Estate of Yael Botvin v. Heideman, Nudelman & Kalik, P.C.
| Decision Date | 27 September 2022 |
| Docket Number | 1:21-cv-3186-RCL |
| Parties | ESTATE OF YAEL BOTVIN, et al., Plaintiffs, v. HEIDEMAN NUDELMAN & KALIK, P.C., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This case concerns a legal malpractice claim stemming from lengthy Foreign Sovereign Immunities Act (“FSIA”) litigation before multiple courts in this District. Plaintiffs are Julie Goldberg-Botvin, Tamar Botvin Dagan Michal Botvin, and the Estate of Yael Botvin (together “Botvin Family”), recipients of two judgments against the Islamic Republic of Iran (“Iran”) totaling more than $42 million in damages. Defendants are The Heideman Law Group, P.C.- doing business as Heideman Nudelman & Kalik, P.C.-Richard Heideman, Noel Nudelman, and Tracy Reichman Kalik (together, “Heideman defendants”) plaintiffs' counsel in their FSIA litigation. The Botvin Family claims that the Heideman defendants committed legal malpractice by moving too slowly and making strategic errors during the course of their litigation, causing a delay in the Botvin Family's receipt of their judgments and forfeiting the Botvin Family's opportunity to participate in a privately-negotiated settlement and disbursement of U.S.-based Iranian assets. The Heideman defendants filed a motion to dismiss, denying the Botvin Family's allegations and arguing that plaintiffs failed to meet the causation requirements for legal malpractice claims, among other arguments.
After considering the motion, the applicable law, and the parties' briefing, this Court agrees with the Heideman defendants and will therefore GRANT the Heideman defendants' motion and DISMISS WITH PREJUDICE the plaintiffs' present lawsuit.
The Botvin Family's legal malpractice claim relates to litigation spanning more than a decade and occurring amidst monumental changes in the scope and function of the FSIA- precipitated by both congressional and judicial developments-as well as unprecedented action by private parties. Therefore, in order to properly contextualize the current case, the Court will provide a brief overview of these events along with a summary of the Botvin Family's litigation.
The FSIA, which now guarantees a private cause of action for victims of state-sponsored terrorism, see 28 U.S.C. § 1605A(c), was not always such a robust tool. The FSIA established a default presumption that foreign states are immune from suit unless one of several enumerated exceptions applies. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89, (1983); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002). Congress amended the FSIA in 1996 to include an exception for injuries caused by state sponsors of terrorism. See Mandatory Victims Restitution Act, Pub. L. No. 104-132, § 221(a)(1)(C), 110 Stat. 1214, 1241 (1996). This exception was codified at 28 U.S.C. § 1605(a)(7). See In Re Islamic Repub. of Iran Terrorism Litig., 659 F.Supp.2d 31, 39 (D.D.C. 2009). While it was clear that § 1605(a)(7) abrogated the presumption of sovereign immunity in state-sponsored terrorism cases, “it was far from clear whether that statute, § 1605(a)(7), in and of itself, served as a basis for an independent federal cause of action against foreign state sponsors of terrorism.” Id. at 42. Moreover, “questions remained regarding whether any civil claims or money damages were available by virtue of that enactment.” Id. at 43. The next year, Congress attempted to clarify the confusion through the so-called “Flatow Amendment,” which stated that “courts of the United States may maintain jurisdiction under section 1605(a)(7)” and that “money damages which may include solatium, pain, and suffering, and punitive damages” were available for plaintiffs in § 1605(a)(7) actions. See Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104-208, § 589, 110 (1996), 110 Stat. 3009-1, 3009-172 (codified at 28 U.S.C. § 1605 note).
Yet the state of the law soon became unsettled. In 2004, the Circuit held that “[p]lainly neither § 1605(a)(7) nor the Flatow Amendment, separately or together, establishes a cause of action against foreign state sponsors of terrorism.” Cicippio-Puleo v. Islamic Repub. of Iran, 353 F.3d 1024, 1027 (D.C. Cir. 2004). Thus, § 1605(a)(7) became merely a jurisdiction-conferring statute offering litigants a pass-through to causes of actions that may exist under state law. See Bodoff v. Islamic Repub. of Iran, 424 F.Supp.2d 74, 83 (D.D.C. 2006). In the wake of the Circuit's decision, plaintiffs in § 1605(a)(7) actions were required rely on state tort law as the source of substantive law for their causes of action. See, e.g., Peterson v. Islamic Repub. of Iran, 515 F.Supp.2d 25, 41-60 (D.D.C. 2007) ().
