Bluth v. Islamic Republic of Iran ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NETHANIAL CHAIM BLUTH, et al.,:
Plaintiffs,
v. Civil Action No. 12-250 (GK)
ISLAMIC REPUBLIC OF IRAN,
et al.
Defendants.
Memorandum 0pinion
On February 13, 2012, ten members of the Bl'uth family
("Plaintiffs" or "the Bluths") filed a Complaint alleging that the
Islamic Republic of Iran, the Iranian Ministry of Information and
Security, and the Iranian Revolutionary Guard Corps ("Iranian
Defendants") are liable under the Foreign Sovereign Immunities Act
("FSIA"), 28 U.S.C. § 1605A, for Plaintiffs' physical and emotional
injuries arising from a terrorist attack by Hamas directed at a
classroom full of students studying Torah on March 7, 2002. Am.
Compl. 28 U.S.C.
§ 1608(e). As explained herein, Plaintiffs have met this standard.
Accordingly, the Court will gEant their Motion for Default
Judgment.
I. FINDINGS OF FACT
A. Background
1. Hamas
Hamas is a Palestinian Sunni Islamist group that formed in
1987 as a derivative of the Palestinian branch of the Egypt-based
Muslim Brotherhood. Declaration of Dr. Matthew Levi tt 1 ("Levitt
Deel.") at 17 [Dkt. No. 56-2]. Known.as Barakat al-Muqawamah al-
Islamiyya in Arabic, (translated as "The Islamic Resistance
Movement") ("Am. Compl.") [Dkt. No. 5 '.JI 24], Hamas aims to destroy
Israel and create an Islamic Palestinian state in its place. Levitt
1 At the Evidentiary Hearing, the Court found Dr. Levitt to be a
qualified expert for purposes of testifying on issues relating
to Hamas and Iran's support of Hamas. Tr. at 8. Dr. Levitt holds
both a Masters of Law and Diplomacy (MALO} and a Ph.D. in
International Relations from The Fletcher School of Law and
Diplomacy at Tufts University, and has extensive experience
spanning over two decades. Levitt Deel. at 1; Levitt Curriculum
Vitae [Dkt. No. 56-4].
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Deel. at 17; Declaration of Dr. Patrick Clawson 2 '"Clawson Deel.")
at 10 [Dkt. No. 56-1].
Hamas also fights against secularization and Westernization
of Arab society and aims to be recognized internationally as the
only representative entity of the Palestinian people. Levitt Deel.
at 17. Hamas engages in social welfare and political activity, as
well as guerilla and terrorist attacks to achieve its goals. Id.Hamas emphasizes violent jihad, 3 which is a "religiously sanctioned
resistance against perceived enemies of Islam." Id. at 17-18.
Within Hamas, the Izz a-Din al-.Qassam Brigades form the
military wing that carries out acts of violence against both
military and civilian targets, including suicide as well as other
types of bombings, use of Qassam rockets, 4 mortar fire, and
shootings. Levitt Deel. at 18. In the 2003 Patterns of Global
2 At the Evidentiary Hearing, the Court found Dr. Clawson to be a
qualified expert for purposes of testifying on issues relating
to Hamas and Iran's support of Hamas. Tr. at 8. Dr. Clawson is
the Director of Research at the Washington Institute for Near
East Policy and has been studying the Middle East, in particular
Iran, for approximately thirty-five years. Clawson Deel. at 1;
Clawson Curriculum Vitae [Dkt. No. 56-3].
3 Jihad, as used by al-Qaeda, also means "holy war towards the
establishment of the Islamic Caliphate worldwide." Clawson Deel.
at 10.
4 A Qassam rocket is a simple, cylindrical, short-range rocket with
a small warhead on its tip that is deployed primarily from the
Gaza Strip. A 2010 U.S. Department of Defense Report indicated
that Iran helped in the development of the Qassam rocket. Levitt
Deel. at 16.
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Terrorism, the United States Department of State reported that
Hamas carried out more than 150 attacks globally, including one of
the most deadly attacks in 2003. Levitt Deel. at 15; see Pls.' Ex.
7 [Dkt. No. 58-7].
As of March 2004, Hamas had carried out 425 terrorist attacks
since its creation; it had killed approximately 377 people and
wounded 2,076. Levitt Deel. at 18; Pls.' Ex. 15 [Dkt. No. 58-15].
One element of the group's strategy is to terrorize and then
pressure leaders to give concessions to Hamas to stop the violence.
Levitt Deel. at 19. The "social" wing of Hamas i·ndoctrinates,
recruits, and supplies funding for the military wing. Am. Compl.
50 U.S.C.A. §§ 1701, 1702; Exec. Order No. 12947, 60 Fed.
Reg. 5079 (Jan. 23, 1995)). Only two years later, Hamas was
identified and labeled as a "Foreign Terro-rist Organization,"
pursuant to 8 U.S.C. § 1189. Am. Compl. 22 U.S.C. § 2371), Section 40 of the Arms
Export Control Act, (22 U.S.C. § 2780), or any other provision of
law, "is a government that has repeatedly provided support for
acts of international terrorism," 28 U.S.C.A. § 1605A(h) (6); see
also "Terrorist Groups," u. s. Department of State,
https://www.nctc.gov/site/groups.html. The government of the
Islamic Republic of Iran ("Iran") has been identified as a state
sponsor of terrorism since January 19, 1984. Moradi v. Islamic
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Republic of Iran, 77 F. Supp. 3d 57, 65 fn. 7 (D.D.C. 2015)
(citations omitted); see generally Levitt Deel.; Clawson Deel.
Beginning in the early 1990' s, Iran and Hamas developed a
close relationship. Clawson Deel. at 10. Iran was driven by its
desire to disrupt the Middle East peace process in the late 1990's
and relied on terrorist activities to do so, strongly and publicly
encouraging such activities from Hamas. Id. The Iranian
Revolutionary Guard Corps ( "IRGC") and Iran's Ministry of
Information and Security ( "MOIS") made terrorism training
available to Hamas members as well as other terrorist groups. Id.
at 7. Iran has provided financial support as well as tactical
training and planning support to Hamas. Id. at 8-10 (citing the
Patterns of Global Terrorism annual reports by the U.S. Department
of State pursuant to 22 U.S.C. § 2656f(a)). Moreover, Iran employs
a performance-based approach to calculate its level of funding for
a terrorist group and rewards groups like Hamas for successful
attacks. Levitt Deel. at 7 (citing Weinstein v. Islamic Republic
of Iran, 184 F. Supp. 2d 13, 19 (D.D.C. 2002)).
In 1997, during a televised interview of Hassan Salameh, a
Hamas member, it was publicly revealed that Hamas members flew to
and trained in Iran and received support from Iran. Clawson Deel.
at 10. In 2003, the Israeli Ministry of Foreign Affairs estimated
that Iran provided Hamas with approximately $3 million per year.
Id. at 11. That same year, estimates of Hamas' budget ranged
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'I
anywhere from $30 million to $90 million per year. Levitt Deel. at
13. Of that amount, according to FBI testimony, an estimated $25
million to $30 million per year came from foreign funding. Id.
