TULTY et al v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al

Filing 7

MOTION to Dismiss for Lack of Jurisdiction and failure to state a claim by SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, MUAMMAR QADHAFI. (Dabiri Abkenari, Arman)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASHRAF TULTY, ET AL.,

Plaintiffs,
v.
THE SOCIALIST PEOPLE’S LIBYAN ARAB
JAMAHIRIYA, AND MUAMMAR QADHAFI,
Defendants.

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Civil Case No. 04-1780 (JDB)

MOTION TO DISMISS
Defendants, The Socialist People’s Libyan Arab Jamahiriya (hereafter “Libya”) and
Muammar Qadhafi move to dismiss plaintiffs’ complaint for lack of subject-matter jurisdiction,
personal jurisdiction, and in the alternative for failure to state a claim upon which relief can be
granted pursuant, respectively, to the Federal Rules of Civil Procedure 12(b)(1), 12(b)(2) and
12(b)(6). A memorandum of points and authorities in support of the motion is attached hereto.

Dated:

July 14, 2005

Respectfully submitted,

//s//
Arman Dabiri (D.C. Bar 463351)
Law Offices of Arman Dabiri &
Associates, P.L.L.C.
1701 Pennsylvania Ave., N.W.
Suite 300
Washington, D.C. 20006
Tel. [phone]
E-mail: [e-mail]
Counsel for defendants

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ASHRAF TULTY, ET AL.,

Plaintiffs,
v.
THE SOCIALIST PEOPLE’S LIBYAN ARAB
JAMAHIRIYA, AND MUAMMAR QADHAFI,
Defendants.

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Civil Case No. 04-1780 (JDB)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER AND PERSONAL JURISDICTION
AND FAILURE TO STATE A JUSTICIABLE CLAIM

FACTUAL ALLEGATIONS
The Plaintiffs in this suit assert claims against the Socialist People’s Libyan Arab
Jamahiriya (“Libya”) and Muammar Qadhafi (“Qadhafi”) -- Libya’s head of state – for
uncompensated “seizures” of a number of the plaintiffs’ properties in Libya as well as the
alleged torture and subsequent killing of Ahmed Tulty in Libya, the brother of plaintiff Ashraf
Tulty.1
JURISDICTIONAL ALLEGATIONS
Plaintiffs invoke the Court’s subject-matter jurisdiction under the Foreign Sovereign

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Plaintiffs’ complaint is completely lacking any detail regarding the allegations of
torture, killing, and the seizure of property and the alleged dates of occurrence. Defendants
reserve the right to challenge any jurisdiction details which may subsequently be provided by
plaintiffs.

Immunities Act, 28 U.S.C. §§1330(a), 1605(a)(7); and under the Alien Tort Claims Act, 28
U.S.C. § 1350 (“ATCA”). (Amend. Compl. ¶2).
STATUTES INVOLVED
29 U.S.C. § 1330:
§ 1330.

Actions against foreign States

(a) The district courts shall have original jurisdiction without
regard to amount in controversy of any nonjury civil action against
a foreign state as defined in section 1603(a) of this title as to any
claim for relief in personam with respect to which the foreign state is
not entitled to immunity either under sections 1605-1607 of this title
under any applicable international agreement.
(b) Personal jurisdiction over a foreign state shall exist as to
every claim for relief over which the district courts have jurisdiction
under subsection (a) where service has been made under section 1608
of this title.
(c) For purposes of subsection (b), an appearance by a foreign
state does not confer personal jurisdiction with respect to any claim
for relief not arising out of any transaction or occurrence enumerated
in sections 1605-1607 of this title.

28 U.S.C. § 1605(a)(7):
§1605. General exception to the jurisdictional immunity of a foreign state
(a) a foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case –
(7) not otherwise covered by paragraph (2), 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, except that the court shall decline
to hear a claim under this paragraph –
(A) if the foreign state was not designated as a state
2

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 so designated as a result of such act; and
(B) even if the foreign state is or was so designated,
if –
(i) the act occurred in the foreign state against
which the claim has been brought and the claimant
has not afforded the foreign state a reasonable
opportunity to arbitrate the claim in accordance with
accepted international rules of arbitration; or
(ii) neither the claimant nor the victim was a
national of the United States (as that term is defined
in section 101(a)(22) of the Immigration and
Nationality Act) when the act upon which the claim is
based occurred.

