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Roth v. Syrian Arab Republic

United States District Court, District of Columbia

September 28, 2018

ARNOLD ROTH, et al, Plaintiffs,
v.
SYRIAN ARAB REPUBLIC, et al., Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         Plaintiffs have brought claims pursuant to the Foreign Sovereign Immunities Act (FSIA) against the Syrian Arab Republic (Syria) and the Syrian Air Force Intelligence. Plaintiffs seek, damages for injuries suffered as a result of a terrorist attack committed in Jerusalem, Israel on August 9, 2001. The Court has before it the plaintiffs' motion for default judgment. ECF No. 45. For the reasons set forth below, the Court concludes that plaintiffs motion will be GRANTED.

         I. Procedural History

         Plaintiffs first filed their original complaint on July 28, 2011, pleading causes of action against the Islamic Republic of Iran (Iran), the Iranian Ministry of Information and Security (MOIS), Syria, and the Syrian Air Force Intelligence. pls.' Complaint, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (RCL) (D.D.C. July 28, 2011), ECF No. 3. Plaintiffs were originally unable to complete service of process on Syria and the Syrian Air Force Intelligence, which led this Court to sever plaintiffs' claims against Syria and the Syrian Air Force Intelligence on November 19, 2014. Order, ECF No. 1. The Court decided the case against Iran and the MOIS in Roth I. Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379 (D.D.C. 2015) [hereinafter Roth I]. This opinion now addresses plaintiffs' claims against Syrian and the Syrian Air Force Intelligence.[1]

         Plaintiffs' causes of action and this Court's jurisdiction are premised on § 1605A of the FSIA. Syria and the Syrian Air Force Intelligence were served with process on July 2, 2017. ECF No. 41. Their answer was due on August 31, 2017. Id. Defendants made no response and have yet to appear in this case. The Clerk of the Court entered default against defendants on September 28, 2017. ECF No. 43. Plaintiffs have now moved for entry of default judgment against defendants, both as to liability and damages. pls.' Mot. for Default J., ECF No. 45.

         II. Findings of Fact

         The Court must consider evidence and make findings of fact with respect to plaintiffs' allegations before determining whether defendants should have a default judgment against them. This is because § 1608(e) of the FSIA prohibits courts from entering a default judgement against a foreign state or its political subdivision unless "the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). Therefore, the Court cannot "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). Rather, courts must "inquire further before entering judgment against parties in default." Id. (internal quotations omitted). Courts may rely on uncontroverted factual allegations that are supported by affidavits. Id. Also, courts may take judicial notice of prior related proceedings in cases before the same court. Id.

         A. Judicial Notice of Prior, Related FSIA Cases

         Under Federal Rule of Evidence 201(b), courts may "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). This means that a court may "take judicial notice of, and give effect to, its own records in another but interrelated proceeding." Opati v. Republic of Sudan, 60 F.Supp.3d 68, 73 (D.D.C. 2014) (quoting Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)). 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) (collecting cases).

         The Court may not simply adopt previous factual findings without scrutiny. 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. As stated above, the records of this Court in related proceedings are not subject to reasonable dispute. See Opati, 60 F.Supp.3d at 73. 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.

         The Court decided the related case of Roth I in 2015. Roth I, 78 F.Supp.3d at 379. Roth I involved the same plaintiffs and the same attack upon which this suit is based. The Court shall take judicial notice of the findings of fact in that case. Further, on May 19, 2006, the Court presided over a hearing on liability in the case of Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90, 95 (D.D.C. 2006). There the Court received evidence regarding the August 9, 2001 attack upon which this suit is also based. Id. at 94-95. The Court shall take judicial notice of that evidence in making its findings of fact. The evidence received in Greenbaum was also judicially noticed in Roth I. Roth I, 78 F.Supp.3d at 387. Further, the Court shall take judicial notice of evidence received in Braun v. Islamic Republic of Iran, 228 F.Supp.3d 64, 71 (D.D.C. 2017) and Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 32 (D.D.C. 2012), as these cases involved Syria and the Syrian Air Force Intelligence's liability for state sponsorship of terrorism.

