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Allan v. Islamic Republic of Iran

United States District Court, District of Columbia

March 23, 2019

ROBERT C. ALLAN, et al. Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant.

          MEMORANDUM OPINION [Dkt. ## 27, 55]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE.

         Plaintiffs are survivors of the terrorist hijacking of TWA Flight 847 from Athens, Greece on June 14, 1985, as well as immediate family members and estate representatives. Plaintiffs seek money damages against Iran for injuries and trauma caused by Iran's provision of material support to the hijackers pursuant to 28 U.S.C. § 1605 A, the terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"). Having considered all of the record evidence, I find that plaintiffs have established grounds for default. I therefore, for the following reasons, GRANT plaintiffs' motion for default on liability, see Plaintiffs' Motion for Default Judgment on Liability ("Pis.' Mot. on Liability") [Dkt. # 27], and also GRANT plaintiffs' motion for relief totaling $353 million dollars, consistent with the findings of the appointed Special Master as to damages. See Plaintiffs'Motion for Default Judgment on Damages ("Pis.' Mot. on Damages") [Dkt. #55].

         BACKGROUND

         On June 14, 1985, two Hezbollah hijackers boarded TWA Flight 847 leaving Athens, Greece headed for Rome, Italy. Amended Complaint ("Compl.") [Dkt. # 11] ¶ 18. There were 143 passengers and 8 crewmembers on board at the time, 69 of whom are passenger plaintiffs in this case. Id. Shortly after takeoff, the two hijackers ran up the aisle towards the cockpit waving guns and hand grenades, shouting: "Americans come to die!" Id. ¶ 19; see also Pis.' Mot. on Liability at 4-5 (citing evidence relied on in Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 80 (D.D.C. 2002)).[1] They held the three pilots at gunpoint and ordered them to fly to Iran or Algeria. Compl. ¶ 20; see also Pis.' Mot. on Liability, Ex. 2 (Stethem Transcript, Testimony of Christian Zimmerman) ("Zimmerman Testimony")), at 123:14-124:19. When informed that the plane did not have enough fuel to fly to either location, the hijackers instructed the pilots to land in Beirut, Lebanon. Compl. ¶20.

         What ensued was dramatic and terrifying. The hijackers forced some passengers into the First Class cabin and beat them repeatedly. Compl. ¶ 21; Pis.' Mot. on Liability at 5. They began to single out passengers who they suspected of being U.S. Military or Jewish. Compl. ¶ 16, 26; Pis.' Mot. on Liability, Ex. 2 (Stethem Transcript, Testimony of Clinton Suggs) ("Suggs Testimony")), at 87:1-90:23. They interrogated passengers about their religions. Id. ¶ 16. All seated passengers were forced to sit in a crash-landing position for hours at a time, and were forbidden from going to the bathroom. Id. ¶ 21. The terrorists landed the plane in Beirut for the first time three hours later on June 14th. Pis.' Mot. on Liability at 6; see also id., Ex. 28 (Zimmerman Timeline) at 124. They demanded the release of nearly 800 prisoners in Israel and Kuwait. Compl. ¶¶ 22-24. In exchange for fuel, they released several women and children. Pis.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 124.

         The hijackers then ordered the pilots to fly the plane to Algiers, Algeria. Compl. ¶ 23. After refueling again, they ordered the pilots to return to Beirut. Id. ¶ 23-24. The airport authorities ordered the plane not to land, and placed obstacles on the runway to enforce the order. Id. ¶ 24. Despite the dangerous conditions, the pilots were able to safely land on the runway. Id. On the ground in Beirut for a second time, the hijackers demanded that additional terrorists be allowed to board. Id. ¶ 25. They executed one passenger-a navy diver named Robert Stethem-and tossed his body onto the tarmac. Id. Later that day, ten additional militiamen from the Amal group and one Hezbollah spokesman boarded the plane. Id; Pis.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 126. The plane then headed back to Algeria for a second time. Id. ¶ 27. During this period, the hijackers began ramping up their harassment and abuse-threatening passengers with execution, beating them, and robbing them of all their belongings. Id. ¶ 26-27; Pis.' Mot. on Liability, Ex. 4 (Pis.' Decls.) at 6-7, 84, 441, 452. On the ground in Algeria, the terrorists released another swatch of passengers in exchange for an additional hijacker being allowed to board. Compl. ¶ 28.

