CERTAIN UNDERWRITERS AT LLOYDS LONDON et al v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al

Filing 38

MEMORANDUM OPINION to the Order granting Libyan Defendants' Motions to Dismiss. Signed by Judge Gladys Kessler on 1/7/10. Associated Cases: 1:06-cv-00731-GK, 1:08-cv-00504-GK(CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREAT SOCIALIST PEOPLE’S
)
LIBYAN ARAB JAMAHIRIYA,
)
et al.,
)
)
Defendants.
)
______________________________)
)
CERTAIN UNDERWRITERS AT
)
LLOYDS LONDON, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
GREAT SOCIALIST PEOPLE’S
)
LIBYAN ARAB JAMAHIRIYA,
)
et al.,
)
)
Defendants.
)
______________________________)
CERTAIN UNDERWRITERS AT
LLOYDS LONDON, et al.,

Civil Action No. 06-731 (GK)

Civil Action No. 08-504 (GK)

MEMORANDUM OPINION
In
Lloyds

C.A.
London

No.

06-731,

(“Lloyds”),

Plaintiffs
Allianz

Certain
Cornhill

Underwriters
Insurance,

at

PLC;

Aviation & General Insurance Company, Ltd.; English & American
Insurance Company Ltd.; Markel Insurance Company Ltd.; Minster
Insurance Company Ltd.; MMO/New York Marine and General; Nippon
Insurance Company of Europe Ltd.; Riverstone Insurance UK Ltd.;

Sovereign

Marine

&

General

Insurance

Company

Ltd.;

SR

International Business Insurance Company Ltd.; Tower Insurance
Ltd.; and La Réunion Aérienne (collectively, “Plaintiffs”) bring
these actions against Defendants Great Socialist People’s Libyan
Arab

Jamahiriya;

Libyan

Internal

Security;

Libyan

External

Security; Mu’ammar al-Qadhafi; Abdallah al-Sanusi; Ibrahaim alBishari

(collectively,

“Libyan

Defendants”);

the

Syrian

Arab

Republic; Syrian Air Force Intelligence; and Muhammed al Khuli
(collectively,

“Syrian

Defendants”),1

pursuant

to

the

Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq.
(2006) (Count I);

common law conversion and trespass (Counts II

and III); and Aircraft Piracy under the Alien Tort Claims Act
(“ATCA”), 28 U.S.C. § 1350 (2006) (Count IV).

Second Am. Compl.

[C.A. No. 06-731, Dkt. No. 60].
In C.A. No. 08-504, the same Plaintiffs bring suit pursuant
to the National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, § 1083, 122 Stat. 3 (2008).

They claim that

Defendants violated the FSIA (Count I); committed common law
conversion

and

trespass

(Counts

1

II

and

III);

and

engaged

in

Defendants
Syrian
Arab
Republic,
Syrian
Air
Force
Intelligence, and Muhammed al Khuli defaulted in C.A. No. 06-731
[Dkt. Nos. 21-23] and have failed to appear in C.A. No. 08-504.
Hereinafter, “Defendants” refers to all Defendants except the
Syrian defendants.

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Aircraft Piracy under the ATCA (Count IV). Compl. [C.A. No. 08504, Dkt. No. 1].
These cases are before the court on Defendants’ Motions to
Dismiss Duplicative Complaint [C.A. No. 06-731, Dkt. No. 74; C.A.
No. 08-504, Dkt. No. 18] and Defendants’ Supplemental Motions to
Dismiss [C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt. No.
24].
I.

BACKGROUND2
On

November

23,

1985,

three

members

of

the

Abu

Nidal

Organization3 (“ANO”) hijacked Egypt Air Flight 648, traveling
from

Athens,

governments
variety

of

Greece

of

Libya

monetary,

to

Cairo,

and

Syria

material,

Egypt.
sponsored

At

that

time,

ANO

by

providing

diplomatic,

and

the
a

logistical

support.
Shortly after takeoff, the plane made an emergency landing
at the Malta International Airport, where it remained for twenty2

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. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008).
Therefore, the facts set forth herein are taken from
Plaintiff’s Complaint unless otherwise noted.
3

The ANO is also known as Black September, the Fatah
Revolutionary Council, the Arab Revolutionary Council, the Arab
Revolutionary Brigades, and the Revolutionary Organization of
Socialist Muslims.

