basis for
obtaining jurisdiction over a foreign state in our courts."
Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Federal district
courts have exclusive jurisdiction over civil actions against a
foreign state, regardless of the amount in controversy, provided
that the foreign state is not entitled to immunity under the
FSIA. See 28 U.S.C. § 1330, 1604; Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. at 434-35, 109 S.Ct. 683.
Under the FSIA, a foreign state is presumed to be immune from
suit, 28 U.S.C. § 1604, and is in fact immune unless one or more
of the exceptions to immunity enumerated in the FSIA apply. See
28 U.S.C. § 1605-1607; Saudi Arabia v. Nelson, 507 U.S. 349,
355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). Once a defendant
presents a prima facie case that it is a foreign sovereign,
plaintiffs bear the burden of producing evidence to show that
there is no immunity and that the court therefore has
jurisdiction over the claims. See Drexel Burnham Lambert Group
Inc. v. Committee of Receivers for Galadari, 12 F.3d 317, 325
(2d Cir. 1993), cert. denied, 511 U.S. 1069, 114 S.Ct. 1644,
128 L.Ed.2d 365 (1994); Cargill Int'l S.A. v. M/T Pavel
Dybenko, 991 F.2d 1012, 1016 (2nd Cir. 1993).
A court may dismiss a complaint brought under the FSIA only if
it appears beyond doubt that plaintiffs can prove no set of facts
in support of their claims that
would entitle them to relief. See Neitzke v. Williams,
490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984)); Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir. 1994); cf. Saudi Arabia v. Nelson, 507
U.S. at 351, 113 S.Ct. 1471 (in reviewing dismissal under FSIA,
court accepts all factual allegations as true). Once plaintiff
has produced evidence that an exception applies, defendant must
produce evidence of its entitlement to immunity; "[i]f any of the
exceptions appears in the pleadings or is not refuted by the
foreign state asserting the defense, the motion to dismiss the
complaint must be denied." Baglab Ltd. v. Johnson Matthey
Bankers Ltd., 665 F. Supp. 289, 294 (S.D.N.Y. 1987). Since at
this stage the Court must accept as true all facts alleged by the
plaintiffs, the question is whether the facts alleged are
sufficient to establish the jurisdiction of this Court under an
exception to immunity under the FSIA and sufficient to state a
claim upon which relief may be granted.
A. State Sponsored Terrorism Exception
The state sponsored terrorism exception was enacted by Congress
as part of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), for the purpose of holding rogue states
accountable for acts of terrorism perpetrated on United States
citizens. See Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. No. 104-132, § 221(a), 110 Stat. 1214 (codified at
28 U.S.C. § 1605(a)(7)). It provides a cause of action against a
foreign state for anyone who alleges that he or she has suffered
injury "caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material
support or resources . . . for such an act."
28 U.S.C. § 1605(a)(7).*fn1 The legislation was motivated, at least
in part, by the ordeal that plaintiff Chad Hall alleges in this suit.
See Foreign Terrorism and U.S. Courts: Hearings Before the Subcomm.
on Courts and Admin. Practice of the Senate Comm. on the
Judiciary, Regarding S.825, the Foreign Sovereign Immunities
Act, 103d Cong. (June 21, 1994), available in 1994 WL 274204
(F.D.C.H.) (statement of Chad Hall). While the AEDPA was enacted
well after the events alleged by Hall and all of the other
claimants in this case occurred, Congress clearly intended the
Act to apply to "any cause of action arising before, on, or after
the date of enactment." Pub.L. No. 104-132, § 221(c), 110 Stat.
1214 (codified at 28 U.S.C. § 1605 note). Retroactivity
principles therefore are no bar to the application of the state
sponsored terrorism exception to this action. See Cicippio v.
Islamic Republic of Iran, 18 F. Supp.2d 62, 68-69 (D.D.C. 1998);
Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 13-14
(D.D.C. 1998); Alejandre v. Republic of Cuba, 996 F. Supp. 1239,
1247 n. 4 (S.D.Fla. 1997).
Several suits have been brought under the state sponsored
terrorism exception to the FSIA since it has been enacted and
codified at 28 U.S.C. § 1605(a)(7). See Anderson v. Islamic
Republic of Iran, 90 F. Supp.2d 107 (D.D.C. 2000) (suit arising
out of hostage taking in Lebanon); Cicippio v. Islamic Republic
of Iran, 18 F. Supp.2d 62 (D.D.C. 1998) (suit arising out of
hostage taking in Lebanon); Flatow v. Islamic Republic of Iran,
999 F. Supp. 1 (D.D.C. 1998) (suit arising out of bombing
in Israel which killed American student); Alejandre v. Republic
of Cuba, 996 F. Supp. 1239 (S.D.Fla. 1997) (suit arising out of
downing of civilian planes by Cuban Air Force); Rein v.
Socialist People's Libyan Arab Jamahiriya, 995 F. Supp. 325
(E.D.N.Y.), aff'd in relevant part, 162 F.3d 748 (2d Cir.
1998), cert. denied, 525 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d
235 (1999) (suit by survivors of victims of bombing of Pan Am
flight 103 over Lockerbie, Scotland).*fn2
Section 1605(a)(7) provides an exception to a foreign
sovereign's immunity from suit for actions where money damages
are sought against a foreign sovereign for:
personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support
or resources (as defined in section 2339A of title
18) for such an act if such an act or provision of
material support is engaged in by an official,
employee, or agent of such foreign state while acting
within the scope of his or her office, employment, or
28 U.S.C. § 1605(a)(7). Three conditions must be met in order to
bring suit under this section: (1) the foreign state must have
been designated as a state sponsor of terrorism pursuant to
either Section 6(j) of the Export Administration Act of 1979
(50 U.S.C.App. § 2405(j)) or Section 620A of the Foreign Assistance
Act of 1961 (22 U.S.C. § 2371); (2) if the actionable conduct of
the foreign state occurred within that state's territory, then
the state must be offered an opportunity to arbitrate the claims;
and (3) the plaintiff or the victim must be a United States
national. 28 U.S.C. § 1605(a)(7)(A), (B).