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Kaplan v. Cent. Bank of the Islamic Republic of Iran

United States District Court, D. Columbia.

July 23, 2014

CHAIM KAPLAN, et al., Plaintiffs,
v.
CENTRAL BANK OF THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants. CHAIM KAPLAN, et al., Plaintiffs,
v.
HEZBOLLAH, et al., Defendants

Page 190

For Chaim Kaplan, individually and as natural guardian of plaintiffs M.K.(1), A.L.K., M.K.(2), C.K. and E.K., All Plaintiffs, Shoshana Sappir, Sarah Yefet, Esther Pinto, Immanuel Penker, Joseph Maria, Rivka Epon, Valentina Demesh, Tatiana Kovleyov, Agat Klein, Raphael Weiss, Rina Dahan, Nitzan Goldenberg, Shlomo Cohen, Tal Shani, Yosef Zarona, Tatiana Kremer, Arkady Graipel, Tzvi Hirsh, Yehudit Licci, individually and as natural guardian of plaintiff, Y.L., Elihav Licci, individually and as natural guardian of plaintiff, Y.L., Y.L., a minor, by his father and natural guardian Elihav Licci and by his mother and natural guardian Yehudit Licci, Myra Mandel, Danielle Sauter, Jared Sauter, Mikimi Steinberg, Chaya Katzmacher, Deborah Chana Katzmacher, Jacob Katzmacher, Maurine Greenberg, Theodore Greenberg, Yair Mor, M.R., a minor, by her mother and natural guardian, Laurie Rappeport, Laurie Rappeport, individually and as natural guardian of plaintiff M.R., N.Y.A., a minor, by hisr father and natural guardian, Brian Ardstein, and by his mother and natural guardian, Keren Ardstein, A.C.A., a minor, by his father and natural guardian, Brian Ardstein, and by his mother and natural guardian, Keren Ardstein, N.A., a minor, by her father and natural guardian, Brian Ardstein, and by her mother and natural guardian, Keren Ardstein (1:10cv483), Plaintiffs: Robert Joseph Tolchin, THE BERKMAN LAW OFFICE, LLC, Brooklyn, N.Y. USA.

For Rivka Kaplan, individually and as natural guardian of plaintiffs M.K.(1), A.L.K., M.K.(2), C.K. and E.K, M.A., a minor, by her father and natural guardian, Brian Ardstein, and by her mother and natural guardian, Keren Ardstein, Brian Ardstein, individually and as natural guardian of plaintiffs, M.A., A.C.A. and N.Y.A., Keren Ardstein, individually and as natural guardian of plaintiffs, M.A., A.C.A. and N.Y.A., Nechama Kumer, Chayim Kumer, Elisheva Aron, Avishai Reuvane, Michael Fuchs, E.K., a minor, by his father and natural guardian, Chaim Kaplan, and by his mother and natural guardian, Rivka Kaplan, C.K., a minor, by her father and natural guardian, Chaim Kaplan, and by her mother and natural guardian, Rivka Kaplan, A.L.K., a minor, by his father and natural guardian, Chaim Kaplan, and by his mother and natural guardian, Rivka Kaplan, M.K.(2), a minor, by his father and natural guardian, Chaim Kaplan, and by his mother and natural guardian, Rivka Kaplan, M.K.(1), a minor, by her father and natural guardian, Chaim Kaplan, and by her mother and natural guardian, Rivka Kaplan (1:10cv483), Plaintiffs: Robert Joseph Tolchin, LEAD ATTORNEY, THE BERKMAN LAW OFFICE, LLC, Brooklyn, N.Y. USA.

For Bank Saderat, Iran, Bank Saderat, Plc (1:10cv483), Defendants: Frank C. Razzano, Matthew D. Foster, LEAD ATTORNEYS, John Charles Snodgrass, PEPPER HAMILTON LLP, Washington, DC USA; Jeremy D. Frey, LEAD ATTORNEY, PRO HAC VICE, PEPPER HAMILTON, LLP, Philadlephia, PA USA.

For Chaim Kaplan, All Plaintiffs, Danielle Sauter, Jared Sauter, Myra Mandel, Margalit Rappeport, Mushka Kaplan, Myra Mandel Meshek, Laurie Rappeport, Netiya Yeshua Ardstein, Ariel Chaim Ardstein, Noa Ardstein, Ma'ayan Ardstein, Brian Ardstein, Keren Ardstein, Nechama Kumer, Chayim Kumer, Elisheva Aron, Danielle Sauter Hachezel, Jared Sauter Hachezel, Mikimi Steinberg, Chaya Katzmacher, Deborah Chana Katzmacher, Jacob Katzmacher, Maurine Greenberg, Theodore Greenberg, Yair Mor, Avishai Reuvane, Michael Fuchs, Efraim Kaplan, Chana Kaplan, Menachem Kaplan, Arye Leib Kaplan, Rivka Kaplan (1:09cv646), Plaintiffs: Robert Joseph Tolchin, LEAD ATTORNEY, THE BERKMAN LAW OFFICE, LLC, Brooklyn, N.Y. USA.

Page 191

MEMORANDUM OPINION

Royce C. Lamberth, U.S. District Judge.

