Anderson v. Islamic Republic of Iran ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
EMMA JEAN ANDERSON, et al., )
)
Plaintiff, )
)
v. ) 08-cv-535 (RCL)
)
THE ISLAMIC REPUBLIC OF IRAN, et al. )
)
Defendants. )
)
MEMORANDUM OPINION
I. INTRODUCTION
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in
Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and left countless
others wounded, and caused severe injuries to servicemen Dennis Jack Anderson, Jr., Pedro J.
Alvarado and Willie George Thompson. Various family members of these three servicemen now
bring suit against defendants Islamic Republic of Iran (“Iran”) and the Iranian Ministry of
Information and Security (“MOIS”). Their action is brought pursuant to the state-sponsored
exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq.,
which was enacted as part of the National Defense Authorization Act for Fiscal Year 2008
(“NDAA”). Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338–44 (2008). That provision, codified
at 28 U.S.C. § 1605A, provides “a federal right of action against foreign states.” Simon v.
Islamic Republic of Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008). In particular, plaintiffs allege
that defendants, by both creating and supporting the terrorist organization Hezbollah and
directing that organization to take ‘spectacular action against the United States Marines’
stationed in Lebanon, are legally responsible for the severe mental anguish and emotional toll
that the barracks bombing wreaked upon them. For the reasons set forth below, the Court finds
that plaintiffs have provided sufficient proof to support their causes of action, and determines
that defendants are liable under the FSIA’s state-sponsored terrorism exception.
II. PROCEDURAL HISTORY
A. Prior Beirut Bombing Litigation
There is a lengthy history of litigation before this Court concerning the 1983 bombing of
the U.S. Marine barracks in Beirut. In the seminal case, Peterson v. Islamic Republic of Iran,
dozens of plaintiffs consisting of family members of the 241 deceased servicemen, as well as
several injured survivors of the attack, sued defendants Iran and MOIS, seeking to hold them
liable for the horrific act under the former state-sponsored terrorism exception, which at that time
was codified at 28 U.S.C. § 1605(a)(7). 264 F. Supp. 2d 46, 48 (D.D.C. 2003) (Lamberth, J.).
Over two days in March of 2003, the Court conducted a bench trial at which it heard testimony
from lay and expert witnesses and received documentary evidence concerning the horrific attack,
the grave injuries many suffered, defendants’ involvement in the bombing, and their support for
international terrorism more broadly. See generally id. at 48–59 (discussing evidence and
findings of fact). Based on that evidence, the Court found “that it is beyond question that
Hezbollah and its agents received massive material and technical support from the Iranian
government. . . . [and] 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. The Court
then determined, as a legal matter, that “MOIS actively participated in the attack” and was
“acting as an agent of . . . Iran” when doing so, and thus defendants Iran and MOIS were “jointly
and severally liable to the plaintiffs” for damages. Id. at 61. The Court left the determination of
2
damages in Peterson to another day following further findings of fact by several special masters
appointed to assist the Court. Id. at 65.
Several new suits against Iran and MOIS were filed in the wake of the determination of
defendants’ liability in Peterson. Of greatest importance for these purposes is the case of Valore
v. Islamic Republic of Iran, in which three servicemen at the center of this case were plaintiffs.
700 F. Supp. 2d 52, 61 n.1 (D.D.C. 2010) (Lamberth, J.). In addition, various family members of
these three servicemen “brought claims for intentional infliction of emotional distress, seeking
solatium.” Id. at 60 & 61 n.4. 1 The Court, relying extensively on the evidence presented in
Peterson, determined that “defendants are liable for extrajudicial killing and the provision of
material support and resources for such killing, which was committed by officials, employees,
and agents of defendants; which caused injury under several theories of liability; and for which
the Court has jurisdiction for money damages.” Id. at 80–81. The Court then awarded
compensatory and punitive damages, totaling $290,291,092 and $1,000,000,000, respectively.
Murphy v. Islamic Republic of Iran, ___ F. Supp. 2d __, __, No. 06 Civ. 596, 2010 U.S. Dist.
LEXIS 101250, *80 (D.D.C. Sep. 24, 2010) (summarizing awards in Valore). Subsequent to the
opinion in Valore, several other cases related to the 1983 attack, including this one, remained
pending before this Court.
B. This Action
While the claims brought by servicemen Dennis Jack Anderson, Jr., Pedro J. Alvarado,
and Willie George Thompson, and some of their family members was pending before this Court
in Valore, plaintiffs here, who are other family members of these servicemen not included in the
Valore suit, brought a separate action under former § 1605(a)(7). Complaint, Mar. 27, 2008 [3].
1
Valore was eventually consolidated with Arnold v. Islamic Republic of Iran, No. 06 Civ. 516, Spencer v.
Islamic Republic of Iran, No. 06 Civ. 750, and Bonk v. Islamic Republic of Iran, No. 08 Civ. 1273, all of which
arose out of the 1983 bombing of the Marine barracks. Valore, 700 F. Supp. 2d at 57.
