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Bluth v. Islamic Republic of Iran

United States District Court, District of Columbia

August 25, 2016

NETHANIAL CHAIM BLUTH, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al. Defendants.

          MEMORANDUM OPINION

          GLADYS KESSLER UNITED STATES DISTRICT JUDGE

         On February 13, 2012, ten members of the Bluth family ("Plaintiffs" or "the Bluths") filed a Complaint alleging that the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and the Iranian Revolutionary Guard Corps ("Iranian Defendants") are liable under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A, for Plaintiffs' physical and emotional injuries arising from a terrorist attack by Hamas directed at a classroom full of students studying Torah on March 7, 2002. Am. Compl. ¶¶ 10-19 [Dkt. No. 5]. According to the Complaint, the Iranian Defendants "provided material support or resources including cover, sanctuary, technical assistance, explosive devices, and training" to the terrorists. Id.

         On February 24, 2015, the Clerk of the Court declared the Iranian Defendants to be in default because they had never responded to the Complaint. In order to obtain a default judgment under FSIA, plaintiffs must establish their claim or right to relief by evidence that is satisfactory to the Court. See 28 U.S.C. § 1608(e). As explained herein, Plaintiffs have met this standard. Accordingly, the Court will grant their Motion for Default Judgment.

         I. FINDINGS OF FACT

         A. Background

         1. Hamas

         Hamas is a Palestinian Sunni Islamist group that formed in 1987 as a derivative of the Palestinian branch of the Egypt-based Muslim Brotherhood. Declaration of Dr. Matthew Levitt[1] ("Levitt Decl.") at 17 [Dkt. No. 56-2]. Known.as Harakat al-Muqawamah al-lslamiyya in Arabic, (translated as "The Islamic Resistance Movement") ("Am. Compl.") [Dkt. No. 5 ¶ 24], Hamas aims to destroy Israel and create an Islamic Palestinian state in its place. Levitt Decl. at 17; Declaration of Dr. Patrick Clawson[2] ("Clawson Decl.") at 10 [Dkt. No. 56-1] .

         Hamas also fights against secularization and Westernization of Arab society and aims to be recognized internationally as the only representative entity of the Palestinian people. Levitt Decl. at 17. Hamas engages in social welfare and political activity, as well as guerilla and terrorist attacks to achieve its goals. Id. Hamas emphasizes violent jihad, [3] which is a "religiously sanctioned resistance against perceived enemies of Islam." Id. at 17-18.

         Within Hamas, the Izz a-Din al-Qassam Brigades form the military wing that carries out acts of violence against both military and civilian targets, including suicide as well as other types of bombings, use of Qassam rockets, [4] mortar fire, and shootings. Levitt Decl. at 18. In the 2003 Patterns of Global Terrorism, the United States Department of State reported that Hamas carried out more than 150 attacks globally, including one of the most deadly attacks in 2003. Levitt Decl. at 15; see Pis.' Ex. 7 [Dkt. No. 58-7] .

         As of March 2004, . Hamas had carried out 425 terrorist attacks since its creation; it had killed approximately 377 people and wounded 2, 076. Levitt Decl. at 18; Pis.' Ex. 15 [Dkt. No. 58-15]. One element of the group's strategy is to terrorize and then pressure leaders to give concessions to Hamas to stop the violence. Levitt Decl. at 19. The "social" wing of Hamas indoctrinates, recruits, and supplies funding for the military wing. Am. Compl. ¶ 27.

         In 1995, the United States Government designated Hamas as a "Specially Designated Terrorist" entity pursuant to the International Emergency Economic Powers Act. Am. Compl. ¶ 25 (citing 50 U.S.C.A. §§ 1701, 1702; Exec. Order No. 12947, 60 Fed. Reg. 5079 (Jan. 23, 1995)). Only two years later, Hamas was identified and labeled as a "Foreign Terrorist Organization, " pursuant to 8 U.S.C. § 1189. Am. Compl. ¶ 26. It is unlawful to provide material support and resources, including currency or monetary instruments, financial services, personnel, transportation, and other provisions to any components of a Foreign Terrorist Organization. Id.; see 18 U.S.C.A. §§ 2339A, 2339B.

