Sheikh v. Republic of the Sudan, Civil Action No. 14-2090 (JDB)

Decision Date31 August 2020
Docket NumberCivil Action No. 14-2090 (JDB), Civil Action No. 17-1630 (JDB), Civil Action No. 15-951 (JDB)
Citation485 F.Supp.3d 255
Parties Nasrin Akhtar SHEIKH, et al., Plaintiffs, v. REPUBLIC OF the SUDAN, et al., Defendants. Caleb Ndeda Chogo, et al., Plaintiffs, v. Republic of the Sudan, et al., Defendants. Gary Lonnquist, et al., Plaintiffs, v. Islamic Republic of Iran, et al., Defendants.
CourtU.S. District Court — District of Columbia

Daniel Sage Ward, Ward & Berry PLLC, Washington, DC, Brian Mathew Bush, Pro Hac Vice, Maria L. Weitz, Pro Hac Vice, Milin Chun, Pro Hac Vice, Raymond P. Boucher, Pro Hac Vice, Shehnaz Bhujwala, Pro Hac Vice, Boucher, LLP, Woodland Hills, CA, Nazareth M. Haysbert, Pro Hac Vice, Haysbert Moultrie, LLP, Los Angeles, CA, for Plaintiffs Caleb Ndeda Chogo, Stephen Macharia, Samuel M. Njuguna, Anne Odinga, Cancilde R. Umulisa, Geeta N. Shah, Fredrick Alaro, Daniel Amapanga, Renson M. Ashika, Philips Asusa, Pelagia K. Buberwa, Anthony Chege, Joseph Thairu Gatheca, Joseph Githogori, Peter Maina Joseph, Ramadhan Kimani Juma, James Kanja, Monica Kapilima, John Kabi Kibe, Peter Kilonzi, David Kimani, Luka Mwale Litwaji, Phanuel Maclus, Esther J. Masabala, Taitoro Masanga, Robert Matheka, Mathew M. Mbithi, Patrick Mutuku Maweu, Georgia Mhoma, Prisca Akumu Mimba, Judith Akinyi Mimba, Christine Awino Mimba, Fredrick Ouso Mimba, Hesbon Owiro Mimba, Beatrice Akoth Mimba, Zablon Nyamalo Mimba, Edwin Opiyo Mimba, Erica Achieng Mimba, Geofrey Kamau Mundiah, Francis Munyi, Duncan Mutia Musyoka, Thomas Mutua, Paul Mwangi, Thomas Ndibui, Lucas Ndile, Mohamed Ngwegwe, Stanley Waweru Njagi, Francis Njau, Silas Murithi Njiru, Fanuel O. Onyando, George Opanga, Elvis Murithi Samuel, Richard Khaguli Sanya, Justus Wambua, Peter Wanyoike, Jonas Zephania.

Daniel Sage Ward, Ward & Berry PLLC, Washington, DC, Brian Mathew Bush, Pro Hac Vice, Maria L. Weitz, Pro Hac Vice, Raymond P. Boucher, Pro Hac Vice, Shehnaz Bhujwala, Pro Hac Vice, Boucher, LLP, Woodland Hills, CA, for Plaintiffs Phoebe Mukulu Ngonzi, Jemimah Jepleting.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge Before the Court are three cases arising from the 1998 bombings of the U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Plaintiffs are direct victims of these bombings, as well their immediate family members. After several years of litigation, plaintiffs now move for default judgment jointly against the Islamic Republic of Iran and the Iranian Ministry of Information and Security (collectively, the "Iranian defendants"). For the reasons explained below, the Court will grant in part and deny in part plaintiffs’ motions.

Background

The Court assumes familiarity with the facts of these cases as rehearsed in its prior opinions, see generally Sheikh v. Republic of Sudan, 308 F. Supp. 3d 46 (D.D.C. 2018) ; Sheikh v. Republic of Sudan, 172 F. Supp. 3d 124 (D.D.C. 2016), as well as with the broader litigation arising out of the August 7, 1998 bombing of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, see, e.g., Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 135–46 (D.D.C. 2011). It will thus spell out here only those facts necessary to understand the present motions.

On August 7, 1998, al Qaeda terrorists detonated two truck bombs outside of the U.S. embassies in Nairobi and Dar es Salaam, killing hundreds of people and injuring over a thousand. See Sheikh, 172 F. Supp. 3d at 125. Since that time, victims, their estates, and their family members have filed cases in this District seeking compensation for these attacks under the "terrorism exception" in the FSIA, 28 U.S.C. § 1605A. These plaintiffs have alleged that Iran was liable for compensatory and punitive damages because it provided material support to al Qaeda in organizing and executing these attacks. In a series of prior rulings, the Court has agreed and has awarded damages against Iran and its agents for wrongful death, loss of solatium, battery, intentional infliction of emotional distress, and other forms of economic damages arising out of the embassy bombings. See, e.g., Order, Wamai v. Republic of Sudan, Civil Action No. 08-1349 (JDB) (D.D.C. July 25, 2014); Order, Mwila v. Islamic Republic of Iran, Civil Action No. 08-1377 (JDB) (D.D.C. Mar. 28, 2014); Order, Khaliq v. Republic of Sudan, Civil Action No. 10-356 (JDB) (D.D.C. Mar. 28, 2014).

