Ben-Yishai v. The Syrian Arab Republic
| Decision Date | 28 November 2022 |
| Docket Number | 1:18-cv-3150-RCL |
| Parties | YITZHAK BEN-YISHAI, et al., Plaintiffs, v. THE SYRIAN ARAB REPUBLIC and THE ISLAMIC REPUBLIC OF IRAN, Defendants. |
| Court | U.S. District Court — District of Columbia |
On November 4, 2001, sixteen-year-old Shoshana Ben-Yishai was riding a bus home from school through the French Hill neighborhood of Jerusalem, Israel when a terrorist with an automatic rifle shot and killed her. The Palestinian Islamic Jihad (“PIJ”) claimed responsibility for the attack. Plaintiffs, Shoshana's parents and younger siblings, ask the Court to hold the Syrian Arab Republic (“Syria”) and the Islamic Republic of Iran (“Iran”) liable for materially supporting the PIJ in carrying out the attack. They raise claims under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(c), which guarantees a private cause of action for victims of state-sponsored terrorism. Neither defendant responded to this lawsuit, so the plaintiffs have moved for default judgment.
In this Memorandum Opinion, the Court will set forth its findings of fact and conclusions of law on the plaintiffs' claims. After considering the plaintiffs' motion and evidence applying relevant case law, and taking judicial notice of related cases, the Court will GRANT the plaintiffs' motion for default judgment against Syria and Iran.
The plaintiffs moved for default judgment against Syria and Iran because neither defendant has appeared or defended this lawsuit. See Mot. for Default J, ECF No. 44; Pls.' Mem. in Supp., ECF No. 44-1; Pls.' Proposed Findings of Fact and Conclusions of Law, ECF No. 44-4 (“ ”). But even when a defendant fails to appear, “the entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). The FSIA expressly provides that “[n]o judgment by default shall be entered... against a foreign state... unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C. Cir. 2014). A district court retains discretion “to determine precisely how much and what kinds of evidence the plaintiff must provide” to establish her claim or right to relief. See Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044,1047 (D.C. Cir. 2014). “[I]ndeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required.” Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (internal quotations and citation omitted), vacated and remanded on other grounds sub nom. Opati v. Republic of Sudan, 140 S.Ct. 1601 (2020).
Additionally a plaintiff moving for default judgment “must persuade the trial court” that it may exercise subject matter jurisdiction and personal jurisdiction over the defendant. Karcher v. Islamic Republic of Iran, 396 F.Supp.3d 12, 21 (D.D.C. 2019) (citing Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016)). After all, a default judgment “rendered in excess of a court's jurisdiction is void.” Jerez, 775 F.3d at 422. And a default judgment “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
Before this Court can enter default judgment against defendants, it must “reach its own, independent findings of fact” notwithstanding prior cases implicating the same issues. Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 172 (D.D.C. 2010). “[N]umerous evidentiary sources” can support a default judgment. Id. at 171. Additionally, “a court may take judicial notice of related proceedings and records in cases before the same court.” Id. (internal quotations and citations omitted); Fed.R.Evid. 201(b). The plaintiffs here submitted evidence-personal declarations, declarations by experts, and expert reports. The Court also takes judicial notice of Schertzman Cohen v. Islamic Republic of Iran, No. 17-CV-1214 (JEB), 2019 WL 3037868, *1 (D.D.C. July 11, 2019), which involved the same attack,[1] as well as Cohen v. Islamic Republic of Iran, 238 F.Supp.3d 71 (D.D.C. 2017) and Force v. Islamic Republic of Iran, 464 F.Supp.3d 323 (D.D.C. 2020), which involved similar attacks. With these principles in mind, the Court enters the following findings of fact.
