Terrorism claims against Sudan move forward

Despite efforts by the Republic of Sudan to dismiss claims brought by family members of Navy sailors killed in the bombing of the U.S.S. Cole that Sudan provided support and resources to al Qaeda that ultimately caused the Cole bombing, the case is moving forward.

Background

This action is brought under the terrorism exception to the Foreign Sovereign Immunities Act. The plaintiffs are 61 family members of the sailors killed in the terrorist bombing of the of the U.S.S. Cole on Oct. 12, 2000. Their 63-page complaint seeks compensatory and punitive damages against the Republic of Sudan pursuant to § 1605A(c) on the theory that Sudan, a designated state sponsor of terrorism, provided material support and resources to al Qaeda that ultimately caused the Cole bombing.

Sudan has filed a motion to dismiss, arguing the complaint fails to establish an exception to its sovereign immunity under 28 U.S.C. § 1605A and further fails to state a claim for relief under that section.

Rule 12(b)(1) motion

Sudan presents three reasons why the complaint, on its face, fails to satisfy the jurisdictional requirements. First, Sudan argues that the Cole bombing is not a qualifying act of terrorism because it is not an “extrajudicial killing” as defined in § 1605A. Second, Sudan argues that the complaint fails to establish the requisite causal link between Sudan’s alleged provision of material support to al Qaeda and plaintiffs’ alleged injuries caused by the Cole bombing. Third, Sudan argues that it is immune to the individual claims of plaintiffs because they are not qualifying “victims” or “claimants” under § 1605A.

The court first concludes the Cole bombing was an act of extrajudicial killing within the meaning of the FSIA. The court also finds that Sudan’s third argument, that it is immune to plaintiffs’ individual claims because they are not qualifying “victims” or “claimants” under the statute, is without merit.

With respect to Sudan’s last purported ground for dismissal under Rule 12(b)(1) – that plaintiffs’ complaint, on its face, fails to establish the requisite causal connection between Sudan’s conduct and plaintiffs’ injuries to trigger the exception to sovereign immunity under § 1605A – the court finds that it must go beyond the face of the complaint and conduct an evidentiary hearing on jurisdictional causation before ruling on Sudan’s Rule 12(b)(1) motion as to this issue. At such evidentiary hearing, both parties will have a full and fair opportunity to present and challenge any evidentiary source they desire, including any sources cited in the complaint, consistent with the Federal Rules of Evidence and Procedure.

Rule 12(b)(6) motion

Sudan raises two additional grounds for dismissal under Rule 12(b)(6) in the event the court assumes subject matter jurisdiction over the case: (1) plaintiffs fail to state a claim for the solatium, consortium and pain and suffering damages under prevailing tort law and (2) plaintiffs fail to state a claim for punitive damages under § 1605A.

Plaintiffs’ theory of liability to justify their demand for “loss of solatium and consortium” and “pain and suffering” damages is the tort of intentional infliction of emotional distress, or IIED. Sudan argues that plaintiffs fail to state a cognizable IIED claim for various reasons. The court disagrees.

Lastly, Sudan argues that two specific plaintiffs, Novella Wiggins and her minor child J.M., do not state valid IIED claims in this case because Ms. Wiggins is not in Mr. McDaniels’ immediate family, and J.M. was “not alive” at the time of the bombing. The court finds that the complaint sufficiently alleges that J.M. may be an immediate family member of Mr. McDaniels such that J.M. might be able to prove  solatium damages for loss of companionship as a result of the Cole bombing. As for plaintiff Wiggins, her alleged status as the “long-term companion” rather than spouse of Mr. McDaniels is not an automatic bar to her claim.

Sudan’s final argument in its Rule 12(b)(6) motion is that plaintiffs fail to state a claim for punitive damages because § 1605A contains no explicit statement authorizing punitive damages for pre-enactment conduct. On June 28, 2019, after the court conducted the hearing on this motion, the Supreme Court granted a petition for writ of certiorari to decide the exact punitive-damages question at issue here. Accordingly, Sudan’s motion to dismiss with respect to plaintiffs’ claims for punitive damages is held in abeyance.

Kumar v. Republic of Sudan, Lead Case No. 10-cv-171, July 31, 2019. EDVA at Norfolk (Doumar). VLW 019-3-378. 31 pp.