Keith STANSELL, et al., Plaintiffs, v. REPUBLIC OF CUBA, Defendant.
Civil No. 15-cv-01519 (APM)
United States District Court, District of Columbia.
Signed November 4, 2016
217 F. Supp. 3d 320
Amit P. Mehta, United States District Judge
The Court is also mindful that requiring all predecisional and deliberative documents to be logged in a Vaughn-type index would place a significant burden on agencies whose decisions are challenged as arbitrary and capricious. Not only would plaintiff‘s position “transform the process of judicial review of administration decisions,” it would, as is the case in FOIA litigation, require the agency to compile “all internal communications among agency officials pertaining to the claimed deficiency, catalogue them, and claim the deliberative process privilege where appropriate, which may be as to all of them.” Blue Ocean Institute, et al. v. Gutierrez et al., 503 F.Supp.2d 366, 371 (D.D.C. 2007). In this case, defendants would be required to review and log approximately 5,000 documents. The review would, by defendants’ estimate, take four to five staff members and one technical assistant approximately one month to complete. (See e-mail from H. Hubert Yang, U.S. Dep‘t of Justice, Envtl. & Natural Res. Div., to Brian Gilmore, Law Clerk to the Hon. Ellen Segal Huvelle (July 8, 2016, 5:38 p.m. EST).) In addition, challenges to the appropriateness of the withholding of documents would require a court to determine which documents were directly or indirectly considered by a decision maker, which is a highly factual inquiry that could well involve discovery and evidentiary hearings. The agency resources would not be well spent, given that those materials are “immaterial as a matter of law.” See In re Subpoena Duces Tecum, 156 F.3d at 1279.
CONCLUSION
Accordingly, and for the reasons stated above, plaintiff‘s motion to compel is DENIED. A separate Order accompanies this Memorandum Opinion.
Newton P. Porter, Tony P. Korvick, Porter & Korvick, PA, Miami, FL, for Plaintiffs.
MEMORANDUM OPINION
Amit P. Mehta, United States District Judge
Cuba has never entered an appearance in this action. The Clerk of Court entered an order of default against Cuba, and Plaintiffs moved for an entry of default judgment. After thorough consideration of the evidence and briefing presented, the court grants Plaintiffs’ motion.
I. BACKGROUND
The court begins with a summary of the factual background leading up to the terrorist acts at issue, a description of those acts, and the procedural history of this case. To do so, the court draws upon the allegations in the Complaint, affidavits from Plaintiffs, the sworn testimony of two expert witnesses, and the official Central Intelligence Agency and United States Department of State annual reports on state sponsorship of terrorism worldwide. Additionally, the court takes judicial notice of1 the Stipulated Statement of Offense entered in United States v. Herrera and incorporates that statement as part of its findings of fact.1 See Stip. Stmt. of Offense in Supp. of Guilty Plea, United States v. Herrera, No. 10-cr-339-15 (D.D.C. 2014), ECF No. 64 [hereinafter Stmt. of Offense].
A. Cuba‘s State Sponsorship of Terrorism
The FARC is a designated foreign terrorist organization existing and operating primarily in the Republic of Colombia. See
Throughout the time period relevant to this lawsuit, Cuba was led by Fidel and Raul Castro. Id. The Castro brothers exercised complete control over all matters of government, which made them, in effect, the Cuban government. Id. Consequently, the brothers’ “decisions to provide support and resources to ... the FARC and to destabilize democracies in Latin America were ... decisions made ... [by] the Cuban government and state.” See id.; Roig Decl. at 5.
Cuba supported the FARC in a number of ways. For example, Cuba provided military, explosives, and weapons training to FARC members in camps organized in Venezuela. Cote Aff. ¶ 31; Roig Decl. at 24. Through their Cuban allies, the FARC also gained communications training and expertise in intelligence gathering techniques. See Cote Aff. ¶ 30. Havana served as a safe haven for FARC members. Id. ¶ 28; Roig Decl. at 14-15. Additionally, through its relationship with the Venezuelan government, Cuba facilitated the FARC‘s ability to move across the Colombian-Venezuelan border undetected, which made it easier not only for Cuban officials to provide resources and advice to the FARC, but also for FARC members to access international flights, engage in drug trafficking, and evade international efforts to thwart their operations. Cote Aff. ¶¶ 43, 47; Roig Decl. at 16, 19-20, 25.
B. The Events of February 13, 2003, and Subsequent Years of Captivity and Torture
On February 13, 2003, an aircraft performing a counter-narcotics surveillance flight over Colombia on behalf of the United States Embassy came under fire from the FARC and experienced engine failure. On board were four American civilian contractors—Tom Janis, Keith Stansell, Marc Gonsalves, and Thomas Howes—and one Colombian citizen, Luis Alcides Cruz. All five passengers survived the crash landing. Shortly thereafter, FARC members surrounded the aircraft and took the men hostage, separating Stansell, Howes, and Gonsalves from Janis and Cruz. The terrorists marched the first group of men into the jungle, where they would be held captive and tortured for more than five years. Janis and Cruz were shot, execution-style, and their bodies left near the crash site. See Stmt. of Offense ¶¶ 6-7, 8-12, 15; Cote Aff. ¶¶ 20, 44, 45(a)-(b); Pls.’ Notice of Filing App‘x Vol. II, ECF No. 17 [hereinafter Pls.’ Ex. List II], Ex. 1, Aff. of Keith Stansell, ECF No. 17-1 [hereinafter Stansell Aff.], ¶¶ 2, 10; Pls.’ Ex. List II, Ex. 2, Aff. of Marc Gonsalves, ECF No. 17-2 [hereinafter Gonsalves Aff.], ¶¶ 2, 9; Pls.’ Ex. List II, Ex. 3, Aff. of Thomas Howes, ECF No. 17-3 [hereinafter Howes Aff.], ¶¶ 2, 10.
