Warmbier v. Democratic People's Republic of Korea

• Decision Date: 24 December 2018
• Docket Number: Civil Action No. 18-977 (BAH)
• Citation: 356 F.Supp.3d 30
• Parties: Cynthia WARMBIER, et al., Plaintiffs, v. DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, Defendant.
• Court: U.S. District Court — District of Columbia

356 F.Supp.3d 30

Cynthia WARMBIER, et al., Plaintiffs,

v.DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, Defendant.

Civil Action No. 18-977 (BAH)

United States District Court, District of Columbia.

Signed December 24, 2018

Richard Cullen, Pro Hac Vice, McGuireWoods LLP, Richmond, VA, Emily Rebecca Gantt, Benjamin L. Hatch, McGuireWoods LLP, Norfolk, VA, for Plaintiffs.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

"What the heck did you do to my kid?"¹ This is the anguished question voiced by the mother of Otto Warmbier when, after detaining the young man for over 17 months, the Democratic People's Republic of Korea ("North Korea") returned Otto's comatose body to the United States.² Before Otto traveled with a tour group on a five-day trip to North Korea, he was a healthy, athletic student of economics and business in his junior year at the University of Virginia, with "big dreams" and both the smarts and people skills to make him his high school class salutatorian, homecoming king, and prom king. Decl. of Cynthia Warmbier ("C. W. Decl.") ¶¶ 11–16, ECF No. 16-2; H'rg Tr. (Rough) at 50–51 (Austin Warmbier ("A. W.") ); id. at 58 (C. W.). He was blind, deaf, and brain dead when North Korea turned him over to U.S. government officials for his final trip home. H'rg Tr. (Rough) at 31, 36 (Frederick Warmbier ("F. W.") ). Otto died within a week of his return. Decl. of Dr. Daniel Kanter ("Kanter Decl.") ¶ 20, ECF No. 16-4.

A deeply knowledgeable expert from the Fletcher School of Law and Diplomacy at Tufts University describes North Korea as "unique" in the world today: North Korea is the "most advanced, most perfected totalitarian state in world history," H'rg Tr. (Rough) at 105, 110 (Expert Prof. Sung-Yoon Lee), and has "perfected its means of terrorizing" both its own people and others, id. at 111. The dictator who leads North Korea, and his cronies, "show[ ] no regard for human life," id. at 127, creating, for example, a "manmade ... famine" in the late 1990s that killed "upwards of 2 million people," id. , and maintaining "political prisoner concentration camps," id. at 110, such that "North Korean escapees" tell "a consistent story" of "a life of extreme deprivation and repression," id. at 111. Moreover, North Korea is "unprecedented" in its state sponsorship of "elicit activities, like proliferation of weapons of mass destruction, counterfeiting U.S. dollars, [and] the production and sale of drugs like opium, heroin, and meth[amphetamines]." Id. at 106. Indeed, North Korea is the world's "leading" and "best qualified candidate for indictment" at the International Criminal Court for crimes against humanity. Id. at 122. An American family, the Warmbiers, experienced North Korea's brutality first-hand when North Korea seized their son to use as a pawn in that totalitarian state's global shenanigans and face-off with the United States. As Otto's mother said, "there's evil in this world," id. at 82 (C. W.), and "[i]t's North Korea," id.

Having been compelled to keep silent during Otto's detention in North Korea in an effort to protect his safety, Otto's parents have since promised to "stand up" and hold North Korea accountable for its "evil" actions against their son. Id. at 58–60 (C. W.). To that end, Otto's parents, Cynthia ("Cindy") and Frederick ("Fred") Warmbier, initiated this action individually and as personal representatives of Otto's estate, seeking damages under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. , against North Korea for its torture, hostage taking, and extrajudicial killing of Otto. Compl. ¶¶ 1–5, ECF No. 1. North Korea never entered an appearance in, or defended against, this action, and the plaintiffs now move for default judgment for the damage caused by North Korea to Otto and his parents. For the reasons discussed below, default judgment is granted and Otto and his parents are awarded damages totaling $ 501,134,683.80.

I. BACKGROUND

The factual background surrounding Otto's detention in North Korea is summarized below, followed by an overview of the procedural history of this case. The factual background is based upon the detailed declarations submitted by the plaintiffs in support of their motion for default judgment, as well as exhibits and testimony presented at an evidentiary hearing held on December 19, 2018.³

A. Otto Warmbier's Detention in North Korea

Otto Warmbier, a 21-year-old University of Virginia student, with a curiosity to learn more about the world through travel, took a five-day trip to North Korea, between December 29, 2015 and January 2, 2016, in advance of a study abroad program in China. H'rg Tr. (Rough) at 13–15 (F. W.); id. at 59 (C. W.); C. W. Decl. ¶¶ 15–16. Otto had an "open mind" and "wanted to explore," and he viewed the trip to North Korea as an opportunity to experience a different culture and way of life. H'rg Tr. (Rough) at 59, 64–65 (C. W.); C. W. Decl. ¶ 15. Although Otto's parents were "nervous" about Otto's trip, a University of Virginia professor advised Otto that travel to North Korea was safe with certain tour groups, and the website for the operator of Otto's tour group, Young Pioneer Tours, attested to the safety of their guided trips into North Korea. Decl. of Frederick Warmbier ¶ 5 ("F. W. Decl."), ECF No. 16-1; H'rg Tr. (Rough) at 14 (F. W.).

