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Shoham v. Islamic Republic of Iran

United States District Court, District of Columbia

June 1, 2017

BATSHEVA SHOHAM, Individually and as Administrator to the Estate of Yehuda Shoham Plaintiff,
v.
ISLAMIC REPUBLIC OF IRAN, Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE.

         Plaintiff brings claims pursuant to the Foreign Sovereign Immunities Act ("FSIA") against the Islamic Republic of Iran and Bank Saderat. She seeks damages for injuries suffered as a result of a rock-throwing attack committed against her family as they were driving outside an Israeli village in the West Bank on June 5, 2001. Defendants did not appear, and the Clerk filed entries of default as to Iran on September 16, 2013 [ECF No. 47] and as to Bank Saderat on April 9, 2015 [ECF No. 65]. This Court held a two-day evidentiary hearing on plaintiffs motion for default judgment against Iran and Bank Saderat [ECF Nos. 78 & 79]. For the reasons discussed below, the Court concludes that plaintiffs motion must be DENIED.

         I. PROCEDURAL HISTORY

         Plaintiff filed her complaint on April 2, 2012, pleading causes of action against the Islamic Republic of Iran and Bank Saderat as an agency and instrumentality of Iran. Compl., ECF No. 3.[1] Their causes of action and the jurisdiction of this Court are premised on section 1605 A of the FSIA.

         On February 13, 2013, this Court ordered service on Iran via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). ECF No. 25. On March 18, 2013, plaintiff received confirmation through the Court that, with the assistance of the Foreign Interest Section of the Embassy of Switzerland in Tehran, copies of the Summons and Complaint in both English and Farsi were delivered under cover of diplomatic note number 1036-IE on April 21, 2013 to the Iranian Ministry of Foreign Affairs. ECF No. 40. Iran's answer was due on June 20, 2013, which is sixty days after service. 28 U.S.C. § 1608(d). Iran made no response and has yet to appear in this case. The Clerk of the Court entered default against Iran on September 16, 2013. ECF No. 47.

         On May 19, 2014, this Court authorized substitute service on Bank Saderat by dispatching copies of the Summons and Complaint in both English and Farsi to defendant via courier service. ECF No. 53. The Clerk sent the required documents by Federal Express, International Service to an address authorized by the Court. The documents were delivered on August 8, 2014, signed for by a receptionist at Bank Saderat's office in Paris, France. ECF No. 62. Bank Saderat's answer was due on October 7, 2014. This Court previously found service on Bank Saderat sufficient and ordered entry of default against Bank Saderat. ECF No. 64. The Clerk of Court entered default against Bank Saderat on April 9, 2015. ECF No. 65.

         Following the voluntary dismissal of other defendants, this Court held two days of evidentiary hearings on April 7-8, 2016. At the conclusion of those hearings, plaintiff orally moved for the Court to enter a judgment of liability against Iran and award damages.[2] The Court ordered plaintiff to submit proposed findings of fact and conclusions of law to assist in reviewing the evidence submitted. Plaintiff initially failed to provide the proposed findings and conclusions, and this Court ordered the case dismissed subject to reinstatement upon motion accompanied by the proposed findings and conclusions. ECF No. 84.

         On October 4, 2016, plaintiff moved to reopen the case and submitted their proposed findings of fact and conclusions of law. ECF No. 85. This Court granted the motion, ECF No. 88, and now considers whether default judgment should be entered against Iran and Bank Saderat.

         II. FINDINGS OF FACT

         Before determining whether defendants should have a default judgment entered against them, the Court must consider evidence and make findings of fact with respect to plaintiffs allegations. Section 1608(e) of the FSIA requires that no default judgment shall be entered against a foreign state or its political subdivision except upon "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." Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010). Courts may, however, rely on "uncontroverted factual allegations" that are supported by "documentary and affidavit evidence." Id. (quoting Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 59 (D.D.C. 2010)). Also, in addition to plaintiffs own evidence, courts may take judicial notice of prior related proceedings and the evidentiary records in cases before the same court. Id.

         Here, plaintiff presents a case of first impression regarding Iranian liability for a rock-throwing attack outside an Israeli village in the West Bank during the Second Intifada. Specifically, plaintiff asserts that Iran materially supported Hezbollah and Fatah, who conducted the attack. While this Court is aware of no other cases in which Iran has been found liable for an attack by Fatah, plaintiff relies in part upon evidence presented in previous litigation. Therefore, the Court will assess the basis for accepting this evidence before setting out the findings of fact.

