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

Filing 8

Memorandum in opposition to motion re 7 Motion to Dismiss filed by MOHAMED ELJAHMI, MOHAMMED BUISER, ASHRAF TULTY, ABDELRAHIM S. ABDUSSALAM, MOHAMED BUGHEGHIS, MOHAMMAD ABDELRAHIM, JABALLA HASAN. (Corish, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASHRAF TULTY, et al
Plaintiffs
v.

SOCIALIST PEOPLE’S LIBYAN
ARAB JAMAHIRIYA, et al.,
Defendants

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Civil Case No. 04-1780 (JDB)

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS
COME NOW the plaintiffs, by counsel, and file this Memorandum in Opposition
to Defendants’ Motion to Dismiss pursuant to this Court’s Scheduling Order, stating as
follows:
Failure to Submit to Arbitration
Plaintiffs concede that the requirement to afford the defendants a reasonable
opportunity to arbitrate their claims pursuant to 28 USC §1605(a) (7) (B) (i) has not been
met. Due to the status of the defendant Libya as a state sponsor of terrorism, the
plaintiffs question the usefulness of such an offer, however, if the court grants the motion
to dismiss on this basis, it should do so without prejudice to allow plaintiffs to make such
an offer.
Lack of Subject Matter Jurisdiction
Conversion of Property
All of the plaintiffs, except for Ashraf Tulty, base their claims upon the
conversion of property located within Libya. Libya responds with two positions it

contends demonstrate lack of subject matter jurisdiction—1) that the FSIA does not cover
claims for property damage, but only for personal injury or death (Brief at pgs. 9-11); and
2) that the act requires the conversion to occur at a time when the plaintiff was a United
States citizen (Brief at pgs 5-8).
However, the FSIA does provide an exception to sovereign immunity under
§1605(a) (2) and (3) for expropriation of property and this exception does not require
U.S. citizenship at the time of expropriation:
A foreign state shall not be immune from the jurisdiction of courts of the United
States or of the States in any case—
(2) in which the action is based upon a commercial activity carried on in the
United States by the foreign state; or upon an act performed in the United States in
connection with a commercial activity of the foreign state elsewhere; or upon an act
outside the territory of the United States in connection with a commercial activity of the
foreign state elsewhere and that act causes a direct effect in the United States;
(3) in which rights in property taken in violation of international law are in issue
and that property or any property exchanged for such property is present in the United
States in connection with a commercial activity carried on in the United States by the
foreign state; or that property or any property exchanged for such property is owned or
operated by an agency or instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in the United States;…
To the extent that the Amended Complaint did not specify reliance upon
§1605(a) (2) and (3), plaintiffs would ask for leave to file a further amended complaint.

Cf Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (C.A. 9th Cir. 1992)(cert.
den. 507 US 1017, 113 S.Ct. 1812 (1993).
Lack of Personal Jurisdiction
As to Defendant Qadhafi’s claims of lack of personal jurisdiction and head of
state immunity, the plaintiffs agree to his dismissal. However, as to Libya, as
defendants concede the issue has already been decided adversely to Libya’s position in
Price I.
Jury Trial Unavailable
Plaintiffs also agree that a jury trial is unavailable against Libya.
CONCLUSION
For the reasons stated herein and at any oral argument, plaintiffs pray that the
defendants’ motion to dismiss be denied to the extent discussed hereinabove.

Dated: August 15, 2005
Respectfully Submitted,

Robert S. Corish, Esq. (Bar No. 14009)
1039 Sterling Rd.
Suite 102
Herndon, Va. 20170
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs