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Kirschenbaum v. Islamic Republic of Iran

August 26, 2008

JASON KIRSCHENBAUM, ET AL., PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case arises from the December 1, 2001 suicide bombing at the pedestrian mall on Ben Yehuda Street in Jerusalem, Israel. Plaintiffs are Jason Kirschenbaum, who was a victim in the attack, and his parents and siblings. Plaintiffs allege that the Islamic Republic of Iran ("Iran"), and the Iranian Ministry of Intelligence and Security ("MOIS"), are jointly and severally liable for damages from the attack because they provided material support and assistance to Hamas, the terrorist organization that orchestrated and carried out the bombing. As such, defendants are subject to suit under the terrorist exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7).*fn1

On August 11, 2003, plaintiffs filed their Complaint under the FSIA seeking redress for their losses. On November 14, 2006, this Court ordered service upon defendants through diplomatic channels in accordance with 28 U.S.C. § 1608(a)(4). On June 20, 2007, plaintiffs filed proof of service in compliance with statutory procedures and thereafter sought entry of default on October 12, 2007, based upon defendants' failure to respond or enter an appearance. Default was entered by the Clerk of this Court against both defendants Iran and MOIS on October 15, 2007.

Plaintiffs' liability and damages claims are supported by the evidence presented in the January 3, 2008 hearing on liability. Based on all of the 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 plaintiff and against defendants Iran and MOIS.

FINDINGS OF FACT

I. Generally

1. Plaintiff Jason Kirschenbaum was born on July 1, 1983. (Hr'g Tr. 73.) He is a U.S. citizen who is domiciled in New York. (Id. at 9--10.) He was injured in the December 1, 2001 Ben Yehuda Street bombing.

2. Plaintiff Isabelle Kirschenbaum is a U.S. citizen who is domiciled in New York. (Id.) She is Jason Kirschenbaum's mother. (Id. at 7.)

3. Plaintiff Martin Kirschenbaum, who passed away since the date of this Court's evidentiary hearing, was a U.S. citizen domiciled in New York. (Supp. Ex. 1A.) He was Jason Kirschenbaum's father.*fn2 (Hr'g Tr. 25.)

4. Plaintiff Joshua Kirschenbaum is a U.S. citizen who is domiciled in New York. (Id. at 9, 44.) He is Jason Kirschenbaum's brother. (Id. at 7.)

5. Plaintiff David Kirschenbaum is a U.S. citizen who is domiciled in New York. (See id. at 10.) He is Jason Kirschenbaum's brother. (Id. at 9.)

6. Plaintiff Danielle Teitlebaum is a U.S. citizen who is domiciled in New York. (See id. at 10.) She is Jason Kirschenbaum's sister. (Id. at 63.)

7. Jason Kirschenbaum was raised in a close, Orthodox Jewish family. (See id. at 26.) Isabelle and Martin Kirschenbaum have been married for forty years. (Id. at 7.) Jason is the youngest of the five Kirschenbaum children-the "baby" of the family. (Id. at 74.)

8. Jason was always very close to his family members, especially his brother Joshua Kirschenbaum with whom he played sports, attended school, and spent a lot of time. (Id. at 43.) The entire family, including his older siblings, took care of Jason as he was the youngest of the children. (Id. at 8, 74.)

9. After graduating from Yeshiva University in September of 2001, Jason traveled to Israel to study. (Id. at 74.) Joshua Kirschenbaum was already living in Israel at that time. (Id. at 43.) At the time Jason Kirschenbaum was in Israel, only a couple of months following the Sbarro bombing, students were advised not to go out because of concerns of additional attacks. (Id. at 75.) Shortly after he arrived in Israel, the September 11 attack occurred. (Id.)

10. In October 2001, Martin and Isabelle Kirschenbaum, their daughter Danielle Teitlebaum, her husband, and her nine-month-old son, traveled to Jerusalem for Sukkot. (Id. at 8, 65.) Their trip was in such proximity to September 11, 2001, that the family members had a heightened fear of terrorist bombings and took precautions as they traveled. (Id. at 9.)

11. The threat level in Israel during the fall of 2001 remained at a constant state of danger. (Id. at 44.) Cellular phones were kept on-hand at all times to facilitate ease in communication between attacks. (Id. at 45.)

II. The Ben Yehuda Street Attack

12. On December 1, 2001, around 10:30 or 11:00 p.m., Jason Kirschenbaum was heading toward the pedestrian mall on Ben Yehuda Street to meet friends after playing a game of floor hockey. (Id. at 76, 77.)

13. Jason Kirschenbaum was walking toward Burger King on Ben Yehuda Street when suddenly he heard a loud explosion up the street. (Id. at 78.) Seconds later, he heard another loud explosion and was simultaneously thrown to the ground. (Id.) There were two bombers and a car bomb, for a total of three bombs. (Id. at 16.) The first bomb went off at the end of Ben Yehuda Street, and the second bomb went off right next to Jason Kirschenbaum. (Id. at 78.)

14. When Jason Kirschenbaum got up, he realized that he had no control of his left arm.

(Id. at 79.) There were wounded people and bodies on the street, smoke, screaming, and car alarms going off around the block. (Id. at 80--81.) He sought help but observed that others around him were also badly wounded. (Id. at 79--80.) He saw people on the ground and was not sure if they were alive. (Id. at 82.) He also realized that his left leg had been hit. (Id. at 81.)

15. At least 10 people were killed and 120 wounded as a result of the attack. (Hr'g Ex. 3 at 83.) Hamas, also known as the Islamic Resistance Movement, claimed responsibility for the December 1, 2001 attack. (Id.) Hamas is an organization supported by 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." Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 79, ¶ 10 (D.D.C. 2006) (Lamberth, J.) (quoting Weinstein v. Islamic Republic of Iran, 184 F. Supp. 2d 13, 19, ¶ 24 (D.D.C. 2002) (Lamberth, J.)).

16. 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 App. U.S.C.A. § 2405(j)) continuously since January 19, 1984." Flatow v. Islamic Republic of Iran, 999. F. Supp. 1, 9, ¶ 19 (D.D.C. 1998) (Lamberth, J.). In 2001, "Iran remained the most active state sponsor of terrorism," continuing to provide terrorist groups with funding, safe haven, training, and weapons. (Hr'g Ex. 3 at 64--65.)

17. The December 1, 2001 bombing was not the first multiple suicide attack on Ben Yehuda Street perpetrated by Hamas. The terrorist group was also responsible for a virtually identical multiple suicide attack at the pedestrian mall on Ben Yehuda Street in 1997. That attack killed and wounded nearly 200 people. See Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 261 (D.D.C. 2003) (Urbina, J.).

18. Isabelle Kirschenbaum learned of the attack on December 1 when saw a television news flash reporting that there was a bombing in Jerusalem. (Hr'g Tr. 10.) She immediately panicked because she saw Jason being put into an ambulance (id. at 11), recognizing him from his clothes and shoes. (Id. at 17.) She ran upstairs and told her husband that Jason was at the bomb scene and that they had to go to Israel. (Id. at 11.)

19. Isabelle and Martin Kirschenbaum tried to contact Jason and when they had no success, they contacted other family members and friends in Israel. (Id. at 12.)

20. Danielle Teitlebaum, who is seven years older than Jason, learned of the December 1, 2001 bombing while she was at her brother-in-law's house. (Id. at 67.) She immediately called her brother, Joshua whom she knew was also in Israel. (Id.) When she heard that Jason could not be found, she put the phone down and started to scream. (Id.) Soon after, she called her mother who was crying into the phone. ...


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