HAGERMAN et al v. THE SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA

Filing 61

Memorandum in opposition to re 60 MOTION Motion for Relief from Judgment and Stay of Proceedings re Notice of Corrected Docket Entry, filed by ALL PLAINTIFFS. (Netburn, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
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ETHEL HURST, et al.,
Plaintiffs,

02 Civ. 2147 (HHK)

-against-

THE SOCIALIST PEOPLE'S LIBYAN ARAB
JAMAHIRIYA, et al.,
Defendants.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT AL-MEGRAHI’S
MOTION FOR RELIEF FROM JUDGMENT AND STAY OF PROCEEDINGS

Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20th Floor
New York, New York 10019
[phone]
Attorneys for Plaintiffs

Plaintiffs respectfully submit this memorandum of law in opposition to the motion
of Defendant Abdel-Basset Ali Al-Megrahi (“Al-Megrahi”) to vacate the partial summary
judgment that this Court entered against him on February 1, 2007 and for an indefinite stay of all
further proceedings in this case.
Al-Megrahi argues that this Court should take no further action in this case, and
should vacate the partial summary judgment it already entered against him, because the Scottish
Criminal Cases Review Commission (the “Commission”) recently referred his criminal
conviction to the Scottish High Court of Justiciary for further review. Al-Megrahi’s motion lacks
merit and should be rejected for two reasons: (1) his conviction indisputably has not been
vacated and remains in full force and effect; and (2) the law is clear that collateral estoppel
continues to apply where a criminal conviction remains subject to an ongoing appeal.
There is no doubt that the Commission did not vacate Al-Megrahi’s conviction for
the murders of Plaintiffs’ family members. Rather, the Commission merely referred the
conviction – which remains in full force and effect – to the Scottish High Court of Justiciary for
further review. See Scottish Criminal Cases Review Commission News Release (June 28, 2007)
(appended to Al-Megrahi’s motion as Exhibit A), at 11 (“The consequence of a reference is that
the High Court hears an appeal in the case.”); see also Commission Website, Frequently Asked
Questions, available at <<http://www.sccrc.org.uk/frequentlyaskedquestions
.aspx>> (“Q. Once a case is referred does it mean that the conviction is quashed? A. No. Once
the Commission refers a case it still has to go through the appeal process at the High Court. The
High Court will determine whether or not the conviction should be quashed or the sentence
reduced.”).
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It is firmly established that the existence of an ongoing appeal of a criminal
conviction does nothing to alter the collateral estoppel effect of that conviction unless and until it
is vacated. See, e.g., Smith v. SEC, 129 F.3d 356, 362 n.7 (6th Cir. 1997); U.S. v. Intl.
Brotherhood of Teamsters, 905 F.2d 610, 621 (2d Cir. 1990); Webb v. Voirol, 773 F.2d 208, 211
(8th Cir. 1985); SEC v. Blackwell, 477 F. Supp. 2d 891, 901 (S.D. Ohio 2007); Chicago Ins. Co.
v. Fasciana, 2006 WL 3714310, at *4 (S.D.N.Y. 2006); SEC v. Namer, 2004 WL 2199471, at *8
(S.D.N.Y. 2004); SEC v. Pace, 173 F. Supp. 2d 30, 33 (D.D.C. 2001); see also RESTATEMENT
(SECOND) OF JUDGM ENTS § 13, cmt. f (1982); Wright, Miller & Cooper, FEDERAL PRACTICE &
PROCEDURE , Jurisdiction 2d § 4433 (Supp. 2007).
Because the Commission’s referral did not vacate Al-Megrahi’s conviction but
rather merely entitles him to further appeal, Al-Megrahi plainly is not entitled to relief from the
partial summary judgment that the Court previously entered against him.
Al-Megrahi also asks the Court to stay this litigation in its entirety pending a
decision by the High Court of Justiciary. Tellingly, he cites no authority in support of his stay
application, nor are we aware of any. To the contrary, courts regularly use mechanisms far less
disruptive to civil litigation than an indefinite stay when a defendant who has been collaterally
estopped based on a criminal conviction is pursuing an ongoing appeal of that conviction. See,
e.g., Chicago Ins. Co., 2006 WL at *4 (“I will retain jurisdiction to revisit the [collateral
estoppel] issue if, in fact, the conviction is reversed on appeal.”); SEC v. Blackwell, 477 F. Supp.
at 901 (“In the event that their criminal conviction is overturned, Defendants may invoke Rule
60(b) of the Federal Rules of Civil Procedure and obtain relief from the civil judgment.”). In the
meantime, the law is clear that Plaintiffs are entitled to proceed to trial.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ respectfully submit that Al-Megrahi’s
motion to vacate the entry of summary judgment and for a stay should be denied.

Dated: August 15, 2004

EMERY CELLI BRINCKERHOFF &
ABADY LLP
_____________/s/_________________
Richard D. Emery
Eric Hecker
Sarah Netburn
75 Rockefeller Plaza, 20th Floor
New York, NY 10019
[phone]
MARK S. ZAID, P.C.
Mark S. Zaid (DC Bar # 440532)
1920 N Street, N.W., Suite 300
Washington, D.C. 20036
[phone]
Attorneys for Plaintiffs

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