In 2008, Congress again amended the FSIA. See 2008 National Defense Appropriations Act for Fiscal Year 2008 (“2008 NDAA”), Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44. That further amendment, codified at 28 U.S.C. § 1605A, made several notable changes: (1) it furnished a private cause of action against state sponsors of terrorism; (2) it expressly authorized punitive damages in these actions; (3) it permitted compensation for special masters; and (4) it added more provisions to assist plaintiffs with recovering assets to satisfy their judgments. See Id. at § 1605A; In Re Islamic Repub. of Iran Terrorism Litig., 659 F.Supp.2d at 79.
The 2008 NDAA also provided two avenues for 28 U.S.C. § 1605A to be applied retroactively to cases previously filed under 28 U.S.C. § 1605(a)(7). The first, § 1083(c)(2), required courts, upon a plaintiffs motion, to treat § 1605(a)(7) motions as § 1605A motions if the original motions: (1) relied on § 1605(a)(7) or the Flatow Amendment to create a cause of action, (2) were adversely affected by the Circuit's determination that those provisions failed to create a cause of action, and (3) were pending before a court as of the date of the 2008 NDAA's enactment. See In Re Islamic Repub. of Iran Terrorism Litig., 659 F.Supp.2d at 63-64; 2008 NDAA, § 1083(c)(2)(A)(ii)-(iv). The second, § 1083(c)(3), afforded plaintiffs the opportunity to file anew § 1605A action within sixty days of the enactment of § 1605A or sixty days of a judgment on a § 1605(a)(7) pass-through claim. See In Re Islamic Repub. of Iran Terrorism Litig., 659 F.Supp.2d at 64; 2008 NDAA, § 1083(c)(3)(A)-(B).
With this new provision on the books, litigants had a choice: continue their lawsuits under § 1605(a)(7) or refile their cases under § 1605A. This case concerns counsel's choice to do both.
The court has previously detailed the factual background of the litigation underpinning plaintiffs' claims several times. See Estate of Botvin v. Islamic Repub. of Iran, 510 F.Supp.2d 101, 102-03 (D.D.C. 2007) (fBotvin D); Estate of Botvin v. Islamic Repub. of Iran, 604 F.Supp.2d 22, 23-24 (D.D.C. 2009) (“Botvin ID); Estate of Botvin v. Islamic Repub. of Iran, 684 F.Supp.2d 34, 36-37 (D.D.C. 2010) (f Botvin IID); Estate of Botvin v. Islamic Repub. of Iran, 772 F.Supp.2d 218, 221-22 (D.D.C. 2011) (f Botvin TV”); Estate of Botvin v. Islamic Repub. of Iran, 873 F.Supp.2d 232,234-36 (D.D.C. 2012) (f Botvin V'); Goldberg-Botvin v. Islamic Repub. of Iran, 938 F.Supp.2d 1, 4 (D.D.C. 2013). However, given the lengthy nature of the litigation, the various proceedings involved, and the specific facts at issue in this case, the Court will briefly reiterate the most salient factual points below.
Plaintiffs' current claims arise from litigation originally filed more than fifteen years ago related to a terrorist bombing committed in Israel. On September 4, 1997, three suicide bombers entered the Ben Yehuda Street pedestrian mall in Jerusalem and “detonated bombs packed with nails, screws, pieces of glass, and chemical poisons.” Compl. ECF No. 1, ¶ 1. The explosion killed five people and wounded nearly two hundred more. See id. ¶ 2. Fourteen-y ear-old Yael Botvin, the daughter of plaintiff Julie Goldberg-Botvin and the sister of plaintiffs Tamar Botvin Dagan and Michal Botvin, was among those killed. See id. ¶ 3; Botvin I, 510 F.Supp.2d at 102. Yael Botvin's estate, represented by administrator Russell Ellis, is also a plaintiff in this action. See Compl. ¶ 4. Members of the Hamas terrorist organization later claimed responsibility for the bombing. Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 262 (D.D.C. 2003).
In February 2004, one month after the Cicippio-Puleo decision and nearly seven years after the attack, the Botvin Family retained the Heideman defendants as one-third of a legal team to represent the Botvin Family in a potential lawsuit against Iran. See Compl. ¶ 28; Defs.' Mem., ECF No. 5-1, at 7; Retainer Agreement, Ex. D to Defs.' Mot., ECF No. 5-6.
On January 31, 2005, the Heideman defendants filed, on behalf of the Botvin Family and other plaintiffs, a complaint against Iran seeking damages resulting from the bombing. See Compl. Estate of Botvin v. Islamic Repub. of Iran No. 05-cv-22 (RMU) [hereinafter "Botvin v. Iran”}, ECF No. 1. According to the Heideman defendants, the complaint “was carefully drafted” in order “to avoid relying exclusively on § 1605(a)(7) or the Flatow Amendment as the source of a cause of action against Iran” because Cicippio-Puleo had recently held that neither statutory provision created a cause of action. Defs.' Mem. at 10. The complaint cited 28 U.S.C. § 1605(a)(7) for jurisdiction[1] though it clearly asserted the common law causes of action of' wrongful death, survival,...
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