Plaintiffs, all citizens of the United States, brought their claim pursuant to the authority granted by the Anti-Terrorism and Effective Death Penalty of 1996 hereinafter referred to as ("The Anti-Terrorism Act"), which amended the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-11, to permit suits against foreign governments and their political subdivisions which engage in acts of extrajudicial killing, aircraft sabotage or other prohibited acts against a United States citizen, when such states are designated by the United States as a state sponsor of terrorism. Plaintiffs' claims are based upon the Anti-Terrorism Act, the Act of September 30, 1996, a subsequent law which created a private, federal enforcement action and other applicable statutes.

The summons and complaints were served on the Defendants CUBA and THE CUBAN AIR FORCE through registered mail and diplomatic channels as required by 28 U.S.C. 1608 (a). Defendants have failed to respond and through a diplomatic note (Republic of Cuba, Ministry of Foreign Relations, No. 1054) declared that no "United States court has competent authority to judge either the Republic of Cuba or its institutions", including as to the events which occurred on February 24, 1996. A Clerk's Default was entered in each case as to each Defendant on April 30, 1997.

II. SUBJECT MATTER JURISDICTION

Pursuant to 28 U.S.C. 1330 (a), the United States district courts have subject matter jurisdiction against a foreign state asto any claim for relief to which the foreign state is not entitled to immunity under the Foreign Sovereign Immunities Act (FSIA).Argentine Republic v. Amaarada Hess Shipping Corp., 488 U.S. 428,434 (1989); Verlinden B.V. vs. Central Bank of Nigeria, 461 U.S.480, 493 (1983); In Re: Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1470 (9th Cir. lO94).

The Antiterrorism and Effective Death Penalty Act of 1996, enacted on April 24, 1996, added a seventh exception to the FSIA,28 U.S.C. 1605 (a)(7), which provides the basis for subject matter jurisdiction in this case. Section 1605(a)(7) provides that a foreign state shall not be immune from the jurisdiction of courts of the Untied States in any case--

(7) ... in which money damages are sought against a foreign state for personal injury or death that was caused by an act of . . . extrajudicial killing [or] aircraft sabotage . . . if such act . . . is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph

(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405 (j)), or Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), at the time the act occurred, unless later so designated as a result of such act; and

(B) even if the foreign state is or was so designated, if--

(i) the act occurred in the foreign state...

or (ii) the claimant or the victim was not a national of the United States ... when the act upon which the claim is based occurred.

25 U.S.C. 1605(a)(7)

Thus, subject matter jurisdiction is established when the following four elements are satisfied:

1. the act in question was an "extrajudicial killing" or"aircraft sabotage";

2. the foreign state was designated as a "state sponsor of terrorism't;

3. the act did not occur in the foreign state; and

4. the claimant and victim were nationals of the United States at the time the act upon which the claim is based occurred.

All pertinent requirements of 1605(a)(7) have been met in this case, and the Court has subject matter jurisdiction over this action.

The shooting down and destruction by Cuban military aircraft of Plaintiffs' decedents while on board an unarmed civilian aircraft clearly satisfies the elements of extrajudicial killing and aircraft sabotage as defined in 28 U.S.C. 1350 note and Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, respectively.

At the time of the killing, on February 24, 1996, Cuba was designated by the United States as a state sponsor of terrorism under 6(j) of the Export Administration Act of 1979. 61 Fed .Reg.12927 (1996).

Furthermore, the evidence in this case will establish that the two unarmed civilian aircraft were shot down over international airspace, well outside Cuba's 12 mile territorial limit as recognized by international law. The decedents were not killed in a foreign state.

Lastly, the evidence will also establish that all claimants and the decedents are/were nationals of the United States. Decedents, Mario M. De La Pena and Carlos Alberto Costa, were both born in the United States and were citizens of this country. Decedent, Armando Alejandre, was born in Cuba, but was naturalized a citizen of the United States. All the Plaintiff claimants are United States citizens.

III. PERSONAL JURISDICTION

Pursuant to 28 U.S.C. 1330 (b), personal jurisdiction over Defendants, The Republic of Cuba and Cuba, exists as to thoseclaims over which the Court has jurisdiction under Section 1330(a)where service has been made under Section 28 U.S.C. 1608. Since,as previously stated, this Court has subject matter jurisdiction over this action, personal jurisdiction exists if service has been accomplished on the Defendants.

