United States District Court, District of Columbia
ORA COHEN, et al. Plaintiffs,
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
CHRISTOPHER R. COOPER, United States District Judge
Cohen, her then-husband Shalom, and their five children were
travelling home in Jerusalem when a Hamas operative boarded
their bus and detonated a bomb strapped to his chest, killing
23 people and injuring many more, including every member of
the Cohen family. The Cohens, along with several members of
Ora's family in the United States, bring this action
against the Islamic Republic of Iran (“Iran”) and
two of its instrumentalities under the
state-sponsor-of-terrorism exception to the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. §
1605A(1)(a). They allege that the Iranian defendants are
liable for their injuries as a result of Iran's
longstanding provision of material support for Hamas's
terrorist activities. Because Iran has chosen not to appear
in this action, Plaintiffs have moved for a default judgment.
Finding that Plaintiffs have established both jurisdiction
and liability under the FSIA, the Court will grant the
default judgment and appoint a special master to prepare a
report and recommendation on the imposition of damages.
facts summarized below are derived from the Complaint;
Plaintiffs' Motion for Default Judgment, along with its
supporting exhibits; and live testimony taken during an
evidentiary hearing held by the Court on February 22, 2016.
Terrorist Attack in Jerusalem on August 19, 2003
August 19, 2003, Ora Cohen and her then-husband Shalom
journeyed to the Western Wall, a holy site in Old Jerusalem,
for an afternoon of prayer. Evid. Tr. 17:4-9. Their five
children-daughter Meirav Cohen (7 years old at the time); son
Daniel Cohen (6 years old); daughter Orly Cohen (4 years
old); daughter Shira Cohen (1 year old); and newborn son,
Elchanan Cohen (1 month old)-accompanied them on this family
outing. Pls.' Mem. Supp. Mot. Default J.
(“Pls.' MDJ”) 1. That evening, the Cohen
family boarded the Number 2 Egged Bus to return home.
Id. Because the bus was crowded, the family was
forced to split up in order to find seating, with Shalom and
Shira standing in the middle of the bus apart from the rest
of the family, who were seated near the front. Compl. ¶
66. A few stops short of their final destination, Ora
observed a gentleman force his way onto the bus and remembers
the “whole world [going] black.” Evid. Tr.
operative Raed Misk had boarded the bus in the Shmuel Ha-Navi
neighborhood with a bomb strapped to his body. Pls.' MDJ
1. He detonated it almost immediately upon boarding, killing
23 people and injuring 130 more, including every Cohen family
member aboard. Id. Ora had been nursing her infant
son at the time of the bombing and recalls how the force of
the explosion tore him from her hands. Evid. Tr. 19:23-20:8.
Amidst the chaos that ensued, the family members were
separated and taken to different hospitals for treatment. The
three older Cohen children were taken to the same hospital as
their parents, but Ora did not learn that her younger
children had survived until several hours after the attack,
and the family was not reunited for at least a week.
Pls.' MDJ 1. Each of the Cohens was physically injured in
the original blast and, to varying degrees, continues to
experience the effects of the bombing today. Their alleged
injuries include loss of vision, loss of hearing, damage from
shrapnel, anxiety attacks, depression, fear of public
transportation, and ongoing emotional trauma. See
Pls.' MDJ 6-16.
hours of the attack, Hamas claimed responsibility for the
suicide bombing by releasing a series of photographs of Misk
on its website, some of him posing with automatic weapons;
posting a video of him reading his living will; and adding
him to its list of Hamas “martyrs.” See
Pls.' MDJ, Ex. 4 (“Levitt Decl.”) at 19-20;
see also Pls.' MDJ, Exs. 11-15 (translations of
Hamas' website featuring photos and statements from
Misk). A number of Hamas operatives, who helped plan and
execute the bus bombing, were eventually captured and
convicted for their role in the conspiracy. Id.;
see also Pls.' MDJ, Exs. 16-20 (sentences and
verdicts for four of Misk's co-conspirators).
after the bombing, Ronit Mohabber, Ora's sister who was
living in California, learned that Ora and her family had
been victims of the attack. See Pls.' MDJ, Ex.
