No Easy Answers

Wednesday, June 18, 2008

Blackwater seeks Sharia Law - McMahon v. Presidential [Doc 145]

                         IN THE UNITED STATES DISTRICT COURT
                          FOR THE MIDDLE DISTRICT OF FLORIDA

JEANETTE McMAHON, as Personal                CASE NO: 6:05CV1002-ORL-28JGG
Representative of the Estate of Michael
McMahon, TRACY GROGAN, as Personal
Representative of the Estate of Travis
Grogan, and SARAH MILLER, as Personal
Representative of the Estate of Harley Miller,



SERVICES, LLC, a Florida limited liability
Company, STI AVIATION, INC., a Florida
Corporation, AIR QUEST, INC., a Florida


                     DEFENDANTS' 12(b)(6) MOTION TO DISMISS

         Even as Defendants Presidential Airways, Inc., Aviation Worldwide Services

LLC, STI Aviation, Inc., and Air Quest, Inc. (collectively "Presidential"), prepare to

pursue the Political Question Doctrine roadmap provided by the 11th Circuit for

dismissing this matter on constitutional grounds,1 Presidential submits this Motion to

  See, e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1365 & n. 36 (11th Circ. 2007) ("We
expressly do not (and could not) hold that this litigation will not at some point present a political question.
The existence of a political question deprives a court of jurisdiction. As a result, Presidential remains free
to assert the argument at any time, and the district court has an independent obligation to make sure that the
disposition of the case will not require it to decide a political question. . . . We emphasize that our decision
is based only on the record considered by the district court: the complaint, the contract, and the SOW.
Presidential remains free to argue that other evidence justifies dismissal on political question grounds."
(internal citation omitted)); see also id. at 1351 ("[P]rivate contractor agents may be entitled to some form
of immunity that protects their making or executing sensitive military judgments, and that overlaps and
possibly extends beyond the protection provided by the political question doctrine.").

Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and the doctrine that "federal courts should

avoid reaching constitutional questions if there are other grounds upon which a case can

be decided." BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176

(11th Cir. Fla. 2001). This approach is consistent with "the prudential concern that

constitutional issues not be needlessly confronted,"2 as well as the interest of "saving the

parties as well as the court time and expense."3

         Presidential therefore hereby moves for dismissal of the Plaintiffs' Amended

Complaint on the non-constitutional grounds that even assuming the accuracy of all facts

alleged in the Amended Complaint, Plaintiffs have failed to state a cause of action under

applicable law. Specifically, Plaintiffs' Amended Complaint is governed by the law of

Afghanistan, which does not recognize causes of action based on respondeat superior

and indirect liability. Accordingly, the Amended Complaint does not state a viable claim

upon which relief may be granted as to the named corporate Defendants.

                                  I.    BACKGROUND FACTS

         Defendant Presidential Airways, Inc. entered into a contract with the United

States military under which Presidential provided airlift support to the Department of

Defense in Afghanistan. (Amended Compl. at � 13.) 4

         On November 27, 2004, a Presidential aircraft engaged in Operation Enduring

Freedom was providing air cargo services and carrying three members of the United

States military from Bagram, Afghanistan to Farah, Afghanistan. (Amended Compl. at �

  Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S.
568, 575 (1988); United States v. Valenti, 999 F.2d 1425, n 1 (11th Cir. 1993) (acknowledging "time
honored principle that courts should avoid rendering sweeping constitutional decisions when a more narrow
path is available").
  Brown v. Crawford County, Ga., 960 F.2d 1002, 1010 (11th Cir. 1992) (internal quotes and cites omitted).
  All factual allegations are from the Plaintiffs' Amended Complaint and, solely for purpose of this motion,
are deemed accurate. Incidentally, Presidential still provides airlift support to the United States Armed
Forces in Afghanistan.


17.) The military passengers were Michael McMahon, Travis Grogan, and Harley Miller.

(Amended Compl. at � 26.) The aircraft crashed en route to Farah, Afghanistan

(Amended Compl. at � 17.), resulting in the deaths of the three active duty servicemen

and the three members of the Presidential flight crew on the mission. (Amended Compl.

at � 30.)

        The Plaintiffs assert that the immediate causes of the crash were the flight crew's

negligence in failing to wear available oxygen masks, failing to properly plan and execute

the flight, failing to maintain sufficient air speed and altitude above terrain, failing to

maintain adequate terrain clearance appropriate for the route of flight, failing to prevent a

stall, and failing to comply with what Plaintiffs claim are applicable Federal Aviation

Regulations. (Amended Compl. at �� 33h, i, k, l, r and s). Through the doctrine of

respondeat superior, the Plaintiffs claim that Presidential is vicariously liable for the

alleged in-flight negligence of the crew in Afghanistan. (Amended Compl. at � 25.)