         A. Judicial Notice of Prior, Related FSIA Cases

         A court may "take judicial notice of, and give effect to, its own records in another but interrelated proceeding." Roth v. Islamic Republic of Iran, 78 F.Supp.2d 379, 387, (D.D.C. 2014); Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938). This is in keeping with Federal Rule of Evidence 201(b), which allows a court to "judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). In light of this authority and the numerous FSIA cases in recent years giving rise to nearly identical factual and legal issues, this Court and others in this District have frequently taken judicial notice of earlier, related cases arising under the state sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v. Islamic Republic of Iran, 856 F.Supp.2d 109, 115 (D.D.C. 2012) (citing cases).

         The Court may not simply adopt previous factual findings without scrutiny however. This is because factual findings "represent merely a court's probabilistic determination as to what happened, rather than a first-hand account of the actual events." Id. at 116. As such, courts have concluded that findings of fact are generally considered hearsay, not subject to an enumerated exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F.Supp.2d at 172. This does not mean, however, that courts in later, related FSIA proceedings are given the "onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack." Id. Instead, courts adjudicating related FSIA cases may "rely upon the evidence presented in earlier litigation-without necessitating the formality of having that evidence reproduced-to reach their own, independent findings of fact in the cases before them." Id. The records of this Court in related proceedings are not subject to reasonable dispute. Roth, 78 F.Supp.3d. at 387. Thus, the type and substance of evidence previously presented to this Court in prior proceedings may be judicially noticed in the process of reaching findings of fact in this case.

         Plaintiff alleges that Iran and Bank Saderat have materially supported Hezbollah and Fatah, which led to the June 5, 2001 attack. The Court shall take judicial notice of the evidentiary record in previous cases litigated before this Court, specifically Peterson v. Islamic Republic of Iran, 264 F.Supp. 46 (D.D.C. 2003) (Peterson I), Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25 (D.D.C. 2007) (Peterson II), and Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52 (D.D.C. 2010), in which this Court received overwhelming evidence demonstrating the material and technical support from Iran to Hezbollah in coordinating and conducting terrorist attacks. The Court adopts the findings in those cases that the formation and emergence of Hezbollah as a major terrorist organization is due to the government of Iran, and that Iran is liable for its state sponsorship of terrorism.

         B. The Attack

         On the evening of June 5, 2001, Binyamin Shoham was driving with his wife, Batsheva Shoham, and his infant son, Yehuda Shoham, along the main road from Jerusalem to Nablus in the West Bank. Testimony of Binyamin Shoham 142:25-143:7, ECF No. 77. The Shohams lived in Shilo, a town located between Jerusalem and Nablus in the West Bank. Binyamin Testimony at 133:18, 140:10-15. They were traveling home after a visit with Binyamin's parents, who lived in about an hour away in Ra'anana, a city north of Tel Aviv. Batsheva was seated in the back seat behind Binyamin, and Yehuda was in the middle seat in a rear-facing car seat. Id. at 144:15-21. As the car travelled outside the village of Shilo, Binyamin noticed something flying in the air toward the car. Id. at 144:23-145:8. A rock or boulder the size of a small watermelon crashed through the front windshield, passing through the two seats and striking Yehuda in the head. Id. at 145:15-22. Binyamin stopped the car and discovered that Yehuda was not breathing. Id. at 144:23-145:12. Batsheva performed CPR while Binyamin called for an ambulance. Id. at 147:20-148:7. Yehuda began breathing again but was bleeding from injuries on his head. Id. After the ambulance arrived, Yehuda was taken to the hospital. Id. at 148:24-149:2. Yehuda was in the hospital for six days before he passed away due to his injuries. Id. 152:11-13, 154:14-23.

