                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
CERTAIN UNDERWRITERS AT       )
LLOYDS LONDON, et al.,        )
                              )
               Plaintiffs,    )
                              )
     v.                       )           Civil Action No. 06-731 (GK)
                              )
GREAT SOCIALIST PEOPLE’S      )
LIBYAN ARAB JAMAHIRIYA,       )
et al.,                       )
                              )
               Defendants.    )
______________________________)
                              )
CERTAIN UNDERWRITERS AT       )
LLOYDS LONDON, et al.,        )
                              )
               Plaintiffs,    )
                              )
     v.                       )           Civil Action No. 08-504 (GK)
                              )
GREAT SOCIALIST PEOPLE’S      )
LIBYAN ARAB JAMAHIRIYA,       )
et al.,                       )
                              )
               Defendants.    )
______________________________)

                              MEMORANDUM OPINION

     In   C.A.     No.    06-731,   Plaintiffs    Certain   Underwriters   at

Lloyds    London    (“Lloyds”),      Allianz     Cornhill   Insurance,   PLC;

Aviation & General Insurance Company, Ltd.; English & American

Insurance Company Ltd.; Markel Insurance Company Ltd.; Minster

Insurance Company Ltd.; MMO/New York Marine and General; Nippon

Insurance Company of Europe Ltd.; Riverstone Insurance UK Ltd.;
Sovereign    Marine    &     General     Insurance     Company        Ltd.;     SR

International Business Insurance Company Ltd.; Tower Insurance

Ltd.; and La Réunion Aérienne (collectively, “Plaintiffs”) bring

these actions against Defendants Great Socialist People’s Libyan

Arab    Jamahiriya;   Libyan     Internal      Security;     Libyan       External

Security; Mu’ammar al-Qadhafi; Abdallah al-Sanusi; Ibrahaim al-

Bishari   (collectively,      “Libyan    Defendants”);       the    Syrian    Arab

Republic; Syrian Air Force Intelligence; and Muhammed al Khuli

(collectively,     “Syrian    Defendants”),1     pursuant     to    the    Foreign

Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq.

(2006) (Count I);     common law conversion and trespass (Counts II

and III); and Aircraft Piracy under the Alien Tort Claims Act

(“ATCA”), 28 U.S.C. § 1350 (2006) (Count IV).               Second Am. Compl.

[C.A. No. 06-731, Dkt. No. 60].

       In C.A. No. 08-504, the same Plaintiffs bring suit pursuant

to the National Defense Authorization Act for Fiscal Year 2008,

Pub. L. No. 110-181, § 1083, 122 Stat. 3 (2008).              They claim that

Defendants violated the FSIA (Count I); committed common law

conversion   and   trespass    (Counts    II   and   III);    and    engaged    in


1
     Defendants   Syrian  Arab   Republic,   Syrian  Air   Force
Intelligence, and Muhammed al Khuli defaulted in C.A. No. 06-731
[Dkt. Nos. 21-23] and have failed to appear in C.A. No. 08-504.
Hereinafter, “Defendants” refers to all Defendants except the
Syrian defendants.



                                  -2-
Aircraft Piracy under the ATCA (Count IV). Compl. [C.A. No. 08-

504, Dkt. No. 1].

       These cases are before the court on Defendants’ Motions to

Dismiss Duplicative Complaint [C.A. No. 06-731, Dkt. No. 74; C.A.

No. 08-504, Dkt. No. 18] and Defendants’ Supplemental Motions to

Dismiss [C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt. No.

24].

I.     BACKGROUND2

       On   November     23,   1985,    three    members    of    the    Abu     Nidal

Organization3 (“ANO”) hijacked Egypt Air Flight 648, traveling

from    Athens,       Greece   to    Cairo,   Egypt.       At    that    time,    the

governments      of    Libya   and   Syria    sponsored    ANO   by     providing   a

variety     of    monetary,      material,      diplomatic,      and     logistical

support.

       Shortly after takeoff, the plane made an emergency landing

at the Malta International Airport, where it remained for twenty-

2
    For purposes of ruling on a motion to dismiss, the factual
allegations of the Complaint must be presumed to be true and
liberally construed in favor of the Plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008).   Therefore, the facts set forth herein are taken from
Plaintiff’s Complaint unless otherwise noted.