         Various press outlets, including the al Qassam website, which is the official English language website of Hamas' military and terrorist wing's "information office, " track Hamas' acts. Levitt Decl. at 21. Confirmed Hamas attacks include high-population areas such as education centers, cafes and restaurants, command bases, and buses, all of which are bound to injure or kill large groups of people at any given time. Id. at 21-22. Hamas' pattern of activity meets the criteria for "terrorism, " which is defined as "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents." 22 U.S.C.A. § 2656f(d)(2); see 8 U.S.C. § 118 9(a)(1)(B).

         2. Iran as a State Sponsor of Terrorism

         A "state sponsor of terrorism" refers to a country whose government the United States Secretary of State has determined, for purposes of Section 6(j) of the Export Administration Act of 1979, (50 U.S.C. App. § 2405 (j)), Section 620A of the Foreign Assistance Act of 1979, (22 U.S.C. § 2371), Section 40 of the Arms Export Control Act, (22 U.S.C. § 2780), or any other provision of law, "is a government that has repeatedly provided support for acts of international terrorism, " 28 U.S.C.A. § 1605A(h)(6); see also "Terrorist Groups, " U.S. Department of State, https://www.nctc.gov/site/groups.html. The government of the Islamic Republic of Iran ("Iran") has been identified as a state sponsor of terrorism since January 19, 1984. Moradi v. Islamic Republic of Iran, 77 F.Supp.3d 57, 65 fn. 7 (D.D.C. 2015) (citations omitted); see generally Levitt Decl.; Clawson Decl.

         Beginning in the early 1990's, Iran and Hamas developed a close relationship. Clawson Decl. at 10. Iran was driven by its desire to disrupt the Middle East peace process in the late 1990's and relied on terrorist activities to do so, strongly and publicly encouraging such activities from Hamas. Id. The Iranian Revolutionary Guard Corps ("IRGC") and Iran's Ministry of Information and Security ("MOIS") made terrorism training available to Hamas members as well as other terrorist groups. Id. at 7. Iran has provided financial support as well as tactical training and planning support to Hamas. Id. at 8-10 (citing the Patterns of Global Terrorism annual reports by the U.S. Department of State pursuant to 22 U.S.C. § 2656f (a)). Moreover, Iran employs a performance-based approach to calculate its level of funding for a terrorist group and rewards groups like Hamas for successful attacks. Levitt Decl. at 7 (citing Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C. 2002)).

         In 1997, during a televised interview of Hassan Salameh, a Hamas member, it was publicly revealed that Hamas members flew to and trained in Iran and received support from Iran. Clawson Decl. at 10. In 2003, the Israeli Ministry of Foreign Affairs estimated that Iran provided Hamas with approximately $3 million per year. Id. at 11. That same year, estimates of Hamas' budget ranged anywhere from $30 million to $90 million per year. Levitt Decl. at 13. Of that amount, according to FBI testimony, an estimated $25 million to $30 million per year came from foreign funding. Id. Monetary funding supports the costs of propaganda, terror activities, social welfare (including payments to the families of suicide bombers), bribes, intelligence payments, long-term infrastructure, and safe houses. Id. at 12-13.

         The relationship between Hamas and Iran cooled after 2003, following a vigorous Israeli campaign against Hamas. Clawson Decl. at 11. However, Hamas and Iran re-developed their relationship in 2006 when Hamas gained power in the Palestinian elections and took control of the Gaza strip in 2007. Id. In the years following, the relationship between Hamas and Iran has ' been continuously recognized in studies prepared by the United States Government and other organizations. Levitt Decl. at 16-17; Clawson Decl. at 11 (citing academic scholarship, U.S. Department of Defense Report, Institute for Peace study, Human Rights Watch Report, and Congressional Research Service work that have traced the existing relationship between Iran and Hamas up until 2014).

