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DALIBERTI v. REPUBLIC OF IRAQ

May 23, 2000

DAVID DALIBERTI, ET AL., PLAINTIFFS,
V.
REPUBLIC OF IRAQ, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  OPINION

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 doctrine.

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.

I. BACKGROUND

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 consortium.

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 checkpoint).

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 agency.

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 terrorism. Id.

On September 12, 1990, Acting Secretary of State Lawrence Eagleburger caused to be published in the Federal Register his determination that Iraq was a state sponsor of terrorism. Determination Iraq, 55 Fed.Reg. 37,793 (1990) (codified at 31 C.F.R. § 596.201). No rescission of this designation has been published pursuant to statute, and Iraq remains so designated. See 31 C.F.R. § 596.201.*fn3 The plaintiffs, being United States nationals, and having offered to arbitrate, therefore need only show that Iraq committed one of the predicate acts under 28 U.S.C. § 1605(a)(7) in order for the state sponsored terrorism exception to the FSIA to apply.*fn4 Defendant argues that the actions complained of did not constitute "torture" or "hostage taking" under the FSIA and therefore do not provide subject matter jurisdiction and do not give rise to a claim upon which relief may be granted. See Def. Motion at 27-28.

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 ...


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