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Owens v. Republic of Sudan

United States District Court, District of Columbia

March 23, 2016

JAMES OWENS, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants.
v.
WINFRED WAIRIMU WAMAI, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants. MILLY MIKALI AMDUSO, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants. JUDITH ABASI MWILA, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants. MARY ONSONGO, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants. RIZWAN KHALIQ, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants. MONICAH OKOBA OPATI, et al., Plaintiffs,
v.
REPUBLIC OF SUDAN, et al., Defendants.

MEMORANDUM OPINION

JOHN D. BATES UNITED STATES DISTRICT JUDGE

On August 7, 1998, the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were devastated by the nearly simultaneous detonations of a pair of truck bombs. More than 200 people were killed, including 12 Americans, and thousands were injured. There is no doubt the attacks were the work of al Qaeda, a grisly precursor to the bombing of the U.S.S. Cole and the atrocities of September 11, 2001.

Starting in 2001, various groups of plaintiffs-comprising individuals directly injured in the two embassy bombings, estates of individuals who were killed, and family members of the wounded and dead-filed lawsuits against the Republic of Sudan and the Islamic Republic of Iran, charging those nations with responsibility for the attacks. With respect to Sudan, the only defendant relevant for present purposes, the essence of the plaintiffs’ allegations was that Sudan had given Osama bin Laden and al Qaeda safe haven throughout the mid-1990s, as well as other forms of assistance, and that this support had allowed al Qaeda to grow, train, plan, and eventually carry out the 1998 embassy attacks. In the plaintiffs’ view, this support of al Qaeda was sufficient both to divest Sudan of the immunity generally granted to foreign states by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., and also to render it liable for the plaintiffs’ physical and emotional injuries stemming from the attacks.

Sudan hired U.S. counsel and defended against the first of these lawsuits in its early stages. But even as this Court denied its repeated requests that the suit be dismissed, Sudan stopped paying and communicating with its lawyers, and eventually ignored the case entirely. Sudan never participated at all in the six other cases at issue here. Because the FSIA requires plaintiffs to substantiate their claims with evidence even when a foreign sovereign defaults, in October 2010 the Court held a three-day hearing at which the plaintiffs presented a range of evidence about the bombings and Sudan’s relationship with al Qaeda. Roughly a year later, the Court issued an opinion in which it concluded that Sudan had indeed provided material support to al Qaeda, was not entitled to sovereign immunity, and was liable for the plaintiffs’ injuries. The Court then referred the hundreds of claims to special masters, who heard evidence relevant to individual plaintiffs’ damages, reported their findings to the Court, and recommended awards. Between March and October of 2014, the Court entered final judgments against Sudan in all seven cases, awarding a total of over $10 billion in compensatory and punitive damages.

One month after the entry of the first of these final judgments, Sudan reappeared with new counsel and began to participate in the litigation. Sudan first filed notices of appeal in all seven cases. Then, in April 2015, it filed with this Court motions to vacate all of the judgments pursuant to Federal Rule of Civil Procedure 60(b). The Court of Appeals ordered the appeals held in abeyance pending this Court’s resolution of the motions to vacate, which are now ripe for decision.

The Court will deny Sudan’s motions in all respects. Sudan’s years of total nonparticipation in this litigation, despite full awareness of its existence, cannot be justified as “excusable neglect.” Nor did this Court lack subject-matter jurisdiction for any of the reasons Sudan offers: these bombings were acts of “extrajudicial killing” within the meaning of the jurisdictional provision; there was sufficient evidence of the necessary jurisdictional facts; and the jurisdictional provision extends to claims of emotional harms by immediate family members. Sudan’s nonjurisdictional arguments also fail: some are without merit, and for those with some heft, Sudan fails to explain what would justify relief from a final judgment.

Perhaps Sudan could have prevailed in these cases, fully or partially, if it had defended in a timely fashion. But, as a result of either deliberate choice or inexcusable recklessness, it did not do so. Either way, Sudan has no one to blame for the consequences but itself.

