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EMMA JEAN ANDERSON, et al v. THE ISLAMIC REPUBLIC OF IRAN

December 1, 2010

EMMA JEAN ANDERSON, ET AL., PLAINTIFF,
v.
THE ISLAMIC REPUBLIC OF IRAN, ET AL. DEFENDANTS.



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

MEMORANDUM OPINION

I. INTRODUCTION

This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and left countless others wounded, and caused severe injuries to servicemen Dennis Jack Anderson, Jr., Pedro J. Alvarado and Willie George Thompson. Various family members of these three servicemen now bring suit against defendants Islamic Republic of Iran ("Iran") and the Iranian Ministry of Information and Security ("MOIS"). Their action is brought pursuant to the state-sponsored exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq., which was enacted as part of the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"). Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338--44 (2008). That provision, codified at 28 U.S.C. § 1605A, provides "a federal right of action against foreign states." Simon v. Islamic Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008). In particular, plaintiffs allege that defendants, by both creating and supporting the terrorist organization Hezbollah and directing that organization to take 'spectacular action against the United States Marines' stationed in Lebanon, are legally responsible for the severe mental anguish and emotional toll that the barracks bombing wreaked upon them. For the reasons set forth below, the Court finds that plaintiffs have provided sufficient proof to support their causes of action, and determines that defendants are liable under the FSIA's state-sponsored terrorism exception.

II. PROCEDURAL HISTORY

A. Prior Beirut Bombing Litigation

There is a lengthy history of litigation before this Court concerning the 1983 bombing of the U.S. Marine barracks in Beirut. In the seminal case, Peterson v. Islamic Republic of Iran, dozens of plaintiffs consisting of family members of the 241 deceased servicemen, as well as several injured survivors of the attack, sued defendants Iran and MOIS, seeking to hold them liable for the horrific act under the former state-sponsored terrorism exception, which at that time was codified at 28 U.S.C. § 1605(a)(7). 264 F. Supp. 2d 46, 48 (D.D.C. 2003) (Lamberth, J.). Over two days in March of 2003, the Court conducted a bench trial at which it heard testimony from lay and expert witnesses and received documentary evidence concerning the horrific attack, the grave injuries many suffered, defendants' involvement in the bombing, and their support for international terrorism more broadly. See generally id. at 48--59 (discussing evidence and findings of fact). Based on that evidence, the Court found "that it is beyond question that Hezbollah and its agents received massive material and technical support from the Iranian government. . . . [and] that it is highly unlikely that this attack could have resulted in such loss of life without the assistance of regular military forces, such as those of Iran." Id. at 58. The Court then determined, as a legal matter, that "MOIS actively participated in the attack" and was "acting as an agent of . . . Iran" when doing so, and thus defendants Iran and MOIS were "jointly and severally liable to the plaintiffs" for damages. Id. at 61. The Court left the determination of damages in Peterson to another day following further findings of fact by several special masters appointed to assist the Court. Id. at 65.

Several new suits against Iran and MOIS were filed in the wake of the determination of defendants' liability in Peterson. Of greatest importance for these purposes is the case of Valore v. Islamic Republic of Iran, in which three servicemen at the center of this case were plaintiffs. 700 F. Supp. 2d 52, 61 n.1 (D.D.C. 2010) (Lamberth, J.). In addition, various family members of these three servicemen "brought claims for intentional infliction of emotional distress, seeking solatium." Id. at 60 & 61 n.4.*fn1 The Court, relying extensively on the evidence presented in Peterson, determined that "defendants are liable for extra-judicial killing and the provision of material support and resources for such killing, which was committed by officials, employees, and agents of defendants; which caused injury under several theories of liability; and for which the Court has jurisdiction for money damages." Id. at 80--81. The Court then awarded compensatory and punitive damages, totaling $290,291,092 and $1,000,000,000, respectively. Murphy v. Islamic Republic of Iran, F. Supp. 2d , No. 06 Civ. 596, 2010 U.S. Dist. LEXIS 101250, *80 (D.D.C. Sep. 24, 2010) (summarizing awards in Valore). Subsequent to the opinion in Valore, several other cases related to the 1983 attack, including this one, remained pending before this Court.

B. This Action

While the claims brought by servicemen Dennis Jack Anderson, Jr., Pedro J. Alvarado, and Willie George Thompson, and some of their family members was pending before this Court in Valore, plaintiffs here, who are other family members of these servicemen not included in the Valore suit, brought a separate action under former § 1605(a)(7). Complaint, Mar. 27, 2008 [3].

