Force v. Islamic Republic of Iran

• Citation: 464 F.Supp.3d 323
• Decision Date: 31 May 2020
• Docket Number: Civil Action No. 16-1468 (RDM)
• Parties: Taylor FORCE, et al., Plaintiff, v. The ISLAMIC REPUBLIC OF IRAN, et al., Defendant.
• Court: U.S. District Court — District of Columbia

464 F.Supp.3d 323

Taylor FORCE, et al., Plaintiff,

v.The ISLAMIC REPUBLIC OF IRAN, et al., Defendant.

Civil Action No. 16-1468 (RDM)

United States District Court, District of Columbia.

Signed May 31, 2020

Robert Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, Joseph Z. Hellerstein, Pro Hac Vice, Hellerstein & Co., for Plaintiff.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This civil action for compensatory and punitive damages arises under the terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A. The fifty-seven plaintiffs are the victims of seven separate terrorist attacks that took place in Israel between March 6, 2008 and March 8, 2016, and their family members. Most of the plaintiffs are U.S. citizens (including dual U.S.-Israeli nationals), although some are not. Defendants include the Islamic Republic of Iran, the Iranian Ministry of Information and Security ("MOIS"), and the Syrian Arab Republic. Plaintiffs assert that their injuries were caused by Iran and Syria's provision of material support to two terrorist organizations—Hamas and Palestinian Islamic Jihad ("PIJ").

To establish subject-matter jurisdiction, Plaintiffs invoke the state-sponsored terrorism exception to the FSIA, 28 U.S.C. § 1605A(a). The forty-four U.S.-citizen plaintiffs, see Dkt. 87 at 41, also rely on another provision of the statute to supply a federal cause of action: They argue that Iran and Syria violated § 1605A(c) by providing "material support" to Hamas and PIJ, which, in turn, engaged in the extrajudicial killing (or attempted extrajudicial killing) of U.S. nationals in the seven attacks at issue. Dkt. 1 at 28–31 (Compl. ¶¶ 116–31). Plaintiffs also assert claims for negligence and aiding and abetting under Israeli law. Id. at 31–34 (Compl. ¶¶ 132–51). None of the Defendants has answered or otherwise appeared in this action. Consequently, at Plaintiffs’ request, the Clerk of the Court entered defaults against all three Defendants. Dkt. 23; Dkt. 24.

Plaintiffs subsequently moved for the entry of a default judgments against the Islamic Republic of Iran, MOIS, and the Syrian Arab Republic, Dkt. 91, and for the appointment of a special master to conduct damages proceedings, Dkt. 85 at 1, 21–22. As explained below, the U.S. national plaintiffs, with the exception of the Parnases, have established their right to relief against Iran, but not Syria, under 28 U.S.C. § 1605A(a). The Court further concludes that the non-U.S.-citizen plaintiffs—with the exception of M.H.B and Y.A.L.B., who were born after the attack that injured their father—are entitled to recover under the law of Israel for negligence and aiding and abetting. The Court will, accordingly, DENY the motion for entry of default judgment as to all claims by the Parnases without prejudice. The Court will also DENY the motion for entry of default judgment as to all claims by M.H.B. and Y.A.L.B., who are represented by their parents, Schmuel and Nechama Brauner, without prejudice. As to the remaining fifty-one Plaintiffs, the Court will GRANT the motion as to their claims against the Syrian Arab Republic, the Islamic Republic of Iran and MOIS, see 28 U.S.C. § 1608(e), and will APPOINT a special master to hear their damages claims and to report to the Court recommending the appropriate award as to those plaintiffs.

I. INTRODUCTION

Plaintiffs, forty-four U.S. nationals (or their estates) and thirteen non-U.S. nationals bring this action for damages against the Islamic Republic of Iran, MOIS, and the Syrian Arab Republic. They allege that both countries "gave substantial aid, assistance[,] and encouragement to ... Hamas and PIJ ... with the specific intention of causing and facilitating the commission of acts ... including the terrorist attacks at issue." Dkt. 1 at 14, 18 (Compl. ¶¶ 53, 66). Plaintiffs effected service on the Syrian Arab Republic on November 14, 2016, Dkt. 15, and on the Islamic Republic of Iran and the MOIS on July 19, 2017, Dkt. 20. None of the Defendants has answered, filed a motion under Federal Rule of Civil Procedure 12, or otherwise appeared. See Dkt. 21; Dkt. 22. Accordingly, at Plaintiffs’ request, the Clerk of the Court declared all Defendants in default on November 14, 2017. See Dkt. 23; Dkt. 24.

