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Thuneibat v. Syrian Arab Republic

United States District Court, District of Columbia

March 1, 2016

NADIRA THUNEIBAT, et al., Plaintiffs,
v.
SYRIAN ARAB REPUBLIC, et al., Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL UNITED STATES DISTRICT JUDGE

The families and estates of two American citizens, Lina Mansoor Thuneibat and Mousab Ahmad Khorma (the “Victims”), initiated this action, under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350, and the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq., against two defendants, the Syrian Arab Republic and the Syrian Military Intelligence, for sponsoring the November 9, 2005, terrorist attacks in Amman, Jordan. Compl. (Preamble), ¶¶ 1-21, ECF No. 1. These attacks, coordinated by Al-Qaida in Iraq (“AQI”), resulted in the deaths of approximately sixty civilians, including Lina Thuneibat and Mousab Khorma, and the maiming of over one hundred others. Id. ¶¶ 13-14, 28-35. The defendants never entered appearances in, or defended against, this action, and the plaintiffs now seek default judgment for the damages caused by the extrajudicial killings perpetrated by AQI with material support from the defendants. For the reasons discussed below, default judgment is granted.

I. BACKGROUND

Summarized below is the factual background leading up to, and resulting from, the terrorist attacks at issue and the procedural history of this case. The background is based upon allegations in the Complaint as well as the detailed declaration of an expert in “Arab politics and counterterrorism, ” who relies extensively on United States government officials’ reports and statements. Pls.’ Mot. Default Judgment (“Pls.’ Mot.”), Ex. A (Decl. of David Schenker, dated March 19, 2015 (“Schenker Expert Decl.”)) at 2, ECF No. 26-2.

A. SYRIAN SUPPORT OF TERRORISM THREATS IN THE KINGDOM OF JORDAN

In 1994, the Kingdom of Jordan (“Jordan”) entered into an “historic peace treaty with Israel brokered by U.S. President Bill Clinton.” Compl. ¶ 26. Since then, Jordan has become a key ally of the United States in the counterterrorism effort, by “sharing intelligence information with the United States on militant groups” in the Middle East, “prosecut[ing] suspects with ties to al-Qaeda, ” id., “provid[ing] crucial logistical support to United States forces in Iraq, ” id. ¶ 27, and “allow[ing] Amman to be used as a staging base for transit into and out of Iraq, ” id.

In response to Jordan’s relationship with the United States and Israel, AQI, an organization designated as a Foreign Terrorist Organization (“FTO”) by the U.S. Department of State, and its leader, Jordanian national Ahmad Fadil Nazzal Al Khalayleh, also known as Abu Musab Al-Zarqawi (“Zarqawi”), targeted Jordan for terror attacks. Id. (Preamble), ¶ 29. Zarqawi and AQI’s efforts have been supported by Syria, which has been included on the U.S. Department of State’s list of State Sponsors of Terrorism since 1979 and is known to “‘support groups’” that “‘have carried out scores of attacks against Palestinian and other Arab, Turkish, Israeli, and Western targets . . . .’” Id. ¶ 49 (quoting a U.S. Department of State Bulletin published in 1987) (ellipsis in the original).

For example, in 1999, Zarqawi allegedly participated in a plot to bomb Jordanian tourist sites, including one of the three hotels targeted in the November 9, 2005 attacks at issue in this case. Id. ¶ 29. In 2002, from his base in Syria, Zarqawi and AQI planned and facilitated the assassination in Amman, Jordan, of U.S. Agency for International Development (“USAID”) official Lawrence Foley. Id.; Schenker Expert Decl. at 7. The terrorists allegedly trained in Syrian military barracks “under the supervision of Syrian soldiers, who instructed them in the use of submachine guns, rifles, pistols and the construction of bombs, ” and the weapons used to assassinate Foley were allegedly provided by Syria. Compl. ¶ 54. Zarqawi, along with two other known associates, were convicted in Jordan and sentenced to death, in absentia, for Foley’s assassination. Id. ¶ 29; Schenker Expert Decl. at 7.

