United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE
the heck did you do to my kid?” This is the anguished
question voiced by the mother of Otto Warmbier when, after
detaining the young man for over 17 months, the Democratic
People's Republic of Korea (“North Korea”)
returned Otto's comatose body to the United
States. Before Otto traveled with a tour group on
a five-day trip to North Korea, he was a healthy, athletic
student of economics and business in his junior year at the
University of Virginia, with “big dreams” and
both the smarts and people skills to make him his high school
class salutatorian, homecoming king, and prom king. Decl. of
Cynthia Warmbier (“C. W. Decl.”) ¶¶
11-16, ECF No. 16-2; H'rg Tr. (Rough) at 50-51 (Austin
Warmbier (“A. W.”)); id. at 58 (C. W.).
He was blind, deaf, and brain dead when North Korea turned
him over to U.S. government officials for his final trip
home. H'rg Tr. (Rough) at 31, 36 (Frederick Warmbier
(“F. W.”)). Otto died within a week of his
return. Decl. of Dr. Daniel Kanter (“Kanter
Decl.”) ¶ 20, ECF No. 16-4.
deeply knowledgeable expert from the Fletcher School of Law
and Diplomacy at Tufts University describes North Korea as
“unique” in the world today: North Korea is the
“most advanced, most perfected totalitarian state in
world history, ” H'rg Tr. (Rough) at 105, 110
(Expert Prof. Sung-Yoon Lee), and has “perfected its
means of terrorizing” both its own people and others,
id. at 111. The dictator who leads North Korea, and
his cronies, “show no regard for human life, ”
id. at 127, creating, for example, a “manmade
. . . famine” in the late 1990s that killed
“upwards of 2 million people, ” id., and
maintaining “political prisoner concentration camps,
” id. at 110, such that “North Korean
escapees” tell “a consistent story” of
“a life of extreme deprivation and repression, ”
id. at 111. Moreover, North Korea is
“unprecedented” in its state sponsorship of
“elicit activities, like proliferation of weapons of
mass destruction, counterfeiting U.S. dollars, [and] the
production and sale of drugs like opium, heroin, and
meth[amphetamines].” Id. at 106. Indeed, North
Korea is the world's “leading” and
“best qualified candidate for indictment” at the
International Criminal Court for crimes against humanity.
Id. at 122. An American family, the Warmbiers,
experienced North Korea's brutality first-hand when North
Korea seized their son to use as a pawn in that totalitarian
state's global shenanigans and face-off with the United
States. As Otto's mother said, “there's evil in
this world, ” id. at 82 (C. W.), and
“[i]t's North Korea, ” id.
been compelled to keep silent during Otto's detention in
North Korea in an effort to protect his safety, Otto's
parents have since promised to “stand up” and
hold North Korea accountable for its “evil”
actions against their son. Id. at 58-60 (C. W.). To
that end, Otto's parents, Cynthia (“Cindy”)
and Frederick (“Fred”) Warmbier, initiated this
action individually and as personal representatives of
Otto's estate, seeking damages under the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1602, et
seq., against North Korea for its torture, hostage
taking, and extrajudicial killing of Otto. Compl.
¶¶ 1-5, ECF No. 1. North Korea never entered an
appearance in, or defended against, this action, and the
plaintiffs now move for default judgment for the damage
caused by North Korea to Otto and his parents. For the
reasons discussed below, default judgment is granted and Otto
and his parents are awarded damages totaling $501, 134,
factual background surrounding Otto's detention in North
Korea is summarized below, followed by an overview of the
procedural history of this case. The factual background is
based upon the detailed declarations submitted by the
plaintiffs in support of their motion for default judgment,
as well as exhibits and testimony presented at an evidentiary
hearing held on December 19, 2018.
Otto Warmbier's Detention in North Korea
Warmbier, a 21-year-old University of Virginia student, with
a curiosity to learn more about the world through travel,
took a five-day trip to North Korea, between December 29,
2015 and January 2, 2016, in advance of a study abroad
program in China. H'rg Tr. (Rough) at 13-15 (F. W.);
id. at 59 (C. W.); C. W. Decl. ¶¶ 15-16.
