ESTATE OF JOHN BUONOCORE III et al v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, et al

Filing 17

MOTION to Dismiss by GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, LIBYAN INTERNAL SECURITY, LIBYAN EXTERNAL SECURITY, MU'AMMAR AL-QADHAFI, ABDALLAH AL-SANUSI, IBRAHAIM AL-BISHARI. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Text of Proposed Order)(Johnston, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ESTATE OF JOHN BUONOCORE III,
et al.
Plaintiffs,
v.
GREAT SOCIALIST PEOPLE’S LIBYAN
ARAB JAMAHIRIYA, et al.
Defendants.

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Case No. 1:06-cv-00727-GK

DEFENDANTS’ MOTION TO DISMISS
Defendants, Great Socialist People’s Libyan Arab Jamahiriya, Libyan Internal Security,
Libyan External Security, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari
(the “Libya Defendants”) 1 , by undersigned counsel, move this Court pursuant to Rule 12 (b)(6)
of the Federal Rules of Civil Procedure to dismiss this action against the Libya Defendants on
the ground that the Complaint fails to state valid claims against defendants. In support of this
Motion, defendants specifically contend that: (1) Plaintiffs’ claims are barred by the statute of
limitations under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1601 et seq. and
the Torture Victims Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note; (2) the Complaint
fails to state a claim against defendants Abdallah Al-Sanusi, and Ibrahaim Al-Bishari; (3) the
Complaint fails to state a claim against defendants under the Flatow Amendment; (4) the
Complaint fails to state a claim against defendants under the TVPA; (5) the Complaint fails to

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Undersigned counsel does not represent Defendants, Syrian Arab Republic, Syrian Air Force Intelligence or
Muhammed Al Khuli (the “Syrian Defendants”). Entries of Default were entered by the Clerk of the Court against
the Syrian Defendants on October 4, 2006. This Motion is filed on behalf of the Libya Defendants only.

state a claim for torture under the TVPA; and (6) the Complaint fails to state claims under state
common law and statutory law.
Defendants, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari
further move this Court pursuant to Rule 12 (b)(5) of the Federal Rules of Civil Procedure to
dismiss all claims brought against the individual Libya Defendants in their respective personal
capacities on the ground of improper service of process.
In the alternative, plaintiffs’ claims against defendant, Mu’ammar al-Qadhafi are subject
to the head-of-state doctrine and the Court should stay all pending claims against defendant
Mu’Ammar al-Qadhafi, to the extent any such claims survive defendants’ statute of limitations,
failure to state a claim, and improper service arguments, and until such time as the Executive
Branch offers a directive on the applicability of the head-of-state doctrine to Colonel Qadhafi.
In further support of this Motion, defendants respectfully refer this Court to the attached
Memorandum of Points and Authorities and Proposed Order.

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Respectfully, Submitted,
ECKERT SEAMANS CHERIN
& MELLOTT, LLC

By:

/s/ Thomas J. Whalen
Thomas J. Whalen, Esq. (Bar No. 208512)
/s/ Mark A. Johnston
Mark A. Johnston, Esq. (Bar No. 455764)
1747 Pennsylvania Ave., N.W.,
Twelfth Floor
Washington, D.C. 20006
[phone]

Dated: December 5, 2006

Wendy West Feinstein, Esq. (Pa ID No. 86698)
(Admitted Pro Hac Vice)
600 Grant Street
44th Floor
Pittsburgh, PA 15219
[phone]

Counsel for Defendants, Great Socialist People’s
Libyan Arab Jamahiriya, Libyan Internal
Security, Libyan External Security, Mu’Ammar
Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim
Al-Bishari

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion to Dismiss, Memorandum
of Points and Authorities and Proposed Order was electronically filed and served, this 5th day
of December, 2006, to:

Richard D. Heideman
Tracy Reichman Kalik
Heideman Nudelman & Kalik, P.C.
1146 19th Street, NW
5th Floor
Washington, DC 20036

/s/ Mark A. Johnston
Mark A. Johnston

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ESTATE OF JOHN BUONOCORE III,
et al.
Plaintiffs,
v.
GREAT SOCIALIST PEOPLE’S LIBYAN
ARAB JAMAHIRIYA, et al.
Defendants.

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Case No. 1:06-cv-00727-GK

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS
Defendants, Great Socialist People’s Libyan Arab Jamahiriya, Libyan Internal Security,
Libyan External Security, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari
(the “Libya Defendants”) 2 , by undersigned counsel, respectfully submit this Memorandum of
Points and Authorities in support of its Motion to Dismiss, and for reasons described herein state
as follows:
I.

INTRODUCTION
This case arises from a terrorist attack at the Leonardo da Vinci Airport, also known as

Fiumicino Airport, in Rome, Italy on December 27, 1985 (the “terrorist attack”). Plaintiffs are
U.S. citizens who were injured in the attack and individuals who represent the estates of U.S.
citizens who were killed during the attack. Plaintiffs allege that, on that date, four terrorists from
the Abu Nidal Organization (“ANO”) opened fire on, and hurled grenades at, passengers waiting

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Undersigned counsel does not represent Defendants, Syrian Arab Republic, Syrian Air Force Intelligence or
Muhammed Al Khuli (the “Syria Defendants”). Entries of Default were entered by the Clerk of the Court against
the Syria Defendants on October 4, 2006. This Motion is filed on behalf of the Libya Defendants only.

at the TWA and El Al ticket counters. Plaintiffs claim that the members of ANO who carried out
the attack were acting under the instruction and/or the control of the defendants.
The Complaint alleges that funding and support for the attack were provided by the
governments of Libya and Syria as state sponsors of terrorism. Specifically, plaintiffs have
alleged that the following Libya Defendants provided support for and sponsored ANO in
carrying out the attack: Great Socialist People’s Libyan Arab Jamahiriya (“Libya”), Libyan
Internal Security (“LISO”), one of Libya’s intelligence services; Libyan External Security
(“LESO”), one of Libya’s intelligence services; Mu’Ammar Al-Qadhafi (“Qadhafi”), the leader
of Libya; Abdallah Al-Sanusi, the head of LISO; and Ibrahaim Al-Bishari, the head of LESO.
Plaintiffs allege that each defendant rendered material support for the attack and that the
defendants were directly involved in the attack.
As a result of the attack, plaintiffs claim that they were victims of “torture” and that the
deceased plaintiffs’ lives were ended by acts of “extrajudicial killing” as defined in Section 3 of
the Torture Victims Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note. Plaintiffs also
allege state common law claims for battery, assault, and civil conspiracy; claims for intentional
infliction of emotional distress, including solatium, under the “Flatow Amendment”, 28 U.S.C. §
1605 note, and state common law; claims for wrongful death, survivorship, as well as aiding and
abetting under state common and statutory law. Plaintiffs further seek punitive damages under
both the Flatow Amendment and state common law. The Complaint contends that defendants
are subject to suit in the United States District Courts pursuant to the Foreign Sovereign
Immunities Act (“FSIA”), 29 U.S.C. § 1605(a)(7) and unspecified “related statutes.” Complaint,
¶¶ 2-3.

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Defendants seek dismissal of all claims with prejudice. The Complaint should be
dismissed because it fails to state a claim against the Libya Defendants. Specifically, plaintiffs
fail to state claims against defendants under both the Flatow Amendment and the TVPA. In
addition, the Complaint fails to state valid claims for “torture” under the TVPA and fails to state
claims under state common and statutory law. Finally, plaintiffs have failed to assert valid
claims for punitive damages against the Libya Defendants.
Defendants further move for dismissal on the grounds that plaintiffs’ claims are barred by
the statute of limitations under the FSIA; that this Court lacks personal jurisdiction over
defendants, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari; that this
Court lacks subject matter jurisdiction under the FSIA; and for improper service.
Finally, plaintiffs’ should be barred from proceeding with any claims against defendant
Mu’Ammar Al-Qadhafi under the head-of-state doctrine.
II.

ARGUMENT
A.

Summary of Argument

Defendants herein move for dismissal of the Complaint on multiple grounds. Most
importantly, plaintiffs’ claims are barred by the applicable statute of limitations. The Complaint
was filed on April 21, 2006, more than 20 years after the alleged incident. As shown below, the
doctrine of equitable tolling does not apply to the facts of this case, since plaintiffs can prove no
facts which would warrant their delay of nearly ten years in filing suit after any impediment to
filing suit was removed. Plaintiffs’ claims are time-barred and the entire Complaint should be
dismissed with prejudice. Defendants contend that their arguments with respect to the statute of
limitations and equitable tolling are dispositive of all claims against all defendants and that the
Court need only address these issues in dismissing the Complaint.

