Case 1:20-cv-01038-LMB-JFA Document 156 Filed 09/09/22 Page 1 of 13 PageID# 1198

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

AIDA ELZAGALLY, et al., )

)
Plaintiffs, )
)
v. ) Case No. 1:19-cv-00853 (LMB/JFA)
)
KHALIFA HIFTER, )
)
Defendant. )
)
)
MUNA AL-SUYID, et al., )
)
Plaintiffs, )
)
v. ) Case No. 1:20-cv-00170 (LMB/JFA)
)
KHALIFA HIFTER, )
)
Defendant. )
)
)
ALI ABDALLA HAMZA, et al., )
)
Plaintiffs, )
)
v. ) Case No. 1:20-cv-01038 (LMB/JFA)
)
KHALIFA HIFTER, )
)
Defendant. )
)

JOINT MOTION PROPOSING SCHEDULE AND

STRUCTURE FOR TRIAL TO ESTABLISH DAMAGES
Case 1:20-cv-01038-LMB-JFA Document 156 Filed 09/09/22 Page 2 of 13 PageID# 1199

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................... i

TABLE OF AUTHORITIES ........................................................................................................................ ii

I. Plaintiffs are entitled to compensatory and punitive damages.............................................................. 1

a. Muna al-Suyid, et al. v. Khalifa Hifter ............................................................................................. 2

b. Aida Elzagally, et al. v. Khalifa Hifter ............................................................................................. 2
c. Ali Abdalla Hamza, et al. v. Khalifa Hifter ...................................................................................... 3
d. There is established case law regarding appropriate compensatory and punitive damage awards in
TVPA cases. ...................................................................................................................................... 3
II. Proposed Structure to Establish Damages ............................................................................................ 7

III. Conclusion ............................................................................................................................................ 7

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TABLE OF AUTHORITIES
Page(s)

Cases

al-Suyid v. Hifter,
No. 1:20-cv-00170 .......................................................................................................... 1, 2, 6, 7

Bashe Abdi Yousuf v. Mohamed Ali Samantar,

2012 WL 373061 (E.D.Va. 2012) ............................................................................................... 5

BMW of North America Inc. v. Gore,

517 U.S. 559 (1996) .................................................................................................................... 5

Cabello v. Fernández Larios,

205 F.Supp.2d 1325 (S.D.Fla. 2002), aff’d, 402 F.3d 1148 (11th Cir. 2005) ............................. 6

Cabello v. Fernandez-Larios,
402 F.3d 1148 (11th Cir. 2005) ................................................................................................... 1

Cabello v. Fernandez-Larios,
No. 99-0528-CIV-LENARD (S.D. Fla. Oct. 14, 2003), aff'd, 402 F.3d 1148
(11th Cir. 2005) ........................................................................................................................... 5

Chiminya Tachiona v. Mugabe,

216 F. Supp. 2d 262 (S.D.N.Y. 2002) ..................................................................................... 4, 5

Doe v. Constant,
2006 U.S. Dist. LEXIS 101961 (S.D.N.Y. 2006) ....................................................................... 5

Doe v. Saravia,
348 F. Supp. 2d 1112 (E.D. Cal. 2004) ............................................................................... 4, 5, 7

Elzagally v. Hifter,
No. 1:19-cv-00853 ...................................................................................................................... 2

Filartiga v. Pena-Irala,
577 F. Supp. 860 (E.D.N.Y. 1984).............................................................................................. 4

In re Est. of Marcos Hum. Rts. Litig.,

910 F. Supp. 1460 (D. Haw. 1995) ............................................................................................. 3

Jane Doe I v. Karadzic,

2001 WL 986545 (S.D.N.Y. 2001) ............................................................................................. 6

Jaramillo v. Naranjo,
2021 WL 4427455 (S.D.Fla. 2021) ......................................................................................... 3, 5

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Licea v. Curacao Drydock Co.,

584 F. Supp. 2d 1355 (S.D. Fla. 2008)........................................................................................ 5

Mehinovic v. Vuckovic,
198 F. Supp. 2d 1322 (N.D. Ga. 2002) ....................................................................................... 6

Paul v. Avril,
901 F. Supp. 330 (S.D. Fla. 1994)............................................................................................... 6

Quiros de Rapaport, et al., v. Suarez-Mason,

No. C87-2266 JPV (N.D.Cal. April 11, 1989) ............................................................................ 6

Textile Workers Union of America v. Lincoln Mills of Alabama,

353 U.S. 448 (1957) .................................................................................................................... 3

Todd v. Panjaitan,
CIV.A. 92-12255-PBS, 1994 WL 827111 (D. Mass. 1994) ....................................................... 6

Xuncax v. Gramajo,
886 F. Supp. 162 (D.Mass. 1995) ........................................................................................... 3, 6
Statutes
28 U.S.C.A. § 1350 ..................................................................................................................... 1, 2

Torture Victim Protection Act ............................................................................................... passim

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On July 29, 2022, the Court entered a default judgment against Defendant Khalifa Hifter.

