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Abur v. Republic of Sudan

July 10, 2006

JOYCE AUMA OMBESE ABUR, ET AL., PLAINTIFFS,
v.
REPUBLIC OF SUDAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Through this civil action, plaintiffs seek to hold two foreign countries financially responsible for the 1998 terrorist bombings of the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, which resulted in the deaths of at least 224 individuals and caused physical injury to more than 4,000 others. Neither of the sovereign defendants -- the Republic of Sudan and the Islamic Republic of Iran -- have appeared before the Court to defend against the claims made by these 114 plaintiffs, who have demanded more than one billion dollars in damages based on provisions of the Foreign Sovereign Immunities Act ("FSIA") that revoke jurisdictional protection for foreign governments in certain circumstances. The allegations of the complaint are essentially identical to those made in two other cases on the Court's docket: Owens v. Republic of Sudan, No. 01-CV-2244 (D.D.C.), and Khaliq v. Republic of Sudan, No. 04-CV-1536 (D.D.C.).*fn1 Simply put, plaintiffs in all three cases contend that the governments of Sudan and Iran provided material support to al Qaeda and Hizbollah*fn2 -- the organizations believed to be responsible for the bombings -- and thereby assumed liability for the harms caused by the terrorist attacks and also forfeited any right to immunity from suit in United States courts.*fn3 The claims asserted in this action, however, differ from the claims in Owens and Khaliq in one significant respect: the nationalities of the plaintiffs. Whereas the Owens and Khaliq plaintiffs are United States citizens, nearly all the plaintiffs here are citizens of Kenya.*fn4 That fact, as this opinion will explain, has ramifications for the viability of many of plaintiffs' claims.

Now pending before the Court is plaintiffs' unopposed motion for entry of default, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Although the entry of default (as opposed to the issuance of a default judgment) normally is a ministerial task for the Clerk of the Court, see Fed. R. Civ. P. 55(a), plaintiffs chose to seek entry of default by motion, apparently because of the complexities associated with service of process in civil actions against foreign sovereigns and the fact that proper service is a prerequisite for the Court to obtain personal jurisdiction over a foreign state, see 28 U.S.C. § 1330(b). By filing the motion, plaintiffs essentially have requested a judicial determination regarding the sufficiency of service. In response to that motion, the Court, on its own initiative, instructed plaintiffs to provide a memorandum that addressed the factual and legal bases for this Court's exercise of jurisdiction over each of the claims and defendants. Plaintiffs have complied with that instruction, and the Court therefore will consider at this time both the adequacy of service and whether there exists any basis for subject-matter jurisdiction.

For the reasons that follow, the Court finds that plaintiffs properly have served defendants Sudan and Iran, in accordance with 28 U.S.C. § 1608(a)(3), and it will direct the Clerk of the Court to enter their defaults. Consistent with the holding in Owens, the Court also finds that jurisdiction is proper over the claims brought by the two U.S.-citizen plaintiffs against Sudan and Iran. But the Court is compelled to conclude that it lacks subject-matter jurisdiction over the claims against Sudan and Iran brought by the 112 alien plaintiffs, and it will dismiss those claims pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure.*fn5 In the interest of conserving judicial resources, the Court further concludes that the accompanying order may be appealed immediately, and the Court therefore will stay these proceedings pending resolution of any appeals of jurisdictional rulings in this action. See 28 U.S.C. § 1292(b) (providing that an order other than a final judgment may be certified for appeal if the district court determines that it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation").*fn6

BACKGROUND

On August 7, 1998, terrorists detonated massive vehicle bombs outside two U.S. diplomatic outposts in East Africa within a span of just a few minutes. At approximately 10:30 a.m., a truck that contained a large bomb exploded in the rear parking area of the U.S. Embassy in Nairobi, Kenya. The explosion killed 213 people, including forty-four Embassy employees (twelve of whom were American citizens), and injured an estimated 4,000 people -- mostly Kenyan civilians -- who were either at the Embassy or in the vicinity. Minutes later, at approximately 10:39 a.m., a suicide bomber drove a truck laden with explosives up to a vehicular gate at the U.S. Embassy in Dar es Salaam, Tanzania, and ignited a blast that killed eleven people and injured another eighty-five. See generally Department of State, Report of the Accountability Review Boards on the Embassy Bombings in Nairobi and Dar es Salaam on August 7, 1998, at http://www.state.gov/www/regions/africa/accountability_report.html.

Plaintiffs are victims and relatives of victims of these horrific bombings. Of the 114 plaintiffs,*fn7 only two -- Gerald Bochart and Trusha Patel -- are United States citizens. See Fourth Am. Compl. ¶¶ 4, 92.*fn8 Both were injured in the Nairobi bombing. Another forty-three of the plaintiffs are Kenyan citizens who were injured in the Nairobi bombing. See id. at ¶¶ 2, 5, 8, 10, 12, 14, 18, 20, 23, 27, 29, 31, 33, 26, 38-39, 41-42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66-67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 95. One plaintiff is a Kenyan citizen who was injured in the Dar es Salaam bombing. See id. at ¶ 116. The remaining sixty-eight plaintiffs are Kenyan citizens who, although they were not physically injured in the bombings, are either married to one of the forty-six injured plaintiffs,*fn9 or were married in 1998 to someone who was killed in the Nairobi bombing.

