CUMMOCK, et al v. SOC. PEOPLE'S LIBYAN, et al

Filing 63

MOTION for Summary Judgment Based on Collateral Estoppel as to Defendant Abdel Baset Al-Megrahi by M. VICTORIA CUMMOCK, ASHLEY MICHELLE CUMMOCK, CHRISTOPHER JOHN CUMMOCK, MATTHEW DAVID CUMMOCK. (Attachments: # 1 Memorandum of Points and Authorities In Support of Plaintiffs' Motion For Summary Judgment# 2 Exhibit A# 3 Exhibit B (Part 1 of 4)# 4 Exhibit B (Part 2 of 4)# 5 Exhibit B (Part 3 of 4)# 6 Exhibit B (Part 4 of 4)# 7 Exhibit C (Part 1 of 3)# 8 Exhibit C (Part 2 of 3)# 9 Exhibit C (Part 3 of 3)# 10 Exhibit D# 11 Exhibit E# 12 Statement of Facts As To Which There Is No Genuine Issue In Support of Plaintiffs' Motion for Summary Judgment# 13 Exhibit A)(Flowers, Jodi)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

M. VICTORIA CUMMOCK, in her own
right, and as personal representative of
the ESTATE of JOHN CUMMOCK,
deceased; CHRISTOPHER JOHN
CUMMOCK; MATTHEW DAVID
CUMMOCK; and ASHLEY
MICHELLE CUMMOCK,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
THE SOCIALIST PEOPLE'S LIBYAN )
ARAB JAMAHIRIYA; LIBYAN
)
EXTERNAL SECURITY
)
ORGANIZATION, a/k/a JAMAHIRIYA )
SECURITY ORGANIZATION; LIBYAN)
ARAB AIRLINES; ABDEL-BASSET
)
ALI AL-MEGRAHI, a/k/a MR. BASET, )
a/k/a AHMED KHALIFA ABDUSAMED,)
a/k/a ABD AL-BASIT AL-MAQRAHI; )
and LAMEN KHALIFA FHIMAH, a/k/a )
AL AMIN KHALIFA FHIMAH, a/k/a
)
MR. LAMIN,
)
)
Defendants.
)
____________________________________)

Case No. 96-CV-1029 (CKK)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED ON
COLLATERAL ESTOPPEL AS TO DEFENDANT ABDEL BASET AL-MEGRAHI

June 3, 2005

TABLE OF CONTENTS
Page
INTRODUCTION ..............................................................................................................1
ARGUMENT......................................................................................................................3
I. COLLATERAL ESTOPPEL PURSUANT TO PARKLANE HOSIERY IS
APPROPRIATE IN THIS CASE ...........................................................................3
A. The Issues Were Fully Litigated in the Scottish High Court of Justiciary.......5
B. The Issues Were Actually and Necessarily Determined by a Court of
Competent Jurisdiction ....................................................................................6
C. Collateral Estoppel Will Not “Work An Unfairness” Against the
Defendants........................................................................................................7
1. Plaintiffs Could Not Have Been Joined in the Scottish Criminal
Action.........................................................................................................7
2. Defendants Had Incentive to Fully Litigate the Issues in Scotland ...........8
3. Megrahi Was Not Denied Any Procedural Opportunities That
Could Have Caused a Different Result....................................................10
4. The Judgment is Not Inconsistent With Other Prior Judgments..............10
II. COLLATERAL ESTOPPEL DOES NOT OFFEND DEFENDANTS’
SEVENTH AMENDMENT RIGHTS TO A TRIAL BY JURY ..........................11
III. MEGRAHI IS ESTOPPED BASED ON PRINCIPLES OF
INTERNATIONAL COMITY FROM RELITIGATING ISSUES
ALREADY FULLY AND FAIRLY LITIGATED IN THE SCOTTISH
CRIMINAL COURT ............................................................................................14
IV. ACCORDING ESTOPPEL EFFECT OR COMITY TO MEGRAHI’S
CRIMINAL CONVICTION FAVORS JUDICIAL EFFICIENCY .....................21
V. ESTOPPEL EFFECT OF THE DECISION ON THE LIBYAN
GOVERNMENT DEFENDANTS AND FHIMAH .............................................21
CONCLUSION.................................................................................................................23

i

TABLE OF AUTHORITIES
Page
CASES
Connors v. Tanoma Min. Co., Inc., 953 F.2d 682 (D.C. Cir. 1992) ...................................6
Cooley v. Weinberger, 518 F.2d 1151 (10th Cir. 1975) ...................................................19
Gardner v. Bishop, 362 F.2d 917 (10th Cir. 1966)...........................................................19
* Hilton v. Guyot, 159 U.S. 113 (1895) ..........................................................14, 15, 18, 19
Holmes v. Laird, 148 U.S.Exh.D.C. 187, 459 F.2d 1211 (1972)......................................19
In re Arbitration Between Int’l Bechtel Co., Ltd. and Dep’t of Civil Aviation of
Gov’t of Dubai, 300 F. Supp.2d 112 (D.D.C. 2004).....................................................15
* Jack Faucett Associates, Inc. v. AT&T, 744 F.2d 118 (D.C. Cir. 1984)......................5, 7
Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir.
1984) .............................................................................................................................15
McLaughlin v. Bradlee, 803 F.2d 1197 (D.C. Cir. 1986) ...................................................4
* Otherson v. Department of Justice, 711 F.2d 267 (D.C. Cir. 1983) ....................4, 5, 8, 9
* Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322 (1979)...........................passim
Patton v. United States, 281 U.S. 276 (1930)...................................................................13
* S.E.C. v. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) .......................................................4, 5
Singer v. United States, 380 U.S. 24 (1965) .....................................................................13
* Tahan v. Hodgson, 662 F.2d at 864 (D.C. Cir. 1981)..............................................15, 19
United States v. Mundt, 508 F.2d 904 (10th Cir. 1974)....................................................19
Whelan v. Abell, 953 F.2d 663 (D.C. Cir. 1992)...............................................................11
Yamaha Corp. of America v. United States, 961 F.2d 245 (D.C. Cir. 1992)......................8
INTERNATIONAL LAW AND CONVENTIONS
Report of the U.N. Secretary-General by Enoch Dumbutshena and Professor
Henry G. Schermers on the Scottish Judicial System, U.N. Doc. S/1997/991 .........7, 12
United Nations Security Council Doc. S/2003/818, Letter dated 15 August 2003
from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab
Jamahiriya to the United Nations addressed to the President of the Security
Council, August 15, 2003 .............................................................................................22
FEDERAL RULES OF CRIMINAL PROCEDURE
Fed. R. Crim. P. 23 ...........................................................................................................13

