Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kumar v. Republic of Sudan

United States Court of Appeals, Fourth Circuit

January 19, 2018

AVINESH KUMAR, Individually and as the Guardian of the Estate and Next Friend of C.K., a minor; JENNIFER CLODFELTER, Individually and as Next Friend of N.C., a minor; JOHN CLODFELTER; GLORIA CLODFELTER; JOSEPH CLODFELTER; SHARLA COSTELOW, Individually and as the Next Friend of E.C. and B.C., minors; GEORGE COSTELOW; DOROTHY COSTELOW; RONALD W. FRANCIS; SANDRA FRANCIS; DAVID FRANCIS; JAMES FRANCIS; SARAH GUANA ESQUIVEL; LOU GUNN; MONA GUNN; ANTON J. GUNN; JAMAL GUNN; JASON GUNN; NOVELLA WIGGINS; DIANE MCDANIELS, Individually and as Next Friend of J.M., a minor; FREDERICKA MCDANIELS-BESS; JESSE NIETO; JAMIE OWENS, Individually and as the Guardian of the Estate and Next Friend of I.M.O., a minor; KENYON EMBRY; TERESA SMITH; HUGH M. PALMER; LEROY PARLETT; ETTA PARLETT, Individually and as Next Friend of H.P., a minor; KERA PARLETT MILLER; MATTHEW PARLETT; KATE BROWN; SEAN WALSH; KEVIN ROY; OLIVIA RUX; ROGELIO SANTIAGO; SIMEONA SANTIAGO; JACQUELINE SAUNDERS, Individually and as the Guardian of the Estate and Next Friend for J.T.S., a minor; ISLEY GAYLE SAUNDERS; GARY SWENCHONIS, SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONIS-WOOD; LORIE D. TRIPLETT, Individually and as the Guardian of the Estate and Next Friend of A.T. and S.R.T., minors; SAVANNAH TRIPLETT; FREDDIE TRIPLETT; THEODIS TRIPLETT; KEVIN TRIPLETT; WAYNE TRIPLETT; THOMAS WIBBERLY; PATRICIA A. WIBBERLY; TONI WIBBERLY; TIMOTHY P. SCEVIOUR, as Personal Representative of the Estates of Kenneth Eugene Clodfelter, Richard Costelow, Lakeina Monique Francis, Timothy Lee Gauna, Cherone Louis Gunn, James Roderick McDaniels, Marc Ian Nieto, Ronald Scott Owens, Lakiba Nicole Palmer; TIMOTHY P. SCEVIOUR, as Personal Representative of the Estates of Joshua Langdon Parlett, Patrick Howard Roy, Kevin Shawn Rux, Ronchester Mananga Santiago, Timothy Lamont Saunders, Gary Graham Swenchonis, Jr., Andrew Triplett and Craig Bryan Wibberly, Plaintiffs-Appellees,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. and REED TRIPLETT, Plaintiff, and OLLESHA SMITH JEAN; JACK EARL SWENSON, Consolidated Plaintiffs, UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Kenneth Eugene Clodfelter; Jennifer Clodfelter, individually and as next friend of N.C., a minor; John Clodfelter; Gloria Clodfelter; Joseph Clodfelter, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Richard Costelow; Sharla Costelow, individually and as next friend of E. C. and B.C., minors; George Costelow; Dorothy Costelow, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Lakeina Monique Francis; Ronald W. Francis; Sandra Francis; David Francis; James Francis, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant, UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Timothy Lee Guana; Sarah Guana Esquivel, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Cherone Louis Gunn; Lou Gunn; Mona Gunn; Anton J. Gunn; Jason Gunn, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of James Roderick McDaniels; Novella Wiggins; Diane McDaniels, individually and as next friend of J.M. a minor; Fredericka McDaniels-Bess, Plaintiff - Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Marc Ian Nieto; Jesse Nieto, Plaintiff - Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Ronald Scott Owens; Jamie Owens, individually and as the guardian of the estate and next friend of I.M.O., a minor, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Lakiba Nicole Palmer; Avinesh Kumar, individually and as the guardian of the estate and next friend of C.K., a minor; Kenyon Embry; Teresa