United States District Court, D. Columbia
September 22, 2005.
EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY, et al. Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, El-Shifa Pharmaceutical Industries Company
("El-Shifa"), a stock corporation located in Sudan, and Salah El
Din Ahmed Mohammed Idris ("Idris"), owner of the El-Shifa
pharmaceutical plant, have sued the United States for negligence,
trespass, and defamation. Plaintiffs seek leave to file a
supplemental complaint in order to include new factual
allegations. Because their motion for leave to supplement the
complaint was timely, was augmentative, and does not prejudice
the defendant, plaintiffs' motion will be granted.
Plaintiffs' original complaint contains four causes of action
defamation, a violation of the law of nations, and negligence and
trespass under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)
stemming from the destruction of the El-Shifa plant with cruise
missiles launched from U.S. naval vessels stationed in
international waters on August 20, 1998. In particular, plaintiffs claim that various United States officials
knowingly made false statements that the plant manufactured
chemical weapons and that Idris had ties to Osama Bin Laden and
the Islamic Jihad terrorist network. In response to the
complaint, defendant filed a motion to dismiss for lack of
subject matter jurisdiction.
Plaintiffs' proposed supplemental complaint alleges facts
disclosed in the second edition of the book Against All Enemies
by Richard A. Clarke, former National Coordinator for Security,
Infrastructure Protection and Counter-Terrorism, which was
published in September 2004. In his book, Clarke claims that he
never saw any intelligence implicating Idris in terrorist
activities. Plaintiffs submitted their Motion for Leave to File a
Supplemental Complaint on January 11, 2005. Defendant did not
file an opposition.
Federal Rule of Civil Procedure 15(d) provides that leave to
supplement the complaint may be granted "upon reasonable notice
and upon such terms as are just." Fed.R.Civ.P. 15(d). The
supplemental pleading must "set? forth transactions or
occurrences or events which have happened since the date of the
pleading sought to be supplemented." Id. Supplemental
complaints are "well within the basic aim of the rules to make
pleadings a means to achieve an orderly and fair administration of justice," Griffin v. County School Board of Prince Edward
County, 377 U.S. 218, 227 (1964), and should be available "to
facilitate a proper decision on the merits." Conley v. Gibson,
355 U.S. 41, 48 (1957) (addressing the approach to pleadings as a
whole taken by the federal rules).
Leave to supplement a complaint will be freely granted "absent
undue delay, bad faith, dilatory tactics, undue prejudice to the
party to be served with the proposed pleading, or futility."
Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995)
(citing Forman v. Davis, 371 U.S. 178, 182 (1962) (referring to
Rule 15(a))). The supplemental complaint must "not create
surprise or prejudice the rights of the adverse party."
Aftergood v. CIA, 225 F. Supp. 2d 27, 30 (D.D.C. 2002); see
also Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.
1996) (considering whether the supplemental complaint is "a
desperate effort to protract the litigation and complicate the
defense"); Health Ins. Ass'n of Am. v. Goddard Claussen Porter
Novelli, 213 F.R.D. 63, 67 (D.D.C. 2003) (noting that including
issues unrelated to the original claims would prejudice the
defendant). A court should also consider whether the
"supplemental facts connect to the original pleading."
Aftergood, 225 F. Supp. 2d at 30 (quoting Quaratino,
71 F.3d at 66); see also Health Ins. Ass'n of Am., 213 F.R.D. at 67
(denying leave to file a supplemental complaint when the
"additional facts and claims in no way directly related to the claims alleged in the original
complaint"). Finally, the supplemental complaint should have been
pled timely after the new occurrence, event, or transaction, and
should not cause an unreasonable delay. Adair v. England,
193 F. Supp. 2d 196, 201 (D.D.C. 2002) (allowing a supplemental
complaint "at a relatively early stage" of the case); see also
Glatt, 87 F.3d at 194 (affirming the denial of a supplemental
complaint based solely on a document the plaintiff had for one
Here, if plaintiffs' supplemental complaint is allowed, no
prejudice to the defendant would be apparent. The supplemental
complaint alleges only auxiliary facts seemingly requiring no
need for defendant to research and brief new legal claims or
factual defenses in connection with its motion to dismiss. The
cumulative facts presented in the supplemental pleading "connect
to the original pleading" and are closely related to the facts in
the original complaint. Aftergood, 225 F. Supp. 2d at 30
(quoting Quaratino, 71 F.3d at 66). Indeed, the new facts only
augment the originally pled facts under the existing defamation
claim. Plaintiffs timely sought leave to file the supplemental
complaint only four months after the publication of the book's
second edition. Finally, defendants have not opposed the motion. CONCLUSION
Allowing the defendant to supplement the complaint will not
prejudice the defendant. The supplemental pleading adds facts
that relate to the original complaint, and plaintiffs' unopposed
motion for leave to file the supplement was timely filed.
Accordingly, it is hereby
ORDERED that plaintiffs' Motion for Leave to File a
Supplemental Complaint  be, and hereby is, GRANTED.
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