The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Plaintiffs have brought suit seeking damages for claims arising
out of various instances of alleged torture suffered at the hands
of the defendant, the Republic of Iraq, a sovereign nation.
Defendant has moved to dismiss for lack of personal and subject
matter jurisdiction and for failure to state a claim under Rule
12(b)(1), (2) and (6) of the Federal Rules of Civil Procedure.
Iraq asserts that the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1602 et seq., gives it immunity from suit in the
courts of this country and that none of the exceptions to the
FSIA applies in this instance. It also argues that because Iraq
has insufficient contacts with the United States, no U.S. court
has personal jurisdiction over Iraq. Finally, defendant asserts
that the case should be dismissed under the act of state
The Court concludes that defendant's alleged actions fall
within a category of conduct that Congress specifically intended
to exempt from FSIA protection when it amended the FSIA to
include an exception for state sponsored acts of terrorism. The
Court also concludes that defendant's alleged conduct does not
fall under any of the other exceptions to the FSIA, and that
claims brought exclusively under those exceptions, including
claims brought by the spouses of those asserting they were
victims of terrorism, must be dismissed for lack of subject
matter jurisdiction and for failure to state a claim. With regard
to the surviving claims, the Court concludes both that it has
personal jurisdiction and that plaintiffs have adequately stated
claims upon which relief can be granted.
The act of state doctrine does not bar this suit.
Plaintiffs' claims arise out of three separate but similar
incidents in which the defendant arrested and detained the male
plaintiffs, all of whom are United States citizens who were doing
business in Kuwait. The four male plaintiffs seek damages for
acts of kidnapping, false imprisonment and torture; the spouses
of the four men seek damages for pain and suffering and loss of
Plaintiff Chad Hall was removing land mines within the borders
of Kuwait in October 1992 when he allegedly was kidnapped at
gunpoint and removed from Kuwait to Baghdad, Iraq. Compl. ¶ 15.
Hall was held as a prisoner by the government of Iraq, although
it is not clear from the pleadings for how long, and he claims
that Iraq tortured him while he was a prisoner. See id. Hall's
claims arise out of acts both within defendant's territorial
jurisdiction (the imprisonment and torture), and outside its
territorial jurisdiction (the kidnapping in Kuwait). Hall brought
suit on these same claims prior to enactment of the state
sponsored terrorism exception to the FSIA, and his claims
initially were dismissed for lack of subject matter jurisdiction.
See Hall v. Socialist People's Republic of Iraq, Civil Action
No. 92-2842, Memorandum and Order (D.D.C. Dec. 9, 1994), aff'd
without opinion, 80 F.3d 558 (D.C.Cir. 1996).
Plaintiff Kenneth Beaty was traveling within the borders of
Kuwait in April 1993 when he approached a border checkpoint
between Kuwait and Iraq. Compl. ¶ 10. Beaty asked an Iraqi border
guard for directions to an oil well on the Kuwaiti side of the
border without entering Iraq. Id. Beaty was arrested by agents
of Iraq and taken to Baghdad where he was allegedly held under
inhumane circumstances and subjected to torture. Id. Beaty was
tried in an Iraqi court on charges of "illegal entry" and
espionage and found not guilty. Compl. ¶ 11. Beaty was told that
he was free to leave the Republic of Iraq, but before he could
actually leave he was informed that "notwithstanding the
[acquittal],  he was sentenced to eight years . . . in prison."
Compl. ¶¶ 11, 12. Beaty was held for a period of 205 days, at
which point his release was secured with the assistance of former
Senator David Boren who traveled to Iraq at the behest of the
President of the United States for the express purpose of
negotiating Beaty's release. Compl. ¶¶ 12, 14. In addition to the
efforts of Senator Boren, Beaty's wife, Robin Beaty (also a
plaintiff in this action), arranged for the delivery of "several
million dollars" in humanitarian aid to Iraq. Compl. ¶ 14.
Beaty's claims, like Hall's, arise out of acts committed both
within Iraq (the imprisonment and torture) and in Kuwait or
international "no-man's-land" (the "arrest" at the border
Plaintiffs David Daliberti and William Barloon were traveling
within the borders of Kuwait in March 1995 when they approached a
border checkpoint between that nation and Iraq. Compl. ¶ 4. An
agent of the defendant examined the identification papers of the
two plaintiffs which identified them as American citizens. Id.
The agent then "raised the barricade blocking the path . . . and
gave permission to Plaintiffs . . . to enter the territory of
Defendant." Id. After entering defendant's territory, Daliberti
and Barloon determined that they "had not arrived at their
intended lawful destination." Compl. ¶ 5. They then returned to
the border checkpoint and requested passage back into Kuwait.
Id. They were arrested by the defendant's agents, threatened at
gunpoint, and taken to prison, where they allegedly were tortured
and held under inhumane conditions. Compl. ¶¶ 5, 6. Daliberti and
Barloon were tried in an Iraqi court and found guilty of "illegal
entry," without being afforded an opportunity to defend
themselves. Compl. ¶ 7. They were held for 126 days before their
release was secured by negotiations between
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).
The Export Administration Act calls upon the Secretary of State
to make a determination that a foreign state has "repeatedly
provided support for acts of international terrorism," to notify
the relevant committees of both houses of Congress, and to
publish the determination in the Federal Register. See
50 U.S.C.App. § 2405(j). Once the Secretary's determination has been
promulgated, the foreign state must be considered a state sponsor
of terrorism until the country in question has provided
assurances that it will no longer support acts of international
The FSIA adopts the following definition of "torture" from the
Torture Victim Protection Act of 1991 ("TVPA"):
any act, directed against an individual in the
offender's custody or physical control, by which
severe pain or suffering (other than pain or
suffering arising only from or inherent in, or
incidental to, lawful sanctions), whether physical or
mental, is intentionally inflicted on that individual
for such purposes as obtaining from that individual
or a third person information or a confession,
punishing that individual for an act that individual
or a third person has committed or is suspected of
having committed, intimidating or coercing that
individual or a third person, or for any reason based
on discrimination of any kind.
Pub.L. No. 102-256, 106 Stat. 73, § 3(b)(1) (1992) (codified at
28 U.S.C. § 1350 note § 3(b)); see 28 U.S.C. § 1605(e)(1)
("[T]he terms `torture' and `extrajudicial killing' have the
meaning given those terms in section 3 of the Torture Victim
Protection Act of 1991."). Similarly, the FSIA adopts by
reference the following ...