Estates of Ungar v. The Palestinian Authority, No. C.A.No. 00-105L (D. R.I. 1/27/2004), C.A.No. 00-105L.

• Decision Date: 27 January 2004
• Docket Number: No. C.A.No. 00-105L.,C.A.No. 00-105L.
• Parties: THE ESTATES OF YARON UNGAR AND EFRAT UNGAR BY AND THROUGH THE ADMINISTRATOR OF THEIR ESTATES DAVID STRACHMAN; DVIR UNGAR, MINOR, BY HIS GUARDIANS AND NEXT FRIEND, PROFESSOR MEYER UNGAR; JUDITH UNGAR; RABBI URI DASBERG; JUDITH DASBERG (INDIVIDUALLY AND IN THEIR CAPACITY AS LEGAL GUARDIANS OF PLAINTIFFS DVIR UNGAR AND YISHAI UNGAR); AMICHAI UNGAR; DAFNA UNGAR; AND MICHAL COHEN, Plaintiffs,<SMALL><SUP>1</SUP></SMALL>,<SMALL><SUP>6</SUP></SMALL> v. THE PALESTINIAN AUTHORITY (A.K.A. &#34;THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY&#34;); THE PALESTINE LIBERATION ORGANIZATION; YASSER ARAFAT; JIBRIL RAJOUB; MUHAMMED DAHLAN; AMIN AL-HINDI; TAWFIK TIRAWI; RAZI JABALI; HAMAS &#x2014; ISLAMIC RESISTANCE MOVEMENT (A.K.A. &#34;HARAKAT AL-MUQAWAMA AL-ISLAMIYYA&#34;) ) ABDEL RAHMAN ISMAIL ABDEL RAHMAN GHANIMAT; JAMAL ABDEL FATAH TZABICH AL HOR; RAED FAKHRI ABU HAMDIYA; IBRAHIM GHANIMAT; AND IMAN MAHMUD HASSAN FUAD KAFISHE, Defendants.<SMALL><SUP>2</SUP></SMALL>,<SMALL><SUP>7</SUP></SMALL>

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THE ESTATES OF YARON UNGAR AND EFRAT UNGAR BY AND THROUGH THE ADMINISTRATOR OF THEIR ESTATES DAVID STRACHMAN; DVIR UNGAR, MINOR, BY HIS GUARDIANS AND NEXT FRIEND, PROFESSOR MEYER UNGAR; JUDITH UNGAR; RABBI URI DASBERG; JUDITH DASBERG (INDIVIDUALLY AND IN THEIR CAPACITY AS LEGAL GUARDIANS OF PLAINTIFFS DVIR UNGAR AND YISHAI UNGAR); AMICHAI UNGAR; DAFNA UNGAR; AND MICHAL COHEN, Plaintiffs,¹,⁶
v.
THE PALESTINIAN AUTHORITY (A.K.A. "THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY"); THE PALESTINE LIBERATION ORGANIZATION; YASSER ARAFAT; JIBRIL RAJOUB; MUHAMMED DAHLAN; AMIN AL-HINDI; TAWFIK TIRAWI; RAZI JABALI; HAMAS — ISLAMIC RESISTANCE MOVEMENT (A.K.A. "HARAKAT AL-MUQAWAMA AL-ISLAMIYYA") ) ABDEL RAHMAN ISMAIL ABDEL RAHMAN GHANIMAT; JAMAL ABDEL FATAH TZABICH AL HOR; RAED FAKHRI ABU HAMDIYA; IBRAHIM GHANIMAT; AND IMAN MAHMUD HASSAN FUAD KAFISHE, Defendants.²,⁷ No. C.A.No. 00-105L. United States District Court, D. Rhode Island. January 27, 2004. MEMORANDUM AND ORDER

RONALD R. LAGUEUX, District Judge.

