Nasrin Akhtar SHEIKH, et al., Plaintiffs, v. REPUBLIC OF the SUDAN, et al., Defendants. Geoffrey Githui Kinyua, et al., Plaintiffs, v. Republic of the Sudan, et al., Defendants.
Civil Action No. 14-2090 (JDB), Civil Action No. 14-2118 (JDB)
United States District Court, District of Columbia.
Signed March 24, 2016. As Amended March 28, 2016.
172 F. Supp. 3d 124
JOHN D. BATES, United States District Judge
Daniel Sage Ward, Ward & Ward, P.L.L.C., Washington, DC, Nazareth M. Haysbert, Haysbert Moultrie, LLP, Los Angeles, CA, Raymond P. Boucher, Boucher, LLP, Woodland Hills, CA, for Plaintiffs. Christopher M. Curran, Claire Angela Delelle, Nicole Erb, White & Case LLP, Washington, DC, for Defendants.
The Court concludes that jurisdictional discovery is not warranted. To be granted jurisdictional discovery, “a plaintiff must have at least a good faith belief that such discovery will enable it to show thаt the court has personal jurisdiction over the defendant.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1090 (D.C.Cir.1998). “Mere conjecture or speculation” is not enough to justify such discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C.Cir.2008). Plaintiff seeks to discover additional information regarding Mr. Annucci and the NYSDC, but the Court cannot “see what facts additional discovery could produce that would affect our jurisdictional analysis.” Mwani, 417 F.3d at 17.
Accordingly, the Court finds that it lacks personal jurisdiction over Defendant Annucci. Therefore, the Court shall deny Plaintiff‘s Motions for Default Judgment against Defendant Annucci, and the Court shall dismiss Plaintiff‘s claims agаinst Defendant Annucci for lack of personal jurisdiction.
IV. CONCLUSION
For the reasons set forth above, the Court shall grant DHS Defendants’ [15] Motion to Dismiss, and the Court shall dismiss Plaintiffs’ claims against the DHS Defendants. The Court shall deny Plaintiff‘s Motions for Default Judgment as to Defendant Annucci, and shall dismiss Plaintiff‘s claims against Defendant Annucci for lack of personal jurisdiction.
This action shall be dismissed in its entirety.
JOHN D. BATES, United States District Judge
The statute of limitations applicable to suits brought under the so-called “terrorism exception” of the Foreign Sovereign Immunities Act,
BACKGROUND
On August 7, 1998, a pair of truck bombs detonated outside the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing more thаn 200 people and injuring thousands. Starting in 2001, various groups of plaintiffs began to sue Sudan, alleging that it had provided material support to the al Qaeda terrorists who had carried out the attacks. (They also sued Iran, but that aspect of the litigation is largely irrelevant.) The Foreign Sovereign Immunities Act (FSIA),
The long and complicated history of those earlier cases, which the Court will refer to collectively as the “Owens cases,” does not bear recounting in full here. But a short version will be useful. After initially defending in the first of the Owens cases, Sudan defaulted. The FSIA does not permit a default judgment against a foreign state unless a plaintiff рrovides satisfactory evidence of her right to recover,
In the midst of the long histоry of the Owens cases, Congress significantly amended the FSIA‘s terrorism exception. In the National Defense Authorization Act (NDAA) of 2008, Congress deleted § 1605(a)(7) and enacted an entirely new section, § 1605A. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008). Although the immunity exception contained in § 1605A was virtually identical to its predecessor in many respects, it did expand the class of potential plaintiffs. Under the old version, either the “victim” or “claimant” had to have been a U.S. national at the time of the incident giving rise to the claim.
Between March and October 2014, this Court entered final judgments in all seven of the Owens cases, awarding a total of over $10 billion in compensatory and punitive damages. The entry of those judgments was apparently a wake-up call to Sudan, which after years of sitting on the sidelines finally decided to participate. Some months after filing notices of appeal in all of the Owens cases, Sudan asked this Court to vacate the judgments pursuant to Federal Rule of Civil Procedure 60(b). The appeals were put on hold while this Court addressed the host of arguments Sudan raised in its Rule 60(b) motions. And yesterday the Court denied those motions in full. Owens, 2016 WL 1170919, at *36, 2016 U.S. Dist. LEXIS 37467, at *120. The fate of the Owens cases now rests with the D.C. Circuit.
