Ewan v. Islamic Republic of Iran, Civil Action No. 17-1628 (JDB)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: JOHN D. BATES, United States District Judge
• Citation: 466 F.Supp.3d 236
• Parties: Michael EWAN, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.
• Docket Number: Civil Action No. 17-1628 (JDB)
• Decision Date: 10 June 2020

466 F.Supp.3d 236

Michael EWAN, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant.

Civil Action No. 17-1628 (JDB)

United States District Court, District of Columbia.

Signed June 10, 2020

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Noel Jason Nudelman, Richard D. Heideman, Tracy Reichman Kalik, Heideman Nudelman & Kalik, PC, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Almost forty years ago, the terrorist organization Hezbollah attacked the U.S. Embassy in Beirut, Lebanon, killing over fifty people and leaving dozens of others injured. Plaintiffs Michael Ewan and David Seelye are two former U.S. Marines, who were stationed at the Embassy and injured as a result of the attack. They and five of Ewan's family members bring suit against the Islamic Republic of Iran for Iran's alleged material support of the Hezbollah terrorists who perpetrated the attacks. For the reasons explained herein, the Court finds Iran to be liable for plaintiffs’ injuries and accordingly will award plaintiffs compensatory and punitive damages under the Foreign Sovereign Immunities Act ("FSIA").

Background

The tragic events of 1983 have given rise to a series of lawsuits against Iran, which this Court has handled, and the Court assumes familiarity with the background facts as presented in its previous opinions. See, e.g., Estate of Doe v. Islamic Republic of Iran ("Doe I"), 808 F. Supp. 2d 1, 7–10 (D.D.C. 2011) ; Dammarell v. Islamic Republic of Iran ("Dammarell II"), 404 F. Supp. 2d 261, 271 (D.D.C. 2005). The Court thus limits its rehearsal of the details to those facts most relevant to plaintiffs’ present claims.

On April 18, 1983, a car bomb exploded at the U.S. Embassy in Beirut, Lebanon, killing at least fifty-two people and injuring more than thirty-four others. Doe I, 808 F. Supp. 2d at 7. "The bombing was

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the first large-scale attack against a United States Embassy anywhere in the world," and although responsibility for the bombing was not immediately apparent, the U.S. State Department determined by 1984 that the Lebanese Shi'a group Hezbollah had designed and executed the attack with the support and encouragement of Iran. Dammarell v. Islamic Republic of Iran ("Dammarell I"), 281 F. Supp. 2d 105, 111–12 (D.D.C. 2003). On January 19, 1984, President Reagan "designated Iran a state sponsor of terrorism" for sponsoring several terrorist attacks in Lebanon, including the April 18, 1983 bombing. Id. at 113. Then, on September 20, 1984, a second bomb exploded at the U.S. Embassy annex in East Beirut, killing at least eleven people and injuring over fifty other individuals. Doe I, 808 F. Supp. 2d at 7.

Since that time, a number of plaintiffs have filed cases in this District on behalf of bombing victims and their families. Relying on the "terrorism exception" in the FSIA, these plaintiffs have alleged that because Iran provided material support to Hezbollah in organizing and executing these attacks, Iran was thereby liable for compensatory and punitive damages. In a series of prior rulings, this Court has agreed and awarded damages against Iran and its agents for wrongful death, loss of solatium, battery, intentional infliction of emotional distress, and other forms of economic damages arising out of the Beirut Embassy bombings. See, e.g., Doe I, 808 F. Supp. 2d at 21–23 ; Dammarell I, 281 F. Supp. 2d at 192–99.

Plaintiffs here are two former Marines, Michael Ewan and David Seelye, who were stationed in Beirut at the time of the Embassy bombing, as well as five of Ewan's family members. Compl. [ECF No. 1] ¶¶ 6–12. Ewan was at the site of the explosion and watched as the Embassy was destroyed; he reports that "[t]o this day," he can remember the face of the terrorist bomber who drove the car bomb to the gate. Decl. of Michael Ewan ("M. Ewan Decl.") [ECF No. 27-4] ¶ 4. In the wake of the blast, Ewan helped in the rescue and cleanup efforts around the Embassy, witnessing the carnage firsthand. Id. ¶ 6. Given his fluency in Arabic, he also communicated with local Lebanese families about the death of their loved ones in the blast, an experience which he describes as "absolutely devastating" and the source of "nightmares to this day." Id. ¶ 7. In the wake of the attacks, Ewan has suffered from PTSD and reports persistent pain in his back from physical injuries he suffered at the blast. Id. ¶¶ 11–14. Five of his family members—his mother, Victoria Ewan; the estate of his father, Emmanuel Ewan; and his three siblings, Tannous Ewan, Maria Ewan Chlimon, and Elie Ewan—all report a deterioration in their relationships after Michael's experience in Beirut. See Aff. of Victoria Ewan [ECF No. 27-11] ¶¶ 4–13; Aff. of Maria Ewan Chlimon [ECF No. 27-15] ¶¶ 4–14; Aff. of Elie Ewan [ECF No. 27-17] ¶¶ 4–11; Aff. of Tannous Ewan [ECF No. 27-19] ¶¶ 5–17.