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To the extent that any of plaintiffs’ claims survive, alternative grounds exist requiring
dismissal. Specifically, the Complaint fails to state valid claims against any of the defendants.
The Complaint alleges that defendants Abdallah Al-Sanusi and Ibrahaim Al-Bishari
provided aid and material support to members of ANO which caused the terrorist attack that
occurred on December 27, 1985. Contrary to plaintiffs’ allegations, Abdallah Al-Sanusi was not
the head of, nor did he have any connection with, either LISO or LESO at any time from 1985 to
the present. Therefore, plaintiffs’ conclusory allegations against Abdallah Al-Sanusi are
insufficient to state a claim. In addition, Ibrahaim Al-Bishari died in a car accident on
September 13, 1997. Plaintiffs’ claims against Ibrahaim Al-Bishari should be dismissed.
The Complaint also asserts claims against all defendants for intentional infliction of
emotional distress, including solatium, under 28 U.S.C. § 1605 note, the “Flatow Amendment.”
However, plaintiffs cannot state valid claims against Libya, LISO and LESO under the Flatow
Amendment since these defendants are either a foreign state or agencies or instrumentalities of a
foreign state. In seeking claims for punitive damages against the individual Libya Defendants,
the Complaint contends that these were all acting within the scope of their respective offices
when they provided support to the ANO terrorists. Plaintiffs have failed to state claims under the
Flatow Amendment against defendants, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and
Ibrahaim Al-Bishari because the Complaint does not include any claims against the individual
defendants in their personal capacity, as the Flatow Amendment requires.
Plaintiffs further allege in their Complaint that they were victims of “torture” as a result
of the terrorist attack, and that the deceased plaintiffs were murdered by acts of “extrajudicial
killing” as defined in Section 3 of the Torture Victims Protection Act of 1991 (“TVPA”), 28
U.S.C. § 1350 note. However, it is well settled that plaintiffs cannot state claims against Libya,

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LISO and LESO under the TVPA. As with their claims asserted under the Flatow Amendment,
plaintiffs have failed to state claims under the TVPA against the individual Libya Defendants
because the Complaint does not include any claims against the these defendants in their personal
capacity.
The Complaint also fails to state a claim against any defendant for torture under the
TVPA. Plaintiffs do not allege that they were in defendants’ custody or physical control at the
time of the incident; and that the alleged acts undertaken by defendants were done in order to
obtain information or a confession, to punish the plaintiffs or a third party, to intimidate or
coerce plaintiffs or a third party, or for a discriminatory purpose. Plaintiffs’ TVPA claims
should be dismissed.
The Complaint also asserts generic claims under state common law and statutory law.
However, these claims do not include any choice of law provisions or allegations. Significantly,
the Complaint does not specify the choice of applicable state common law upon which each
respective plaintiff bases his or her damages. Plaintiffs also do not identify any statutes upon
which they base their “state statutory law” claims. Plaintiffs have failed completely to identify
with particularity the state law claims upon which they base their FSIA claims and the state law
claims. These claims should be dismissed against all defendants.
In addition to the grounds asserted above for dismissal of plaintiffs’ Flatow Amendment
and TVPA claims against the individual Libya Defendants, these claims should be dismissed
pursuant to Rule 12(b)(5) for improper service. Specifically, the service provisions of § 1608 of
the FSIA do not apply to claims brought against individual Libya Defendants in their personal
capacities. Therefore, in order to maintain their claims under the Flatow Amendment and
TVPA, plaintiffs must serve the individual Libya Defendants in a manner which is consistent

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with Rule 4(f) of the Federal Rules of Civil Procedure. Plaintiffs have not complied with the
service provisions of Rule 4(f) and their claims against the individual Libya Defendants under
the Flatow Amendment and TVPA should be dismissed due to improper service.
Finally, plaintiffs’ contend that Mu’Ammar al-Qadhafi, as the “the leader of Libya,” is
liable for the injuries suffered by plaintiffs as a result of the terrorist attack. However, the FSIA
does not apply to foreign heads of state. Rather, the determination as to whether a foreign head
of state enjoys immunity from suit rests with the Executive Branch. The U.S. Attorney General
has not determined whether the head-of-state doctrine applies to Colonel Qadhafi. Therefore,
plaintiffs should be barred from proceeding with their claims against defendant Mu’Ammar alQadhafi subject to the Executive Branch’s decision regarding Colonel Qadhafi’s immunity under
the head-of-state doctrine.
B.

The Complaint Fails to State a Claim against Defendants
(1)

Plaintiffs’ Claims are Barred by the
Statute of Limitations under the FSIA and the TVPA

All of the plaintiffs’ claims against all of the Libya Defendants should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) because all of the claims are time-barred. This Rule 12(b)(6)
motion should be granted, since it is apparent from the allegations of the Complaint that the
claims raised are barred by the statute of limitations. See Nat’l R.R. Passenger Corp. v.
Lexington Ins. Co., 357 F. Supp. 2d 287, 292 (D.D.C. 2005) (“[a] defendant may raise the
affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving
rise to the defense are apparent on the face of the complaint.”).
It is clear from the face of the Complaint that all of the claims raised by the plaintiffs are
time-barred. Plaintiffs filed the instant Complaint on April 21, 2006. The damage for which
plaintiffs seek recovery occurred on December 27, 1985, more than 20 years before the

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Complaint was filed. In addition, the doctrine of equitable tolling does not apply to the facts of
this case since plaintiffs can prove no facts which would warrant their delay of nearly ten years
in filing suit after any impediment to filing suit was removed (e.g., the enactment of the 1996
Amendment to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1601 et seq., on April 24,
2006). 3 Plaintiffs’ claims are time-barred and the entire Complaint should be dismissed with
prejudice.
The Complaint contends that defendants are subject to suit in the United States District
Court pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(7). In
addition to alleging various state common law and statutory law claims, plaintiffs claim that they
were victims of “torture,” and that the deceased plaintiffs’ lives were ended by acts of
“extrajudicial killing” as defined in Section 3 of the Torture Victims Protection Act of 1991
(“TVPA”), 28 U.S.C. § 1350 note.
Under the FSIA, foreign states enjoy immunity from suit in U.S. courts unless that
immunity has been waived or abrogated pursuant to an exception enumerated in the FSIA. Acree
v. Republic of Iraq, 370 F.3d 41, 44 (D.C. Cir. 2004). In 1996, § 1605(a)(7) was added to the
FSIA and created an exception to foreign sovereign immunity in civil suits “in which money
damages are sought against a foreign state for personal injury or death that was caused by an act
of torture” or other terrorist acts. Id. (quoting 28 U.S.C. § 1605(a)(7)). “This exception applies
only if the defendant foreign state was designated as a state sponsor of terrorism at the time the
alleged acts of torture occurred.” Id. (citing 28 U.S.C. § 1605(a)(7)(A)). Plaintiffs in this case
allege that Libya has been designated a state sponsor of terrorism within the meaning of 28
U.S.C. § 1605(a)(7). Complaint, ¶ 28.

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Pub. L. No. 104-132, § 221, 110 Stat. 1214 [April 24, 1996] (codified at 28 U.S.C. § 1605(a)(7)).