BACKGROUND

Statutory Background

Because many of the issues Sudan has raised in its vacatur motions concern the proper interpretation of the Foreign Sovereign Immunities Act (FSIA), and because Congress amended the FSIA significantly during the long course of this litigation, the Court begins with a brief overview of the Act and its history.

Enacted in 1976, “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989). The Act provides that federal district courts shall have jurisdiction over civil claims against foreign states “with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of [Title 28] or under any applicable international agreement.” 28 U.S.C. § 1330(a). Subject-matter jurisdiction is thus intertwined with immunity: insofar as a foreign sovereign defendant is entitled to immunity, a federal court lacks subject-matter jurisdiction to hear claims against it. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 (1983). And § 1604 provides that foreign states are generally entitled to immunity, subject to specific statutory exceptions, most notably those contained in § 1605. 28 U.S.C. §§ 1604-1605.

As originally enacted, § 1605’s exceptions generally codified the “restrictive” theory of foreign sovereign immunity, under which “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.” Verlinden, 461 U.S. at 487-88. None of the original immunity exceptions overtly had anything to do with terrorism or human rights abuses. In 1996, however, Congress enacted § 1605(a)(7), commonly referred to as the “terrorism exception” to foreign sovereign immunity. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110 Stat. 1214, 1241-43 (“Jurisdiction for Lawsuits Against Terrorist States”). Subject to certain exceptions, that provision removed immunity in cases

in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

28 U.S.C. § 1605(a)(7) (2006). Only foreign states designated as state sponsors of terrorism under certain federal statutes could be sued under this provision. Id. § 1605(a)(7)(A). And a suit could not proceed if “neither the claimant nor the victim was a national of the United States . . . when the act upon which the claim [was] based occurred.” Id. § 1605(a)(7)(B)(ii).

Like the other provisions in § 1605, subsection (a)(7) eliminated immunity and thereby created federal jurisdiction for a certain set of claims, but it did not provide plaintiffs with a federal cause of action. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1032 (D.C. Cir. 2004); see also Republic of Austria v. Altmann, 541 U.S. 677, 695 n.15 (2004) (“The [FSIA] does not create or modify any causes of action . . . .”). Shortly after the enactment of § 1605(a)(7), however, in what is frequently called the “Flatow Amendment, ” Congress did create a related federal cause of action. The Flatow Amendment provided that

an official, employee, or agent of a foreign state designated as a state sponsor of terrorism . . . while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28.

Pub. L. No. 104-208, § 589, 110 Stat. 3009, 3009-172 (1996). Although several district courts initially held that the Flatow Amendment created a cause of action against foreign states, in 2004 the D.C. Circuit clarified that the statute “only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself.” Cicippio-Puleo, 353 F.3d at 1033. After Cicippio-Puleo, plaintiffs suing foreign states under § 1605(a)(7), like those suing under the FSIA’s other immunity exceptions, generally had to rely on state law for causes of action. See, e.g., Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1, 23-24 (D.D.C. 2005).

In the National Defense Authorization Act (NDAA) of 2008, Congress significantly amended the terrorism-related provisions of the FSIA. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44. Section 1605(a)(7) was struck, and an entirely new section, § 1605A, was enacted. Section 1605A, entitled “Terrorism exception to the jurisdictional immunity of a foreign state, ” contains several provisions relevant here. Subsection (a) contains an immunity exception that closely tracks the repealed § 1605(a)(7). Subsection (b), in conjunction with § 1083(c) of the 2008 NDAA, establishes a somewhat convoluted statute of limitations. And subsection (c) supersedes Cicippio-Puleo by creating a federal cause of action for certain plaintiffs against foreign states (and their agents) that engage in, or provide material support for, the four predicate acts for which immunity is not provided (torture, extrajudicial killing, hostage taking, and aircraft sabotage). The Court will examine these provisions in greater detail as they become relevant to Sudan’s arguments.