        The Plaintiffs also allege that Presidential is indirectly liable for the actions of

Presidential's flight operations personnel in Afghanistan, who allegedly failed to use

reasonable care in entrusting the aircraft to the flight crew, failed to properly conduct and

supervise route planning and flight planning activities, failed to adequately brief the flight

crew, failed to provide the flight crew with adequate equipment, and failed to have in

place procedures for locating the flight. (Amended Compl. at �� 33 a-g, j, m-q, and t.)

                                    II.    ARGUMENT

        A.      Legal Standard

        A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of a

complaint and is designed to eliminate counts or complaints that fail to state a claim upon


which relief can be granted. Palmer v. Santa Rosa County, 2005 U.S. Dist. LEXIS 34314

(D. Fla. 2005). Dismissal for failure to state a claim is appropriate if the plaintiff fails to

plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic

Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). A plaintiff's obligation to set forth the

grounds for its entitlement to relief "requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action." Id. at 1964-65. "Factual

allegations must be enough to raise a right to relief above the speculative level." Id. at

1965; Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).

        When ruling on a motion to dismiss, the court is not required to accept as true the

plaintiff's conclusions of law. See Solis-Ramirez v. United States Dept. of Justice, 758

F.2d 1425, 1429 (11th Cir. 1985). Neither should a court accept a plaintiff's "conclusory

allegations, unwarranted factual deductions or legal conclusions masquerading as facts"

to avoid dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

        Dismissal must be granted if, even assuming the factual allegations of the

plaintiff's complaint are true, there is a dispositive legal issue which precludes relief.

Brown v. Crawford County, Ga., 960 F.2d 1002, 1010 (11th Cir. 1992) ("Federal Rule of

Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint on the basis of a

dispositive issue of law." (internal quotes and citations omitted)).

        B.      Plaintiffs' Amended Complaint, Based on Claims of Presidential's
                Indirect Liability for Alleged Negligent Conduct in Afghanistan is
                Governed by the Law of Afghanistan

        On August 11, 2006, this Court recognized the threshold nature of the choice of

law issue when it asked, "why we would be looking to Florida Law." Hearing on

Motion to Dismiss August 11, 2006, p.3. In fact, as explained below, the Court should


apply the law of Afghanistan to the Plaintiffs' claims of respondeat superior and indirect

liability against Presidential, and based upon this "dispositive issue of law" the Court

should dispose of this entire matter forthwith "[i]n the interest of judicial economy."

Brown v. Crawford County, 960 F.2d at 1010 ("By prolonging this case, the district court

failed to serve the purported goals of its local `procedure' of saving the parties as well as

the court time and expenses. This case should not have been prepared for trial; moreover,

it should not have undergone discovery.").

       As a starting point for this analysis, a federal court exercising federal question

jurisdiction must apply the federal conflict of laws rule, which follows the "significant

relationships test" as set forth in the Restatement (Second) of Conflict of Laws. Cortes v.

American Airlines, Inc., 177 F.3d 1272, 1296 n.19 (11th Cir. 1999).

       Section 175 of the Restatement (Second) of Conflict of Laws provides that, "[i]n

an action for wrongful death, the local law of the state where the injury occurred

determines the rights and liabilities of the parties unless, with respect to the particular

issue, some other state has a more significant relationship under the principles stated in �

6 to the occurrence and the parties, in which event the local law of the other state will be

applied." Restat 2d of Conflict of Laws, � 175.

       The Restatement's � 145 provides that the following four "contacts," and the

significance of their relationships to the issues, may be weighed and considered:

               (1)     the place where the injury occurred;

               (2)     the place where the conduct causing the injury occurred;

               (3)     the domicil, residence, nationality, place of incorporation
                       and place of business of the parties, and


               (4)      the place where the relationship, if any, between the parties
                     is centered.

See also Cymrot v. Smith Barney, Harris Upham & Co, Inc., 1994 U.S. Dix.

LEXIS 20134, *49 (S.D. Fla. 1994).

       Once the contacts are identified, Section 6 of the Restatement (Second) of

Conflict of Laws provides guidance for further analysis as follows:

           (1) A court, subject to constitutional restrictions, will follow a
               statutory directive of its own state on choice of law.

           (2) When there is no such directive, the factors relevant to the
               choice of the applicable rule of law include:

               (a)      the needs of the interstate and international systems;
               (b)      the relevant policies of the forum;
               (c)      the relevant policies of the other interested states
                        and the relative interests of those states in the
                        determination of the particular issue;
               (d)      the protection of justified expectations;
               (e)      the basic policies underlying the particular field of
               (f)      certainty, predictability and uniformity of result;
               (g)      ease in the determination and application of the law
                        to be applied.

