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Harrison v. Republic of Sudan

United States District Court for the District of Columbia

March 30, 2012, Decided

Civil Action 10-1689 (RCL)

Opinion

 [*26]  MEMORANDUM OPINION

This case arises out of the bombing of the U.S.S. Cole ("the Cole") on October 12, 2000. The attack ripped a thirty-two-by-thirty-six-foot hole in the side of the vessel when it was berthed in Yemen's Aden Harbor. Seventeen servicemen and women were killed, and forty-two suffered injuries. The eighteen plaintiffs before this Court are fifteen former sailors who were injured while on the Cole and three of their spouses, who, although not on the Cole during the attack, allegedly suffered emotional distress upon learning of the incident. 1 Plaintiffs bring this action under the "state-sponsored  [**2] terrorism" exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq. 2 Plaintiffs allege that defendant Republic of Sudan ("Sudan") is liable for their injuries by virtue of its support of Al Qaeda, which perpetrated the Cole bombing. Before the Court is [Dkt # 14] plaintiffs' motion for a default judgment against Sudan. After making pertinent findings of fact, the Court concludes that plaintiffs  [*27]  have provided sufficient evidence to establish a cause of action against Sudan under FSIA's state-sponsored terrorism exception, that Sudan is liable to the plaintiffs for the alleged harms, and that plaintiffs are entitled to both compensatory and punitive damages. In accordance with these findings and conclusions, the Court awards damages to plaintiffs.

I. BACKGROUND

A. Prior and Current USS Cole Litigation.

Two cases involving the Cole attack relate to the case at bar and speak to the question of Sudan's liability for the Cole attack. In Rux v. Republic of Sudan fifty-seven survivors of the seventeen sailors who died in the Cole attack sued Sudan for damages. Rux v. Republic of Sudan, 2005 U.S. Dist. LEXIS 36575, 2005 WL 2086202 (Aug. 26, 2005). After defaulting, Sudan moved to dismiss plaintiffs' claims on jurisdictional and immunity grounds. The district court denied Sudan's motion, concluding that plaintiffs had alleged sufficient jurisdictional facts to bring their case within the FSIA state-sponsored terrorism exception. Id. Sudan appealed. The United States Court of Appeals for the Fourth Circuit affirmed the district court, finding that plaintiffs' allegations met FSIA's jurisdictional pleading requirements "by describing how Sudan provided Al-Qaeda a base of operations to plan and prepare for the bombing, and provided operational support for the attack." Rux v. Republic of Sudan, 461 F.3d 461, 473-74 (4th Cir. 2006). The district court then proceeded to the merits of plaintiffs' claims and  [**4] concluded that, even though Sudan was liable for plaintiff's injuries, plaintiffs were only entitled to damages under the Death on the High Seas Act (DOHSA), 46 U.S.C. § 30302. The Court held that "[w]hile the FSIA vests jurisdiction in federal courts to hear cases against foreign states, it does not afford plaintiffs with a substantive cause of action." 495 F. Supp. 2d 541, 555 (E.D. Va 2007). Accordingly, the district court dismissed plaintiffs' maritime and state law claims and awarded eligible plaintiffs $ 7,956,344 under DOHSA. Id. at 567-69. Plaintiffs appealed the district court's judgment. While this appeal was pending, Congress passed the 2008 NDAA amendment to the FSIA which, in addition to creating a federal private right of action, added punitive damages and solatium as recoverable damages in a new section of the FSIA, § 1605A. See 28 U.S.C. § 1605A(c). Under this provision, the same fifty-seven Rux plaintiffs filed a second lawsuit in August 2010, joining with two new plaintiffs to the case. Kumar v. Republic of Sudan, 2011 U.S. Dist. LEXIS 109216, 2011 WL 4369122 (E.D. Va. Sept. 19, 2011). The same district court that heard Rux considered and rejected the claims of the plaintiffs to whom it had awarded  [**5] judgments in the previous litigation, reasoning that both res judicata and the prohibition on legislative reopening of final judgments barred them. 2011 U.S. Dist. LEXIS 109216, [WL] at *10-11 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 241, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995)). The court therefore awarded damages only to the new plaintiffs who had not been party to the previous Rux litigation. 2011 U.S. Dist. LEXIS 109216, [WL]at *11. 3  [*28]  Plaintiffs in the case at bar were not plaintiffs in Rux or Kumar.

The Court underscores an important matter before proceeding: because plaintiffs in this case bring their action under the new § 1605A, they are entitled to types of damages — i.e. for pain and  [**6] suffering and solatium — and punitive damages that the Rux plaintiffs, who initiated their action before § 1605A was enacted, did not obtain. As the Court will explain below, these new damages can amount to substantially larger sums than the Rux court awarded those plaintiffs. The Court regrets this disparity and emphasizes that the difference primarily reflects a change in the governing statute rather than this Court's assessment of the relative hardship endured by the Rux plaintiffs and the plaintiffs currently before the Court.

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882 F. Supp. 2d 23 *; 2012 U.S. Dist. LEXIS 44334 **; 2012 WL 1066683

RICK HARRISON, et al., Plaintiffs, v. REPUBLIC OF SUDAN, Defendant.

Subsequent History: Related proceeding at, Magistrate's recommendation at Harrison v. Republic of Sudan, 2013 U.S. Dist. LEXIS 102295 (N.D. Cal., June 24, 2013)

Related proceeding at, Magistrate's recommendation at Harrison v. Republic of Sudan, 2014 U.S. Dist. LEXIS 137362 (D. Minn., Sept. 9, 2014)

Related proceeding at Harrison v. Republic of Sudan, 802 F.3d 399, 2015 U.S. App. LEXIS 16885 (2d Cir. N.Y., 2015)

Related proceeding at Harrison v. Republic of Sudan, 2017 U.S. Dist. LEXIS 25675 (S.D.N.Y., Feb. 10, 2017)

Prior History: Rux v. Republic of the Sudan, 410 Fed. Appx. 581, 2011 U.S. App. LEXIS 2312 (4th Cir. Va., 2011)

CORE TERMS

bombing, Navy, injuries, damages, sailors, blast, disorder, stress, symptoms, ship, post-traumatic, explosion, assigned, terrorist, spouses, enlisted, solatium, severe, physical injury, plaintiffs', terrorism, courts, Love, career, pain, punitive damages, diagnosed, emotional, training, awards

International Law, Foreign Sovereign Immunities Act, Exceptions, Terrorism, Civil Procedure, Default & Default Judgments, Default Judgments, Entry of Default Judgments, Sovereign Immunity, Burdens of Proof, Governments, Federal Government, Claims By & Against, Jurisdiction, Subject Matter Jurisdiction, Waivers, General Overview, Torts, Intentional Torts, Assault & Battery, Elements of Assault, Elements of Battery, Intentional Infliction of Emotional Distress, Elements, Pain & Suffering, Emotional Distress, Remedies, Damages, Punitive Damages, Judgment Interest, Prejudgment Interest