United States District Court, District of Columbia
KEVIN BARRY, et al. Plaintiffs,
ISLAMIC REPUBLIC OF IRAN, Defendant.
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART BARRY PLAINTIFFS' MOTION FOR DEFAULT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
September 20, 1984, an explosive-laden van was detonated at
the U.S. Embassy Annex (“Annex”) in East Beirut,
Lebanon, targeting the American servicemembers and embassy
employees stationed at that location. The courts of this
Circuit have contended with the tragic impact of this attack,
which killed fourteen individuals and injured over fifty
individuals, in a number of mass tort lawsuits brought under
the Foreign Sovereign Immunities Act (FSIA). The 1984 Annex
attack continues to resonate before this Court. Among the
individuals serving at the Annex at the time of the bombing
were foreign service officers Kevin Barry, Alan Bigler, John
McKennan, Bernard Woerz, and Jeremy Zeikel; State Department
employee Michael Milroy; and U.S. Marine Corps Corporal
Patrick Ruefle, who seek compensatory, economic, and punitive
damages pursuant to the FSIA. Defendant Iran has not entered
an appearance in the more than three years since the suit was
filed. This Court must now decide whether to enter default
judgment on liability and damages on behalf of these seven
suit stems from the September 20, 1984, terrorist attack on
the U.S. Embassy Annex in East Beirut, Lebanon. On the
morning of the attack, a suicide bomber drove a vehicle
loaded with explosives toward the building. See
Brewer, 664 F.Supp.2d at 47 (citing Wagner, 172
F.Supp.2d at 132). Avoiding the concrete barriers intended to
prevent just such an approach, the driver refused orders to
stop-leading both Lebanese National Guards and British
bodyguards on site to open fire. See Wagner, 172
F.Supp. 2d. at 132. Before the vehicle could reach the
underground garage, thought to be the driver's
destination, the bomb detonated at the front of the Embassy.
See id.; see also Brewer, 664 F.Supp.2d at
47. The bomb, which was estimated to contain “some 1500
kilograms of explosives, demolished the embassy
building.” Wagner, 172 F.Supp.2d at 132. This
explosion killed over ten individuals, including two American
servicemembers, and injured over fifty others. See Estate
of Doe, 808 F.Supp.2d at 8. Among those affected by the
blast were the seven Plaintiffs who originally filed the
instant suit (“Barry Plaintiffs”).
seven Barry Plaintiffs were acting in their official duties
as employees of the U.S. government or active members of the
U.S. Marine Corps at the time of the attack. Pls.' Mot.
Default J. 7, ECF No. 13. Plaintiffs Kevin Barry, Alan
Bigler, John McKennan, Bernard Woerz, and Jeremy Zeikel were
employed as Foreign Service Officers at the Embassy Annex.
Id. at 4; see also Pls.' Mot. Default
J., Attach. A, Declaration of Kevin M. Barry (“Barry
Decl.”) ¶ 6, ECF No. 13-1; id., Attach.
B, Declaration of Alan Bigler (“Bigler Decl.”)
¶ 5, ECF No. 13-2; id., Attach. C, Declaration
of John McKennan (“McKennan Decl.”) ¶ 5, ECF
No. 13-3; id., Attach. F, Declaration of Bernard J.
Woerz (“Woerz Decl.”) ¶ 5, ECF No. 13-6;
id., Attach. G, Declaration of Jeremy S. Zeikel
(“Zeikel Decl.”) ¶ 6, ECF No. 13-7.
Plaintiff Michael Milroy was an employee of the State
Department employed at the Embassy Annex alongside his wife.
Id. at 4; see also id., Attach. D,
Declaration of Michael Milroy (“Milroy Decl.”)
¶ 5, ECF No. 13-4. Plaintiff Ruefle was serving in the
United States Marine Corps and assigned to guard the Embassy
Annex. Id. at 4; see also id., Attach. E,
Declaration of Patrick Ruefle (“Ruefle Decl.”)
¶ 6, ECF No. 13-5.
the bomb detonated, the Barry Plaintiffs were positioned at
locations throughout the Annex. Four of the men were located
on the second floor of the building. See Pls.'
