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Belkin v. Islamic Republic of Iran

September 30, 2009

LAWRENCE BELKIN, PLAINTIFF,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

This matter is before the Court on plaintiff Lawrence Belkin's motion, individually and as next of kin of Gail Belkin, for default judgment under Rule 55 of the Federal Rules of Civil Procedure, based on the sworn affidavits, exhibits, and other evidence submitted to the Court in support of the entry of a default judgment. This case arises from the 1996 killing of plaintiff's wife in Israel as the result of a suicide bombing allegedly sponsored by the defendants and carried out by the Palestinian Islamic Jihad.

I. PROCEDURAL HISTORY

1. On April 20, 2006, plaintiff filed his complaint in this Court seeking, among other things, compensation for his emotional distress and economic loss due to the wrongful death of his wife, Gail Belkin.

2. In accordance with the relevant provision of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608(a), and 22 C.F.R. § 93.2, plaintiff caused the complaint, summons and Notice of Suit, along with translations of each, to be served on each defendant, namely the Islamic Republic of Iran ("Iran"), Iran's Ministry of Information and Security ("MOIS"), and the Islamic Revolutionary Guard Corp of Iran ("IRGC").

3. Service of process was initially attempted on each defendant in Tehran, Iran via DHL pursuant to 28 U.S.C. § 1608(a)(3) on July 6, 2006 and on August 18, 2006. The DHL packages were refused on August 26, 2006, and the return receipt was returned unexecuted on August 28, 2006. Docket No. 5.

4. At plaintiff's request, the summonses were reissued on November 1, 2006, and on December 12, 2006 only as to Iran and MOIS, whereupon the Clerk of the Court was requested to assist with service of process under 28 U.S.C. § 1608(a)(4). Docket No. 8.

5. Service of process was further attempted via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4) on Iran and MOIS. On December 11, 2006, plaintiff made a request to the Clerk of the Court by letter. The Clerk of the Court transmitted the service documents to the State Department on January 25, 2007. Docket No. 9. The documents were transmitted to Iran's Ministry of Foreign Affairs via the Embassy of Switzerland on April 22, 2007 under cover of diplomatic notes, numbers 1069-IE and 1070-IE. The Iranian Ministry of Foreign Affairs returned the documents after being served, but service was effective as of April 22, 2007 under 28 U.S.C. § 1608(c)(1). Docket No. 10; see also Plaintiff's Exhibit 1.*fn1

6. Defendants' answer was due on June 21, 2007. Defendants Iran and MOIS failed to enter any appearance and failed to respond by that date. To date, no responses have been made by either defendant.

7. On July 2, 2007, plaintiff requested the Clerk of this Court to enter a default, which was entered by the Clerk on July 6, 2007. Docket No. 12. On July 27, 2007, plaintiff moved for default judgment. Docket No. 14. On December 7, 2007, plaintiff made his evidentiary submission consisting of affidavits, videotapes, and documents to the Court. Plaintiff submitted proposed findings of fact and conclusions of law.

8. On March 28, 2008, prior to the Court ruling on plaintiff's motion for default judgment, plaintiff moved for leave to file a First Amended Complaint under the authority of Section 1083 of the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), Pub. L. 110-181, which was signed by the President and enacted into law on January 28, 2008. The First Amended Complaint was lodged with the motion.

9. The Court granted leave to file the First Amended Complaint on June 17, 2008. The Amended Complaint added three additional causes of action under federal common law. They are Wrongful Death (Count II), Solatium (Count III), and Intentional Infliction of Emotional Distress (Count IV-A).*fn2

10. Plaintiff continues to rely on his previously filed evidentiary submission in support of his renewed motion for default judgment (Docket No. 20) on the Amended Complaint. On a motion for default judgment brought against a foreign sovereign or its agencies or instrumentalities, the claimant must establish his claim or right to relief by evidence satisfactory to the court. See 28 U.S.C. § 1608(e). The evidentiary submission was filed on December 7, 2007, and a courtesy copy delivered to Chambers. The Court finds that these evidentiary submissions are sufficient to establish plaintiff's claims.

II. FINDINGS OF FACT

1. Plaintiff Lawrence Belkin is a United States citizen, born and raised in Pennsylvania. After graduating from the University of Michigan in 1969, he served three years in the United States Army and then four more years in the Army Reserve. After his active duty discharge, he attended graduate school in North Carolina where he received Masters Degrees in both Architecture and Regional Planning. He worked in North Carolina from 1973 until mid-1981 when he moved to Israel and opened his own architectural design firm. Plaintiff's Exhibit 2 ¶¶ 1-5 ("Belkin Declaration").

2. When Mr. Belkin moved from North Carolina to Israel in 1981, he no longer maintained any residences or substantial contacts with any particular state in the United States. At the time he considered Israel to be his permanent residence. He did maintain general contacts with the United States government, including by filing his United States income tax returns each year while he resided in Israel. Belkin Declaration ¶ 6.