Plaintiffs are Shoshana's immediate family members-her parents, Yitzhak and Miriam, as well as her younger siblings Jacob, Israel,[2] Chana, Yael, and Aviel. Am. Compl., ECF No. 22, ¶¶ 7-12. Shoshana's parents also bring a claim on behalf of her estate. Id. ¶ 7. They sued Syria and Iran[3] under the FSIA, 28 U.S.C. § 1605A(c), alleging that the defendants “provided the Palestine Islamic Jihad with material support and resources, for acts of extra judicial killing within the meaning of [the FSIA], including the French Hill Terrorist Attack, and performed other actions that enabled, facilitated and caused the French Hill Terrorist Attack and harm to the plaintiffs herein.” Id. ¶¶ 13-14. The Amended Complaint in this action advances various theories of liability, including wrongful death, battery, survival, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, aiding and abetting, and vicarious liability. See Id. ¶¶ 61-97. The plaintiffs also seek several forms of damages, such as economic damages, pain and suffering, solatium, and punitive damages. Id. ¶¶ 67-69, 72-73, 77-78, 82-83, 86-87, 90-91, 96.
The plaintiffs first attempted to serve process on the defendants by requesting that the Clerk of the Court-pursuant to 28 U.S.C. § 1608(a)(3)-mail Syria and Iran a summons, complaint, and notice of suit. Aff. Requesting Foreign Mailing, ECF No. 5-7. That attempt at service failed because no company would ship packages to Iran. See 12/11/2019 Summons Return, ECF No. 9; 01/13/2020 Summons Return, ECF No. 12. The plaintiffs then attempted service on Syria and Iran via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). Aff. Requesting Foreign Mailing, ECF No. 15. The plaintiffs successfully served Syria and Iran with a summons, a complaint, a notice of suit, and translations of each under cover of diplomatic note on August 10, 2020 and August 19, 2020, respectively. Return of Service, ECF No. 16 & 17. Both defendants failed to answer the complaint or appear in this litigation within sixty days of service. Accordingly, the Clerk of the Court entered default against Syria on December 3, 2020, Entry of Default, ECF No. 19, and against Iran on February 21, 2021, Entry of Default, ECF No. 24. C. Evidence Connecting Iran and Syria to the Attack and the PI J
To detail Syria and Iran's connection to the PIJ, the Court relies on the expert reports and declarations submitted by plaintiffs in this case as well as the judicial findings in the Cohen, Force, and Schertzman Cohen decisions themselves.
To begin, the Court qualifies seven individuals as experts. The plaintiffs provided the Court with selected materials submitted in the Cohen and Force cases, namely, declarations prepared by and transcripts of testimony from five experts-Dr. Harel Chorev, Dr. Patrick Clawson, Dr. Marius Deeb, Dr. Matthew Levitt, and Col. (Ret.) Arieh Dan Spitzen. See Clawson Deci., ECF No. 41-1 [hereinafter “Clawson Force Deci.”]; Levitt Deci., ECF No. 41-2; Deeb Deci., ECF No. 41-3 [hereafter “Deeb Force Deci.”]; Spitzen Deci., ECF No. 41-4; Levitt and Spitzen Test. Tr., ECF No. 41-5; Clawson and Deeb Test. Tr., ECF No. 41-6; Chorev Deci., ECF No. 41-7; Clawson Deci., ECF No. 41-8 [hereinafter “Clawson Cohen Deci.”]. Plaintiffs also provided the Court with materials unique to this case from three experts-Dr. Marius Deeb, Mr. Michael Soudry, and Dr. Rael Strous. See Deeb Deci., ECF No. 43 [hereinafter “Deeb Ben-Yishai Deci.”]; Soudry Deci., ECF No. 39; Soudry Rep., ECF No. 39-2; Strous Deci., ECF No. 42; Strous Reps., ECF No. 42-2-42-8.
After reviewing these materials, the Court will take judicial notice of expert reports and testimony from the Cohen and Force proceedings. See Fed.R.Evid. 201(b); Rimkus, 750 F.Supp.2d at 171. The Court therefore qualifies the following experts in this case:
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