In 2003, after the United States led a multinational invasion of Iraq, Syria explicitly articulated a policy of defeating the U.S.-led armed forces in Iraq. Schenker Expert Decl. at 4 (quoting former Syrian Foreign Minister Farouq Shara). Zarqawi and an Aleppo-based militant Islamist cleric employed by the Syrian government “‘co-established . . . the Al-Qaeda branch in Iraq after the U.S. invasion.’” Id. (quoting Sami Moubayed, the Islamic Revival in Syria, Middle East Monitor, Sept.-Oct. 2006). Syria became a crucial base for AQI, and “several of Zarqawi’s key deputies and supporters based their operations out of the state.” Id. at 5. The same year, in 2003, Zarqawi and AQI allegedly “attacked the Jordanian embassy in Iraq, killing fourteen and wounding forty.” Compl. ¶ 29. In a hearing before the Senate Armed Services Committee in 2003, then Deputy Secretary of Defense Paul Wolfowitz testified that several foreign fighters killed by U.S. forces in Iraq went there through Syria, and the entry permits on their passports said “‘volunteer for jihad, ’” or “‘to join the Arab volunteers, ’” indicating that Syria was well aware of the jihadi nature of these transient volunteer soldiers as they passed through Syrian borders. Shenker Expert Decl. at 5 (quoting former Deputy Secretary of Defense Paul Wolfowitz). Indeed, Zarqawi was aided in fundraising and operational planning by Fawzi Mutlaz al Rawi, who was also appointed by the Syrian President Bashar Assad in 2003 to be the leader of the Iraqi wing of the ruling Syrian Ba’ath party. Id. at 6. Rawi is financially supported by the Syrian Government and has “‘close ties to Syrian Intelligence.’” Id. (quoting U.S. Department of Treasury, Treasury Designates Individuals with Ties to Al Qaida, Former Regime (Dec. 7 2007)).

In 2004, Zarqawi and AQI planned an attack on “several Jordanian and American targets” in Amman, including the U.S. embassy, involving detonation of “a truck bomb laden with chemicals that . . . would create a chemical plume” with the capability of “kill[ing] over 100, 000” people. Schenker Expert Decl. at 7; Compl. ¶ 29. Jordanian forces thwarted the attack for which Zarqawi later took responsibility, claiming that it was in “retribution for Jordan housing a ‘big database used by the enemy of Islam to track down holy warriors.’” Schenker Expert Decl. at 7 (quoting Maggie Michael, Al Qaeda Operative: Jordan Attack Planned, AP, Apr. 30, 2004); Compl. ¶ 30. According to the confession of a captured terrorist, Zarqawi “provided the funding necessary for the operation” through a Syrian resident, named Suleiman Khaled Darwish a/k/a Abu al Ghadiyyeh, who was designated by the United States Treasury Department in 2005 as a Specially Designated Global Terrorist (“SDGT”). Schenker Expert Decl. at 5-8. Ghadiyyeh regularly arranged for jihadis affiliated with AQI and Zarqawi to travel through Syria into Iraq. Id. at 8. Yet, even after the United States made numerous requests to Syria to “‘hand over, capture, or kill’” Ghadiyyeh, Syria continued to “provid[e] safehaven for Ghadiyyeh as a matter of policy.” Id. (quoting Pamela Hess, Syria Raid May Point to a New U.S. Poster, AP, October 28, 2008). In 2008, the United States Special Operations forces killed Ghadiyyeh in a Syrian village, six miles from the Iraqi border. Id.

The State Department’s 2005 Patterns of Global Terrorism publication concluded that Syria remained a “‘facilitation hub for terrorists operating in Iraq . . . .’” Compl. ¶ 58. In 2007, then-General David Petraeus echoed that Syria acts as “critical support for the AQI insurgency in Iraq, ” and plays a “pivotal role as the source of foreign fighters entering Iraq.” Schenker Expert Decl. at 6.

B. THE ATTACKS IN AMMAN, JORDAN ON NOVEMBER 9, 2005

On November 4, 2005, Zarqawi sent four AQI suicide bombers into Amman, Jordan. Compl. ¶ 31. Five days later, on November 9, 2005, these four suicide bombers, wearing “bomb belts packed with the powerful explosive RDX and ball bearings, designed to inflict the maximum number of casualties, ” entered the lobbies of the Radisson SAS, the Grand Hyatt and the Days Inn. Id. ¶ 32; Schenker Expert Decl. at 8. According to a coordinated plan, the suicide bombers detonated their bombs within minutes of one another, killing a total of fifty-seven civilians, including the Victims, and wounding 110 others. Schenker Expert Decl. at 8.