Otto had an “open mind” and “wanted to
explore, ” and he viewed the trip to North Korea as an
opportunity to experience a different culture and way of
life. H'rg Tr. (Rough) at 59, 64-65 (C. W.); C. W. Decl.
¶ 15. Although Otto's parents were
“nervous” about Otto's trip, a University of
Virginia professor advised Otto that travel to North Korea
was safe with certain tour groups, and the website for the
operator of Otto's tour group, Young Pioneer Tours,
attested to the safety of their guided trips into North
Korea. Decl. of Frederick Warmbier ¶ 5 (“F. W.
Decl.”), ECF No. 16-1; H'rg Tr. (Rough) at 14 (F.
January 2, 2016, Otto's scheduled departure date from
North Korea, Fred and Cindy expected Otto to call them when
he arrived in China, but that call never came. H'rg Tr.
(Rough) at 14-15 (F. W.); F. W. Decl. ¶ 5. The next
morning, the tour company explained that Otto missed his
flight because North Korean officials took him out of the
security line at the Pyongyang Sunan International Airport,
and he could not leave North Korea with the rest of his tour
group. H'rg Tr. (Rough) at 15 (F. W.); F. W. Decl. ¶
5; C.W Decl. ¶ 16. The tour company reassured Otto's
parents that “everything was fine, ” adding that
the president of the tour company stayed with Otto and he
would be “on the next flight out.” H'rg Tr.
(Rough) at 15-16 (F. W.); F. W. Decl. ¶ 5. Over
“the next day or two, ” the tour company again
reassured Otto's parents that “everything was fine,
” and Otto's inability to leave North Korea
“was just a misunderstanding.” F. W. Decl. ¶
6; H'rg Tr. (Rough) at 15 (F. W.). Shortly thereafter,
however, the tour company said that Otto was sick and had
been taken to a hospital, and the president of the tour
company left North Korea for China, leaving Otto
unaccompanied in North Korea. H'rg Tr. (Rough) at 15-16
(F. W.); F. W. Decl. ¶ 6.
Otto was detained, the U.S. State Department advised Fred and
Cindy that Otto's detention was part of North Korea's
“normal routine” when “they want something,
” and assured them that, “based on history,
” Otto would “be home in six months.”
H'rg Tr. (Rough) at 17-18 (F. W.). The State Department
cautioned the Warmbiers against speaking to media outlets or
publicly about Otto's detention because North Korea was
“going to want something for Otto, ” and the more
the family spoke publicly, “the more it's going to
cost.” Id. at 17, 22-24 (F. W.); id.
at 65 (C. W.). Otto's parents were also told that, at
some point, North Korea would permit Otto to call home,
usually late at night, and in a statement dictated by North
Korea through Otto would provide a clue as to what North
Korea wanted as a condition of his release. Id. at
67 (C. W.).
the repeated cautions against speaking publicly, Otto's
parents were “[t]errified, ” “afraid to . .
. speak out or discuss” Otto “with anyone,
” including their neighbors and friends. Id.
at 16, 23 (F. W.); id. at 72 (C. W.). They had a
“sixth sense” that “things were bad for
Otto, ” but what transpired was worse than they
“could have imagined.” F. W. Decl. ¶ 27.
Even Otto's two younger siblings, Austin and Greta
Warmbier, and Otto's friends were fearful about speaking
publicly due to the possibility that North Korea would punish
Otto. H'rg Tr. (Rough) at 45 (Greta Warmbier (“G.
W.”)); id. at 59-60 (C. W.); F. W. Decl.
