United States District Court, District of Columbia
C. Lamberth United States District Judge.
action arises out of the July and August 2006 rocket attacks
launched by Hezbollah into northern Israel. Plaintiffs,
victims of these attacks, include: Brian, Karene, Mayan, Noa,
Netiya and Ariel Erdstein; Chaim, Rivka, Mushka, Reuven,
Menachem, Chana and Efraim Kaplan; Theodore and Moreen
Greenberg; Jared and Danielle Sauter; Myra Mandel; Michael
Fuchs; Dvora Kaszemacher and Chaya Alkareif; Chayim and
Nechama Kumer; Laurie and Margalit Rappeport; and Avishai
Reuvane and Elisheva Aron. Together, they bring this suit
against The Islamic Republic of Iran ("Iran") and
The Democratic People's Republic of Korea ("North
Korea") under the state-sponsored terrorism exception to
the Foreign Sovereign Immunities Act, 28 U.S.C. §§
1330, 1602 et seq. ("FSIA"). Codified at
28 U.S.C. § 1605A, the exception provides "a
federal right of action against foreign states" that
sponsor terrorist acts. Haim v. Islamic Republic of
Iran, 784 F.Supp.2d 1, 4 (D.D.C. 2011).
on the events of July and August, 2006, Plaintiffs filed a
complaint on April 8, 2009 against Hezbollah and North Korea
under the Antiterrorism Act, 18 U.S.C. § 2333(a) and the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A(c)
(Case No. 1:09-cv-00646) (ECF No.1). On March 23, 2010,
Plaintiffs filed a second complaint, this time against the
Central Bank of the Islamic Republic of Iran; Bank Saderat,
Iran ("BSI"); Bank Saderat, PLC
("BSPLC"), the Central Bank of Iran
("CBI"), 40 "John Does" as well as Iran
under the same statutory schemes, alleging these entities and
individuals provided "extensive material support and
resources to Hezbollah, that caused, enabled and
facilitated" the Hezbollah rocket attacks. (Case No.
1:10-cv-00483) (ECF No. 3)
Court dismissed the claims against BSI and BSPLC on November
5, 2010, treating the banks' unopposed motion to dismiss
as conceded (10-cv-483) (ECF No. 16). On August 20, 2013, the
Court dismissed the statutory claims against Hezbollah
(09-cv-646) (ECF No. 50) as well as the claims against the 40
John Does (10-cv-483) (ECF 42). On August 20, 2015,
plaintiffs voluntarily dismissed their common-law claims
against Hezbollah (09-cv-646) (ECF No. 63). Remaining are
plaintiffs' FSIA claims against North Korea (09-cv-646)
and Iran (10-cv-483).
order and accompanying memorandum opinion dated July 23,
2014, (09-CV-646) (ECF No. 57), the Court concluded that it
had subject matter jurisdiction over this action and that it
could properly exercise personal jurisdiction over the
defendants. The Court reasoned, "[b]ased on the
allegations in Plaintiffs' Amended Complaint and the
evidence presented by plaintiffs, " that "there can
be no doubt that North Korea and Iran provided material
support to Hezbollah, " and that both nations were
subject to suit under 28 U.S.C. § 1605A(c). Id.
at 4. In accordance with its liability determination and
pursuant to its authority under Federal Rule of Civil
Procedure 53, the Court appointed Alan Balaran as Special
Master for the purpose of taking evidence and filing reports
and recommendations regarding the amount of individual
damages to be awarded each plaintiff. Order Appointing
Special Master, at 2 (09-cv-646) (ECF 58).
STANDING UNDER THE FSIA
Special Master determined, at the outset, that two of the
plaintiffs, Myra Mandel and Michael Fuchs lacked standing to
bring any claims under the FSIA and that plaintiff Danielle
Sauter lacked standing to claim an award for pain and
suffering. The Court's review of these determinations
Mandel, a Canadian citizen, owned an art gallery that was
shuttered as a result of the rocket attacks. She asserts both
a claim for pain and suffering as well as economic damages.
The Special Master recommended that Ms. Mandel's claims
be dismissed, finding that her Canadian citizenship placed
her outside the ambit of 28 U.S.C. § 1605A(c), as she is
not a United States citizen, a member of the military, a
United States employee, or a legal representative of the
aforementioned as required by 28 U.S.C. § 1605
A(2)(A)(ii)(I-III). The Special Master also found that Ms.
Mandel's claims did not derive from "injuries
suffered by victims who meet the statute's
requirements." Worley v. Islamic Republic of
Iran, 75 F.Supp.3d 311, 327 (D.D.C. 2014) (citing
Leibovitch v. Islamic Republic of Iran, 697 F.3d
561, 572 (7th Cir. 2012)). And in accordance with the
principle that foreign nationals "must  base
their claims on injuries suffered by victims who meet the
statute's requirements", Worley, 75
F.Supp.3d at 326 (emphasis added), the Special Master
recommended that Ms. Mandel's claims be dismissed for
lack of standing.
Court concurs with the Special Master's finding that Myra
Mandel lacks standing under the FSIA and
ADOPTS his recommendation that Ms.
Mandel's claims be dismissed.
Fuchs, an Israeli citizen, seeks compensation for injuries
sustained as a result of an exploding shell. The Special
Master recommended that Mr. Fuchs' claims be dismissed on
evidence that Mr. Fuchs neither is a United States citizen, a
member of the military, a United States employee, nor a legal
representative of the aforementioned. And, as Mr. Fuchs'
claims are not derivative of those brought by any person
meeting the statutory criteria of the FSIA, the Special
Master dismissed Mr. Fuchs' action for lack of standing.
