Wachsman v. Islamic Republic of Iran

• Decision Date: 27 March 2009
• Docket Number: Civil Action No. 06-0351 (RMU).
• Parties: Esther WACHSMAN ex rel. Nachshon WASCHSMAN et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 148

603 F.Supp.2d 148

Esther WACHSMAN ex rel. Nachshon WASCHSMAN et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN et al., Defendants.

Civil Action No. 06-0351 (RMU).

United States District Court, District of Columbia.

March 27, 2009.

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Emil Hirsch, Paul L. Knight, Nossanam LLP/O'Connor & Hannan, LLP, Washington, DC, for Plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RICARDO M. URBINA, District Judge.

GRANTING THE PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT

I. INTRODUCTION

In October 1994, members of the terrorist group Hamas abducted and executed Nachshon Wachsman, a 19-year-old U.S. citizen residing in Israel. Esther Wachsman, the mother of Nachshon, individually and as personal representative of his estate, along with her sons Menashe Yechezkel Wachsman, Yitzchak "Tzachi" Wachsman, Uriel Wachsman, Raphael Wachsman, Eliahou Wachsman and Chaim "Hayim" Zvi Wachsman, bring suit against the Islamic Republic of Iran and the Iranian Ministry of Information and Security for the death of Nachshon. The plaintiffs allege that the defendants are responsible for Nachshon's death because they provided training and support to Hamas. Pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq., and the common and statutory law of the District of Columbia and Israel, the plaintiffs request that the court award them compensatory damages, prejudgment interest and costs incurred in bringing the action.

Because the defendants failed to appear or respond to the plaintiff's complaint, the Clerk of the Court entered default against them. The plaintiffs then filed a motion for default judgment, and the court ordered them to submit evidence supporting their claims. Based on a review of this initial proffer of evidence, the court denied without prejudice the plaintiffs' motion for default judgment because the plaintiffs failed to provide (1) sworn statements describing the emotional distress endured as a result of Nachshon's death; (2) the elements of a wrongful death claim under the law of Israel; and (3) a clear description of the injuries sustained before Nachshon's death for which they seek to recover damages under D.C.'s Survival Act. 537 F.Supp.2d 85, 97-99 (D.D.C.2008). The plaintiffs filed a renewed motion for default judgment on August 1, 2008 with additional support for their claims. The following findings of fact and conclusions of law recount relevant portions of the court's previous memorandum opinion and analyze the plaintiffs' claims anew in light of the additional support provided in their renewed motion for default judgment.

II. FINDINGS OF FACT

A. Procedural History

1. The plaintiffs filed suit against the defendants on February 28, 2006. Despite being properly served with process pursuant to 28 U.S.C. § 1608, the defendants failed to respond or appear in the case.

2. The Clerk of the Court entered default against the defendants on July 6, 2007.

3. The court must undertake a review of the evidence before it can enter a judgment by default against the defendants. See 28 U.S.C. § 1608(e) (requiring a claimant to "establish[] his claim or right to relief by evidence satisfactory to the court"); see also Int'l Road Fed'n v. Dem. Rep. Congo, 131 F.Supp.2d 248, 252 n. 4 (D.D.C. 2001) ("accept[ing] as true plaintiffs' uncontroverted factual allegations, which are supported by the documentary and affidavit evidence" (internal quotations and citations omitted)). Accordingly, the court ordered the plaintiffs, "in support of their motion for default judgment, to submit evidence through prior sworn testimony and affidavits." Minute Order (Aug. 27, 2007).

4. After the court granted a five-week extension of time, Minute Order (Oct. 19, 2007), the plaintiffs submitted their proposed findings of fact and conclusions of law with accompanying evidentiary support on November 30, 2007, Pls.' Proposed Findings of Fact and Conclusions of Law ("Pls.' Proposed Findings").

5. The court issued a memorandum opinion on February 28, 2008 denying without prejudice the plaintiffs' motion for default judgment. 537 F.Supp.2d 85 (D.D.C.2008). The court determined that it had jurisdiction to resolve the plaintiffs' claims; that Israel's wrongful death statute applied; and that D.C. law applied for the plaintiffs' Intentional Infliction of Emotional Distress ("IIED") and Survivor Act claims. See generally id.

6. Nevertheless, the court denied without prejudice the plaintiffs' motion because they failed to sufficiently develop the record for the court to determine whether they were entitled to relief. Id. at 97-99.

7. On March 28, 2008, the plaintiffs requested leave to amend their complaint pursuant to the National Defense Authorization Act for Fiscal Year 2008, Pub.L. No. 11-181, 1083. The court denied this motion on July 7, 2008 because the plaintiffs' complaint does not rely upon, as the Act requires, either 28 U.S.C. § 1605(a)(7) or § 589 of the Foreign Operations, Export Financing and Related Programs Appropriation Act, 1997 for a cause of action. Min. Order (July 7, 2008).

