Nancy WORLEY, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
Civil Action No. 12-2069 (RCL)
United States District Court, District of Columbia.
Signed December 8, 2014
75 F.Supp.3d 311
See also 264 F.Supp.2d 46.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, United States District Judge
This is one of many cases to have come before this Court arising out of the October 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. Plaintiffs—servicemen, relatives of servicemen, and estates representing deceased members of these groups—seek to recover damages for injuries sustained in the attack and its aftermath from defendants the Islamic Republic of Iran and the Iranian Ministry of Information and Security (“MOIS“).
Pending before the Court are plaintiffs’ motion for default judgment on liability and their motions to appoint special masters. For the reasons that follow, the Court concludes that defendants are liable to plaintiffs for injuries arising out of the Beirut barracks bombing. Therefore, plaintiffs’ motion for default judgment on liability is DENIED IN PART as to plaintiffs Ollie James Edwards and Jeff Dadich and GRANTED IN PART as to all other plaintiffs. The Court also concludes that Alan Balaran shall be appointed special master of the Court for consideration of the measure of damages appropriate for each plaintiff and for completion of such other duties as are specified in the Court‘s Order accompanying this Memorandum Opinion and also issued this date. Plaintiffs’ motion to appoint Mr. Balaran is GRANTED. Plaintiffs’ other motions to appoint special masters are DENIED.
I. PROCEDURAL HISTORY
Plaintiffs filed suit on December 28, 2012. Compl., ECF No. 1. Both jurisdiction and liability are premised on section 1605A of the Foreign Sovereign Immunities Act (“FSIA“).
Defendants were served with process on July 31, 2013, notifying them of the pendency of this litigation. ECF No. 17. Defendants did not appear or respond in any way. They have not done so to this day. The Clerk of the Court, upon an affidavit by plaintiffs in support thereof, entered default against defendants on May 23, 2014. ECF Nos. 20, 21. Plaintiffs have since moved for a default judgment against defendants. Pl.‘s Renewed Mot. for Default J. on Liability, ECF No. 27. They have also moved for appointment of three special masters: Larry Searle Lapidis, Alan Balaran, and Ronald Hedges. Pl.‘s Mot. to Appoint Special Master, ECF Nos. 23-27.
II. FINDINGS OF FACT
Before determining whether defendants should have a default judgment entered against them, the Court must consider evidence and make findings of fact with respect to plaintiffs’ allegations. This is because
A. Judicial Notice of Prior, Related FSIA Cases
A court may “take judicial notice of, and give effect to, its own records in another but interrelated proceeding.” Opati v. Republic of Sudan, 60 F.Supp.3d 68, 73, Civil Action No. 12-1224 (JDB), 2014 WL 3687125, at *2 (D.D.C. July 25, 2014) (quoting Booth v. Fletcher, 101 F.2d 676, 679 n. 2 (D.C. Cir. 1938)). This is in keeping with
The Court may not, however, simply adopt previous factual findings without scrutiny. This is because factual findings “represent merely a court‘s probabilistic determination as to what happened, rather than a first-hand account of the actual events.” Id. at 116. As such, courts have concluded that findings of fact are generally considered hearsay, not subject to an enumerated exception to the prohibition on hearsay evidence in the federal rules. Rimkus, 750 F.Supp.2d at 172. This does not mean, however, that courts in later, related FSIA proceedings are given the “onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack.” Id. Instead, courts hearing related FSIA cases may “rely upon the evidence presented in earli-
In Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (D.D.C. 2003), this Court presided over a two day bench trial of claims arising out of the Beirut barracks bombing. Id. at 48. The Court “reviewed the extensive evidence presented during that trial by both lay and expert witnesses” regarding the bombing and defendants’ actions relating to it. Id. The Court will take judicial notice of that evidence in making its findings of fact in this case.
B. The United States Presence in Beirut
The 24th Marine Amphibious Unit (“the 24th MAU“) of the United States Marines arrived in Beirut in 1983 as part of a multinational peacekeeping force comprised of American, British, French, and Italian soldiers. Id. at 49. Their presence was in response to an ongoing civil war in Lebanon, one that would kill approximately twenty thousand Lebanese before its conclusion. Id. Col. Timothy Geraghty, commander of the 24th MAU, testified before the Court in Peterson regarding their mission:
[E]ssentially what it was, it was primarily a peacekeeping mission and it was to show [our] presence, and when I say ours, and this is throughout all the forces, is that we were out showing a presence, [primarily] to provide stability to the area. And I might add that there‘s no doubt in just about anyone involved at the time, we saved a lot of lives by our presence there for awhile. And that was part of, I might add, in my judgment, the success of that, our presence mission there, and [that] it was working is the primary reason why we were targeted ....
