NETHANIAL CHAIM BLUTH, et al., v. ISLAMIC REPUBLIC OF IRAN, et al.
Civil Action No. 12-250 (GK)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
On February 13, 2012, ten members of the Bluth family (“Plaintiffs” or “the Bluths“) filed a Complaint alleging that the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and the Iranian Revolutionary Guard Corps (“Iranian Defendants“) are liable under the Foreign Sovereign Immunities Act (“FSIA“),
On February 24, 2015, the Clerk of the Court declared the Iranian Defendants to be in default because they had never
I. FINDINGS OF FACT
A. Background
1. Hamas
Hamas is a Palestinian Sunni Islamist group that formed in 1987 as a derivative of the Palestinian branch of the Egypt-based Muslim Brotherhood. Declaration of Dr. Matthew Levitt1 (“Levitt Decl.“) at 17 [Dkt. No. 56-2]. Known as Harakat al-Muqawamah al-Islamiyya in Arabic, (translated as “The Islamic Resistance Movement“) (“Am. Compl.“) [Dkt. No. 5 ¶ 24], Hamas aims to destroy Israel and create an Islamic Palestinian state in its place. Levitt
Hamas also fights against secularization and Westernization of Arab society and aims to be recognized internationally as the only representative entity of the Palestinian people. Levitt Decl. at 17. Hamas engages in social welfare and political activity, as well as guerilla and terrorist attacks to achieve its goals. Id. Hamas emphasizes violent jihad,3 which is a “religiously sanctioned resistance against perceived enemies of Islam.” Id. at 17-18.
Within Hamas, the Izz a-Din al-Qassam Brigades form the military wing that carries out acts of violence against both military and civilian targets, including suicide as well as other types of bombings, use of Qassam rockets,4 mortar fire, and shootings. Levitt Decl. at 18. In the 2003 Patterns of Global
As of March 2004, Hamas had carried out 425 terrorist attacks since its creation; it had killed approximately 377 people and wounded 2,076. Levitt Decl. at 18; Pls.’ Ex. 15 [Dkt. No. 58-15]. One element of the group‘s strategy is to terrorize and then pressure leaders to give concessions to Hamas to stop the violence. Levitt Decl. at 19. The “social” wing of Hamas indoctrinates, recruits, and supplies funding for the military wing. Am. Compl. ¶ 27.
In 1995, the United States Government designated Hamas as a “Specially Designated Terrorist” entity pursuant to the International Emergency Economic Powers Act. Am. Compl. ¶ 25 (citing
Various press outlets, including the al Qassam website, which is the official English language website of Hamas’ military and terrorist wing‘s “information office,” track Hamas’ acts. Levitt Decl. at 21. Confirmed Hamas attacks include high-population areas such as education centers, cafes and restaurants, command bases, and buses, all of which are bound to injure or kill large groups of people at any given time. Id. at 21-22. Hamas’ pattern of activity meets the criteria for “terrorism,” which is defined as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandеstine agents.”
2. Iran as a State Sponsor of Terrorism
A “state sponsor of terrorism” refers to a country whose government the United States Secretary of State has determined, for purposes of Section 6(j) of the Export Administration Act of 1979, (
Beginning in the early 1990‘s, Iran and Hamas developed a close relationship. Clawson Decl. at 10. Iran was driven by its desire to disrupt the Middle East peace process in the late 1990‘s and relied on terrorist activities to do so, strongly and publicly encouraging such activities from Hamas. Id. The Iranian Revolutionary Guard Corps (“IRGC“) and Iran‘s Ministry of Information and Security (“MOIS“) made terrorism training available to Hamas members as well as other terrorist groups. Id. at 7. Iran has provided financial support as well as tactical training and planning support to Hamas. Id. at 8-10 (citing the Patterns of Global Terrorism annual reports by the U.S. Department of State pursuant to
In 1997, during a televised interview of Hassan Salameh, a Hamas member, it was publicly revealed that Hamas members flew to and trained in Iran and received support from Iran. Clawson Decl. at 10. In 2003, the Israeli Ministry of Foreign Affairs estimated that Iran provided Hamas with approximately $3 million per year. Id. at 11. That same year, estimates of Hamas’ budget ranged
The relationship between Hamas and Iran cooled after 2003, following a vigorous Israeli campaign against Hamas. Clawson Decl. at 11. However, Hamas and Iran re-developed their relationship in 2006 when Hamas gained power in the Palestinian elections and took control of the Gaza strip in 2007. Id. In the years following, the relationship between Hamas and Iran has been continuously recognized in studies prepared by the United States Government and other organizations. Levitt Decl. at 16-17; Clawson Decl. at 11 (citing academic scholarship, U.S. Department of Defense Report, Institute for Peace study, Human Rights Watch Report, and Congressional Research Service work that have traced the existing relationship between Iran and Hamas up until 2014).
