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Bodoff v. Islamic Republic of Iran

United States District Court, District of Columbia

December 3, 2012

Jeffrey BODOFF, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

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[Copyrighted Material Omitted]

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Mitchell B. Shenkman, The Abramson Law Group, PLLC, New York, NY, for Plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

This action against the Islamic Republic of Iran (" Iran" ) and the Iranian Ministry of Information and Security (" MOIS" ) arises from an act of state-sponsored terrorism. The decedent, a United States citizen named Yonathan Barnea, was killed

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in the Hamas bombing of the Number 18 Egged passenger bus in Jerusalem, Israel, on February 25, 1996. Plaintiffs are surviving family members and the administrator of Yonathan Barnea's estate. They brought this action against the two defendants under the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1605A, 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). For the reasons set forth below, the Court finds that plaintiffs have sufficiently proved their causes of action, and determines that defendants may be held liable under the FSIA's updated state-sponsored terrorism exception.

II. PROCEDURAL HISTORY

A. Prior Bodoff Litigation

In 2006, the plaintiffs obtained a judgment from this Court against defendants Iran and Ayatollah Ali Hoseini Khamenei (" Khamenei" ) under the former state-sponsored terrorism exception, codified at 28 U.S.C. § 1605(a)(7). See Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74 (D.D.C.2006). The Court found that Hamas was responsible for the attack that killed the decedent and that Iran and Khamenei provided Hamas with extensive material support during the years preceding the attack. Id. at 79-80. The Court entered judgment awarding plaintiffs compensatory damages against Iran and Khamenei, jointly and severally, totaling $16,988,300, and punitive damages against Khamenei totaling $300,000,000. Id. at 86-89; see also J., 02-cv-1991, Mar. 29, 2006, ECF No. 38.

B. This Action

In January 2008, Congress repealed the old state-sponsored terrorism exception, 28 U.S.C. § 1605(a)(7), and replaced it with an updated version, 28 U.S.C. § 1605A. Two months later, the plaintiffs filed this action against Iran and MOIS.[1] See Compl., ECF No. 1; see also Bodoff v. Islamic Republic of Iran, 567 F.Supp.2d 141 (D.D.C.2008) (denying plaintiff's motion for relief under the updated provision in the old case).

The defendants were properly served pursuant to 28 U.S.C. § 1608(a)(4) on July 4, 2012, see Return of Service Aff., ECF No. 22, failed to timely appear and answer or otherwise move, and the Clerk entered default on September 19, 2012. See Clerk's Entry of Default, ECF No. 25. On this Court's order, plaintiffs filed Proposed Findings of Fact & Conclusions of Law. ECF No. 29.

III. FINDINGS OF FACT

Based on the record of this case, and facts available for judicial notice— including evidence presented in earlier cases— the Court finds that plaintiffs have " establishe[d] [their] claim or right to relief by evidence that is satisfactory to the Court," as required by 28 U.S.C. § 1608(e).

Specifically, this Court finds the following facts to be established by clear and convincing evidence, which would have

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been sufficient to establish a prima facie case in a contested proceeding:

1. Yonathan Barnea was born on July 16, 1976 in Washington, D.C. Bodoff, 424 F.Supp.2d at 78 ¶ 1. He was a United States citizen from the time of his birth until the time of his death on February 25, 1996. Id. at 78-79 ¶ 1.