(al-Suyid v. Hifter, No. 1:20-cv-00170 (Dkt. 220)). The Court also requested that Plaintiffs in the

three pending actions submit a joint proposal regarding how the Plaintiffs propose to establish

damages. As explained below, Plaintiffs are entitled to compensatory and punitive damages.

Plaintiffs respectfully propose that this Court accept declarations by Plaintiffs in lieu of live

testimony, given that most of the Plaintiffs were deposed and the Defendant therefore had the

opportunity to cross examine them. Further support for the Plaintiffs’ proposed damage awards is

explained below, along with citations to damages awarded in other, analogous cases.

I. Plaintiffs are Entitled to Compensatory and Punitive Damages.

The Torture Victim Protection Act makes clear that an individual found to have committed

torture or extrajudicial killings “shall, in a civil action, be liable for damages.” TVPA § 2(a), 28

U.S.C.A. § 1350. This includes compensatory and punitive damages. Cabello v. Fernandez-

Larios, 402 F.3d 1148, 1151 (11th Cir. 2005).

Plaintiffs have standing to recover damages on their own behalf and on behalf of their

family member decedents. There can be no question that those Plaintiffs who suffered torture

can recover damages in their own name. Moreover, Muna al-Suyid, Ahmad al-Krshiny, Abdalla

al-Krshiny, Mahmud al-Krshiny and Ibrahim al-Krshiny, Aida Elzagally, Ayah Tunalli, Alaa

Tunalli, Abdulhameed Tunalli, Abdulrrauf Tunalli, Muhammad Tunalli, Abduladeem Tunalli,

Mais Ahmed Mayouf, Abdulhameed Al-Harramah, Ali Abdalla Hamza, Nehma Abdalla Al-Mahdi

Hamza, Abdelhalim Abdalla Mahdi Hamza and Salimah Jibreel can recover damages for the

extrajudicial killings of the decedents.

To obtain relief for extrajudicial killing pursuant to Torture Victim Protection Act

(TVPA), plaintiff must be (1) legal representative or any person who may be claimant in action

for wrongful death, (2) of victim of extrajudicial killing, (3) committed by an individual acting

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under actual or apparent authority, or color of law, of any foreign nation; plaintiff who satisfies

these elements possesses cause of action under TVPA. 28 U.S.C.A. § 1350.

a. Muna al-Suyid, et al. v. Khalifa Hifter

Muna al-Suyid has standing to bring her own claims as well as the claims of her father Abdel

Salam al-Suyid, and her brothers Ibrahim al-Suyid, Khalid al-Suyid, and Mustafa al-Suyid. Compl.

¶ 9. (al-Suyid, Dkt. 1 (filed Feb. 18, 2020)). Ibrahim al-Suyid has standing to bring his own claims

as well as the claims of his late brothers Ali and Mustafa. Compl. ¶ 10. Due to the volatility in

Libya, there is no operational judicial system that allows for the al-Suyid Plaintiffs to be appointed

legal representatives for their decedent family members. But all adult family members of the

decedents are party to this action and represent the estates. Further information can be provided to

or discussed with the Court as desired regarding the estates. As a result, the court can award

damages for the torts committed against every person and decedent listed in the Complaint.

b. Aida Elzagally, et al. v. Khalifa Hifter

Aida Elzagally has standing to bring her own claims as well as the claims of her late

husband Msaddek Tunalli. Am. Compl. ¶ 7 (Elzagally v. Hifter, No. 1:19-cv-00853, Dkt. 9) (filed

July 9, 2021)). Ayah Tunalli, Alaa Tunalli, Abdulhameed Tunalli, Abdulrrauf Tunalli, Muhammad