ii

INTRODUCTION
On December 21, 1988, Pan American Airlines Flight 103 (hereinafter “PA103”),
traveling en route from Heathrow Airport in London, England to John F. Kennedy International
Airport in New York, was destroyed when an explosive device stored in baggage contained in
the cargo bay detonated causing the plane to break apart at an altitude of 31,000 feet scattering
debris from the fuselage over Lockerbie, Scotland. As a result of the crash, all of the 259
passengers and crew members aboard the flight perished in addition to eleven residents of
Lockerbie who perished as a result of falling debris from the explosion. Among those on board
who perished in the explosion of PA103 was John Cummock.
In 1991, criminal indictments were issued against the two individual Libyan national
defendants in this action, Abdel Baset Ali Al-Megrahi (hereinafter “Megrahi”) and Al-Amin
Khalifah Fhimah (hereinafter “Fhimah”), by both the United States Government and the
respective authorities in Scotland. Libya, however, refused to extradite Megrahi or Fhimah to
the United States or Scotland to stand trial. One of the reasons for Libya’s refusal was that it did
not believe that the defendants could receive a fair trial before a jury comprised of Scottish or
American citizens. Libya also objected to any criminal trial in either the United States or
Scotland. After lengthy negotiations, the United Kingdom and Libya agreed that Megrahi and
Fhimah would be extradited to a neutral country and tried before a Scottish court applying
Scottish law. At Libya’s insistence the countries also agreed that the trial would be conducted
before a panel of judges rather than to a jury of Scottish citizens.
The United States and the United Kingdom then negotiated and reached agreement with
the government of the Netherlands. The countries agreed that the trial would be held at Kamp
van Zeist under Scottish law. These agreements were presented to the United Nations.

1

In order for the agreement between Libya and the United Kingdom to take legal effect, a
special procedure was employed whereby an Order of Council was entered by the Queen in
Council on September 16, 1998. This agreement permitted a departure from Scottish criminal
procedure to accommodate Libya’s extradition demands. After years of negotiation, the Libyan
government permitted the extradition of Megrahi and Fhimah in 1998—nearly ten years after the
bombing of Pan Am Flight 103.
The criminal trial of Megrahi and Fhimah commenced on May 3, 2000. The trial
consisted of eighty-four days of testimony including summation. On January 31, 2001, the
three-judge panel issued its verdict of guilty as to defendant Megrahi for the murder of the
passengers and crew aboard the flight and also for the murder of those residents of Lockerbie
who were killed by debris falling to the ground. The three-judge panel also acquitted defendant
Fhimah of the criminal charges levied against him. A copy of the decision issued by the Scottish
Court is attached to Plaintiffs’ Statement of Material Facts as to Which There is No Genuine
Issue as Exhibit A. Defendant Megrahi filed an appeal of the judgment with the Appeal Court of
the Scottish High Court of Justiciary. The appeal commenced on January 23, 2002. The
judgment of the three-judge trial panel was affirmed by the five-judge panel of the Appeal Court
on March 14, 2002. A copy of the decision issued by the Scottish appeal court is attached hereto
as Exhibit A.
The procedures utilized by the Scottish Court in the Netherlands comport closely with
those utilized by criminal courts in the United States, and, in some instances, the Scottish
procedures are even more stringent than those utilized within the United States. The Declaration
of Professor Alistair Bonnington (the “Bonnington Declaration”), an expert in Scottish criminal
procedure who monitored the criminal trial for the University of Glasgow School of Law, is

2

attached hereto as Exhibit B. The Declaration of Dana D. Biehl, Esq. (the “Biehl Declaration),
senior litigation counsel within the Counterterrorism Section of the U.S. Department of Justice
and a member of the Lockerbie prosecution team in the Netherlands, is attached hereto as Exhibit
C.

The Declaration of Professor Julie Rose O’Sullivan (the “O’Sullivan Declaration”), a

professor of criminal law and procedure at the Georgetown University Law Center and former
federal prosecutor, is attached hereto as Exhibit E. The trial court issued extensive findings of
fact regarding evidence submitted against both Megrahi and Fhimah. The motivation for defend
both Megrahi and Fhimah to defend was arguably greater in the criminal trial than in this civil
case because their personal freedom was at stake. Megrahi and Fhimah are parties to both
actions. The interests of the victims of the bombing of PA103 were identical with the Scottish
government which prosecuted Megrahi and Fhimah for causing the detonation of the bomb
aboard PA103.
Based on the findings of fact and the ultimate conviction rendered by the Scottish High
Court of Justiciary against Defendant Megrahi, and for the reasons presented herein, this Court
should grant Plaintiffs’ Motion for Summary Judgment based on the principles of collateral
estoppel and international comity as to Defendant Megrahi.

ARGUMENT
I.

COLLATERAL ESTOPPEL PURSUANT TO PARKLANE HOSIERY IS
APPROPRIATE IN THIS CASE
Plaintiffs in the instant case seek summary judgment as to Defendant Megrahi through

the vehicle of offensive collateral estoppel. The landmark Supreme Court jurisprudence in this
area of the law is embodied in Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322 (1979).
Offensive collateral estoppel involves a plaintiff “seeking to estop a defendant from relitigating
the issues which the defendant previously litigated and lost against another plaintiff.” Parklane

