HAGERMAN et al v. THE SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA
Filing
78
SECOND AMENDED COMPLAINT against SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, LIBYAN EXTERNAL SECURITY ORGANIZATION, LIBYAN ARAB AIRLINES, ABDEL BASSET ALI AL-MEGRAHI, LAMEN KHALIFA FHIMAH, JOHN DOES #1-20 filed by ETHEL HURST, SPENCER HURST, MITCHELL HURST, SHARON HURST, ALL PLAINTIFFS, MARY DIAMOND, GWENNTH FORDE, VICTORIA PORTER, OLGA HUSBANDS, VERNON DRUSES, RANDOLPH PORTER, JAMES MULROY.(nmw, )
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
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ETHEL HURST, individually and as personal
representative of the Estate of Eugene Hurst;
939 Fountain Run, Naples, FL 34119;
SPENCER HURST; 718 Rojean Ct.,
Ellisville, MO 63021;
MITCHELL HURST; 1555 Royal Blvd.,
Glendale, CA 91207;
SHARON HURST DUROSS; 770 Eagle Creek,
Drive, Naples, FL 34113;
MARY DIAMOND; c/o Michelle Porter,
570 E. 93rd Street, Brooklyn, NY 12236;
GWENNTH FORDE; P.O. Box 1483,
St. Vincent, W.I.;
VICTORIA PORTER; c/o Michelle Porter,
570 E. 93rd Street, Brooklyn, NY 12236;
OLGA HUSBANDS; Michelle Porter,
570 E. 93rd Street, Brooklyn, NY 12236;
VERNON DRUSES; Michelle Porter,
570 E. 93rd Street, Brooklyn, NY 12236;
RANDOLPH PORTER; Michelle Porter,
570 E. 93rd Street, Brooklyn, NY 12236; and
JAMES MULROY; 84 Hill View Crescent Banbury,
Oxon, United Kingdom, OX161BP,
-againstTHE SOCIALIST PEOPLE'S LIBYAN ARAB
JAMAHIRIYA; LIBYAN EXTERNAL SECURITY
ORGANIZATION; LIBYAN ARAB AIRLINES;
ABDEL BASSET ALI AL-MEGRAHI; LAMEN
KHALIFA FHIMAH; and JOHN DOES # 1-20,
Defendants.
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02 CIV 2147 (HHK)
SECOND AMENDED
COMPLAINT
Plaintiffs Ethel Hurst, individually and as personal representative of the Estate of Eugene
Hurst, Spencer Hurst, Mitchell Hurst, Sharon Hurst Duross, Mary Diamond, Gwennth Forde,
Victoria Porter, Olga Husbands, Vernon Druses, Randolph Porter, and James Mulroy
("plaintiffs"), as and for their Second Amended Complaint allege as follows:
1. This is a proceeding for monetary damages arising out of the terrorist bombing of Pan
American Flight 103 ("Pan Am Flight 103") by the defendant, the Socialist People's
Libyan Arab Jamahiriya, its instrumentalities, agents and employees.
THE PARTIES
2. Plaintiff Ethel Hurst is a citizen of the United States who resides in Naples, FL. She is
the mother of Roger Hurst, who was killed while an airline passenger in the terrorist
bombing of Pan Am Flight 103. She is the widow and personal representative of Eugene
Hurst, who was the father of Roger Hurst, and who died in 1994, after the bombing of
Pan Am Flight 103.
3. Plaintiff Spencer Hurst is a citizen of the United States who resides in Ellisville, MO. He
is the brother of Roger Hurst, who was killed while an airline passenger in the terrorist
bombing of Pan Am Flight 103.
4. Plaintiff Mitchell Hurst is a citizen of the United States who resides in Glendale, CA. He
is the brother of Roger Hurst, who was killed while an airline passenger in the terrorist
bombing of Pan Am Flight 103.
5. Plaintiff Sharon Hurst Duross is a citizen of the United States who resides in Naples, FL.
She is the sister of Roger Hurst, who was killed while an airline passenger in the terrorist
bombing of Pan Am Flight 103.
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6. Plaintiff Mary Diamond is a citizen of the United States who resides in Brooklyn, New
York. She is the mother of Walter Porter, who was killed while an airline passenger in
the terrorist bombing of Pan Am Flight 103.
7. Plaintiff Gwenneth Forde is a citizen of the United States who resides in St. Vincent,
West Indies. She is the sister of Walter Porter, who was killed while an airline passenger
in the terrorist bombing of Pan Am Flight 103.
8. Plaintiff Victoria Porter is a citizen of the United States who resides in Brooklyn, New
York. She is the sister of Walter Porter, who was killed while an airline passenger in the
terrorist bombing of Pan Am Flight 103.
9. Plaintiff Olga Husbands is a citizen of the United States who resides in Brooklyn, New
York. She is the sister of Walter Porter, who was killed while an airline passenger in the
terrorist bombing of Pan Am Flight 103.
10. Plaintiff Vernon Druses is a citizen of the United States who resides in Brooklyn, New
York. He is the brother of Walter Porter, who was killed while an airline passenger in the
terrorist bombing of Pan Am Flight 103.
11. Plaintiff Randolph Porter is a citizen of the United States who resides in Brooklyn, New
York. He is the brother of Walter Porter, who was killed while an airline passenger in the
terrorist bombing of Pan Am Flight 103.