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four hours until Egyptian Commandos attempted to board it.

The

combination of gunfire by the ANO members, a fire started by the
Egyptian Commandos’ explosives, and the ANO members’ deployment
of hand grenades rendered the plane “damaged beyond repair” and
unfit “for any purpose whatsoever.”

Compl. ¶ 51 [C.A. No. 08-

504].
Plaintiffs,

which

are

both

foreign

and

United

States

national juridical entities, provided liability insurance for the
hull of the plane.

Following the hijacking, they “compensated”

Egypt Air “for the cost of the destroyed airplane.”

Id. ¶ 64.

On April 21, 2006, Plaintiffs filed a Complaint in this
Court against the Libyan and Syrian Defendants.

The original

Complaint alleged Conversion (Count I), Trespass (Count II), and
Aircraft Piracy (Count III).

On November 9, 2006, Plaintiffs

filed an Amended Complaint adding an additional allegation of
International Terrorism in Violation of 18 U.S.C. § 2333 (Count
IV) [Dkt. No. 26].
On December 5, 2006, Defendants filed a Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and
(6) [Dkt. No. 32].
Hearing.

On June 12, 2007, this Court held a Motions

On July 9, 2007, it granted Defendants’ Motion to

Dismiss for lack of subject matter jurisdiction [Dkt. Nos. 45-

-4-

46].

Plaintiffs filed an appeal on August 3, 2007, and on

February 1, 2008, our Court of Appeals ruled that it lacked
jurisdiction to consider the appeal.

Consequently, it ordered

that the Motion to Dismiss be granted.

See Certain Underwriters

at Lloyd’s of London v. Great Socialist People’s Libyan Arab
Jamahiriya, No. 07-7117 (D.C. Cir. Dec. 14, 2007) [Dkt. No. 61].
On

February

22,

2008,

Plaintiffs

filed

a

Motion

for

Reconsideration [Dkt. No. 51] and a Motion for Leave to File a
Second Amended Complaint [Dkt. No. 52].

On March 28, 2008, the

Motion for Leave was granted and Plaintiffs filed their Second
Amended Complaint the same day [Dkt. No. 60].

The Second Amended

Complaint alleges a violation of 28 U.S.C. § 1605A(d) (Count I),
Conversion (Count II), Trespass (Count III), and Aircraft Piracy
(Count IV), seeking a sum in excess of $40 million on each count.
On

April

14,

2008,

the

Court

denied

Plaintiffs’

Motion

for

Reconsideration without prejudice [Dkt. No. 64].
On

March

24,

2008,

Plaintiffs

filed

a

second

Complaint

against the same Defendants,4 alleging a violation of 28 U.S.C. §

4

Plaintiffs also filed a Notice of Related Cases on April 21,
2006 [C.A. No. 06-731, Dkt. No. 2]. In it, they indicated that
another case, Baker, et al. v. Libya, et al., C.A. No. 03-749,
“relate[d] to common property; involve[d] common issues of fact;”
and “[grew] out of the same event or transaction.”
Notice of
Related Cases at 1.

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1605A(d) (Count I), Conversion (Count II), Trespass (Count III),
and Aircraft Piracy (Count IV), seeking a sum in excess of $40
million on each count [C.A. No. 08-504, Dkt. No. 1].

On July 25,

2008, Plaintiffs filed a Motion to Consolidate Cases [C.A. No.
08-504, Dkt. No. 17], and Defendants filed Motions to Dismiss
Duplicative Complaint [C.A. No. 06-731, Dkt. No. 74; C.A. No. 08504, Dkt. No. 18].
On November 20, 2008, Defendants filed Supplemental Motions
to Dismiss [C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt.
No. 24].