This is a civil action for damages pursuant to the Foreign Sovereign Immunities Act (" FSIA" ) 28 U.S.C. § 1602 et seq. , against the Democratic People's Republic of Korea (" North Korea" ) and the Islamic Republic of Iran.[1] Plaintiffs are

Page 192

American nationals [2] who were victims of the Hezbollah [3] terrorist organization's rocket attacks in Israel that occurred during the period of July 12, 2006 through August 14, 2006.

On May 27, 2014, this Court conducted a hearing to determine the liability of the defendants. Having reviewed the extensive evidence presented during that hearing by expert witnesses, the Court has determined that the plaintiffs have established their right to obtain judicial relief against defendants Iran and North Korea. The Court's findings of fact and conclusions of law are set forth below.

I. Procedural Background

The plaintiffs in these actions are family members of the rocket attack victims or injured survivors. In April 2009, plaintiffs filed a complaint, and in December an amended complaint, against North Korea pursuant to the FSIA's terrorism exception, 28 U.S.C. § 1605A, and against Hezbollah pursuant to the Antiterrorism Act, 18 U.S.C. § 2333 (1:09-cv-00646-RCL, ECF 1, 5).[4] The following year in March, plaintiffs filed a complaint against the Islamic Republic of Iran and several banks (1:10-cv-00483-RCL, ECF 3). As defendants North Korea and Iran did not answer the complaints, the Court entered defaults as to them in May 2010 (09-646, ECF 18) and May 2014 (10-483, ECF 50), respectively. The plaintiffs moved for entry of judgment on the default as to North Korea, Iran, and the Central Bank of Iran on May 12, 2014 (09-646, ECF 53; 10-483, ECF 51).

Despite the entries of default, this Court is required to make a further inquiry prior to entering any judgment against the defendants. FSIA mandates that a default judgment against a foreign state may be entered only after a plaintiff " establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e); see also Flatow v. The Islamic Republic of Iran, 999 F.Supp. 1, 6 (D.D.C. 1998). As in Flatow, the Court will require plaintiffs to establish their right to relief by clear and convincing evidence. The " clear and convincing" standard of proof is the standard required in the District of Columbia to support a claim for punitive damages, and is sufficient to establish a prima facie case in a contested proceeding.

II. Findings of Fact

As stated above, this Court received testimony from plaintiffs on May 27, 2014,

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defendants having failed to enter an appearance. The Court now enters its findings of fact, based upon the sworn testimony and documentary evidence presented during the May hearing, and received in accordance with the Federal Rules of Evidence. The Court finds these facts to be established by clear and convincing evidence.

A. Background

As a matter of policy, North Korea is hostile to the United States, and North Korea has attempted to undermine the political, economic, and strategic power and influence of the United States and its democratic allies. To accomplish this objective, North Korea has previously supported numerous Communist and other anti-Western terrorist organizations. These terrorist organizations are not only opposed to the United States, but they are also opposed to the State of Israel, which they view as allied with the United States. Consequently, North Korea has directly supported terrorist organizations that have carried out attacks in Israel. See Calderon-Cardona v. Democratic People's Republic of Korea, 723 F.Supp.2d 441 (D.P.R. 2010) (finding North Korea liable for murdering and injuring Americans in Israel because it supported anti-Israel terrorist organizations). Among the terrorist organizations that North Korea has supported is Hezbollah, which is opposed to the United States and Israel and which is a designated Foreign Terrorist Organization. See 62 Fed. Reg. 52650 (Oct. 8, 1997).

B. Plaintiffs' Injuries

This Court's findings in combination with the declarations (09-646, ECF 47) presented by plaintiffs alleging that all plaintiffs were killed or injured (directly or indirectly) by the attack, is sufficient to establish defendant's liability in this case under 28 U.S.C. § 1605A. While the evidence presented may not be adequate to demonstrate that each individual plaintiff is entitled to damages, plaintiffs have only moved for default judgment as to liability not damages, and so the Court need not address these questions at this stage.

C. North Korea's Responsibility for the July-August 2006 Rocket Attacks

The Court finds by clear and convincing evidence that Hezbollah carried out the rocket attacks that caused plaintiffs' injuries and that North Korea provided material support. Prior to July 12, 2006, North Korea provided Hezbollah with a wide variety of material support and resources, within the meaning of 28 U.S.C. § 1605A. This material support included professional military and intelligence training and assistance in building a massive network of underground military installations, tunnels, bunkers, depots and storage facilities in southern Lebanon. Moreover, North Korea worked in concert with Iran and the Syria to provide rocket and missile components to Hezbollah. North Korea sent these rocket and missile components to Iran where they were assembled and shipped to Hezbollah in Lebanon via Syria. These rocket and missile components were intended by North Korea and Hezbollah to be used and were in fact used by Hezbollah to carry out rocket and missile attacks against Israeli civilian targets. Between July 12, 2006 and August 14, 2006, Hezbollah fired thousands of rockets and missiles at civilians in northern Israel. As a result of North Korea's provision of material support and resources, Hezbollah was able to implement and further goals shared by Hezbollah and North Korea.

As to the attacks being carried out by Hezbollah, plaintiffs' expert Professor Guy Podoler stated at the hearing that we know it was ...


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