12. Plaintiff James Mulroy is a citizen of Great Britain who resides in Oxon, United
Kingdom. He is the brother of John Mulroy and the brother of Bridget Concannon, both
of whom were killed while airline passengers in the terrorist bombing of Pan Am Flight
103.
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13. Defendant the Socialist People's Libyan Arab Jamahiriya ("Libya") is a foreign state, as
defined in 28 U.S.C. § 1603(a), located in northern Africa.
14. Defendant Libyan External Security Organization, a/k/a Jamahiriya Security
Organization ("JSO"), is an agency or instrumentality of Libya. The JSO is the Libyan
intelligence service through which Libya conducted acts of extrajudicial killing, aircraft
sabotage and other acts of terrorism, including the acts of extrajudicial killing and aircraft
sabotage alleged herein.
15. Defendant Libyan Arab Airlines ("LAA") is an agency or instrumentality of Libya. The
LAA is an airline owned by Libya and operated as a commercial enterprise of Libya.
LAA actively and knowingly participated in its government's terrorist activities,
including the acts of extrajudicial killing and aircraft sabotage alleged herein.
16. Defendants Abdel Basset Ali Al-Megrahi, a/k/a Abdelbaset Ali Mohmed, a/k/a
AbdelBaset Ali Mohmed Al Megrahi, a/k/a "Mr. Baset," a/k/a Ahmed Khalifa
Abdusamad, and a/k/a Abd al-Basit al-Megrahi ("Al-Megrahi"), and Lamen Khalifa
Fhimah, a/k/a Al Amin Khalifa Fhimah and a/k/a "Mr. Lamin" ("Fhimah") are citizens of
Libya and are intelligence agents or officials of Libya and its intelligence service and at
times during the perpetration of the terrorist acts alleged herein were or continue to be
employees of the LAA. At all relevant times, Al-Megrahi and Fhimah acted in both their
official and personal capacities.
17. Defendants John Does #1-20 are employees, agents, and/or representatives of the JSO
who actively and knowingly participated in Libya's terrorist activities, including, without
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limitation, having commanded, ordered, supervised, and funded the bombing of Pan Am
Flight 103.
OTHER RELEVANT PERSONS
18. At all relevant times, Pan American World Airways, an airline corporation registered
under 49 U.S.C. § 20, provided commercial passenger air service between the United
States and Europe. In December 1988, Pan American World Airways operated a leased
civil aircraft bearing number N739PA. The civil aircraft bearing number N739PA was
registered with the Federal Aviation Administration pursuant to federal law and operated
within the special aircraft jurisdiction of the United States. On December 21, 1988, the
civil aircraft bearing number N739PA was designated by Pan American World Airways
as Flight 103 ("Pan Am Flight 103").
JURISDICTION AND VENUE
19. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1330, 1331, 1332(a)(2),
1350, and 18 U.S.C. § 2333(a). Jurisdiction is also invoked pursuant to 18 U.S.C. § 7 et
seq., commonly known as the Special Maritime and Territorial Jurisdiction Act.
20. Libya, the JSO, LAA and the individual defendants are subject to suit in the courts of the
United States pursuant to 28 U.S.C. §§ 1330, 1605(a)(7), 1605A, 1605 note and
18 U.S.C. § 2333(a).
21. Venue is proper in the United States District Court for the District of Columbia pursuant
to 28 U.S.C. § 1391(f)(4).
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FACTUAL ALLEGATIONS
22. On December 21, 1988, Roger Hurst, Walter Porter, John Mulroy, and Bridget
Concannon were passengers on board Pan Am Flight 103. The flight, which originated in
Frankfurt, Germany, departed London, U.K. bound for New York's John F. Kennedy
Airport.
23. At approximately 7:03 p.m. GMT, an explosive device in a suitcase placed by AlMegrahi, Fhimah and unknown others detonated. As a result of the explosion, the
aircraft broke apart in Scottish airspace while at an attitude of 31,000 feet and then
crashed to the ground.
24. All passengers and crew on board were killed. Eleven residents of the Scottish town of
Lockerbie were also killed by falling debris.
25. The bomb which caused the crash of Pan Am Flight 103 was placed on board the aircraft
and detonated by and at the direction of Libya, acting through agents of the JSO,
including Al-Megrahi, Fhimah, and John Does # 1-20. Agents of the JSO, including John
Does #1-20, acting on behalf and at the direction of Libya, arranged to smuggle the bomb
on to Pan Am Flight 103 through Libya's airline facilities in Malta. Fhimah and AlMegrahi, with unknown others, including John Does #1-20, constructed an improvised
explosive device consisting of plastic explosives containing the substances RDX and
PETN, which had been purchased by Libya and provided to them by the JSO, and an
MST-13 prototype digital electronic timer, which had been specially manufactured for
and purchased by Libya.
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26. This explosive device was placed and purposely concealed inside a portable Toshiba
radio cassette player which was then packed inside the large, brown Samsonite suitcase
brought to Malta by Fhimah and Al-Megrahi.
27. The JSO used the LAA to perpetrate and facilitate this terrorism. Covert intelligence
operatives in the employ of the JSO and LAA, including Al-Megrahi and Fhimah, had
access to the luggage-handling facilities of Air Malta and arranged to have the bomb sent
to and placed on board Pan Am Flight 103.
28. Immediately after the bombing, news reports were broadcast throughout the United States
and the world, to which plaintiffs were subjected, depicting the tragedy. Images
depicting the tragedy included the burning plane, the wreckage of the site, and the
recovery of the bodies. Such broadcasts continued for 24-hours a day for several days
following the bombing.