Monetary funding supports the costs of propaganda, terror
activities, social welfare (including payments to the families of
suicide bombers), bribes, intelligence payments, long-term
infrastructure, and safe houses. Id. at 12-13.
The relationship between Hamas and Iran cooled after 2003,
following a vigorous Israeli campaign against Hamas. Clawson Deel.
at 11. However, Hamas and Iran re-developed their relationship in
2006 when Hamas gained power in the Palestinian elections and took
control of the Gaza strip in 2007. Id. In the years following, the
relationship between Hamas and Iran has been continuously
recognized in studies prepared by the United States Government and
other organizations. Levitt Deel. at 16-17; Clawson Deel. at 11
(citing academic scholarship, U.S. Department of Defense Report,
Institute for Peace study, Human Rights Watch Report, and
Congressional Research Service work that have traced the existing
relationship between Iran and Hamas up until 2014).
3. March 7, 2002 Attack on Atzmona
On Thursday, March 7, 2002, a yeshiva 5 in Atzmona, located in
the Gaza Strip was attacked. Transcript of Evidentiary Hearing
5 A yeshiva is a pre-military religious academy where students
study religion and the Israeli state. Tr. at 22-23. Most of the
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("Tr.") at 10, 79 [Dkt. No. 60] . Nethaniel Chaim Bluth
("Nethaniel," "Plaintiff") was a student at the yeshiva on the
night of the attack. Nethaniel was born in Jerusalem, Israel and
lived in Israel for most of his life. Id. at 19-20; Pls.' Ex. 33
[Dkt. No. 59-33]. He grew up in a small religious settlement in
Israel, where his mother resided until she passed away
approximately one year ago and where his father continues to
reside. Tr. at 18, 21. For the entirety of his life, Nethaniel has
been a dual citizen of Israel and the United States, because his
parents are American citizens. Id. at 20.
Following high school graduation, Nethaniel chose to attend
the yeshiva in Atzmona before joining the Israeli army to complete
Israel's mandatory service requirement. Id. at 21-22. Two of
Nethaniel's brothers had attended the same yeshiva before him. Id.
at 24, 72. By the time of the attack, Nathaniel had been studying
in Atzmona for half a year. Id. at 61-62. He had recently decided
to extend his orig1nal year-long stay an additional six months
because he enjoyed his studies and the community. Id. at 24-25.
Nethaniel, like the other 120 students, slept, ate, and
studied every day at the yeshiva. Id. at 2 5, 32. Despite being
students enroll following high school graduation and are eighteen
or nineteen years old. Id. Although the curriculum also includes
fitness training and prepares students to be soldiers, its purpose
is educational, not military. Id. at 79-80. Students at the yeshiva
do not carry weapons. Id. at 41, 80.
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away from the family home, Nethaniel stayed in close contact with
his parents and sev.en siblings. Id. at 18-19, 73. He went home
frequently, as did his siblings, typically on a weekly basis. Id.
at 33. The family home was approximately a two-hour drive from the
yeshiva. Id. at 2 9. Six of the eight Bluth children, including
Nethaniel, used the family home in Neve Tzuf as their permanent
residence. Id. at 64, 85-86; Deposition of Isaac Menahem Bluth
("Isaac Depo.") at 6-7 [Dkt. No. 58-49].
On the night of March 7, 2002, there were approximately thirty
students in Nethaniel's classroom. Tr. at 36. Students generally
studied late on Thursday nights because they either went home for
Sabbath on Fridays or used the day as a personal "free day." Id.
at 34-35. During a lecture at approximately 11:30pm, Nethaniel and
the other students heard the sounds of gunfire and grenade
explosions. Plaintiffs' Proposed Findings of Fact and Conclusions
of Law in Support of their Motion for Default Judgment ("Statement
of Facts") at 7 [Dkt. No. 59]; Tr. at 41. The rabbi in the classroom
instructed a student to turn off the lights and everyone in the
classroom remained silent and waited. Tr. at 37.
Nethaniel moved towards the glass door and window to see what
was causing the noise. Id. at 37-38. When Nethaniel looked out, he
saw his friend Asher Marcus and a rabbi who was on duty as a guard
that evening sitting in a Jeep talking. Id. Upon more explosions
and shooting, students began to scream and Bluth saw Asher and the
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rabbi running towards one room, and then towards Nethaniel' s
classroom. Id. at 39. Nethaniel described Asher as terrified and
white in the face. Id. Nethaniel held the classroom door open for
Asher, and as he came running through the doorway, Asher was shot
and fell on Nethaniel, who caught him. Id. at 39, 43. At the same
time, Nethaniel saw the attacker come out from between two other
buildings, approximately thirty feet from his classroom. 6 Id. at
40-41. The attacker then started shooting into Nethaniel's
classroom as he walked towards the building. Id. at 40, 42.
With Asher on top of him, Nethaniel laid on the floor with
his hands on his head, unable to move. Id. at 43. Nethaniel warned
his classmates that the attacker was approaching the classroom.
Id. at 40. He saw that the attacker was wearing a black vest filled
with ammunition and grenades. Id. at 41. A guard driving in a car
tried to run over the attacker to stop him, but was unable to,
because of the sand surrounding his car. Id. at 45. No one in the
classroom was armed the night of the attack, id. at 41, and so
each person simply waited and prayed, id. at 43.
Following the shots into Nethaniel's classroom, the attacker
threw two grenades into the classroom through a window. Id. at 45.
The first grenade exploded approximately three meters from Bluth's
face. Am. Compl. ~ 64. Nethaniel felt blood going down his face
6 Nethaniel also indicates that the buildings were thirty meters
from his classroom. Tr. at 39-40.
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and heard more screaming and praying. Tr. at 46. There was a second
grenade and explosion. Id. Following the second explosion, the
attacker moved elsewhere and people started getting up and taking
care of the wounded. Id. at 46-47. Nethaniel's friend helped stop
the bleeding on Nethaniel's head because Nethaniel could feel that
something had happened to his own hands. Id. at 47.
Israeli soldiers killed the attacker following a twenty-
minute gun battle. Statement of Facts at 7. At about the time the
attacker was killed, ambulances and soldiers arrived at the area
and Nethaniel was taken outside. Id.; Tr. at 47. By the end, five
people were killed and approximately twenty-three others were
injured. Levitt Deel. at 20 (citing news reports and Israel
Ministry of Foreign Affairs). Of the five deaths, two were
Nethaniel' s close friends, Asher and Eran Picard. Statement of
Facts at 7. Nethaniel saw the bodies of his two dead friends, as
well as other injured friends laid out on the grass when he was
brought outside. Tr. at 47.
The National Consortium for the Study of Terrorism and
Responses to Terrorism ("START") at the University of Maryland
identif{ed the attacker as Mohammad Farahat. 7 Levitt Deel. at 20
(citing Incident Summary, 03/07/2002, Global Terrorism Database,
7 Spelled "Muhammad Parhat" in the Complaint.
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National Consortium for the Study of Terrorism and Reponses to
Terrorism, http://www.start.umd.edu/gtd/search/IncidentSummary.as
px?gtdid=200203070002); Pls.' Ex. 20 [Dkt. No. 58-20]. START also
confirmed in its Global Terrorism Database that a Hamas
representative claimed responsibility for the Atzmona attack. Id.
