MEMORANDUM OPINION
This civil action arises out of the August 7, 1998, terrorist attacks on the United States embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The nearly simultaneous bombings killed at least 224 individuals and wounded more than 4,000 others, among them the ten principal plaintiffs in this action. 1 Pursuant to a 1996 amendment to the Foreign Sovereign Immunities Act (“FSIA”) that revoked jurisdictional protection for terrorist-sponsoring governments, plaintiffs filed this suit against the Republic of Iran, the Republic of Sudan, and two of their respective ministries on the theory that they provided material support to al Qaeda and Hizbollah 2 — the organizations believed to be responsible for the bombings — and thus are subject to civil liability in the United States for the harms caused by their actions. Plaintiffs allege that the injuries they sustained as a result of the embassy bombings were a “direct and proximate consequence of the intentional acts of the agents of the Defendants,” who aided, abetted, or conspired with the attackers. See, e.g., Third Am. Compl. ¶¶ 4, 14. As compensation for those injuries, plaintiffs seek money damages from defendants, jointly and severally, in the amount of $258 million. 3
On March 29, 2005, the Court granted in part аnd denied in part the Sudan defendants’ motion to dismiss. To the extent that it granted the motion, however, the Court permitted plaintiffs to amend the complaint to cure the deficiencies observed. The Sudan defendants timely filed a notice of appeal, 5 but asked the Court of Appeals to hold their appeal in abeyance to permit them to challenge the sufficiency of the amended complaint before this Court. The Court of Appeals granted that request. Plaintiffs filed their Third Amended Complaint on May 3, 2005, 6 and the Sudan defendants moved to dismiss that complaint on June 24, 2005. Having received extensive briefing from the parties on the pertinent legal questions, and having carefully considered those arguments and the entire record of this case, the Court will deny the motion to dismiss the Third Amended Complaint for the reasons that follow.
BACKGROUND
On August 7, 1998, terrorists detonated massive vehicle bombs outside two U.S. diplomatic outposts in East Africa within a span of just a few minutes. At approximately 10:30 a.m., a truck that contained a large bomb exploded in the rear parking area of the U.S. Embassy in Nairobi, Kenya. The explosion killed 213 peoрle, including forty-four Embassy employees (twelve of whom were American citizens), and injured an estimated 4,000 people— mostly Kenyan civilians — who were either at the Embassy or in the vicinity. Moments later, at approximately 10:39 a.m., a suicide bomber drove a truck laden with explosives up to a vehicular gate at the
Plaintiffs, all United States citizens claiming personal injuries resulting from the bombings, brought this action pursuant to the state-sponsored terrorism exception to foreign sovereign immunity. Their complaint contends that defendants furnished material support, in the form of “cover, sanctuary, technical assistance, explosive devices and training,” to al Qaeda and Hizbollah, the two terrorist organizations alleged to have carried out the embassy bombings. Third Am. Compl. ¶2. As to the Sudan defendants in particular, the complaint alleges that they “entered into an agreement with al Qaeda and Hezbollah under which those organizations received shelter and protection from interference while carrying out planning and training of various persons for terrorist attacks, including the attacks of August 7, 1998.” Id. at ¶ 8. The complaint goes on to allege specifically (albeit in terms that are somewhat imprecise with respect to timing) a series of actions taken by agents of the government of Sudan to furnish Osama bin Laden, 7 the putative leader of al Qaeda, and his associates with shelter, security, financial and logistical support, and business opportunities. See id. at ¶¶ 8(a), 8(e), 8(h), 8(1), 8(k), 80), 8(m), 8(n), 8(o), 8(r), 8(t), 8(v), 8(w). Those actions, plaintiffs contend, led directly to the 1998 embassy bombings in Nairobi and Dar es Salaam and, therefore, not only are sufficient to divest the Republic of Sudan of sovereign immunity under 28 U.S.C. § 1605(a)(7), but also will support substantive claims for assault and battery, intentional infliction of emotional distress, and loss of consortium under the common law of the plaintiffs’ respective home states. 8
The Sudan defendants have moved to dismiss the Third Amended Complaint on two grounds: (1) that the Sudan defendants are entitled to sovereign immunity and, therefore, the court is deprived of subject-matter jurisdiction over claims against them, see Fed.R.Civ.P. 12(b)(1); and (2) that plaintiffs’ pleading is legally insufficient and therefore fails to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6).
