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WEINSTEIN v. ISLAMIC REPUBLIC OF IRAN

October 31, 2001

SUSAN WEINSTEIN, ET AL., PLAINTIFFS,
V.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM AND ORDER

Now before the Court is Plaintiffs' Ex Parte Motion for Adoption of Prior Findings Using Judicial Notice, Collateral Estoppel, or other Means. After carefully considering the plaintiffs' memoranda, the procedural posture of this case, and the applicable law, the Court hereby GRANTS in part and DENIES in part the plaintiffs' motion.

I. Background

This is an action for wrongful death and personal injury against the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and three officials of the Iranian government.*fn1 The decedent, Ira Weinstein, was a United States citizen who was killed by the terrorist bombing of the Number 18 Egged bus in Jerusalem, Israel on February 25, 1996. The plaintiffs, who are family members and administrators of the estate of Ira Weinstein, filed this suit under the Foreign Sovereign Immunities Act ("FSIA") of 1976, 28 U.S.C. § 1602-1611. The FSIA not only eliminates foreign government's sovereign immunity in suits for money damages based on extrajudicial killings but also provides that "[a]n official employee or agent of a foreign state designated as a state sponsor of terrorism . . . shall be liable to a United States national or the national's legal representatives for personal injury or death caused by acts . . . for which the courts of the United States may maintain jurisdiction. . . ." 28 U.S.C. § 1605(a)(7); 28 U.S.C. § 1605 note, Civil Liability for Acts of State Sponsored Terrorism. The defendants have failed to enter an appearance in this matter.

The same terrorist bombing that killed Ira Weinstein was the subject of another recent case before this Court. In Eisenfeld v. Islamic Republic of Iran, 172 F. Supp.2d 1, 2000 WL 1918779 (D.D.C. July 11, 2000), this Court held the same defendants in the present case jointly and severally liable for the deaths of two other American citizens, Matthew Eisenfeld and Sara Duker. Both of these individuals, like Weinstein, were killed in the February 25, 1996 bombing of the Number 18 Egged bus. Before concluding that these defendants were liable for the two deaths, however, the Court made several findings of fact and conclusions of law concerning the defendants' role in the bombing. One such finding of particular importance was that Hamas, the terrorist group responsible for the bombing, "received massive material and technical support from the Defendant, the Islamic Republic of Iran." Eisenfeld, 172 F. Supp.2d at ___, 2000 WL 1918779 at *5. These findings enabled the plaintiffs to establish their claim or right to relief by evidence satisfactory the court as required by 28 U.S.C. § 1608 in the case of a default judgment.*fn2 The plaintiffs in Eisenfeld proceeded in the same manner as a bench trial and the Court's ruling was based on the sworn testimony and documents admitted into evidence.

In their motion the plaintiff's request that the Court adopt certain findings of fact and conclusions of law made in Eisenfeld in the instant action. These findings would help the plaintiffs in the present case — as they did the plaintiffs in Eisenfeld — sustain their burden under 28 U.S.C. § 1608(e). The plaintiffs assert that the Court can adopt these findings "on at least four separate grounds: (i) judicial notice; (ii) collateral estoppel; (iii) the Court can accept affidavit testimony from the exact same expert witnesses who testified in the Eisenfeld case . . .; or (iv) the Court can accept a certified copy of the transcript of the testimony given in the Eisenfeld case." The Court will address each of these options.

II. Discussion

A. Judicial Notice

The plaintiffs first assert that the Court should adopt certain findings of fact and conclusions of law made in Eisenfeld by means of judicial notice. Judicial notice "is a process by which a court takes recognition of a fact in the absence of formal proof." U.S. v. Neill, 964 F. Supp. 438, 446 (D.D.C. 1997); Advisory Committee Note to Fed.R.Ev. 201 (recognizing that "[i]f particular facts are outside the area of reasonable controversy, this process [of establishing adjudicative facts through the introduction of evidence] is dispensed with as unnecessary."). It is not appropriate, however, for a court to take judicial notice of all facts. Rule 201 of the Federal Rules of Evidence specifically provides that a "judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Ev. 201(b). For example, in Booth v. Fletcher, the court took judicial notice of the fact that the Appellant, Edward K. Campbell, was the retired Chief Justice of the Court of Claims of the United States. Booth, 101 F.2d 676, 678 (D.C.Cir. 1938). In SEC v. Bilzerian, this Court took judicial notice of the fact that a petition for rehearing had been filed with the United States Court of Appeals for the Eleventh Circuit. Bilzerian, 112 F. Supp.2d 12, 15 n. 3 (D.D.C. 2000). Furthermore, in Washington Mobilization Committee v. Cullinane, the court took judicial notice of the fact that from April 22 until May 6, 1971, 14,517 people were arrested in D.C., approximately 3,749 of the cases were terminated administratively, and only 871 out of the original 14,517 went to trial. Cullinane, 400 F. Supp. 186, 201-02 (D.D.C. 1975), rev'd on other grounds, 566 F.2d 107 (D.C.Cir. 1977). In all of these cases the facts of which the courts took judicial notice were straightforward and easy to ascertain.*fn3 They were, as required by Rule 201, not subject to reasonable dispute because they were capable of accurate and ready determination. Thus, no party would dispute, for instance, that Edward K. Campbell was the former Chief Justice of the Court of Claims of the United States. In addition, there does not appear to have been any reason for making the parties present evidence to prove the facts of which the courts ultimately took judicial notice.