         Days later, an Israeli investigator named A'Atef Aweeda[3] interrogated a suspect named Wahid or Muayad Kafina.[4] PL's Exhibit 1, Aweeda Deposition 11:4-23, 15:9-15. Kafina confessed that he and others-Mahmud Ibrahim Khatib, Muhamad Bik, and Sakar Saleh (or Zalach or Shahin)[5]-were throwing rocks at Israeli vehicles on the night of June 5, 2001 near the town of As-Sawiya, which is just north of Shilo. Id. at 16:18-17:3. While Kafina's original statement only listed Khatib and Bik, Kafina amended his statement to include that Sakar had been present and that Sakar had fired an improvised pistol at cars as they drove by. PL's Exhibit 7, June 25, 2001 Recorded Statement to Police by Muayad Kafina. Sakar Saleh himself also admitted to throwing rocks at cars with Khatib, Bik, and Kafina on the night of June 5, 2001. PL's Exhibit 4, Police Report, June 22, 2001 Recorded Statement to Police by Sakar Saleh. Kafina stated that they each threw at least two stones and that two cars were hit, but Kafina did not know who was in the car or whether they had been injured. June 17 Kafina Statement. He learned on the news the next day that a child had been injured in the area where they had been stoning cars. Id. Kafina later added details that Sakar "took an improvised pistol with him and fired from that pistol at three Israeli vehicles that passed by, " but he did not know if any of the vehicles had been hit. June 25 Kafina Statement. There is no evidence that the Shoham's vehicle had been shot at or hit by bullets.

         Muayid Kafina admitted to being a member of Tanzim Fatah, recruited by a man named Jamal Abdullah Hatid (or Khatib) a year and a half earlier. Id. at 18:19-19:5; PL's Exhibit 3, June 17, 2001 Recorded Statement to Police by Muayad Kafina. When asked why he decided to throw stones at Israeli vehicles, Kafina responded "because of the security situation prevailing in the area." Id. at 18:1-3; June 17 Kafina Statement. Additionally, Kafina and Sakar Saleh both stated that they previously had rocks thrown at them while traveling to Ramallah, and that afterwards they were meeting in a mosque and decided to throw stones at Israeli vehicles passing near their village. June 17 Kafina Statement; June 22 Sakar Statement. Kafina stated that he "had no other activity" while he was a member of Fatah Tanzim. June 17 Kafina Statement. However, Kafina later admitted to being with Sakar Saleh on five or six separate occasions when Sakar fired bullets at Israeli vehicles as they passed by. June 25 Kafina Statement. It is unclear whether Sakar Saleh was a member of any organization, and there appears to be no confession by any of the others as to their membership, if any, to Fatah Tanzim or any other organization.

         According to Aweeda, there were several rock attacks involving Fatah Tanzim during the Second Intifada. Aweeda Aff. 32-33. Many of these incidents occurred in As-Sawiya, where Kafina admitted to throwing stones. Id. Aweeda testified that the modus operandi is to stand on the side of the road and throw rocks at Israeli cars. Id. Kafina and the others were able to identify Israeli vehicles by the color of the license plates: Israeli license plates were yellow while non-Israeli (Palestinian) plates were white. Id. at 19:20-20:2; June 17 Kafina Statement.

         C. Tanzim - Fatah - AI-Aqsa Martyrs Brigade

         Fatah, also known as the Palestinian National Liberation Movement, was established in 1959 by Yasser Arafat.[6] Testimony of Dr. Ido Zelkovitz 38:16-25.[7] Fatah called for an armed struggle against Israel. Id. at 43:25-44:1. In 1965, Fatah began attacking Israeli targets. Id. at 39:6-13. In 1967, following the Six Days War, Fatah coordinated with the PLO. Id. at 44:12-25. In 1969, Arafat took over as Chairman of the PLO, and Fatah has been the "backbone" of the PLO since. Id.

         Fatah is affiliated with various militant groups, including the Tanzim and the al-Aqsa Martyrs Brigade (AAMB). Id. at 26:9-17. Tanzim is described by the State Department as "small and loosely organized cells of militants drawn from the street-level membership of Fatah." Patterns of Global Terrorism 2001 at 54. Tanzim was made up of cells of Fatah-affiliated operatives organized to carry out attacks for the Fatah organization. Id; PL's Exhibit 32, IDF Military Intelligence Report, May 3, 2002. Some Tanzim militants are also active in the sub-group AAMB, which has claimed responsibility for shootings and bombings in the West Bank against settlers and Israeli soldiers. Id. AAMB is designated as a foreign terrorist organization (FTO) by the United States Secretary of State. However, while all AAMB members are Tanzim, not all Tanzim are AAMB members. Similarly, all Tanzim or AAMB members are Fatah, but not all Fatah members are Tanzim or AAMB. Tanzim and AAMB are militia and non-institutionalized factions of Fatah. PL's Exhibit 28, Zelkovitz Aff 13. According to IDF intelligence, however, while Arafat had attempted to distance Fatah from AAMB, the Fatah movement and the AAMB "are one and the same." Ex. 32, IDF Report 2.

