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Harry Beer, et al v. Islamic Republic of Iran

December 9, 2010

HARRY BEER, ET AL., PLAINTIFFS,
v.
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 from the June 11, 2003 suicide bombing of a bus in Jerusalem by members of the terrorist organization Hamas.*fn1 The attack killed 17 people, including Alan Beer, a United States citizen living in Israel at the time. Plaintiffs, who are Mr. Beer's mother and siblings, previously brought suit against defendants Islamic Republic of Iran ("Iran") and the Iranian Ministry of Information and Security ("MOIS") pursuant to the former "state-sponsored terrorism" exception to the Foreign Sovereign Immunities Act ("FSIA"), which at the time was codified at 28 U.S.C. § 1605(a)(7). In that action, this Court found that defendants-who provided regular support to Hamas and encouraged the tactic of suicide bombing-were legally responsible for the attack that killed Mr. Beer, and awarded plaintiffs $13 million in compensatory damages. Beer v. Islamic Republic of Iran, 574 F. Supp. 2d 1, 12--14 (D.D.C. 2008) ("Beer I"). The Court denied plaintiffs' request for punitive damages, however, holding that such an award was unavailable under either § 1605(a)(7) or Pub. L. 104-208, § 589, 110 (1996), 110 Stat. 3009-1, 3007-172 (codified at 28 U.S.C. § 1605 note) (the "Flatow Amendment"). Beer I, 574 F. Supp. 2d at 14.

Prior to final judgment in Beer I, Congress passed the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), which replaced § 1605(a)(7) with a new state-sponsored terrorism exception. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338--44 (2008). This exception, codified at 28 U.S.C. § 1605A, "creat[es] a federal right of action against foreign states, for which punitive damages may be awarded." In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 40 (D.D.C. 2009) (citing Simon v. Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008) ("In re Terrorism Litig."). The NDAA also permits plaintiffs to seek retroactive application of § 1605A in certain limited circumstances. Id. at 62--63. Plaintiffs here-the same plaintiffs as in Beer I-seek to invoke the additional remedies provided by the new state-sponsored terrorism exception through the retroactive procedures outlined in the Act. For the reasons set forth below, the Court finds that plaintiffs have sufficiently established their right to relief under § 1605A.

II. PROCEDURAL HISTORY

A. Beer I

Plaintiffs filed their original action against defendants pursuant to § 1605(a)(7) in early 2006. Beer I, 574 F. Supp. 2d at 5. At that time, § 1605(a)(7) did not provide an independent cause of action, but rather acted "as a 'pass-through' to substantive causes of action . . . that may exist in federal, state or international law." Id. at 10 (citing Dammarell v. Islamic Republic of Iran, No. 01 Civ. 2224, 2005 U.S. Dist. LEXIS 5343, at *8--10 (D.D.C. Mar. 29, 2005)). Plaintiffs' Complaint in Beer I thus set forth state law claims for wrongful death, conscious pain and suffering, and intentional infliction of emotional distress. Id. at 11--12.

The Beer I Court held an evidentiary hearing concerning plaintiffs' claims on January 31, 2008. Id. at 5--6. At that hearing, the Court heard testimony from plaintiffs and other witnesses, received various supporting documents, and admitted into evidence the taped deposition of Dr. Patrick Clawson, id. at 6--8, an expert on Iranian affairs and international terrorism whom this Court has frequently heard testify concerning Iranian involvement in state-sponsored terrorism. See, e.g., Rimkus v. Islamic Republic of Iran, ___ F. Supp. 2d __, __, No. 08 Civ. 1615, 2010 U.S. Dist. LEXIS 120991, at *5 (D.D.C. Nov. 16, 2010) (describing Dr. Clawson as "an expert on Iranian support for terrorism"); Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 62 (D.D.C. 2010) (noting that Dr. Clawson is "a widely-renowned expert on Iranian affairs"). Following this hearing, the Court made numerous findings of fact concerning the decedent, the parties, and the events surrounding the 2003 suicide bombing. See generally Beer I, 574 F. Supp. 2d at 6--8.

