REIN v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA

Docket No. 98-7467.

162 F.3d 748 (1998)

Denice H. REIN, individually and as Executrix of the Estate of Mark Alan Rein, deceased, Barbara A. Ahern, individually and as Co-Administrator of the Estate of John M. Ahern, deceased, Thomas A. Ahern, individually and as Co-Administrator of the Estate of John M. Ahern, deceased, Marion K. Alderman, individually and as Administratrix of the Estate of Glenn John Bouckley, deceased, Marion K. Alderman, individually and as Administratrix of the Estate of Paula Alderman Bouckley, deceased, Carolyn Ammerman, individually and as Administratrix of the Estate of Thomas J. Ammerman, deceased, Arnold Asrelsky, individually and as Co-Administrator of the Estate of Rachel Maria Asrelsky, deceased, Hope Asrelsky, individually and as Administrator of the Estate of Rachel Maria Asrelsky, deceased, William Garretson Atkinson, individually and as Administrator of the Estate of William Garretson Atkinson, III, deceased, Dona Bardelli Bainbridge, individually and as Administratrix of the Estate of Harry M. Bainbridge, deceased, Kenneth Stuart Barclay, individually and as Personal Representative of the Estate of Stuart Murray Barclay, deceased, Raquel Lopez Benvenuto, individually and as personal Representative of the Estate of Fabrina Benvenuto Caffarone, deceased, Phillip B. Bergstrom, individually and as Administrator of the Estate of Phillip V. Bergstrom, deceased, Sandra Bernstein Clarren, individually and as Administratrix of the Estate of Judith Ellen Bernstein, deceased, Stephanie Laskin Bernstein, individually and as Administratrix of the Estate of Michael Stuart Bernstein, deceased, Francoise Boyer Bardon, individually and as Administratrix of the Estate of Francis Boyer, deceased, Eleanor Hoey Bright, individually and as Administratrix of the Estate of Nicholas Bright, deceased, Diana Browner, individually and as personal Representative of the Estate of Danielle Browner, deceased, Patricia A. Brunner, individually and as Administratrix of the Estate of Colleen R. Brunner, deceased, Julianne Budwick, individually and as Administratrix of the Estate of Eric John Williams, deceased, Brian D. Butler, individually and as Administratir Ad Prosequendum of the Estate of Steven Lee Butler, deceased, Edmundo Luis Caffarone, individually and as personal representative of the Estate of Herman Luis Caffarone, deceased, Graciela Caffarone, individually and as personal representative of the Estate of Herman Luis Caffarone, deceased, Salvatore V. Capasso, individually and as Co-Administrator of the Estate of Gregory J. Capasso, deceased, Betty-Ann Capasso, individually and as Co-Administrator of the Estate of Gregory J. Capasso, deceased, Genevieve Walters, individually and as Administratrix of the Estate of Richard Anthony Cawley, deceased, Daniel Edward Cohen, individually and as Co-Administrator of the Estate of Theodora Eugenia Cohen, deceased, Susan Handler Cohen, individually and as Co-Adminstrator of the Estate of Theodora Eugenia Cohen, deceased, Aldred Corner, as Administrator of the Estate of Tracey Jane Corner, deceased, Elizabeth Delude-Dix, individually and as Administratrix of the Estate of Peter T.S. Dix, deceased, Perry Dorstein, individually and as Administrator of the Estate of David Scott Dornstein, deceased, John M. Flynn, individually and as Administrator of the Estate of John Patrick Flynn, deceased, Euphemia MacAllister Foley, as Administratrix of the Estate of William K. MacKinnon MacAllister, deceased, Lynne R. Moses, individually and as Administratrix of the Estate of Daniel P. Rosenthal, deceased, Lynn Koenig Garczynski, individually and as personal Representative of the Estate of Kenneth R. Garczynski, deceased, Dominique Garrett, individually, Ernest Garrett, as Administrator of the Estate of Paul I. Garrett, Deceased, Wendy Giebler Sifcik, individually and as Administratrix of the Estate of William D. Giebler, deceased, Terri F. Gould, individually and as Executrix of the Estate of David J. Gould, deceased, Tatiana Guevorguian, individually and as Administratrix of the Estate of Andre Guevorguian, deceased, Anthony B. Hall, individually and as Executor of the Estate of Nicola Jane Hall, deceased, Paul Halsch, individually and as Administrator of the Estate of Lorraine F. Halsch, deceased, Helen Engelhardt Hawkins, as Administratrix of the Estate of Anthony Lacey Hawkins, deceased, Anne L. Hudson, individually and as Administratrix of the Estate of Sophia Hudson, deceased, Robert R. Hunt, individually and as Administrator of the Estate of Karen L. Hunt, deceased, Beverly Braniff Jeck, individually and as Executrix of the Estate of Robert V, Jeck, deceased, Raymond M. Jermyn, Sr., individually and as Co-Administrator of the Estate of Kathleen M. Jermyn, deceased, Margaret M. Jermyn, individually and as Co-Administrator of the Estate of Kathleen M. Jermyn, deceased, Glenn P. Johnson, Jr., individually and as administrator of the Estate of Beth Ann Johnson, deceased, Rita F. Kelly, individually and as Administratrix of the Estate of Julianne F. Kelly, deceased, Patricia Kingham, individually and as Executrix of the Estate of Jay J. Kingham, deceased, Marina M. Kulukundis, as Administratriz of the Estate of Minas Christopher Kulukundis, deceased, Barbara Ann Ludlow, individually and as Special Administratrix of the Estate of Lloyd David Ludlow, deceased, Patricia Audrey Martin, individually and as Executrix of the Estate of Noel G, Martin, deceased, Marjorie G. McKee, individually and as Executrix of the Estate of Charles Dennis McKee, deceased, Rhoda P. Miller, individually and as Executrix of the Estate of Joseph K. Miller, deceased, Gregory P. Morson, individually and as Co-Administrator of the Estate of Eva Ingeborg Morson, deceased, Vanessa C. Morson, individually and as Co-Adminstrator of the Estate of Eva Ingeborg Morson, deceased, Siobhan D. Mulroy, individually and as Executrix of the Estate of John Mulroy, deceased, Judith A. Pagnucco, individually and as Executrix of the Estate of Robert I. Pagnucco, deceased, Ervin Phillips, individually and as Administrator of the Estate of Sarah Phillips, deceased, Lisa Platt, individually and as Administratrix of the Estate of David