Ben-rafael v. Islamic Repub. Of Iran ., Civil Action No. 08-0716 (ESH).

• Decision Date: 18 June 2010
• Docket Number: Civil Action No. 08-0716 (ESH).
• Citation: 718 F.Supp.2d 25
• Parties: Elisa Nili Cirilo Peres BEN-RAFAEL, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

718 F.Supp.2d 25

Elisa Nili Cirilo Peres BEN-RAFAEL, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

Civil Action No. 08-0716 (ESH).

United States District Court,District of Columbia.

June 18, 2010.

COPYRIGHT MATERIAL OMITTED.

Emil Hirsch, Paul L. Knight, Nossanam LLP, Philip S. Friedman, Friedman Law, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

This Court previously issued a default judgment in favor of the estate of a victim of terrorism, David Ben-Rafael, and his immediate family members, in their lawsuit against the Islamic Republic of Iran (“Iran”) and the Ministry of Information and Security of Iran (“MOIS”). See Ben-Rafael v. Islamic Republic of Iran, 540 F.Supp.2d 39 (D.D.C.2008) (“ Ben-Rafael I ”). Jurisdiction for that case was based on the Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C. §§ 1602-11. FSIA's immunity exception for state sponsors of terrorism, see id. § 1605(a)(1), which governed both the Court's jurisdiction and plaintiffs' avenues for enforcement of the judgment, was subsequently replaced by language more favorable to plaintiffs. See Pub.L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008). Plaintiffs filed this related action to take advantage of the new statutory provisions. Plaintiffs seek, inter alia, (1) an order confirming the default judgment for money damages originally issued in Ben-Rafael I and (2) declaratory relief classifying the IRGC as an “agency or instrumentality” of Iran so that it will be subject to certain recently-enacted FSIA remedies for execution of judgments under 28 U.S.C. § 1610(g). ¹ (Compl. at 4.)

After defendants Islamic Revolutionary Guard Corps (“IRGC”) and Iran were served, neither entered an appearance or filed a response within sixty days. (Pls.' Aff. of Default ¶¶ 2-4.) The Clerk of the Court entered default, and plaintiffs now move for default judgment against these two defendants. (Mot. for J. by Default and Entry of Final J. [“Pls.' Mot.”] ¶¶ 1, 3.) For the reasons stated herein, the Court grants in part and denies in part plaintiffs' motion.

BACKGROUND

This case is based on the same facts set forth in Ben-Rafael I, 540 F.Supp.2d at 43-51. Because the factual basis for the complaint has not changed since Ben-Rafael I, this Court incorporates by reference the findings of fact set forth therein and merely provides an abbreviated summary for the convenience of the reader. David Ben-Rafael died in the 1992 terrorist bombing of the Israeli embassy in Buenos Aires, Argentina, for which Hezbollah accepted responsibility. Id. at 43. Iran “played a pre-eminent role in the creation of Hezbollah,” id. at 44 (internal quotation marks omitted), has funded Hezbollah since the mid-1980s, id., and “provided material support to Hezbollah in its attack,” thereby “allow[ing] Hezbollah to carry out the embassy bombing.” Id. at 47.

In 2006, fourteen years after David Ben-Rafael was killed in the embassy bombing, several family members and his estate brought suit against Iran and MOIS pursuant to the state-sponsor-of-terrorism exception to sovereign immunity. See 28 U.S.C. § 1605(a)(7). A default judgment was entered for plaintiffs on February 25, 2008. 540 F.Supp.2d at 43.

Less than one month before this Court entered default judgment in Ben-Rafael I, then-President Bush signed into law the National Defense Appropriations Act for Fiscal Year 2008 (“2008 NDAA”), of which § 1083 replaces FSIA's original state-sponsor-of-terrorism exception. ² See Pub.L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008) (repealing 28 U.S.C. § 1605(a)(7) and enacting 28 U.S.C. § 1605A). In addition to preserving the exception to sovereign immunity, the statute as amended by the 2008 NDAA creates an express private right of action against state sponsors of terrorism, 28 U.S.C. § 1605A(c); allows for awards of punitive damages, id.; and, most pertinent to the instant motion, attempts to ease the difficulty of collecting FSIA judgments by entitling plaintiffs to impose liens on property belonging to state sponsors of terrorism. Id. § 1605A(g). ³ In addition, the 2008 NDAA enacted 28 U.S.C. § 1610(g), which allows for the attachment of property “in aid of execution” of FSIA judgments. See Pub.L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008). In particular, under the 2008 NDAA, property subject to attachment includes that owned by “a foreign state against which a judgment is entered under section 1605A” or “an agency or instrumentality of such a state.” 28 U.S.C. § 1610(g)(1).