28 U.S.C. § 1350:
§ 1350.

Alien’s action for tort
The district court shall have original jurisdiction of any
civil action by an alien for tort only, committed in violation of the
law of nations or a treaty of the United States.

ARGUMENT
INTRODUCTION
The Foreign Sovereign Immunities Act of 1976 (“FSIA”) starts with the general rule that
foreign states are immune from suit in the United States courts; it also lists the limited
circumstances under which a foreign state will be denied immunity and establishes that the Act
is the sole basis for asserting jurisdiction over foreign nations in Unites States Courts. Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). The Supreme Court has

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held that “a foreign state is presumptively immune from jurisdiction of United States courts, and
that unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a
claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); 28 U.S.C. §
1604.
In 1996, as part of the comprehensive Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub.L. No. 104-132, §221(a), 110 Stat. 1214 (Apr. 24, 1996) (1996 Amendment),
Congress amended the FSIA to add a new exception to immunity where money damages are
sought against foreign states that have been designated as state sponsors of terrorism by the
Secretary of State. Suit may be brought under the 1996 Amendment for personal injury or death
caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources . . . for such an act. 28 U.S.C. § 1605(a)(7); see Price
v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002) (hereafter “Price
I).
Six months later, in the Omnibus Consolidates Appropriations Act, Pub.L. No. 104-208,
§589, 110, Stat. 3009, 3009-172 (1997), Congress passed the Civil Liability for Acts of State
Sponsored Terrorism which is codified as a note (but not a part of) § 1605(a)(7) of the FSIA. 28
U.S.C. § 1605(a)(7) note; see also Bettis v. Islamic Republic of Iran, 315 F.3d 325, 329-30 (D.C.
Cir. 2003). This provision, commonly known as the “Flatow Amendment”, creates a cause of
action for “non-economic and punitive damages against an official, employee, or agent of a
foreign stated designated as terrorist” [internal quotes omitted]. Id.

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I.

THE COURT LACKS SUBJECT-MATTER JURISDICTION

A.

Plaintiffs not Nationals of the United States
The Court lacks subject-matter jurisdiction under the FSIA to hear any claims asserted

by the plaintiffs who are not nationals of the United States. The FSIA entitles Libya to immunity
from civil suits in United States courts, with specific exceptions. Simpson v. Socialist People’s
Libyan Arab Jamahiriya, 326 F.3d 230, 233 (D.C. Cir. 2003) (hereafter “Simpson II”); Price v.
Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192, 196 (D.C. Cir. 2004) (hereafter Price
II”) (“A foreign state is immune from suit in both federal and state courts, 28 U.S.C. § 1604,
unless the case comes within an express exception in the FSIA”). “ If no exception applies, a
foreign sovereign's immunity under the FSIA is complete: The district court lacks subject matter
jurisdiction over the plaintiff's case." Id. (Citing Phoenix Consulting v. Republic of Angola, 216
F.3d 36, 39 (D.C. Cir. 2000)).
For a United States court to have subject-matter jurisdiction pursuant to 1996
Amendment
to the FSIA codified under § 1605(a)(7), the plaintiff must generally demonstrate the following:
“(1) that personal injury or death resulted from an act of torture, extrajudicial killing,
aircraft sabotage, or hostage taking; and
(2) the act was either perpetrated by the foreign state directly or by a non- state actor
which receives material support or resources from the foreign state defendant; and
(3) the act or the provision of material support or resources is engaged in by an agent,
official or employee of the foreign state while acting within the scope of his or her office,

