Underwriters at Lloyds v. GREAT SOCIALIST

• Decision Date: 06 January 2010
• Docket Number: Civil Action No. 06-731 (GK),08-504 (GK).
• Citation: 677 F. Supp.2d 270
• Court: U.S. District Court — District of Columbia
• Parties: CERTAIN UNDERWRITERS AT LLOYDS LONDON, et al., Plaintiffs, v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants. Certain Underwriters at Lloyds London, et al., Plaintiffs, v. Great Socialist People's Libyan Arab Jamahiriya, et al., Defendants.

677 F.Supp.2d 270

CERTAIN UNDERWRITERS AT LLOYDS LONDON, et al., Plaintiffs, v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al., Defendants.

Certain Underwriters at Lloyds London, et al., Plaintiffs, v. Great Socialist People's Libyan Arab Jamahiriya, et al., Defendants.

Civil Action Nos. 06-731 (GK), 08-504 (GK).

United States District Court, District of Columbia.

January 6, 2010.

Richard D. Heideman, Tracy Reichman Kalik, Heideman Nudelman & Kalik, P.C., Steven R. Perles, Perles Law Firm, P.C., Washington, DC, for Plaintiffs.

Christopher M. Curran, Nicole Erb, White & Case LLP, Thomas J. Whalen, Mark Andrew Johnston, Eckert Seamans Cherin & Mellott, LLC, Washington, DC, Wendy West Feinstein, Eckert Seaman's Cherin & Mellott, LLC, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

In C.A. No. 06-731, Plaintiffs Certain Underwriters at Lloyds London ("Lloyds"), Allianz Cornhill Insurance, PLC; Aviation & General Insurance Company, Ltd.; English & American Insurance Company Ltd.; Markel Insurance Company Ltd.; Minster Insurance Company Ltd.; MMO/New York Marine and General; Nippon Insurance Company of Europe Ltd.; Riverstone Insurance UK Ltd.; Sovereign Marine & General Insurance Company Ltd.; SR International Business Insurance Company Ltd.; Tower Insurance Ltd.; and La Réunion Aérienne (collectively, "Plaintiffs") bring these actions against Defendants Great Socialist People's Libyan Arab Jamahiriya; Libyan Internal Security; Libyan External Security; Mu'ammar al-Qadhafi; Abdallah al-Sanusi; Ibrahaim al-Bishari (collectively, "Libyan Defendants"); the Syrian Arab Republic; Syrian Air Force Intelligence; and Muhammed al Khuli (collectively, "Syrian Defendants"),¹ pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602, et seq. (2006) (Count I); common law conversion and trespass (Counts II and III); and Aircraft Piracy under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350 (2006) (Count IV). Second Am. Compl. C.A. No. 06-731, Dkt. No. 60.

In C.A. No. 08-504, the same Plaintiffs bring suit pursuant to the National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 110-181, § 1083, 122 Stat. 3 (2008). They claim that Defendants violated the FSIA (Count I); committed common law conversion and trespass (Counts II and III); and engaged in Aircraft Piracy under the ATCA (Count IV). Compl. C.A. No. 08-504, Dkt. No. 1.

These cases are before the court on Defendants' Motions to Dismiss Duplicative Complaint C.A. No. 06-731, Dkt. No. 74; C.A. No. 08-504, Dkt. No. 18 and Defendants' Supplemental Motions to Dismiss C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt. No. 24.

I. BACKGROUND²

On November 23, 1985, three members of the Abu Nidal Organization³ ("ANO") hijacked Egypt Air Flight 648, traveling from Athens, Greece to Cairo, Egypt. At that time, the governments of Libya and Syria sponsored ANO by providing a variety of monetary, material, diplomatic, and logistical support.

Shortly after takeoff, the plane made an emergency landing at the Malta International Airport, where it remained for twenty-four hours until Egyptian Commandos attempted to board it. The combination of gunfire by the ANO members, a fire started by the Egyptian Commandos' explosives, and the ANO members' deployment of hand grenades rendered the plane "damaged beyond repair" and unfit "for any purpose whatsoever." Compl. ¶ 51 C.A. No. 08-504.

Plaintiffs, which are both foreign and United States national juridical entities, provided liability insurance for the hull of the plane. Following the hijacking, they "compensated" Egypt Air "for the cost of the destroyed airplane." Id. ¶ 64.

On April 21, 2006, Plaintiffs filed a Complaint in this Court against the Libyan and Syrian Defendants. The original Complaint alleged Conversion (Count I), Trespass (Count II), and Aircraft Piracy (Count III). On November 9, 2006, Plaintiffs filed an Amended Complaint adding an additional allegation of International Terrorism in Violation of 18 U.S.C. § 2333 (Count IV) Dkt. No. 26.

