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Bodoff v. Islamic Republic of Iran

March 29, 2006

JEFFREY BODOFF, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action against the Islamic Republic of Iran and a senior official of the Iranian government arises from an act of state-sponsored terrorism. The decedent, a United States citizen named Yonathan Barnea, was killed in the terrorist bombing of the Number 18 Egged passenger bus in Jerusalem, Israel on February 25, 1996. Plaintiffs, surviving family members and the administrator of Yonathan Barnea's estate, have brought this action pursuant to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 ("FSIA").

The FSIA grants federal courts jurisdiction over suits involving foreign states and their officials, agents, and employees in certain enumerated instances. In particular, the FSIA creates a federal cause of action for personal injury or wrongful death resulting from acts of state-sponsored terrorism. 28 U.S.C. § 1608(e) (giving federal courts jurisdiction over suits "in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency[.]"). The statute explicitly eliminates foreign governments' sovereign immunity in suits for money damages based on extra-judicial killings and 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, the Islamic Republic of Iran ("Iran") and Ayatollah Ali Hoseini Khamenei ("Khamenei"), were properly served with process pursuant to 28 U.S.C. § 1608 on May 15, 2003, but have failed to enter an appearance in this matter. As a result, the Court entered default against the defendants on June 4, 2003, pursuant to 28 U.S.C. § 1608(e) and Federal Rule of Civil Procedure 55(a). Plaintiffs' initial complaint, filed on October 8, 2002, named three additional defendants: the Iranian Ministry of Information and Security, Ali Akbar Hashemi-Rafsanjani and Ali Fallahian-Khuzestani. Plaintiffs failed, however, to satisfy the Court that those three defendants were ever properly served. In response to a November 16, 2005 Order to Show Cause, plaintiffs moved to withdraw the complaint as to the three unserved defendants. On November 18, 2005, the Court granted plaintiffs' motion and dismissed without prejudice the complaint as to defendants the Iranian Ministry of Information and Security, Ali Akbar Hashemi-Rafsanjani and Ali Fallahian-Khuzestani. These Findings of Fact and Conclusions of Law, therefore, address plaintiffs' claims only as they relate to the two remaining defendants against whom default has been entered, Iran and Khamenei.

Notwithstanding indicia of the willful default of defendants Iran and Khamenei, however, the Court is compelled to make further inquiry prior to entering a judgment by default against them. As with actions against the federal government, the FSIA requires that a default judgment against a foreign state be entered only after a plaintiff "establishes his claim or right to relief that is satisfactory to the Court." 28 U.S.C. § 1608(e).

Accordingly, the Court has engaged in a careful review of the evidence presented in this case, in light of the other reported cases*fn1 brought under the antiterrorism provisions of the FSIA. Pursuant to this Court's September 28, 2005 Order granting plaintiffs' motion to proceed by affidavit, plaintiffs submitted affidavit testimony on October 12, 2005. Plaintiffs filed Proposed Findings of Fact & Conclusions of Law on October 11, 2005. In light of significant developments in intervening law since plaintiffs filed their complaint, this Court directed plaintiffs to submit a memorandum on the effect of those changes, which they filed on February 7, 2006. On that same day, plaintiffs also submitted amended Proposed Findings of Fact & Conclusions of Law.

Notwithstanding the changes in intervening law, plaintiffs never sought to file an amended complaint. This Court finds, however, that plaintiffs' original complaint is sufficiently detailed to provide fair notice of the claims: it delineates the claims asserted and relief requested.

For purposes of the complaint, it is not significant that the source of law underlying the causes of action may have changed. Courts have not construed the pleading requirements of Federal Rule of Civil Procedure 8 to require a plaintiff to recite specific source(s) of law in a complaint. See MacIntosh v. Building Owners & Mgmt. Ass'n Int'l, 355 F. Supp. 2d 223, 228 (D.D.C. 2005) (Sullivan, J.) (citing FED. R. CIV. P. 8(f) for the proposition that "pleadings shall be construed so as to do substantial justice"). Consequently, this Court finds that plaintiffs are not required to amend their complaint.

Based on a review of the extensive evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter default judgment in favor of plaintiffs and against defendant Iran and defendant Khamenei.

FINDINGS OF FACT

The following findings of fact are based upon affidavit testimony and documents submitted in accordance with the Federal Rules of Evidence. Plaintiffs have "establishe[d] [their] claim or right to relief by evidence that is satisfactory to the Court," as required by 28 U.S.C. § 1608(e). This Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding:

1. Yonathan Barnea was born on July 16, 1976 in Washington, D.C. (Nachum Barnea Aff. ¶ 4; Tamara Barnea Aff. ¶ 4; United States Embassy, Tel Aviv, Israel, Report of Death of American Citizen Abroad at 1, Ex. D. to Pls.' Mot. [26] to Amend (hereinafter "U.S. Embassy Rep.").) He was a United States citizen from the time of his birth until the time of his death on February 25, 1996. (U.S. Embassy Rep. at 1.)

