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Estate of Yael Botvin, et al v. Islamic Republic of Iran

July 3, 2012

ESTATE OF YAEL BOTVIN, 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 matter is before the Court on plaintiffs' fifth motion for default judgment. Pls.' Mot., Sept. 15, 2011, ECF No. 30.*fn1 Plaintiffs have brought suit against the Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), the Iranian Revolutionary Guard ("IRG"), Ayatollah Syyid Ali Hosseini Khamenei, Ali Akbar HashemiRafsanjani, Ali Fallahian-Khuzenstani, Hamas, and John Does 1--99 under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq. Through this action, plaintiffs seek to hold defendants responsible for a 1997 terrorist attack perpetrated by Hamas operatives in Jerusalem, Israel. Today, this Court determines that plaintiffs have presented satisfactory evidence that the remaining defendants-Iran, MOIS, and IRG-should be held liable under Israeli law for the 1997 bombing.*fn2

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs' claims arise from a terrorist bombing that was committed at an Israeli pedestrian mall.*fn3 Compl. ¶ 18. On the afternoon of September 4, 1997, three suicide bombers entered the crowded Ben Yehuda Street pedestrian mall in downtown Jerusalem and detonated bombs packed with nails, screws, pieces of glass, and chemical poisons. Id; Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 261 (D.D.C. 2003). The explosion wounded nearly two hundred people, killing five. Compl. ¶ 19. Tragically, fourteen-year-old Yael Botvin, the daughter of plaintiff Julie Goldberg-Botvin and the sister of plaintiffs Tamar and Michal Botvin, was among those killed. Mem. Order, Sept. 24, 2007, at 1. The attack was committed by members of the terrorist organization Hamas-which afterward claimed responsibility for the bombing. Campuzano, 281 F. Supp. 2d at 262.

Plaintiffs filed their first motion for default judgment in October 2006. Pls.' Mot., Oct. 15, 2006, ECF No. 14. In their motion, plaintiffs requested that this Court take 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 September 4, 1997 suicide bombing. Pls.' Mot., supra, at ¶¶ 8--10. This Court granted plaintiffs' request to take judicial notice, but declined to enter a default judgment as the plaintiffs had failed to establish a legal basis for default judgment. Botvin v. Islamic Republic of Iran, 510 F. Supp. 2d 101, 102--103 (D.D.C. 2007) (Urbina, J.) ("Botvin I").

Plaintiffs filed their second motion for default judgment in March 2008. Pls.' Mot. for Entry of Final J., Mar. 21, 2008, ECF No. 17. This Court denied plaintiffs' second motion on similar insufficient evidence grounds. Botvin v. Islamic Republic of Iran, 604 F. Supp. 2d 22, 24--25 (D.D.C. 2009) (Urbina, J.) ("Botvin II"). At the same time, this Court also denied plaintiffs' request to proceed under the newly enacted FSIA state sponsored terrorism exception codified at 28 U.S.C. § 1605A. Id. at 25--26.*fn4

Plaintiffs filed their third motion for default judgment in May 2009. Supplemental Mot. for Default J., May 28, 2009, ECF No. 22. In response, this Court concluded that plaintiffs had established this Court's subject matter jurisdiction over the dispute and personal jurisdiction over the defendants pursuant to the FSIA. Botvin v. Islamic Republic of Iran, 684 F. Supp. 2d 34, 37-- 39 (D.D.C. 2010) (Urbina, J.) ("Botvin III"). This Court also applied District of Columbia choice of law rules and determined that plaintiffs' substantive claims were governed by Israeli law. Id. at 39--42. Because plaintiffs had addressed California law and had not established defendants' liability under Israeli law, this Court denied plaintiffs' motion without prejudice. Id. at 41--42.

Plaintiffs filed their fourth motion for default judgment in July 2010. Supplemental Mot. for Default J., July 9, 2010, ECF No. 26. Plaintiffs concurrently asked the Court to reconsider its decision that Israeli law applied to the dispute. Id. In response, this Court denied reconsideration of its choice of law ruling and yet again ruled that the plaintiffs had not presented the Court with satisfactory evidence of defendants' liability under Israeli law. Botvin v. Islamic Republic of Iran, 772 F. Supp. 2d 218, 223--232 (D.D.C. 2011) (Urbina, J.) ("Botvin IV").

Today, this Court reviews plaintiffs' fifth motion for default judgment and determines that plaintiffs have presented satisfactory evidence to establish defendants' liability under Israeli law. This Court also determines that the Estate of Yael Botvin is entitled to compensatory damages under Israeli law; however, there is insufficient evidence that Yael's family members are entitled to compensatory damages under Israeli law.