Smith; Hugh M. Palmer; Jack Earl Swenson; Ollesha Smith Jean, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Joshua Langdon Parlett; Leroy Parlett; Etta Parlett, individually and as next friend of H.P., a minor; Kera Parlett Miller; Matthew Parlett, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant, UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Patrick Howard Roy; Kate Brown; Sean Walsh; Kevin Roy, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Kevin Shawn Rux; Olivia Rux, Plaintiff - Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Ronchester Mananga Santiago; Rogelio Santiago; Simeona Santiago, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Timothy Lamont Saunders; Jacqueline Saunders, individually and as the guardian of estate and next friend of J.T.S., a minor; Isley Gayle Saunders, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Gary Graham Swenchonis, Jr.; Gary Swenchonis, Sr.; Deborah Swenchonis; Shalala Swenchonis-Wood, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Andrew Triplett; Lorie D.Triplett, individually and as the guardian of estate & next friend of A.T. & S.R.T., minors; Reed Triplett; Savannah Triplett; Freddie Triplett; Theodis Triplett; Kevin Triplett; Wayne Triplett, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. TIMOTHY P. SCEVIOUR, as personal representative of the estate of Craig Bryan Wibberly; Thomas Wibberly, Patricia A. Wibberly; Toni Wibberly, Plaintiff-Appellee,
v.
REPUBLIC OF SUDAN, Defendant-Appellant. UNITED STATES OF AMERICA, Amicus Supporting Appellant. AVINESH KUMAR, Individually and as the Guardian of the Estate and Next Friend of C.K., a minor; JENNIFER CLODFELTER, Individually and as Next Friend of N.C., a minor; JOHN CLODFELTER; GLORIA CLODFELTER; JOSEPH CLODFELTER; SHARLA COSTELOW, Individually and as the Next Friend of E.C. and B.C., minors; GEORGE COSTELOW; DOROTHY COSTELOW; RONALD W. FRANCIS; SANDRA FRANCIS; DAVID FRANCIS; JAMES FRANCIS; SARAH GUANA ESQUIVEL; LOU GUNN; MONA GUNN; ANTON J. GUNN; JAMAL GUNN; JASON GUNN; NOVELLA WIGGINS; DIANE MCDANIELS, Individually and as Next Friend of J.M., a minor; FREDERICKA MCDANIELS-BESS; JESSE NIETO; JAMIE OWENS, Individually and as the Guardian of the Estate and Next Friend of I.M.O., a minor; KENYON EMBRY; TERESA SMITH; HUGH M. PALMER; LEROY PARLETT; ETTA PARLETT, Individually and as Next Friend of H.P., a minor; KERA PARLETT MILLER; MATTHEW PARLETT; KATE BROWN; SEAN WALSH; KEVIN ROY; OLIVIA RUX; ROGELIO SANTIAGO; SIMEONA SANTIAGO; JACQUELINE SAUNDERS, Individually and as the Guardian of the Estate and Next Friend for J.T.S., a minor; ISLEY GAYLE SAUNDERS; GARY SWENCHONIS, SR.; DEBORAH SWENCHONIS; SHALALA SWENCHONIS-WOOD; LORIE D. TRIPLETT, Individually and as the Guardian of the Estate and Next Friend of A.T. and S.R.T., minors; SAVANNAH TRIPLETT; FREDDIE TRIPLETT; THEODIS TRIPLETT; KEVIN TRIPLETT; WAYNE TRIPLETT; THOMAS WIBBERLY; PATRICIA A. WIBBERLY; TONI WIBBERLY; TIMOTHY P. SCEVIOUR, as Personal Representative of the Estates of Kenneth Eugene Clodfelter, Richard Costelow, Lakeina Monique Francis, Timothy Lee Gauna, Cherone Louis Gunn, James Roderick McDaniels, Marc Ian Nieto, Ronald Scott Owens, Lakiba Nicole Palmer; TIMOTHY P. SCEVIOUR, as Personal Representative of the Estates of Joshua Langdon Parlett, Patrick Howard Roy, Kevin Shawn Rux, Ronchester Mananga Santiago, Timothy Lamont Saunders, Gary Graham Swenchonis, Jr., Andrew Triplett and Craig Bryan Wibberly, Plaintiffs-Appellants, and REED TRIPLETT, Plaintiff, and OLLESHA SMITH JEAN; JACK EARL SWENSON, Consolidated Plaintiffs,
v.
REPUBLIC OF SUDAN, Defendant-Appellee. UNITED STATES OF AMERICA, Amicus Supporting Appellee.