Platt, deceased, Molena A. Porter, individually and as Administratrix of the Estate of Walter L. Porter, deceased, Jacob Posen, individually and as Co-Administor of the Estate of Pamela Lynn Posen, deceased, Bonnie J. Gregge, individually and As Co-Administrator of the Estate of Pamela Lynn Posen, deceased, FLorencio Quiguyan, individually and as Administrator of the Estate of Estrella C. Quiguyan, deceased, Glendon L. Rafferty, individually and as Administrator of the Estate of Bonnie Leigh Williams, deceased, Yvonne Reeves, individually and as personal Representative of the Estate of Anita Lynn Reeves, Oregon Rogers, individually and as Administrator of the Estate of Lousie Ann Rogers, deceased, John Frick Root, individually and as Administrator of the Estate of Hanne-Maria Maijala Root, deceased, Meryl Shahun Rosen, individually and as Executrix of the Estate of Saul M. Rosen, deceased, Charles M. Rosenthal, individually and as Administrator of the Estate of Andrea Victoria Rosenthal, deceased, Eugene A. Saraceni, individually and as Administrator of the Estate of Elyse J. Saraceni, deceased, Franziska Schauble, individually and as personal Representative of the Estate of Johannes Otto Schauble, deceased, Ingrid Hoschle, individually and as personal Representative of the Estate of Johannes Otto Schauble, deceased, Petra Scholl, individually and as personal Representative of the Estate of Johannes Otto Schauble, deceased, James L. Schlageter, as Administrator of the Estate of Robert Thomas Schlageter, deceased, John J. Schultz, as Administrator of the Estate of Thomas Britton Schultz, deceased, Madeline B. Shapiro, as Administratrix of the Estate of Amy Elizabeth Shapiro, deceased, George L. Sheanshang, individually and as Administrator of the Estate of Joan Sheanshang, deceased, Catherine Sigal, individually and as Addministratrix of the Estate of Irving S. Sigal, deceased, Palmer N. Smith, individually and as Administrator of the Estate of James A. Smith, deceased, Roosevelt Smith, as personal Representative of the Estate of Mary E. Smith, deceased, Harvey V. Hall, as Successor Executor of the Estate of Mary E. Smith, deceased, Joan C. Smith, individually and as Co-Administrator of the Estate of Cynthia Joan Smith, deceased, Edward F. Smith, individually and as Co-Administrator of the Estate of Cynthia Joan Smith, deceased, Donald R. Stinnett, Temporary Administrator of the Estate of Michael Gary Stinnett, Donald R. Stinnett, individually and as Administratrix of the Estate of Anthony S. Swan, deceased, Michael Woolf Tager, individually and as Administrator of the Estate of Marc Tagerm deceased, Tadashi Tanaka, as Administrator of the Estate of Hidekazu Tanaka, deceased, Emi Tanaka, as Administrator of the Estate of Hidekazu Tanaka, deceased, Ivy Ng Trimmer-Smith Cobb, individually and as Administratrix of the Estate of David W. Trimmer-Smith, deceased, Vera Van Tienhoven, individually and as personal Representative of the Estate of Thomas F. Van Tienhoven, deceased, Shirin Alaghband Vejdany, individually and as Administratrix of the Estate of Asaad Vejdany, deceased, Michael Waido, individually and as Administrator of the Estate of Janine Waido, deceased, Barbara Matthews Weedon, individually and as Administratrix of the Estate of Kesha Weedon, deceased, Rosanne Weston, individually and as Executrix of the Estate of Jerome Lee Watson, deceased, George H. Williams, individually and as Co-Administrator of the Estate of George W. Williams, deceased, Helena R. Williams, individually and as Co-Administrator of the Estate of George W. Williams, deceased, James K. Wolfe, Individually and as personal Representative of the Estate of Miriam L. Wolfe, deceased, Rosemary Mild, individually and as personal Representative of the Estate of Miriam L. Wolfe, deceased, Everett Woods, individually, Ollie Woods, individually, Brenda Woods-Pruff, individually and as Administratrix of the Estate of Joe Nathan Woods, Sr., deceased, Brenda Woods-Pruff, individually and as Administratrix of the Estate of Joe Nathan Woods, Jr., deceased, Brenda Woods-Pruff, individually and as Administratrix of the Estate of Chelsea Woods, deceased, Elaine Catherine Wright, individually and as Administratrix of the Estate of Andrew Christopher Gillies-Wright, deceased, Veronica Pattie, Donald Moffat, McGlasson Thomas Moffat, Andrew Moffat, Doreen Young, Margaret Moffat, Paul G. Zwynenburg, as Administrator of the Estate of Mark J. Zwynenburg, deceased, Vera Young, Diane Apfelbaum, Individually and as Executor of the Estate of Martin Apfelbaum, deceased, John Boland, Individually and as Co-Administrator of the Estate of Stephen J. Boland, deceased, Jane Boland, Individually and as Co-Administrator of the Estate of Stephen J. Boland, deceased, Geraldine G. Buser, Individually and as Executrix of the Estate of Warren M. Buser, deceased, Geraldine G. Buser, Individually and as Administratrix of the Estate of Michael J. Buser, deceased, Leonard Colasanti, Individually and as Co-Administrators of the Estate of Gary Leonard Colasanti, Joanne Colasanti, Individually and as Co-Administrator of the Estate of Gary Leonard Colasanti, deceased, Margaret Hughston, Individually as surviving spouse and as Representative of the Estate of Willis Larry Coursey, deceased, Rosa Lee Coursey, Individually and as mother of Willis Larry Coursey, deceased, Rosie Lee Coursey, Executrix of the Estate of Willis Washington Coursey post-deceased father of Willis Larry Coursey, deceased, Eileen Carrier, as Executrix of the Estate of Daniel O'Connor, deceased, Judith Pappadopolos, individually and as Executirx of the Estate of Christopher Papadopolos, deceased, William H. Johnson, Individually and as Administrator Ad Prosequendum of the Estate of Timothy Baron Johnson, deceased, Plaintiffs-Appellees, v. SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, Libyan External Security Organization, also known as JSO, also known as Jamahiriya Security Organization, Libyan Arab Airlines, Defendants-Appellants, Lamen Khalifa Fhima, also known as Lamin, also known as A Al Amin Khalifa Fhima, Abdel Baset Ali Al-Megrahi, also known as Baset, also known as Abdel Baset Ali Mohmed Al, also known as Abdel Baset Ali Mohamen, Defendants, United State of America, Intervenor.