Shortly after the attacks, AQI and Zarqawi “issued several claims of responsibility.” Schenker Expert Decl. at 10-11. On November 10, 2005, AQI posted two statements in Arabic on a jihadi website, acknowledging that “the Army of al-Qaeda” carried out the attacks. Id. at 10. The statements explained that these hotels were targeted because they were “‘headquarters, safe haven, residence and meeting place of the evil state of Jordan, the sons of Alqami [Shiites], and their guests, ’” “‘the filthy tourists of the Jews and Westerners.’” Id. at 10-11 (quoting Appendix B (First AQI Online Statement, dated November 10, 2005) at 21, ECF No. 26-2 and Appendix C (Second AQI Online Statement, dated November 10, 2005) at 23, ECF No. 26-2) (alteration in the original). On November 18, 2005, Zarqawi posted a twenty-seven minute long video, explaining that “‘Al Qaida took this blessed step’” because, inter alia, “‘[the Jordanian] army has become a devoted guardian of the Zionist state, ’” “‘the obscenity and corruption spread [by the Jordanian government] have turned Jordan into a quagmire of utter profanity and debauchery, and anyone who has seen the hotels, the houses of entertainment, the dance parties, the wine bars, and the tourist resorts . . . is wrenched with sorrow, ’” and that “‘[a]s for the situation in Iraq, Jordan has served and is still serving as a rear supply base for the American army.’” Id. at 11-12 (quoting Al-Qaeda Explains Amman Bombings Threatens: “In a Few Days, the Infidel Leaders Will Witness an Event that Will Make [The Amman Bombings] Seem Insignificant, ” MEMRI Special Dispatch No. 1043, December 8, 2005 (hereinafter “Transcript of Zarqawi Statement, dated November 18, 2005”)). Zarqawi explained that the hotels were chosen specifically in order to “kill as many Americans and Israelis as possible.” Id. at 12.

C. THE TWO VICTIMS AND THEIR FAMILIES

One of the Victims is Lina Mansoor Thuneibat, who was an American citizen and nine years old at the time of her death from the terrorist attacks. She was sitting at a table inside the ballroom at the Radisson SAS hotel in Amman, Jordan, attending the wedding of her first cousin, when two suicide bombers entered, one of whom “jumped onto a table, and detonated his bomb belt, killing himself, Lina Mansoor Thuneibat and at least thirty-five (35) others, and injuring many others.” Compl. ¶ 33. At the time, Lina was living temporarily in Amman, Jordan, to attend an elite private school. Pls.’ Mot., Ex. J (“Nadira Thuneibat Decl.”) ¶ 16, ECF No. 26-11.

Lina’s mother, Nadira Thuneibat, an American citizen, was standing outside the ballroom at the time of the blast. She survived but witnessed the death of her uncle, who was struck in the heart with shrapnel, and waded through the chaotic aftermath in the ballroom where “‘bodies and blood’” were strewn all over the floor, including people decapitated and disemboweled. Id. ¶¶ 23-25. Most significantly, Nadira lost her daughter that day. As a result of this traumatic experience, Nadira suffered physical and emotional devastation. Her menstrual cycle stopped due to shock. Id. ¶ 35. She became depressed, experienced wild mood swings, and developed an eating disorder. Id. ¶ 46.

Lina’s father, Mansoor al-Thuneibat, an American citizen, who was not in Amman on the night of the attack, id. ¶ 36, was “devastated” by the death of his daughter, id. ¶ 37, and became withdrawn and depressed as a result, id. ¶¶ 40, 41. In December 2006, he was diagnosed with brain tumor. Id. ¶ 42. A year later, in December 2007, following two surgeries to remove the tumor, Mansoor died of a heart attack. Id. Similarly, Lina’s two brothers, O.M.T. and Muhammad Mansoor Thuneibat, both American citizens, also suffered and continue to suffer severe emotional trauma due to their sister Lina’s death. Id. ¶¶ 48, 55.

The second Victim, Mousab Ahmad Khorma, an American citizen, was a thirty-nine-year-old deputy chairman of the Cairo Amman Bank. Compl. ¶ 34. He was waiting for friends in the lobby of the Grand Hyatt in Amman, Jordan, on November 9, 2005, when he was killed in an explosion after a suicide bomber entered the hotel lobby and detonated his bomb belt. Id. In total, ten people were killed and numerous others were injured. Id.