The rules—these were geared primarily again with the peacekeeping mission [in mind] and the sensitivities of killing or maiming someone accidentally. That could be a tinderbox. That could start a whole chain of events.
Id. at 50 (alterations in original).
The “rules” referred to in Col. Geraghty‘s testimony, the rules of engagement applicable to the 24th MAU, “made clear that the servicemen possessed neither combatant nor police powers.” See id. at 49 (finding that the “servicemen were ordered not to carry weapons with live rounds in their chambers, and were not authorized to chamber the rounds in their weapons unless (1) they were directly ordered to do so by a commissioned officer or (2) they found themselves in a situation requiring the immediate use of deadly force in self-defense“). In light of this evidence, the Court finds, just as it did in Peterson, “that on October 23, 1983, the members of the 24th MAU, and the service members supporting the unit, were clearly non-combatants operating under peacetime rules of engagement.” Id. at 50.
C. The Bombing
On the morning of October 23, 1983, an Iranian national named Ismalal Ascari crashed a truck containing a large explosive device through wire and sandbag barriers and into the center of the 24th MAU‘s barracks. Id. at 56. The truck‘s payload detonated with a force between
The attack resulted from a plan hatched by a group including the leader of the Lebanese headquarters of the Iranian Revolutionary Guard, an elite Iranian security and military force, and leaders of Hezbollah, a radical organization dedicated to the perpetration of “terrorist activities in furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran.” Id. at 51, 54 n. 14, 55-56. The truck used to carry out the attack was “disguised so that it would resemble a water delivery truck that routinely arrived at the Beirut International Airport, which was located near the U.S. Marine barracks in Beirut.” Id. at 56. Members of Hezbollah “ambushed the real water delivery truck before it arrived at the barracks,” allowing the bomb carrying truck to carry on its mission without raising suspicion until it was too late. See id.
D. Defendants’ Actions and Involvement
The Peterson Court received overwhelming evidence demonstrating that “Hezbollah and its agents received massive material and technical support from the Iranian government” in carrying out the Beirut attack and that the “formation and emergence of Hezbollah as a major terrorist organization is due to the government of Iran.” Id. at 53, 58. The Court agrees that these findings are accurate and adopts them in this case. These findings are demonstrated by the following evidence.
1. Iran‘s role in Hezbollah‘s origins and operations
Hezbollah first began as a radical faction of Shi‘ite Muslims in Lebanon, encouraged in 1982 to separate from more moderate members of the community by the Iranian government. Id. at 51. Experts testified to the Peterson Court that at the time of the Beirut bombing, Hezbollah was largely a “creature of the Iranian government,” wholly dependent on the government‘s financial support and largely acting in furtherance of Iranian interests. Id. at 51-53; e.g. id. at 53 (recounting testimony stating that the internal politics of Hezbollah were such that “no one in the organization would have thought about carrying out an activity without Iranian approval and almost certainly Iranian orders“). Indeed, Robert Baer, a case officer in the Directorate of Operations at the CIA at the time, testified to the Court that “Hezbollah wasn‘t ‘formally’ created until 1985;” before that date, it was merely “a bunch of agents of Iran.” Id. at 52 n.10.
2. MOIS approval and instigation of the Beirut attack
MOIS was at the center of the relationship between Iran and Hezbollah. Originally formed as the secret police of the Shah of Iran, MOIS served as the “intelligence organization of the new government” after the 1979 revolution. Id. at 53. It was also the “primary agency through which the Iranian government both established and exercised operational control over Hezbollah.” Id. Testimony at the Peterson trial established that MOIS approval would have been required before an operation like the Beirut attack. Id.
Such a message of approval did, in fact, issue regarding the barracks bombing. Admiral James A. Lyons, Deputy Chief of Naval Operations for Plans, Policy, and Operation at the time testified regarding the interception of a September 26, 1983 message between Tehran and Damascus. Id. at 54. The Court in Peterson described the message:
The message had been sent from MOIS to the Iranian ambassador to Syria, Ali Akbar Mohtashemi, who presently serves as an adviser to the president of Iran, Mohammad Khatami. The message directed the Iranian ambassador to contact Hussein Musawi, the leader of the terrorist group Islamic Amal, and to 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.” Admiral Lyons testified that he has absolutely no doubt of the authenticity or reliability of the message, which he took immediately to the secretary of the navy and chief of naval operations, who viewed it, as he did, as a “24-karat gold document.”