Section 1608(a) sets out the requirements necessary to effect service of process upon The Republic of Cuba, a foreign state, and the Cuban Air Force, a political subdivision of a foreign state. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153(DC Cir. 1994) ("armed forces of a foreign sovereign are the`foreign state' and must be served under Section 1608(a)).

Section 1608(a)(1)-(2) provide for service in accordance with any special arrangements for service made with the foreign state or in accordance with any applicable international convention on service of judicial documents. Because there is no special arrangement for service with Cuba and because there is no applicable international convention on service of judicial documents to which Cuba is a member, these sections do not apply.

The third method of service set forth in subsection (3) may be utilized when the methods for service provided in subsections (1)and (2) are not available. This third method requires sending acopy of the summons and complaint and a notice of suit, together with a foreign language translation of each, by any form of mail requiring a signed receipt. Plaintiffs have complied with this method by sending the summons, complaint and notice of suit together with a Spanish language translation of each, by certified mail, return receipt requested, to Mr. Roberto Robaina, Ministerio de Relaciones Exteriores, in Havana, Cuba. The signed return receipt cards were filed with this Court on January 31, 1997. TheDefendants failed to respond and the Clerk entered Default as toeach Defendant in each case on April 30, 1997.

Even though Plaintiffs effectuated service on Defendants pursuant to Section 1608(a)(3), they have also served the Defendants as provided in Section 1608(a)(4). Two copies of the summons, complaint and notice of suit, together with a Spanish translation of each, were transmitted through diplomatic channels to the Government of Cuba.

Accordingly, service of process has been effectuated against the Defendants pursuant to 1608(a)(3) and (4), thus, this Court has personal jurisdiction over the Defendants pursuant to 28 U.S.C.1330 (b).

IV. PLAINTIFFS' STATEMENT OF THE APPLICABLECAUSE OF ACTION AND THE DAMAGE LAW

Plaintiffs' claims in this case are authorized by the Anti-Terrorism and Effective Death Penalty Act of 1996, which amended the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-11,to permit suits against foreign governments and their political subdivisions which engage in defined offenses against U.S. citizens abroad; and Plaintiffs' claims are based upon both the 1996 Anti-Terrorism and Effective Death Penalty Act, and a federal statute enacted five months later -- the Act of September 30, 1996 -- which created a private federal right of action for the offenses alleged. The Act of September 30, 1996, quoted infra, specifically enumerates the categories of damages which Plaintiffs can recover as damages against a foreign sovereign its political subdivisions and its employees, officers or agents. All of these points are developed in detail below.

A. THE CAUSE OF ACTION

Prior to enactment of the 1996 statute and the Act of September 30, 1996, the FSIA did not itself create a substantive cause of action. To the contrary, it was well recognized that when a foreign state or agency was amenable to suit under one of the exceptions to the immunity provided by the FSIA, state law determined the elements of any cause of action brought under statelaw, (footnote 1) and federal law determined the elements of any cause of action brought under federal law. (footnote 2)

Thus, before the 1996 enactments, the sole purpose and effect of the FSIA was to determine when the foreign sovereign and its instrumentalities remained immune from liability for their employees' conduct, or when instead the government or instrumentality might be held vicariously responsible for their conduct. As the court put it regarding 1605(a)(5)(lifting immunity for the commission of a tortious act in the United States) in Skeen vs. Federative Republic of Brazil, 566 F.Supp. 1414, 1417 (D.D.C. 1983): "Section 1605(a)(5) is essentially a respondeat superior statute, providing an employer (the foreign state) with liability for certain tortious acts of its employees." (footnote 3)

As we have noted, in 1996, Congress amended the FSIA by enacting the Anti-Terrorism and Effective Death Penalty Act of 1996, which created a new exception to sovereign immunity which was codified as sub-section (a)(7) of 28 U.S.C. 1605. It provides that in an action "not otherwise covered by paragraph (2) [the commercial-activity exception], in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph" if the foreign state is not designated as a state sponsor of terrorism, if the act occurred in the foreign state itself, or if the claimant or victim was not a U.S. national.

