Evan FAIN, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
No. 10-cv-628 (RCL).
United States District Court, District of Columbia.
April 20, 2012.
853 F.Supp.2d 109
ROYCE C. LAMBERTH, Chief Judge.
Plaintiff nonetheless argues that transfer is not in the interest of justice because the statute of limitations in New York may bar her action there. On the contrary, she would not be prejudiced in regard to the statute of limitations by a transfer because the Second Circuit has held that “when a case is transferred for convenience under
IV. Conclusion
The Court, therefore, will issue a contemporaneous Order transferring the case to the Northern District of New York.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
I. INTRODUCTION
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and left countless others wounded, and caused physical and emotional injuries to plaintiff Evan Fain III. Mr. Fain‘s wife and children are also plaintiffs in this suit against defendants Islamic Republic of Iran (“Iran“) and the Iranian Ministry of Information and Security (“MOIS“). This action is brought pursuant to the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act (“FSIA“),
A. Prior Beirut Bombing Litigation
There is a lengthy history of litigation before this Court concerning the 1983 bombing of the U.S. Marine barracks in Beirut.1 In the seminal case, Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 48 (D.D.C.2003) (Lamberth, J.), dozens of plaintiffs consisting of family members of the 241 deceased servicemen, as well as several injured survivors of the attack, sued defendants Iran and MOIS, seeking to hold them liable for the horrific act under the former state-sponsored terrorism exception, which at that time was codified at
B. This Action
Plaintiffs here are serviceman Fain, his wife Maria, and their three children. In the Complaint, plaintiffs allege the same essential facts concerning the 1983 barracks bombing that were established by sufficient evidence in Peterson, Compl. ¶¶ 6-10. Plaintiffs set forth claims for assault, battery, intentional infliction of emotional distress, and punitive damages against the defendants. Id. at ¶¶ 11-19.
Plaintiffs served copies of the relevant papers, along with translations, by diplomatic channels through the U.S. Department of State, as required by
III. FINDINGS OF FACT
The Clerk of the Court entered defendants’ default on October 28, 2011. However, prior to entry of final default judgment, the FSIA requires that courts evaluate the evidence before them to ensure that plaintiffs have established their right to relief “by evidence that is satisfactory to the court.”
In considering whether to enter default judgment, courts in FSIA cases look to various sources of evidence to satisfy their statutory obligation. Courts may, for example, rely upon plaintiffs’ “uncontroverted factual allegations, which are supported by . . . documentary and affidavit evidence.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 59 (D.D.C.2010) (alteration in original; quoting Int‘l Road Fed‘n v. Democratic Republic of the Congo, 131 F.Supp.2d 248, 252 n. 4 (D.D.C. 2001)). In addition to more traditional forms of evidence—testimony and documentation—plaintiffs in FSIA cases may also submit evidence in the form of affidavits. Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 53 (D.D.C.2006) (citing Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 82 (D.D.C.2006)). Finally, a FSIA court may “take judicial notice of related proceedings and records in cases before the same court.” Valore, 700 F.Supp.2d at 59 (quoting Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 50-51 (D.D.C.2009)). Here, plaintiffs rely on judicial notice, affidavits, and depositions in support of their motion for default judgment.
A. Judicial Notice of Prior Related Cases
Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts “not subject to reasonable dispute” where those facts are either “generally known within the territorial jurisdiction” or are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
A difficult issue arises concerning judicial notice of related proceedings with regard to courts’ prior factual findings. While such findings in a prior proceeding are “capable of accurate and ready deter-
This Court grappled with these difficulties in Rimkus, where—“mindful that the statutory obligation found in
B. Relevant Findings of Fact
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon—an event that has been at the center of numerous FSIA suits. In support of their claims, plaintiffs ask this Court to take judicial notice of its previous findings in the Peterson case, during which the Court held a two-day bench trial on the issue of liability. 264 F.Supp.2d at 48-49. Bearing in mind the parameters for judicial notice in FSIA actions set forth above, the Court takes judicial notice of the evidence presented in Peterson, and renders the following findings of fact:
Defendants
Defendant Iran “is a foreign state and has been designated a state sponsor of terrorism pursuant to
The Attack on the Marine Barracks
Documentary evidence presented to this Court in Peterson establishes that in late 1982, the 24th Marine Amphibious Unit of the U.S. Marines—which included 1st Battalion, 8th Marines—was dispatched as part of an international peacekeeping coalition to the Lebanese capital of Beirut. Peterson, 264 F.Supp.2d at 49. The rules of engagement issued to the servicemen in this unit clearly stated that they “possessed neither combatant nor police powers.” Id. Indeed, numerous witnesses at the Peterson trial testified that these servicemen “were more restricted in their use of force than an ordinary U.S. citizen walking down a street in Washington, D.C.” Id. at 50. As Colonel Timothy Geraghty, the commander of the U.S. deployment testified: “The rules—these were geared primarily again with the peacekeeping mission [in mind] and the sensitivities of killing or maiming someone accidentally.” Id. (alteration in original). Given the nature of this deployment, the Court finds that the servicemen were non-combatants operating under peacetime rules of engagement.