Because the now-repealed § 1605(a)(7) set the parameters of the Court's jurisdiction in Ben-Rafael I, plaintiffs have been unable to take advantage of new attachment provisions of §§ 1605A and 1608(g). ⁴ Hoping to avail themselves of these statutory provisions, plaintiffs now seek (1) to have default judgment reissued as to defendant Iran ⁵ using the new jurisdictional grant in § 1605A, and (2) for the Court to declare a new defendant, IRGC, subject to the attachment provisions of §§ 1605A(g) and 1608(g) as “an agency or instrumentality” of Iran.

ANALYSIS

I. Jurisdiction Under the FSIA

The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, is the sole basis for obtaining jurisdiction over a foreign state in United States. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Although it provides that foreign states are generally immune from jurisdiction in U.S. courts, see 28 U.S.C. § 1604, a federal district court can obtain personal and subject matter jurisdiction over a foreign entity in certain circumstances. First, a court can obtain personal jurisdiction over a defendant if the plaintiff properly serves the defendant in accordance with 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b). Second, subject matter jurisdiction exists if the defendant's conduct falls within one of the specific statutory exceptions to immunity. See 28 U.S.C. §§ 1605-07 (enumerating exceptions), 1330(a). This Court has jurisdiction because service was proper and defendants' conduct falls within the “state sponsor of terrorism” exception set forth in § 1605A.

A. Service

In Ben-Rafael I, the Court explained FSIA's requirements for service of process upon a foreign state or a political subdivision of a foreign state under Fed.R.Civ.P. 4(j)(1) and 28 U.S.C. § 1608. 540 F.Supp.2d at 52. In this case, on September 8, 2009, plaintiffs effected service on Iran and IRGC in accordance with 28 U.S.C. § 1608(a)(4). (Pls.' Aff. of Default ¶¶ 4-5.)

B. Terrorism Exception to Sovereign Immunity

The “state sponsor of terrorism” exception in the FSIA strips a foreign state of its sovereign immunity where:

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 for such an act if such act or provision of material support or resources 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.

28 U.S.C. § 1605A(a)(1). Thus, defendants' material support for the embassy bombing that killed Ben-Rafael constituted a waiver of sovereign immunity. See Ben-Rafael I, 540 F.Supp.2d at 53-54.

C. As a Related Action

In the alternative, this Court has jurisdiction to hear the case as a related action to Ben-Rafael I. As part of the enactment of § 1605A, Congress anticipated that plaintiffs with ongoing FSIA suits would want to benefit from the newly-enacted provisions and that courts hearing pending suits under § 1605(a)(7) would need jurisdiction to hear related cases after that section's rescission. The 2008 NDAA therefore included a section that grandfathers “related action[s] to timely commenced prior actions under § 1605(a)(7)” into § 1605A's jurisdictional grant. 2008 NDAA § 1083(c)(3). To qualify, the new action must “aris[e] out of the same act or incident” and “commence [ ] not later than the latter of 60 days after-(A) the date of the entry of judgment in the original action; or (B) the date of the enactment of this Act [Jan. 28, 2008].” Id.

For the present case, the latter of the two relevant dates is February 25, 2008, the entry of default judgment in Ben-Rafael I. Plaintiffs commenced this related action exactly sixty days later, on April 25, 2008, ⁶ and because the new complaint arises from the same incident, the Court has jurisdiction over it.

II. Confirming Default Judgment Against Iran

Plaintiffs now apply to the Court for default judgment against Iran. (Pls.' Mot. ¶¶ 1, 3. See Fed.R.Civ.P. 55(b)(2).) Specifically, they seek “to have the Default Judgment entered in [ Ben-Rafael I ] confirmed, declared, and entered as a judgment pursuant to the jurisdictional grant in 28 U.S.C. § 1605A.” (Plaintiffs' Proposed Findings of Fact and Conclusions of Law at 1-2.) Based on its findings of fact and conclusions of law from Ben-Rafael I, the Court will enter judgment against the defaulting defendant Iran.

After plaintiffs effected service through diplomatic channels, Iran had sixty days in which to “serve an answer or other responsive pleading to the complaint.” 28 U.S.C. § 1608(d). The sixty days passed without defendants entering any appearance in the case. (Pls.' Aff. of Default ¶ 5.) Accordingly, and in keeping with Fed.R.Civ.P. 55(a), the Clerk of the Court entered default against defendants on February 23, 2010.

Before entering default judgment, the Court must inquire further to determine if plaintiffs have established their claims “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). In evaluating plaintiffs' claims, the Court “may accept [their] uncontroverted evidence as true and may rely on sworn affidavits.” Oveissi v. Islamic Republic of Iran, 498 F.Supp.2d 268, 272 (D.D.C.2007). The Court is not required to hold an evidentiary hearing. See, e.g....