3

Hosiery, 439 U.S. at 329. In short, the plaintiff in the second case need not have been a party to
the initial suit; however, the defendant must have been a party and the issues to be estopped must
have been fully argued and decided in the prior case. See McLaughlin v. Bradlee, 803 F.2d
1197, 1202 (D.C. Cir. 1986); Otherson v. Department of Justice, 711 F.2d 267, 273 (D.C. Cir.
1983). The doctrine of offensive collateral estoppel further promotes the dual purposes of
“protecting litigants from the burden of relitigating an identical issue with the same party or his
privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery,
439 U.S. at 326.
The Court gave “broad discretion” to trial courts to apply offensive collateral estoppel.
439 U.S. at 331. Furthermore, the Court set forth a general rule as to the use of offensive
collateral estoppel that “in cases where a plaintiff could easily have joined in the earlier action or
where … the application of offensive collateral estoppel would be unfair to a defendant, a trial
judge should not allow the use of offensive collateral estoppel.” 439 U.S. at 331.
The D.C. Circuit has further explained the Parklane ruling by stating “The doctrine of
collateral estoppel prohibits relitigation of an issue of fact or law that has been decided in earlier
litigation.” S.E.C. v. Bilzerian, 29 F.3d 689, 694 (D.C. Cir. 1994). The D.C. Circuit has applied
offensive collateral estoppel in a civil suit based on a defendant’s criminal conviction on similar
charges in another action. S.E.C. v. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994). In that case, the
Securities and Exchange Commission (SEC) instituted a civil proceeding in equity against the
defendant and urged the Court to grant collateral estoppel because the defendant was criminally
convicted on the same set of operative facts. The trial court granted partial summary judgment,
and the D.C. Circuit stated “[o]ur review of the record indicates that Bilzerian’s criminal

4

convictions conclusively established all of the facts the SEC was required to prove with respect
to the specific claims.” 29 F.3d at 694.
The D.C. Circuit has developed a three-prong standard for determining whether collateral
estoppel should be applied in a particular case: (1) the issue must have been litigated, “that is
contested by the parties and submitted for determination by the court”; (2) the issue must have
been “actually and necessarily determined by a court of competent jurisdiction” in the first
instance; and (3) the use of offensive collateral estoppel “must not work an unfairness” against
the defendant. Jack Faucett Associates, Inc. v. AT&T, 744 F.2d 118, 125 (D.C. Cir. 1984); see
also Otherson v. Department of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983). These arguments
will be addressed in turn.
A.

The Issues Were Fully Litigated in the Scottish High Court of
Justiciary

The first prong of the three-prong test for applying offensive collateral estoppel is that the
issue to be estopped has actually been litigated in the first action. In the present case, the threejudge panel of the Scottish High Court of Justiciary issued an 82-page opinion based on an
eighty-four day trial.

As the Bonnington Declaration (Exhibit B) explains in great detail,

Megrahi was given every opportunity to put forth a defense, and through the assistance of
Scottish legal advisors, he did mount a defense. See also generally, Biehl Declaration, Exh. C.
The Court heard both sides of the argument regarding the indictment against Megrahi for the
murder of 270 individuals. See generally Bonnington Declaration, Exh. B; Biehl Declaration,
Exh. C; see also Section III, infra., for further details on the trial itself. On January 10, 2001, the
prosecution concluded its summation arguments.

On January 18, 2001, the defendants

concluded their summation arguments. Therefore, in accordance with the requirements of the

5

first prong of offensive collateral estoppel, the criminal prosecution of Megrahi was “contested
by the parties and submitted for determination by the court.”
B.

The Issues Were Actually and Necessarily Determined by a Court of
Competent Jurisdiction

In the Scottish criminal action, the issue at hand was the indictment of Megrahi on
charges of murder of the passengers and crew of PA103 and the murder of those residents of
Lockerbie who were killed by debris from the explosion of PA103. These are the precise issues
that are involved in the present case. The Scottish Court necessarily determined the guilt of
Megrahi based on the same set of operative facts that Plaintiffs in the present action have
alleged. The D.C. Circuit has held that, in the event that the basis for the first decision upon
which estoppel is sought is unclear, then “it is thus uncertain whether the issue was actually and
necessarily decided in that litigation.” Connors v. Tanoma Min. Co., Inc., 953 F.2d 682, 684
(D.C. Cir. 1992). That is not the case here. In 82 pages, the Scottish Court’s opinion sets forth
the basis for its decision in full. The decision discusses, in depth, the evidence presented before
the Court and the Court’s rulings as to the admissibility or credibility of such evidence. The
Court found substantial factual evidence germane to the conviction of Megrahi and set forth
these findings in its extensive decision. There is no question before this Court as to the basis for
the decision convicting Megrahi of murder. Therefore, the issues were actually and necessarily
determined by a court of competent jurisdiction.
Furthermore, the Scottish High Court of Justiciary is a court of competent jurisdiction.
During the period in which Libya refused to extradite Megrahi and Fhimah, the United Nations
commissioned a study of the Scottish judicial system. The U.N. representatives concluded that:
The accused would receive a fair trial under the Scottish judicial system.
Their rights during pre-trail, trial, and post-trial proceedings would be
protected in accordance with international standards.

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Report of the U.N. Secretary-General by Enoch Dumbutshena and Professor Henry G.
Schermers on the Scottish Judicial System, U.N. Doc. S/1997/991, at 15, attached hereto as
Exhibit D.
Moreover, the protections described in the U.N. Report were, in fact, provided to
defendants Megrahi and Fhimah.

See generally, Bonnington Declaration, Exh. B; Biehl

Declaration, Exh. C.
C.

Collateral Estoppel Will Not “Work An Unfairness” Against the
Defendants

In Parklane Hosiery, the Court enumerated a non-inclusive list of factors to determine
whether granting collateral estoppel against a defendant would be unfair. These included the
following: “(1) where the party asserting it easily could have joined in the action upon which
reliance is placed; (2) where the party against whom it is to be applied had no incentive to defend
vigorously the first action; (3) where the second action offers procedural opportunities
unavailable in the first action; (4) where the judgment relied on is inconsistent with other
decisions.” Jack Faucett Associates, Inc. v. AT&T Co., 744 F.2d 118, 125-26 (citing Parklane
Hosiery, 439 U.S. at 328-31). None of these circumstances exist here.
1.

Plaintiffs Could Not Have Been Joined in the Scottish Criminal
Action

In the instant case, Plaintiffs could not have joined the criminal action taking place in the
Netherlands on behalf of the Scottish Government. As the Supreme Court stated in Parklane
Hosiery, plaintiffs who did not seek to join in a suit for purely equitable relief were not barred
from seeking collateral estoppel in a separate case seeking money damages. 439 U.S. at 331-32.
In the same manner, plaintiffs seeking money damages are barred from joining in a prosecution
whose intents are purely penal in nature.

