Winternitz v. Syrian Arab Republic, Civil Action 17-2104 (TJK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtTIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
PartiesCHAIM WINTERNITZ et al., Plaintiffs, v. SYRIAN ARAB REPUBLIC, Defendant
Decision Date31 March 2022
Docket NumberCivil Action 17-2104 (TJK)

CHAIM WINTERNITZ et al., Plaintiffs,
v.

SYRIAN ARAB REPUBLIC, Defendant

Civil Action No. 17-2104 (TJK)

United States District Court, District of Columbia

March 31, 2022


MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Chaim Winternitz was traveling home to Israel after attending a wedding in Brussels, Belgium in March 2016. He had just stepped away from his wife Esther, and daughter, B.W., in the Brussels Airport when suicide bombers detonated a series of explosives. One of the bombs riddled his body with shrapnel, shattered his right leg, and left him badly burned. The Islamic State of Iraq and the Levant-more commonly known as ISIS-took responsibility for the attack. This case was brought by Winternitz and some of his family members against the Syrian Arab Republic under the Foreign Sovereign Immunities Act. They assert that Syria provided material support to ISIS such that it should be held liable for what happened to them. For the reasons explained below, the Court agrees, and will grant the pending motion for default judgment, enter judgment against Syria, and award damages of $108, 928, 124.

I. Background

A. Factual Background

On March 22, 2016, an ISIS terrorist cell carried out coordinated suicide bombings at the Brussels Airport and a nearby metro station that killed 32 and wounded more than 300. Chaim

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Winternitz, his wife Esther, and their minor daughter B.W., were in the airport at the time, travelling home to Israel from a wedding in Belgium. ECF No. 14-3 ¶ 10. The bombs went off when he was separated from the two of them; the second bomb tossed him in the air, severely burned much of his body, and riddled him with shrapnel. Id. ¶ 11. As he lay on the ground unable to move, he recited a Jewish prayer for those approaching death. Id. ¶ 12. Eventually, he learned that his wife and B.W. were uninjured, and he was taken to a hospital, where he underwent extensive surgery. Id. ¶¶ 21-33; see also Ex. 2.

After Winternitz's first surgery, his injuries continued to cause him severe pain and require regular medical attention. ECF No. 14-3 ¶¶ 38, 42. He spent much of his time immobilized, which caused pressure wounds and breathing problems, which had to be treated by painkillers and oxygen. Id. ¶ 38. After a week, he was stable enough to be transferred to a hospital back in Israel, where he remained for three more weeks. Id. ¶ 50; see also Ex. 3. Then he received two more surgeries; and later, he needed three more to fix his injured leg and ruptured eardrum, and to address his skin loss. Id. ¶¶ 50-51. He also required physical therapy and chiropractic treatment to regain limited mobility in his leg. Id. ¶¶ 58-59; see also Exs. 4, 5.

Still, Winternitz has not fully regained hearing in one ear, he struggles to walk, and he suffers from post-traumatic stress disorder. ECF No. 14-3 ¶¶ 53, 56, 77. These ongoing injuries make it hard for him to travel, complete household activities, and climb stairs, and have caused him to move to an apartment without stairs. Id. ¶¶ 52-57. He can no longer participate as fully in his family or religious life, since he cannot play with his children, stand for prayers, or dance. Id. ¶¶ 66-70. He takes medication for his high blood pressure, which is attributable to the attack and the ongoing psychological strain caused by his injuries. Id. ¶¶ 73-74.

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Before the attack, Winternitz was a special education teacher, and he was studying to be a therapist. ECF No. 14-3 ¶¶ 99-106. He was passionate about his work with students and was looking forward to providing them more support and services. Id. The physical and emotional pain caused by the attack forced him to quit his job, which in turn caused him to lose “much of [his] livelihood and [his] sense of worth.” Id. ¶ 101. Israel's national social security agency has determined that he is indefinitely disabled. Id. ¶ 98.