         Palestinian resistance in Israel surged in September 2000. This is commonly referred to as the Second Intifada.[8] Fatah military operations in the West Bank and Gaza Strip have been largely attributed to AAMB. Id. During the relevant period in this case, a man named Marwan Barghouti acted as the commander of Tanzim and AAMB in the West Bank. Id. Barghouti tunneled money to field squads of AAMB for the purpose of purchasing weapons and support AAMB members' livelihood. Zelkovitz Aff. 12, 21. In 2004, Barghouti was convicted and sentenced by an Israeli court to five life sentences for causing the deaths of five Israelis in terrorist attacks attributed to Tanzim and AAMB. Id. He sponsored many attacks, directly launched others, and gave money with direct orders to Fatah Tanzim activists. Zelkovitz Testimony 64:19-25.

         In short, Fatah Tanzim and AAMB actively promoted, funded, and participated in terrorist attacks against Israelis in the West Bank during the Second Intifada. According to testimony by Inspector Aweeda and Dr. Zelkovitz, this included rock-throwing attacks at Israeli cars in the West Bank near where the Shohams were attacked and Yehuda Shoham was killed.

         D. Iran/Hezbollah Connections to Fatah Tanzim and AAMB

         Iran is considered by the United States to be one of the most dangerous state sponsors of terrorism in the world, and has been designated by the United States Secretary of State as a state sponsor of terrorism since January 19, 1984. Further, the State Department has broadly concluded that Iran is one of the most active state sponsors of terrorism in the world, providing planning and support to a multitude of militant terrorist groups. Patters of Global Terrorism at 64. Specifically, following the outbreak of the Second Intifada, Iranian support for Palestinian groups using violence against Israelis "intensified." Id.

         While Iranian support of Fatah has ebbed and flowed since the 1970's, the outbreak of the Second Intifada brought increased Iranian support. Zelkovitz Aff. 16; Zelkovitz Testimony 49:3- 50:14; PL's Exhibit 33.[9] Iran specifically called for cooperation with Fatah Tanzim. In an October 20, 2000 statement on Iranian television, Iran's supreme leader Ali Khamenei announced:

We regard Palestinians as an organ of our body, and the support of the Palestinian nation is pride for the Iranian people . . . The Palestinian people must continue the blessed Jihad and its standing against the enemies of Islam . . . The Hamas, Islamic Jihad and Fatah forces must continue the struggle in a united way . . . But, indeed, the only solution [to the crisis in the region] is the elimination of the root of this crisis, which is the Zionist regime imposed on the region.

PL's Exhibit 33 (emphasis added).

         The State Department ultimately concluded that Iran provided "Palestinian rejectionist groups" with "varying amounts of funding, safehaven, training, and weapons, " prior to and during 2001. Patterns of Global Terrorism at 65. It has also concluded that Iran "encouraged Hizballah and the rejectionist Palestinian groups to coordinate their planning and to escalate their activities." Id. These previous findings, coupled with Dr. Zelkovitz's testimony, supports the conclusion that Iran also supported Fatah and AAMB by providing money, weapons, guidance, and recruitment assistance. Zelkovtiz Aff. 20.

         Dr. Zelkovitz testified that Hezbollah provided money and support to Fatah Tanzim at the direction of the Iranian government. Id. at 16-20; Zelkovitz Testimony 70:16-24. During the Second Intifada, Iran provided Fatah with millions of dollars' worth of money and weapons. Zelkovitz Testimony 62:1-10. For example, in January 2001 Israel intercepted a ship carrying arms directly from Iran to the PA, as well as two other arms shipments in 2001 and 2002. Id. at 60-61. The ship contained anti-tank launchers, anti-aircraft missiles, grenades, and other weapons. Id. Interrogation of the crew indicated that Iran was directly involved in supplying those arms to the PA. Zelkovitz Aff. 19-20; Zelkovitz Testimony 60. Fuad Shubaki, Arafat's financial advisor, was convicted by an IDF court of purchasing and transferring weapons from Hezbollah to the PA. Id.

