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Braun v. Islamic Republic of Iran

United States District Court, District of Columbia

January 9, 2017

SHMUEL ELIMELECH BRAUN, et al., Plaintiffs,
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.


          Beryl A. Howell Chief Judge

         Chaya Zissel Braun, an infant, was with her two parents in Jerusalem on October 22, 2014, when she was killed in a vehicular attack (the “Attack”). See Consolidated Compl. (“Compl.”) ¶¶ 1, 3, ECF No. 14. Her family members and estate initiated this action against the Islamic Republic of Iran (“Iran”), the Iranian Ministry of Information and Security (“MOIS”), and the Syrian Arab Republic (“Syria”) under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq., asserting claims for damages caused by the killing, allegedly perpetrated by Hamas with material support from the defendants. Id. ¶¶ 1-10. The defendants never entered appearances in or defended against this action, and the plaintiffs now seek default judgment. See Pls.' Mot. J. Default & Schedule Evidentiary Hr'g (“Pls.' Mot.”), ECF No. 31. For the reasons discussed below, the motion for default judgment is granted.

         I. BACKGROUND

         The factual background surrounding the terrorist attack at issue is summarized below, followed by an overview of the procedural history of this case. The factual background is based upon allegations in the Complaint, as well as the detailed declarations submitted by the plaintiffs in support of their motion for default.[1]

         A. The Defendants' Support of Hamas

         “Hamas is a radical terrorist organization . . . established by Islamic militants in 1987” and constitutes “the Palestinian branch of the extremist Muslim Brotherhood organization.” Compl. ¶ 11. The organization “views Israel and the United States as the greatest enemies of Islam” and “opposes a peaceful resolution of the Middle East conflict, ” having as its “openly-declared goal . . . the creation of an Islamic state in the territory of Israel, the West Bank and the Gaza Strip, and the destruction of the State of Israel and the murder or expulsion of its Jewish residents.” Id. ¶¶ 12-13. “Hamas proudly and openly acknowledges that it uses terrorism to achieve its political goals . . . [and] has carried out thousands of terrorist attacks in Israel, the West Bank and the Gaza Strip.” Id. ¶¶ 13-14. The United States government has categorized Hamas as a “Specially Designated Terrorist” since 1995, a “Foreign Terrorist Organization” since 1997, and a “Specially Designated Global Terrorist” since 2001. Id. ¶ 17.

         Since 1984, Iran “has been continuously designated by the United States Department of State as a state sponsor of terrorism.” Id. ¶ 18. In the 1980s, Iran and Hamas reached an agreement, remaining in force today, under which “Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Iran undertook to provide Hamas with financial support to carry out such extrajudicial killings and terrorist attacks.” Id. ¶ 20. In funding Hamas, Iran and MOIS intended to assist Hamas in “terrorizing the Jewish civilian population in Israel and weakening Israel's economy, social fabric, and military strength and preparedness” through “acts of extrajudicial killing and international terrorism” including the Attack. Id. ¶ 19.

         Iran's support for Hamas has been well-documented in the U.S. Department of State's annual reports on terrorism, which noted in 2014 that “Iran has historically provided weapons, training, and funding to Hamas and other Palestinian terrorist groups, ” and that while “Hamas's ties to Tehran have been strained due to the Syrian civil war, ” Iranian and Hamas leaders have nevertheless affirmed a continuing relationship. Clawson Expert Decl. ¶ 31 (quoting the U.S. Department of State's 2014 annual report on terrorism). In 2003, the U.S. Department of State indicated that “Iranian state sponsorship of Hamas is critical not only in terms of providing the material and funds with which to carry out terrorist operations, but also the rhetorical support necessary to keep up the pace of such operations.” Levitt Expert Decl. ¶ 39.

         Since 1979, Syria, too, “has been continuously designated by the United States Department of State as a state sponsor of terrorism.” Id. ¶ 27. Like Iran, Syria reached an agreement with Hamas in the 1980s under which “Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Syria undertook to provide Hamas with material support and resources to carry out such extrajudicial killings and terrorist attacks.” Id. ¶ 29. In the years preceding the Attack, Syria provided, inter alia, financial support, arms, “training for the planning and execution of terrorist attacks, ” and “safe haven and refuge” to Hamas and its operatives. Id. ¶¶ 30-34.

         Notably, Syria served as a “planning hub” for Hamas leadership for many years, Berti Expert Decl. ¶ 37, and, while exercising “de facto control of Lebanon . . . granted Hamas the ability to be present in a limited manner in both Lebanon and Syria, ” id. ¶ 39. While under Syria's protection, “Hamas was able to organize political events from Damascus, ” id. ¶ 40, as well as to “access both [Syria's] military strategists and . . . [another known terrorist organization's] resources in Lebanon, from which Hamas was able to learn terrorist strategies, ” Deeb Expert Decl. ¶ 23. While Syria no longer supports Hamas because of that organization's support for rebel forces in the Syrian civil war, Hamas continues to use “the tactical know-how which Hamas gained while under Syrian protection.” Id. ¶¶ 22-24.