Procedural Background

James Owens, a U.S. citizen injured in the Dar es Salaam attack, filed the first of the seven cases at issue here on October 26, 2001. Compl. [Owens ECF No. 1]. Owens was eventually joined by several dozen co-plaintiffs, some of whom had been directly injured or killed in the embassy bombings, and some of whom were family members of those directly harmed. They brought suit against Sudan and Iran (as well as Sudan’s Ministry of the Interior and Iran’s Ministry of Information and Security), whom they alleged had provided support to the terrorists who carried out the attacks. Am. Compl. [Owens ECF No. 4]. The plaintiffs sought to recover for the physical injuries (or death) inflicted on those present during the attacks and also for the emotional injuries suffered by both those direct victims and their relatives.

Initially, neither Sudan nor Iran appeared in Owens, and in May 2003 the Court entered defaults against them. Order of May 8, 2003 [Owens ECF No. 11]. In February 2004, however, Sudan retained U.S. counsel and began to participate in the litigation. Notice of Appearance [Owens ECF No. 43]. Sudan quickly moved to vacate the default and to dismiss the case, raising a host of arguments, most notably that it was immune under the Foreign Sovereign Immunities Act. Mot. to Dismiss [Owens ECF No. 49]. In March 2005 the Court granted in part and denied in part Sudan’s motion. Owens v. Republic of Sudan, 374 F.Supp.2d 1 (D.D.C. 2005) (“Owens I”). Although the Court rejected most of Sudan’s arguments, it concluded that the plaintiffs’ existing allegations were insufficient to show that the immunity exception in § 1605(a)(7) applied to Sudan. Id. at 14-15, 17-18. But the Court felt that the plaintiffs could overcome these pleading failures and therefore gave them leave to file an amended complaint. Id.

The plaintiffs did so, Sudan again moved to dismiss, and the Court denied its motion. Owens v. Republic of Sudan, 412 F.Supp.2d 99 (D.D.C. 2006) (“Owens II”). The applicability of § 1605(a)(7) was again the headline issue. Although Sudan did not dispute that the embassy bombings were acts of “extrajudicial killing, ” it argued that the plaintiffs’ allegations remained insufficient to show that Sudan had provided material support to al Qaeda or that there was a legally cognizable causal link between the alleged material support and the plaintiffs’ injuries. See id. at 106 & n.11. The Court rejected these arguments, holding that the plaintiffs’ amended complaint sufficiently alleged the provision of material support in various forms by Sudanese government officials acting in their official capacities, id. at 106-09, and that those allegations, if true, could justify the conclusion that Sudan’s support caused the bombings, id. at 109-15.

During these two rounds of motion-to-dismiss proceedings, relations between Sudan and its U.S. counsel deteriorated. In January 2005 Sudan’s counsel informed the Court that Sudan had “made no payment for any of the legal services provided to date, ” and that there had been a “lack of effective communication from the client” on legal issues. Mot. to Withdraw [Owens ECF No. 100] at 2. Counsel’s difficulties communicating with Sudanese officials persisted, and by late 2007 it appears that Sudan had stopped responding to counsel’s communications entirely. Mot. to Withdraw [Owens ECF No. 129] at 4. Counsel apparently received an inquiry about the case from a Sudanese official on September 1, 2008, but there were no accompanying instructions and no follow-up. Status Report [Owens ECF No. 144] at 3.

Despite the communication difficulties and eventual breakdown, Sudan’s counsel continued to defend. After the January 2006 denial of its second motion to dismiss, Sudan took an interlocutory appeal to the D.C. Circuit, which affirmed this Court’s decision in July 2008. Owens v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008) (“Owens III”). As relevant here, Sudan again argued that the plaintiffs had “failed to plead sufficient facts to ‘reasonably support a finding’ that Sudan’s material support of al Qaeda in the early 1990s caused the embassy bombings in Kenya and Tanzania in 1998.” Id. at 893-94. The D.C. Circuit rejected this argument:

Although Plaintiffs’ allegations are somewhat imprecise as to the temporal proximity of Sudan’s actions to and their causal connection with the terrorist act and do not chart a direct and unbroken factual line between Sudan’s actions and the terrorist act, this imprecision is not fatal for purposes of jurisdictional causation so long as the allegations, and the reasonable inferences drawn therefrom, demonstrate a reasonable connection between the foreign state’s actions and the terrorist act.