3. March 7, 2002 Attack on Atzmona
On Thursday, March 7, 2002, a yeshiva5 in Atzmona, located in the Gaza Strip was attacked. Transcript of Evidentiary Hearing
Following high school graduation, Nethaniel chose to attend the yeshiva in Atzmona before joining the Israeli army to complete Israel‘s mandatory service requirement. Id. at 21-22. Two of Nethaniel‘s brothers had attended the same yeshiva before him. Id. at 24, 72. By the time of the attack, Nethaniel had been studying in Atzmona for half a year. Id. at 61-62. He had recently decided to extend his original year-long stay an additional six months because he enjoyed his studies and the community. Id. at 24-25.
Nethaniel, like the other 120 students, slept, ate, and studied every day at the yeshiva. Id. at 25, 32. Despite being
On the night of March 7, 2002, there were approximately thirty students in Nethaniel‘s classroom. Tr. at 36. Students generally studied late on Thursday nights because they either went home for Sabbath on Fridays or used the day as a personal “free day.” Id. at 34-35. During a lecture at approximately 11:30pm, Nethaniel and the other students heard the sounds of gunfire and grenade explosions. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law in Support of their Motion for Default Judgment (“Statement of Facts“) at 7 [Dkt. No. 59]; Tr. at 41. The rabbi in the classroom instructed a student to turn off the lights and everyone in the classroom remained silent and waited. Tr. at 37.
Nethaniel moved towards the glass door and window to see what was causing the nоise. Id. at 37-38. When Nethaniel looked out, he saw his friend Asher Marcus and a rabbi who was on duty as a guard that evening sitting in a Jeep talking. Id. Upon more explosions and shooting, students began to scream and Bluth saw Asher and the
With Asher on top of him, Nethaniel laid on the floor with his hands on his head, unable to move. Id. at 43. Nethaniel warned his classmates that the attacker was approaching the classroom. Id. at 40. He saw that the attacker was wearing a black vest filled with ammunition and grenades. Id. at 41. A guard driving in a car tried to run over the attacker to stop him, but was unable to, because of the sand surrounding his car. Id. at 45. No one in the classroom was armed the night of the attack, id. at 41, and so each person simply waited and prayed, id. at 43.
Following the shots into Nethaniel‘s classroom, the attacker threw two grenades into the classroom through a window. Id. at 45. The first grenade exploded approximately three meters from Bluth‘s face. Am. Compl. ¶ 64. Nethaniel felt blood going down his face
Israeli soldiers killed the attacker following a twentyminute gun battle. Statement of Facts at 7. At about the time the attacker was killed, ambulances and soldiers arrived at the area and Nethaniel was taken outside. Id.; Tr. at 47. By the end, five people were killed and approximately twenty-three others were injured. Levitt Decl. at 20 (citing news reports and Israel Ministry of Foreign Affairs). Of the five deaths, two were Nethaniel‘s close friends, Asher and Eran Picard. Statement of Facts at 7. Nethaniel saw the bodies of his two dead friends, as well as other injured friends laid out on the grass when he was brought outside. Tr. at 47.
The National Consortium for the Study of Terrorism and Responses to Terrorism (“START“) at the University of Maryland identified the attacker as Mohammad Farahat.7 Levitt Decl. at 20 (citing Incident Summary, 03/07/2002, Global Terrorism Database,
As the following suggests, Farahat had deep ties with Hamas. Levitt Decl. at 20. When Farahat was seven years old, a former head of the Hamas military wing took refuge from the authorities in Farahat‘s home for fourteen months and was ultimately killed there. Id. (citing An Interview with the Mother of a Suicide Bomber). A video of Farahat‘s mother posted on the al Qassam website prior to the attack captured how proud she was to sacrifice her son Farahat to Allah. Pls.’ Ex. 27 [Dkt. No. 58-27].
