Foley v. Republic, Civil Action No. 11-699 (CKK).

Citation249 F.Supp.3d 186
Decision Date13 April 2017
Docket NumberCivil Action No. 11-699 (CKK).
CourtUnited States District Courts. United States District Court (Columbia)
Parties Virginia L. FOLEY, et al., Plaintiffs v. SYRIAN ARAB REPUBLIC, et al., Defendants.

Steven Robert Perles, Edward B. MacAllister, Joshua K. Perles, Perles Law Firm, PC, Washington, DC, Floyd R. Jenkins, Meridian 361 International Law Group, PLLC, Portland, ME, for Plaintiffs.

William Ramsey Clark, New York, NY, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This case arises from the deaths of three Americans—Laurence Michael Foley, Sr., Keith Matthew Maupin and Kristian Menchaca—in Iraq and Jordan between 2002 and 2006. Plaintiffs—the estates and family members of the deceased—allege that all three were killed by a terrorist organization led by Abu Mus'ab al-Zarqawi (the "Zarqawi Terrorist Organization"). Proceeding under the Foreign Sovereign Immunities Act ("FSIA"), Plaintiffs allege that Defendants Syrian Arab Republic ("Syria"), Syrian Military Intelligence, Syrian President Bashar al-Assad and Syrian General Asif Shawkat, provided material support and resources to the Zarqawi Terrorist Organization and accordingly should be held liable for these deaths. The Court agrees.

Defendants have not answered or otherwise participated in this litigation, with the exception of filing an opposition to a motion filed by Plaintiffs regarding the sufficiency of service. The case accordingly proceeded in a default setting. The Court held a liability hearing on November 16 and 17, 2016. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court now determines that Plaintiffs have established their claims by evidence satisfactory to the Court, and will accordingly GRANT default judgment against Defendants. The Court will refer the issue of damages to a Special Master.

I. BACKGROUND

Plaintiffs filed this lawsuit on April 8, 2011. Compl., ECF No. 1. An Amended Complaint was filed on September 13, 2011. Am. Compl., ECF No. 11. Plaintiffs then struggled for years to effectuate service because of the civil war in Syria and the attendant breakdown in diplomatic relations between that country and the United States. On the Court's order, between November 2011 and February 2015 Plaintiffs filed a series of status reports updating the Court on their efforts to effectuate service on Defendants. ECF Nos. 20-38, 44. On April 23, 2015, Plaintiffs moved this Court for an order that service had been completed under 28 U.S.C. § 1603(a)(3). ECF No. 48. Defendant Syrian Arab Republic filed an opposition to this Motion, the only pleading filed by any Defendant in this matter. ECF No. 49. On January 21, 2016, the Court granted Plaintiffs' motion. ECF No. 51 at 11. The Court found that Plaintiffs had accomplished service and ordered the Clerk of the Court to enter a default as to each Defendant pursuant to Fed. R. Civ. P. 55(a). Id. The Clerk of the Court entered default on January 22, 2016. ECF No. 52.

The Court held a liability hearing on November 16 and 17, 2016, at which Plaintiffs offered documentary, photographic and video evidence, and presented the testimony of fact and expert witnesses. This hearing was limited to Defendants' liability—Plaintiffs were not required to present evidence of damages. At the close of the hearing Plaintiffs filed Proposed Findings of Fact and Conclusions of Law. ECF No. 71.

II. LEGAL STANDARD

The entry of default judgment is governed by Fed. R. Civ. P. 55. "The determination of whether a default judgment is appropriate is committed to the discretion of the trial court." Hanley-Wood LLC v. Hanley Wood LLC , 783 F.Supp.2d 147, 150 (D.D.C. 2011) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) ). Before granting default judgment, the Court must satisfy itself of its jurisdiction, and "[t]he party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants." Thuneibat v. Syrian Arab Republic , 167 F.Supp.3d 22, 33 (D.D.C. 2016).

Under the FSIA specifically, this Court cannot enter default judgment against a foreign state "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e) ; see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003) ("The court ... has an obligation to satisfy itself that plaintiffs have established a right to relief."). "[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide," Han Kim v. Democratic People's Republic of Korea , 774 F.3d 1044, 1047 (D.C. Cir. 2014), and "[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true," Thuneibat , 167 F.Supp.3d at 33.

