United States District Court, District of Columbia
A. Howell Chief Judge
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.
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.
The Defendants' Support of 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.
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.
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.
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.
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.
The Attack in Jerusalem, Israel, on October 22, 2014
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.
The Decedent and her Family
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.
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.
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.
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.
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.
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
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)).
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.
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. §
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”).
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.
Subject Matter Jurisdiction Under the FSIA
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. Thus, the only remaining question is
whether the defendants are entitled to immunity under the
FSIA or another international agreement.
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.
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 ...