2. Plaintiff Nachum Barnea is the father of decedent Yonathan Barnea. Id. at 79 ¶ 2.

3. Plaintiff Tamara Barnea is the mother of decedent Yonathan Barnea. Id. ¶ 3.

4. Plaintiff Shlomit Barnea is the sister of decedent Yonathan Barnea. Id. ¶ 4.

5. Plaintiff Uri Barnea is the brother of decedent Yonathan Barnea. Id. ¶ 5.

6. Plaintiff Jeffrey Bodoff brings this action as Administrator of the Estate of Yonathan Barnea. Id. ¶ 6.

7. On the morning of February 25, 1996, Yonathan Barnea boarded the Number 18 Egged bus in Jerusalem, Israel. Id. ¶ 7 (citing Nachum Barnea Aff. ¶ 6, 02-cv-1991, Oct. 12, 2005, ECF No. 21). At about 6:45 a.m. Jerusalem time, while Yonathan Barnea was still aboard, another passenger detonated explosives at the direction of Hamas which he had carried onto the bus concealed in a travel bag. Id. (citing Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 17 ¶ 9 (D.D.C.2002); Mousa v. Islamic Republic of Iran, 238 F.Supp.2d 1, 3 ¶ 3 (D.D.C.2001); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1, 4 ¶ 8 (D.D.C.2000)). The resulting explosion completely destroyed the bus, scattered debris for at least 100 meters, and led to the injury and death of numerous individuals. Id. (citing Weinstein, 184 F.Supp.2d at 17 ¶ 9; Mousa, 238 F.Supp.2d at 3 ¶ 3; Eisenfeld, 172 F.Supp.2d at 4 ¶ 8).

8. As a result of the explosion, Yonathan Barnea was killed. Id. ¶ 8 (citing Post-Mortem Rep. (English Trans.) at 1, 4, 02-cv-1991, Oct. 28, 2012, ECF No. 26).

9. Subsequent confessions and other statements to Israeli police and news organizations verified that Hamas was responsible for the attack. Id. ¶ 9 (citing Weinstein, 184 F.Supp.2d at 19 ¶ 23; Mousa, 238 F.Supp.2d at 3 ¶ 4; Eisenfeld, 172 F.Supp.2d at 5 ¶ 16).

10. At the time of this attack, " Hamas, the popular name for the Islamic Resistance Movement, [was] an organization supported by The Islamic Republic of Iran, dedicated to the waging of Jihad, or a holy war employing terrorism with the object of seizing the leadership of the Palestinian people and asserting sovereignty and the rule of the Muslim religion over all of Palestine, including all territory of the State of Israel." Id. ¶ 10 (quoting Weinstein, 184 F.Supp.2d at 19 ¶ 24; and citing Mousa, 238 F.Supp.2d at 3 ¶ 5; Eisenfeld, 172 F.Supp.2d at 5 ¶ 17).

11. The affidavit testimony of Dr. Reuven Paz, an expert on Islamist Movements, in the first Bodoff case establishes conclusively that Iran and MOIS knew of the destructive purposes and objectives of Hamas, which were set forth in detail in the organization's charter. See Dr. Paz Aff. ¶¶ 47-51, 02-cv-1991, Oct. 11, 2005, ECF No. 18; see also Bodoff, 424 F.Supp.2d at 79 ¶ 11 (citing Weinstein, 184 F.Supp.2d at 19 ¶ 25; Mousa, 238 F.Supp.2d at 4 ¶ 10).

12. Defendant Iran provided substantial financial support for Hamas' terrorist activities during the years immediately preceding the attack. Id. at 79 ¶ 12 (citing Dr. Paz Aff. ¶ 47; Weinstein, 184 F.Supp.2d at 19 ¶¶ 26-27); see also Mousa, 238 F.Supp.2d at 3 ¶ 6; Eisenfeld, 172 F.Supp.2d at 5 ¶¶ 17-20.

13. Defendant Iran is a foreign state and has been designated a state sponsor of terrorism pursuant to section 6(j) of the

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Export Administration Act of 1979, 50 U.S.C. § 2405(j), continuously since January 19, 1984. See U.S. Dep't of State, Determination Pursuant to Section 6(i) of the Export Administration Act of 1979— Iran, 49 Fed.Reg. 2836-02, Jan. 23, 1984; U.S. Dep't of State, State Sponsors of Terrorism, http:// www. state. gov/ j/ ct/ list/ c 14151. htm; see also Oveissi, 879 F.Supp.2d at 51-52; Wein ...


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