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The statute of limitation for FSIA claims brought pursuant to § 1605(a)(7) is set forth in §
1605(f). Section 1605(f) of the FSIA states:
No action shall be maintained under subsection (a)(7) unless the
action is commenced not later than 10 years after the date on which
the cause of action arose. All principles of equitable tolling,
including the period during which the foreign state was immune
from suit, shall apply in calculating this limitation period.
28 U.S.C. § 1605(f). Similarly, the TVPA has a 10-year statute of limitations. 28 U.S.C. § 1350
note (c) (“No action shall be maintained under this section unless it is commenced within 10
years after the cause of action arose”).
The Complaint in the case before this Court was clearly filed more than ten years after
the cause of action arose on December 27, 1985. Plaintiffs, therefore, presumably rely upon the
doctrine of equitable tolling in filing their more than 20 year-old claims. However, the doctrine
of equitable tolling does not extend the statute of limitations in this case another ten years, or
over 20 years after the cause of action arose, to April, 2006, when plaintiffs filed their
Complaint. To the extent the principle of equitable tolling applies to the facts of this case, it
would only extend the statute of limitations for a reasonable time after defendants were no
longer immune from suit in 1996, not for ten years after the 1996 Amendment to the FSIA.
Equitable tolling is an equitable principle that extends the period within which a plaintiff
may file a claim. The burden is on the plaintiff to demonstrate that it is entitled to equitable
tolling. Acre v. Garcia, 434 F.3d 1254 (11th Cir. 2006). “The plaintiff bears this burden because
equitable tolling is an exception to the rule of the statute of limitations, not the rule itself.” Id.
Equitable tolling is only appropriate in extraordinary circumstances. Id. (citing Sandvik v.
United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (emphasis added). The D.C. Circuit has
instructed that even “where a plaintiff establishes circumstances justifying equitable tolling, the
plaintiff is given extra time ‘only if he needs it’.” Vine v. Republic of Iraq, 2006 U.S. Dist.
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LEXIS 63716, at *27 (D.D.C. 2006) (quoting Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir.
1993)) (emphasis in original). Moreover, if the plaintiff does not need extra time, the D.C.
Circuit has held that “there is no basis for depriving the defendant the protection of the statute of
limitations.” Phillips, 984 F.2d at 492. Importantly, equitable tolling “does not bring about an
automatic extension of the statute of limitations by the length of the tolling period.” Id. The
court should “only extend the time for filing by a reasonable period after the tolling circumstance
[is] mended.” Id.
What constitutes a “reasonable period” will depend on the facts of the case and the
diligence of the plaintiff. See generally, Burnett v. New York Cent. R.R., 380 U.S. 424 (1965)
For example, in Phillips the D.C. Circuit determined that 10 months was too long to extend the
statute of limitations. Phillips, 984 F.2d at 492. In that case, plaintiff’s son was a passenger in a
plane which disappeared off the coast of Italy. No remains of plaintiff’s son were ever found and
plaintiff petitioned various governmental entities for a report of death. Slightly less than three
years after his son’s plane disappeared, plaintiff received a California court declaration of death.
Nearly ten months after receiving the declaration of death, plaintiff filed a suit against the pilot's
conservator under the Death on the High Seas Act ("DOHSA"), 46 U.S.C. app. § 761 et seq. The
district court dismissed plaintiff’s claims as time-barred under DOHSA’s three-year statute of
limitations. Id. at 490. Upholding the ruling of the district court, the D.C. Circuit rejected
plaintiff’s argument that the principle of equitable tolling should be applied in that case.
Specifically, the Court noted:
Here the justifications for delay, viewed in the light most favorable
to plaintiff; ended no later than the California court's certificate of
February 26, 1990. The statute, without any tolling, did not expire
until March 21, 1990. As nothing had prevented plaintiff from
gathering information in the preceding years, and more than three
weeks remained, we question whether there was any need to

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extend the statute at all. But plaintiff's reasonable needs surely did
not require extending the time the full nine and one-half months
that passed before he filed suit on December 12, 1990.
Id at 492.
The legislative history of the TVPA discussing equitable tolling confirms the expectation
of diligence on the part of the plaintiff and that the limitations period was designed to prevent
stale claims. H.R. Rep. 102-367 states “a ten year statute of limitations insures that the Federal
Courts will not have to hear stale claims. In some instances, such as where a defendant
fraudulently conceals his or her identification or whereabouts from the claimant, equitable tolling
remedies may apply to preserve the claimant’s rights.” S. Rep. 102-249 provides examples of
when and how equitable tolling may apply to a claim. Footnotes 25 to 28 of S. Rep. 102-249 cite
specific cases in which the principle of equitable tolling was at issue, including Burnett, 380 U.S.
424 (equitable tolling of Federal Employers' Liability Act claims appropriate where plaintiff
filed suit outside the statute of limitations in Federal court after timely filed claims were
dismissed by state court on grounds of improper venue), and Anderson v. Wisconsin Gas Co.,
619 F. Supp. 635 (E.D. Wis. 1985) (holding that equitable tolling did not apply to plaintiff’s
Title VII claim where she was not “prevented from asserting her rights”). The cases cited as
examples of how Congress intended the principle of equitable tolling to be applied in TVPA
cases sharply illustrate that the application of the principle of equitable tolling does not restart
the clock by giving the plaintiff an additional ten year limitations period to file a claim. Rather,
the legislative history, and the cases cited therein, makes clear that the equitable tolling period is
only the period during which there was some impediment to plaintiff in bringing the claim, such
as the plaintiff’s imprisonment or while the defendant was concealing his own whereabouts.

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There is no support in the legislative history of the TVPA, or elsewhere, for the
proposition that a plaintiff should receive the benefit of the entire limitations period, regardless
of need and regardless of length of the impediment. There is an obvious lack of “equity” and
fairness in such a proposition because it would subject defendants to stale claims. Phillips v.
Heine, 984 F.2d 489, 492 (D.C. Cir. 1993), should be viewed as binding precedent on this issue
in this Circuit.
Plaintiffs do not allege any facts, nor can any be reasonably inferred from the allegations
in the Complaint, that would support the application of equitable tolling for any substantial
length of time. There are no allegations that the plaintiffs did not have necessary facts to assert
their claims within the ten-year statute of limitations, or within a reasonable time after the Libya
Defendants were no longer immune from suit. In fact, the Complaint concedes that any
information concerning the alleged connection between Libya, ANO and the December 27, 1985
attack at the Leonardo da Vinci Airport in Rome, Italy was available to plaintiffs as long ago as
February 12, 1988 during the trial of Khaled Ibrahim Mahmood. 4 See Complaint, ¶¶ 48-63.
Plaintiffs could have readily gathered facts to satisfy the federal notice pleading requirements
within the requisite time periods, or at the very least, within a reasonable time after the cloak of
immunity was removed from defendants. However, plaintiffs cannot argue that a delay in
gathering facts was unavoidable and that they needed an additional ten years to do so.
Moreover, there are no allegations of defendants’ misconduct that lulled plaintiffs into inaction
for ten years (or any length of time). Critically, as the Supreme Court succinctly stated, this is a
case in which plaintiffs have “slept on their rights.” Burnett, 380 U.S. at 428 (1965).

4

Defendants specifically deny the factual allegations asserted in the Complaint. However, for purposes of this
Motion only, defendants contend that the information upon which plaintiffs base their allegations has been available
since the 1988 trial of Khaled Ibrahim Mahmood, at the very least.

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In the complete absence of any allegations, facts or statutory authority supporting the
tolling of the statute of limitations more than 20 years after the cause of action arose, and nearly
ten years after defendants were no longer immune from suit, plaintiffs’ claims should be
dismissed as time-barred and the entire Complaint should be dismissed with prejudice.
(2)

The Complaint Fails to State a Claim against
Defendants Abdallah Al-Sanusi, and Ibrahaim Al-Bishari

To the extent that plaintiffs’ claims survive defendants’ statute of limitations and
equitable tolling arguments, the Complaint also fails to state a claim against defendants Abdallah
Al-Sanusi and Ibrahaim Al-Bishari.
The Complaint alleges that defendants Abdallah Al-Sanusi and Ibrahaim Al-Bishari
provided aid and material support to members of ANO which caused the terrorist attack that
occurred on December 27, 1985. The Complaint does not provide any allegations concerning the
time or details of the specific acts of aid or material support provided by Abdallah Al-Sanusi and
Ibrahaim Al-Bishari. Rather, plaintiffs only allege that Abdallah Al-Sanusi was the head of
LISO, that Ibrahaim Al-Bishari was the head of LESO, and that LISO and LESO are two of the
Libyan intelligence services through which Libya sponsored ANO. See Complaint, ¶¶ 30-34.
Contrary to plaintiffs’ allegations, Abdallah Al-Sanusi was not the head of, nor did he have any
connection with either LISO or LESO at any time from 1985 to the present. Therefore,
plaintiffs’ conclusory allegations against Abdallah Al-Sanusi are insufficient to state a claim. In
addition, Ibrahaim Al-Bishari died in a car accident on September 13, 1997. Plaintiffs’ claims
against Ibrahaim Al-Bishari therefore should be dismissed.
It is well settled that a Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). When adjudicating a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the

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Court must view all the allegations and facts in the complaint in the light most favorable to the
plaintiffs, and it must grant the plaintiffs the benefit of all inferences that can be derived from
those facts. Barr. v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). However, the Court need
not accept inferences or conclusory allegations that are unsupported by the facts set forth in the
complaint. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court
may only consider the facts alleged in the complaint, any documents attached as exhibits, and
matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be
granted when a defendant shows “beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Bell v. Executive Comm. of the United
Food and Commercial Workers Pension Plan for Employees, 191 F. Supp. 2d 10, 15 (D.D.C.
2002) (quoting In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C. Cir.
1989) and Conley v. Gibson, 355 U.S. 41, 45-46, (1955)).
Plaintiffs’ allegations against defendant Abdallah Al-Sanusi are as follows:
30.
Defendant Libyan Internal Security (“LISO”) is one of the
Libyan intelligence services through which Libya sponsored Abu
Nidal, which caused the terrorist acts described below.
*

*

*

33.
Defendant Major Abdallah al-Sanusi was head of the
Libyan Internal Security Agency and performed acts within the
scope of his office, which caused the terrorist acts described below.
Complaint, ¶¶ 30, 33. The Complaint does not identify any specific acts performed by Abdallah
Al-Sanusi. Instead, plaintiffs rest solely upon their allegation that Abdallah Al-Sanusi was the
head of LISO at some undetermined point in time in stating their case against Major Al-Sanusi.

