United States District Court, D. Columbia.
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For FRIMET ROTH, ESTATE OF MALKA CHANA ROTH, By and through its Co-Administrators Arnold Roth and Frimet Roth, HAYA-ELISHEVA ROTH, By and through Arnold Roth and Frimet Roth as her Parents, Friends and Next of Kin, PESIA ROTH, RIVKA ROTH, ZVI NEHEMIA ROTH, SHAYA ELAZAR ROTH, PINCHAS MOSHE ROTH, Plaintiffs: Richard D. Heideman, LEAD ATTORNEY, Noel Jason Nudelman, HEIDEMAN NUDELMAN & KALIK, P.C., Tracy Reichman Kalik, Washington, DC; Edward B. MacAllister, Steven R. Perles, PERLES LAW FIRM, PC, Washington, DC.
Royce C. Lamberth, United States District Judge.
Plaintiffs have brought claims pursuant to the Foreign Sovereign Immunities Act (" FSIA" ) against the Islamic Republic of Iran and the Iranian Ministry of Information and Security (" MOIS" ). They seek damages for injuries suffered as a result of a terrorist attack committed in Jerusalem, Israel on August 9, 2001. Pending before the Court is plaintiffs' motion for default judgment. ECF Nos. 25, 34. For the reasons that follow, the Court concludes that plaintiffs' motion will be GRANTED IN PART and DENIED IN PART.
I. PROCEDURAL HISTORY
Plaintiffs filed their complaint on July 28, 2011, pleading causes of action against Iran and MOIS. Compl., ECF No. 3. Their causes of action and the jurisdiction of this Court are premised on section 1605A of the FSIA. Iran and MOIS were served with process on September 16, 2012. ECF No. 19. Their answer was due November 15, 2012. Defendants made no response and have yet to appear in this case. The Clerk of the Court entered default against defendants on April 21, 2014. ECF No. 24. Plaintiffs have now moved for entry of default judgment against defendants, both as to liability and damages. Pl.'s Mot. Entry of Default J. as to Liability, ECF No. 25; Pl.'s Mot. Entry of Default J. and Mem. of Law in Support of Claim for Damages, ECF No. 34 (hereinafter " Pl.'s Mot. Def. J. and Damages Mem." ).
II. FINDINGS OF FACT
Before determining whether defendants should have a default judgment entered against them, the Court must consider evidence and make findings of fact with respect to plaintiffs' allegations. This is because section 1608(e) of the FSIA requires that no default judgment shall be entered against a foreign state or its political subdivision except upon " evidence satisfactory to the court." 28 U.S.C. § 1608(e). The Court, therefore, 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). Courts may rely on uncontroverted factual allegations that are supported by affidavits. Id. Also, courts may take judicial
notice of prior related proceedings in cases before the same court. Id. Before the Court sets out its findings of fact, the basis for accepting this latter form of evidence warrants greater elaboration.
A. Judicial Notice of Prior, Related FSIA Cases
A court may " take judicial notice of, and give effect to, its own records in another but interrelated proceeding." Opati v. Republic of Sudan,, Civil Action No. 12-1224 (JDB), F.Supp.2d, 60 F.Supp.3d 68, 2014 WL 3687125, at *2 (D.D.C. July 25, 2014) (quoting Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)). This is in keeping with Federal Rule of Evidence 201(b), which allows a court to " judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined fro sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). In light of this authority and the numerous FSIA cases in recent years giving rise to nearly identical factual and legal issues, this Court and others in this District have frequently taken judicial notice of earlier, related cases arising under the state-sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v. Islamic Republic of Iran, 856 F.Supp.2d 109, 115 (D.D.C. 2012) (citing cases).
The Court may not simply adopt previous factual findings without scrutiny however. This is because factual findings " represent merely a court's probabilistic determination as to what happened, rather than a first-hand account of the actual events." Id. at 116. As such, courts have concluded that findings of fact are generally considered hearsay, not subject to an enumerated exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F.Supp.2d at 172. This does not mean, however, that courts in later, related FSIA proceedings are given the " onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack." Id. Instead, courts adjudicating related FSIA cases may " rely upon the evidence presented in earlier litigation--without necessitating the formality of having that evidence reproduced--to reach their own, independent findings of fact in the cases before them." Id. As stated above, the records of this Court in related proceedings are not subject to reasonable dispute. See Opati, 2014 WL 3687125, at *2. Thus, the type and substance of evidence previously presented to this Court in prior proceedings may be judicially noticed in the process of reaching findings of fact in this case.