       Importantly, "[t]he doctrine of depecage may call for application of different

bodies of law to different issues in the litigation." In re Air Crash Near Cali, Colombia,

1997 U.S. Dist. LEXIS 14143 (S.D. Fla. 1997). See Restatement (Second) � 145

comment d. ("Each issue is to receive separate consideration if it is one which would be

resolved differently under the local rule of two or more of the potentially interested

states.") See also Emmart v. Piper Aircraft, 659 F. Supp. 843 (S.D. Fla. 1987) (analyzing

separate state interests for compensatory and punitive damages).


       Based on the foregoing, in the Eleventh Circuit, the conflict-of-laws analysis is

issue-based and focuses primarily on factors (b) and (c) of � 6 of the Restatement

(Second) of Conflict of Laws which looks to the relevant policies underlying the

competing laws. Judge v. American Motors Corp., 908 F.2d 1565, 1570 (11th Cir. 1990).

("As a general proposition, it is fitting that the state whose policy interests are most

deeply affected should have its local law applied.").

       In the instant wrongful death case, the dispositive issue concerns the application

of the doctrines of respondeat superior and indirect liability. The jurisdictions with

policy interests implicated by these liability issues are readily identifiable.   Primarily,

however, the policy interests of Afghanistan must be considered as it is undisputed that it

is the place where the injuries occurred. Further, the alleged negligent conduct, from the

planning and scheduling of the accident mission to the alleged operational errors, took

place in Afghanistan. Accordingly, Afghanistan's law must be given preference pursuant

to the wrongful death rule of Section 175 of the Restatement (Second) of Conflict of

Laws. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1004 (9th Cir. 1987)

(Applying Polish law, the Court held that "the comments to the Restatement recognize

that applying the law of the state where the injury occurred 'furthers the choice-of-law

values of certainty, predictability and uniformity of result and, since the state where the

injury occurred will usually be readily ascertainable, of ease in the determination and

application of the applicable law.' Restatement � 175 comment d.").

       In aviation accidents, the place of actual injury may be disregarded by courts on

the assumption that the accident site is wholly "fortuitous and unimportant." See

Saloomey v. Jeppesen & Co., 707 F.2d 671, 675 (2nd Cir. 1983). However, where a crash


occurs in the area of an aircraft's intended destination, it cannot be said to have occurred

in an entirely fortuitous location. In re Air Crash Near Cali, 1997, U.S. Dist. LEXIS

14143, *16. In Wert v. McDonnell Douglas Corp., 634 F. Supp. 401 (D. Mo. 1986) the

Court rejected the argument that the location of a military aircraft crash was fortuitous in

light of the fact that the accident happened in Arizona, where the pilot was conducting

training runs. Id. at 404.

         Like the accident in Wert, the accident location herein was not fortuitous. The

mission originated in Bagram Airfield, Afghanistan and was en route to Farah,

Afghanistan. There was no place other than Afghanistan where this accident could have

occurred. Afghanistan therefore maintains its significant interest as the place where the

injury occurred and as the location of the relevant conduct.5 In fact, no place or entity,

other than the U.S. military, has a more significant relationship to the occurrence and the

parties than Afghanistan.

         Plaintiffs may ask this Court to recognize the interests of other jurisdictions.

Under the Restatement analysis, the only other "contacts" that may be considered are the

place where the relationship between the parties is centered and the place where the

parties are domiciled. The first of these two considerations mandates Afghanistan, as it is

the only jurisdiction where a relationship between the decedents and Presidential existed.

The Plaintiffs' Amended Complaint only references contacts between the decedents and

           The Plaintiffs may argue that negligent conduct occurred in Florida, where the corporate
Defendants were initially domiciled. However, in their Amended Complaint, the Plaintiffs specifically
allege that the accident flight crew in Afghanistan negligently caused the crash by failing to wear oxygen
masks, failing to properly execute the flight, failing to maintain sufficient air speed and altitude, and failing
to maintain adequate terrain clearance. Moreover, to the extent Plaintiffs alleged negligence relating to
Presidential's operations, those claims are also centered in Afghanistan. Presidential maintained an
operations center at Bagram for the purpose of overseeing flights and flight crews, from mission briefings
to assignments, aircraft loadings, departures and completion. Of the numerous allegations of wrongful
conduct alleged by the Plaintiffs, very few, if any, actions occurred outside of Afghanistan.


Presidential in Afghanistan. Clearly, the plaintiffs' decedents accepted services provided

by Presidential in Afghanistan and boarded the flight in Afghanistan, pursuant to a

military mission. Courts have routinely identified centers of relationships based on fewer

contacts. See Leiske v. United States, 2001 U.S. Dist. LEXIS 2390 (D. Ill. 2001) (holding

that passengers who boarded a plane in Wisconsin for an interstate flight established a

relationship with the carrier in Wisconsin).