In 1983, high-ranking members of Hezbollah and a member of the Iranian Revolutionary Guard Corps, acting at the direction of the Iranian Ambassador to Syria, met in Baalbek, Lebanon. Id. at 55. At this meeting, the individuals “formed a plan to carry out simultaneous attacks against the American and French barracks in Lebanon.” Id. Subsequent to these discussions, members of Hezbollah disguised a 19-ton truck to resemble a water delivery truck that regularly traveled to the Beirut International Airport, near the U.S. Marine barracks, and rigged the truck so that it could carry an explosive device. Id. at 56. On the morning of October 23, 1983, a group of Hezbollah operatives ambushed the real water delivery truck, and the fake truck was sent to the barracks, driven by an Iranian member of Hezbollah. Upon reaching the barracks, the fake truck increased its speed and broke through the wire and sandbag barriers surrounding the facility. Once the truck reached the center of the barracks, the bomb it carried was detonated. Id.
The Peterson Court also received substantial testimony concerning the explosion and its aftermath. Danny A. Defenbaugh, the on-scene FBI forensic explosive investigation, testified as an expert before the Court and explained that the explosion was, at the time, “the largest nonnuclear explosion that had ever been detonated on the face of the Earth,” with a force that “was equal to between 15,000 to 21,000 pounds of TNT.” Id. Steve Russell, the sergeant of the guard at the time of the attack, stated that the bomb left many victims mangled and in severe pain. Id. at 58. In all, the attack on the barracks killed 241 U.S. servicemen, and left countless others severely injured, both physically and emotionally. Peterson, 264 F.Supp.2d at 58.
Iranian Involvement in the Marine Barracks Bombing
The testimony of Mahmoud establishes that the barracks bombing was undertaken by members of Hezbollah.2 In Peterson, this Court found that the group Hezbollah “was formed under the auspices of the government of Iran.” 264 F.Supp.2d at 51. This determination was based on the testimony of several expert witnesses in the Peterson trial. First, Dr. Patrick Clawson, a “widely-renowned expert on Iranian affairs,” testified that Hezbollah was a creature of the Iranian government: “Hezbollah is largely under Iranian orders. It‘s almost entirely acting at the under the order of the Iranians.” Id. at 51. Second, Dr. Reuven Paz, “who has researched Islamist terrorist groups over the last 25 years,” stated that “at that time—even today, but especially at that time, when Hezbollah was not yet formed as a strong group, it was totally controlled by Iran and actually served mainly the Iranian interest.” Id. at 52. Finally, Robert Baer, “a case officer in the Directorate of Operations of the CIA,” explained that, at the time of the 1983 bombing, Hezbollah was constituted by “a bunch of agents of Iran.” Id. at 52-53 n. 10. Thus, the Irani-
In addition to evidence concerning Iran‘s role in creating and supporting Hezbollah, plaintiffs in Peterson also presented testimony concerning an intercepted message from MOIS to an Iranian official ordering attacks against U.S. Marines. Admiral James A. Lyons—who at the time was the Deputy Chief of Naval Operations for Plans, Policy and Operations—“routinely received intelligence information about American military forces” during the period leading up to the 1983 bombing. Id. at 54. Admiral Lyons testified about a message from MOIS to the Iranian ambassador to Syria, directing the Ambassador to contact a terrorist leader and “instruct him to have his group instigate attacks against the multinational coalition in Lebanon, and ‘to take a spectacular action against the United States Marines.‘” Id. Additional evidence showed that, following these instructions, this Ambassador to Syria then instructed an Iranian Revolutionary Guard Corp. officer to attend a meeting with Hezbollah operatives, and that the attack on the Marine barracks was planned at that meeting. Id. at 54-55. Based on this evidence, the Court finds that both Iran and MOIS played crucial and necessary roles in planning and ordering the 1983 bombing.