Winternitz's children, father, and siblings have also been profoundly affected by the Brussels Airport attack and the injuries it caused him. His daughter B.W. was at the airport that day. ECF No. 14-5 ¶¶ 9-12. She personally witnessed the frantic aftermath of the suicide bombings, including victims with serious injuries. Id. She waited for hours before learning whether her father had survived. Id. As a result, B.W. was severely traumatized by the attack and sees a therapist weekly. Id. ¶¶ 17-19. Winternitz's four other children-A.W., D.W., Mi.W., and Mo.W.-were also traumatized by what happened to their father, and each receive counseling at their school. Id. ¶ 16. Jacob Winternitz, Chaim's Winternitz's father, was in synagogue when he received a panicked call from his son about the attack. ECF No. 14-6 ¶ 9. He made it to the hospital that day and was shocked by his son's injuries. Id. ¶¶ 17-18. He continues to suffer from intense feelings of fear and sadness over his son's injuries and their effect on his life. Id. ¶¶ 23-25. Ester Winter-nitz, Chaim Winternitz's sister, suffers from ongoing anxiety and nightmares, high blood pressure, and a fear of air travel because of what happened to her brother. ECF No. 14-7 ¶¶ 11-16. Faige (Winternitz) Quitt, another sister, also suffers from a fear of air travel, and a fear of crowded public spaces, which forced her to quit her job, and she has been diagnosed with vertigo “as a result of the shock and trauma of the terror attack.” ECF No. 14-8 ¶¶ 19-24, Ex. 2. A third sister, Yitel Winternitz, suffers from acute anxiety and a fear of airports; she also struggles with sleeping and

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has to rely on sleeping pills. ECF No. 14-10 ¶¶ 15-18. A brother, Moshe Winternitz, is also now afraid to travel, and has had his life disrupted by the need to accompany his brother to many of his medical procedures. ECF No. 14-9 ¶¶ 26-28.

B. Procedural Background

In October 2017, Chaim Winternitz and his five children, father, and four siblings sued Syria for the physical and mental injuries they suffered because of the attack on the Brussels Airport. See ECF No. 1. They first tried to serve Syria via DHL by mailing a copy of the Summons, Complaint, and Notice in November 2017, but service was not completed. ECF Nos. 6 & 7. Plaintiffs then requested that the State Department help serve Syria by diplomatic means pursuant to 28 U.S.C. § 1608(a)(4). ECF No. 7. In March 2018, Syria was served with a copy of the Summons, Complaint, and Notice of Suit through the embassy of the Czech Republic in Damascus, Syria. ECF No. 11. Syria never responded to the complaint or otherwise appeared. The clerk entered default against Syria, ECF No. 13, and Plaintiffs moved for default judgment. ECF No. 14.

II. Legal Standards

Under Federal Rule of Civil Procedure 55(b)(2), a court may consider entering a default judgment when a party applies for that relief. See Fed. R. Civ. P. 55(b)(2). “[S]trong policies favor resolution of disputes on their merits, ” and so “‘[t]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.'” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting H.F. Liver-more Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)).

Still, “entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted). A court retains its “affirmative obligation” to determine whether it has subject-matter jurisdiction over the action.

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James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). Additionally, “a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6. And “plaintiffs retain ‘the burden of proving personal jurisdiction, [and] they can satisfy that burden with a prima facie showing.'” Id. at 7 (quoting Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). In doing so, “they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain.” Id.

“When default judgment is sought under the FSIA, a claimant must ‘establish[] his claim or right to relief by evidence satisfactory to the court.'” Warmbier v. Democratic People's Republic of Korea, 356 F.Supp.3d 30, 42 (D.D.C. 2018) (quoting 28 U.S.C. § 1608(e)). And courts must apply that standard mindful that “Congress enacted the terrorism exception expressly to bring state sponsors of terrorism . . . to account for their repressive practices, ” Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014), and to “punish foreign states who have committed or sponsored such acts and deter them from doing so in the future, ” Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 88-89 (D.C. Cir. 2002).

As a result, the D.C. Circuit has instructed that “courts have the authority-indeed . . . the obligation-to ‘adjust evidentiary requirements to . . . differing situations.'” Kim, 774 F.3d at 1048 (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). To be sure, courts must draw their “findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n.1 (D.D.C. 2001)). But uncontroverted factual allegations supported by admissible evidence may be taken as true. See Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 386 (D.D.C. 2015). And § 1608(e) “does not require a court to step into the shoes of the defaulting party and pursue every possible evidentiary challenge.” Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017),

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vacated & remanded on other grounds sub nom. Opati v. Republic of Sudan, 140 S.Ct. 1601 (2020).

In a FSIA default proceeding, a court can find that the evidence presented is satisfactory “when the plaintiff shows...

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