On March 16, 2009, the United States filed a Statement

of Interest in each case [C.A. No. 06-731, Dkt. No. 84; C.A. No.
08-504, Dkt. No. 28].
On July 10, 2009, the two cases--06-731 and 08-504--were
consolidated.

[C.A. No. 06-731, Dkt. No. 92; C.A. No. 08-504,

Dkt. No. 36].
II.

STANDARD OF REVIEW
To survive a motion to dismiss, a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its
face” and to “nudge[] [his or her] claims across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).

“[O]nce a claim has been stated adequately, it

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may be supported by showing any set of facts consistent with the
allegations in the complaint.”

Id. at 579.

Under the standard set out in Twombly, a “court deciding a
motion

to

dismiss

must

not

make

any

judgment

about

the

probability of the plaintiff's success . . . must assume all the
allegations in the complaint are true (even if doubtful in fact)
. . . [and] must give the plaintiff the benefit of all reasonable
inferences derived from the facts alleged.” Aktieselskabet AF
21.November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008) (internal quotation marks and citations omitted).
III. ANALYSIS
On August 4, 2008, the Libyan Claims Resolution Act (“LCRA”)
was signed into law in order to “provide for ‘fair compensation
to all nationals of the United States who have terrorism-related
claims against Libya through a comprehensive settlement of claims
by such nationals.’”

Statement of Interest of the United States

at 4-5 (quoting Pub. L. No. 110-301, § 3, 122 Stat. 2999 (2008)).
The statute states that
section 1605A(c) of title 28, United States Code,
section 1083(c) of the National Defense Authorization
Act for Fiscal Year 2008 . . . and any other private
right of action relating to acts by a state sponsor of
terrorism arising under Federal, State, or foreign law
shall not apply with respect to claims against Libya,
or any of its agencies, instrumentalities, officials,

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employees, or agents in any action in a Federal or
State court.
Pub. L. No. 110-301, § 5(a)(1)(B).

The Act provides Libya with

immunity that applies to suits brought in the United States by
plaintiffs of any nationality.5

Id. at § 5(a)(1).

On August 14, 2008, shortly after the passage of the LCRA,
Libya

and

Agreement

the

United

States

(“Settlement

signed

Agreement”)

permanently all pending suits

in

the

Claims

order

to

Settlement
“terminate

. . . [and] preclude any future

suits” in United States or Libyan courts arising from terrorist
acts,

including

aircraft

hijacking

occurred prior to June 30, 2006.

and

hostage-taking,

which

Claims Settlement Agreement

Between the United States of America and the Great Socialist
People’s Libyan Arab Jamahiriya, art. I, August 14, 2008.

After

the United States Government received $1.5 billion in settlement
funds, President Bush signed an Executive Order stating that
“[a]ll

claims

within

the

terms

of

Article

Settlement Agreement . . . are settled.”

I

of

the

Claims

Exec. Order No. 13,477,

§ 1 (2008).

5

The LCRA states that “Libya, an agency or instrumentality of
Libya, and the property of Libya or an agency or instrumentality of
Libya, shall not be subject to the exceptions to immunity from
jurisdiction, liens, attachment, and execution contained in section
1605A, 1605(a)(7), or 1610 . . . of Title 28, United States Code.”
Pub. L. No. 110-301, § 5(a)(1)(A).
-8-

The Order declares that “[n]o United States national may
assert or maintain any claim within the terms of Article I in any
forum” outside the provisions of the Settlement Agreement and
that “[a]ny pending suit in any court . . . by United States
nationals . . . coming within the terms of Article I shall be
terminated.”

Id.

nationals,

Order

the

§

1(a)(i-ii).
states

that

With
“[n]o

regard

foreign

to

foreign

national

may

assert or maintain any claim coming within the terms of Article I
in any court in the United States,” and “[a]ny pending suit in
any court in the United States by foreign nationals . . . coming
within the terms of Article I shall be terminated.”6

Id. §

1(b)(i-ii).
In the federal system, the FSIA is the “sole basis for
obtaining jurisdiction over a foreign state.”