Furthermore, Scottish criminal law forbids the

7

intervention of civil litigants in a criminal trial. See Bonnington Declaration, Exh. B at 17. As
reported by the United Nations in its report on the Scottish judicial system:
Civil and criminal proceedings in Scotland are quite distinct and no order
for compensation can be made in a criminal proceeding in respect of a
death. The pursuit of any civil action is a matter for those pursuing a
claim and would not involve the Government.
U.N. Report, Exh. D, at 11.
Therefore, the Plaintiffs in this action could not have joined in the first action through
which they seek to obtain collateral estoppel in this the second action.
2.

Defendants Had Incentive to Fully Litigate the Issues in
Scotland

A secondary safeguard for defendants against the application of offensive collateral
estoppel is the concept that the defendant(s) possessed the requisite incentive to fully litigate the
issues in the first case. This safeguard first arose in Parklane Hosiery as an attempt to stem any
unfairness that may result from applying offensive collateral estoppel against a defendant where
the plaintiff(s) was not involved in the prior litigation. In that case, the Court held that “there is
no unfairness to the petitioners in applying offensive collateral estoppel in this case. First, in
light of the serious allegations made in the SEC’s complaint against the petitioners, as well as the
foreseeability of subsequent private suits that typically follow a successful Government
judgment, the petitions had every incentive to litigate the SEC lawsuit fully and vigorously.”
Parklane Hosiery, 439 U.S. at 332.
The D.C. Circuit has adopted this prong of the fairness analysis in weighing cases
seeking the use of offensive collateral estoppel. See Otherson v. Department of Justice, 711 F.2d
267, 275-76 (D.C. Cir. 1983); Yamaha Corp. of America v. United States, 961 F.2d 245, 254
(D.C. Cir. 1992). In the present case, based on the seriousness of the charges and the potential

8

impact of a finding of guilt, the Libyan government, on Megrahi’s and Fhimah’s behalf,
extensively negotiated for a trial in a neutral location, before a panel of judges and under a body
of criminal law and procedure which afforded the greatest due process protections. Moreover,
Defendant Megrahi was facing extended penal incarceration as a result of the outcome of the
trial and, based on the record of the trial which took in excess of 80 days to conduct, it is obvious
that Megrahi fully and vigorously defended against a guilty verdict. Megrahi and Fhimah were
afforded continuances to pursue new leads in their defense. One such continuance occurred right
in the middle of the trial. Megrahi and Fhimah also fought and were granted the right to have the
Scottish government interview, at its expense, all potential witnesses which might have
exonerated the defendants. Furthermore, Megrahi appealed the trial court’s decision to the
Appeal Court of the High Court of Justiciary. In Otherson, the Court held that Otherson
possessed the incentive to litigate in the first cause based on the following:
Although he did withhold some of his evidence, he obviously thought the
charge a serious one, for he pursued his appeal on the legality of his
conviction all the way to the Supreme Court. Therefore, preclusion is
much more appropriate here than in a case where a defendant put up no
resistance at all because the misdemeanor was too trivial to worry about.
Otherson, 711 F.2d at 276.
In the present case, not only was Megrahi indicted on a much more serious charge than a
misdemeanor, but he also pursued his case vigorously at a lengthy trial with full benefit of
counsel. Furthermore, he has availed himself of the appellate processes available to him in
Scotland and the United Kingdom. See Bonnington Declaration, Exh. B at 13-14, 16; Biehl
Declaration, Exh. C, at 3.1 Megrahi’s incentive to litigate in the first action provides additional

1

It appears that Megrahi has petitioned the Scottish Criminal Cases Review Commission to review his conviction.
Bonnington Declaration, Exh. B, at 16. As Professor Bonnington states in his declaration, “The Scottish Criminal
Cases Review Commission will only refer a case back to the High Court of Justiciary for the hearing of a second
appeal if there is a prima facie case that there may have been a miscarriage of justice.” Id. Based on Professor

9

weight to the argument that he should be estopped from relitigating these issues and that
summary judgment based on collateral estoppel should be granted as to Megrahi.
3.

Megrahi Was Not Denied Any Procedural Opportunities That
Could Have Caused a Different Result

As set forth in more detail at Section III, infra., Megrahi was afforded the same
procedural opportunities that would be afforded to a criminal defendant in the United States in a
criminal trial. See generally, Biehl Declaration, Exh. C; O’Sullivan Declaration, Exh. E. He was
provided with a written indictment. He was allowed representation by competent counsel. He
possessed the ability to confront his accusers and to rebut any evidence proffered by the
prosecution. He retained the right to appear as a witness in his own defense. He retained the
right to remain silent. He preserved and exhaustively exercised his right to appeal his conviction.
There is no conceivable procedural opportunity not afforded to Megrahi in the criminal trial that
would have caused a different result.
4.

The Judgment is Not Inconsistent With Other Prior
Judgments

Megrahi cannot claim that it would work an unfairness to him to apply collateral estoppel
due to inconsistencies with prior judgments in his favor because no such judgments exist.
Therefore, based on the standard set forth by the Supreme Court and the D.C. Circuit,
offensive collateral estoppel would be properly applied in this case to assert liability over
Defendant Abdel Baset Al-Megrahi based on his Scottish criminal conviction for the bombing of
PA103. The issue of Megrahi’s guilt for the murder of 270 individuals as a result of the
explosion aboard PA103 was fully litigated in the criminal trial. The issue of guilt for the

Bonnington’s characterization of this petition, it would mirror a petition for a writ of habeas corpus in the United
States. Such a petition, however, is a collateral attack on the conviction and would not render the judgment of the
trial court and the appellate court non-final.

10

murders was actually and necessarily determined by a court of competent jurisdiction. Finally,
the criminal conviction did not cause any unfairness to Megrahi.
II.

