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Estate of Yael Botvin, By and Through Its Administrator Russell Ellis, et al v. Islamic Republic of Iran et al

March 25, 2011

ESTATE OF YAEL BOTVIN, BY AND THROUGH ITS ADMINISTRATOR RUSSELL ELLIS, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

MEMORANDUM OPINION DENYING THE PLAINTIFFS'MOTION FOR RELIEF UPON RECONSIDERATION OF AN INTERLOCUTORY ORDER; DENYING WITHOUT PREJUDICE THE PLAINTIFFS' SUPPLEMENTAL MOTION FOR DEFAULT JUDGMENT Re Document No.: 26

I. INTRODUCTION

This matter is before the court on the plaintiffs' motion for relief upon reconsideration of an interlocutory order and the plaintiffs' supplemental motion for default judgment.*fn1 The plaintiffs have brought suit against the Islamic Republic of Iran, the Iranian Ministry of Information and Security and the Iranian Revolutionary Guard under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq. Through this action, the plaintiffs seek to hold the defendants responsible for a 1997 terrorist attack perpetrated by Hamas operatives in Jerusalem, Israel. In February 2010, the court ruled that District of Columbia choice of law rules dictated the application of Israeli law to the plaintiffs' substantive causes of action. Noting that the plaintiffs had not established the defendants' liability under Israeli law, the court denied the motion for default judgment without prejudice.

In their most recent submission, the plaintiffs ask the court to revisit its previous choice of law ruling and conclude that California law, rather than Israeli law, governs this case. Furthermore, the plaintiffs assert that even if Israeli law governs both liability and damages, the plaintiffs are entitled, under Israeli law, to a default judgment.

Because the plaintiffs have failed to demonstrate that the court erred in its earlier choice of law ruling, the court denies the plaintiffs' motion for relief upon reconsideration and concludes that Israeli law governs this case. Furthermore, because the plaintiffs have not established to the court's satisfaction that the defendants are liable under Israeli law for the tortious conduct alleged in the complaint, the court denies the plaintiffs' renewed motion for default judgment without prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiffs' claims stem from an Iranian-sponsored triple-suicide bombing at an Israeli pedestrian mall on September 4, 1997.*fn2 Compl. ¶ 18. The attack, conducted by Hamas operatives, resulted in the death of fourteen-year-old Yael Botvin, daughter of plaintiff Julie Goldberg-Botvin and sister to plaintiffs Tamar and Michal Botvin. Mem. Order (Sept. 24, 2007) at 1.

In October 2006, the plaintiffs filed a motion in which they requested that the court enter a default judgment against the defendants, after taking judicial notice of the findings of fact and conclusions of law in Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003), a case arising out of the same terrorist attack at issue here. See Pls.' Mot. to Take Judicial Notice ¶¶ 8-10. The court granted the plaintiffs' request for judicial notice, but declined to enter a default judgment, as the plaintiffs had failed to establish other vital elements of their claims. See Mem. Order (Sept. 24, 2007) at 2-3.

The court denied the plaintiffs' subsequent motion for default judgment, filed in March 2008 on similar grounds. See generally Mem. Order (Mar. 27, 2009). In response to the plaintiffs' third motion for default judgment, filed in May 2009, the court concluded that the plaintiffs had established the court's subject matter jurisdiction over the dispute and personal jurisdiction over the defendants pursuant to the FSIA. See Mem. Op. (Feb. 16, 2010) at 4-7. The court also concluded that under the District of Columbia's choice of law rules, the plaintiffs' substantive claims were governed by Israeli law. Id. at 7-11. Because the plaintiffs had not established the defendants' liability under Israeli law, having addressed their claims to California law instead, the court denied without prejudice the plaintiffs' motion. Id. at 11-12.

The plaintiffs now move for relief upon reconsideration of the court's choice of law ruling, arguing that either California or District of Columbia law should govern both liability and damages, or at the very least, the issue of damages. Pls.' Mot. at 4. Alternatively, the plaintiffs contend that even if Israeli law governs both liability and damages, they are nonetheless entitled to a default judgment and substantial damages under Israeli law. See id. at 10. The court now turns to the plaintiffs' arguments and the relevant legal standards.

III. ANALYSIS

A. The Court Denies the Plaintiffs' Motion for Relief upon Reconsideration of an Interlocutory Order

1. Legal Standard for Relief Upon Reconsideration of an Interlocutory Order

A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing the Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the court's review of an interlocutory decision differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that "motions for [relief upon] reconsideration of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are within the sound discretion of the trial court") and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon reconsideration of an interlocutory order) with LaRouche v. Dep't of Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000) (analyzing the defendant's motion for relief from judgment under Rule 60(b)) and Harvey v. Dist. of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996) (ruling on the plaintiff's motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F. Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at 51-52.

By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available "as justice requires." Childers, 197 F.R.D. at 190. "As justice requires" indicates concrete considerations of whether the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted). These considerations leave a great deal of room for the court's discretion and, accordingly, the "as justice requires" standard amounts to determining "whether [relief upon] reconsideration is necessary under the relevant circumstances." Id. Interlocutory orders "may always be reconsidered prior to final judgment" and are not "subject to the law of the case doctrine." Filebark v. U.S. Dept. of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009) (quoting Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997)).

A ruling is subject to the more lenient "interlocutory" standard of reconsideration if no appeal will lie, as the order or decision "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties." See FED. R. CIV. P. 54 (a)-(b). Orders denying default judgment under Fed. R. Civ. P. 55(b)(2) are not considered "appealable final order[s]," and are thus interlocutory. Adult Film Ass'n of Am., Inc. v. Thetford, 776 F.2d 113, 115 (5th Cir. 1985). Therefore, this court is free to reconsider its previous order denying default judgment.

2. The Court Properly Determined That Israeli Law Governs the Plaintiffs' Claims Under District of Columbia Choice of Law Provisions

As the court noted in its February 2010 ruling, the FSIA provisions under which the plaintiffs bring suit do not provide a federal cause of action against foreign states.*fn3 Mem. Op. (Feb. 16, 2010) at 7; see also Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 840 (D.C. Cir. 2009). Thus, the plaintiffs are "required to identify, and to bring claims pursuant to, some other 'cause of action arising out of a specific source of law.'" Oveissi, 573 F.3d at 840 (quoting Acree v. Republic of Iraq, 370 F.3d 41, 59 (D.C. Cir. 2004)). Claims brought under state statutory and common law, as well as foreign law, may satisfy this requirement. ...


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