Id. at 54 (footnotes omitted). Evidence presented to the Court showed that Ambassador Mohtashemi “did proceed to contact a member of the Iranian Revolutionary Guard ... and instructed him to instigate the Marine barracks bombing.” Id. at 54-55 (describing deposition testimony of a Hezbollah member who stated that Mohtashemi contacted the leader of the Lebanese headquarters of the Iranian Revolutionary Guard, the man who went on to help plan the attack with members of Hezbollah, as set forth above).
3. Iranian material support for Hezbollah and the Beirut attack
Between 1983 and 1988, “the government of Iran spent approximately $50 to $150 million financing terrorist organizations in the Near East.” Id. at 51. Hezbollah was one entity to receive the benefit of Iran‘s sinister largesse. MOIS acted as a “conduit” for the provision of these funds to Hezbollah. Id. at 53.
Iran‘s support extended to the provision of training and matériel. Dr. Reuven Paz, a scholar who had conducted extensive research on Islamist terrorist organizations, testified to the Peterson Court that during the creation of Hezbollah, members “started to be trained in training camps in the Bekaa Valley, where the main Iranian forces were located.” Id. at 52. As to the supplies used in carrying out the barracks bombing, circumstantial evidence strongly indicates Iranian involvement. The bomb that caused the blast was composed of a large quantity of an explosive called pentaerythritol tetranitrate (“PETN“), according to testimony from on-scene FBI forensic explosive investigator Danny A. Defenbaugh. Id. at 56-57. The PETN on board the truck was in “bulk form,” meaning that it was of a raw type not generally available commercially. Id. at 56-57. Evidence indicated that “[i]n the Middle East, the bulk form of PETN is produced by state-sponsored manufacturers for military purposes.” Id. at 57. Warren Parker, an explosives expert testifying before the Peterson Court, stated that the bombing could not have been carried out by a mere group of unsophisticated individuals because of the “significant amount” of “military-type explosive” involved and because “it was carried out so successfully and not bungled;” the latter point “enhance[d] the fact that somebody had practiced this before.” Id. at 57-58.
In light of this evidence, the Court reaffirms its previous finding that the “sophistication demonstrated in the placement of an explosive charge in the center of the Marine barracks building and the devastating effect of the detonation of the charge indicates that it 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.
4. Iranian government involvement at the highest level
As set forth above, major Hezbollah operations at the time of the barracks bomb-
III. CONCLUSIONS OF LAW
A. Jurisdiction and Sovereign Immunity
The FSIA is the “sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). The statute codifies the concept of foreign sovereign immunity, something which is “a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.” Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2255 (2014) (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). The FSIA sets forth exceptions to foreign sovereign immunity that provide the only authority for a district court to assert subject matter jurisdiction over claims against a foreign state. Odhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir. 2014). “[I]f no exception applies, the district court has no jurisdiction.” Id.
Because subject matter jurisdiction is premised on the existence of an exception to foreign sovereign immunity, a district court considering a claim against a foreign state must decide whether an exception to immunity applies “even if the foreign state does not enter an appearance to assert an immunity defense.” Verlinden, 461 U.S. at 493 n. 20. This is in keeping with the general rule that “[s]ubject-matter jurisdiction can never be waived or forfeited;” thus, when jurisdictional questions arise in a suit, “courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012).
1. Original jurisdiction
Federal district courts have original jurisdiction over FSIA cases by virtue of
All of section 1330(a)‘s requirements are met in this case. First, plaintiffs have not demanded a jury trial. This
Third, this suit is against a “foreign state.” One defendant, Iran, is plainly a foreign state. The status of MOIS requires greater consideration. The FSIA defines a foreign state at section 1603(a) as including “a political subdivision of a foreign state.”
a. Sovereign immunity
The final requirement for jurisdiction under section 1330(a), whether an exception to sovereign immunity exists as to the defendants, requires more substantial explanation. The exception to foreign sovereign immunity relevant to this suit is codified at
[I]n any case ... [1] in which money damages are sought [2] against a foreign state [3] for personal injury or death that was [4] caused by [5] an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of 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.
Id. (numbering added). The Court now considers each of these requirements for waiver of sovereign immunity in turn.
First, the complaint identifies and seeks only monetary remedies for plaintiffs’ alleged injuries. See generally Compl. Second, as established above, both defendants are foreign states as defined by the statute. Third, plaintiffs have alleged various instances of personal injury or death and all claims arise from these allegations. Under section 1605A, such injury or death “must merely be the bases of a claim for which money damages are sought.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 66 (D.D.C. 2010). Jurisdiction is not restricted to injury suffered directly by each claimant. Id. Thus, plaintiffs’ various claims for physical, emotional, and financial damages to survivors, decedent‘s estates, and decedent‘s family members, all arising from the bombing, constitute the type of claims for personal injury or death required for jurisdiction.