COLLATERAL ESTOPPEL DOES NOT OFFEND DEFENDANTS’ SEVENTH
AMENDMENT RIGHTS TO A TRIAL BY JURY
The Seventh Amendment accords the right to a trial by jury. Nevertheless, the lack of a

jury in the criminal trial that took place in the Netherlands does not rise to the level of a violation
of the defendants’ right to trial by jury in the present case. The D.C. Circuit has read the
Parklane Hosiery jurisprudence as stating that “[t]he presence or absence of a jury as factfinder
… in itself is a ‘basically neutral’ factor” in the collateral estoppel analysis. Whelan v. Abell,
953 F.2d 663, 669 (D.C. Cir. 1992) (citing Parklane Hosiery, 439 U.S. at 332 n.19). The Court
in Whelan actually implied that, had the findings of fact been made from the bench, then “we
might have greater reason to question the district court’s refusal to accord preclusive effect to
findings.” 953 F.2d at 669.
In the present case, three judges from the Scottish High Court of Justiciary came to a
unanimous opinion with regard to findings of fact based on evidence shown at trial. They
applied their legal acumen to the situation and assessed the evidence much in the same manner
that would be accomplished by a jury of peers. The findings were set forth in an 82-page
opinion that incorporated both findings of fact and also findings of law as to various forms of
evidence. Their opinion was subject to an appeal to the Appeal Court of the Scottish High Court
of Justiciary which affirmed the opinion of the three-judge trial panel.
The Libyan government, on Megrahi’s behalf, strenuously objected to any criminal
proceedings brought before a jury of Scottish or American citizens. This was one of the basis by
which Libya refused to extradite the defendants. These objections continued even though the
United Nations’ representatives concluded that “a trial by jury would not prejudice the accused’s

11

right to a free trial.” The U.N. Report also concluded, however, that if “the accused could
reasonably establish that their right to a free trial would be prejudiced by a jury trial, we suggest
that the idea of dispensing with a jury be pursued with the government of the United Kingdom.”
U.N. Report, Exh. D, at 15.
Libya, as suggested by the U.N. Report, petitioned the United Kingdom to permit the trial
to proceed before a panel of Scottish judges rather than a jury of Scottish citizens. The criminal
case was tried before a three-judge panel of the Scottish High Court of Justiciary based on
carefully negotiated agreements between the Governments of the United Kingdom and the
Socialist People’s Libyan Arab Jamahiriya. See Bonnington Declaration, Exh. B, at 7; Biehl
Declaration, Exh. C, at 4-5. Counsel for Defendant Megrahi opined that his client might wish to
avail himself of the trial by a jury process that is the norm for criminal cases before the Scottish
High Court of Justiciary. See Bonnington Declaration, Exh. B, at 11; Biehl Declaration, Exh. C,
at 5. However, the failure by Megrahi to request trial before a jury in his criminal prosecution
acted as a waiver to his right to trial by jury under the Scottish system. Therefore, it would be
error for counsel for Megrahi to now claim that failure to hold a jury trial in the Netherlands
before the Scottish court in the criminal prosecution would now work as a bar to collateral
estoppel in this action.
In addition, the Supreme Court of the United States has specifically held that the concept
of non-mutual offensive collateral estoppel, as a principle, does not violate the Seventh
Amendment’s right to a jury trial in the same manner that directed verdicts, retrial limited to the
question of damages, and summary judgment do not violate the Seventh Amendment. Parklane
Hosiery, 439 U.S. at 336-37. Therefore, there is no fear that the grant of summary judgment as

12

to Defendant Megrahi based on collateral estoppel would offend the principles of the Seventh
Amendment’s right to a trial by jury.
The protections afforded to Megrahi and Fhimah to waive their right to a trial by jury are
consistent with the protections afforded to defendants in the United States. In the United States,
a defendant’s only constitutional right concerning the method of trial is to an impartial trial by
jury. Patton v. United States, 281 U.S. 276 (1930), holds that a criminal defendant in a federal
case may waive his right to a trial by jury, but that there is no constitutional barrier to
conditioning a waiver of this right on the consent of both the trial judge and the jury. The
Supreme Court, in Singer v. United States, 380 U.S. 24 (1965), stated that Rule 23 of the Federal
Rules of Criminal Procedure sets forth a reasonable procedure governing an attempted waiver of
a jury trial. The Rule provides that the waiver must be in writing, that the government must
consent, and that the court must approve of the waiver. See Fed. R. Crim. P. 23. All of the
protections were afforded to Megrahi and Fhimah. The details of the agreement to permit a trial
before a panel of judges were presented in writing and required a special act of Council. All the
parties agreed to the special provision after months of negotiation. Moreover, the trial court
approved of the procedure and the issue was never raised on appeal.
It would certainly be a strange twist of fate, were defendant to argue now, after his
employer and government negotiated on his behalf for years for the right to a trial before a panel
of judges, for Megrahi to state that the very right he fought so hard to obtain was unfair. See also
O’Sullivan Declaration, Exh. E, at 6-11, for a discussion of the right to trial by jury in American
jurisprudence and how Megrahi’s trial without a jury does not offend this jurisprudence.

13

III.

MEGRAHI IS ESTOPPED BASED ON PRINCIPLES OF INTERNATIONAL
COMITY FROM RELITIGATING ISSUES ALREADY FULLY AND FAIRLY
LITIGATED IN THE SCOTTISH CRIMINAL COURT
It is undisputed that Defendant Megrahi was indicted, tried and convicted for the murder

of 270 individuals, including Plaintiffs’ husband and father, as a result of the bombing of PA103
on December 21, 1988.

The charges alleged against Defendant Megrahi in the Scottish

indictment mirror the allegations alleged against Megrahi in the Complaint in this civil action.
Megrahi will likely argue that the criminal conviction rendered by the Scottish High Court of
Justiciary on January 31, 2001, which was affirmed by a five-judge panel of the Appeal Court of
the Scottish High Court of Justiciary on March 14, 2002, is not entitled to full faith and credit in
the United States.
The Supreme Court of the United States has stated the following with regard to according
comity to a foreign judgment in domestic federal courts:
'Comity,' in the legal sense, is neither a matter of absolute obligation, on
the one hand, nor of mere courtesy and good will, upon the other. But it is
the recognition which one nation allows within its territory to the
legislative, executive, or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of its
own citizens, or of other persons who are under the protection of its laws.
Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).
Though application of comity as a method of estoppel in domestic courts is a matter of
discretion, the Court has also stated that such judgments are enforceable
where there has been opportunity for a full and fair trial abroad before a
court of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the defendant,
and under a system of jurisprudence likely to secure an impartial
administration of justice between the citizens of its own country and those
of other countries, and there is nothing to show either prejudice in the
court, or in the system of laws under which it is sitting.
Hilton, 159 U.S. at 202-03.

