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Doe v. Democratic People's Republic of Korea

United States District Court, District of Columbia

October 22, 2019

JOHN DOE A-1, et al. Plaintiffs,
v.
DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA Ministry of Foreign Affairs Jungsong-Dong, Central District, Pyongyang, Democratic People's Republic of Korea, Defendant.

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE

         This case arises from the kidnapping, imprisonment, and torture of United States servicemen aboard the USS Pueblo (Pueblo) by agents of the Government of the Democratic People's Republic of Korea (North Korea) in 1968. For almost a year, North Korea held hostage eighty-two crew members; subjected them to beatings, sleep deprivation, interrogations, and unsanitary living conditions; and forced them to facilitate North Korean propaganda. The Pueblo's crew members, their families, and estates of both groups bring this suit. Their action is pursuant to the private cause of action against foreign State Sponsors of Terrorism provided by the Foreign Sovereign Immunities Act (FSIA). See 28 U.S.C. § 1605A. Before the Court is the plaintiffs' Motion for Partial Default Judgment on Liability under Id. § 1608(e), Dkt. 48. For the following reasons, the Court will grant the plaintiffs' motion and hold North Korea liable to all plaintiffs under the state sponsor of terrorism exception to the FSIA.

         I. BACKGROUND

         A. Procedural Background

         1. Massie Litigation

         This case is not the first of its kind. In Massie v. Democratic People's Republic of Korea, five plaintiffs, including the Pueblo's commander, Commander Bucher, sued North Korea under the FSIA's terrorism exception for the capture and torture of the Pueblo's crew. 592 F.Supp.2d 57, 75 (D.D.C. 2008). The Massie plaintiffs alleged assault, battery, false imprisonment, intentional infliction of emotional distress, loss of solatium, and economic damages. Id. After North Korea failed to answer or otherwise respond to the complaint, the Court entered a default judgment and held a two-day damages trial. Id. at 60. Based on the evidence presented, the Court concluded that the plaintiffs were “entitled to the typical array of compensatory damages that may be awarded against tortfeasors” in the plaintiffs' states. Id. at 77. It also awarded damages for the “pain and suffering endured by [the plaintiffs] over the eleven months of their captivity [that] was extensive and shocking” and “likely will continue to endure throughout the rest of their lives.” Id. The factual findings in Massie supply many of the relevant facts here.

         2. This Action

         The plaintiffs in this case comprise 46 surviving crew members of the Pueblo, [1] 89 of the crew's immediate family members, [2] and 36 estates of deceased crew members or their deceased immediate family members.[3] The identities of the former crew members have been masked, and any personal identifying information has been sealed. See generally Am. Compl, Dkt. 14. The plaintiffs seek money damages for torture, hostage taking, assault, battery, false imprisonment, intentional infliction of emotional distress, and loss of solatium under § 1605A(c)'s private right of action for money damages for personal injury caused by state sponsors of terrorism. Am. Compl. ¶ 19.

         North Korea was properly served with a summons and copy of the complaint and a translation of those documents on April 4, 2018. Summons Returned Executed, Dkt. 19.[4] Under 28 U.S.C. § 1608(d), North Korea had sixty days-until June 3, 2018-to respond. After North Korea failed to either appear or respond, the Clerk of the Court entered a default on June 11, 2018. Clerk's Entry of Default, Dkt. 21. The plaintiffs then requested that the Court take judicial notice of the findings in Massie and of the expert testimony about the North Korean regime given in Warmbier v. Democratic People's Republic of Korea, 356 F.Supp.3d 30 (D.D.C. 2018), and moved for a default judgment. Pls.' Mot. for Partial J. Liability 1, Dkt. 49 (Pls.' Mot.).

