UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) CERTAIN UNDERWRITERS AT ) LLOYDS LONDON, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 06-731 (GK) ) GREAT SOCIALIST PEOPLE’S ) LIBYAN ARAB JAMAHIRIYA, ) et al., ) ) Defendants. ) ______________________________) ) CERTAIN UNDERWRITERS AT ) LLOYDS LONDON, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-504 (GK) ) GREAT SOCIALIST PEOPLE’S ) LIBYAN ARAB JAMAHIRIYA, ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

In C.A. No. 06-731, Plaintiffs Certain Underwriters at

Lloyds London (“Lloyds”), Allianz Cornhill Insurance, 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 al-

Bishari (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”),

, et seq.

(2006) (Count I); common law conversion and trespass (Counts II

and III); and Aircraft Piracy under the Alien Tort Claims Act

(“ATCA”),

(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,

,

(2008). They claim that

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

conversion and trespass (Counts II and III); and engaged in

1 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.

-2- Aircraft Piracy under the ATCA (Count IV). Compl. [C.A. No. 08-

504, 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, Greece to Cairo, Egypt. At that time, the

governments of Libya and Syria sponsored ANO by providing a

variety of monetary, material, diplomatic, and logistical

support.

Shortly after takeoff, the plane made an emergency landing

at the Malta International Airport, where it remained for twenty-

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. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(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.

-3- 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

(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]. On June 12, 2007, this Court held a Motions

Hearing. 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

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.

-5- 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. 08-

504, 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,

(2007). “[O]nce a claim has been stated adequately, it

-6- may be supported by showing any set of facts consistent with the

allegations in the complaint.”

.

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.,

(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

,

(2008)).

The statute states that

section 1605A(c) of title

(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,

-7- employees, or agents in any action in a Federal or State court.

(a)(1)(B). The Act provides Libya with

immunity that applies to suits brought in the United States by

plaintiffs of any nationality.5

at § 5(a)(1).

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

Libya and the United States signed the Claims Settlement

Agreement (“Settlement Agreement”) in order to “terminate

permanently all pending suits . . . [and] preclude any future

suits” in United States or Libyan courts arising from terrorist

acts, including aircraft hijacking and hostage-taking, which

occurred prior to June 30, 2006. 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 I of the Claims

Settlement Agreement . . . are settled.” 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.”

(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.”

§ 1(a)(i-ii). With regard to foreign

nationals, the Order states that “[n]o 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.,

(1989). See

also Verlinden B.V. v. Cent. Bank of Nigeria,

(1983) (“[I]f none of the exceptions to sovereign immunity set

forth in the [FSIA] applies, the District Court lacks both

statutory subject matter jurisdiction and personal

jurisdiction”). 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).

-9- 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. 7

Principles of statutory interpretation establish that “a

specific statute will not be controlled or nullified by a general

one, regardless of the priority of enactment.” Morton v.

Mancari,

(1974). That 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. 110- 301, § 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.,

(1994) (requiring deference to Congressional intent with respect to statutes’ retroactive application).

-10- External Security), and its officials, employees, or agents (al-

Qadhafi, 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. 9

See Verlinden B.V.,

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. Pls.’ Statement of

Position at 3 [C.A. No. 08-504, Dkt. No. 33]. The Court cannot

comply with Plaintiffs’ wish: the jurisdictional issue is

dispositive. See Antolok v. United States,

(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.

-11- 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/ January 6, 2010 Gladys Kessler United States District Judge

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,

.

-12-