We come at last to the two cases now before the Court, both of which take much the same form as the Owens cases, but
As noted, by the time the Families filed these cases in late 2014, Sudan had begun participating in the various FSIA suits against it. (Iran, by contrast, has never appeared in any of the cases arising out of these bombings, including these two.) After learning оf these newest suits, Sudan moved to dismiss them both. Those motions are now fully briefed and ripe for joint decision, the issues in both cases being effectively identical.
DISCUSSION
Sudan‘s motions raise a host of arguments, some claiming that the Court lacks subject-matter jurisdiction, others claiming that even if jurisdiction is proper the Families have failed to state claims on which relief can be granted. Although a number of the arguments are identical to those the Court just rejected in the Owens cases, that decision does not resolve them all. The Court concludes, however, that it need only address one argument: Sudan‘s contention that these suits are untimely. Because the Court ultimately agrees with Sudan on that point, which is sufficient reason to dismiss, it need not address the remainder of Sudan‘s arguments.
Is it proper, though, for the Court to dismiss on timeliness grounds when Sudan has raised arguments going to subject-matter jurisdiction? Cf. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the notion that federal courts can assume subject-matter jurisdiction for the purpose of deciding the merits). Sudan thinks yes, because Sudan thinks the relevant statute of limitations,
The statute of limitations for claims brought under the terrorism exception to foreign sovereign immunity is found in
An action may be brought or maintained under this section if the action
is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) ... not later than the latter of—
- 10 years after April 24, 1996; or
- 10 years after the date on which the cause of action arose.
A. These Actions Were Not Themselves Timely
To be timely in their own right, these actions must have been commenced not later than either (1) “10 years after April 24, 1996,” or (2) “10 years after the date on which the cause of action arose.” Commenced in December 2014, they clearly do not satisfy the first option. What about the second? Sudan says no: the Families’ “cause of action arose” on the date of the bombing, August 7, 1998, and their actions were not filed until more than 16 years later. The Families disagree: in their view, their cause of action did not arise until 2008, when § 1605A was enacted. That is so, they argue, because until the enactment of § 1605A, the FSIA rendered Sudan immune from claims by foreign nationals such as the Families. Hence, the question before the Court is whether the Families’ “cause of action arose” at the time of the bombing or instead at the time they were first able to sue in American courts.
The Court has found little precedent that bears directly on the question. The Supreme Court has said that “the standard rule [is] that the limitations period commences when the plaintiff has a complete and present cause of action,” and that normally “a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and
Bay Area Laundry thus seems to stand for the proposition that statutes of limitations generally do not begin to run until a defendant has taken the final step that makes its conduct legally actionable. That is what the Court meant by “until the plaintiff can file suit and obtain relief.” 522 U.S. at 201; see also Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 671, 134 S.Ct. 1962, 1969, 188 L.Ed.2d 979 (2014) (using the phrase likewise). And thus Bay Area Laundry does little to help the Families, for if Sudan engaged in tortious conduct towаrd them, that conduct occurred not later than August 7, 1998, the date on which they suffered their injuries. A suit by the Families against Sudan filed on August 8, 1998, would not have been “premature” in the sense Bay Area Laundry meant; rather, it would have been
Sudan points to more apposite, though still not controlling, precedent. In Vine v. Republic of Iraq, 459 F.Supp.2d 10 (D.D.C. 2006), the court addressed whether claims of hostage taking brought under § 1605(a)(7) were timely under the then-applicable statute of limitations, § 1605(f). In concluding that the claims were untimely, the court rejected the argument (which parallels the Families’ argument) that the victims’ cause of action did not arise until the enactment of § 1605(a)(7) in 1996:
This argument ... confuses what it means for a cause of action to “arise” and what it means for a cause of action to “accrue,” a distinction important to this case. A claim “arises” on the date that the action in question occurred, yet does not “accrue” until a prior disability to suit is removed. Given this distinction, plaintiffs’ argument that the statutе of limitations did not begin to run until 1996 must be rejected, for, according to [the] FSIA, the statute of limitations began when their cause of action “arose,” i.e., when the action in question occurred.
459 F.Supp.2d at 21 (citations omitted). On appeal, the D.C. Circuit reversed the untimeliness holding on different grounds, and therefore did not address this issue. Simon v. Republic of Iraq, 529 F.3d 1187, 1194-95 (D.C.Cir.2008). It did in passing, however, characterize the “argument that [the plaintiffs‘] claims did not arise until 1996” as “rather strained.” Id. at 1195. But the D.C. Circuit‘s decision was then itself reversed by the Supreme Court on still other grounds. Republic of Iraq v. Beaty, 556 U.S. 848, 129 S.Ct. 2183, 173 L.Ed.2d 1193 (2009); see also Simon v. Republic of Iraq, 330 Fed.Appx. 3 (D.C.Cir.2009) (vacating the D.C. Circuit‘s earlier judgment).
