The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
This case arises out of the October 23, 1983, bombing of the United States Marine barracks in Beirut, Lebanon ("the Beirut bombing"), where a suicide bomber murdered 241 American military servicemen in the most deadly state-sponsored terrorist attack upon Americans until the tragic attacks on September 11, 2001. The Court will first discuss the background of this case: the commencement of this case by plaintiffs, the later inclusion of plaintiffs in intervention, the retroactive application of recent changes to the Foreign Sovereign Immunities Act (FSIA), the judicial notice taken of findings and conclusions made in a related case, the entry of default judgment, and a summary of the claims made in this case. Second, the Court will make findings of fact. Third, the Court will discuss the Court's personal and subject-matter jurisdiction. Fourth, the Court will discuss defendants' liability under the federal cause of action created by the Foreign Sovereign Immunities Act. Finally, the Court will award compensatory and punitive damages as appropriate.
This case contains two complaints: one by the plaintiffs, the other by the plaintiffs in intervention (also referred to as "intervenor plaintiffs" or "intervenors"). The terrorism exception to the FSIA, as recently amended, applies retroactively to claims made by both plaintiffs and intervenors. The Court has taken judicial notice of the findings and conclusions entered in a related case. The Court will enter default judgment against defendants and in favor of all plaintiffs and intervenors. Plaintiffs and intervenors have brought various claims of wrongful death, assault, battery, and intentional infliction of emotional distress (IIED), for which they seek compensatory and punitive damages.
A. Retroactive Application of Recently Amended Provisions of the FSIA to Plaintiffs and Intervenors
Plaintiffs originally brought this action against defendants under 28 U.S.C. § 1605(a)(7), the former state-sponsor-of-terrorism exception to the general rule of sovereign immunity enumerated in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602--1611. See Compl., Mar. 31, 2006, ECF No. 1. Section 1605(a)(7) "was 'merely a jurisdiction conferring provision,' and therefore did not create an independent federal cause of action against a foreign state or its agents." In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31 (D.D.C. 2009) (Lamberth, J.) (quoting Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1027, 1032 (D.C. Cir. 2007)). It merely opened the door to plaintiffs seeking to bring suit in federal court against foreign sovereigns for terrorism-related claims, which had to be based on state tort law. Id. at 40--48 (providing a historical overview of the FSIA terrorism exception) Further, the FSIA did not permit the awarding of punitive damages against foreign states themselves. Id. at 48.
This case comes to the Court following final judgment in Peterson v. Islamic Republic of Iran. See Peterson v. Islamic Republic of Iran,515 F. Supp. 2d 25 (D.D.C. 2007) (Lamberth, J.) [hereinafter Peterson II] (final judgment); Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003) (Lamberth, J.) [hereinafter Peterson I] (default judgment). Peterson established the liability of Iran and MOIS in the terrorist attack out of which this case also arise, but did so under § 1605(a)(7), thus reaching "inconsistent and varied result[s]" when various states' tort laws differed. In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 59; Congress responded to this inconsistency and the unavailability of punitive damages by replacing § 1605(a)(7) with § 1605A, a new terrorism exception that provides an independent federal cause of action and makes punitive damages available to plaintiffs. See In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 58--61 (discussing repeal of § 1605(a)(7) and enactment of § 1605A). Plaintiffs now seek to retroactively take advantage of these changes. As do plaintiffs in intervention; Intervenors filed their complaint in intervention stating claims only under § 1605A, but they too must satisfy certain procedural requirements to take advantage of § 1605A, enacted in 2008, to the Beirut Bombing, which occurred in 1983.
Parties seeking to take advantage of this new federal cause of action and punitive-damages allowance must proceed under one of three procedural approaches, which are laid out in part in the National Defense Authorization Act for Fiscal Year 2008 (2008 NDAA), Pub. L. No. 110-181, § 1083(2)--(3), 112 Stat. 3, 342--43 (2008). See generally In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 62--65). These three approaches are prior actions, related actions, or stand-alone actions.