14

The D.C. Circuit has adopted the reasoning of the Supreme Court in Hilton as the
governing case with regard to international comity issues. See Laker Airways, Ltd. v. Sabena,
Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984); Tahan v. Hodgson, 662 F.2d 862 (D.C.
Cir. 1981); see also In re Arbitration Between Int’l Bechtel Co., Ltd. and Dep’t of Civil Aviation
of Gov’t of Dubai, 300 F. Supp.2d 112 (D.D.C. 2004).
The application of comity to the criminal conviction of Defendant Megrahi is appropriate
according to the test set forth in Hilton and as demonstrated by the Bonnington, Biehl, and
O’Sullivan Declarations.
Professor Bonnington was a member of the Lockerbie Trial Briefing Unit at the Glasgow
University School of Law in Glasgow, Scotland.

As set forth in Professor Bonnington’s

affidavit, the Lockerbie Trial Briefing Unit was established to provide information to the press
and the public on Scottish procedural law as it pertained to the criminal trial of defendants
Megrahi and Fhimah before a Scottish court in the Netherlands.

Furthermore, Professor

Bonnington is an Honorary Professor of Law at the Glasgow University School of Law and
served as a post-graduate lecturer in criminal procedure.
Mr. Biehl is currently employed as senior litigation counsel in the Counterterrorism
Section of the United States Department of Justice. He has served as a prosecuting attorney
within the Department of Justice for 30 years. Prior to occupying his current position, Mr. Biehl
was Deputy Chief for International Terrorism in the Terrorism and Violent Crime Section of the
Department of Justice where his case load included the investigation and indictment of the
bombing of Pan Am 103 over Lockerbie Scotland. In 1989, Mr. Biehl was tasked to the grand
jury investigation into the bombing of PA103 and, in 1991, he was responsible for issuing the
U.S. indictment against Megrahi and Fhimah. From 1999 until 2000, he was detailed to the

15

Crown Prosecution Office of Scotland as a member of the Lockerbie prosecution team at Kamp
van Zeist in the Netherlands. Mr. Biehl directly participated as part of the Scottish Crown Office
Trial Team in the criminal proceedings at Kamp van Zeist in the Netherlands. Based on his
extensive prosecutorial experience in American courts and his intimate involvement with the
investigation in the bombing of PA103 and the interviewing of witnesses and review of evidence
in that case, Mr. Biehl is properly suited to provide his expert opinion on this subject.
Professor Julie O’Sullivan is currently a tenured professor of criminal law at the
Georgetown University Law Center in Washington, D.C. After graduating from Cornell Law
School, Professor O’Sullivan worked as a law clerk for the Hon. Levin H. Campbell, Chief
Judge of the United States Court of Appeals for the First Circuit prior to serving as a law clerk to
Justice Sandra Day O’Connor of the United States Supreme Court. After working as a whitecollar criminal-defense attorney in New York, in 1991, Professor O’Sullivan became an
Assistant United States Attorney in the Criminal Division of the United States Attorneys’ Office
for the Southern District of New York. Since joining the full-time faculty at Georgetown in
1994, Professor O’Sullivan has taught courses in criminal procedure, advanced criminal
procedure, substantive criminal law, federal white-collar criminal law, and international criminal
law.
In the present case, as affirmed by Professor Bonnington, Mr. Biehl, and Professor
O’Sullivan, Megrahi was afforded rights and protections consistent with similarly situated
defendants in the United States. In fact, in some circumstances, Megrahi was provided with even
greater protections vis-à-vis the Scottish criminal law system than he would have been afforded
in the United States. See Bonnington Declaration, Exh. B, at 17; Biehl Declaration, Exh. C, at 46; O’Sullivan Declaration, Exh. E, at 5, 13, 16, 17.

16

•

Megrahi was made aware of the charges against him by means of a formal indictment
filed by the Scottish authorities. Bonnington Declaration, Exh. B, at 9.

•

Megrahi was appointed a Scottish legal adviser more than a year prior to the
commencement of the trial. Bonnington Declaration, Exh. B, at 12.

•

Megrahi was entitled to a speedy trial; however, he opted to continue the trial date on
multiple occasions as was his right. Bonnington Declaration, Exh. B, at 12; Biehl
Declaration, Exh. C, at 4.

•

Pursuant to Scottish criminal law, Megrahi was presumed to be innocent. Bonnington
Declaration, Exh. B, at 3-4; Biehl Declaration, Exh. C, at 4.

•

The prosecution bore the burden of proof as to guilt. Bonnington Declaration, Exh. B, at
4; Biehl Declaration, Exh. C, at 4.

•

The standard of proof to be applied in Scottish criminal law is that of “beyond a
reasonable doubt.” Bonnington Declaration, Exh. B, at 4; see also Statement of Material
Facts, Exh. A, at 75 (“before either could be convicted we would have to be satisfied
beyond reasonable doubt as to his guilt and that evidence from a single source would be
insufficient”).

•

Scottish criminal law requires that “all of the important elements of the crime libeled
against” a defendant be corroborated by evidence from two separate sources. Bonnington
Declaration, Exh. B, at 4-5.

•

In addition to guilty and not guilty, the Scottish criminal law system has a third verdict
option of “not proven” that works as an acquittal for a defendant. Bonnington
Declaration, Exh. B, at 5-6.2

•

Megrahi possessed the right for his trial to be decided by a factfinding jury of 15 Scottish
citizens; however, negotiations between the governments of the United Kingdom and the
Socialist People’s Libyan Arab Jamahiriya resulted in the compromise that, to avoid
prejudice against the Libyan citizen defendants, the trial would be held without a jury and
presided over by a panel of three Scottish judges. Bonnington Declaration, Exh. B, at 67; Biehl Declaration, Exh. C, at 4-5.3

•

At trial, Megrahi was permitted to cross-examine each witness proffered by the
prosecution. Bonnington Declaration, Exh. B, at 9; Biehl Declaration, Exh. C, at 4.

