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SMITH v. THE SOCIALIST PEOPLE'S LIBYAN

May 17, 1995

BRUCE SMITH, as personal representative of INGRID SMITH, deceased, Plaintiff, against THE SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA et al., Defendants. PAUL S. HUDSON, as personal representative of the Estate of MELINA K. HUDSON, deceased, Plaintiff, -against- THE SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, District Judge.

 Plaintiffs Bruce Smith and Paul Hudson, as personal representatives of victims who died in the bombing of Pan American Airways, Inc. (Pan Am) Flight 103 over Lockerbie, Scotland, on December 21, 1988, seek to recover civil damages. *fn1" Smith sues the Socialist People's Libyan Arab Jamahiriya, the Libyan Arab Airlines, The Libyan External Security Organization, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah as agents and instrumentalities of Libya. Hudson sues the Socialist People's Libyan Arab Jamahiriya (heretofore defendants for both cases are referred to as "Libya"). *fn2" For the purposes of this motion, the claims of Mr. Smith and Mr. Hudson will be considered in tandem. Pursuant to Federal Rule Civil Procedure 12(b), Libya moves this Court to dismiss plaintiffs' claims. Defendants' motion to dismiss both actions is granted as the Federal Sovereign Immunity Act precludes the plaintiffs from bringing this action in the United States courts against the State of Libya and its agents.

 BACKGROUND

 On December 31, 1988, Pan Am Flight 103 left Frankfurt, Germany bound for Detroit with stops in London and New York. At about 7:00 pm, Flight 103 exploded over Lockerbie, Scotland killing all 270 persons aboard, including passengers Mrs. Smith and Mrs. Hudson.

 Plaintiff Smith alleges that Pan Am Flight 103 was destroyed by a bomb and that "the actions of Libya in encouraging and sustaining these private acts [of terrorism] led to the deliberate and willful destruction of [the plane]." (Smith Complaint P11). Smith asserts tort claims for wrongful death, battery, infliction of emotional distress, loss of consortium and violation of international law. Plaintiff Hudson claims the alleged bomb "was placed on board the aircraft and detonated by and at the direction of Libya . . . ." (Hudson Complaint P11). Hudson seeks to recover for the intentional torts of wrongful death and personal injury. (H. Complt. PP15-20).

 Mr. Smith and Mr. Hudson have sued previously to recover for the injuries alleged in this matter. In June, 1993, Smith filed a wrongful death action against Libya in Scotland. Hudson joined in the multidistrict tort action (MDL 799) against Pan Am before this Court in which the jury held Pan Am responsible for the destruction of the airplane.

 DISCUSSION

 Pursuant to FRCP Rule 12(b) the defendants move this Court to dismiss plaintiffs' claims for (i) lack of subject matter jurisdiction under the Foreign Sovereign Immunity Act (FSIA); (ii) lack of subject matter jurisdiction under principles of International Law; (iii) lack of personal jurisdiction on the grounds of Constitutional due process; (iv) pendency of prior parallel actions; and (v) as time barred.

 Plaintiffs contend the FSIA sovereign immunity defense does not foreclose their claims because (i) the United States is party to certain international agreements within the United Nations system which authorize United States Courts to exercise subject matter jurisdiction over Libya; (ii) the injuries tortuously inflicted by Libya occurred in the United States for the purposes of applying the FSIA; and (iii) Libya impliedly waived sovereign immunity under FSIA when it provided a guaranty to pay certain compensation and/or when it violated the jus cogens norm.

 As the FSIA controls whether a foreign sovereign is to be denied sovereign immunity, this Court only considers the issues raised here in the context of the FSIA. See, Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989) (the FSIA is the "sole basis for obtaining jurisdiction over a foreign state in federal court").

 A. Foreign Sovereign Immunity Act

 The Foreign Sovereign Immunity Act, 28 U.S.C. §§ 1602-11, provides that "subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 and 1607 of this chapter." 28 U.S.C. § 1604 (1988). The excepted categories which preclude foreign nations from using the sovereign immunity defense are:

 
§ 1605 General exceptions to the jurisdictional immunity of a foreign state. 28 U.S.C. § 1605 (1988).
 
(a) A foreign state shall not be immune from the jurisdiction of the courts of the United States . . . in any case -
 
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect in accordance with the terms of the waiver.
 
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States
 
(3) in which rights in property taken in violation of international law ...

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