Finally, testimony from explosives experts at the Peterson trial also points to Iranian involvement in the attack. At trial, experts from both the FBI and ATF “concluded that the explosive material” in the bomb “was ‘bulk form’ pentaerythritol tetranitrate, or PETN.” Id. at 56. Mr. Defenbaugh, the FBI investigator, then explained that the ‘bulk form’ of PETN, rather than the manufactured form, “is not generally sold commercially,” and that—at the time of the attack—bulk form PETN “was manufactured within the borders of Iran.” Id. at 57. And Warren Parker, a forty-year veteran explosives expert for the Army and ATF, testified that “[t]hese are not things that you just go down to the drugstore and buy a pound of . . . . it is a state- or military-run factory that produces this type of material.” Id. at 57-58. Based on this testimony, the Court concurs and adopts its finding in Peterson that “Hezbollah and its agents received massive material and technical support from the Iranian government . . . . [I]t is highly unlikely that this attack could have resulted in such loss of life without the assistance of regular military forces, such as those of Iran.” Id. at 58.
Iranian Support for Terrorism
In addition to the direct support of Hezbollah for the purpose of carrying out the horrific bombing of the U.S. Marine barracks in 1983, the evidence presented at the Peterson trial demonstrates that Iran has also played a critical role in support for terrorism more generally. At the Peterson trial, Dr. Clawson estimated that between 1983 and 1988, the Iranian government annually spent approximately $50 to $150 million financing terrorist organizations in the Near East. Id. at 51. In funding such operations, Iran uses MOIS to exercise operational control over groups such as Hezbollah. Id. at 53. And these activities have only intensified and worsened: In an affidavit filed with this Court in Valore, Dr. Clawson estimates that today the “financial material support provided by Iran in support of terrorism is in the range of $300 million to $500 million a year.” 700 F.Supp.2d at 88.
Evan Fain III (and family)
Plaintiff Evan Fain III was sleeping on the third floor of the barracks at the time of the bombing. Aff. of Evan Fain III, ECF No. 20, at ¶ 4. He suffered serious
IV. CONCLUSIONS OF LAW
Based on these findings of fact, the Court reaches the following conclusions of law:
A. Jurisdiction
Subject to certain enumerated exceptions—including the state-sponsored terrorism exception—the FSIA simultaneously provides immunity to foreign states from suit and denies all U.S. federal and state courts jurisdiction over such actions.
1. Original Jurisdiction
The state-sponsored terrorism exception provides that federal courts possess original jurisdiction over suits against a foreign state only if (1) “money damages are sought,” (2) “against a foreign state” for (3) “personal injury or death” that (4) “was caused” (5) “by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act.”
Here, each of these prerequisites is met. First, plaintiffs have only identified monetary remedies in their Amended Complaint, ¶¶ 12-19, rendering this a suit involving only “money damages.” Second, defendant Iran is plainly a foreign state. With respect to defendant MOIS, the FSIA defines foreign state to include “a political subdivision . . . or an agency or instrumentality of a foreign state.”
Third, the Amended Complaint contains claims for assault, battery, and international infliction of emotional distress. Am. Compl. ¶¶ 12-17. These claims are clearly actions for “personal injury” under
2. Waiver of Sovereign Immunity
While this Court‘s exercise of jurisdiction over this action is a necessary prerequisite to moving forward, foreign states remain immune from suit absent a waiver of sovereign immunity. Waiver of a foreign states’ immunity can occur either by that state‘s own action or by operation of statute. The state-sponsored terrorism exception provides that such waiver occurs where (1) “the foreign state was designated as a state sponsor of terrorism at the time of the act . . . or was so designated as a result of such act, and . . . either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section,” (2) “the claimant or the victim was, at the time of the act . . . a national of the United States [or]3 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,” and (3) “in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.”
Here, the established facts warrant waiver of defendants’ sovereign immunity as provided by the FSIA. First, Iran was designated by the U.S. Secretary of State as a sponsor of terrorism, partially in response to the Beirut bombing. U.S. Dep‘t of State, Determination Pursuant to Section 6(i) of the Export Administration Act of 1979—Iran, 49 Fed. Reg. 2836, Jan. 23, 1984 (designating Iran upon concluding that “Iran is a country which has repeatedly provided support for acts of international terrorism“). Second, serviceman Fain was a member of the United States Marine Corps at the time of the attack. Aff. of Evan Fain III, ECF No. 20, at ¶ 3. Finally, because the bombing occurred at the Marine barracks in Lebanon—and not Iran—the FSIA‘s requirement that defendants be given an opportunity to arbitrate this claim is inapplicable here. For these reasons, defendants’ immunity is waived and they may be held liable for the attack which left 241 U.S. servicemen dead, and numerous others severely injured.