Farahat kept in contact with his mother after he arrived in Atzmona and Hamas operatives notified her when Farahat penetrated
4. Nethaniel Bluth‘s Injuries
After the attack, Nethaniel was identified as one of the students who was most critically injured. Tr. at 89; Statement of Facts at 7. He was covered in blood, had burns over much of his body, and had injuries to his head, face, and chest. Statement of Facts at 8. Nethaniel testified that at that time he could not feel his hands. Tr. at 47. The doctor who bandaged Nethaniel‘s forehead and hands at the scene of the attack believed that there was a bullet entry wound in Nethaniel‘s sternum, right above his heart. Id. at 48; Statement of Facts at 7. It remains unclear
Upon arriving at the hospital, Nethaniel was conscious, extremely anxious, and disoriented. Statement of Facts at 9. Nethaniel testified that he was still in shock and stressed from seeing his friends dead on the grass. Tr. at 47. As he was moved through the emergency room for tests, he briefly passed by several members of his family. Id. at 51; see Am. Compl. ¶¶ 66, 68-70, 73. Following the tests, Nethaniel went into multiple surgeries for his ears, the embedded shrapnel, and bullet wound. Tr. at 52. Nethaniel suffered forehead and hand injuries from the first grenade explosion. Id. at 45; Statement of Facts at 7. Pieces of the grenade were embedded in his chest area and hand. Tr. at 45.
The right side of Nethaniel‘s face was severely cut from the grenade explosion and his head wound was so deep that the bone was visible. Id. He also had open wounds on his arms, forehead, and chest. Id. at 92. Many of the wounds required stitches. Id. Nethaniel needed plastic surgery for his face and head due to the
Nethаniel continued to be hospitalized for several days following the operations.9 Tr. at 52. The surgeon at Tel Hashomer Hospital concluded that, while there was an indentation in Nethaniel‘s chest from an object, there was no damage to his vital organs.10 Id. at 90. The surgeon believed that the fragment whether it was a bullet or part of a grenade hit Nethaniel‘s sternum and deflected out of his body. Id.
Nethaniel‘s hearing was significantly impaired by the grenade explosion. Id. at 46. While one eardrum was dislodged (it eventually re-lodged), the other was completely blown out. Id. at 92. When he first took a hearing test following his surgeries, he could not hear anything, id. at 52-53, and broke down in tears when he realized that he could not hear. Id.; Statement of Facts at 9. He continues to have issues with his hearing and has complete hearing loss in one ear. Tr. at 57; Statement of Facts at 9.
Prior to the attack, Nethaniel had no medical issues, major surgeries, history of depression, anxiety, or other mental health concerns. Tr. at 32-33; Statement of Facts at 8. As a result of
Following his discharge from the hospital, Nethaniel returned to the family‘s home in Neve Tzuf. Id. at 94. Nethaniel continued to go back to the hospital for outpatient treatment in the audio ward for his hearing. Id. He needed someone with him for everyday activities, such as walking, urinating, and showering. Statement of Facts at 10. His father testified that Nethaniel was hesitant and extra cautious during that period. Tr. at 94. Nethaniel testified that he was afraid of the dark and, the minute the day ended and the sun went down, he would close all the curtains and windows, and lock the doors. Id. at 53. Nethaniel suffered from headaches and terrible nightmares, which started at the hospital and continued frequently in the period immediately after the attack. Id. at 57-58; Statement of Facts at 9-10. Without pills or the comfort of his parents, Nethaniel struggled to fall sleep. Tr.
After returning home from the hospital, Nethaniel spent a few days at home and then went back to visit the yeshiva. Tr. at 55. He testified that it was important for him to return as soon as he could to understand what had happened. Id. Moreover, it was rehabilitative. Id. at 96. When Nethaniel eventually returned to study at the yeshiva, he struggled with his fear of loud noises. Id. at 58. Once during a thunderstorm, the lights went out and the darkness and loud noises brought him back to the night of the attack, the moments when he waited for the attacker‘s bullet on the night of the attack, and he started crying. Id. While the students were moved to and slept in more protected rooms than before the attack, Nethaniel still needed someone with him at all times. Id. at 56. He even showered with the door open because he was afraid to be alone. Id. at 53.
After finishing the rest of his time at the yeshiva, Nethaniel entered the army in March 2003. Id. at 61. Upon entering, Nethaniel‘s placement was affected by his injuries. Id. at 61-62. Nethaniel testified that most of his injuries were still present when he joined the army and therefore, with doctors’ notes, the army had to find a job that he could do despite his injuries. Id. at 61. Nethaniel served in the army for five and a half years, id. at 56, and described his time with the army as helping him gain a
Fourteen years later, Nethaniel‘s injuries from Atzmona continue to affect both his personal life and career. Tr. at 57; Am. Compl. ¶ 64. His hearing is permanently impaired and he is unable to hear his wife and children or his co-workers when they call him from another room. Tr. at 57. He continues to suffer from tinnitus. Pl. Compl. ¶ 10. Nethaniel has substantial permanent scarring on his face, head, chest, and arms. Statement of Facts at 9; Tr. at 45-46. The shrapnel left in Nethaniel‘s hands and face continue to cause him significant pain and affect his bones, especially in cold weather or with a change in weather. Tr. at 46, 59.