Mousab is survived by three siblings, two brothers and a sister, and his now-deceased mother, all Jordanian citizens. Pls.’ Mot., Ex. K (“Tariq Khorma Decl.”) ¶¶ 5, 6, ECF No. 26-12. Samira Khorma, Mousab’s mother, became inconsolable upon learning of her son’s premature death, and, as a result, this once lively sociable woman became “a recluse, refused to leave and house and dressed in black from that moment until she died.” Pls.’ Mot., Ex. L (“Tatsiana Khorma Decl.”) ¶ 36, ECF No. 26-13. Mousab’s siblings were all devastated as well, and continue to suffer severe mental anguish to this day. Tariq Khorma Decl. ¶ 63, Tatsiana Khorma Decl. ¶ 34, Pls.’ Mot., Ex. M (“Zeid Khorma Decl.”) ¶ 56, ECF No. 26-14.

D. Procedural History

The plaintiffs filed this lawsuit against the defendants on January 9, 2012. See Compl. After more than two years and numerous attempts to serve the defendants, on August 29, 2014, the plaintiffs filed a declaration of proof of service, attesting that the defendants were properly served in accordance with 28 U.S.C § 1608(a), which provides the procedure for completing service upon a foreign state or political subdivision of a foreign state. See Status Report, dated October 23, 2012, ECF No. 11; Status Report, dated June 24, 2013, ECF No. 14; Declaration of Proof of Service (“Decl. Proof of Service”), dated August 29, 2014, ECF No. 22. The Clerk entered default against the defendants on December 5, 2014. Entry of Default, dated December 5, 2014, ECF No. 24. The plaintiffs subsequently filed the instant motion for default judgment. See Pls.’ Resp. to Court’s Order to Show Cause, dated January 16, 2015, ECF No. 25; Pls.’ Mot. The plaintiffs’ briefing, with over three hundred pages in exhibits, was comprehensive, and, thus, an evidentiary hearing is unnecessary.[1]

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 55(b)(2), the Court may consider entering a default judgment when a party applies for that relief. See Fed. R. Civ. P. 55(b)(2). “[S]trong policies favor resolution of disputes on their merits, ” and therefore “‘[t]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.’” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)). A default judgment is appropriate when a defendant is “a ‘totally unresponsive’ party and its default plainly willful, reflected by its failure to respond to the summons and complaint, the entry of default, or the motion for default judgment.” Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011).

“[E]ntry of a default judgment is not automatic, ” however. Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted). The procedural posture of a default does not relieve a federal court of its “affirmative obligation” to determine whether it has subject matter jurisdiction over the action. See James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). Additionally, “a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6. The party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants. See, e.g., FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008) (“The plaintiffs have the burden of establishing the court’s personal jurisdiction over [the defendants].”); Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (“[T]he party claiming subject matter jurisdiction . . . has the burden to demonstrate that it exists.”).

Finally, when default is sought under the FSIA, a claimant must “establish[] his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “This provides foreign sovereigns a special protection akin to that assured the federal government by Fed.R.Civ.P. 55(e), ” which has been renumbered by the 2007 amendment to Rule 55(d). Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C. Cir. 2014); see also H.R. Rep. No. 94-1487, at 26 (1976) (stating that § 1608(e) establishes “the same requirement applicable to default judgments against the U.S. Government under rule 55(e), F.R. Civ. P.”). While the “FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, requiring only that it be ‘satisfactory to the court, ’” courts must be mindful that Congress enacted Section 1605A, FSIA’s terrorism exception, and Section 1608(e) with the “aim[] to prevent state sponsors of terrorism-entities particularly unlikely to submit to this country’s laws-from escaping liability for their sins.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047-48 (D.C. Cir. 2014) (quoting 28 U.S.C. § 1608(e)).

With this objective in mind, the D.C. Circuit has instructed that “courts have the authority-indeed, we think, the obligation-to ‘adjust [evidentiary requirements] to . . . differing situations.’” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). Courts must draw their “‘findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.’” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n.1 (D.D.C. 2001)). Uncontroverted factual allegations that are supported by admissible evidence are taken as true. Roth v. Islamic Republic of Iran, 78 F.Supp. 3d 379, 386 (D.D.C. 2015) (citing Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010)); Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 63 (D.D.C. 2008) (quoting Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C. 2007)), aff’d Gates v. Syrian Arab Republic, 646 F.3d 1 (D.C. Cir. 2011).

