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Evan Fain, et al v. Islamic Republic of Iran

April 20, 2012

EVAN FAIN, 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 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 physical and emotional injuries to plaintiff Evan Fain III. Mr. Fain's wife and children are also plaintiffs in this suit against defendants Islamic Republic of Iran ("Iran") and the Iranian Ministry of Information and Security ("MOIS"). This action is brought pursuant to the state-sponsored terrorism exception of 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). Plaintiffs contend that, 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, defendants are legally responsible for the severe physical 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 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.*fn1 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 2003, the Court conducted a bench trial during 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 special masters appointed to assist the Court. Id. at 65. Subsequent to the opinion in Peterson, several other cases related to the 1983 attack, including this one, remained pending before this Court.

B. This Action

Plaintiffs here are serviceman Fain, his wife Maria, and their three children. In the Complaint, plaintiffs allege the same essential facts concerning the 1983 barracks bombing that were established by sufficient evidence in Peterson, Compl. ¶¶ 6--10. Plaintiffs set forth claims for assault, battery, intentional infliction of emotional distress, and punitive damages against the defendants. Id. at ¶¶ 11--19.

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 August 3, 2011. Return of Service/ Affidavit, October 19, 2011 [ECF No. 13]. Under the terms of 28 U.S.C. § 1605A, defendants had 60 days from that date-until October 2, 2011-to respond. 28 U.S.C. § 1608(d). After none of the defendants appeared or responded, the Clerk of the Court entered default on plaintiffs' behalf. Clerk's Entry of Default, Oct. 28, 2011 [ECF No. 27]. Plaintiffs then moved for this Court to take judicial notice of the proceedings in Peterson and for default judgment in accordance with § 1608(e). Motion for Default Judgment, Oct. 28, 2011 [ECF No. 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 October 28, 2011. 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, 750 F. Supp. 2d 163, 171 (D.D.C. 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 on judicial notice, affidavits, and depositions 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 the principle permitting courts to take judicial notice of current proceedings "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, 740 F. Supp. 2d at 58; Valore, 700 F. Supp. 2d at 59--60; Brewer, 664 F. Supp. 2d at 50--51 (D.D.C. 2009).

A difficult issue arises concerning judicial notice of related proceedings with regard to courts' prior factual findings. 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 first-hand 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 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," 750 F. Supp. 2d at 163 (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, 740 F. Supp. 2d at 58). Thus, based on judicial notice of the evidence presented in the earlier cases- here, Peterson-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 judicial notice of the evidence presented in Peterson, and renders the following findings of fact:

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." 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 Colonel 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 of killing or maiming someone accidentally." Id. (alteration in original). Given the nature of this deployment, the Court finds that the servicemen were non-combatants operating under peacetime rules of engagement.

During the Peterson trial, the Court heard the videotaped deposition of a Hezbollah member known by the pseudonym "Mahmoud." 264 F. Supp. 2d at 54. Mahmoud is a Lebanese Shi'ite Muslim, and was part of the group that carried out the attack on the Marine barracks in 1983. He provided the ...


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