         B. Relevant Findings of Fact

         The Court's factual findings are drawn from the plaintiffs' numerous affidavits and declarations, the public record, and Judge Kennedy's findings in Massie. A court may take judicial notice of any fact “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). A series of FSIA-related cases will often stem from one terrorist attack, and “[c]ourts in this District have thus frequently taken judicial notice of earlier, related proceedings.” Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010) (citations omitted). The Court cannot “simply adopt previous factual findings without scrutiny.” Worley v. Islamic Republic of Iran, 75 F.Supp.3d 311, 319 (D.D.C. 2014). But it may “rely on the evidence presented in the earlier litigation and make [its] own independent findings of fact based on that evidence.” Opati v. Republic of Sudan, 60 F.Supp.3d 68, 73 (D.D.C. 2014). The Court takes notice of the Massie record and Judge Kennedy's findings of fact because those findings withstand scrutiny and because this action and Massie arose from the same incident: the 1968 capture, imprisonment, and torture of the Pueblo's crew.

         1. Capture of the USS Pueblo

         On January 23, 1968, the Pueblo was carrying eighty-three crew members through international waters 15.5 miles from the North Korean island of Ung-Do. Pls.' Ex. 5 at 1658, Dkt. 34-1; Massie, 592 F.Supp.2d at 60-61. The Pueblo was on a noncombat mission and had orders to stay in international waters, so the U.S. Navy had assessed the Pueblo's deployment risk as “Minimal” and the ship was lightly armed. Pls.' Ex. 12 at 94, Dkt. 34-3; Massie, 592 F.Supp.2d at 61. The Pueblo followed orders and remained in international waters in the Sea of Japan throughout its deployment. Pls.' Ex. 5 at 1658.

         At midday, a North Korean submarine chaser approached the Pueblo and signaled the Pueblo to ask about its nationality. Massie, 592 F.Supp.2d at 61. The Pueblo responded by hoisting the flag signal for “hydrographic work in progress” and displaying an American flag. Pls.' Ex. 7 at 55, Dkt. 34-2. As three North Korean torpedo boats approached “at a high rate of speed, ” the submarine chaser signaled a demand of “Heave to or I will open fire on you.” Pls.' Ex. 7 at 55-57; Massie, 592 F.Supp.2d at 61. The Pueblo checked its location and replied that it was in international waters, [5] but the North Korean ships continued circling the Pueblo and signaled: “Follow in my wake. I have a pilot aboard.” Pls.' Ex. 12 at 123-24; Pls.' Ex. 5 at 1666; Massie 592 F.Supp.2d at 61.

         When a North Korean vessel approached with armed men ready to board the Pueblo, Commander Bucher attempted to maneuver to the open sea before torpedo boats crisscrossed the Pueblo. Pls.' Ex. 7 at 61; Massie, 592 F.Supp.2d at 61. But as the Pueblo sped up, the North Korean ships fired several 57 mm shells and then “raked the Pueblo with machine gun fire.” Pls.' Ex. 7 at 63. At first, the Pueblo complied with the order to follow in the wake of the North Korean submarine chaser. Id. at 66. But when the crew needed more time to destroy classified material, the Pueblo stopped again. Id. The submarine chaser responded immediately with another two “salvos of 57 mm shells.” Id. at 67.

         2. Death of Duane Hodges

         This second wave of North Korean fire mortally wounded Duane Hodges when a shell explosion “virtually sever[ed] [his] right leg.” Id. at 67; Massie, 592 F.Supp.2d at 62. Crew members dragged Hodges and another injured seaman to the mess hall and administered morphine and oxygen. Pls.' Ex. 1, Vol. 1 at 26, Dkt. 32-3. But the Hospital Corpsman who attended to Hodges “did not have adequate equipment, supplies or the surgical skills necessary to treat Hodges's wounds: his leg had been nearly sheared off, his abdomen was torn open, his intestines were spilling out and he was bleeding profusely.” Pls.' Ex. 1, Vol. 1 at 45. Hodges (XXXXX) hummed and sang hymns. Id. at 26. He died approximately 45 minutes after the shell explosion. Id. at 46.

         3. Imprisonment and Torture of the Crew

         The North Koreans seized the Pueblo and after reaching shore shoved the Pueblo's crew past an enraged, anti-American crowd-first into buses and then onto a train headed for a detention center. Massie, 592 F.Supp.2d at 62-63. As a U.S. Navy report recounted, “[a]ll crewmen were treated roughly during the first few hours after capture.” Pls.' Ex. 14 at 4, Dkt. 34-3. The crew members were repeatedly beaten, kicked, spat on, interrogated, accused of being spies, and denied medical attention. Massie, 592 F.Supp.2d at 62-63.