3
     The ANO is also known as Black September, the Fatah
Revolutionary Council, the Arab Revolutionary Council, the Arab
Revolutionary Brigades, and the Revolutionary Organization of
Socialist Muslims.



                                      -3-
four hours until Egyptian Commandos attempted to board it.              The

combination of gunfire by the ANO members, a fire started by the

Egyptian Commandos’ explosives, and the ANO members’ deployment

of hand grenades rendered the plane “damaged beyond repair” and

unfit “for any purpose whatsoever.”            Compl. ¶ 51 [C.A. No. 08-

504].

     Plaintiffs,     which   are    both     foreign   and   United   States

national juridical entities, provided liability insurance for the

hull of the plane.      Following the hijacking, they “compensated”

Egypt Air “for the cost of the destroyed airplane.”            Id. ¶ 64.

     On April 21, 2006, Plaintiffs filed a Complaint in this

Court against the Libyan and Syrian Defendants.               The original

Complaint alleged Conversion (Count I), Trespass (Count II), and

Aircraft Piracy (Count III).             On November 9, 2006, Plaintiffs

filed an Amended Complaint adding an additional allegation of

International Terrorism in Violation of 18 U.S.C. § 2333 (Count

IV) [Dkt. No. 26].

     On December 5, 2006, Defendants filed a Motion to Dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and

(6) [Dkt. No. 32].     On June 12, 2007, this Court held a Motions

Hearing.   On July 9, 2007, it granted Defendants’ Motion to

Dismiss for lack of subject matter jurisdiction [Dkt. Nos. 45-




                                   -4-
46].        Plaintiffs filed an appeal on August 3, 2007, and on

February 1, 2008, our Court of Appeals ruled that it lacked

jurisdiction to consider the appeal.                 Consequently, it ordered

that the Motion to Dismiss be granted.               See Certain Underwriters

at Lloyd’s of London v. Great Socialist People’s Libyan Arab

Jamahiriya, No. 07-7117 (D.C. Cir. Dec. 14, 2007) [Dkt. No. 61].

       On    February      22,   2008,   Plaintiffs     filed    a   Motion   for

Reconsideration [Dkt. No. 51] and a Motion for Leave to File a

Second Amended Complaint [Dkt. No. 52].                On March 28, 2008, the

Motion for Leave was granted and Plaintiffs filed their Second

Amended Complaint the same day [Dkt. No. 60].                 The Second Amended

Complaint alleges a violation of 28 U.S.C. § 1605A(d) (Count I),

Conversion (Count II), Trespass (Count III), and Aircraft Piracy

(Count IV), seeking a sum in excess of $40 million on each count.

On   April    14,    2008,   the    Court   denied    Plaintiffs’    Motion   for

Reconsideration without prejudice [Dkt. No. 64].

       On    March   24,    2008,   Plaintiffs   filed    a    second   Complaint

against the same Defendants,4 alleging a violation of 28 U.S.C. §



4
   Plaintiffs also filed a Notice of Related Cases on April 21,
2006 [C.A. No. 06-731, Dkt. No. 2]. In it, they indicated that
another case, Baker, et al. v. Libya, et al., C.A. No. 03-749,
“relate[d] to common property; involve[d] common issues of fact;”
and “[grew] out of the same event or transaction.”      Notice of
Related Cases at 1.



                                     -5-
1605A(d) (Count I), Conversion (Count II), Trespass (Count III),

and Aircraft Piracy (Count IV), seeking a sum in excess of $40

million on each count [C.A. No. 08-504, Dkt. No. 1].    On July 25,

2008, Plaintiffs filed a Motion to Consolidate Cases [C.A. No.

08-504, Dkt. No. 17], and Defendants filed Motions to Dismiss

Duplicative Complaint [C.A. No. 06-731, Dkt. No. 74; C.A. No. 08-

504, Dkt. No. 18].

      On November 20, 2008, Defendants filed Supplemental Motions

to Dismiss [C.A. No. 06-731, Dkt. No. 80; C.A. No. 08-504, Dkt.