Then, following the enactment of the NDAA, plaintiffs filed an Amended Complaint seeking retroactive application of § 1605A under the related action procedures found in the NDAA. Amended Complaint ¶ 1, Nov. 25, 2009 [6]. Plaintiffs here are the mother, father*fn2 and brother of serviceman Anderson, the estates of serviceman Alvarado's parents, and the estate of serviceman Thompson's father. Id. In the Complaint, plaintiffs allege the same essential facts concerning the barracks bombing that were established by sufficient evidence in Peterson, id. at ¶¶ 2, 6--9, and set forth claims of intentional infliction of emotional distress against the defendants. Id. at ¶¶ 10--15. The Complaint also states a separate claim for "Exemplary Damages," in which plaintiffs allege that defendants' conduct was "malicious, misanthropic, willful, unlawful, and in wanton disregard of life and the standards of law which govern the actions of civilized nations." Id. ¶ 17.

Plaintiffs served copies of the relevant papers, along with translations, by diplomatic channels through the U.S. Department of State, as required by 28 U.S.C. § 1608(a)(4). According to the diplomatic note, service was effected June 1, 2010. Return of Service/ Affidavit, Aug. 20, 2010 [21]. Under the terms of § 1605A, defendants had 60 days from that date-until August 1, 2010-to respond. 28 U.S.C. § 1608(d). In early November, after none of the defendants had appeared or responded to the Amended Complaint, the Clerk of the Court entered default on their behalf. Clerk's Entry of Default, Nov. 5, 2010 [27]. Plaintiff subsequently requested that this Court take judicial notice of the proceedings in Peterson, and moved for default judgment. Motion for Default Judgment, Nov. 5, 2010 [26]. Based on that motion, the record, and facts available for judicial notice, the Court makes the following findings of fact and conclusions of law.

III. FINDINGS OF FACT

The Clerk of the Court entered defendants' default on November 5, 2010. However, prior to entry of final default judgment, the FSIA requires that courts evaluate the evidence before them to ensure that plaintiffs have established their right to relief "by evidence that is satisfactory to the court." 28 U.S.C. § 1608(e). This requirement "imposes a duty on FSIA courts to not simply accept a complaint's unsupported allegations as true, and obligates courts to inquire further before entering judgment against parties in default." Rimkus v. Islamic Republic of Iran, F. Supp. 2d , No. 08 Civ. 1615, 2010 U.S. Dist. LEXIS 120991, at *1314 (D.D.C. Nov. 16, 2010) (internal quotations omitted).

In considering whether to enter default judgment, courts in FSIA cases look to various sources of evidence to satisfy their statutory obligation. Courts may, for example, rely upon plaintiffs' "'uncontroverted factual allegations, which are supported by . . . documentary and affidavit evidence.'" Valore, 700 F. Supp. 2d at 59 (alteration in original; quoting Int'l Road Fed'n v. Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)). In addition to more traditional forms of evidence-testimony and documentation-plaintiffs in FSIA cases may also submit evidence in the form of affidavits. Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 53 (D.D.C. 2006) (citing Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 82 (D.D.C. 2006)). Finally, a FSIA court may "'take judicial notice of related proceedings and records in cases before the same court.'" Valore, 700 F. Supp. 2d at 59 (quoting Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50--51 (D.D.C. 2009)). Here, plaintiffs rely entirely on this final form of evidence in support of their motion for default judgment.

A. Judicial Notice of Prior Related Cases

Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts "not subject to reasonable dispute" where those facts are either "generally known within the territorial jurisdiction" or are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). This rule permits courts to take judicial notice of court records in related proceedings. 29 Am. Jur. 2d Evidence § 151 (2010); 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 . . . ."); 2 McCormick on Evid. § 332 (6th ed. 2009) (noting that principle permitting courts to take judicial notice of current proceeding "is equally applicable to matters of record in the proceedings in other cases in the same court"). Because of the multiplicity of FSIA-related litigation, courts in this District have frequently taken judicial notice of earlier, related proceedings. See, e.g., Murphy, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 101250 at *11; Valore, 700 F. Supp. 2d at 59--60; Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50--51 (D.D.C. 2009).

A difficult issue arises concerning judicial notice of related proceedings with regard to courts' prior findings of facts. While such findings in a prior proceeding are "capable of accurate and ready determination" from judicial records, Fed. R. Evid. 201(b), it cannot be said that these same findings are "not subject to reasonable dispute." Id. Specifically, such findings represent merely a court's probabilistic determination as to what happened, rather than a firsthand account of the actual events. As such, they constitute hearsay, and thus are considered inadmissible. Athridge v. Aetna Cas. & Sur. Co., 474 F. Supp. 2d 102, 110 (D.D.C. 2007) (citing United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994)).

