97 F.Supp.2d 38 (D.D.C. 2000), C. A. 96-1118, Daliberti v. Republic of Iraq

Docket NºC. A. 96-1118
Citation97 F.Supp.2d 38
Party NameDaliberti v. Republic of Iraq
Case DateMay 23, 2000
CourtUnited States District Courts, District of Columbia

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97 F.Supp.2d 38 (D.D.C. 2000)

David DALIBERTI, et al., Plaintiffs,

v.

REPUBLIC OF IRAQ, Defendant.

Civil Action No. 96-1118 (PLF).

United States District Court, District of Columbia.

May 23, 2000

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[Copyrighted Material Omitted]

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Andrew C. Hall, Miami, FL, Nelson M. Jones, III, Nicholas & Jones, Houston, TX, James Cooper-Hill, Rockport, TX, for Plaintiffs.

Samuel Finley McNeil, III, McLean, VA, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiffs have brought suit seeking damages for claims arising out of various instances of alleged torture suffered at the hands of the defendant, the Republic of Iraq, a sovereign nation. Defendant has moved to dismiss for lack of personal and subject matter jurisdiction and for failure to state a claim under Rule 12(b)(1), (2) and (6) of the Federal Rules of Civil Procedure. Iraq asserts that the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq., gives it immunity from suit in the courts of this country and that none of the exceptions to the FSIA applies in this instance. It also argues that because Iraq has insufficient contacts with the United States, no U.S. court has personal jurisdiction over Iraq. Finally, defendant asserts that the case should be dismissed under the act of state doctrine.

The Court concludes that defendant's alleged actions fall within a category of conduct that Congress specifically intended to exempt from FSIA protection when it amended the FSIA to include an exception for state sponsored acts of terrorism. The Court also concludes that defendant's alleged conduct does not fall under any of the other exceptions to the FSIA, and that claims brought exclusively under those exceptions, including claims brought by the spouses of those asserting they were victims of terrorism, must be dismissed for lack of subject matter jurisdiction and for failure to state a claim. With regard to the surviving claims, the Court concludes both that it has personal jurisdiction and that plaintiffs have adequately stated claims upon which relief can be granted.

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The act of state doctrine does not bar this suit.

I. BACKGROUND

Plaintiffs' claims arise out of three separate but similar incidents in which the defendant arrested and detained the male plaintiffs, all of whom are United States citizens who were doing business in Kuwait. The four male plaintiffs seek damages for acts of kidnapping, false imprisonment and torture; the spouses of the four men seek damages for pain and suffering and loss of consortium.

Plaintiff Chad Hall was removing land mines within the borders of Kuwait in October 1992 when he allegedly was kidnapped at gunpoint and removed from Kuwait to Baghdad, Iraq. Compl. ¶ 15. Hall was held as a prisoner by the government of Iraq, although it is not clear from the pleadings for how long, and he claims that Iraq tortured him while he was a prisoner. See id. Hall's claims arise out of acts both within defendant's territorial jurisdiction (the imprisonment and torture), and outside its territorial jurisdiction (the kidnapping in Kuwait). Hall brought suit on these same claims prior to enactment of the state sponsored terrorism exception to the FSIA, and his claims initially were dismissed for lack of subject matter jurisdiction. See Hall v. Socialist People's Republic of Iraq, Civil Action No. 92-2842, Memorandum and Order (D.D.C. Dec. 9, 1994), aff'd without opinion, 80 F.3d 558 (D.C.Cir.1996).

Plaintiff Kenneth Beaty was traveling within the borders of Kuwait in April 1993 when he approached a border checkpoint between Kuwait and Iraq. Compl. ¶ 10. Beaty asked an Iraqi border guard for directions to an oil well on the Kuwaiti side of the border without entering Iraq. Id. Beaty was arrested by agents of Iraq and taken to Baghdad where he was allegedly held under inhumane circumstances and subjected to torture. Id. Beaty was tried in an Iraqi court on charges of "illegal entry" and espionage and found not guilty. Compl. ¶ 11. Beaty was told that he was free to leave the Republic of Iraq, but before he could actually leave he was informed that "notwithstanding the [acquittal], [ ] he was sentenced to eight years ... in prison." Compl. pp 11, 12. Beaty was held for a period of 205 days, at which point his release was secured with the assistance of former Senator David Boren who traveled to Iraq at the behest of the President of the United States for the express purpose of negotiating Beaty's release. Compl. pp 12, 14. In addition to the efforts of Senator Boren, Beaty's wife, Robin Beaty (also a plaintiff in this action), arranged for the delivery of "several million dollars" in humanitarian aid to Iraq. Compl. ¶ 14. Beaty's claims, like Hall's, arise out of acts committed both within Iraq (the imprisonment and torture) and in Kuwait or international "no-man's-land" (the "arrest" at the border checkpoint).