ANALYSIS
I. Subject-matter Jurisdiction
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Sudan defendants have moved to dismiss the action against them for want of subject-matter jurisdiction based on an assertion of sovereign immunity. Ordinarily, when reviewing a motion to dismiss that contests the court’s subject-matter jurisdiction, the court must accept as true all the factual allegations contained in the complaint.
See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
A. Standard of Review
Because sovereign immunity is in the nature of an affirmative defense, the plaintiff need not prove the absence of sovereign immunity in the first instance; rather, “the
defendant
bears the burden of proving that the plaintiffs allegations do not bring its case within a statutory exception to immunity.”
Phoenix Consulting, Inc. v. Republic of Angola,
B. Foreign Sovereign Immunity and its Exceptions
The Foreign Sovereign Immunities Act (“FSIA”) provides the sole basis for the exercise of jurisdiction over a foreign state in a United States court.
Argentine Republic v. Amerada Hess Shipping Corp.,
Enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, section 1605(a)(7) lifts the immunity of foreign states (as well as their instrumentalities and agents) in any civil action
in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency ....
28 U.S.C. § 1605(a)(7). 9 The exception applies, however, only if (1) the foreign state was designated a state sponsor of terrorism at the time of the act or as a result of the act, (2) the foreign state has beеn given a reasonable opportunity to arbitrate the claim if the act at issue occurred within the foreign state’s territory, and (3) either the claimant or the victim was a national of the United States at the time of the alleged act. 28 U.S.C. §§ 1605(a)(7)(A), (B)(i)-(ii).
The allegations of the present complaint make clear that this Court’s jurisdiction over the claims against the Sudan defendants, if it exists at all, must be based on “the provision of material support or resources” by Sudan’s agents for an act of “extrajudicial killing” — as opposed to the actual commission by its agents of an extrajudicial killing. 10 To satisfy the “material support or resources” clause of the terrorism exception (and thus to establish this Court’s subject-matter jurisdiction), the Court must find the following:
(1) that personal injury or death occurred (and that either the victim or the claimant was a United States national at the time);
(2) that an official, employee, or agent of a foreign state that the United States designated as a sponsor of terrorism — while acting within the scope of his office, employment, or agency — provided material support or resourcеs for an act of extrajudicial killing;
(3) that the personal injury or death was caused by that provision of material support; and
(4) that the personal injury or death occurred outside the foreign state’s territo
C. Sudan Defendants’ Challenge to the Application of Section 1605(a)(7)
In their Rule 12(b)(1) motion, the Sudan defendants dispute only the second and third of these jurisdictional elements. 11 Specifically, they assert that plaintiffs’ allegations that the Sudan defendants provided “material support and resources” to al Qaeda and Hizbollah do not fit within the definition provided by 18 U.S.C. § 2339A. They also challenge the adequacy of the pleadings with respect to agency, arguing that the complaint fails to make specific factual statements to back up the claim that officials, employees, or other agents of Sudan acted within the scope of their governmental duties. Finally, the Sudan defendants contend that plaintiffs have not pleaded facts sufficient for the Court to find a lеgally cognizable causal link between the alleged material support and the injuries underlying the claims.
1. Sufficiency of the allegations of “material support”
In its March 29, 2005, decision denying the Sudan defendants’ previous motion to dismiss, this Court held — consistent with the D.C. Circuit’s rulings in
Price, 294 F.3d
at 94, and
Simpson v. Socialist People’s Libyan Arab Jamahiriya,
They have done so. The Third Amended Complaint now alleges, among other things, that:
“In the early 1990s, the government of Sudan sent overtures to Bin Laden and Al Qaeda, inviting the group to relocate en mass from Afghanistan to the Sudan.” Third Am. Compl. ¶ 8(a).
“The representatives of the Sudanese government, promised the support of that government should Al Qaeda come to the Sudan. Al Qaeda thereafter used Sudanese Airways planes to ferry antitank rockets and Stinger missiles from Afghanistan to the Sudan.” Id.