¶ 7. “[S]peaking out against North Korea would
antagonize the country and prolong or worsen Otto's
detention.” F. W. Decl. ¶ 16. In this way, over
the duration of Otto's detention, North Korea
“controlled” the “dialogue the whole
time.” H'rg Tr. (Rough) at 82-83 (C. W.).
parents remained in the dark about the reason for Otto's
detention in North Korea until three weeks later, on January
22, 2016, F. W. Decl. ¶ 7, when the Korean Central News
Agency (“KCNA”), North Korea's state media
outlet, Expert Decl. of David Hawk (“Hawk Expert
Decl.”) ¶ 11, ECF No. 16-9, released an article
stating Otto was “under investigation, ” Decl. of
Benjamin L. Hatch (“Hatch Decl.”), Ex. A (KCNA
Article titled, “American Arrested for His Hostile Act
Against DPRK”), ECF No. 16-1. The article reported that
Otto had been “arrested while perpetrating a hostile
act against the DPRK, ” having entered the country
“under the guise of tourist [sic] for the
purpose of bringing down the foundation of its single-minded
unity at the tacit connivance of the U.S. government and
under its manipulation.” Id.
on February 29, 2016, North Korea televised Otto reciting a
prepared “confession” to “severe crimes
against” the DPRK, that amounted to Otto allegedly
taking down a poster with a political slogan supporting North
Korea's dictator, Kim Jong-Il, from a hotel's
staff-only area, at the behest of a church in Ohio and the
CIA. Hatch Decl., Ex. B (Tr. of Otto's
“Confession”); Hatch Decl., Ex. C (Video of
Otto's “Confession”); see also
Expert Decl. of Robert M. Collins (“Collins Expert
Decl.”) ¶ 21, ECF No. 16-10. The preposterous
“confession” was riddled with “totally
bizarre, ” “completely false” statements,
F. W. Decl. ¶ 8, and malapropisms tied to North Korean
cultural references that would not be used by an American,
H'rg Tr. at 123-26 (Expert Prof. Sung-Yoon Lee). In
short, the “confession” was plainly coerced and
“completely manipulated.” Id. at 18 (F.
of the many untruths in the purported
“confession” include: (1) Otto called his
father's company “Finishing Cincinnati Black Oxide,
” but that company, in fact, is called “Finishing
Technology, ” F. W. Decl. ¶ 8; (2) Otto said he
practiced for his alleged crime by stealing street signs at
the University of Virginia and storing the stolen signs under
his bed, H'rg Tr. (Rough) at 19 (F. W.); F. W. Decl.
¶ 8, yet his father never found any such stolen signs,
let alone under Otto's bed at Otto's apartment,
H'rg Tr. (Rough) at 19 (F. W.); F. W. Decl. ¶ 8; (3)
Otto said he conspired with the Friendship United Methodist
Church, which had assets of $42 million, even though Otto had
no relationship with that church, was not Methodist, and the
church has no such extensive assets, H'rg Tr. (Rough) at
19 (F. W.); F. W. Decl. ¶ 8; (4) Otto said he agreed to
take the poster because he “‘desperately'
needed a car” and $200, 000 to fund his two
siblings' college tuition, when Otto “had his own
car and was never expected or asked to pay for his
siblings' tuition, ” F. W. Decl. ¶ 8; and (5)
Otto said he conspired with “the Z Society, ” but
had no connection to any such organization, id.
addition to these false statements in his “confession,
” Otto spoke with “unnatural” language that
sounded as if he had “been forced to memorize”
the words. Id. ¶¶ 8, 9. Otto, for
instance, said “I came to commit this crime task,
” “[t]he United States administration already
knows about my act through the CIA, which is closely linked
to the Z Society and connived at my crime, ”
“[t]his was a very foolish aim, ” “[t]his
made an innocent-minded, adventurous young man, like myself,
want to show my bravery to improve my reputation and show a
Western victory of the DPR Korea, ” and “I
intentionally packed my quietest boots, the best for
sneaking. I knew that I would wear them during my crime
commitment.” Id. ¶ 9.
“strange phrases, ” such as the references to the
“U.S. administration, ” “DPR Korea instead
of DPRK, ” and his “quietest boots for
sneaking” were “clumsy” North Korean
“stock phrase[s]” that provide “no doubt .
. . that this was a coerced confession under great
duress.” H'rg Tr. (Rough) at 123-25 (Expert Prof.