Tunalli, and Abduladeem Tunalli have standing to bring their own claims as well as the claims of

their father Msaddek Tunalli as his legal representatives. Id. at ¶¶ 8-13. Mais Ahmed Mayouf has

standing to bring her own claims as well as the claims of her late mother Mufida Sasi Abu Gasiah

as her legal representative. Id. at ¶ 14. Abdulhameed Al-Harramah has standing to bring his own

claims as well as the claims of his late son Ayman Al-Harramah as his legal representative. Id. at

¶ 15. Due to the volatility in Libya, there is no operational judicial system that allows for the

Elzagally Plaintiffs to be appointed legal representatives for their decedent family members. But

all adult family members of the decedents are party to this action and represent the estates. Further

information can be provided to or discussed with the Court as desired regarding the estates. As a

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result, the court can award damages for the torts committed against every person and decedent

listed in the Amended Complaint.

c. Ali Abdalla Hamza, et al. v. Khalifa Hifter

Ali Abdalla Hamza, Nehma Abdalla Al-Mahdi Hamza and Abdelhalim Abdalla Mahdi

Hamza have standing to bring their own claims and for decedents Aalya Faleh Al-Derbali, Ibrahim

Abdalla Hamza, Mahmoud (Naser) Abdalla Hamza, Fariha Abdalla Hamza and Faiza Abdalla

Hamza. Am. Compl. at ¶¶ 10-12 (filed Sept. 17, 2020) (Dkt. 8, Case No. 1:20-cv-01038). Salimah

Jibreel has standing to bring her own claims and for decedents Aziza Jibreel, Maryam Jibreel,

“Mohammad” Jibreel, and as the parent for Mayada Jibreel. Id. at ¶¶ 14-16. Due to the volatility

in Libya, there is no operational judicial system that allows for the Hamza and Jibreel Plaintiffs to

be appointed legal representatives for their decedent family members. But all adult family

members of the decedents are party to this action and represent the estates. Further information

can be provided to or discussed with the Court as desired regarding the estates. As a result, the

court can award damages for the torts committed against every person and decedent listed in the

amended complaint.

d. There is established case law regarding appropriate compensatory

and punitive damage awards in TVPA cases.
The language of the TVPA provides no methodology for determining an amount or type of

damages. Jaramillo v. Naranjo, 2021 WL 4427455 (S.D.Fla. 2021), citing Xuncax v. Gramajo,

886 F. Supp. 162, 198 (D.Mass. 1995) (“The TVPA does not itself provide any specific guidance

regarding the amount of recovery to which a successful litigant under the statute is entitled. Rather,

the TVPA leaves to the federal courts the task of determining the proper measure of liability.”).

But “federal courts are free to and should create federal common law to provide justice for any

injury contemplated by . . . the TVPA or treaties dealing with the protection of human rights.” In

re Est. of Marcos Hum. Rts. Litig., 910 F. Supp. 1460, 1469 (D. Haw. 1995), citing Textile Workers

Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 457 (1957) (“Some [problems] will

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lack express statutory sanction but will be solved by looking at the policy of the legislation and

fashioning a remedy that will effectuate that policy.”). Since federal common law allows for the

recovery of compensatory and punitive damages, courts frequently award both remedies for TVPA

violations. See Chiminya Tachiona v. Mugabe, 216 F. Supp. 2d 262, 267 (S.D.N.Y. 2002) (stating

that in “regards [to] the TVPA, the federal common law concerning damage awards allows for

both compensatory and punitive damages in the amounts requested by Plaintiffs.”).

Notwithstanding the difficulty in calculating a damages award, “[c]ourts typically consider

a number of factors in awarding damages under the . . . TVPA: (1) the brutality of the act; (2) the

egregiousness of the defendant's conduct; (3) the unavailability of a criminal remedy; (4)

international condemnation of the act; (5) deterrence of others from committing similar acts; and

(6) provision of redress to plaintiff, country, and world. Doe v. Saravia, 348 F. Supp. 2d 1112,

1158 (E.D. Cal. 2004). But as was appropriately noted in the Naranjo case:

It should be understood, however, that these factors are not

dispositive and that courts award damages based on the
circumstances of each case. The reason for this variance is due to
the difficulty in calculating a damage award in the first place. When
plaintiffs seek relief for TVPA violations, they ask courts to attach
a monetary amount to a violation of basic human rights. Yet, that is
no easy feat because the loss is almost always immeasurable.