Bin Laden lived in a large villa in Khartoum, protected by men who were dressed in Sudanese army fatigues andused jeeps with Sudanese army license plates. Id. at ¶ 8(e).
Police in Sudan arrested al Qaeda operatives who were engaged in explosives training, but quickly released them and did not file charges against them after the government’s intelligence service intervened. Id. at ¶ 8(h).
‘With the explicit approval of Bin Laden,” Jamal Ahmed Al-Fadl, a top Al Qaeda lieutenant, “personally wоrked with the Sudanese intelligence officers.” Id. at ¶ 8(i).
Sudanese intelligence officers were organized into a “delegation office” to meet the needs of al Qaeda, and those officers jailed foreigners whom al Qaeda suspected were agents from foreign governments. Id. at ¶ 8(k).
The intelligence service’s delegation office “helped provide security for Al Qaeda and facilitated the movement of weapons in and out of the country,” including one instance where “weapons were taken out of the country by delivering four crates of weapons to a hangar at a Sudanese military base, and then to a port facility owned by the Sudanese army.” Id. at ¶ 8(1).
Sudan President Omar Hassan al-Bashir provided a letter that allowed al Qaeda members “to bypass tax and customs collection on international shipments and guaranteed their shipments, coming or going, would not be inspected.” Id. at ¶ 8(m).
“Weapons and explosive shipments moved through a quay protected by the Sudanese military in Port Sudan into a barracks used by Sudanese armored and mechanized infantry.” Id. at ¶ 8(n).
The intelligence service’s delegаtion office “protected Al Qaeda members, such as Al-Fadl, from the interference of Sudanese immigrations office at the airport. This was important because if Al Qaeda members were caught abroad and their passports were stamped with Sudanese immigration markings, it would be clear to foreign agents where the organization was located.” Id. at ¶ 8(o).
Al Qaeda purchased companies directly from the Sudanese government, and “[t]he funding that these companies provided to Al Qaeda was critical to its survival and continued existence.” Id. at ¶ 8(r).
“The Sudanese government employed Al Qaeda to manufacture chemical weapons in a section of Khartoum, called Hilat Koko ....” Id. at ¶ 8(t).
“Dr. Abdullah Mohamed Yusef, a member of the Islamic National Front, through which President al-Bashir ran the Sudanese government, organized travel, documents and funneled economic aid to Al Qaeda while it was located in the Sudan.” Id. at ¶ 8(v).
“Al Qaeda entered into a transaction to purchase uranium through the former President of the Sudan, currently an officer in the Sudanese army.” Id. at ¶ 8(w).
Under any imaginable standard of pleading specificity, these statements are sufficiently detailed to put the defendants on notice of the specific misconduct with which they are charged (and thereby to permit defendants to craft a reasonable response) and also to allow the Court to determine whether the alleged misconduct satisfies jurisdictional prerequisites. The Sudan defendants now ask the Court to do just that — i.e., to determine whether the acts alleged fall within the definition of “material support or resources” contained in 18 U.S.C. § 2339A(b)(l). 12
The Court therefore concludes that there is no basis to dismiss the complaint on the ground that plaintiffs’ claims are incapable of satisfying the jurisdictional requirement of “provision of material support or resources” by the Sudan defendants. At this stage, plaintiffs’ allegations on this jurisdictional element are sufficient to satisfy section 1605(a)(7) and hence survive the Sudan defendants’ motion.
2. Sufficiency of the allegations of scope of authority
The Sudan defendants further contend that they are entitled to dismissal of the case against them because the Third Amended Complaint does not properly plead that any Sudanese official, employee, or agent engaged in actions constituting “material support” while acting within the
As noted above, the Third Amended Complaint alleges specifically the acts of “material support” that constitute the basis of the claims, as required by Price. See generally Third Am. Compl. ¶ 8. It also now asserts in several paragraphs, including paragraph 8, that the material support was provided, at least in part, by individuals who were acting within the scope of their authority as officials, employees, or agents of the Republic of Sudan. See Third Am. Compl. ¶¶ 4, 8(j), 8(x). Plaintiffs thus have addressed the deficiency identified in Owens I regarding allegations of state action, which was simply that nowhere in the Second Amended Complaint did plaintiffs directly assert that the acts of providing “material support” that form the basis for section 1605(a)(7) jurisdiction were committed by officials, agents, or employees of the Sudanese government acting within their scope of authority (all that was alleged was that the embassy bombers — not those who provided material support to the bombers — acted as agents for defendants).