Members of the FARC informed the hostages that their continued detention would increase international pressure and allow the FARC to leverage concessions from the Colombian government in exchange for their release. Stmt. of Offense ¶ 10. In late July 2003, the FARC sent a videotape of the hostages to media outlets in the United States to prove the hostages were still alive. On the video, the FARC demanded that, in exchange for the release of the American hostages, Colombia release all FARC members held in Colombian prisons and create a demilitarized zone for the FARC. Id. ¶ 11.
During their time with the FARC, Stansell, Gonsalves, and Howes experienced extraordinarily cruel and dehumanizing treatment. The terrorists forced their hostages to march for miles in the jungle without the benefit of proper equipment or rest, going to great lengths to conceal
The hostages lived in traumatic and unsanitary conditions. The FARC kept the men in tight enclosures—such as wooden boxes or barbed wire cages—without toilet facilities of any kind. If one of the hostages needed to relieve himself, then he had to ask permission; the FARC members often humiliated him for asking or denied permission altogether. The men regularly were forced to defecate where they were chained, causing the enclosures to become covered in feces. Stansell Aff. ¶ 4(xii); Gonsalves Aff. ¶¶ 4(vii)-(viii); Howes Aff. ¶ 4(iii).
Stansell, Gonsalves, and Howes each suffered from a plethora of debilitating illnesses. For example, on four different occasions, Howes suffered from fly larva growing under his skin that had to be killed by cigarette nicotine and squeezed from his flesh. Howes Aff. ¶ 4(ii). The water and food the men received were dirty, causing them regular digestive problems. Gonsalves Aff. ¶ 4(ii); cf. Stansell Aff. ¶ 4(ii); Howes Aff. ¶ 4(ii). More seriously, Gonsalves and Howes developed a skin rotting disease called leishmaniasis. Despite having the medication with which to treat the infection and seeing the men in great need, the FARC repeatedly denied them the medication. Gonsalves Aff. ¶ 4(v); Howes Aff. ¶ 4(ii), (v).
The medical attention the hostages did receive sometimes caused more harm than good. For example, Stansell‘s hip became infected as a result of receiving spoiled medicine, causing a baseball-sized cyst to grow, rot, and burst. The FARC cut the cyst out of Stansell‘s hip using a scalpel, without any anesthetic or other pain medication. Stansell Aff. ¶ 4(iv). Similarly, although Gonsalves ultimately received the leishmaniasis medication, the FARC reused needles for his treatments, causing him to contract hepatitis. Gonsalves Aff. ¶ 4(v). In an effort to treat the hepatitis, the FARC injected Gonsalves, against his will, with a variety of unknown drugs that caused him additional pain and suffering. Id.
FARC members also regularly punished their hostages. Sometimes they added chains or padlocks to the already heavy chains the hostages wore. Howes Aff. ¶ 4(ix). They also starved the hostages while subjecting them to exhausting marches through the jungle. Gonsalves Aff. ¶ 4(iv); Howes Aff. ¶ 4(iv). In one instance in particular, after a fellow hostage escaped, the FARC punished Stansell, Gonsalves, and Howes by requiring them to stand in a small space filled with large drums of gasoline and sealed off by thick gauge black plastic, forcing them to inhale the gasoline fumes. Gonsalves Aff. ¶ 4(viii).
In addition to harming the hostages physically, the terrorists also inflicted extreme mental pain and suffering. They forced Stansell, Gonsalves, and Howes into solitary confinement and prohibited them
Furthermore, each of the men can recount specific acts that haunt him. Gonsalves recalls one time being forced to carry a fifty-five pound backpack across a fallen tree “bridge” at gunpoint; the bridge gave way while he was halfway across, causing him to fall more than four meters to the rocky bottom of a gully. Gonsalves Aff. ¶ 4(i). Despite suffering a concussion and being unable to move one arm, the FARC forced Gonsalves to continue to carry the backpack another 15 miles through the jungle the following day and for the next several months. Id. Stansell testified that, one night, while being held in a cage and hearing helicopters overhead, FARC members stood beside the cage and began discussing how to kill the hostages. Hearing this, Stansell approached the terrorists and asked that the FARC members shoot them cleanly, rather than spray them with gunfire and cause painful, non-lethal wounds from which they would suffer while dying. Stansell Aff. ¶ 4(xii). Lastly, Howes remembers the terrorists threatening to kill not only the hostages, but also any civilian with whom they came in contact. Consequently, he testified to the emotional horror of accidentally encountering a family of five in the jungle and then later learning that the FARC murdered them all. See Howes Aff. ¶ 4(vii).
All three men lived in constant fear of death. The FARC required at least one of its members to be physically near the hostages at all times, and the hostages were explicitly told that, in the event of a rescue attempt, the guard would shoot them. Stansell, Gonsalves, and Howes often saw helicopters flying overhead and witnessed the guards prepare their guns and position themselves to fire upon the hostages. On other occasions FARC members approached each hostage and directly threatened to kill him, sometimes even dry-firing a weapon to simulate an execution. Stansell Aff. ¶ 4(ix); Gonsalves Aff. ¶ 4(vi); Howes Aff. ¶ 4(vi).
