The opinion of the court was delivered by: John D. Bates United States District Judge
On March 29, 2005, this Court issued a Memorandum Opinion and Order in this case brought under the Foreign Sovereign Immunities Act ("FSIA") that addressed the causes of action that may be advanced against foreign states for their sponsorship of acts of terrorism and ordered plaintiffs to amend their complaint consistent with the opinion. Plaintiffs have now filed a motion for clarification or reconsideration of certain aspects of the decision. For the reasons set out herein, the Court affirms that plaintiffs must amend their Complaint to identify particular causes of action arising out of specific sources of law, but clarifies that this does not require plaintiffs to identify in the Complaint the particular state that provides each state law cause of action. The Court also holds that plaintiffs in this action need not perfect service of their amended Complaint on defendants under 28 U.S.C. § 1608(a)(4), and upholds its conclusion that plaintiffs cannot state a cause of action against a foreign state under the Torture Victims Protection Act ("TVPA") or the federal common law.
Plaintiffs are more than eighty individuals and estates who commenced a damages action under the FSIA against the Islamic Republic of Iran ("Iran") and its Ministry of Intelligence and Security ("MOIS") for those entities' material support of the terrorist organization that carried out the 1983 bombing on the United States Embassy in Beirut, Lebanon. Defendants failed to appear, and the Clerk of the Court entered default against them. Following an evidentiary hearing, this Court issued findings of fact and conclusions of law for the claims of a representative group of the plaintiffs. See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105 (D.D.C. 2003).*fn1
Thereafter, the D.C. Circuit issued a pair of decisions addressing the causes of action that may be brought against a foreign state or instrumentality pursuant to the FSIA. See Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). At this Court's request, plaintiffs briefed the viability of their claims in light of these decisions.
On March 29, 2005, this Court issued a Memorandum Opinion and Order that contained several holdings regarding the causes of action that can be asserted against a foreign state or instrumentality in the wake of Acree and Cicippio-Puleo. This Court held, inter alia, that a plaintiff may bring any action against a foreign state or instrumentality through section 1606 of the FSIA that the plaintiff could bring against a private individual in like circumstances, Mem. Op. at 20-31; that a plaintiff may therefore state a claim against a foreign state in a section 1605(a)(7) case under state common law or statutory law, Mem. Op. at 31-41; that the District of Columbia supplies the choice of law principles for a state law section 1605(a)(7) case, Mem. Op. at 32-34, and the application of those principles to an embassy bombing case will generally result in the state of domicile of the plaintiff providing the substantive rule of decision, Mem. Op. at 34-41; that a plaintiff cannot state a cause of action against a foreign state in a section 1605(a)(7) embassy bombing case directly under the federal common law, Mem. Op. at 41-51; and that a plaintiff may not bring a claim directly under the Flatow Amendment in light of Cicippio-Puleo, or under the Flatow Amendment or the Torture Victims Protection Act through section 1606, because Congress has indicated its desire not to allow a cause of action against foreign states through those particular statutes, Mem. Op. at 51-57. The Court also held that plaintiffs must identify in their complaint"a particular cause of action arising out of a specific source of law" under Acree, but that plaintiffs' complaint fell well short of this standard, because -- as in Acreethe complaint only"alluded to the traditional torts... in their generic form" and"did not point to any other specific source in state, federal, or foreign law for their cause of action." Mem. Op. at 58-59 (quoting Acree, 370 F.3d at 59). The Court therefore ordered plaintiffs to amend their Complaint to identify a cause of action with the specificity required under Acree. The same day it decided Dammarell, this Court also issued opinions in Civil Action No. 02-558, Salazar v. Islamic Republic of Iran, and Civil Action No. 01-2244, Owens v. Republic of Sudan, that touched on many of the same issues addressed in the Dammarell opinion.
Plaintiffs have now filed a motion for reconsideration and clarification, asking this Court: (i) whether it wishes plaintiffs, in an amended complaint, to identify the particular state that gives rise to their state law claims; (ii) to reconsider its conclusion that"a particular cause of action arising out of a specific source of law" must be set out in an amended complaint at all; (iii) to conclude that they need not perfect formal service of an amended complaint on defendants under 28 U.S.C. § 1608; and (iv) to revisit its holdings that plaintiffs cannot state a claim under the TVPA and the federal common law.
I. Specifying a Particular State in an Amended Complaint
Plaintiffs ask the Court to clarify whether they are expected to identify in their amended complaint the particular state that provides the cause of action for their state law claims. There is no such requirement in this Court's March 29, 2005, opinion, which explains that plaintiffs' Complaint is deficient because it fails to"specify whether these claims are based in state law (or some other source of law), or whether they arise out of the common law or a particular statute." Mem. Op. at 3. The opinion then instructs plaintiffs to amend their Complaint consistent with the opinion, after which they will have forty-five days to submit briefing on the choice of law question for each plaintiff's state law claims. Mem. Op. at 59. Thus, the opinion does not direct plaintiffs to include the choice of law determination in the Complaint itself. The Court is also unaware of any law, either in the FSIA setting or out, that would require such a result. Thus, this Court confirms that its March 29, 2005, opinion should not be read to require the identification in the Complaint of the particular state out of which each plaintiff's state law claims arise.
II. Identifying a Particular Cause of Action Arising Out of a Specific Source of Law
Plaintiffs go further and ask the Court to reconsider its conclusion that they must"identify a particular cause of action arising out of a specific source of law" in an amended Complaint, arguing that they should be allowed to provide the necessary detail in memoranda to the Court rather than in formal pleadings. Here the Court must part ways with plaintiffs, for Cicippio-Puleo and Acree were quite clear that they expected plaintiffs to identify their claims with particularity in an Amended Complaint.
The plaintiffs in Cicippio-Puleo had alleged claims against a foreign state for"intentional infliction of emotional distress and loss of solatium" that purported to arise"under section 1605(a)(7) and the Flatow Amendment." 353 F.3d at 1027. The court of appeals concluded that the Complaint failed to state a claim upon which relief could be granted, because"neither section 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action against foreign state sponsors of terrorism." Id. However, the court went on to observe that the plaintiffs in that case may have been misled by the state of the law into"assuming that the Flatow Amendment afforded a cause of action against foreign state sponsors of terrorism." Id. at 1036. The Court therefore explained that it would"remand the case to allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law, including state law, as... amici have suggested." Id. at 1026. Thus, Cicippio-Puleo clearly required plaintiffs in an FSIA case to describe their causes of action with particularity in a complaint. Under the approach suggested by the plaintiffs in this case, amendment would have been entirely unnecessary in Ciccipio-Puleo, because the plaintiffs had already stated generic tort claims in their complaint, and could simply have identified the particular cause of action and source of law in a motion or notice to the Court.*fn2
Several months later, the D.C. Circuit in Acree reviewed a complaint against a foreign state that was"premised on section 1605(a)(7)" of the FSIA and alleged that the acts of torture detailed in the complaint"constituted'traditional torts of assault, battery and intentional infliction of emotional distress.'" Acree, 370 F.3d at 44 (quoting Compl. ¶ 597). The court noted at the outset that it had already held in Cicippio-Puleo that section 1605(a)(7) cannot provide a cause of action against a foreign state. See id. at 58. The court then observed that plaintiffs had only alleged their tort claims"in their generic form." Id."At oral argument," the court continued,"counsel for ...