B. Liability
1. Act
On the basis of the evidence presented in Peterson, plaintiffs here have sufficiently established that defendants were responsible for the horrific attack on the U.S. Marine barracks in Beirut in 1983, which killed 241 U.S. servicemen and left hundreds of others severely wounded. The evidence concerning the actions of defendants Iran and MOIS demonstrates that they are culpable both for the extrajudicial killing of U.S. citizens and for the provision of material support to the members of Hezbollah participating in the bombing, in satisfaction of the first element of liability under the federal cause of action.
FSIA defines extrajudicial killing by reference to
[(1)] a deliberated killing [(2)] not authorized by a previous judgment pronounced by a regularly constituted court [(3)] affording all judicial guarantees which are recognized as indispensable by civilized peoples.
The FSIA declares that the concept of “material support or resources” is defined by reference to the U.S. criminal code.
means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . . and transportation, except medicine or religious materials.
2. Actor
The Court has determined that defendants Iran and MOIS are responsible for the provision of material support which led to the attack on the U.S. Marine barracks in Beirut. In addition, the evidence presented in Peterson establishes that Hezbollah acted generally as an agent of Iran during this period, and that it was a direct order emanating from defendants which prompted the barracks bombing. Under such circumstances, defendants may be held vicariously liable for the extrajudicial killing perpetrated by the bombers. See Murphy, 740 F.Supp.2d at 71-72 (holding that defendant foreign state may be held liable where Hezbollah agents “acted at the behest and under the operational control of defendants“).
3. Theory of Recovery—Causation
The elements of causation and injury in the federal cause of action created by
(i) Assault and Battery
In Count I of the Amended Complaint, serviceman Fain asserts common law assault and battery claims. ¶¶ 12-13. Iran is liable for assault in this case if, when it committed extrajudicial killing or provided material support and resources therefor, (1) it acted “intending to cause a harmful contact with . . . , or an imminent apprehension of such a contact” by, those attacked and (2) those attacked were “thereby put in such imminent apprehension.” See Murphy, 740 F.Supp.2d at 73-75; Restatement (Second) of Torts § 21(1). It is clear that defendants acted with in-
Serviceman Fain has also alleged battery. Iran is liable for battery in this case if, when it committed extrajudicial killing or provided material support and resources therefor, it acted “intending to cause a harmful or offensive contact with . . . , or an imminent apprehension of such a contact” by, those attacked and (2) “a harmful contact with” those attacked “directly or indirectly result[ed].” Restatement (Second) of Torts § 13. Harmful contact is that which results in “any physical impairment of the condition of another‘s body, or physical pain or illness.” Id. § 15. Again, it is clear that defendants acted with intent to cause harmful contact and the immediate apprehension thereof: acts of terrorism are, by their very nature, intended to harm and to terrify by instilling fear of further harm. Valore, 700 F.Supp.2d at 77. Accepting serviceman Fain‘s uncontroverted assertions that he did, in fact, suffer severe physical injury from the blast, Aff. of Evan Fain III, ECF No. 20, at ¶ 5, the Court concludes that defendants are liable for battery.
(ii) Intentional Infliction of Emotional Distress
Plaintiffs set forth two Counts of intentional infliction of emotional distress. Am. Compl. Counts II-III. Count II is brought on behalf of serviceman Fain. Id. at ¶¶ 14-15. Count III is brought on behalf of serviceman Fain‘s wife Maria Fain and their children Maria Elena Amosa, Evan Fain IV, and Joseph Edward Fain. Id. at ¶¶ 14-17. Each Count sets forth similar factual allegations—that the attack on the U.S. Marine barracks caused the plaintiffs to suffer “extreme mental anguish.” Id. at ¶¶ 15, 17. Each individual plaintiff seeks $20 million in compensatory damages for their emotional distress.
This Court and others have frequently addressed the intentional infliction of emotional distress theory following enactment of
The issue of presence, however, warrants a bit more discussion. Plainly, none of the plaintiffs in this action except for serviceman Fain were present in Beirut and witnesses to the bombing of the U.S. Marine barracks. However, this Court has previously recognized that the pres-
(iii) Punitive Damages
Plaintiffs set forth a final Count entitled “Punitive Damages.” Amended Complaint ¶¶ 18-19. This Count alleges that defendants’ actions “were intentional and malicious and in willful, wanton and reckless disregard of [plaintiffs‘] . . . emotional well-being,” and seeks an award of $600 million in punitive damages. Id.
