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Seth Charles Ben Haim, et al v. Islamic Republic of Iran

May 19, 2011


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



This action arises out of the April 9, 1995 suicide bombing of a bus in the Gaza Strip region of Israel that killed eight and wounded dozens, including Seth Haim, a United States citizen living in Israel at the time. Seth, along with his father and brother, previously brought suit against defendants Islamic Republic of Iran ("Iran") and the Iranian Ministry of Information and Security ("MOIS") pursuant to the "state-sponsored terrorism" exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330 & 1602 et seq., then codified at 28 U.S.C. § 1605(a)(7), in which they alleged that Iran and MOIS aided the Shaqaqi Faction of the Palestine Islamic Jihad ("PIJ"), the terrorist group responsible for the Gaza Strip attack. After reviewing the evidence, this Court found that "Iran and the MOIS conspired to provide material support and resources to the . . . PIJ, a terrorist organization, . . . which caused the injuries to Seth." Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 61 (D.D.C. 2006) ("Haim I"). The Haim I Court thus awarded plaintiffs $16 million in compensatory damages, id. at 76, though it denied their request for punitive damages. Id. at 71.

Less than two years later, Congress enacted the National Defense Authorization Act for Fiscal Year 2008. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338--44 (2008) ("NDAA"). That statute repealed the previous state-sponsored terrorism exception and replaced it with a new exception codified at 28 U.S.C. § 1605A. This new provision "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."). Plaintiffs here-the same as in Haim I-bring this suit to take advantage of the new remedies provided in § 1605A. For the reasons set forth below, the Court finds that plaintiffs have established a right to relief under the new state-sponsored terrorism exception, and awards damages as appropriate.


A. Haim I

Plaintiffs filed their original § 1605(a)(7) action against defendants in 2002. Haim I, 425 F. Supp. 2d at 59. At the time, the state-sponsored terrorism exception did not provide an independent cause of action, but instead acted "as a 'pass-through' to substantive causes of action against private individuals that . . . may exist in federal, state or international law." Id. at 68 (citing Damarrell v. Islamic Republic of Iran, No. 01 Civ. 2224, 2005 U.S. Dist. LEXIS 5343, at *27--32 (D.D.C. Mar. 29, 2005)). Following standard practices in FSIA actions under § 1605(a)(7), plaintiffs' Haim I Complaint set forth causes of action for battery, assault and intentional infliction of emotional distress under D.C. law. Id. at 69--70.

Due to "developments unrelated to the lawsuit," as well as "the fragile mental status" of the lead plaintiff, the Haim I Court received evidence "via affidavit and deposition rather than live testimony." Id. at 59 n.1. These submissions included affidavits from each plaintiff concerning his experiences during the bombing and its aftermath, the deposition of an expert on the PIJ and Israeli affairs, and substantial documentary evidence. Id. at 59--60. In addition, the Haim I Court took judicial notice of its findings in Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998)-an earlier FSIA case arising out of the same Gaza Strip bombing that injured Seth Haim. Haim I, 425 F. Supp. 2d at 59. Examining all of the evidence, this Court found that Seth's "injuries were caused . . . by a bomb that was deliberately driven into the bus by a member of . . . the PIJ acting under the direction of defendants." Id. at 61.

Based on these findings of fact, the Haim I Court concluded that "Iran, the MOIS and PIJ had agreed to commit terrorist activities"-such as the bombing of the Gaza Strip bus in 1995 that injured Seth-and thus defendants were vicariously liable for the attack. Id. at 69. Applying D.C. law, the Court held that Iran and MOIS were liable for the intentional torts of battery, assault and intentional infliction of emotional distress. Id. at 69--70. In determining damages, the Court compared the injuries of Seth and his family members with other families that have been victimized by tragic incidents of terrorism. Id. at 73--76. Following this review, the Court awarded Seth Haim $11 million, his father Bernard Klein Ben Haim $3.5 million, and his brother Lavi Klein Ben Haim $1.5 million in compensatory damages. Id. The Court declined to award punitive damages, however, because the FSIA and other relevant statutory provisions did not permit such an award at that time. Id. at 71.