27 (“Ronit Dep.”) at 10:9-11:15. She broke the
news to their younger sister, Orly Mohaber, later that
day.See id. at 13:12-14:24. The
sisters decided to keep the information from their mother and
father, Shokat Sadian and Neria Mohaber, because they worried
about how their parents would be affected by the news: Shokat
was wheelchair-bound and recovering from a stroke, and Neria
had recently undergone a triple bypass surgery. See
id. at 12:4-12. Over the next few months, however, Ms.
Sadian noticed her daughters acting suspiciously and
eventually learned that Ora and her grandchildren had been
victims of the bus bombing. Pls.' MDJ, Ex. 30
(“Shokat Aff.”) ¶¶ 4-6. She immediately
told her husband, who was visibly shaken. Id. at
¶ 7. He would ask how Ora and her children were doing
every day and wanted to see for himself that they had
survived, but he did not have the opportunity to see them in
person before he passed away in 2009. Id. at ¶
Cohen was born in Iran, but immigrated with her parents and
siblings to the United States. Evid. Tr. 13:22-14:9. Ora,
along with her parents and sisters, acquired U.S. citizenship
through naturalization. See id. at 14:16-15:1. When
visiting Israel, she met and married Shalom Cohen, a foreign
national, and the couple decided to settle there. See
id. at 14:10-13. All of their children, except Meirav,
who was born in Los Angeles, were born in Israel but acquired
U.S. citizenship upon birth through their mother. Pls.'
MDJ, Ex. 29 (“Ora Aff.”) ¶¶ 2, 4-11.
Defendants' Support of Hamas
facts contained in this section largely derive from the
declarations of two experts with extensive experience
studying, writing, and testifying about Iran: Dr. Patrick
Clawson, the Director for Research at The Washington
Institute for Near East Policy, and Dr. Matthew Levitt, a
Senior Fellow and Director at The Washington Institute for
Near East Policy. Pls.' MDJ, Ex. 2 (“Clawson
Aff.”); Ex. 4 (“Levitt
Decl.”). Hamas, short for Harakat al-Muqawamah
al-Islamiyya or “the Islamic Resistance Movement,
” operates out of the West Bank and Gaza Strip. Compl.
¶ 27. According to Dr. Levitt, Hamas has as its mission
the “destr[uction of] Israel and creat[ion of] an
Islamic Palestinian state in its place, ” and will use
any means necessary to achieve its goal. Levitt Decl. at 17.
As part of its resistance efforts, Hamas carries out attacks
“intended to terrorize, to instill fear in the
civilians who compromise the local population so that they
will . . . leave.” Id. at 18. In 1995, the
United States government labeled Hamas a “Specially
Designated Terrorist, ” and in 1997, it was designated
a “Foreign Terrorist Organization.” Compl. ¶
1984, Iran has been designated by the United States
Department of State as a state sponsor of terrorism.
Pls.' MDJ, Ex. 2 (“Clawson Aff.”) at 7-8.
Under 22 U.S.C. § 2656f (a), the Secretary of State
provides Congress with an annual report on terrorism with
respect to any country on the state-sponsor-of-terrorism
list. Id. at 8. These reports, named “Patterns
of Global Terrorism” or “Country Reports on
Terrorism, ” repeatedly comment on the link between
Hamas and Iran, and, specifically, Iran's role in
sponsoring Hamas's agenda. Id. Hamas and
Iran's relationship dates back to 1988 when the Iranian
government officially accepted a Hamas delegation. Compl.
¶ 31. Although the level of support Iran and its
instrumentalities have provided to Hamas has waxed and waned
throughout the years, at various times, it has trained,
funded, and supplied Hamas operatives with weapons.
