Smith v. Socialist People's Libyan Arab Jamahiriya

• Decision Date: 12 June 1995
• Docket Number: No. 94-CV-5556 (TCP),94-CV-5557 (TCP).,94-CV-5556 (TCP)
• Citation: 886 F. Supp. 306
• Parties: Bruce SMITH, as personal representative of Ingrid Smith, deceased, Plaintiff, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al., Defendants. Paul S. HUDSON, as personal representative of the Estate of Melina K. Hudson, deceased, Plaintiff, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.
• Court: U.S. District Court — Eastern District of New York

886 F. Supp. 306

Bruce SMITH, as personal representative of Ingrid Smith, deceased, Plaintiff, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al., Defendants.

Paul S. HUDSON, as personal representative of the Estate of Melina K. Hudson, deceased, Plaintiff, v. The SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.

Nos. 94-CV-5556 (TCP), 94-CV-5557 (TCP).

United States District Court, E.D. New York.

May 17, 1995.

Memorandum Correcting Decision June 12, 1995.

COPYRIGHT MATERIAL OMITTED

Douglas E. Rosenthal, Timothy C. Russell, and Daniel N. Segal, of Sonnenschein, Nath & Rosenthal, Washington, DC, Alan Gerson and Mark Zaid, of Shapiro & Olander, Washington, DC, for plaintiff Bruce Smith.

Richard D. Emery, P.C., of Lankenau, Kovner & Kurtz, New York City, for the plaintiff Paul S. Hudson.

John R. Bartels, Jr., of Bartels & Feureisen, White Plains, NY, for defendants Socialist People's Libyan Arab Jamahiriya et al.

MEMORANDUM & ORDER

PLATT, District Judge.

Plaintiffs Bruce Smith and Paul Hudson, as personal representatives of victims who died in the bombing of Pan American Airways, Inc. (Pan Am) Flight 103 over Lockerbie, Scotland, on December 21, 1988, seek to recover civil damages.¹ Smith sues the Socialist People's Libyan Arab Jamahiriya, the Libyan Arab Airlines, The Libyan External Security Organization, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah as agents and instrumentalities of Libya. Hudson sues the Socialist People's Libyan Arab Jamahiriya (heretofore defendants for both cases are referred to as "Libya").² For the purposes of this motion, the claims of Mr. Smith and Mr. Hudson will be considered in tandem. Pursuant to Federal Rule Civil Procedure 12(b), Libya moves this Court to dismiss plaintiffs' claims. Defendants' motion to dismiss both actions is granted as the Federal Sovereign Immunities Act precludes the plaintiffs from bringing this action in the United States courts against the State of Libya and its agents.

BACKGROUND

On December 31, 1988, Pan Am Flight 103 left Frankfurt, Germany bound for Detroit with stops in London and New York. At about 7:00 p.m., Flight 103 exploded over Lockerbie, Scotland killing all 270 persons aboard, including passengers Mrs. Smith and Mrs. Hudson.

Plaintiff Smith alleges that Pan Am Flight 103 was destroyed by a bomb and that "the actions of Libya in encouraging and sustaining these private acts of terrorism led to the deliberate and willful destruction of the plane." (Smith Complaint ¶ 11). Smith asserts tort claims for wrongful death, battery, infliction of emotional distress, loss of consortium and violation of international law. Plaintiff Hudson claims the alleged bomb "was placed on board the aircraft and detonated by and at the direction of Libya...." (Hudson Complaint ¶ 11). Hudson seeks to recover for the intentional torts of wrongful death and personal injury. (H.Complt. ¶¶ 15-20).

Mr. Smith and Mr. Hudson have sued previously to recover for the injuries alleged in this matter. In June, 1993, Smith filed a wrongful death action against Libya in Scotland. Hudson joined in the multidistrict tort action (MDL 799) against Pan Am before this Court in which the jury held Pan Am responsible for the destruction of the airplane.

DISCUSSION

Pursuant to FRCP Rule 12(b) the defendants move this Court to dismiss plaintiffs' claims for (i) lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA); (ii) lack of subject matter jurisdiction under principles of International Law; (iii) lack of personal jurisdiction on the grounds of Constitutional due process; (iv) pendency of prior parallel actions; and (v) as time barred.