After 1,967 days in captivity, the men were rescued on July 2, 2008, by the Colombian military. Pls.’ Ex. List I, Ex. 27, U.S. DEP‘T OF STATE, Patterns of International Terrorism 2008 (Apr. 2009), ECF No. 16-27 [hereinafter Country Reports on Terrorism 2008], at 2.
C. The Victims and the Claimants
Keith Stansell, Marc Gonsalves, and Thomas Howes, are all American citizens presently residing in Florida. Stansell is a former United States Marine and served as the mission commander on the February 13, 2003, counter-narcotics surveillance flight. Compl., ECF No. 2 [hereinafter Compl.], ¶ 6. Gonsalves is an electronic surveillance systems specialist and was the chief counter-narcotics analyst and collection officer on board. Id. ¶ 7. Howes is a highly experienced pilot and was second-in-command on the flight. Id. ¶ 8.
Tom Janis was an American citizen and, at the time of his death, a resident of Alabama. Id. ¶ 9. He was a retired United States Army aviator and spent 11 years as the Fixed Wing Commander of the U.S.
Judith Janis is an American citizen and resident of Alabama. Christopher Janis is an American citizen who recently retired from active duty with the United States Army and also resides in Alabama. Michael Janis is an American citizen currently on active duty with the United States Army, serving overseas in Afghanistan. Jonathan Janis, also an American citizen, resides in California. Compl. ¶¶ 10-11, 13-14. At the time this lawsuit was filed, Greer Janis was an American citizen residing in Colorado, but she is now deceased. Her mother, Judith Janis, represents her estate in this lawsuit. Suggest. of Death and Unopp‘d Mot. to Subst. Proper Party, ECF No. 22 [hereinafter Mot. to Subst.]; Mot. to Subst., Death Certificate, ECF No. 22-1 [hereinafter G. Janis Death Certificate]; Mot. to Subst., Letters of Admin., ECF 22-2; see Van Beneden v. Al-Sanusi, 709 F.3d 1165, 1166 & n.2 (D.C. Cir. 2013) (permitting legal representative of a deceased petitioner to continue a suit under the FSIA terrorism exception on behalf of a deceased petitioner).
D. Injuries Sustained by the Victims and the Claimants
1. The Victims
Keith Stansell suffers from premature deterioration of the discs in his spine, sensitivity in his feet, and permanent pain in his right torso as a result of the long, forced marches he had to endure, at times with broken ribs. He struggles with ongoing digestive problems, and he had to undergo months-long treatment for the flesh eating virus he contracted in the jungle. His time with the FARC left him permanently disfigured. The flesh eating virus scarred his neck, crotch, and legs, and the heavy chains he was forced to wear scarred his neck and shoulders. He still has a knot under the skin on his right hip where a cyst burst and had to be excised. Stansell‘s pain and suffering is not limited to physical ailments. He mourns the time and life experiences the FARC stole from him—he missed the birth of his twin sons, many years of family memories and holidays, and time spent with loved ones. Lastly, he continues to struggle emotionally with managing the psychological pain caused by his captivity and isolation. Stansell Aff. ¶¶ 11-13.
Marc Gonsalves also experiences ongoing physical and emotional scars as a result of being held hostage. He has physical pain in his knees, legs, back, and shoulders, as well as frequent migraines. Gonsalves‘s short-term memory has been dramatically reduced, which affects his ability to perform day-to-day tasks. In addition to insomnia and nightmares, Gonsalves suffers from various “triggers“—often sounds or smells—that induce extreme anxiety and nervousness, as though he is once again being held captive. Helicopters, in particular, incite panic and make Gonsalves feel as though he is about to be killed. He cannot be in small spaces or amongst even moderate-sized groups of people indoors. Gonsalves‘s marriage failed as a result of his emotional instability, and he no longer lives with his children. He laments the time he could have spent with his children as they grew up and the active role he wishes he could have played in raising them. Gonsalves Aff. ¶¶ 10-12.
2. The Claimants
Tom and Judith Janis were married for more than 30 years, and Tom was “the love of [Judith‘s] life.” Jud. Janis Aff. ¶ 8. The couple raised four children together, and Judith was proud to be Tom‘s wife, “knowing that no matter what life would bring [they] would get through it together.” Id. ¶ 11. Although Tom traveled frequently for work in Colombia, the couple never spent more than 10 days apart. Judith frequently traveled to Colombia to visit Tom. On the day Tom was murdered, Judith had been visiting; the couple kissed goodbye in the morning at the Colombian airport, and Judith boarded a commercial flight home to Alabama. Id. ¶ 10. Judith remembers his smile, their kiss, and Tom saying: “See you in 10 days honey girl.” Id. Judith learned Tom‘s plane had crashed from two voicemails left on her answering machine while she was traveling that day. Thirty-six hours later, the president of Tom‘s company flew to Alabama to tell Judith in person that her husband had been killed. Id. ¶ 16. Judith spent years investigating the details of Tom‘s death. Only upon Stansell, Gonsalves, and Howes returning to the United States did Judith learn that the FARC had ordered Tom killed. Id. ¶ 17. Judith thinks of her late husband every day and continues to grieve his death, 13 years later. When she learned of Tom‘s passing, she “really didn‘t believe that life could go on,” and today still feels “the other part of [her] is missing.” Id. ¶ 16. Tom‘s absence is particularly pronounced on holidays, birthdays, and family gatherings. Id. ¶ 19. Judith has not remarried. Id. ¶¶ 3, 16.
