Ramirez-fiero v. Democratic People's Repub. Of Korea

• Decision Date: 16 July 2010
• Docket Number: Civil No. 08-1367 (FAB).
• Parties: Ruth CALDERON-CARDONA, Luz Calderon-Cardona, Luis Calderon-Cardona, Gloria Calderon-Cardona, Jose Raul Calderon-Cardona, Ana Delia Calderon-Cardona, Hilda Calderon-Cardona, Angel Calderon-Guzman, Miguel Calderon-Guzman, Salvador Calderon-Martinez, Angel Luis Ramirez-Colon, Antonia Ramirez-Fiero, et al., Plaintiffs, v. DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, Cabinet General Intelligence Bureau, John Doe, Defendants.
• Court: U.S. District Court — District of Puerto Rico

723 F.Supp.2d 441

Ruth CALDERON-CARDONA, Luz Calderon-Cardona, Luis Calderon-Cardona, Gloria Calderon-Cardona, Jose Raul Calderon-Cardona, Ana Delia Calderon-Cardona, Hilda Calderon-Cardona, Angel Calderon-Guzman, Miguel Calderon-Guzman, Salvador Calderon-Martinez, Angel Luis Ramirez-Colon, Antonia Ramirez-Fiero, et al., Plaintiffs,

v.DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, Cabinet General Intelligence Bureau, John Doe, Defendants.

Civil No. 08-1367 (FAB).

United States District Court,D. Puerto Rico.

July 16, 2010.

Manuel San-Juan-Demartino, Manuel San Juan Law Office, San Juan, PR, PHV Joshua Glatter, New Jersey, NJ, PHV Robert Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, PHV Aaron A. Schlanger, PHV Gary M. Osen, PHV Naomi Blank Weinberg, Osen LLC, Oradell, NJ, for Plaintiffs.

OPINION AND ORDER

BESOSA, District Judge.

Introduction

This is a civil action for wrongful death, personal injury and related torts pursuant to the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1605A, arising from a terrorist machine-gun attack at Israel's Lod Airport ¹ on May 30, 1972 (the “Lod Airport Attack”).

American citizen Carmelo Calderon-Molina (“Carmelo”) was murdered in the Lod Airport Attack and American citizen Pablo Tirado-Ayala (“Pablo”) was injured in the attack. ² The plaintiffs are the family members and estates of Carmelo and Pablo. ³

Plaintiffs allege that the Lod Airport Attack was carried out as a joint operation by the Japanese Red Army (“JRA”) and the Popular Front for the Liberation of Palestine (“PFLP”) terrorist organizations, with the material support of the named defendants, the Democratic People's Republic of North Korea (“North Korea”) and North Korea's Cabinet General Intelligence Bureau (“CGIB”) (“defendants”). ⁴

Plaintiffs' Complaint was filed on March 27, 2008. (Docket No. 1) As required by section 1608(a)-(b) of the FSIA, the Clerk initiated service of process on the defendants, which process included copies of the Complaint, summonses and a Notice of Suit, and Korean-language translations of those documents. (Docket No. 7)

Service was effected on North Korea and CGIB on July 21, 2008, pursuant to the provisions of FSIA section 1608(a)-(b). (Docket No. 8)

After the sixty-day period provided by section 1608 had passed without the defendants filing an answer or otherwise responding to this action, plaintiffs moved for entry of default against defendants pursuant to Rule 55(a). (Docket No. 8) On October 31, 2008, the Court entered default against defendants North Korea and CGIB. (Docket No. 9)

Notwithstanding defendants' default, the FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e).

Thus, pursuant to section 1608(e), this Court cannot enter default judgment in this case unless it finds that the plaintiffs have shown “by evidence that is satisfactory to the Court” that the Court has jurisdiction and that the defendants are liable. See e.g. Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1, 12 (D.D.C.2005) (“Every case brought against a foreign state raises two distinct and crucial legal questions. First, the Court must look to whether it has jurisdiction to hear the claim. In the context of claims implicating the parameters of the FSIA, this jurisdictional determination is guided by an inquiry into whether the case falls within one of the statutory exceptions to the sovereign immunity of a foreign state. Second, the Court must consider the actual liability of the defendant foreign sovereign.”) (citations omitted).

At the same time, pursuant to section 1608(e) “the Court may accept as true the plaintiffs' uncontroverted evidence.” Wachsman v. Islamic Republic of Iran, 603 F.Supp.2d 148, 155 (D.D.C.2009) (internal quotations omitted) (citing Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000)). See also Botvin v. Islamic Republic of Iran, 604 F.Supp.2d 22, 26 (D.D.C.2009) (same); Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C.2008) (same); Alejandre v. Republic of Cuba, 996 F.Supp. 1239, 1243 (S.D.Fla.1997) (same).

The “satisfactory to the court” standard contained in 28 U.S.C. § 1608(e) is identical to the standard for entry of default judgments against the United States government in Rule 55(e). Compañia Interamericana Export-Import, S.A. v. Compañia Dominicana de Aviacion, 88 F.3d 948, 951 (1996).