On January 2, 2016, Otto's scheduled departure date from North Korea, Fred and Cindy expected Otto to call them when he arrived in China, but that call never came. H'rg Tr. (Rough) at 14–15 (F. W.); F. W. Decl. ¶ 5. The next morning, the tour company explained that Otto missed his flight because North Korean officials took him out of the security line at the Pyongyang Sunan International Airport, and he could not leave North Korea with the rest of his tour group. H'rg Tr. (Rough) at 15 (F. W.); F. W. Decl. ¶ 5; C.W Decl. ¶ 16. The tour company reassured Otto's parents that "everything was fine," adding that the president of the tour company stayed with Otto and he would be "on the next flight out." H'rg Tr. (Rough) at 15–16 (F. W.); F. W. Decl. ¶ 5. Over "the next day or two," the tour company again reassured Otto's parents that "everything was fine," and Otto's inability to leave North Korea "was just a misunderstanding." F. W. Decl. ¶ 6; H'rg Tr. (Rough) at 15 (F. W.). Shortly thereafter, however, the tour company said that Otto was sick and had been taken to a hospital, and the president of the tour company left North Korea for China, leaving Otto unaccompanied in North Korea. H'rg Tr. (Rough) at 15–16 (F. W.); F. W. Decl. ¶ 6.

When Otto was detained, the U.S. State Department advised Fred and Cindy that Otto's detention was part of North Korea's "normal routine" when "they want something," and assured them that, "based on history," Otto would "be home in six months." H'rg Tr. (Rough) at 17–18 (F. W.). The State Department cautioned the Warmbiers against speaking to media outlets or publicly about Otto's detention because North Korea was "going to want something for Otto," and the more the family spoke publicly, "the more it's going to cost." Id. at 17, 22–24 (F. W.); id. at 65 (C. W.). Otto's parents were also told that, at some point, North Korea would permit Otto to call home, usually late at night, and in a statement dictated by North Korea through Otto would provide a clue as to what North Korea wanted as a condition of his release. Id. at 67 (C. W.).

Given the repeated cautions against speaking publicly, Otto's parents were "[t]errified," "afraid to ... speak out or discuss" Otto "with anyone," including their neighbors and friends. Id. at 16, 23 (F. W.); id. at 72 (C. W.). They had a "sixth sense" that "things were bad for Otto," but what transpired was worse than they "could have imagined." F. W. Decl. ¶ 27. Even Otto's two younger siblings, Austin and Greta Warmbier, and Otto's friends were fearful about speaking publicly due to the possibility that North Korea would punish Otto. H'rg Tr. (Rough) at 45 (Greta Warmbier ("G. W.") ); id. at 59–60 (C. W.); F. W. Decl. ¶ 7. "[S]peaking out against North Korea would antagonize the country and prolong or worsen Otto's detention." F. W. Decl. ¶ 16. In this way, over the duration of Otto's detention, North Korea "controlled" the "dialogue the whole time." H'rg Tr. (Rough) at 82–83 (C. W.).

Otto's parents remained in the dark about the reason for Otto's detention in North Korea until three weeks later, on January 22, 2016, F. W. Decl. ¶ 7, when the Korean Central News Agency ("KCNA"), North Korea's state media outlet, Expert Decl. of David Hawk ("Hawk Expert Decl.") ¶ 11, ECF No. 16-9, released an article stating Otto was "under investigation," Decl. of Benjamin L. Hatch ("Hatch Decl."), Ex. A (KCNA Article titled, "American Arrested for His Hostile Act Against DPRK"), ECF No. 16-1. The article reported that Otto had been "arrested while perpetrating a hostile act against the DPRK," having entered the country "under the guise of tourist [sic ] for the purpose of bringing down the foundation of its single-minded unity at the tacit connivance of the U.S. government and under its manipulation." Id.

Then, on February 29, 2016, North Korea televised Otto reciting a prepared "confession" to "severe crimes against" the DPRK, that amounted to Otto allegedly taking down a poster with a political slogan supporting North Korea's dictator, Kim Jong-Il, from a hotel's staff-only area, at the behest of a church in Ohio and the CIA. Hatch Decl., Ex. B (Tr. of Otto's "Confession"); Hatch Decl., Ex. C (Video of Otto's "Confession"); see also Expert Decl. of Robert M. Collins ("Collins Expert Decl.") ¶ 21, ECF No. 16-10. The preposterous "confession" was riddled with "totally bizarre," "completely false" statements, F. W. Decl. ¶ 8, and malapropisms tied to North Korean cultural references that would not be used by an American, H'rg Tr. at 123–26 (Expert Prof. Sung-Yoon Lee). In short, the "confession" was plainly coerced and "completely manipulated." Id. at 18 (F. W.).

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