SIMPSON et al v. GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al

Filing 49

THIRD FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER. Signed by Magistrate Judge John M. Facciola on 4/17/13. (SP, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ESTATE OF JOHN BUONOCORE III, et al.,
Plaintiffs,
v.

Civil Action No. 06-727 (JMF)

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

VICTOR SIMPSON, et al.,
Plaintiffs,
v.

Civil Action No. 08-529 (JMF)

GREAT SOCIALIST PEOPLE’S LIBYAN
ARAB JAMAHIRIYA, et al.,
Defendants.
THIRD FINDINGS OF FACT AND CONCLUSIONS OF LAW 1
AND ORDER
The only remaining issue in these related cases is whether the Pepenella brothers have
articulated a viable cause of action. As noted previously, the Court has subject matter
jurisdiction over their claims:
With respect to the Pepenella brothers, although they were not U.S.
nationals at the time of the attack, their mother, Elena Tomarello, was
a naturalized U.S. citizen at the time of the incident. Therefore,
because the FSIA grants this court subject matter jurisdiction over
cases where either “the claimant or the victim was, at the time of the
[terrorist] act” (emphasis added), a U.S. national and because Elana

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The opinion incorporates by reference the first Findings of Fact and Conclusions of Law [#109] and the Second
Findings of Fact and Conclusions of Law [#110] issued in both cases on January 29, 2013. The document numbers
given in this opinion refer to those assigned in the earlier civil action, 06-727.

Tomarello was a U.S. national by virtue of being a naturalized U.S.
citizen, this court has subject matter jurisdiction over the Pepenella
brothers’ claims.
[#110] at 9.
Again, as noted previously by the Court, although the Pepenella brothers do not have a
private federal right of action, they “can nevertheless pursue ‘pass through’ claims under
applicable state or foreign law, based on the waiver of sovereign immunity granted in §
1605A(a)(2)(A)(ii). Leibovitch, 697 F.3d at 572 n.6.” Id. at 11. To this end, the Court directed
them to file a supplemental memorandum more fully explaining the basis for their state law
claims, which they have now done. In the interests of brevity, the Court will not repeat herein
the findings of fact it previously made with respect to the Pepenella brothers, but will simply
provide its conclusions of law.
CONCLUSIONS OF LAW
In the Second Amended Complaint for Compensatory and Punitive Damages [#82], the
Pepenella brothers assert claims for 1) common law intentional infliction of emotional distress,
including solatium, 2) common law civil conspiracy, 3) common law and state statutory law
aiding and abetting, and 4) common law punitive damages. Id. at 31-33, 39-43. In their most
recent submission, however, the Pepenella brothers only assert claims for common law
intentional infliction of emotional distress and common law civil conspiracy. Pepenella
Plaintiffs[’] Supplemental Findings of Fact and Conclusions of Law [#113] at 3-4. With respect
to those claims, the Pepenella brothers contend that the Court should apply Florida law to
Armando’s claims, as he was domiciled there at the time of the attack, and that the Court should
apply Pennsylvania law to Bruno’s claims, as he was domiciled there at the time of the attack. Id.
I.

The District of Columbia’s Choice of Law Rules Apply
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In the District of Columbia, federal courts analyzing claims under the FSIA apply the
choice of law rules of the forum state. Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841
(D.C. Cir. 2009) (“We thus agree with the Second Circuit that applying the forum state’s choiceof-law principles, rather than constructing a set of federal common law principles, better
effectuates Congress’ intent that foreign states be ‘liable in the same manner and to the same
extent as a private individual’ in FSIA actions. 28 U.S.C. § 1606.”).
II.

Italy’s Substantive Law Applies to the Pepenella Brothers’ Claims
Under the District of Columbia’s choice of law rules, the Court must first determine