Christopher Janis was 30 years old when his father was murdered. Pls.’ Ex. List II, Ex. 5, Aff. of Christopher Janis, ECF No. 17-5 [hereinafter C. Janis Aff.], ¶¶ 2-3. He had a “close and loving relationship” with his father while growing up, and followed in Tom‘s footsteps by enlisting in the Army. Id. ¶¶ 4, 9. In addition to teaching Christopher to drive and to water ski, Tom shared a special relationship with his son over their parallel military service. Id. ¶¶ 4-6. Christopher‘s last memory of his father is from early 2003, when Tom drove Christopher to the assembly point for Christopher‘s deployment to Kuwait. Christopher remembers his father waving to him through the window of the truck, smiling. Id. ¶ 7. Christopher learned of his father‘s plane crash while in Kuwait, on February 14, 2003. While in the Atlanta International Airport, Christopher‘s wife told him his father had died. See id. ¶ 11. The news caused Christopher to immediately lose his breath, become weak in the knees, and break down crying. He still hates the Atlanta airport today because of that memory. Id. Christopher‘s grief is continuous, particularly now that he has retired from the military. Id. ¶ 13. He was looking forward to talking with his father about their combat experiences and his
Greer Janis was 29 years old when Tom was murdered and she, too, shared a close and loving relationship with her father. Greer could talk to her father about “anything” and often sought her father‘s advice. Pls.’ Ex. List II, Ex. 7, Aff. of Greer Janis, ECF No. 17-7 [hereinafter G. Janis Aff.], ¶¶ 3-4. She visited home frequently because it was “a place of acceptance, tolerance, and love.” Id. ¶ 4. Because Tom was murdered the day before Valentine‘s Day, Valentine‘s Day became a “dark day” for Greer, causing her annually to “relive the horror” of hearing her mother tell her that her father‘s plane had been out of contact with the radio tower. Id. ¶ 16. Each Valentine‘s Day, she “relive[d] the anxiety and trepidation of not knowing what had happened, and was happening, to [her] dad.” Id. The first Christmas and New Year‘s Eve without Tom were difficult for Greer, particularly because New Year‘s Eve was her parents’ wedding anniversary. See id. Greer thought of her father every day, and her grief and loss continued even 13 years after his murder. Id. ¶ 9. She wished she could share moments in her life with Tom or seek his advice. See id. Greer feels pain every day because her father “was ripped away from [her] and [her] family.” Id. Tom was “an intrinsic part of [Greer‘s] life” and his death “made a hole in [her] life.” Id. Greer died on July 26, 2016, at the age of 42. See G. Janis Death Certificate; cf. G. Janis Aff. ¶ 3.
Michael Janis was 25 years old when Tom was murdered. He, too, enjoyed a close and loving relationship with his father and, like Christopher, followed in his father‘s footsteps by becoming an Army aviator. He is currently on active duty with the United States Army. Pls.’ Ex. List II, Ex. 6, Aff. of Michael Janis, ECF No. 17-6 [hereinafter M. Janis Aff.], ¶¶ 3-4. Michael describes Tom as not only a father, but also a “very close friend.” Id. ¶ 4. He laments that they will not get to share any more father-son talks and wishes Tom could have been there to see his wings pinned on his uniform after graduating from flight school. See id. ¶¶ 4-5. Every Father‘s Day, Michael goes through a box of his father‘s things, feeling sad because Tom “had so much more life to live, so many more milestones, and moments with his children that [the family] [is] all missing.” Id. ¶ 6. Michael learned of the plane crash from seeing headlines on the Internet, and his wife and he took turns scouring websites for updates. Michael learned that his father had been killed when he heard his wife scream and saw CNN‘s website reporting that Tom‘s body had been found by the plane. He remembers the strangeness of seeing CNN misreport his father‘s name as “Janis Thomas,” rather than “Thomas Janis,” and feeling “sick, confused, and scared for [his] mother.” See id. ¶ 8. Because his mother was still traveling back from Colombia, Michael had to keep this information to himself for several hours, which was “utterly devastating.” Id. Although Michael “tries not to think of the worst moments of this tragedy,” id. he still finds it “next to impossible to choose to avoid the pain and emptiness his [father‘s] murder brought to [his] family,” id. ¶ 4. Tom‘s death has created a “darkness and emptiness” in his life. Michael blames Tom‘s murder for his divorce from his high school sweetheart, and he wishes he and Tom could talk about serving overseas. Id. ¶¶ 10, 11. Michael has been unable to dream since Tom‘s murder and has not yet found peace with Tom‘s death, which “has been the most traumatic, painful, life-altering event [he] ha[s] ever experienced.” Id. ¶¶ 9, 12.
E. Procedural History
Plaintiffs brought this lawsuit against the Republic of Cuba under
Plaintiffs filed their Complaint on September 17, 2015, and requested a summons be issued. See Compl.; Req. for Summons to Issue, ECF No. 5. After concluding service could not be effected, Plaintiffs asked the Clerk of Court to mail by DHL Express one copy of the summons, complaint, and notice of suit, together with a translation of each into Spanish, to the Minister of Foreign Affairs for the Republic of Cuba. See Aff. Req‘g Foreign Mailing, ECF No. 6; Req. for Clerk to Effect Service, ECF No. 9.
On September 22, 2015, Plaintiffs filed proof of service, reflecting that an individual in the Ministry of Foreign Affairs in Havana signed for the package sent by the Clerk of Court. See Return of Serv., ECF No. 11. When Cuba failed to file an Answer to the Complaint within 60 days, the Clerk of Court filed an entry of default. See Entry of Default as to the Republic of Cuba, ECF. No. 13 (dated Dec. 9, 2015);
II. LEGAL STANDARD
The
Importantly, even when an entry of default judgment may be available, it is only warranted where the plaintiff satisfies his burden of proving the court has jurisdiction over the claims and the defendant and “establishes his claim or right to relief by evidence satisfactory to the court.”