2

The verdict of “not proven” was established as to Defendant Fhimah based on a failure by the Crown to provide
corroborative evidence of his guilt.
3
The insistence on the trial being held without a jury came from the Libyan government. As Professor Bonnington
states in his affidavit, as a result of this insistence, an Order in Council was issued by the Queen in Council in
September 1998 allowing that the trial would be held in the Netherlands pursuant to Scottish law before a panel of
three Scottish judges. Exh. B, at 7-8; see also Exh. B, Exh. 8.

17

•

The prosecution was prohibited from posing leading questions to its witnesses; however,
Megrahi was permitted to pose leading questions to these same witnesses on crossexamination. Bonnington Declaration, Exh. B, at 9.

•

Prior to trial, Scottish criminal law permits depositions of witnesses under oath known as
precognitions on oath. Bonnington Declaration, Exh. B, at 10.

•

The verdict of guilty issued by the trial court as to Megrahi was unanimous. Bonnington
Declaration, Exh. B, at 12.

•

After his conviction, Megrahi possessed a right to appeal his conviction to the Appeal
Court of the Scottish High Court of Justiciary. Bonnington Declaration, Exh. B, at 13.

•

Megrahi availed himself of the appeal process, and introduced new evidence of his
innocence. Nevertheless, his appeal before the Appeal Court of the Scottish High Court
of Justiciary was denied. Bonnington Declaration, Exh. B, at 13-14; Biehl Declaration,
Exh. C, at 3.

•

Had Megrahi alleged that his trial had been unfair, he possessed the right to appeal to the
Privy Council of the European Convention of Human Rights; however, he did not so
appeal. Bonnington Declaration, Exh. B, at 14-15.

•

Megrahi was afforded right to counsel and was represented by competent Scottish
counsel at trial. Bonnington Declaration, Exh. B, at 12; Biehl Declaration, Exh. C, at 4.
In short, Megrahi was afforded a full and fair opportunity to litigate his claims of

innocence before Scottish High Court of Justiciary sitting at Kamp van Zeist in the Netherlands.
The trial was conducted upon regular proceedings over the course of a two-year period including
Megrahi’s appeal. Megrahi was provided due citation of the charges against him in the form of a
written indictment. The Scottish criminal justice system was likely to “secure an impartial
administration of justice between the citizens of its own country and those of other countries” in
accordance with the precepts set forth in Hilton. Finally, there is no showing that the
administration of the Scottish criminal laws against Megrahi was prejudicial. See generally,
O’Sullivan Declaration, Exh. E, for information regarding the accord with American due process
considerations in the Scottish criminal trial and appeal.

18

At trial, the prosecutor called 231 witnesses, of which 132 were cross-examined by
counsel for Megrahi and Fhimah. Furthermore, counsel for the defense called 3 witnesses of
their own in order to raise a reasonable doubt in the minds of the panel of three judges. Megrahi
has vigorously attested his innocence; however, where the defendant possessed a full and fair
opportunity to litigate in the first instance, “‘the merits of the case should not, in an action
brought in this country upon the judgment, be tried afresh, as on a new trial or on appeal, upon
the mere assertion of the party that the judgment was erroneous in law or in fact.’” Tahan v.
Hodgson, 662 F.2d at 864 quoting Hilton, 159 U.S. at 158-59.
Even if Megrahi was successful in arguing that he was not afforded every due process
protection guaranteed in the United States, the factual findings beyond a reasonable doubt should
be accorded comity and collateral estoppel should apply.
The Tenth Circuit has upheld an Iranian conviction for murder where the individual
against whom the conviction was obtained claimed various due process violations including
failure to deliver Miranda warnings and that she was subjected to “continual torture and abuse”
during her pre-trial detention. Cooley v. Weinberger, 518 F.2d 1151, 1153 (10th Cir. 1975). The
Court concluded:
In the instant case, after listening to Mrs. Cooley’s version of events, and
after consideration of the opinion of the Iranian appellate tribunal, the
statements made by Mrs. Cooley’s Iranian lawyer, and other documentary
evidence before him, the administrative law judge found, in effect, that
the procedure followed in Iran was not “so shocking to the forum
community that it cannot be countenanced.” We think there is substantial
evidence to support this finding and we are not inclined to disturb it.
Gardner v. Bishop, 362 F.2d 917 (10th Cir. 1966). The fact that Iranian
procedures may not be consistent with due process protections guaranteed
in United States criminal proceedings will not in itself prevent effect
being given a judgment rendered in Iran in accord with Iranian law. See
United States v. Mundt, 508 F.2d 904 (10th Cir. 1974), and Holmes v.
Laird, 148 U.S.Exh.D.C. 187, 459 F.2d 1211 (1972).

19

In the case against Megrahi, he has not alleged torture or duress of any kind. He was
convicted in a process that comported with Scottish law and delivered by a Scottish court. In his
appeal to the Appeal Court of the High Court of Justiciary, the Court stated the following
regarding Megrahi’s grounds for appeal which were denied:
[4] In support of his appeal the appellant has tabled a considerable
number of grounds of appeal. At the trial it was not submitted on the
appellant’s behalf that there was insufficient evidence in law to convict
him. In its judgment the trial court rejected certain parts of the evidence
relied upon by the Crown at the trial. Nevertheless, it was not contended
in the appeal that those parts of the evidence not rejected by the trial court
did not afford a sufficient basis in law for conviction. A few of the
grounds of appeal maintain that the evidence was not of such character,
quality or strength to enable a certain conclusion to be drawn or to justify
a particular finding. However, the great majority of the grounds are
directed to the trial court’s treatment of the evidence and defence
submissions. More specifically it is maintained that the trial court
misinterpreted evidence, had regard to “collateral issues” and wrongly
treated certain factors as supportive of guilt. It is also said that in regard to
certain matters it failed to give adequate reasons. In many cases it is
maintained that it failed to take proper account of, or have proper regard
to, or give proper weight to, or gave insufficient weight to, certain
evidence, factors or considerations. It is also maintained that the trial
court misunderstood, or failed to deal with, or properly take account of,
certain submissions for the defence. In one of the grounds of appeal the
appellant seeks to found on the existence and significance of evidence
which was not heard at the trial.
Exh. A, at 6. After an extensive hearing on appeal, including the introduction and review of new
evidence offered by the defendant to prove his innocence, the Appellate Court denied Megrahi’s
appeal in a lengthy opinion.
Megrahi has been afforded all appropriate procedural mechanisms within the Scottish
criminal justice system. Nevertheless, he has failed to obtain a judgment in his favor, and his
conviction continues to stand. Therefore, if he argues that his due process rights were violated
through a procedure that is uniform within the Scottish criminal justice system, then he will not
be afforded relief from the application of comity to his case.