Finally, the claims must arise out of “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” This act or provision of material support must be engaged in by an officer, employee, or agent of the foreign state within the scope of the actor‘s office, employment, or agency.
Extrajudicial killing has the same meaning as it is given in section 3 of the Torture Victim Protection Act of 1991.
Provision of material support or resources, alternatively, also may form the basis of a waiver of sovereign immunity. The term has the same meaning as it is given in
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 (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
The facts found by the Court demonstrate that defendants engaged in material support for acts of extrajudicial killing. The Court has found that Iran, through the “conduit” of MOIS, provided Hezbollah with explosives, funding, and training that led directly to the barracks bombing. These provisions meet section 2339A‘s expansive definition of “material support.” Furthermore, because these provisions would have necessarily been approved by officials at the highest level of the Iranian government, defendants’ material support for the bombing was evidently within the scope of office, employment, or agency.
Defendants are not entitled to sovereign immunity because this case satisfies each element of
2. Requirements for a claim to be heard
First, Iran was designated by Secretary of State George P. Shultz on January 23, 1984, in accordance with the Export Administration Act of 1979, as a “country which has repeatedly provided support for acts of international terrorism.”
Plaintiffs meet the second requirement because all claimants or victims were nationals of the United States or members of the United States armed forces at the time of attack. Uncontroverted affidavit evidence has been submitted to the Court demonstrating that all but four of the plaintiffs, at the time of the bombing, were
Finally, plaintiffs have met the third requirement because the “act” described in subsection (a)(1)—i.e. the act of extrajudicial killing—occurred in Lebanon, not the defendant state. Thus, plaintiffs were not required by statute to afford defendants a reasonable opportunity to arbitrate.
3. Personal jurisdiction
Federal courts have personal jurisdiction over a foreign state if (1) the court has jurisdiction pursuant to section 1330(a) and (2) service has been properly made under section 1608 of the FSIA.
[B]y sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.
The Clerk of the Court certified mailing the specified documents, translated as required, to the State Department on June
B. Section 1605A‘s Statute of Limitations is Not Jurisdictional
unduly delayed claims.” Id. On the other hand, some statutes of limitations have jurisdictional import and, like other matters that go to the subject matter jurisdiction of the court, cannot be waived by the neglect or inaction of the parties. See, e.g., Griffith v. Barnes, 560 F.Supp.2d 29, 36-37 (D.D.C. 2008) (dismissing, sua sponte, certain claims as time-barred because the relevant statute of limitations was a jurisdictional component of the statute).
To determine whether a limitations provision is jurisdictional, a court looks to its “text, context, and relevant historical treatment.” Menominee Indian Tribe of Wisconsin v. United States, 614 F.3d 519, 524 (D.C. Cir. 2010) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)). If the words used by Congress “clearly state[d]” that the limitations period prescribed was jurisdictional, a court should treat it as such. Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006)). Absent such a clear textual indication, the court should consider “whether the structure of the statute or long-standing judicial precedent ‘compel[s]’ the conclusion that it nonetheless impose[s] a jurisdictional limit.” Id. (alteration in original) (quoting Muchnick, 559 U.S. at 162).
1. Text
The Court first considers the text of section 1605A‘s limitations provision. It is labeled “Limitations” and does not explicit-
The picture is somewhat muddied, on the other hand, by consideration of the FSIA‘s jurisdiction conferring provisions.
The Court holds, however, that interpreting the FSIA‘s text to indicate a jurisdictional limitations period does not accord with the Supreme Court‘s “bright line” rule that a statute “clearly state” that a particular provision is jurisdictional. See Sebelius v. Auburn Reg‘l Med. Ctr., 133 S.Ct. 817, 824 (2013). Sections 1330(a) and 1604 both focus on a foreign state‘s immunity or lack thereof as the sole factor relating to sections 1605 to 1607 that determines the subject matter jurisdiction of federal courts. See
In Muchnick, the Supreme Court concluded that copyright law‘s requirement of copyright registration before filing an infringement claim was not jurisdictional. Muchnick, 559 U.S. at 157-58, 169. The Court‘s holding was based in part on the registration requirement‘s “locat[ion] in a provision ‘separate’ from those granting federal courts subject-matter jurisdiction over those respective claims.” Id. at 164. Neither jurisdiction-conferring statute relevant to the suit “condition[ed] its jurisdictional grant on whether copyright holders have registered their works before suing for infringement.” Id. at 165. Thus, for example, the Court held that the registration requirement is materially different from the diversity jurisdiction statute‘s amount in controversy requirement. Id. at 162. The latter statute‘s arrangement demonstrates that the amount in controversy requirement is a “threshold ingredient” of diversity jurisdiction. Id. Similarly, in this case, the statutes creating jurisdiction
2. Structure of the FSIA
As to the FSIA‘s structure, an interpretation of subsection (b)‘s limitations provision as non-jurisdictional—and, thus, as waivable—coheres with the way limitations operates for FSIA claims brought under section 1605. Section 1605, unlike section 1605A, does not contain an explicit statute of limitations. Instead, when state causes of action are brought under that section, “the local forum‘s statute of limitations applies to the action.” See Sea Search Armada v. Republic of Colombia, 821 F.Supp.2d 268, 272 (D.D.C. 2011) (citing Gilson v. Republic of Ireland, 682 F.2d 1022, 1025 n. 7 (D.C. Cir. 1982)). Furthermore, courts have treated such state limitations as not “intertwined” with sovereign immunity issues and, thus, implicitly as non-jurisdictional. See Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 666-67 (7th Cir. 2012) (declining to exercise pendent appellate jurisdiction over a statute of limitations defense because it was “not inextricably intertwined with the sovereign immunity argument“). It strikes the Court as anomalous that section 1605A, which expanded the rights of plaintiffs to recover against state sponsors of terrorism, would have a limitations provision of jurisdictional import when other parts of the FSIA did not.