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agency or employment; and
(4) that the foreign state be designated as a state sponsor of terrorism either at the time
the incident complained of occurred or was later so designated as a result of such act;
and
(5) if the incident complained of occurred with [sic] the foreign state defendant's
territory, plaintiff has offered the defendants a reasonable opportunity to arbitrate the
matter; and
(6) either the plaintiff or the victim was a United States national at the time of the
incident; and
(7) similar conduct by United States agents, officials, or employees within the United
States would be actionable.”
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180 F.Supp.2d 78, 83 (D.D.C. 2002)
(hereafter “Simpson I”) (Citing 28 U.S.C. § 1605(a)(7)). The question in this case, as in all
sovereign immunity cases, is whether the plaintiffs' claims fall within the exception, upon which
the jurisdiction of the district court depends. Kilburn v. Socialist People's Libyan Arab
Jamahiriya, 376 F.3d 1123, 1127 (D.C. Cir. 2004). The answer in the instant suit is
unquestionably no in that the plaintiffs cannot satisfy the requirements for falling under the
exception to immunity codified under § 1605(a)(7) (or any section of the FSIA). Plaintiffs’
amended complaint concedes that plaintiffs Ashraf Tulty ( as well as the alleged victim Ahmed
Tulty), Mohammed Busier, and Jaballa M. Hasan are not nationals of the United States.
(Amend. Compl. ¶¶ 7, 14, 16).
Section 1605(a)(7), in relevant part, states:

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(a) a foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case –
(7) . . . except that the court shall decline to hear a claim under this paragraph
–
(A) if the foreign state was not 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 so designated as a result of such act; and
(B) even if the foreign state is or was so designated,
if –
. . . .
(ii) neither the claimant nor the victim was a
national of the United States (as that term is defined
in section 101(a)(22) of the Immigration and
Nationality Act) when the act upon which the claim is
based occurred.

Section 1605(a)(7)(B)(ii) instructs the court to decline to hear a claim under the 1996
Amendment to the FSIA if the claimant (or the victim) are not nationals of the United States.
The Court’s inquiry in this case is immediately at end as plaintiffs concede that plaintiffs Ashraf
Tulty (as well as the Ahmed Tulty), Mohammed Busier, and Jaballa M. Hasan are currently not
nationals of the United States.
Subsection (B)(ii) also requires that the claimant (or the victim) must have been a
national of the United States “when the act upon which the claim is based occurred”. (Emphasis
added). The amended complaint (as well as the original complaint) is completely bereft of any
dates on which the alleged seizures of property of the claimants who are now United States
“citizens” occurred. Libya is left to guess as to whether the citizen plaintiffs acquired their

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American citizenship after the alleged seizure of property upon which the plaintiffs’ base their
claim. If so, the Court must also decline to hear the claims of the plaintiffs who are currently
citizens of the United States but were not nationals of the United States at the time of the alleged
seizure of land.

As the nationality of the plaintiffs is a threshold jurisdictional defect

which can never be cured the Court must grant Libya’s motion to dismiss the complaint for lack
of subject-matter jurisdiction and dismiss the complaint with prejudice.

B.

An Offer for Arbitration Was Not Made
Section 1605(a)(7)(B)(i) of the FSIA also imposes a jurisdictional arbitration

requirement.
Section 1605(a)(7), in relevant part, states:
(a) a foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case –
(7) . . . except that the court shall decline to hear a claim under this paragraph
–
(A) if the foreign state was not 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 so designated as a result of such act; and
(B) even if the foreign state is or was so designated,
if –
(i) the act occurred in the foreign state against
which the claim has been brought and the
claimant has not afforded the foreign state a
reasonable opportunity to arbitrate the claim
in accordance with accepted international
rules of arbitration; or

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The plaintiffs concede in their complaint that all alleged acts on which the suit is based
occurred in Libya. (Amen. Comp. ¶¶ 8, 9, 11, 13, 15, 17, 19, 21). Plaintiffs, in suits pursuant to
§1605(a)(7), must offer “the foreign state a reasonable opportunity to arbitrate the claim in
accordance with accepted international rules of arbitration if the act occurred in the foreign state
against which the claim has been brought.” Simpson II, 236 F.3d at 233. An offer to arbitrate
the claims has not been made. The Court is consequently without subject-matter jurisdiction and
must decline to hear plaintiffs’ claims and dismiss the complaint.

C.