In the present three cases as well, plaintiffs bring their claims under the FSIA. Plaintiffs in Sheikh and Chogo filed complaints on December 11, 2014, and June 19, 2015, respectively, against the Republic of the Sudan and the Ministry of the Interior of the Republic of the Sudan (collectively, "the Sudanese defendants") and against the Iranian defendants. Plaintiffs in Chogo are fifty-eight Kenyan, Tanzanian, Rwandan, and U.S. citizens injured and killed in the bombings and their immediate family members, and plaintiffs in Sheikh are the Estate of Farhat Mahmood Sheikh, a British citizen who was killed in the Nairobi bombing, as well as four of his immediate family members. They bring their claims under the federal cause of action in 28 U.S.C. § 1605A(c) and D.C. common law, Kenyan common law, and Tanzanian common law, claiming wrongful death, assault and battery, intentional infliction of emotional distress, aiding and abetting, civil conspiracy, and punitive damages.

The Sudanese defendants challenged plaintiffs’ claims as untimely, and on March 24, 2016, the Court dismissed plaintiffs’ claims against those defendants as outside the FSIA's statute of limitations. See Mar. 24, 2016 Order [Sheikh ECF No. 29]. Iran, by contrast, never appeared in court—as has been its practice in all litigation that this Court is aware of stemming from the 1998 bombings. Nevertheless, after receiving briefing on whether the statute of limitations should bar plaintiffs’ claims against the Iranian defendants as well, the Court set aside the prior defaults and dismissed plaintiffs’ remaining claims as untimely. See Sheikh, 308 F. Supp. 3d at 55–56. The D.C. Circuit reversed, holding that this Court "lack[ed] authority to sua sponte raise a forfeited statute of limitations defense in an FSIA terrorism exception case, at least where the defendant sovereign fails to appear." Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1101 (D.C. Cir. 2019).

On remand, and because Iran has still never entered an appearance in these cases, the Court now turns to the merits of plaintiffs’ claims. On August 29, 2019, the Court appointed Special Masters "to consider all issues relating to standing and compensating damages for each plaintiff's claims." See Order Adopting Administrative Plan [Sheikh ECF No. 44] at 3; Order Adopting Administrative Plan [Chogo ECF No. 37] at 3; see also Order Appointing Special Masters [Sheikh ECF No. 45] at 2–3; Order Appointing Special Masters [Chogo ECF No. 38] at 2–3. In light of the Special Masters’ reports, see, e.g., R. & R. of Special Master Deborah Greenspan Regarding Damages Claims Asserted by Pls. ("Sheikh Report") [Sheikh ECF No. 66] at 1; R. & R. of Special Master Regarding Plaintiffs Estate of Francis Kibe Njuguna's and John Kabi Kibe's Claims ("Njuguna Report") [Chogo ECF No. 77], plaintiffs filed a motion for default judgment against the Iranian defendants. See Pls.’ Consolidated Mot. for Entry of Default Js. on Liability & Damages ("Sheikh/Chogo Mot.") [Sheikh ECF No. 83] at 1; Pls’ Consolidated Mot. for Entry of Default Js. [Chogo ECF No. 97] at 1.

Plaintiffs in Lonnquist are Gary Lonnquist and Timothy Teske, who were injured in the Nairobi bombing, as well as five other family members. On August 15, 2017, they brought suit against only the Iranian defendants; relying on the federal cause of action in § 1605A(c), D.C. common law, and Virginia common law, the Lonnquist plaintiffs seek damages for personal injury resulting from assault and battery, pain and suffering, intentional infliction of emotional distress, loss of consortium, and punitive damages. See Compl. [Lonnquist ECF No. 3] ¶¶ 23–48; see also Lonnquist Am. Compl. [Lonnquist ECF No. 41] at 23 (amending plaintiffs’ original complaint with a request for prejudgment interest).

On November 27, 2018, the Court entered an order denying the Lonnquist plaintiffsmotion for entry of default judgment and, as in Sheikh and Chogo, dismissing the claims with prejudice as outside the FSIA's statute of limitations. See Order on Mot. for Default J. [Lonnquist ECF No. 23] at 5. Citing Maalouf, which had been issued in the interim, the D.C. Circuit reversed the dismissal and remanded the case to this Court for further proceedings. See Order, Lonnquist v. Islamic Republic of Iran, No. 18-7180, 2019 WL 3955748 (D.C. Cir. July 26, 2019). On remand, the Court appointed Deborah Greenspan as Special Master "for the administration of the compensatory damages claims." See Order Appointing Special Masters [Lonnquist ECF No. 36] at 2. Based on her Report, see R. & R. of Special Master Deborah Greenspan Regarding Compensatory Damages ("Lonnquist Report") [Lonnquist ECF No. 38], plaintiffs filed a motion for default judgment against the Iranian defendants, see Pls.’ Mot. for Entry of Final Default J. on Liability & Damages ("Lonnquist Mot.") [Lonnquist ECF No. 42].

Legal Standard

The FSIA, 28 U.S.C. §§ 1602 – 11, provides the "sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Although foreign states are presumptively immune from the jurisdiction of U.S. courts, see Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ; see also 28 U.S.C. § 1604, the FSIA provides for subject matter jurisdiction if the defendant's conduct falls within one of several specific statutory exceptions, see 28 U.S.C. §§ 1330(a), 1604. Conversely, "if no exception applies, the district court has no jurisdiction." Odhiambo v....

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