Mwani v. Qaeda
| Citation | 600 F.Supp.3d 36 |
| Decision Date | 20 April 2022 |
| Docket Number | Case No. 99-cv-125 (GMH) |
| Parties | Odillia Mutaka MWANI, et al., Plaintiffs, v. AL QAEDA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Philip M. Musolino, Musolino & Dessel, PLLC, Washington, DC, for Plaintiffs Odillia Mutaka Mwani, Joseph Mwangi Nganga, Sarah Kuya Etenyi, John Kichuma Imbahale, Hellen A. Ojwang, Hudson Ngusale Anyangu, Rosemary Njeri, Joyce Njoki Miringu, Jane Nyambura Miringu, Gatome & Associates, Rachel Wanjeri Kingara, James Kimiri Kamau, Muita & Company, Ltd., Evans Mukunga Muita, Lilian Nkatha Guantai, Stephen Muita Kibiku, Francis Ndungu Njenga, Margreat Wambui Miringu, Margaret Musoke Wagabi, Lucy Kimiti, Lucy Wangari Gachagwi, Anne N. Kingara, Lucy Waithera Mwangi, Damau Mbuvu Marangia, Bernard Gituto Maiwa, Daniel Kimawi Muita, Pitalis Juma Osano, Charles Maina Banga, Edward Waihenya Nuthu, Castro Otiende, Philip Muriitwi Mwai, Hedwig Yohanine Kibukosya, Prisca Kibukosya, Fidelis Masyula Ndambuki, Eros Chemist, Ltd., Dipak L. Shah, Mukul J. Patel, Sunil Shah, Catherine N. Abuko, Mariam M. Adan, Adequate Advertising Limited, Millicent Adhiambo, Freddah A. Afande, Kalwala Aggrey, Thomas S. Akama, Margaret C. Akello, Hudson N. Anyango, Lucy A. Akingo.
Nicholas Gilman, Gilman & Associates, Washington, DC, Lisa J. Dessel, Philip M. Musolino, Musolino & Dessel, PLLC, Washington, DC, Danielle M. Espinet, Rolinski & Suarez, L.L.P., Gaithersburg, MD, for Plaintiff All Plaintiffs.
G. Michael Harvey, United States Magistrate Judge This long-lingering case, which concerns the 1998 bombing of the United States Embassy in Nairobi, Kenya, is about to come to a close (at least in this Court) more than 20 years after it was filed in 1999. The current Plaintiffs—more than 500 in all—were citizens of Kenya or businesses located in Nairobi at the time of the bombing. They claim that Al Qaeda, which is the sole remaining Defendant and has defaulted, is liable under the Alien Tort Statute (also known as the Alien Tort Claims Act), 28 U.S.C. § 1350, for the injuries they sustained in the attack. After a bellwether evidentiary hearing on the claims of 8 Plaintiffs, in 2014 the judge previously assigned to this case resolved the claims of 443 Plaintiffs but, for reasons that are not entirely clear, did not enter an enforceable judgment as to any of them. Although the undersigned became the presiding judge in 2017, the case was largely dormant from 2014 until 2021, when Plaintiffs began to reengage in this litigation. In the past year, Plaintiffs have filed 8 motions, including the 4 currently before the Court: a motion to amend the operative complaint to add 4 new Plaintiffs and enter judgment as to the new Plaintiffs and an existing Plaintiff, all of whom assert claims for wrongful death (ECF No. 151); and 3 motions for entry of judgment as to a number of existing Plaintiffs (ECF Nos. 150, 154, and 157).1 These should be the last substantive motions prior to closing the case. For the reasons that follow, Plaintiffs’ motion to amend is denied and Plaintiffs’ motions for entry of judgment are granted.
The Court's prior opinion detailed the history of this case from its inception until the end of 2021 and will not be repeated in full here. See Mwani v. Al Qaeda , No. 99-cv-125, 2021 WL 5800737 (D.D.C. Dec. 7, 2021) [hereinafter, Mwani III ]. Instead, this decision focuses on events beginning in 2011 with the bellwether evidentiary hearing, although some earlier history is noted to provide context.
In 2006, Judge Kollar-Kotelly, who was the original presiding judge in this case, granted Plaintiffs’ motion for entry of default against Al Qaeda and Osama bin Laden, all other Defendants having been dismissed.2 Mwani v. Bin Ladin , No. 99-cv-125, 2006 WL 3422208, at *5 (D.D.C. Sept. 28, 2006). Plaintiffs later sought default judgments against those two Defendants, proposing a bellwether hearing to determine damages for a small number of representative Plaintiffs, which would then be applied to the remaining Plaintiffs. ECF No. 89 at 7–8; see also ECF No. 94 at 5–9. At the suggestion of Judge Kollar-Kotelly, Plaintiffs consented to the jurisdiction of a magistrate judge for all purposes in order to facilitate a more expeditious evidentiary hearing and resolution of the case.