         B. The Attack in Jerusalem, Israel, on October 22, 2014

         On the afternoon of October 22, 2014, Abdel Rahman Shaludi, an “agent and operative of Hamas” and the nephew of the former head of its military wing, drove a car to a light rail station in Jerusalem and intentionally “drove onto the light rail tracks and rammed his vehicle into the crowd of pedestrians.” Id. ¶¶ 37-39. Among the crowd were Chana and Shmuel Braun, along with their infant daughter, Chaya Zissel Braun, who was in a stroller. Id. ¶ 39. The car struck the stroller, “causing [Chaya Zissel] to be thrown some ten meters into the air, ” before she “landed on her head on the pavement while her mother . . . screamed in horror.” Id. “[C]onnected to a ventilator and in critical condition, ” Chaya Zissel was transported by rescue personnel to a nearby hospital, where “she was pronounced dead some two hours after her arrival.” Id. ¶ 41. In addition to killing Chaya Zissel, the Attack killed one other person and “knocked over and badly injured” Shmuel. Id. ¶¶ 1, 39. Hamas “publicly praised the [A]ttack and referred to the attacker as a ‘martyr' and ‘hero.'” Id. ¶ 46.

         C. The Decedent and her Family

         Chaya Zissel Braun was a three-month old United States citizen living in Israel at the time of her death. Id. ¶ 3. Her young parents had “tried to conceive a child unsuccessfully for over a year following [their] wedding” before conceiving Chaya Zissel, Chana Braun Decl. ¶ 4, and the infant was “enjoying good health, industrious and in possession of all her faculties, ” Compl. ¶ 64, when the Attack occurred.

         Chaya's mother, Chana Braun, a United States citizen, was walking with Chaya Zissel at the time of the Attack. After Chaya Zissel had been thrown from her stroller, Chana Braun “ran to pick her up . . ., screaming for help, ” and “could see that the baby's head was deformed and smashed, and that she was bleeding.” Chana Braun Decl. ¶ 12. While crying out for help, Chana “heard gunshots and thought the terrorist was shooting at [them], ” though she later realized the gunshots were directed at the terrorist by the police. Id. ¶ 13. Immediately after the Attack, Chana observed Chaya Zissel begin vomiting, which gave her hope that the infant would survive. Id. ¶ 14. Chana was with Chaya Zissel in the ambulance and at the hospital while medical professionals attempted to save the infant's life. Id. ¶¶ 16-27. Since the Attack, Chana “frequently feel[s] depressed” and in “overwhelming pain, ” for which concerns she began to see a therapist. Id. ¶ 37. Some days she “can function adequately, ” but at other times she feels “paralyzed.” Id. ¶ 38. While she and Shmuel have been “very fortunate to welcome [a] second baby, ” Chaya Zissel's death has “somewhat affected [Chana's] ability to care for” the new child, and “[a]nything that triggers memories of Chaya Zissel causes [Chana] deep pain and feelings of loss.” Id. ¶¶ 41-43.

         Chaya Zissel's father, Shmuel Braun, a United States citizen, was also walking with Chaya Zissel at the time of the Attack. When Chaya Zissel was thrown out of her stroller, Shmuel “was thrown to the ground after being pushed into the moving train.” Shmuel Braun Decl. ¶ 7. While the events immediately following the Attack are “all a blur, ” Shmuel knows he “was limping and in terrible pain” and was transported to the hospital with Chaya Zissel and Chana, where he was treated while Chaya Zissel was also being treated. Id. ¶¶ 8-9. He “sustained . . . several physical injuries, including broken ribs and a torn ligament in [his] knee.” Id. ¶ 31. Since the Attack, Shmuel has experienced severe “emotional and psychological distress, ” including grief for which he began therapy and “anxiety and fear that another disaster will strike, ” as well as continuing physical pain in his knee. Id. ¶¶ 16, 28, 31.

         Shmuel's parents, Esther and Murray Braun, also United States citizens, were at home in Los Angeles, California, when the Attack occurred. See Esther Braun Decl. ¶¶ 1, 11. Chana and Chana's father, Shimshon Halperin, informed them of the Attack, which they also learned about from news outlets. See Id. ¶¶ 7-12; Murray Braun Decl. ¶¶ 7-14. They experienced, and continue to experience, “constant pain” for themselves, Chana and Shmuel, and the loss of Chaya Zissel, as well as fear and sleeplessness. Murray Braun Decl. ¶¶ 16-26; see Esther Braun Decl. ¶¶ 14-18.

