Flatow v. Islamic Republic of Iran, No. 97-396 (RCL).

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Lamberth
• Citation: 999 F.Supp. 1
• Parties: Stephen M. FLATOW, Plaintiff, v. The ISLAMIC REPUBLIC OF IRAN, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, Ali Fallahian-Khuzestani, and John Does 1-99, Defendants.
• Docket Number: No. 97-396 (RCL).
• Decision Date: 11 March 1998

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999 F.Supp. 1 Stephen M. FLATOW, Plaintiff,
v.
The ISLAMIC REPUBLIC OF IRAN, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, Ali Fallahian-Khuzestani, and John Does 1-99, Defendants. No. 97-396 (RCL). United States District Court, District of Columbia. March 11, 1998.

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Thomas Fortune Fay, Thomas Fourtune Fay, P.C., Steven R. Perles, Anne-Marie Lund Kagy, Steven R. Perles, P.C., Washington, DC, for Plaintiff.

ORDER AND JUDGMENT

LAMBERTH, District Judge.

For the reasons set forth in the accompanying findings of Fact and Conclusions of Law, it is hereby

ORDERED that judgment be and it is entered in favor of Plaintiff Stephen M. Flatow, as Administrator of the Estate of Alisa Michelle Flatow, against Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, jointly and severally, for funeral expenses and the loss of accretions to the Estate of Alisa Michelle Flatow in the amount of ONE MILLION FIVE HUNDRED THIRTEEN THOUSAND TWO HUNDRED TWENTY DOLLARS ($1,513,220.00), said amount to be apportioned in accordance with the intestate laws of the State of New Jersey; it is further

ORDERED that judgment be and it is entered in favor of Plaintiff Stephen M. Flatow, as Administrator of the Estate of Alisa Michelle Flatow, against Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, jointly and severally, for decedent's pain and suffering in the amount of ONE MILLION DOLLARS ($1,000,000.00); it is further

ORDERED that judgment be and it is entered upon application of Plaintiff Stephen M. Flatow, on behalf of decedent's parents and siblings, against Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, jointly and severally, for solatium in the total amount of TWENTY MILLION DOLLARS, allocated as follows: to decedent's father, Stephen M. Flatow, FIVE MILLION DOLLARS ($5,000,000.00); to decedent's mother, Rosalyn Flatow, FIVE MILLION DOLLARS ($5,000,000.00); to decedent's sister, Gail Flatow, TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00); to decedent's sister, Francine Flatow, TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00); to decedent's sister, Ilana Flatow, TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00); and to decedent's brother, TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00); it is further

ORDERED that judgment be and it is entered in favor of Plaintiff Stephen M. Flatow, as Administrator of the Estate of Alisa Michelle Flatow, and against Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, jointly and severally, for punitive damages in the amount of TWO HUNDRED TWENTY-FIVE MILLION DOLLARS ($225,000,000.00); and it is further

ORDERED that the Clerk of Court cause a copy of this Order and the accompanying Findings of Fact and Conclusions of Law to be translated into Farci and transmitted to the Department of State for diplomatic service upon Defendants pursuant to 28 U.S.C. § 1608(a)(4), with the costs of translation to be paid by the Plaintiff.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is an action for wrongful death resulting from an act of state-sponsored terrorism. Defendants have not entered an appearance in this matter. This Court entered Defendants' default on September 4, 1997, pursuant to 28 U.S.C. § 1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding indicia of Defendants' willful default,¹ however, this Court is compelled to make further inquiry prior to entering a judgment by default against Defendants. As with actions against the federal government, the Foreign Sovereign Immunities Act ("FSIA") requires that a default judgment against a foreign state be entered only after plaintiff "establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e); see Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.1996).