It is well established that punitive damages is not an independent cause of action. Botvin v. Islamic Republic of Iran, 604 F.Supp.2d 22, 25 (D.D.C.2009) (internal quotations omitted). The Court grappled with claims solely for punitive damages under the FSIA in Rimkus, explaining that “a plaintiff must set forth an independent claim—generally sounding in intentional tort or strict liability—for which punitive damages may be an appropriate remedy.” 750 F.Supp.2d at 175 (emphasis own; citing Restatement (Second) of Torts § 908 cmt. c (1979)). In Rimkus, the Court permitted the plaintiff‘s claim for punitive damages to go forward after determining that the plaintiff had “specifically alleged” a claim under FSIA by setting forth “each element in the federal cause of action provided by
Here, plaintiffs have not attempted to set forth a complete cause of action under Count IV, but rather rely primarily on the nature of defendants’ conduct in this case to sustain their claims for punitive damages. Am. Compl. ¶¶ 18-19. This is plainly insufficient, see Iacangelo v. Georgetown Univ., 580 F.Supp.2d 111, 114 (D.D.C.2008) (dismissing “free-standing punitive damages claim as improperly pled“), and Count IV should be dismissed.
This is not to say, however, that plaintiff may not recover punitive damages in this action. As the Rimkus Court also made clear, where appropriate, punitive damages may be pursued as a remedy to an intentional tort. 750 F.Supp.2d at 175-76; see also Anderson v. Islamic Republic of Iran, 753 F.Supp.2d 68, 87 (D.D.C.2010). Here, as seen above, plaintiffs have set forth proper causes of action for intentional infliction of emotional distress—an intentional tort. The Court will thus treat Count IV of the Amended Complaint as requesting the remedy of punitive damages in relief of the claims set forth in Counts I-III. See Park v. Hyatt Corp., 436 F.Supp.2d 60, 66 (D.D.C.2006) (noting that “punitive damages are not an independent cause of action” but treating plaintiff‘s claim for punitive damages “as part of an ad damnum clause“).
This Court has already determined in Part IV.A.1 that plaintiffs have brought an action for “personal injury or death” by bringing claims for assault, battery, and intentional infliction of emotional distress.
5. Jurisdiction
The Court has already determined in Part IV.A.1 that it is proper to exercise jurisdiction over defendants in this action, and that plaintiffs are only seeking monetary compensation. This final element is thus satisfied, and defendants may be properly held liable under the federal cause of action embodied in
V. SPECIAL MASTER
Though the Court has determined that defendants are liable to plaintiffs under the FSIA, it also lacks evidence necessary to render an appropriate measure of damages. In determining the proper measure of damages, “[t]he courts of the United States may appoint special masters to hear damages claims brought under” the state-sponsored terrorism exception to the FSIA.
As noted extensively above, this case is related to the Peterson case, and as a result it is subject to the administrative plan for special masters first set forth in that action. See Amended Administrative Plan Governing Appointed Special Masters 1, July 30, 2003, Peterson, No. 01 Civ. 2094 [29] (noting that the plan applies to “any other cases arising out of the October 23, 1983 occurrence at Beirut, Lebanon assigned to Judge Royce C. Lamberth in which special masters are appointed“) (“Plan“). The Plan requires that plaintiffs provide the Court, within thirty days of the adoption of the Plan, with the potential special master‘s curriculum vitae, and that the potential special master submit an affidavit to the court disclosing whether there is any ground for his or her disqualification under
VI. CONCLUSION
On October 23, 1983, plaintiffs and the world were horrified by the tragic and devastating destruction of the U.S. Marine barracks in Beirut, Lebanon. Thankfully, despite the efforts of Iran and MOIS to inflict of maximum devastation and death, servicemen Fain escaped with his life. Plaintiffs, however, still suffered greatly, both from the thought that serviceman Fain might be dead, and from fear arising from the knowledge that a close member of their family had been the victim of a horrific terrorist attack. The Court, however, lacks sufficient evidence to render any determination concerning the appropriate amount of damages to be awarded to plaintiffs here. Thus, the Court holds that defendants Iran and MOIS are legally liable to plaintiffs for the emotional and mental anguish they suffered as a result of the Beirut bombing, and directs plaintiffs to submit a motion for appointment of a special master to assist the Court in making an appropriate determination of damages.
A separate Order and Judgment consistent with these findings shall issue this date.
ROYCE C. LAMBERTH
CHIEF JUDGE, UNITED STATES DISTRICT COURT