Rux v. Republic of Sudan

• Decision Date: 03 December 2009
• Docket Number: Civil Action No. 2:04cv428.
• Citation: 672 F.Supp.2d 726
• Parties: Olivia RUX, et al., Plaintiffs, v. The REPUBLIC OF SUDAN, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

672 F.Supp.2d 726

Olivia RUX, et al., Plaintiffs, v. The REPUBLIC OF SUDAN, Defendant.

Civil Action No. 2:04cv428.

United States District Court, E.D. Virginia, Norfolk Division.

December 3, 2009.

Carl David Gray, Gregory N. Stillman, Brent Lee VanNorman, Hunton & Williams, Norfolk, VA, Douglas Knox Bemis, Jr., Hunton & Williams LLP, Washington, D.C., for Defendant.

Mark Anthony Exley, United States Attorney Office, Norfolk, VA, Varudhini Chilakamarri, Ronald James Wiltsie, U.S. Department

of Justice, Washington, D.C., for Respondent.

Alan Woodbury Young, Young Law Firm P.C., Portola Valley, CA, Timothy Paul Sceviour, Abrons Fasanaro & Sceviour PLLC, Mary Jane Hall, Kaufman & Canoles P.C., Norfolk, VA, Nelson Marion Jones, III, Nelson M. Jones III, Houston, TX, Andrew C. Hall, Hall Lamb and Hall P.A., Miami, FL, James Davis Cooper-Hill, James D. Cooper-Hill, Rockport, TX, for Plaintiff.

Kelly Gurley Roberts, The Law Office of John W. Bonney P.C., Norfolk, VA, for Brady Costelow, (Notice).

OPINION & ORDER

ROBERT G. DOUMAR, District Judge.

This case is before the Court on remand from the Fourth Circuit. The Fourth Circuit instructed this Court to "determine whether FSIA's creation of a private right of action for state-sponsored terrorism takes precedent over DOHSA's remedy for death on the high seas when, as here, terrorism-related deaths occurred on the high seas." Rux v. Republic of Sudan, No. 07-1835 (4th Cir. July 14, 2009).

Plaintiffs Olivia Rux, et al. ("Plaintiffs"), have filed a Motion for Leave to Supplement Their Fourth Amended Complaint to add a cause of action under 28 U.S.C.A. § 1605A(c) (2008). The D.C. Circuit has held that § 1605A does not automatically apply retroactively to pending cases.¹ Rather, "Section 1605A only applies to cases brought prior to January 28, 2008 if they meet the four requirements" set forth in § 1083(c)(2) of the National Defense Authorization Act (NDAA) for Fiscal Year 2008, Pub.L. No. 110-181, 122 Stat. 3, 342. Welch v. Islamic Republic of Iran, 545 F.Supp.2d 118, 119 (D.D.C.2008). One of these four requirements is that the plaintiffs must have "relied upon [28 U.S.C. § 1605(a)(7) ] as creating a cause of action." Pub. L. No. 110-181, § 1083(c)(2)(A)(ii), 122 Stat. 3, 342. In the case at hand, Plaintiffs never relied upon § 1605(a)(7) as creating a cause of action. Therefore, § 1605A has no retroactive application to their pending case, and Plaintiffs have no statutory right to amend their complaint to add § 1605A as a cause of action. Although Plaintiffs argue that § 1083(c)(2)(A)(ii) is unconstitutional, the Court has reviewed this argument and finds it to be without merit.

Under these circumstances, the Court finds that § 1605A does not supercede DOHSA as a cause of action. Section 1605A(c) is not a viable cause of action that can be invoked on the present motion to amend. At the present time, DOHSA is Plaintiffs' exclusive cause of action.² Plaintiffs' Motion for Leave to Supplement Their Fourth Amended Complaint is DNIED.

I. FACTUAL & PROCEDURAL BACKGROUND

The facts giving rise to this case are set forth more fully in the Court's previous opinion, Rux v. Republic of Sudan, 495 F.Supp.2d 541, 542-553 (E.D.Va.2007). To summarize briefly, this action arises from the terrorist bombing of the American navy vessel U.S.S. Cole ("Cole") on October 12, 2000. While the Cole was refueling in the Port of Aden in Yemen, a small boat pulled up alongside the navy vessel and detonated a suicide bomb. The explosion and its aftermath killed seventeen Navy sailors and wounded forty-two others.

Plaintiffs are fifty-nine surviving family members of the seventeen sailors killed in the attack on the Cole. On July 16, 2004, Plaintiffs filed suit against Defendant Republic of Sudan ("Sudan"), alleging that Sudan knowingly and willfully provided material support and resources to Osama Bin Laden and Al Qaeda, the perpetrators of the attack on the Cole. Plaintiffs' initial Complaint alleged causes of action "under 18 U.S.C. § 2333 and 28 U.S.C. § 1606, as well as the wrongful death statutes of the place of permanent residence of each decedent, to wit, the State of Virginia and the State of California." (Compl. ¶ 13). Plaintiffs amended their complaint on August 10, 2004, to add a cause of action under the "Torture Victim Protection Act of 1991 by operation of 28 U.S.C. § 1606. . . ." (Am. Compl. ¶ 15). On September 17, 2004, Plaintiffs filed a Second Amended Complaint which asserted the same causes of action as their original Complaint, but dropped their cause of action under the Torture Victim Protection Act. (Second Am. Compl. ¶ 23).