The Sudan defendants, however, now argue that plaintiffs’ statements in this regard in the Third Amended Complaint are legal conclusions that the Court need not accept as true for purposes of a Rule 12(b)(1) motion. Although the Sudan defendants are correct that the Court is free to disregard conclusory statements of law for purposes of assessing jurisdiction (for example, a Court obviously need not accept as true an assertion in a complaint that the Court has jurisdiction to hear the claims), this principle does not require plaintiffs to spell out the elements underlying their jurisdictional claims in precise factual detail. 13 To do so would ignore the liberal notice-pleading standard of Rule 8(a)(1) of the Federal Rules of Civil Procedure, which requires only a “short and plain statement of the grounds upon which the court’s jurisdiction depends,” except as otherwise provided by statute or the rules. Plaintiffs have satisfied the requirements of Rule 8 with the allegations in paragraphs 4, 8(j), and 8(x), and the Court will not require any more specificity at this stage of the litigation. Therefore, the Sudan defendants are not entitled to dismissal of the claims agаinst them in the Third Amended Complaint based on the complaint’s conclusory pleading of agency and scope of authority.
3. Sufficiency of the allegations of jurisdictional causation
A closer question is whether there is a sufficient factual basis for the Court to find a plausible causal link between the alleged material support and the injuries underlying the claims — a finding that the D.C. Circuit in
Kilburn
held is essential to the exercise of jurisdiction over claims against a foreign sovereign pursuant to 28 U.S.C. § 1605(a)(7). When a defendant challenges the district court’s jurisdiction under section 1605(a)(7), the court must
Interpreting the meaning of the words “caused by” in section 1605(a)(7), the D.C. Circuit in
Kilburn
rejected a view of the jurisdictional statute that would have required plaintiffs to satisfy a “particularly restrictive standard of causation” (which the defendants in that case had termed “but for” causation).
See
The Sudan defendants seize on Kilbum ’s use of the term “proximate cause” to argue that plaintiffs’ claims against them must be dismissed unless the Court concludes that the acts of material support identified in the complaint were a “substantial factor” in bringing about plaintiffs’ injuries. See Sudan Defs.’ Mеm. in Supp. of Mot. to Dismiss at 8-10. They derive this “substantial factor” requirement from various cases that interpret the meaning of “proximate cause” in the substantive law of tort, as well as from the definition of “legal cause” found in the Restatement (Second) of Torts § 431. See id. at 9 n. 8. The Court, however, does not believe that the D.C. Circuit’s interpretation in Kilburn of the “caused by” language of 28 U.S.C. § 1605(a)(7) introduces a substantiality prong into the jurisdictional-causation analysis.
First of all, the words “substantial factor” nowhere appear in the text of section 1605(a)(7) or the language of
Kilburn.
Additionally, the conventional wisdom among modern tort scholars is that “[t]he substantial-factor test has not ... withstood the test of time, as it has proved confusing and been misused.” Restatement (Third) of Torts: Liability for Physical Harm § 26 cmt. j (Proposed Final Draft No. 1, 2005) (hereinafter “Restatement (3d)”). Furthermore, the considerations that the Sudan defendants contend are “relevant to determining whether a defendant’s conduct is a substantial factor in bringing about a harm” — namely, the number of other contributing factors, whether the defendant’s conduct set into action a series of forces that remained in continuous and active operation at the time of the harm, and the lapse of time between the conduct and the harm,
see
Sudan Defs.’ Mem. in Supp. of Mot. to Dismiss at 9— would draw the Court into precisely the type of remoteness inquiry that
Kilbum
expressly rejected.
See
Rather than demand that courts decide, as a matter of jurisdiction, whether a defendant’s conduct was a “substantial factor” in bringing about the harm,
Kilburn
indicates that, in weighing a defendant’s jurisdictional challenge based on section 1605(a)(7), courts simply should consider whether there is “some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.”
