                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ANGELITA KILBURN and                         :
STEVEN TIMOTHY KILBURN,                      :
as Co-Executors of the Estate of             :
PETER KILBURN,                               :
                                             :
                       Plaintiffs,           :       Civil Action No.:      01-1301 (RMU)
                                             :
                       v.                    :       Document No.:          102
                                             :
THE ISLAMIC REPUBLIC OF IRAN                 :
et al.,                                      :
                                             :
                       Defendants.           :

                                     MEMORANDUM OPINION

                 GRANTING THE PLAINTIFFS’ EXPEDITED MOTION TO DISMISS
                     THE CLAIMS AGAINST THE LIBYAN DEFENDANTS

                                       I. INTRODUCTION

       This matter is before the court on the plaintiffs’ motion to dismiss with prejudice all

claims against the Socialist People’s Libyan Arab Jamahiriya (“Libya”) and the Libyan External

Security Organization (“LESO”). The plaintiffs are the executors of the Estate of Peter Kilburn,

who was kidnapped and subsequently killed in Lebanon. The plaintiffs seek to resolve their

claims against Libya and LESO by fulfilling the terms of a Claims Settlement Agreement signed

between the United States and Libya, pursuant to the Libyan Claims Resolution Act, Pub. L. No.

110-301, 122 Stat. 2999 (2008). Because Libya and LESO have not demonstrated that they

would suffer any prejudice if the claims against them were dismissed, the court grants the

plaintiffs’ motion to dismiss.
                     II. FACTUAL & PROCEDURAL BACKGROUND

       According to the plaintiffs, this case arises from the November 1984 kidnapping of Peter

Kilburn from his apartment in Beirut, Lebanon. Compl. at 6. The plaintiffs allege that Hizbollah

claimed responsibility for the kidnapping and held Kilburn captive until April 1986. Id. at 7.

The plaintiffs further allege that Hizbollah then sold Kilburn to the Arab Revolutionary Cells,

who claimed that they murdered Kilburn in retaliation for the U.S. bombing of Tripoli, Libya.

Id.

       On June 12, 2001, the plaintiffs, as the executors of Kilburn’s estate, filed their complaint

in this court seeking recovery for wrongful death, battery, assault, false imprisonment, slave

trafficking, intentional infliction of emotional distress, loss of solatium and economic damages

against Libya, LESO, the Islamic Republic of Iran (“Iran”) and the Iranian Ministry of

Information and Security (“MOIS”). Id. at 10-19. In addition, the plaintiffs requested punitive

damages against MOIS and LESO. Id. at 16-20. The plaintiffs claim that Iran and MOIS

provided material support to Hizbollah for their activities, including the kidnapping and torture

of Kilburn. Id. at 3-4. Additionally, the plaintiffs claim that Libya and LESO provided material

support to the Arab Revolutionary Cells for their terrorist activities, including the purchase and

extrajudicial killing of Kilburn. Id. at 4-5. Libya and LESO filed an answer on November 11,

2001. See generally Libyan Defs.’ Answer. The Clerk of the Court entered default as to Iran

and MOIS in March 2005, for failure to plead or otherwise defend this action. Clerk’s Entry of

Default (March 2, 2005).

       On August 4, 2008, President Bush signed the Libyan Claims Resolution Act (“Act”)

with the aim of creating a fund to benefit those harmed by Libya’s engagement in terrorist

activities. Libyan Claims Res. Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008). The Act’s

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purpose is to provide “fair compensation to all nationals of the United States who have terrorism-

related claims against Libya through a comprehensive settlement of claims . . . pursuant to an

international agreement between the United States and Libya as part of the process of restoring

normal relations between Libya and the United States.” Id. § 3. In accordance with the Act, the

United States and Libya entered into a binding Claims Settlement Agreement (“Agreement”) that

seeks to

        (1) reach a final settlement of the Parties’ claims, and those of their nationals
        (including natural and juridical persons); (2) terminate permanently all pending
        suits (including suits with judgments that are still subject to appeal or other forms
        of direct judicial review); and (3) preclude any future suits that may be taken to
        their courts . . . [if] such claim or suit arises from personal injury, . . . death, or
        property loss caused by . . . an act of torture . . . or other terrorist act, or the
        provision of material support or resources [prior to June 30, 2006].

U.S. Statement of Interest, Ex. 1 (Agreement) at Art. I. The Agreement further stipulates that the

United States shall aid in securing the termination of these suits, id. at Art. III, upon receipt of a

pre-determined amount (“the Fund”) from Libya that will provide settlement compensation to

United States nationals who have claims as described by the Act, U.S. Statement of Interest, Ex.

2 (“Certification of funds”) at 2. On October 31, 2008, Secretary of State Condoleeza Rice

certified that the United States was in full receipt of the funds. Id. at 1.