The Court Lacks Subject-matter Jurisdiction
For Any Claim of Conversion
The Court of Appeals, in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024,
1032

(D.C. Cir. 2004) commences its opinion by reiterating the general premise that § 1605(a)(7)
waives sovereign immunity of a foreign state were money damages are sought for “personal
injury or death”. The Court, in relevant part held:
Section 1605(a)(7) waives the sovereign immunity of a designated
"foreign state" in actions in which money damages are sought for
personal injury or death caused by one of the specified acts of
terrorism, if the act of terrorism 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.
Id. The Court further held that the language of §1605(a)(7) is clear and limited the application of
§ 1605(a)(7) to the plain language of the Statute. Id. at 1033. Cicippio relied heavily upon §
1605(a)(7)’s legislative history in making its determination. The Court’s analysis in Cicippio
warrants restating at length. The Court, in relevant part, held:
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When Congress passed section 1605(a)(7), the Conference
Committee report explained:
This subtitle provides that nations designated as
state sponsors of terrorism under section 6(j) of the
Export Administration Act of 1979 will be
amenable to suit in U.S. courts for terrorist acts. It
permits U.S. federal courts to hear claims seeking
money damages for personal injury or death
against such nations and arising from terrorist acts
they commit, or direct to be committed, against
American citizens or nationals outside of the
foreign state's territory, and for such acts within the
state's territory if the state involved has refused to
arbitrate the claim.
H.R. Conf. Rep. No. 104-518, at 112 (1996).
Id. at 1035. (Emphasis added). The language of the Conference Committee report relied upon
by the Court of Appeals in Cicippio’s binding opinion makes ir clear that § 1605(a)(7) only
permits United States federal courts to hear claims seeking money damages for “personal injury
or death” and for such acts committed or directed to be committed, against American citizens or
nationals. Id. Nothing in the Committee Report allows for the extension of claims beyond those
for personal injury and/or death. The language is also further limited to American citizens and
nationals. The Court admonishes that the “ultimate question is one of congressional intent, not
one of whether this Court thinks that it can improve upon the statutory scheme that Congress
enacted into law.” Id. at 1033.
Plaintiffs claim money damages for the alleged seizure and conversion by Libya of
property in Libya. These are clearly not claims for personal injury or death and are beyond the
clear language of §1605(a)(7). If the Court were to take subject-matter jurisdiction over the
conversion claims it would go beyond the congressional intent in amending the FSIA and in
effect create a new exception to foreign sovereign immunity. The Court should dismiss
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plaintiffs’ claims with prejudice for seizure of property in Libya as a matter of law.

D.

The Alien Tort Claim Act Does not Create
Subject-Matter Jurisdiction Against a Foreign State
Plaintiffs have asserted the Alien Tort Claims Act as one of the jurisdictional predicates

of the Court. It has been long settled that the FSIA is the sole basis for obtaining jurisdiction
over a foreign state in United States courts. Argentine Republic, 488 U.S. at 434. The basic
premise of the FSIA is that foreign sovereigns are immune from suit in the United States unless
the action falls under one of the specific exceptions enumerated in the statute. 28 U.S.C. § 1604;
Price II, 389 F.3d at 196.
Although the Supreme Court recently declared that the ATCA is jurisdictional, Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), such jurisdiction does not pertain to suits involving
foreign-state defendants. As in all such cases the plaintiffs must prove jurisdiction under the
FSIA before any claims under the ATCA can proceed. Argentine Republic, 488 U.S. at 439;
Soudavar v. Islamic Republic of Iran, 67 Fed.Appx. 618, 619-20, 2003 WL 21401768, *1-2
(D.C. Cir. 2003); see also Hwang Geum Joo v. Japan, 332 F.3d 679, 687 (D.C. Cir. 2003)
(holding that "whatever else the Alien Tort Statute might do, it does not provide the courts with
jurisdiction over a foreign sovereign. Only the FSIA can provide such jurisdiction").

Libya is

immune from suit in the United States in this case as it does not fall under any of the specific
exceptions enumerated in the FSIA (they fail the arbitration requirement, the nationality
requirement, as well as claims which are beyond the limited exception to immunity under §
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1605(a)(7)) and the Court must dismiss the complaint as plaintiffs may not rely upon the ATCA
as the basis for the Court’s subject-matter jurisdiction.