(citing Incident Summary, 03/07/2002). Major media outlets,
including BBC, The Guardian, and the al Qassam website, also
reported that Hamas claimed the attack as its own. Levitt Deel. at
19, 21; Pls.' Exs. 17-18, 22 [Dkt. No. 58-17, -18, -22]. It was
reported that Farahat trained for two days prior to the operation.
Levitt Deel. at 21 (citing a translation of Al Sharq Al Awsat, An
Interview with the Mother of a Suicide Bomber, the Middle East
Media Research Institute, Special Dispatch No. 391(June19, 2002),
http://www.memri.org/report/en/0/0/0/0/0/0/683.htm).
As the following suggests, Farahat had deep ties with Hamas.
Levitt Deel. at 20. When Farahat was seven years old, a former
head of the Hamas military wing took refuge from the authorities
in Farahat' s home for fourteen ·months and was ultimately killed
there. Id. (citing An Interview with the Mother of a Suicide
Bomber) . A video of Farahat' s mother posted on the al Qassam
website prior to the attack captured how proud she was to sacrifice
her son Farahat to Allah. Pls.' Ex. 27 [Dkt. No. 58-27].
Farahat kept in contact with his mother after he arrived in
Atzmona and Hamas operatives notified her when Farahat penetrated
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the settlement security fence. Levitt Deel. at 21 (citing Holy
Land 2006 Gaza Um Nadal). Following the attack, Farahat's mother
emphasized the Atzmona attack and glorified her son. See, e.g.,
Pls.' Ex. 22 [Dkt. No. 58-23]. She praised Farahat publicly as the
model martyr and even used the security fence taken from Atzmona
as a chicken-wire fence next to her home. Levitt Deel. at 21
(citing Mother of Martyrs in Parliament for Hamas, Deutsche
Presses-Agentur, (Jan. 31, 2006)'
http://www.arabnews.com/node/279724); see also Pls.' Ex. 14 [Dkt.
No. 58-14]. Visible to visitors, the wall near the fence read:
"Through this Mohammad got into the settlement." Levitt Deel. at
21 (citing Mother of Martyrs in Parliament for Hamas) . In 2006,
Farahat's mother won a seat in the Palestinian Legislative Council
on the Hamas ticket. Pls.' Ex. 23 [Dkt. No. 58-23].
4. Nethaniel Bluth's Injuries
After the attack, Nethaniel was identified as one of the
students who was most critically injured. Tr. at 89; Statement of
Facts at 7. He was covered in blood, had burns over much of his
body, and had injuries to his head, face, and chest. Statement of
Facts at 8. Nethaniel testified that at that time he could not
feel his hands. Tr. at 47. The doctor who bandaged Nethaniel's
forehead and hands at the scene of the attack believed that there
was a bullet entry wound in Nethaniel's sternum, right above his
heart. Id. at 4 8; Statement of Facts at 7. It remains unclear
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whether Nethaniel was hit by a bullet or shrapnel. 8 An exit wound
was not readily identified at that time, causing serious concern,
because it may have been lodged in his body. Tr. at 44. Nethaniel
was put on a stretcher and was one of two people transported by
helicopter from Atzmona to Tel Hashomer Hospital. Id. at 49.
Upon arriving at the hospital, Nethaniel was conscious,
extremely anxious, and disoriented. Statement of Facts at 9.
Nethaniel testified that he was still in shock and stressed from
seeing his friends dead on the grass. Tr. at 47. As he was moved
through the emergency room for tests, he briefly passed by several
members of his family. Id. at 51; see Am. Compl. `` 66, 68-70, 73.
Following the tests, Nethaniel went into multiple surgeries for
his ears, the embedded shrapnel, and bullet wound. Tr. at 52.
Nethaniel suffered forehead and hand injuries from the first
grenade explosion. Id. at 45; Statement of Facts at 7. Pieces of
the grenade were embedded in his chest area and hand. Tr. at 45.
The right side of Nethaniel's face was severely'cut from the
grenade explosion and his head wound was so deep that the bone was
visible. Id. He also had open wounds on his arms, forehead, and
chest. Id. at 92. Many of the wounds required stitches. Id.
Nethaniel needed plastic surgery for his face and head due to the
8 In the Evidentiary Hearing, Nethaniel's father stated that the
wound in Nethaniel's chest may have been caused by a bullet or a
fragment of a bullet or a piece of shrapnel. Tr. at 90.
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blast and shrapnel from the grenade. Deposition of Joseph Bluth at
14 [ Dkt. No. 58-4 6] . In addition, the plastic surgeon had to
reattach part of his scalp to his skull. Id. at 15.
Nethaniel continued to be hospitalized for several days
following the operations. 9 Tr. at 52. The surgeon at Tel Hashomer
Hospital concluded that, while there was an indentation in
Nethaniel's chest from an object, there was no damage to his vital
organs . 10 Id. at 90. The surgeon believed that the fragment
whether it was a bullet or part of a grenade - hit Nethaniel's
sternum and deflected out of his body. Id.
Nethaniel's hearing was significantly impaired by the grenade
explosion. Id. at 46. While one eardrum was dislodged (it
eventual+y re-lodged), the other was completely blown out. Id. at
92. When he first took a hearing test following his surgeries, he
could not hear anything, id. at 52-53, and broke down in tears
when he realized that he could not hear. Id.; Statement of Facts
at 9. He continues to have issues with his hearing and has complete
hearing loss in one ear. Tr. at 57; Statement of Facts at 9.
Prior to the attack, Nethaniel had no medical issues, major
surgeries, history of depression, anxiety, or other mental health
concerns. Tr. at 32-33; Statement of Facts at 8. As a result of
9 Nethaniel's father stated that Nethaniel was di~charged a week
and a half later. Tr. at 94.
10 No medical records were entered into evidence.
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.
the attack, he suffered from high levels of fear, anxiety,
paranoia, and extreme emotional fluctuations. See Statement of
Facts at 10-11. Nethaniel was traumatized from seeing his close
friends lying bloody on the ground and cried when he later learned
that they had died. Tr. at 47-48. Immediately following the attack,
his speech was affected and he stuttered for a period of time. Id.
at 91-92. Nethaniel was scared of noises and paranoid about people
entering his room at the hospital. Statement of Facts at 10. He
testified that he was afraid to be alone and needed someone near
him at all times. Tr. at 53, 55-56.
Following his discharge from the hospital, Nethaniel returned
to the family's home in Neve Tzuf. Id. at 94. Nethaniel continued
to go back to the hospital for outpatient treatment in the audio
ward for his hearing. Id. He needed someone with him for everyday
activities, such as walking, urinating, and showering. Statement
of Facts at 10. His father testified that Nethaniel was hesitant
and extra cautious during that period. Tr. at 94. Nethaniel
testified that he was afraid of the dark and, the minute the day
ended and the sun went down, he would close all the curtains and
windows, and lock the doors. Id. at 53. Nethaniel suffered from
headaches and terrible nightmares, which started at the hospital
and continued frequently in the period immediately after the
attack. Id. at 57-58; Statement of Facts at 9-10. Without pills or
the comfort of his parents, Nethaniel struggled to fall sleep. Tr.
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at 53. The constant ringing and physical pain in Nethaniel's ears
continued for weeks following the attack. Statement of Facts at 9.
After returning home from the hospital, Nethaniel spent a few
days at home and then went back to visit the yeshiva. Tr. at 55.
He testified that it was important for him to return as soon as he
could to understand what .had happened. Id. Moreover, it was
rehabilitative. Id. at 96. When Nethaniel eventually returned to
study at the yeshiva, he struggled with his fear of loud noises.
Id. at 58. Once during a thunderstorm, the lights went out and the
darkness and loud noises brought him back to the night of the
attack, the moments when he waited for the attacker's bullet on
the night of the attack, and he started crying. Id. While the
students were moved to and slept in more protected rooms than
before the attack, Nethaniel still needed someone with him at all
times. Id. at 56. He even showered with the door open because he
was afraid to be alone. Id. at 53.
After finishing the rest of his time at the yeshiva, Nethaniel
entered the army in March 2003. Id. at 61. Upon entering,
Nethaniel's placement was affected by his injuries. Id. at 61-62.
Nethaniel testified that most of his injuries were still present
when he joined the army and therefore, with doctors' notes, the
army had to find a job that he could do despite his injuries. Id.
at 61. Nethaniel served in the army for five and a half years, id.
at 56, and described his time with the army as helping him gain a
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sense of self-confidence in his ability to protect himself and
friends. Id. Nethaniel relies on a firearm to feel safe and always
carries one with him. See Statement of Facts at 10-11.
Fourteen years later, Nethaniel's injuries from Atzmona
continue to affect both his personal life and career. Tr. at 57;
Am. Compl. ~ 64. His hearing is permanently impaired and he is
unable to hear his wife and children or his co-workers when they
call him from another room. Tr. at 57. He continues to suffer from
tinnitus. Pl. Compl. ~ 10. Nethaniel has substantial permanent
scarring on his face, head, chest, and arms. Statement of Facts at
9; Tr. at 45-46. The shrapnel left in Nethaniel's hands and face
continue to cause him significant pain and affect his bones,
especially in cold weather or with a change in weather. Tr. at 46,
59.
Nethaniel continues to struggle with flashbacks to the night
of the attack when he sees his scars and when he sees the parents
of the students who were killed. Id. at 57. He continues to feel
guilt and remorse for the death of his two close friends who were
•
by his side throughout the attack. Statement of Facts at 11. He
has nightmares from time to time and frequently wakes up at night
to lock all the windows. Id. at 10-11; Tr. at 58. Nethaniel
continues to struggle with his fear of the dark and his paranoia
of loud noises or explosion-like sounds. Tr. at 53-54, 58.
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Nethaniel states that he no longer has the same "ability to
enjoy life in a carefree way" as he did prior to the attack and is
constantly alert. Statement of Facts at 11. Even today, the Bluth
family is careful about engaging in certain conversations with
Nethaniel and how they act around him. Id. His father testified
that Nethaniel's comedic personality and sense of self-confidence
changed after the attack. Statement of Facts at 10; Tr. at 71.
5. Family's Injuries
On the night of the attack, Shoshana Rosalyn Bluth
("Shoshana"), Nethaniel's mother, was at the family home with Isaac
Bluth ("Isaac"), the youngest of the Bluth brothers, and Tsipora
Batya Bluth ("Tsipora"), Nethaniel' s only sister. Tr. at 86;
Deposition of Tsipora Batya Bluth Reicher ("Tsipora Depa.") at 7
[Dkt. No. 59-47]. Shoshana, Tsipora, and Isaac learned about the
attack on the yeshiva through television news. Am. Compl. 28 U.S.C. § 1608 (d).
On January 4, 2016, this Court held an evidentiary hearing.
[Dkt. No. 60]. Nethaniel and Ephraim Bluth appeared as witnesses
and gave testimony. The Court and Plaintiffs had previously
discussed that the expert witnesses did not need to appear and the
Court could rely on their expert reports alone. Tr. at 7-8; see
also Pls.' Status Report Regarding the Evidentiary Hr'g [Dkt. No.
53]. Plaintiffs' exhibits were admitted into evidence. [Dkt. No.
58]. At the Court's request, Plaintiffs submitted their proposed
Statement of Facts on January 19, 2016. [Dkt. No. 59].
II. LEGAL STANDARD
Before this Court can enter a default judgment against Iran
under FSIA, plaintiffs are required to establish their claims "by
evidence satisfactory to the court." 28 U.S.C. § 1608(e); see also
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Han Kirn v. Democratic People's Republic of Korea, 774 F.3d 1044,
1047 (D.C. Cir. 2014) ("when the defendant State fails to appear
and the plaintiff seeks a default judgment, FSIA leaves it to the
court to determine precisely how much and what kinds of evidence
the plaintiff must provide, requiring only that it be 'satisfactory
to the court'"). The Court must scrutinize the plaintiff's
allegations and "may not unquestioningly accept a complaint's
unsupported allegations as true." Reed v. Islamic Republic of Iran,
845 F. Supp. 2d 204, 211
I
(D.D.C. 2012). However, an evidentiary
hearing is not required; a "plaintiff may establish proof by
affidavit." Id.; Weinstein, 184 F. Supp. 2d at 19.
III. ANALYSIS
A. Jurisdiction Under FSIA
The Foreign Sovereign Irnrnuni ties Act ( "FSIA") provides the
sole legal means by which a plaintiff may bring a suit against a
foreign state. Reed, 845 F. Supp. 2d at 209. FSIA protects the
dignity of foreign states as a matter of international law, while
providing a forum for justice and legitimate grievances by
providing narrow exceptions to irnrnuni ty. See Murphy v. Islamic
Republic of Iran, 778 F. Supp. 2d 70, 71 (D.D.C. 2011); see also
28 U.S.C. § 1602. This is consistent with Congress' intent to hold
state sponsors of terrorism responsible for their crimes. Han Kirn,
774 F.3d at 1049. The statute provides compensatory damages and
punitive damages, if a foreign state that is or was a state sponsor
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of terrorism is found to be liable. 28 U.S.C. § 1605A(c).
Compensatory damages may include economic harms, solatium, and
pain and suffering. Moradi, 77 F. Supp. 3d at 69. A violation may
be "prosecuted in any Federal judicial district in which the
underlying offense was committed, or in any other Federal judicial
district as provided by law." 28 U.S.C. § 1391(f) (4).
In 2008, Congress repealed Section 1605 (a) ( 7) of FSIA and
replaced it with Section 1605A, which broadened the jurisdiction
of federal courts and created a federal stat~tory cause of action
for those victims and their legal representatives against state
sponsors of terrorism for terrorist acts committed by the State,
its agents, or employees. Owens v. Republic of Sudan, 826 F. Supp.
