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Cohen v. Islamic Republic of Iran

United States District Court, District of Columbia

July 11, 2019

ILANA SCHERTZMAN COHEN, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         Almost eighteen years ago, a terrorist attack on a Jerusalem bus killed two teenage children and wounded scores more. Ten plaintiffs - injured victims of that attack and their families - now come before this Court seeking recompense for their physical and psychological injuries. Specifically, Plaintiffs seek to hold the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps liable for damages under the terrorism exception to the Foreign Sovereign Immunities Act. As both Defendants failed to appear, default was entered last year. It now falls to the Court to determine whether to award default judgment and, if so, what damages are appropriate.

         Finding the link between Defendants and the gunman plain, the first task is easy. Determining a fair amount of damages, conversely, requires a difficult weighing of relative injuries. The Court ultimately holds that individual sums of $400, 000 to $2, 500, 000 are appropriate, yielding a total of $10, 050, 000.

         I. Background

         On the afternoon of November 4, 2001, a Palestinian gunman opened fire on an Israeli bus traveling through the French Hill neighborhood of Jerusalem. See ECF No. 21 (Declaration of D r. Harel Chorev), ¶ 24. Two passengers, 14-year-old Menashe Regev and 16-year-old Shoshana Ben Yishai, were killed; around 45 others were injured. Id. Shortly thereafter, the Palestinian Islamic Jihad (PIJ) claimed official responsibility for the attack. Id., ¶ 25.

         The ten Plaintiffs in this case are dual U.S.-Israeli citizens from the Schertzman and Miller families. The seven Schertzman Plaintiffs consist of Ilana Schertzman Cohen - who was aboard the bus and injured in the attack - and six of her immediate family members who were not present. The three Miller Plaintiffs are Myriam Miller and her two children, all of whom were passengers. As detailed below, Ilana was hit by shrapnel and the three Millers were struck by glass and thrown around the bus. One of the Miller children, Chana Aidel, later married Schertzman Plaintiff Yehuda Schertzman; the Court refers to two distinct families only for descriptive clarity. In addition, for ease of distinction and with no disrespect intended, the Court often refers to Plaintiffs by their first names.

         Plaintiffs filed suit against Iran and the IRGC on June 20, 2017. See ECF No. 1 (Complaint), ¶ 1. The Clerk of the Court certified that translated copies of the summons and Complaint were sent by DHL to both Defendants, see ECF No. 8 (Certificate of Mailing), but both refused delivery and returned the summons unexecuted. See ECF Nos. 10 (Iran Summons Return) and 11 (IRGC Summons Return). Undeterred, the Clerk transmitted the service documents to the U.S. State Department on February 5, 2018, see ECF No. 13 (Certificate of Mailing to State), which forwarded them to Iran's Ministry of Foreign Affairs through the Swiss Embassy in Tehran. See ECF No. 15 (Service Affidavit). Service was thereby effective under 28 U.S.C. § 1608(c)(1). True to form, both Defendants failed to answer the Complaint. As a result, Plaintiffs on June 12, 2018, requested an entry of default. See ECF No. 16 (Affidavit for Default). The Clerk did so on June 28. See ECF No. 17.

         Plaintiffs then moved for default judgment. See ECF No. 18. This Court held an evidentiary hearing on June 4, 2019, where it heard testimony from all Plaintiffs, as well as from experts Dr. Harel Chorev and Dr. Patrick L. Clawson. See June 4, 2019, Minute Entry. Having carefully weighed Plaintiffs' written statements and testimony, the Court now decides both liability and damages.

         II. Legal Standard

         Foreign states are generally immune from suit in federal court, subject to exceptions codified in the Foreign Sovereign Immunities Act. See 28 U.S.C. § 1604; see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (“[T]he FSIA [is] the sole basis for obtaining jurisdiction over a foreign state in federal court.”). Relevant here is § 1605A, the so-called “terrorism exception” to the FSIA. See Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 352 (D.C. Cir. 2018). This section provides federal courts with jurisdiction over suits where plaintiffs seek money damages from a foreign state for “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). It also creates a cause of action for “national[s] of the United States” to sue foreign states that are designated by the U.S. government as sponsors of terrorism and perform or materially support the acts described in 28 U.S.C. § 1605A(a)(1). Id., § 1605A(c). The statute specifies that, “[i]n any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages.” Id.; accord Fraenkel, 892 F.3d at 353.