Id. at 895 (internal quotation marks omitted). The court concluded that the allegations and reasonable inferences drawn therefrom did indeed demonstrate such a connection. Id.

Within roughly a month of the D.C. Circuit’s decision, four groups of plaintiffs filed four new lawsuits-Wamai, Amduso, Mwila, and Onsongo-against Iran and Sudan for their alleged roles in the embassy bombings. Sudan did not appear to defend against these actions. And in January 2009 the Court granted Sudan’s counsel’s request to withdraw in Owens. Order of January 26, 2009 [Owens ECF No. 148]. From that point until April 2014, Sudan did not participate in any of these cases or communicate with the Court in any way.

A new default against Sudan was entered on March 25, 2010. Entry of Default [Owens ECF No. 173]. The FSIA forbids the entry of a default judgment, however, “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Accordingly, in October 2010 the Court held a three-day evidentiary hearing in Sudan’s absence. (By this time, a sixth case, Khaliq, had joined the group.) The plaintiffs presented a wide range of evidence-including live testimony (of both lay and expert witnesses), videotaped testimony, transcripts of testimony from other cases, affidavits, and U.S. government reports-concerning the embassy attacks and Sudan’s relationship with al Qaeda.

In November 2011 the Court issued an opinion that presented its findings of fact and conclusions of law. Owens v. Republic of Sudan, 826 F.Supp.2d 128 (D.D.C. 2011) (“Owens IV”). As a factual matter, the Court found that Sudan had provided safe harbor, as well as financial, military, and intelligence assistance, to al Qaeda, id. at 139-46, and that “Sudanese government support was critical to the success of the 1998 embassy bombings, ” id. at 146. Because this amounted to the provision of material support for acts of extrajudicial killing, under § 1605A(a) Sudan was not entitled to immunity. Id. at 148-51. The Court also clarified that while plaintiffs who were U.S. nationals or employees of the U.S. government (essentially everyone directly injured in the bombings) could recover under the federal cause of action provided by § 1605A(c), foreign family members of direct victims were not within the ambit of that provision, but could instead recover under the tort law of the District of Columbia. Id. at 151-57. The Court deemed Sudan’s (and Iran’s) fundamental liability established, but referred the hundreds of plaintiffs’ claims to special masters, “who [would] receive evidence and prepare proposed findings and recommendations for the disposition of each individual claim in a manner consistent with [the Court’s] opinion.” Id. at 157.

The work of the special masters took several years, during which time a number of events worth noting occurred. First, the Court’s November 2011 opinion was translated into Arabic and forwarded to the State Department to be served on Sudan through diplomatic channels. That service was effected in September 2012, when the U.S. embassy in Khartoum delivered the translated opinion to the Sudanese Ministry of Foreign Affairs. See Letter from William P. Fritzlen [Owens ECF No. 282]. Also in 2012, two new sets of plaintiffs entered the picture. One group filed a new case, Opati, the last of the seven at issue here. The other-referred to as the “Aliganga plaintiffs” after Marine Sergeant Jesse Nathanael Aliganga, who was killed in the Nairobi attack- did not file a new case, but instead sought and received permission to intervene in Owens. Order of July 3, 2012 [Owens ECF No. 233]. Because the Opati and Aliganga plaintiffs’ claims arose from the same attacks for which the Court had already found Sudan liable (and Sudan again did not respond), the Court did not revisit the question of liability, and instead referred these plaintiffs’ claims to special masters just as it had done in the other cases. Order of July 31, 2012 [Owens ECF No. 236]; Opati v. Republic of Sudan, 60 F.Supp.3d 68, 73-75 (D.D.C. 2014).

