Roberts v. Islamic Republic of Iran

• Citation: 581 F.Supp.3d 152
• Decision Date: 24 January 2022
• Docket Number: Case No. 1:20-cv-1227-RCL
• Parties: Allan ROBERTS, et al., Plaintiffs, v. The ISLAMIC REPUBLIC OF IRAN, Defendant.
• Court: U.S. District Court — District of Columbia

581 F.Supp.3d 152

Allan ROBERTS, et al., Plaintiffs,

v.The ISLAMIC REPUBLIC OF IRAN, Defendant.

Case No. 1:20-cv-1227-RCL

United States District Court, District of Columbia.

Signed January 24, 2022

Randy D. Singer, Kevin Allin Hoffman, Singer Davis, LLC, Virginia Beach, VA, for Plaintiffs Allan Roberts, Bethan Johnson, C.D.R., Jaco Botes, Natasha Grove, Steven Crowley, O.J.C., L.A.C., Sarah Crowley, Michael Crowley, Patricia Crowley, John Jameson, Kristin Jameson, Edith Nichol, Thomas Jameson, Abdul Ghaffar Mughal, Sitorai Khasanzod, Khalid Mughal, Hamid Mughal, Angela Mughal, N.M., M.M., George Riekert, Simone Riekert, M.R., Simon Riekert, Wilhelmina Oosthuizen, Chante Oosthuizen, Shibone De Bruyn, Shaun Oosthuizen, Magdalena Oosthuizen, George Kieser, Maggie Kieser, Emogene Boje, Sone Smith, Gavin Smith, Johannes Kieser, Hester Hart, Arnoldus Kieser, Johann Steenberg, Loraine Steenberg, Rene Botha, Jene Steenberg Marais, Desere Steenberg, Leon Botha, Brendon Botha, Leanelle Botha, Dean Capazorio, All Plaintiffs.

Kevin Allin Hoffman, Singer Davis, LLC, Virginia Beach, VA, for Plaintiffs Stephan Brink, Petrus Johan Van Der Westhuizen.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge During the United States military's occupation of Iraq, insurgents attacked American troops and their allies with explosively formed penetrators ("EFPs")—a type of improvised explosive device ("IED") capable of exceptional destruction and lethality. Plaintiffs here are thirteen contractors injured in EFP attacks (the "Contractor Plaintiffs")¹ and their immediate family members (the "Family Member Plaintiffs" and the "Mughal Plaintiffs").² These individuals ask the Court to hold the Islamic Republic of Iran ("Iran") liable for materially supporting the EFP attacks that injured them. Iran has not responded to this lawsuit, so plaintiffs have moved for default judgment. See Entry of Default, ECF No. 15; Mot. for Default J., ECF No. 16.

In this memorandum opinion, the Court will set forth its findings of fact and conclusions of law on plaintiffs’ claims. Plaintiffs raise claims against Iran under the Foreign Sovereign Immunities Act ("FSIA"), which guarantees a private cause of action for victims of state-sponsored terrorism. See 28 U.S.C. § 1605A(c). Plaintiffs also allege claims for intentional infliction of emotional distress ("IIED") arising under District of Columbia ("D.C.") law. The Court possesses subject matter jurisdiction over plaintiffs’ § 1605A(c) claims. But under D.C. choice-of-law principles, D.C. tort law cannot provide the substantive law governing plaintiffs’ IIED claims. Without evidence of British, South African, and Iraqi law, the Court cannot grant default judgment on plaintiffs’ IIED claims on this record.

After considering plaintiffs’ motion, applying relevant case law, and taking judicial notice of expert reports in related cases, the Court will GRANT IN PART and DENY IN PART plaintiffs’ motion for default judgment against Iran.

I. LEGAL STANDARD

Plaintiffs moved for default judgment against Iran because Iran has not appeared or defended this lawsuit. See Mot. for Default J. But even when a defendant fails to appear, "the entry of a default judgment is not automatic." Mwani v. bin Laden , 417 F.3d 1, 6 (D.C. Cir. 2005). The FSIA expressly provides 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) ; see Jerez v. Republic of Cuba , 775 F.3d 419, 423 (D.C. Cir. 2014). A district court retains discretion "to determine precisely how much and what kinds of evidence the plaintiff must provide" to establish her claim or right to relief. See Han Kim v. Democratic People's Republic of Korea , 774 F.3d 1044, 1047 (D.C. Cir. 2014). "[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) (quoting Alameda v. Sec'y of Health, Educ. & Welfare , 622 F.2d 1044, 1048 (1st Cir. 1980) ), vacated and remanded on other grounds sub nom. Opati v. Republic of Sudan , ––– U.S. ––––, 140 S. Ct. 1601, 206 L.Ed.2d 904 (2020).

Additionally, a plaintiff moving for default judgment "must persuade the trial court" that it may exercise subject matter jurisdiction and personal jurisdiction over the defendant. Karcher v. Islamic Republic of Iran , 396 F. Supp. 3d 12, 21 (D.D.C. 2019) (citing Thuneibat v. Syrian Arab Republic , 167 F. Supp. 3d 22, 33 (D.D.C. 2016) ). After all, a default judgment "rendered in excess of a court's jurisdiction is void." Jerez , 775 F.3d at 422. And a default judgment "must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c).