Argentine Republic

v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).

See

also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486
(1983) (“[I]f none of the exceptions to sovereign immunity set
forth

in

statutory

the

[FSIA]

subject

jurisdiction”).

applies,
matter

the

District

Court

jurisdiction

and

lacks

both

personal

While Plaintiffs rightly point out that, under

6

The Order does permit foreign nationals “to pursue other
available remedies for claims coming within the terms of Article I
in foreign courts or through the efforts of foreign governments.”
Exec. Order No. 13,477, § 1(b)(iii).

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28 U.S.C. § 1605A(c), the January 2008 amendments to the FSIA
provide

a

new

federal

cause

of

action

against

nations

that

sponsor terrorism, the LCRA explicitly overrides § 1605A(c) and
restores immunity to Libya pursuant to the Settlement Agreement.
Principles

of

statutory

interpretation

establish

that

7

“a

specific statute will not be controlled or nullified by a general
one,

regardless

Mancari,

417

of

U.S.

the
535,

priority
550-51

of

enactment.”

(1974).

That

Morton

v.

principle

is

applicable to this case where the explicit language of the LCRA
negates a general provision of the FSIA.8
Plaintiffs concede that their claims fall within Article I
of the Settlement Agreement [C.A. No. 06-731, Dkt. No. 81; C.A.
No. 08-504, Dkt. No. 25].

Pls.’ Opp’ns ¶ 6.

Furthermore,

Defendants all fall within the class for which the LCRA provides
immunity--the

Libyan

government,

its

agencies

(Internal

and

7

As quoted, supra, “section 1605A(c) of title 28, United States
Code . . . and any other private right of action relating to acts
by a state sponsor of terrorism arising under Federal, State, or
foreign law shall not apply with respect to claims against Libya,
or any of its agencies, instrumentalities, officials, employees, or
agents in any action in a Federal or State court.” Pub. L. 110301, § 5(a)(1)(B).
8

Retroactivity is not at issue in this case because Congress has
made clear its intent to apply the provisions of the LCRA to events
prior to June 30, 2006. See Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994) (requiring deference to Congressional intent with
respect to statutes’ retroactive application).

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External Security), and its officials, employees, or agents (alQadhafi, al-Sanusi, and al-Bishari).
Because the LCRA, Settlement Agreement, and Executive Order
specifically

and

comprehensively

withdraw

any

exception

to

sovereign immunity that may be provided in the FSIA with regard
to Defendants’ pre-2006 support of terrorist acts, this Court
lacks subject matter jurisdiction over the Libyan Defendants.
See Verlinden B.V., 461 U.S. at 485 n.5.
Plaintiffs

nevertheless

“suggest”

that

the

Court

retain

jurisdiction over the case until it is clear that an alternate
forum can provide relief for their claims.
Position at 3 [C.A. No. 08-504, Dkt. No. 33].
comply

with

dispositive.

Plaintiffs’

wish:

the

Pls.’ Statement of
The Court cannot

jurisdictional

issue

is

See Antolok v. United States, 873 F.2d 369, 375

(D.C. Cir. 1989) (“Congress has deprived the courts of the United
States of jurisdiction over these claims. . . . That is the end
of the matter.”).

9

Because the Court lacks jurisdiction, there is no need to
analyze the allegedly duplicative nature of Plaintiffs’ Complaint
in C.A. No. 08-504.

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9

IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motions to

Dismiss are granted with respect to the Libyan Defendants.10

An

Order shall accompany this Memorandum Opinion.

/s/
Gladys Kessler
United States District Judge

January 6, 2010

Copies to: Attorneys of record via ECF

10

Plaintiffs raise several additional contentions alleging that
the provisions under the LCRA and Settlement Agreement are
insufficient to address their claims. However, the lack of subject
matter jurisdiction and personal jurisdiction is dispositive in
this case. See Antolok, 873 F.2d at 375.
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