Sung-Yoon Lee). Moreover, Otto's reference to
“hostile U.S. policy” three times, and the notion
that Otto, as the oldest child, would need to subsidize his
younger siblings' college tuition-an expectation of the
eldest son in Korean culture-are reflective of “Korean
connotation, ” further indicating North Korea
“imposed” this material in Otto's confession.
Id. at 124-25 (Expert Prof. Sung-Yoon Lee).
after Otto's purported “confession, ” the
U.S. State Department assured Otto's parents that
Otto's detention was nearing a “mature phase,
” and North Korea would “finally call.” F.
W. Decl. ¶ 10. Fred and Cindy learned nothing, however,
until KCNA reported on North Korea's “trial”
of Otto, on March 16, 2016, where North Korea convicted Otto
on a charge of state subversion and sentenced him to fifteen
years of hard labor, based on his purported
“confession” to the crime. Hatch Decl., Ex. E
(KCNA Article on Otto's “Trial, ” titled
“American Student Sentenced to 15 Years of Hard Labor
in DPRK”). KCNA stated Otto committed the crime
“pursuant to the U.S. government's hostile
policy” towards North Korea. Id. Short video
excerpts of Otto's “trial” were released, but
no public court records have ever been made available.
See Hatch Decl., Ex. F (ABC Good Morning America
News Broadcast Containing Clips of Otto's
“Trial”) (“Video of
‘Trial'”); Hatch Decl. ¶ 7. In the
excerpts, Otto's hands are “curled in, ” and
he is “completely distressed” and “visibly
upset.” See Hatch Decl., Ex. F (Video of
“Trial”); F. W. Decl. ¶ 11.
Korea continued to detain Otto for an additional 15 months
after this “trial, ” for a total detention period
of approximately 17.5 months. See F. W. Decl. ¶
21. During Otto's detention, Otto's family received
“almost no information about [Otto's] condition,
” F. W. Decl. ¶ 15, and Otto's parents
ultimately had no way to communicate with him, H'rg Tr.
(Rough) at 21- 22 (F. W.); C. W. Decl. ¶ 17. Although
Otto's parents initially were told they could send Otto
emails through the State Department, which forwarded them to
Swedish intermediaries in North Korea for delivery to Otto,
Otto's parents never heard anything directly from Otto
and have no idea if he received any of this correspondence.
H'rg Tr. (Rough) at 21-22 (F. W.); C. W. Decl. ¶ 17;
F. W. Decl. ¶ 12. By June 2016, the State Department
told Otto's parents that they could no longer email Otto
because North Korea considered him a “Prisoner of
War” and a “War Criminal.” F. W. Decl.
the course of Otto's detention, Otto's parents spoke
regularly with State Department and other senior officials,
and were told “on several occasions” that Otto
was being imprisoned because “North Korea wanted
something from the United States, ” and he “would
not be released until they obtained that.” Id.
¶ 15; H'rg Tr. (Rough) at 67 (C. W.). Then-Secretary
of State John Kerry told Otto's family at a meeting that
“Otto is being held hostage by North Korea, ” F.
W. Decl. ¶ 15, and “they want something for Otto,
” H'rg Tr. (Rough) at 26 (F. W.). Otto's
parents “knew he was a hostage, a pawn, a political
prisoner, ” “left alone” and
“abandoned, ” id. at 28 (F. W.). They
lived “in fear” of talking about Otto because of
the “threat” of what North Korea would do to Otto
as a result. Id. at 23, 25 (F. W.).
2017, Joseph Yun, the former U.S. Special Representative for
North Korea Policy at the State Department, and the Deputy
Secretary of State informed Fred that Otto had been in a coma
for over a year since April 2016. Id. at 29 (F. W.);
F. W. Decl. ¶ 18; C. W. Decl. ¶ 23. Once again,
however, Otto's parents were advised not to speak about
Otto's condition publicly because if they mentioned Otto
in the media, North Korea would not release him and there was
“no guarantee” about his safety. H'rg Tr.
