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October 31, 2001


The opinion of the court was delivered by: Urbina, District Judge.





This matter comes before the court on the defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). The plaintiff, Sandra Jean Simpson, seeks compensatory and punitive damages under the Antiterrorism and Effective Death Penalty Act of 1996 ("Antiterrorism Act"). Ms. Simpson claims that she and her late husband were taken hostage and tortured by the Socialist People's Libyan Arab Jamahiriya ("Libya" or "the defendant").

The defendant seeks dismissal of the plaintiffs complaint on the following grounds: first, the plaintiff has failed to afford Libya a reasonable opportunity to arbitrate the plaintiffs claims; second, the Antiterrorism Act, which purportedly gives this court jurisdiction over the plaintiffs complaint, violates general principles of international and constitutional law; and third, the plaintiff fails to state a claim on which relief can be granted. Alternatively, the defendant asks the court to stay the present action so that Libya has an opportunity to arbitrate the plaintiffs claims. For the reasons that follow, the court will deny the defendant's motion.


In February 1987, Ms. Simpson and her late husband were enjoying a voyage aboard the Carin II, a ship cruising the Mediterranean Sea from Italy to Greece. See Compl. at 2-3. On February 7, 1987, a severe storm interrupted the cruise. See id. at 3. In its two-day battle with the storm, the Carin II lost its main engine and most of its fuel. See id. The Carin II sought assistance from Japanese, Russian, and Libyan freighters, but to no avail. See id.

Later, on February 10, 1987, Libyan harbor authorities in Benghazi, Libya received distress signals from the Carin II. See id. The Libyans notified the Carin II that it could use the Port of Benghazi as a "safe harbor," and a Libyan harbor pilot boat subsequently escorted the Carin II to a mooring in the harbor. See id.

Although the plaintiff and other passengers aboard the Carin II notified the Libyans that they intended to continue their voyage once the storm abated, on February 14, 1987, the Libyans boarded the Carin II and "forcibly removed" the passengers and crew. See id. According to the plaintiff, the Libyans held the plaintiff and her husband captive and threatened them with death if they attempted to leave. See id. Nearly three months into Ms. Simpson's captivity, the Libyans separated her from her husband. See id. The Libyans released Ms. Simpson on May 12, 1987, but held her husband incommunicado for four more months, during which the plaintiff was unable to learn of her husband's condition or whereabouts. See id.

The plaintiff filed a complaint pro se on July 21, 2000 against Libya, pleading battery, false imprisonment, intentional infliction of emotional distress, loss of consortium, and punitive damages. See id. at 4-6. On November 9, 2000, the plaintiff filed an affidavit indicating that she was unable to serve the summons and complaint. On November 14, 2000, the plaintiff asked the clerk of the court to serve a perfected complaint. On March 27, 2001, Libya filed a return of service affidavit indicating that the complaint had been executed on January 25, 2001. On March 27, 2001, the plaintiff moved for entry of default, which the court granted two days later. The plaintiff, still pro se, mailed her offer to arbitrate to Libya on April 19, 2001. See Pl.'s Opp'n Ex. D. Libya received the offer five days later, on April 24, 2001. See id. Having received the plaintiffs offer, Libya filed an entry of appearance and a motion to reopen the case and extend time to file an answer. The court granted Libya's motion on June 15, 2001, and on July 23, 2001, Libya filed the instant motion. On August 6, 2001, an attorney filed an appearance on behalf of the plaintiff and filed an opposition to the motion to dismiss.


A. Legal Standard for Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6)

On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunba, 919 F.2d 1525, 1529 (11th Cir. 1990).

Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds by 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. See Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir. 1992).

For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED.R.CIV.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12 (b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED.R.CIV.P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. The plaintiff need not plead the elements of a prima-facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir. 2000). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding. 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir. 1996). Moreover, the court should draw all reasonable inferences in the nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7 (D.D.C. 1995).

B. This Court Has Subject-Matter Jurisdiction Over the Plaintiff's Complaint

The defendant's challenges to this court's subject-matter jurisdiction fall into two categories: first, the defendant claims that the plaintiffs offer to arbitrate does not satisfy the jurisdictional requirements of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), as amended, 28 U.S.C. § 1602-1611, see Mot. to Dismiss at 6; second, the defendant claims that provisions in the FSIA that provide for subject-matter jurisdiction over foreign nations for terrorist acts are unconstitutional as applied to Libya, see Mot. to Dismiss at 15, 23, 25, 31. As discussed more fully below, the court rejects Libya's arguments and holds that subject-matter jurisdiction exists in this case.

1. Offer to Arbitrate

The FSIA generally entitles foreign states to immunity from civil liability in United States courts. See 28 U.S.C. § 1602. Under the FSIA, "unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). In 1996, Congress created one such exception by passing the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 1605. The Act lifts the immunity of certain foreign states from lawsuits over injury or death to American nationals resulting from state-sponsored terrorist acts such as "torture, extrajudicial killing, aircraft sabotage, [or] hostage taking." See 28 U.S.C. § 1605 (a)(7); see also Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 (D.D.C. 1998) (describing amendments to FSIA). Through an amendment to the Act known as Civil Liability for Acts of State Sponsored Terrorism or the "Flatow Amendment," the Act also provides a cause of action for the aforementioned terrorist acts. See Flatow, 999 F. Supp. at 12-13.

For a United States court to have subject-matter jurisdiction pursuant to the Antiterrorism Act, the claimant must generally demonstrate:

(1) that personal injury or death resulted from an act of torture, extrajudicial killing, aircraft ...

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