Abur v. Republic of Sudan

• Decision Date: 10 July 2006
• Docket Number: Civil Action No. 02-1188 (JDB).
• Parties: Joyce Auma Ombese ABUR, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

437 F.Supp.2d 166

Joyce Auma Ombese ABUR, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.

Civil Action No. 02-1188 (JDB).

United States District Court, District of Columbia.

July 10, 2006.

COPYRIGHT MATERIAL OMITTED

James Roger Franks Jr., William R. Wheeler, Jr., Wheeler & Franks, Tupelo, MS, Steven R. Perles, Perles Law Firm, P.C., Washington, DC, for Plaintiffs.

John Arthur Eaves, Jr., Eaves Law Firm, Jackson, MS, for Plaintiffs/Defendants.

MEMORANDUM OPINION

BATES, District Judge.

Through this civil action, plaintiffs seek to hold two foreign countries financially responsible for the 1998 terrorist bombings of the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, which resulted in the deaths of at least 224 individuals and caused physical injury to more than 4,000 others. Neither of the sovereign defendants — the Republic of Sudan and the Islamic Republic of Iran — have appeared before the Court to defend against the claims made by these 114 plaintiffs, who have demanded more than one billion dollars in damages based on provisions of the Foreign Sovereign Immunities Act ("FSIA") that revoke jurisdictional protection for foreign governments in certain circumstances. The allegations of the complaint are essentially identical to those made in two other cases on the Court's docket: Owens v. Republic of Sudan, No. 01-CV-2244 (D.D.C.), and Khaliq v. Republic of Sudan, No. 04-CV-1536 (D.D.C.).¹ Simply put, plaintiffs in all three cases contend that the governments of Sudan and. Iran provided material support to al Qaeda and Hizbollah² — the organizations believed to be responsible for the bombings — and thereby assumed liability for the harms caused by the terrorist attacks and also forfeited any right to immunity from suit in United States courts.³ The claims asserted in this action, however, differ from the claims in Owens and Khaliq in one significant respect: the nationalities of the plaintiffs. Whereas the Owens and Khaliq plaintiffs are United States citizens, nearly all the plaintiffs here are citizens of Kenya.⁴ That fact, as this opinion will explain, has ramifications for the viability of many of plaintiffs' claims.

Now pending before the Court is plaintiffs' unopposed motion for entry of default, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Although the entry of default (as opposed to the issuance of a default judgment) normally is a ministerial task for the Clerk of the Court, see Fed.R.Civ.P. 55(a), plaintiffs chose to seek entry of default by motion, apparently because of the complexities associated with service of process in civil actions against foreign sovereigns and the fact that proper service is a prerequisite for the Court to obtain personal jurisdiction over a foreign state, see 28 U.S.C. § 1330(b). By filing the motion, plaintiffs essentially have requested a judicial determination regarding the sufficiency of service. In response to that motion, the Court, on its own initiative, instructed plaintiffs to provide a memorandum that addressed the factual and legal bases for this Court's exercise of jurisdiction over each of the claims and defendants. Plaintiffs have complied with that instruction, and the Court therefore will consider at this time both the adequacy of service and whether there exists any basis for subject-matter jurisdiction.

For the reasons that follow, the Court finds that plaintiffs properly have served defendants Sudan and Iran, in accordance with 28 U.S.C. § 1608(a)(3), and it will direct the Clerk of the Court to enter their defaults. Consistent with the holding in Owens, the Court also finds that jurisdiction is proper over the claims brought by the two U.S.-citizen plaintiffs against Sudan and Iran. But the Court is compelled to conclude that it lacks subject-matter jurisdiction over the claims against Sudan and Iran brought by the 112 alien plaintiffs, and it will dismiss those claims pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure.⁵ In the interest of conserving judicial resources, the Court further concludes that the accompanying order may be appealed immediately, and the Court therefore will stay these proceedings pending resolution of any appeals of jurisdictional rulings in this action. See 28 U.S.C. § 1292(b) (providing that an order other than a final judgment may be certified for appeal if the district court determines that it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation").⁶