Nethaniel continues to struggle with flashbacks to the night of the attack when he sees his scars and when he sees the parents of the students who were killed. Id. at 57. He continues to feel guilt and remorse for the death of his two close friends who were by his side throughout the attack. Statement of Facts at 11. He has nightmares from time to time and frequently wakes up at night to lock all the windows. Id. at 10-11; Tr. at 58. Nethaniel continues to struggle with his fear of the dark and his paranoia of loud noises or explosion-like sounds. Tr. at 53-54, 58.
5. Family‘s Injuries
On the night of the attack, Shoshana Rosalyn Bluth (“Shoshana“), Nethaniel‘s mother, was at the family home with Isaac Bluth (“Isaac“), the youngest of the Bluth brothers, and Tsipora Batya Bluth (“Tsipora“), Nethaniel‘s only sister. Tr. at 86; Deposition of Tsipora Batya Bluth Reicher (“Tsipora Depo.“) at 7 [Dkt. No. 59-47]. Shoshana, Tsipora, and Isaac learned about the attack on the yeshiva through television news. Am. Compl. ¶¶ 68-69. Ephraim Bluth (“Ephraim“), Nethaniel‘s father, was in New York on a business trip and learned about the attack when Shoshana called him. Tr. at 81.
Joseph Bluth (“Joseph“), Nethaniel‘s oldest brother, was at Tel Hashomer Hospital, awaiting the birth of his first child when Nethaniel unexpectedly arrived in critical condition. Statement of Facts at 13; Am. Compl. ¶ 73. Yigal Ami Hai Bluth (“Yigal“), Nethaniel‘s brother, was at a wedding in Jerusalem when he learned about the attack that night through friends and the rabbinic staff
When Shoshana, Isaac, and Tsipora saw the reports of the attack on their television, Shoshana and Tsipora tried to call Nethaniel and his friends at the yeshiva to check whether they were safe. Id. ¶ 68. The initial reports of the attack were not very informative and the uncertainty of the whereabouts of Nethaniel terrified his mother. Tr. at 82. Anxious for Nethaniel, Shoshana called Ephraim after hearing the reports of the attack, although she knew very few details at the time. Id. at 82-83. The other Bluth family members heard about the attack almost at the same time. Id. at 86. Despite continued efforts, the Bluth family was unable to reach Nethaniel. Statement of Facts at 12.
Approximately an hour passed between learning of the attack and the family learning from one of Nethaniel‘s friends, who
answered Nethaniel‘s cellphone, that Nethaniel was injured.11 Id.; Am. Compl. ¶¶ 66, 68. Twenty minutes after her first call, Shoshana called Ephraim again to let him know that Nethaniel was injured and was being moved to a hospital. Tr. at 84-85. However, there were no details about the extent of Nethaniel‘s injuries or to which hospital he was being moved. Id.Yigal left the wedding and picked up Shoshana, Tsipora, and Isaac at the family home to find Nethaniel. Am. Compl. ¶ 70. Without knowing which hospital Nethaniel was being taken to, they began driving towards the center of Israel where the major hospitals were located and they did not want to waste any time. Tr. at 85; Statement of Facts at 12. Another half an hour had passed before they learned that Nethaniel was taken to Tel Hashomer Hospital. Tr. at 88. As soon as Shoshana heard this, she knew that Nethaniel was one of the critically injured students because she had heard on the radio that the most injured students were taken to Tel Hashomer Hospital. Id. at 89; Isaac Depo. at 11.
The car ride to the hospital was “very quiet” and the family members feared the worst. Statement of Facts at 13. Joseph, who was already at Tel Hashomer Hospital and also watched the televised reports of the attack, believed that the severely injured person
It took Ephraim a couple of days to fly back to Israel due to El Al‘s flight schedule on Friday night and the observance of Sabbath on Saturday. Tr. at 83-84. On Sunday morning, Ephraim left New York on the first El Al flight. Id. at 90. When Ephraim arrived from New York, early Monday morning, Nethaniel was still in critical condition at Tel Hashomer Hospital. Id. at 90-91; Am. Compl. ¶ 67. The family was always with Nethaniel “to encourage
From the moment Nethaniel arrived at the hospital, Shoshana was constantly by Nethaniel‘s side and constantly worried аbout him. Id. at 54; Statement of Facts at 14. She was with Nethaniel during his hearing test and cried with him when he realized that he could not hear anything. Tr. at 52-53. After he returned home, she let Nethaniel sleep in the bed with her and Ephraim when he needed to do so. Id. at 95. She, like Nethaniel, struggled to sleep and took sleeping pills. Statement of Facts at 14.