Plaintiff brings this action pursuant to two recently enacted amendments to the FSIA, which grant jurisdiction over foreign states and their officials, agents and employees, and create federal causes of action related to personal injury or death resulting from state-sponsored terrorist attacks. Given these novel enactments, and this Court's special role in the development of foreign sovereign immunity jurisprudence, see 28 U.S.C. § 1391(f)(4), this Court has engaged in a systematic review of dispositive legal issues prior to making its determination that Plaintiff has established his claim and right to relief to the satisfaction of this Court.²

FINDINGS OF FACT

This matter came before the Court for an evidentiary hearing on March 2-3, 1998. The Plaintiff proceeded in the manner of a nonjury trial before the Court and the following findings of fact are based upon the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiff has "establishe[d] his claim or right to relief by evidence that is satisfactory to the Court" as required by 28 U.S.C. § 1608(e). This Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding:

1 Plaintiff Stephen M. Flatow, a domiciliary of the State of New Jersey, is the father of Alisa Michelle Flatow, decedent, and is also the Administrator of the Estate of Alisa Michelle Flatow. He brings this action in his own right, as Administrator of the Estate of Alisa Michelle Flatow, and on behalf of decedent's heirs-at-law, including Rosalyn Flatow, decedent's mother, and decedent's siblings, Gail, age 21, Francine,

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age 18, Ilana, age 16, and Etan, age 14, all decedent's siblings. Affidavit (Exhibit 2) (Exhibit 2) and testimony of Stephen M. Flatow.

2 Alisa Michelle Flatow was born on October 5, 1974 in the United States. She maintained her United States citizenship throughout her life, and was a United States citizen at the time of her death. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; Report of the Death Of An American Citizen Abroad (Exhibit 9).

3 At the time of her death, Alisa Michelle Flatow was a twenty-year-old Brandeis University student. For the 1995 spring semester, her junior year at Brandeis University, Alisa Michelle Flatow arranged for and participated in an independent foreign study program in Israel. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; testimony of Dr. Jonathan Sarna; testimony of Alan Mitrani; testimony of Lauren Sloane; testimony of Gail Flatow; testimony of Francine Flatow; decedent's academic records from Brandeis University.

4 While in Israel, she communicated with her father, Plaintiff Stephen M. Flatow, to ask whether she could travel to a community on the Mediterranean Sea with friends. He reviewed their itinerary with her, and as he believed that the Israeli government would not provide civilian passenger bus service unless it were safe to do so and he gave her permission to travel in Gaza. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow.

5 On April 9, 1995, decedent Alisa Michelle Flatow was a passenger on the number 36 Egged bus, which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community. Testimony of Kesari Rusa.

6 At or about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus. Testimony of Kesari Rusa; testimony of Orit Taft; testimony of Ezra Mordecai testimony of and videotape by David Shaenbaum; U.S. DEP'T OF STATE, PATTERNS OF GLOBAL TERRORISM 1995 (April 1996).

7 As a result of the explosion, a piece of shrapnel pierced Alisa Michelle Flatow's skull casing and lodged in her brain, causing a severe head injury. Testimony of Dr. Allen Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3).

8 Immediately after the explosion, Alisa Michelle Flatow slumped over onto her traveling companion, Kesari Rusa. Her eyes were open and her hands clutched. She received emergency medical treatment on the scene. Because her injuries were so severe, she was among the first of the injured which the Israeli Defense Forces medivac'ed by helicopter to the Soroka Medical Center in B'er Sheva for immediate medical attention. Testimony of Kesari Rusa; testimony of and videotape by David Shaenbaum; testimony of Orit Taft.

9 Upon her arrival at the Soroka Medical Center approximately one hour after the bombing, Alisa Michelle Flatow's pulse and respiration were good without medical assistance. Her pupils reacted to light and she responded to deep pain stimuli. She was assessed as a 5 of a possible 15 on the Glasgow coma scale. She had sustained a depressed skull fracture and intracerebral lacerations. Testimony of Dr. Allen Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3).

10 From approximately 3 to 5 pm local time, Alisa Michelle Flatow was in emergency surgery; the entrance wound was debrided and a partial craniotomy was performed in order to alleviate pressure from the intracerebral hemorrhaging and concomitant swelling of brain tissue within the skull. Testimony of Dr. Allen Fisher; decedent's medical records from the

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