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Notwithstanding plaintiffs’ conclusory allegations to the contrary, Abdallah Al-Sanusi was not
the head of, nor did he have any connection with LISO at any time from 1985 to the present.5
Based upon the foregoing, plaintiffs can prove no cause of action from the allegations set forth
against Major Al-Sanusi which would entitle them to relief and these claims should be
dismissed.
The Complaint also makes the following allegations against Ibrahaim Al-Bishari:
31.
Defendant Libyan External Security (“LESO”) is one of the
Libyan intelligence services through which Libya sponsored Abud
Nidal, which caused the terrorist acts described below.
*

*

*

34.
Defendant Ibrahaim al-Bishari was the head of the Libyan
External Security Agency and performed acts within the scope of
his office, which caused the terrorist acts described below.
The Complaint once again does not assert any factual allegations concerning the alleged acts
undertaken by Mr. Al-Bishari which resulted in the terrorist attack. Nonetheless, plaintiffs’
claims are irrelevant since Ibrahaim Al-Bishari died in a car accident on September 13, 1997.
See Certificate of Death in Arabic, and English translation, attached hereto as Exhibits A and B.
Clearly, plaintiffs’ are unable to maintain any claims against Ibrahaim Al-Bishari and all such
claims should be dismissed.
(3)

The Complaint Fails to State a Claim against
Defendants under the Flatow Amendment

As additional grounds for dismissal, the Complaint fails to state valid claims against any
of the Libya Defendants under the Flatow Amendment, 28 U.S.C. § 1605 note. Defendants

5

Counsel for defendants has been advised that Major Al-Sanusi is currently hospitalized for treatment of a medical
condition. Due to Major Al-Sanusi’s medical condition, as well as his status as a foreign defendant, counsel for
defendants is unable to provide the Court with supporting documentation at this time. To the extent necessary,
defendants will supplement their filing with supporting documentation and proof that Major Al-Sanusi was not the
leader of LISO during the relevant time period as soon as it becomes available.

14

maintain that the entire Complaint should be dismissed for plaintiffs’ failure to file within the
applicable statute of limitations (see Section II (B), above). However, to the extent that this
claim survives and in the alternative, the Court should dismiss plaintiffs’ Flatow Amendment
claims because the Complaint fails to state a valid claim against any defendant under the statute.
The Complaint asserts claims against all defendants for intentional infliction of emotional
distress, including solatium, under 28 U.S.C. § 1605 note, the “Flatow Amendment.” Complaint,
¶¶ 102-104. In seeking claims for punitive damages under the Flatow Amendment against
defendants Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari, the
Complaint also contends that these defendants sponsored and provided material support for the
acts performed by the ANO terrorists. Complaint, ¶¶ 133-134. The Complaint further alleges
that defendants, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari were all
acting within the scope of their respective offices. Complaint ¶ 135. However, plaintiffs cannot
state valid claims against Libya, LISO and LESO under the Flatow Amendment since these
defendants are either a foreign state, or agencies or instrumentalities of a foreign state.
Plaintiffs have also failed to state claims under the Flatow Amendment against
defendants, Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari because the
Complaint does not include any claims against the individual defendants in their personal
capacity. 6
The Flatow Amendment provides in relevant part:
(a) An official, employee, or agent of a foreign state designated as
a state sponsor of terrorism designated under section 6(j) of the
Export Administration Act of 1979 [50 USCS Appx § 2405(j)]
while acting within the scope of his or her office, employment, or
agency shall be liable to a United States national or the national's
6

By arguing that the Complaint fails to state claims against the individual Libya Defendants in their personal
capacities under the Flatow Amendment and the TVPA (see Section II (B)(4), below), the individual Libya
Defendants do not waive the defense of improper service of process. See Section II(C), herein.

15

legal representative for personal injury or death caused by acts of
that official, employee, or agent for which the courts of the United
States may maintain jurisdiction under section 1605(a)(7) of title
28, United States Code, for money damages which may include
economic damages, solatium, pain, and suffering, and punitive
damages if the acts were among those described in section
1605(a)(7).
It is well settled that the Flatow Amendment does not provide a cause of action against foreign
states, or against agencies or instrumentalities of a foreign state. See Collett v. Socialist Peoples'
Libyan Arab Jamahiriya, 362 F. Supp. 2d 230, 241 (D.D.C. 2005) (citing Acree v. Republic of
Iraq, 370 F.3d 41, 59 (D.C. Cir. 2004) (internal citation omitted)). The D.C. Circuit Court of
Appeals has held that:
neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the
two considered in tandem, creates a private right of action against a
foreign government. Section 1605(a)(7) merely waives the
immunity of a foreign state without creating a cause of action
against it, and the Flatow Amendment only provides a private right
of action against officials, employees, and agents of a foreign state,
not against the foreign state itself.
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004). Therefore,
plaintiffs’ Flatow Amendment claims against defendants Libya, LISO and LESO for intentional
infliction of emotional distress, including solatium, must be dismissed.
In order to sustain a cause of action under the Flatow Amendment against officials,
employees, and agents of foreign states, all such claims must be brought against those officials in
their individual or personal capacities, as opposed to their official capacities. See Acree, 370
F.3d at 59 (citing Cicippio, 353 F.3d at 1034); see also Pugh v. Socialist People's Libyan Arab
Jamahiriya, 2006 U.S. Dist. LEXIS 58033, *25 (D.D.C. 2006) 7 (“actions under the Flatow
Amendment, which provides for liability against individuals ‘acting within the scope of his or

7

For ease of reference, a copy of Pugh v. Socialist People's Libyan Arab Jamahiriya, 2006 U.S. Dist. LEXIS 58033
(D.D.C. 2006) is attached hereto as Exhibit C.

16

her office,’ 28 U.S.C. § 1605 note, must be brought against individual officers in their personal
capacity.”) (citing Acree, 370 F.3d at 59 ("[A]ny suit against an official of a foreign state must be
a suit in that official's personal capacity") (emphasis in original)). In Cicippio, the D.C. Circuit
explained the rationale behind its holding as follows:
As the Supreme Court repeatedly has explained, an officialcapacity claim against a government official is in substance a claim
against the government itself. . . By definition, a damages
judgment in an official-capacity suit is enforceable against the state
itself (and only against the state). . . Thus, to construe the Flatow
Amendment as permitting official-capacity claims would
eviscerate the recognized distinction between suits against
governments and suits against individual government officials. . .
The text of the Flatow Amendment and Section 1605(a)(7), as well
as all relevant background interpretive principles . . . foreclose any
such construction.
Cicippio, 353 F.3d at 1034 (quoting Brief for the United States as Amicus Curiae at 17) (internal
citations omitted). Therefore, claims brought under the Flatow Amendment against an official,
employee, or agent of a foreign state acting only in his or her official capacity should be
dismissed. See Acree, 370 F.3d at 59 (dismissing Flatow Amendment claims against Sadam
Hussein “in his official capacity as President of the Republic of Iraq.”).
In the case before this Court, plaintiffs have not alleged any claims against defendants,
Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari in their respective
personal capacities. Rather, each individual Libya Defendant is sued in his official capacity
only. The Complaint specifically alleges the following:
32.
Defendant Mu’ammar al Qadhafi is the leader of
Libya and performed acts within the scope of his office, which
caused the terrorist acts described below.
33.
Defendant Major Abdallah al-Sanusi was head of
the Libyan Internal Security Agency and performed acts within the
scope of his office, which caused the terrorist acts described below.

