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

Filing 9

REPLY to opposition to motion re 7 to dismiss filed 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)

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS

I.

PLAINTIFFS’ CONCEDE LACK OF SUBJECTMATTER & PERSONAL JURISDICTION

A.

Explicit Concessions
Plaintiffs’ opposition to the defendants’ (hereafter “Libya”) motion to dismiss concedes

that the Court lacks subject-matter jurisdiction under 28 U.S.C. § 1605(a)(7) to decide the above
captioned suit as the plaintiffs have failed to satisfy the requirements for exception to foreign
sovereign immunity.
Plaintiffs’ explicitly concede their failure to afford Libya a reasonable opportunity to
arbitrate their claims. Plaintiffs also further concede that the Court lacks subject-matter
jurisdiction to adjudicate their claims for conversion of property under § 1605(a)(7) as they

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cannot meet the nationality requirement contained under that subsection of the FSIA.1
Plaintiffs also concede and agree to the dismissal of all claims against defendant Qadhafi
for lack of personal jurisdiction as well as head-of-state immunity.
Finally, plaintiffs concede that a jury trial is unavailable against Libya.

B.

Implicit Concessions
The Court should treat the remainder of Libya’s arguments as conceded as plaintiffs have

failed to address any of them. United States v. Real Property Identified AS: Parcel 03179-005R,
287 F.Supp.2d 45, 61 (D.D.C. 2003) (“If the opposing party files a responsive memorandum, but
fails to address certain arguments made by the moving party, the court may treat those arguments
as conceded.”).
Plaintiffs concede that plaintiff Ashraf Tulty (as well as the alleged victim Ahmed Tulty)
are not United States nationals. Plaintiffs do not advance any other grounds (as they did for the
conversion of property claims) for the subject-matter jurisdiction of the Court for the claims of
Ashraf Tulty. Thus the Court should treat Libya’s argument that it lacks subject-matter
jurisdiction for plaintiff Tulty as conceded.
Plaintiffs also do not address Libya’s argument that the Alien Tort Claim Act does not
create subject-matter jurisdiction against a foreign state. The argument should be treated as

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Libya maintains the position that plaintiffs would not be able to pursue their claims for
conversion of property under § 1605(a)(7) even if they did meet the nationality requirement as the
subsection only waives a foreign sovereign’s immunity when money damages are sought for
“personal injury or death”. 28 U.S.C. § 1605(a)(7). See also Cicippio-Puleo v. Islamic Republic
of Iran, 353 F.3d 1024, 1032 (D.C. Cir. 2004). The issue is, however, moot as the Court must
dismiss all claims for conversion under § 1605(a)(7) for lack of subject-matter jurisdiction.
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conceded.
The plaintiffs also do not address the issue of punitive damages. 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). There are
no agencies or instrumentalities of Libya as party defendants in this case. The Court’s inquiry is
at an end as well as the argument being conceded by the plaintiffs.
Finally, plaintiffs completely fail to address Libya’s assertion that they have failed to allege
viable state or federal causes of action against Libya. Once again the argument should be treated
as conceded. Libya will not repeat its arguments from its motion to dismiss for the above points
and respectfully refers the Court to its motion to dismiss.

II.

SUBJECT-MATTER JURISDICTION MAY NOT BE
MAINTAINED UNDER ANY PROVISION OF THE
FSIA FOR CONVERSION OF PROPERTY

As Libya’s opening motion highlighted, the law is settled that the Foreign Sovereign
Immunities act of 1976 provides the sole basis for obtaining jurisdiction over a foreign state in
United States courts. Argentina Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989). The Amerada Court explained that sections 1604 and 1330(a) of the FSIA work in
tandem: §1604 bars United States courts from exercising jurisdiction when a foreign state is
entitled to immunity2, and §1330(a)3 confers subject-matter jurisdiction on district courts to hear

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§1604 provides as follows:
Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which the

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claims against a foreign state when the foreign state is not entitled to immunity pursuant to
§§1605-1607, 488 U.S. at 433-35. Plaintiffs, after conceding that their claims cannot fall under
the § 1605(a)(7) exception to immunity, now request that the Court allow them to amend their
complaint to assert subject-matter jurisdiction pursuant to §§ 1605(a)(2) and (a)(3) for conversion
of property. The Court should not grant plaintiffs request for an amendment as any such
amendment would be futile. Subject-matter jurisdiction cannot vest under any subsection of the
FSIA for a claim of conversion of property by Libya, which are located in Libya, belonging to
Libyan nationals at the time of the alleged act.

A.

The Court Lacks Subject-Matter Jurisdiction
Under 28 U.S.C. § 1605(a)(2)
Section 1605 enumerates the exceptions to foreign sovereign immunity. Plaintiffs

incorrectly assert that their claims for conversion falls under the exception to sovereign immunity
under § 1605(a)(2). That section provides:
General exceptions to the jurisdictional immunity of a foreign state
United States is a party at the time of the enactment of this
Act a foreign state shall be immune from the jurisdiction of
the courts of te United States and of the States except as
provided in sections 1605 to 1607 of this chapter.
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Section 1330(a) provides as follows:
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 under sections 1605-1607 of this title or under
any applicable international agreement.