2d 128, 147 (D.D.C. 2011) (internal citations omitted). FSIA
"imposes tight constraints on courts required to decide whether an
act satisfies the terrorism exception's substantive elements," but
when the foreign state fails to appear and the plaintiff seeks a
default judgment, FSIA leaves discretion to the courts to decide
the standard. Han, 774 F.3d at 1046-47.
Before the court can enter a default judgment under FSIA, a
plaintiff must establish his or her claims "by evidence
satisfactory to the court." 28 U.S.C. § 1608(e). This "satisfactory
to the court" standard is "identical to the standard for entry of
default judgments against the United States in Federal Rule of
Civil Procedure 55(e) ."Owens, 826 F. Supp. 2d at 134. Therefore,
-28-
the Court cannot "unquestioningly accept a complaint's unsupported
allegations as true." Moradi, 77 F. Supp. 3d at 64 (citing Reed,
845 F. Supp. 2d at 211-12). The court determines how much and what
kinds of evidence the plaintiff must provide to meet the threshold.
Id. at 65. As previously mentioned, a plaintiff may establish proof
by affidavit, and an evidentiary hearing is not required. See
supra 26; see also Moradi, 77 F. Supp. 3d at 65; Weinstein, 184 F.
Supp. 2d at 19.
A foreign state that engages in "an act of torture, an
extrajudicial killing, an aircraft sabotage, a hostage taking, or
provides material support or resources for such an act if such act
or provision of material support or resources is engaged in by an
official, employee, or agent of such foreign state while acting
within the scope of his or her office, employment, or agency" is
not immune in the federal courts of the United States. 28 U.S.C.
§ 1605A(a) (1). Under FSIA' s "terrorism exception," a plaintiff can
bring suit against a "foreign state sponsor of terrorism" when (a)
there is effective service of process and personal jurisdiction,
and (b) there is subject-matter jurisdiction. Reed, 845 F. Supp.
2d at 209.
1. Personal Jurisdiction & Service of Process
FSIA sets forth the necessary elements of service to establish
personal jurisdiction in 28 U.S.C. § 1608, and gives the methods
in numerical order of preference. Worley v. Islamic Republic of
-29-
Iran, 75 F. Supp. 3d 311, 327 (D.D.C. 2014). When a method of
service is unavailable or unsuccessful, a plaintiff may attempt
the next method available. Id. The first preference is for "any
special arrangement[s]" for service between the plaintiff and the
foreign state (i.e. a contract provision). See 28 U.S.C. §
1608(a) (1); Int'l Road Fed'n v. Embassy of the Democratic Republic
of the Congo, 131 F. Supp. 2d 248, 251 (D.D.C. 2001). If no special
arrangement exists, the second option is service "in accordance
with an applicable international convention on service of judicial
documents." 28 U.S.C. § 1608 (a) (2). In this case, both of these
options were unavailable because the parties do not have a special
arrangement, nor is there an applicable international convention
for service with Iran. See Ben-Rafael v. Islamic Republic of Iran,
540 F. Supp. 2d 39, 52 (D.D.C. 2008). In addition, Iran does not
accept service through its Ministry of Foreign Affairs in Tehran,
Iran. See Worley, 75 F. Supp. 3d at 327; see generally Request for
Service of Process on Def. Iran [Dkt. No. 17].
Hence, Plaintiffs served Iran pursuant to 28 U.S.C. §
1608 (a) (3). Section 1608 (a) (3) requires that "one copy of the
summons, complaint, and notice of suit, together with a translation
of each document into the language of the foreign state" be sent
through any form of mail that requires a signed receipt by "the
clerk of the court to the head of the ministry of foreign affairs
of the foreign state concerned." 28 U.S.C. § 1608(a) (3). A copy of
-30-
the Certificate of Mailing [Dkt. No. 11] filed on March 5, 2013,
shows that the appropriate copies were sent by the clerk of this
court to the head of the Ministry of Foreign Affairs of Iran. 28
U.S.C. §1608 (c); see 28 U.S.C. § 1608 (a) (3). Unfortunately,
service of process under Section 1608 (a) (3) was unsuccessful
because it was not made within thirty days. See 'Summons Returned
Unexecuted as to Iranian Defs. [Dkt. No. 12]; Aff. Requesting
Foreign Mailing [Dkt. No. 14].
Thereafter, Plaintiffs proceeded to the next available
method, as described in Section 1608(a) (4), a Request from
Plaintiffs for Clerk to Effect Service on Iranian Defs. [Dkt.
No. 16]. Plaintiffs sent two copies of the summons, complaint, and
notice of suit, along with Farsi translations to the Clerk of the
Court, who sent them to the Secretary of State in Washington,
District of Columbia. See 28 U.S.C. § 1608(a) (4). Pursuant to the
statute, the Secretary of State then transmitted one copy through
the Embassy of Switzerland in Tehran, Iran and sent "a certified
copy of the diplomatic note indicating when the papers were
transmitted to the clerk of the court." -
Id.;
-
see Certificate of
--
Mailing [Dkt. No. 17]; Return of Service/Affidavit of Summons and
Complaint Executed as to the Iranian Defs. [Dkt. No. 25-1].
In light of these filings, the Court concludes that Plaintiffs
have complied with 28 U.S.C. § 1608(a) (4) and have successfully
effectuated service on the Iranian Defendants.
-31-
2. Subject Matter Jurisdiction
A court in the United States has original jurisdiction over
a claim that is a (1) nonjury civil action (2) against a foreign
state (3) as to the claim(s) for relief in personam, (4) provided
that the foreign state is not entitled to immunity under sections
1605-1607 of FSIA or under any applicable international agreement.
28 U.S.C. § 1330(a); Worley, 75 F. Supp. 3d at 323-24. All of
section 1330(a) 's requirements have been met in this case.
First, Plaintiffs have not demanded a jury trial. See Am.
Compl. Second, the Iranian Defendants are considered a "foreign
state" as defined by FSIA. 15 See 28 U.S.C. § 1330(a); Worley, 75
F. Supp. 3d at 324. This jurisdiction has taken a "cat~gorical
approach" to defining foreign government-related entities as a
"foreign state" if the core functions of the entity are
governmental. Id. (citing Roeder v. Islamic Republic of Iran, 333
F.3d 228, 234 (D.C. Cir .. 2003). Third, this action is against the
15A "foreign state" is defined to include "a political subdivision
of a foreign state or an agency or instrumentality of a foreign
state as defined in subsection (b) ." 28 U.S.C. § 1603(a). The D.C.
jurisdiction has adopted a "categorical approach" to determining
the legal status of foreign government-related entities for FSIA
cases and "if the core functions of the entity are governmental,
it is considered the foreign state itself." Worley, 75 F. Supp. 3d
at 324 (internal quotations omitted). MOIS and IRGC perform
governmental functions. See supra, 5. Therefore, MOIS and IRGC may
be treated as "foreign states" for the purposes of Section 1603(a)
of FSIA.
-32-
Iranian Defendants as legal persons, not against property, and
therefore the claims seek relief in personam. See id.
The fourth requirement looks to whether an exception to
sovereign immunity exists and has several sub-requirements. The
FSIA exception to foreign sovereign immunity is codified at 28
U.S. C. § 1605A. A foreign state has no sovereign immunity when
"[1] 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." 28 U.S.C. § 1605A; Worley, 75 F. Supp. 3d at 324.
