Fisher v. Great Socialist People's Libyan Arab

• Decision Date: 27 March 2008
• Docket Number: Civil Action No. 04-02055 (HHK).,Cr. No. 05-02454(HHK).
• Citation: 541 F.Supp.2d 46
• Parties: Curtis W. FISHER, et al., Plaintiffs, v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al, Defendants. Lawrence P. Fisher II, et al., Plaintiffs, v. Great Socialist People's Libyan Arab Jamahiriya, et al, Defendants.
• Court: U.S. District Court — District of Columbia

541 F.Supp.2d 46

Curtis W. FISHER, et al., Plaintiffs, v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al, Defendants.

Lawrence P. Fisher II, et al., Plaintiffs, v. Great Socialist People's Libyan Arab Jamahiriya, et al, Defendants.

Civil Action No. 04-02055 (HHK).

Cr. No. 05-02454(HHK).

United States District Court, District of Columbia.

March 27, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul Marc Tendler, Law Offices of Paul M. Tendler, Washington, DC, for Plaintiffs.

Dante Mattioni, Francis X. Kelly, Dante Mattioni, Mattioni, Ltd., Philadelphia, PA, Arman Dabiri, Law Offices of Arman Dabiri & Associates, P.L.L.C., Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

HENRY H. KENNEDY, JR., District Judge.

On December 21, 1988, Pan Am Flight 103 exploded 31,000 feet in the air over Lockerbie, Scotland, killing all 259 passengers on board and eleven people on the ground. Among those killed was Charles T. Fisher IV, a United States Citizen. Four of his siblings, Curtis W. Fisher, Mary Fisher Hickey, Margaret Fisher Jones, and Lawrence P. Fisher II (collectively "Fishers"), bring this action,¹ against the Great Socialist People's Libyan Arab Jamahiriya and the Libyan External Security Organization (collectively "Libya"), and Abdel Basset Ali Al-Megrahi ("Al-Megrahi"). The Fishers seek to hold defendants liable pursuant to the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7), the so-called Flatow Amendment, 28 U.S.C. § 1605 note, and the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note. The Fishers also assert a cause of action for intentional infliction of emotional distress. Before the court are motions to dismiss by Libya [#33 in 04cv02055 and #17 in 05cv02454] and Al-Megrahi [#14 in 04cv02055].

I. BACKGROUND

Following the December 1988 explosion of Pan Am Flight 103 over Lockerbie, Scotland, the United States and the United Kingdom indicted Al-Megrahi, a high-ranking member of the Libyan External Security Organization, on charges that he planned and executed the bombing. By agreement between the United States, the United Kingdom, and Libya, Al-Megrahi was tried under Scottish criminal law by a panel of three Scottish judges constituting the High Court of Justiciary at Camp Zeist in The Netherlands.

On January 31, 2001, the Scottish panel unanimously convicted Al-Megrahi of the murders of all 270 victims for his role in the bombing. Al-Megrahi's conviction was unanimously affirmed by the Appeal Court of the High Court of Justiciary on March 14, 2002.

On August 15, 2003, the Chargé d'Affaires of the Permanent Mission of Libya to the United Nations issued a statement to the U.N. Security Council that Libya "[h]as facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials." United Nations Doc. S/2003/818.

The Fishers bring this action seeking compensatory and punitive damages from Libya and Al-Megrahi for their conduct resulting in the death of Charles T. Fisher.

II. ANALYSIS

A. Libya's Motion To Dismiss

1. The Foreign Sovereign Immunities Act and Flatow Amendment

The Fishers assert causes of action against Libya based on the FSIA and the Flatow Amendment. As Libya correctly asserts, neither provision creates a cause of action against a foreign state.² The FSIA, however, does provide a jurisdictional basis for the Fishers to pursue a cause of action against Libya under some other source of law.

Although the FSIA generally provides foreign states with immunity from suit in U.S. courts, it enumerates several exceptions under which a foreign state may be sued. 28 U.S.C. §§ 1605, 1607. The so-called "state-sponsored terrorism exception," added in 1996, abrogates a foreign state's immunity for personal injuries caused by terrorist acts committed by the state's officials or agents. 28 U.S.C. § 1605(a)(7).³

Five months after creating the state-sponsored terrorism exception, Congress enacted the Flatow Amendment, 28 U.S.C. § 1605 note. The Flatow Amendment provides U.S. nationals with a private cause of action for damages against individual officials, employees, and agents of designated foreign states acting in their personal capacities. 28 U.S.C. § 1605 note.⁴

Neither the FSIA nor the Flatow Amendment, "nor the two considered in tandem," however, create a cause of action against a foreign state. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C.Cir.2004). The FSIA's state-sponsored terrorism exception is purely jurisdictional in that it "merely waives the immunity of a foreign state without creating a cause of action against it." Id. And "the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the foreign state itself." Id.