29. Many family members traveled to the scene at Lockerbie in the days and weeks that
followed the bombing of Pan Am Flight 103.
30. On or about November 14, 1991, the United States and the United Kingdom
simultaneously and in conjunction with each other filed criminal indictments against AlMegrahi and Fhimah in their capacity as Libyan agents, charging them with planning and
implementing the deliberate destruction of Pan Am Flight 103 and the deaths of the 270
persons.
31. On January 31, 2001, defendant Al-Megrahi was convicted of murder of the passengers
and crew on board Pan Am Flight 103, as well as the residents of Lockerbie who were
killed by falling debris. The Scottish High Court of Justiciary at Camp Zeist issued its
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opinion in Her Majesty's Advocate v. Abdelbaset Ali Mohamed Al Megrahi and Al Amin
Khalifa Fhimah, Prisoners in the Prison of Zeist, Camp Zeist (Kamp van Zeist), The
Netherlands, Case No. 1475/99. The Court applied the criminal standard that "before
either [Al-Megrahi or Fhimah] 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." The Court unanimously found Al-Megrahi guilty of 270 counts of murder.
The Court acquitted Fhimah due to "insufficient corroboration for any adverse inference
that might be drawn from" certain circumstantial evidence.
32. The Appeal Court of the Scottish High Court of Justiciary unanimously affirmed alMegrahi’s conviction on March 14, 2002.
33. Plaintiffs incorporate by reference the decision issued by the Scottish High Court of
Justiciary, including all findings of fact concluded therein, as well as the decision issued
by the Appeal Court of the Scottish High Court of Justiciary.
34. The governments of the United States and the United Kingdom have concluded and
affirmed that Libya bears full responsibility, through its acts and those of its
instrumentalities and agents, for the deliberate destruction of Pan Am Flight 103.
35. Libya has guaranteed payment of any judgments entered against Al-Megrahi and/or
Fhimah for the terrorist bombing of Pan Am Flight 103.
36. On or about February 27, 1992, the Ibrahim Bishari, Secretary of Libya's People's
Committee for Foreign Liaison and International Cooperation, wrote to the Secretary
General of the United Nations guaranteeing "the payment of any compensation that might
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be incurred by the responsibility of the two suspects [Al-Megrahi and Fhimah] who are
its nationals in the event they are unable to pay."
37. By this language, Libya agreed to guaranty payment of any judgment rendered against its
agents Al-Megrahi and Fhimah as a result of the terrorist bombing of Pan Am Flight 103.
38. On August 15, 2003, the Chargé d'Affaires of the Permanent Mission of the Libyan Arab
Jamahiriya to the United Nations issued a letter to the President of the United Nations
Security Council stating that Libya "[h]as 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 Doc. S/2003/818.
39. Libya, the JSO, LAA, Al-Megrahi and Fhimah conspired together and acted in concert to
commit the sabotage and destruction of Pan Am Flight 103 and the extrajudicial killing of
its passenger
40. In arranging for the placement and detonation of a bomb on Pan Am Flight 103,
defendants intended to cause severe emotional distress to the immediate family members
of Roger Hurst, Walter Porter, John Mulroy, Bridget Concannon, and the other
passengers and crew of Pan Am Flight 103.
41. The criminal acts committed by Al-Megrahi, Fhimah, and John Does #1-20 that resulted
in the destruction of an American aircraft are within the special aircraft jurisdiction of the
United States, and give rise to a civil cause of action by those injured insofar as such acts
are within the competence of a United States district court.
42. Al-Megrahi and Fhimah served as agents of Libya and the JSO and as employees of LAA
during the relevant periods surrounding the planning and implementation of the bombing
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of Pan Am Flight 103. Without their activities and the support provided to them by
Libya, including its instrumentalities, the bombing of Pan Am Flight 103 would not have
occurred. LAA's management knew or should have known that LAA aircraft and
facilities were being utilized for activities that violated Libya's domestic laws, the laws of
the United States and the law of nations.
43. Such activities constituted violations of the law of nations and of several United States
statutes, and resulted in the injury and death of Roger Hurst, Walter Porter, John Mulroy,
and Bridget Concannon.
44. The surviving family members of Roger Hurst, Walter Porter, John Mulroy, and Bridget
Concannon, including plaintiffs, have suffered immense emotional and psychological
pain and suffering as a result of the bombing of Pan Am Flight 103 by defendants.
FIRST CAUSE OF ACTION
(Antiterrorism Act)
45. Plaintiffs repeat and reallege all preceding paragraphs.
46. The Antiterrorism Act provides a remedy for "[a]ny national of the United States injured
in his or her person, property, or business by reason of an act of international terrorism,
or his or her estate, survivors, or heirs." 18 U.S.C. § 2333(a).
47. Defendants engaged in acts of international terrorism, including violent acts that were
dangerous to human life and in violation of the criminal laws of the United States or of
any State, or would be a criminal violation if committed within the jurisdiction of the
United States or of any State. Such acts appear to be intended to intimidate or coerce a
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civilian population, influence the policy of a government by intimidation or coercion, or
affect the conduct of a government by assassination.
48. The bombing of Pan Am Flight 103 was an act of international terrorism and constituted
an extrajudicial killing and aircraft sabotage.
49. Defendants' conduct transcends national boundaries in terms of the means by which they
are accomplished, the persons they appear intended to intimidate or coerce, or the locale
in which their perpetrators operate or seek asylum.