Also in 1996, five months later in the Act of September 30,1996, Pub. L. No. 104-208, Title V, 589, 110 Stat. 3009, Congress added a new substantive private cause of action to enforce and supplement the above-quoted (a)(7) exception to the FSIA. The Act of September 30 apparently was intended to amend 1605, and its text is found in the annotations to 1605. It provides as follows:

(a) An official, employee, or agent of a foreign state designated as a state sponsor of terrorism designated under section 6(j) of the Export Administration Act of 1979 [section 2405(j) of the Appendix to Title 50, War and National Defense] while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code [subsec. (a)(7) of this section] for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7) [subsec. (a)(7) of this section].

(b) Provisions relating to statute of limitations and limitations on discovery that would apply to an action brought under 28 U.S.C. 1605(f) and (g) [subsecs. (f) and (g) of this section] shall also apply to actions brought under this section.

No action shall be maintained under this action [sic] if an official, employee, or agent of the United States, while acting within the scope of his or her office, employment, or agency would not be liable for such acts if carried out within the United States.

Thus, the 1996 amendment creates a federal cause of action against the "official, employee, or agent of a foreign state" designated asa state sponsor of terrorism, if the agent was "acting within the scope of his or her office, employment, or agency" and caused"personal injury or death" through acts "for which the courts of the United States may maintain jurisdiction under section1605(a)(7)," and the agent is liable "for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages ..."

The statutory cause of action created by the Act of September 30, 1996 embraces five elements. The plaintiff must prove:

1. that the act in question was committed by an officer, employee or agent of a foreign state;

2. that the act was committed within the scope of his/her office, employment, or agency;

3. that the foreign state involved is a designated state sponser of terrorism under 6(j) of the Export Administration Actof 1979;

4.that the act caused personal injury or death; and

5.that the victim was a United States national.

The Act of September 30, 1996, creates a cause of action against the "official, employee, or agent" responsible for the deaths of the plaintiffs' decedents, awarding the full panoply of money damages typically available at common law. And as we have noted, to the extent that the individuals in question were acting within the scope of their authority, the waiver provisions of the FSIA (including sub-section 1605(a)(7)) will operate to waive the Cuban government's immunity under federal law, and therefore to create respondeat-superior liability for the conduct of any Cuban"official, employee or agent" which is actionable under the 1996 amendment. Therefore, upon proof that the individuals in question were acting within the scope of their authority, and were responsible for the death of an American national, the Cuban Air Force will be liable for "money damages which may include economic damages, solatium, pain, and suffering, and punitive damages"; and the Cuban government will be liable for the same damages, with the sole exception of punitive damages, which are expressly precluded by 28 U.S.C. 1606.

B. THE DAMAGES

The categories of permissible recoverable damages are specifically enumerated in the Act of September 30, 1996. The Act provides in relevant part that the recoverable damages "may include economic damages, solatium, pain and suffering and punitive damages.'' The Act does not further define these categories, nor limits in any way the amounts recoverable.

The quantum of awardable damages is left to the Court's discretion. Although neither the Anti-Terrorism and Effective Death Penalty Act of 1996 nor the Act of September 30, 1996 define the parameters of, or set guidelines for, allowable damage awards, there is a rich history of analogous federal law concerning the damages awardable in this context. For example, the Alien Tort Claims Act, 28 U.S.C. 1350, and the Torture Victim Protection Act of 1991, found in the statutory note to 1350, combine in proper cases to create a federal cause of action for aliens victimized by torture. Compensatory damages are available for "pain and suffering, medical expenses, and lost income suffered by the plaintiffs,"and "punitive damages are appropriate" when the defendant's conduct was "malicious, wanton, and oppressive." Paulv. Avril, 901 F. Supp. 330, 335-36 (S.D. Fla. 1994) (awarding $2.5-3.5 million to each plaintiff, plus $4 million in punitive damages). The damages awarded by other U.S. federal courts hearing international human rights cases, under these analogous statutes, provide some guideline for this court in evaluating Plaintiff's claim for compensatory and punitive damages. See Todd vs. Panjaitan, Civ. Act. No. 92-12255-PBS (D. Mass. 1994) (1994 WL827111) ($4 million in compensatory damages and $10 million in punitive damages); Quiros de Rappaport v. Suarez-Mason, No. C-87-2266-JPV (N.D. Cal. 1989) ($10 million in compensatory damages and $10 million in punitive damages); Martinez-Baca v. Suarez-Mason,

No. C-87-2057-SC (N.D. Cal. 1988) ($11.1 million in compensatory damages and $10 million in punitive damages); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) ($3 million in compensatory damages and $3 million in punitive damages). See generally B. Stephens & M. Ratner, International Human Rights Litigation in the United States 211-225 (Charter 18: Remedies)(1996) (collecting reported damage awards in comparable cases involving violations of international human rights litigated in U.S. courts); Koh, Civil Remedies for Uncivil Wrongs: Combatting Terrorism Through Transitional Public Law Litigation, 22 Tex. Int.L. J. 168 (1987).