See
(i) Cause-in-fact
With respect to factual cause, courts often inquire into whether the conduct was a necessary condition for the harm to occur. In other words, were the act removed from the sequence of events leading up to the injury, would the injury have occurred as it did?
16
This counterfactual
Harder still is the causal conundrum that is presented where an intervening event (particularly an affirmative act by a third party) would itself have been sufficient to produce the harm.
17
In that situation, it becomes impossible to say that the earlier conduct was a necessary condition for the harm to have occurred, because the injury would have happened anyway — assuming, of course, that the later cause came about independently.
18
Nevertheless, factual causation will not be defeated so long as the earlier conduct, more probably than not, would have led to the same harm — either on its own (because it was independently sufficient) or in combination with other conduct or events that would foreseeably follow from the earlier conduct.
See
Restatement (3d) § 27, cmt. f (“[T]he fact that [another] person’s conduct is sufficient to cause the harm does not prevent the actor’s conduct from being a factual cause of harm ... if the actor’s conduct is necessary to at least one causal set.”);
see also Elliott v. Michael James, Inc.,
Here, the Sudan defendants do not attempt to identify any particular intervening causal event that independently would have been sufficient to cause the embassy bombings. Rather, they simply attempt to negate the inference that their alleged provision of material support to al Qaeda and Hizbollah was in any way es
That is not to say that courts ought to be dismissive of assertions by a sovereign nation, in a jurisdictional challenge to a claim based on 1605(a)(7), that its past wrongdoings are too far removed from the complained-of harms to qualify as a factual cause. Indeed, the Court takes heed of the Supreme Court’s observation — in a discussion of the “by reason of’ requirement contained in the civil-suit provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) — that
[i]n a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.” ... As we put it in the antitrust context, “An antitrust violation may be expected to cause ripples of harm to flow through the nation’s economy; but despite the broad wording of [the Clayton Act’s private-enforcement provision,] there is a point beyond which the wrongdoer should not be held liable.”
Holmes v. Sec. Investor Protection Corp.,
In this case, however, the Court does not believe that the 1998 embassy bombings occurred at a point in time so far removed from the Sudan defendants’ alleged material support of al Qaeda and Hizbollah that it would be unjust to permit an FSIA-based action to proceed against them for that conduct. The Sudan defendants have not given the Court sufficient reason to believe that the “ripples of harm” caused by their conduct had ceased to have significance in 1998. This conclusion is consistent with the holding in another FSIA case brought against Sudan for its alleged support of al Qaeda. In
Rux v. Republic of Sudan,
(ii) Harm within the risk
Insofar as
Kilburn
and section 1605(a)(7) can be read to require for jurisdiction something more than mere factual causation (as it has just been defined), the Court concludes that any additional requirement is properly characterized as a limitation on the “scope” of what constitutes a jurisdictionally relevant cause-in-fact. This is consistent with the view embraced by the drafters of the Restatement (Third) of Torts in explaining limitations on liability for actions that are factual
For present purposes, the' analysis is straightforward: Does the “scope of the risk” associated with providing material support to terrorist groups include the risk that such support might facilitate a terrorist attack by members of those groups at some future point in time? The obvious answer is yes; giving aid and comfort to those who engage in terrorist acts such as extrajudicial killing — here, al Qaeda and Hizbollah — is wrongful precisely because it makes it more likely that the beneficiaries of the-aid will, years later, commit murdеrs and cause injuries (such as those that occurred at the embassies in 1998). See Restatement (3d) § 19, cmt/ c (“If [a] third party’s misconduct is among the risks making the defendant’s conduct negligent, then ordinarily plaintiffs harm [caused by the third-party’s misconduct] will be within the defendant’s scope of liability.”). It makes no difference that the third-party’s intervening conduct — here, the conduct of the terrorist embassy bombers themselves — was criminal or intentional, if the original conduct clearly contemplated that possibility. See Restatement (3d) § 34, cmts. d & e.