17

34.
Defendant Ibrahaim al-Bishari was the head of the
Libyan External Security Agency and performed acts within the
scope of his office, which caused the terrorist acts described below.
*

*

*

37.
Defendants . . . Mu’Ammar Al-Qadhafi, Major
Abdallah Al-Sanusi, and Ibrahaim Al-Bishari performed acts
within the scope of their offices, which cased the extrajudicial
killings and personal injuries resulting from the act of terrorism
described herein. Accordingly, said Defendants are jointly and
severally liable to Plaintiffs
*

*

*

135. As required by the Flatow Amendment, . . .
Mu’Ammar Al-Qadhafi, Major Abdallah Al-Sanusi, and Ibrahaim
Al-Bishari were acting within the scope of their duties when they
supplied, facilitated or authorized the provision of material support
to the ANO and the execution of the Rome Airport Attack.
In addition to the numbered paragraphs of the Complaint which fail to assert any claims against
the individual Libya Defendants in their personal capacities, the case caption names each
individual as a defendant in his respective official capacity. The Complaint names as defendants
“Mu’Ammar Al-Qadhafi, Supreme Leader of the Great Socialist People’s Libyan Arab
Jamahiriya”; “Major Abdallah Al-Sanusi, Chief, Libyan Internal Security”; and “Ibrahaim AlBishari, Chief, Libyan External Security.” Plaintiffs have clearly failed to state any valid claims
against the individual Libya Defendants under the Flatow Amendment as they have only asserted
claims against the individual Libya Defendants in their official capacities, not their personal
capacities as required. Cf. Pugh, 2006 U.S. Dist. LEXIS 58033 at *20-26 (claims against
individual defendants in their personal capacities permitted where complaint specifically asserted
causes of action against individual defendants in both their official and personal capacities).
Based upon the foregoing, plaintiffs cannot state claims against Libya, LISO and LESO
under the Flatow Amendment, and they have also failed to state valid claims under the Flatow

18

Amendment against defendants Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim AlBishari. Accordingly, plaintiffs’ claims under the Flatow Amendment should be dismissed with
prejudice.
(4)

The Complaint Fails to State a Claim against
Defendants under the TVPA

As with their failure to state a claim under the Flatow Amendment, plaintiffs have failed
to state a claim against any defendant pursuant to the Torture Victims Protection Act of 1991
(“TVPA”), 28 U.S.C. § 1350 note. Defendants once again assert that the entire Complaint,
including all TVPA claims against the Libya Defendants, should be dismissed for plaintiffs’
failure to file within the applicable statute of limitations (see Section II (B), above). In addition,
the Court may also dismiss plaintiffs’ TVPA claims on the ground that the Complaint fails to
state a claim under the express terms of the TVPA.
Plaintiffs allege in their Complaint that they were victims of “torture” as a result of the
terrorist attack, and that the deceased plaintiffs were murdered by acts of “extrajudicial killing”
as defined in Section 3 of the TVPA. The Complaint contends that Libya, LISO and LESO
sponsored and provided material support for these acts of torture and extrajudicial killing which
were performed by the ANO terrorists. However, it is well settled that plaintiffs cannot state
claims against Libya, LISO and LESO under the TVPA. Such claims can only be brought
against individuals. In addition, similar to their claims asserted under the Flatow Amendment,
plaintiffs have failed to state claims under the TVPA against defendants Mu’Ammar Al-Qadhafi,
Abdallah Al-Sanusi, and Ibrahaim Al-Bishari because the Complaint does not include any claims
against the individual defendants in their personal capacity.
The TVPA expressly limits claims for torture and judicial killing to those brought against
individuals only:

19

(a) Liability. An individual who, under actual or apparent
authority, or color of law, of any foreign nation—
(1) subjects an individual to torture shall, in a civil action,
be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a
civil action, be liable for damages to the individual's legal
representative, or to any person who may be a claimant in an
action for wrongful death.
28 U.S.C. § 1350 note, Section 2. “The TVPA explicitly limits its applicability to ‘individual’
defendants.” Collett, 362 F. Supp. at 242; see also Pugh, 2006 U.S. Dist. LEXIS 58033 at *40
(“the terms of the TVPA make clear that its applicability is limited to suits against individuals,
not foreign states.”) (citation omitted).
In dismissing claims under the TVPA against governmental defendants in Collett, Judge
Urbina of this Court noted that, “[t]he legislative history to the TVPA further indicates that the
term ‘individual’ is used ‘to make crystal clear that foreign states or their entities cannot be sued
under this bill under any circumstances: only individuals may be sued.’” Collett, 362 F. Supp.
at 242 (quoting S. Rep. No. 102-249, at 3 (1991); see also Pugh, 2006 U.S. Dist. LEXIS 58033
at *40 (“the legislative history of the TVPA demonstrates that Congress did not intend for it to
be used to hold foreign states and their instrumentalities liable.”). The Court in Collett also
specifically rejected plaintiffs’ argument that the defendants in that case, Libya and LESO, could
be liable for the acts of government officials under the theory of respondeat superior. Collett,
362 F. Supp. at 242 (“The court will not circumvent congressional intent by imposing liability on
Libya or the ESO based on respondeat superior principles.”). Similarly, in Pugh, Judge
Kennedy of this Court dismissed plaintiffs’ claims against Libya and LESO under the TVPA
stating that, “the TVPA cannot be used to hold the government defendants liable for the torture
or extrajudicial killings of individuals under its authority. Any contrary holding would ‘produce
a result demonstrably at odds with the intentions of its drafters, and those intentions must be

20

controlling.’” Pugh, 2006 U.S. Dist. LEXIS 58033 at *42 (quoting Griffin v. Oceanic
Contractors, 458 U.S. 564, 571, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982).
As with claims brought under the Flatow Amendment, any suit under the TVPA against
an official of a foreign state should be brought against that official in his or her personal
capacity. The distinction between claims brought against an individual in his personal, versus
his official capacity is critical:
Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
Official-capacity suits, in contrast, generally represent only another
way of pleading an action against an entity of which an officer is
an agent.
Pugh, 2006 U.S. Dist. LEXIS 58033 at *22-23 (quoting Kentucky v. Graham, 473 U.S. 159, 165166 (1985) (citation and internal quotations omitted)). Moreover, “[i]t is generally recognized
that a suit against an individual acting in his official capacity is the practical equivalent of a suit
against the sovereign directly.” Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101 (9th Cir.
1990) (citing Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55 (1978)). The
principles and rationale behind limiting claims under the Flatow Amendment to those claims
brought against individuals, in their personal capacities only, apply equally to claims brought
under the TVPA. Accordingly, plaintiffs may only bring claims under the TVPA against
individuals in their personal capacities.
In the instant case, similar to their claims against the individual Libya Defendants under
the Flatow Amendment, plaintiffs have alleged TVPA claims against defendants Mu’Ammar AlQadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari in their respective official capacities
only. See Complaint, ¶¶ 32-34, 37, 135. In doing so, plaintiffs’ TVPA claims against the
individual Libya Defendants are the practical equivalent of claims against a foreign sovereign,

21

Libya, which is strictly prohibited under the TVPA. To allow plaintiffs to proceed with these
claims against the individual Libya Defendants in their official capacities is contrary to
Congress’s intent to limit TVPA claims to those against individuals only. See Collett, 362 F.
Supp. at 242. The Court should, therefore, dismiss plaintiffs’ claims under the TVPA against the
individual Libya Defendants, since plaintiffs have failed to allege any claims against these
defendants in their personal capacities.
For the foregoing reasons plaintiffs in the case before this Court cannot bring claims
under the TVPA against defendants Libya, LISO and LESO, and accordingly, plaintiffs’ TVPA
claims against defendants Libya, LISO and LESO must be dismissed with prejudice. Claims
under the TVPA against individuals must be brought against them in their individual capacities
which are not the claims at the case at bar. Plaintiffs have alleged only claims against the
individual Libya Defendants in their official capacities. Therefore, these claims must be
dismissed as well by the Court.
(5)

The Complaint Fails to State a Claim for
Torture under the TVPA

The Complaint states that the terrorist attack at the Leonardo da Vinci Airport in Rome,
Italy on December 27, 1985 was committed by four ANO terrorists. The terrorists allegedly
divided themselves into two separate pairs of attackers who simultaneously, “in a burst of
gunfire and exploding grenades,” opened fire on passengers at the TWA and El Al check-in
counters, as well as customers in front of a nearby restaurant and bar. Complaint, ¶¶ 39-42.
Plaintiffs state that they are U.S. citizens who were either personally injured in the attack, or
individuals who represent the estates of U.S. citizens who were killed during the attack.
Plaintiffs contend that the acts of physical violence and/or death undertaken by ANO against
plaintiffs constitute “torture” as defined in Section 3 of the Torture Victims Protection Act of