Based on its findings of fact, the Court in Beer I found that "Iran has continuously provided material support in the form of, inter alia, funding, training, and safe haven to Hamas . . . so that it may undertake terrorist attacks like the one in this action." Id. at 11. On the basis of all the evidence, the Court also found that a civil conspiracy existed "between Hamas and defendants Iran and MOIS." Id. Applying Ohio and Virginia law-where the decedent and plaintiffs were domiciled-the Court then held that Iran and MOIS were liable for the intentional torts of wrongful death, infliction of conscious pain and suffering, and intentional infliction of emotional distress. Id. at 11--12. In determining damages, the Court awarded Mr. Beer's estate $500,000, his mother, Anna Beer, $5 million, and each of his siblings-Harry Beer, Estelle Carroll, and Phyllis Maisel-$2.5 million. Id. at 13--14. The Court denied plaintiffs' request for punitive damages, however, noting that "punitive damages were not available against foreign states" under then-applicable law. Id. at 14.*fn2

B. This Action

Plaintiffs filed this action less than two months after the entry of final judgment in Beer I. Complaint, Oct. 17, 2008 [3]. In their Complaint, plaintiffs set forth federal claims under § 1605A and federal common law, as well as the same claims for wrongful death, infliction of conscious pain and suffering, and intentional infliction of emotional distress under state law that they alleged in Beer I. See id. at ¶¶ 18--33. In support of these claims, plaintiffs allege that defendants "routinely, knowingly and by explicit or implied agreement with Hamas provided material support and substantial assistance to it and its cadre of suicide bombers," id. at ¶ 14, and that plaintiffs' "injuries . . . stemmed proximately from willful and deliberate acts carried out with material support and substantial assistance from" Iran and MOIS. Id. at ¶ 16. Plaintiffs seek compensatory and punitive damages. Id. at 8.

Plaintiffs served copies of the relevant papers and necessary translations by diplomatic channels through the U.S. Department of State, as required by 28 U.S.C. § 1608(a)(4). Based on the diplomatic note submitted pursuant to that subsection, the effective date of service in this case was June 9, 2010. Return of Service/Affidavit 6, Aug. 20, 2010 [19]. The state-sponsored terrorism exception requires that defendants "serve an answer or other responsive pleading . . . within sixty days after service has been made under this section." 28 U.S.C. § 1608(d). Here, neither defendant has ever appeared in this action or otherwise responded, and so the Clerk of the Court entered default on their behalf in early November. Clerk's Entry of Default, Nov. 2, 2010 [23]. Plaintiffs subsequently moved this Court for entry of default judgment and requested that the Court to take judicial notice of the proceedings in Beer I. Motion for Default Judgment, Nov. 13, 2010 [25]. Based on that motion, the record in these proceedings, and facts available for judicial notice, the Court makes the following findings of fact and conclusions of law.

III. FINDINGS OF FACT

Though the defendants have not appeared in this action, the FSIA does not permit a court to enter default judgment unless it determines that plaintiffs have "establishe[d their] claim or right to relief by evidence that is satisfactory to the court." 28 U.S.C. § 1608(e). This statutory requisite imposes a duty upon a court in FSIA actions to not simply accept a complaint's unsupported allegations, but obligates it to "'inquire further before entering judgment' against parties in default." Rimkus, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991, at *13--14. To assist the Court in satisfying its obligation here, plaintiffs ask the Court to take judicial notice of the evidence presented to, and findings made by, the Court in Beer I. See Valore, 700 F. Supp. 2d at 59 (holding that FSIA courts may "take judicial notice of related proceedings and records in cases before the same court").

A. Judicial Notice of Prior Related FSIA Proceedings

Judicial notice of prior findings of fact in related proceedings is a difficult issue. On the one hand, by drawing upon its prior opinion, the Court can be sure that the facts it is finding are "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned," Fed. R. Evid. 201(b)(2), as the accuracy of a published judicial opinion is generally indisputable. At the same time, "judicial findings are probabilistic determinations based upon a limited set of data points-the evidence before the Court-they are not indisputable facts," Rimkus, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991, at *17-as required for purposes of judicial notice. See Fed. R. Evid. 201(b) (permitting judicial notice only of facts "not subject to reasonable dispute").

In grappling with these difficulties, the Court recently observed 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." Rimkus, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991 at *18 (citing Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 54 (D.D.C. 2009)). Based on this understanding, the Court determined that the proper method for noticing related proceedings in FSIA cases 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 v. Islamic Republic of Iran, ___ F. Supp. 2d __, __, No. 06 Civ. 596, 2010 U.S. Dist. LEXIS 101250, at *11 (D.D.C. Sep. 24, 2010)). Consistent with these principles, the Court here will take notice of the evidence presented in Beer I, and will use that evidence to reach its own independent findings of fact.