50. In bombing Pan Am Flight 103, defendants Al-Megrahi and/or Fhimah were acting
within the scope of their employment as officers and/or employees of the JSO and LAA.
51. Defendant Al-Megrahi is estopped from denying the essential allegations of the charges
for which the Scottish High Court of Justiciary convicted him. See also 18 U.S.C. §
2333(c).
52. Defendants Libya, the JSO, and LAA provided material support and resources to
defendants Al-Megrahi and/or Fhimah for the bombing of Pan Am Flight 103.
53. Defendants conspired among themselves to bomb Pan Am Flight 103 in violation of the
Antiterrorism Act, and took numerous overt steps in furtherance of such conspiracy.
54. Plaintiffs Ethel Hurst, Eugene Hurst, Spencer Hurst, Mitchell Hurst, Sharon Hurst
Duross, Mary Diamond, Gwennth Forde, Victoria Porter, Olga Husbands, Vernon
Druses, and Randolph Porter are nationals of the United States personally injured by
reason of defendants' acts of international terrorism, or are the survivors or heirs of
persons killed on board Pan Am Flight 103.
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55. Plaintiffs sue to recover threefold the damages they sustained, not limited to intense
emotional and psychological pain and suffering and the loss of the society and comfort of
their family members who were killed on board Pan Am Flight 103, and the costs of suit,
including attorneys' fees.
SECOND CAUSE OF ACTION
(Foreign Sovereign Immunities Act)
56. Plaintiffs repeat and reallege all preceding paragraphs.
57. The Foreign Sovereign Immunities Act waives sovereign immunity for claims against a
foreign government for personal injury or death that was caused by an act of terrorism,
including aircraft sabotage, if that foreign state was designated as a state sponsor of
terrorism at the time it committed the terrorist act, or was so designated as a result of such
act. 28 U.S.C. § 1605A(a).
58. Such a designated state sponsor of terrorism, and its officials, employees, or agents while
acting within the scope of their office, employment or agency, are liable for personal
injury or death caused by the act of terrorism, and damages may include economic
damages, solatium, pain and suffering, and punitive damages. 28 U.S.C. § 1605A(c).
59. A foreign state shall also be vicariously liable for the acts of its officials, employees, or
agents. 28 U.S.C. § 1605A(c).
60. Libya was designated as a state sponsor of terrorism in 1979 pursuant to § 6(j) of the
Export Administration Act of 1979.
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61. By bombing Pan Am Flight 103 and killing its passengers, including Roger Hurst, Walter
Porter, John Mulroy, and Bridget Concannon, defendants caused plaintiffs personal
injury, including emotional distress.
62. Libya is liable for the personal injuries suffered by plaintiffs, including, but not limited
to, intense emotional and psychological pain and suffering and the loss of the society and
comfort of their family members killed on board Pan Am Flight 103, and punitive
damages.
63. Defendants Al-Megrahi and Fhima are liable for the personal injuries suffered by
plaintiffs, including, but not limited to, intense emotional and psychological pain and
suffering and the loss of the society and comfort of their family members killed on board
Pan Am Flight 103, and punitive damages.
64. Libya is also vicariously liable for the acts of its officials, employees or agents, including
Defendants Al-Megrahi and Fhima.
THIRD CAUSE OF ACTION
(Flatow Amendment)
65. Plaintiffs repeat and reallege all preceding paragraphs.
66. The Flatow Amendment creates an independent cause of action by providing that "[a]n
official, employee, or agent of a [designated foreign state] . . . shall be liable to a United
States national or the national's personal representative for personal injury or death . . .
for money damages which may include . . . solatium . . . ." 28 U.S.C. § 1605 note.
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67. By bombing Pan Am Flight 103 and killing its passengers, including Roger Hurst, Walter
Porter, John Mulroy, and Bridget Concannon, defendants caused plaintiffs personal
injury, including emotional distress.
68. Libya is liable for such personal injury "in the same manner and to the same extent as a
private individual under like circumstances." 28 U.S.C. § 1606.
69. Libya is also liable for the acts of the individual defendants – including its employees and
agents Al-Megrahi and Fhima – under the doctrine of respondeat superior. By
"accept[ing] responsibility for the actions of its officials," Libya has acknowledged and
conceded such liability.
70. Defendant Al-Megrahi is estopped from denying the essential allegations of the charges
for which he was convicted by the Scottish High Court of Justiciary.
FOURTH CAUSE OF ACTION
(Torture Victim Protection Act)
71. Plaintiffs repeat and reallege all preceding paragraphs.
72. The Torture Victim Protection Act, 28 U.S.C. § 1350 note, provides a cause of action for
torture and extrajudicial killing by any individual acting under the actual or apparent
authority or color of law of any foreign state.
73. Defendants' bombing of Pan Am Flight 103 was an extrajudicial killing.
74. In bombing Pan Am Flight 103, defendants Al-Megrahi and Fhimah were acting within
the scope of their employment as officers and/or employees of the JSO and LAA, and
under actual or apparent authority or color of law.
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75. Defendants conspired among themselves to bomb Pan Am Flight 103 in violation of the
Torture Victim Protection Act, and took numerous overt steps in furtherance of such
conspiracy.
76. The deaths of Roger Hurst, Walter Porter, John Mulroy, and Bridget Concannon, and the
personal injuries suffered by plaintiffs, including, but not limited to, intense emotional
and psychological pain and suffering and the loss of the society and comfort of their
family members killed on board Pan Am Flight 103, were proximately caused by the
willful and deliberate activities of Al-Megrahi and Fhimah.
FIFTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
77. Plaintiffs repeat and reallege all preceding paragraphs.
78. The bombing of Pan Am Flight 103 was extreme and outrageous conduct and in violation
of state and federal law, as well as the law of nations and numerous international treaties.
79. By bombing Pan Am Flight 103 and killing its passengers, including Roger Hurst, Walter
Porter, John Mulroy, and Bridget Concannon, defendants intended to cause severe
emotional distress among the immediate members of the decedents' family, including
plaintiffs.
80. By bombing Pan Am Flight 103, Libya and other defendants did cause personal injuries
to plaintiffs Ethel Hurst, Eugene Hurst, Spencer Hurst, Mitchell Hurst, Sharon Hurst
Duross, Mary Diamond, Gwennth Forde, Victoria Porter, Olga Husbands, Vernon
Druses, Randolph Porter, and James Mulroy, including, but not limited to, intense
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emotional and psychological pain and suffering and the loss of the society and comfort of
their family members killed on board Pan Am Flight 103.
81. All defendants, including Libya, are liable for the intentional infliction of emotional
distress of plaintiffs.
82. Libya is liable for the intentional infliction of emotional distress of plaintiffs "in the same
manner and to the same extent as a private individual under like circumstances." 28
U.S.C. § 1606.
83. Libya is also liable for the acts of the individual defendants – including its employees and
agents Al-Megrahi and Fhima – under the doctrine of respondeat superior. By
"accept[ing] responsibility for the actions of its officials," Libya has acknowledged and
conceded such liability.
SIXTH CAUSE OF ACTION
(Civil Conspiracy)
84. Plaintiffs repeat and reallege all preceding paragraphs.
85. Defendants did knowingly and willfully conspire to commit the following offenses:
(a)
the deliberate and wrongful deaths of Roger Hurst, Walter Porter,
John Mulroy, and Bridget Concannon;
(b)
the violation of the Antiterrorism Act;
(c)
the violation of the Foreign Sovereign Immunities Act
(d)
the violation of the Flatow Amendment;
(e)
the violation of the Torture Victims Protection Act; and
(f)
the intentional infliction of emotional distress upon plaintiffs.
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86. The objects of the conspiracy were the sabotage and destruction of Pan Am Flight 103,
the foreseeable resulting deaths of, among others, Roger Hurst, Walter Porter, John
Mulroy, and Bridget Concannon, the intentional infliction of emotional distress on the
survivors of these decedents, and through the suffering of the survivors, the
traumatization of the entire nation. The destruction of the plane, the deaths of the
passenger and crew, and the emotional distress of the survivors were proximately caused
by this conspiracy.
87. Defendants took numerous overt steps in furtherance of such conspiracy.
88. Defendants were acting pursuant to the actual or apparent authority or color of law of
Libya, and are liable for conspiring to commit the aforementioned offenses. Defendants
Al-Megrahi and Fhimah were also acting in their personal capacity by carrying out these
criminal acts. Defendants are liable for conspiring to commit the aforementioned
offenses among themselves as well as with others whose identities are unknown at this
time.
SEVENTH CAUSE OF ACTION
(Guaranty Contract)
89. Plaintiffs repeat and reallege all preceding paragraphs.
90. Libya, in consideration for greater international respectability and improved relations
with the members of the United Nations, has guaranteed payment of any judgments
entered against Al-Megrahi and Fhimah with respect to the bombing of Pan Am Flight
103.
91. Libya's guaranty contract obligates it to pay any unsatisfied judgments obtained against
Al-Megrahi and Fhimah.
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WHEREFORE, plaintiffs respectfully requests judgment as follows:
(a) on the First Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trial, multiplied by three pursuant to 18 U.S.C. § 2333(a); punitive damages in an
amount to be determined at trial; and, special damages, including, without limitation, costs
associated with psychological counseling, travel expenses related to the bombing, loss of
earnings tied to the bombing;
(b) on the Second Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trail; punitive damages in an amount to be determined at trial; and, special
damages, including, without limitation, psychological counseling, travel expenses related to the
bombing, loss of earnings tied to the bombing;
(c) on the Third Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trail; punitive damages in an amount to be determined at trial; and, special
damages, including, without limitation, psychological counseling, travel expenses related to the
bombing, loss of earnings tied to the bombing;
(d) on the Fourth Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trail; punitive damages in an amount to be determined at trial; and, special
damages, including, without limitation, psychological counseling, travel expenses related to the
bombing, loss of earnings tied to the bombing;
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(e) on the Fifth Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trail; punitive damages in an amount to be determined at trial; and, special
damages, including, without limitation, psychological counseling, travel expenses related to the
bombing, loss of earnings tied to the bombing;
(f) on the Sixth Cause of Action, compensatory damages, including, without
limitation, economic loss, pain and suffering, and solatium damages in an amount to be
determined at trail; punitive damages in an amount to be determined at trial; and, special
damages, including, without limitation, psychological counseling, travel expenses related to the
bombing, loss of earnings tied to the bombing;
(g) on the Seventh Cause of Action, against Libya, payment of all or any unpaid
part of any judgment(s) obtained in this action against Al-Megrahi and/or Fhima;
(h) such other legal and equitable relief as this Court deems just and proper,
together with attorneys’ fees, interest, costs and disbursements of this action pursuant to 18
U.S.C. § 2333(a).