The Fishers assert that, pursuant to the Flatow Amendment, Libya should be held liable under the doctrine of respondeat superior for the acts of its agents. This position is unsustainable. What the Fishers suggest is essentially an end-run around the Flatow Amendment's plain language, which is confined to suits against individuals. If Congress had intended to create respondeat superior liability for foreign states under the Flatow Amendment, Congress would have said so. See Cicippio-Puleo, 353 F.3d at 1035-36 (rejecting conclusion in Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 231 (D.D.C. 2002) that a foreign state could be sued under the Flatow Amendment and FSIA on the theory of respondeat superior).

Thus, the Fishers have no cause of action against Libya under the Flatow amendment or the FSIA. However, the FSIA's state-sponsored terrorism exception does provide subject matter jurisdiction for the Fishers to pursue a cause of action against Libya under some other source of law in federal court. Cicippio-Puleo, 353 F.3d at 1027. This exception to immunity only applies if (1) a foreign state defendant has been specifically designated by the U.S. State Department as a "state sponsor of terrorism" at the time the incident occurred; (2) the foreign state is afforded a reasonable opportunity to arbitrate any claim based on acts that occurred in that state; and (3) either the victim or the claimant was a U.S. national at the time those acts took place. Id. § 1605(a)(7)(A-B). Here, the Fishers meet the requirements of § 1605(a)(7). Libya was designated as a sponsor of terrorism at the time of the incident.⁵ See 31 C.F.R. § 596.201; Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C.Cir.2002). All of the victims were U.S. citizens; and Libya does not contend that it has been denied a chance to arbitrate its claims.

As plaintiffs have properly asserted subject matter jurisdiction pursuant to the state-sponsored terrorism exception to the FSIA, the court must proceed to determine whether they have asserted causes of action under other sources of law that may be properly brought against a foreign state.

2. Other Causes of Action against Libya

A suit against a state sponsor of terrorism pursuant to the FSIA "must identify a particular cause of action arising out of a specific source of law," Acree v. Republic of Iraq, 370 F.3d 41, 59 (D.C.Cir. 2004), which may "includ[e] state law," Cicippio-Puleo, 353 F.3d at 1036. As the D.C. Circuit has explained, "generic common law cannot be the source of a federal cause of action. The shared common law of the states may afford useful guidance as to the rules of decision in a FSIA case where a cause of action arises from some specific and concrete source of law." Acree, 370 F.3d at 59.

Here, the Fishers assert a claim against Libya for intentional infliction of emotional distress. Libya contends that the Fishers have failed to plead this claim with the requisite particularity required by Cicippio-Puleo and Acree because they have failed to "identify[] a particular state as the basis for their causes of action." Libya's Mot. to Dismiss at 13. Libya's argument is without merit.

Libya misconstrues this Circuit's pleading requirements under the FSIA; plaintiffs need not set forth their choice of law contentions in their complaint. Dammarell v. Islamic Republic of Iran, 370 F.Supp.2d 218, 221 (D.D.C.2005) (noting that the court is "unaware of any law, either in the FSIA setting or out, that would require" plaintiffs to "include the choice of law determination in the Complaint itself). The Fishers are required to identify "whether these claims are based in state law (or some other source of law), or whether they arise out of the common law or a particular statute," but they need not specify in the complaint a particular state out of which each claim arises. Dammarell, 370 F.Supp.2d at 221 (internal quotation marks omitted). In order to survive a motion to dismiss, a plaintiff must give a defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 223 (citing Modderno v. King, 82 F.3d 1059, 1063 (D.C.Cir.1996)). A plaintiff need not specify every theory under which she might proceed, however. See Hanson v. Hoffmann, 628 F.2d 42, 53 (D.C.Cir.1980) ("The liberal concepts of notice pleading embodied in the Federal Rules do not require the pleading of legal theories."). Choice of law is a legal determination that the court will make under its choice of law rules. See Jannenga v. Nationwide Life Ins. Co., 288 F.2d 169, 171 (D.C.Cir.1961) (observing that "federal courts will take judicial notice of the law of the several states ... whether pleaded or not") (internal quotation marks omitted); see also Shah v. Inter-Continental Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir.2002) (holding that plaintiffs are not required to identify the federal or state law in a complaint, which may be discovered by interrogatories or through briefing); 5 Wright & Miller, Federal Practice and...