In sum, because the Sudan defendants’ conduct, if proven, could be considered a factual cause of plaintiffs’ injuries, and because the injuries were within the scope of harm that makes such conduct tortious, the Sudan defendants are not entitled to dismissal of the claims based on the absence of jurisdictional causation. That being so, their challenge to the application of section 1605(a)(7) fails for all the reasons explained above.
II. Failure to State a Cognizable Claim
In their motion to dismiss, the Sudan defendants also argue,- pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, that plaintiffs have failed to state a claim for which relief can be grаnted in the following four ways: (1) the substantive causes of action alleged (assault and battery, intentional infliction- of emotional distress, and loss of consortium) do not impose liability on a party who merely provides “material .support” to a wrongdoer; (2) even if the substantive claims are properly pleaded on a theory of aiding and abetting or conspiracy, plaintiffs fail to plead sufficient facts to support such a theory; (3) all claims other than those brought under Florida law are time-barred under applicable .state statutes of limitation; and (4) the omnibus claim for punitive damages- is prohibited by 28 U.S.C. § 1606.
A. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
Under Rule 12(b)(6), the plaintiffs factual allegations must be presumed true and should be liberally construed in his or her favor.
Leatherman,
B. Joint-Tort Theories
The Sudan defendants assert that plaintiffs have failed to make out proper claims against them under applicable state laws (those of Florida, Mississippi, North Carolina, Texas, and Virginia) because the substantive counts of the complaint do not allege that the Sudan defendants directly committed any of the specific torts and fail to advance a joint-tort theory of liability such as “aiding and abetting” or “conspiracy.” This argument can be dispensed with summarily, as there are several references to aiding and abetting and conspiracy in the general allegations of paragraphs 1 through 11 of the complaint (which are subsequently re-alleged and incorporated in each of thе twenty-five counts), see, e.g., Third Am. Compl. ¶¶4, 10, as well as in the substantive counts, see, e.g., id. at ¶ 16, 24, 33.
A further objection is lodged by the Sudan defendants on the ground that, even if plaintiffs’ complaint can be read to assert a joint-tort theory of liability, plaintiffs have nonetheless failed to plead sufficient facts to support such a theory. As noted above, however, the Federal Rules of Civil Procedure demand only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
See
Fed.R.Civ.P. 8(a)(2). “Such a statement must simply ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ”
Swierkiewicz,
The Sudan defendants also assert that eleven of the twenty-five claims against them (all but those brought under Florida common law) should be dismissed as time-barred under the various statutes of limitations that apply to the causes of action under the laws of Mississippi, North Carolina, Texas, and Virginia. It is true, of course, that state statutes of limitations usually apply when federal courts adjudicate state-law claims.
See Guaranty Trust Co. v. York,
D. Punitive Damages Claim
Finally, the Sudan defendants argue that the Court should dismiss plaintiffs’ claim for punitive damages with prejudice in light of the Court’s ruling of March 29, 2005, which held that, “until such time as plaintiffs can allege and prove that the Ministry of the Interior of the Republic of Sudan engages in predominantly commercial activities, the claim for punitive damages must be dismissed in its entirety.”
See Owens I,
CONCLUSION
For the foregoing reasons, the Sudan defendants’ motion to dismiss the Third Amended Complaint is denied. A separate order has been issued on this date.
ORDER
Upon consideration of [114] the motion to dismiss all claims in the Third Amended Complaint against the Republic of Sudan and its Ministry of the Interior for want of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, as well as the memoranda of the parties and the entire record herein, and for the reasons stated in the memorandum opinion issued herewith, it is this 26th day of January, 2006, hereby
ORDERED that the motion to dismiss is DENIED.
Notes
. Transliteration of these organizations’ names has produced various spellings. For ease of reference, “al Qaeda” and "Hizbollah” are used herein, except where an alternate spelling is reflected in a quoted document or case.
. Plaintiffs also request an award of $1 billion in punitive damages. The Court, however, previously dismissed the punitive-damages claim because the FSIA's revocation of sovereign immunity is narrowly drawn to authorize claims for punitive damages only against an “agency or instrumentality” of a terrorist-sponsoring state — not against the foreign state itself — and plaintiffs failed to allege facts that would allow the Court to conclude that any of the defеndants in this case fall within the statutory definition of an “agency or instrumentality.”
