United States District Court, District of Columbia
BATSHEVA SHOHAM, Individually and as Administrator to the Estate of Yehuda Shoham Plaintiff,
ISLAMIC REPUBLIC OF IRAN, Defendants.
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
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.
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.
Their causes of action and the jurisdiction of this Court are
premised on section 1605 A of the FSIA.
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.
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.
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. 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.
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.
FINDINGS OF FACT
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.
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.
Judicial Notice of Prior, Related FSIA Cases
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
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.
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.
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.
later, an Israeli investigator named A'Atef
Aweeda interrogated a suspect named Wahid or
Muayad Kafina. 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)-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.
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
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.
Tanzim - Fatah - AI-Aqsa Martyrs Brigade
also known as the Palestinian National Liberation Movement,
was established in 1959 by Yasser Arafat. Testimony of Dr.
Ido Zelkovitz 38:16-25. 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.
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.
resistance in Israel surged in September 2000. This is
commonly referred to as the Second Intifada. 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
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.
Iran/Hezbollah Connections to Fatah Tanzim and AAMB
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."
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. 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
PL's Exhibit 33 (emphasis added).
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.
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.
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.
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.
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.
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
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. 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.
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.
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.
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. 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.
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
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
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),
https://www.treasury.gov/press-center/press-releases/Pages/tg811.aspx. 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.
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.
Plaintiffs Status and Injuries
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).
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
Estate of Yehuda Shoham
Shoham and his father Binyamin Shoham-who were both born in
Israel-were not American citizens. Binyamin Testimony 133,
138:1-2. 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.
CONCLUSIONS OF LAW
Jurisdiction and Sovereign Immunity
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 ...