3. Prior judicial precedent
Finally, in the absence of a clear congressional intent in the statute‘s text, “long-standing judicial precedent” can support holding a statutory requirement jurisdictional. Menominee, 614 F.3d at 524. This Court has previously concluded on two occasions that section 1605A‘s statute of limitations is jurisdictional. See Valore, 700 F.Supp.2d at 64, 69 (listing compliance with the statute of limitations as one of the requirements for subject matter jurisdiction in a case brought under section 1605A); Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 62, 66 (D.D.C. 2010) (same). Additionally, at least one other judge of this district has considered sua sponte plaintiffs’ compliance with section 1605A‘s statute of limitations even though the defendant did not appear to raise the issue, potentially showing implicitly a jurisdictional view of the provision. Estate of Doe, 808 F.Supp.2d at 7, 16-17.4
These prior cases do not constitute the sort of long standing judicial precedent which would support a conclusion that a provision is jurisdictional. In cases where the Supreme Court has found a precedent-based argument dispositive in holding a provision jurisdictional, “the Court rested its decision on a line of Supreme Court precedent dating back more than a century.” Menominee, 614 F.3d at 525. No such longstanding and well settled line of cases is present here.
Furthermore, the Court is of the view that a departure from its prior views is warranted. The Supreme Court has recently clarified its jurisprudence regarding when statutory procedural requirements should be interpreted to bear on a court‘s
In light of the foregoing, the Court concludes that compliance with section 1605A‘s statute of limitations is not required in order to assert subject matter jurisdiction. Therefore, the Court is not required to raise limitations on its own motion.
4. The Court will not discretionarily raise the limitations defense
The Supreme Court has recognized that a court can, as a matter of discretion, raise a preclusion defense on its own motion in “special circumstances.” Arizona v. California, 530 U.S. 392, 412 (2000). Similarly, the Supreme Court has held that district courts may, in considering petitions for habeas corpus, consider the timeliness of those petitions sua sponte. Day v. McDonough, 547 U.S. 198, 209 (2006). In accordance with these cases, the Fourth Circuit has held that a court may generally consider affirmative defenses sua sponte when the proceedings “implicate important judicial and public concerns not present in the circumstances of ordinary civil litigation.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 209 (4th Cir. 2013) (internal citation omitted). With regard to the defense of res judicata in an FSIA case, that court held that “[c]omity in the face of an absent foreign sovereign present[ed] a special circumstance,” which allowed the court to raise the defense on its own motion. Id. The court also noted that FSIA‘s requirement at
In this case, however, the Court declines whatever discretionary authority it may have to raise the defense of limitations on Iran‘s behalf. It does so in light of the fundamental rule that statutes of limitations are generally treated as affirmative defenses that may be waived. John R. Sand, 552 U.S. at 133. Furthermore, before using its discretion to consider a defense not raised by a party, a court must “determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition.” Day, 547 U.S. at 210 (internal citation and quotation marks omitted). In this case, defendants have chosen not to appear in this litigation and they must take the consequences that attend that decision, including waiver of potentially legitimate defenses. See id. at 210-11 (holding that dismissal sua sponte on the basis of limitations was appropriate where the record suggested it was mere “inadvertent error” that led the defendant to fail to raise the defense in its answer). While the Court recognizes that considerations of international comity are compelling, it will heed Congress‘s determination that the statute of limitations is not a requirement for exercise of subject matter jurisdiction and proceed to consideration of the merits.
The state-sponsored terrorism exception provides a private right of action. The action is available to, among others, nationals of the United States and members of the United States armed forces.