(Rough) at 29, 31 (F. W.); F. W. Decl. ¶ 18.
family remained silent after that call, H'rg Tr. (Rough)
at 31 (F. W.), and ultimately, North Korea agreed to release
Otto, after pardoning Otto for his purported crime, F. W.
Decl. ¶ 20. Representative Yun traveled to North Korea
to bring Otto back. Id. Cindy “held out
hope” that “Otto could be brought back” as
the “young man” she once knew. C. W. Decl. ¶
23. Having been told Otto was in a coma, she pictured him
asleep and thought he would be able to recover with medical
care. Id. These hopes were “shattered”
on June 13, 2017, when Otto landed at the Cincinnati
Municipal Lunken Airport. Id. ¶¶ 23-24; F.
W. Decl. ¶ 21.
Cindy, and Otto's younger siblings climbed the steps of
the plane and immediately heard “loud inhuman
sounds.” H'rg Tr. (Rough) at 33 (F. W.). When
Otto's family saw him, Otto's condition was
“horrible and unrecognizable.” C. W. Decl. ¶
24. Otto was “jerking violently” and
“howling.” F. W. Decl. ¶ 22; H'rg Tr.
(Rough) at 33 (F. W.). He wore a diaper and had a
“feeding tube” and a “shaved head, ”
“his arms . . . curled and mangled, ” “his
eyes . . .bulging out, ” and it “almost appeared
that he had chewed a hole through his bottom lip.” F.
W. Decl. ¶ 22; H'rg Tr. (Rough) at 33 (F. W.);
id. at 47 (G. W.); id. at 54 (A. W.). His
once “perfectly straight” teeth were misaligned,
H'rg Tr. (Rough) at 61 (C. W.), and Otto was blind and
deaf, with severe brain damage, unable to perceive anything
around him, id. at 36 (F. W.).
entire family was “shocked” upon seeing Otto.
Id. at 35 (F. W.); id. at 46, 47 (G. W.);
id. at 54 (A. W.). Greta “ran off the plane
screaming” because Otto looked like a “monster,
” and “not Otto”; she was scared of him. C.
W. Decl. ¶ 24; H'rg Tr. (Rough) at 47 (G. W.).
Otto's mother, too, “almost passed out” upon
seeing Otto, and ran off the plane with Greta. C. W. Decl.
¶ 24; F. W. Decl. ¶ 22; H'rg Tr. (Rough) at 47
(G. W.). Fred and Austin remained on the plane with Otto
until he was transported to an ambulance, an experience that
was “traumatic” and “tragic.” F. W.
Decl. ¶ 22; H'rg Tr. (Rough) at 33-34 (F. W.).
mother, although distraught by the sight of her son in such a
state, rode in the ambulance with Otto from the airport to
the hospital because she did not want Otto “to be alone
anymore.” C. W. Decl. ¶ 24. Over the next couple
of days at the hospital, Otto's family was advised by
medical personnel about the severity of Otto's brain
damage: he was a “vegetable, ” completely
unresponsive to his family, blind, deaf and without
“any signs of consciousness.” F. W. Decl. ¶
25; H'rg Tr. (Rough) at 33, 36 (F. W.). In addition to
these horrendous signs of his torture, Otto also had “a
large scar on his left foot, ” a wound not present
before he left for North Korea, and his once “perfectly
straight” teeth were “noticeably
misaligned.” F. W. Decl. ¶ 24; H'rg Tr.
(Rough) at 36 (F. W.); id. at 61 (C. W.). Seeing
Otto in that state “was horrible.” H'rg Tr.
(Rough) at 36 (F. W.).
lead neurologist, Dr. Daniel Kanter, concluded Otto's
brain damage most likely resulted from the loss of blood flow
to the brain for a period of five to twenty minutes. Kanter
Decl. ¶ 15. Otto was in an unrecoverable state of
non-responsiveness. Id. ¶ 16. After Otto's
physicians concluded that his condition would never improve,
Otto's family transitioned him to palliative care and
ultimately ceased feeding and breathing assistance.