2021 WL 4427455 *10.

Plaintiffs are also entitled to punitive damages. Unlike compensatory damages, punitive

damages are designed to punish and deter others from committing similar abuses. “To accomplish

that purpose,” courts “make clear the depth of the international revulsion against torture and

measure the award in accordance with the enormity of the offense.” Filartiga v. Pena-Irala, 577

F. Supp. 860, 866 (E.D.N.Y. 1984). The Supreme Court has provided guidance on how to

determine a reasonable punitive damages award, listing several factors for courts to consider.

These include reprehensibility, “the disparity between the harm or potential harm suffered,” and

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the “difference between this remedy and the civil penalties imposed in comparable cases.” BMW

of North America Inc. v. Gore, 517 U.S. 559, 575 (1996) (citations omitted).

However, “the most important indicium of the reasonableness of a punitive damages award

is the degree of reprehensibility of the defendant's conduct.” Id. Plaintiffs will demonstrate they

are entitled to punitive damages because the crimes committed were malicious, wanton and

reckless. See Cabello v. Fernandez-Larios, No. 99-0528-CIV-LENARD (S.D. Fla. Oct. 14, 2003),

aff'd, 402 F.3d 1148 (11th Cir. 2005) (“You may award punitive damages to the plaintiffs if they

have proven that the defendant’s conduct was wanton and reckless”).

Based on an analysis of prior TVPA awards and the factors underlying the Defendant’s

ongoing conduct, the Plaintiffs will be seeking for this Court to award compensatory damages in

the amount of $10 million for each decedent-estate and $5 million for each individual survivor.

Additionally, an equal amount of will be sought for punitive damages.

For the Court’s guidance, the following is a list of federal courts in chronological order

(most recent first) that have awarded significant compensatory and punitive damages for torture

and extrajudicial killings under the TVPA:

• Jaramillo v. Naranjo, 2021 WL 4427455 (S.D.Fla. 2021). Awarded $2 million

in compensatory damages, $4 million in punitive damages.

• Bashe Abdi Yousuf v. Mohamed Ali Samantar,; 2012 WL 373061 (E.D.Va.

2012)(LMB). Awarded $1 million in compensatory damages and $2 million in
punitive damages for three individual plaintiffs and four represented estates.

• Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1358 (S.D. Fla. 2008).
Awarded over $20 million to each plaintiff in damages.

• Doe v. Constant, 2006 U.S. Dist. LEXIS 101961 (S.D.N.Y. 2006). Awarded $1
million and $1.5 million in compensatory damages to separate plaintiffs, and $5
million in punitive damages.

• Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004), Awarded damages of $5
million compensatory and $5 million punitive damages.

• Chiminya Tachiona v. Mugabe, 216 F. Supp. 2d 262 (S.D.N.Y. 2002).

Awarded $2.5 million in compensatory damages and $5 million in punitive

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damages for murdered victims and awarded $1 million in compensatory and

$5 million in punitive damages for those who were tortured.

• Cabello v. Fernández Larios, 205 F.Supp.2d 1325 (S.D.Fla. 2002), aff’d, 402 F.3d
at 1151. Awarded $3 million in compensatory damages and $1 million in punitive
damages.

• Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002). Awarded $10 million
in compensatory damages and $25 million in punitive damages.

• Jane Doe I v. Karadzic, 2001 WL 986545 (S.D.N.Y. 2001). Awarded

approximately $4.5 billion in compensatory and punitive damages.

• Xuncax v. Gramajo, 886 F. Supp. 162, 198 (D.Mass. 1995). Awarded $2 million in
compensatory damages and $5,000,000 in punitive damages for victims of summary
execution and for torture victims awarded $1 million in compensatory damages and
$2 million in punitive damages.

• Paul v. Avril, 901 F. Supp. 330, 335 (S.D. Fla. 1994). Six victims of torture and
arbitrary detention each awarded between $2.5 million and $3.5 million in
compensatory damages and $4 million in punitive damages;

• Todd v. Panjaitan, CIV.A. 92-12255-PBS, 1994 WL 827111 (D. Mass. 1994).

Victim’s estate received $2 million dollars in compensatory damages, plus interest,
and surviving plaintiff $2 million dollars, plus interest, and an award of $10 million
in punitive damages.

• Quiros de Rapaport, et al., v. Suarez-Mason, No. C87-2266 JPV (N.D.Cal. April

11, 1989). Awarded $10 million in compensatory damages and $10 million in
punitive damages to victims’ widows and $5 million in compensatory damages and
$5 million in punitive damages to victims’ mother and sister.