Mot. Default J. 5. Mr. Barry and Mr. McKennan were working
together in an office. Id.; Barry Decl. ¶ 8;
McKennan Decl. ¶ 6. The men were “propelled out of
their chairs, ” Pls.' Mot. Default J. 5, by the
force of the explosion, and Mr. Barry was knocked
unconscious, Barry Decl. ¶ 9. Both individuals required
immediate medical attention and ongoing medical care to
redress their physical injuries as well as lingering
psychological effects. See Pls.' Mot. Default J.
5; Barry Decl. ¶¶ 17-19; McKennan Decl.
¶¶ 14-17. Another two of the men, Mr. Woerz and Mr.
Milroy, were conferring in Mr. Woerz's office on the
second floor of the Annex when they heard shots fired. Woerz
Decl. ¶¶ 9-11; Milroy Decl. ¶ 6. Shortly after
the gunfire concluded, the bomb exploded. Woerz Decl. ¶
11. Mr. Woerz was “blown out of [his] chair” and
knocked unconscious. Id. He required treatment at
the local hospital, id. ¶¶ 12-13,
subsequent evacuation to the Israeli military hospital in Tel
Aviv, and, upon his return to the U.S., ongoing medical
attention for physical and psychological injuries.
Id. ¶¶ 17-20. Mr. Milroy was injured by
the same blast, which knocked him to the ground. Milroy Decl.
¶ 6. His injuries required immediate medical treatment,
evacuation to the Tel Aviv military hospital, and ongoing
medical care for physical and psychological injuries upon his
subsequent return to the U.S. Id. ¶¶ 7-9.
remaining three Plaintiffs were at other locations in the
Annex at the time of the explosion. Mr. Bigler and Mr. Zeikel
were meeting in the Annex's cafeteria when the bomb
denotated. Pls.' Mot. Default J. 5; Bigler Decl. ¶
6; Zeikel Decl. ¶ 7. Mr. Bigler was injured so severely
that he was initially presumed dead, placed in a body bag,
and loaded onto a truck to be taken to the morgue. Bigler
Decl. ¶ 7. His physical recovery required extensive
medical treatment and surgeries over the following year,
id., and his physical and psychological suffering
were ongoing, id. ¶¶ 12-14. Mr. Zeikel was
initially knocked unconscious by the blast and, upon
awakening, discovered the bodies of friends and colleagues.
Pl.'s Mot. Default J. 5; Ziekel Decl. ¶¶ 7, 9.
He received medical attention at the scene, id.
¶ 12, was diagnosed with “severe shock” and
ordered to depart Lebanon, id. ¶ 14, and
thereafter continued to suffer physical and psychological
symptoms, id. ¶¶ 16-19. Mr. Ruefle, a U.S.
Marine on guard duty at the Annex, was on roving patrol on
the morning of the attack. Ruefle Decl. ¶¶ 6-7. He
was patrolling in the cafeteria when the bomb detonated, in
the same room as Mr. Bigler and Mr. Zeikel. Id.
¶ 7. After the explosion, he immediately felt that his
ears had been injured but went back into the building and
assisted Mr. Bigler as well as other victims. Id.
¶ 8. He continued to suffer residual physical and
psychological injuries thereafter, id. ¶¶
9-10, and ultimately made the difficult determination that
“what happened in Beirut left [him] scared and scarred
inside, ” such that he “knew [he] could not
continue to serve, ” id. ¶ 12.
