Wyatt v. Syrian Arab Republic

• Decision Date: 08 September 2010
• Docket Number: Civil Action No.: 08-0502 (RMU)
• Citation: 736 F.Supp.2d 106
• Parties: Mary Nell WYATT, Plaintiffs, v. SYRIAN ARAB REPUBLIC, Defendants.
• Court: U.S. District Court — District of Columbia

736 F.Supp.2d 106

Mary Nell WYATT, Plaintiffs,

v.SYRIAN ARAB REPUBLIC, Defendants.

Civil Action No.: 08-0502 (RMU).

United States District Court, District of Columbia.

Sept. 8, 2010.

David J. Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiffs.

Ramsey Clark, Clark & Schilling, New York, NY, for Defendants.

MEMORANDUM OPINION

Denying the Defendant's Motion to Dismiss

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the motion to dismiss filed by the Syrian Arab Republic ("Syria" or "the defendant"), in an action arising out of the alleged hostage-taking of two Americans by the Kurdistan Workers Party ("PKK"). The plaintiffs-a hostage, his family and the estate and family of another hostage who is now deceased-seek damages against the PKK under the Antiterrorism Act of 1990, 18 U.S.C. §§ 2331 et seq., and against Syria under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A, for its alleged material support of the PKK and participation in the hostage-taking. Syria ¹ moves to dismiss the complaint for lack of subject matter jurisdiction. Because the court determines that it has subject matter jurisdiction over this action pursuant to the FSIA, it denies the defendant's motion. Additionally, the court orders the parties to file supplemental briefing addressing the plaintiffs' state law tort claims and whether this case should be consolidated with an earlier pending action involving the same parties.

II. BACKGROUND

A. Factual and Procedural History

On August 30, 1991, Ronald E. Wyatt and Marvin T. Wilson were traveling near Elmali Village in Bingol Province, Turkey, when they were abducted at gunpoint by PKK terrorists. Compl. ¶¶ 20-21. The PKK is a Marxist organization that agitates for an independent Kurdish state in southeastern Turkey and has committed numerous acts of terrorism since its inception. Id. ¶ 27. At the time of the abduction, and for many years prior, Syria supported the PKK through the provision of weapons, safe haven, training, logistical aid and other forms of assistance. Id. ¶¶ 29-30.

Wyatt and Wilson were held by the PKK for twenty-one days, during which time they were subjected to harsh conditions.Id. ¶ 22. Early on in their captivity, at least two Turkish soldiers were killed by the PKK during an unsuccessful rescue operation by Turkish military and security forces. Id. ¶ 25. "Officers and employees of the [Syrian Ministry of Defense] were present while Wyatt and Wilson were held hostage and otherwise aided, assisted and advised the PKK captors." Id. ¶ 34. Finally, on September 21, 1991, Wyatt and Wilson escaped from their captors. Id. ¶ 26.

The plaintiffs initially brought suit on July 27, 2001, pursuant to an earlier version of the FSIA. See generally Compl. Wyatt v. Syrian Arab Republic, Civ. 01-1628 (D.D.C. July 27, 2001). On March 24, 2008, the plaintiffs commenced this action, asserting allegations identical to those in their previous action based on the newly enacted changes to the FSIA's terrorism exception. See generally Compl., The plaintiffs also assert claims against Syria under the tort laws of Tennessee and Texas, the states in which Wyatt and Wilson were respectively domiciled when they were taken hostage. Id. ¶¶ 49-79. Syria filed its motion to dismiss on November 24, 2009. See generally Def.'s Mot.

B. Statutory Framework

Foreign sovereigns are immune from suit in the United States unless the action falls under one of the specific exceptions enumerated in the FSIA.² 28 U.S.C. § 1604; Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192, 196 (D.C.Cir.2004). In 1996, Congress created an exception to sovereign immunity, codified at 28 U.S.C. § 1605(a)(7), which allowed plaintiffs to sue foreign states that had committed or supported terrorist acts and that were officially designated as state sponsors of terrorism by the State Department. 28 U.S.C. § 1605(a)(7) (repealed 2008); see also Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C.Cir.2002) (discussing the terrorism exception's legislative history); In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 39 (D.D.C.2009) (providing a thorough history of the terrorism exception and pursuant litigation). Until 2004, the majority of courts in this district interpreted § 1605(a)(7) and a related amendment, see 28 U.S.C. 1605 note, as providing a private cause of action against a foreign state. In re Iran, 659 F.Supp.2d at 45 n. 6; see also Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 233 (D.D.C.2002) (collecting cases).

In 2004, however, the Circuit ruled that § 1605(a)(7) did not establish a substantive cause of action against foreign state sponsors of terrorism. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1027 (D.C.Cir.2004). Instead, for those victims who wished to sue foreign states directly, the FSIA's terrorism exception functioned only as a "pass-through," permitting plaintiffs to bring suit against foreign sovereigns responsible for terrorist acts based on other sources of law, such as the "tort law of the state jurisdiction where they were domiciled at the time of the terrorist incident giving rise to the lawsuit." In re Iran, 659 F.Supp.2d at 46.