On March 28, 2014, having received and reviewed the special masters’ reports, the Court issued final judgments awarding hundreds of millions of dollars to the plaintiffs in Owens, [1] Mwila, and Khaliq. Mem. Op. of March 28, 2014 [Owens ECF No. 300] at 3 (over $487 million); Mwila v. Islamic Republic of Iran, 33 F.Supp.3d 36, 40 (D.D.C. 2014) (over $419 million); Khaliq v. Republic of Sudan, 33 F.Supp.3d 29, 32 (D.D.C. 2014) (over $49 million). On July 25, 2014, the Court issued four more final judgments, bringing Wamai, Amduso, Onsongo, and Opati to a close. Wamai v. Republic of Sudan, 60 F.Supp.3d 84, 89 (D.D.C. 2014) (over $3.5 billion); Amduso v. Republic of Sudan, 61 F.Supp.3d 42, 46 (D.D.C. 2014) (over $1.7 billion); Onsongo v. Republic of Sudan, 60 F.Supp.3d 144, 148 (D.D.C. 2014) (over $199 million); Opati, 60 F.Supp.3d at 76 (over $3.1 billion). Finally, on October 24, 2014, the Court entered judgment in favor of the Aliganga plaintiffs, the eighth and last judgment at issue in these seven cases. Owens v. Republic of Sudan, 71 F.Supp.3d 252, 256 (D.D.C. 2014) (over $622 million).

Shortly after the Court entered the first group of judgments, Sudan at long last arrived on the scene (or, in the case of Owens, returned). On April 28, 2014, new counsel for Sudan entered appearances in Owens, Mwila, and Khaliq, and filed a notice of appeal in each. Sudan did not, however, take any immediate action in the four other cases, in which final judgments had not yet been entered. Only several weeks after judgment was subsequently entered in those cases did Sudan appear, again filing notices of appeal. Similarly, despite reappearing in Owens in April 2014, Sudan took no action with respect to the Aliganga plaintiffs until after judgment was entered in their favor in October 2014.

In April 2015 Sudan retained new counsel and, over the course of several weeks, filed the eight motions to vacate that are presently before the Court. Soon after, Sudan filed its opening brief in the consolidated appeal of these cases before the D.C. Circuit. Br. for Appellants, Owens v. Islamic Republic of Iran, No. 14-5105 (D.C. Cir. May 11, 2015) (“Sudan’s D.C. Cir. Br.”). Before any of the plaintiffs filed their appellees’ briefs, however, the D.C. Circuit granted their request to stay the appeal pending this Court’s consideration of the motions to vacate. Order, Owens v. Islamic Republic of Iran, No. 14-5105 (D.C. Cir. July 22, 2015). After all filings related to the motions were received, the Court held a consolidated motions hearing on December 18, 2015. See generally Mot. Hr’g Tr. [Owens ECF No. 399]. Mindful that these cases might impact foreign relations, the Court also invited the United States to file a statement of interest concerning any of the issues raised by Sudan’s motions, but the United States declined to file such a statement. Notice by the United States [Owens ECF No. 396].

DISCUSSION

Sudan moves to vacate the eight judgments in these cases pursuant to Federal Rule of Civil Procedure 60(b). As relevant to these motions, Rule 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; . . .
(4) the judgment is void; . . . or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Sudan fits-or tries to fit-a host of arguments into these three categories. Some of its arguments apply to all of these cases, others to only a subset. Some, if correct, would require the outright dismissal of some or even all of these cases. Others would lead to the dismissal of only certain plaintiffs’ claims. And still others would merely give Sudan another chance to dispute its liability. Unconvinced there is one “correct” order in which to address Sudan’s various arguments, the Court will proceed as follows. It will first address Sudan’s argument under Rule 60(b)(1) that the failure to contest these cases before final judgment was the result of excusable neglect. It will then turn to Sudan’s several arguments under Rule 60(b)(4) that these judgments, in whole or in part, are void for lack of subject-matter jurisdiction. Finally, it will address Sudan’s claims of nonjurisdictional error, which Sudan lodges under Rule 60(b)(6).