First, § 1605A may apply to a "prior action," which is one that (1) "was brought under section 1605(a)(7) of title 28, United States Code... before the date of the enactment of this Act," the 2008 NDAA, January 28, 2008, § 1083(c)(2)(A)(i); (2) "relied upon... such provision as creating a cause of action," § 1083(c)(2)(A)(ii); (3) "has been adversely affected on the grounds that [such] provision fail[ed] to create a cause of action against the state," § 1083(c)(2)(A)(iii); and (4) "as of such date of enactment, [was] before the courts in any form," § 1083(c)(2)(A)(iv). Second and alternatively, § 1605A may apply to a "related action," which is one "arising out of the same act or incident" as "an action arising out of an act or incident [that] has been timely commenced under section 1605(a)(7) of title 28, United States Code." § 1083(c)(3). Third and finally, potential plaintiffs may pursue a stand-alone action, which is one in which § 1605A need not retroactively apply to some past attack. Plaintiffs and intervenors in this case proceed under the second approach. This case is related to, among other cases, Valore v. Islamic Republic of Iran, a consolidation of four cases, all of which were timely commenced under § 1605(a)(7) and which arose out of the same act or incident as this case: the Beirut Bombing. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 57 (D.D.C. 2010) (Lamberth, C.J.) ("All plaintiffs in this case originally brought their individual actions against defendants under 28 U.S.C. § 1605(a)(7)....").
To secure retroactive application of § 1605A, a party in a related action must seek such retroactivity "not later than the latter of 60 days after the date of the entry of judgment in the original action"-the one to which the related action is related-or January 28, 2008-the date of the enactment of the 2008 NDAA. § 1083(c)(3). Plaintiffs sought retroactive application through their Motion for Leave to Amend Complaint, ECF No. 46, which was filed on February 26, 2010. Plaintiffs in intervention sought retroactive application by filing their Complaint in Intervention, ECF No. 31, on November 17, 2008. Final judgment in Valore was entered on March 31, 2010. See Order & J., Valore, No. 03-cv-1959 (D.D.C. Mar. 31, 2010), ECF No. 60.
Both plaintiffs and intervenors therefore commenced their respective portions of this action well before 60 days after the entry of final judgment in Valore. The Court may therefore apply § 1605A to all claims in this case, and has allowed plaintiffs to amend their complaint and intervenors to intervene. Order Granting Mot. for Leave to Am. Compl., Apr. 13, 2010, ECF No. 52; Order, Nov. 17, 2008, ECF No. 30; see Am. Compl. for Dam., Apr. 13, 2010, ECF No. 54 [hereinafter Pls.' Compl.]; Compl. in Intervention, Nov. 17, 2008, ECF No. 30 [hereinafter Ints.' Compl.].
B. Judicial Notice and Default Judgment
The Court has taken judicial notice of the findings of fact and conclusions of law made in Peterson, which also arose out of the Beirut Bombing; in the orders taking such notice, the Court also issued default judgments against both defendants, which failed to appear. Order Granting in Part and Finding as Moot in Part Mot. for Judicial Notice of Findings of Fact and Conclusions of Law on Liability of Defs., Apr. 13, 2010, ECF No. 53; Order, Oct. 2, 2007, ECF No. 27. Plaintiffs and intervenors had both established their right to relief "by evidence satisfactory to the court," 28 U.S.C. § 1608(e), through "uncontroverted factual allegations, which are supported by... documentary and affidavit evidence," Int'l Road Fed'n v. Embassy of the Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001) (quotation omitted).
A court may take judicial notice of any fact "not subject to reasonable dispute in that it is... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Under Rule 201(b), courts generally may take judicial notice of court records. See 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5106.4; see also Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938) ("A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding...."). Indeed, as has been noted in several other FSIA cases brought in this District, "this Court 'may take judicial notice of related proceedings and records in cases before the same court.'" Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50--51 (D.D.C. 2009) (quoting Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d. 229, 267 (D.D.C. 2006) (Lamberth, J.) [hereinafter Heiser I]). At issue is the effect of such notice.