III. DISCUSSION

A default judgment may be entered when (1) the Court has subject matter jurisdiction over the claims, (2) personal jurisdiction is properly exercised over the defendants, (3) the plaintiffs have presented satisfactory evidence to establish their claims against the defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to the monetary damages they seek. Each of these requirements is addressed seriatim below.

A. SUBJECT MATTER JURISDICTION UNDER THE FSIA

The Syrian Arab Republic is indisputably a foreign sovereign and the Syrian Military Intelligence, which is a “political subdivision” of Syria, is also considered a foreign sovereign for the purposes of this lawsuit under 28 U.S.C. § 1603(a). See Gates, 646 F.3d at 128 n.1 (“The Syrian Military Intelligence and the individual defendants are considered part of the state itself under the FSIA.” (citing 28 U.S.C. § 1603(a), (b); Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033-34 (D.C. Cir. 2004), superseded by statute, 28 U.S.C. § 1605A; and Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003))). This Court may exercise “original jurisdiction” over a foreign state “without regard to amount in controversy” so long as the claim is a “nonjury civil action” seeking “relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” See 28 U.S.C. § 1330(a) (italics added). Here, the plaintiffs have not demanded a jury trial, see Civil Cover Sheet at 2, ECF No. 1-1, and bring civil federal and other tort claims against the defendants as a foreign sovereign for in personam relief. Thus, the key question is whether the defendants are entitled to immunity under the FSIA or other international agreement.

Foreign governments are generally immunized from lawsuits brought against them in the United States unless an FSIA exception applies. See 28 U.S.C. § 1604; Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 13 (D.C. Cir. 2015). The plaintiffs invoke jurisdiction under the FSIA’s “terrorism exception, ” Compl. ¶ 22; Pls.’ Mem. Supp. Mot. Default J. (“Pls.’ Mem.”) at 4, ECF No. 26-1, which provides that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act . . . .” 28 U.S.C. § 1605A. The plaintiffs must prove four elements to establish subject matter jurisdiction under this exception: (1) “the foreign country was designated a ‘state sponsor of terrorism at the time [of] the act, ’” Mohammadi, 782 F.3d at 14 (quoting 28 U.S.C. § 1605A(a)(2)(A)(i)(I)); (2) “the ‘claimant or the victim was’ a ‘national of the United States’ at that time, ” id. (quoting 28 U.S.C. § 1605A(a)(2)(A)(ii)); (3) “in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim, ” 28 U.S.C. § 1605(A)(a)(2)(A)(iii); and (4) the plaintiff seeks monetary damages “for personal injury or death caused by ‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, ’ if ‘engaged in by an official, employee, or agent’ of a foreign country, ” Mohammadi, 782 F.3d at 14 (quoting 28 U.S.C. § 1605A(a)(1)). These four elements have been satisfactorily proven here.

The plaintiffs indisputably meet the first element. Syria has been continuously designated a state sponsor of terrorism since 1979. Schenker Expert Decl. at 4 (“Syria was an inaugural member of the U.S. Department of State’s list of State Sponsors of Terrorism in 1979, and remains on this list until today.”); see also Gates, 646 F.3d at 2 (“Syria has been designated a state sponsor of terrorism since 1979.”).

The plaintiffs also meet the second element that the “claimant[s] or victim[s]” must be “national[s] of the United States” at the time of the attacks. 28 U.S.C. § 1605A(a)(2)(A)(ii)(I). Members of the Victims’ families have submitted affidavits attesting to the Victims’ citizenship at the time of the November 9, 2005, attacks. See, e.g., regarding Lina Mansoor Thuneibat, Nadira Thuneibat Decl. ¶ 11 (“Our daughter Lina Mansoor Thuneibat was born in . . . 1996. . . . She was a U.S. citizen continuously since her birth, until her death at the age of 9 as a result of the bombings of the Radisson SAS, Grand Hyatt and Days Inn hotels in Amman, Jordan, on November 9, 2005[.]”); regarding Mousab Ahmad ...


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