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This matter is before the Court on Plaintiffs' motion to enter a final judgment against the Hamas Defendants pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The Hamas Defendants include Hamas — Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyva")(hereinafter, Hamas), and the following individual Hamas operatives who are responsible for the shooting attack that killed Yaron and Efrat Ungar: Abdel Rahman Ismail Abdel Rahman Ghanimat, Jamal Abdel Fatah Tzabich Al Hor, Raed Fakhri Abu Hamdiya, Ibrahim Ghanimat, and Iman Mahmud Hassan Faud Kafishe, ("the individual Hamas defendants"). Plaintiffs request that this Court: 1)adopt the Report and Recommendation issued by Magistrate Judge David L. Martin on July 3, 2003 and grant their motion to enter a default judgment against Hamas; 2) determine that there is no just reason for delaying the entry of a final judgment; and 3)direct the Clerk to enter a final judgment consistent with the Report and Recommendation, plus prejudgment interest.

The facts of this case are described at length in this writer's previous opinions. See Ungar I, 153 F. Supp. 2d 76, 82-85 (D.R.I. 2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp. 2d 40, 41-43 (D.R.I. 2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic

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events and extensive procedural history underlying this litigation. It suffices to say that on June 13, 2002, this writer referred Plaintiffs' Motion to Enter Default Judgment Against Hamas and the individual Hamas defendants to Magistrate Judge David L. Martin for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 32(a). In July of 2002, Judge Martin held a three day hearing on Plaintiffs' motion to enter a default judgment and took the matter under advisement.

Judge Martin reviewed the submitted memoranda and exhibits, performed independent research, and then issued an extensive Report and Recommendation on July 3, 2003. He recommended that this Court grant Plaintiffs' motion to enter a default judgment against Hamas but deny the motion as to the individual Hamas defendants and dismiss the claims against those defendants for lack of personal jurisdiction. Report and Recommendation, at 63. Judge Martin also recommended that this Court award Plaintiffs a total of $116,409,123.00 in damages, plus prejudgment interest, attorneys fees of $65,621.25, and costs of $1,437.72. Id. at 63. However, the Report and Recommendation did not direct this Court to any legal authority supporting the prejudgment interest award and was silent on the applicable interest rate. On July 10, 2003, during a hearing on related matters, this writer suggested that Plaintiffs provide the Court with an analysis of the legal

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basis for awarding prejudgment interest and the appropriate interest rate.

The time period for filing objections to the Report and Recommendation set forth in Rule 72(b) of the Federal Rules of Civil Procedure and Local Rule 32 elapsed on July 22, 2003, with no objection having been filed. Plaintiffs filed the present motion on August 18, 2003, and submitted the requested analysis regarding prejudgment interest and a proposed decision and order. This Court heard oral argument on October 1, 2003, and took the matter under advisement. At this writer's request, Plaintiffs later submitted a supplemental memorandum on the issue of whether prejudgment interest is permissible on an award of punitive or treble damages. The matter is now in order for decision.

This Court accepts and adopts Judge Martin's Report and Recommendation except as hereafter noted regarding prejudgment interest. Judge Martin recommended that this Court award Plaintiffs prejudgment interest but did not recommend a particular rate of interest to apply. Report and Recommendation, at 62. Plaintiffs urge this Court to award prejudgment interest at a rate of nine percent per annum. Mem. in Supp. of Pls.' Mot. for Entry of Final J. Against Hamas Pursuant to Fed. R. Civ. P. 54(b), at 9 (citing Chang v. Univ. of R.I., 606 F. Supp. 1161, 1275 (D.R.I. 1985)). Plaintiffs cite to this Court's longstanding practice of applying a nine percent interest rate in

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civil rights actions and argue that there is no reason to award victims of terrorist acts any less. Id. They ask that interest accrue from June 9, 1996, (the date of this tragic incident) on the entire amount of the proposed judgement or, alternatively, on the original compensatory damages. Pls.' Supplemental Mem. in Supp. of their Mot. for Entry of Final J. Against Hamas Pursuant to Fed. R. Civ. P. 54(b), at 3.