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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 –
(2) in which the action is based upon a commercial activity
carried 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; (Emphasis added).
A simple review of the plain language of the statute makes it clear beyond any doubt that
the claims of the plaintiffs for conversion of property does not satisfy any part of § 1605(a)(2). It
is clear that a governmental taking of land in Libya is not a commercial activity by Libya in the
United States. As the alleged taking was in Libya the act was not performed by Libya in the
United States in connection a commercial activity anywhere else. Finally, the taking could not,
and did not, have any effect (direct or indirect) in the United States. The property was in Libya at
the time of the alleged taking and the plaintiffs were Libyan nationals. The fact that the plaintiffs
later moved to the United States does not create a direct effect as now clearly defined by the
Supreme Court. In Republic of Argentina v. Weltover, 504 U.S. 607, 618 (1992) the Court held
that “an effect is direct if it follows as an immediate consequence of the defendant’s activity.” At
the time of the alleged conversion the plaintiffs lived in Libya and their property was in Libya.
Hence, the financial loss, occurred in Libya. The fact that the plaintiffs have since then become
United States residents does not alter this analysis. In sum, it is clear from the face of the
complaint that the plaintiffs suit is premised on the alleged conversion of property by Libya in
Libya, and that the plaintiffs at that time were Libyan nationals and lived in Libya..4
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The exact same issue was present in the case of Soudavar v. Islamic Republic of Iran,
186 F.3d 671, 674 (5th Cir. 1999) (“. . . at the time of the expropriation, plaintiff shareholders
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Any suggestion by the plaintiffs that subject-matter jurisdiction may vest under
§1605(a)(2) is frivolous. The Court should not allow a meaningless amendment of the complaint
and should dismiss the suit for lack of subject-matter jurisdiction.

B.

The Court Lacks Subject-Matter Jurisdiction
Under 28 U.S.C. § 1605(a)(3)
The only exception that could conceivably apply to this case is the “international takings

exception” in §1605(a)(3). That section provides:
General exceptions 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 –
.
.
.
.
(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 out in the United States
by the foreign state; or that property or any property exchanged for
such property is owned and 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. (Emphasis added).
Plaintiffs concede that they are not nationals of the United States and were solely nationals
of Libya at the alleged time of the conversion. The alleged property that was taken is located in
Libya and plaintiffs do not claim that any property exchanged for the confiscated property “is
present in the United States in connection with a commercial activity carried on in the United
States by [Libya],” §1605(a)(3). Finally, plaintiffs do not meet the prerequisite of §1605(a)(3)

lived in Iran and their property was in Iran, so that the financial loss occurred in Iran, and the fact
that the shareholders subsequently became United States residents did not alter this analysis).
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that the property be taken is “in violation of international law” because the taking of property by a
sovereign from its own nationals does not involve principles of international law. The
international taking exception was analyzed by the Fifth Circuit in De Sanchez v. Banco Central
de Nicaragua, 770 F.2d 1385, 1395-96 (1985), affirming the dismissal of a suit for the taking of
property brought by a Nicaraguan national against Nicaragua. The court stated:
. . . With few limited exceptions, international law delineates minimum
standards for the protection only of aliens; it does not purport to
interfere with the relations between a nation and its own citizens.
Thus, even if Banco Central’s actions might have violated
international law had they been taken with respect to an alien’s
property, the fact that they were taken with respect to the intangible
property rights of a Nicaraguan national means that they were outside
the ambit of international law.
In applying Section 1605(a)(3), our inquiry is narrowly
circumscribed. The question is not whether a foreign state’s actions
are consistent with United States law or United States conceptions of
public policy. Nor are we concerned with whether, on the merits, we
should recognize or assist the taking of property by the foreign state.
Instead, the question is solely whether any generally accepted norm of
international law prohibits the defendant’s actions. If not, then unless
another exception to sovereign immunity applies, the foreign state is
immune from suit and we lack jurisdiction to inquire into the validity
of its conduct. (Emphasis in original).
See also, Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir. 1992)
(international taking exception to sovereign immunity does not apply where a sovereign state
expropriates property of its own nationals because such taking does not implicate international
law), cert. denied, 113 S.Ct. 1812 (1993); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095,
1105 (9th Cir. 1990) (same).
Assuming the truth of the facts alleged by plaintiffs for the purposes of Libya’s motion to
dismiss establish incontestably that plaintiffs’ claims are based on a governmental taking, and
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nothing else.

CONCLUSION
For the foregoing reasons, the Court should grant Libya’s motion and dismiss this action
for lack of subject-matter jurisdiction, for lack of personal jurisdiction, and for failure to state a
claim upon which relief can be granted.

Dated:

August 30, 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

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