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

Filing 35

MEMORANDUM OPINION to Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 7/9/07. (CS, )

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.
)
______________________________)

Civil Action No. 06-727 (GK)

MEMORANDUM OPINION
This case arises out of the terrorist attack on the El Al and
TWA ticket counters at Rome’s Fiumicino Airport on December 27,
1985.

The Plaintiffs are six United States nationals who were

injured in the attack and survived and the estates and survivors of
five United States nationals who were killed.

They bring common

law and statutory claims for personal injury and wrongful death
against the governments of Libya and Syria; against three Libyan
and Syrian intelligence agencies: Libyan Internal Security, Libyan
External Security, and Syrian Air Force Intelligence; and against
the following individuals: Mu’ammar al-Qadhafi, Libya’s head of
state, Major Abdallah al-Sanusi, Chief of Libyan Internal Security,

Ibrahim al-Bishari, Chief of Libyan External Security, and General
Muhammed Al Khuli, Chief of Syrian Air Force Intelligence.1
This matter is before the Court on the Motion of Defendants
Libya, Libyan Internal Security, Libyan External Security, alQadhafi, al-Sanusi, and al-Bishari (hereinafter referred to as
“Libya”) to Dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for
insufficient service of process, and pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be
[Dkt. No. 17].

granted.

Upon consideration of the Motion,

Opposition, Reply, Surreply, the parties’ arguments at the motions
hearing held before the Court on June 12, 2007, and the entire
record herein, and for the reasons stated below, Defendants’ Motion
to Dismiss is granted.
I.

BACKGROUND2
On

the

morning

of

December

27,

1985,

four

Palestinian

terrorists associated with the Abu Nidal Organization stormed
Rome’s Fiumicino Airport. The four terrorists split into two teams
to

attack

passengers

waiting

at

the

El

Al

and

TWA

check-in

1

The Clerk entered a default judgment against Defendants
Syria, Syrian Air Force Intelligence, and General Al Khuli on
October 4, 2006. [Dkts. 9, 10, and 11].
2

For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff.
Shear v. Nat’l
Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979).
Therefore, the facts set forth herein are taken from Plaintiff’s
Complaint.
2

counters.

Firing

assault

rifles

and

throwing

grenades,

the

terrorists killed thirteen individuals and wounded seventy-five
others.

Three of the four assailants were themselves killed by El

Al security agents.

The surviving terrorist, Khaled Ibrahim

Mahmood, was later convicted for his role in the attack.

The

Complaint

and

alleges

that

Libya

provided

material

support

assistance for this heinous act of terrorism.
II.

STANDARD OF REVIEW
“A motion to dismiss for failure to state a claim upon which

relief can be granted is generally viewed with disfavor and rarely
granted.”

Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C.

Cir. 1985) (internal citations omitted).

As stated above, the

factual allegations of the complaint must be presumed true and
liberally construed in favor of the plaintiff.

Shear, 606 F.2d at

1253 (D.C. Cir. 1979).
III. ANALYSIS
A.

The FSIA’s Ten-Year Statute of Limitations Has Expired

Libya argues, inter alia, that Plaintiffs’ claims are barred
by the Foreign Sovereign Immunities Act’s (“FSIA”) ten year statute
of limitations. 28 U.S.C. § 1605(f). It contends that Plaintiffs’
cause of action arose on December 27, 1985, more than twenty years
before Plaintiffs filed their Complaint in April 2006.

Plaintiffs

respond that the ten year statute of limitations was tolled until
Congress enacted 28 U.S.C. § 1605(a)(7) on April 24, 1996, which

3

for the first time waived sovereign immunity for state sponsors of
terrorism. They argue that the statute of limitations began to run
on April 24, 1996 and therefore, had not expired when they filed
their Complaint on April 21, 2006.
The statute of limitations provision for claims brought under
28 U.S.C. § 1605(a)(7) provides that
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).
Judge Henry H. Kennedy, Jr., recently held in a well reasoned
decision that Section 1605(f) does not provide an automatic ten
year extension of time for plaintiffs to bring their claim after
Congress enacted it in 1996.

Vine v. Republic of Iraq, 459 F.

Supp. 2d 10, 20-21 (D.D.C. 2006).

In Vine, the court held that the

plaintiffs’ injuries arose in December 1990, when they were held as
hostages by the Iraqi regime, and not in April 1996, when Congress
amended the FSIA.

Id. at 21.