Section 1605A‘s private right of action has five basic elements. A plaintiff must prove: (1) “an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act” where (2) the act was committed, or the material support was provided, by the foreign state or agent of the foreign state, and the act (3) caused personal injury or death (4) “for which courts of the United States may maintain jurisdiction under this section for money damages.”
1. Threshold determination of plaintiffs’ and defendants’ statuses
The Court first determines whether the parties are such that subsection (c)‘s cause of action may be pursued.
a. Defendants are state sponsors of terrorism
Defendants, for the reasons stated above in part III.A.2, are state sponsors of terrorism within the meaning of section 1605A(a)(2)(A)(i) and may be held liable.
b. Entitlement of plaintiffs to bring section 1605A(c) action
All but four of the plaintiffs have demonstrated by uncontroverted affidavits that they are nationals of the United States or were members of the armed forces at the time of the attack,5 thus demonstrating that they are among the types of parties that may bring a claim under subsection (c).
Three plaintiffs—Arley Buckmaster, Larry Edwards, and Roscoe Hamilton—have submitted no evidence demonstrating that they fit within one of the four categories of persons that may bring a claim under section 1605A‘s private right of action. The Court directs the special master appointed by the Court‘s Order issued this date to collect evidence regarding whether these three individuals fit within one of the four categories of persons to whom a foreign state may be liable under section 1605A(c). If the Court cannot ultimately determine that these individuals are entitled to bring a section 1605A(c) claim, it shall, at that time, vacate its finding of liability as to them.6
Plaintiff Ollie James Edwards also has not submitted evidence demonstrating that he is within one of the categories of persons to whom a foreign state may be liable under section 1605A(c). Furthermore, uncontroverted affidavit evidence submitted to the Court indicates that he is,
c. Standing of estate plaintiffs
In some counts, estate plaintiffs bring claims for injuries suffered during the decedent‘s life. These plaintiffs must establish their standing before they may recover for harms suffered during the decedent‘s lives. Taylor v. Islamic Republic of Iran, 811 F.Supp.2d 1, 12 (D.D.C. 2011) (noting that “recovery for pain and suffering... is not universally available to estate-plaintiffs“). The determination of whether an estate may maintain a cause of action for injuries suffered during the decedent‘s life is a question “governed by the law of the state which also governs the creation of the estate.” Id. State law governs this question because it is not related to the extent and nature of the claims at issue, but instead involves a threshold question regarding the “power of the estate to bring and maintain legal claims.” Id.
Plaintiffs have presented no evidence regarding which state laws govern this question as to each estate plaintiff. The Court will, therefore, refer the matter to the special master appointed by the Order accompanying this Memorandum Opinion. The special master shall take evidence regarding which state laws govern this issue as to each decedent. If, based on this evidence, the Court determines that relevant state laws preclude any estate plaintiff from recovering, the Court shall dismiss that plaintiff.
d. Standing of deceased plaintiffs
A small group of plaintiffs who appear to allege claims on their own behalf are deceased according to uncontroverted evidence submitted to the Court. They are Arley Buckmaster, Larry Edwards, Ollie James Edwards, and Roscoe Hamilton. For the reasons stated above, plaintiff Ollie James Edwards is dismissed from this case. Plaintiffs Arley Buckmaster, Larry Edwards and Roscoe Hamilton require greater consideration.
Deceased persons are not proper parties. See
Affidavit evidence demonstrates that Roscoe Hamilton died during the pendency of this litigation. Ramona Sue Hamilton Green Aff. ¶ 9, ECF No. 27-2 at 131. The Court does not have before it evidence indicating whether or not Arley Buckmaster or Larry Edwards died during or before this litigation commenced. The Court concludes that plaintiffs shall file a formal statement of death within 14 days of this date, identifying the successor that may be substituted as a party as to each of these individuals. See Daskalea v. Washington Humane Soc‘y, 275 F.R.D. 346, 370 (D.D.C. 2011) (adopting this procedure in a similar situation). If no party or representative or successor moves for substitution within 90 days of that date, these plaintiffs’ claims shall be dismissed. Furthermore, if the formal statement of death demonstrates that Arley Buckmaster and Larry Edwards were deceased at the time this litigation was commenced, the Court shall at that time consider the propriety of ordering substitution of a successor party despite this fact or whether their claims should be dismissed. Compare Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir. 1969) (per curiam) (“[Rule 25] is not available to the appellants in the present case since [defendant] predeceased the filing of the action.“) with Mohammadi, 947 F.Supp.2d at 54 n.2 (finding substitution “appropriate” as to a named plaintiff who predeceased commencement of the action).7
2. Act
For the reasons stated in part III.A.1.a, the Court finds that the acts giving rise to
this case are of the type for which a foreign state may be held liable under section 1605A(c). Specifically, the evidence establishes that acts of extrajudicial killing were committed by defendants—through their agents in Hezbollah—and that defendants provided material support in furtherance of these acts. These acts were within the scope of agency, office, or employment.
