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Sisso v. Islamic Republic of Iran

July 5, 2007

AVRAHAM SISSO, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Findings of Fact and Conclusions of Law

This civil action against defendants Islamic Republic of Iran, Iranian Ministry of Information and Security ("MOIS"), and Harakat al-Muqawama al-Islamiyya, the jihadist Palestinian militia more commonly known as Hamas (hereinafter "Hamas"), arises out of a suicide bombing that destroyed a public bus in Tel Aviv, Israel, on September 19, 2002. Rozana Sisso, the mother of plaintiff Avraham Sisso, was killed in the explosion. Plaintiff now seeks damages for the emotional injuries he suffered as a result of his mother's death; he brings claims against Iran and MOIS under New Jersey tort law, and against Hamas under the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333(a) (2000). Plaintiff further contends that Iran and MOIS, both considered a foreign state for purposes of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1601-1611 (2000), have waived their sovereign immunity pursuant to the statutory exception for claims based on acts of state-sponsored terrorism. See § 1605(a)(7).

To date, defendants have not entered an appearance in this action. On August 23, 2006, this Court granted in part and denied in part plaintiffs' motion for entry of default,*fn1 and the Clerk of the Court entered default against all three defendants. Before this Court can enter a default judgment against either Iran or MOIS, plaintiff is required by the FSIA to establish his claims "by evidence satisfactory to the court." § 1608(e). Accordingly, the Court held an evidentiary hearing on December 7, 2006, and now issues the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiff, in his proposed findings of fact and conclusions of law submitted to the Court, observes that in a typical default action, as opposed to a default action under the FSIA, the fact of default concedes the truth of the allegations in the complaint. See, e.g., Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001) ("A defaulting defendant is deemed to admit every well-pleaded allegation in the complaint."). He also notes that because Hamas is not a sovereign entity, he is not required to prove the truth of his allegations with respect Hamas. Although plaintiff's claim against Hamas is not independently subject to the heightened evidentiary showing required by the FSIA's default-judgment provision, his claims against Iran and MOIS (both of which are subject to the FSIA, see Sisso, 448 F. Supp. 2d at 81 n.6) depend upon the Court finding the sovereign defendants vicariously liable for actions taken by Hamas. Under these circumstances, the Court will make factual findings with respect to the allegations against all three defendants.

I. Background and Events of September 19, 2002

Plaintiff Avraham Sisso was born in Beer Sheva, Israel on September 23, 1963. Tr. 34:6-10; Ex. 11. After growing up in Israel with his parents, his older brother Moshe, and his younger sisters Tobi and Galit, plaintiff moved to the United States in 1989. Tr. 15:11-22, 35:25-36:2, 34:11-12. He became a naturalized American citizen on April 11, 1996. Tr. 34:17-35:15; Ex. 11. At the time of the terrorist attack in September 2002, Mr. Sisso was living in New Jersey, Tr. 50:5-7; he now resides in Michigan with his wife Cindy and his two daughters, aged ten and thirteen, Tr. 33:25-34:4. Mr. Sisso's mother, Rozana Sisso, lived in Gan Yavne, Israel at the time of her death. Tr. 16:21-22. Mr. Sisso's father and siblings remain in Israel. Tr. 39:17-22.

Mr. Sisso testified that his relationship with his mother was special and different from the relationships she had with her other children. Tr. 45:7-18. He explained that while Rozana Sisso was protective of his siblings, she treated him as more of an equal and often asked for his advice. Id. Mr. Sisso also spoke of his mother as playing a central role in his decision to move to the United States; she later considered moving to the United States herself, going so far as to obtain a green card. Tr. 45:19-47:4. Even after Avraham Sisso moved to the United States, he maintained a close relationship with his mother. They had long phone conversations every other week and visited each other in person about every other year. Tr. 47:5-14. The last such visit occurred approximately three months before Rozana Sisso's death, when she traveled with Avraham Sisso and his family to Portland, Maine and Montreal, Quebec. Tr. 47:15-49:25, Ex. 14.

At the time of her death, Rozana Sisso worked in Tel Aviv, where she owned and operated a women's clothing store at 101 Allenby Street. Tr. 16:23-17:7. The shop, called Rozana's Shop, was located across the street from the Great Synagogue, which is the biggest synagogue in Tel Aviv. Tr. 20:21-21:3, Exs. 1, 2. Plaintiff's brother, Moshe Siso, owns a jewelry store that was also located at 101 Allenby Street, adjacent to Rozana's Shop. Tr. 13:4-14:6, Ex. 1. Both stores were situated near a bus stop for the number 4 bus, Tr. 21:7-22, Exs. 1, 2, and the entire area was heavily trafficked by pedestrians, particularly tourists visiting the Great Synagogue, Tr. 15:1-6.

