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Simpson v. Socialist People's Libyan Arab Jamahiriya

January 10, 2008

SANDRA JEAN SIMPSON, IN HER OWN CAPACITY AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF DR. MOSTAFA KARIM PLAINTIFF,
v.
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 81, 84, 89

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT'SMOTION TO DISMISS; DENYING THE PLAINTIFF'S CROSS-MOTION TO AMEND; AND GRANTING THE PLAINTIFF'S MOTION TO SUBSTITUTE PARTY

I. INTRODUCTION

This matter comes again before the court on the defendant's motion to dismiss for failure to state a claim. The plaintiff Sandra Jean Simpson, in her own capacity and as Personal Representative for the estate of her deceased husband Mostafa Karim, brings suit seeking compensatory damages for an act of hostage taking that the defendant, the Socialist People's Libyan Arab Jamahiriya ("Libya"), allegedly committed in 1987. In the last round of motions, Libya sought dismissal for lack of personal and subject-matter jurisdiction, as well as for failure to state a claim. The court demurred, granting the plaintiff a final opportunity to amend her complaint with a statement of which law she wishes the court to apply. Because the court concludes that an intervening change in the choice-of-law doctrine excuses the plaintiff's having pleaded actions under D.C. rather than Pennsylvania law, the court grants the plaintiff one final opportunity to amend her complaint, absent which it will be dismissed. The court dismisses every other basis of law pleaded in the second amended complaint however, in light of concessions by the plaintiff during briefing, as well as futility and bad faith.

II. FACTUAL & PROCEDURAL BACKGROUND

A. Factual History

The court will not waste time, ink or paper reciting facts unaltered since the plaintiff's last pleading.*fn1 A comprehensive account of the plaintiff's travails can be found in the court's most recent memorandum opinion. Order (Mar. 7, 2005) at 2-3. In summary, the plaintiff alleges that, without reason, Libyan authorities forcibly detained and terrorized her and her husband for months after their cruise ship sought refuge at a Libyan port in the midst of a storm gale. First Am. Compl. ¶¶ 1, 16-18, 28, 33, 35-37, 62.

B. Procedural History

Sandra Jean Simpson filed her original complaint pro se on July 21, 2000, alleging torture, hostage-taking, battery, false imprisonment, intentional infliction of emotional distress, and loss of consortium, and seeking compensatory and punitive damages. Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F. Supp. 2d 78, 81 (D.D.C. 2001) ("Simpson I"). On July 23, 2001, Libya filed a motion to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction and failure to state a claim for hostage taking or torture. Id. The court denied Libya's motion in full, holding that the court had subject-matter and personal jurisdiction and that the plaintiff stated claims for torture and hostage taking. Id. at 80-81.

The defendant sought interlocutory appeal, and on appeal the D.C. Circuit affirmed this court's jurisdictional holding, reversed and remanded for dismissal of the torture claim, and vacated and remanded on the hostage-taking claim, allowing the plaintiff to amend her complaint with regard to the hostage-taking claim. Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 235 (D.C. Cir. 2003) ("Simpson II"). After remand, the plaintiff filed an amended complaint, the defendant filed a motion to dismiss, and this court set a schedule for jurisdictional discovery -- specifically, for the parties to provide further information on hostage taking. On March 7, 2005, the court denied the motion to dismiss, concluding that sufficient evidence existed to establish subject-matter jurisdiction under the "hostage taking" exception to foreign sovereign immunity under FSIA. Order (Mar. 7, 2005) at 11-20. Because the amended complaint primarily referenced general tort law, which is not a viable cause of action, the court granted the plaintiff leave to amend her complaint with a statement of which law she seeks the court to apply.

The plaintiff responded by filing a second amendment, which cites the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7), the Flatow Amendment, the common law of the District of Columbia and the D.C. Code, and the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350. Libya moved again to dismiss, noting that neither the FSIA, the Flatow Amendment, nor the ATS creates a cause of action against a foreign state. The plaintiff conceded the above in her opposition, while reserving the option of alleging an international source of law in accord with the ATS in the future and expressing an intention to further amend by dropping any reference to D.C. law in favor of Pennsylvania law, the plaintiff's state of residence.*fn2 In its reply, Libya opposes the plaintiff's request for a third opportunity to amend, citing her failure to follow local rules requiring that a proposed amended complaint accompany a motion to amend and her dilatoriness in identifying a proper source of law.

III. ANALYSIS

1. Legal Standard for Rule 12(b)(6) ...


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