whether a conflict exists between 1) the law of the forum state (the District of Columbia), 2) the
law of the place where the tort or terrorist attack occurred (Italy), or 3) the law of the states
where the Pepenella brothers were domiciled at the time of the attack (Florida and
Pennsylvania). See USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C. 2008). The
Pepenella brothers contend simply that the Court should apply the law of the domicile state of
each of the brothers. They offer no evidence or argument as to the application of the law of the
forum or of Italian law to the Pepenellas’ claims. The Court, therefore, has no evidence before it
as to the laws of Italy. Assuming, however, that there is a conflict between these laws, the Court
concludes, utilizing the District of Columbia’s constructive blending of the “government
interests analysis” and the “most significant relationship” test, that the laws of Italy should apply.
See Oveissi, 573 F.3d at 842.
The governmental interests analysis requires the court to “evaluate the governmental
policies underlying the applicable laws and determine which jurisdiction’s policy would be most
advanced by having its law applied to the facts of the case under review.” Id. (quoting Hercules
& Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 (D.C. 1989)). The most significant
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relationship test requires the court to consider 1) “the place where the injury occurred,” 2) “the
place where the conduct causing the injury occurred,” 3) the domicil[e], residence, nationality,
place of incorporation and place of business of the parties,” and 4) “the place where the
relationship, if any, between the parties is centered.” Id. (quoting Restatement (Second) of
Conflict of Laws § 145(2) (1971)).
In Oveissi, a U.S. citizen living in France brought suit under the FSIA for the
assassination, by the Islamic Republic of Iran and its Ministry of Information and Security, of his
grandfather, a former Iranian military officer who was also living in France. Oveissi, 573 F.3d at
837. Applying the combined governmental interests/most significant relationship test, the court
of appeals concluded that 1) “France has a strong governmental interest in both deterring attacks
within its sovereign borders and ensuring compensation for injuries to its domiciliaries,” and 2)
France had the most significant relationship to the murder. Oveissi, 573 F.3d at 835, 841.
Significantly, the appellate court overturned the trial court’s application of California state law to
plaintiff’s claims, noting that although plaintiff was born and briefly resided in California, he did
not live there at the time of the murder and that, although the U.S. generally “has a strong
[governmental] interest in applying its domestic law to terrorist attacks on its nationals,” the
victim was not a U.S. national, nor was there any evidence that the U.S. or its nationals were the
object of the attack. Id. at 843.
With respect to the Pepenella brothers’ claims, although the victim, their mother, was a
U.S. national, they were not at the time of the attack. Thus, while the U.S. arguably has an
interest in applying its domestic law to its aggrieved domiciliaries, that interest is diminished
when those domiciliaries are not U.S. nationals.

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More significantly, there is no evidence in the record that the U.S. or its nationals were
the specific object of Abu Nidal’s attack on the Rome Airport in 1985. At most, plaintiffs’
experts note in general terms that Syria has historically used terrorism to effectuate its foreign
policy goals, which often involved the U.S. See, e.g., [#109], ¶ 3 (“Historically, Syria has
provided material support to terrorist groups primarily in order to achieve foreign policy goals,
such as pushing the United States and its allies out of the region.”); ¶ 5 (“Syrian sponsored
terrorist activities were, and continue to be, primarily directed against any entity supportive of
that process, including moderate Arab states such as Egypt, pro-Yassir Arafat Palestinian groups,
and U.S. and Israeli targets.”); ¶ 7 (“Syria utilized, and continues to utilize, terrorist groups as a
means of achieving foreign policy goals without resorting to conventional methods of warfare,
which it cannot afford to wage against either Israel or the United States.”). For purposes of
determining the appropriate substantive law to apply to the Pepenella brothers’ claims, the
ANO’s attack on passengers in the vicinity of the El Al and TWA ticket counters at the Rome
Airport is clearly distinguishable from, for example, those terrorist attacks that have directly
targeted U.S. facilities and U.S. nationals working abroad. See, e.g., Owens v. Republic of
Sudan, 826 F. Supp. 2d 128, 155 (D.D.C. 2011) (in FSIA action brought by foreign national
employees of the U.S. government and their family members against Sudan and Iran for injuries
and damages arising from the state-sponsored terrorist bombing of U.S. embassies in Kenya and
Tanzania, governmental interests test favored application of U.S. domestic law); Estate of Doe v.
Islamic Republic of Iran, 808 F. Supp. 2d 1, 21-22 (D.D.C. 2011) (in FSIA action brought by
foreign national employees of the U.S. government and their family members against Iran for
injuries and damages arising from the state-sponsored terrorist bombing of two U.S. embassy
facilities in Lebanon, governmental interests test favored application of U.S. domestic law);
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Holland v. Islamic Republic of Iran, 496 F. Supp. 2d 1, 22 (D.D.C. 2005) (in FSIA action
brought by U.S. servicemen and their families against Iran for injuries and damages arising from
the state-sponsored terrorist bombing of U.S. marine barracks in Lebanon, governmental
interests test favored application of U.S. domestic law).
Finally, Italy has both a strong governmental interest in deterring attacks within its
sovereign borders and the most significant relationship to the attack in that 1) the attack occurred
Rome, the Italian capital, and 2) Khaled Ibrahim, one of the terrorists involved in the Rome
Airport attack, was convicted in an Italian court and is serving a life sentence in an Italian prison
for his role in the attack.
III.

Supplemental Briefing is Required
Having determined that Italy’s substantive law applies to the Pepenella brothers’ claims,

the Court must now apply that law to the claims before it. To that end, plaintiffs shall file, on or
by May 14, 2013, a supplemental brief explaining how, as a matter of Italian civil law, the
Pepenella brothers are entitled to damages for intentional infliction of emotional distress and
civil conspiracy, the two counts they now assert. The Court expects plaintiffs to refer to those
specific provisions of Italian law that support their conclusions and provide the Court with
translations of the same. See Fed. R. Civ. P. 44.1.
SO ORDERED.

Digitally signed by John M. Facciola
DN: c=US, st=DC, l=Washington,
email=[e-mail]
rts.gov, o=United States District
Court for the District of Columbia,
cn=John M. Facciola
Date: 2013.04.17 16:09:11 -04'00'

JOHN M. FACCIOLA
U.S. MAGISTRATE JUDGE

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