Lee v. Islamic Republic of Iran

• Decision Date: 01 February 2021
• Docket Number: Case No. 19-cv-00830 (APM)
• Citation: 518 F.Supp.3d 475
• Court: U.S. District Court — District of Columbia
• Parties: William LEE et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.

518 F.Supp.3d 475

William LEE et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, Defendant.

Case No. 19-cv-00830 (APM)

United States District Court, District of Columbia.

Signed February 1, 2021

Aaron Schlanger, Michael J. Radine, Naomi Blank Weinberg, Gary M. Osen, Dina Gielchinsky, Ari Ungar, OSEN LLC, Hackensack, NJ, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

From 2004 through 2011, the U.S. military faced insurgent attacks in Iraq that Plaintiffs allege were materially supported by Iran. This case concerns 99 such attacks. It is brought by over 352 Plaintiffs, who include American service members and military contractors who were injured or killed while serving in Iraq, as well as their family members and estates. Iran has failed to respond to the suit, and Plaintiffs have moved for default judgment.

Given the scope of Plaintiffs’ claims, this litigation will proceed in phases. Here, the court considers Plaintiffs’ motion for default judgment as to four "bellwether" attacks, which involve the claims of 20 Plaintiffs. The court will reserve damages determinations arising from these four attacks, as well as issues of liability and damages on the remaining 95 attacks for later proceedings.

II. LEGAL STANDARD

Plaintiffs seek default judgment against Iran under the Foreign Sovereign Immunities Act ("FSIA") because Iran has failed to defend this lawsuit. See Pls.’ Proposed Findings of Fact & Conclusions of Law in Supp. of Their Mot. for Default J., ECF No. 23 [hereinafter Pls.’ Proposed Findings]. "[T]he entry of a default judgment is not automatic and requires the exercise of sound discretion." Salzman v. Republic of Iran , No. 17-cv-2475 (RDM), 2019 WL 4673761, at *2 (D.D.C. Sept. 25, 2019) (internal quotation marks omitted). A claim for default judgment under the FSIA is governed by the statutory requirement that "[n]o judgment by default shall be entered ... 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) ; Jerez v. Republic of Cuba , 775 F.3d 419, 423 (D.C. Cir. 2014). "[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, requiring only that it be satisfactory to the court." Han Kim v. Democratic People's Republic of Korea , 774 F.3d 1044, 1047 (D.C. Cir. 2014) (internal quotation marks omitted). "[I]ndeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required." Owens v. Republic of Sudan , 864 F.3d 751, 785 (D.C. Cir. 2017), vacated & remanded on other grounds sub nom. by Opati v. Republic of Sudan , ––– U.S. ––––, 140 S. Ct. 1601, 206 L.Ed.2d 904 (2020).

In addition, "[a] plaintiff seeking default judgment must persuade the trial court that subject-matter jurisdiction and personal jurisdiction over the defendant are satisfied." Karcher v. Islamic Republic of Iran , 396 F. Supp. 3d 12, 21 (D.D.C. 2019). "A default judgment rendered in excess of a court's jurisdiction is void." Jerez , 775 F.3d at 422.

III. FINDINGS OF FACT

At this phase of the litigation, the court's task is to determine whether Iran is liable for four "bellwether" attacks against U.S. servicemen and contractors in Iraq between 2006 and 2009. The attacks at issue are: (1) an October 22, 2006 attack on a hospital route in Baghdad; (2) a March 23, 2008 attack during a patrol outside Baghdad; (3) a May 17, 2009 attack on a patrol for countering improvised rocket-assisted munitions; and (4) a January 20, 2007 attack on the Karbala Provincial Joint Coordination Center ("PJCC"). All four of these attacks were the subject of Judge Kollar-Kotelly's unimpeachably thorough opinion, issued after a three-day bench trial, in Karcher v. Republic of Iran . See 396 F. Supp. 3d at 33–35 (Oct. 22, 2006 attack) ; id. at 38–40 (Mar. 23, 2008 attack); id. at 42–45 (May 17, 2009 attack); id. at 45–46 (Jan. 20, 2007 attack). Judge Moss also considered the January 20, 2007 attack on the Karbala PJCC at length in Fritz v. Republic of Iran , 320 F. Supp. 3d 48, 64–71 (D.D.C. 2018).

Per Plaintiffs’ request, the court takes judicial notice of the Karcher and Fritz decisions pursuant to Federal Rule of Evidence 201(b), which "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). In addition, Plaintiffs have submitted to the court all of the evidence that was presented to the Karcher court during its three-day bench trial. Pls.’ Proposed Findings at 2 & n.5. As "the FSIA does not require this Court to relitigate issues that have already been settled in previous decisions," the court can "review evidence considered in an opinion that is judicially noticed, without necessitating the re-presentment of such evidence." Murphy v. Islamic Republic of Iran , 740 F. Supp. 2d 51, 59 (D.D.C. 2010) (internal quotation marks omitted). The court therefore may rely on the evidence presented to the Karcher court, but must nonetheless "reach [its] own, independent findings of fact." See Rimkus , 750 F. Supp. 2d at 172. The court here has independently reviewed the evidence submitted.