See Levitt Decl. at 11; see also Clawson
Aff. at 10-11. The Iranian Revolutionary Guards Corps
(“IRGC”), an independent military body under the
command of the Supreme Leader, has run “terrorist
training camps” out of Lebanon and Iran, where Hamas
members train “in the use of the short-range Fajr-5
missiles and . . . to carry out underwater suicide
operations, ” Levitt Decl. at 11 (internal quotation
marks and citation omitted). While the precise figure varies,
intelligence agencies across the globe agree that Iran has
also provided significant sums to Hamas over the years, with
estimates ranging from $3 million to $26 million dollars in a
given year. See id. at 6. Canada intelligence, for
example, reported that there was evidence “attest[ing]
to the transfer of $35 million to Hamas from the [Iranian
Ministry of Information and Security (“MOIS”)],
money reportedly meant to finance terrorist activities
against Israeli targets.” Id. The MOIS,
Iran's foreign and domestic intelligence service, has
been considered a “diplomatic pouch for conveyance of
weapons and finances for terrorist groups.” Clawson
Aff. at 7. Furthermore, in 2000, “Tehran instituted an
incentive system in which millions of dollars in cash bonuses
are conferred to the organization for successful
attacks.” Levitt Decl. at 7. Hamas relies on this
external funding given that it costs “$2.8 million per
month . . . to run Hamas activities in the Palestinian
territories.” Id. at 13. Iran has also
repeatedly been caught smuggling weapons, including rocket
launchers, mortar bombs, and antipersonnel mines, to
Palestinian forces. See id. at 10. “In
providing support to Hamas and other terrorist groups, [the
IRGC and MOIS's] activities are tightly and carefully
controlled by the Iranian government through the Supreme
Leader[.]” Clawson Aff. at 7.
years immediately preceding the Egged Bus Number 2 bombing,
Iran's support of Hamas was especially strong.
See Clawson Aff. at 8-9 (“Iran remained the
most active state sponsor of terrorism in 2002 . . . [and]
2003.”). According to a 2003 “Patterns of Global
Terrorism” report, “Iran maintained a
high-profile role in encouraging anti-Israeli activity, both
rhetorically and operationally. . . . Iran provided . . .
Hamas . . . with funding, safe haven, training, and
weapons.” Pls.' MDJ, Ex. 7 at 88. Finally,
“Iran hosted a conference in August 2003 on the
Palestinian intifada, at which an Iranian official suggested
that the continued success of the Palestinian resistance
depended on suicide operations.” Levitt Decl. at 15.
Cohen and Mohaber families filed suit on September 9, 2012,
alleging that Iran, the MOIS, the IRGC, the Syrian Arab
Republic, and the Syrian Military Intelligence were jointly
and severally liable for the attack by providing material
support and resources to Hamas. See
Compl. Ronit Mohabber sues in her individual
capacity and as a Representative for the Estate of Neria
Mohaber, who passed away prior to the commencement of this
action. See Compl. ¶¶ 18-21. After
repeated attempts to serve the Iranian defendants, Plaintiffs
filed satisfactory proof of service with this Court in June
2014. Unable to effectuate service of process on the Syrian
defendants due to the ongoing civil war there, Plaintiffs
severed them from the current action. The Clerk entered
default against Iran, IRGC, and MOIS on March 24, 2015, and
Plaintiffs now move for default judgment. The Court held an
evidentiary hearing on the motion on February 22, 2016, and
thereafter requested supplemental evidentiary submissions
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.” Braun v.
Islamic Republic of Iran, 2017 WL 79937, at *4 (D.D.C.
Jan. 9, 2017) (internal citation 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 plaintiffs retain ‘the burden of proving
personal jurisdiction, they can satisfy that burden with a
prima facie showing.'” Mwani v. bin
Laden, 417 F.3d 1, 6-7 (2005) (quoting Edmond v.
U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.
Cir. 1991)) (internal quotation marks omitted). 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).
“The Court, therefore, may not simply accept a
complaint's unsupported allegations as true . . . but may
rely upon uncontroverted factual allegations that are
supported by affidavits.” Worley v. Islamic
Republic of Iran, 75 F.Supp.3d 311, 319 (D.D.C. 2014)
(internal quotation marks and citations omitted).