         3. March 7, 2002 Attack on Atzmona

         On Thursday, March 7, 2002, a yeshiva[5] in Atzmona, located in the Gaza Strip was attacked. Transcript of Evidentiary Hearing ("Tr.") at 10, 79 [Dkt. No. 60]. Nethaniel Chaim Bluth ("Nethaniel, " "Plaintiff") was a student at the yeshiva on the night of the attack. Nethaniel was born in Jerusalem, Israel and lived in Israel for most of his life. Id. at 19-20; Pis.' Ex. 33 [Dkt. No. 59-33]. He grew up in a small religious settlement in Israel, where his mother resided until she passed away approximately one year ago and where his father continues to reside. Tr. at 18, 21. For the entirety of his life, Nethaniel has been a dual citizen of Israel and the United States, because his parents are American citizens. Id. at 20.

         Following high school graduation, Nethaniel chose to attend the yeshiva in Atzmona before joining the Israeli army to complete Israel's mandatory service requirement. Id. at 21-22. Two of Nethaniel's brothers had attended the same yeshiva before him. Id. at 24, 72. By the time of the attack, Nathaniel had been studying in Atzmona for half a year. Id. at 61-62. He had recently decided to extend his original year-long stay an additional six months because he enjoyed his studies and the community. Id. at 24-25.

         Nethaniel, like the other 120 students, slept, ate, and studied every day at the yeshiva. Id. at 25, 32. Despite being away from the family home, Nethaniel stayed in close contact with his parents and seven siblings. Id. at 18-19, 73. He went home frequently, as did his siblings, typically on a weekly basis. Id. at 33. The family home was approximately a two-hour drive from the yeshiva. Id. at 29. Six of the eight Bluth children, including Nethaniel, used the family home in Neve Tzuf as their permanent residence. Id. at 64, 85-86; Deposition of Isaac Menahem Bluth ("Isaac Depo.") at 6-7 [Dkt. No. 58-49].

         On the night of March 7, 2002, there were approximately thirty students in Nethaniel's classroom. Tr. at 36. Students generally studied late on Thursday nights because they either went home for Sabbath on Fridays or used the day as a personal "free day." Id. at 34-35. During a lecture at approximately 11:30pm, Nethaniel and the other students heard the sounds of gunfire and grenade explosions. Plaintiffs' Proposed Findings of Fact and Conclusions of Law in Support of their Motion for Default Judgment ("Statement of Facts") at 7 [Dkt. No. 59]; Tr. at 41. The rabbi in the classroom instructed a student to turn off the lights and everyone in the classroom remained silent and waited. Tr. at 37.

         Nethaniel moved towards the glass door and window to see what was causing the noise. Id. at 37-38. When Nethaniel looked out, he saw his friend Asher Marcus and a rabbi who was on duty as a guard that evening sitting in a Jeep talking. Id. Upon more explosions and shooting, students began to scream and Bluth saw Asher and the rabbi running towards one room, and then towards Nethaniel's classroom. Id. at 39. Nethaniel described Asher as terrified and white in the face. Id. Nethaniel held the classroom door open for Asher, and as he came running through the doorway, Asher was shot and fell on Nethaniel, who caught him. Id. at 39, 43. At the same time, Nethaniel saw the attacker come out from between two other buildings, approximately thirty feet from his classroom.[6] Id. at 40-41. The attacker then started shooting into Nethaniel's classroom as he walked towards the building. Id. at 40, 42.

         With Asher on top of him, Nethaniel laid on the floor with his hands on his head, unable to move. Id. at 43. Nethaniel warned his classmates that the attacker was approaching the classroom. Id. at 40. He saw that the attacker was wearing a black vest filled with ammunition and grenades. Id. at 41. A guard driving in a car tried to run over the attacker to stop him, but was unable to, because of the sand surrounding his car. Id. at 45. No one in the classroom was armed the night of the attack, id. at 41, and so each person simply waited and prayed, id. at 43.

