Borochov v. Islamic Republic of Iran

• Docket Number: Case No. 1:19-cv-02855 (TNM)
• Decision Date: 04 March 2022
• Citation: 589 F.Supp.3d 15
• Parties: Eli M. BOROCHOV, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

589 F.Supp.3d 15

Eli M. BOROCHOV, et al., Plaintiffs,

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

Case No. 1:19-cv-02855 (TNM)

United States District Court, District of Columbia.

Signed March 4, 2022

Robert Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, for Plaintiffs Eli M. Borochov, Ronen Steven Borochov, Devora Sue Borochov, Shari Mayer Borochov, Josef S. Borochov, Shira Nechama Borochov, Abraham M. Borochov, Yoav Golan, Rotem Shoshana Golan, Raphael Golan, Yehudit Golan, Matan G. Golan, Yael Golan Inbar, Nadav Golan, Shai Fishfeder, Efrat Fishfeder, Ohad Fishfeder, Omer Fishfeder, Shiri Fishfeder, Cici Jacobson, Eddy Jacobson, Chaim Goldwater, Esther Goldwater, Shmuel Gorfinkle, Sara Gorfinkle, Esther Fishfeder, David Fishfeder.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

This action for compensatory and punitive damages arises under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605A. It concerns two 2015 terrorist attacks in Israel perpetrated by Hamas. Nineteen Plaintiffs—some U.S. citizens, some Israeli—sue the States of Iran and Syria (together, the States) for injuries suffered by the victims of the attacks and the emotional injuries suffered by the victims’ immediate families. Plaintiffs allege that the States provided material support and resources to Hamas.

The States did not respond or appear, and Plaintiffs now move for default judgment. The Court finds that Plaintiffs successfully established personal and subject matter jurisdiction under 28 U.S.C. § 1605A. They have also proved that the States are liable under federal and Israeli law. The U.S. Plaintiffs have supported their request for compensatory and punitive damages. The Israeli Plaintiffs have not. The Court thus will grant in part and deny in part the motion for default judgment.

I. BACKGROUND

The terrorist attacks at issue occurred in Israel in 2015. See Amended Compl. (Compl.) ¶¶ 53, 67, ECF No. 6. Plaintiffs allege that Hamas, an Islamic organization committed to the "destruction of the State of Israel," id. ¶ 30, perpetrated the attacks with "material support and resources" from the States, id. ¶ 2.

The Foreign Sovereign Immunities Act (FSIA) generally immunizes foreign sovereigns from suits in federal courts, but "that grant of immunity is subject to a number of exceptions." Mohammadi v. Islamic Repub. of Iran , 782 F.3d 9, 13–14 (D.C. Cir. 2015). Once an exception applies, the foreign state loses its immunity. See Bell Helicopter Textron, Inc. v. Islamic Repub. of Iran , 734 F.3d 1175, 1182–83 (D.C. Cir. 2013). One such exception, known as the "terrorism exception," waives sovereign immunity for countries providing material support to terrorist organizations. See 28 U.S.C. § 1605A. Plaintiffs bring their case under this exception. See Compl. ¶¶ 28–29.

Because Iran and Syria did not respond, Plaintiffs move for default judgment. See Plaintiffs’ Mot. for Default J. (Pls.’ Mot.), ECF No. 55-1. Entry of default judgment is "not automatic." Mwani v. Bin Laden , 417 F.3d 1, 6 (D.C. Cir. 2005). Before the Court can enter default judgment, Plaintiffs must establish subject matter jurisdiction and personal jurisdiction. See Jerez v. Repub. of Cuba , 775 F.3d 419, 422 (D.C. Cir. 2014) ("A default judgment rendered in excess of a court's jurisdiction is void."). Section 1605A provides a mechanism for Plaintiffs to show both types of jurisdiction over a non-responsive sovereign.

The Court's analysis thus focuses on whether Plaintiffs have properly pled all elements of a claim under § 1605A. To do so, Plaintiffs must show that the States supported the terrorist groups responsible for the attacks at issue. Plaintiffs have submitted expert declarations to make those showings. See Expert Reports of Rael Strous, ECF Nos. 50, 51; Expert Declaration of Dr. Alan Friedman (Friedman Decl.), ECF No. 53; Expert Declaration of Arieh Spitzen (Spitzen Decl.), ECF No. 54. Plaintiffs also rely on expert declarations from an earlier case in this district. See Declaration of Benedetta Berti (Berti Decl.), ECF No. 29, Force v. Islamic Repub. of Iran , No. 16-cv-1468 (D.D.C.); Declaration of Dr. Marius Deeb (Deeb Decl.), ECF No. 30, Force v. Islamic Repub. of Iran , No. 16-cv-1468 (D.D.C.); Declaration of Patrick Clawson (Clawson Decl.), ECF No. 32, Force v. Islamic Repub. of Iran , No. 16-cv-1468 (D.D.C.).¹

The Court assesses this evidence and makes findings of fact before proceeding to findings of law. See Selig v. Islamic Repub. of Iran , 573 F. Supp. 3d 40, 51, No. 19-cv-2889 (TNM) (D.D.C. Nov. 22, 2021) (accepting expert declarations as sufficient to meet plaintiffs’ evidentiary burden).