See Owens v. Republic of Sudan,
. Under 28 U.S.C. § 1608(e), "[n]o judgment by default shall be entered by a court of the United States ... against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
. Although an order denying a motion to dismiss ordinarily is not appealable, when such an order rejects a claim of sovereign immunity it is subject to interlocutory review based on the "collateral order doctrine.”
See Kilburn v. Socialist People’s Libyan Arab Jamahiriya,
.The present complaint is styled as the Third Amended Complaint, reflecting the multiple revisions that have occurred since the inception of this case — a four-year period during which FSIA jurisprudence evolved substantially.
. Again, transliteration hаs resulted in various spellings of this name. Plaintiffs use "Usama Bin Laden,” see Third Am. Compl. ¶ 8, but the Court has chosen to employ "Osama bin Laden,” or simply "bin Laden."
. Plaintiffs divide their claims into twenty-five counts, each of which represents a common cause of action by plaintiffs who were residents of the same state at the time of the bombings. The relevant states are Florida, Mississippi, North Carolina, Texas, and Virginia.
. The FSIA adopts the definition of "extrajudicial killing'' in the Torture Victim Protections Act ("TVPA'’). See 28 U.S.C. § 1605(e). The TVPA defines "extrajudicial killing” as “a deliberate killing not authorized by a previous judgment pronounced by a regularly constituted court affording all judicial guarantees ....” 28 U.S.C. § 1350 note. Section 1605(a)(7) also incorporates the definition of "material support or resources” in 18 U.S.C. § 2339A, a statute that makes the provision of material support or resources — knowing or intending that it will be used to commit one of several other crimes — a federal offense. At the time of the filing of this suit in 2001, the statute defined "material support or resources” as
currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistanсe, safe-houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials
18 U.S.C. § 2339A(b)(l) (2001).
. There is no reference in the complaint to any act of torture, aircraft sabotage, or hostage taking (or the provision of material support for such an act) by defendants.
. With respect to the second element, the Sudan defendants do not dispute that the embassy bombings constitute an act of extrajudicial killing or that the United States has designated Sudan as a state sponsor of terrorism.
. Although section 1605(a)(7) requires that "the provision of material support or re
. Similarly, the Federal Rules of Civil Procedure permit plaintiffs to plead negligence in a conclusory fashion.
See Swierkiewicz
v.
Sore-ma N.A.,
.
See Assoc. Gen. Contractors of Calif. v. Calif. State Council of Carpenters,
. It deserves mention that use of the term "proximate cause" has fallen out of favor in the contemporary tort lexicon because of its tendency to confuse jurors — and even lawyers and judges. As the draft Restatement (Third) of Torts observes, “the term 'proximate cause’ is a poor one to describe limits on the scope of liability [and it is also] an unfortunate term to employ for factual cause or the combination of factual cause and scope of liability.” Restatement (3d) § 29 cmt. b. Likewise, as the
Kilbum
opinion acknowledges, "but for” causation is a phrase that has the potential to mislead because it has multiple meanings.
See
.This is what many courts and scholars label as “but for” or
"sine qua non
” causation. It is what
Kilburn
described as the "expansive” view of but-for causation — the "potentially limitless’ standard under which 'Eve’s trespass caused all our woe.’ ”
. When there are multiple acts in simultaneous operation, each of which would be sufficient by itself to cause the harm, the harm is said to be "overdetermined.” The paradigmatic example of overdetermined harm is fоund in the "combined fires” cases,
Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co.,
. This is the situation (multiple sufficient causes) where "but for” — defined as a necessary condition to the outcome — can become restrictive. And that is what the
Kilbum
court appeared to have in mind when it said the jurisdictional causation requirement of section 1605(a)(7) demanded only a showing of "proximate cause.”
See
. The Sudan defendants fare no better based on their own analogy to an arguably insubstantial cause of injury. Relying on a 1980 Florida case,
Pope v. Cruise Boat Co., Inc.,
. Recall that "the defendant bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity.”
Phoenix Consulting,
. This issue of the preservation of appeal rights is not presently before this Court, and indeed logically would arise only in the context of an appeal.