3. Actor
Defendants may only be held liable under section 1605A(c) if the acts of extrajudicial killing were committed or the provision of material support made by defendants themselves or by their agents.
4. Theory of recovery—causation and injury
The elements of causation and injury in
a. Wrongful death
Estates of some deceased service members bring claims for wrongful death.
Compl. Counts I, V, XVIII, XXI.19. This Court has previously determined that a decedent‘s heirs at law, through the decedent‘s estate, may bring a wrongful death action under section 1605A(c) “for economic losses which result from a decedent‘s premature death.” Valore, 700 F.Supp.2d at 78 (internal citation omitted). Where defendants are liable for a decedent‘s extrajudicial killing, as these defendants are, they may be held “liable for the economic damages caused to decedents’ estates.” Id. Plaintiffs’ have sufficiently proved the validity of their wrongful death theory of recovery against defendants.
b. Assault and battery
Survivors of the attack—including estates of those survivors who have since died—have alleged assault and battery. Compl. Counts IX, LIII, LIV, LVII. A defendant‘s liability for assault in a section 1605A(c) case is established if “(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.‘” Valore, 700 F.Supp.2d at 76 (alteration in original) (quoting Restatement (Second) of Torts § 21(1)). Liability for battery arises when a defendant “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].‘” Valore, 700 F.Supp.2d at 77 (alteration in original) (quoting Restatement (Second) of Torts § 13).
c. Intentional infliction of emotional distress
Relying principally on the Restatement (Second) of Torts, this Court has set out the following standard for recovery on a theory of IIED in section 1605A(c) cases: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Estate of Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20, 26 (D.D.C. 2009) (quoting Restatement (Second) of Torts § 46(1)).
An actor may also be liable for IIED to a party against whom the extreme and outrageous conduct was not directed if that party is (1) a member of the victim‘s immediate family and (2) was present at the time of the extreme and outrageous conduct. See Murphy, 740 F.Supp.2d at 75 (citing Restatement (Second) of Torts § 46(2)(a)).10 The “immediate family” requirement is strictly construed in FSIA cases; generally, only spouses, parents, siblings, and children are entitled to recover. Id.11 As to the issue of presence, this Court has previously held that one “need not be present at the time of a terrorist attack upon a third person to recover for severe emotional injuries suffered as a result.” Valore, 700 F.Supp.2d at 80. This is because terrorism is sufficiently extreme and outrageous to demonstrate that it is intended to inflict severe emotional harm on even those not present at the site of the act. Id.
The servicemen plaintiffs have established defendants’ liability as to their IIED claims. As this Court has previously held in cases arising out of the Beirut barracks bombing, “[a]cts of terrorism are by their very definition extreme and outrageous and intended to cause the highest degree of emotional distress.” Murphy, 740 F.Supp.2d at 74 (quoting Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22
The family members of servicemen injured and killed in the attack have also met the additional elements that attend an IIED claim for actions directed against a third person. Each has established by uncontroverted affidavits that they are immediate family members of servicemen present at the attack. Furthermore, although the family member plaintiffs do not allege that they were present at the site of the Beirut attack, this requirement has not been imposed in cases arising out of the Beirut barracks bombing because of the particularly extreme and outrageous nature of the terrorist conduct at issue.
Plaintiffs, except for Ollie James Edwards for the reasons stated in part III. C.1.b, have established a valid theory of recovery with respect to their IIED claims.
d. Survival actions
Several counts of plaintiffs’ complaint plead “survival claims.” See Compl. Counts II, VI, XIX, XXII. Each one seeks damages for harms suffered between the initial moment of injury and decedent‘s death. See id. Additionally, although not termed survival claims, several deceased plaintiffs allege causes of action for harms suffered during the decedent‘s life. See Compl. Counts VII, XVI, XX.