Rule 60(b)(1): Sudan Has Failed To Demonstrate Excusable Neglect

Sudan moves to vacate all of the judgments, except those in Mwila and Khaliq, on the basis of Rule 60(b)(1), which permits relief from a final judgment based on “mistake, inadvertence, surprise, or excusable neglect.” Sudan does not raise this argument in Mwila and Khaliq because relief under Rule 60(b)(1) must be sought not later than a year after the entry of judgment, see Fed.R.Civ.P. 60(c)(1), a deadline Sudan missed in those two cases. In the other cases, however, Sudan says relief under Rule 60(b)(1) is appropriate because its failure to participate in this litigation until after the entry of judgment was the product of “excusable neglect.” See, e.g., Mem. Supp. Mot. to Vacate [Owens ECF No. 367-1] (“Sudan’s Aliganga Mem.”) at 32-36.

“ ‘[E]xcusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993). “[T]he determination of excusable neglect is an equitable matter” that depends on “several relevant factors: the risk of prejudice to the non-movant, the length of delay, the reason for the delay, including whether it was in control of the movant, and whether the movant acted in good faith.” FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006) (citing Pioneer, 507 U.S. at 395-397). “[A] party seeking relief on grounds of excusable neglect” must also “assert a potentially meritorious defense.” Id. at 842. The burden of proving the right to relief under Rule 60(b)(1) rests on the movant seeking vacatur. See Gates v. Syrian Arab Republic, 646 F.3d 1, 5 (D.C. Cir. 2011).

On the facts of these cases, shouldering that burden is a Herculean task. Consider first the length of the delay. Even if one looks only at the most recently filed of these cases, Opati, Sudan did not enter an appearance until more than seventeen months after the complaint and summons had been served through diplomatic channels. See Letter from William P. Fritzlen [Opati ECF No. 36] (service effected on March 11, 2013); Notice of Appearance [Opati ECF No. 49] (appearance by Asim A. Ghafoor on August 21, 2014). But given the close relationship among these cases, it is far too generous to Sudan to measure the length of delay with reference to Opati. A much fairer starting point would be the date of Sudan’s second default in Owens, which the Clerk entered on March 25, 2010. Clerk’s Entry of Default [Owens ECF No. 173]. (And even that is likely too generous, for in practice Sudan had stopped being a responsible litigant in Owens years before.) Taking March 25, 2010, as the starting point, Sudan was absent from this litigation for just over four years, and it was only after nearly five years that Sudan filed the first of these motions to vacate. This is an extraordinary amount of delay. Sudan has not pointed to a single case in which a delay of this magnitude was found excusable.

Of course, turning to the next factor, a delay of this length could be consistent with excusable neglect if the reasons for the delay were sufficiently compelling. The lack of actual knowledge of a lawsuit or filing deadline can be a compelling reason, see 11 Charles Alan Wright et al., Federal Practice and Procedure § 2858, at 333-37 (3d ed. 2012), but Sudan has made no such claim. Nor could it. Sudan was obviously aware of Owens-after its initial default, it actively participated in that case before defaulting a second time. Although Sudan did not participate in any of the other six cases until after the entry of final judgment, it was served with the complaint in each, as well as with the Court’s 2011 liability opinion. And as Sudan’s counsel conceded, “there’s no dispute about service being proper.” Mot. Hr’g Tr. at 11:20. Thus, Sudan was well aware of these cases and yet did nothing.

Rather than lack of knowledge, Sudan offers two other reasons for its delay, both of which are contained in a declaration from Sudan’s ambassador to the United States. Sudan first points to its troubled domestic situation, noting that its absence from this litigation

was principally during periods of well-known civil unrest and political turmoil in Sudan, in addition to times of natural disaster wrought by heavy flooding . . . . The cession of south Sudan and the attendant and protracted diplomatic moves and negotiations completely pre-occupied the Government of Sudan and necessitated the diversion of all meager legal and diplomatic personnel to that process.