The Court finds that it is inappropriate for it to take judicial notice of the facts and conclusions of law in Eisenfeld in the present case. At the outset, the Court is not sure why in the instant case the plaintiffs want it not only to take judicial notice of facts that it found in Eisenfeld but also certain conclusions of law. It is clearly not appropriate for the Court to use the doctrine of judicial notice to make conclusions of law in the present case based on the conclusions of law made in Eisenfeld. Federal Rule of Evidence 201 explicitly restricts the doctrine of judicial notice to findings of fact. In addition, the Court holds that the findings of fact in Eisenfeld, such as that "llamas and its agents received massive material and technical support from the Defendants, the Islamic Republic of Iran" and that the Iranian Ministry of Information and Security "acted as a conduit for the Islamic Republic of Iran's provision of funds to llamas and training to the terrorists" are not facts of which it is appropriate for the Court to take judicial notice. Unlike the facts of which the courts took judicial notice in the cases cited above, these facts are not "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." To be sure, in Eisenfeld the facts were only proven after several witnesses testified before the court and the appropriate documentation was admitted into evidence. Additionally, if the defendants entered an appearance in the instant case, or in Eisenfeld for that matter, they almost certainly would dispute the accuracy of those particular facts. It is of no significance that the Court ultimately found those facts proven by clear and convincing evidence in Eisenfeld. If that were the standard, then courts could take judicial notice of virtually every fact ultimately proven in a case.

Moreover, it is not clear based on the language of 28 U.S.C. § 1608(e) whether the plaintiffs can satisfy their burden of establishing their claim or right to relief by having the court simply take judicial notice of the facts necessary to sustain the burden. When a court takes judicial notice of a fact it relieves the party of presenting evidence to prove the fact. Such action by the court in this particular case appears to be in conflict with the statutory framework created by Congress in the FSIA in cases of default judgments. In such cases the statute explicitly provides that it is up to the plaintiff to establish by evidence satisfactory to the court that his claim is meritorious. By taking judicial notice of the facts that the plaintiffs must prove in order to sustain their burden under 28 U.S.C. § 1608(e), the Court could very well be circumventing the precise point of that statutory provision. Based on this uncertainty and for the foregoing reasons, the Court will not take judicial notice of the findings of fact and conclusions of law in Eisenfeld in the present case.

B. Collateral Estoppel

The plaintiffs next argue that the defendants should be collaterally estopped from relitigating the findings of fact and conclusions of law made by the Court in Eisenfeld. In particular, they argue that this Court could adopt the Eisenfeld findings based on the doctrine of offensive collateral estoppel. Pls.' supplemental mem. at 14. "Under the doctrine of offensive collateral estoppel or issue preclusion,*fn4 a defendant is precluded from relitigating identical issues that the defendant litigated and lost against another plaintiff."*fn5 Jack Faucett Associates, Inc. v. AT & T, 744 F.2d 118, 124 (D.C.Cir. 1984). Collateral estoppel thus "serves to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication." U.S. v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). In Parklane Hosiery Company v. Shore, which is the seminal case on the use of the doctrine, the Supreme Court observed that several commentators have expressed reservations about the application of offensive collateral estoppel. Parklane, 439 U.S. 322, 329-30, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). The Court went on to describe several potential problems with the doctrine, including that it "does not promote judicial economy in the same manner as defensive use does" and that "it may be unfair to a defendant." Id. Despite these reservations the Court concluded "that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied." Id. In accordance with this ruling, the United States Court of Appeals for the D.C.Circuit has held that while the doctrine is detailed, difficult, and potentially dangerous, it is within the discretion of the trial judge whether to apply it. Jack Faucett Associates, 744 F.2d at 124-126.

The D.C.Circuit has recognized, however, three conditions that must be satisfied before a party can use issue preclusion to prevent another party from relitigating an issue previously decided. Id. at 125. Those conditions are (1) the issue must have been actually litigated, that is contested by the parties and submitted for determination by the court; (2) the issue must have been actually and necessarily determined by a court of competent jurisdiction in the first trial; and (3) ...


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