No. 24].   On March 16, 2009, the United States filed a Statement

of Interest in each case [C.A. No. 06-731, Dkt. No. 84; C.A. No.

08-504, Dkt. No. 28].

      On July 10, 2009, the two cases--06-731 and 08-504--were

consolidated.   [C.A. No. 06-731, Dkt. No. 92; C.A. No. 08-504,

Dkt. No. 36].

II.   STANDARD OF REVIEW

      To survive a motion to dismiss, a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its

face” and to “nudge[] [his or her] claims across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).     “[O]nce a claim has been stated adequately, it




                               -6-
may be supported by showing any set of facts consistent with the

allegations in the complaint.”       Id. at 579.

     Under the standard set out in Twombly, a “court deciding a

motion   to   dismiss   must   not    make   any   judgment   about   the

probability of the plaintiff's success . . . must assume all the

allegations in the complaint are true (even if doubtful in fact)

. . . [and] must give the plaintiff the benefit of all reasonable

inferences derived from the facts alleged.” Aktieselskabet AF

21.November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.

2008) (internal quotation marks and citations omitted).

III. ANALYSIS

     On August 4, 2008, the Libyan Claims Resolution Act (“LCRA”)

was signed into law in order to “provide for ‘fair compensation

to all nationals of the United States who have terrorism-related

claims against Libya through a comprehensive settlement of claims

by such nationals.’”    Statement of Interest of the United States

at 4-5 (quoting Pub. L. No. 110-301, § 3, 122 Stat. 2999 (2008)).

The statute states that

     section 1605A(c) of title 28, United States Code,
     section 1083(c) of the National Defense Authorization
     Act for Fiscal Year 2008 . . . and any other private
     right of action relating to acts by a state sponsor of
     terrorism arising under Federal, State, or foreign law
     shall not apply with respect to claims against Libya,
     or any of its agencies, instrumentalities, officials,




                               -7-
     employees, or agents in any action in a Federal or
     State court.

Pub. L. No. 110-301, § 5(a)(1)(B).                The Act provides Libya with

immunity that applies to suits brought in the United States by

plaintiffs of any nationality.5            Id. at § 5(a)(1).

     On August 14, 2008, shortly after the passage of the LCRA,

Libya    and   the    United    States      signed       the   Claims   Settlement

Agreement      (“Settlement       Agreement”)      in     order    to   “terminate

permanently all pending suits              . . . [and] preclude any future

suits” in United States or Libyan courts arising from terrorist

acts,    including     aircraft     hijacking      and    hostage-taking,     which

occurred prior to June 30, 2006.                  Claims Settlement Agreement

Between the United States of America and the Great Socialist

People’s Libyan Arab Jamahiriya, art. I, August 14, 2008.                      After

the United States Government received $1.5 billion in settlement

funds, President Bush signed an Executive Order stating that

“[a]ll   claims      within   the   terms    of    Article     I   of   the   Claims

Settlement Agreement . . . are settled.”                 Exec. Order No. 13,477,

§ 1 (2008).



5
    The LCRA states that “Libya, an agency or instrumentality of
Libya, and the property of Libya or an agency or instrumentality of
Libya, shall not be subject to the exceptions to immunity from
jurisdiction, liens, attachment, and execution contained in section
1605A, 1605(a)(7), or 1610 . . . of Title 28, United States Code.”
Pub. L. No. 110-301, § 5(a)(1)(A).


                                     -8-
     The Order declares that “[n]o United States national may

assert or maintain any claim within the terms of Article I in any

forum” outside the provisions of the Settlement Agreement and

that “[a]ny pending suit in any court . . . by United States

nationals . . . coming within the terms of Article I shall be

terminated.”        Id.      §    1(a)(i-ii).       With     regard    to   foreign

nationals,    the    Order       states   that    “[n]o   foreign     national   may

assert or maintain any claim coming within the terms of Article I

in any court in the United States,” and “[a]ny pending suit in

any court in the United States by foreign nationals . . . coming

within the terms of Article I shall be terminated.”6                           Id. §

1(b)(i-ii).

