                             UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ODILLA MUTAK MWANI, et al.,

       Plaintiffs,

               v.                                            Civil Action No. 99-125 (JMF)

USAMA BIN LADEN and AL QAEDA,

       Defendants.

                                  MEMORANDUM OPINION

       This case was referred to me for all purposes. The death of Usama Ben Laden requires,

however, that the Court first consider who may continue as a party defendant

                                        BACKGROUND

       On December 9, 2011, plaintiffs notified the Court of Bin Laden’s death on May 1, 2011.

Notice and Suggestion of Death [#106]. On December 20, 2013, the Court instructed plaintiffs

“to show cause and provide additional briefing to explain why this court should not dismiss

Usama Bin Laden and Al Qaeda as defendants.” Order to Show Cause [#114] at 1. Specifically,

plaintiffs were directed to address the following issues:

               1.      Why Usama Bin Laden should not be dismissed as a
                       defendant;
               2.      Whether plaintiffs’ claims against Usama Bin Laden
                       survived his death;
               3.      What steps plaintiffs have taken to find a substitute party
                       for Usama Bin Laden under Federal Rule of Civil
                       Procedure 25(a)(1) and whether they have identified an
                       individual to be substituted as a defendant; and
               4.      Whether Al Qaeda has the capacity to be sued under
                       Federal Rule of Civil Procedure 17(b)(3), or any other
                       Rule, including:
                       a.      What Al Qaeda’s legal status is;
                       b.      Whether it has the capacity to be sued under the
                               laws of the District of Columbia;
                       c.      Whether this lawsuit seeks to “enforce a substantive
                               right existing under the United States Constitution
                               or laws”; and
                       d.      Whether a cause of action arising under federal
                               common law satisfies this standard.

Id. at 4.

                                           DISCUSSION

I.      Bin Laden

        A.     Legal Standard

        Under the Federal Rules of Civil Procedure, “[a] motion for substitution may be made by

any party or by the decedent’s successor or representative.” Fed. R. Civ. P. 25(a) (emphasis

added). However, “[i]f the motion is not made within 90 days after service of a statement noting

the death, the action by or against the decedent must be dismissed.” Id. (emphasis added).

According to the Advisory Committee notes for Rule 25(a), “[t]he amended rule establishes a

time limit for the motion to substitute based not upon the time of the death, but rather upon the

time information of the death is provided by means of a suggestion of death upon the record, i.e.

service of a statement of the fact of the death.” In other words, “[t]he motion may not be made

later than 90 days after the service of the statement unless the period is extended pursuant to

Rule 6(b), as amended.” Id. Thus, the Advisory Committee concluded that “[p]resent Rule

25(a)(1), together with present Rule 6(b), results in an inflexible requirement that an action be

dismissed as to a deceased party if substitution is not carried out within a fixed period measured

from the time of the death.” Id.

        B.     Analysis

        Plaintiffs argue “the obligation to substitute is triggered only after notice of the pendency

of the action in the form of a proper suggestion of death is received by the prospective



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substituted party.” Plaintiffs’ Response to December 20, 2013 Order to Show Cause [#117] at 3.

In other words, plaintiffs contend that “dismissal under Rule 25(a) can only take place on a

finding that a party appropriate for substitution has been identified and has been notified but has

neither been substituted nor proposed for substitution.” Id. Plaintiffs fail, however, to cite any

portion of the Rule itself or cases interpreting it that would permit them an unlimited amount of

time to effect the substitution of a deceased party by the identification and notification of a party

appropriate for substitution. Nor can it be correct under that Rule that plaintiffs get an indefinite

postponement of dismissal ending only when they identify the substituted party. That would

render the deadline set by Rule 25(a) nugatory.

       Under the Federal Rules, plaintiffs’ motion for substitution under Rule 25(a) should have

been filed no later than 90 days following the December 9, 2011 filing of the notice of Bin

Laden’s death. Alternatively, plaintiffs should have moved for an extension of time pursuant to

Rule 6(b). Plaintiffs failed to do either. Therefore, the action against Bin Laden must be

dismissed.