        Generally, courts find that the relationship between a passenger and an aircraft

operator is centered either in the flight's point of departure or point of return. Bryant v.

Silverman, 146 Ariz. 41, 703 P.2d 1190, 1195 (1985); Rest. (Second) Conflict of Laws �

145, comment e. See also In re Air Crash Disaster at Washington, 559 F. Supp. 333,

355 (D.D.C. 1983) (the center of the parties' relationship was found to be either at the

origin or destination of the flight). In this case, the origin and destination of the flight

were in Afghanistan, which is therefore the geographical center of the parties'


        A review of the various domiciles of the parties and decedents establishes that

there is no one domicile state with a more significant interest in the liability issues herein

than Afghanistan. (See this Court's Order denying Plaintiffs' motion for remand [Dkt.

No. 66] at p. 6, wherein the Court notes that "the parties in the instant case apparently are

completely diverse.") Decedent Michael McMahon and his surviving family maintained

their permanent residence in Connecticut. Decedent Travis Grogan and his surviving

family resided in Virginia. Decedent Harley Miller and his surviving family lived in

Washington. There is no basis to assert that any of these states would have an interest in


determining the liability, or regulating the conduct, of non-resident companies outside

each of these state's borders.6

         Florida, as the forum state and the state of incorporation for each of the corporate

Defendants may have some interest in the liability issues. However, the Defendants are

no longer domiciled in the State of Florida, as they have moved their corporate offices

and operations to North Carolina and, as a result, the Defendants would not justifiably

expect protection from Florida laws. See U.S. Department of Transportation, Federal

Aviation Administration, Airline Certificate Database,

(Certificate Number P4YA652I issued to Presidential Airways, Inc.). Florida's interest

as the incorporating state is minimal when there is little if any in-state conduct to be

controlled, protected, or deterred. See Schneider National Transport v. Alexander and

Alexander of New York, Inc., 280 F.3d 532, 536 (5th Cir. 2002) ("The mere fact of

appellant's incorporation in Pennsylvania does not lead this Court to believe that that state

has the most significant relationship to the substantive issues to be resolved here."). See

also NL Industries, Inc. v. Commercial Union Insurance Company, 154 F.3d 155, 159

(3rd Cir. 1998) (rejecting application of New Jersey law where "New Jersey's only

connection with this litigation is that NL was incorporated and had some operations


         In contrast, the relevant policy interests of Afghanistan are significant. Afghan

law is largely religion-based and evidences a strong concern for ensuring moral

responsibility, and deterring violations of obligations within its borders. (Declaration of

 These states may have a more significant interest in ensuring adequate recovery for their citizens, but they
have no significant interest in regulating conduct or establishing the liabilities of nonresident companies.
Thus, while their law may become relevant, such will not occur, if at all, until a proper defendant is before
this Court.


Ian David Edge, attached hereto as Exhibit A, � � 3, 9.)  A jurisdiction has a substantial

interest and paramount responsibility to protect the welfare of persons within its borders.

Wert v. McDonnell Douglas Corp., 634 F. Supp. 401, 405 (D. Mo. 1986). Accordingly,

Afghanistan has a great interest in ensuring that conduct within its borders complies with

Islamic law such that negligent and dangerous actions are deterred by the threat of full

responsibility for any consequences.7

         No United States public policy would be violated by the application of foreign

law based on strict rules of proximate causation, limiting only the extent to which indirect

liability may be extended. The application of Afghanistan law, however, would facilitate

the working of the international system because Afghanistan would also apply the law of

the place of injury. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1004 (9th Cir.

1987) (In a conflicts of law analysis, the Court noted that "choosing Poland's damages

law facilitates the working of the international system because Poland would apply the

same law under its choice-of-law rule, lex loci delicti.").

         Given Afghanistan's ties to the claims at issue, the fact that it is the site of the

accident and the conduct complained of, and the fact that it provides the geographical

nexus for the relationship between the parties, Afghanistan has more significant contacts

than any of the states, and more compelling interests than any of the states in governing

the Plaintiffs' state law claims.

         Bridas Corp v. Unocal Corp., 16 S.W. 3d 893 (Tex. App. 2000) provides the

  Notably, Afghan law does not limit Plaintiffs' available recovery. Neither would Afghan law preclude a
lawsuit for the negligence of the individuals responsible for training, equipment, and operating procedures.
Under the law of Afghanistan, Plaintiffs feasibly would retain the ability to litigate their claims against the
individuals involved in the allegedly wrongful conduct, and the Plaintiffs feasibly would have the ability to
recover for their economic and noneconomic losses.


relevant guidance for the application of the Restatement's analysis in a case involving

actions of a domestic company on foreign soil. In Bridas, a Texas corporation was

accused of tortious interference with contracts in Turkmenistan and Afghanistan. The

plaintiff, a Texas corporation, had obtained oil and gas exploration contracts with the

governments of those two countries and claimed that the defendant caused those

governments to breach the contracts. The plaintiff argued that, because the defendant's

foreign acts were conceived in and directed from its Texas headquarters, Texas had an

interest in applying its law.