         B. The Attack

         On August 9, 2001, Izz al-Din Shuheil Ahmed Masri detonated a ten-pound bomb at a Sbarro restaurant in Jerusalem. pls.' Ex. List, Ex. 16, U.S. Dep't of State, Patterns of Global Terrorism 2001 at 54, 80 (2002), Greenbaum v. Islamic Republic of Iran, Civil Action No. 02-2148 (RCL) (D.D.C. May 18, 2006), ECF No. 27-9 [hereinafter Patterns of Global Terrorism]; pls.' Supplemental Ex. List, Ex. 18, Catalog/Translation of Evidence, 1-2, Greenbaum, Civil Action No. 02-2148 (RCL), ECF No. 28-6.[2] The resulting explosion killed 15 people, including plaintiff Malka Roth. Patterns of Global Terrorism at 80.

         Shortly afterwards, it became clear that Hamas was ultimately responsible for the attack. Patterns of Global Terrorism at 54; Patrick Clawson Dep. 18:2-8, May 24, 2006, Greenbaum, Civil Action No. 02-2148 (RCL), ECF No. 28-2 [hereinafter Clawson Dep.]. This conclusion was supported by the following factors:

[A] living will videotape of the bomber made by the bomber beforehand in which he describes himself as being a member of Hamas and says he's going to carry out a suicide bombing; the description after the bombing by the bomber's father of his son as being a member of Hamas; and, furthermore, the court evidence and the interviews with the two individuals who were subsequently arrested for having helped the bomber identify the target and get him to the target in which they describe themselves as members of Hamas ....

Clawson Dep. 18:8-19:1.

         C. Defendants' Actions and Involvement in the Attack

         Hamas is described by the State Department as an "outgrowth of the Palestinian branch of the Muslim Brotherhood" that uses "both political and violent means, including terrorism, to pursue the goal of establishing an Islamic Palestinian state in place of Israel." Patterns of Global Terrorism at 93.

         Syria has been continuously designated as a state sponsor of terrorism by the U.S. State Department since 1979. Decl. of Benedetta Berti ¶ 30, Braun v. Islamic Republic of Iran, 228 F.Supp.3d 64, Civil Action No. 15-1136 (BAH) (D.D.C. July 19, 2016), ECF No. 33-2 [hereinafter Berti Decl., Braun]. In Braun, the Court reviewed evidence that indicated in the 1980s, Syria reached an agreement with Hamas in which "Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Syria undertook to provide Hamas with material support and resources to carry out such extrajudicial killings and terrorist attacks." Braun, 228 F.Supp.3d at 71. "Hamas has had a presence in Syrian since at least 1991," Decl. of Marius Deeb ¶ 13, Braun v. Islamic Republic of Iran, 228 F.Supp.3d 64, Civil Action No. 15-1136 (BAH) (D.D.C. May 25, 2016), ECF No. 31-2 [hereinafter Deeb Decl., Braun], and Syria provided safe haven for Hamas for many years. Berti Decl. ¶ 31, Braun. This granted Hamas a base from which to operate, and Syria became a "planning hub" for Hamas in the mid-1990s. Berti Decl. ¶¶ 31-33, Braun; Deeb Decl. ¶ 15, Braun. In fact, Syrian military intelligence worked closely with Hamas military leaders in Syria, and "[i]nstructions for terrorist attacks were transmitted directly from Damascus to the terrorist cell that was to carry out the attack." Id. While under Syria's protection, "Hamas was able to organize political events from Damascus," Berti Decl. ¶ 40, Braun, as well as to "access both [Syria's] military strategists and to Hezbollah's resources in Lebanon, from which Hamas was able to learn terrorist strategies," Deeb Decl. ¶ 23, Braun.

         Hamas has received financial support channeled through Syria to finance its military operations and terrorist attacks. Berti Decl. ¶¶ 43-44, Braun. This Court in Wultz examined evidence that the Syrian Air Force Intelligence specifically acted as a conduit for Syria's '"provision of funds to terrorist organizations," including Hamas and Palestinian Islamic Jihad, 'which came from Iran. Wultz, 864 F.Supp.2d at 32; Transcript of Evidentiary Hearing on Feb. 27, 2012, 26:4-27:2, 31:7-32:6, Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, Civil Action No. 08-1460 (RCL) (D.D.C. Mar. 30, 2012), ECF No. 129. Syria has also served as a key channel through which Hamas has smuggled and obtained weapons. Berti Decl. ¶ 44, Braun. Further, "Syrian sponsorship and support has enabled Hamas to at times carry out military training in Syria and Lebanon where its operatives have acquired essential tactical skills and knowledge enabling them to carry out ever more sophisticated attacks." Id. Ultimately,

[t]he support which Syria provided to Hamas, by giving the organization and its leaders safe haven, allowing it to operate its military headquarters in Damascus and giving it access to other resources such as unrestrained access to funding, weapons, travel, communications, military training, intelligence and strategy proved significant for the terror organization's overall operational infrastructure.