For the reasons set forth below, the Court finds that plaintiffs have clearly demonstrated both the Court's jurisdiction and the defendants' liability for their injuries “by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e).

Findings of Fact

This Court conducted an evidentiary hearing on December 2, 2009 and December 3, 2009, at which plaintiffs presented evidence establishing, to section 1608(e)'s satisfaction, the following facts.

On May 30, 1972, American citizens Carmelo Calderon-Molina (“Carmelo”) and Pablo Tirado-Ayala (“Pablo”) arrived at Israel's Lod Airport near Tel Aviv, as part of a large group of Puerto Rican pilgrims touring Israel and visiting the Christian religious sites in the Holy Land. For many of the participants on this church-organized trip, this was to be the experience of a lifetime, and one for which they had saved up money to finance for many years.

Three members of the JRA, disguised as regular passengers, who had just disembarked at Lod Airport on a flight arriving from Italy, recovered their luggage from the baggage carousel. They then removed automatic weapons and grenades from their luggage and began shooting and throwing explosives indiscriminately into the crowd of innocent civilians which included Carmelo, Pablo and other passengers ⁵ located in the terminal building.

At the time of the Lod Airport Attack in 1972, there were no armed Israeli security personnel stationed inside Lod Airport, ⁶ and therefore the JRA terrorists encountered no organized resistance. At some point during the Lod Airport Attack, however, two of the terrorists were felled by self-inflicted wounds (one from a ricocheting bullet and the other by a prematurely-detonated grenade), at which time the third terrorist raced outside of the terminal building with the intention of blowing up several aircraft located on the tarmac. (Exhibit No. 2, ¶ 24)

This third terrorist, Kozo Okamoto (“Kozo”), was eventually neutralized by Claude Chanan Zeitoun (“Zeitoun”), a Lod airport employee who, though unarmed, chased down Kozo near the runway, knocked away his automatic rifle, and restrained him until the police arrived. (Exhibit No. 2, ¶¶ 12-18)

When the slaughter ceased, 26 innocent persons had been murdered and over 80 persons had been wounded by the JRA terrorists. (Trial Transcript, Dec. 2, 2009, p. 27, ln. 18 and 23) Seventeen of the murdered victims were Puerto Rican pilgrims. Carmelo was killed in the Lod Airport Attack; his last act before dying was to shield a pregnant woman with his body, absorbing bullets that otherwise would likely have killed her and her unborn child. ⁷ Pablo was wounded in the Lod Airport Attack; for him and his family the attack became a watershed experience that negatively affected the quality of his life in significant ways, including severe psychological injuries which grievously disabled him and persisted for his entire life. (Trial Transcript, Dec. 3, 2009, p. 109, ln. 18-25)

During interrogations with Israeli authorities, Kozo admitted that his fellow attackers and he were members of the JRA and that the attack had been carried out in conjunction with the PFLP. The PFLP also publicly claimed responsibility for the attack; this claim was widely reported in the international press. Kozo was tried and convicted in an Israeli court for his involvement in the Lod Airport Attack. He received a life sentence.

Kozo was released from jail in 1985 as part of a prisoner release, and is believed to be living in Lebanon. (Trial Transcript, Dec. 2, 2009, p. 116, ln. 5 and p. 117, ln. 12)

Carmelo's widow, Eladia Cardona-Rosario (“Eladia”) and his ten children (eight with Eladia and two from a prior marriage) have suffered greatly from the loss of their loving spouse and father. Pablo and his family have suffered from his psychological injuries and chronic deep depression caused by the Lod Airport Attack and Pablo's consequent failure to be able to resume his prior, functioning lifestyle, including his inability to maintain employment.

The plaintiffs have established defendants' liability for the Lod Airport Attack primarily through the testimony of three expert witnesses: Professor Barry Rubin (“Prof. Rubin”), Professor Bruce Bechtol (“Prof. Bechtol”), and Professor Rohan Gunaratna (“Prof. Gunaratna”).

Two eyewitnesses to the Lod Airport Attack, Ze'ev Sarig and Claude Chanan Zeitoun, presented affidavit testimony (Exhibit Nos. 1 and 2); Mr. Sarig also testified before the Court at trial. (Trial Transcript, Dec. 2, 2009, pp. 9-34) Each of the expert witnesses and two fact witnesses also submitted affidavit testimony as exhibits to plaintiffs' Pretrial Memorandum that was submitted prior to the trial. (Docket No. 23) ( See also Exhibit Nos. 1, 2, 4, 6, and 8)

Professors Rubin, Bechtol, and Gunaratna offered documentary evidence, including government reports, publications, and other information, in addition to their affidavit testimony and oral testimony at trial.

Although some of plaintiffs' evidence is cumulative, given the level of detail and insight the witnesses provided regarding the support by defendants to PFLP and JRA terrorism generally, and the Lod Airport Attack specifically, the Court will quote at length from their expert testimony.

A. Testimony of Professor Barry Rubin

Plaintiffs presented affidavit and trial testimony by Prof. Rubin, the director and a member of the faculty of the Global Research in International Affairs Center (GLORIA...