A survival claim is one “that could have been brought by the decedent, had he lived to bring it.” Valore, 700 F.Supp.2d at 77 (citing Restatement (Second) of Torts § 926). The recovery is limited, however, to harms suffered before death. Restatement (Second) of Torts § 926(a). As discussed above, all plaintiffs seeking damages for harms suffered during the decedent‘s life must have standing under the particular state law relevant to each deceased plaintiff which governs the survival of rights of action after death. If they do, plaintiffs’ claims, all apparently lodged on theories of battery and IIED, present a valid theory of recovery against defendants for the reasons stated in the sections regarding defendants’ liability on those theories.
e. Punitive damages
Plaintiffs’ complaint also contains a number of counts seeking punitive damages. Compl. Counts IV, VIII, XII, XXI, XXIV, LVI. 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). This is not the end of the matter, however. Plaintiffs have alleged a number of independent claims for which punitive damages may be an appropriate remedy. Cf. Rimkus, 750 F.Supp.2d at 175-76 (allowing a “claim” for punitive damages to proceed because it was supported by sufficiently specific allegations of a cause of action under section 1605A). The Court shall treat plaintiffs’ punitive damages counts as, in effect, a request for punitive damages as a remedy for their other claims against defendants. See Park v. Hyatt Corp., 436 F.Supp.2d 60, 66 (D.D.C. 2006) (treating a claim for punitive damages as “part of an ad damnum clause“). The Court will consider the proper measure of punitive damages, if any, at the time it considers the special master‘s recommendations regarding compensatory damages.
5. Personal injury
As was already established in part III. A.1.a and for the reasons stated in that
6. Jurisdiction
For the reasons laid out above in part III.A, the Court “may maintain jurisdiction” over this suit. In light of plaintiffs’ satisfaction of subsection (c)‘s requirements, the Court concludes that defendants may be held liable to them on the basis of this statute.12
D. Liability Under Non-Federal Law
In some counts of their complaint, plaintiffs seek survival and wrongful death damages arising under both section 1605A‘s private right of action and District of Columbia law. Compl. Counts I, II, V, VI, XVIII, XIX, XXI.1, XXII. In each instance, plaintiffs’ prayer for damages is only premised on one set of injuries. Plaintiffs can only have one recovery for their injuries, regardless of the number of theories upon which they base their complaint. Kassman v. Am. Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1976) (“Where there has been only one injury, the law confers only one recovery, irrespective of the multiplicity of parties whom or theories which the plaintiff pursues.“).
explicitly provides for the type of damages that plaintiffs seek in each of the above noted counts (upon sufficient proof of course), the Court will proceed only on the basis of the section 1605A(c) claims for each of the counts named in this paragraph. See Belkin, 667 F.Supp.2d at 22-23 (declining to award damages on two counts of a complaint because, although the complaint pled causes of action under District of Columbia and Israeli law, the requested damages were duplicative of a wrongful death count arising under section 1605A(c)).13
IV. SPECIAL MASTER
On July 2, 2010, in O‘Brien v. Islamic Republic of Iran, a case arising out of the same facts as the present matter, the Court adopted an Administrative Plan Governing Special Masters. The Court shall adopt that plan in this case as well.
In accordance with
Plaintiffs have moved for the appointment of three special masters: Alan Balaran, Larry Searle Lapidis, and Ronald Hedges. ECF Nos. 23-26. The Court is of the view that Alan Balaran is an appropriate selection as special master in this case given his familiarity with the Court‘s expectations of a special master in section 1605A cases. Mr. Balaran has complied with the initial requirements of the Court‘s Administrative Plan, making his appointment permissible under that Plan and under the Federal Rules of Civil Procedure. See ECF Nos. 25-2, 25-3. The Court is confident that, assuming he receives sufficient and appropriate cooperation from the plaintiffs, Mr. Balaran will be more than capable of timely complying with the Court‘s Order. Therefore, the Court sees no need at this time for the appointment of additional masters. Plaintiffs’ motion for the appointment of Alan Balaran is granted; their motions for the appointment of Larry Searle Lapidis and Ronald Hedges are denied.
V. CONCLUSION
For the foregoing reasons, the Court holds that judgment shall be entered against defendants as to all issues of liability except that: (1) this judgment shall be vacated as to plaintiffs Arley Buckmaster, Larry Edwards, and Roscoe Hamilton if the Court ultimately determines that no evidence supports their bringing a claim under
Plaintiffs shall file a formal suggestion of death as described herein within 14 days of this date regarding Arley Buckmaster, Larry Edwards, and Roscoe Hamilton. If no party or successor or representative moves for substitution of a proper party within 90 days of that formal suggestion, these plaintiffs’ claims shall be dismissed. The Court makes no determination today whether, if it is shown that Larry Edwards or Arley Buckmaster were deceased at the commencement of this litigation, substitution would be proper as to them.
The Court will refer this matter to special master Alan Balaran for the taking of evidence on and recommendation of findings regarding the measure of compensatory damages warranted for each plaintiff and such other matters specified in the Order accompanying this Memorandum Opinion.
The Court defers consideration of the appropriate level of punitive damages, if
ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE
Civil Action No. 14-1557 (JEB)
United States District Court, District of Columbia.
Signed December 8, 2014