II.    Al Qaeda

       Plaintiffs argue that their claims against Al Qaeda survive. [#117] at 4-5. First, plaintiffs

point to the Court of Appeals’ description of Al Qaeda as a “terrorist organization.” Id. at 4 n.4

(quoting Mwani v. bin Laden, 417 F.3d 1, 17 (D.C. Cir. 2005)). Plaintiffs then note that in 1998,

President Bill Clinton designated “Al Qaida” a “foreign terrorist.” Id. (citing Executive Orders

12947 and 13099. Finally, plaintiffs argue that consideration of Al Qaeda’s legal status is

unnecessary at this juncture:

               It is both unlikely and unnecessary that al Qaeda voluntarily
               undertook to adopt a conventional commercial structure or
               otherwise took steps to formalize its legal status. As is discussed
               herein with respect to Rule 17, the existence of such a legal status


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                  is unnecessary to the entry of a judgment in this case. Moreover, it
                  is worth noting that neither the Court of Appeals in Mwani, supra,
                  nor the district court, which undertook a “. . . more searching
                  merits-based inquiry . . .” before entering a default against both
                  defendants, September 28, 2006 Opinion, at 4, ECF 81, found the
                  legal status of al Qaeda to be an impediment either to a finding of
                  personal jurisdiction or the entry of a default.

[#117] at 4 n.4.

         The Court agrees that the claims against Al Qaeda survive, but for reasons ultimately

having nothing to do with Rule 17, the issue the Court directed plaintiffs to brief.

         In 2005, the court of appeals concluded that service had been effected against Al Qaeda

and that the exercise of jurisdiction over it was constitutional and consistent with the due process

clause of the Constitution. Mwani, 417 F.3d at 11-15. On September 28, 2006, Judge Kollar-

Kotelly granted plaintiffs’ motion for a default judgment against Bin Laden and Al Qaeda, based

on a finding that the Court had both subject matter and personal jurisdiction over defendants. In

light of the court of appeals’ holding and the Court’s previous entry of a default judgment, this

Court will not re-evaluate the issue of its jurisdiction over Al Qaeda, nor will it consider the

distinct issue of Al Qaeda’s capacity to be sued under Rule 17. 1 Instead, this Court will proceed

with the issuance of its Findings of Fact and Conclusions of Law, leaving for another day the

resolution of any challenge to this Court’s proceeding against Al Qaeda—to include collateral

attack on any judgment this Court will render 2—on the grounds that it lacked the capacity to be

sued.



1
  Al Qaeda’s capacity to be sued or legal status is a separate and distinct issue from this Court’s exercise of subject
matter or personal jurisdiction over it. See Day v. Avery, 548 F.2d 1018, 1023 (D.C. Cir. 1976) (“We note initially
that the fact of personal jurisdiction does not ineluctably bestow legal capacity to be sued; infants and incompetents,
for instance, were at common law incapacitated from suing or being sued, and the fact that they were subject to
personal jurisdiction did not alter the necessity of appointing a guardian ad litem.”).
2
  Cf. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) (“A defendant is always
free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional
grounds in a collateral proceeding.”) (citation omitted).

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                                CONCLUSION

For the reasons state herein, it is therefore, hereby,

ORDERED that Usama Bin Laden be dismissed as a defendant in this action.

SO ORDERED.
                                                                Digitally signed by John M.
                                                                Facciola
                                                                DN: c=US, st=DC, l=Washington,
                                                                email=John_M._Facciola@dcd.us
                                                                courts.gov, o=United States
                                                                District Court, cn=John M.
                                                                Facciola
                                                ____________________________________ -04'00'
                                                                Date: 2014.08.22 11:54:17
                                                JOHN M. FACCIOLA
                                                UNITED STATES MAGISTRATE JUDGE




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