        The Court rejected the plaintiff's argument because "both the quantity and quality

of the contacts identified in [Restatement Second] � 145 mandates the application of

foreign law to all tort claims asserted by [the plaintiff] because the parties and the subject

matter of this litigation have a more significant relationship to the nations of

Turkmenistan and Afghanistan than to Texas." Id. at 899. The plaintiff argued that,

because of the difficulty in ascertaining and predicting Turkmen and Afghan law, the law

of Texas should apply. The court rejected this argument as well, citing to an eight-day

evidentiary hearing on the choice of law issue and the testimony of nine foreign-law

experts, and concluded that Turkeman and Afghan law are "readily and reliably

ascertainable." Id. at 903, 906.   Thus, the appellate court reversed the trial court and

determined that Islamic law applied to the Plaintiffs' tort law claims. Id. at 899.

        The analysis of the facts before this Court, as set forth in detail above, calls for the

same conclusion. If any state law is to be applied, the Court should apply the law of

Afghanistan to the Plaintiffs' claims of respondeat superior and indirect liability against



       C.      Under the Law of Afghanistan, Plaintiffs' Amended Complaint Fails
               to State a Viable Claim Against Presidential

       On August 11, 2006, plaintiffs' counsel stated at oral argument, "Here there is no

law, there is no civil law system in the country of Afghanistan, which is where the crash

occurred." Transcript of Hearing on Motion to Dismiss, August 11, 2006, page 4. The

discussion which follows herein makes it clear that on the relevant issues raised by this

motion, Afghan law is well developed.

       In determining the law of a foreign country, the court may consider any relevant

material or source, "whether or not submitted by a party or admissible under the Federal

Rules of Evidence." Forzley v. AVCO, 826 F.2d 974 (11th Cir. 1987) (citing Rule 44.1 of

the Federal Rules of Civil Procedure). See also Locals 302 & 612 of the Intl Union of

Operating Engineers-Employers Constr. Indus. Retirement Trust v. Blanchard, 2005 U.S.

Dist. LEXIS 17679 (D.N.Y. 2005).

       The attached declaration of Professor Ian David Edge establishes that

Afghanistan's legal system consists of Islamic law and state-enacted legislation. (Edge

Declaration, �� 3-9.) Professor Edge, a law professor, London barrister, and noted

consultant on Islamic law, explains that the traditional rules of Islamic law are referred to

as the Shari'a, and they are interpreted not by judges, but by scholars. Id. In most areas

of Afghanistan, the Shari'a courts rely to a great extent on Islamic law, as written in the

Qur'an, the Sunna, and the Mejelle. Id. The recently codified Afghan civil code is based

on the most important principles of the Shari'a. Id.

       Under Afghan law, liability attaches to a person when the harm caused is direct

and the causation principles are strict. Id. � � 12-15. (See also Declaration of Mark

Hoyle, attached hereto as Exhibit B.) In other words, ordering a person to do something


illegal does not make the person making the order liable because there is no causation as

to the person giving the order under the Shari'a. (Edge Declaration, � � 12-15.) This is

evidenced by Afghanistan Civil Code Article 787, which states: "An act is attributed to

its doer not to the one who commands it, unless the doer is under compulsion. As to

actual behavior, what is regarded as compulsion is complete compulsion only." Id., � 13.

Article 551 of the Afghanistan Civil Code defines "compulsion" as "intimidation of a

person unreasonably to execute an action without his consent, whether it may be material

or spiritual."

        Further, Article 1510 of the Mejelle states: "The judgment for an act is made to

fall on the person who does it. And it does not fall on the person who gives the order, as

long as he does not compel the doing of the act." Id., � 14. The Mejelle provides the

following illustration: "A instructs B to throw certain property into the sea. B does so

knowing that the property in question belongs to someone else. The owner of the

property can call upon B to make good the loss. The person who gave the instruction is

not liable unless he used compulsion." Id. Accordingly, Afghan law, following

Shari'a principles, does not recognize the doctrine of respondeat superior or the concept

of indirect liability except where the direct actor is intimidated or coerced. Id., � 15.

(See also Declaration of Mark Hoyle, attached hereto.)

        In Bridas v. Unocal Corp., Professor Edge was accepted by the Court as an expert

on Afghan law. Bridas, 16 S.W. 3d at 903. Based largely on the testimony of Professor

Edge, the Court acknowledged Afghanistan's legal principles which place liability

squarely and solely on the direct actor:

                 The concept is a profound one actually. The law is linked
                 with morality and the onus for acts is placed on the person


               who has sort of got the point for the decision, that is, the
               one who takes it upon himself to perform the wrongful act,
               who voluntarily goes ahead and does something immoral.