Deeb Decl. ¶ 19, Braun. Although Syria no longer provides support to Hamas, Hamas benefitted from the substantial support that it received from Syria, especially during the period in which the attack at the heart of this matter occurred.[3]

         D. Plaintiffs' Status and Injuries

         The Court now makes findings regarding each plaintiff, including the injuries each plaintiff suffered as a result of the August 9, 2001 attack and each plaintiffs citizenship (as is relevant to their entitlement to recover under § 1605A of the FSIA).

         1. MalkaRoth

         Plaintiff Malka Roth was killed in the August 9, 2001 attack. Arnold Roth Decl. ¶ 2, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2014), ECF No. 34-2 [hereinafter Arnold Roth Deck, Roth I]. She was 15 years old. Id. ¶ 3. She is represented in this litigation by her parents, Arnold and Frimet Roth, who serve as co-administrators of her estate. Compl., ECF No. 4; pls.' Supp. Mem. Ex. A, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Jan. 16, 2015, 2016), ECF No. 42-1. Malka Roth was a United States citizen. Arnold Roth Decl. ¶ 3, Roth I.

         2. Immediate family of Malka Roth

         The other plaintiffs in this case are all immediate family members of Malka Roth. Arnold and Frimet Roth are her parents and Pesia Roth, Rivka Roth Rappaport, Zvi Roth, Shaya Roth, Pinchas Roth, and Haya Elisheva Roth are her siblings. All except Arnold Roth are United States citizens.[4] All reside in Jerusalem, Israel. Arnold Roth Decl. ¶ 6, Roth I. Arnold Roth and Haya Elisheva Roth have filed a notice of voluntary dismissal without prejudice as to their claims pled in their individual capacities. ECF No. 44. Because defendants have not filed an answer or a motion for summary judgment, Arnold Roth and Haya Elisheva Roth's claims were dismissed without prejudice upon filing of this notice. Fed.R.Civ.P. 41(a)(1)(A)(i).[5]

         Each plaintiff has alleged emotional injuries resulting from Malka Roth's death. These injuries are detailed below.

         a. Frimet Roth

         Frimet Roth first heard of the bombing a few minutes after it occurred through a CNN news report. Frimet Roth Decl. ¶ 8, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-3. She was immediately concerned for the safety of three of her children who were out on the streets of Jerusalem. Id. While two returned home a half hour later unharmed, Malka did not appear and did not respond to repeated phone calls. Id. Later in the day, Frimet set out for Shaarei Zedek Medical Center to search for her daughter, accompanied by the mother of Malka's best friend, who had been with Malka that day. Id. During the journey, Frimet learned that Malka's friend had sent a text message shortly before the bombing stating that the two girls were going to Sbarro. Id. At that point, Frimet stated, she "knew that the worst had happened and broke down banging on the car window and crying." Id. After returning home, she waited with her family and some neighbors, "moaning uncontrollably" while waiting for news. Id. Finally, around 2 a.m. the following morning, her sons Pinchas and Shaya called from the government's pathology lab. Id. ¶¶ 8-9. Arnold took the call; Frimet recounted that just by reading his reaction, she knew that Malka's death had been confirmed. Id. ¶ 9. Frimet now mournfully recalls this moment as a cruel culmination with indelible effects: "The trauma of the evening and night leading up to that moment and then of the hours immediately after are impossible for me to describe. They will never leave me. They changed my life forever." Id.

         Frimet states that her pain at Malka's death "has never left [her] for a moment." Id. ¶ 10. Indeed, because the mere memory of her daughter triggers such powerful sadness, she willfully suppresses her memories of Malka "in order to function, to plod ahead with life." Id. ¶ 11. Nonetheless, her declaration affirms her powerful love for Malka, detailing her admiration and gratitude for Malka's many positive qualities, including Malka's ardent devotion to her disabled sister, Haya Elisheva. Id. ¶¶ 12-16.

         b. Rivka Roth Rappaport

         Rivka Roth Rappaport is Malka Roth's sister, three and a half years Malka's junior. Rivka Roth Rappaport Decl. ¶ 3, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-6. Rivka states that she and Malka were "very close" growing up. Id. ¶ 7. Indeed, during that time they shared a bedroom and'attended the same school and youth group. Id. Rivka remembers the day and night spent waiting for news of Malka's fate as traumatic; she recalls crying and being distraught at the news Malka's best friend had been killed. Id. ¶ 14 (characterizing the night's uncertainty as "excruciating"). She knew Malka had died when she awoke to hear her mother "wailing and moaning" at the news. Id. ¶ 15.