E.

Plaintiff May Not Bring a Claim for Punitive Damages
Plaintiffs may not sustain a claim for punitive damages against Libya pursuant to 28

U.S.C. § 1606. Section 1606 of the FSIA provides, in relevant part, that “a foreign state, except
for an agency or instrumentality thereof shall not be liable for punitive damages.” 28 U.S.C. §
1606 (emphasis added). See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 24, n.1
(D.D.C. 2002).

II.

HEAD OF STATE IMMUNITY
Muammar Qadhafi is the head of the Libyan State (as correctly asserted in the complaint

¶23), a foreign sovereign nation. Plaintiffs, however, incorrectly conclude that he is an agent of
Libya. The head of a foreign sovereign state is not an agent of that same state.
Qadhafi enjoys head-of-state immunity and the Court should dismiss plaintiffs’
complaint against him. The issue of had-of-state immunity has received thorough examination
in several cases. Most recently in Ye v. Zemin, 383 F3d 620, 625 (7th Cir. 2004) the Court of
Appeals reviewed the history of the immunity and outlined its boundaries. The Court, in
relevant part, held:
The FSIA does not, however, address the immunity of foreign heads
of states. The FSIA refers to foreign states, not their leaders. The
FSIA defines a foreign state to include a political subdivision, agency
or instrumentality of a foreign state but makes no mention of heads
of state. 28 U.S.C. § 1603(a). Because the FSIA does not apply to
heads of states, the decision concerning the immunity of foreign
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heads of states remains vested where it was prior to 1976--with the
Executive Branch. Noriega, 117 F.3d at 1212. ("Because the FSIA
addresses neither head-of-state immunity, nor foreign sovereign
immunity in the criminal context, head-of-state immunity could
attach in cases, such as this one, only pursuant to the principles and
procedures outlined in [McFaddon ] and its progeny. As a result, this
court must look to the Executive Branch for direction on the
propriety of Noriega's immunity claim.").
Id. A sister Court in this Circuit has requested the position of the Executive Branch on head-ofstate immunity for Qadhafi. Collett v. Socialist People’s Libyan Arab Jamahiriya, 362
F.Supp.2d 230, 237 (D.D.C. 2005). The position of the United States Department of State is to
be submitted to the Honorable Judge Urbina in the above referenced matter by no later than
August 2, 2005.

III.

THE COURT LACKS PERSONAL JURISDICTION

A.

Court Lacks Personal Jurisdiction Over Defendant Qadhafi
The Congress of the United States is a legislature of enumerated and specific powers, and

can only act in accordance with the limitations imposed by the Constitution. Marbury v.
Madison, 1 Cranch 137, 5 U.S. 137, 176, 2 L.Ed. 60 (1803). When Congress is required to
establish some procedure concerning the deprivations of life, liberty or property, the scope of
permissible procedures is limited by specific constitutional guarantees. The civil trial process is
regulated by constitutional guarantees of due process restrictions on courts jurisdiction. (Ibid.)
The legislative history of the FSIA expresses the design that the assertion of personal
jurisdiction over a foreign state must be informed by the due process principles of International
Shoe:
(b) Personal Jurisdiction.--Section 1330(b) provides, in effect, a
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Federal long-arm statute over foreign states (including political
subdivisions, agencies, and instrumentalities of foreign states). It is
patterned after the long-arm statute Congress enacted for the District
of Columbia. Public Law 91-358, sec. 132(a), title I, 84 Stat. 549.
The requirements of minimum jurisdictional contacts and adequate
notice are embodied in the provision. Cf. International Shoe Co. v.
Washington, 326 U.S. 310 (1945), and McGee v. International Life
Insurance Co., 355 U.S. 220, 223 (1957). For personal jurisdiction
to exist under section 1330(b), the claim must first of all be one over
which the district courts have original jurisdiction under section
1330(a), meaning a claim for which the foreign state is not entitled to
immunity. Significantly, each of the immunity provisions in the bill,
section 1605-1607, requires some connection between the lawsuit
and the United States, or an express or implied waiver by the foreign
state of its immunity from jurisdiction. These immunity provisions,
therefore, prescribe the necessary contacts which must exist before
our courts can exercise personal jurisdiction.
H.R. Rep. 94-1487 at 13.
A nonresident defendant is constitutionally amenable to a forum's personal jurisdiction if
it possesses (1) sufficient minimum contacts with the forum to satisfy due process requirements,
and (2) if the forum's exercise of jurisdiction comports with "traditional notions of fair play and
substantial justice." International Shoe Co. 326 U.S. at 316 (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)). This two-part test embodies the controlling due process principle that a
defendant must have "fair warning" that a particular activity may subject it to the jurisdiction of
a foreign court. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
To meet constitutionally mandated minimum contacts, the defendant's contacts with the
forum must satisfy three criteria:
First, the contacts must be related to the plaintiffs' cause of action or have given rise to it.
Burger King, supra, 471 U.S. at 472. Second, the contacts must involve "some act by which the
defendant purposefully avails itself of the privilege of conducting activities within the forum . . .,

