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Hurst v. Socialist People's Libyan Arab Jamahiriya

February 1, 2007

ETHEL HURST, ET AL., PLAINTIFFS,
v.
THE SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

On December 21, 1988, Pan Am Flight 103 exploded 31,000 feet in the air over Lockerbie, Scotland, killing all 259 passengers on board and eleven people on the ground. Among those killed were U.S. citizens Walter Porter, Roger Eugene Hurst, John Mulroy and Bridget Concannon. Eleven of their family members bring this action,*fn1 individually and as personal representatives, against the Socialist People's Libyan Arab Jamahiriya, the Jamahiriya Security Organization ("JSO"), and the Libyan Arab Airline ("LAA") (collectively "Libya"), as well as two Libyan intelligence officials.*fn2 Plaintiffs seek to hold Defendants liable pursuant to the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7), for violating the so-called Flatow Amendment, 28 U.S.C. § 1605 note, the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note, and the Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333(a), as well as for intentional infliction of emotional distress and civil conspiracy. Before the court are (1) Libya's motion to dismiss; (2) Defendant Al-Megrahi's motion to dismiss; and (3) Plaintiffs' motion for partial summary judgment against Al-Megrahi.*fn3

I. BACKGROUND

A. Lockerbie Bombing

Following the December 1988 explosion of Pan Am Flight 103 over Lockerbie, the United States and the United Kingdom indicted Al-Megrahi and Fhimah on charges that they planned and executed the bombing. By agreement between the United States, United Kingdom, and Libya, Al-Megrahi and Fhimah were criminally tried under Scottish law by a panel of three Scottish judges constituting the High Court of Justiciary at Camp Zeist in The Netherlands.

On January 31, 2001, the Scottish panel unanimously convicted Al-Megrahi of the murders of all 270 victims for his role in the bombing. See Bonnington Decl., Ex. 3 ¶¶ 89--90 (Her Majesty's Advocate v. Al-Megrahi, No. 1475/99(High Court of Justiciary at Camp Zeist, Jan. 31. 2001)) (hereafter "HCJ Opinion.").*fn4 The investigation following the bombing determined that the explosion was caused by a portable radio-cassette player packed in a brown Samsonite suitcase that was smuggled onto the plane. Id. ¶¶ 9, 15. The explosive device was constructed with a digital timer specially manufactured for, and purchased by, Libya. Id. ¶ 44.

The suitcase was apparently brought to the LAA's facilities in Malta by Libyan agents who arranged to have the suitcase smuggled onto the Pan Am flight. Id. ¶ 39.

Based on the evidence presented at his trial, the court concluded that Al-Megrahi traveled to Malta during December 7--9, 1988 and again during December 20--21, 1988. Id. ¶ 87. AlMegrahi was a high-ranking member of the JSO and was "head of airline security" which put him in a position to be aware of security operations at airports where the LAA operated. Id. ¶ 88. Based on an identification ("albeit not absolute") by a Maltese shopkeeper, the court concluded that while in Malta Al-Megrahi purchased the clothing that surrounded the explosive device. Id. ¶¶ 88--89. The court also determined that Al-Megrahi associated with members of the JSO or Libyan military who purchased the types of timers that were used in the explosive device. Id. ¶¶ 88--89.

Applying a "reasonable doubt" standard, the three-judge panel unanimously determined that Al-Megrahi was guilty. Id. ¶¶ 89--90. Al-Megrahi's conviction was unanimously affirmed by the Appeal Court of the High Court of Justiciary on March 14, 2002. See Bonnington Decl., Ex. 4 (Appeal against Conviction of Al-Megrahi v. Her Majesty's Advocate v., No. 104/01 (Appeal Court, High Court of Justiciary, March 14, 2002)).

On August 15, 2003, the Chargé d'Affaires of the Permanent Mission of Libya to the United Nations issued a statement to the U.N. Security Council that Libya "[h]as facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials." United Nations Doc. S/2003/818.