         Chana's parents, Sara and Shimshon Halperin, also United States citizens, also were not physically present at the place of the Attack; Sara had just arrived home to New York after visiting Chana, Shmuel, and Chaya Zissel in Israel, and Shimshon was still in Israel. See Sara Halperin Decl. ¶¶ 4-10. Sara learned of the Attack from her sister-in-law and immediately flew back to Israel, during which flight she “cried . . . and could not sleep.” Id. ¶¶ 9-12. “Seeing [her] child in so much pain made [her] feel completely helpless, ” and she herself felt “excruciating” pain. Id. ¶ 15. Shimshon received a call from Chana about the Attack immediately after it occurred and arrived at the hospital before Chaya Zissel's death. Shimshon Halperin Decl. ¶¶ 7-9. Since the Attack, Sara “constantly feel[s] helpless because [she is] not able to relieve Chana and Shmuel of their suffering” and has found it “often difficult to connect with them.” Sara Halperin Decl. ¶ 20. She also has “constant nightmares and feel[s] depressed.” Id. ¶ 21. Shimshon has found it “difficult to communicate with Chana” and “feel[s] a sense of heaviness all the time.” Shimshon Halperin Decl. ¶¶ 12-14.

         C. Procedural History

         Plaintiffs Chana and Shmuel Braun, individually and as personal representatives of the estate of Chaya Zissel Braun, filed this lawsuit against the defendants on July 15, 2015. See Compl. of July 15, 2015, ECF No. 1. Plaintiffs Shimshon Halperin, Sara Halperin, Murray Braun, and Esther Braun filed a separate lawsuit against the same defendants on September 20, 2015, see Compl., Halperin v. Islamic Republic of Iran, No. 15-cv-1530 (D.D.C. Oct. 20, 2015), ECF No. 1, which was consolidated with this lawsuit on October 20, 2015, see Min. Order, dated Oct. 20, 2015, Halperin, No. 15-cv-1530. The plaintiffs filed affidavits attesting that the defendants were properly served, albeit after numerous attempts, in accordance with the FSIA, which provides the procedure for completing service upon a foreign state or political subdivision of a foreign state. Aff. Supp. Default, ECF No. 26; Aff. Supp. Default, ECF No. 29. The Clerk entered default against Syria on February 8, 2016, see Entry of Default, ECF No. 27, and against Iran and MOIS on March 23, 2016, see Entry of Default, ECF No. 30. The plaintiffs subsequently filed the instant motion for default judgment. See Pls.' Mot. The plaintiffs' briefing, with over four hundred pages in exhibits, was comprehensive, and, thus, an evidentiary hearing is unnecessary.[2]


         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)).

         Notwithstanding its appropriateness in some circumstances, “entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted). Thus, 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. 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, ” but “[i]n the absence of an evidentiary hearing, although the plaintiffs retain ‘the burden of proving personal jurisdiction, they can satisfy that burden with a prima facie showing.'” Mwani, 417 F.3d at 6-7 (quoting Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). In doing so, “they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain.” Id. at 7.

         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) (“Courts may rely on uncontroverted factual allegations that are supported by affidavits.” (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, 646 F.3d 1 (D.C. Cir. 2011); accord Fed. R. Civ. P. 56(e)(2) (authorizing court to “consider the fact undisputed for purposes of the motion” when adverse party “fails to properly address another party's assertion of fact”).


         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

         This Court may exercise “original jurisdiction” over a foreign state “without regard to amount in controversy” in “nonjury civil action[s]” 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). Here, while the plaintiffs have demanded “trial by jury of all issues legally triable to a jury, ” Compl. at 21, no jury trial is available for FSIA claims, see Rishikof v. Mortada, 70 F.Supp.3d 8, 16 (D.D.C. 2014) (“[In] crafting . . . exception[s] to sovereign immunity, Congress was careful to maintain the international standard that a foreign state shall not be subject to a jury trial.”), and thus this action is a “nonjury civil action.” Moreover, the plaintiffs bring civil claims against the defendants as foreign sovereigns for in personam relief.[3] Thus, the only remaining question is whether the defendants are entitled to immunity under the FSIA or another 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 § 1605A of the FSIA, 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. § 1605A(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.

         With respect to the first element, both Iran and Syria have been designated as state sponsors of terrorism by the U.S. Department of State for more than two decades. See Compl. ¶¶ 8, 10; see also Anderson v. Islamic Republic of Iran, 753 F.Supp.2d 68, 76 (D.D.C. 2010) (“Iran . . . has been designated a state sponsor of terrorism . . . since January 19, 1984.” (internal quotation marks ...

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