Felber v. Islamic Republic of Iran

• Decision Date: 25 October 2022
• Docket Number: Civil Action 19-1027 (ABJ)
• Parties: NATHANIEL FELBER, by his legal guardians Joseph Felber and Judi Felber, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.
• Court: U.S. District Court — District of Columbia

NATHANIEL FELBER, by his legal guardians Joseph Felber and Judi Felber, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.

Civil Action No. 19-1027 (ABJ)

United States District Court, District of Columbia

October 25, 2022

MEMORANDUM OPINION

AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

On April 12, 2019, plaintiff Nathaniel Felber, by his legal guardians Judi and Joseph Felber, filed this action against the Islamic Republic of Iran (“Iran”) pursuant to the terrorism exception to sovereign immunity in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605A Compl. [Dkt. # 1] ¶ 1. The Felber family members have also filed claims for damages on their own behalves. Compl. ¶¶ 87-95. Plaintiffs allege that “[d]efendant knowingly provided material support to the U.S.-designated Foreign Terrorist Organization (‘FTO') Islamic Resistance Movement (‘HAMAS'), which perpetrated the December 12, 2018 terrorist attack . . . in which Nathaniel Felber, a U.S. national, was grievously injured and two others were killed.” Compl. ¶ 2. In addition to claims on behalf of Nathaniel, plaintiffs Joseph, Judi Daniel, and Adina Felber bring claims against the Islamic Republic of Iran for emotional harm they have suffered as a result of the attack on Nathaniel. Compl. ¶¶ 87-95. The Clerk of Court entered default on January 24, 2020. Clerk's Entry of Default [Dkt. # 19]. Before the Court is plaintiffs' motion for default judgment. Pls.' Mot for J. by Default [Dkt. # 33] (“Pls.' Mot.”). The motion is supported by numerous documents, including proposed findings of fact, declarations from plaintiffs, and declarations of various experts and medical professionals. Pls.' Partial Proposed Findings of Fact and Conclusions of Law in Supp. of their Mot. [Dkt. # 29] (“Pls.' SOF”);^[1] Decl. of Patrick L. Clawson, Ph.D. [Dkt. # 27] (“Clawson Decl.”);^[2] Decl. of Arieh Dan Spitzen [Dkt. # 28] (“Spitzen Decl.”);^[3] Pls.' Partial Proposed Findings of Fact and Conclusions of Law Regarding Nathaniel Felber's Damages in Further Supp. of their Mot. [Dkt. # 31] (“Pl. Nathaniel's SOF”); Decl. of Eli Reichenthal, M.D. [Dkt. # 31-1] (“Reichenthal Decl.”); Decl. of Harold Weingarden, M.D. [Dkt. # 31-2] (“Weingarden Decl.”); Decl. of Adi Gidali, DPT, PT [Dkt. # 31-3] (“Gidali Decl.”); Suppl. Decl. of Judi Felber [Dkt. # 31-4] (“Suppl. Judi Decl.”).

For the below reasons, plaintiffs' motion for default judgment is GRANTED.

BACKGROUND

I. The Attack and Injuries to Plaintiff Nathaniel Felber

Plaintiff Nathaniel Felber is a citizen of both the United States and Israel. Compl. ¶ 8. On December 13, 2018, he was serving in the Israeli military and was stationed at a bus stop outside the town of Givat Asaf in the West Bank. Pls.' SOF ¶ 9. A man named Asem al-Barghuthi drove his car past this bus stop, saw Nathaniel and other Israeli soldiers and civilians standing there, turned his car around and proceeded back to the stop. Id. ¶ 10. Asem al-Barghuthi then got out of his car and “opened fire on the Israeli soldiers and civilians from short range with an AK-47 automatic assault rifle.”^[4] Id., citing Spitzen Decl. ¶¶ 43, 60. Nathaniel “was shot in the head, two other Israeli soldiers were killed, and an Israeli civilian was also injured.” Id. ¶ 11, citing Spitzen Decl. ¶ 43.

Nathaniel arrived at the emergency room in a coma, and medical personnel determined that he had the most severe possible category of traumatic brain injury. See Pl. Nathaniel's SOF ¶ 6, citing Reichenthal Decl. ¶ 31; Weingarden Decl. ¶ 9; and Gidali Decl. ¶ 10.^[5] A computed tomography (CT) scan of Nathaniel's skull “reflected a severe open head wound and right frontal fracture from the bullet's entry point extending past his right eye socket to the right frontal sinus behind his eye.” Id. ¶ 7, citing Reichenthal Decl. ¶ 32; Weingarden Decl. ¶ 10. It also showed “an open fracture and missing skull at the left parietal region of his skill, where the bullet exited with extruding brain tissue.” Id. ¶ 7, citing Reichenthal Decl. ¶ 32; Weingarden Decl. ¶ 10. Nathaniel underwent surgery and stayed in the ICU under a medically induced coma for two months. Id. ¶¶ 9-12.

“Nathaniel was in a coma, and then a vegetative state, for over seven months after the Givat [Asaf] Attack.” Pl. Nathaniel's SOF ¶ 18, citing Reichenthal Decl. ¶ 47. In February 2019, Nathaniel was admitted to a rehabilitation facility, where he still resided as of August 2020. Pls.' SOF ¶ 16, citing Spitzen Decl. ¶¶ 15, 25. In the interim, he displayed varying levels of alertness and responsiveness. Pl. Nathaniel's SOF ¶¶ 19-27.

