The opinion of the court was delivered by: DEBORAH ROBINSON, Magistrate Judge
This action was referred to the undersigned United States Magistrate
Judge on June 3, 2003 "pursuant to 28 U.S.C. § 636(b)(1)(B) to
conduct an evidentiary hearing and submit to [the] Court . . . proposed
findings of fact and [a] recommendation for disposition of the Motion of
All Original and Intervening Plaintiffs for Summary/Default Judgment."
June 3, 2003 Order (Docket No. 21). Plaintiffs invoke the jurisdiction of
this Court pursuant to 28 U.S.C. § 1605(a)(7). Complaint ¶ 1.
Plaintiffs name the Republic of Iraq as the sole Defendant. See
Complaint ¶ 6. In section "II. Cause of Action[,]" Plaintiffs state
[the] Antiterrorism . . . and Effective Death
Penalty Act enables suits for monetary damages
against foreign states that cause "personal injury
or death . . . by an act of . . . extrajudicial
killing . . . or the provision of material support
or resources . . . for such an act." See
28 U.S.C. § 1605(a)(7). The Foreign
Sovereignties [sic] and [sic] Immunity [sic] Act,
as amended, provides liability for "money damages
which may include economic damages, solatium, pain
and suffering, and punitive damages if the acts
were among those described in § 1605(a)(7)."
See also 28 U.S.C. § 1605, note.
Complaint ¶ 4. Plaintiffs do not purport to state a cause of action
under any other source of law.
Lawton, et al. v. The Republic of Iraq
On January 16, 2004, a panel of the District of Columbia Circuit
decided Cicippio-Puleo v. Islamic Republic of Iran,
353 F.3d 1024 (D.C. Cir. 2004). In its opinion, the circuit held that "neither
28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered
in tandem, creates a private right of action against a foreign
government." Id. at 1033. The circuit explained that Section
1605(a)(7) "merely waives the immunity of a foreign state without
creating a cause of action against it," and that the Flatow Amendment
"only provides a private right of action against officials, employees,
and agents of a foreign state, not against the foreign state itself." Id
On January 21, 2004, the undersigned ordered Plaintiffs to file a
memorandum to address the application of Cicippio-Puleo to the claims
they assert in this action. On February 19, 2004, Plaintiffs filed a
memorandum captioned "Response of Plaintiffs to Court's Order Dated 21
January 2004" ("Plaintiffs' Response") (Docket No. 29).
Upon consideration of Plaintiffs' Response and the entire record
herein, the undersigned will grant Plaintiffs an opportunity to amend
their Complaint, and deny the Motion of All Original and Intervening
Plaintiffs for Summary/Default Judgment without prejudice. Plaintiffs
submit that they "have pled facts in the Complaint sufficient for
alternate (federal and state) theories of liability[,]" and that "this
case should be allowed to go forward on those grounds." Plaintiffs'
Response at 3. However, the undersigned, "[f]ollowing the circuit's
guidance," will grant Plaintiffs an opportunity to amend their Complaint
to clarify the jurisdictional basis for suit, the
defendants and the capacity in which each
defendant is sued, the cause of action for each
claim, the relief requested for each claim, and
any other matters affected by the intervening
Lawton, et al. v. The Republic of Iraq Wyatt v. Syrian Arab
Republic, 2004 WL 330191, at *2 (D.D.C. February 23, 2004).
Accordingly, it is, this 4th day of March, 2004,
ORDERED that Plaintiffs may file an amended complaint by no
later than April 5, 2004; and it is
FURTHER ORDERED that the Motion of All Original and
Intervening Plaintiffs for Summary/Default Judgment (Docket No. 17) is
DENIED WITHOUT PREJUDICE.
© 1992-2004 VersusLaw ...