Ephraim cut back on traveling for work to be at home with his family more often. Tr. at 95. Ephraim testified that he felt that he had not protected Nethaniel because he was so far away and frustrated that, as a parent, he was unable to protect Nethaniel. Id. at 93. As a person who did not cry easily, Ephraim had sporadic episodes of crying and anguish as a result of the attack and its effects on Nethaniel. Id. at 96. Ephraim and Shoshana focused on helping Nethaniel try to return to a normal life and deal with his anxiety, apprehension, and fear. Id. at 94, 96.
Nethaniel‘s siblings came home frequently to support Nethaniel and to be with him. Statement of Facts at 10. Isaac and Arieh let Nethaniel sleep in the same room with them, which Nethaniel had not done since he was in second grade. Id.; Isaac Depo. at 21. Even years after the attack, Nethaniel‘s siblings
Nethaniel‘s siblings were cautious around him, especially about conversations regarding the army. Id. at 29, 31. The stress, anxiety, and severe emotional distress that resulted from the periods of time of not knowing what had happened to Nethaniel and seeing him critically injured has permanently affected all members of the Bluth family. Statement of Facts at 12. The Bluth children have stated that the attack affected the way that they raise their own children. Id. at 14. They continue to be sensitive to his emotional fluctuations and medical issues, his worries about the future, and his concentration and comprehension problems. Deposition of Yigal Amihai Bluth at 27, 29 [Dkt. No. 58-44].
On February 13, 2012, Plaintiffs Nethaniel Chaim Bluth, his parents, Shoshana Rosalyn Bluth13 and Ephraim Bluth, and his siblings Tsipora Batya Bluth Reicher, Isaac Menahem Bluth, Yigal Amihai Bluth, Arieh Yehuda Bluth, Chanina Samuel Bluth, Abraham Bluth, and Joseph Bluth timely filed a Complaint, under
After several unsuccessful attempts at service of process and several extensions of time by this Court, Defendants were finally
On January 4, 2016, this Court held an evidentiary hearing. [Dkt. No. 60]. Nethaniel and Ephraim Bluth appeared as witnesses and gave testimony. The Court and Plaintiffs hаd previously discussed that the expert witnesses did not need to appear and the Court could rely on their expert reports alone. Tr. at 7-8; see also Pls.’ Status Report Regarding the Evidentiary Hr‘g [Dkt. No. 53]. Plaintiffs’ exhibits were admitted into evidence. [Dkt. No. 58]. At the Court‘s request, Plaintiffs submitted their proposed Statement of Facts on January 19, 2016. [Dkt. No. 59].
II. LEGAL STANDARD
Before this Court can enter a default judgment against Iran under FSIA, plaintiffs are required to establish their claims “by evidence satisfactory to the court.”
III. ANALYSIS
A. Jurisdiction Under FSIA
The Foreign Sovereign Immunities Act (“FSIA“) provides the sole legal means by which a plaintiff may bring a suit against a foreign state. Reed, 845 F. Supp. 2d at 209. FSIA protects the dignity of foreign states as a matter of international law, while providing a forum for justice and legitimаte grievances by providing narrow exceptions to immunity. See Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70, 71 (D.D.C. 2011); see also
In 2008, Congress repealed Section 1605(a)(7) of FSIA and replaced it with Section 1605A, which broadened the jurisdiction of federal courts and created a federal statutory cause of action for those victims and their legal representatives against state sponsors of terrorism for terrorist acts committed by the State, its agents, or employees. Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 147 (D.D.C. 2011) (internal citations omitted). FSIA “imposes tight constraints on courts required to decide whether an act satisfies the terrorism exception‘s substantive elements,” but when the foreign state fails to appear and the plaintiff seeks a default judgment, FSIA leaves discretion to the courts to decide the standard. Han, 774 F.3d at 1046-47.
Beforе the court can enter a default judgment under FSIA, a plaintiff must establish his or her claims “by evidence satisfactory to the court.”
A foreign state that engages in “an act of torture, an extrajudicial killing, an aircraft sabotage, a hostage taking, or provides material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency” is not immune in the federal courts of the United States.
1. Personal Jurisdiction & Service of Process
FSIA sets forth the necessary elements of service to establish personal jurisdiction in
Hence, Plaintiffs served Iran pursuant to
Thereafter, Plaintiffs proceeded to the next available method, as described in Section 1608(a)(4), a Request from Plaintiffs for Clerk to Effect Service on Iranian Defs. [Dkt. No. 16]. Plaintiffs sent two copies of the summons, complaint, and notice of suit, along with Farsi translations to the Clerk of the Court, who sent them to the Secretary of State in Washington, District of Columbia. See
In light of these filings, the Court concludes that Plaintiffs hаve complied with
A court in the United States has original jurisdiction over a claim that is a (1) nonjury civil action (2) against a foreign state (3) as to the claim(s) for relief in personam, (4) provided that the foreign state is not entitled to immunity under sections 1605-1607 of FSIA or under any applicable international agreement.
