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Barry v. Islamic Republic of Iran

United States District Court, District of Columbia

September 4, 2019

KEVIN BARRY, et al. Plaintiffs,




         On 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 Plaintiffs.


         A. Factual History[1]

         This 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”).[2]

         The 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.

         When 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.

         The 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.

         All 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 all Plaintiffs.


         A. Default Judgment

         Federal 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).

         Although 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.

         B. Evidentiary Showing Required by the FSIA

         A court 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. 2006)).

         IV. ANALYSIS

         Applying 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.

         A. Jurisdiction[3]

         Subject 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.

         1. Waiver of Sovereign Immunity

         The 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).

         The relevant exception in this case is the statute's “terrorism exception, ” codified at 28 U.S.C. § 1605A.[4] 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 at 784.

         In 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)).[5]See alsoMohammadi, 782 F.3d at 14; Schertzman Cohen v. Islamic Republic of Iran, No. 17-1214 (JEB), 2019 WL 3037868, at ...

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