III. FINDINGS OF FACT

Under the FSIA, a court cannot simply enter default judgment; rather, out of respect for the principle of sovereign immunity, it must ensure that the plaintiffs have established their claim or right to relief by evidence that is satisfactory to the court. 28 U.S.C. § 1608(e); Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1, 6 (D.D.C. 2011). Courts are therefore bound by a duty to scrutinize the plaintiffs' allegations, and courts may not simply accept a complaint's unsupported allegations as true. Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010). FSIA courts may rely upon traditional forms of evidence-testimony and documentation-and plaintiffs 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)). Additionally, a FSIA court may "'take judicial notice of related proceedings and records in cases before the same court.'" Valore v. Islamic Republic of Iran, 700 F. Supp. 2d, 52, 59 (D.D.C. 2010) (quoting Brewer v. Islamic Republic of Iran, 664 F. Supp.2d 43, 50--51 (D.D.C. 2009)). Here, plaintiffs rely on judicial notice, documentary, and affidavit 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 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 v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 58 (D.D.C. 2010); 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)-it 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, Campuzano-courts may reach their own independent findings of fact.

B. Relevant Findings of Fact

This action arises out of a triple-suicide bombing at an Israeli pedestrian mall on September 4, 1997. In support of their claims, plaintiffs ask this Court to take judicial notice of its previous findings in the Campuzano case, during which the Court, the Honorable Ricardo Urbina presiding, held a four-day evidentiary hearing. 281 F. Supp. 2d at 261. Bearing in mind the parameters for judicial notice in FSIA actions set forth above, the Court takes judicial notice of the evidence presented in Campuzano 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; see also Campuzano, 281 F. Supp. 2d at 262. Defendant IRG is the military wing of MOIS. Campuzano, 281 F. Supp. 2d at 262.

Defendants' Involvement in the September 4, 1997 Bombing Dr. Rueven Paz, former head of the Israeli General Security Service's Department of Research and a qualified expert in Palestinian Islamic terrorism organizations, testified during the Campuzano trial. Trial Tr. Day 1, 25--59. Dr. Paz testified that the bombing was planned by a six-person Hamas*fn5 cell organized by Mahmoud Abu Hanoud-a senior commander in Hamas' military wing. Id. at 30:10--18. Abu Hanoud received the orders to conduct this attack from Hamas' headquarters in Amman, Jordan. Id. at 31:3--11; 32:3. Abu Hanoud received most of his explosives and military training in an Iranian-sponsored terrorist training camp. Id. at 51:7--13.

Dr. Paz testified that Iran was "encouraging and pushing" Hamas' leaders to carry out suicide bombings as a policy, and that policy "was approved by the highest authorities in Iran." Id. at 34:2--8. Iran's relationship with Hamas began in the early 1990's. Id. at 31:17--25. In 1994, Iran received "the first delegation of Hamas members who were trained directly by the Iranians on Iranian soil." Id. at 32: 8--10. As the Iran-Hamas relationship matured, "[t]he involvement of Iran became stronger and stronger with Hamas and especially with these terrorist activities, and it was actually coordinated mainly between Jordan or between Hamas officers in Jordan and Tehran since most of it involved [] military issues." Id. at 32: 10--14. Three Iranian offices were in almost daily contact with Hamas: MOIS, IRG, and the Iranian Ministry of Foreign Affairs. Id. at 33:13--19.

Abu Hanoud personally directed the scouting, planning, disguising, safe housing, traveling, and purchasing involved in this "sophisticated" attack. Id. at 42:21--43:4. Dr. Paz testified that "[w]ithout Iran, Abu Hanoud would never have known how to build this type of bomb and conduct this type of operation." Id. at 59:1--4. Prior to the attack, Abu Hanoud assigned a Hamas member named Al Zaban-who disguised himself as a surveyor-to scout areas of Jerusalem to find "the most crowded, the most effective places for . . . an attack." Id. at 35:11--23. Al Zaban settled on the pedestrian mall because of its crowds of people and its proximity to government buildings. Id. at 28:6--11. Two days before the bombing, the three suicide bombers cut their fingertips to prevent identification of their bodies. Id. at 36:4--22.

On the afternoon of September 4, 1997, "three Hamas suicide bombers with cases of powerful explosive bombs arrived at the crowded Ben Yehuda Street pedestrian mall in downtown Jerusalem." Campuzano, 281 F. Supp. 2d at 262 (citing Trial Ex. 28 at 1). These bombs contained "nails, screws, pieces of glass, and chemical poisons to cause maximum pain, suffering, and death." Id. The bombs were intended to be detonated in intervals designed to inflict maximum causalities on both civilians and responding rescue workers. Trial Tr. Day 1, at 37:11--19. The explosion wounded nearly 200 civilians and killed five, including fourteen-year-old Yael Botvin, the daughter of plaintiff Julie Goldberg-Botvin and sister of plaintiffs Tamar and ...


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