As to the first sub-requirement, Plaintiffs identify and seek
only monetary damages for their alleged injuries. Second, as stated
above, the Iranian Defendants are "foreign states" as defined by
the statute. See supra 32. Third, Plaintiffs' personal injuries
and all claims arise from the attack, which constitute the type of
claims for personal injury required for jurisdiction. Fourth,
there must be a showing of "some reasonable connection between the
act or omission of the defendant and the damages which the
plaintiff has suffered." Worley, 75 F. Supp. 3d at 325 (citing
Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C.
-33-
2010)). Thus, a plaintiff need not show that the injury would not
have occurred "but for" the defendant's actions. Id. Here,
Plaintiffs have sufficiently demonstrated that Defendants have
financially funded, and provided tactical support and equipment to
Hamas. See supra, 5-6. Given Hamas's stated mission and purpose,
financial support to Hamas is reasonably considered to be support
of its mission and terrorists attacks. Consequently, the Iranian
Defendants have assisted Hamas in carrying out the Atzmona attack.
The facts demonstrate the kind of reasonable connection required
under section 1605A.
Fifth, Plaintiffs must show that Iran provided "material
support or resources" "knowing or intending that they are to be
used in preparation for, or in carrying dut," a violation of the
various enumerated sections. 18 U.S.C. § 2339A(a). Broadly
'
defined, "material support or resources" includes "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." Torture
Victim Protection Act of 1991 ("TVPA"), 18 U.S.C. § 2339A. The
facts found by this Court demonstrate that Iran has provided Hamas
-34-
•.
with financial support as well as tactical training and planning
support. See supra, 6.
For these reasons, the Court finds that an exception to
sovereign immunity exists because this case satisfies each element
of section 1605A(a) (1). In addition, all of section 1330 (a)' s
requirements are satisfied and the Court has original jurisdiction
to hear Plaintiffs' claims.
In order for a claim to be heard, Section 1605A imposes three
additional requirements that must be met: ( 1) the foreign state
was designated a state sponsor of terrorism at the time of the
act; ( 2) the claimant or victim was a national of the United
States; and ( 3) in cases where the act occurred in the foreign
state against whom suit has been brought, the foreign state was
afforded a reasonable opportunity to arbitrate the claim in
accordance with the accepted international rules of arbitration.
2 8 U. S . C. § 16 0 SA (a) ( 2) .
First, Iran has been designated as a state sponsor of
terrorism since 1984 and remained designated as such at the time
of the act. See supra, 5; Moradi, 77 F. Supp. 3d at 65. At all
times relevant to this action, Iran has been a state sponsor of
terrorism. Id. (citing Dr. Levitt and Dr. Clawson' s affidavits).
Second, Plaintiffs are all United States citizens. Pls.' Exs. 33-
42 [Dkt. No. 57-33, to -42]. Lastly, Plaintiffs were not required
by statute to afford Defendants a reasonable opportunity to
-35-
arbitrate because the act at issue did not occur in the defendant
state. 28 U.S.C. § 1605A(a) (2); see Worley, 75 F. Supp. 3d at 327.
B. Liability Under § 1605A
Having found that Plaintiffs have a private right of action
under§ 1605A(c), having determined that the Iranian Defendants
are a "state sponsor of terrorism" who provided "material support
or resources" to Hamas, and having found that Hamas was responsible
for the March 7, 2002 attack in Atzmona, supra 5, Iran is liable
under § 1605A(c) for any personal injuries caused by Hamas' s
attack.
To find liability, the Court must first identify the relevant
law. Worley, 75 F. Supp. 3d at 335 (internal citations omitted).
"Based on the D. C. Circuit's guidance, district courts in this
jurisdiction 'rely.on well-established principles of law, such as
those found in the Restatement. (Second) of Torts and other leading
treatises, as well as those principles that have been adopted by
the majority of state jurisdictions' to define the elements and
scope of these theories of recovery." Id. (citing Oveissi v.
Islamic Republic of Iran, 879 F. Supp. 2d 44, 54 (D.D.C. 2012)).
1. Nathaniel's Claims
Nethaniel brings claims for battery and intentional
infliction of emotional distress ("IIED"), and his family members
bring a claim for solatium. The Iranian Defendants are liable for
battery if, when they provided material support and resources to
-36-
Hamas, they acted "intending to cause a harmful or offensive
contact with, or an imminent apprehension of such a contact by,
those attacked and a harmful contact with those attacked directly
or indirectly resulted." Valore, 700 F. Supp. 2d at 76-77 (internal
quotations omitted) (citing Restatement (Second) of Torts § 13).
"Harmful contact" includes "any physical impairment of the
condition of another's body, or physical pain or illness." Id.
As set forth in detail above, Nethaniel has met his burden
and has clearly established the necessary elements of battery.
Defendants "acted with intent to cause harmful contact and the
immediate apprehension thereof" because "acts of terrorism are, by
their very nature intended to harm and to terrify by instilling
fear of such harm." See id. The affidavits of the various experts
have proven that the Iranian Defendants gave financial, tactical,
and other support to Hamas during the relevant time period.
Consequently, the Court can infer that Iran knew it was supporting
and encouraging terrorist attacks which could include a Hamas
member attacking the Atzmona yeshiva with the intent to cause
injuries and fatalities. See supra, 10-11. There is no question
that Nethaniel has also shown that such "harmful contact" did in
fact occur. See supra, 13-19.
Nethaniel' s second claim is for IIED. "An act that would
otherwise constitute IIED gives rise to liability under the FSIA."
Reed, 845 F. Supp. 2d at 212. Under District of Columbia law, the
-37-
·:1
elements of a cause of action for IIED are " ( 1) extreme and
outrageous conduct on the part of the defendant which (2)
intentionally or recklessly (3) causes the plaintiff severe
emotional distress." Ben-Rafael, 540 F. Supp. 2d at 56; see also
Worley, 75 F. Supp. 3d at 336 (citing Restatement (Second) of Torts
§ 46(2) (a)).
All three elements of IIED are satisfied. First., acts of
terrorism are per se extreme and outrageous conduct. Ben-Rafael,
540 F. Supp. 2d at 56 (internal citations omitted). Second, the
attack on the yeshiva was intended to cause emotional distress.
See id. (stating that intent or recklessness can be inferred from
the outrageousness of the act). Lastly, Nethaniel has shown that
he experienced severe emotional distress because of the terrorist
attack. Moreover, he still suffers from flashbacks, nightmares,
and fears and anxieties that resulted from the Atzmona attack. See
supra, 16-19.