Khalid Decl. [Owens ECF No. 367-2] ¶ 4. Sudan also claims an ignorance of American law, citing “a fundamental lack of understanding in Sudan about the litigation process in the United States, in particular surrounding the limits of foreign sovereign immunity and developments in that area of the law.” Id. ¶ 5.

The Court finds neither of these proffered justifications particularly persuasive. As for the first, the Court will not deny that Sudan has experienced serious turmoil over the past decade. Some of that turmoil, however, has been of the Sudanese government’s own making. See, e.g., Darfur Peace and Accountability Act of 2006, Pub. L. No. 109-344, § 4(1), 120 Stat. 1869, 1873 (expressing Congress’s sense that “the genocide unfolding in the Darfur region of Sudan is . . . [occurring] with the complicity and support of the National Congress Party-led faction of the Government of Sudan”); Sudan Accountability and Divestment Act of 2007, Pub. L. No. 110-174, §§ 7-8, 121 Stat. 2516, 2522 (expressing Congress’s sense that “the Government of Sudan . . . continue[s] to oppress and commit genocide against people in the Darfur region and other regions of Sudan” and “refus[es] to allow the implementation of a peacekeeping force in Sudan”).[2] But even setting the question of blame aside, the Court does not find this an adequate reason. Domestic turmoil would surely have justified requests by Sudan for extensions of time in which to respond to the plaintiffs’ filings. It would have also probably led the Court to forgive late filings. And perhaps it would have even justified a blanket stay of these cases. But Sudan was not merely a haphazard, inconsistent, or sluggish litigant during the years in question-it was a complete and utter non-litigant. Sudan never sought additional time or to pause any of these cases in light of troubles at home. Sudan never even advised the Court of those troubles at the time they were allegedly preventing Sudan’s participation-not through formal filings, and not through any letters or other mode of communication with the Court. The idea that the relevant Sudanese officials could not find the opportunity over a period of years to send so much as a single letter or email communicating Sudan’s desire but inability to participate in these cases is, quite literally, incredible. Sudan’s single, vague paragraph of explanation simply does not convince the Court.

In relying on its domestic troubles, Sudan attempts to liken these cases to FG Hemisphere Associates, in which the D.C. Circuit held that the district court abused its discretion by denying Rule 60(b)(1) relief to the Democratic Republic of Congo (DRC). See 447 F.3d at 839-43. But the factual gulf between that case and these is unbridgeably wide. In FG Hemisphere Associates, the DRC was a mere two months late in responding to a motion to execute, some of which delay was attributable to the movant’s failure to translate the motion. Id. at 839-41. True, the D.C. Circuit relied in part on the fact that the DRC “was plainly hampered by its devastating civil war, ” id. at 841, but that hardly suggests that Sudan’s domestic upheaval is a sufficient justification here. Despite its devastating civil war, “the DRC secured counsel only one day after receiving its first actual notice, filing its motion to quash less than four weeks later.” Id. at 840. Sudan, by contrast, did absolutely nothing for years, while plainly aware of the litigation. The DRC’s relatively minor lateness, rectified by prompt efforts to respond, is a world apart from Sudan’s years of knowing inaction.