Therefore, an entry of default judgment is available and warranted when (1) the court has subject matter jurisdiction over the claims presented; (2) the court has personal jurisdiction over the defendants; and the plaintiff presents sufficient evidence to satisfy the court (3) that she is entitled to relief against the defendant (4) for the amount of damages requested. Id.
III. DISCUSSION
A. Subject Matter Jurisdiction
This court has original jurisdiction to hear suits brought against foreign states, irrespective of the amount in controversy, if the case is a nonjury civil action for in personam relief and the foreign state is not entitled to immunity under
- (1) the foreign country was designated a state-sponsor of terrorism at the time of the act, (2) the claimant or the victim was a national of the United States at that time; (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; and (4) the plaintiff seeks monetary damages for personal injury or death caused by torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if engaged in by an official, employee, or agent of a foreign country.
Thuneibat, 167 F.Supp.3d at 34 (citing 28 U.S.C. § 1605A(a)) (internal quotation marks omitted).
Here, Plaintiffs bring this civil suit against Cuba for in personam relief and do not request a jury trial. Compl. ¶ 1. Accordingly, this court has jurisdiction over Plaintiffs’ claims provided Cuba cannot claim sovereign immunity. See
Cuba was first designated a state sponsor of terrorism in 1982, and the United States continuously maintained Cuba‘s status on that list until May 29, 2015.3 Therefore, Cuba was a state sponsor of terrorism for the entire period during which the FARC‘s terrorist acts against Plaintiffs occurred—February 13, 2003, to July 2, 2008. See Roig Decl. at 4; Pls.’ Ex. List I, Ex. 1, U.S. DEP‘T OF STATE, Patterns of International Terrorism: 1982 (Sept. 1983), ECF No. 16-1, at 2; Pls.’ Ex. List I, Ex. 22, U.S. DEP‘T OF STATE, Patterns of Global Terrorism 2003 (Apr. 2004), ECF No. 16-22 [hereinafter Patterns of Global Terrorism 2003], at 2-3; Pls.’ Ex. List I, Ex. 23, U.S. DEP‘T OF STATE, Country Reports on Terrorism 2004 (Apr. 2005), ECF
Additionally, all Plaintiffs in this action—both the victims and the claimants—are American citizens. See
Lastly, Plaintiffs also presented satisfactory evidence to establish that their damages arise from Cuba‘s provision of material support and resources to the FARC, which committed aircraft sabotage, the extrajudicial killing of Janis, and the hostage-taking and torture of Stansell, Gonsalves, and Howes. See id.
Under the FSIA, “aircraft sabotage” involves, in relevant part, “destroy[ing] an aircraft in service or caus[ing] damage to such an aircraft which renders it incapable of flight.” Id.
The evidence presented also satisfactorily shows that Tom Janis was the victim of an extrajudicial killing, and Stansell, Gonsalves, and Howes were the victims of torture. An “extrajudicial killing” is a “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court,” and an act of “torture” is “any act directed against an individual in the offender‘s custody or physical control, by which severe pain or suffering[,] ... is intentionally inflicted ... for such purposes as obtaining ... information or a confession, punishing that individual for an act that individual ... has committed or is suspected of having committed, intimidating or coercing that individual, ... or for any reason based on discrimination of any kind.”
Additionally, Plaintiffs’ evidence shows Stansell, Gonsalves, and Howes were taken hostage within the meaning of the FSIA. “Hostage taking” is defined by federal and international law to mean “seiz[ing] or detain[ing] and threaten[ing] to kill, to injure, or to continue to detain another ... in order to compel a third party, namely, a State, ... to do or abstain from doing any act as an explicit or implicit condition [of the hostage‘s] ... release.”
Finally, Plaintiffs’ evidence proves to this court‘s satisfaction that Cuba provided material support and resources in furtherance of the FARC‘s actions. “Material support or resources” includes the provision of “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.”
The court also acknowledges that this action is timely. Plaintiffs filed suit on September 17, 2015, which is within the six-month window after Cuba was re-
Thus, the court is satisfied that it may exercise its subject matter jurisdiction.
B. Personal Jurisdiction
Personal jurisdiction over a foreign state exists if service is made pursuant to
Plaintiffs properly effected service on October 6, 2015, when they filed with the court proof that the Complaint, Summons, and Notice of Suit, together with a copy of each in Spanish, were served on the Minister of Foreign Affairs and signed for in Havana. See Certificate of Mailing, ECF No. 10; Return of Service/Aff., ECF No. 11. Service in accordance with
C. Cuba‘s Liability to Plaintiffs
Although the statute sets out the private cause of action, it offers no substantive guidance as to what will satisfy the causation and injury elements of that cause of action. As a result, courts rely on “generalized principles of tort law” to determine whether the defendant is legally responsible for the plaintiff‘s harm. See Thuneibat, 167 F.Supp.3d at 38; cf. Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003) (explaining that, in FSIA state-sponsored terrorism exception cases, the federal courts must apply traditional tort principles from the Restatement and existing state law, rather than develop federal common law).
