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Gill v. Islamic Republic of Iran

United States District Court, District of Columbia

March 31, 2017

MATI GILL, Plaintiff,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant.

          MEMORANDUM OPINION

          REGGIE B.WALTON, United States District Judge

         Mati Gill, the plaintiff in this civil case, brings this personal injury action against the Islamic Republic of Iran ("Iran") pursuant to the Foreign Sovereign Immunities Act (the "Act"), 28 U.S.C. § 1605A (2012). Complaint ("Compl.") ¶ 1. The plaintiff alleges that Iran knowingly provides material support to Hamas, a Foreign Terrorist Organization, which executed a shooting attack in Israel during which the plaintiff was shot and injured. Id. Currently before the Court is the plaintiffs Motion for Judgment by Default ("Pl.'s Mot."). After carefully considering all of the relevant evidence submitted by the plaintiff, [1] the Court concludes for the reasons below that it must grant the plaintiffs motion.

         I. BACKGROUND

         The plaintiff filed this action on December 31, 2015, Compl. at 1, asserting a personal injury claim against Iran under the Act for providing material support to Hamas, which the plaintiff alleges was responsible for a shooting attack in Israel on April 4, 2008, during which the plaintiff was seriously injured, see Id. ¶¶ 1, 8-10, 38-40. The Clerk of this Court sent by certified mail two copies of the summons, Complaint, and notice of the suit, along with a Farsi translation of each, to the United States Department of State. See Certificate of Mailing (Jan. 29, 2016), ECF No. 6. Thereafter, the Secretary of State sent the documents to the Foreign Interests Section of the Embassy of Switzerland in Tehran, which subsequently delivered them to the Iranian Ministry of Foreign Affairs on April 20, 2015. See Letter from Daniel Klimow, Attorney Adviser in the Department of State's Office of Legal Affairs, to the Clerk of the Court (June 7, 2016), ECF No. 10. After Iran failed to respond to the action, the plaintiff filed an affidavit in support of a default being entered against Iran, see Affidavit in Support of Default (June 27, 2016), ECF No. 11, and the Clerk of the Court entered a default against Iran on June 28, 2016, see Default (June 28, 2016), ECF No. 12. The plaintiff then filed his motion for default judgment on July 19, 2016. See Pl.'s Mot. at 1.

         On March 13, 2017, while the plaintiffs motion was pending, the Court issued an Order directing the plaintiff to show cause "why the Court should not dismiss this action for lack of subject-matter jurisdiction, " in light of the fact that the plaintiff appeared to assert that the April 4, 2008 shooting attack constituted an extrajudicial killing, but did not "allege[] that any deaths occurred as a result of the shooting." See Order at 2 (Mar. 13, 2017), ECF No. 30. The plaintiff timely responded to the Court's Order. See generally Pl.'s Mem.

         II. STANDARD OF REVIEW

         The Federal Rules of Civil Procedure provide for the entry of a default judgment "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend" as provided by the rules. Fed.R.Civ.P. 55(a); see also Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) ("The default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party." (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)). Rule 55 sets forth a two-step process for a party seeking default judgment: entry of a default, followed by entry of a default judgment. Fed.R.Civ.P. 55; see also 10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2682 (4th ed. 2017) (stating that "[p]rior to obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a)"). When a defendant has failed to plead or otherwise defend against an action, the plaintiff may request that the clerk of the court enter a default against that defendant. See Fed.R.Civ.P. 55(a). Once the clerk enters the default pursuant to Rule 55(a), Rule 55(b) authorizes either the clerk or the Court to enter a default judgment against the defendant. See Fed.R.Civ.P. 55(b).

         Under the Act, to prevail on a motion for a default judgment against a foreign sovereign, the plaintiff must show that the Court has original jurisdiction over the claim and personal jurisdiction over the defendant, see 28 U.S.C. § 1330(a)-(b), and must "establish[] his claim or right to relief by evidence satisfactory to the [C]ourt, " Id. § 1608(e); see also Braun v. Islamic Republic of Iran. __F.Supp.3d__, __, 2017 WL 79937, at *5 (D.D.C. Jan. 9, 2017) (discussing default judgments under the Act). This evidence may be presented through sworn affidavits or declarations. See Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 20 (D.D.C. 2009). "Upon evaluation, the Court may accept any uncontroverted evidence presented by plaintiffs as true." Id. (citing Heiser v. Islamic Republic of Iran. 466 F.Supp.2d 229, 255 (D.D.C. 2006)).

         III. FINDINGS OF FACT

         Based on the undisputed evidence submitted by the plaintiff, the Court finds that the plaintiff has established the following facts.