Vine‘s logic might be correct, but the Court is not certain of that. Vine did not cite any D.C. Circuit or Supreme Court precedent for the proposition that a cause of action “arises” on the date that the action in question occurred. Nor does it appear that either of those courts has acknowledged a distinction between when a cause of action “arises” and when it “accrues.” Bay Area Laundry seemed to treat the concepts interchangeably, applying “the ordinarily applicable accrual rule,” 522 U.S. at 195 (emphasis added), to a statute of limitations that referred to “the date on which the cause of action arose,” id. at 201 (emphasis added). Of course, it is possible the Supreme Court would recognize the distinction Vine relied on in a case that squarely presented the issue, but this Court is leery of resting its conclusion on Vine‘s logic alone.
In the end, it is the text and history of the FSIA itself that convince the Court that Sudan has the better reading. Specifically, it is the text of § 1605A(b)‘s predecessor statute of limitations, § 1605(f). That provision, enacted in 1996 along with § 1605(a)(7) (the original terrorism exception), provided:
Nо action shall be maintained under [§ 1605(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.
To be clear, the effect of § 1605(f) was to give all plaintiffs with terrorism-related claims 10 years from the date of § 1605(a)(7)‘s enactment to bring those claims. See Simon, 529 F.3d at 1196; Massie v. Gov‘t of Democratic People‘s Republic of Korea, 592 F.Supp.2d 57, 73 (D.D.C. 2008). But that was not because (as the Families would argue) no “cause of action arose” until that date. It was because the second sentence of § 1605(f) tolled the clock (which otherwise would have been running) for “the period during which the foreign state was immune from suit“—that is, the period ending when § 1605(a)(7) was enacted in 1996. See Simon, 529 F.3d at 1196 (“The Congress first amended the FSIA to add a terrorism exception in 1996, before which Iraq was ‘immune from suit‘; hence the limitation period in § 1605(f) began to run in 1996 and expired in 2006.“). The key point here, again, is that the second sentence of § 1605(f) presupposed that causes of action “arose” against foreign states even when they were immune, which must mean they “arose” when the foreign state‘s conduct caused thе injury underlying the claim.1
In the relevant portion of
B. No “Related Action” Makes These Actions Timely
As noted earlier, a § 1605A action can either be timely in its own right or timely by virtue of a “related action.” See
Related actions.—If an action arising out of an act or incident has been timely commenced under section 1605(a)(7) of title 28, United States Code, ... any other action arising out of the same act or incident may be brought under section 1605A of title 28, United States Code, if the action is commenced not later than the latter of—
- (A) the date of the entry of judgment in the original action; or
- (B) the date of the enactment of this Act [Jan. 28, 2008].
Pub. L. No. 110-181, § 1083(c)(3), 122 Stat. at 343 (codified at
Because judgment in an original action might not be entered until long after the date of § 1605A‘s enactment, § 1083(c)(3) creates the possibility that some new actions that would have been clearly untimely standing on their own are nonetheless timely by virtue of the existence of a related original action. For example, the Court recently held that actions arising from the embassy bombings that were filed against Sudan in 2010 and 2012 wеre timely under § 1083(c)(3) because judgment was not entered in the original Owens case until 2014. Owens, 2016 WL 1170919, at *18-21, 2016 U.S. Dist. LEXIS 37467, at *57-64. The Families say the same is true of their actions here: their actions also “aris[e] out of the same act or incident” as the original Owens case (which was “timely commenced under section 1605(a)(7)” in 2001), and they were commenced within 60 days of the entry of judgment in Owens on October 24, 2014.