It is not enough for plaintiffs to “simply alleg[e] that an act ‘caused harm.‘” Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 175 (D.D.C. 2010). Instead,
1. The Direct Victims—Stansell, Gonsalves, and Howes
Stansell, Gonsalves, and Howes were American citizens at the time of the February 13, 2003, attack, and, as explained previously, Cuba was designated a state sponsor of terrorism for the entire period during which Stansell, Gonsalves, and Howes were held hostage and tortured. In addition, the court has already concluded that Stansell, Gonsalves, and Howes suffered acts of aircraft sabotage, hostage taking, and torture—as those terms are understood under the FSIA—at the hands of the FARC, and the record evidence demonstrates that Cuba provided material support to the FARC. Lastly, the court has determined it has jurisdiction over this matter and Plaintiffs seek only monetary compensation. See supra III.A. Therefore, the first, second, and fifth elements of
With respect to causation and injury, Stansell, Gonsalves, and Howes specified no particular theory of relief to justify their receipt of damages—instead, each plaintiff seeks compensation for “the 1,967 days of captivity as a hostage and for his physical and mental torture during captivity, including past and future physical and mental pain and suffering, disability, disfigurement, permanent injuries, and lost enjoyment of life.” See Compl. (concluding prayer for relief). This type of pleading is a “caused harm” pleading—for which this court has admonished plaintiffs. See Rimkus, 750 F.Supp.2d at 175, 183 (explaining that plaintiff failed to plead a theory of relief when he alleged only that his son died and defendants were responsible for his son‘s death).
Nonetheless, courts in this District previously have allowed a plaintiff‘s FSIA claim to proceed, even absent a clearly articulated theory of recovery, when the plaintiff alleged all the facts necessary to establish the elements of
The language Stansell, Gonsalves, and Howes use in their Complaint and the evidence before the court largely align with the quintessential common law torts of battery (aircraft sabotage and physical torture); false imprisonment (hostage taking); and assault and intentional infliction of emotional distress (mental and emotional harm). Cf. Valencia, 774 F.Supp.2d at 13.
With respect to the acts of aircraft sabotage and physical torture, Stansell, Gonsalves, and Howes may recover under a theory of battery. Battery occurs when one person (1) “acts intending to cause a harmful or offensive contact with the person of the other ... or an imminent apprehension of such a contact, and (2) a harmful contact with the person of the other directly or indirectly results.” See RESTATEMENT (SECOND) OF TORTS § 13; Valencia, 774 F.Supp.2d at 13; Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 48 (D.D.C. 2001) (describing physical torture as an extreme form of battery). “Harmful contact” is that which causes “any physical impairment of the condition of another‘s body, or physical pain or illness,” see RESTATEMENT (SECOND) OF TORTS § 15, and can be caused by contacting either another‘s person directly or an instrumentality that acts as an extension of the individual‘s person, such as a car or airplane in which the individual is traveling, see id. § 18 cmt. c & Rptr.‘s Notes.
Here, a battery occurred both when the FARC shot down the airplane and when the terrorists subsequently tortured their hostages. The FARC‘s act of shooting down a moving aircraft was an intentional harmful contact to those onboard. Similarly, the acts of physical torture—e.g., chaining the hostages to one another and to trees, forcing them to breathe gasoline fumes, imposing unwanted medical treatment on them—were direct, intentional, harmful contacts. The hostages suffered physical injuries from the plane crash, disfigurement from the chains, and continue to suffer from the effects of the FARC‘s forced medical treatments. See supra I.D.
In light of the evidence presented, the court has little trouble concluding that Cuba provided the FARC with the materials, training, and resources necessary to carry out these batteries—the aircraft sabotage and physical torture—and that it did so with intent to harm these plaintiffs. Cuba intentionally provided support to the FARC over a number of years and encouraged the FARC to use violence to promote its political agenda. That provision of support and encouragement facilitated the acts perpetrated against Stansell, Gonsalves, and Howes. See Cote Aff. ¶¶ 27-28, 32; Roig Decl. at 24. Cuba‘s support allowed for “[s]ophisticated communications between FARC Fronts tracking the aircraft and seeking permission to shoot it down“; the shooting down of the plane; “move[ment] of the U.S. hostages repeatedly over 5 years and maint[enance] of structures in the jungle for their imprisonment and torture“; and “the necessary logistic[al] support in order to keep the hostages captive.” Cote Aff. ¶ 45; see id. ¶¶ 29, 31, 38. Thus, Cuba is responsible, under a theory of battery, for the injuries Stansell, Gonsalves, and Howes sustained from the FARC sabotaging their aircraft and torturing them.
Cuba may be held liable under the theory of false imprisonment for the FARC‘s acts of hostage taking. Under general principles of tort law, a plaintiff
In addition, Stansell, Gonsalves, and Howes may recover under a theory of assault for the mental torture they endured at the hands of the FARC. An assault occurs when one person (a) “acts intending to cause a harmful or offensive contact with the person of the other ... or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” RESTATEMENT (SECOND) OF TORTS § 21. Stansell, Gonsalves, and Howes suffered imminent apprehension of death when the FARC tortured them with mock executions and visible preparations to kill them each time a helicopter flew nearby. Cuba may be held liable under the common law tort principles of assault for the mental harms Stansell, Gonsalves, and Howes suffered because it provided material support to the FARC‘s activities. See supra I.B, I.D.1.
