Harrison v. Sudan

Decision Date30 March 2012
Citation882 F.Supp.2d 23
PartiesRick HARRISON, et al., Plaintiffs, v. REPUBLIC OF SUDAN, Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Nelson M. Jones, III, Houston, TX, Adam Stuart Hall, Matthew Paul Leto, Roarke Owen Maxwell, Hall, Lamb and Hall, P.A., Miami, FL, for Plaintiffs.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

This case arises out of the bombing of the U.S.S. Cole (“the Cole”) on October 12, 2000. The attack ripped a thirty-two-by-thirty-six-foot hole in the side of the vessel when it was berthed in Yemen's Aden Harbor. Seventeen servicemen and women were killed, and forty-two suffered injuries. The eighteen plaintiffs before this Court are fifteen former sailors who were injured while on the Cole and three of their spouses, who, although not on the Cole during the attack, allegedly suffered emotional distress upon learning of the incident.1 Plaintiffs bring this action under the “state-sponsored terrorism” exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1330, 1602 et seq.2 Plaintiffs allege that defendant Republic of Sudan (Sudan) is liable for their injuries by virtue of its support of Al Qaeda, which perpetrated the Cole bombing. Before the Court is [Dkt. # 14] plaintiffs' motion for a default judgment against Sudan. After making pertinent findings of fact, the Court concludes that plaintiffs have provided sufficient evidence to establish a cause of action against Sudan under FSIA's state-sponsored terrorism exception, that Sudan is liable to the plaintiffs for the alleged harms, and that plaintiffs are entitled to both compensatory and punitive damages. In accordance with these findings and conclusions, the Court awards damages to plaintiffs.

I. BACKGROUND
A. Prior and Current USS Cole Litigation.

Two cases involving the Cole attack relate to the case at bar and speak to the question of Sudan's liability for the Cole attack. In Rux v. Republic of Sudan fifty-seven survivors of the seventeen sailors who died in the Cole attack sued Sudan for damages. Rux v. Republic of Sudan, 2005 WL 2086202 (Aug. 26, 2005). After defaulting, Sudan moved to dismiss plaintiffs' claims on jurisdictional and immunity grounds. The district court denied Sudan's motion, concluding that plaintiffs had alleged sufficient jurisdictional facts to bring their case within the FSIA state-sponsored terrorism exception. Id. Sudan appealed. The United States Court of Appeals for the Fourth Circuit affirmed the district court, finding that plaintiffs' allegations met FSIA's jurisdictional pleading requirements “by describing how Sudan provided Al–Qaeda a base of operations to plan and prepare for the bombing, and provided operational support for the attack.” Rux v. Republic of Sudan, 461 F.3d 461, 473–74 (4th Cir.2006). The district court then proceeded to the merits of plaintiffs' claims and concluded that, even though Sudan was liable for plaintiff's injuries, plaintiffs were only entitled to damages under the Death on the High Seas Act (DOHSA), 46 U.S.C. § 30302. The Court held that [w]hile the FSIA vests jurisdiction in federal courts to hear cases against foreign states, it does not afford plaintiffs with a substantive cause of action.” 495 F.Supp.2d 541, 555 (E.D.Va.2007). Accordingly, the district court dismissed plaintiffs' maritime and state law claims and awarded eligible plaintiffs $ 7,956,344 under DOHSA. Id. at 567–69. Plaintiffs appealed the district court's judgment. While this appeal was pending, Congress passed the 2008 NDAA amendment to the FSIA which, in addition to creating a federal private right of action, added punitive damages and solatium as recoverable damages in a new section of the FSIA, § 1605A. See28 U.S.C. § 1605A(c). Under this provision, the same fifty-seven Rux plaintiffs filed a second lawsuit in August 2010, joining with two new plaintiffs to the case. Kumar v. Republic of Sudan, 2011 WL 4369122 (E.D.Va. Sept. 19, 2011). The same district court that heard Rux considered and rejected the claims of the plaintiffs to whom it had awarded judgments in the previous litigation, reasoning that both res judicata and the prohibition on legislative reopening of final judgments barred them. Id. at *10–11 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 241, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995)). The court therefore awarded damages only to the new plaintiffs who had not been party to the previous Rux litigation. Id. at *11.3Plaintiffs in the case at bar were not plaintiffs in Rux or Kumar.

