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Haftar Motion To Establish Damages September 2022
Haftar Motion To Establish Damages September 2022
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Page(s)
Cases
al-Suyid v. Hifter,
No. 1:20-cv-00170 .......................................................................................................... 1, 2, 6, 7
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
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
Jaramillo v. Naranjo,
2021 WL 4427455 (S.D.Fla. 2021) ......................................................................................... 3, 5
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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
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
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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.
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-
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
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
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
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.
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
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.
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
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:
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.
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
• 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.
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• 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.
• 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;
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
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For all the reasons discussed in the individual Complaints, the Report and
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.
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
III. Conclusion
Plaintiffs respectfully submit the above proposed compensatory and punitive damage
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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Respectfully Submitted,
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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.