Lastly, these plaintiffs may also recover under a theory of intentional infliction of emotional distress for the emotional trauma they endured. A defendant is liable for intentional infliction of emotional distress when he, “by extreme and outrageous conduct[,] intentionally or recklessly causes severe emotional distress to” the plaintiff. RESTATEMENT (SECOND) OF TORTS § 46. Terrorist acts themselves are intentional acts, aimed to cause severe emotional distress. See Levin, 529 F.Supp.2d at 17. “Moreover, the act of engaging in terrorism by means of material support ... is extreme, outrageous, and goes beyond all possible bounds of decency.” Id. Cuba‘s provision of material support to the FARC, which allowed for the attack on February 13, 2003, and hostage-taking, is extreme and outrageous conduct that intentionally caused Stansell, Gonsalves, and Howes severe emotional distress. These plaintiffs suffered extreme emotional anguish when forcibly marched through the jungle, denied medical care, refused communication with their loved ones, kept in cages, chained to trees and one another, prevented from performing basic bodily functions and needs, mock executed, and regularly being told they would be killed. See supra I.B, I.D.1. Cuba is liable for these harms as a result of directly financing, training, and otherwise providing material support to the FARC.
In sum, Cuba is liable to Stansell, Gonsalves, and Howes for the harm caused them by the FARC‘s acts of sabotaging their aircraft, taking and holding them hostage for 1,967 days, and physically and psychologically torturing them during their captivity.
2. The Indirect Victims—Judith Janis and the Janis Children
Judith Janis and her four children seek damages against Cuba for their “past and future loss of solatium, mental anguish,
Claims for solatium under the FSIA are nearly indistinguishable from claims for intentional infliction of emotional distress. See Flanagan v. Islamic Republic of Iran, 87 F.Supp.3d 93, 115 (D.D.C. 2015); Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22 (D.D.C. 2009). The same framework outlined above applies, see supra III.C.1, and plaintiffs who are not the direct victim of the “extreme and outrageous conduct” may still recover under
Judith, Christopher, Greer, Michael, and Jonathan have presented sufficient evidence to satisfy all the elements of a claim for intentional infliction of emotional distress. They are the widow and children of Tom Janis, and thus qualify as “members of the [v]ictim‘s immediate family.” See id. Moreover, as just discussed, Cuba‘s provision of material support and resources to the FARC—who had previously committed acts of terrorism—was sufficiently outrageous and extreme that the Janis family members did not have to be present to suffer severe emotional harm. Their declarations make clear that each family member suffered an immense loss with the death of Tom Janis, and Cuba‘s support enabled the FARC to perpetrate the acts that caused their severe emotional distress.
Judith lost her husband of more than 30 years—“the love of [her] life“—and spent years after his death investigating what happened in his final moments and who murdered him. She continues to grieve daily and has no intention of remarrying. Jud. Janis Aff. ¶¶ 8, 16, 17, 19.
All four children enjoyed a close and loving relationship with their father. C. Janis Aff. ¶ 4; M. Janis Aff. ¶ 4; G. Janis Aff. ¶ 4; Jon. Janis Aff. ¶ 2. Christopher was told of his father‘s plane crash while deployed overseas, flew home immediately, and while in the Atlanta airport learned his father had been killed. He is saddened that he will never be able to talk to his father about their shared experiences serving in the military and feels his accomplishments are less rewarding without being able to share them with his father. C. Janis Aff. ¶¶ 10-11.
Every Father‘s Day, Michael Janis goes through a box of his father‘s belongings. Michael learned his father had been killed from misspelled headlines on CNN, and it was devastating for him to have to keep the news to himself while his mother was still traveling home from Colombia. M. Janis Aff. ¶¶ 6, 8. Tom‘s death has created a “darkness and emptiness” in Michael‘s life, and Michael blames his father‘s murder for his divorce. Id. ¶ 11. He has not yet found peace with Tom‘s death, which “has been the most traumatic, painful, life-altering event [Michael] ha[s] ever experienced.” Id. ¶¶ 9, 12.
Following her father‘s death, Valentine‘s Day became a “dark day” for Greer, causing her to become filled with anxiety about
Jonathan, the youngest child, wears his father‘s “watch and wedding band as a daily reminder” of his loss. Jon. Janis Aff. ¶ 7. He is sad that he “no longer ha[s] [his] sounding board.” Id. During his father‘s funeral, Jonathan held his mother while she wept. Id. ¶ 6. For two years, he kept his father‘s cell phone number programmed in his cell phone, unwilling to delete the entry. Id. ¶ 7.
Thus, the members of the Janis family provided satisfactory evidence that Cuba is liable to them under
D. Damages
The purpose of
Here, Plaintiffs have sufficiently demonstrated that Tom Janis‘s death, the harm caused Stansell, Gonsalves, and Howes as hostages, and the ongoing pain and suffering of the former hostages and grieving Janis family members were reasonably certain and actually intended consequences of Cuba‘s material support of the FARC. Cuba knowingly encouraged, supplied, sheltered, and provided weapons and military training to these terrorists, who specifically targeted American citizens for their attacks. Cote Aff. ¶¶ 31-33, 37-38, 41; Roig Decl. at 13-15, 16-17, 24. In addition, Cuba utilized its close relationship with the Venezuelan government to facilitate the FARC‘s distribution of cocaine and safe travel along the Colombian-Venezuelan border, allowing the FARC to participate in international drug trafficking and evade efforts to thwart their operations, including recovery of the hostages. Roig Decl. at 16-17; see Cote Aff. ¶ 47. By supporting the FARC in this way, Cuba made the acts of terrorism at issue in this case and the pain and suffering they caused reasonably certain to occur. Thus, Plaintiffs have shown that they are entitled to an award of damages.