II. FINDINGS OF FACT

Before this Court can enter default judgment against Iran, it must "reach its own, independent findings of fact" notwithstanding prior cases implicating the same issues. Rimkus v. Islamic Republic of Iran , 750 F. Supp. 2d 163, 172 (D.D.C. 2010). "[N]umerous evidentiary sources" can support a default judgment. Id. at 171. Plaintiffs have submitted affidavits supporting their uncontroverted factual allegations and expert reports analyzing the alleged EFP attacks. The Court also takes judicial notice of Lee v. Islamic Republic of Iran and Karcher v. Islamic Republic of Iran , both of which involved similar EFP attacks. See Lee v. Islamic Republic of Iran , 518 F. Supp. 3d 475 (D.D.C. 2021) ; Karcher v. Islamic Republic of Iran , 396 F. Supp. 3d 12 (D.D.C. 2019) ; see also Fed. R. Evid. 201(b). With these principles in mind, the Court enters the following findings of fact.

A. Plaintiffs’ Claims

Plaintiffs are sixty-three individuals claiming injuries arising from alleged EFP attacks between 2004 and 2011. See Compl. ¶¶ 1–64, ECF No. 1. Abdul Ghaffar Mughal and the Mughal Plaintiffs are U.S. citizens. Mughal Aff. ¶¶ 1, 3, ECF No. 17-7. All of the remaining plaintiffs are citizens of Great Britain and South Africa. See generally Mem. in Supp. of Pls.’ Mot. for Default J., ECF No. 17 [hereinafter Mem. in Supp.]. They sued the Islamic Republic of Iran under the FSIA, alleging that Iran materially supported Iraqi insurgents between 2004 and 2011 by supporting the "manufacture and widespread distribution" of EFPs in Iraq. Id. at 5.

Though all plaintiffs filed claims under the FSIA, different sets of plaintiffs filed federal and state-law claims. The Contractor Plaintiffs filed claims under 28 U.S.C. § 1605A(c). These plaintiffs worked for U.S. contractors operating in Iraq and, at the time of the attacks, were acting within the scope of their employment. See Roberts Aff., ECF No. 17-3; Botes Aff., ECF No. 17-4; Crowley Aff, ECF No. 17-5; Jameson Aff., ECF No. 17-6; Mughal Aff., ECF No. 17-7; Riekert Aff., ECF No. 17-8; Oosthuizen Aff., ECF No. 17-9; Kieser Aff., ECF No. 17-10; Steenberg Aff., ECF No. 17-11; Botha Aff., ECF No. 17-12; Capazorio Aff., ECF No. 17-13; Du Plessis Aff, ECF No. 17-14; Bruwer Aff., ECF No. 17-15. The Family Member Plaintiffs asserted a separate IIED claim against Iran under D.C. tort law. Compl. ¶¶ 381–83; see Mem. in Supp. 30–34.

B. Service of Process

Plaintiffs first attempted to serve Iran by requesting that the Clerk of the Court—pursuant to 28 U.S.C. § 1608(a)(3) —mail Iran a summons, complaint, and notice of suit. Aff. Requesting Foreign Mailing, ECF No. 6. This service failed because no company would ship packages to Iran. See 06/09/2020 Min. Entry; Notice, ECF No. 7. Plaintiffs then attempted service via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). Aff. Requesting Foreign Mailing, ECF No. 8. On November 4, 2020, plaintiffs successfully served Iran with a summons, a complaint, a notice of suit, and translations of each under cover of diplomatic note. Return of Service, ECF No. 13. Iran failed to answer this complaint or appear in this litigation within sixty days of service. Accordingly, on January 13, 2021, the Clerk of the Court entered default against Iran. Entry of Default, ECF No. 15.

C. Iran's Connection to the EFP Attacks

The Court will detail Iran's longstanding support of proxy militias in Iraq through a condensed history. The Court relies on the expert reports and transcripts of the bench trial in Karcher . See generally Karcher v. Islamic Republic of Iran , 396 F.Supp.3d 12 (D.D.C. 2019). In addition to these materials and the Karcher and Lee decisions themselves, the Court refers to the expert reports and affidavits submitted by plaintiffs in this case.

i. Expert Testimony

To begin, the Court qualifies six individuals as experts. Plaintiffs provided the Court with supporting affidavits from two of these experts—Michael Pregent and Donald Wade Barker—and requested that the Court take judicial notice of the remaining experts and their reports submitted in Karcher . After reviewing these materials, the Court will grant this request and take judicial notice of (1) the transcripts of the Karcher bench trial and (2) the Karcher expert reports. See Fed. R. Evid. 201(b) ; Rimkus , 750 F. Supp. 2d at 171. The Court therefore qualifies the following experts in this case.

• Michael P. Pregent. The court qualifies Pregent as an expert in "intelligence matters, including attribution of terror attacks and ... evidence collection and analysis in the intelligence field." 12/06/2018 (AM) Tr. 173:3–7; see Expert Aff. of Michael Pregent, ECF No. 1.7-1 [hereinafter Pregent Aff.]; Expert Report of Michael P. Pregent, PX-155 [hereinafter Pregent Report, PX-155]; see also Lee , 518 F. Supp. 3d at 482 ; Karcher , 396 F. Supp. 3d at 18–19.³

• Captain (Ret.) Donald Wade Barker. The Court qualifies Captain Barker⁴ as an expert on "IEDs, EFPs, and counter-IED technology." 12/04/2018 (AM) Tr. 10:8–12; see Expert Aff. of Donald Wade Barker, ECF No. 17-2 [hereinafter Barker Aff.]; Expert Report of Capt. (Ret.) Donald Wade

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