Court concurs with the Special Master's finding that
Michael Fuchs lacks standing under 28 U.S.C. § 1605A(c)
and ADOPTS the recommendation that Mr.
Fuchs' claims be dismissed.
Sauter seeks compensatory damages for pain and suffering and
solatium. The Special Master denied Ms. Sauter's claim
for pain and suffering in light of her Israeli citizenship
and the fact that, unlike her claim for solatium, her pain
and suffering did not arise from the claims of a U.S.
national. See Owens v. Republic of Sudan, 826
F.Supp.2d 128, 149 (D.D.C. 2011).
Court ADOPTS the Special Master's
recommendation that Danielle Sauter's status as an
Israeli citizen precludes her from pursuing an award for pain
and suffering under the FSIA.
available under the FSIA include "economic damages,
solatium, pain and suffering, and punitive damages." 28
U.S.C. § 1605A(c). To demonstrate entitlement to damages
under the FSIA, a claimant "must prove that the
consequences of the defendants' conduct were
'reasonably certain (i.e., more likely than not) to
occur, and must prove the amount of the damages by a
reasonable estimate consistent with this [Circuit's]
application of the American rule on damages.'"
Salazar v. Islamic Republic of Iran, 370 F.Supp.2d
105, 115-16 (D.D.C. 2005) (quoting Hill v. Republic of
Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003) (internal
quotations omitted). See also O'Brien v. Islamic
Republic of Iran, 853 F.Supp.2d 44, 46 (D.D.C. 2012).
Pain and Suffering
review of the Special Master's recommendations, the Court
is guided by prior decisions awarding damages to victims of
terrorism, mindful of the difficulties associated with
"assess[ing] the amount of compensatory damages for the
pain and suffering of surviving victims of terrorist attacks,
especially where severe mental anguish is involved."
Valencia v. Islamic Republic of Iran, 774 F.Supp.2d
1, 14 (D.D.C. 2010).
consider a "myriad of factors" when assessing
damages for surviving victims of terrorist hostilities. These
factors include: "the severity of the pain immediately
following the injury, the length of hospitalization, and the
extent of the impairment that will remain with the victim for
the rest of his or her life." Peterson v. Islamic
Republic of Iran, 515 F.Supp.2d 25, 52 n. 26 (D.D.C.
2007) (citing Blais, 459 F.Supp.2d at 59).
Calculating damages begins with the baseline assumption that
"persons suffering injuries in terrorist attacks are
entitled to $5 million in damages." Davis v. Islamic
Republic of Iran, 882 F.Supp.2d 7, 12 (D.D.C. 2012)
(citing Peterson, 515 F.Supp.2d at 54). This
lodestar is "not set in stone, " Murphy v.
Islamic Republic of Iran, 740 F.Supp.2d 51, 74 (D.D.C.
2010), and can deviate upward in the presence of "severe
instances of physical and psychological pain, such as where
victims suffered relatively more numerous and severe
injuries, were rendered quadriplegic, [including] partially
lost vision and hearing, or were mistaken for dead, "
Valore v. Islamic Republic of Iran, 700 F.Supp.2d
52, 84 (D.D.C. 2010), or downward in the face of "minor
shrapnel injuries or minor injury from small-arms fire."
Id. These deviations defer to the principle that
"strict application of precedent could lead to
conflicting conclusions about an appropriate award."
Brewer v. Islamic Republic of Iran, 664 F.Supp.2d
43, 57 (D.D.C. 2009) (quoting Blais v. Islamic Republic
of Iran, 459 F.Supp.2d 40, 59 (D.D.C. 2006)).
victims who "suffer[ed] severe emotional injury without
physical injury, this Court has typically awarded the victim
$1.5 million." Harrison v. Republic of Sudan,
882 F.Supp.2d 23, 49 (D.D.C. 2012) (citing Valore,
700 F.Supp.2d at 85). Notwithstanding the
"presumption" that emotional trauma is a natural
consequence of terrorist activity, Slethem v. Islamic
Republic of Iran, 201 F.Supp.2d 78, 89 (D.D.C. 2002),
claimants "must prove damages in the same manner and to
the same extent as any other default winner, "
Hill, 328 F.3d at 683-84 (internal quotation marks
and citation omitted), which, in turn, requires that they
"prove the fact of injury with reasonable
certainty." Samaritan Inns, Inc. v. District of
Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997).
keeping with the guidelines set out in Harrison, 582
F.Supp.2d at 49, the Special Master recommended that Rivka
Kaplan, Brian Erdstein, Nechama Kumer, Laurie Rappeport,
Margalit Rappeport, Theodore Greenberg, Maureen Greenberg,
Jared Sauter, Dvora Kaszemacher, Chaya Kaszemacher Alkareif,
Avishai Reuvane, and Elisheva Aron each receive $1.5 million.
The Court ADOPTS all of the Special
Master's recommendations regarding these claimans. Those
instances where the Special Master either denied an award or
departed from the established framework are discussed below.
Denial of Compensatory Damages for Pain and
Mushka, Reuven, Menachem Chana and Efraim Kaplan
Special Master recommended that no damages for pain and
suffering be awarded to Chaim and Rivka Kaplan's children
- Mushka, Reuven, Menachem, Chana and Efraim. The Special
Master reasoned that the children supplied no testimony
describing the trauma they experienced as a result of the
events of July and August 2006 nor did they agree to undergo
a psychological evaluation from which an informed opinion
could be rendered. Accordingly, the Special Master concluded
that he was unable to be "reasonably certain" that
Mushka, Reuven, Menachem, Chana and Efraim Kaplan were
"severely injured" as a result of the Hezbollah
contest the Special Master's recommendation that Mushka,
Reuven, Menachem, Chana and Menachem Kaplan receive no
compensatory damages for pain and suffering. The Court ...