First, Plaintiffs have not demanded a jury trial. See Am. Compl. Second, the Iranian Defendants are considered a “foreign state” as defined by FSIA.15 See
The fourth requirement looks to whether an exception to sovereign immunity exists and has several sub-requirements. The FSIA exception to foreign sovereign immunity is codified at
As to the first sub-requirement, Plaintiffs identify and seek only monetary damages for their alleged injuries. Second, as stated above, the Iranian Defendants are “foreign states” as defined by the statute. See supra 32. Third, Plaintiffs’ personal injuries and all claims arise from the attack, which constitute the type of claims for personal injury required for jurisdiction. Fourth, there must be a showing of “some reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered.” Worley, 75 F. Supp. 3d at 325 (citing Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 2010)). Thus, a plaintiff need not show that the injury would not have occurred “but for” the defendant‘s actions. Id. Here, Plaintiffs have sufficiently demonstrated that Defendants have financially funded, and provided tactical support and equipment to Hamas. See supra, 5-6. Given Hamas‘s stated mission and purpose, financial support to Hamas is reasonably considered to be support of its mission and terrorists attacks. Consequently, the Iranian Defendants have assisted Hamas in carrying out the Atzmona attack. The facts demonstrate the kind of reasonable connection required under section 1605A.
Fifth, Plaintiffs must show that Iran provided “material support or resources” “knowing or intending that they are to be used in preparation for, or in carrying out,” a violation of the various enumerated sections.
For these reasons, the Court finds that an exception to sovereign immunity exists because this case satisfies each element of section 1605A(a)(1). In addition, all of section 1330(a)‘s requirements are satisfied and the Court has original jurisdiction to hear Plaintiffs’ claims.
In order for a claim to be heard, Section 1605A imposes three additional requirements that must be met: (1) the foreign state was designated a state sponsor of terrorism at the time of the act; (2) the claimant or victim was a national of the United States; and (3) in cases where the act occurred in the foreign state against whom suit has been brought, the foreign state was afforded a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.
First, Iran has been designated as a state sponsor of terrorism since 1984 and remained designated as such at the time of the act. See supra, 5; Moradi, 77 F. Supp. 3d at 65. At all times relevant to this action, Iran has been a state sponsor of terrorism. Id. (citing Dr. Levitt and Dr. Clawson‘s affidavits). Second, Plaintiffs are all United States citizens. Pls.’ Exs. 33-42 [Dkt. No. 57-33, to -42]. Lastly, Plaintiffs were not required by statute to afford Defendants a reasonable opportunity to
B. Liability Under § 1605A
Having found that Plaintiffs have a private right of action under § 1605A(c), having determined that the Iranian Defendants are a “state sponsor of terrorism” who provided “matеrial support or resources” to Hamas, and having found that Hamas was responsible for the March 7, 2002 attack in Atzmona, supra 5, Iran is liable under § 1605A(c) for any personal injuries caused by Hamas‘s attack.
To find liability, the Court must first identify the relevant law. Worley, 75 F. Supp. 3d at 335 (internal citations omitted). “Based on the D.C. Circuit‘s guidance, district courts in this jurisdiction ‘rely on well-established principles of law, such as those found in the Restatement (Second) of Torts and other leading treatises, as well as those principles that have been adopted by the majority of state jurisdictions’ to define the elements and scope of these theories of recovery.” Id. (citing Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 54 (D.D.C. 2012)).
1. Nethaniel‘s Claims
Nethaniel brings claims for battery and intentional infliction of emotional distress (“IIED“), and his family members bring a claim for solatium. The Iranian Defendants are liable for battery if, when they provided material support and resources to
As set forth in detail above, Nethaniel has met his burden and has clearly established the necessary elements of battery. Defendants “acted with intent to cause harmful contact and the immediate apprehension thereof” because “acts of terrorism are, by their very nature intended to harm and to terrify by instilling fear of such harm.” See id. The affidavits of the various experts have proven that the Iranian Defendants gave financial, tactical, and other support to Hamas during the relevant time period. Consequently, the Court can infer that Iran knew it was supporting and encouraging terrorist attacks which could include a Hamas member attacking the Atzmona yeshiva with the intent to cause injuries and fatalities. See supra, 10-11. There is no question that Nethaniel has also shown that such “harmful contact” did in fact occur. See supra, 13-19.