B. Relevant Findings of Fact

Plaintiffs' suit arises out of a 2003 suicide bombing of a bus in Jerusalem-the same subject matter at the center of Beer I. On January 31, 2008, the Court held an evidentiary hearing in that case, at which time it heard testimony from plaintiffs and other witnesses, and received extensive documentary evidence. Beer I, 574 F. Supp. 2d at 5--6. Based on judicial notice of that evidence, the Court makes the following findings of fact:

Decedent

Documentary evidence establishes that Alan Beer was an American citizen born and domiciled in the state of Ohio. Id. at 6. Throughout his life, Mr. Beer frequently traveled between the U.S. and Israel, at one point residing in Israel for four consecutive years. Id. He last left the United States for Israel in early 2003, nearly six months prior to the attack. Id. Mr. Beer's estate is represented in this action by its administrator-his brother Harry Beer. Id.

Parties

The plaintiffs in this action are all United States citizens and close relatives of Mr. Beer. Id. Specifically, plaintiff Anna Beer is the mother of the decedent, while the remaining plaintiffs-Harry Beer, Phyllis Maisel and Estelle Carroll-are all his siblings. Id.

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 v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 47 (D.D.C. 2006)-well before the attack in 2003. Defendant MOIS is Iran's secret police and intelligence organization. This Court has previously characterized it as a "division of the state of Iran," Valore, 700 F. Supp. 2d at 65, and at least one other district court has found that "Iran funnels much of its support to Hamas through MOIS." Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 262 (D.D.C. 2003).

The June 11, 2003 Suicide Bombing

In Beer I, the Court received into evidence the taped deposition of Dr. Patrick Clawson, a renowned expert on Iranian operations and their involvement with international terrorism. See supra Section II.A. Dr. Clawson previously studied the attack, and testified to the following facts: "On June 11, 2003, a Hamas suicide bomber blew up Egged bus number 14A." Beer I, 574 F. Supp. 2d at 6. According to reports from the U.S. Department of State, the explosion killed 17 people, including two U.S. citizens (one being Mr. Beer), and wounded 99 others. U.S. Dep't of State, Patterns of Global Terrorism 2003 app. A, at 12 (2004). Dr. Clawson further testified that, shortly after the attack, Hamas claimed responsibility for the suicide bombing, stating that the operation was undertaken in retaliation for Israeli attempts to assassinate a senior Hamas leader. Beer I, 574 F. Supp. 2d at 6.

In addition to secondary reviews of the 2003 bombing, the Court also heard testimony from Pesach Dov Maisel-a nephew of Mr. Beer who was living in Israel and working for Israeli Emergency Medical Services at the time. Id. at 7. Mr. Maisel relayed a story told to him by one of the doctors that responded to the scene of the attack. The doctor described a victim who "was conscious after the bombing but had extensive shrapnel wounds. . . . By the time the medics brought him to the ambulances to be transported to the to the hospital, he was dead." Id. Mr. Maisel later learned that the man described by the doctor was his uncle, Alan Beer. Id.

Iranian Support for Hamas and Involvement in the 2003 Bombing

The evidence presented to the Court in Beer I establishes that "Hamas is an organization supported by Iran." 574 F. Supp. 2d at 6. Indeed, numerous courts in this district have previously found that a strong connection exists between defendants and Hamas. See, e.g., Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 14 n.4 (D.D.C. 2009) ("Hamas . . . is an organization that has been supported over the years by the Islamic Republic of Iran, primarily through . . . MOIS."); Bennett v. Islamic Republic of Iran, 604 F. Supp. 2d 152, 154 (D.D.C. 2009) (finding sufficient evidence to determine that "Iran and its MOIS provided material support to Hamas in furtherance of its terrorist objectives"); Kirschenbaum v. Islamic Republic of Iran, 572 F. Supp. 2d 200, 206 (D.D.C. 2008) ("Hamas is an organization supported by Iran."). And according to the U.S. Department of State, "Hamas receives some funding, weapons, and training from Iran," U.S. Dep't of State, Country Reports on Terrorism 2009, Chp. 6 (2010)-a finding that is consistent with the State Department's opinion at the time of the attack. See Patterns of Global Terrorism 2003, supra at app. B, at 120 (noting that Hamas "[r]eceives some funding from Iran").

In addition, Dr. Clawson also testified about defendants' support for, and involvement with, Hamas. Beer I, 574 F. Supp. 2d at 7. He explained that, during the relevant period, "Iran maintained a high-profile role in encouraging anti-Israeli activity while providing Hamas and other terrorist organizations with funding, safe haven, training, and weapons." Id. at 7; see also Belkin, 667 F. Supp. 2d at 14 n.4 ("Iran fully knew of the purposes and objectives of Hamas and approved of them."). He also related a particular incident where "Iran hosted a conference in August 2003 on the Palestinian intifadah at which an Iranian official suggested that the continued success of the Palestinian resistance depended on suicide operations." Beer I, 574 F. Supp. 2d at 7. Based on this evidence, the Court determines that ...


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