seven of the Plaintiffs, in short, were directly affected by
the tragic events of September 20, 1984, and brought suit
against Defendant Iran seeking compensatory, economic, and
punitive damages. The Barry Plaintiffs raise both a private
right of action under the FSIA and a state law claim for
intentional infliction of emotional distress. Iran has not
entered an appearance in this action since its commencement
over three years ago. The question now before the Court is
whether it is appropriate to enter default judgment regarding
liability and damages, as a matter of law, based on the Barry
Plaintiffs' claims of mental anguish and emotional pain
and suffering. For the reasons set forth below, the Court
will enter default judgment and award compensatory damages
for each of the seven Barry Plaintiffs, but deny economic
damages for Plaintiff Ruefle and deny punitive damages for
Rule of Civil Procedure 55 sets forth a two-step process for
a party seeking default judgment: entry of default, followed
by entry of default judgment. Fed.R.Civ.P. 55; see also
Int'l Painters & Allied Trades Indust. Pension Fund
v. Rose City Class Co., Inc., 729 F.Supp.2d 336, 338 n.3
(D.D.C. 2010) (citing Fed.R.Civ.P. 55; Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); Meehan
v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). First, after
a defendant has failed to plead or otherwise defend against
an action, the plaintiff may request that the clerk of the
court enter default against that defendant. See Fed.
R. Civ. P. 55(a). Second, following the clerk's entry of
default, and where the plaintiff's claim is not for a sum
certain, Rule 55(b)(2) permits the plaintiff to apply to the
court for entry of default judgment. Id. 55(b)(2).
By providing for a two-step process, Rule 55 provides the
defendant an opportunity to move the court to set aside the
default before the court enters default judgment.
Id. 55(b), (c).
entry of default judgment may at times be appropriate, it is
“not automatic.” Braun v. Islamic Republic of
Iran, 228 F.Supp.3d 64, 74 (D.D.C. 2017) (footnote
omitted) (quoting Mwani v. bin Laden, 417 F.3d 1, 6
(D.C. Cir. 2005)). Because “strong policies favor the
resolution of disputes on their merits[, ]” the court
“normally” must view the default judgment 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) (per
curiam)). Even if a defendant appears “essentially
unresponsive, ” id., the court still has an
“affirmative obligation” to ensure that it has
subject matter jurisdiction over the suit, James Madison
Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir.
1996). The court must also “satisfy itself that it has
personal jurisdiction before entering judgment against an
absent defendant.” Mwani, 417 F.3d at 6-7.
“Although the plaintiffs retain ‘the burden of
proving personal jurisdiction, ” “[i]n the
absence of an evidentiary hearing, ” plaintiffs can
“satisfy that burden with a prima facie
showing.” Braun, 228 F.Supp.3d at 74 (internal
quotation marks omitted) (quoting Mwani, 417 F.3d at
6-7). To make the required prima facie showing, plaintiffs
may rely on “their pleadings, bolstered by such
affidavits and other written materials as they can otherwise
obtain.” Mwani, 417 F.3d at 6-7.
Evidentiary Showing Required by the FSIA
addressing an FSIA claim can enter default judgment against a
foreign state only if “the claimant[s] establish
[their] right to relief by evidence satisfactory to the
court.” 28 U.S.C. § 1608(e); see also Roeder
v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.
Cir. 2003) (“The court . . . has an obligation to
satisfy itself that plaintiffs have established a right to
relief.”). This statutory standard mirrors the default
judgment standard of Federal Rule of Civil Procedure 55(d).
See Hamen v. Islamic Republic of Iran, No. 16-1394
(RDM), 2019 WL 3753800, at *1 (D.D.C. Aug. 7, 2019) (citing
Owens v. Republic of Sudan, 864 F.3d 781, 785 (D.C.
Cir. 2017), cert granted sub. nom. Opati v. Republic of
Sudan, 1395 S.Ct. 2771 (2019); Hill v. Republic of
Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003)). The
“FSIA leaves it to the court to determine precisely how
much and what kinds of evidence  plaintiff[s] must provide,
requiring only that it be ‘satisfactory to the
court.'” Han Kim v. Democratic People's
Republic of Korea, 774 F.3d 1044, 1047-48 (D.C. Cir.
2014) (quoting 28 U.S.C. § 1608(e)). A court making a
determination about the evidence required must bear in mind
Congress's statutory purpose in enacting a private right
of action in section 1605A of the FSIA: to
“compensate the victims of terrorism [and thereby]
punish foreign states who have committed or sponsored such
acts and deter them from doing so in the future.”