Nethaniel‘s second claim is for IIED. “An act that would otherwise constitute IIED gives rise to liability under the FSIA.” Reed, 845 F. Supp. 2d at 212. Under District of Columbia law, the
All three elements of IIED are satisfied. First, acts of terrorism are per se extreme and outrageous conduct. Ben-Rafael, 540 F. Supp. 2d at 56 (internal citations omitted). Second, the attack on the yeshiva was intended to cause emotional distress. See id. (stating that intent or recklessness can be inferred from the outrageousness of the act). Lastly, Nethaniel has shown that he experienced severe emotional distress because of the terrorist attack. Moreover, he still suffers from flashbacks, nightmares, and fears and anxieties that resulted from the Atzmona attack. See supra, 16-19.
2. Claims of Nethaniel‘s Parents and Siblings
Nethaniel‘s parents and siblings allege one count of solatium against the Iranian Defendants. “Solatium claims under the FSIA are functionally identical to claims for intentional infliction of emotional distress.” Moradi, 77 F. Supp. 3d at 71-72 (internal citations omitted). Such damages are intended for “mental anguish, bereavement and grief that those with a close personal relationship to the decedent experience as well as the harm caused by the loss
The record presented establishes that the March 7, 2002 Atzmona attack and Nethaniel‘s resulting injuries caused and continue to cause Nethaniel‘s parents and siblings significant mental anguish and emotional distress. See supra, 19-25. Ephraim reduced his work travel because he felt that he had not protected Nethaniel; he also experienced sporadic episodes of crying, which did not start until after the attack. See supra, 23-24. Shoshana experienced a great deal of anguish and anxiety on the night of the attack and because of not knowing what had happened to her son. After the attack, Shoshana cried with Nethaniel when he realized that he could not hear anything at all during his hearing test, and she later helped him with daily activities. See supra, 15-16. She relied on sleeping pills and constantly worried about and stayed near Nethaniel.
C. Damages Under § 1605A
1. Compensatory Damages
Plaintiffs seek compensatory damages for pain and suffering, economic harms, and solatium, as well as punitive damages. Am. Compl. ¶¶ 77-84. FSIA allows plaintiffs to recover “economic damages, solatium, pain and suffering, and punitive damages.”
a. Pain and Suffering
Nethaniel seeks damages against Defendants of $10 million on one count of battery and $10 million on one count of IIED. Am. Compl. ¶¶ 79, 81.
To determine pain and suffering awards for injured victims under FSIA, the Court must consider factors including “the severity of the pain immediately following the injury, the length of
i. Count I - Battery
Nethaniel claims relief for his “great pain and suffering;” for extensive and continuing medical treatment; for expenses including hospitalization, physician‘s services, nursing care, and rehabilitation treatment; and for diminished earning capacity - all resulting from the Atzmona attack. Am. Compl. ¶ 78.
The evidentiary hearing and depositions establish that the pain and suffering Nethaniel experienced during and since the attack was a reasonably certain consequence of Defendant‘s acts. The attacker, Farahat, fired shots and threw grenades into Nethaniel‘s classroom. As a result, Nethaniel was severely injured by a grenade explosion, requiring a number of surgeries as a result of the attack. He was subsequently hospitalized for over a week and was required to return to the hospital for outpatient rehabilitation. Over a decade later, Nethaniel continues to suffer
The Court now turns to the question of what amount of damages for pain and suffering is appropriate. It is clear that “putting a number on these kinds of harms can be difficult.” Price, 384 F. Supp. 2d at 134.
This jurisdiction has developed a general framework for assessing pain and suffering awards for victims of terrorist attacks. “Plaintiffs who suffer serious physical injuries tend to receive a $5 million award; plaintiffs who suffer relatively more serious or numerous injuries may receive $7 million (or more); and plaintiffs whose injuries are relatively less serious or who only suffer emotional injuries may receive something closer to $1.5 million.” Owens, 71 F. Supp. 3d at 259; see also Valore, 700 F. Supp. 2d at 84-85; O‘Brien v. Islamic Rеpublic of Iran, 853 F. Supp. 2d 44, 46-47 (D.D.C. 2012).
In a case where a plaintiff suffers from physical injuries such as compound fractures, severe flesh wounds, and wounds and scars from shrapnel, as well as lasting and severe psychological
ii. Count II - IIED
Nethaniel claims relief for “extreme mental anguish and pain and suffering” resulting from thе loss of his friends, intense physical injury, pain, discomfort, and inconvenience in his IIED count, Am. Compl. ¶ 81. The Court has found Defendants liable on this count, see supra, 36-38.
b. Economic Damages
Under FSIA, injured victims may recover economic damages, which typically include lost wages (both past and future), benefits and retirement pay, and other out-of-pocket expenses. Owens, 71 F. Supp. 3d at 258. The plaintiff must “prove the amount of damages by a reasonable estimate.” Reed, 845 F. Supp. 2d at 213. Unlike damages awarded for pain and suffering, “lost earnings are not hard to quantify and the Court will not excuse plaintiffs’ failure to support the claim for lost earnings with competent evidence.” Moradi, 77 F. Supp. 3d at 71.
