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KILBURN v. REPUBLIC OF IRAN

August 8, 2003

Blake KILBURN, Plaintiff,
v.
The REPUBLIC OF IRAN et al., Defendants.



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

MEMORANDUM OPINION

Denying Defendants Libya and Leso's Motion to Dismiss

  I. INTRODUCTION

  This case presents issues concerning the state-sponsored terrorism exception to foreign sovereign immunity and arises from an instance of hostage taking, torture and extrajudicial killing that occurred in Lebanon between 1984 and 1986. The plaintiff alleges that the defendants provided material support to the terrorist groups responsible for these acts. The matter is currently before the court on defendants the Socialist People's Libyan Arab Jamahiriya ("Libya") and Libyan External Security Organization's ("LESO") motion to dismiss for want of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., specifically the state-sponsored terrorism exception codified at 28 U.S.C. § 1605(a)(7); lack of personal jurisdiction under Rule 12(b)(2) and the Fifth Amendment's Due Process Clause; and, failure to state a claim pursuant to Rule 12(b)(6). First, the court rejects the Rule 12(b)(1) challenge because the plaintiff has a legal basis for claiming an exception to foreign sovereign immunity, the plaintiff's pled facts are sufficient to bring the case within the court's jurisdiction, the plaintiff has provided sufficient evidence to support his allegations at this early stage in the proceedings, and the plaintiff need not show causation as a requirement for subject-matter jurisdiction. Second, the court rejects the Rule 12(b)(2) challenge on the basis that the

[277 F. Supp.2d 27]

      court has personal jurisdiction over these defendants. Third, the court rejects the Rule 12(b)(6) challenge because the plaintiff properly relies on common-law causes of action for his substantive claims and because the Flatow Amendment does provide a cause of action against foreign states. As a final point, the court sustains the plaintiff's claim for punitive damages. Accordingly, the court denies the motion to dismiss.

  II. BACKGROUND

  A. Factual Background

  The plaintiff, Blake Kilburn, is the brother and only surviving family member of Peter Kilburn, an American citizen who was one of the many victims of Middle Eastern terrorism during the mid-1980s. Compl. at 2-3. The plaintiff brings this action on his own behalf and in his capacity as the executor of Peter Kilburn's estate. Id. at 3. In November 1984, while employed as a librarian and instructor of library sciences at the American University of Beirut, Peter Kilburn was kidnapped from his apartment located in Beirut, Lebanon. Id. at 6. One month later, the terrorist group known as Hizballah claimed responsibility for Peter Kilburn's kidnapping. Id.

  Peter Kilburn was held captive until April of 1986. Id. On April 14, 1986, the United States bombed Tripoli, the capital of Libya, in retaliation for Libya's terrorist activities. Id. at 7. As a result, Libyan agents in Lebanon advertised that they wished to purchase and murder an American hostage in retaliation for the bombing of Tripoli. Id.

  Sometime between April 14 and 17, 1986, Hizballah sold Peter Kilburn to the Libyan-sponsored Arab Revolutionary Cells for approximately $3 million. Id. Peter Kilburn, along with two British hostages, was found shot in the back of the head on the side of a road near Beirut on April 17, 1986. Id. In a note found near the bodies, the Arab Revolutionary Cells claimed responsibility for the murders. Id.

  The plaintiff alleges that while Hizballah held Peter Kilburn hostage, his captors forced him to wear a blindfold at all times, kept him continually shackled to a wall or floor, beat or threatened him with beatings, confined him to a small cell with no opportunity to exercise, fed him a monotonous and unhealthy diet, limited him to one brief toilet visit per day, and denied him adequate medical care. Id. at 6. All of these events caused Peter Kilburn immense pain and suffering, and inflicted great emotional distress on the plaintiff. Id. at 8.

  The defendants in this case are the Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), Libya, and LESO. Id. at 2-6. The plaintiff alleges jurisdiction under the state-sponsored terrorism exception to sovereign immunity, claiming that Iran and MOIS provided material support to Hizballah for their Lebanon-based activities, including the kidnapping and torture of Peter Kilburn, while Libya and LESO provided material support to the Arab Revolutionary Cells for their terrorist activities, including the purchase and extrajudicial killing of Peter Kilburn. Id. at 25.

  B. Procedural History

  On June 12, 2001, the plaintiff filed his complaint with this court, seeking recovery for the common-law torts of wrongful death, battery, assault, false imprisonment, slave trafficking, and intentional infliction of emotional distress. Id. at 10-18. In addition, the plaintiff asserts claims for loss of solatium and economic damages against all four defendants, and punitive

[277 F. Supp.2d 28]

      damages against MOIS and LESO.*fn1 Id. at 10-21. Defendants Libya and LESO (collectively, "the defendants") have filed a joint motion to dismiss for lack of subjectmatter jurisdiction, personal jurisdiction, and failure to state a claim pursuant to Rule 12(b)(1), (2), and (6).