         Following the shots into Nethaniel's classroom, the attacker threw two grenades into the classroom through a window. Id. at 45. The first grenade exploded approximately three meters from Bluth's face. Am. Compl. ¶ 64. Nethaniel felt blood going down his face and heard more screaming and praying. Tr. at 46. There was a second grenade and explosion. Id. Following the second explosion, the attacker moved elsewhere and people started getting up and taking care of the wounded. Id. at 46-47. Nethaniel's friend helped stop the bleeding on Nethaniel's head because Nethaniel could feel that something had happened to his own hands. Id. at 47.

         Israeli soldiers killed the attacker following a twenty-minute gun battle. Statement of Facts at 7. At about the time the attacker was killed, ambulances and soldiers arrived at the area and Nethaniel was taken outside. Id.; Tr. at 47. By the end, five people were killed and approximately twenty-three others were injured. Levitt Decl. at 20 (citing news reports and Israel Ministry of Foreign Affairs). Of the five deaths, two were Nethaniel's close friends, Asher and Eran Picard. Statement of Facts at 7. Nethaniel saw the bodies of his two dead friends, as well as other injured friends laid out on the grass when he was brought outside. Tr. at 47.

         The National Consortium for the Study of Terrorism and Responses to Terrorism ("START") at the University of Maryland identified the attacker as Mohammad Farahat.[7] Levitt Decl. at 20 (citing Incident Summary, 03/07/2002, Global Terrorism Database, National Consortium for the Study of Terrorism and Reponses to Terrorism, http://www.start.umd.edu/gtd/search/IncidentSummary.as px?gtdid=200203070002); Pis.' Ex. 20 [Dkt. No. 58-20]. START also confirmed in its Global Terrorism Database that a Hamas representative claimed responsibility for the Atzmona attack. Id. (citing Incident Summary, 03/07/2002). Major media outlets, including BBC, The Guardian, and the al Qassam website, also reported that Hamas claimed the attack as its own. Levitt Decl. at 19, 21; Pis.' Exs. 17-18, 22 [Dkt. No. 58-17, -18, -22]. It was reported that Farahat trained for two days prior to the operation. Levitt Decl. at 21 (citing a translation of Al Sharq Al Awsat, An Interview with the Mother of a Suicide Bomber, the Middle East Media Research Institute, Special Dispatch No. 391 (June 19, 2002), http://www.memri.Org/report/en/0/0/0/0/0/0/683.htm) .

         As the following suggests, Farahat had deep ties with Hamas. Levitt Decl. at 20. When Farahat was seven years old, a former head of the Hamas military wing took refuge from the authorities in Farahat's home for fourteen months and was ultimately killed there. Id. (citing An Interview with the Mother of a Suicide i Bomber). A video of Farahat's mother posted on the al Qassam website prior to the attack captured how proud she was to sacrifice her son Farahat to Allah. Pis.' Ex. 27 [Dkt. No. 58-27].

         Farahat kept in contact with his mother after he arrived in Atzmona and Hamas operatives notified her when Farahat penetrated the settlement security fence. Levitt Decl. at 21 (citing Holy Land 2006 Gaza Um Nadal). Following the attack, Farahat's mother emphasized the Atzmona attack and glorified her son. See, e.g., Pis.' Ex. 22 [Dkt. No. 58-23]. She praised Farahat publicly as the model martyr and even used the security fence taken from Atzmona as a chicken-wire fence next to her home. Levitt Decl. at 21 (citing Mother of Martyrs in Parliament for Hamas, Deutsche Presses-Agentur, (Jan. 31, 2006), http://www.arabnews.com/node/279724); see also Pis.' Ex. 14 [Dkt. No. 58-14]. Visible to visitors, the wall near the fence read: "Through this Mohammad got into the settlement." Levitt Decl. at 21 (citing Mother of Martyrs in Parliament for Hamas). In 2006, Farahat's mother won a seat in the Palestinian Legislative Council on the Hamas ticket. Pis.' Ex. 23 [Dkt. No. 58-23].

