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Cohen v. Islamic Republic of Iran

United States District Court, District of Columbia

March 1, 2017

ORA COHEN, et al. Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, United States District Judge

         Ora 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.

         I. Background

         The 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.

         A. Terrorist Attack in Jerusalem on August 19, 2003

         On 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. 17:21-19:18.

         Hamas 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.

         Within 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).

         Soon 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.[1]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 ¶ 9.

         B. Plaintiffs

         Ora 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.

         C. Defendants' Support of Hamas

         The 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.”).[2] 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. ¶ 29.

         Since 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.[3] 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.

         In the 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.

         D. Procedural History

         The 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.[4] 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 from Plaintiffs.

         II. Legal Standard

         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.” 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.

         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). “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).

         III. ...


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