V. BIOGRAPHICAL SUMMARIES OF DECEDENTS

At trial, Plaintiffs will offer extensive testimony and documentary proof regarding Plaintiffs' three decedents. The following biographical summaries merely highlight some of the salient aspects of Plaintiffs' anticipated damage cases.

A. MARIO MANUEL DE LA PEÑA

Mario Manuel De La Peña, an unmarried U.S. citizen, was born in New Jersey on December 28, 1971 and resided in Miami, Florida atthe time of his death. He was 24 years old. Mario Manuel's lifetime goal was to become an airline pilot. He never deviated from this goal.

Academically, Mario was always one step ahead of his contemporaries. While attending the "gifted" program at Miami Springs Elementary, Mario learned how to write advanced computer programs. But more impressive was the fact that he also taught his friends and other neighborhood children how to program. As he entered his teens, Mario's interest in science continued to grow. An inquisitive child by nature, Mario enjoyed spending his evenings gazing at the planets and stars with his telescope, fascinated by the early dream of becoming an astronaut. Mario also loved to create. His inventions were legendary in his neighborhood. Among some of his works, was the design, construction, and launch of model rockets, the implementation of a one way AM radio, and his friends' all time favorite, a high powered slingshot which could send a rock past two city blocks.

During high school, Mario actively pursued his childhood dream of being a pilot. He enrolled in a vocational program at George T.Baker Aviation School where he spent half his day learning avionics. In 1990, Mario Manuel De La Peñ a graduated with honors from Miami Coral Park Senior High School and at the same time earned an aircraft mechanic's license from George T. Baker Aviation School. He enrolled in Miami Dade Community College and graduated with a 3.54 grade point average in May of 1993, obtaining an associate's degree in professional piloting.

In 1994, Mario applied and was accepted into Embry-Riddle Aeronautical University, the nation's top aviation school. While at Embry-Riddle, Mario Manuel maintained a 3.9 grade point average. Thomas F. Walby, one of his professors at Embry-Riddle, described Mario as someone who "possesses all the qualities expected of a good student.. punctual, honest, persistent and intelligent". He further states "Mr. De La Peña's ... ability to understand complicated subject matter, break it down into manageable segment sand communicate its essence to others, allows him to stand out among his peers." Mario's Technical Writing professor, Paul M.Comeau, states that Mario "succeeded in demonstrating not only superlative academic ability, but unique high personal standards." As a result of his outstanding academic record and after a rigorous interviewing process, Mario secured, during his last semester at Embry-Riddle, a much coveted internship with American Airlines, where he hoped to work as a commercial pilot up on graduation. Mario's Bachelor of Science degree in Professional Aeronautics was awarded to him posthumously by Embry-Riddle.

Mario Manuel is survived by his parents, Mario and Miriam De La Peña, both U.S. citizens and residents of Miami, Florida. Mario Manuel is also survived by his younger brother, Michael De la Peña.

B. CARLOS ALBERTO COSTA

At the time of his untimely death, Carlos Alberto Costa was a 29 year old single man living at home with his parents. Carlos was born on June 23, 1966, in the United States of America and was aresident of Miami, Florida.

Carlos Costa graduated from Monsignor Edward Pace Senior High School in 1984. He subsequently enrolled in Miami Dade Community College where he received an Associate of Arts degree in Aviation Administration. Carlos was interested in airline and airport management. His goal was to one day be responsible for the operations of a major airport in the United States. In order topursue his dream, Carlos applied and was accepted into Embry-Riddle University, the nation's top aviation university. In 1992, he graduated from Embry-Riddle, obtaining a Bachelor's degree in Airway Science with a concentration in Aircraft Systems Management. While at Embry-Riddle University, Carlos Costa was certified by the FAA as a Flight Instructor-Airplane Single Engine and Instrument, Flight Instructor - Airplane Multi-engine, Private Pilot, Commercial Pilot, and he also obtained a Commercial Multi-engine Class Rating and a certificate from an FAA approved Instrument Rating Curriculum.