     In the federal system, the FSIA is the “sole basis for

obtaining jurisdiction over a foreign state.”                 Argentine Republic

v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).                        See

also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486

(1983) (“[I]f none of the exceptions to sovereign immunity set

forth   in   the    [FSIA]       applies,   the   District    Court    lacks     both

statutory      subject           matter      jurisdiction        and        personal

jurisdiction”).       While Plaintiffs rightly point out that, under

6
    The Order does permit foreign nationals “to pursue other
available remedies for claims coming within the terms of Article I
in foreign courts or through the efforts of foreign governments.”
Exec. Order No. 13,477, § 1(b)(iii).


                                      -9-
28 U.S.C. § 1605A(c), the January 2008 amendments to the FSIA

provide    a    new    federal        cause   of   action    against    nations     that

sponsor terrorism, the LCRA explicitly overrides § 1605A(c) and

restores immunity to Libya pursuant to the Settlement Agreement.                       7


       Principles      of    statutory        interpretation    establish    that    “a

specific statute will not be controlled or nullified by a general

one,   regardless       of     the     priority     of   enactment.”       Morton     v.

Mancari,       417    U.S.     535,    550-51      (1974).     That     principle    is

applicable to this case where the explicit language of the LCRA

negates a general provision of the FSIA.8

       Plaintiffs concede that their claims fall within Article I

of the Settlement Agreement [C.A. No. 06-731, Dkt. No. 81; C.A.

No. 08-504, Dkt. No. 25].                     Pls.’ Opp’ns ¶ 6.          Furthermore,

Defendants all fall within the class for which the LCRA provides

immunity--the         Libyan    government,        its   agencies      (Internal    and


7
   As quoted, supra, “section 1605A(c) of title 28, United States
Code . . . and any other private right of action relating to acts
by a state sponsor of terrorism arising under Federal, State, or
foreign law shall not apply with respect to claims against Libya,
or any of its agencies, instrumentalities, officials, employees, or
agents in any action in a Federal or State court.” Pub. L. 110-
301, § 5(a)(1)(B).
8
   Retroactivity is not at issue in this case because Congress has
made clear its intent to apply the provisions of the LCRA to events
prior to June 30, 2006. See Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994) (requiring deference to Congressional intent with
respect to statutes’ retroactive application).


                                        -10-
External Security), and its officials, employees, or agents (al-

Qadhafi, al-Sanusi, and al-Bishari).

     Because the LCRA, Settlement Agreement, and Executive Order

specifically    and   comprehensively    withdraw     any   exception   to

sovereign immunity that may be provided in the FSIA with regard

to Defendants’ pre-2006 support of terrorist acts, this Court

lacks subject matter jurisdiction over the Libyan Defendants.                9


See Verlinden B.V., 461 U.S. at 485 n.5.

     Plaintiffs   nevertheless   “suggest”     that   the   Court   retain

jurisdiction over the case until it is clear that an alternate

forum can provide relief for their claims.            Pls.’ Statement of

Position at 3 [C.A. No. 08-504, Dkt. No. 33].           The Court cannot

comply   with   Plaintiffs’   wish:     the   jurisdictional    issue   is

dispositive.    See Antolok v. United States, 873 F.2d 369, 375

(D.C. Cir. 1989) (“Congress has deprived the courts of the United

States of jurisdiction over these claims. . . . That is the end

of the matter.”).




9
    Because the Court lacks jurisdiction, there is no need to
analyze the allegedly duplicative nature of Plaintiffs’ Complaint
in C.A. No. 08-504.


                              -11-
IV.   CONCLUSION

      For the reasons set forth above, Defendants’ Motions to

Dismiss are granted with respect to the Libyan Defendants.10      An

Order shall accompany this Memorandum Opinion.




                                    /s/
January 6, 2010                    Gladys Kessler
                                   United States District Judge




Copies to: Attorneys of record via ECF




10
   Plaintiffs raise several additional contentions alleging that
the provisions under the LCRA and Settlement Agreement are
insufficient to address their claims. However, the lack of subject
matter jurisdiction and personal jurisdiction is dispositive in
this case. See Antolok, 873 F.2d at 375.


                            -12-