United States Court of Appeals, Second Circuit.

Decided December 15, 1998.


Attorney(s) appearing for the Case

James P. Kreindler, Kreindler & Kreindler, New York City (Lee S. Kreindler, Steven R. Pounian, Kreindler & Kreindler; Frank H. Granito, Jr., Frank H. Granito, III, Speiser, Krause, Madole, Nolan & Granito; Michel F. Baumeister, Baumeister & Samuels; Jerome L. Skinner, Waite, Scheindler, Bayless & Chesley Co., L.P.A.; Read K. McCaffrey, Patton Boggs L.L.P.; Douglas E. Rosenthal, Sonneschein Nath & Rosenthal, of counsel) (William S. Presti, Daniel O. Rose, David L. Fiol, Kreindler & Kreindler; Lisa A. MacVitte, Sonneschein Nath & Rosenthal, on the brief) for Plaintiffs-Appellees.

Bruno A. Ristau, Washington, DC; David B. Meltz, Atlanta, GA (Robert C. Mirone, David S. Shields, II, Mirone & Shields, New York City, of counsel) for Defendants-Appellants.

Douglas N. Letter, United States Department of Justice, Washington, DC, for Frank W. Hunger, Assistant Attorney General, and Zachary W. Carter, United States Attorney for the Eastern District of New York (Jonathan B. Schwartz, Linda Jacobson, Jack Chorowsky, Department of State, of counsel) for Intervenor.

Before: CALABRESI and STRAUB, Circuit Judges, and TSOUCALAS, Judge.


CALABRESI, Circuit Judge:

Defendants-appellants, collectively "Libya," appeal from the denial of their motion to dismiss. The plaintiffs, who are the survivors and representatives of persons killed aboard Pan Am 103 above Lockerbie, Scotland, brought suit against Libya alleging wrongful death, pain and suffering, and a variety of other injuries. Libya moved to dismiss for lack of subject matter jurisdiction, contending that 28 U.S.C. § 1605(a)(7), the provision...

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