Id. ¶ 20; F. W. Decl. ¶ 25. Otto died
quickly on June 19, 2017, less than a week after his release
from North Korea. Kanter Decl. ¶ 20.
Otto's death, North Korea has denied any responsibility,
calling his death a mystery and blaming it on
“botulism” and the United States government. F.
W. Decl. ¶ 24; Hatch Decl., Ex. G (KCNA Article titled,
“DPRK FM Spokesman Accuses U.S. of Slandering
Fred and Cindy Warmbier, individually and as personal
representatives of the estate of Otto Warmbier, filed this
lawsuit against North Korea, on April 26, 2018. See
Compl. They served North Korea in accordance with the FSIA,
which provides the procedure for completing service upon a
foreign state or political subdivision of a foreign state.
Decl. Supp. Default, ECF No. 13; see also infra Part
III.B for further discussion. After the plaintiffs sought
entry of default, see Decl. Supp. Default, the Clerk
entered default against North Korea on September 7, 2018,
see Entry of Default, ECF No. 14; see also
Fed. R. Civ. P. 55(a) (“When a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by affidavit
or otherwise, the clerk must enter the party's
default.”). The plaintiffs subsequently filed the
instant motion for default judgment, see Pls.'
Mot. Default J., ECF No. 16 (“Pls.' Mot.”),
supported by eleven declarations, as well as testimony and
exhibits presented at an evidentiary hearing on December 19,
2018, pursuant to Federal Rule of Civil Procedure
55(b)(2). The plaintiffs' motion for default
judgment is now ripe for review.
Federal Rule of Civil Procedure 55(b)(2), a court may
consider entering a default judgment when a party applies for
that relief. See Fed. R. Civ. P. 55(b)(2).
“[S]trong policies favor resolution of disputes on
their merits, ” and therefore, “‘[t]he
default judgment must normally be viewed as available only
when the adversary process has been halted because of an
essentially unresponsive party.'” Jackson v.
Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting
H.F. Livermore Corp. v. Aktiengesellschaft Gebruder
Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)).
its appropriateness in some circumstances, “entry of a
default judgment is not automatic.” Mwani v. bin
Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote
omitted). Thus, the procedural posture of a default does not
relieve a federal court of its “affirmative
obligation” to determine whether it has subject matter
jurisdiction over the action. James Madison Ltd. by Hecht
v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996).
Additionally, “a court should satisfy itself that it
has personal jurisdiction before entering judgment against an
absent defendant.” Mwani, 417 F.3d at 6. The
“plaintiffs retain ‘the burden of proving
personal jurisdiction, [and] they can satisfy that burden
with a prima facie showing.'” Id.
(quoting Edmond v. U.S. Postal Serv. Gen. Counsel,
949 F.2d 415, 424 (D.C. Cir. 1991)). In doing so, “they
may rest their argument on their pleadings, bolstered by such
affidavits and other written materials as they can otherwise
obtain.” Id. at 7.
default judgment is sought under the FSIA, a claimant must
“establish his claim or right to relief by evidence
satisfactory to the court.” 28 U.S.C. § 1608(e).
“This provides foreign sovereigns a special protection
akin to that assured the federal government by Fed.R.Civ.P.
55(e), ” which has been renumbered by the 2007
amendment to Rule 55(d). Jerez v. Republic of Cuba,
775 F.3d 419, 423 (D.C. Cir. 2014); see also H.R.
Rep. No. 94-1487, at 26 (1976) (stating that § 1608(e)
establishes “the same requirement applicable to default
judgments against the U.S. Government under rule 55(e), F.R.
Civ. P.”). While the “FSIA leaves it to the court
to determine precisely how much and what kinds of evidence
the plaintiff must provide, requiring only that it be
‘satisfactory to the court, '” courts must be
mindful that Congress enacted Section 1605A, FSIA's
terrorism exception, and Section 1608(e) with the
“aim to prevent state sponsors of terrorism-entities
particularly unlikely to submit to this country's
laws-from escaping liability for their sins.” Han
Kim v. Democratic People's Republic of Korea, 774
F.3d 1044, 1047-48 (D.C. Cir. 2014) (quoting 28 U.S.C. §
this objective in mind, the D.C. Circuit has instructed that
“courts have the authority-indeed, we think, the
obligation-to ‘adjust evidentiary requirements to . . .
differing situations.'” Id. at 1048
(quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C.