BACKGROUND

On August 7, 1998, terrorists detonated massive vehicle bombs outside two U.S. diplomatic outposts in East Africa within a span of just a few minutes. At approximately 10:30 a.m., a truck that contained a large bomb exploded in the rear parking area of the U.S. Embassy in Nairobi, Kenya. The explosion killed 213 people, including forty-four Embassy employees (twelve of whom were American citizens), and injured an estimated 4,000 people — mostly Kenyan civilians — who were either at the Embassy or in the vicinity. Minutes later, at approximately 10:39 a.m., a suicide bomber drove a truck laden with explosives up to a vehicular gate at the U.S. Embassy in Dar es Salaam, Tanzania, and ignited a blast that killed eleven people and injured another eighty-five. See generally Department of State, Report of the Accountability Review Boards on the Embassy Bombings in Nairobi and Dar es Salaam on August 7, 1998, at http://www.state.gov/www/regions/africa/accountability — report.html.

Plaintiffs are victims and relatives of victims of these horrific bombings. Of the 114 plaintiffs,⁷ only two — Gerald Bochart and Trusha Patel — are United States citizens. See Fourth Am. Compl. ¶¶ 4, 92.⁸ Both were injured in the Nairobi bombing. Another forty-three of the plaintiffs are Kenyan citizens who were injured in the Nairobi bombing. See id. at 2, 5, 8, 10, 12, 14, 18, 20, 23, 27, 29, 31, 33, 26, 38-39, 41-42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66-67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 95. One plaintiff is a Kenyan citizen who was injured in the Dar es Salaam bombing. See id. at 116. The remaining sixty-eight plaintiffs are Kenyan citizens who, although they were not physically injured in the bombings, are either married to one of the forty-six injured plaintiffs,⁹ or were married in 1998 to someone who was killed in' the Nairobi bombing.

The complaint contends that the sovereign defendants — each of which is (and was in 1998) designated by the State Department as a sponsor of terrorism — furnished material support to al Qaeda and Hizbollah for the embassy bombings. See Fourth Am. Compl. ¶¶ 124, 127. As to Sudan in particular, the complaint alleges that agents of that government furnished Osama bin Laden, the putative leader of al Qaeda, and his associates with shelter, security, financial and logistical support, and business opportunities. See id. at ¶¶ 141(a)-(bb). With respect to Iran, the complaint alleges that agents of the Iranian government gave technical assistance and explosives training to al Qaeda. See id. at ¶¶ 141(cc)-(ii). All of those actions, plaintiffs contend, led directly to the 1998 embassy bombings in Nairobi and Dar es Salaam and, therefore, not only are sufficient to divest Sudan and Iran of sovereign immunity under the FSIA, but also support plaintiffs' claims for wrongful death, assault and battery, intentional infliction of emotional distress, and loss of consortium under the laws of the plaintiffs' respective home states or countries.¹⁰

ANALYSIS

As a court of limited jurisdiction, a federal district court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). That means that this Court cannot overlook a potential defect in its jurisdiction simply because the parties fail to call it to the Court's attention. Nor may the Court "presume the existence of jurisdiction in order to dispose of a case on other grounds." Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C.Cir.1981). In all cases, this independent obligation means the Court must satisfy itself that it possesses jurisdiction to rule on the merits of the claim. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Furthermore, in cases where a defendant has not appeared, the Court is obliged to consider whether it properly has jurisdiction over that person or entity. See Mwani, 417 F.3d at 6 ("[A] court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.").

Jurisdiction over any civil action against a foreign state is governed by the FSIA. See 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) ("[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country[.]"). The "interlocking provisions" of that statute, Mar. Int'l Nominees Estab't v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.Cir.1982), compress subject-matter jurisdiction and personal jurisdiction into a single, two-pronged inquiry: (1) whether service of the foreign state was accomplished properly, and (2) whether one of the statutory exceptions to sovereign immunity applies. See 28 U.S.C. §§ 1330(a)-(b); see also Mar. Int'l Nominees Estab't, 693 F.2d at 1099 ("[T]he absence of immunity is a condition to the presence of subject matter jurisdiction .... [And] a lack of subject matter jurisdiction also deprives the court of personal jurisdiction[.]"); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C.Cir.2002) ...