The Court underscores an important matter before proceeding: because plaintiffs in this case bring their action under the new § 1605A, they are entitled to types of damages—i.e. for pain and suffering and solatium—and punitive damages that the Rux plaintiffs, who initiated their action before § 1605A was enacted, did not obtain. As the Court will explain below, these new damages can amount to substantially larger sums than the Rux court awarded those plaintiffs. The Court regrets this disparity and emphasizes that the difference primarily reflects a change in the governing statute rather than this Court's assessment of the relative hardship endured by the Rux plaintiffs and the plaintiffs currently before the Court.

B. Plaintiffs' Claims Before This Court

Plaintiffs effected service of the complaint, summons, and notice of suit on Sudan by mail. See28 U.S.C. § 1608(a)(3). Sudan accepted service on November 17, 2010. Return of Service/Affidavit, Nov. 23, 2010 [Dkt. # 11]. Under § 1608(d) of the FSIA, this service obligated Sudan to serve and answer or other responsive pleading within 60 days after service. 28 U.S.C. § 1608(d). It failed to do so. On January 19, 2011 plaintiffs obtained entry of default from this court. Clerk's Entry of Default, Jan. 19, 2011 [Dkt. # 13]. Plaintiffs now move for a default judgment [Dkt. # 14]. To date, Sudan has not served an answer or any other responsive pleading.

II. LEGAL STANDARDS
A. Default Judgment

The FSIA states that a court shall not enter a default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003). This standard mirrors that applied to entry of default judgment against the United States in Federal Rule of Civil Procedure 55(d).4See Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). Fed. R. Civ. Proc. 55(d).

In considering motions for default judgment, a court may accept as true the plaintiffs' “uncontroverted evidence,” Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 155 (D.D.C.2009) including proof by affidavit. See Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 83–85 (D.D.C.2010). On September 21, 2011 an evidentiary hearing was held before the Honorable Henry H. Kennedy, Jr.5 During that hearing, the Court accepted evidence in form of depositions, affidavits, expert testimony, and original documentary evidence. Reviewing these submissions, this Court will determine whether or not the evidence is sufficiently “satisfactory” to prove Sudan's liability and the damages that plaintiffs seek. 28 U.S.C. § 1608(e).6

B. Jurisdiction and Immunity

To state a viable claim, plaintiffs must first demonstrate that this Court has jurisdiction to hear the claims they assert and that Sudan is not entitled to immunity from suit. The FSIA is the “sole basis of jurisdiction over foreign states in our courts.” In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 39 (D.D.C.2009). While foreign sovereigns enjoy general immunity from suit in U.S. courts, FSIA § 1605A establishes a waiver provision that is conditioned on a number of factors. Specifically, a foreign state is not immune from suits in which the following factors are met: (1) money damages are sought (2) against that state for (3) personal injury or death that (4) was “caused by” (5) an act of torture, extrajudicial killing ... or the provision of material support of resources for such an act if such act or provision of material support or resources is engaged in by an official, employee or agent of such foreign state while acting within the scope of his or her office, employment or agency.” 28 U.S.C. § 1605A(a)(1); accord Owens v. Republic of Sudan, 826 F.Supp.2d 128, 148–49 (D.D.C.2011).7 Because plaintiffs in this case do not allege torture or extrajudicial killing, only the “material support” provision is relevant to the case at bar. With regard to § 1605A's causation requirement, in this Circuit there must be “some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered.” Valore, 700 F.Supp.2d 52, 66 (internal quotations omitted).

Furthermore, the FSIA provides that courts “shall hear a claim” under § 1605A of the FSIA if (1) the foreign state was designated as a state sponsor of terrorism at the time the act occurred; (2) the claimant was a United States national, a member of the armed forces, or otherwise an employee or contractor of the Government of the United States, acting within the scope of her employment and (3) the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim, provided that the act occurred in the foreign state against which the claim is brought. 28 U.S.C. § 1605A(a)(2). Combined, these § 1605A(a)(1) and (a)(2) factors determine the Court's jurisdiction over the present case and whether Sudan has effectively waived its immunity from suit. To resolve these threshold questions, the Court first makes relevant findings of fact, as discussed below.

C. Cause of Action and Theory of Liability

After establishing jurisdiction, plaintiffs must also advance a theory of recovery that is supported by the evidence presented to the court. When a state is subject to suit under an exception to immunity, “the foreign state...

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