In December 2019, surgeons began preparing Nathaniel for a cranioplasty surgery, which required implanting a “skin expander” under his scalp. Id. ¶ 28, citing Weingarden Decl. ¶ 31. “Nathaniel could not communicate verbally but would reach for his scalp expander when it was being injected, indicating that the process was painful . . . . In response to the pain, Nathaniel also exhibited increased spasticity and heart rate, and a low-grade fever.” Id. ¶ 30, citing Judi Decl. ¶ 32; Weingarden Decl. ¶ 31.

Due to delays caused by the COVID-19 pandemic, Nathaniel did not have his cranioplasty surgery until May 2020. Pl. Nathaniel's SOF ¶ 30, citing Judi Decl. ¶ 26; Weingarden Decl. ¶ 36; Reichenthal Decl. ¶ 48; and Gidali Decl. ¶ 20. While recovering from this surgery, Nathaniel suffered seizures for nearly a week, contracted pneumonia, and contracted an allergic reaction to the medication used to treat the pneumonia. Id. ¶¶ 31-32. He was readmitted to the long-term rehabilitation facility in June 2020, about a month after his cranioplasty surgery. Id. ¶ 33, citing Reichenthal Decl. ¶ 51; Weingarden Decl. ¶ 38; and Gidali Decl. ¶ 21. Because of the complicated recovery from the surgery, he lost most of the progress that he had made in regaining cognitive function. Id., citing Gidali Decl. ¶ 21; Judi Decl. ¶ 28.

In September 2020, Nathaniel was diagnosed with COVID-19 and had to be quarantined in an unfurnished apartment that was not handicap-accessible, putting his rehabilitative treatment on pause. Id. ¶¶ 53-54, citing Gidali Decl. ¶ 41; Judi Decl. ¶¶ 4, 10. His family rented a hospital bed for his stay in the apartment and arranged for the delivery of necessities. Id. ¶ 55, citing Judi Decl. ¶ 5.

II. Injuries to Family Member Plaintiffs

As a result of the attack, Nathaniel's family members have suffered emotional distress (Redacted) As for long-term effects, in Judi's words, her son's injury “has come to dominate her entire life,” id. at 6-7: she no longer exercises even though she used to be an avid runner;

Nathaniel's father does not remember much of what happened in the first few weeks after the shooting, which he believes is due to suppressing the painful memories from that time. Strous C at 3. He does remember suffering sleeplessness and loss of appetite. Id. (Redacted) (Redacted) (Redacted)not biking, even though he used to love it; (Redacted)

Adina was a flight attendant at the time of Nathaniel's shooting, and was informed of the shooting when the inflight manager called Adina to the front of the plane while working. Pls.' SOF ¶¶ 136, 138, citing Adina Decl. ¶¶ 8, 11, 14. (Redacted)

III. Hamas and Iran

Hamas is a political organization that was founded in the Gaza Strip in December 1987. Spitzen Decl. ¶ 12. “The name ‘Hamas' is an Arabic acronym for ‘Islamic Resistance Movement' (Ḥarakat al-Muqāwamah al-Islāmiyah).” Id. ¶ 13. The United States designated Hamas a Specially Designated Terrorist in 1995, a Foreign Terrorist Organization in 1997, and a Specially Designated Global Terrorist in 2001. Pls.' SOF ¶ 25, citing Clawson Decl. ¶ 25. Hamas's operational arm that carries out its terrorist attacks is known as the Qassam Brigades. Id. ¶ 26, citing Clawson Decl. ¶ 26. And the Court has been provided with an affidavit that states that Asem al-Barghuthi “was the commander of a Hamas Qassam Brigades cell responsible for the December 13, 2018 Givat [Asaf] Attack . . .” Id. ¶ 27, citing Spitzen Decl. ¶¶ 31, 33-34.

Plaintiffs assert that al-Barghuthi carried out the Givat Asaf attack on the day he found out his brother was killed in a clash with the IDF to avenge his brother's death. Pls.' SOF ¶ 32, citing Spitzen Decl. ¶¶ 36, 38.^[6] Israeli authorities arrested al-Barghuthi on January 8, 2019 for his connection to the Givat Asaf attack and other charges. Spitzen Decl. ¶¶ 45, 36. Since then, Hamas has “strongly insinuated its responsibility for the Givat [Asaf] Attack,” although it did not initially declare that the attack had been committed by one of its operatives. Pls.' SOF ¶¶ 33-34, citing Spitzen Decl. ¶¶ 21, 23-24, 50-51, 53-55.^[7]

Hamas does not operate on its own. Iran has provided funding and training to Hamas for more than 30 years. Pls.' SOF ¶ 55, citing Clawson Decl. ¶¶ 28-29. The United States designated Iran as a State Sponsor of Terrorism in 1984, and that designation remains in place today. Pls.' SOF ¶ 54, citing Clawson Decl. ¶ 22; see also Dammarell v. Islamic Republic of Iran, 404 F.Supp.2d 261, 273-74 (D.D.C. 2005); 22 C.F.R. § 126.1(d)(1); 31 C.F.R. § 596.201; Determination Pursuant to Section 6(i) of the Export Administration Act of 1979-Iran, 49 Fed.Reg. 2836-02 (Jan. 23, 1984); U.S. Dep't of State, State Sponsors of Terrorism (current), available at https://www.state.gov/state-sponsors-of-terrorism.

Mr Spitzen asserts that the Givat Asaf attack demonstrated the skills and professional training of a terrorist rather than a “rogue actor or lone wolf,” id. ¶ 44, quoting Spitzen Decl. ¶¶ 41-42, 44, 58-62, 65, 70: al-Barghuthi noticed the concentration of soldiers and civilians at the bus stop and decided to commit the attack there; he abandoned his car and...