United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE
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
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.
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.
Findings of Fact
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.
Judicial Notice of Prior, Related FSIA Cases
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).
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.
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
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. The resulting explosion killed 15 people,
including plaintiff Malka Roth. Patterns of Global
Terrorism at 80.
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.
Defendants' Actions and Involvement in the
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.
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. ¶
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
Plaintiffs' Status and Injuries
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).
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.
Immediate family of Malka Roth
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. 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).
plaintiff has alleged emotional injuries resulting from Malka
Roth's death. These injuries are detailed below.
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.
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. ¶¶
Rivka Roth Rappaport
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.
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.
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.
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.
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).
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
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.
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 ...