The complaint contends that the sovereign defendants -- each of which is (and was in 1998) designated by the State Department as a sponsor of terrorism -- furnished material support to al Qaeda and Hizbollah for the embassy bombings. See Fourth Am. Compl. ¶¶ 124, 127. As to Sudan in particular, the complaint alleges that agents of that government furnished Osama bin Laden, the putative leader of al Qaeda, and his associates with shelter, security, financial and logistical support, and business opportunities. See id. at ¶¶ 141(a)-(bb). With respect to Iran, the complaint alleges that agents of the Iranian government gave technical assistance and explosives training to al Qaeda. See id. at ¶¶ 141(cc)-(ii). All of those actions, plaintiffs contend, led directly to the 1998 embassy bombings in Nairobi and Dar es Salaam and, therefore, not only are sufficient to divest Sudan and Iran of sovereign immunity under the FSIA, but also support plaintiffs' claims for wrongful death, assault and battery, intentional infliction of emotional distress, and loss of consortium under the laws of the plaintiffs' respective home states or countries.*fn10

ANALYSIS

As a court of limited jurisdiction, a federal district court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). That means that this Court cannot overlook a potential defect in its jurisdiction simply because the parties fail to call it to the Court's attention. Nor may the Court "presume the existence of jurisdiction in order to dispose of a case on other grounds." Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981). In all cases, this independent obligation means the Court must satisfy itself that it possesses jurisdiction to rule on the merits of the claim. See Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Furthermore, in cases where a defendant has not appeared, the Court is obliged to consider whether it properly has jurisdiction over that person or entity. See Mwani, 417 F.3d at 6 ("[A] court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.").

Jurisdiction over any civil action against a foreign state is governed by the FSIA. See 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989) ("[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country[.]"). The "interlocking provisions" of that statute, Mar. Int'l Nominees Estab't v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C. Cir. 1982), compress subject-matter jurisdiction and personal jurisdiction into a single, two-pronged inquiry: (1) whether service of the foreign state was accomplished properly, and (2) whether one of the statutory exceptions to sovereign immunity applies. See 28 U.S.C. §§ 1330(a)-(b); see also Mar. Int'l Nominees Estab't, 693 F.2d at 1099 ("[T]he absence of immunity is a condition to the presence of subject matter jurisdiction. ... [And] a lack of subject matter jurisdiction also deprives the court of personal jurisdiction[.]"); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir. 2002) (observing that section 1330(b) provides that, "[i]f service of process has been made under [section] 1608, personal jurisdiction over a foreign state exists for every claim over which the court has subject matter jurisdiction," and that section 1330(a), in turn, "automatically confers subject matter jurisdiction whenever the state loses its immunity") (citation omitted); Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987) (stating that, under the FSIA, "subject matter jurisdiction plus service of process equals personal jurisdiction").*fn11 In other words, the Court may proceed to consider the merits of a claim against a foreign state only if proper service is effectuated and one of the FSIA's enumerated exceptions to sovereign immunity applies to that claim. The Court considers below whether each of these necessary conditions has been met.

I. Service of Process

The FSIA prescribes four methods for serving legal process on a foreign state, in descending order of preference -- meaning that a plaintiff must attempt service by the first method (or determine that it is unavailable) before proceeding to the second method, and so on. See 28 U.S.C. § 1608(a). The preferred method of service is delivery of the summons and complaint "in accordance with any special arrangement for service between the plaintiff and the foreign state." 28 U.S.C. § 1608(a)(1). If, however, no such arrangement exists, then the statute permits delivery of the summons and complaint "in accordance with an applicable international convention on service of judicial documents." 28 U.S.C. § 1608(a)(2). If neither of the foregoing methods is available, then the plaintiff may send the summons, complaint, and a notice of suit (together with a translation of each into the official language of the foreign state) "by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned." 28 U.S.C. § 1608(a)(3). Finally, if mailed service cannot be accomplished within thirty days, then the statute permits the plaintiff to request that the clerk of the court dispatch two copies of the summons, complaint, and notice of suit (together with a translation of each into the foreign state's official language) to the Secretary of State, who then "shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted." 28 U.S.C. § 1608(a)(4). "Strict adherence to the terms of 1608(a) is required" in this Circuit. Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994).

Because plaintiffs had no "special arrangement" for service with either Sudan or Iran and because neither country is a party to an "international convention on service of judicial documents," the preferred method of service is provided by section 1608(a)(3) -- that is, any form of mail requiring a signed receipt. In accordance with this statutory requirement, plaintiffs utilized the commercial courier service DHL International. See Pls.' Mem. Re: Sufficiency of Service at 3. The Clerk of this Court has certified that the mailing via DHL -- dispatched on April 23, 2004 -- complied with the content requirements of section 1608(a)(3). See id. at ex. C. Plaintiffs also have come forward with evidence that the packages were in fact delivered to, and accepted by, the respective ministries of foreign affairs of Sudan and Iran. Specifically, they have produced airbills that provide tracking numbers for the outgoing packages, see id. at ex. C, and they also have provided corresponding tracking receipts from DHL that indicate that delivery to Iran was completed on May 1, 2004, at 8:51 a.m., and signed for by "Mil Room" (perhaps a designation for the ministry's mail room), and that delivery to Sudan was completed on May 2, 2004, at 12:34 p.m., and ...


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