Plaintiffs David Daliberti and William Barloon were traveling within the borders of Kuwait in March 1995 when they approached a border checkpoint between that nation and Iraq. Compl. ¶ 4. An agent of the defendant examined the identification papers of the two plaintiffs which identified them as American citizens. Id. The agent then "raised the barricade blocking the path ... and gave permission to Plaintiffs ... to enter the territory of Defendant." Id. After entering defendant's territory, Daliberti and Barloon determined that they "had not arrived at their intended lawful destination." Compl. ¶ 5. They then returned to the border checkpoint and requested passage back into Kuwait. Id. They were arrested by the defendant's agents, threatened at gunpoint, and taken to prison, where they allegedly were tortured and held under inhumane conditions. Compl. pp 5, 6. Daliberti and Barloon were tried in an Iraqi court and found guilty of "illegal entry," without being afforded an opportunity to defend themselves. Compl. ¶ 7. They were held for 126 days before their release was secured by negotiations between

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the government of Iraq and Congressman Bill Richardson who had been dispatched by President Clinton to secure their release. Compl. ¶ 9. Daliberti and Barloon's complaints arise out of acts that occurred entirely within the borders of Iraq.

Plaintiffs Kathy Daliberti, Robin Beaty, Elizabeth Hall and Linda Barloon (the "spouse plaintiffs") seek recovery for claims of intentional infliction of emotional distress and loss of consortium as a result of the acts committed against their husbands. Compl. pp 17, 20, 21, 25. None of the spouse plaintiffs was in the territory of Iraq at any time relevant to these proceedings. The spouse plaintiffs therefore allege harm based on conduct committed only in Kuwait and Iraq, but affecting them in the United States.

Each of the male plaintiffs is seeking compensatory damages of $20 million, and each of the spouse plaintiffs is seeking compensatory damages of $5 million. Compl. at 13-14. Plaintiffs ask that any judgment in their favor be enforced through the seizure of Iraqi assets in this country. Compl.¶ 32.

Plaintiffs filed their complaint in May 1996. As part of the process to secure jurisdiction under the FSIA, they afforded the defendant an opportunity to arbitrate these claims pursuant to international rules of arbitration. Compl. ¶ 1; see also 28 U.S.C. § 1605(a)(7)(B)(i) (claim will be dismissed unless there is an offer to arbitrate). Summonses were served on the defendant via the United States Interests Section of the Polish Embassy in Baghdad. See Notice of Service of Summons & Complaint, Sept. 12, 1996. On October 25, 1996, plaintiffs moved for, and subsequently were granted, an entry of default against the defendant for its failure to file a response. See Default, Nov. 27, 1996. Plaintiffs were directed by the Court to file a motion for default judgment accompanied by factual evidence of their claims, see 28 U.S.C. § 1608(e); Order of Jan. 13, 1997, which plaintiffs did on January 29, 1997. On February 23, 1998, the parties jointly filed a stipulation asking that the default entered by the Clerk be vacated. The Court approved the stipulation, set aside the entry of default and denied plaintiffs' motion for default judgment as moot. See Order of Mar. 6, 1998; Order of Mar. 9, 1998.

II. THE FOREIGN SOVEREIGN IMMUNITIES ACT

The Foreign Sovereign Immunities Act is "the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Federal district courts have exclusive jurisdiction over civil actions against a foreign state, regardless of the amount in controversy, provided that the foreign state is not entitled to immunity under the FSIA. See 28 U.S.C. §§ 1330, 1604; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. at 434-35, 109 S.Ct. 683. Under the FSIA, a foreign state is presumed to be immune from suit, 28 U.S.C. § 1604, and is in fact immune unless one or more of the exceptions to immunity enumerated in the FSIA apply. See 28 U.S.C. §§ 1605-1607; Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). Once a defendant presents a prima facie case that it is a foreign sovereign, plaintiffs bear the burden of producing evidence to show that there is no immunity and that the court therefore has jurisdiction over the claims. See Drexel Burnham Lambert Group Inc. v. Committee of Receivers for Galadari, 12 F.3d 317, 325 (2d Cir.1993), cert. denied, 511 U.S. 1069, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994); Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2nd Cir.1993).

A court may dismiss a complaint brought under the FSIA only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claims that

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would entitle them to relief. See Neitzke v. Williams, 490 U.S. 319, 326-27, 109...

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