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Owens v. Republic of Sudan

United States District Court, District of Columbia

October 28, 2015

JAMES OWENS, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants. RIZWAN KHALIQ, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants.

MEMORANDUM OPINION

JOHN D. BATES UNITED STATES DISTRICT JUDGE

Plaintiffs in these two cases are victims and family members of victims of the 1998 terrorist bombings of two U.S. embassies in Africa. Having obtained default judgments against Sudan and Iran for their roles in those bombings, they now wish to begin enforcing those judgments. In doing so, they must comply with rules for attaching and executing on the property of a foreign state contained in the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1610. Attachment and execution under the FSIA cannot occur until, among other requirements, a court has “determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter.” Id. § 1610(c). Plaintiffs seek orders acknowledging that they have properly given the required notice and that a reasonable period of time has now elapsed. For the following reasons, the Court will grant plaintiffs’ request.

BACKGROUND

Plaintiffs in these two cases won final judgments that total more than half a billion dollars against Iran and Sudan in March and April 2014.[1] See Apr. 11, 2014 Order, Owens [ECF No. 305]; Mar. 28, 2014 Order, Khaliq [ECF No. 40]. Plaintiffs then began the arduous process of serving notice of the default judgments on the defendants according to the rules of 28 U.S.C. § 1608. The Court detailed plaintiffs’ initial-but inadequate-efforts in an earlier order. See Apr. 1, 2015 Order, Owens [ECF No. 359]. It determined that while the Owens plaintiffs had properly served Sudan, they did not appear to have served Iran-and that the Khaliq plaintiffs had the same problem with the defendants reversed. See id. at 4. The Court held that until plaintiffs could establish that “both Sudan and Iran have been served, ” it could not issue the requested orders. Id. at 6 (citing Murphy v. Islamic Republic of Iran, 778 F.Supp.2d 70, 72 (D.D.C. 2011)).

Plaintiffs have now renewed their motions and supplied additional evidence of their efforts to serve notice. See Pls.’ Mot. for Order, Owens [ECF No. 382]; Pls.’ Mot. for Order, Khaliq [ECF No. 80].[2] Those filings indicate that the Owens plaintiffs transmitted a copy of their judgment to Iran through diplomatic channels on June 9, 2015, see Letter from Daniel Klimow, Owens [ECF No. 382-2], and that the Khaliq plaintiffs did the same with respect to Sudan on June 15, 2015, see Letter from Daniel Klimow, Khaliq, [ECF No. 79-2]. Plaintiffs thus contend that they have now given the notice required by § 1608(e) and that a “reasonable period of time” has passed, such that attachment and execution efforts should be allowed. See 28 U.S.C. § 1610(c).

Never having appeared in either of these cases, Iran has filed no response. Sudan, on the other hand, has recently begun participating in these (and related) cases and opposes plaintiffs’ requests. See Sudan’s Opp’n, Owens [ECF No. 383]. Sudan does not quarrel with plaintiffs’ provision of notice, but contends that a reasonable period of time has not elapsed. At a minimum, Sudan argues, the Court should wait until it resolves Sudan’s pending motions to vacate the default judgments, see, e.g., Mot. to Vacate, Owens [ECF No. 362], and ideally should interpret § 1610(c) to require waiting until the judgments can no longer be appealed.

After the Court received the parties’ initial filings, it requested a round of supplemental briefing. See Order for Supp. Briefing, Owens [ECF No. 385]. The Court noted that in a pair of recent decisions, the Seventh Circuit had said that the requirements of § 1610(c) are inapplicable to plaintiffs seeking to enforce judgments obtained under the FSIA’s immunity exception for state-sponsored terrorism. See Wyatt v. Syrian Arab Republic, 800 F.3d 331, 342-43 (7th Cir. 2015); Gates v. Syrian Arab Republic, 755 F.3d 568, 575-77 (7th Cir. 2014). The Court therefore asked the parties to address whether plaintiffs’ requested orders were necessary under the circumstances of these cases. No surprise: Sudan says such orders are indeed necessary. See Sudan’s Supp. Br., Owens [ECF No. 387]. But less expected: plaintiffs agree. See Pls.’ Supp. Br., Owens [ECF No. 386]. The Court must decide, then, whether the parties are correct that § 1610(c) is applicable here, and if so, whether its requirements are satisfied.

DISCUSSION

“The text of the [FSIA] confers on foreign states two kinds of immunity.” Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2256 (2014). The first is jurisdictional immunity: a foreign state is immune from suit in U.S. courts except as provided in §§ 1605 to 1607 of the Act. 28 U.S.C. § 1604. This Court determined years ago that these defendants lacked jurisdictional immunity in light of § 1605A, the immunity exception applicable to certain acts of state-sponsored terrorism. See Owens v. Republic of Sudan, 826 F.Supp.2d 128 (D.D.C. 2011). (As noted, though, Sudan has recently filed vacatur motions that challenge that determination.) The second kind of immunity is execution immunity: even if judgment has been entered against a foreign state lacking jurisdictional immunity, the state’s property within the United States is “immune from attachment[, ] arrest[, ] and execution except as provided in sections 1610 and 1611.” 28 U.S.C. § 1609; see also NML Capital, 134 S.Ct. at 2256. Plaintiffs’ goal now is thus to enforce their judgments consistent with § 1610. (No party has suggested that § 1611 is relevant here.)

Four subsections of § 1610 are important to the Court’s analysis. Subsections (a) and (b) together delineate the general circumstances in which a foreign state’s property in the United States is subject to execution. Subsection (a) identifies seven circumstances in which “[t]he property in the United States of a foreign state . . ., used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution.” Because the term “foreign state” is defined to include “an agency or instrumentality of a foreign state, ” see 28 U.S.C. § 1603(a), subsection (a) is applicable both to a state itself and to its agencies and instrumentalities. Subsection (b), in turn, identifies three circumstances in which “any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment in aid of execution, or from execution.” Subsection (b) is applicable only to agencies and instrumentalities-not to a foreign state itself-and does not require that the particular property in question have been used for a commercial activity. See EM Ltd. v. Republic of Argentina, 473 F.3d 463, 472-73 (2d Cir. 2007) (“[T]he protections applicable to assets of instrumentalities vary from those applicable to the assets of the foreign states themselves”); see also H.R. Rep. No. 94-1487, at 27-30 (1976).

Subsection (c) contains the procedural prerequisites to execution that are foremost at issue here. Subsection (c) provides: “No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter.”

Finally, there is subsection (g), which was added to § 1610 in 2008 by the same legislation that enacted § 1605A, the exception to jurisdictional immunity for certain acts of state-sponsored terrorism that underlies the judgments in these cases. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-342 (2008). The relevant portion of subsection (g) provides that, subject to certain exceptions,

the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of ...

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