         A. The Attack and the Plaintiffs Injuries

         On April 4, 2008, the plaintiff, who was serving as the aide to Avi Dichter, Israel's Minister of Public Security, "accompanied] the Minister on a tour he was leading for a Canadian delegation." Gill Decl. ¶¶ 14-16. The group stopped at "Nizmit Hill, an elevated observation area, inside Israel, a few hundred meters from the Gaza Border." Id. ¶ 17. While at the observation point, the delegation came under gunfire from the direction of the Gaza Strip. See id. ¶¶ 16-22. The plaintiff "heard gunshots, and almost immediately felt something hit [his] buttocks and go through [his] leg." Id. ¶ 19. He "looked down and saw that the front of [his] khaki pants [were] fill[ed] with blood." Id. ¶ 20. The plaintiff then "crawled behind a car to take cover, " Id. ¶ 22, until an ambulance arrived and took him to a hospital, Id. ¶23.

         __The plaintiff was taken into surgery "to remove as much shrapnel as possible and to attempt to repair the injuries." Id. ¶ 27; see also Bar-Chama Decl. ¶¶ 16-17. The plaintiff remained in the hospital for five days, "was in extreme discomfort, " and described the experience as "traumatic." Gill Decl. ¶ 28.

         B. Iran's Material Support of Hamas's Terrorist Activities

         According to Patrick L. Clawson, Ph.D, the Director of Research at the Washington Institute for Near East Policy and a prior senior research professor at the National Defense University, see Clawson Decl. ¶ 2, "[i]t has been well-documented for over thirty years that Iran has provided funding and training for terrorism operations that targeted United States and Israeli citizens[, and s]uch activities have included support for Hamas, " id ¶¶ 23-24. "While Iran's relationship with Hamas has waxed and waned over the years, Iran never cut off all its support for Hamas . . . ." Id. ¶ 27. "[T]here is ample evidence that Iran has supplied substantial material support to Hamas, including in the period immediately before, during, and immediately after the April 4, 2008 attack in which [the plaintiff] was injured." Id. ¶ 48. This support has included training and financial resources. See id ¶¶ 41, 42, 44; see also Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 100-01 (D.D.C. 2012) (finding that "Iran provided substantial support for Hamas'[s] terrorist activities for the purpose of undertaking attacks such as the February 1996 bus bombing in which [the decedent] was killed, funneled money and material support to Hamas through [the Iranian Ministry of Information and Security], and also demonstrates that both defendants played necessary planning, logistical and support roles leading up to the bus bombing").

         According to Ronni Shaked, Ph.D, who served as a Commander in the Israeli Security Agency for thirteen years and is the current Head of the Middle East Unit at the Harry Truman Institute for the Advancement of Peace at Hebrew University, see Shaked Deck ¶¶ 4, 12, 20, Hamas is a "deadly and . . . successful" terrorist organization, Id. ¶ 21. Shaked states that "Hamas considers terrorism, or 'armed resistance'-as it terms its acts of violence-a central way of attracting attention to itself for the Palestinian public and the Islamic world . . . ." Id. ¶ 22. Shaked notes that Hamas has "worked with determination to publicize its principal role in the perpetration of violent attacks against Israelis." Id. The United States designated Hamas a Foreign Terrorist Organization in 1997, and it continues to retain that designation. See Foreign Terrorist Organizations, U.S. Dep't of State, https://www.state.gOv/j/ct/rls/other/des/123085.htm (last visited Mar. 21, 2017).

         C. Hamas's Responsibility for the Attack

         "[F]or many years, Hamas worked with determination to publicize its principal role in the perpetration of violent attacks . . . [and] its public recognition of its operatives when they died or were arrested." Shaked Deck ¶ 22. "[W]hen Hamas makes an official claim of responsibility for an attack, the claim has usually been accurate." Id. ¶ 24. According to Gil Erez, a former military intelligence officer for the Israeli Defense Forces with a specialty in aerial photo analysis, see Erez Decl. ¶¶ 4-5, on the day of the attack, "Hamas claimed responsibility for the [a]ttack in a news flash on Al Aqsa TV, Hamas's Gaza-based television station, " Id. ¶ 33. Also that same day, the spokesperson for the Qassam Brigades, Hamas's military arm, claimed that the Qassam Brigades and another group called Defenders of Al Aqsa were jointly responsible for the attack. See Id. ¶¶ 15, 33; see also Shaked Decl. ¶¶ 59-65. Qassam Brigade's website includes the attack on its list of successful attacks, and specifies that the attack targeted Minister Dichter's convoy. See Erez Decl. ¶¶ 34 & n.17; Shaked Decl. ¶¶ 60, 68.

         Further, "[i]n recent years, Hamas has begun to film some of its attacks on Israeli targets for internal propaganda purposes." Shaked Decl. ¶ 30. The Qassam Brigades recorded and publicized a video of the attack that is the subject of this case on April 4, 2008. See Erez Decl. ¶ 34. On that day, "a video was broadcast on Al Aqsa TV showing the [a]ttack from the perspective of the perpetrators, including how the shooter prepared and settled in, aimed toward the people on the hill and shot several rounds." Id. ¶ 34; see also id., Ex. B (CD-ROM); Shaked Decl. ¶¶ 74-80.