In so holding, the court drew a

distinction between when a cause of action “arises” and when it
“accrues.”

Id.

“A claim ‘arises’ on the date that the action in

question occurred, yet does not ‘accrue’ until a prior disability
to suit is removed.”

Id.

Under the FSIA, the key question is when

the claim “arose,” that is, when the events in question occurred.

4

Because the ten year statute of limitations had run in Vine,
the court then looked to principles of equitable tolling, as
directed by Section 1605(f). As explained by our Court of Appeals,
“the doctrine of equitable tolling...shelters the plaintiff from
the statute of limitations in cases where strict application would
be inequitable.”
1993).

Phillips v. Heine, 984 F.2d 489, 491 (D.C. Cir.

However, as the Court of Appeals emphasized, “[equitable]

tolling does not bring about an automatic extension of the statute
of limitations by the length of the tolling period.”

Id. at 492.

Instead, the doctrine provides extra time to a plaintiff only if it
is needed, and only for a reasonable period.

Id.

The Vine court

applied these principles and held that the delay in filing the
complaint in that case was not reasonable.

459 F. Supp. 2d at 22-

23.
Plaintiffs in this case argue that the holding of Vine is
inconsistent with the weight of authority in this Circuit.

See

Collett v. Socialist Peoples’ Libyan Arab Jamahiriya, 362 F. Supp.
2d 230, 242 (D.D.C. 2005); Wyatt v. Syrian Arab Republic, 398 F.
Supp. 2d 131, 145 (D.D.C. 2005); Peterson v. Islamic Republic of
Iran, 264 F. Supp. 2d 46, 60 (D.D.C. 2003); Flatow v. Islamic
Republic of Iran, 999 F. Supp. 1, 23 (D.D.C. 1998).

Their argument

is unpersuasive.
Two of these cases, Peterson and Flatow, involve default
judgments where the statute of limitations issue was never fully

5

litigated.
at 6.

Peterson, 264 F. Supp. 2d at 48; Flatow, 999 F. Supp.

While Collett and Wyatt do squarely address the issue,

neither case provides more than a conclusory statement about
Section

1605(f)

and,

most

significantly,

neither

case

even

considers the Court of Appeals’ decision in Phillips. See Collett,
362

F.

Supp.

2d

at

242;

Wyatt,

398

F.

Supp.

2d

at

145.

Consequently, this Court finds the detailed analysis of Section
1605(f) in Vine to be more compelling.
Plaintiffs also contend that Phillips is not controlling
because it describes principles of equitable tolling applicable
under the Death on the High Seas Act statutory scheme, 46 U.S.C.
app. § 761 et seq.

They argue that Section 1605(f) should be

liberally construed in light of Congress’ intent to punish state
sponsors of terrorism and provide just compensation for the victims
of terrorism.
However, nothing in Phillips indicates that its treatment of
equitable tolling was limited to the Death on the High Seas Act.
Indeed, the Phillips court, in discussing the contours of the
equitable tolling doctrine, cited a number of cases involving a
wide variety of statutes. 984 F.2d at 491 (citing e.g., Burnett v.
New York Cent. R.R. Co., 380 U.S. 424 (1965) (Federal Employers’
Liability Act); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th
Cir. 1990) (Age Discrimination in Employment Act); Hill v. Texaco,
Inc., 825 F.2d 333 (11th Cir. 1987) (Petroleum Marketing Practices

6

Act); Timoni v. United States, 419 F.2d 294 (D.C. Cir. 1969)
(National Service Life Insurance Act)).

Given the wide variety of

statutory schemes involved in these cases and the broad language
used by the Court of Appeals, it is difficult to construe the
Phillips court’s discussion of equitable tolling as only limited to
the Death on the High Seas Act.
Based

on

the

general

principles

of

equitable

tolling

enunciated in Phillips, the Court concludes that Plaintiffs’ claims
arose in December 1985, and that principles of equitable tolling
permit suit for a reasonable period of time after Congress enacted
28 U.S.C. § 1605(a)(7) in April 1996, which waived sovereign
immunity

for

Libya.

Congress

did

not

create

“an

automatic

extension of the statute of limitations by the length of the
tolling period.”
B.

See Phillips, 984 F.2d at 492.

The Complaint Was Not Filed Within a Reasonable Period of
Time

The Court must therefore determine if Plaintiffs filed suit
within a reasonable period of time after enactment of Section
1605(a)(7).