         Rivka declares that she has experienced emotional trauma and physical pain from her sister's death. Id. ¶ 16. She visited a psychologist once or twice but did not go regularly because of her skepticism of therapy at the time. Id. She now regrets that decision. Id. Rivka states that her life will never be the same as a result of the attack. Id. ¶ 17.

         c. Zvi Roth

         Zvi Roth is Malka Roth's brother, born two and a half years before her. Zvi Roth Decl. ¶¶ 2-3, Roth v. Islamic Republic of Iran et al., 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-7. He states that he and Malka were "very close" growing up. Id. ¶ 7. They spent a great deal of time together, doing things like playing together and going to the swimming pool. Id. Like his sister Rivka, Zvi recalls the night waiting for news about Malka after the attack as being "very difficult." Id. ¶ 13. Upon hearing of his sister's death, he felt "terribly exhausted" and like "everything in my life was collapsing." Id. ¶ 14.

         Zvi states that he has suffered emotional trauma and physical pain as a result of Malka's death. Id. ¶ 15. In the aftermath, he had trouble "studying and socializing" and felt isolated by his experience and his grief. Id. He "received grief counseling from both a psychologist and from a social worker." Id. He states that his life will never be the same without Malka and that he misses her and regrets that his memories of her are fading from clarity. Id. ¶¶ 8, 16.

         d. Shaya Roth

         Shaya Roth is Malka Roth's brother. Shaya Roth Decl. ¶ 2, Roth v. Islamic Republic of Iran et al, 78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-8. He is four and a half years older than her. Id. ¶ 3. Shaya declares that he and Malka were very close as young children but that they grew apart somewhat as teenagers because of the busy schedule and expanding social life that attends adolescence. Id. ¶ 7. Nonetheless, Shaya recounts anecdotes of his relationship with Malka from the summer of 2001 that demonstrate the continued affection the two shared for one another up until her death. Id. ¶ 11 (describing a "refreshing and enjoyable" hike they took together that is one of Shaya's favorite memories of his sister); id. ¶ 12 (recalling that a couple of days before her death, Malka gave Shaya a shopping bag full of snacks to take with him in anticipation of his enlistment in the army, a gesture that "moved" Shaya so much that he kept the snacks for months after her death, unable to eat or discard them).

         Shaya, along with his older brother Pinchas, traveled to the Israeli government pathology center at Abu Kabir in the morning following the attack at 2 a.m. Id., ¶ 15. They went to determine whether a body at the center potentially matching Malka's description was indeed their sister. Id. Shaya's declaration vividly describes the events that followed:

I will never forget my wandering thoughts on the long drive to Abu Kabir; my deliberation while looking at her body lying on the clinic's bed, knowing it was her but hesitating to declare it and making it official and all the while having a glimmer of doubt or hope that I may be making a mistake and that Malka is alive somewhere; the call home to say I had found her body - talking to my father and hearing my mother crying in the background; and then the long drive home in silence.

Id.

         Like his siblings, Shaya states that he has suffered emotional trauma and physical pain as a result of Malka's death. Id. ¶ 16. In particular, Shaya highlighted the difficulty of being a new soldier in the wake of the attack, with his only relief from the rigors of military life being emotionally difficult weekends on leave at home with a family now "severely limited" in its ability to "function healthily as a supportive and constructive force" in his life. Id. ¶¶ 8, 16. He affirms that he misses Malka, that he regrets that she will not be a presence in the lives of his family, and that he believes his life will never be the same without her. Id. ¶ 17.

         e. Pinchas Roth

         Pinchas Roth is Malka Roth's brother and is seven and a half years older than her. Pinchas Roth Decl. ¶ 3, Roth v. Islamic Republic of Iran et al,78 F.Supp.3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-9. Pinchas states that, like the other plaintiffs, he spent the time immediately following the attack "frantically trying to find some information about where [Malka] might be." Id. ¶ 8. He was given the difficult task, along with his brother Shaya, of identifying Malka's body shortly thereafter. Id. ¶ 9. Pinchas states that he experienced emotional trauma and physical pain because of Malka's death. Id. ¶ 10. He recalls that the attack resulted in his having "trouble moving around in public places among strangers, for fear that one of them might be carrying a bomb." Id. He participated in ...


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