         IV. CONCLUSIONS OF LAW

         A. Original Jurisdiction

         The Act provides that "district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state, " so long as the claim for relief is "in personam with respect to which the foreign state is not entitled to immunity." 28 U.S.C. § 1330(a). Here, although the plaintiff requested a jury trial, see Compl. at 9, claims under the Act are not subject to jury trials, see Braun, __F.Supp.3d at__, 2017 WL 79937, at *5 ("[W]hile the plaintiffs have demanded 'trial by jury of all issues legally triable to a jury' no jury trial is available for . . . claims [under the Act], and thus this action is a 'nonjury civil action.'" (internal citations omitted)). Additionally, the plaintiff brings this action against Iran as a foreign sovereign for in personam relief. See Compl. ¶¶ 1, 13. Therefore, this action is a "nonjury civil action, " and the claim for relief is "in personam." See Braun, __F.Supp.3d at __, 2017 WL 79937, at *5. Thus, the Court must initially determine whether the foreign state is "entitled to immunity." 28 U.S.C. § 1330(a).

         B. Waiver of Sovereign Immunity

         The Act provides exceptions to the grant of sovereign immunity generally accorded to foreign states. See generally 28 U.S.C. § 1605A (entitled "Terrorism exception to the jurisdictional immunity of a foreign state"). The terrorism exception provides that a district court has jurisdiction to hear a claim against a foreign state if, in addition to other scenarios not applicable in this case, (1) that "state was designated as a state sponsor of terrorism" at the time of the act that is the subject of the action and retains that designation at the time the claim is filed, Id. § 1605A(a)(2)(A)(i)(I); (2) the claimant was a United States national at the time of the act, Id. § 1605A(a)(2)(A)(ii)(I); and (3) the foreign state provided material support or resources for "an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking, " which caused the personal injury or death that is the subject of the action, Id. § 1605A(a)(1).[2]

         The first two elements of the terrorism exception are clearly satisfied in this case. First, Iran was designated as a state sponsor of terrorism at the time of the attack on April 4, 2008, see 22 C.F.R. § 126.1(d) (2008), and when the plaintiff filed his Complaint in 2015, see id § 126.1(d) (2015); see also State Sponsors of Terrorism, U.S. Dep't of State, https://www.state.gOv/j/ct/list/cl4151.htm (last visited Mar. 21, 2017) (stating that Iran was designated as a State Sponsor of Terrorism on January 19, 1984, and currently retains that designation). Second, the plaintiff was a United States citizen at the time of the attack. See Gill Decl. ¶ 4 (stating that he is a dual citizen of the United States and Israel).

         The last element of the terrorism exception applicable to this case requires the plaintiff to prove that (1) the foreign state provided material support or resources (2) for "an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking, " which (3) caused the personal injury or death that is the subject of the action. 28 U.S.C. § 1605A(a)(1). The Court is satisfied that the plaintiff has demonstrated that Iran provides material support for Hamas's terrorist activities, such as the April 4, 2008 attack that is the subject of this case, see supra Part III.B, and that Hamas is responsible for that attack, which caused the plaintiffs injuries, see supra Part III. A, C. "This evidence satisfies the [Act's] requirement of a causal connection between the act or omission of [Iran] and the damages which the plaintiff[] ha[s] suffered." Bodoff 907 F.Supp.2d at 101; see also Cohen v. Islamic Republic of Iran, __F.Supp.3d__, __, No. 12-cv-1496 (CRC), 2017 WL 818208, at *5 (D.D.C. Mar. 1, 2017) ("[W]here a foreign state routinely funnels money to a terrorist organization, a plaintiff need not establish that the material support or resources . . . contributed directly to the act from which the claim arises to satisfy his obligation under the [Act]." (quoting Valencia v. Islamic Republic of Iran, 774 F.Supp.2d 1, 12 (D.D.C. 2010))).

         The question that remains regards the second prerequisite; namely, whether the attack constitutes "an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking." 28 U.S.C. § 1605A(a)(1). Upon consideration of the text and history of the terrorism exception, the Court agrees with the plaintiff that the attack that injured him qualifies as an attempted extrajudicial killing, which is included in the terrorism exception's definition of extrajudicial killing. See Pl.'s Mem. at 1.

         The Court relies in part on another member of this Court's comprehensive historical analysis of the terrorism exception as set forth in In re Islamic Republic of Iran TerrorismLitigation, 659 F.Supp.2d 31 (D.D.C. 2009). In that case, (then Chief) Judge Lamberth noted that "[t]he state sponsor of terrorism exception of the [Act] was first enacted in 1996, . . . [but] the original exception at ยง 1605(a)(7) was repealed [in 2008] by the 2008 [National Defense Appropriations Act], and replaced with ...


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