               So the person who has ordered it offers no excuse for the
               person who does it. The person who does it is going to be
               held liable. The law is religious law, and they feel that the
               person who makes the fateful step to do the wrongful thing
               had a point of decision, and he should have withheld the

               We may make a moral judgment somewhat differently.
               But they have felt to accentuate the moral responsibility of
               the individual, this ought to be the rule.

Id. at 905. Based on these conclusions, the Bridas Court held that Defendant Unocal

was entitled to judgment because the applicable foreign law did not recognize the stated

tort causes of action. Id. at 906. In doing so, the Court rejected any argument that the

subject Islamic law violated public policies:

               Briefly, we return our attention to the issue of public
               policy, which permeates the respective provisions
               contained in section 6 of the RESTATEMENT (SECOND)
               CONFLICT OF LAWS and is heavily relied upon by
               Bridas in assailing the trial court's summary judgment. We
               observe that Texas courts will not enforce a foreign law
               that violates good morals, natural justice or is prejudicial to
               the general interests of our citizens. See Gutierrez, 583
               S.W. 2d at 321. As the Supreme Court recognized in
               Gutierrez in analyzing the public policy ramifications of
               applying the laws of Mexico and in rejecting the
               "dissimilarity doctrine," it is clear that the laws of
               Turkmenistan and Afghanistan, respectively are different
               than ours in many respects. Id. However, these differences
               by no means render the laws of Turkmenistan and
               Afghanistan violative of Texas public policy. Id. The laws
               of these nations have been in place and followed for many
               years, if not many centuries. Their laws are well-
               established, predictable, and certain.

Id. at 906.

        Professor Edge's current declaration underscores and supports the Bridas Court's


interpretation of Afghanistan's long-standing legal precedent. Under these principles,

Plaintiffs' claims against Presidential, based on respondeat superior and indirect liability,

are not cognizable.8

         WHEREFORE, Defendants Presidential Airways, Inc., Aviation Worldwide

Services LLC, STI Aviation, Inc., and Air Quest, Inc. respectfully request that the Court,

pursuant to Rule (12)(b)(6), dismiss the Plaintiffs' Amended Complaint on the grounds

that it does not state a claim against these corporate defendants under the applicable law.

Dated: April 30, 2008                                 Respectfully submitted,

                                             By:      s/Mark A. Dombroff_____
                                                      Mark A. Dombroff, Esq.
                                                      Thomas B. Almy, Esq.
                                                      Monica L. Irel, Esq.
                                                      Fla. Bar No.: 0142395
                                                      DOMBROFF GILMORE
                                                      JAQUES &FRENCH P.C.
                                                      Wachovia Financial Center
                                                      200 South Biscayne Blvd., Suite 1050
                                                      Miami, FL 33131
                                                      Telephone: (305) 670-4843
                                                      Facsimile: (305 670-4846

                                                      Attorneys for Defendants Presidential
                                                      Airways, Inc., Aviation Worldwide Services,
                                                      LLC, STI Aviation, Inc. and Air Quest, Inc.

  This is not to say that the plaintiffs have no cognizable claim under Afghan law against any party arising
from this incident. The Plaintiffs may have a viable claim against the estates of the flight crew or other
operations personnel for their direct actions, under the Afghan laws stated above. The determination of
damages for such a claim may be governed by the law of the forum state or the laws of states where the
Plaintiffs are domiciled, based on an issue-based analysis of the applicable conflict-of-laws principles.


                            CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that on May 1, 2008, I electronically filed the foregoing
Defendants' 12(b)6 Motion to Dismiss and Incorporated Memorandum of Law with
the Clerk of Court, U.S. District Court, Middle District of Florida, by using the CM/ECF
system which will send a notice of electronic filing to all counsel of record who are
CM/ECF users in this case.

        I FURTHER CERTIFY that I mailed the foregoing document and the notice of
electronic filing by First Class Mail to the following CM/ECF participant:

                      Justin Chretien
                      Aviation & Admiralty Litigation
                      Torts Branch, Civil Division
                      Department of Justice
                      P.O. Box 14272
                      Washington, DC 20044-4271

                                                            s/ Monica L. Irel______
                                                           Monica L. Irel, Esq.