Plaintiffs' Request for Prejudgment Interest

This Court need not decide the applicable prejudgment interest rate or whether such interest applies to all or part of the judgment for two reasons. First, the congressional purpose behind 18 U.S.C. § 2333 was to deter acts of international terrorism and this Court will not add prejudgment interest to the substantial penalties of treble damages, court costs, and attorney's fees already provided for by Congress. Second, this Court finds the treble damages provision of 18 U.S.C. § 2333 overwhelmingly punitive, which makes an award of prejudgment interest inappropriate. Therefore, this Court declines to adopt Judge Martin's recommendation that Plaintiffs be awarded prejudgment interest.

When a complaint presents a federal question, the issue of whether or not the plaintiff may recover prejudgment interest is a matter of federal law. Robinson v. Watts Detective Agency, 685

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F.2d 729, 741 (1st Cir. 1982). When there is no provision in the statue in question regarding prejudgment interest, the court looks to federal common law for guidance. Id. Federal case law in this area is clear. The decision of whether or not to award prejudgment interest rests within the sound discretion of the trial court. Criado v. IBM Corp., 145 F.3d 437, 446 (1st Cir. 1998); Conway v. Electro Switch Corp., 825 F.2d 593, 602 (1st Cir. 1987); United States v. Cal. State Bd. of Equalization, 650 F.2d 1127, 1132 (9th Cir. 1981); Chang, 606 F. Supp. at 1274. See also Rao v. New York City Health and Hosps. Corp., 882 F. Supp. 321, 325 (S.D.N.Y. 1995) and Bingham v. Zolt, 810 F. Supp. 100, 101 (S.D.N.Y. 1993)(both noting that when the applicable federal statue is silent on the availability of prejudgment interest, a court may award such interest in accord with its equitable discretion). The district court has wide latitude in determining the appropriate remedy and there is no abuse of discretion when its award makes the plaintiff whole and is sufficient to deter the defendant from future wrongdoing. Criado, 145 F.3d at 446. Prejudgment interest is presumptively available in suits brought under federal law, unless punitive damages are also awarded. Parington v. Broyhimm Furniture Indus. Inc., 999 F.2d 269, 274 (7th Cir. 1993).

The Supreme Court's decision in Rodgers v. United States, 332 U.S. 371 (1947), guides a court in deciding whether or not to

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award prejudgment interest. The Court noted that penalties imposed by an Act of Congress bear interest only if and to the extent that interest is required by federal law. Rodgers, 322 U.S. at 373. Absent Congress' unequivocal prohibition of prejudgment interest, courts should grant or deny interest by looking to the congressional purpose underlying the particular statute. Id. at 373; Golden State Transit Corp. v. City of Los Angeles, 773 F. Supp. 204, 208 (C.D. Cal. 1991)(citing Rodgers, 322 U.S. at 373). See also Segal v. Gilbert Color Sys. Inc., 746 F.2d 78, 82 (1st Cir. 1984)(when the statue is silent on the question of prejudgment interest, courts turn to legislative history). In Rodgers, the framework of the Agricultural Adjustment Act and the reports of the congressional committees that drafted it demonstrated a primary purpose to limit farm production and marketing to the quotas allotted by law, and an intent to deter farmers from exceeding those quotas. 332 U.S. at 374. Given this clear intent to deter, the Court concluded that Congress did not also intend for courts to add prejudgment interest to the substantial penalties already imposed on non-cooperating farmers. Id. at 376.

In the instant case, Plaintiffs brought their Complaint pursuant to 18 U.S.C. § 2333. Enacted as part of the

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Antiterrorism Act of 1991³, Section 2333 states:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

28 U.S.C. § 2333(a)(1992). Like the Agricultural Adjustment Act in Rodgers...