Cir. 1981)) (alteration adopted). Courts must draw their
“findings of fact and conclusions of law from
admissible testimony in accordance with the Federal Rules of
Evidence.” Id. at 1049 (quoting Daliberti
v. Republic of Iraq, 146 F.Supp.2d 19, 21 n.1 (D.D.C.
2001)). Uncontroverted factual allegations that are supported
by admissible evidence are taken as true. Roth v. Islamic
Republic of Iran, 78 F.Supp.3d 379, 386 (D.D.C. 2015)
(“Courts may rely on uncontroverted factual allegations
that are supported by affidavits.” (citing Rimkus
v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171
(D.D.C. 2010))); Gates v. Syrian Arab Republic, 580
F.Supp.2d 53, 63 (D.D.C. 2008), aff'd, 646 F.3d
1 (D.C. Cir. 2011) (quoting Estate of Botvin v. Islamic
Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C. 2007));
accord Fed. R. Civ. P. 56(e)(2) (authorizing court
to “consider the fact undisputed for purposes of the
motion” when adverse party “fails to properly
address another party's assertion of fact”).
Section 1608(e), thus, “does not require a court to
step into the shoes of the defaulting party and pursue every
possible evidentiary challenge.” Owens v. Republic
of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017).
“This is part of the risk a sovereign runs when it does
not appear and alert the court to evidentiary
problems.” Id. at 786.
FSIA default proceeding, a district court can find that the
evidence presented is satisfactory “when the plaintiff
shows ‘her claim has some factual basis, '. . .
even if she might not have prevailed in a contested
proceeding.” Id. at 785 (citations omitted).
“This lenient standard is particularly appropriate for
a FSIA terrorism case, for which firsthand evidence and
eyewitness testimony is difficult or impossible to obtain
from an absent and likely hostile sovereign.”
Id. Thus, courts are accorded “an unusual
degree of discretion over evidentiary rulings in a FSIA case
against a defaulting state sponsor of terrorism.”
Id. This “broad discretion extends to the
admission of expert testimony, which, even in the ordinary
case, ‘does not constitute an abuse of discretion
merely because the factual bases for an expert's opinion
are weak.'” Id. (quoting Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir.
1993)). Indeed, “[t]he testimony of expert witnesses is
of crucial importance in terrorism cases . . . because
firsthand evidence of terrorist activities is difficult, if
not impossible, to obtain, ” “[v]ictims of
terrorist attacks, if not dead, are often incapacitated and
unable to testify about their experiences, ” and
“[p]erpetrators of terrorism typically lie beyond the
reach of the courts and go to great lengths to avoid
detection.” Id. at 787 (citations omitted).
“Eyewitnesses in a state that sponsors terrorism are
similarly difficult to locate and may be unwilling to testify
for fear of retaliation, ” and “[t]he sovereigns
themselves often fail to appear and to participate in
discovery.” Id. Accordingly, “[w]ith a
dearth of firsthand evidence, reliance upon secondary
materials and the opinions of experts is often critical in
order to establish the factual basis of a claim under the
FSIA terrorism exception.” Id.
FSIA case, “[a] default judgment may be entered when
(1) the Court has subject matter jurisdiction over the
claims, (2) personal jurisdiction is properly exercised over
the defendants, (3) the plaintiffs have presented
satisfactory evidence to establish their claims against the
defendants, and (4) the plaintiffs have satisfactorily proven
that they are entitled to the monetary damages they
seek.” Braun v. Islamic Republic of Iran, 228
F.Supp.3d 64, 75 (D.D.C. 2017); accord Akins v. Islamic
Republic of Iran, 332 F.Supp.3d 1, 32 (D.D.C. 2018).
Each of these requirements is addressed seriatim