United States District Court, District of Columbia
B.WALTON, United States District Judge
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,
Court concludes for the reasons below that it must grant 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.
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.
STANDARD OF REVIEW
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
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)).
FINDINGS OF FACT
on the undisputed evidence submitted by the plaintiff, the
Court finds that the plaintiff has established the following
The Attack and the Plaintiffs Injuries
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.
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.
Iran's Material Support of Hamas's Terrorist
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").
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,
(last visited Mar. 21, 2017).
Hamas's Responsibility for the Attack
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.
"[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.
CONCLUSIONS OF LAW
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).
Waiver of Sovereign Immunity
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).
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,
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).
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))).
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.
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 § 1605(a)(7) was repealed [in 2008] by the 2008
[National Defense Appropriations Act], and replaced with ...