         Upon reaching the detention center, later nicknamed “the Barn, ” and the subsequent detention location, nicknamed “the Farm, ” the brutal treatment continued. Id. at 62-66. Crew members were regularly seen “with red faces, bleeding noses, and busted lips, or holding their side from being punched.” Pls.' Ex. 1, Vol. 1 at 67. In one episode, a crew member was beaten for 19 hours with a two-by-four, had his throat and groin stomped on, and was left unable to stand for nearly a week. Pls.' Ex. 14 at 28-30. The primitive and unsanitary conditions at the Barn and the Farm included bedbug attacks, infrequent bathing, and poor-quality food, water, and medical care that routinely caused dysentery. Pls.' Ex. 1, Vol. 1 at 52, 60, 99. The North Koreans banned the prisoners from speaking to each other or leaving the building for any reason. Pls.' Ex. 1, Vol. 1 at 108; Massie, 592 F.Supp.2d at 64.

         The North Koreans also forced the crew members to facilitate North Korean propaganda, including by writing false letters home to families and politicians, and supplied extreme consequences when the crew resisted. See, e.g., Pls.' Ex. 1, Vol. 1 at 107. In one example, when two crew members refused to participate in a propaganda radio broadcast, the North Koreans threatened to execute them the next morning. Id. at 106. When morning came, the North Koreans took the two crew members to a firing squad but at the last moment called the execution off. Id. The North Koreans repeated this psychological torture the next day. Id. at 106. In another example, the North Koreans took propaganda photos of crew members, who subtly resisted by extending their middle fingers in one photo as part of what they told their captors was a “Hawaiian Good Luck sign.” Id. at 27. After Time Magazine published the photo with an explanation of the photo's true meaning, the embarrassed North Koreans initiated “Hell Week.” Massie, 592 F.Supp.2d at 67-68. During “Hell Week, ” crew members were sometimes beaten to the point of unconsciousness, Pls.' Ex. 1, Vol. 1 at 178; Pls.' Ex. 1, Vol. 2 at 136, Dkt. 32-4, and were forced to hold up chairs in the air for extended periods while being beaten, Massie, 592 F.Supp.2d at 68.

         In mid-December 1968, the beatings stopped, and the prisoners received new clothes and hardboiled eggs, which were meant to break up blood clots caused by the beatings. Massie, 592 F.Supp.2d at 68. Though the U.S. and North Korea had reached an agreement for the crew's release after eleven months in captivity, see Pls.' Ex. 5 at 1628, the crew was threatened one last time: As the men crossed the “Bridge of No. Return” one-by-one, the North Koreans told them that if they said anything as they crossed the bridge, the remaining hostages would be shot. Massie, 592 F.Supp.2d at 69.

         4. Additional Injury Sustained by the Crew Members and Their Families

         The eleven months in captivity permanently scarred the crew members-literally for some, figuratively for all. Men who once had been outgoing fathers, husbands, and friends became angry, reclusive, or withdrawn. See, e.g., Pls.' Ex. 1, Vol. 5 at 4, Dkt. 32-7; Id. at 32; Id. at 55. Some remained “captive emotionally and psychologically long after” being physically freed. Id. at 5. Many suffer from post-traumatic stress disorder and a variety of muscular, spine, and joint ailments. See, e.g., Pls.' Ex. 1, Vol. 1 at 60.

         The crew's families also suffered. As their loved ones endured prolonged captivity, family members “lived in constant and torturous fear” and “suffered severe distress at the thought of never seeing [them] again.” Pls.' Ex. 1, Vol. 5 at 61; see also Id. at 68. After the crewmen returned, their family members' distress often continued with “recurring nightmares, ” “separation anxiety, ” and a belief of being “robbed of [a] childhood” due to the difficulty of building a relationship with a frequently angry father. Id. at 32, 54, 74.

         II. LEGAL STANDARDS

         Before entering default judgment, the Court must determine whether the plaintiffs have established their claims by satisfactory evidence. To recover under the FSIA's private cause of action against foreign state sponsors of terrorism, the plaintiffs must establish subject matter jurisdiction, personal jurisdiction, standing, and liability.

         A. ...


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