Monday, June 02, 2008

Bill Gertz Subpoena in Mak Case [Docs 406 and 700]

 Case 8:05-cr-00293-CJC     Document 406      Filed 03/07/2007       Page 1 of 2

                                           UNITED STATES DISTRICT COURT
                                          CENTRAL DISTRICT OF CALIFORNIA
                                             CRIMINAL MINUTES - GENERAL

 Case No.          SA CR 05-293(A)-CJC                                     Date      March 7, 2007

[attendee list snipped]

 Proceedings:        POSSIBLE RULE 6(E) VIOLATION

       On November 22, 2006, the Court entered an Order that required the government to submit in
camera and under seal a status report detailing its investigation into any communications between
government officials and Washington Times reporter William Gertz, or any other member of the public,
that potentially disclosed grand jury information in violation of Rule 6(e). The Court also requested
information regarding the steps taken by the government to ensure that no further communications
would take place. Finally, the Court directed the government to submit any evidence it deemed
necessary and appropriate to rebut Defendant Rebecca Chiu's prima facie case of a Rule 6(e) violation.
This minute order will provide Ms. Chiu and the other defendants with a summary of the government's
response as well as a report on the government's investigation into this matter.

        First, as a result of the Court's November 22, 2006 Order, the Department of Justice determined
that the United States Attorney's Office for the Central District of California should be recused from
handling the investigation into the leak of grand jury information and from any litigation arising from
the investigation that the Court has ordered. The Department of Justice assigned the matter to the
United States Attorney's Office for the District of Columbia. Jay I. Bratt, an Assistant United States
Attorney in that office, has been appointed a Special Attorney to the Attorney General to conduct the

CR-11 (09/98)                      CRIMINAL MINUTES - GENERAL                          Page 1 of 2

 Case 8:05-cr-00293-CJC     Document 406      Filed 03/07/2007       Page 2 of 2

investigation in this District and to handle all related court matters. The agents conducting the
investigation are from the Washington Field Office of the Federal Bureau of Investigation. The
government has informed the Court that the scope of its investigation is broader than determining
whether a violation of Rule 6(e) occurred. The government is also investigating possible violations of
18 U.S.C. � 793 (unlawful communication of classified information) arising from various publications
in the media about this prosecution.

       The government also provided the Court with information concerning the steps it has taken to
ensure that there are no improper leaks of information in the future. First, the Assistant United States
Attorneys handling the underlying case have provided the agents with whom they are working the
Court's November 22, 2006 Order and have directed them in writing to disseminate the Order to
everyone within their respective offices who has access to information about the Chi Mak case and to
make sure that all such persons understand the Order. Second, the investigative offices are to take all
necessary steps to ensure that there are no improper communications with Mr. Gertz or any other
members of the public concerning not only grand jury materials relating to the prosecution, but also any
other materials that the Court has previously identified. The prosecutors have broadly defined "grand
jury materials" to include government documents or discussions that refer to or relate to when and if an
indictment is going to be returned, the nature of contemplated charges, the evidence presented or to be
presented to a grand jury, and the nature or direction of any ongoing investigation.

        Last, the government informed the Court that it had not reached a point in its investigation
where it was able to advise the Court as to whether it had information rebutting the prima facie case
that a violation of Rule 6(e) occurred.

        Upon conclusion of the trial of Defendant Chi Mak, the Court will provide an updated status
report to Ms. Chiu and the other defendants.

CR-11 (09/98)                      CRIMINAL MINUTES - GENERAL                          Page 2 of 2

This document is an OCR job, barely cleaned up. The jist is fairly clear, since these meeting minutes follow on the meeting minutes of March 2007.

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 1 of 5



Case No. SACR 05-00293-c7c Date: May l, 2008




Michelle Urie N/A
Deputy Clerk Court Reporter


None Present None Present


During Ule cowse ofproceedings in Ws case, Washington Times reporter Bill
Gertz authored a May 16, 2006 article (Ule "May 16 article") Ulat revealed secret
information before a federal &andjwy. 1 M. Gertz reported Ulat impendlng grandjury
charges "will include a new indictment against Chi Mak, Tai Mak, Rebecca Chiu and a
fouM Mak relative. All fow will be charged with conspiracy to export defense articles
! and attempted mawhl export ofdefense articles." Bill Gertz, New Charges Enpected in
DefenseDatQ meftRing, THEWASHMGTON Tws, May 16, 2006. The ahcle Wer
disclosed that "Tai Mak also will be charged wiUl aiding and abetting and possession of
property to aid a foreign government." Id. Mr. Gertz atbibuted _he sowce ofWs
information to "Senior Justice Department officials [who] have approved Ule new
charges." Id. Based on Ule content ofWs _rticle, Defendant Rebecca Chiu brought a
motion asserting that Ule Government _iolated Federal Rule ofCrirrlinal Procedwe 6(e). 2

In an order dated November 20, 2006, be Court found _hat Ms. Chiu had
established aprimQfacie violatioo ofRule 6(e). Courts engage in a _wo-step analysis to
deterrnine whe_her media reports establish apriMQfacie case ofa Rule 6(e) violation.