Plaintiffs initially offered two reasons for their

delay in filing this lawsuit.

First, they maintained that

plaintiffs face difficult challenges in marshaling evidence in
cases

involving

terrorist

acts

and

that

the

passage

of

improves the “accuracy of the evidence plaintiffs present.”
Opp’n at 42 [Dkt. No. 22].

time
Pls.’

Second, they argued that the interests

of American victims of terrorism in obtaining compensation for
7

their injuries outweighs any interests of the Defendants.

Neither

argument prevails.
While Plaintiffs’ first argument may have merit in other
cases, here they cannot point to any specific evidence that was
necessary to the filing of their Complaint which was not already
known and available in 1996.

In fact, the Plaintiff’s Complaint

demonstrates that Plaintiffs were on notice of their claims by
1988, when the surviving terrorist, Khaled Ibrahim Mahmood, was
convicted by an Italian court for his role in the attack.
¶ 49. [Dkt. No. 1].

Compl.

Khaled admitted at his trial that the attack

on the Rome Airport was “directly supported by the government of
Libya,” Id.

¶ 50, and that “Libya provided the terrorists...with

weapons and passports.”

Id. ¶ 57.

Moreover, according to the Complaint, Libya did little to
conceal its role in the Rome Airport Attack.

For example, “on

January 2, 1986, Qadhafi threatened to ‘pursue U.S. citizens in
their country and streets’ in retaliation for any action taken by
the United States in response to Libya’s involvement in these
terrorist attacks.”

Id. ¶ 83.

A Libyan news agency celebrated the

Rome Airport attack, among others, as “‘heroic operations carried
out by the sons of the martyrs of Sabra and Shatila....’”

Id. ¶

84.
The doctrine of equitable tolling “gives the plaintiff extra
time only if he needs it.”

Phillips, 984 F.2d at 492 (emphasis in

8

original).

Plaintiffs have made no showing that they needed ten

additional years after 1996 to file their Complaint. As already
noted, the Complaint itself indicates that Plaintiffs were put on
notice of their claims against the Defendants by the late 1980s.
Plaintiffs’ policy argument that their interests outweigh
those of the Defendants also fails.

Congress has already balanced

the interests of American victims of terrorism against those of
state sponsors of terrorism in the form of Section 1605(f).

If a

plaintiff does not need additional time, “there is no basis for
depriving

the

defendant

of

the

protection

of

the

statute

of

limitations, which after all exists to advance important interests
in evidentiary accuracy and repose.”

Phillips, 984 F.2d at 492.

(internal quotation marks and citations omitted).

Had Congress

wished to strike a different balance, it could have done so.
On

July

2,

2007,

Plaintiffs

sought

leave

to

file

a

Supplemental Memorandum in response to a question raised by the
Court during the June 12, 2007 Oral Argument.
that

the

ten

unreasonable

year
because

delay
Vine

in
had

decisions had held otherwise.

filing
not

their

been

In it they argued
Complaint

decided

and

was
no

not

other

Therefore, the statute should be

tolled based on Plaintiffs’ “excusable neglect.”

See Griffin v.

Rogers, 399 F.3d 626, 637 (6th Cir. 2005).
The problem with Plaintiffs’ argument is that Phillips, on
which Vine, and this Court, rely was decided in 1993, three years

9

before enactment of Section 1605(f). Consequently, Plaintiffs were
clearly on notice of the discussion of equitable tolling in that
opinion and the broad language used by the Court of Appeals.3
While this Court has great personal sympathy for the grievous
tragedies suffered by Plaintiffs, at the end of the day it will be
up to the Court of Appeals whether Phillips does or does not apply
to cases brought under the FSIA.
In sum, the Plaintiffs did not bring their Complaint within a
reasonable amount of time after Congress waived sovereign immunity
for state sponsors of terrorism in 1996.

Accordingly, Plaintiffs’

Complaint is time-barred and must be dismissed.
Because this issue is dispositive of the case, the Court need
not examine Libya’s other arguments.
IV.

CONCLUSION
For the foregoing reasons, Libya’s Motion to Dismiss [Dkt. No.

17] is granted and the Complaint is dismissed with prejudice.

An

order shall issue with this Memorandum Opinion.

/s/
Gladys Kessler
United States District Judge

July 9, 2007

Copies to: Attorneys of record via ECF
3

In view of the Court’s disposition of the pending motion,
there is no need for Libya to file a response to Plaintiffs’
Supplemental Memorandum.
10