Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Patrick Scott Baker, et al v. Socialist People's Libyan Arab Jamahirya

September 1, 2011

PATRICK SCOTT BAKER, ET AL., PLAINTIFFS,
v.
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM ORDER

This action arises out of a judgment awarding compensatory and punitive damages to plaintiffs and against the named Syrian defendants for acts of state-sponsored terrorism resulting in the hijacking of EgyptAir Flight 648 on November 23, 1985, while the aircraft was bound for Cairo, Egypt from Athens, Greece. The hijacking resulted in the execution-style shooting of three Americans: Patrick Scott Baker, Jackie Nink Pflug, and Scarlett Marie Rogenkamp. Baker and Pflug, survivors of the attack, brought suit together with their family members and the family members of Rogenkamp, who was killed in the attack, against the Libyan and Syrian governments*fn1 as state sponsors of terrorism under 28 U.S.C. § 1605(a)(7) of the Foreign Sovereign Immunities Act (FSIA).*fn2

On March 30, 2011, I issued my findings of fact and conclusions of law in the instant case, and ordered judgment be entered against the Syrian defendants. Baker, 775 F. Supp. 2d 48. On April 14, 2011, Syria filed a notice of appeal. Notice of Appeal [doc. #128]. I have three motions before me at this time: Syria's Application for a Stay Pending Appeal [doc. #131] (the document is visible at doc. #128, but the motion is filed at doc. #131); plaintiffs' Motion to Require the Posting of a Supersedeas Bond Pursuant to Fed. R. Civ. P. 62(d) [doc. #133] (joined with plaintiffs' opposition to doc. #131); and Plaintiffs' Motion for Order Under 28 U.S.C. § 1610(c) Authorizing Enforcement of Judgment and Memorandum in Support Thereof [doc. #134] (including a request that the court vacate that portion of its March 31, 2011 Order requiring Plaintiffs to translate and serve the final judgment under 28 U.S.C. § 1608(e)).

I. BACKGROUND

The original complaint was filed on March 25, 2003. Complaint [doc. #1]. Service of process was perfected on June 28, 2003, pursuant to 28 U.S.C. § 1608(a)(3). Certificate [doc. #9]. The Syrian defendants neither answered nor appeared and default was entered against them on October 16, 2003. Minute Entry, Oct. 16, 2003. The Order for Entry of Default required the plaintiffs to translate the Entry of Default into Arabic and serve it on the Syrian defendants as required by 28 U.S.C. § 1608(e). Id. The Syrian defendants did not respond to the entry of default.

In 2008, the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110--181, § 1083, 122 Stat. 3, 338--344 revised the FSIA framework under which state-sponsored terrorism cases may be brought by substituting 28 U.S.C. § 1605A in place of 28 U.S.C. § 1605(a)(7). On February 29, 2008, the court granted plaintiffs leave to amend the original complaint, in order to restate subject matter jurisdiction under § 1605A; the court further ordered that, in accordance with the enactment of § 1605A, no separate service was necessary, as no new claims were asserted. Order [doc. #65].

On November 2008, the Libyan defendants were dismissed from the action pursuant to the enactment of the Libya Claims Resolution Act, Pub.L. No. 110--301, 122 Stat. 2999 (2008). Order [doc. #101]. The Order dismissed the complaint "in its entirety with prejudice." Id. On the same day, Judge Kessler issued an order requiring plaintiffs to submit a revised order by December 3, 2008, identifying the remaining claims. Order [doc. #102] at 2. On December 24, 2008, Judge Kessler issued an order dismissing the complaint with prejudice only against the Libyan defendants and explicitly noting that "[p]laintiffs' claims asserted . . . against the [Syrian defendants] remain pending and active before this Court and are not affected by entry of this Order." Order [doc. #105] at 2.

On October 8, 2009, Judge Kessler referred the case, with consent of counsel, to me, as Magistrate Judge, for all purposes. Order [doc. #110]. Copies of the Order were sent to all counsel of record. Id. The court held an evidentiary hearing on May 3-7, 2010. Pursuant to that evidentiary hearing, the court entered default judgment against the Syrian defendants on March 31, 2011. Baker, 775 F.Supp.2d 48. Having heard and reviewed the evidence, the court determined:

(i) that the hijacking of EgyptAir Flight 648 on November 23, 1985 (the "EgyptAir hijacking") was an act of international terrorism;

(ii) that the terrorist shootings of the American victims of the EgyptAir hijacking-Patrick Baker, Jackie Pflug, and Scarlett Rogenkamp-were acts of international terrorism that occurred during and as a result of the November 23, 1985 terrorist hijacking;

(iii) that said hijacking was committed by terrorist operatives of the Abu Nidal Organization ("ANO"), which has been designated by the U.S. Department of State as a Foreign Terrorist Organization;

(iv) that the ANO, at the time of and prior to the EgyptAir hijacking, was sponsored and supported by Syria, which has been designated by the U.S. Department of State as a State Sponsor of Terrorism; (v) that the Syrian Arab Republic, the Syrian Air Force Intelligence agency, Idarat al-Mukhabarat al-Jawiyya, and Syria's Director of Military Intelligence, General Muhammad al-Khuli, conspired with and provided substantial and material support to the ANO terrorist organization; and (vi) that the Syrian defendants caused and are liable for the acts of international terrorism against the plaintiffs, for which the Court will award damages. Id. at 48.

In response to that default judgment, the Syrian defendants appeared for the first time to file notice of appeal and moved to stay enforcement of the judgment pending appeal. [doc. #131] They cited a number of grounds for their appeal that they also argue support granting a stay, including lack of subject matter and personal jurisdiction, insufficient service of process, failure to provide service of process for the amended complaint, absence of consent to final judgment by a Magistrate Judge, and a number of constitutional challenges to the FSIA statute. Id.

Plaintiffs filed a subsequent motion seeking an Order authorizing enforcement of the judgment pursuant to 28 U.S.C. § 1610(c). Motion for Order [doc. # 134]. Plaintiffs also ask the court to vacate its Order requiring the plaintiffs to arrange for the judgment and Order to be translated into Arabic and served on the defendants through diplomatic channels, Order [doc. #126 at 3-4], because the Syrian defendants have since filed an appearance and notice of appeal, and thus already have notice of the judgment. [doc. # 134 at 1].

II. DEFENDANT'S MOTION TO STAY PENDING APPEAL OF DEFAULT JUDGMENT

At no point prior to final judgment did the defendants appear or otherwise indicate an intent to defend the suit. This case therefore presents the problem of a "totally unresponsive party" that "default judgments were designed to handle." Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). In such cases, default judgment is intended to protect the diligent party "lest he be faced with interminable delay and continued uncertainty as to his rights." H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.