B. Procedural History

In 1994 and 1996, the survivors of many victims of the Lockerbie bombing filed suits against Defendants, which were consolidated in one action in the Eastern District of New York (the "New York action"). Among those who filed suit were Siobhan Mulroy, daughter of John Mulroy, individually and as his representative, and Molena Porter, widow of Walter Porter, individually and as his representative. See Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 753 (2d Cir. 1998). Plaintiffs here filed the present complaint in 2002, which was consolidated with the New York action and transferred to the Eastern District of New York.

In 2002, Defendants settled with most of the plaintiffs in the New York action for a total of $2.7 billion, or $10 million per victim, to be paid to the representative of the victim's estate to settle all claims for "compensatory death damages." See Agreement of Proposed Settlement (Oct. 23, 2002) (hereinafter "Agreement").*fn5 Plaintiffs in the present action, however, were excluded from that settlement. The Eastern District of New York determined that they were "not wrongful death beneficiaries under applicable state law" and thus were neither covered by, nor entitled to distribution from, the settlement. Rein v. Mulroy, 2005 WL 1528870, at *1 (2d Cir. June 28, 2005) (affirming conclusion that James Mulroy, Mary Diamond, Gwennth Forde, Victoria Porter, Olga Husbands, Vernon Druses, and Randolph Porter ("the Objectors") were not included in the settlement). Accordingly, in September 2005, Plaintiffs' claims were remanded to this court.

Before the court are (1) Libya's motion to dismiss for failure to state a claim, lack of personal jurisdiction, and to dismiss the claim of relief for punitive damages; (2) Defendant AlMegrahi's motion to dismiss for lack of standing; and (3) Plaintiffs' motion for partial summary judgment against Al-Megrahi.*fn6 The court will consider each motion in turn.

II. ANALYSIS

A. Libya's Motion to Dismiss

1. The Foreign Sovereign Immunities Act and Flatow Amendment

Plaintiffs assert causes of action against Libya based on the FSIA and the Flatow Amendment. As Libya correctly asserts, neither provision creates a cause of action against a foreign state. The FSIA, however, does provide a jurisdictional basis for Plaintiffs to pursue other causes of action against Libya if they satisfy its requirements.

Although the FSIA generally provides foreign states with immunity from suit in U.S. courts, it enumerates several exceptions under which a foreign state may be sued. 28 U.S.C. §§ 1605, 1607. The so-called "state-sponsored terrorism exception," added in 1996, abrogates a foreign state's immunity for personal injuries caused by terrorist acts committed by the state's officials or agents. 28 U.S.C. § 1605(a)(7).*fn7 This exception to immunity only applies if (1) a foreign state defendant has been specifically designated by the U.S. State Department as a "state sponsor of terrorism" at the time the incident occurred; (2) the foreign state is afforded a reasonable opportunity to arbitrate any claim based on acts that occurred in that state; and (3) either the victim or the claimant was a U.S. national at the time those acts took place. Id. § 1605(a)(7)(A-B).

Five months after creating the state-sponsored terrorism exception, Congress enacted the "Flatow Amendment," 28 U.S.C. § 1605 note, in recognition of the family of Alisa Flatow, a woman who died as the result of a terrorist bombing in Israel in 1995. See Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 12 (D.D.C. 1998). The Flatow Amendment provides U.S. nationals with a private cause of action for terrorism damages against individual officials, employees, and agents of designated foreign states acting in their personal capacities. 28 U.S.C. § 1605 note.*fn8

Neither the FSIA nor the Flatow Amendment, "nor the two considered in tandem," however, create a cause of action against a foreign state. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004). The FSIA state-sponsored terror exception is purely jurisdictional in that it "merely waives the immunity of a foreign state without creating a cause of action against it." Id. And "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. Thus, Libya may be not be sued pursuant to the Flatow Amendment or the FSIA alone.

Plaintiffs contend that another provision of the FSIA, § 1606, creates a cause of action against Libya. Plaintiffs are wrong. Section 1606 provides that where foreign states are otherwise subject to suit under § 1605 and § 1607, they "shall be liable in the same manner and to the same extent as a private individual under like circumstances." As the Supreme Court has made clear, neither § 1606 nor any other section of FSIA alone creates a cause of action against a foreign state. See First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620 (1983) ("The language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a ...


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