20

Therefore, on the basis of international comity, the Scottish criminal conviction is entitled to
estoppel effect against Megrahi’s attempts to relitigate his guilt, and summary judgment should
be awarded to Plaintiffs against Megrahi.
IV.

ACCORDING ESTOPPEL EFFECT OR COMITY TO MEGRAHI’S CRIMINAL
CONVICTION FAVORS JUDICIAL EFFICIENCY
Megrahi’s criminal trial consisted of eighty-four days of testimony before the Court at

great expense to both the United Kingdom and the United States who jointly prosecuted the
action. One of the objectives of offensive collateral estoppel and international comity is to
encourage judicial economy. See Parklane Hosiery, 439 U.S. at 326. The essential elements of
Plaintiffs’ case have been argued and decided in criminal prosecution in the Netherlands. To
require the parties to relitigate the case would work an unfairness upon Plaintiffs who would be
forced to bear the expense of relitigation. Such unfairness would be prejudicial to Plaintiffs in
the sense that the costs of relitigation including travel expenses for witnesses who have already
testified under oath in the criminal proceedings and obtaining depositions abroad for those who
are unable to attend trial would be highly burdensome. Nevertheless, Plaintiffs believe that the
issues of collateral estoppel and international comity are ripe for consideration and that Plaintiffs
shall prevail.
V.

ESTOPPEL EFFECT OF THE DECISION ON THE LIBYAN GOVERNMENT
DEFENDANTS AND FHIMAH
In addition to providing collateral estoppel as to Megrahi on the issue of liability, the

Scottish criminal proceedings also established Megrahi as an agent of the Socialist People’s
Libyan Arab Jamahiriya (“Libya”). The decision of the Scottish High Court of Justiciary at the
trial stage states:
We accept the evidence that [Megrahi] was a member of the [Jamahiriya
Security Organization], occupying posts of fairly high rank. One of these

21

posts was head of airline security, from which it could be inferred that he
would be aware at least in general terms of the nature of security
precautions at airports from or to which [Libyan Arab Airlines] operated.
He also appears to have been involved in military procurement.
See Statement of Material Facts, Exh. A, at 80.
Megrahi’s status as an agent of Libya is further solidified by a public letter issued to the
President of the United Nations Security Council by the chargé d’affaires of the Libyan
Permanent Mission to the United Nations on August 15, 2003, which states that Libya has
cooperated with the international community with regard to combating terrorism and “Has
facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103
and accepts responsibility for the actions of its officials.” United Nations Security Council Doc.
S/2003/818, Letter dated 15 August 2003 from the Chargé d’affaires a.i. of the Permanent
Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the
Security Council, August 15, 2003. This qualifies as a statement against interest in that Libya
has claimed, post-conviction of Megrahi, that he is/was an agent and official of Libya at the time
of the acts in question.
In conjunction with the findings of fact established by the Scottish High Court of
Justiciary that Megrahi was an agent of Libya in his capacity as a member of the JSO in the post
of airline security and his role in military procurement, Plaintiffs request the Court to find that
Libya cannot now argue that Megrahi was not its agent. Libya negotiated the terms of Megrahi’s
trial and surrender. Further proof of the official and agency relationship between Megrahi and
Libya is the Libyan guaranty to pay any judgments against Megrahi or Fhimah which are
unsatisfied by the individuals. The presence of this guaranty – made to the United Nations – is

22

an admission by Libya that Megrahi and Fhimah were agents of Libya at the time of the events
alleged in the Complaint.4

CONCLUSION
For the foregoing reasons, Plaintiffs hereby request that summary judgment be granted as
to Defendant Megrahi on the basis of collateral estoppel and/or international comity. Plaintiffs
further request that Libya be estopped from denying the agency relationship that it held with
Megrahi. Plaintiffs respectfully submit they should not be required to relitigate issues that were
fully determined and decided by the Scottish High Court of Justiciary in the criminal trial.

Respectfully submitted,

Dated: June 3, 2005

_/S/________________________________
Ronald L. Motley, Esq.
Donald A. Migliori, Esq.
Jodi W. Flowers, Esq.
Mary F. Schiavo, Esq.
Michael Elsner, Esq.
Elizabeth Smith, Esq.
Justin B. Kaplan, Esq.
John M. Eubanks, Esq.
MOTLEY RICE LLC
28 Bridgeside Blvd.

4

Though Fhimah was acquitted by the Scottish High Court of Justiciary, Plaintiffs intend to show that, under a
burden of proof that does not require a showing beyond a reasonable doubt (or multiple corroborating evidence prior
to admissibility of evidence) but rather a showing of preponderance of the evidence, Fhimah may be found liable
based on the record established in the Scottish criminal proceedings. As such, Plaintiffs seek to obtain leave of this
Court to allow the record of the Scottish criminal proceedings to be entered into evidence and to passed upon as
evidence in these proceedings. If Fhimah was given the opportunity to rebut evidence and that opportunity was
passed upon in the criminal trial, Plaintiffs respectfully request that Fhimah be estopped from relitigating these
issues in this Court when they could have been litigated previously in the court of first instance. By Order of this
Court dated March 8, 2005, Fhimah was required to file his answer to the Complaint by April 15, 2005. Counsel for
Fhimah requested an additional ten days to file an answer through a written request from Megrahi’s counsel to
Plaintiffs which stated, “The General Counsel wrote to us today if she could have 10 more days to arrange for the
filing of Fhimah’s Answer apparently because of the need for travel and the language difference.” Letter from
Dante Mattioni to Jodi Westbrook Flowers, April 15, 2005. Plaintiffs' agreed to this request, but also responded that
irrespective of Plaintiffs' position leave of Court was required to further expand this date. No such leave of Court
was sought. In that Fhimah has defaulted by failing to answer as ordered, this issue may be moot.

23

Mt. Pleasant, SC 29464
[phone]
Fax: [phone]
Attorneys for Plaintiffs

24