         Dr. Zelkovitz also provided an example of an AAMB cell "operated mutually by Fatah and Hezbollah under the command of Ghalib Awalli, a senior member of Hezbollah who served as a contact between the two organizations (Fatah and Hezbollah)." Zelkovitz Aff. 20. Further, some Fatah militants have claimed responsibility for attacks carried out in the name of "al-Aqsa Martyr Brigades Hezbollah Palestine, " an apparent amalgamation of the names of overarching organizations. Zelkovitz Aff. 18. Coupled with the findings of Israeli intelligence, the evidence supports the conclusion that Iran and Hezbollah provided organizational support to Fatah Tanzim and AAMB.

         Dr. Zelkovitz also testified that Fatah provides payments to terrorists through official Fatah sources like Munir Mikdah, a general within the Fatah organization who developed channels of money to Fatah/AAMB militants in Jenin and Nablus. Zelkovitz Testimony 35:2-14. Mikdah had no finances of his own, and the funds used to sustain attacks in the West Bank came directly from Iran. Exhibit 33, ¶; Zelkovitz Testimony 59:13-25. In fact, Mikdah himself stated in interviews and other public statements that he received money from Iran or Hezbollah before channeling it to Fatah/AAMB militants. Id. at 35:17-36:10. In one example, a Fatah Tanzim member serving as treasurer for AAMB provided information to Israeli police that he had received $30, 000 from Mikdah and transferred these funds to ten Fatah Tanzim/AAMB operatives. Another Fatah Tanzim/AAMB member named Mahmud Aweiss admitted at his trial that he was a member of AAMB and has received $50, 000 from Mikdah. Zelkovitz Aff. 22-23. Both of these militants were from the Nablus and Jenin area, the same region as Kafina's village: As-Sawiya. Id. In fact, Nablus and Jenin were among the main areas that received funds from Hezbollah and Iran. Id. Such evidence supports the conclusion that Iran and Hezbollah provided financial support to Fatah Tanzim and AAMB.

         Iran also maintained a "Martyrs Foundation" intended to compensate the families of militants who were killed during operations against Israel. Zelkovitz Testimony 66:8-67:24. Zelkovitz Aff. 27. This compensation served essentially as a bounty on Israelis, encouraging militants to create relationships with Hezbollah and Iran and to create as much damage as possible so that their families would be taken care of. Id. On occasion, AAMB members have been sent to Tehran for medical treatment in exchange for providing recruitment services or developing additional cells in the West Bank. Zelkovitz Testimony 67:11-20. Such evidence supports the conclusion that support for Fatah Tanzim and AAMB was given in exchange for acts of violence against Israelis and the state of Israel.

         In sum, the Court has been presented with evidence that Iran and Hezbollah have generally supported Fatah Tanzim and AAMB in hostilities against Israel and Israelis, and that Fatah Tanzim and AAMB relied on the money and support from Iran to conduct those hostilities. Such hostility-and material support to Fatah Tanzim and AAMB in furtherance thereof-appears to have been, in effect, the official state policy of Iran at the time of the June 5, 2001 attack on the Shohams.

         E. al-Manar Television

         Another method of Iran/Hezbollah's incitement and encouragement of attacks against Israelis during the Second Intifada was through television programming on al-Manar, a television station broadcast throughout the Palestinian territories. Testimony of Avi Jorisch 85:20-86:7, 112:11-15.[10] Mr. Jorisch testified that Iran materially financed al-Manar, which was owned and operated by Hezbollah. Id. He also testified that the purpose of al-Manar was to "act as a mouthpiece for Hezbollah and for Iran" and to incite violence against Israelis. Jorisch Testimony 102:18-103:5, 104:3-8. Specifically, the broadcasts included incendiary language and imagery including chants of "Death to Israel, " images of Jerusalem, the word "resistance, " maps of Palestine, images of Hezbollah or rebels marching, and-perhaps most relevant-references to throwing Jews into the sea and engaging in rock-throwing "because it's cheap and you can find [rocks] anywhere." Id. at 117:12-120:7. According to Jorisch, Iran encourages Palestinians to engage in rock-throwing as an effective means of resistance against Israel. Id. at 117:10-21. Station officials have also helped organize attacks and broadcast the locations of demonstrations. Mat 107:12-23.

