In addition, as Plaintiffs’ causes of action do not arise under substantive federal law, the defense of laches is governed by California law. 28 U.S.C. § 1606. TBC does not argue that either Swiss or Spanish law recognizes the doctrine of laches.

ded in connection with the Case 1:13-cv-04501-PAC Document 28 Filed 11/22/13 Page 13 of 16 10 PUB’s investigation and regulatory review of Hydro’s risk management strategies and therefore cannot be characterized as “commercial” in nature because: (i) Plaintiff’s employment is governmental in nature where its consultancy was directed in furtherance of the PUB’s regulatory duties; and (ii) the activities performed by Plaintiff are clearly intertwined with the PUB’s government function of assessing Hydro’s risk management. Hijazi, 689 F. Supp. 2d at 673-74; see also Kato v. Ishihara, 360 F.3d 106, 112 (2d Cir. 2004) (rejecting plaintiff’s argument that her employment was by nature “commercial” where employment activities were rendered on behalf of a foreign state acting in its governmental capacity). B. Plaintiff’s Demands for Punitive Damages and a Jury Trial Must Be Stricken As a foreign sovereign (Compl. ¶ 25), the PUB “shall not be liable for punitive damages,” 28 U.S.C. § 1606, and cannot be subject to trial by jury, 28 U.S.C. § 1330(a). Hijazi, 689 F. Supp. 2d at 671. II. COUNTS XIII, XIV AND XV ARE BARRED BY COLLATERAL ESTOPPEL Claims against the PUB predicated on the PUB’s alleged improper publication of Plaintiff’s confidential information (i.e., Counts XIII, XIV, XV) are barred by collateral estoppel, which prohibits re-litigation of issues actually litigated and necessarily determined in a prior proceeding.

The statutory language of the FSIA compels the usage of the same choice-of-law provisions as would be used in litigation against a private party, rather than a foreign state. 28 U.S.C. § 1606. The District of Columbia, the forum state here, utilizes choice- of-law principles that analyze the “‘governmental interests’, under which [the court] evaluate[s] the governmental policies underlying the applicable laws and determine[s] which jurisdiction's policy would be more advanced by the application of its law to the facts of the case under review.”

See Baker I Opinion at 11-13. The operation of 28 U.S.C. § 1606, the “pass-through” provision, therefore reduces the formerly-immune Libyan Defendants to the status of a non-immune private individual before the Court. A private individual would be liable for property damage caused as a result of his intentional acts. Having engaged in non-immune conduct, namely the provision of material support that caused the hijacking and the destruction of the aircraft, the Libyan Defendants are now unable to assert immunity from the foreseeable claims of those injured as a result of the same conduct that already created an exception to immunity.

The unambiguous language of § 1606 and case law support this position. See e.g., Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983) (a foreign state excepted from immunity under 28 U.S.C. § 1605 or 1607 is liable in the same manner and to the same extent as a private individual under like circumstances) (citing 28 U.S.C. § 1606)); Acree v. Republic of Iraq, 271 F. Supp.2d 179, 215 (D.D.C. 2003) (“[s]uits brought under § 1605(a)(7) may be based on conventional common law torts”) (citing cases)). The common law claims of wrongful death, survival action, economic damages, intentional infliction of emotional distress, loss of consortium, and solatium are conventional common law torts and do not arise from the Flatow Amendment.

6 IV. 28 U.S.C. § 1606 DOES NOT CREATE NEW CAUSES OF ACTION Patel’s introduction also commences with the erroneous, and now uniformly rejected, proposition that the Court, by virtue of 28 U.S.C. § 1606, “one need determine only whether a cause of action would be available against a private individual in like circumstances. If it would, then the foreign state ‘shall be liable; in the same manner and the same extent.”

............................7, 27 Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703 (1992) .......................................................33 FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS 18 U.S.C. § 1946(c) .................................................................................................................13, 34 28 U.S.C. § 1603(a)-(b) .................................................................................................................15 28 U.S.C. § 1603(b) .........................................................................................................................4 28 U.S.C. § 1605(a)(1) ...................................................................................................................21 28 U.S.C. § 1605(a)(2) ...................................................................................................................17 Case 1:09-cv-10183-RWZ Document 35 Filed 06/08/11 Page 6 of 52 iv 28 U.S.C. § 1606 ......................................................................................................................37, 38 28 U.S.C. § 1608(b) ...................................................................................................5, 6, 23, 24, 25 Fed. R. Civ. P. 4(e) ........................................................................................................................24 Fed. R. Civ. P. 44.1 ........................................................................................................................28 Fed. R. Civ. P. 55(c) ......................................................................................................................13 Fed. R. Civ. P. 60(b) ..................................................................................................1, 2, 13, 14, 33 Fed. R. Civ. P. 65(d) ......................................................................................................2, 38, 39, 40 Fifth Amendment, U.S. Con

The court noted that the FTCA’s limitations period is a “substantive part of the United States’ Case 1:06-cv-00732-RWR Document 55 Filed 05/28/2008 Page 8 of 28 8 waiver of immunity” and other courts have described the FTCA’s limitations period as “jurisdictional” in that the “requirement prescribed by a statute granting the right to sue the United States or a state is construed as a condition or qualification of the right; such a provision is in other words jurisdictional rather than a mere statute of limitations.” 398 F. Supp. 2d at 143 (internal quotation and citation omitted). The court further held that: [W]hile Congress may choose to waive a foreign state’s immunity and allow causes of action to be brought against it ‘in the same manner and to the same extent as a private individual under like circumstances,’ 28 U.S.C. § 1606, it is not therefore stripped of its authority to require its own statute of limitations to apply in cases against foreign states as a condition of that waiver. Congress, which alone has the right to determine when courts may exert jurisdiction over foreign states, must necessarily have the power to determine when such actions must be commenced. Id. (emphasis added).

See 28 U.S.C. §1606 (protecting a foreign state from punitive damages); Cicippio-Puleo v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C. 1998) (awarding only compensatory damages); compare Rafii v. Islamic Republic of Iran, Civ. No. 01-850(CKK), at 23-29 (D.D.C. Dec. 2, 2002) (awarding punitive damages against MOIS) with Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (denying punitive damages against MOIS considering it the foreign state itself). Case 1:06-cv-00745-RCL Document 22 Filed 02/29/2008

The Foreign Sovereign Immunities Act (“FSIA”) contains provisions on a wide variety of issues pertaining to foreign sovereign immunity and very few involve jurisdiction: subject matter jurisdiction, 28 U.S.C. § 1605(a), attachment and execution, 28 U.S.C. § 1609-11, extent of liability, 28 U.S.C. § 1606, default and service of process, 28 U.S.C. § 1608, and statute of limitations, 28 U.S.C. § 1605(f). A statute of limitations defense is an affirmative defense in civil litigation, Fed. R. Civ. P. 8(c), including cases brought under the FSIA. E.g., Morris v. People's Republic of China, 478 F. Supp. 2d 561, 566 (S.D.N.Y. 2007) (“Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss[, which] is properly treated as a Rule 12(b)(6) Case 1:06-cv-00732-RWR Document 27 Filed 10/30/2007 Page 1 of 2 2 motion to dismiss.”)