Al-Quraishi v. Nakhla, Civil No. PJM 08-1696

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: PETER J. MESSITTE
• Citation: 728 F.Supp.2d 702
• Parties: Wissam Abdullateff Sa'eed AL-QURAISHI, et al., Plaintiffs v. Adel NAKHLA, et al., Defendants.
• Docket Number: Civil No. PJM 08-1696
• Decision Date: 29 July 2010

728 F.Supp.2d 702

Wissam Abdullateff Sa'eed AL-QURAISHI, et al., Plaintiffs
v.
Adel NAKHLA, et al., Defendants.

Civil No. PJM 08-1696.

United States District Court,
D. Maryland,
Greenbelt Division.

July 29, 2010.

728 F.Supp.2d 714

William Thomas O'Neil, Susan Laura Burke, Burke O'Neil LLC, Washington, DC, Katherine Marie Gallagher, Center for Constitutional Rights, New York, NY, Shereef Hadi Akeel, Akeel and Valentine LLC, Troy, MI, for Plaintiffs.

Eric Robert Delinsky, Lisa Barclay, Richard Miles Clark, Zuckerman Spaeder LLP, Brett Richard Tobin, F. Greg Bowman, Anne McKenzie Roller Rucker, Ari Shlomo Zymelman, Williams and Connolly LLP, Washington, DC, for Defendants.

OPINION

PETER J. MESSITTE, District Judge.

Plaintiffs, 72 Iraqi citizens who were formerly detained at military prisons in Iraq, have sued L-3 Services, Inc. ("L-3"), a military contractor which provided civilian translators for United States military forces in Iraq, and Adel Nakhla, a former employee of L-3 who served as one of its translators there. The Complaint alleges that Defendants tortured and otherwise physically and mentally abused Plaintiffs during their detention and that they should be held liable in damages for their actions.

Plaintiffs assert 20 causes of action: 1) torture; 2) civil conspiracy to torture; 3) aiding and abetting torture; 4) cruel, inhuman, or degrading treatment; 5) civil conspiracy to treat Plaintiffs in a cruel, inhuman, or degrading manner; 6) aiding and abetting cruel, inhuman, and degrading treatment; 7) war crimes; 8) civil conspiracy to commit war crimes; 9) aiding and abetting the commission of war crimes; 10) assault and battery; 11) civil conspiracy to assault and batter; 12) aiding and abetting assaults and batteries; 13) sexual assault and battery; 14) civil conspiracy to sexually assault and batter; 15) aiding and abetting sexual assaults and batteries; 16) intentional infliction of emotional distress; 17) civil conspiracy to inflict emotional distress; 18) aiding and abetting intentional infliction of emotional distress; 19) negligent hiring and supervision; and 20) negligent infliction of emotional distress. Counts 1-9 are brought pursuant to the Alien Tort Statute, 28 U.S.C. § 1350.

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Counts 10-20 are state law claims. Counts 19 and 20, the negligence claims, are brought only against Defendant L-3.

Defendants have filed Motions to Dismiss on a number of grounds. They argue that the suit must be dismissed in its entirety because they are immune under the laws of war, because the suit raises non-justiciable political questions, and because they possess derivative sovereign immunity. They seek dismissal of the state law claims on the basis of government contractor immunity, premised on the notion that Plaintiffs cannot proceed on state law claims which arise out of combatant activities of the military. Defendants also aver that the causes of action brought under the Alien Tort Statute are not cognizable since none of their actions violated the law of nations, as the statute requires. They further contend that the state law claims are governed by the substantive law of Iraq which makes them immune from suit or, if not immune, that at least some of the claims are not cognizable under Iraqi law. Finally, Defendants assert that Plaintiffs have failed to plead sufficient facts in support of their claims of conspiracy and aiding and abetting.

The Court has considered the parties' initial briefs, heard oral arguments, and reviewed their supplemental briefs and filings.

For the reasons that follow, the Court DENIES Defendants' Motions to Dismiss.

On the facts alleged, Defendants' actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Further, the suit does not raise a political question since this is a suit against private actors which does not implicate the separation of powers issues which the political question doctrine is meant to protect. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense since Defendants' asserted premise for the defense-that the claims arise out of combatant activities of the military-is not a valid basis for the defense. The Court declines to dismiss the Alien Tort Statute claims since, in the Court's judgment, Plaintiffs' claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs' state law claims, the Court finds that they are governed by Iraqi law. However, without referring to information outside the four corners of the Complaint, in particular Defendants' contracts, the Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law. Accordingly, as to this latter argument, as well as to the question of whether Plaintiffs' claims are cognizable under Iraqi law, the Court defers decision pending discovery. Finally, the Court finds that Plaintiffs have set forth sufficient facts to make out claims of conspiracy and aiding and abetting.

I. Statement of Facts ¹

In March 2003, a military coalition led by the United States invaded Iraq and toppled the regime of its then-leader Saddam Hussein. Coalition forces have remained in Iraq as an occupying force ever since, engaged in the process of rebuilding the country to the end of returning governing

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power to the Iraqis. Throughout the occupation, coalition forces have fought with and been subject to attack by insurgents employing guerilla-style tactics.

During the occupation, the U.S. military contracted with L-3, a Delaware corporation headquartered in Virginia, to provide civilian translators of Arabic in connection with military operations. These translators worked at, among other places, military prisons and detention facilities in Iraq. Adel Nakhla, a naturalized U.S. citizen born in Egypt,² worked for L-3 as an Arabic translator from June 2003 through May 2004 at the Abu Ghraib prison located outside of Baghdad, which was used by the U.S. military to detain suspected subversives taken into custody. Nakhla is no longer employed by L-3 and currently resides in Montgomery County, Maryland.

According to their Complaint, Plaintiffs are 72 Iraqis who were arrested by coalition forces and held at various military-run detention facilities in Iraq, including Abu Ghraib prison. Their periods of detention occurred between July 2003 and May 2008 and varied in length from less than a month to more than four years. All Plaintiffs allege that they were innocent of any crimes and that they were eventually released from custody without being charged with any crimes.

They all allege, however, that during their custody they were tortured and otherwise mistreated by L-3 employees, including Nakhla, and others working with them. The abuses they allege include: beatings, hanging by the hands and feet, electrical shocks, mock executions, dragging across rough ground, threats of death and rape, sleep deprivation, abuse of the genitals, forced nudity, dousing with cold water, stress positions, sexual assault, confinement in small spaces, and sensory deprivation. Plaintiffs also allege that their individual mistreatment occurred as part of a larger conspiracy involving L-3 and its employees, certain members of the military, and other private contractors. Despite the alleged involvement of some military personnel in these acts, Plaintiffs claim that Defendants were not authorized by the U.S. Government to commit the wrongful acts and that they were acting independently of and contrary to orders and directives of the U.S. military.

II. Legal Standards for Dismissal

Defendants' Motions to Dismiss are brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a party may seek dismissal for "lack of subject-matter jurisdiction." "The plaintiff has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). "When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (citation and quotation marks omitted). "The district court should grant the Rule 12(b)(1) motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation and quotation marks omitted).

Rule 12(b)(6) governs dismissal of a complaint for "failure to state a claim upon which relief can be granted." "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the

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merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006) (citation and quotation marks omitted). "[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009). The court will also "draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). But "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts." Nemet Chevrolet, 591 F.3d at 255. "[A] complaint must contain...