2. Claims of Nethaniel's Parents and Siblings
Nethaniel's parents and siblings allege one count of solatium
against the Iranian Defendants. "Solatium claims under the FSIA
are functionally identical to claims for intentional infliction of
emotional distress." Moradi, 77 F. Supp. 3d 71-72 (internal
citations omitted). Such damages are intended for "mental anguish,
bereavement and grief that those with a close personal relationship
to the decedent experience as well as the harm caused by the loss
-38-
of the decedent's society and comfort." Id. at 72 (internal
quotations omitted). Solatium damages are also available to
compensate those related to persons injured, rather than killed,
in a terrorist attack. Id. (citing Spencer v. Islamic Republic of
Iran, 71 F. Supp. 3d 23, 27 (D. D.C. 2014)). Courts may presume
"spouses and those in direct lineal relationships with victims of
terrorism suffer compensable mental anguish." Id. "As for
siblings, testimony proving a close emotional relationship will
usually be sufficient to sustain claims for solatium." Id.The record presented establishes that the March 7, 2002
Atzmona attack and Nethaniel's resulting injuries caused and
continue to cause Nethaniel' s parents and siblings significant
mental anguish and emotional distress. See supra, 19-25. Ephraim
reduced his work travel because he felt that he had not protected
Nethaniel; he also experienced sporadic episodes of crying, which
did not start until after the attack. See supra, 23-24. Shoshana
experienced a great deal of anguish and anxiety on the night of
the attack and because of not knowing what had happened to her
son. After the attack, Shoshana cried with Nethaniel when he
realized that he could not hear anything at all during his hearing
test, and she later helped him with daily activities. See supra,
15-16. She relied on sleeping pills and constantly worried about
and stayed near Nethaniel.
-39-
Nethaniel's siblings were also affected. They came home more
frequently and helped him with daily activities. See supra, 16-
17. His siblings produced sworn deposi tions16 that were
subsequently admitted into evidence and which show that their
relationship with Nethaniel was greatly affected in the kinds ~f
conversations and activities they could do together. See supra,
24. The Court is satisfied that the Bluth family's emotional
distress was clearly brought on as a result of the terrorist
attack. Nethaniel's parents and all of Nethaniel's siblings except
Chanina Bluth are entitled to solatium damages. 17 See Spencer, 71
F. Supp. 3d at 27. Chanina has not given any testimony, nor did
any testimony speak directly to his harms, and therefore there can
be no finding of liability with regard to him.
16 All of the Bluth children, except Chanina Bluth, submitted sworn
depositions and each was admitted into evidence. See Bluth
Depositions [Dkt. Nos. 58-44, -45, -46, -47, -48, -49].
17 Shoshana Bluth passed away on August 6, 2015. Our Court of
Appeals has ruled that the Court may, sua sponte, substitute an
appropriate person, such as a close relative, as a representative
of her estate, Mohammadi v. Islamic Republic of Iran, 947 F. Supp.
2d 48, 55 (D.D.C. 2013), aff'd, 782 F.3d 9 (D.C. Cir. 2015). In
addition, Fed. R. Civ. P. 25 (a) (1) provides that "[i] f a party
dies and the claim is not extinguished, the court may order
substitution of the proper party." Finally, there is more than
adequate evidence describing the close relationship between
Shoshana Bluth and her injured son, and the extent of her anxiety
and grief at the time of his injury and during the rest of his
life.
-40-
C. Damages Under § 1605A
1. Compensatory Damages
Plaintiffs seek compensatory damages for pain and suffering,
economic harms, and solatium, as well as punitive damages. Am.
Compl. 384 F. Supp. 2d 120, 134 (D.D.C.
2005).
a. Pain and Suffering
Nethaniel seeks damages against Defendants of $10 million on
one count of battery and $10 million on one count of IIED. Am.
Compl. 700 F. Supp. 2d at 77 (stating
that the plaintiffs who had claimed assault, battery, and IIED
could recover under only one of any such theories) (citing Beer v.
Islamic Republic of Iran, 574 F. Supp. 2d 1, 13 (D.D.C. 2008)).
i. Count 1 - Battery
Nethaniel claims relief for his "great pain and suffering;"
for extensive and continuing medical treatment; for expenses
including hospitalization, physician's services, nursing care, and
rehabilitation treatment; and for diminished earning capacity -
all resulting from the Atzmona attack. Am. Compl. ~ 78.
The evidentiary hearing and depositions establish that the
pain and suffering Nethaniel experienced during and since the
attack was a reasonably certain consequence of Defendant's acts.
The attacker, Farahat, fired shots and threw grenades into
Nethaniel's classroom. As a result, Nethaniel was severely injured
by a grenade explosion, requiring a number of surgeries as a result
of the attack. He was subsequently hospitalized for over a week
and was required to return to the hospital for outpatient
rehabilitation. Over a decade later, Nethaniel continues to suffer
-42-
physically, including permanent hearing loss in one ear, tinnitus,
and pain from the shrapnel still in his body. He continues to
experience increased stress and anxiety, paranoia, nightmares, and
extreme emotional fluctuations. See supra, 13-19. Thus, Nethaniel
is entitled to pain and suffering damages for his injuries,
hospitalization, rehabilitation, and continuing physical and
psychological pain. See Moradi, 77 F. Supp. 3d at 69-70~
The Court now turns to the question of what amount of damages
for pain and suffering is appropriate. It is clear that "putting
a number on these kinds of harms can be difficult." Price, 384 F.
Supp. 2d at 134.
This jurisdiction has developed a general framework for
assessing pain and suffering awards for victims of terrorist
attacks. "Plaintiffs who suffer serious physical injuries tend to
receive a $5 million award; plaintiffs who suffer relatively more
serious or numerous injuries may receive $7 million (or more); and
plaintiffs whose injuries are relatively less serious or who only
suffer emotional injuries may receive something closer to $1. 5
million." Owens, 71 F. Supp. 3d at 259; see also Valore, 700 F.
Supp. 2d at 84-85; O'Brien v. Islamic Republic of Iran, 853 F.
Supp. 2d 44, 46-47 (D.D.C. 2012).
In a case where a plaintiff suffers from physical injuries
such as compound fractures, severe flesh wounds, and wounds and
scars from shrapnel, as well as lasting and severe psychological
-43-
pain, this Court has awarded a baseline of $5 million dollars.
Valore, 700 F. Supp. 2d at 84 (citing Peterson v. Islamic Republic
of Iran, 515 F. Supp. 2d 25, 54 (D.D.C. 2007). Nethaniel suffered
serious head and hand injuries, some of which required stitches
and plastic surgery. The right side of his face and head was cut
so deeply that the bone was visible. See supra, 14. Nethaniel's
severe flesh wounds have left scars and his wounds from the
shrapnel continue to affect him. For some time following the
attack, Nethaniel experienced severe paranoia, anxiety, a speech
impediment, and fear of loud noises and the dark. Most
significantly of all, he has lost all hearing in one of his ears-
a condition which can never change. See supra, 15-16. Finally, he
continues to suffer from lasting psychological and emotional pain.
See supra, 17-18. Accordingly, and because of the loss of hearing
in one ear, the Court will award Plaintiff $6 million on his count
of battery against the Iranian Defendants. See Peterson v. Islamic
Republic of Iran, 515 F. Supp. 2d 25, 52 n. 26 (D.D.C. 2007);
Valore, 700 F. Supp. 2d at 84.
ii. Count II - IIED
Nethaniel claims relief for "extreme mental anguish and pain
and suffering" resulting from the loss of his friends, intense
physical injury, pain, discomfort, and inconvenience in his IIED
count, Am. Compl. ~ 81. The Court has found Defendants liable on
this count, see supra, 36-38.