Although a court clearly may judicially notice its findings of facts and conclusions of law in related cases, this Circuit has not directly considered whether and under what circumstances a court may judicially notice the truth of such findings and conclusions. Circuits that have addressed this question have concluded that "courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these are disputable and usually are disputed"; but because "it is conceivable that a finding of fact may satisfy the indisputability requirement," these courts have not adopted a per se rule against such notice. Taylor v. Charter Med. Corp., 162 F.3d 827, 829--30 (5th Cir. 1998); see also Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003); Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F. 3d 66, 70 (2d Cir. 1998); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 n.6 (7th Cir. 1997); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994); Holloway v. Lockhart, 813 F.2d 874, 878--79 (8th Cir. 1987). See generally 21B Wright & Graham, supra, § 5106.4 ("While judicial findings of fact may be more reliable than other facts found in the file, this does not make them indisputable....").
This District has followed a similar approach in FSIA cases: judicial notice of the truth of findings and conclusions is not prohibited per se, but is inappropriate absent some particular indicia of indisputability. Here, there are no such indicia. With "defendants having failed to enter an appearance," Peterson was decided without the full benefits of adversarial litigation, and its findings thus lack the absolute certainty with which they might otherwise be afforded. Peterson I, 264 F. Supp. 2d at 49. Just as "findings of fact made during this type of one-sided hearing should not be given a preclusive effect," Weinstein v. Islamic Republic of Iran, 175 F. Supp. 2d 13, 20 (D.D.C. 2001) (Lamberth, J.), they also should not be assumed true beyond reasonable dispute. Moreover, because "default judgments under the FSIA require additional findings than in the case of ordinary default judgments," id. at 19--20, the court should endeavor to make such additional findings in each case.
The taking of judicial notice of the Peterson opinion, therefore, does not conclusively establish the facts found in Peterson for, or the liability of the defendants in, this case. But "the FSIA does not require this Court to relitigate issues that have already been settled" in previous decisions. Brewer, 664 F. Supp. 2d at 54. Instead, the Court may review evidence considered in an opinion that is judicially noticed, without necessitating the re-presentment of such evidence. Heiser I, 466 F. Supp. 2d at 264 (reconsidering evidence presented in Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40 (2006) (Lamberth, J.)). In rendering default judgment against defendants, the Court was therefore required to, and did, find facts and make legal conclusions anew. Below, the Court expounds on those findings and conclusions.
C. Summary of Plaintiffs' and Intervenors' Claims
Servicemen Armando Ybarra and John L'Heureux who survived the attack have brought claims of assault, battery, and intentional infliction of emotional distress, seeking damages for pain and suffering and economic losses. The estates of one serviceman killed in the attack- Terrance Rick ("decedent"), represented by Elizabeth Murphy-has brought a claim for wrongful death, seeking to recover decedent's lost wages and earnings. Finally, family members of servicemen-victims-Elizabeth Murphy, Bryan Harris, Mary E. Wells, Kerry M. L'Heureux, and Jane L. L'Heureux-have brought claims for intentional infliction of emotional distress, seeking solatium. Armando Ybarra and John L'Heureux have also sought punitive damages.
Based on plaintiffs' and intervenors' uncontroverted factual assertions in their complaints and with due reference to facts found in Peterson, the Court finds the following:
A. The Relationship Between Hezbollah and Iran
In late 1982 [during the Lebanese Civil War], with the concurrence of the United Nations, a multinational peacekeeping coalition consisting of American, British, French, and Italian soldiers arrived in the Lebanese capital of Beirut. In May of 1983, the 24th Marine Amphibious Unit of the U.S. Marines ("the 24th MAU") joined this coalition.