2. Plaintiff Nachum Barnea is the father of decedent Yonathan Barnea. (Nachum Barnea Aff. ¶ 4.)

3. Plaintiff Tamara Barnea is the mother of decedent Yonathan Barnea. (Tamara Barnea Aff. ¶ 4.)

4. Plaintiff Shlomit Barnea is the sister of decedent Yonathan Barnea. (Shlomit Barnea Aff. ¶ 2.)

5. Plaintiff Uri Barnea is the brother of decedent Yonathan Barnea. (Uri Barnea Aff. ¶ 2.)

6. Plaintiff Jeffrey Bodoff brings this action as Administrator of the Estate of Yonathan Barnea.

7. On the morning of February 25, 1996, Yonathan Barnea boarded the Number 18 Egged bus in Jerusalem, Israel. (Nachum Barnea Aff. ¶ 6.) At about 6:45 a.m. Jerusalem time, while Yonathan Barnea was still aboard, another passenger detonated explosives which he had carried onto the bus concealed in a travel bag at the direction of Hamas. See Weinstein v. Islamic Republic of Iran, 184 F. Supp. 2d 13, 17, ¶ 9 (D.D.C. 2002) (Lamberth, J.); Mousa v. Islamic Republic of Iran, 238 F. Supp. 2d 1, 3, ¶ 3 (D.D.C. 2001) (Bryant, J.); Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1, 4, ¶ 8 (D.D.C. 2000) (Lamberth, J.).The resulting explosion completely destroyed the bus, scattered debris for at least 100 meters, and led to the injury and death of numerous individuals. See Weinstein, 184 F. Supp. 2d at 17, ¶ 9; Mousa, 238 F. Supp. 2d at 3, ¶ 3; Eisenfeld, 172 F. Supp. 2d at 4, ¶ 8.

8. As a result of the explosion, Yonathan Barnea was killed. (Post-Mortem Rep. 1, 4 (English Trans., Ex. B to Pls.' Mot. [26] to Amend).)

9. Subsequent confessions and other statements to Israeli police and news organizations verified that Hamas was responsible for the attack. See Weinstein, 184 F. Supp. 2d at 6, ¶ 23; Mousa, 238 F. Supp. 2d at 3, ¶ 4; Eisenfeld, 172 F. Supp. 2d at 5, ¶ 16.

10. "Hamas, the popular name for the Islamic Resistance Movement, is an organization supported by The Islamic Republic of Iran, dedicated to the waging of Jihad, or a holy war employing terrorism with the object of seizing the leadership of the Palestinian people and asserting sovereignty and the rule of the Muslim religion over all of Palestine, including all territory of the State of Israel." Weinstein, 184 F. Supp. 2d at 6, ¶ 23. See also Mousa, 238 F. Supp. 2d at 3, ¶ 5; Eisenfeld, 172 F. Supp. 2d at 5, ¶ 17.

11. The affidavit testimony of Dr. Reuven Paz establishes conclusively that the defendants knew of the destructive purposes and objectives of Hamas (Dr. Paz Aff. ¶¶ 47-51), which were set forth in detail in the organization's charter (id. at Ex. B). See also Weinstein, 184 F. Supp. 2d at 6-7, ¶ 25; Mousa, 238 F. Supp. 2d at 4, ¶ 10.

12. Defendant Iran provided substantial financial support for Hamas' terrorist activities during the years immediately preceding the attack. (Dr. Paz Aff. ¶ 47.) See also Weinstein, 184 F. Supp. 2d at 7, ¶ 26.

13. Defendant Iran "is a foreign state and has been designated a state sponsor of terrorism pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C.A. § 2405(j)) continuously since January 19, 1984." Weinstein, 184 F. Supp. 2d at 7, ¶ 28. See also Mousa, 238 F. Supp. 2d at 4, ¶ 9; Eisenfeld, 172 F. Supp. 2d at 5, ¶ 21; Flatow v. Islamic Republic of Iran, 999. F. Supp. 1, 11, ¶ 19 (D.D.C. 1998) (Lamberth, J.).

14. "Iranian governmental support for terrorism is an official state policy and the approval of high-ranking Iranian officials, including Ayatollah Ali Hoseini Khamenei . . . was necessary for Iran and MOIS to support Hamas with training and economic assistance. Iran's support of Hamas could not have occurred without this senior leadership approval." Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 262, ¶ 12 (D.D.C. 2003) (Urbina, J.) (internal citations omitted). See also Dr. Clawson Aff. ¶ 23; Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 295, ¶ 41 (D.D.C. 2003) (Lamberth, J.).

15. Yonathan Barnea's death was caused by a willful and deliberate act of extra-judicial killing because it resulted from an explosion of material carried aboard the Number 18 Egged bus on February 25, 1996, intentionally detonated at approximately 6:45 a.m. Jerusalem time, by another passenger acting under instructions from an agent of Hamas. Weinstein, 184 F. Supp. 2d at ...


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