Plaintiffs contend the FSIA sovereign immunity defense does not foreclose their claims because (i) the United States is party to certain international agreements within the United Nations system which authorize United States Courts to exercise subject matter jurisdiction over Libya; (ii) the injuries tortiously inflicted by Libya occurred in the United States for the purposes of applying the FSIA; and (iii) Libya impliedly waived sovereign immunity under FSIA when it provided a guaranty to pay certain compensation and/or when it violated the jus cogens norm.

As the FSIA controls whether a foreign sovereign is to be denied sovereign immunity, this Court only considers the issues raised here in the context of the FSIA. See, Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 690, 102 L.Ed.2d 818 (1989) (the FSIA is the "sole basis for obtaining jurisdiction over a foreign state in federal court").

Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, provides that "subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 and 1607 of this chapter." 28 U.S.C. § 1604 (1988). The excepted categories which preclude foreign nations from using the sovereign immunity defense are:

§ 1605 General exceptions to the jurisdictional immunity of a foreign state.

28 U.S.C. § 1605 (1988).

(a) A foreign state shall not be immune from the jurisdiction of the courts of the United States ... in any case —

(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect in accordance with the terms of the waiver.

(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States

(3) in which rights in property taken in violation of international law are in issue

...

(4) in which rights in property in the United States acquired by succession

...

(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death ... occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to —

(A) any claim based upon the exercise or performance ... of a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights ...

§ 1607. Counterclaims ...

1. Subject Matter Jurisdiction Based on the 28 U.S.C. § 1604 Existing Agreement Exception.

As noted, FSIA preserves jurisdiction over a foreign state to the extent such jurisdiction exists under any international agreement to which the United States was a party at the time the statute was enacted. 28 U.S.C. § 1604. This "existing agreement" exception "applies when international agreements `expressly conflict with the immunity provisions of the FSIA.'" Amerada Hess, 488 U.S. at 442, 109 S.Ct. at 692 (citing and quoting H.R.Rep. No. 94-1487, p. 17 (1976) (H.R.Rep.); S.Rep. No. 94-1310, p. 17 (1976) (S.Rep.), U.S.Code Cong. & Admin.News 1976, p. 6604).

a. Time Limit

Plaintiffs assert that the United Nations ("UN") Charter of 1945 (Charter), entered into by the United States prior to the passage of the FSIA in 1976, is an agreement which could preserve jurisdiction over a foreign nation pursuant to § 1604.³ Plaintiffs seek to expand the jurisdiction provided by § 1604 to include resolutions passed by the UN Security Counsel, pursuant to Article VII, regardless of the date of passage, on the theory that such resolutions are "elaborations" of the terms of the Charter and therefore should be accorded the same status as the Charter.⁴ U.N. CHARTER art. VII. Specifically, plaintiffs request that Security Council Resolutions 731 and 748, which call on Libya to accept responsibility for the bombing of Pan Am 103, be deemed international agreements which confer jurisdiction under § 1604. S.Res. 731, U.N. SCOR, 3033rd Mtg. (1992); S.Res. 748, U.N. SCOR, 3063rd Mtg. (1992).

Security Counsil Resolutions 731 and 748 do not confer jurisdiction upon this Court as they do not meet the criteria set forth in the "existing agreement" exception in § 1604. The plain language of § 1604 requires that the international agreement at issue be in existence in 1976 when the FSIA was passed. Security Council Resolutions 731 and 748 were passed in 1992. This Court does not adopt plaintiffs' broad view that because the Resolutions were passed pursuant to powers created by the UN Charter that they are an "elaboration" of the Charter so that this Court should treat them as being passed on the same date as the Charter.

b. Conflict with FSIA Immunity Provisions

Even if the plaintiffs convinced this Court that the Security Council Resolutions related back to the Charter so as to meet the time requirement, plaintiffs claims would fail as Article VII of the UN Charter and Resolutions 731 and 748 do not conflict expressly with the FSIA immunity provisions. See, Id. Article VII addresses the UN's police powers in the face of actual or threatened armed aggression and makes no mention of how victims of such armed aggression can seek civil relief. The Resolutions at issue condemn terrorism and seek to impose diplomatic and economic sanctions against Libya. As neither Article VII nor the Resolutions address the FSIA immunity provisions, there is no conflict between the provisions at issue which could provide the basis for jurisdiction.

c. Private Right of Action

If jurisdiction was granted on the basis of the U.N. Resolutions plaintiffs' claims would not survive because the "agreement" at...