Congress subsequently repealed § 1605(a)(7) in § 1083 of the National Defense Authorization Act for Fiscal Year 2008 ("2008 NDAA"), and replaced it witha new, broader terrorism exception. See National Defense Authorization Act for Fiscal Year 2008, Pub.L. 110-181, § 1083, 122 Stat. 3, 338-41 (codified at 28 U.S.C. § 1605A); see also Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 840 (D.C.Cir.2009) (citing § 1083, 122 Stat. at 338-44). Section 1605A provides plaintiffs with a substantive cause of action against foreign sovereigns that includes punitive damages as an available remedy.³ 28 U.S.C. § 1605A(c); see also In re Iran, 659 F.Supp.2d at 58-61, 77-79.

Section 1083(c) of the 2008 NDAA provides for the retroactive application of § 1605A to cases already filed under § 1605(a)(7). § 1083, 122 Stat. at 338-41. Under that provision, a plaintiff may convert a § 1605(a)(7) action by moving the court to have that action considered as having been filed under § 1605A. Id. Alternatively, § 1083(c)(3) permits a plaintiff to file a new, "related action" under § 1605A, provided that it "aris[es] out of the same action or incident" as the original § 1605(a)(7) action, that the original action was timely filed under the previous version of the statute and that the new action is "commenced not later than the latter of 60 days after (A) the date of the entry of judgment in the original action [ ] or (B) the date of the enactment of [the 2008 NDAA, on January 28, 2008]." Id.

With the statutory framework laid out in sufficient detail, the court now turns to its resolution of the parties' arguments.

III. ANALYSIS

A. The Court Has Subject Matter Jurisdiction Under the FSIA

1. The Plaintiffs Have Properly Filed the Instant Action Under § 1605A via § 1083(c)(3)

On July 27, 2001, the plaintiffs filed suit under the original terrorism exception to the FSIA, § 1605(a)(7). See generally Compl., Wyatt, Civ. No. 01-1628 (D.D.C. July 27, 2001). On March 24, 2008, the plaintiffs commenced this action under § 1605A.⁴See generally Compl. The defendant contends that this action does not qualify as a related action under § 1083(c)(3) because it is virtually identical to the plaintiffs' original action under § 1605(a)(7). Def.'s Reply at 14-15. Consequently, the defendant maintains that the plaintiffs' action is "time-barred," "miscast" and "jurisdictionally deficient," and should therefore be dismissed. Id.; see also Def.'s Mot. at 1. The plaintiffs counter that this action qualifies as a relatedaction under § 1083(c)(3) because it arises from the same "act or incident" as their earlier § 1605(a)(7) action, which they claim was timely commenced in 2001. Pls.' Opp'n at 4-5. As a related action, the plaintiffs argue, this action is timely because it was commenced within sixty days of the enactment of the 2008 NDAA. Id.

A party can bring a separate, related action under § 1605A if that action "aris[es] out of the same action or incident" as an earlier action that was timely filed under § 1605(a)(7). 28 U.S.C. § 1605A note (§ 1083(c)(3)). There is no statutory requirement that a related action be distinct from the prior action in any way. See id.; Ben-Rafael v. Islamic Republic of Iran, 718 F.Supp.2d 25, 27-31 (D.D.C.2010) (permitting a separate action under § 1605A to be filed even though the separate action was "based on the same facts set forth in" the original § 1605(a)(7) action); see also In re Iran, 659 F.Supp.2d at 98 (allowing a § 1605A action to proceed after the plaintiffs had already received a default judgment in their § 1605(a)(7) action, to enable the plaintiffs to take advantage of the availability of punitive damages under § 1605A). This action "aris[es] out of the same action or incident" as the plaintiffs' original one, namely the abduction of Wyatt and Wilson. Compare Compl. with Compl., Wyatt, Civ. No. 01-1628 (D.D.C. July 27, 2001). Therefore, this action qualifies as a related action under § 1083(c)(3).

A related action under § 1605A must have been filed within 60 days of the enactment of the 2008 NDAA, which occurred on January 28, 2008. 28 U.S.C. § 1605A note (§ 1083(c)(3)). The plaintiffs filed this complaint on March 24, 2008, see generally Compl., 56 days after the enactment of the 2008 NDAA. Thus, this related action is timely. See 28 U.S.C. § 1605A note (§ 1083(c)(3)).

Having concluded that the plaintiffs timely filed a § 1605A action that is "related" to their § 1605(a)(7) action, the court holds that the plaintiffs have satisfied the requirements laid out in § 1083(c)(3).

2. The Plaintiffs Have Sufficiently Pleaded Facts Necessary to Establish the Court's Jurisdiction

The defendant challenges the sufficiency of the plaintiffs' claim that...