Dated: March 28, 2008
New York, New York
EMERY CELLI BRINCKERHOFF &
ABADY LLP
____________/s/____________
Sarah Netburn
Richard D. Emery
75 Rockefeller Plaza
New York, New York 10019
(212) 763-5000
19
MARK S. ZAID, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809
20
August 2, 2007
mmaher on PROD1PC70 with CONG-REC-ONLINE
school facilities. However, the distribution of these recent investments has
been overwhelmingly slanted to the
most affluent communities which are
better able to fund new investments
without outside assistance. A 2006
study released by the Building Educational Success Together, BEST, coalition found that the quality of your
child’s school is dependent upon his or
her racial or ethnic background and
whether they live in a rich or poor
neighborhood.
Local spending on school facilities in
affluent communities is almost twice
as high as in our most disadvantaged
communities, as measured on a perpupil basis. The report also found that
school districts with predominantly
caucasian enrollment benefited from
about $2000 more per student in school
repair and construction spending than
their peers living in school districts
with predominantly minority enrollment.
The Public School Repair and Renovation Act addresses that inequity by
targeting school renovation grants to
those communities that have struggled
to fund needed repairs. The bill builds
on the model States found successful in
the fiscal year 2001 program. States
would receive funding based on their
most recent Title I allocation to initiate a competitive grant program targeted to poor and rural school districts. States have the discretion to require matching funds from the local
district bringing the potential funding
to much more than the $1.6 billion Federal investment.
I would like to thank my colleagues,
Senators KENNEDY, CLINTON, and MIKULSKI for signing on to this bill. In addition, I am pleased to report this legislation has the support of a diverse
group of national education organizations representing teachers, school
boards, school administrators, and
principals.
The Public School Repair and Renovation Act takes a much needed step
forward in fixing the inequity in public
school facilities. Something is seriously wrong when children go to modern, gleaming movie theaters, shopping
malls, and sports arenas, but attend
public schools with crumbling walls
and leaking roofs. This sends exactly
the wrong message to children about
the importance of education.
I hope that my colleagues will support the Public School Repair and Renovation Act.
By Mr. LAUTENBERG (for himself, Mr. SPECTER, Mr. MENENDEZ, Mr. CORNYN, Mr. COLEMAN,
Mr. LOTT, Mr. LIEBERMAN, Mr.
SCHUMER, Mrs. CLINTON, Mr.
CASEY,
Ms.
COLLINS,
Mr.
GRAHAM, Mr. BIDEN, Mr. STEVENS, and Mrs. FEINSTEIN):
S. 1944. A bill to provide justice for
victims of state-sponsored terrorism;
to the Committee on the Judiciary.
Mr. LAUTENBERG. Mr. President, I
rise to introduce the Justice for Vic-
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tims of State Sponsored Terrorism Act
with my colleagues, Senators SPECTER,
MENENDEZ, CORNYN, COLEMAN, LOTT,
LIEBERMAN, SCHUMER, CLINTON, CASEY,
COLLINS, GRAHAM, BIDEN, STEVENS, and
FEINSTEIN.
I am proud to introduce this legislation on behalf of the many Americans
who have suffered at the hands of State
sponsors of terrorism. This important
legislation will allow victims of state
sponsored terrorism to have their day
in court. It will do so by enabling these
individuals to both sue for liability and
seek financial compensation from the
states, such as Iran, which committed
these murderous acts, thereby starving
them of the funds that they use to
strike at innocent victims.
In 1983, the U.S. Marine Corps barracks in Beirut, Lebanon, was bombed
by the Lebanese terrorist organization
Hezbollah, killing 241 servicemen and
wounding 100 others. In 2003, the U.S.
District Court in Washington, DC,
found the Republic of Iran, which directly supports Hezbollah, guilty of
masterminding that bombing. The victims and their families have the right
to sue their tormentors and have judgments against Iran, yet the judgments
are not being enforced.
In 1996, the President signed into law
legislation that I wrote to amend the
Foreign Sovereign Immunities Act to
give private American citizens the
right to hold U.S. Department of Statedesignated state sponsors of terrorism
liable in U.S. courts. This legislation,
also known as the Flatow amendment,
needs to be clarified and updated. The
bill I am introducing today will bring
clarity to this law on behalf of victims
of terrorism and reaffirm their right to
sue and collect damages from state
sponsors of terrorism.
There are several reasons why the
law needs to be improved. First, the
courts decided in 2004 in Cicippio-Puleo
v. Islamic Republic of Iran that, contrary to the intent of the Flatow
amendment, there would be no Federal
private right of action against foreign
governments. The ruling stated that
there could only be legal action against
individual officials and employees of
that government. Second, current law
permits judgment holders to only seize
assets over which a terrorist state has
day-to-day managerial control, thereby
allowing terrorist states to hide their
assets from the victims who have successful judgments against them. Third,
state sponsors of terrorism, such as
Libya, which is still responsible for terrorist acts it committed in the past,
have consistently abused the appeals
process to delay litigation proceedings.
My new legislation will address these
issues and improve the ability of victims to hold state sponsors of terrorism accountable. First, it will update the Flatow amendment to improve its enforcement by reaffirming
the right of private citizens to sue
state sponsors of terrorism. Second, it
will allow for the seizure of hidden
commercial assets belonging to the
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terrorist state so that the victims of
terrorism can be justly compensated.
Third, it will limit the number of appeals that the terrorist state can pursue in U.S. courts. In addition, my legislation will provide foreign nationals
working for the U.S. Government, if
they are victims of a terrorist attack
during their official duties, to be covered by these same provisions.