On May 19, 2006, the Court presided over a hearing on liability in the case of Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90, 95 (D.D.C. 2006). There the Court received evidence regarding the August 9, 2001 attack upon which this suit is also based. Id. at 94-95. The Court shall take judicial notice of that evidence in making its findings of fact. The Court shall also take judicial notice of evidence received in Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C. 2003) (Urbina, J.) and Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (D.D.C. 2003), both cases involving Iran and MOIS's liability for state sponsorship of terrorism.
B. The Attack
On August 9, 2001, an unremarkable day in Jerusalem was rendered tragically memorable when Izz al-Din Shuheil Ahmed Masri detonated a ten-pound bomb at a Sbarro restaurant. Pl.'s Ex. List, Ex. 16, U.S. Dep't of State, Patterns of Global Terrorism 2001 at 54, 80 (2002), Greenbaum v. Islamic Republic of Iran, Civil
Action No. 02-2148 (RCL) (D.D.C. May 18, 2006), ECF No. 27-9 (hereinafter " Patterns of Global Terrorism " ); Pl.'s Supplemental Ex. List, Ex. 18, Catalog/Translation of Evidence, Greenbaum, Civil Action No. 02-2148 (RCL), ECF No. 28-6 at 1-2. The resulting explosion killed 15 people, including plaintiff Malka Roth. Patterns of Global Terrorism at 80.
Shortly afterwards, it became clear that Hamas was ultimately responsible for the attack. Patterns of Global Terrorism at 54; Patrick Clawson Dep. 18:2-8, May 24, 2006, Greenbaum, Civil Action No. 02-2148 (RCL), ECF No. 28-2 (hereinafter " Clawson Dep." ). This conclusion was supported by the following factors:
[A] living will videotape of the bomber made by the bomber beforehand in which he describes himself as being a member of Hamas and says he's going to carry out a suicide bombing; the description after the bombing by the bomber's father of his son as being a member of Hamas; and, furthermore, the court evidence and the interviews with the two individuals who were subsequently arrested for having helped the bomber identify the target and get him to the target in which they describe themselves as members of Hamas . . . .
Clawson Dep. 18:8-19:1.
C. Defendants' Actions and Involvement in the Attack
The State Department has broadly concluded that Iran provided Hamas and other " Palestinian rejectionist groups" with " varying amounts of funding, safehaven, training, and weapons," prior to and during the year 2001. Patterns of Global Terrorism at 65. It has also concluded that Iran " encouraged Hizballah and the rejectionist Palestinian groups to coordinate their planning and to escalate their activities." Id.
Deposition testimony from Dr. Clawson, before the Court in Greenbaum, supported these conclusions. He stated that in the fall of 2000, " Iranian support for Hamas was at fever pitch." Clawson Dep. 27:14-18. He asserted that " Iran's support for Hamas in 2000 and 2001 was at least several million dollars a year, if not more." Id. 33:2-4.
MOIS is the Iranian intelligence service. Id. 24:20. Evidence in prior cases has established that MOIS played a role in providing Iranian support to Hamas during the period preceding the August 9,
2001 attack. Id. 23:14-17; see also Campuzano, 281 F.Supp.2d at 262 (citing evidence showing that Iran routes its financial support for Hamas through MOIS and that a component organization of MOIS provides training to Hamas operatives). Dr. Clawson, for example, cited a Canadian government document indicating that in February 1999 a transfer of $35,000,000 was made to Hamas by MOIS. Clawson Dep. 24:14-22. This money was " reportedly meant to finance terrorist activities against Israeli targets." Id.
The Court has also been presented with substantial evidence that MOIS support for terrorism and Hamas's engagement in it was approved at the highest level of Iran's government. In Peterson, this Court reviewed evidence indicating that at the time of the Beirut U.S. Marine barracks bombing in 1983, Iranian approval of terrorist attacks would have involved a discussion in the National Security Council--including the prime minister--and would have required the approval of the supreme religious leader, the ayatollah. Peterson, 264 F.Supp.2d at 53. In Campuzano, Judge Urbina discussed evidence showing that at the time of a 1997 Hamas suicide bombing, MOIS and Iranian support for Hamas would have required senior leadership approval. Campuzano, 281 F.Supp.2d at 262. Similarly, the State Department has stated that Iran, during 2001, encouraged Hamas and other organizations to " escalate their activities." Patterns of Global Terrorism at 65. That year, Ayatollah Khamenei continued to state his view that Israel is a " cancerous tumor" requiring removal, vividly illustrating the sort of hostility underlying Iran's support for Hamas. Id. Such hostility--and material support to Hamas in furtherance thereof--appears to have been, in effect, the official state policy of Iran at the time of the August 9, 2001 attack.
D. Plaintiffs' Status and Injuries
The Court now makes findings regarding each plaintiff, including the injuries they suffered as a result of the August 9, 2001 attack and their citizenship (as is relevant to their entitlement to recover under section 1605A of the FSIA).