On December 5, 2006, Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6) Dkt. No. 32. On June 12, 2007, this Court held a Motions Hearing. On July 9, 2007, 2007 WL 2007573, it granted Defendants' Motion to Dismiss for lack of subject matter jurisdiction Dkt. Nos. 45-46. Plaintiffs filed an appeal on August 3, 2007, and on February 1, 2008, our Court of Appeals ruled that it lacked jurisdiction to consider the appeal. Consequently, it ordered that the Motion to Dismiss be granted. See Certain Underwriters at Lloyd's of London v. Great Socialist People's Libyan Arab Jamahiriya, No. 07-7117 (D.C.Cir. Dec. 14, 2007) Dkt. No. 61.

On February 22, 2008, Plaintiffs filed a Motion for Reconsideration Dkt. No. 51 and a Motion for Leave to File a Second Amended Complaint Dkt. No. 52. On March 28, 2008, the Motion for Leave was granted and Plaintiffs filed their Second Amended Complaint the same day Dkt. No. 60. The Second Amended Complaint alleges a violation of 28 U.S.C. § 1605A(d) (Count I), Conversion (Count II), Trespass (Count III), and Aircraft Piracy (Count IV), seeking a sum in excess of $40 million on each count. On April 14, 2008, the Court denied Plaintiffs' Motion for Reconsideration without prejudice Dkt. No. 64.

On March 24, 2008, Plaintiffs filed a second Complaint against the same Defendants,⁴ alleging a violation of 28 U.S.C. § 1605A(d) (Count I), Conversion (Count II), Trespass (Count III), and Aircraft Piracy (Count IV), seeking a sum in excess of $40 million on each count C.A. No. 08-504, Dkt. No. 1. On July 25, 2008, Plaintiffs filed a Motion to Consolidate Cases C.A. No. 08-504, Dkt. No. 17, and Defendants filed Motions to Dismiss Duplicative Complaint C.A. No. 06-731, Dkt. No. 74; C.A. No. 08-504, Dkt. No. 18.

On November 20, 2008, Defendants filed Supplemental Motions to Dismiss C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt. No. 24. On March 16, 2009, the United States filed a Statement of Interest in each case C.A. No. 06-731, Dkt. No. 84; C.A. No. 08-504, Dkt. No. 28.

On July 10, 2009, the two cases—06-731 and 08-504—were consolidated. C.A. No. 06-731, Dkt. No. 92; C.A. No. 08-504, Dkt. No. 36.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge his or her claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 579, 127 S.Ct. 1955.

Under the standard set out in Twombly, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiff's success. . . must assume all the allegations in the complaint are true (even if doubtful in fact) . . . and must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21.November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (internal quotation marks and citations omitted).

III. ANALYSIS

On August 4, 2008, the Libyan Claims Resolution Act ("LCRA") was signed into law in order to "provide for `fair compensation to all nationals of the United States who have terrorism-related claims against Libya through a comprehensive settlement of claims by such nationals.'" Statement of Interest of the United States at 4-5 (quoting Pub. L. No. 110-301, § 3, 122 Stat. 2999 (2008)). The statute states that

section 1605A(c) of title 28, United States Code, section 1083(c) of the National Defense Authorization Act for Fiscal Year 2008 . . . and any other private right of action relating to acts by a state sponsor of terrorism arising under Federal, State, or foreign law shall not apply with respect to claims against Libya, or any of its agencies, instrumentalities, officials, employees, or agents in any action in a Federal or State court.

Pub.L. No. 110-301, § 5(a)(1)(B). The Act provides Libya with immunity that applies to suits brought in the United States by plaintiffs of any nationality.⁵ Id. at § 5(a)(1).

On August 14, 2008, shortly after the passage of the LCRA, Libya and the United States signed the Claims Settlement Agreement ("Settlement Agreement") in order to "terminate permanently all pending suits . . . and preclude any future suits" in United States or Libyan courts arising from terrorist acts, including aircraft hijacking and hostage-taking, which occurred prior to June 30, 2006. Claims Settlement Agreement Between the United States of America and the Great Socialist People's Libyan Arab Jamahiriya, art. I, August 14, 2008. After the United States Government received $1.5 billion in settlement funds, President Bush signed an Executive Order stating that "all claims within the terms of Article I of the Claims Settlement Agreement . . . are settled." Exec. Order No. 13,477, § 1 (2008).

The Order declares that "no United States national may assert or maintain any claim within the terms of Article I in any forum" outside the provisions of the Settlement Agreement and that "any pending suit in any court . . . by United States nationals . . . coming within the terms of Article I shall be terminated." Id. § 1(a)(i-ii). With regard to foreign nationals, the Order states that "no foreign national may assert or maintain any claim coming within the terms of Article I in any court in the United States," and "any pending suit in any court in the United States by foreign nationals . . . coming within the terms of Article I shall be terminated."⁶ Id. § 1(b)(i-ii).

In the federal system, the FSIA is the "sole basis for obtaining jurisdiction over a foreign state." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102...