III. FINDINGS OF FACT

The following Findings of Fact recount horrific events. They detail the torture and assassination of three American citizens who were purposefully targeted because of the services they were performing for their country abroad. As discussed further below, in addition to expert testimony received by the Court, a family member of each of the deceased testified at the Court's liability hearing regarding the circumstances surrounding the deaths of their loved ones. The Court appreciates that giving that testimony was extremely difficult for each witness, as it required them to publicly revisit what was likely the most tragic event in their lives. The Court also acknowledges that, as Plaintiffs' counsel stated at the outset of the liability hearing, the current legal proceedings cannot make these family members whole again or even ease their pain. Plaintiffs represent that they had another purpose in bringing this suit. Plaintiffs state that they "would like to use this proceeding to send out a very clear message of deterrence" to those "who are contemplating funding or otherwise material[ly] supporting terrorist organizations that would murder United States citizens, particularly United States citizens who are killed in service to the United States." The Court hopes that Plaintiffs find some solace in that purpose.

A. Judicial Notice of Facts Found in Other Cases

As a threshold matter the Court will grant Plaintiffs' [61] Motion for Judicial Notice ("Pls.' Mot."). Plaintiffs ask this Court to take judicial notice of findings made in two similar cases brought against Syria, Thuneibat v. Syrian Arab Republic , 167 F.Supp.3d 22 (D.D.C. 2016) and Gates v. Syrian Arab Republic , 580 F.Supp.2d 53 (D.D.C. 2008), aff'd, 646 F.3d 1 (D.C. Cir. 2011). Both cases found that Syria materially supported Zarqawi's Terrorist Organization during the timeframe that is relevant to this case. See Thuneibat , 167 F.Supp.3d at 36 ("The plaintiffs have supplied satisfactory proof that the defendants provided material support to Zarqawi and AQI"); Gates , 580 F.Supp.2d at 67 ("Syria in fact did provide material support and resources to Zarqawi and al-Qaeda in Iraq which contributed to hostage taking, torture, and extrajudicial killings"). Plaintiffs argue that the findings in those cases can serve as evidence of Syrian support for Zarqawi's organization in this case as well. Pls.' Mot. at 2. Plaintiffs concede that taking judicial notice of these findings does not conclusively establish the facts found in those cases. Id. at 5. They merely ask that the Court take notice of these findings and consider them alongside the evidence Plaintiffs have presented in this case. Id. at 6.

The Court finds this approach appropriate and will take judicial notice of the requested findings. Under Federal Rule of Evidence 201, the Court "may judicially notice a fact that is not subject to reasonable dispute" because it "is generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "This ability to take notice of adjudicative facts extends to judicial notice of court records in related proceedings." Rimkus v. Islamic Republic of Iran , 750 F.Supp.2d 163, 171 (D.D.C. 2010) (citing cases). "Because of the multiplicity of FSIA-related litigation in this jurisdiction, Courts in this District have thus frequently taken judicial notice of earlier, related proceedings." Id. Specific to the request here, "when a court has found facts relevant to a FSIA case involving material support to terrorist groups, courts in subsequent, related cases may ‘rely upon the evidence presented in earlier litigation ... without necessitating the formality of having that evidence reproduced.’ " Harrison v. Republic of Sudan , 882 F.Supp.2d 23, 31 (D.D.C. 2012). Moreover, courts have taken notice of facts found in earlier proceedings in this District even when those proceedings have taken place in front of a different judge. See Brewer v. Islamic Republic of Iran , 664 F.Supp.2d 43, 54 (D.D.C. 2009) ("[r]elying on the pleadings and the ... findings of other judges in this jurisdiction").

"At the same time, taking notice of another court's finding of fact does not necessarily denote adoption or finding of that fact." Harrison , 882 F.Supp.2d at 31. Instead, "courts in subsequent related cases [may] rely upon the evidence presented in earlier litigation," but must still "reach their own, independent findings of fact in the cases before them." Rimkus , 750 F.Supp.2d at 172 ; see also Murphy v. Islamic Republic of Iran , 740 F.Supp.2d 51, 59 (D.D.C. 2010) ("The taking of judicial notice of the Peterson opinion, therefore, does not conclusively establish the facts found in Peterson for, or the liability of the defendants in, this case.... In rendering default judgment against defendants, the Court was ... required to, and did, find facts and make legal conclusions anew.").

Accordingly, the Court GRANTS Plaintiffs' motion to take judicial notice of the findings in Thuneibat and Gates ....

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