A. Service of Process

Before evaluating the evidence, the court makes its factual findings concerning Plaintiffs’ attempts to serve Iran, a component of the court's personal jurisdiction analysis. Plaintiffs attempted to serve Iran by mailing "one copy of the summons, [amended] complaint, and notice of suit, together with a translation of each" by registered mail with return receipt through the U.S. Postal Service to Dr. Mohammad Zarif, Iran's head of the Ministry of Foreign Affairs. See Aff. Requesting Foreign Mailing, ECF No. 18; Certificate of Mailing, ECF No. 20 [hereinafter Certificate of Mailing]. When thirty days passed without a response from Iran, Plaintiffs served Iran via diplomatic channels. See Aff. Requesting Foreign Mailing, ECF No. 22 [hereinafter Diplomatic Service Request]. The Department of State transmitted a summons, Amended Complaint, and notice of suit to Iran through the Embassy of Switzerland in Tehran on December 18, 2019. Letter from J. Hess, Attorney Adviser, Overseas Citizens Servs., Office of Legal Affairs, to Angela D. Caesar, Clerk of Court for the U.S. District Court for the District of Columbia (Jan. 21, 2020), ECF No. 26 [hereinafter Dep't of State Service Attempt]. Thereafter, Iran had sixty days—or until February 18, 2020, accounting for weekends and holidays—to respond to the Amended Complaint. 28 U.S.C. § 1608(d). It failed to do so.

B. Iran's Responsibility for the Bellwether Attacks

The court next turns to its review of the Karcher decision, the evidence before the Karcher court, and the Fritz decision, as well as supplemental evidence provided to the court regarding Iran's responsibility for each of the bellwether attacks.

1. Expert Testimony

As a threshold matter, Plaintiffs request that the court qualify seven experts in support of their case. Each of these experts was previously qualified in Karcher , and the court relies on the experts’ reports, the experts’ testimony at the Karcher trial, and the Karcher court's thorough consideration of each candidate to qualify the following individuals as experts:

• Dr. Matthew Levitt.¹ The court qualifies Dr. Levitt as an expert "regarding Iran's role as a state sponsor of terrorism; Iran's Islamic Revolutionary Guard Corps, or IRGC, the Islamic Revolutionary Guard Corps Qods Force, or IRGC-QF; Hezbollah; and those entities’ support and training of the Special Groups in Iraq." Tr. 1 at 26:6–14; Expert Report of Dr. Matthew Levitt, PX-154 [hereinafter Levitt Report, PX-154];²see alsoKarcher , 396 F. Supp. 3d at 18.

• Lieutenant General (Ret.) Michael L. Oates. The court qualifies Lieutenant General Oates as an expert "on the tactical and strategic threats faced by US and Coalition Forces in Iraq [between] 2003 and 2008[,] ... including the specific threat to US military forces from [Improvised Explosive Devices (‘IEDs’)] and other ordnance, including [Explosively Formed Penetrators (‘EFPs’)]." Tr. 1 at 86:15–22; Expert Report of Lieutenant General Michael L. Oates, United States Army (Ret.), PX-153 [hereinafter Oates Report, PX-153]; see alsoKarcher , 396 F. Supp. 3d at 18.

• Colonel (Ret.) Leo E. Bradley III. The court qualifies Colonel Bradley as an expert on U.S. military explosive ordnance disposal operations, which include the U.S. Army's capability "to locate, identify, render safe"—disarm or defuse—"unexploded ordnance, exploit and evaluate that ordnance, and dispose of the ordnance," and IED investigations. Tr. 2 at 7:22–8:2, 12:9–13; Expert Report of Colonel Leo E. Bradley III, U.S. Army (Retired), PX-156; see alsoKarcher , 396 F. Supp. 3d at 17–18.

• Captain (Ret.) Donald Wade Barker. The court qualifies Captain Barker as an expert on "IEDs, EFPs and counter-IED technology." Tr. 3 at 10:8–12; Expert Report of CPT (Ret.) Donald Wade Barker, PX-158 [hereinafter Barker Report, PX-158]; see alsoKarcher , 396 F. Supp. 3d at 17.

• Colonel (Ret.) Kevin Lutz. The court qualifies Colonel Lutz as an expert "in the use of explosive devices, including IEDs and other ordnance, by transnational terrorist organizations and specifically the tactics, techniques[,] and procedures used by terrorist groups in Iraq between 2003 and 2011." Tr. 5 at 15:4–11; Expert Report of COL (Ret.) Kevin Lutz, PX-159 [hereinafter Lutz Report, PX-159]; see alsoKarcher , 396 F. Supp. 3d at 18.

• Russell L. McIntyre. The court qualifies McIntyre as an expert "on IED threats to US forces, specifically in Iraq between 2003 and 2011, and with an additional focus on explosively formed projectiles or penetrators." Tr. 5 at 64:16–22; Expert Report of Russell L. McIntyre, PX-157 [hereinafter McIntyre Report, PX-157]; see alsoKarcher , 396 F. Supp. 3d at 18.

• Michael P. Pregent. The court qualifies

...