-44-
However, because Nethaniel has made a claim for battery,
seeking similar damages for pain and suffering under that count,
see supra, 38-39, it would constitute impermissible double
recovery to allow him to recover for pain and suffering under both
counts. See Valore, 700 F. Supp. 2d at 77. This jurisdiction has
found that a plaintiff who claims multiple theories is limited to
recover under only one. See supra, 39. Accordingly, the Court
cannot award Nethaniel damages for pain and suffering on the count
of IIED against the Iranian Defendants.
b. Economic Damages
Under FSIA, injured victims may recover economic damages,
which typically include lost wages (both past and future), benefits
and retirement pay, and other out-of-pocket expenses. Owens, 71 F.
Supp. 3d at 258. The plaintiff must "prove the amount of damages
by a reasonable estimate." Reed, 845 F. Supp. 2d at 213. Unlike
damages awarded for pain and suffering, "lost earnings are not
hard to quantify and the Court will not excuse plaintiffs' failure
to support the claim for lost earnings with competent evidence."
Moradi, 77 F. Supp. 3d at 71.
As in Moradi, where the court concluded that the evidence was
insufficient to support any award of economic damages because the
plaintiff 1 s declaration was the only evidence supporting his claim
for lost earnings, Nethaniel has also failed to show the requisite
evidentiary support to estimate his lost income. See Moradi, 77 F.
-45-
Supp. 3d at 71. Nethaniel's testimony neither shows an estimate of
his lost past and future income, nor does it include any
specificity on what kind of job he wanted prior to the attack other
than completing his mandatory military service. See id. Therefore,
there is not sufficient evidence for the Court to award economic
damages.
c. Solatium Damages
Shoshana, Ephraim, Tsipora, Chanina, Arieh, Yigal, Isaac,
Abraham, and Joseph Bluth claim solatium damages resulting from
injuries to Nethaniel. Am. Compl. <[466 F. Supp. 2d 229 (D.D.C. 2006) are halved: each parent
receives $2.5 million and each sibling receives $1.25 million."
Id. (citing Owens, 71 F. Supp. 3d at 260; Peterson v. Islamic
Republic of Iran, 515 F. Supp. 2d 25, 52 (D.D.C. 2007); see also
Reed, 845 F. Supp. 2d at 214). Accordingly, Ephraim and Shoshana
will each receive $2.5 million; and each of the Bluth siblings,
except Chanina, will receive $1.25 million.
-46-
2. Punitive Damages
Plaintiffs seek $500 million in punitive damages. Am. Compl.
' 86. "Punitive damages is not an independent cause of action."
Worley, 75 F. Supp. 3d at 337 (internal citations omitted). Such
damages are "awarded to punish a defendant for particularly
egregious conduct, and to serve as a deterrent to future conduct
of the same type." Weinstein, 184 F. Supp. 2d at 23-24. The
language of FSIA specifically "provides courts with the power to
award punitive damages against an agency or instrumentality of a
foreign state in a case" brought pursuant to 28 U.S.C. § 1605A.
See Weinstein, 184 F. Supp. 2d at 24. Therefore, the Court has the
power to award punitive damages to Plaintiffs on their section
1605A claims.
To calculate the proper punitive damages award, the Court
considers "four factors: (1) the character of the defendants' act;
(2) the nature and extent of harm to the plaintiffs that the
defendants caused or intended to cause; (3) the need for
deterrence; and (4) the wealth of the defendants." Moradi, 77 F.
Supp. 3d at 73; Weinstein, 184 F. Supp. 2d at 24 (citing
Restatement (Second) Torts § 908).
First, the character of the Iranian Defendants' attack is
clearly most heinous. See, e.g., Oveissi, 879 F. Supp. 2d at 56;
see also Weinstein, 184 F. Supp. 2d at 25. "The defendants'
demonstrated policy of encouraging, supporting and directing a
-47-
campaign of deadly terrorism is evidence of the monstrous character
of the [attack] that inflicted maximum pain and suffering on
innocent people." Campuzano v. Islamic Republic, of Iran, 281 F.
Supp. 2d 258, 278 (D.D.C. 2003). Second, the Court has already
found that Nethaniel has satisfactorily proven the severe extent
of his injuries, which was intended by Defendants. Third, punitive
damages would serve as a deterrence because Defendants have a
history and "demonstrated policy" of supporting terrorist
activities. See Valore, 700 F. Supp. 2d at 88. Fourth, Iran is a
sovereign and has substantial wealth. See Weinstein, 184 F. Supp.
2d at 25; see also Oveissi, 879 F. Supp. 2d at 56.
In Moradi, after finding that "societal interests in
punishment and deterrence warrant imposition of punitive
sanctions," the Court decided to award punitive damages in an
amount equal to the total compensatory damages awarded. See Moradi,
77 F. Supp. 3d at 73; see also Onsongo v. Republic of Sudan, 60 F.
Supp. 3d 144, 152-153 (D.D.C. 2014).
Alternatively, the courts in Weinstein and Valore have chosen
to base the punitive damages based on Iran's funding of MOIS. In
Weinstein, the court found that $150 million was an appropriate
award in punitive damages. 184 F. Supp. 2d at 25-26. The court was
satisfied with that amount, even though several plaintiffs were
seeking punitive damages from one defendant and there was a
potential of depleting the defendant's limited fund. Id.-48-
In Valore, the court found, based on expert testimony, that
an award of punitive damages would serve to deter Iran from
supporting terrorist activities. 700 F. Supp. 2d at 88. The expert
testified that any amount of punitive damages based on a multiplier
between three and ten of the known amount of Iran's annual cash
assistance to the specific terrorist group would affect the conduct
of Iran. Id. at 88-89. Consequently, the Valore court accepted the
multiplier of five and awarded $1 billion in punitive damages for
the hundreds of military people who died or were injured and their
families. See id. at 60-61, 89-90.
As in Weinstein and Valore, the Defendants in this case did
not directly carry out the attack, but funded Hamas, which then
carried it out. That fact is far from the detention and torture
that was directly carried out by the defendants in Moradi. While
Defendants' acts are closer to those committed in Weinstein and
Valore, it is doubtful whether a large amount resulting from an
expenditure-times-multiplier method would have the deterrent
effect that it might have had in times past. Given the frequency
of these attacks and the lack of any evidence that high awards
have successfully deterred them, the Court finds that neither the
large sum of $500 million requested by Plaintiffs nor the sum
resulting from the expenditure-times-multiplier method is
appropriate.
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In view of the fact that it was Hamas, not Defendants, who
actually committed the terrorist action, that Nethaniel has
suffered life-time injuries that were intended by Defendants, and
that his family members were deeply affected by his physical,
emotional, and psychological harms, the Court concludes that $25
million in punitive damages is appropriate.
IV. CONCLUSION
For the reasons stated above, the Court will grant Plaintiffs'
motion for default judgment and enter judgment for Plaintiffs in
the amounts specified above. A separate Default Judgment
accompanies this Memorandum Opinion.
August 25, 2016
Copies to: attorneys on record via ECF
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