         To obtain a default judgment in such an action, plaintiffs must establish their claims “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Plaintiffs who are successful may then recover damages by showing “that the projected consequences are reasonably certain (i.e., more likely than not) to occur, and [proving] the amount of damages by a reasonable estimate.” Fraenkel, 892 F.3d at 353 (quoting Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003)). While these requirements create “some protection against an unfounded default judgment, ” plaintiffs need not produce “more or different evidence than [a court] would ordinarily receive; indeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required.” Id (citation omitted).

         III. Analysis

         The Court's analysis proceeds in three parts. It begins by clearing some jurisdictional underbrush, then evaluates Defendants' liability, and finishes with a determination of appropriate damage awards.

         A. Jurisdiction

         The FSIA both gives this Court subject-matter jurisdiction and waives Defendants' sovereign immunity, subject to conditions Plaintiffs have met. Defendants also have been properly served under 28 U.S.C. § 1608(a). The Court, accordingly, is satisfied that it has jurisdiction over the suit.

         1. Subject-Matter Jurisdiction

         The state-sponsored-terrorism exception to the FSIA provides federal courts with subject-matter jurisdiction over suits against a foreign state only where (1) “money damages are sought” (2) “against a foreign state for” (3) “personal injury or death that” (4) “was caused” (5) “by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1); see also Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44, 50-51 (D.D.C. 2012); Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 32 (D.D.C. 2012).

         All five conditions are met here. First, Plaintiffs seek only money damages. See Compl. at 18. Second, Iran and the IRGC qualify as foreign states. Courts in this district have held on multiple occasions that the IRGC is part of the Iranian government, and this Court agrees. See Ben-Rafael v. Islamic Republic of Iran, 718 F.Supp.2d 25, 32 (D.D.C. 2010) (“All of the cases that have actually discussed the issue have found the IRGC to be part of the Iranian government, not an agency or instrumentality thereof.”); Pl. Hrg. Exh. 14 (Declaration of Dr. Patrick L. Clawson), ¶¶ 23-25. Third, Plaintiffs allege personal injuries including physical harm and familial mental anguish. See Compl., ¶¶ 25-68.

         As to the fourth element, Plaintiffs have met the causation showing required by the FSIA - namely, that Defendants' provision of material support caused their injuries. The Act requires only that Plaintiffs show “some reasonable connection between the act or omission of the defendant and the damages [that] the plaintiff has suffered.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 66 (D.D.C. 2010) (citation omitted). This they have done. As discussed in detail below, Dr. Chorev testified that the PIJ carried out the attack that injured Plaintiffs, and D r. Clawson testified that Iran and the IRGC provided substantial material support to the PIJ during the relevant period. See Chorev Decl., ¶ 38; Clawson Decl., ¶ 58. Courts in this district, moreover, have repeatedly noted Iran's support for the PIJ during and around this time. See, e.g., Wultz, 864 F.Supp.2d at 30 (describing Iranian funding for PIJ from 1990s through mid-2000s); Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 16 (D.D.C. 2009) (stating scholarly consensus is that PIJ was “heavily dependent” on Iranian support through turn of this century). The Court thus finds a reasonable connection between Defendants' actions and the damages Plaintiffs suffered.

         Fifth and finally, the attack constituted an “extrajudicial killing” within the meaning of the Act. Not only were two teenagers killed on the bus, but this district's prior rulings hold that the FSIA terrorism exception encompasses attempted extrajudicial killings, which clearly occurred here. See, e.g., Gill v. Islamic Republic of Iran, 249 F.Supp.3d 88, 99 (D.D.C. 2017); Cohen v. Islamic Republic of Iran, 238 F.Supp.3d ...


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