3. Mr. Belkin married Gail Belkin on March 23, 1995. Gail Belkin had been born in Rhodesia and also lived in South Africa before she immigrated to Israel. English was her native language. By profession, she was a cosmetician and ran a successful business. She became a citizen and resident of Israel. At the time of her death, she was 48 years of age and had two adult daughters from a previous marriage. Belkin Declaration ¶ 10.

4. At the time of his marriage to Gail Belkin, Mr. Belkin was a widower with two children. His first wife died suddenly six years earlier in Israel when her car collided with a truck. As a result of the loss of his first wife, the evidence submitted supports the factual assertion that Mr. Belkin felt compelled to be the best husband he could be to his new wife, and he was very close to her. He made it a point to tell her every day how much he loved her, and often told her how he dreaded the thought of losing her through death as he did his first wife. Gail Belkin was to be his companion for the rest of his life. Belkin Declaration ¶ 8.

A. The March 4, 1996 Bombing Incident

5. On the afternoon of March 4, 1996, Gail Belkin, her mother, and one of her daughters went shopping for a wedding dress in the Dizengoff Center Shopping Mall in Tel Aviv, Israel, as her daughter was engaged to be married. After a time, the daughter remained in the mall shopping by herself while Gail Belkin and her mother went outside. At approximately 4:00 p.m. on March 4, 1996, a suicide bomber affiliated with the Shaqaqi faction of the Palestinian Islamic Jihad ("PIJ") detonated a 40-pound bomb that he was carrying just outside the doors of the shopping mall in the vicinity of Gail Belkin and her mother. Gail Belkin and her mother, plus eleven others, mostly women and children, were killed in the blast. 125 other individuals were injured. Id.;Plaintiff's Exhibit 3, Expert Report of Dr. Patrick Clawson ("Clawson Report") at 5, 8.*fn3

6. The PIJ suicide bomber was identified as Ramez abed el Kader Machmad Abid, a resident of the Chan-Yuness refugee camp in Gaza. He was a known activist in the PIJ with the Shaqaqi faction. The police investigation determined that Abid had been smuggled into Israel that day by a truck driver traveling from Gaza to Tel Aviv. Clawson Report at 6, 8. See Plaintiff's Exhibit 4, Israeli Police Report, Event 27126 ("Israeli Police Report").

7. Abid carried the bomb in a black bag with two carrying handles. The main explosive was approximately 15 kilograms of TNT, around which was packed number 10 nails so as to cause maximum pain, suffering, and death to anyone in the vicinity of the detonation. The explosion was triggered by power from 9 volt batteries. When he arrived at the Dizengoff Center, Abid attached the bag to his shoulders. Id.

8. The truck driver who drove Abid into Tel Aviv, Said Bin Hussain Sulimany, was subsequently indicted and prosecuted for smuggling Abid into Israel for the equivalent of $1,100, and for assisting in murder and sabotage. Sulimany, who was convicted of providing support to terrorists, admitted that he knew Abid was a PIJ member and that he was paid the equivalent of $1,100 by a PIJ leader to smuggle Abid into Tel Aviv. Clawson Report at 6.

9. Both the PIJ and Hamas claimed responsibility for the Dizengoff Center bombing.*fn4 There is evidence that Hamas provided the bomb and that the PIJ provided the suicide bomber and facilitated his transportation to Tel Aviv where the bomb was detonated. The PIJ and Hamas are known to have collaborated in other terrorist bombings, including an April 6, 1994 incident where the suicide bomber in a car-bomb attack on a bus in Afala, Israel was a member of the PIJ, but the bomb was provided by Hamas. Id. at 6-7.

10. The context for the PIJ's bombing of the Dizengoff Center was the ongoing peace discussions between Palestinian President Yassar Arafat and Israel. Iran, as well as its agents, Hamas and the PIJ, was strongly opposed to any kind of recognition of Israel and sought by violence the rejection of the Middle East peace process. On February 28, 1996, Iranian Vice President Habibi met with Hamas leaders and PIJ leaders (including Ramadan Abdallah Shallah) in Damascus, Syria. It was reported that Habibi stressed the continuation of Iran's support for the Palestinian oppositionists working against the peace agreement. Plaintiff's Exhibit 5, Patterns of Global Terrorism, 1996; Clawson Report at 4. This statement and meeting occurred in the middle of several major bombings in Israel, including two February 25, 1996 bombings: one of a bus in Jerusalem and the other of a soldier rest station in Ashkelon, plus a subsequent bombing of another bus in Jerusalem on March 3, 2006.*fn5 There is strong evidence that the Dizengoff Center bombing was actually planned to occur on February 25, 1996 in coordination with the two other bombings that did occur that day, but it did not occur because the truck driver, who was paid to drive the suicide bomber Abid into Tel Aviv, failed to show up that day. Dr. Clawson opined that it was reasonable to conclude that at their meeting of ...


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