  III. ANALYSIS

  A. Subject-Matter Jurisdiction*fn2

  The defendants make several arguments regarding subject-matter jurisdiction. Defs.' Mot. to Dismiss ("Defs.' Mot.") at 6-12. First, they argue that the plaintiffs legal basis for the state-sponsored terrorism exception to foreign sovereign immunity is incorrect. Id. at 6-8. Second, they challenge both the legal sufficiency of the facts pled by the plaintiff and the truth of those facts. Id. at 8, 10-12. Third, they argue that the plaintiff has not shown a sufficient causal connection between the foreign-state actors and the acts in question. Id. at 8-10. The court is not persuaded by these arguments and determines that the plaintiff has a legal basis for claiming an exception to foreign sovereign immunity, and that the facts pled are not only sufficient to bring the case within this court's jurisdiction but that the plaintiff has provided sufficient evidence to support his factual allegations at this early stage in the proceedings, and the plaintiff need not show causation as a requirement for subject-matter jurisdiction. For these reasons, the court denies the defendants' motion to dismiss.

 
1. Legal Standard for a Rule 12(b)(1) Motion to Dismiss Under the FSIA
  The Foreign Sovereign Immunities Act ("FSIA") 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). The basic premise of the FSIA is that foreign sovereigns are immune from suit in the United States unless the action falls under one of the specific exceptions enumerated in the statute. 28 U.S.C. § 1604. If the foreign sovereign is not immune, the federal district courts have exclusive jurisdiction over the action. 28 U.S.C. § 1330,

[277 F. Supp.2d 29]

      1604; Daliberti v. Republic of Iraq, 97 F. Supp.2d 38, 42 (D.D.C. 2000) (Friedman, J.) (citing Amerada Hess, 488 U.S. at 434-35, 109 S.Ct. 683).

  Under the FSIA, the foreign sovereign has "immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990)). The special circumstances of a foreign sovereign require the court to engage in more than the usual pretrial factual and legal determinations. Foremost-McKesson, 905 F.2d at 449. The D.C. Circuit has noted that it is particularly important that the court "satisfy itself of its authority to hear the case" before trial. Id. (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179 (D.C. Cir. 1984)).

  Once a foreign-sovereign defendant asserts immunity, the plaintiff bears the burden of producing evidence to show that there is no immunity and that the court therefore has jurisdiction over the plaintiff's claims. Daliberti, 97 F. Supp.2d at 42 (citations omitted). A court may dismiss a complaint brought under the FSIA only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Id. (citations omitted). Once the plaintiff has shown that the foreign defendant is not immune from suit, the defendant bears the burden of proving that the plaintiff's allegations do not bring the case within one of the statutory exceptions to immunity. Phoenix Consulting, 216 F.3d at 40.

  The exception to foreign sovereign immunity at issue in this case is the statesponsored terrorism exception, codified at 28 U.S.C. § 1605(a)(7). that Congress enacted as part of the comprehensive Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, § 221(a), 110 Stat. 1214 (Apr. 24, 1996), which provides that foreign sovereigns are not immune when

 
[m]oney damages are sought against a foreign state 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 . . . for such an act if such act or provision of material resources 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). The statute gives three additional requirements for the exception to apply: (1) the foreign state must be designated as a state sponsor of terrorism at the time the act occurred or was designated as such as a result of such an act; (2) the plaintiff must afford the foreign state a reasonable opportunity to arbitrate the dispute if the act occurred within that state's territory; and (3) either the claimant or the victim must have been a United States national at the time the act occurred. 28 U.S.C. § 1605(a)(7)(A)-(B).

  On a Rule 12(b)(1) motion to dismiss in an FSIA case, the defendant may challenge either the legal sufficiency or the factual underpinning of an exception. Phoenix Consulting, 216 F.3d at 40. Given that a foreign-state actor's entitlement to immunity from suit is a critical preliminary determination, the parties have the responsibility, and must be afforded a fair opportunity, to define issues of fact and law, and to submit evidence necessary to the resolution of the issues. Foremost-McKesson, 905 F.2d at 449 (citing Gould, Inc. v. Pechiney Ugine Kuhlmann & Trefimetaux, 853 F.2d 445, 451 (6th Cir. 1988)). Thus, the court must resolve the

[277 F. Supp.2d 30]

      substantive immunity-law issues of section 1605 before reaching a decision on subjectmatter jurisdiction. Id. (citations omitted).

  If the defendant challenges the legal sufficiency of the plaintiff's jurisdictional allegations, the court should accept the plaintiff's factual allegations as true and determine whether such facts bring the case within any of the exceptions to foreign-state immunity invoked by the plaintiff. Id. This standard is similar to that of Rule 12(b)(6), under which dismissal is warranted if no plausible inferences can be drawn from the facts alleged that, if proven, would provide grounds for relief. Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) ("Price II"). The plaintiff need not set out all of the precise facts on which he bases his claim to survive a motion to dismiss. Id.

  If the defendant challenges the factual basis of the court's jurisdiction, however, the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff. Phoenix Consulting, 216 F.3d at 40. Instead, the court must resolve any disputed issues of fact, the resolution of which is necessary to a ruling upon the motion to dismiss. Id.; Price II, 294 F.3d at 90; Foremost-McKesson, 905 F.2d at 449. The court has "considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction," but it must give the plaintiff "ample opportunity to secure and present evidence relevant to the existence of jurisdiction." Phoenix Consulting, 216 F.3d at 40 (quoting Prakash, 727 F.2d at 1179-80). ...


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