22

1991 (the “TVPA”), 28 U.S.C. § 1350 note. Plaintiffs further contend that the Libya Defendants
provided support for and sponsored ANO in carrying out the attack and are therefore liable for
ANO’s alleged acts of torture under the TVPA.
Assuming, arguendo, that plaintiffs may bring any TVPA claims against the individual
defendants in their official capacities, or that the Court finds plaintiffs have stated claims against
the individual defendants in their personal capacities, plaintiffs have nonetheless failed to state a
claim for torture under the TVPA. Specifically the Complaint fails to set forth sufficient facts
which show that plaintiffs were in defendants’ custody or physical control at the time of the
incident; and that the alleged acts undertaken by defendants were done in order to obtain
information or a confession, to punish the plaintiffs or a third party, to intimidate or coerce
plaintiffs or a third party, or for a discriminatory purpose. Plaintiffs have clearly failed to satisfy
the pleading requirements for claims of torture under the TVPA. Accordingly, plaintiffs’ claims
for torture under the TVPA should be dismissed.
The TVPA defines torture as follows:
(1) the term 'torture' means any act, directed against an individual
in the offender's custody or physical control, by which severe
pain or suffering (other than pain or suffering arising only from or
inherent in, or incidental to, lawful sanctions), whether physical or
mental, is intentionally inflicted on that individual for such
purposes as obtaining from that individual or a third person
information or a confession, punishing that individual for an act
that individual or a third person has committed or is suspected of
having committed, intimidating or coercing that individual or a
third person, or for any reason based on discrimination of any
kind; and
(2) mental pain or suffering refers to prolonged mental harm
caused by or resulting from—
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind altering substances or

23

other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind altering substances or
other procedures calculated to disrupt profoundly the senses or
personality.
28 U.S.C. § 1350 note, Section 3(b) (emphasis added). In determining whether or not the alleged
conduct rises to the level of “torture” as defined in the TVPA, both the severity of the alleged
acts as well as the purposes for which the acts were committed are essential. See Price v.
Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002).
In Price, the D.C. Circuit explained, “[t]he severity requirement is crucial to ensuring that
the conduct proscribed by the [United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment] and the TVPA is sufficiently extreme and
outrageous to warrant the universal condemnation that the term ‘torture’ both connotes and
invokes.” Id. at 92 (citations omitted). “The term ‘torture,’ in the United States and international
usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example,
sustained systematic beating, application of electric currents to sensitive parts of the body, and
tying up or hanging in positions that cause extreme pain.” Id. at 92-93 (quoting S. Exec. Rep.
No. 101-30, at 14 (1990)).
The D.C. Circuit in Price held that in order for an act of violence to rise to the level of
torture, the pain and suffering inflicted upon the plaintiff must be done for a particular purpose.
Section 3 of the TVPA enumerates purposes which, if properly alleged, would give rise to a
claim of torture. Although the list of purposes provided in Section 3 of the TVPA is not meant to
be exhaustive, “any non-enumerated purpose would have to be similar in nature to those
mentioned in order to elevate an act of violence into an act of torture.” Price, 294 F.3d at 93

24

(citation omitted). Moreover, “whatever its specific goal, torture can occur under the FSIA only
when the production of pain is purposive, and not merely haphazard.” Id.
In Price, plaintiffs were arrested and placed in a Libyan prison while awaiting trial on
charges of allegedly taking photographs that constituted anti-revolutionary propaganda. The
Complaint alleged that plaintiffs were “kicked, clubbed and beaten” by prison guards, and
“interrogated and subjected to physical, mental and verbal abuse.” Price, 294 F.3d at 86.
Plaintiffs further alleged that their incarceration was done by Libya in support of Iran’s taking of
hostages from the U.S. Embassy in Tehran. The D.C. Circuit held that the complaint in Price
failed to allege sufficient facts to withstand a motion to dismiss on plaintiffs’ TVPA torture
claims. Specifically, plaintiffs did not allege facts concerning the severity, frequency and
duration of the alleged beatings necessary to rise to the level of torture. Id. at 94-95; see also
Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003)
(allegations that plaintiff was interrogated and held incommunicado, threatened with death, and
forcibly separated from her husband insufficient to constitute “torture” under the TVPA). The
court also held that plaintiffs did not allege sufficient facts concerning the purpose for the alleged
torture:
Furthermore, the present complaint says virtually nothing about the
purpose of the alleged torture. Plaintiffs seemingly have left it for
the courts to conjure some illicit purpose to fill in this pleading
gap. Obviously this will not do.
Price, 294 F.3d at 94. In dismissing plaintiffs’ case, the Price court established that plaintiffs
asserting claims of torture must allege specific facts which, if proven, would constitute torture
pursuant to the definition provided by the TVPA.
Similar to Price, the Complaint in the case before this Court does not allege sufficient
facts to state claims for torture under the TVPA. Unlike Price, the plaintiffs have not alleged

25

that the acts of violence at issue in this case were “directed against an individual in the offender's
custody or physical control.” Rather, the Complaint merely alleges that the terrorist attack
occurred at the Leonardo da Vinci Airport in Rome, Italy on December 27, 1985 and was carried
out by four ANO terrorists. The facts of this case are not even comparable to the facts in Price
insofar as the plaintiffs in this case were not, and do not claim to have been at any point in time,
hostages in the control or custody of defendants. Moreover, the defendants in this case, in
contrast to the defendant in Price, are not alleged to have committed any alleged acts of torture.
All such acts were allegedly committed by members of ANO. Plaintiffs have failed to allege
sufficient facts to show that the alleged acts of violence were directed against them while in the
custody or physical control of the defendants.
The Complaint also fails to allege any facts concerning the degree and duration of the
pain and suffering experienced by the plaintiffs. In fact, plaintiffs allege only that the terrorists
simultaneously opened fire on passengers at the TWA and El Al check-in counters, as well as
customers in front of a nearby restaurant and bar. Based upon this limited information, the
Complaint then makes the conclusory allegation that the acts of physical violence undertaken by
ANO against plaintiffs constitute torture as defined in Section 3 of the TVPA. As was the case
in Price, plaintiffs in the case before this Court have failed to allege specific facts to support their
claims of torture under the TVPA.
The Complaint also fails to provide any allegations concerning the purpose for the
alleged acts of torture. 8 Plaintiffs must allege a particular purpose by the defendants for the
alleged acts of torture. Price, 294 F.3d at 93; see also Simpson, 326 F.3d 230 at 235 (holding
that plaintiff failed to state a claim for hostage taking under the TVPA since she did not allege
8

The Complaint merely states the attack was done for the purpose of furthering the objectives of the government of
Libya, but does not provide any allegations or otherwise elaborate on what those “government objectives” may be.
See Complaint, ¶ 66.

26

purpose for her detention). Similar to Price, plaintiffs’ claims for torture under the TVPA in the
case before this Court should be dismissed for failing to allege a particular purpose for the
alleged acts of torture by the defendants.
For the foregoing reasons, plaintiffs have failed to state a claim for torture under the
TVPA. Specifically the Complaint fails to set forth sufficient facts which show that plaintiffs
were in defendants’ custody or physical control at the time of the incident; that the alleged acts
satisfy the severity requirements for torture under the TVPA; and that the alleged acts were
undertaken by defendants for a particular purpose that has been proscribed by the TVPA.
Plaintiffs have clearly failed to satisfy the pleading requirements for claims of torture under the
TVPA, and such claims for torture under the TVPA should be dismissed.
(6)

The Complaint Fails to State Claims under
State Common Law and Statutory Law

Should the Court find that plaintiffs have timely filed their Complaint, plaintiffs’
nonspecific state common law and statutory law claims should nonetheless be dismissed against
all of the Libya Defendants.
The Complaint alleges generic claims against all defendants for battery, assault,
intentional infliction of emotional distress, civil conspiracy, and punitive damages under state
common law; and claims for wrongful death, survival damages, as well as aiding and abetting
under state common and statutory law. See Complaint, Counts I through VIII. The Complaint
also generally provides the state of residency for each respective plaintiff, but does not include
any choice of law provisions or allegations. Significantly, the Complaint does not specify the
choice of applicable state common law upon which each respective plaintiff bases his or her
damages. Moreover, plaintiffs do not identify any statutes upon which they base their “state