8. The plaintiffs filed a renewed motion for default judgment on August 1, 2008, supplementing the evidentiary record. Pls.' Am. Proposed Findings of Fact and Conclusions of Law ("Pls.' Am. Proposed Findings").

B. The Abduction and Execution

9. On October 9, 1994, as Nachshon waited on the side of the road for a ride to visit a friend, four members of Hamas, Salah A-Din Hassan Salem Jadallah, Hassan Natshe, Abd El Karim Yassin Bader and Jihad Ya'amur, abducted the decedent from a public street near Lod, Israel. Pls.' Proposed Findings, Ex. 3(a) ("Shay Aff.") at 4-5.¹

10. Three of the abductors—Jadallah, Natshe and Bader—were already wanted by Israeli security forces for prior acts of terrorism. Shay Aff. at 5-6. These three individuals recruited Ya'amur, who was not previously known to Israeli security, to provide logistical support, which included securing black hats and yarmulkes to wear as disguises and renting video equipment, a van with Israeli license plates and a safe house where Nachshon would be held. Id.; Pls.' Proposed Findings, Ex. 7(b).

11. The abductors spotted Nachshon on the side of the road and with the disguises were able to lure him into the van. Shay Aff. at 6. Once in the van, the abductors overpowered, blindfolded and handcuffed Nachshon and drove him to a safe house in Bir Naballah. Id.

12. Shortly thereafter, the abductors made a videotape on which they displayed Nachshon's identification card and M-16 rifle, issued by the Israeli army. Id. at 7. The abductors also listed their demands—release of members of Hamas, the Palestinian Liberation Organization, the Islamic Jihad, the Popular Front for the Liberation of Palestine and all female Palestinian prisoners—and stated that these demands must be met before October 14, 1994 at 9:00 pm or they would execute Nachshon. Id. at 6-7, 10. These demands indicate collaboration between Hamas, Hizbollah and Iran to achieve common goals. Shay Aff. at 26.

13. On October 10, 1994, Hamas took responsibility for the abduction and delivered copies of their demands to the media. Id. at 7 & Exs. 5(c), 4 at 4.

14. Three days later Israeli security forces arrested Ya'amur. Id. at 9. During his interrogation, Ya'amur provided Israeli security forces with the location of the safe house where Nachshon was being held. Id.

15. The following day, on October 14, 1994, shortly before the 9:00 pm deadline the abductors had set for compliance with their demands, an Israeli commando unit raided the safe house. Id. at 9. A gun battle ensued during which one Israeli soldier and the three other abductors were killed. Id.

16. When the dust settled, the Israeli commandos found Nachshon dead in a back room with his hands and legs bound. Id. The abductors had shot him several times at close range as the Israeli soldiers were raiding the house. Id.

17. Pictures of Nachshon's body² and medical doctors' affidavits indicate that his abductors bit him at least four times (on his back and arm) prior to his execution. Id. at 9; Pls.' Proposed Findings, Exs. 7(k)-(s); Pls.' Am. Proposed Findings, Exs. 20A ¶ 6 & 21 ¶ 13. Bullet wounds, or other traumatic injury, appear on his upper abdomen, arm, neck, shoulder, back and head; the "soot marks" on his abdomen are "characteristic to the burning dust of a shooting at very close range." Pls. Proposed Findings, Exs. 6(b), 7(k)(s); Pls.' Am. Proposed Findings, Ex. 21 ¶ 11.

C. The Relationship Between Iran and Hamas

18. Hamas, an Islamic militant terrorist organization, has a close relationship with Iran. Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 291 (D.D.C.2003); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 262 (D.D.C.2003). Iran's official policy is to support terrorism; in furtherance of that mission, Iran provides both economic assistance and terrorist training to Hamas. Stern, 271 F.Supp.2d at 292; Campuzano, 281 F.Supp.2d at 262; Shaw Aff. at 12 (stating that "[s]ince the beginning of 1980, Iran has appeared on the list of states that support terror, compiled by the U.S. State Department"). Iran funnels its financial support through its Ministry of Information and Security and provides professional military and terrorist training through its Revolutionary Guard. Stern, 271 F.Supp.2d at 292; Campuzano, 281 F.Supp.2d at 262.

19. Dr. Shay reports that in 1992, Israel deported approximately 400 Hamas operatives living in the Gaza Strip. Shay Aff. at 11, 20. Israel deported these operatives to Lebanon where Iran, through its Revolutionary Guard, provided them with military and terrorist training. Id. After receiving this training, Hamas began targeting Israelis in suicide bombings and other organized acts of terrorism. Id. at 18, 21; Stern, 271 F.Supp.2d at 291.

20. Indeed, upon returning to Gaza at the end of 1993, several of these former deportees were instrumental in...