Id. at 1048 (quoting Price v. Socialist
People's Libyan Arab Jamahiriya, 294 F.3d 82, 88-89
(D.C. Cir. 2002)). In parsing the evidence that plaintiffs
offer, “[c]ourts may rely on uncontroverted factual
allegations that are supported by affidavits.” Roth
v. Islamic Republic of Iran, 78 F.Supp.3d 379, 386
(D.D.C. 2015) (citing Rimkus, 750 F.Supp.2d at 171).
“Uncontroverted factual allegations that are supported
by admissible evidence are taken as true.”
Braun, 228 F.Supp.3d at 74-75 (citing Roth,
78 F.Supp.3d at 386; Gates v. Syrian Arab Republic,
580 F.Supp.2d 53, 56 (D.D.C. 2008), aff'd, 646
F.3d 1 (D.C. Cir. 2011)); see also Estate of Botvin ex
rel. Ellis v. Islamic Republic of Iran, 510 F.Supp.2d
101, 103 (D.D.C. 2007) (citing Greenbaum v. Islamic
Republic of Iran, 451 F.Supp.2d 90, 94-95 (D.D.C.
the legal standards set forth above, in order to enter
default judgment in this FSIA suit, the Court must, as a
threshold matter, first ensure that it has subject matter
jurisdiction over the Barry Plaintiffs' claims and,
second, confirm that it may properly exercise personal
jurisdiction over the Defendant. Then, if it finds that
jurisdiction is proper, the Court must decide liability and
damages. For the following reasons, the Court finds that it
has original jurisdiction over this suit pursuant to the
FSIA, that it has personal jurisdiction over Defendant Iran,
and that the Barry Plaintiffs have established liability and
a right to relief in the form of compensatory damages.
to an adequate showing by the Barry Plaintiffs, the FSIA both
waives Defendant's sovereign immunity and grants this
Court subject matter jurisdiction over this suit. The FSIA
also separately provides procedural requirements to establish
personal jurisdiction. For the reasons set forth below, the
Court concludes that it has jurisdiction here.
Waiver of Sovereign Immunity
Defendant in this suit is the Islamic Republic of Iran, a
foreign state. The statute under which Plaintiffs bring suit,
the Foreign Sovereign Immunities Act, 28 U.S.C. § 1604,
is the “sole basis for obtaining jurisdiction over a
foreign state in our courts.” Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
Under the FSIA, “a foreign state, including its
instrumentalities, is immune from suit in state or federal
court unless the case falls within an express statutory
exception.” Hamen, 2019 WL 3753800, at *9
(citing Kilburn v. Socialist People's Libyan Arab
Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004));
see also Mohammadi v. Islamic Republic of Iran, 782
F.3d 9, 13 (D.C. Cir. 2015). A defendant's failure to
appear does not waive the immunity defense, see Verlinden
B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983),
and “a district court considering a claim against a
foreign state must decide whether an exception to immunity
applies” even if the defendant foreign state never
enters an appearance, Worley v. Islamic Republic of
Iran, 75 F.Supp.3d 311, 323 (D.D.C. 2014).
relevant exception in this case is the statute's
“terrorism exception, ” codified at 28 U.S.C.
§ 1605A. See Bettis, 315 F.3d at 329. The
terrorism exception provides that a foreign state is not
immune in “any case” in which “money
damages are sought against 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. The FSIA “plaintiff
bears [the] initial burden of production to show an exception
to immunity, such as § 1605A, applies, ”
whereupon, if the defendant fails to appear,
“jurisdiction attaches.” Owens, 864 F.3d
addition, the terrorism exception applies only if two
prerequisites are met: (1) the foreign state was designated
as a “state sponsor of terrorism at the time of the
act, '” and “remains so designated when the
claim is filed, ” 28 U.S.C. § 1605A(a)(2)(A)(i)(1)
and (2) the “claimant or victim was” a
“national of the United States, ” “a member
of the armed forces[, ]” or “otherwise an
employee of the Government of the United States . . . acting
within the scope of the employee's employment” at
the time of the act, 28 U.S.C. §
1605A(a)(2)(A)(ii)).See alsoMohammadi, 782
F.3d at 14; Schertzman Cohen v. Islamic Republic of
Iran, No. 17-1214 (JEB), 2019 WL 3037868, at ...