1. Malka Roth
Plaintiff Malka Roth was killed in the August 9, 2001 attack. Arnold Roth Decl. ¶ 2, ECF No. 34-2. She was 15 years old. Id. ¶ 3. She is represented in this litigation by her parents, Arnold and Frimet Roth, who serve as co-administrators of her estate. Compl., ECF No. 3; Pl.'s Supp. Mem. Ex. A, ECF No. 42-1. Malka Roth was a United States citizen. Arnold Roth Decl. ¶ 3.
2. Immediate family of Malka Roth
The other plaintiffs in this case are all immediate family members of Malka Roth. Arnold and Frimet Roth are her parents and Pesia Roth, Rivka Roth Rappaport, Zvi Roth, Shaya Roth, Pinchas Roth, and Elisheva Roth are her siblings. All except Arnold Roth are United States citizens.
All reside in Jerusalem, Israel. Arnold Roth Decl. ¶ 6.
Each plaintiff has alleged emotional injuries resulting from Malka Roth's death. These injuries are detailed below.
a. Frimet Roth
Frimet Roth first heard of the bombing a few minutes after it occurred through a CNN news report. Frimet Roth Decl. ¶ 8. She was immediately concerned for the safety of three of her children who were out on the streets of Jerusalem. Id. While two returned home a half hour later unharmed, Malka did not appear and did not respond to repeated phone calls. Id. Later in the day, Frimet set out for Shaarei Zedek Medical Center to search for her daughter, accompanied by the mother of Malka's best friend, who had been with Malka that day. Id. During the journey, Frimet learned that Malka's friend had sent a text message shortly before the bombing stating that the two girls were going to Sbarro. Id. At that point, Frimet stated, she " knew that the worst had happened and broke down banging on the car window and crying." Id. After returning home, she waited with her family and some neighbors, " moaning uncontrollably" while waiting for news. Id. Finally, around 2 a.m. the following morning, her sons Pinchas and Shaya called from the government's pathology lab. Id. ¶ ¶ 8, 9. Arnold took the call; Frimet recounted that just by reading his reaction, she knew that Malka's death had been confirmed. Id. ¶ 9. Frimet now mournfully recalls this moment as a cruel culmination with indelible effects: " The trauma of the evening and night leading up to that moment and then of the hours immediately after are impossible for me to describe. They will never leave me. They changed my life forever." Id.
Frimet states that her pain at Malka's death " has never left [her] for a moment." Id. ¶ 10. Indeed, because the mere memory of her daughter triggers such powerful sadness, she willfully suppresses her memories of Malka " in order to function, to plod ahead with life." Id. ¶ 11. Nonetheless, her declaration affirms her powerful love for Malka, detailing her admiration and gratitude for Malka's many positive qualities, including Malka's ardent devotion to her disabled sister Elisheva. Id. ¶ ¶ 12-16.
b. Rivka Roth Rappaport
Rivka Roth Rappaport is Malka Roth's sister, three and a half years Malka's junior. Rivka Roth Rappaport Decl. ¶ 3. Rivka states that she and Malka were " very close" growing up. Id. ¶ 7. Indeed, during that time they shared a bedroom and attended the same school and youth group. Id. Rivka remembers the day and night spent waiting for news of Malka's fate as traumatic; she recalls crying and being distraught at the news Malka's best friend had been killed. Id. ¶ 14 (characterizing the night's uncertainty as " excruciating" ). She knew Malka had died when she awoke to hear her mother " wailing and moaning" at the news. Id. ¶ 15.
Rivka declares that she has experienced emotional trauma and physical pain from her sister's death. Id. ¶ 16. She visited a psychologist once or twice but did not go regularly because of her skepticism of therapy at the time. Id. She now regrets that decision. Id. Rivka states that her life will never be the same as a result of the attack. Id. ¶ 17.
c. Zvi Roth
Zvi Roth is Malka Roth's brother, born two and a half years before her. Zvi Roth Decl. ¶ ¶ 2-3. He states that he and Malka were " very close" growing up. Id. ¶ 7. They spent a great deal of time together, doing things like playing together and going to the swimming pool. Id. Like his
sister Rivka, Zvi recalls the night waiting for news about Malka after the attack as being " very difficult." Id. ¶ 13. Upon hearing of his sister's death, he felt " terribly exhausted" and like " everything in my life was collapsing." Id. ¶ 14.
Zvi states that he has suffered emotional trauma and physical pain as a result of Malka's death. Id. ¶ 15. In the aftermath, he had trouble " studying and socializing" and felt isolated by his experience and his grief. Id. He " received grief counseling from both a psychologist and from a social worker." Id. He states that his life will never be the same without Malka and that he misses her ...