While nothing can bring back innocent lives lost to terrorism, the state
sponsors of these horrific acts must be
made to pay for their crimes. We are
united in our belief that state-sponsored terrorism is wrong and that the
perpetrators of terrorism must be
brought to justice. This legislation will
also strengthen our national security
by combating the desire and ability of
foreign nations to both finance and
support terrorism. Most importantly,
it will empower those innocent victims
who have suffered from terrorism to
seek justice through the rule of American law.
I urge my colleagues on both sides of
the aisle to support justice for victims
of state sponsored terrorism by supporting this important bill. I ask unanimous consent that the text of the bill
be printed in the RECORD.
There being no objection, the text of
the bill was ordered to be printed in
the RECORD, as follows:
S. 1944
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Justice for
Victims of State Sponsored Terrorism Act’’.
SEC. 2. TERRORISM EXCEPTION TO IMMUNITY.
(a) IN GENERAL.—Chapter 97 of title 28,
United States Code, is amended by inserting
after section 1605 the following:
‘‘§ 1605A. Terrorism exception to the jurisdictional immunity of a foreign state
‘‘(a) IN GENERAL.—
‘‘(1) NO IMMUNITY.—A foreign state shall
not be immune from the jurisdiction of
courts of the United States or of the States
in any case not otherwise covered by this
chapter in which money damages are sought
against a foreign state for personal injury or
death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A
of title 18) for such an act if such act or provision of material support is engaged in by
an official, employee, or agent of such foreign state while acting within the scope of
his or her office, employment, or agency.
‘‘(2) CLAIM HEARD.—The court shall hear a
claim under this section if—
‘‘(A) the foreign state was designated as a
state sponsor of terrorism under section 6(j)
of the Export Administration Act of 1979 (50
U.S.C. App. 2405 (j)) or section 620A of the
Foreign Assistance Act of 1961 (22 U.S.C.
2371) at the time the act occurred, unless
later designated as a result of such act;
‘‘(B) the claimant or the victim was—
‘‘(i) a national of the United States (as
that term is defined in section 101(a)(22) of
the Immigration and Nationality Act (8
U.S.C. 1101(a)(22));
‘‘(ii) a member of the Armed Forces of the
United States (as that term is defined in section 976 of title 10); or
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‘‘(iii) otherwise an employee of the government of the United States or one of its contractors acting within the scope of their employment when the act upon which the claim
is based occurred; or
‘‘(C) where the act occurred in the foreign
state against which the claim has been
brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.
‘‘(b) DEFINITION.—For purposes of this section—
‘‘(1) the terms ‘torture’ and ‘extrajudicial
killing’ have the meaning given those terms
in section 3 of the Torture Victim Protection
Act of 1991 (28 U.S.C. 1350 note);
‘‘(2) the term ‘hostage taking’ has the
meaning given that term in Article 1 of the
International Convention Against the Taking of Hostages; and
‘‘(3) the term ‘aircraft sabotage’ has the
meaning given that term in Article 1 of the
Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation.
‘‘(c) TIME LIMIT.—An action may be
brought under this section if the action is
commenced not later than the latter of—
‘‘(1) 10 years after April 24, 1996; or
‘‘(2) 10 years from the date on which the
cause of action arose.
‘‘(d) PRIVATE RIGHT OF ACTION.—A private
cause of action may be brought against a foreign state designated under section 6(j) of
the Export Administration Act of 1979 (50
U.S.C. 2405(j)), and any official, employee, or
agent of said foreign state while acting within the scope of his or her office, employment,
or agency which shall be liable to a national
of the United States (as that term is defined
in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)), a member of the Armed Forces of the United States
(as that term is defined in section 976 of title
10), or an employee of the government of the
United States or one of its contractors acting within the scope of their employment or
the legal representative of such a person for
personal injury or death caused by acts of
that foreign state or its official, employee,
or agent for which the courts of the United
States may maintain jurisdiction under this
section for money damages which may include economic damages, solatium, pain, and
suffering, and punitive damages if the acts
were among those described in this section.
A foreign state shall be vicariously liable for
the actions of its officials, employees, or
agents.
‘‘(e) ADDITIONAL DAMAGES.—After an action has been brought under subsection (d),
actions may also be brought for reasonably
foreseeable property loss, whether insured or
uninsured, third party liability, and life and
property insurance policy loss claims.
‘‘(f) SPECIAL MASTERS.—
‘‘(1) IN GENERAL.—The Courts of the United
States may from time to time appoint special masters to hear damage claims brought
under this section.
‘‘(2) TRANSFER OF FUNDS.—The Attorney
General shall transfer, from funds available
for the program under sections 1404C of the
Victims Crime Act of 1984 (42 U.S.C. 10603c)
to the Administrator of the United States
District Court in which any case is pending
which has been brought pursuant to section
1605(a)(7) such funds as may be required to
carry out the Orders of that United States
District Court appointing Special Masters in
any case under this section. Any amount
paid in compensation to any such Special
Master shall constitute an item of court
costs.
‘‘(g) APPEAL.—In an action brought under
this section, appeals from orders not conclusively ending the litigation may only be
taken pursuant to section 1292(b) of this
title.
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‘‘(h) PROPERTY DISPOSITION.—
‘‘(1) IN GENERAL.—In every action filed in a
United States district court in which jurisdiction is alleged under this section, the filing of a notice of pending action pursuant to
this section, to which is attached a copy of
the complaint filed in the action, shall have
the effect of establishing a lien of lis pendens
upon any real property or tangible personal
property located within that judicial district
that is titled in the name of any defendant,
or titled in the name of any entity controlled by any such defendant if such notice
contains a statement listing those controlled
entities.