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thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253
(1958). Third, the defendant's contacts with the forum must be "such that [the defendant] should
reasonably anticipate being haled into court there." World Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980).
It is clear that the United States nationality of the plaintiffs does not furnish the requisite
nexus with the United States so as to permit the maintenance of this in personam action.2 In
Callejo v. Bancomer, S.A., 764 F.2d 1101, 1111 (5th Cir. 1985), the Circuit Court observed that
jurisdictional contacts with the United States were purely fortuitous "where they depended solely
on the fact that the injured person happened to be American." See also, Thos. P. Gonzalez Corp.
v. Consejo Nacional De Produccio De Costa Rica, 614 F.2d 1247, 1253-55 (9th Cir. 1980)
("minimum contacts" standard not satisfied when the only link to the United States is plaintiff’s
nationality).
Although the FSIA (in conjunction with 28 U.S.C. § 1330(b)) established personal
jurisdiction over a state, it does not independently establish personal jurisdiction over an
individual. I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1191 (D.C. Cir. 2003);
Price I, 294 F.3d at 96.
The complaint alleges that all alleged seizures of property were in Libya and were the
property of then Libyan citizens some of which later acquired United States citizenship while the
other plaintiffs are still not nationals of the United States. The alleged acts of torture and
subsequent death also took place in Libya, directed at a Libyan national who was never a

2

Plaintiffs who are not nationals of the United States cannot even hope to rely on this
premise to vest the Court with personal jurisdiction.
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national of the United States. Qadhafi has had no contacts with the United States relating to the
instant suit. The Court may not assert personal jurisdiction over Qadhafi and must dismiss the
complaint against him independent of his head-of-state immunity due to constitutional
restrictions upon its jurisdiction.3

B.

Court Lacks Personal Jurisdiction Over Libya
Libya is fully cognizant that the issue of the constitutionality of personal jurisdiction over

the state has been decided adversely by this Court in Price I; to preserve the issue for potential
further review, the matter is respectfully raised once again in this instant case as the holding in
Price I may now be in question due to the language in Republic of Austria v. Altman, 541 U.S.
677, ___ , 124 S.Ct. 2240, 2262 (2004) , which held:
For one thing, statutes of limitations, personal jurisdiction and
venue requirements, and the doctrine of forum non conveniens will
limit the number of suits brought in American Courts.
Id. (emphasis added).

IV.

FAILURE TO STATE A CAUSE OF ACTION
Plaintiffs have failed to allege viable state or federal causes of action against the

defendants. Although plaintiffs state traditional, generalized claims for torture, extrajudicial

