The opinion of the court was delivered by: Gladys Kessler United States District Judge
This case arises out of the terrorist attack on the El Al and TWA ticket counters at Rome's Fiumicino Airport on December 27, 1985. The Plaintiffs are six United States nationals who were injured in the attack and survived and the estates and survivors of five United States nationals who were killed. They bring common law and statutory claims for personal injury and wrongful death against the governments of Libya and Syria; against three Libyan and Syrian intelligence agencies: Libyan Internal Security, Libyan External Security, and Syrian Air Force Intelligence; and against the following individuals: Mu'ammar al-Qadhafi, Libya's head of state, Major Abdallah al-Sanusi, Chief of Libyan Internal Security, Ibrahim al-Bishari, Chief of Libyan External Security, and General Muhammed Al Khuli, Chief of Syrian Air Force Intelligence.*fn1
This matter is before the Court on the Motion of Defendants Libya, Libyan Internal Security, Libyan External Security, alQadhafi, al-Sanusi, and al-Bishari (hereinafter referred to as "Libya") to Dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. [Dkt. No. 17]. Upon consideration of the Motion, Opposition, Reply, Surreply, the parties' arguments at the motions hearing held before the Court on June 12, 2007, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted.
On the morning of December 27, 1985, four Palestinian terrorists associated with the Abu Nidal Organization stormed Rome's Fiumicino Airport. The four terrorists split into two teams to attack passengers waiting at the El Al and TWA check-in counters. Firing assault rifles and throwing grenades, the terrorists killed thirteen individuals and wounded seventy-five others. Three of the four assailants were themselves killed by El Al security agents. The surviving terrorist, Khaled Ibrahim Mahmood, was later convicted for his role in the attack. The Complaint alleges that Libya provided material support and assistance for this heinous act of terrorism.
"A motion to dismiss for failure to state a claim upon which relief can be granted is generally viewed with disfavor and rarely granted." Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985) (internal citations omitted). As stated above, the factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Shear, 606 F.2d at 1253 (D.C. Cir. 1979).
A. The FSIA's Ten-Year Statute of Limitations Has Expired
Libya argues, inter alia, that Plaintiffs' claims are barred by the Foreign Sovereign Immunities Act's ("FSIA") ten year statute of limitations. 28 U.S.C. § 1605(f). It contends that Plaintiffs' cause of action arose on December 27, 1985, more than twenty years before Plaintiffs filed their Complaint in April 2006. Plaintiffs respond that the ten year statute of limitations was tolled until Congress enacted 28 U.S.C. § 1605(a)(7) on April 24, 1996, which for the first time waived sovereign immunity for state sponsors of terrorism. They argue that the statute of limitations began to run on April 24, 1996 and therefore, had not expired when they filed their Complaint on April 21, 2006.
The statute of limitations provision for claims brought under 28 U.S.C. § 1605(a)(7) provides that No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period.
Judge Henry H. Kennedy, Jr., recently held in a well reasoned decision that Section 1605(f) does not provide an automatic ten year extension of time for plaintiffs to bring their claim after Congress enacted it in 1996. Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 20-21 (D.D.C. 2006). In Vine, the court held that the plaintiffs' injuries arose in December 1990, when they were held as hostages by the Iraqi regime, and not in April 1996, when Congress amended the FSIA. Id. at 21. In so holding, the court drew a distinction between when a cause of action "arises" and when it "accrues." Id. "A claim 'arises' on the date that the action in question occurred, yet does not 'accrue' until a prior disability to suit is removed." Id. Under the FSIA, the key question is when the claim "arose," that is, when the events in question occurred.
Because the ten year statute of limitations had run in Vine, the court then looked to principles of equitable tolling, as directed by Section 1605(f). As explained by our Court of Appeals, "the doctrine of equitable tolling...shelters the plaintiff from the statute of limitations in cases where strict application would be inequitable." Phillips v. Heine, 984 F.2d 489, 491 (D.C. Cir. 1993). However, as the Court of Appeals emphasized, "[equitable] tolling does not bring about an automatic extension of the statute of limitations by the length of the tolling period." Id. at 492. Instead, the doctrine provides extra time to a plaintiff only if it is needed, and only for ...