‘‘(2) NOTICE.—A notice of pending action
pursuant to this section shall be filed by the
clerk of the district court in the same manner as any pending action and shall be indexed by listing as defendants all named defendants and all entities listed as controlled
by any defendant.
‘‘(3) ENFORCEABILITY.—Liens established by
reason of this subsection shall be enforceable
as provided in chapter 111 of this title.’’.
(b) AMENDMENT TO CHAPTER ANALYSIS.—
The chapter analysis for chapter 97 of title
28, United States Code, is amended by inserting after the item for section 1605 the following:
‘‘1605A. Terrorism exception to the jurisdictional immunity of a foreign
state.’’.
SEC. 3. CONFORMING AMENDMENTS.
(a) PROPERTY.—Section 1610 of title 28,
United States Code, is amended by adding at
the end the following:
‘‘(g) PROPERTY IN CERTAIN ACTIONS.—
‘‘(1) IN GENERAL.—The property of a foreign
state, or agency or instrumentality of a foreign state, against which a judgment is entered under this section, including property
that is a separate juridical entity, is subject
to execution upon that judgment as provided
in this section, regardless of—
‘‘(A) the level of economic control over the
property by the government of the foreign
state;
‘‘(B) whether the profits of the property go
to that government;
‘‘(C) the degree to which officials of that
government manage the property or otherwise control its daily affairs;
‘‘(D) whether that government is the sole
beneficiary in interest of the property; or
‘‘(E) whether establishing the property as a
separate entity would entitle the foreign
state to benefits in United States courts
while avoiding its obligations.
‘‘(2) UNITED STATES SOVEREIGN IMMUNITY INAPPLICABLE.—Any property of a foreign
state, or agency or instrumentality of a foreign state, to which paragraph (1) applies
shall not be immune from execution upon a
judgment entered under this section because
the property is regulated by the United
States Government by reason of action
taken against that foreign state under the
Trading With the Enemy Act or the International Emergency Economic Powers Act.’’.
(b) VICTIMS OF CRIME ACT.—Section
1404C(a)(3) of the Victims of Crime Act of
1984 (42 U.S.C. 10603c(a)(3)) is amended by
striking ‘‘December 21, 1988, with respect to
which an investigation or’’ and inserting
‘‘October 23, 1983, with respect to which an
investigation or civil or criminal’’.
(c) GENERAL EXCEPTION.—Section 1605 of
title 28, United States Code, is amended—
(1) in subsection (a)—
(A) in paragraph (5)(B), by inserting ‘‘or’’
after the semicolon;
(B) in paragraph (6)(D), by striking ‘‘; or’’
and inserting a period; and
(C) by striking paragraph (7); and
(2) by striking subsections (e) and (f).
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SEC. 4. APPLICATION TO PENDING CASES.
(a) IN GENERAL.—The amendments made by
this Act shall apply to any claim arising
under section 1605A or 1605(g) of title 28,
United States Code, as added by this Act.
(b) PRIOR ACTIONS.—Any judgment or action brought under section 1605(a)(7) of title
28, United States Code, or section 101(c) of
Public Law 104-208 after the effective date of
such provisions relying on either of these
provisions as creating a cause of action,
which has been adversely affected on the
grounds that either or both of these provisions fail to create a cause of action opposable against the state, and which is still before the courts in any form, including appeal
or motion under Federal Rule of Civil Procedure 60(b), shall, on motion made to the Federal District Court where the judgment or
action was initially entered, be given effect
as if it had originally been filed pursuant to
section 1605A(d) of title 28, United States
Code. The defenses of res judicata, collateral
estoppel and limitation period are waived in
any re-filed action described in this paragraph and based on the such claim. Any such
motion or re-filing must be made not later
than 60 days after enactment of this Act.
By Mr. DURBIN (for himself, Mr.
OBAMA, and Mr. BROWN)
S. 1945. A bill to provide a Federal income tax credit for Patriot employers,
and for other purposes; to the Committee on Finance.
Mr. DURBIN. Mr. President, when
companies make headlines today it is
often for all the wrong reasons: fraud,
tax avoidance, profiteering, etc. Yet
many of the companies that are currently providing jobs across America
are conscientious corporate citizens
that strive to treat their workers fairly
even as they seek to create good products that consumers want and to maximize profits for their shareholders. I
believe that we should reward such
companies for providing good jobs to
American workers, and create incentives that encourage more companies
to do likewise. The Patriot Employers
bill does just that.
This legislation, which I am introducing today along with Senators
OBAMA and BROWN, would provide a tax
credit to reward the companies that
treat American workers best. Companies that provide American jobs, pay
decent wages; provide good benefits,
and support their employees when they
are called to active duty should enjoy
more favorable tax treatment than
companies that are unwilling to make
the same commitment to American
workers. The Patriot Employers tax
credit would put the tax code on the
side of those deserving companies by
acknowledging their commitments.
The Patriot Employers legislation
would provide a tax credit equal to 1
percent of taxable income to employers
that meet the following criteria:
First, invest in American jobs, by
maintaining or increasing the number
of full-time workers in America relative to the number of full-time workers outside of America, by maintaining
their corporate headquarters in America if the company has ever been
headquartered in America, and by
maintaining neutrality in union organizing drives.
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