United States District Court, District of Columbia
JOHN DOE A-1, et al. Plaintiffs,
DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA Ministry of Foreign Affairs Jungsong-Dong, Central District, Pyongyang, Democratic People's Republic of Korea, Defendant.
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE
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.
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.
plaintiffs in this case comprise 46 surviving crew members of
the Pueblo,  89 of the crew's immediate family
members,  and 36 estates of deceased crew members or
their deceased immediate family members. 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.
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. 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.).
Relevant Findings of Fact
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.
Capture of the USS Pueblo
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.
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,  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.
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.
Death of Duane Hodges
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.
Imprisonment and Torture of the Crew
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.
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.
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.
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.
Additional Injury Sustained by the Crew Members and Their
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.
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.
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.