Following the 1979 revolution spearheaded by the Ayatollah Ruhollah Khomeini, the nation of Iran was transformed into an Islamic theocracy.... The post-revolutionary government in Iran... declared its commitment to spread the goals of the 1979 revolution to other nations. Towards that end, between 1983 and 1988, the government of Iran spent approximately $50 to $150 million financing terrorist organizations in the Near East. One of the nations to which the Iranian government directed its attention was the war-torn republic of Lebanon.
"Hezbollah" is an Arabic word meaning "the party of God." It is also the name of a group of Shi'ite Muslims in Lebanon that was formed under the auspices of the government of Iran. Hezbollah began its existence as a faction within a group of moderate Lebanese Shi'ites known as Amal. Following the 1982 Israeli invasion of Lebanon, the Iranian government sought to radicalize the Lebanese Shi'ite community, and encouraged Hezbollah to split from Amal. Having established the existence of Hezbollah as a separate entity, the government of Iran framed the primary objective of Hezbollah: to engage in terrorist activities in furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran.
Peterson I, 264 F. Supp. 2d at 49--51 (footnotes omitted).
During the Peterson trial, several experts testified on Iran's terrorist activities. Patrick Clawson, Ph.D., "a widely-renowned expert on Iranian affairs," testified that in 1983, Hezbollah was "a creature of the Iranian government." Id. at 51. According to Dr. Clawson:
Both from the accounts of Hezbollah members and from the accounts of the Iranians and of every academic study that I'm aware of, certainly at this time, Hezbollah is largely under Iranian orders. It's almost entirely acting... under the order of the Iranians and being financed almost entirely by the Iranians.
Id. Dr. Clawson's testimony was corroborated by that of Michael Ledeen, Ph.D., "a consultant to the Department of Defense at the time of the Marine barracks bombing and an expert on U.S. foreign relations, [who] testified at trial that 'Iran invented, created, funded, trained, and runs to this day Hezbollah, which is arguably the world's most dangerous terrorist organization.'" Id. at 51 n.8. Dr. Clawson's testimony was further corroborated by Reuven Paz, Ph.D., "who has researched Islamic groups for the last 25 years" and who testified at trial that Hezbollah "totally relied upon... Iranian support" and that at the time of the Beirut bombing, "when Hezbollah was not yet formed as a strong group, it was totally controlled by Iran and actually served mainly the Iranian interest in Lebanon." Id. at 52. Dr. Paz testified further that Hezbollah could not have carried out the Beirut bombing "without Iranian training, without... Iranian supply of the explosives..., and without directions from the Iranian forces in Lebanon itself." Id.
It is clear that the formation and emergence of Hezbollah as a major terrorist organization is due to the government of Iran. Hezbollah... receive[d] extensive financial and military technical support from Iran, which funds and supports terrorist activities. The primary agency through which the Iranian government both established and exercised operational control over Hezbollah was the Iranian Ministry of Information and Security ("MOIS"). MOIS had formerly served as the secret police of the Shah of Iran prior to his overthrow in 1979. Despite the revolutionary government's complete break with the old regime, it did not disband MOIS, but instead allowed it to continue its operations as the intelligence organization of the new government.... MOIS acted as a conduit for the Islamic Republic of Iran's provision of funds to Hezbollah, provided explosives to Hezbollah and, at all times relevant to these proceedings, exercised operational control over Hezbollah.
Id. at 53. See generally Council on Foreign Relations, Hezbollah (a.k.a. Hizbollah, Hizbu'llah) (July 15, 2010), http://www.cfr.org/publication/9155 ("[Hezbollah] has close links to Iran...."); Council on Foreign Relations, State Sponsors: Iran (Aug. 2007), http://www.cfr.org/publication/ 9362 ("Iran mostly backs Islamist groups, including the Lebanese Shiite militants of Hezbollah....").
It is clear that MOIS was no rogue agency acting outside of the control and authority of the Iranian government.... [T]he October 23 attack would have been impossible without the express approval of Iranian government leaders at the highest level....
