Owens v. Republic of Sudan

• Decision Date: 29 March 2005
• Docket Number: No. CIV.A. 01-2244(JDB).,CIV.A. 01-2244(JDB).
• Citation: 374 F.Supp.2d 1
• Parties: James OWENS, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

374 F.Supp.2d 1

James OWENS, et al., Plaintiffs, v. REPUBLIC OF SUDAN, et al., Defendants.

No. CIV.A. 01-2244(JDB).

United States District Court, District of Columbia.

March 29, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas Fortune Fay, Washington, DC, for James Owens, Victoria J. Spiers, plaintiffs.

Ronald Alvin Karp, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Rockville, MD, Tuna Mecit, Law Offices of Fay & Perles, Washington, DC, Thomas Fortune Fay, Washington, DC, Steven R. Perles, Washington, DC, for all plaintiffs.

Douglas K. Bemis, Jr., Hunton & Wiilliams, LLP, Washington, DC, for Republic of Sudan, Ministry of Interior of Republic of Sudan, defendants.

Rhonda C. Fields, U.S. Attorney's Office, Washington, DC, for Islamic Republic of Iran, Iranian Ministry of Information and Security, Federal Bureau of Prisons, Elizabeth Holman, defendants.

MEMORANDUM OPINION

BATES, District Judge.

On August 7, 1998, nearly simultaneous truck bombs were exploded at the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. Hundreds were killed and thousands were injured in the explosions. Several of the injured victims and their family members brought this suit under section 1605(a)(7) of the Foreign Sovereign Immunities Act against the Republic of Iran, the Republic of Sudan, and two of their respective ministries, for allegedly providing material support to the terrorist organizations that carried out the attacks. Defendants were served through diplomatic channels, and when they initially failed to appear, the clerk entered default against them.

Several months later, although well before any trial was scheduled to occur in the case, counsel entered an appearance for the Republic of Sudan and its Ministry of the Interior ("the Sudan defendants"). Soon thereafter, the Sudan defendants filed a motion to dismiss arguing that they are immune from suit under the Foreign Sovereign Immunities Act, that plaintiffs' complaint fails to state a claim upon which relief can be granted, and that the default should be vacated and judgment entered in their favor instead. Attached to the motion are declarations from Timothy Michael Carney, a former United States Ambassador to Sudan, and John E. Cloonan, a former Special Agent of the Federal Bureau of Investigation, stating their views that the Sudan defendant did not have any involvement in the embassy bombings. Plaintiffs responded with a succession of filings, including a motion to strike the motion to dismiss, an opposition to the motion to dismiss, a motion to take the depositions of former Ambassador Carney and former Special Agent Cloonan, a motion in the alternative to strike the declarations of former Ambassador Carney and former Special Agent Cloonan, and two separate motions requesting forms of jurisdictional discovery. Finally, after briefing of these motions was complete, Hunton & Williams LLP — the Sudan defendants' second counsel to file an appearance in this case — filed a motion seeking leave to withdraw as counsel.

The Court now denies plaintiffs' motion to strike the motion to dismiss, but also denies the motion to dismiss itself, allowing plaintiffs to amend the complaint in accordance with the holdings in this opinion. The Court also denies plaintiffs' motions to take the depositions or strike the declarations of former Ambassador Carney and former Special Agent Cloonan until such time as plaintiffs comply with the relevant Touhy regulations. The Court further denies plaintiffs' motions seeking jurisdictional discovery until plaintiffs have cured the deficiencies in their complaint, at which time the Court will further consider the opening of jurisdictional discovery in this case. Finally, the Court will hold a status conference on April 20, 2005, to address the pending motion of Hunton &amp Williams LLP to withdraw as counsel, and the status of this action moving forward.

BACKGROUND

Plaintiffs in this case are United States nationals injured in the terrorist attacks on the United States embassies in Dar es Salaam, Tanzania and Nairobi, Kenya on August 7, 1998, and certain of their family members. The attacks were carried out through the nearly simultaneous detonations of explosive materials in trucks at the respective embassies. The explosions led to the death of hundreds of employees, visitors, and bystanders, and the injury of thousands more. Plaintiff James Owens commenced this civil action on October 26, 2001, seeking damages from the Republic of Sudan, the Islamic Republic of Iran and the Iranian Ministry of Information and Security for their role in the alleged bombings. The complaint has since been amended twice to add the Ministry of the Interior of the Republic of Sudan as a defendant and more than forty individuals as plaintiffs, but the claims and basic structure of the complaint have remained unchanged.