But as the Families concede in a footnote—a dangerous place to put an important point, see, e.g., CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C.Cir.2014)—the history of Owens and of the judgment entered on October 24, 2014, is not so simple. Owens contained two distinсt sets of plaintiffs. In 2001 the original Owens plaintiffs brought a timely action against Sudan (and Iran) under § 1605(a)(7).2 In 2009 they converted their action to one brought under § 1605A. In 2012 a new set of plaintiffs, the “Aliganga plaintiffs,” moved to intervene. The Court granted their motion on July 3, 2012, deeming their intervention timely by virtue of § 1083(c)(3) of the NDAA. But although the Aliganga plaintiffs did thereby become Owens plaintiffs, the two sets of plaintiffs continued to be treated as distinct groups. Most importantly, they were treated as distinct groups with respect to their judgments. The Court entered judgment in favor of the original
The Families think that was good enough. They note that, as a general matter, an intervenor “is treated just as if it were an original party.” Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C.Cir.1985). Thus, they say, the Aliganga plaintiffs were full members of the Owens case, which qualifies as а related original action under § 1083(c)(3). And therefore, they conclude, the entry of the Aliganga plaintiffs’ judgment on October 24, 2014, started § 1083(c)(3)‘s 60-day countdown for new actions, and the Families’ suits filed in mid-December 2014 were timely.
The Court disagrees. Section 1083(c)(3) demands that any new § 1605A action be filed within 60 days of the entry of the judgment that concluded the original action “timely commenced under section 1605(a)(7).” To treat the Aliganga plaintiffs’ judgment as fitting that bill stretches § 1083(c)(3) beyond reason. The Aliganga plaintiffs never brought claims under § 1605(a)(7). They did not become plaintiffs until long after the original Owens plaintiffs’ claims under § 1605(a)(7) had dropped out of the case. And, perhaps most importantly, the only reason the Aliganga plaintiffs’ claims were themselves timely was by virtue of the operation of § 1083(c)(3). The Families are thus trying to piggyback on plaintiffs who themselves piggybacked on others. This acrobatic maneuver would clearly fail if the Aliganga plaintiffs had simply filed a separate lawsuit with its own case number. The Court sees no reason why their decision to instead intervene should lead to a different result. It is simply untenable to read “the entry of judgment in the original action” in § 1083(c)(3) as encompassing a judgment in favor of a group of plaintiffs—intervenors or otherwise—who first filed their claims in the year 2012, and under § 1605A, not § 1605(a)(7). Hence, the Families’ claims are not timely under § 1083(c)(3).
Because the Families’ claims against Sudan are neither timely in their own right under § 1605A(b) nor timely by virtue of a related action under § 1083(c)(3), the Court will dismiss them with prejudice.
C. Plaintiffs’ Claims Against Iran Remain—For Now
The Families have sued not only Sudan but also Iran, which has never appeared. The Clerk entered defaults against Iran in October 2015, and the Families have since moved for the entry of default judgments. Based on the foregoing analysis, however, it would appear that the Families’ claims against Iran are also untimely. After all, their claims against Iran arise from the same bombing and were filed in this Court at the same time. The Court therefore faces the question whether those claims should also be dismissed, even though Iran has not raised the statute of limitations—indeed, has not appeared at all.
It is normally inappropriate for а federal court to dismiss claims as untimely sua sponte. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006). The statute of limitations is an affirmative defense that a defendant normally forfeits if he does not raise it in his pleadings. Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); see
There would seem to be a strong case for permitting courts faced with a motion for default judgment under the FSIA to raise timeliness sua sponte. “Comity in the face of an absent foreign sovereign,” the Fourth Circuit has said, “presents a special circumstance permitting sua sponte consideration of a res judicata defense.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 209 (4th Cir.2013). It would seem likewise to justify sua sponte consideration of a statute of limitations defense. Such cоnsideration is also of a piece with—if not necessarily compelled by—the FSIA‘s prohibition on the entry of a default judgment “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
But the Court will not decide today whether to dismiss the Families’ claims against Iran. The Families have not yet had the chance to review the Court‘s analysis and to raise any argument on that score. The Court will give them that opportunity before resolving their motions for default judgments. Cf. Day, 547 U.S. at 210 (“Of course, before acting on its оwn initiative, a court must accord the parties fair notice and an opportunity to present their positions.“). They may not use that opportunity, however, to relitigate the Court‘s interpretation of § 1605A(b) and § 1083(c)(3), but rather only to argue that the Court‘s decision to dismiss the claims against Sudan should not lead it to likewise dismiss the claims against Iran.
CONCLUSION
For the foregoing reasons, the Families’ claims against Sudan will be dismissed with prejudice as untimely. With respect to their claims against Iran, they will have the opportunity to supplement their motions fоr default judgment to argue that those claims should not also be dismissed as untimely. A separate order to this effect will issue in each of these cases.
JOHN D. BATES
UNITED STATES DISTRICT JUDGE