         The programming of al-Manar became much more violent in response to the Second Intifada and quickly became the most watched station in the Arab world. Id. at 111:12-112:25. Jorisch testified that, despite being relatively unknown among Americans and Israelis, al-Manar had 14 satellite providers broadcasting to 25 million viewers in the Arab world. Id. at 101:5-11. Leadership of organizations, including Fatah Tanzim, have appeared on al-Manar to spread information to members and incite their supporters, as well as to claim responsibility for attacks and advertise where demonstrations would take place. Id. at 107:19-23, 115:6-116:20. As noted, the broadcasts included videos of rock-throwing. Id. at 117:9-21, 128. These broadcasts reached several Palestinian territories, including the area where the June 5, 2001 attack on Yehuda Shoham occurred. Id. at 112:10-14. Further, Fatah Tanzim used al-Manar to broadcast its attacks to a large Palestinian audience in the West Bank. Idat 122-123.

         In sum, the evidence supports the conclusion that Iran used al-Manar to incite and encourage attacks against Israelis during the Second Intifada, and incitement of such attacks appears to have been, in effect, the official state policy of Iran at the time of the June 5, 2001 attack on the Shohams.

         F. Bank Saderat

         Bank Saderat was established in 1952 and became a commercial state-owned bank of Iran in 1979 after the revolutionary government nationalized the bank. Jorisch Aff. ¶ 12.[11] On October 25, 2007, the United States Treasury Department designated Bank Saderat as a specially Designated Global Terrorist, as well as an affiliate of the Iranian Revolutionary Guards Corps and an Iran-linked financial institution, pursuant to Executive Order 13, 224. Jorisch Aff. ¶ 13. The Treasury Department specifically referenced Bank Saderat's provision of financial services to Hezbollah and other terrorist organizations as the reasoning for the designation. Id.

         Iran would transfer hundreds of millions of dollars to various terrorist groups each year, including approximately $200 million to Hezbollah each year. PL's Exhibit 28; Zelkovitz Aff. at 16. After the start of the Second Intifada, Iran provided Hezbollah over $50 million, and these funds were likely distributed in part through accounts at Bank Saderat. Zelkovitz Testimony at 62:7-10. Hezbollah used these funds, in part, to fund Mikdah and Fatah Tanzim's terrorist activities in the West Bank. Id. at 62:11-22.

         In 2009, Iran announced a program to privatize Bank Saderat, but that process has been a sham because the bank is still controlled by the government. Zorisch Aff. ¶ 16. In 2010, the U.S. Treasury Department identified 21 entities in Iran's banking, insurance, and engineering industries that were determined to be owned or controlled by the Iranian government. Zorisch Aff. ¶ 14. Bank Saderat was listed among these entities, along with the following statement by the U.S. Treasury Department Office of Foreign Asset Control (OFAC):

In 2006, OFAC identified . . . Bank Saderat Iran as [a] financial institution[] owned or controlled by the Government of Iran. Furthermore, Bank Saderat Iran was designated on October 25, 2007 pursuant to Executive Order 13224 for its support of terrorism-related activities.

Id.; Press Release, U.S. Treasury, Treasury Identifies 21 Entities Determined to be Owned or Controlled by the Government of Iran Treasury Exposes Iran's Foreign Trade Network, Identifies Entities operating in Belarus, Germany, Iran, Italy, Japan and Luxembourg (August 3, 2010), available at https://www.treasury.gov/press-center/press-releases/Pages/tg811.aspx.[12] As of 2012, 27.7% of the bank shares were owned directly by the Iranian government, 11.66% of the shares were owned by "legal persons" owned or operated by the Iranian government-such as the Iranian Privatization Organization, the Iranian Ministry of Petroleum, or the IRGC-and 40% of the shares were owned by "Provincial Investment Group, " a wholly-owned entity of the Iranian government. Jorisch Aff. ¶¶ 19-20. This means nearly 80% of the shares are owned or controlled directly or indirectly by the Iranian government, or persons affiliated with the government. Id. In that same time, Bank Saderat was sanctioned for providing services to terrorism and was designated as an Iran-linked financial institution by the Treasury Department. Jorisch Aff. ¶ 15.