On September 19, 2002, shortly before 12:55 p.m., Iyad Radad boarded a number 4 bus near 94 Allenby Street in Tel Aviv. Ex. 18 at 3, 15. Just as the bus began to move, Radad activated an explosive device that he was wearing. Id. The resulting explosion killed six people, including Rozana Sisso. Id. The attack also injured eighty-four other people and caused extensive damage to the bus and nearby shops and cars. Id. Moshe Siso witnessed the terrorist attack on September 19, 2002. He described the horrific details of the bombing and its aftermath in his testimony at the evidentiary hearing held by this Court. See Tr. 23-29.

Avraham Sisso was in Massachusetts at a business meeting on Thursday, September 19, 2002, and was notified of his mother's death by a phone call from his wife. Tr. 50:8-24. He felt "shock and disbelief" upon hearing the news and immediately arranged to fly to Israel to attend her funeral. Tr. 51:1-52:5. Even though Jewish tradition requires that funerals take place as soon as possible, the family waited several days -- until after Mr. Sisso had arrived -- before holding the ceremony out of the belief that Rozana would have wanted him to be there. Tr. 51:19-52:17. Mr. Sisso stayed in Israel for the traditional week-long period of mourning and remained there for several additional weeks. Tr. 52:21-53:3.

Plaintiff was profoundly affected by the death of his mother. He testified that he has been "in shock ever since" hearing the news, Tr. 51:4-6, and that he is "not the same person [he] was before," Tr. 55:10. He explained that he used to think of himself as a fun person who spent time with his children and enjoyed life. Tr. 55:11-16. Since his mother's death, however, Mr. Sisso has felt "sad almost all the time" and thinks about her death whenever he has free moments. Tr. 55:17-25. As a result, Mr. Sisso is "dealing with [her death by] working all the time." Tr. 56:2-3. He no longer coaches his daughters in soccer and he abandoned plans to obtain the MBA that he was studying for at the time of Rozana Sisso's death. Tr. 55:10-16, 56:20-24. Mr. Sisso also described experiencing feelings of guilt when he does enjoy himself, and he also wonders whether he should have done more to bring his mother permanently to the United States. Tr. 56:7-17. He does not sleep as well as he used to because he is less physically active, and he remarked that he often feels tired but does not know why. Tr. 57:1-4.

Plaintiff submitted affidavit testimony from Dr. Larry Howard Pastor, a psychiatrist whom this Court finds to be qualified as an expert in Post-Traumatic Stress Disorder, including psychiatric responses to traumatic events such as terrorism. See Ex. 22 ¶¶ 1-11. Dr. Pastor explained that when the death of a loved one is caused by a sudden, violent traumatic event, "post-traumatic stress reactions interfere with the understanding, acceptance, and internalization of the representation of the lost loved one that is the essence of the bereavement and grief process." Ex. 22 ¶ 17. Thus, the survivors "tend to focus on the experience of the traumatic event" in a way that "intefere[s] with the ability to retain comforting memories that would allow the bereaved survivor to accept the reality of the loss and move forward with life." Id. "Furthermore, sudden or unexpected death leaves little or no time for anticipation, or for psychological 'letting go' of the lost loved one." Id. ¶ 18.

Dr. Pastor's testimony confirms that plaintiff has experienced many of the psychological consequences commonly felt by the surviving family members of terrorist attack victims. For example, traumatic stress and grief may lead to reactions that include anxiety, intense sadness, intrusive thoughts or imagery, shame or self-blame, fatigue, emotional and social withdrawal, and "an unwillingness or inability of the surviving person to take enjoyment in life, or to participate in certain activities that were part of that person's life prior to the traumatic loss." Id. ¶ 20. Dr. Pastor also explained that "survivor's guilt" -- which takes the form of feeling a "sense of responsibility and a belief, however unrealistic, that [the survivor] could have somehow prevented [the] loved one's death" -- can limit the ability of a surviving family member to move beyond the loss and impede his or her enjoyment of ordinarily pleasurable experiences. Id. ¶ 21.

II. Hamas's Responsibility for the September 19 Attack

According to the 2002 Patterns of Global Terrorism report, published by the U.S. Department of State, Hamas has claimed responsibility for the explosion in Tel Aviv on September 19, 2002. Ex. 19 at 92. Hamas was founded in 1987 "as an outgrowth of the Palestinian branch of the Muslim brotherhood," and has been deemed a Foreign Terrorist Organization by the Secretary of State pursuant to 8 U.S.C. § 1189. Id. at 101, 107; see also Ex. 21 ¶ 9. It uses violent means to achieve its goal of establishing an Islamic Palestinian state in place of the State of Israel. Ex. 19 at 107; see also Ex. 21 ¶ 9. As explained by Christopher D. Hamilton, an expert on Hamas and Middle East terrorism and counterterrorism,*fn2 Hamas's attacks are indiscriminate in nature and are intended to terrorize the general Israeli population, including the surviving relatives and friends of the direct victims of attacks. Ex. 21 ΒΆ 15. In planning these attacks, Hamas purposefully targets heavily populated places such as buses, bus stops, restaurants, markets, discotheques, and universities. Id. Between September 2000 and March 2004, Hamas was responsible for 425 ...


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