        In light of these events, the plaintiffs filed an expedited motion to dismiss the claims

against Libya and LESO (but not Iran or MOIS) in order to seek compensation from the Fund

under the terms of the Agreement. Pls.’ Mot. to Dismiss at 2. Libya and LESO question

whether the Agreement allows anything less than the dismissal of the case in its entirety,

including the dismissal of the claims against Iran and MOIS. Libyan Defs.’ Statement Regarding

Pls.’ Mot. to Dismiss. The United States filed a statement of interest supporting dismissal of



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claims with prejudice against only Libya and LESO. U.S. Statement of Interest at 15. The court

turns now to the plaintiffs’ motion.


                                          III. ANALYSIS

                  A. Legal Standard for Voluntary Dismissal under Rule 41

       Federal Rule of Civil Procedure 41(a) governs voluntary dismissal of an action. Under

Rule 41(a)(2), “an action shall not be dismissed at the plaintiff’s instance save upon order of the

court and upon such terms and conditions as the court deems proper.” FED. R. CIV. P. 41(a)(2);

Taragan v. Eli Lilly & Co., 838 F.2d 1337, 1339 (D.C. Cir. 1988). Dismissals under Rule

41(a)(2) “generally [are] granted in the federal courts unless the defendant would suffer

prejudice other than the prospect of a second lawsuit or some tactical disadvantage.” Conafay v.

Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986); see also 9 FED. PRAC. & PROC. 3d § 2364.

Dismissals with prejudice result in a complete adjudication of the claims and serve as a bar to

future actions. It has been held that the district court has no discretion in this situation and

cannot force an unwilling plaintiff to go to trial. Smoot v. Fox, 340 F.2d 301, 303 (6th Cir.

1964); see also 9 FED. PRAC. & PROC. 3d § 2367. Other courts have disagreed, holding that

courts always have discretion, particularly when dismissal will not determine the suit between all

parties involved. Routed Thru-Pac, Inc. v. United States, 401 F.2d 789, 795-96 (Ct. Cl. 1968);

see also 9 FED. PRAC. & PROC. 3d § 2364.

                    B. The Court Grants the Plaintiffs’ Motion to Dismiss

       The plaintiffs propose dismissal with prejudice of all claims against Libya and LESO and

assert that this action will fulfill the terms of the Agreement, thereby allowing for compensation

from the Fund. Pls.’ Mot. to Dismiss at 2. Libya and LESO respond with uncertainty about


                                                   4
whether such dismissal comports with the terms of the Agreement, or whether dismissal against

all the defendants, including Iran and MOIS, is required. Libyan Defs.’ Statement Regarding

Pls.’ Mot. to Dismiss at 1.

       In its statement of interest, the United States asserts that this court no longer has

jurisdiction to adjudicate the plaintiffs’ claims against Libya and LESO, U.S. Statement of

Interest at 7, but that the plaintiffs can proceed against Iran and MOIS, id. at 14 (citing Libyan

Claims Res. Act § 5(a)(1)(A), Pub. L. No. 110-301, 122 Stat. 2999, 3000 (2008)). Notably,

Libya and LESO did not file an opposition to the plaintiffs’ motion to dismiss nor did they file

any response or opposition to the United States’ statement of interest. The only document filed

by Libya and LESO on this issue is a two page “Statement Regarding Plaintiffs’ Motion to

Dismiss Certain Defendants.” See generally Libyan Defs.’ Statement Regarding Pls.’ Mot. to

Dismiss. In that statement, Libya and LESO offer no factual or legal argument on the issue of

dismissal noting only that “[t]here is a question as to whether an order dismissing anything less

than this action in its entirety comports with the [Agreement]” and that “the dismissal of pending

United States actions against [Libya and LESO] is the responsibility of the United States

government.” Libyan Defs.’ Statement Regarding Pls.’ Mot. to Dismiss at 1. Nowhere do Libya

and LESO claim, or even imply, that they will suffer prejudice if the claims against Iran and

MOIS are not dismissed as well. See Conafey, 793 F.2d at 353 (holding that dismissals under

Rule 41(a)(2) “generally [are] granted . . . unless the defendant would suffer prejudice”). Not

only have Libya and LESO not alleged any prejudice, they agree that the United States has the

responsibility to dismiss pending lawsuits under the Agreement, Libyan Defs.’ Statement

Regarding Pls.’ Mot. to Dismiss at 1, and have not contested the United States’ conclusion that

dismissal of Libya and LESO is proper. Concluding, therefore, that Libya and LESO will not be

                                                  5
prejudiced by dismissal of the claims against them, the court grants the plaintiffs’ motion to

dismiss.


                                      IV. CONCLUSION

       For the foregoing reasons, the court grants the plaintiffs’ motion to dismiss with prejudice

the claims against Libya and LESO only. An Order consistent with this Memorandum Opinion

is separately and contemporaneously issued this 26th day of February 2009.




                                                      RICARDO M. URBINA
                                                     United States District Judge




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