II. FINDINGS OF FACT

A. Hamas

Members of the Muslim Brotherhood founded Hamas in 1987–88. See Berti Decl. ¶ 11. Hamas intends to liberate Palestine through jihad and to "create an Islamic state" in Israel. Deeb Decl. ¶ 11. Hamas advocates "direct and indirect attacks" on Israeli civilians and military personnel to advance these goals. Berti Decl. ¶ 11. In the years since Hamas's founding, those attacks have come as kidnappings, rocket attacks, and other bombings. See generally id. ¶¶ 15–16.

Hamas combines its military and terror activities with political and social efforts. See Spietzen Decl. ¶ 25. Hamas has even achieved political success, winning in 2006 a plurality of seats in the Palestinian parliament. See id. ¶ 28. One year later, Hamas seized power in the Gaza Strip, a Palestinian-majority area in the southwest of Israel. See id. Beyond that political influence, Hamas seeks to dominate Palestinian society through several social institutions and ostensibly charitable bodies. See id. ¶ 29. Dr. Spietzen testifies that these efforts allow Hamas to appear reliable to Palestinians, thereby encouraging more of them to support Hamas's activities, including ones focused on terrorism. See id. ¶ 29–30.

B. Syrian Support for Hamas

Hamas's leadership resided in Syria from about 2000–2012. See Deeb Decl. ¶ 22. Although that residency predates the attacks here, Plaintiffs’ experts assert that Hamas would not have the capacity for such attacks without Syria's support. See Berti Decl. ¶ 50 ("[W]ithout the support of a prominent Arab state like Syria to lend it legitimacy, [Hamas] would be more isolated and unable to grow, develop, expand, and solidify itself as a major player on the Palestinian political and military scene, as Hamas has done."). The experts identify four ways in which Syria supported Hamas.

First, safe haven. The organization moved its political headquarters to Damascus in 2000, see id. ¶ 25, and Syria's support gave Hamas a "public platform," id. ¶ 26. Hamas's leaders, all designated as terrorists by the United States, could freely meet in Damascus. See id. ¶ 34. By hosting Hamas, Syria gave it "symbolic validation, political support, [and] legitimacy" through which Hamas could boost its credibility and stature. Id. ¶ 37.

Second , an operational base. Hamas used the friendly confines of Damascus to orchestrate military efforts on the ground in Israel. Hamas carried out its most lethal suicide bombings through Syrian operatives, see id. ¶ 41, and Hamas's top military commander even moved to Damascus, see id. ¶ 42. Dr. Berti confirms that Hamas's political leaders in Gaza needed approval from Damascus before they could ratify an Israeli offer for a prisoner exchange. See id. ¶ 43. Instructions for various attacks in Israel also came directly from Damascus. See Deeb Decl. ¶ 15. The Syrian government did nothing to "forcefully or systematically" crack down on Hamas's military planning. Berti Decl. ¶ 44.

Indeed, Syria once offered aid "as an incentive" for more suicide attacks in Israel. Id. ¶ 45.

Third , a political hub. Through Syria's generosity, Damascus became Hamas's "diplomatic and public relations base." Id. ¶ 47. Hamas used that base to organize political events and to influence Palestinian politics. See id. In Damascus, Hamas hosted strategic discussions with other Palestinian factions, and those discussions often allowed greater coordination between the groups’ activities in Israel. See id. ¶ 48. This political visibility made Hamas more popular and influential. See id. ¶ 50.

Fourth , equipment, funding, and logistical support. Plaintiffs’ experts provide less detail on this point but assert that Iran routed weapons shipments to Hamas through Syria. See id. ¶ 53. And the Jordanian government claimed that some Hamas weapons originated in Syria. See id. ¶ 54. Syria also provided training grounds where Hamas fighters learned "essential tactical skills" for future attacks. Id. ¶ 55; see Deeb Decl. ¶ 19. Plaintiffs’ experts conclude that the "tactical know-how" learned during Syria's protection allowed Hamas to "transform itself into a leading terrorist group with solid infrastructure and the power" to disrupt the Israeli-Palestinian peace process. Deeb Decl. ¶ 23.

Based on the above unrebutted expert testimony, the Court finds that Syria provided material support in the form of operational freedom, political legitimacy, protection, and training to Hamas. Although that support apparently ended before the attacks at issue, the expert testimony confirms that without it, Hamas could not have undertaken these attacks. On identical evidence, Judge Moss reached the same conclusion. See Force v. Islamic Repub. of Iran , 464 F. Supp. 3d 323, 367–68 (D.D.C. 2020).

C. Iranian Support for Hamas

Plaintiffs rely on Dr. Patrick Clawson to make their case against Iran. As he explains, the U.S. State Department has long known that Iran uses its intelligence services "to facilitate and conduct terrorist attacks." Clawson Decl. ¶ 25. Supporting terrorist groups "is an official policy of the Iranian government." Id. ¶ 26. Those groups include "anti-Israel terrorism of all sorts," and Iran has supported Hamas for the past 30 years. Id. ¶¶ 28, 30.

Dr. Clawson discusses three specific ways Iran supports Hamas. First ,...