The approval of the ayatollah and the prime minister was absolutely necessary to carry out the continuing economic commitment of Iran to Hezbollah, and to execute the October 23 attack. Given their positions of authority, any act of these two officials must be deemed an act of the government of Iran.
Peterson I, 264 F. Supp. 2d at 52--53 (footnotes omitted). As Dr. Clawson testified, approval for the attack could only come after "a discussion in the National Security Council which would involve the prime minister, and it would also have required the approval of Iran's supreme religious leader, Ayatollah Khomeini." Id. at 53; see also Anthony H. Cordesman & Martin Kleiber, Ctr. for Strategic & Int'l Studies, Iran's Military Forces and Warfighting Capabilities 131 (2007) (noting that MOIS is funded by Iran with "a comparatively large budget" and "operates under the broader guidance of Ali Khamenei").
The complicity of Iran in the 1983 attack was established conclusively... [by a] message [that] had been sent from MOIS to [the] Iranian ambassador to Syria.... The message directed the Iranian ambassador to contact... the leader of the terrorist group Islamic Amal, and to instruct him to have his group instigate attacks against the multinational coalition in Lebanon, and "to take a spectacular action against the United States Marines."
Hezbollah members formed a plan to carry out simultaneous attacks against the American and French barracks in Lebanon.
[A] 19-ton truck was disguised so that it would resemble a water[-] delivery truck that routinely arrived at the Beirut International Airport, which was located near the U.S. Marine barracks in Beirut, and modified the truck so that it could transport an explosive device. On the morning of October 23, 1983, members of Hezbollah ambushed the real water delivery truck before it arrived at the barracks. An observer was placed on a hill near the barracks to monitor the operation. The fake water delivery truck then set out for the barracks....
At approximately 6:25 a.m. Beirut time, the truck drove past the Marine barracks. As the truck circled in the large parking lot behind the barracks, it increased its speed. The truck crashed through a concertina wire barrier and a wall of sandbags, and entered the barracks. When the truck reached the center of the barracks, the bomb in the truck detonated.
The resulting explosion was the largest non-nuclear explosion that had ever been detonated on the face of the Earth. The force of its impact ripped locked doors from their doorjambs at the nearest building, which was 256 feet away. Trees located 370 feet away were shredded and completely exfoliated. At the traffic control tower of the Beirut International Airport, over half a mile away, all of the windows shattered.... The explosion created a crater in the earth over eight feet deep. The four-story Marine barracks was reduced to fifteen feet of rubble.
Peterson I, 264 F. Supp. 2d at 54--58 (footnotes omitted).
"As a result of the Marine barracks explosion, 241 servicemen were killed, and many others suffered severe injuries." Id. at 58. In the immediate aftermath of the explosion, those who could "ran to the rubble and started searching for survivors among the loose hands, heads, legs, arms, and torsos that littered the ruble-strewn ground." Eric M. Hammel, The Root: The Marines in Beirut, August 1982--February 1984, at 330 (1985). In the remains of the barracks, "[h]uge blocks of steel-laced concrete angled in all directions" where "twisted corpses dangled from the cracks." Id. at 352. Many of those who survived "had shredded skin adhering to their lower legs and feet... caused by the force of the blast." Id. at 351. The Court need not expand further on the gruesome detail of this horrific attack; several historians and eyewitnesses have contributed to a rich historical record of the tragedy.*fn1
The FSIA "is the sole basis of jurisdiction over foreign states in our courts." In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 39. The FSIA concerns both subject-matter jurisdiction and personal jurisdiction. The Court has both.
A. Subject-Matter Jurisdiction
Several sections of the FSIA and related statutes set forth several specific requisites that must be satisfied for the Court to have jurisdiction over the subject matter of this case. These requisites may be broken down into four categories: grant of original jurisdiction, waiver of sovereign immunity, requirement that a claim be heard, and ...