Seelye was "less than a half mile away" at the time of the Embassy bombing, but reports instantly knowing that his friends and fellow Marines had been injured or killed in the blast. Decl. of David Seelye ("Seelye Decl.") [ECF No. 27-8] ¶ 4. After the attack, he helped to clean up the site and is still haunted by the gruesome images he saw during that process. Supp. Decl. of David Seelye ("Seelye Supp. Decl.") [ECF No. 34-1] ¶¶ 3–4. These experiences have left him with PTSD, and he describes suffering from nightmares, general sleeplessness, and a breakdown in his relationships with friends and family. Seelye Decl. ¶¶ 6–9, 11–13. He has also experienced hearing loss and wears hearing aids,

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which he ties back to the injuries he suffered during the bombing. Id. ¶ 10.

Iran has never appeared in this action. See Default [ECF No. 17] at 1. Plaintiffs accordingly moved for default judgment on October 1, 2019. See Pls.’ Mot. for Default J. [ECF Nos. 26, 27] at 1. On November 13, 2019, the Court appointed Alan L. Balaran as Special Master for this case. Order Appointing Special Master [ECF No. 32] at 1. Mr. Balaran has now prepared two reports on which the Court will rely in assessing plaintiffs’ damage awards. See Report of Special Master re: Former Marine David Seelye ("Seelye Report") [ECF No. 34]; Report of Special Master re: Former Marine Michael Ewan ("Ewan Report") [ECF No. 35].

Legal Standard

The FSIA, 28 U.S.C. §§ 1602 – 1611, provides the "sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). While foreign states are presumptively immune from the jurisdiction of U.S. courts, see Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ; see also 28 U.S.C. § 1604, the FSIA provides for federal court jurisdiction over foreign entities under a limited set of exceptions. Subject matter jurisdiction exists if the defendant's conduct falls within one of those specific statutory exceptions. See 28 U.S.C. §§ 1330(a), 1604. Conversely, "if no exception applies, the district court has no jurisdiction." Odhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir. 2014). Plaintiffs invoking one of these exceptions must establish jurisdiction by a preponderance of the evidence. See Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 87 (D.D.C. 2010).

One such statutory exception, set forth in 28 U.S.C. § 1605A, waives sovereign immunity in cases concerning a "state sponsor of terrorism." That exception affords subject matter jurisdiction in cases 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" when such actions are taken "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).

"Courts may exercise personal jurisdiction over a foreign state where the defendant is properly served in accordance with 28 U.S.C. § 1608." Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 148 (D.D.C. 2011) ; see also 28 U.S.C. § 1330(b). "Once jurisdiction has been established over plaintiffs’ claims against all defendants, liability on those claims in a default judgment case is established by the same evidence if ‘satisfactory to the Court.’ " Owens, 826 F. Supp. 2d at 151 (quoting 28 U.S.C. § 1608(e) ). Satisfactory evidence includes sworn affidavits or declarations, prior judicial fact-findings, and other documents submitted in accordance with the Federal Rules of Evidence. See Bathiard v. Islamic Republic of Iran, Case No. 1:16-cv-1549 (CRC), 2019 WL 3412983, at *5 (D.D.C. July 29, 2019) ; Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 78 (D.D.C. 2006). " Section 1608(e) does not require a court to step into the shoes of the defaulting party and pursue every possible evidentiary challenge; only where the court relies upon evidence that is both clearly inadmissible and essential to the outcome has it abused its discretion." Owens v. Republic of Sudan, 864 F.3d 751, 785–86 (D.C. Cir. 2017).

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Analysis

I. Jurisdiction

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