Stansell, Gonsalves, and Howes seek compensation for their pain and suffering, while Judith and the Janis children seek solatium damages for the emotional trauma of losing their husband and father. While quantifying these types of harms is inherently difficult, the court‘s “primary consideration is to ensure that individuals with similar injuries receive similar awards.” Moradi v. Islamic Republic of Iran, 77 F.Supp.3d 57, 70 (D.D.C. 2015) (internal quotation mark omitted); accord id. at 72.
Stansell, Gonsalves, and Howes ask the court to follow the per diem approach and consider an additional lump sum award to account for their extreme treatment during the more than five years they were held hostage. The court concludes that framework is appropriate. Stansell, Gonsalves, and Howes were held captive for 1,967 days, for which the court will award each victim $19,670,000. As in other FSIA cases, however, this base award falls short of compensating the hostage victims for the full extent of their injuries. Stansell, Gonsalves, and Howes suffered extreme physical, mental, and emotional abuse at the hands of the FARC, made possible by Cuba‘s provision of material support for the FARC‘s activities. The hostages survived a plane crash only to be subjected to long marches, weighed down by chains, denied medical treatment, starved, and exposed to and forced to suffer from serious illnesses—some of which are permanent. In addition, they lived in constant fear of death, far away from home and without contact from their loved ones, and under conditions that continue to haunt them today. This extreme suffering justifies an award greater than the per diem calculation.
Rather than submit a specific lump sum request to the court, Plaintiffs simply ask for an amount that is “fair and reasonable” under the case law. Stansell, Gonsalves, and Howes have suffered, and will continue to suffer, life-long pain and suffering as a result of the FARC‘s acts. The court concludes that the extent of the men‘s injuries warrants an additional payment of $25,000,000 each. This award aligns with lump sum awards in other cases involving extreme circumstances of hostage-taking. The amount of the award accounts for the length of time Stansell, Gonsalves, and Howes were held hostage—which far exceeds the periods of captivity of plaintiffs in other FSIA cases decided in this District—the violent shooting down of their aircraft, the extremity of their treatment in the jungle, and the ongoing physical, psychological, and emotional effects of their experience. Cf., e.g., Wyatt, 908 F.Supp.2d at 232 (awarding per diem amount of $210,000 for 21 days in captivity, plus $5,000,000 lump sum for pain and suffering); Massie, 592 F.Supp.2d at 77 (awarding per diem amount of $3,350,000 for 335 days in captivity, plus $13,400,000 lump sum for pain and suffering); Price, 384 F.Supp.2d at 134-36 (awarding per diem amount of $1,050,000 for 105 days in captivity, plus $7,500,000 lump sum for pain and suffering).
Courts also developed a framework for awarding solatium damages to spouses and immediate family members of those harmed by acts of state-sponsored terrorism. As a general matter, “courts typically award between $8 million and $12 million for pain and suffering resulting from the death of a spouse.” Flanagan, 87 F.Supp.3d at 117. In calculating awards for the loss of other family members, courts consider a variety of factors, including:
- (1) whether the decedent‘s death was sudden and unexpected; (2) wheth-
er the death was attributable to negligence or malice; (3) whether the claimants have sought medical treatment for depression and related disorders resulting from the decedent‘s death; (4) the nature (i.e., closeness) of the relationship between the claimant and the decedent; and (5) the duration of the claimants’ mental anguish in excess of that which would have been experienced following the decedent‘s natural death.
Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 89-90 (D.D.C. 2002).
The death of a spouse is undoubtedly one of the worst experiences in a person‘s life, only made more terrible by knowing the loved one‘s life ended at the hands of violent terrorists. Judith Janis had an unquestionably close relationship with her husband Tom, as evidenced by more than 30 years of marriage and a deep commitment to never spend more than 10 days apart. The pain and suffering she has experienced were magnified by the initial lack of information surrounding his death: she learned her husband had gone missing over a voicemail; only determined he had been killed days later; and worked for years with the FBI to learn exactly what happened to her husband. In light of these circumstances, the court awards Judith Janis $12,000,000 in solatium damages. See Belkin, 667 F.Supp.2d at 23 (collecting cases with similar awards); Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 85-86 (D.D.C. 2010) (s).
The Janis children suffered a profound loss when the FARC murdered their father, the emotional effects of which remain ongoing. There is no question on this record whether Tom Janis had a close and loving relationship with each of his children. Christopher, Greer, Michael, and Jonathan each shared a special bond with their father and continue to mourn his death more than a decade later. Tom Janis‘s death was, indeed, sudden and unexpected—he was young, in good physical shape, and had plans to visit his youngest son, Jonathan, in Florida. The children‘s anguish at their father‘s death was only exacerbated by the lack of information available; indeed, none of the Janis children knew the full details of what happened to their father until Stansell, Gonsalves, and Howes returned more than five years later. Moreover, the court does not doubt that the manner of Tom Janis‘s death—successfully crash-landing a plane under fire only to be taken hostage and, some excruciating hours later, shot execution-style—adds to their pain and suffering. Particular holidays and places perpetually remind the Janis children of the loss of not only their father, but also the opportunity to share their lives with him. Their suffering has been ongoing and will continue for the rest of their adult lives. Thus, the court will award each of the Janis children $5,000,000 in solatium damages.
IV. CONCLUSION
For the reasons explained above, the court grants Plaintiffs’ Motion for Default Judgment. The court enters judgment in favor of Plaintiffs and orders the Republic of Cuba to pay Keith Stansell, Marc Gonsalves, and Thomas Howes $44,670,000 each in compensatory damages; Judith Janis $12,000,000 in solatium damages; and each of the Janis children $5,000,000 in solatium damages. A separate order accompanies this Memorandum Opinion.
Amit P. Mehta
United States District Judge