As in Moradi, where the court concluded that the evidence was insufficient to support any award of economic damages because the plaintiff‘s dеclaration was the only evidence supporting his claim for lost earnings, Nethaniel has also failed to show the requisite evidentiary support to estimate his lost income. See Moradi, 77 F. Supp. 3d at 71. Nethaniel‘s testimony neither shows an estimate of his lost past and future income, nor does it include any specificity on what kind of job he wanted prior to the attack other than completing his mandatory military service. See id. Therefore, there is not sufficient evidence for the Court to award economic damages.
c. Solatium Damages
Shoshana, Ephraim, Tsipora, Chanina, Arieh, Yigal, Isaac, Abraham, and Joseph Bluth claim solatium damages resulting from injuries to Nethaniel. Am. Compl. ¶¶ 82-84. They each, jointly and/or severally, claim $10 million for severe emotional distress, extraordinary grief, and mental anguish. Id. ¶ 84.
As with damages for pain and suffering, solatium damages are difficult to quantify. Moradi, 77 F. Supp. 3d at 72. This jurisdiction has held that “where the victim does not die, but instead only suffers injury, the solatium awards (based on the framework set forth in Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006)) are halved: each parent receives $2.5 million and each sibling receives $1.25 million.” Id. (citing Owens, 71 F. Supp. 3d at 260; Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 52 (D.D.C. 2007); see also Reed, 845 F. Supp. 2d at 214). Accordingly, Ephraim and Shoshana will each receive $2.5 million; and each of the Bluth siblings, except Chanina, will receive $1.25 million.
Plaintiffs seek $500 million in punitive damages. Am. Compl. ¶ 86. “Punitive damages is not an independent cause of action.” Worley, 75 F. Supp. 3d at 337 (internal citations omitted). Such damages are “awarded to punish a defendant for particularly egregious conduct, and to serve as a deterrent to future conduct of the same type.” Weinstein, 184 F. Supp. 2d at 23-24. The language of FSIA specifically “provides courts with the power to award punitive damages against an agency or instrumentality of a foreign state in a case” brought pursuant to
To calculate the proper punitive damages award, the Court considers “four factors: (1) the character of the defendants’ act; (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause; (3) the need for deterrence; and (4) the wealth of the defendants.” Moradi, 77 F. Supp. 3d at 73; Weinstein, 184 F. Supp. 2d at 24 (citing Restatement (Second) Torts § 908).
First, the character of the Iranian Defendants’ attack is clearly most heinous. See, e.g., Oveissi, 879 F. Supp. 2d at 56; see also Weinstein, 184 F. Supp. 2d at 25. “The defendants’ demonstrated policy of encouraging, supporting and directing a
In Moradi, after finding that “societal interests in punishment and deterrence warrant imposition of punitive sanctions,” the Court decided to award punitive damages in an amount equal to the total compensatory damages awarded. See Moradi, 77 F. Supp. 3d at 73; see also Onsongo v. Republic of Sudan, 60 F. Supp. 3d 144, 152-153 (D.D.C. 2014).
Alternatively, the courts in Weinstein and Valore have chosen to base the punitive damages based on Iran‘s funding of MOIS. In Weinstein, the court found that $150 million was an appropriate award in punitive damages. 184 F. Supp. 2d at 25-26. The court was satisfied with that amount, even though several plaintiffs were seeking punitive damages from one defendant and there was a potential of depleting the defendant‘s limited fund. Id.
As in Weinstein and Valore, the Defendants in this case did not directly carry out the attack, but funded Hamas, which then carried it out. That fact is far from the detention and torture that was directly carried out by the defendants in Moradi. While Defendants’ acts are closer to those committed in Weinstein and Valore, it is doubtful whether a large amount resulting from an expenditure-times-multiplier method would have the deterrent effect that it might have had in times past. Given the frequency of these attacks and the lack of any evidence that high awards have successfully deterred them, the Court finds that neither the large sum of $500 million requested by Plaintiffs nor the sum resulting from the expenditure-times-multiplier method is appropriate.
IV. CONCLUSION
For the reasons stated abovе, the Court will grant Plaintiffs’ motion for default judgment and enter judgment for Plaintiffs in the amounts specified above. A separate Default Judgment accompanies this Memorandum Opinion.
August 25, 2016
Gladys Kessler
United States District Judge
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