         In sum, the evidence supports the conclusion that Bank Saderat is an instrumentality of Iran and was generally used to further the state policy of Iran, including the incitement and support of terrorist attacks in Israel and the West Bank.

         G. Plaintiffs Status and Injuries

         Plaintiff brings claims individually and as the administrator of the estate of her deceased son, Yehuda Shoham. The Court now makes findings regarding the status of plaintiff, including the injuries she and Yehuda suffered as a result of the June 5, 2001 attack and their citizenship (as is relevant to their entitlement to recover under section 1605 A of the FSIA).

         1. Batsheva Shoham

         Plaintiff Batsheva Shoham was a citizen of the United States at the time of the attack, having been born to two American citizens. Her mother was born in Los Angeles, California and her father was born in Detroit, Michigan. Testimony of Batsheva Shoham 6:8-14, ECF No. 79. However, she was born in Israel and lived there as an adult, living in the United States only "for a few months" when she was five years old. Id. at 5:15-24, 6:15-17. Batsheva Shoham was both a witness to and victim of the June 5, 2001 attack against herself, her husband, and her infant son. Id. at 18-26. Despite Batsheva's efforts to save Yehuda, which included performing CPR for ten minutes before an ambulance arrived, Yehuda died after six days in the hospital. Id. In the moments following Yehuda's death, Batsheva's world "shattered." Id. at 28:4-5. By custom, Batsheva mourned for seven days, spending time "on the floor" as friends and neighbors came to comfort her. Id. at 28:15-17. She continued to mourn beyond those seven days, and she has not been able to return to a normal life. Id. at 11-12. She continues to suffer severe emotional distress from the attack. Id. at 28-30, 36:21-37:6. To this day, it is difficult for Batsheva to be around other children, including her own, or to drive her car. Id. at 28:8-25, 32:19-33:1, 36:21-37:6. She is in pain all the time and cries periodically, though she does not always know what triggers each episode. Id. at 32:13-15, 36:23-37:3. She has sought therapy, along with other members of her family, to deal with the emotional distress caused by Yehuda's death. Id. at 32:1-15, 34:10-20. Further, the attack, and the resulting loss of Yehuda, has strained her marriage to Binyamin Shoham and made it difficult for her to communicate with her other children. Binyamin Testimony 161:6-20; Batsheva Testimony 34:14-23. She is unable to visit her son's grave because it is too painful. Batsheva Testimony 34:5-9.

         2. Estate of Yehuda Shoham

         Yehuda Shoham and his father Binyamin Shoham-who were both born in Israel-were not American citizens. Binyamin Testimony 133, 138:1-2.[13] Yehuda was a victim of the June 5, 2001 attack against himself, his mother, and his father. He was struck in the head by a rock and suffered traumatic brain injuries as a result. He stopped breathing at the scene of the attack, but was resuscitated by his mother, Batsheva Shoham, before being transported to the hospital. Binyamin Testimony 148:1-7. When he began breathing again he made only small squeaky noises, but he did not cry. Id. His head was cut and bleeding following the attack, and he experienced tremendous swelling in his head and face while at the hospital. Binyamin Testimony 151:22-152:5; Batsheva Testimony 23-24. He was heavily bandaged, largely unresponsive, and the doctors indicated he had likely suffered brain damage. Id. He was hospitalized for six days before he died. Id. Yehuda is being represented in this litigation by his mother, Batsheva Shoham, who is the administrator of his estate. Compl. 41-45.

         III. CONCLUSIONS OF LAW

         A. Jurisdiction and Sovereign Immunity

         The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp.,488 U.S. 428, 434 (1989). The statute codifies the concept of foreign sovereign immunity, something which is "a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution." Republic of Argentina v. NML Capital, Ltd.,134 S.Ct. 2250, 2255 (2014) (quoting Verlinden B. V. v. Central Bank of Nigeria,461 U.S. 480, 486 (1983)). The FSIA sets forth exceptions to foreign sovereign immunity that provide the only authority for a district court to assert subject matter jurisdiction over claims against a ...


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