Plaintiffs bring this action pursuant to the state-sponsored terrorism exception to the immunity of a foreign state in section 1605(a)(7) of the Foreign Sovereign Immunities Act ("FSIA"). The complaint alleges broadly that defendants provided "material support" to Hizbollah and al Qaeda, the two terrorist organizations alleged to be responsible for the embassy bombings, in the form of "cover, sanctuary, technical assistance, explosive devices and training." Second Am. Compl. ¶¶ 2, 13. As to the Sudan defendants in particular, the complaint alleges that they gave "cover" and "support" to the terrorist groups, id. ¶ 7; that they "provided cover and protection for the organization and training of the persons carrying out the attack as well as venues for these activities," id. ¶ 9; that they "entered into an agreement with al Qaeda and Hizbollah under which those organizations received shelter and protection from interference while carrying out planning and training of various persons for the attacks of August 7, 1998," id. ¶ 8; and that an "organizational and planning meeting" for the embassy attacks occurred "within the Republic of the Sudan" between "Usama Bin Laden, chief of al Qaeda, and Imad Mughaniyah, chief of Hezbollah," id. Plaintiffs purport to state claims against the defendants for "intentional infliction of emotional distress/solatium" under the Flatow Amendment to the FSIA,¹ and for "personal injury" and "loss of consortium" without identifying a specific cause of action under federal or state law for those claims. E.g., id. ¶¶ 12-16, 25-26.

Plaintiffs served the complaint on the defendants through diplomatic channels. When none of the defendants appeared, the Clerk of the Court entered default against them on May 9, 2003. As is customary in these cases, the Court scheduled an ex parte trial on liability and damages. See 28 U.S.C. § 1608(e) ("No judgment by default shall be entered by a court of the United States or of a State against a foreign state ... unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."). Plaintiffs then filed several motions in anticipation of trial, including a motion asking the Court to compel the Federal Bureau of Investigation to produce documents relating to the attacks, and a motion for issuance of letters rogatory asking the government of Israel to allow plaintiffs to depose several individuals in its custody.

On February 6, 2004, several months after the entry of default but well before any trial was set to begin, counsel from Piper Rudnick LLP filed an appearance on behalf of the Sudan defendants. At about the same time, the D.C. Circuit issued a decision in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004), holding that "neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government." Id. at 1033. The Court issued an order asking plaintiffs and the Sudan defendants to submit briefs addressing the viability of plaintiffs' complaint in light of Cicippio-Puleo. A month later, plaintiffs submitted their brief on Cicippio-Puleo issues. Only a few days later, the Sudan defendants filed a motion to dismiss.

The motion to dismiss advances a litany of arguments, all of which fall into one of three categories: (i) the Court lacks jurisdiction over the claims against the Sudan defendants because they are immune from suit under the FSIA and plaintiffs have failed to demonstrate that the case comes within the exception to immunity in section 1605(a)(7); (ii) plaintiffs have failed to state a claim upon which relief can be granted under Cicippio-Puleo and other recent authority interpreting the causes of action that may be brought against a foreign state; and (iii) plaintiffs' claims are foreclosed by the act of state and political question doctrines. The Sudan defendants include in the motion to dismiss a request to vacate the entry of default against them.

The Sudan defendants also attach to their motion declarations from two former United States officials. The first declaration is from Timothy Michael Carney, the United States Ambassador to Sudan from August 1995 until November 1997. Former Ambassador Carney explains that he is unaware of any credible intelligence or evidence that the Sudan defendants were involved in, aware of, or provided material support to the groups that carried out the Tanzania and Kenya embassy attacks. Decl. of Timothy Michael Carney ("Carney Decl.") ¶ 6. He explains that the government of Sudan even expelled al Qaeda from Sudan in May 1996 at the request of the United States, and he notes that there was a great deal of intelligence before this date attributing misconduct to Sudan that was later discredited or withdrawn by the CIA. Carney Decl. ¶¶ 7, 10.

The second declaration is from John E. Cloonan, a former Special Agent with the Federal Bureau of Investigations ("FBI"), who explains that while at the FBI he worked on a joint FBI/CIA operation tasked in part with...