Nor is the Court persuaded by Sudan’s alleged lack of understanding of U.S. litigation. As a general matter, it is true, courts should be mindful that foreign sovereigns might not be familiar with our judicial system or might misconceive the scope of their immunity. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 n.19 (D.C. Cir. 1987). But see 11 Wright et al., supra, § 2858, at 352-55 & n.26 (noting that “ignorance of the law” is generally not grounds for Rule 60(b)(1) relief). Indeed, it was in part for this reason that the Court vacated Sudan’s first default in Owens. See Owens I, 374 F.Supp.2d at 8-10. But the fundamental-ignorance card cannot convincingly be played a second time, especially not after hiring sophisticated U.S. legal counsel, as Sudan did in 2004. Sudan’s more specific claim that it was ignorant of “the limits of foreign sovereign immunity and developments in that area of the law, ” Khalid Decl. ¶ 5, is hard to understand. The claim would make sense if an early decision in Owens had indicated that Sudan was immune, but then a later development that Sudan was conceivably unaware of, such as the 2008 FSIA amendments, had undermined that immunity. But that is not what happened. Although the Owens I decision identified deficiencies in the plaintiffs’ allegations, it clearly indicated that Sudan might not be immune. See, e.g., 374 F.Supp.2d at 17 (“[I]t cannot be said at this early stage of the proceedings that plaintiffs will be unable to show that the Sudan defendants provided material support to al Qaeda within the meaning of the [FSIA] and that this support was a proximate cause of the embassy bombings.”). By rejecting Sudan’s FSIA-based arguments for dismissal, this Court in Owens II and the D.C. Circuit in Owens III put Sudan on even clearer notice that it might not be immune. And this Court’s 2011 decision in Owens IV renders Sudan’s claim of ignorance wholly untenable. That decision, issued after the 2008 FSIA amendments, definitively concluded that Sudan was not immune and was liable in connection with the embassy bombings. That decision, moreover, was translated into Arabic and delivered to Sudan through diplomatic channels on September 11, 2012. See Letter from William P. Fritzlen [Owens ECF No. 282]. If an honestly held but mistaken conception of its immunity had truly been the reason Sudan was not participating in these cases, Owens IV should have spurred it to action. Instead, Sudan did nothing for more than 19 months.

In light of the foregoing, the Court is by no means persuaded that Sudan has behaved in good faith. That is, the Court is not convinced that Sudan would have participated in the prejudgment proceedings if only circumstances had been more favorable. Viewing the entire history of the litigation, it seems more likely that Sudan chose (for whatever reason) to ignore these cases over the years, changing course only when the final judgments saddled it with massive liability. A defendant who disputes a federal court’s jurisdiction is free to take this approach, letting a default judgment be entered and raising his objection only in subsequent proceedings. See Practical Concepts, 811 F.2d at 1547. But he must accept the consequences of that choice: “If he loses on the jurisdictional issue . . . his day in court is normally over; as a consequence of deferring the jurisdictional challenge, he ordinarily forfeits his right to defend on the merits.” Id. To be clear, the Court is not calling into question the current good faith of the Sudanese officials who have now decided to defend these cases. But the question is not whether Sudan now wishes to participate fully-or now wishes it had done so all along-but rather whether it was acting in good faith during the years of inaction. Given how long-lasting and complete that inaction was, and how weak Sudan’s proffered explanations are, the Court cannot conclude that Sudan acted in good faith.

Turning to the final factor, vacatur would pose a real risk of prejudice to the plaintiffs, Sudan’s blithe assertion to the contrary notwithstanding. There is, to start, the time and money the plaintiffs have spent litigating these cases in Sudan’s absence, much of which will have been wasted if Sudan now gets a mulligan. For example, much of the plaintiffs’ efforts preparing for and conducting the 2010 liability hearing will have been for naught-a serious waste that could have been avoided by Sudan’s timely participation. Sudan’s suggestion that the hearing will not have been wasted because it also addressed Iran’s misconduct, and the default judgment against Iran will remain, is unpersuasive. Throwing half a ripe apple in the garbage may be less wasteful than tossing the whole thing, but wasteful it remains. More troubling than the pointless loss of the plaintiffs’ resources, however, is the fact that the delay would surely make it harder for them to prove their case going forward. “[L]itigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade.” Sibron v. New York, 392 U.S. 40, 57 (1968); see also Wilson v. Garcia, 471 U.S. 261, 271 (1985) (“Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost.”). The years of delay spawned by Sudan’s nonparticipation presents a serious likelihood of lost witnesses, memories, and ...


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