Sudan failed to defend the suit, and a default judgment was entered on February 16, 2005. On June 15, Plaintiffs filed a Third Amended Complaint. Paragraph 33 of the Third Amended Complaint stated as follows:

Plaintiffs base the claims of each plaintiff on: State common law or statutory law for wrongful death for the State of residence for each victim killed in the bombing of the U.S.S. Cole; State common law or statutory law for intentional infliction of mental or emotional distress for each Plaintiff herein; State common law or statutory law for battery for each of Plaintiffs' decedent; federal common law for loss of solatium as set forth in Surette v. Islamic Republic of Iran, 231 F.Supp.2d 260 (D.D.C.2002) for each Plaintiff herein; the Restatement of Torts (Second) § 46(2) for each plaintiff herein.

(Third Am. Compl. 1133). On June 17, 2005, Sudan entered an appearance and moved to vacate the entry of default. The Court vacated the entry of default, and Sudan moved to dismiss Plaintiffs' Third Amended Complaint. The Court denied Sudan's motion on August 26, 2005, 2005 WL 2086202.³ Having failed to dismiss Plaintiffs' action, Sudan notified the Court that it would not participate any further in the proceeding. The Court twice ordered Sudan to file an answer or responsive pleading, but Sudan disregarded these orders. The clerk entered default against Sudan on February 2, 2007.

Pursuant to the Foreign Sovereign Immunity Act, 28 U.S.C. § 1608(e) (2006), a plaintiff suing a foreign sovereign is required to establish his "claim or right to relief by evidence satisfactory to the court" before an order of default judgment. The Court set a bench trial for March 13, 2007 to allow Plaintiffs to submit evidence as required by § 1608(e). On February 20 2007, Plaintiffs filed a Fourth Amended Complaint. Paragraph 24 of the Fourth Amended Complaint asserted causes of action "under 28 U.S.C. § 1606 for wrongful death under the general maritime common law, or alternatively under the Death on the High Seas Act, 46 U.S.C. §§ 761 et seq., and for the tort of intentional infliction of emotional distress under common law." (Fourth Am. Compl. 1124).

The case was tried before this Court on March 13 and 14, 2007. At the conclusion of the trial, the Court concluded that there was sufficient evidence to enter default judgment against Sudan pursuant to 28 U.S.C. § 1608(e). On July 25, 2007, the Court issued an Opinion and Order detailing its factual findings and conclusions of law. Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D.Va.2007). The Court found that Sudan had actively provided Al Qaeda with material support, that "such support was critical to Al Qaeda" in carrying out the attack on the Cole, and that "Sudan's material support to Al Qaeda led to the murders of the seventeen American servicemen and women on October 12, 2000, in the territorial waters of Yemen." Id. at 553-54.

The Court noted 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. Thus, once a court determines that subject matter jurisdiction exists, it must determine what, if any, causes of action the plaintiff may bring against the defendant, and whether the foreign state is liable on any of those claims.

Id. at 553. Based on applicable precedent and statutory law, the Court found the Death on the High Seas Act (DOHSA), 46 U.S.C. app. § 761 (2006) (current version at 46 U.S.C.A. § 30301 (2008)), to be Plaintiffs' exclusive cause of action. Id. at 558-65. The Court dismissed Plaintiffs' remaining claims and awarded Plaintiffs judgment against Sudan in the total amount of $7,956,344. These damages did not include recovery for non-pecuniary losses, which are not compensable under DOHSA. Id. at 566-67. According to Plaintiffs' Counsel, those Plaintiffs who were awarded damages have since collected on their judgments.

Plaintiffs filed an appeal in the Court of Appeals for the Fourth Circuit on August 23, 2007, challenging the dismissal of their claims for intentional infliction of emotional distress. While the case was pending on appeal, Congress passed the National Defense Authorization Act (NDAA) for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 3. Section 1083 of the NDAA creates a new cause of action against state sponsors of terrorism in 28 U.S.C.A. § 1605A(c) (2008). The right of action in § 1605A(c), unlike the right of action created by DOHSA, allows recovery for "solatium, pain and suffering, and punitive damages." In light of this statutory amendment, Plaintiffs moved for summary disposition of their appeal. Additionally, Plaintiffs filed a motion in this Court on January 29, 2008, to reopen their case and enter judgment under 28 U.S.C.A. § 1605A (2008).

On July 14, 2009, the Court of Appeals remanded the case to this Court for further to "determine whether FSIA's creation of a private right of action for statesponsored terrorism takes precedent over DOHSA's remedy for death on the high seas when, as here, terrorism-related deaths occurred on the high seas. Following that determination, the court may, if warranted, reconsider its award of damages to Appellants."

On August 24, 2009, Plaintiffs filed the present Motion for Leave to Supplement the Fourth Amended...