         4. Nethaniel Bluth's Injuries

         After the attack, Nethaniel was identified as one of the students who was most critically injured. Tr. at 89; Statement of Facts at 7. He was covered in blood, had burns over much of his body, and had injuries to his head, face, and chest. Statement of Facts at 8. Nethaniel testified that at that time he could not feel his hands. Tr. at 47. The doctor who bandaged Nethaniel's forehead and hands at the scene of the attack believed that there was a bullet entry wound in Nethaniel's sternum, right above his heart. Id. at 48; Statement of Facts at 7. It remains unclear whether Nethaniel was hit by a bullet or shrapnel.[8] An exit wound was not readily identified at that time, causing serious concern, because it may have been lodged in his body. Tr. at 44. Nethaniel was put on a stretcher and was one of two people transported by helicopter from Atzmona to Tel Hashomer Hospital. Id. at 49.

         Upon arriving at the hospital, Nethaniel was conscious, extremely anxious, and disoriented. Statement of Facts at 9. Nethaniel testified that he was still in shock and stressed from seeing his friends dead on the grass. Tr. at 47. As he was moved through the emergency room for tests, he briefly passed by several members of his family. Id. at 51; see Am. Compl. ¶¶ 66, 68-70, 73. Following the tests, Nethaniel went into multiple surgeries for his ears, the embedded shrapnel, and bullet wound. Tr. at 52. Nethaniel suffered forehead and hand injuries from the first grenade explosion. Id. at 45; Statement of Facts at 7. Pieces of the grenade were embedded in his chest area and hand. Tr. at 45.

         The right side of Nethaniel's face was severely'cut from the grenade explosion and his head wound was so deep that the bone was visible. Id. He also had open wounds on his arms, forehead, and chest. Id. at 92. Many of the wounds required stitches. Id. Nethaniel needed plastic surgery for his face and head due to the blast and shrapnel from the grenade. Deposition of Joseph Bluth at 14 [Dkt. No. 58-46]. In addition, the plastic surgeon had to reattach part of his scalp to his skull. Id. at 15.

         Nethaniel continued to be hospitalized for several days following the operations.[9] Tr. at 52. The surgeon at Tel Hashomer Hospital concluded that, while there was an indentation in Nethaniel's chest from an object, there was no damage to his vital organs.[10] Id. at 90. The surgeon believed that the fragment -whether it was a bullet or part of a grenade - hit Nethaniel's sternum and deflected out of his body. Id.

         Nethaniel's hearing was significantly impaired by the grenade explosion. Id. at 46. While one eardrum was dislodged (it eventually re-lodged), the other was completely blown out. Id. at 92. When he first took a hearing test following his surgeries, he could not hear anything, id. at 52-53, and broke down in tears when he realized that he could not hear. Id.; Statement of Facts at 9. He continues to have issues with his hearing and has complete hearing loss in one ear. Tr. at 57; Statement of Facts at 9.

         Prior to the attack, Nethaniel had no medical issues, major surgeries, history of depression, anxiety, or other mental health concerns. Tr. at 32-33; Statement of Facts at 8. As a result of the attack, he suffered from high levels of fear, anxiety, paranoia, and extreme emotional fluctuations. See Statement of Facts at 10-11. Nethaniel was traumatized from seeing his close friends lying bloody on the ground and cried when he later learned that they had died. Tr. at 47-48. Immediately following the attack, his speech was affected and he stuttered for a period of time. Id. at 91-92. Nethaniel was scared of noises and paranoid about people entering his room at the hospital. Statement of Facts at 10. He testified that he was afraid to be alone and needed someone near him at all times. Tr. at 53, 55-56.