B. This Action

Plaintiffs filed this suit in early 2008, shortly after Congress enacted the new state-sponsored terrorism exception by passing the NDAA. Complaint, Mar. 26, 2008 [1]. Their Complaint sets forth a cause of action for damages under 28 U.S.C. § 1605A, id. at ¶¶ 7--9, which is supported by allegations that "Defendants provided PIJ with material support and resources and other substantial aid and assistance, in order to aid abet, facilitate and cause the commission of acts of international terrorism," and that "[t]he harm and injuries suffered by plaintiffs due to the terrorist bombing were the direct and proximate result of defendants' conduct." Id. at ¶¶ 35, 39. Plaintiffs seek compensatory and punitive relief. Id. at 9.

Plaintiffs served copies of the relevant papers on defendants through diplomatic channels. Certificate of Clerk, July 6, 2010 [12].*fn1 According to the diplomatic note returned to the Court, this service was effective as of September 5, 2010, Return of Service/Affidavit, Dec. 16, 2010 [14], obligating Iran and MOIS to respond to the Complaint by November 4, 2010. See 28 U.S.C. § 1608(d) (stating that defendants shall "serve an answer or other responsive pleading . . . within sixty days after service has been made under this section"). Having received no response by the statutory deadline, plaintiffs requested that defendants be declared in default, Affidavit for Default, Dec. 24, 2010 [16], which the Clerk of Court entered shortly thereafter. Clerk's Entry of Default, Dec. 27, 2010 [17]. Plaintiffs subsequently moved the Court to enter a default judgment on their behalf. Motion for Default Judgment, Jan. 5, 2011 [18]. In granting this motion, the Court-based on the motion papers, the record in these proceedings, and facts available for judicial notice-makes the following findings of fact and conclusions of law.


Though defendants have not appeared in this action-and thus do not dispute plaintiffs' allegations in their Complaint-under the FSIA the Court cannot enter judgment on this basis alone. See 28 U.S.C. § 1608(e) (requiring courts to determine whether FSIA plaintiffs have "establishe[d their] claim or right to relief by evidence that is satisfactory"). Instead, the Court must "inquire further before entering judgment against parties in default." Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010) ("Rimkus II"). To assist with this obligation, plaintiffs seek judicial notice of evidence and findings in Flatow and Haim I-two prior related cases. See Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010) (noting that FSIA courts may "take judicial notice of related proceedings and records").

Courts may take notice "of court records in related proceedings." 29 Am. Jurisdiction. 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, 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"). Notice of prior findings of fact, however, is another matter. Because courts may rely upon the accuracy of published judicial opinions, judicial findings of fact are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). However, prior findings are merely "probabilistic determinations based upon a limited set of data points-the evidence," Rimkus II, 750 F. Supp. 2d at 172, and thus not "not subject to reasonable dispute"-a necessary requisite under the Federal Rules of Evidence. Id. at 201(b). Findings of fact in prior proceedings are therefore not subject to judicial notice. Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 58 (D.D.C. 2010).

Though aware of the limits of judicial notice, the Court is also mindful of the context of this case-a default action in which defendants Iran and MOIS have chosen not to contest the allegations and evidence presented by plaintiffs. The statutory obligation imposed by § 1608(e) requires that the Court undertake an investigation into plaintiffs' allegations; it is not, however, "designed to impose the onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack." Rimkus II, 750 F. Supp. 2d at 172 (citing Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 54 (D.D.C. 2009)). The Court will thus adhere to the established "middle-ground approach that permits courts in subsequent related cases to rely upon the evidence presented in earlier litigation . . . to reach their own, independent findings of fact in the cases before them." Id. (citing Murphy, 740 F. Supp. 2d at 59.

Here, plaintiffs request that the Court take judicial notice of the proceedings in Flatow and Haim I, both of which arose out of the 1995 Gaza Strip bombing at the center of this action. In Flatow, this Court held a two-day evidentiary hearing, at which time it heard lengthy sworn testimony and received extensive documentary evidence. 999 F. Supp. at 6. The Flatow Court also heard testimony from several experts, including Dr. Reuven Paz, Dr. Patrick Clawson and former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.*fn2 Id. at 8--9. In Haim I, this Court collected affidavits from each plaintiff in this suit as well as an expert on the PIJ and Israel, and received documentary evidence specific to the Haim family. 425 F. Supp. ...

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