After graduation from Embry-Riddle, Carlos began working forthe Dade County Aviation Department as an airfield operations specialist in the access control division of the Miami International Airport operations area. In the employee performance evaluation of 1993, Mr. Ron Smith, Carlos' supervisor, describes him as "a self-starter ... an energetic worker who responds positively to any given assignment." He further states "Carlos' knowledge of F.A.A. regulations and Aviation policies makes him resourceful... [he] displays a `CAN DO' attitude." In 1994, approximately one year after being hired, Carlos was promoted to airport attendant with the ramp control division of M.I.A. Once again his performance evaluation was exemplary, he is described as"energetic about his position ... [giving] better than 100 percent....Carlos has earned the respect from his fellow workers and supervisors since working [at] Airside Operations and has shown an attitude for being a team player and worker." In 1995, he was promoted again to the position of Training Specialist. This was Carlos' second promotion in just under two years. His new responsibilities as a training specialist included the preparation, development and implementation of department wide training for the Metro Dade Total Quality Program. Carlos earned the highest evaluations from his fellow workers and supervisors and was universally liked and respected by his peers.

Carlos Alberto Costa is survived by his parents, Osvaldo and Mirta Costa, both U.S. citizens and residents of Miami, Florida.

C. ARMANDO ALEJANDRE

Armando Alejandre was a 45 year old, married father of a minor daughter, when he was brutally murdered by the Cuban government.

Armando was born on April 16, 1950 in Havana, Cuba. He was the youngest of four children and the only male. In 1960, Armando and his family fled from Cuba, escaping its oppressive communist regime. They arrived in the United States on November 7, 1960 and settled in Miami, when Armando was ten years old. His father founded a general contracting business and his mother remained at home raising her children.

As a child, Armando attended Everglades Elementary and later St. Hugh's Catholic School. He attended La Salle High School, where he was a member of the Spanish Club and the Junior Varsity &Varsity basketball team. Armando enjoyed writing and wanted to become a writer. His favorite writer was Ernest Hemingway.

At the age of eighteen, Armando voluntarily enlisted in the United States Marine Corps. and served an active tour of duty for eight months in Vietnam. Mr. Alejandre served his country with honor and distinction and was awarded the National Defense Service Medal; Vietnam Campaign Medal with device; Vietnam Campaign Medal with one star; Rifle Marksmanship Badge and the Good Conduct Medal.

Upon his return from the Vietnam War, Armando decided to continue his studies and enrolled in Miami Dade Community College, obtaining an Associates of Arts degree in 1974. On December 5, 1975, Armando married Marlene, whom he had been dating for three years. His daughter, Marlencita was born on September 25th, 1977.

Since returning from Vietnam and until 1983, Mr. Alejandre worked side by side with his father in the family owned construction business and together they built many of South Florida's most beautiful churches. From 1983 through 1991, Armando decided to establish his own construction company and concentrated on building warehouses and on developing apartments in the Coconut Grove area. While establishing his construction company and supporting a family, Mr. Alejandre found time to attend Florida International University to further complete his studies. Armando graduated in 1988 with a Bachelor's Degree from F.I.U. That same year, Armando applied to and was accepted into the University of Miami School of Law. He attended for two years before withdrawing.

In 1991, Mr. Alejandre started working with his sister Maggie at her company, Khuly Architects, as a consultant to the Metro Dade Transit Authority. For several years prior to his untimely death, Armando continued working as a consultant to the Metro Dade Transit Authority, working on a contract basis through several different private contractors. As a result of his outstanding work performance, in 1994, Armando was hired directly by Metro-Dade Transit as a cost estimator.

Mr. Alejandre is survived by Marlene, his wife of 21 years, his daughter Marlene Jr., a Junior at the University of Florida.

VI. LIABILITY WITNESS LIST

1. Christine Sloan: Reporter, Archdiocese of Miami Radio and TV Center.

2. Captain Charles F. Leonard: Expert, Aviation Accident/Incident Investigations.

3. Tim J. Reilly: Captain, Tri-Liner fishing vessel.

4. Sean Patrick Gearhart: Crew member, Tri-Liner fishing vessel.

5. Barbara La Monica: Passenger, Majesty of the Seas.

6. Stephanie Levy: Records Custodian of Royal Caribbean Cruise Line (M/V Majesty of the Seas).

7. Lt. Richard Pineiro: U.S. Coast Guard Cutter Commander.

8. Jaime Suchlicki, Ph.D.: University of Miami Political Science Professor.

9. Frank Calzon: Expert, Human Rights.

10. Ambassador Morris D. Busby: Expert, Counter-Terrorism.

11. Richard A. Nuccio, Ph.D.: Former Special Advisor on Cuba to President Clinton and Secretary of State Warren Christopher.