This Court grappled with these difficulties in its recent opinion in Rimkus, where- "mindful that the statutory obligation found in § 1608(e) was not designed to impose the onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack," F. Supp. 2d at , 2010 U.S. Dist. LEXIS 120991 at *18 (citing Brewer, 664 F. Supp. 2d at 54)- determined that the proper approach is one "that permits courts in subsequent related cases to rely upon the evidence presented in earlier litigation . . . without necessitating the formality of having that evidence reproduced." Id. (citing Murphy, F. Supp. 2d , 2010 U.S. Dist. LEXIS at *11). Thus, based on judicial notice of the evidence presented in the earlier cases-here, Peterson and Valore*fn3 -courts may reach their own independent findings of fact.

B. Relevant Findings of Fact

This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon-an event that has been at the center of numerous FSIA suits. In support of their claims, plaintiffs ask this Court to take judicial notice of its previous findings in the Peterson case, during which the Court held a two-day bench trial on the issue of liability. 264 F. Supp. 2d at 48--49. Bearing in mind the parameters for judicial notice in FSIA actions set forth above, the Court takes notice of the evidence presented in Peterson and Valore, and renders the following findings of fact:

Dennis Jack Anderson, Jr.

Documentary evidence presented to the assigned special master in Valore demonstrates that Dennis Jack Anderson, Jr. was born on October 13, 1958 in the United States, and has at all times in his life been a citizen of the United States. Report of Special Master (Anderson) 1, Dec. 15, 2009, Valore, No. 03 Civ. 1959 [46]. Serviceman Anderson's testimony further establishes that he joined the Marines at age 18, was trained as a field Wireman, and was sent to Beirut with the 1st Battalion, 8th Marines as a float. Id. at 2.

Pedro J. Alvarado

Documentary evidence presented to the assigned special master in Valore shows that serviceman Alvarado was born in Puerto Rico on February 8, 1955, and was a United States citizen at all relevant times. Report of Special Master (Alvarado) 3, Feb. 19, 2010, Valore, No.

03 Civ. 1959 [50]. Serviceman Alvarado's testimony further establishes that that he joined the Navy in 1981, trained to become a Corpsman, and studied preventive medicine in field medical school with the Marine Corps. Id. at 4. Serviceman Alvarado was deployed to Beirut as a Corpsman at the time of the attack on the Marine barracks. Id. at 5.

Willie George Thompson

Documentary evidence presented to the assigned special master in Valore demonstrates that Willie George Thompson was born on November 3, 1960 in the United States, and has at all times in his life been a citizen of the United States. Report of Special Master (Thompson) 3, Nov. 17, 2009, Valore, No. 03 Civ. 1959 [43]. Serviceman Thompson's testimony further establishes that he joined the Marine Corps in 1981 and was assigned to the headquarters company of 1st Battalion, 8th Marines based in North Carolina. Id. at 4. Serviceman Thompson was a Lance Corporal when he was deployed to Beirut. Id. at 5.

Defendants

Defendant Iran "is a foreign state and has been designated a state sponsor of terrorism pursuant to section 69(j) of the Export Administration Act of 1979, 50 U.S.C. § 2405(j), continuously since January 19, 1984." Blais, 459 F. Supp. 2d at 47. Defendant MOIS is the secret police and intelligence organization of Iran. In Valore, this Court characterized MOIS as a "division of the state of Iran" that "acted as a conduit for the Islamic Republic of Iran's provision of funds to Hezbollah." Valore, 700 F. Supp. 2d at 53, 65.

The Attack on the Marine Barracks

Documentary evidence presented to this Court in Peterson establishes that in late 1982, the 24th Marine Amphibious Unit of the U.S. Marines-which included 1st Battalion, 8th Marines-was dispatched as part of an international peacekeeping coalition to the Lebanese capital of Beirut. Peterson, 264 F. Supp. 2d at 49. The rules of engagement issued to the servicemen in this unit clearly stated that they "possessed neither combatant nor police powers." Id. Indeed, numerous witnesses at the Peterson trial testified that these servicemen "were more restricted in their use of force than an ordinary U.S. citizen walking down a street in Washington, D.C." Id. at 50. As Col. Timothy Geraghty, the commander of the U.S. deployment testified: "The rules -- these were geared primarily again with the peacekeeping mission [in mind] and the sensitivities ...


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