         Following his discharge from the hospital, Nethaniel returned to the family's home in Neve Tzuf. Id. at 94. Nethaniel continued to go back to the hospital for outpatient treatment in the audio ward for his hearing. Id. He needed someone with him for everyday activities, such as walking, urinating, and showering. Statement of Facts at 10. His father testified that Nethaniel was hesitant and extra cautious during that period. Tr. at 94. Nethaniel testified that he was afraid of the dark and, the minute the day ended and the sun went down, he would close all the curtains and windows, and lock the doors. Id. at 53. Nethaniel suffered from headaches and terrible nightmares, which started at the hospital and continued frequently in the period immediately after the attack. Id. at 57-58; Statement of Facts at 9-10. Without pills or the comfort of his parents, Nethaniel struggled to fall sleep. Tr. at 53. The constant ringing and physical pain in Nethaniel's ears continued for weeks following the attack. Statement of Facts at 9.

         After returning home from the hospital, Nethaniel spent a few days at home and then went back to visit the yeshiva. Tr. at 55. He testified that it was important for him to return as soon as he could to understand what . had happened. Id. Moreover, it was rehabilitative. Id. at 96. When Nethaniel eventually returned to study at the yeshiva, he struggled with his fear of loud noises. Id. at 58. Once during a thunderstorm, the lights went out and the darkness and loud noises brought him back to the night of the attack, the moments when he waited for the attacker's bullet on the night of the attack, and he started crying. Id. While the students were moved to and slept in more protected rooms than before the attack, Nethaniel still needed someone with him at all times. Id. at 56. He even showered with the door open because he was afraid to be alone. Id. at 53.

         After finishing the rest of his time at the yeshiva, Nethaniel entered the army in March 2003. Id. at 61. Upon entering, Nethaniel's placement was affected by his injuries. Id. at 61-62. Nethaniel testified that most of his injuries were still present when he joined the army and therefore, with doctors' notes, the army had to find a job that he could do despite his injuries. Id. at 61. Nethaniel served in the army for five and a half years, id. at 56, and described his time with the army as helping him gain a sense of self-confidence in his ability to protect himself and friends. Id. Nethaniel relies on a firearm to feel safe and always carries one with him. See Statement of Facts at 10-11.

         Fourteen years later, Nethaniel's injuries from Atzmona continue to affect both his personal life and career. Tr. at 57; Am. Compl. ¶ 64. His hearing is permanently impaired and he is unable to hear his wife and children or his co-workers when they call him from another room. Tr. at 57. He continues to suffer from tinnitus. PI. Compl. ¶ 10. Nethaniel has substantial permanent scarring on his face, head, chest, and arms. Statement of Facts at 9; Tr. at 45-46. The shrapnel left in Nethaniel's hands and face continue to cause him significant pain and affect his bones, especially in cold weather or with a change in weather. Tr. at 46, 59.

         Nethaniel continues to struggle with flashbacks to the night of the attack when he sees his scars and when he sees the parents of the students who were killed. Id. at 57. He continues to feel guilt and remorse for the death of his two close friends who were by his side throughout the attack. Statement of Facts at 11. He has nightmares from time to time and frequently wakes up at night to lock all the windows. Id. at 10-11; Tr. at 58. Nethaniel continues to struggle with his fear of the dark and his paranoia of loud noises or explosion-like sounds. Tr. at 53-54, 58.

         Nethaniel states that he no longer has the same "ability to enjoy life in a carefree way" as he did prior to the attack and is constantly alert. Statement of Facts ¶ 11. Even today, the Bluth family is careful about engaging in certain conversations with Nethaniel and how they act around him. Id. His father testified that Nethaniel's comedic personality and sense of self-confidence changed after the attack. Statement of Facts at 10; Tr. at 71.

         5. Family& ...


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