Finally, it is worthy to note that in the al-Suyid case, Magistrate Judge Anderson previously

found (relying in part on some of the cases cited above) that a total of $80 million in damages for

the al-Suyid Plaintiffs was a reasonable determination based on relevant precedent. (al-Suyid, Case

No. 1:20-cv-00170, Dkt. 31 (Mag. J. Report and Recommendations (June 17, 2020)). Based on his

analysis of prior awards, Magistrate Judge Anderson specifically recommended the entry of a

default judgment against Defendant in the amount of $10 million for the estates of each decedent

plaintiff and $5 million for each surviving plaintiff. Id. at 21-22.

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For all the reasons discussed in the individual Complaints, the Report and

Recommendations issued by Magistrate Judge Anderson (Al-Suyid, Case No. 1:20-cv-00170,

Dkt. 31), the previous pleadings in each of the three consolidated cases, and application of the

Saravia factors, the Plaintiffs submit that they are entitled to an award of substantial damages.

Therefore, they will be respectfully requesting that the Court award $10 million for each decedent

and $5 million for each survivor, plus punitive damages in an equal amount for each Plaintiff.

II. Proposed Structure to Establish Damages

Plaintiffs submit that the foregoing provides a sufficient basis for the Court to determine

and award damages. A majority of the Plaintiffs were deposed by Defendant’s counsel during

discovery and they had the opportunity to cross examine those Plaintiffs on the record. 1 Plaintiffs

therefore propose submitting the deposition transcripts (with highlighted portions to direct the

Court to specific evidence and information) and video files where possible in lieu of live victim

testimony, along with supplemental sworn declarations by each Plaintiff if requested by the Court.

For any Plaintiffs who were not deposed (or were not questioned about the incidents that occurred

and the harm that was suffered during the deposition) during discovery, if requested by the Court,

it is proposed that they submit sworn declarations describing the incidents that occurred and the

harm that was suffered.

III. Conclusion

Plaintiffs respectfully submit the above proposed compensatory and punitive damage

damages awards and forthcoming procedures for the Court’s consideration.

1
For the al-Suyid Plaintiffs, each Plaintiff was deposed and Ibrahim al-Krshiny’s re-deposition was ordered
but did not take place. Among the Elzagally Plaintiffs, Aida Elzagally, Mais Ahmed Mayouf, Abdulhameed Al-
Harramah, Abdulhameed Tunalli, and Abdulrrauf Tunalli were deposed. Aida Elzagally’s deposition was cut
short briefly after it began and her re-deposition was ordered but did not take place. Of the four Hamza Plaintiffs,
only one was not deposed.

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Dated: September 9, 2022

Respectfully Submitted,

/s/ Thomas M. Craig

Thomas M. Craig, (VSB #58063)
Jessica D. Rabinowitz (pro hac vice)
FH+H
1751 Pinnacle Drive, Suite 1000
Tysons, Virginia 22102
T: (703) 590-1234
F: (703) 590-0366 fax
[email protected]
[email protected]

Mark S. Zaid (pro hac vice)

Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 700
Washington, D.C. 20036
T: (202) 498-0011
F: (202) 330-5610 fax
[email protected]

Matthew Jury (pro hac vice)

84 Brook Street
London W1K 5EH
UNITED KINGDOM
T: +44 (0) 20 7096-3767
[email protected]

Attorneys for Hamza Plaintiffs

Filed jointly with:

/s/ Sarah E. York

Sarah E. York (VSB #91188)
Joseph G. Grasso (pro hac vice)
Wiggin and Dana LLP
800 17th Street, NW, Suite 520
Washington, DC 20006
[email protected]
[email protected]
T: 202-800-2482
F: 212-551-2888

Attorneys for al-Suyid Plaintiffs

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/s/ Faisal Gill

Faisal Gill (VSB #93255)
Gill Law Firm
1717 Pennsylvania Avenue, N.W.
Suite 1060
[email protected]

Attorney for Elzagally Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on September 9, 2022, I filed Plaintiffs’ Joint Motion Proposing

Schedule and Structure of Trial to Establish Damages with the Clerk of Court using the CM/ECF

system, which will then send notification of such filing (NEF) to all counsel of record.

/s/ Thomas M. Craig

Thomas M. Craig, Esq.

Counsel for Hamza Plaintiffs