12. Professor Stephen Schnably: Expert, Public International Law.

VII. DAMAGE WITNESS LISTS

Mario De La Peña

1. Edson Morales: Decedent's best friend.

2. Michael de la Peña: Decedent's brother.

3. Esther Rosal: Decedent's paternal grandmother.

4. Professor Thomas WalLy: Decedent's aviation professor from Embry Riddle University.

5. Dr. David Williams: Expert economist.

6. Father Estevez: Decedent's parish priest.

7. Mario de la Peña: Decedent's father.

8. Miriam de la Peña: Decedent's mother.

Carlos Costa

1. Allen Drozd: Decedent's best friend.

2. Mirta Mendez: Decedent's sister.

3. Ivonne Perez: Decedent's ex-girlfriend and Miami Herald reporter.

4. Emir Pineda: Decedent's childhood friend and co-worker at Metro-Dade Aviation Department.

5. Ron Smith: Decedent's supervisor at Metro-Dade Aviation Department.

6. Dr. David Williams: Expert economist.

7. Osvaldo Costa: Decedent's father.

8. Mirta Costa: Decedent's mother.

Armando Alejandre

1. Maggie Khuly: Decedent's sister.

2. Jose Valdez: Decedent's childhood friend.

3. Ralph Cutie: Close friend and co-worker at Metro-Dade Transit Authority.

4. Rafael Morejon: Decedent's immediate supervisor at Metro-Dade Transit Authority.

5. Dr. David Williams: Expert economist.

6. Teresita Christensen: Close personal friend of decedent and his wife; best friend of Marlene Alejandre.

7. Marlene Alejandre Jr.: Decedent's daughter.8. Marlene Alejandre Sr.: Decedent's wife.

WE HEREBY CERTIFY that a true and correct copy of the was mailed this 12th day of November, 1997, to R. Angones, Esq., Angones, Hunter, McClure, Lynch &Williams, 66 W. Flagler Street, 9th Floor, Miami, FL 33130 and Roberto Martinez, Esq., Colson, Hicks, Eidson, Colson, Matthews,& Mendoza, 200 S. Biscayne Blvd. 47th Floor, Miami, FL 33131-2351.

Respectfully submitted,

Francisco Angones, Esq.

ANGONES, HUNTER, McCLURE, LYNCH& WILLIAMS, P.A.

66 W. Flagler Street, 9th Floor

Miami, Florida 33130

- and -

Roberto Martinez, Esq.

COLSON, HICKS, EIDSON, COLSON,MATTHEWS, MARTINEZ &MENDOZA, P.A.

200 So. Biscayne Blvd., 47th Floor

Miami, Florida 33131

- and -

GREENBERG, TRAURIG, HOFFMAN,LIPOFF, ROSEN & QUENTEL, P.A.

1221 Brickell Avenue

Miami, Florida 33131

- and -

PODHURST, ORSECK, JOSEFSBERG,EATON, MEADOW, OLIN & PERWIN, P.A.

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

By: (signed)

AARON S. PODHURST

Fla. Bar No. 063606

(signed)

VICTOR M. DIAZ, JR.

Fla. Bar No. 503800

XAVIER MARTINEZ

Fla. Bar No. 0059498

FOOTNOTES:

1/ See City Bank v. Banco Para el Comercio Exterior de Cuba, 462U.S. 611, 622 n.11, 103 S. Ct. 2591, 2598 n.ll, 77 L. Ed. 2d 46,55-56 n.11 (1983); Moran v. Kingdom of Saudi Arabia, 27 F. 3d 169,173 (5th Cir. 1994).