1  A copy ofthe May l� article _ediately follows Ulis Order_
2  Rule 6(e)(2) sta_es, in relevaot part, that "an attomey for the gover_ment, or any person to whom
discloswe is made under para_aph 3(A)(ii) ofthis subdi�sion shall not disclose mat_ers occ_Emng before
the grandj_, except as oUlerwise provided for in these rmes." FED. R. CRIM. P. 6(e)(2)_

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 2 of 5



Case No. sacR 05-00293-c_c Date: May l, 2008
Page 2

Bary v. UNited States, 865 F.2d 131_, 1321 (D.C. C�. 1989). First, courts must evaluate
"wheUler Ule reports actually disclose information about what occwed before the grand
jury," and second, "wheber be sowce ofioformation was likely one ofUlose persons
listed in Ule rule." United States v. Lopez, 854 F. Supp. 4|, 46 (D.P.R. 1994). In Ulis
case, Ule firSt element ofaprimafacie case was satisfied because the article "expressly
identifIied] _he nahre ofUle crimes which would be charged and the nwber ofpersons
who would be charged." See _n re GrandJuy INvestigQtion (Lance), 610 _.2d 202, 218
(5U_ Cir. 1980). M. Gertz directly atbibuted tbe information "to senior Tustice
Department officials [who had] approved U_e new charges," thus establismg _he second
element. See BQry, 865 F.2d at 1325-26. 3

Finding _hat Ms. Chiu had established aprimafacie Rule 6(e) violation, U_e Court
was obligated to uncover Ule sowce ofUle grandjwy leak. See id. at 1321 ("Once a
primafacie case is shown, U_e disb_ct court must conduct" Wer investigation . . . .}
(emphasis added). Accordingly, Vhe Court ordered Ule United States Attomey's Office
for Ule Cenbal DisWict ofCalifo_a ("C.D. Cal. USAO") to undertake a mll
investigation. (See Order Granting io Part and DeDying in Part Defs.' Mot. for Disc. or
OUler ReliefRelating to Gov't Misconduct, November 20, 2006 (Ule "November 20
Order"))- However, Ule Dep_ent of_ustice determined that Ule C.D. Cal. USAO
should be recused hom han_iAg Ule investigation into _he leak ofgrandjwry information
and hom any subsequent litigation. The investigation was U_erefore assigned to _he
United States Attomey's Office for U_e Disbrict ofColumbia (_he "Government"). The
Court's Nove_Dber 20 Order directed U_e Government to determine wheUler any
government official disclosed secret gramdjury information to Mr. Gertz. Altematively,
ifthe Government concluded Ulat government officials were not responsibte for the leak,
it was inshcted to provide evidence to _hat effect. 4 (See id.)

The Gove_oment conducted a c_omprebensive, yearnlong investigation and . '
interviewed over 500 persons ofinterest. In a recent report to Ule Court detailing Ule
results ofits investigation, Ule Govemment conceded _hat a violation ofRule �e) had

3  See also FED. R_ CRIM. P. 6(e)(2)(B)(vi) (prohibiting discloswe by "an atto_ney for the government;"
6(e)(2_(B)(vii) (prohibiting discloswe by "any governmental persoMel" perrnissibly informed of grand
jury lnformation pwsuant to subsection (e)(3)(A)).
4  In other words, the Court instwcted the Govern_nent to subn_t e�dence to rebut Ms. chiu'spnMafacie

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 3 of 5



Case No. SACR 05_00293-c_c Date: May l, 2008
Page 3

occurred. The Government, however, was unable to determine Ule identity ofthe person
or persons who leaked the grandj_ ioformation contained in Ule May 16 article to Mr.
Gertz. Based on Ule content ofbe May 16 awicle and Ule Government's coocession of
an imperrnissible le�k, Ule Court f_nds that _he individual who leaked Ule grandjwy
information to Mr. Gertz violated Rule 6(e). Accord_ngly, _le Court finds it necessary to
subpoena Mr. Gertz to testiJ regarding Ule identity of_le sowce Ulat provided him witb
Ule grandjwy information conta_oed io _he May 16 article. Pwsuant to a subpoena
issued on April 30, 2008, M. Gertz shall appearbefore hs Court on Iune 13, 2008 at
9:00 a.m.


MMUTES FORM Il Ioitials ofDeputy Clerk MU

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 4 of 5
 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 5 of 5

[Pages 4 and 5 are the Washington Times article of May 16, 2006]


March 2006   April 2006   May 2006   June 2006   July 2006   August 2006   September 2006   October 2006   November 2006   December 2006   January 2007   February 2007   March 2007   April 2007   May 2007   June 2007   July 2007   August 2007   September 2007   November 2007   December 2007   January 2008   February 2008   March 2008   April 2008   May 2008   June 2008   July 2008   August 2008   September 2008   March 2009   April 2009  

This page is powered by Blogger. Isn't yours?