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Qadhafi has never been served in his private capacity. Although the complaint does not
indicate whether suit is brought against Qadhafi in his personal/individual or official capacity,
plaintiffs’ counsel on June 7, 2005, in the status conference held before the Court indicated that
the claims against Qadhafi are in his official capacity only. Undersigned counsel has only
appeared on behalf of Qadhafi in his official capacity and reserves the right to raise the issue of
service of process if claims are asserted against Qadhafi in his personal/individual capacity.
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killing, conversion, and intentional infliction of emotional distress, they fail to specify whether
these claims are grounded in state common law, state or federal statutory law, or foreign law.4
See Bettis, 315 F.3d at 332-333. The complaint fails to “identify a particular cause of action
arising out of a specific source of law,” and thus falls short of the standard set in our Circuit in
Acree v. Republic of Iraq, 370 F.3d 41, 58-59 (D.C. Cir. 2004) where the Court, in relevant part,
held:
[G]eneric common law cannot be the source of a federal cause of
action. The shared common law of the states may afford useful
guidance as to the rules of decision in a FSIA case where a cause of
action arises from some specific and concrete source of law. See
Bettis, 315 F.3d at 333 (assuming, arguendo, that plaintiffs stated a
cause of action under the Flatow Amendment and then turning to
generic common law to flesh out the controlling substantive law). But
there is no support for the proposition that generic common law itself
may furnish the cause of action. Rather, as in any case, a plaintiff
proceeding under the FSIA must identify a particular cause of action
arising out of a specific source of law. (Emphasis added).
Id. See also Dammarell v. Islamic Republic of Iran, 2005 WL 756090 (D.D.C. 2005).
The Court should dismiss plaintiffs’ complaint for failure to state a claim upon which
relief can be granted.5

4

Plaintiffs, in their statement of jurisdiction and venue, make a passing reference to
genocide. Genocide, however, is not asserted as a cause of action in the complaint and if it were,
none of the allegations of the complaint can constitute genocide.
5

Plaintiffs cite § 1350 sec(b) in Count I and § 1350 (a) of their claims for relief for
defining “torture” and “extrajudicial killing” but do not seem to rely on it as a basis for causes of
action. (Amend. Compl. ¶¶ 28 and 31). It should be noted 28 U.S.C. § 1350 does not contain
any subsections. Plaintiffs are most likely referring to the “Historical and Statutory Notes” to §
1350. Even assuming that the definitions contained in the Historical and Statutory Notes can be
relied upon as a cause of action, Section 2 of the “Torture Victim Protection Act of 1991" clearly
holds that the “Establishment of Civil Action” may only be against and “individual”. Pub.L.
102-256, Mar. 12, 1992, 106 Stat. 73, Sec. 2. Consequently, plaintiffs may not rely on any
section of the Act against Libya or its head-of-state.
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V.

JURY TRIAL NOT AVAILABLE IN SUIT AGAINST
FOREIGN STATE
Plaintiffs amended complaint demands a jury trial on all issues in this matter. Assuming

that plaintiffs are able to overcome their jurisdictional shortcomings and the suit is set for trial, a
jury trial is prohibited against Libya by statute. Section 1330(a) states:
§ 1330.

Actions against foreign States
(a) The district courts shall have original jurisdiction without
regard to amount in controversy of any nonjury civil action against
a foreign state as defined in section 1603(a) of this title as to any
claim for relief in personam with respect to which the foreign state is
not entitled to immunity either under sections 1605-1607 of this title
under any applicable international agreement. (Emphasis added).

The paragraph speaks for itself. Undersigned counsel has been unable to locate a single case
that proceeded against a foreign state by way of a jury trial after the enactment of the FSIA in
1976. The demand for a jury trial is unavailable for the instant suit.

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CONCLUSION
For the foregoing reasons, the Court should grant Libya's motion under Rule 12(b)(1) and
(2), F.R.Civ.P., and dismiss this action for lack of subject-matter and constitutional personal
jurisdiction over the defendants and, in the alternative, grant Libya's motion under Rule 12(b)(6),
F.R.Civ.P., and dismiss the complaint for failure to state claims upon which relief can be
granted.

Dated:

July 14, 2005

Respectfully submitted,

//s//
Arman Dabiri (D.C. Bar No. 463351)
Law Offices of Arman Dabiri &
Associates, P.L.L.C.
1701 Pennsylvania Ave., N.W.
Suite 300
Washington, D.C. 20006
Tel. [phone]
Fax. [phone]
E-mail: [e-mail]

Counsel for defendants

19