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Aérienne v. Socialist People's Libyan Arab Jamahiriya

March 9, 2007

LA RÉUNION AÉRIENNE, PLAINTIFF,
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 September 19, 1989, Union des Transports Aériens ("UTA") Flight 772 exploded in mid-air over Niger, Africa, killing all 170 people on board. Plaintiff La Réunion Aérienne ("LRA"), a French partnership representing the interests of a group of insurance companies, brings this action against the Socialist People's Libyan Arab Jamahiriya ("Libya"), the Libyan External Security Organization ("LESO"), Muammar Qadhafi in his official capacity as Libya's head of state, and six other high-ranking Libyan government officials in their personal capacities, to recover payments LRA made to compensate the bombing victims' estates and families for losses arising from the explosion.*fn1 Before the court are defendants' motion to dismiss for lack of jurisdiction and their motion to strike plaintiff's motion for summary judgment.

Upon consideration of the motions, the oppositions thereto, and the record of this case, the court grants each motion in part and denies each motion in part.

I. BACKGROUND

This is not the first time the parties and facts involved in this case have come before the court. In Pugh v. Socialist People's Libyan Arab Jamjiriya, No. 02-CV-2026 ("Pugh"), thirty-six individuals and Interlease, Inc. ("Interlease"), a Georgia corporation, filed a complaint on their own behalf and on behalf of the estates of the American victims of the UTA Flight 772 bombing against the same defendants named in this action.*fn2 In that case, summary judgment has been granted in favor of plaintiffs as to a number of claims. See 290 F. Supp. 2d 54 (D.D.C. 2003) ("Pugh I"); 2006 WL 2384915 (D.D.C. May 11, 2006) ("Pugh II").

LRA also sought to intervene in Pugh, but the court denied LRA's motion. By filing its complaint in this action, LRA now brings its claims anew before the court. Specifically, the complaint alleges that LRA paid certain survivors and estates of the bombing victims (collectively, "Payees") approximately $2 million to cover, among other things, funeral and repatritation expenses arising from the bombing. LRA also alleges it paid to Interlease the insured value of the aircraft (more than $34,000,000). By virtue of these payments and according to the insurance policies, LRA alleges it took an assignment of and is subrogated to the rights of Payees and Interlease against defendants to the extent of the monies paid. The complaint brings claims of wrongful death, conversion, trespass to chattels, indemnity, and contribution, as well as statutory claims pursuant to the Anti-Terrorism Act ("ATA"), 18 U.S.C. §§ 2331 et seq., and the so-called Flatow Amendment, 28 U.S.C. § 1605 note.

II. ANALYSIS

Defendants move to dismiss the complaint on a number of grounds. First, they contend that as a third-party assignee and/or subrogee of the claims of Interlease and Payees, LRA is barred from bringing its claims directly against defendants. Second, they essentially reiterate arguments they raised previously in Pugh against the court's exercise of personal and subject matter jurisdiction over them and the claims arising from the bombing.

A. LRA's Third-Party Status

1. The State-Sponsored Terrorism Exception

As a general rule, the Foreign Sovereign Immunities Act ("FSIA"), enacted in 1976, establishes that foreign states (including "a political subdivision of a foreign state or an agency or instrumentality of a foreign state") are immune from suit in courts in the United States. 28 U.S.C. §§ 1603(a), 1604.*fn3 FSIA specifies a limited number of exceptions to this general rule of immunity. Id. § 1605. The most recent of the exceptions, and the one implicated in this case, provides that a foreign state "shall not be immune from the jurisdiction of courts of the United States or of the States in any case" wherein "money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act." Id. § 1605(a)(7).

In order for this so-called "state-sponsored terrorism exception" to apply, three criteria must be satisfied: (1) the foreign state must be designated as a state sponsor of terrorism at the time of the terrorist act or as a result of the terrorist act, (2) the foreign state must be afforded a reasonable opportunity to arbitrate the claim if the act occurred within the foreign state against which the claim has been brought, and (3) either the claimant or the victim must have been a national of the United States at the time of the terrorist act. Id. § 1605(a)(7)(A),(B); see also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1028--29 (D.C. Cir. 2004).

2. LRA's Nationality

Defendants' first argument - that because LRA is not a "national of the United States" it cannot sue Libya - is contradicted by the statute's plain language. The immunity waiver provision only requires that the victim (or the claimant) was a U.S. national at the time of the terrorist act, and there is no dispute that the victim decedents so qualified. Indeed, Congress specifically amended the state-sponsored-terrorism exception shortly after its first enactment to reject the very position advocated by defendants here. See Jurisdiction for Lawsuits Against Terrorist States: Technical Correction, Pub. L. No. 105-11, 111 Stat. 22 (1997) (amending the 1996 amendment by replacing the phrase "the claimant or victim was not" with "neither the claimant nor the victim was"); see also H.R. Rep. No. ...


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