The case was assigned to Judge Facciola in 2010, and at the beginning of 2011, he held a bellwether evidentiary hearing as to 8 of the 540 Plaintiffs. See generally Mwani v. Al Qaeda , No. 99-cv-125, 2014 WL 4749182 (D.D.C. Sept. 25, 2014) [hereinafter, Mwani I ].3 Of those Plaintiffs, 2 sought damages for their own wrongful deaths and 6 sought damages for various physical and psychological injuries as a result of assault and battery. Id. at *9–10. Judge Facciola heard fact testimony from the 6 living bellwether Plaintiffs—Castro Otiende, Protus Buluma, Wilfred Nderitu, Charles Mogi, Kioko Muema, and Dipak L. Shah (ECF No. 103 at 2; ECF No. 118 at 107; ECF No. 119 at 3)—as well as from Jane Kawira Naivasha, the widow of Plaintiff Abel Mutegi Nijru (ECF No. 119 at 4–5), and Noah Thuo Kimani, the widower of Plaintiff Felistas Thuo (ECF No. 118 at 45–46).4 He heard expert testimony from Joan Mwendi Kiema-Ngunnzi, who testified that "survivors of the bombing suffered post-traumatic stress disorder
[‘PTSD’]" and "social stigma" that attached even to those in the vicinity of the bomb blast who did not suffer physical injuries. ECF No. 103 at 92–96; see also
Mwani I , 2014 WL 4749182, at *7.
Before Judge Facciola issued his findings of fact and conclusions of law, he ruled that federal common law would govern the claims in this case, relying on the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. ECF No. 113 at 1 (quoting Kiobel , 569 U.S. 108, 114–15, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) ). Later, he dismissed bin Laden (who had been killed in May 2011) and allowed the claims against Al Qaeda to proceed. See Mwani v. Al Qaeda , 302 F.R.D. 22, 24–25 (D.D.C. 2014). Judge Facciola issued findings of fact and conclusions of law in connection with the bellwether evidentiary hearing in September 2014. See generally Mwani I , 2014 WL 4749182. He dismissed the claims brought by Nijru and Thuo on two independent bases: because (1) "as deceased individuals, [they] lack[ed] the capacity to sue"; and (2) "the federal common law does not recognize a wrongful death cause of action." Id. at *2, 9. He further found that Al Qaeda was liable for battery against five of the remaining Plaintiffs—Otiende, Buluma, Nderitu, Mogi, and Muema—and for assault against one—Shah. Id. at *10.
As to damages, Judge Facciola found that the bellwether Plaintiffs had "failed to reasonably prove the extent of their past economic losses or prove by a preponderance of the evidence the extent of their future economic losses," and so denied any award of economic damages. Id. at *11 (internal quotation marks omitted). For pain and suffering, the Court imposed a baseline award of $5 million and departed upward for more serious injuries, so that Plaintiff Shah was awarded the baseline $5 million for PTSD resulting from the attack; Plaintiffs Otiende, Nderitu, and Mogi, who suffered from both PTSD and permanent scarring, were awarded $6 million each; and Plaintiffs Buluma and Muema, who had both PTSD and vision problems, were awarded $7.5 million each. Id. at *12. Judge Facciola also awarded $150 million per Plaintiff in punitive damages and pre-judgment interest on the pain and suffering damages calculated from the date of the bombing to the date of the award. Id. at *12–13. Addressing how to apply the findings of the bellwether evidentiary hearing to the remaining Plaintiffs, he accepted Plaintiffs’ proposal to submit a Standard Form 95 for each Plaintiff "to enable the Court to determine an appropriate damages matrix for the remaining plaintiffs," specifically noting that the form "sets out the civil and criminal penalties for presenting fraudulent claims and for making false statements."5 Id. at *13 (internal quotation marks omitted). Along with those forms, Plaintiffs were to submit a chart including each Plaintiff's name, the nature of his or her injury and tort claim, and the nature of the damages sought, among other things. Id. at *14. A document labeled "Judgment" was entered that same day (the "September 2014 Order") awarding damages to 6 bellwether Plaintiffs; the 2 deceased Plaintiffs are not mentioned in that document. ECF No. 122.
Shortly thereafter, Judge Facciola held a status conference to further address damages for the remaining Plaintiffs. He was concerned that Plaintiffs who suffered PTSD as well as minor physical injuries had "unique and individual" damages not suitable to application of a damages matrix drawn from the findings of Mwani I . ECF No. 153 at 3. He also noted that some of those Plaintiffs claimed economic damages, which Plaintiffs’ counsel characterized as "nominal." Id. at 3–5. Judge Facciola proposed using Dipak Shah's award as the measure of those Plaintiffs’ damages, in lieu of attempting to calculate damages on a more individualized basis. Id. at 5. Plaintiffs’ counsel agreed:
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