27

statutory law” claims. Plaintiffs have failed to identify with sufficient particularity the state law
claims upon which they base their FSIA claims and the Complaint should be dismissed.
Plaintiffs may base claims for damages upon applicable state law in FSIA cases. See
Virtual Dev. & Defense, Int'l, Inc. v. Republic of Moldova, 133 F. Supp. 2d 9, 15 (D.D.C. 2001)
(“As a general matter, state substantive law is controlling in FSIA cases."). However, plaintiffs
may not simply allege generic claims without specifying a specific source of law. See Acree,
370 F.3d at 59 (“[T]here 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.”). An FSIA
complaint must set forth state law claims with particularity. See Pugh, 2006 U.S. Dist. LEXIS
58033 at *53 (citing Damarrell v. Islamic Republic of Iran, 2005 U.S. Dist. LEXIS 5343, *4-5
(D.D.C. Mar. 29, 2005); Welch v. Islamic Republic of Iran, 2004 U.S. Dist. LEXIS 19512, *1316 (D.D.C. Sept. 27, 2004)).
The D.C. Circuit in Acree dismissed plaintiffs’ claims against the Republic of Iraq, the
Iraqi Intelligence Service, and Saddam Hussein in his official capacity as President of Iraq on the
grounds that plaintiffs failed to state a cause of action under specific state law. Acree, 370 F.3d
at 60. In Acree, plaintiffs were 17 U.S. soldiers and their family members, who were held
prisoners by Iraq during the Gulf War in 1991. In that case, plaintiffs relied solely upon §
1605(a)(7) of the FSIA and the Flatow Amendment as the source of liability notwithstanding the
D.C. Circuit’s prior ruling that these statutes do not confer a cause of action against the
defendants. Id. at 59 (“neither § 1605(a)(7) nor the Flatow Amendment, nor the two together,
creates a cause of action against foreign states themselves.”) (citing Cicippio, 353 F.3d at 1033)).
Prior to and at oral argument, plaintiffs were invited to offer alternative causes of action in order

28

maintain their suit against defendants. However, plaintiffs failed to assert alternative causes of
action even when pressed by the court at oral argument. As a result, the D.C. Circuit dismissed
plaintiffs’ claims and stated, “[w]e therefore find no cause to remand this case to the District
Court in order to allow appellees to amend their complaint to state a cause of action under some
other source of law.” Acree, 370 F.3d at 59-60 (citing Cicippio, 353 F.3d at 1036).
Similarly, in Pugh, plaintiffs’ complaint set forth six counts for “(1) wrongful death, (2)
survival damages, (3) economic damages, (4) intentional infliction of emotional distress, (5) loss
of solatium and (6) loss of consortium” without specifying the specific state law upon which they
were basing their claims for damages. Pugh, 2006 U.S. Dist. LEXIS 58033 at *8, n. 3. In that
case, Judge Kennedy concluded that plaintiffs’ claims of “generic common law torts” were
insufficient and that an FSIA complaint must allege state law claims with specificity in order to
survive a motion to dismiss. Judge Kennedy further explained that, “the D.C. Circuit, in
Cicippio-Puleo and Acree, suggested that a plaintiff cannot rely on their submissions to identify
that ‘particular cause of action,’ but rather must do so in their complaint.” Pugh, 2006 U.S. Dist.
LEXIS 58033 at *52 (emphasis in original).
Plaintiffs in the case before this Court have merely alleged generic common law and
statutory state law claims. Plaintiffs have not specified the respective sources of state common
law upon which they base their claims for battery, assault, intentional infliction of emotional
distress, civil conspiracy, and punitive damages. Moreover, they have not set forth the specific
statutes for wrongful death, survival damages, as well as aiding and abetting upon which they
rely in asserting such claims. The Complaint fails to provide defendants with adequate notice of
the claims which plaintiffs are pursuing in this litigation. See e.g., Pugh, 2006 U.S. Dist. LEXIS
58033 at *51, n. 19 (holding that complaint “failed to tie the claims of each and every one of the

29

Plaintiffs to a particular applicable state law,” and vague references to the law of Virginia, Texas,
Montana, and New York insufficient to survive motion to dismiss) (internal quotations omitted).
Since plaintiffs do not set forth with sufficient particularity the state law claims upon
which they base their FSIA claims, their Complaint should be dismissed.
C.

Plaintiffs’ Flatow Amendment and TVPA Claims Should be
Dismissed against the Individual Defendants Mu’Ammar Al-Qadhafi,
Abdallah Al-Sanusi, and Ibrahaim Al-Bishari due to Improper Service

In addition to the grounds asserted above for dismissal of plaintiffs’ Flatow Amendment
and TVPA claims against the individual Libya Defendants (see Sections II (B)(3) & (4), above),
these claims must be dismissed pursuant to Rule 12(b)(5) for improper service. Specifically,
plaintiffs’ claims under the Flatow Amendment and the TVPA against defendants Mu’Ammar
Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari must be brought against them in their
personal capacities. For these reasons, the service provisions of § 1608 of the FSIA do not apply
to claims brought against individuals in their personal capacities. In order to maintain their
claims under the Flatow Amendment and TVPA, plaintiffs must serve the individual Libya
Defendants in a manner which is consistent with Rule 4(f) of the Federal Rules of Civil
Procedure. Plaintiffs have not complied with the service provisions of Rule 4(f) and their claims
against the individual Libya Defendants under the Flatow Amendment and TVPA should be
dismissed due to improper service.
The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1601 et seq., provides the
exclusive methods for effecting service of process on a foreign state, political subdivision,
agency or instrumentality. See 28 U.S.C. § 1608. Section 1608(a) of the FSIA provides the
methods for service of process upon a foreign state or political subdivision. In the “D.C. Circuit,
the methods set forth in § 1608(a) are the sole channels through which service may properly be

30

effected on a foreign sovereign.” Doe v. State of Israel, 400 F. Supp. 2d 86, 101 (D.D.C. 2005)
(citing Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994)).
Similarly, 28 U.S.C. § 1608(b) provides the requirement for service upon an agency or
instrumentality of a foreign state. In matters brought against a foreign state, as well as a political
subdivision, agency or instrumentality of a foreign sovereign, the service requirements of § 1608
supersede the requirements for service of process under Rule 4 of the Federal Rule of Civil
Procedure.
An individual acting in his official capacity can qualify as an agency or instrumentality
of a foreign state for purposes of the service requirements of § 1608(b). See Doe v. State of
Israel, 400 F. Supp. 2d at 102. However, an individual foreign defendant sued in his personal
capacity is not subject to the service provisions of the FSIA. Id. at 102-103 (“As to the claims
against the individual Israeli defendants in their personal capacities, plaintiffs were required to
comply with the mandates of the Hague Convention, which, when it applies, is recognized as the
only acceptable way to serve foreign citizens.”) (citation omitted)). In Doe v. State of Israel,
plaintiffs brought claims against high ranking Israeli government officials in both their official
and personal capacities under various laws including the Alien Tort Claims Act (“ATCA”) and
TVPA, as well as the common law of various U.S. states. Plaintiffs served the individual
defendants sued in their personal capacities in the same manner as they served them in their
official capacities under § 1608(b). The court held that service made pursuant to the provisions
of the FSIA was improper with respect to an individual defendant sued in his personal capacity.
Id. at 102-103.
As discussed above, plaintiffs’ claims under the Flatow Amendment and the TVPA
against defendants Mu’Ammar Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim Al-Bishari must

31

be brought against them in their personal capacities. Accordingly, the service provisions of the
FSIA do not apply to plaintiffs’ Flatow Amendment and TVPA claims, but the service
provisions of Rule 4(f) of the Federal Rules of Civil Procedure are controlling. 9 Rule 4(f) states:
Unless otherwise provided by federal law, service upon an
individual from whom a waiver has not been obtained and filed,
other than an infant or an incompetent person, may be effected in a
place not within any judicial district of the United States: (1) by
any internationally agreed means reasonably calculated to give
notice, such as those means authorized by the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the
applicable international agreement allows other means of service,
provided that service is reasonably calculated to give notice: (A)
in the manner prescribed by the law of the foreign country for
service in that country in an action in any of its courts of general
jurisdiction; or (B) as directed by the foreign authority in response
to a letter rogatory or letter of request; or (C) unless prohibited by
the law of the foreign country, by (i) delivery to the individual
personally of a copy of the summons and the complaint; or (ii) any
form of mail requiring a signed receipt, to be addressed and
dispatched by the clerk of the court to the party to be served; or (3)
by other means not prohibited by international agreement as may
be directed by the court.
Plaintiffs have not served the individual Libya Defendants in a manner which is consistent with
Rule (f).
A finding of insufficient service of process is appropriate where the plaintiff fails to
effect service on each defendant in accordance with the Federal Rules of Civil Procedure or the
FSIA, if applicable. See Fed. R. Civ. P. 12(b)(5). A complaint may be dismissed for ineffective
service of process pursuant to Rule 12(b)(5) of Federal Rule of Civil Procedure if the plaintiff
fails to establish that he or she has properly effectuated service pursuant to Rule 4 of the Federal

9

Unlike in Doe v. State of Israel, Libya is not a party to the Hague Convention on the Service Abroad of Judicial
and Extra-Judicial Documents in Civil or Commercial Matters (the Hague Service Convention), 20 U.S.T. 1361, or
any other applicable multilateral treaties on service of process to which the United States is a party. Therefore, the
service provisions of Rule 4 are applicable to service of the individual Libya Defendants served in their individual
capacities.