Plaintiffs now seek entry of a default judgment with respect to liability against all three Defendants pursuant to Federal Rule of Civil Procedure 55. Dkt. 91. Even in a garden variety case, the entry of a default judgment "is not automatic," Mwani v. bin Laden , 417 F.3d 1, 6 (D.C. Cir. 2005), and requires the exercise of "sound discretion," Boland v. Yoccabel Const. Co., Inc. , 293 F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech , 636 F.2d 831, 836 (D.C. Cir. 1980) ). Most notably, the Court must—at a minimum—satisfy itself that it has subject-matter jurisdiction over the claims and personal jurisdiction over the defendants. See Jerez v. Republic of Cuba , 775 F.3d 419, 422 (D.C. Cir. 2014) ("A default judgment rendered in excess of a court's jurisdiction is void."); Mwani , 417 F.3d at 6 (explaining that the Court must "satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant").

In cases brought against a foreign state, however, the Court's discretion to enter a default judgment is more narrowly circumscribed. By statute, no federal or state court may enter a default judgment against a foreign state or instrumentality "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). This is the same standard that applies to default judgments against the United States under Federal Rule of Civil Procedure 55(d). See Owens v. Republic of Sudan , 864 F.3d 751, 785 (D.C. Cir. 2017) (" Owens IV "), vacated in part and remanded on other grounds sub nom. Opati v. Republic of Sudan , ––– U.S. ––––, 140 S.Ct. 1601, 206 L.Ed.2d 904 (2020) ; Hill v. Republic of Iraq , 328 F.3d 680, 683 (D.C. Cir. 2003). In a case, such as this, alleging that a foreign state materially supported acts of terrorism, the district court must determine "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). But the Court must do so in light of Congress's purpose in enacting § 1605A—that is, to "compensat[e] the victims of terrorism [so as to] punish foreign states who have committed or sponsored such acts and [to] deter them from doing so in the future," id. at 1048 (quoting Price v. Socialist People's Libyan Arab Jamahiriya , 294 F.3d 82, 88–89 (D.C. Cir. 2002) ) (first alteration in original)—and the difficulty in obtaining "firsthand evidence and eyewitness testimony ... from an absent and likely hostile sovereign," Owens IV , 864 F.3d at 785. This means that, to obtain a default judgment against Iran, MOIS, and Syria, Plaintiffs must (1) carry their burden of producing evidence sufficient to show that their claims fall within the state-sponsored terrorism exception to the FSIA, see 28 U.S.C. § 1605A(a) ; Owens IV , 864 F.3d at 784 ; (2) establish that defendants were served in accordance with the FSIA, see 28 U.S.C. § 1608(a) ; and (3) establish their right to relief under federal, see 28 U.S.C. § 1605A(c), or state law, Owens IV , 864 F.3d at 809 ("the pass-through approach remains viable"), by offering evidence "satisfactory to the court," 28 U.S.C. § 1608(e).

Against this backdrop, the Court held a two-day hearing on liability, Dkt. 104; Dkt. 105, and received additional evidentiary submissions, Dkts. 21–84, as well as proposed findings of fact and conclusions of law from plaintiffs, see Dkt 87 (Proposed Findings of Fact); Dkt. 85 (Memorandum of Law). In the course of the hearing, the Court applied the Federal Rules of Evidence, but did so on the understanding that, first, it has "the authority—indeed, ... the obligation—to ‘adjust [evidentiary requirements] to ... differing situations,’ " Han Kim , 774 F.3d at 1048 (quoting Bundy v. Jackson , 641 F.2d 934, 951 (D.C. Cir. 1981) ) (modifications in Han Kim ), and, second, that the Court need not "step into the shoes of the defaulting party and pursue every possible evidentiary challenge," Owens IV , 864 F.3d at 785. Recognizing that expert testimony is not only entirely proper, but often sufficient, id. at 788, and even indispensable in "terrorism cases ... because firsthand evidence of terrorist activities is difficult, if not impossible to obtain," id. at 787, the Court also considered the extensive expert testimony Plaintiffs presented.¹ Whether through expert testimony or other competent evidence, the Court must ultimately determine whether the Plaintiffs have "substantiate[d] [the] essential element[s] of jurisdiction" with admissible evidence. Id. at 786.

The Court now makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

Plaintiffs’ evidentiary presentation included testimony from five experts and a dozen exhibits. See Dkt. 104, Dkt. 105. The Court heard from Dr. Matt Levitt, an expert on "Iranian sponsorship of terrorism including Hamas and [PIJ]," Dkt. 104 at 10 (Levitt); Colonel Arieh Spitzen, an expert on "Palestinian terror groups that operate within the Palestinian territories," id. at 53 (Spitzen); Dr. Benedetta Berti, the head of policy planning for the Secretary General of NATO, Dkt. 105 at 5, 8 (Berti), and an expert on Syrian support for Hamas and PIJ, id. at 8 (Berti); Dr. Patrick Clawson, an expert on Iranian support for Hamas, id. at 60 (Clawson); and Dr. Marius Deeb, an expert on Syrian support for terrorism, specifically for Hamas and PIJ, id. at 96–97 (Deeb).

Based on the testimony of these witnesses, trial exhibits, and declarations submitted by Plaintiffs, the Court finds as follows: First, Iran provided Hamas and PIJ with significant support in the form of arms and financial assistance, as well as training...