2/ See Resolution Trust Co. v. Cawhi, 861 F. Supp. 1121, 1126 (D.Conn. 1994); Pittston Co. v. Allianz Ins. Co., 795 F. Supp. 678,682 (D.N.J. 1992). As the Supreme Court recognized in FirstNational, 462 U.S. at 623, 633-34, 103 S. Ct. 2591, 77 L. Ed. 2d at56, 62-63, the only exception to this principle, regardless of thesource of the underlying cause of action, is that the FSIA itself,and thus federal law, determines whether the instrumentality inquestion is in fact an agency of the sovereign, and thus can availitself of the immunities provided by the statute. On suchquestions as agency and scope of authority, the Supreme Courtinvoked principles "common to both international law and federalcommon law . . . necessarily informed both by international lawprinciples and by articulated congressional policies." 462 U.S. at623, 103 S. Ct. 2591, 77 L. Ed. 2d at 56. See EnvironmentalDynamics, Inc. v. Robert Tyer and Associates, Inc., 929 F. Supp.1212, 1235 (N.D. Iowa 1996); In Re Acushnet River and New BedfordHarbor Proceedings Re: Alleged PCB Pollution, 675 F. Supp. 22, 31(D. Mass. 1987); Baglab Ltd. v. Johnson Matthey Bankers Ltd., 665F. Supp. 289, 292 (S.D.N.Y. 1987); Marlowe v. Argentine NavalCommission, 604 F. Supp. 703, 705 n 1/8.2 (D.D.C. 1985); In Re:gotten, 54 B.R. 707, 708 (W.D. Wisc. 1985). These federal-lawconcepts apply even if in the process they usurp or replace someelements of the underlying substantive cause of action. SeeFederal Ins. Co. v. Richard I. Rubin & Co., 12 F. 3d 1270, 1287 (3dCir. 1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L.Ed. 2d 663 (1994); Meadows v. Dominican Republic, 817 F. 2d 517,523 (9th Cir.), cert. denied, 484 U.S. 976, 108 S. Ct. 487, 98 L.Ed. 2d 485 (1987); Gabay v. Mostazafan Foundation of Iran, 151F.R.D. 250, 253 (S.D.N.Y. 1993). In the instant case, because theplaintiffs' substantive claims arise under federal law, see infra,we need not explore the parameters of the doctrine.

3/ Accord, Liu v. Republic of China, 892 F. 2d 1419 (9th Cir.1989), cert. dismissed, 497 U.S. 1058, 111 S. Ct. 27, 111 L. Ed. 2d840 (1990); Rendall-Speranza v. Nassim, 942 F. Supp. 621, 626 (D C.1996), rev'd on other grounds, 107 F. 3d 913 (D.C. Cir. 1997);Rodriguez v. Republic of Costa Rica, 934 F. Supp. 493 (D.P.R.1996); Rendall-Speranza v. Nassim, 932 F. Supp. 19, 23 (D.C. 1996).In addition to the FSIA, the federal courts have developed andapplied federal principles of respondeat superior in a number ofother contexts. See, e.g., American Society of MechanicalEngineers v. Hydrolevel Corp., 456 U.S. 556, 102 S. Ct. 1935, 72 L.Ed. 2d 330 (1982) (antitrust); U.S. Equal Employment OpportunityCommission v. AIC Section Investigations, 55 F. 3d 1276, 1279 (7thCir. 1995) (Americans with Disabilities Act); Thomas v. Peacock, 39F. 3d 493, 503 (4th Cir. 1984) (ERISA), rev'd on other grounds, 516U.S. 349, 116 S. Ct. 862, 133 L. Ed. 2d 817 (1996); Birkbeck v.Marvel Lighting Corp., 30 F. 3d 507, 510-11 (4th Cir.) (AgeDiscrimination in Employment Act), cert. denied, 513 U.S. 1058, 115S. Ct. 666, 130 L. Ed. 2d 600 (1994); United Electrical, Radio andMachine Workers of America v. 163 Pleasant St. Corp., 960 F. 2d1080, 1091-92 (1st Cir. 1992); Bonner v. Lewis, 857 F. 2d 559, 566-67 (9th Cir. 1988) (Rehabilitation Act of 1973); MarburyManagement, Inc. v. Cohn, 629 F. 2d 705, 716 (2d Cir.) (SEC), cert.denied, 449 U.S. 1011, 101 S. Ct. 566, 66 L. Ed. 2d 469 (1980);International Brothers of Electrical Workers v. Sacramento ValleyChapter of National Electric Contractors Ass'n., F. Supp.(E.D. Cal. 1990) (1990 WL 118066, *3) (RICO); Savino v. E.F.Hutton & Co., 507 F. Supp. 1225, 1244 n.22 (S.D.N.Y. 1981) (SEC).

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