32

Rules of Civil Procedure. Lindsey v. United States, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (citing
Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). "[T]he party on whose behalf service is made
has the burden of establishing its validity when challenged; to do so, he must demonstrate that
the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any
other applicable provision of law." Light, 816 F.2d at 751 (internal quotation marks and citation
omitted); see also Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003).
Similar to the facts in Doe v. State of Israel, plaintiffs in the case before this Court did not
serve the individual Libya Defendants personally pursuant to the service requirements for
individuals sued in their personal capacities, namely the service provisions of Rule 4 of the
Federal Rules of Civil Procedure. Rather, plaintiffs have attempted to effect service against all
defendants in the manner prescribed in § 1608(a) of the FSIA. See Notice of Proof of Service
Pursuant to § 1608(a)(3), Filing No. 4 herein. 10 However, in order to maintain their claims under
the Flatow Amendment and TVPA, plaintiffs must bring these claims against the individual
Libya Defendants in their personal capacities, and serve the individual Libya Defendants in a
manner which is consistent with Rule 4. Plaintiffs have failed to do so.
Should this Court find that the Complaint states claims against the individual Libya
Defendants in their personal capacities, plaintiffs’ claims under the Flatow Amendment and
TVPA must still be dismissed due to improper service.

10

Plaintiffs’ Notice of Proof of Service states in relevant part: “Pursuant to the Foreign Sovereign Immunities Act,
28 U.S.C. § 1608(a)(3), each of the defendants was served with a copy of the summons, Complaint, Notice of Suit,
and administrative documents, together with a copy of each translated into Arabic, via DHL delivery ‘to the head of
the ministry of foreign affairs of the foreign state concerned.’” (citation omitted).

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D.

Plaintiffs’ Claims against Defendant, Mu’ammar
al-Qadhafi are Subject to the Head-of-State Doctrine

Plaintiffs’ Complaint contends that defendant Mu’Ammar al-Qadhafi (“Qadhafi”) is the
“the leader of Libya.” Complaint, ¶ 32. The Complaint further alleges that Qadhafi is subject to
suit in the United States Courts pursuant the FSIA. Complaint, ¶ 3. Plaintiffs claim that
Qadhafi, while undertaking acts within the scope of his office, caused the terrorist attack on
December 27, 1985 and is therefore liable for the injuries suffered by plaintiffs as a result of the
terrorist attack. 11 However, the FSIA does not apply to foreign heads of state. Rather, the
determination as to whether a foreign head of state enjoys immunity from suit rests with the
Executive Branch. The U.S. Attorney General has not determined whether the head-of-state
doctrine applies to Qadhafi. Therefore, plaintiffs should be barred from proceeding with their
claims against defendant Mu’Ammar al-Qadhafi subject the Executive Branch’s decision
regarding Qadhafi’s immunity under the head-of-state doctrine.
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq., was enacted by
Congress in 1976. The FSIA provides foreign states with immunity from suit in courts of the
United States or of any state subject to international agreements to which the United States was a
party in 1976, as well as certain exceptions set forth in the FSIA. See 28 U.S.C. § 1604; Wei Ye
v. Jiang Zemin, 383 F.3d 620, 625 (7th Cir. 2004). The responsibility for determining whether an
exception to sovereign immunity for foreign states under the FSIA applies is left to the courts.
See United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) (“[The FSIA] codified the
State Department's general criteria for making suggestions of immunity and transferred the
responsibility for case-by-case application of these principles from the Executive Branch to the
Judicial Branch.”).
11

Plaintiffs do not allege any claims against defendant Mu’Ammar al-Qadhafi in his personal capacity; Qadhafi is
sued in his official capacity only.

34

In contrast, the FSIA does not speak to a party’s ability to bring suit in courts of the
United States or of any state against foreign heads of state. The Seventh Circuit has noted:
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 heads of states remains vested where it was
prior to 1976--with the Executive Branch.
Wei Ye, 383 F.3d at 625 (footnote omitted) (citing Noriega, 117 F.3d at 1212). In fact, the
Executive Branch's suggestion of immunity is conclusive and not subject to judicial inquiry. See
Wei Ye, 383 F.3d at 626 (citing Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974) (“The
precedents are overwhelming. For more than 160 years American courts have consistently
applied the doctrine of sovereign immunity when requested to do so by the executive branch.
Moreover, they have done so with no further review of the executive's determination.”);
Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198, 1201 (2nd Cir. 1971) (“The State
Department is to make [an immunity determination] in light of the potential consequences to our
own international position. Hence once the State Department has ruled in a matter of this nature,
the judiciary will not interfere.”) (additional citations omitted)). “The obligation of the Judicial
Branch is clear—a determination by the Executive Branch that a foreign head of state is immune
from suit is conclusive and a court must accept such a determination without reference to the
underlying claims of a plaintiff.” Wei Ye, 383 F.3d at 626 (citing Spacil, 489 F.2d at 618).
In a separate case currently pending in the District Court for D.C. in which Qadhafi is a
defendant, Judge Urbina of this Court has requested the position of the Executive Branch
regarding whether Qadhafi is entitled to head-of-state immunity. See Collett, 362 F. Supp. 2d at
234. Similarly, in Pugh, Judge Kennedy of this Court has held that plaintiffs cannot proceed

35

with their claims against the defendant Muammar Qadhafi in his official capacity as Libya's head
of state until the Attorney General has had the opportunity to submit his views regarding the
possibility of Qadhafi being granted head-of-state immunity. Pugh, 2006 U.S. Dist. LEXIS
58033 at *29 (“Given the important foreign policy considerations at play and because a federal
court must satisfy itself that it has subject matter jurisdiction over a defendant before it proceeds,
the court concludes that it must offer the Attorney General the opportunity to submit his views
regarding the possibility of Qadhafi being granted head-of-state immunity in this case.”) (internal
citations omitted)).
In both Collett and Pugh, the Attorney General has filed Statements of Interest of the
United States in which the Executive Branch has deferred responding to the respective Courts’
invitations to submit views regarding the application of the head-of-state doctrine. In both cases,
the Attorney General has stated that, “the United States remains in the midst of significant
discussions concerning the course of U.S.-Libya relations”, and that, “it would serve the
diplomatic and foreign policy interests of the United States to delay further responding the
Court’s invitation . . .” See Statements of Interest of the United States, attached hereto as
Exhibits D and E.
In the case before this Court, plaintiffs should be barred from proceeding with their
claims against defendant, Mu’Ammar al-Qadhafi at this time. The U.S. Attorney General has
not taken a position on whether the head-of-state doctrine applies to Qadhafi. The Court should
therefore stay all pending claims against defendant Mu’Ammar al-Qadhafi, to the extent any
such claims survive defendants’ statute of limitations, failure to state a claim, and improper
service arguments, and until such time as the Executive Branch offers a directive on the
applicability of the head-of-state doctrine to Qadhafi.

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III.

CONCLUSION
For the foregoing reasons, defendants, Great Socialist People’s Libyan Arab Jamahiriya,

Libyan Internal Security, Libyan External Security, Mu’Ammar Al-Qadhafi, Abdallah AlSanusi, and Ibrahaim Al-Bishari request that the Court enter an Order dismissing all of plaintiffs’
claims against defendants with prejudice.
Respectfully, Submitted,
ECKERT SEAMANS CHERIN
& MELLOTT, LLC

By:

/s/ Thomas J. Whalen
Thomas J. Whalen, Esq. (Bar No. 208512)
/s/ Mark A. Johnston
Mark A. Johnston, Esq. (Bar No. 455764)
1747 Pennsylvania Ave., N.W.,
Twelfth Floor
Washington, D.C. 20006
[phone]

Dated: December 5, 2006

Wendy West Feinstein, Esq. (Pa ID No. 86698)
(Admitted Pro Hac Vice)
600 Grant Street
44th Floor
Pittsburgh, PA 15219
[phone]

Counsel for Defendants, Great Socialist People’s
Libyan Arab Jamahiriya, Libyan Internal
Security, Libyan External Security, Mu’Ammar
Al-Qadhafi, Abdallah Al-Sanusi, and Ibrahaim
Al-Bishari

37