          Argued: October 24, 2017

         Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:10-cv-00171-RGD-TEM)

         ARGUED:

          Christopher M. Curran, WHITE & CASE, LLP, Washington, D.C., for Appellant/Cross-Appellee.

          Andrew C. Hall, HALL, LAMB, HALL & LETO, P.A., Miami, Florida, for Appellees/Cross-Appellants.

          Lewis Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America.

         ON BRIEF:

          Nicole Erb, Claire A. DeLelle, WHITE & CASE LLP, Washington, D.C., for Appellant/Cross-Appellant.

          Nelson M. Jones III, Houston, Texas; Kevin E. Martingayle, STALLINGS & BISCHOFF, P.C., Virginia Beach, Virginia; Roarke Maxwell, HALL, LAMB, HALL & LETO, P.A., Miami, Florida, for Appellees/Cross-Appellants.

          Chad A. Readler, Acting Assistant Attorney General, Sharon Swingle, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Richard C. Visek, Acting Legal Adviser, UNITED STATES DEPARTMENT OF STATE, Washington, D.C.; Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Amicus United States of America.

          Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

          AGEE, CIRCUIT JUDGE.

         For over a decade, family members of United States sailors killed in the bombing of the U.S.S. Cole have pursued litigation in federal court against the Republic of Sudan for its alleged support of Al Qaeda, which was responsible for the bombing. This appeal arises from the latest suit wherein the district court denied Sudan's motion to vacate the default judgments entered against it. Because the Appellees' method of serving process did not comport with the statutory requirements of 28 U.S.C. § 1608(a)(3), we hold the district court lacked personal jurisdiction over Sudan. Accordingly, we reverse the district court's order denying Sudan's motion to vacate, vacate the judgments, and remand with instructions.

         I.

         On October 12, 2000, Al Qaeda bombed the U.S.S. Cole, a United States Navy guided-missile destroyer, as it was refueling in the Port of Aden in Yemen. Seventeen American sailors were killed and forty-two more were injured.

         A.

         In 2004, family members of the deceased sailors filed a complaint against Sudan in the United States District Court for the Eastern District of Virginia ("the Rux litigation").[1] Although foreign states generally enjoy immunity from suit in federal courts, 28 U.S.C. § 1604, the Foreign Sovereign Immunity Act ("FSIA") authorizes suits against a foreign state that has provided material support for certain acts of terrorism ("the terrorism exception"). Under the version of the FSIA in effect in 2004, the terrorism exception gave federal courts jurisdiction over the foreign state, but any claims had to be grounded in another substantive area of the law. See 28 U.S.C. § 1605(a)(7) (repealed 2008). Accordingly, the Rux plaintiffs' substantive claims rested on violations of the Death on the High Seas Act. With limited exceptions, Sudan did not enter appearances or otherwise defend the Rux suit. Following a series of rulings and appeals that are not relevant to this appeal, the district court held that Sudan was liable and awarded compensatory damages to the plaintiffs. The Rux plaintiffs appealed the district court's denial of their claim for additional damages. During the pendency of that appeal, Congress passed the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), Pub. L. No. 110-181, § 1083(b)(1)(A)(iii), 122 Stat. 341.

         The NDAA, which became effective on January 28, 2008, repealed the prior FSIA terrorism exception to foreign state immunity, reenacted the exception's immunity-stripping language, and created a new substantive cause of action under the FSIA that authorizes recovery of noneconomic damages, including solatium and punitive damages. See NDAA, Pub. L. No. 110-181, § 1083 (codified at 28 U.S.C. § 1605A). The FSIA's new cause of action also specifically authorizes suit based on certain pre-enactment events so long as delineated criteria are satisfied. § 1605A(b). We granted the Rux plaintiffs' motion to remand for further proceedings in the district court in light of the revised statutory framework. Rux, 2009 WL 9057606 at *1.

         On remand, the Rux plaintiffs sought leave to supplement their complaint to include a claim for noneconomic damages under § 1605A(c). The district court denied the motion and the Rux plaintiffs again appealed. While that appeal was pending, the Rux plaintiffs and four new plaintiffs filed "a new, related action pursuant to 28 U.S.C. § 1605A in the [United States District Court for the] Eastern District of Virginia." Rux, 410 Fed.Appx. at 582. In relevant part, we held that the filing of this new complaint rendered moot the Rux plaintiffs' arguments and we dismissed that appeal. Rux, 510 Fed.Appx. at 586.

         B.

         The current appeal arises from the district court's adjudication of that "new, related action" brought under the amended FSIA.[2] Kumar filed the current complaint in April 2010, alleging that Sudan's conduct satisfied the immunity-stripping language of § 1605A(a)(1) and caused the death of the seventeen sailors killed on board the U.S.S. Cole, in violation of the FSIA's new cause of action, § 1605A(c). He sought solatium and punitive damages.

         In an effort to effectuate service of process pursuant to 28 U.S.C. § 1608(a)(3), the clerk of court sent the requisite documents "via certified mail, return receipt requested, " in an enveloped addressed as follows:

REPUBLIC OF SUDAN Serve: Deng Alor Koul, Minister of Foreign Affairs Embassy of the Republic of Sudan 2210 Massachusetts ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.