         On the morning of June 16, the hijackers ordered the plane back to Beirut for a third time. Pis.' Mot. on Liability, Ex. 28 (Zimmerman Timeline) at 129. At that point, the passengers still on board had endured 36 hours on the aircraft with inadequate food, water, access to bathroom facilities, or sleep. Id. The plane sat on the tarmac until the next morning, when 23 men were forced off the plane at gunpoint and taken into Beirut. Id. at 130; Compl. ¶¶ 28-29. For the next two weeks, the men were beaten, threatened, given inadequate food and water, and forced to watch propaganda. Compl. ¶ 28. The terrorists finally released the Beirut hostages to Syrian military personnel on June 30, 1985. Id. ¶ 29. The hijackers were indicted for their roles in the hijacking, but never taken into United States custody. See Pis.' Mot. on Liability at 10. They remain on the FBI's most wanted list. Id. at 11 n. 11.

         Plaintiffs filed this action on February 24, 2017, seeking default judgment on liability and damages. On May 23, 2017, plaintiffs served Iran via diplomatic channels. Iran never accepted service, so the Clerk entered default on July 26, 2017. On February 2, 2018, plaintiffs moved to appoint a special master to review their claims for damages. See Motion for Order Appointing a Special Master for Damages [Dkt. # 24]. I appointed Special Master Alan Balaran to make findings on plaintiffs motion for default as to damages. See 2/12/18 Order [Dkt. # 25]. After reviewing testimonial and documentary evidence, he issued a Report and Recommendation awarding compensatory damages on August 28, 2018. See Special Master Report Filed Under Seal [Dkt. # 54].

         ANALYSIS

         I. Iran is Liable Under the FSIA's Terrorism Exception-28 U.S.C. § 1605A

         Plaintiffs argue that Iran should be held liable under the FSIA's terrorism exception, 28 U.S.C. § 1605A, for providing material support to the terrorist groups that perpetrated the 1985 hijacking incident aboard TWA Flight 847. I begin by noting that this is not the first time the events at issue have been the subject of suit under the FSIA. In 2002, Judge Thomas Penfield Jackson granted default judgment in two consolidated cases involving the same 1985 hijacking incident under an older provision of the FSIA, § 1605(a)(7). See Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 85 (D.D.C. 2002). The two consolidated cases before Judge Jackson included the individual who was killed on the plane, Robert Stethem, as well as his surviving family members.[2] Keeping in mind that "the FSIA does not require this Court to relitigate issues that have already been settled," I find that there are grounds to take judicial notice of these "related proceedings and records in cases before the same court." Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 54 (D.D.C. 2009) (quoting Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp. 2d. 229, 263 (D.D.C. 2006) (internal quotation marks omitted)); see also Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 60 (D.D.C. 2010) ("[T]he Court may review evidence considered in an opinion that is judicially noticed, without necessitating the re-presentment of such evidence.").

         I will therefore grant plaintiffs request to take judicial notice of Judge Jackson's findings of fact, Ex. 1, and to consider the expert and witness testimony, Ex. 2, and relevant documentary evidence, Ex. 11-28, presented in Stethem. Pis.' Mot. on Liability at 34-35. I will also consider the updated expert report submitted by Dr. Clawson, the expert who previously submitted testimony on which Judge Jackson relied. Ex. 3; Stethem, 201 F.Supp.2d at 92.[3]

         To find default judgment for the plaintiffs, I must first determine whether I have jurisdiction under the FSIA. Section §1605A(a)(1) imposes three requirements to establish subject matter jurisdiction: 1) that the claims be against a foreign state that was designated a state sponsor of terrorism at the time the acts occurred, § 1605A(a)(2)(A)(i); 2) that plaintiffs be U.S. nationals at the time the acts occurred, § 1605A(a)(2)(A)(ii); and 3) that plaintiffs be seeking money damages for personal injury or death caused by the foreign state's acts of torture, extrajudicial killing, aircraft sabotage, and hostage taking, or by the foreign state's provision of material support or resources for such acts. § 1605A(a)(1); see also Owens v. Republic of Sudan, 864 F.3d 751, 778 (D.C. Cir. 2017). Having considered the record evidence, I find that plaintiffs satisfy each of these requirements in the instant case.

         A. Iran Was a State Sponsor of Terrorism at the ...


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