3
Then, following the enactment of the NDAA, plaintiffs filed an Amended Complaint seeking
retroactive application of § 1605A under the related action procedures found in the NDAA.
Amended Complaint ¶ 1, Nov. 25, 2009 [6]. Plaintiffs here are the mother, father 2 and brother of
serviceman Anderson, the estates of serviceman Alvarado’s parents, and the estate of serviceman
Thompson’s father. Id. In the Complaint, plaintiffs allege the same essential facts concerning
the barracks bombing that were established by sufficient evidence in Peterson, id. at ¶¶ 2, 6–9,
and set forth claims of intentional infliction of emotional distress against the defendants. Id. at
¶¶ 10–15. The Complaint also states a separate claim for “Exemplary Damages,” in which
plaintiffs allege that defendants’ conduct was “malicious, misanthropic, willful, unlawful, and in
wanton disregard of life and the standards of law which govern the actions of civilized nations.”
Id. ¶ 17.
Plaintiffs served copies of the relevant papers, along with translations, by diplomatic
channels through the U.S. Department of State, as required by 28 U.S.C. § 1608(a)(4).
According to the diplomatic note, service was effected June 1, 2010. Return of Service/
Affidavit, Aug. 20, 2010 [21]. Under the terms of § 1605A, defendants had 60 days from that
date—until August 1, 2010—to respond. 28 U.S.C. § 1608(d). In early November, after none of
the defendants had appeared or responded to the Amended Complaint, the Clerk of the Court
entered default on their behalf. Clerk’s Entry of Default, Nov. 5, 2010 [27]. Plaintiff
subsequently requested that this Court take judicial notice of the proceedings in Peterson, and
moved for default judgment. Motion for Default Judgment, Nov. 5, 2010 [26]. Based on that
motion, the record, and facts available for judicial notice, the Court makes the following findings
of fact and conclusions of law.
2
According to the Complaint, serviceman Anderson’s father, Dennis Jack Anderson, Sr., died in late 2000,
and is thus represented here by his wife, as administrator of his estate. Id. at ¶ 1.
4
III. FINDINGS OF FACT
The Clerk of the Court entered defendants’ default on November 5, 2010. However,
prior to entry of final default judgment, the FSIA requires that courts evaluate the evidence
before them to ensure that plaintiffs have established their right to relief “by evidence that is
satisfactory to the court.” 28 U.S.C. § 1608(e). This requirement “imposes a duty on FSIA
courts to not simply accept a complaint’s unsupported allegations as true, and obligates courts to
inquire further before entering judgment against parties in default.” Rimkus v. Islamic Republic
of Iran, ___ F. Supp. 2d __, __, No. 08 Civ. 1615, 2010 U.S. Dist. LEXIS 120991, at *13–14
(D.D.C. Nov. 16, 2010) (internal quotations omitted).
In considering whether to enter default judgment, courts in FSIA cases look to various
sources of evidence to satisfy their statutory obligation. Courts may, for example, rely upon
plaintiffs’ “‘uncontroverted factual allegations, which are supported by . . . documentary and
affidavit evidence.’” Valore, 700 F. Supp. 2d at 59 (alteration in original; quoting Int’l Road
Fed’n v. Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)). In
addition to more traditional forms of evidence—testimony and documentation—plaintiffs in
FSIA cases may also submit evidence in the form of affidavits. Blais v. Islamic Republic of Iran,
459 F. Supp. 2d 40, 53 (D.D.C. 2006) (citing Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d
74, 82 (D.D.C. 2006)). Finally, a FSIA court may “‘take judicial notice of related proceedings
and records in cases before the same court.’” Valore, 700 F. Supp. 2d at 59 (quoting Brewer v.
Islamic Republic of Iran, 664 F. Supp. 2d 43, 50–51 (D.D.C. 2009)). Here, plaintiffs rely
entirely on this final form of evidence in support of their motion for default judgment.
A. Judicial Notice of Prior Related Cases
5
Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts
“not subject to reasonable dispute” where those facts are either “generally known within the
territorial jurisdiction” or are “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). This rule permits
courts to take judicial notice of court records in related proceedings. 29 Am. Jur. 2d Evidence §
151 (2010); see also Booth v. Fletcher, 101 F.2d 676. 679 n.2 (D.C. Cir. 1938) (“A court may
take judicial notice of, and give effect to, its own records in another but interrelated proceeding .
. . .”); 2 McCormick on Evid. § 332 (6th ed. 2009) (noting that principle permitting courts to take
judicial notice of current proceeding “is equally applicable to matters of record in the
proceedings in other cases in the same court”). Because of the multiplicity of FSIA-related
litigation, courts in this District have frequently taken judicial notice of earlier, related
proceedings. See, e.g., Murphy, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 101250 at *11;
Valore, 700 F. Supp. 2d at 59–60; Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 50–51
(D.D.C. 2009).
A difficult issue arises concerning judicial notice of related proceedings with regard to
courts’ prior findings of facts. While such findings in a prior proceeding are “capable of
accurate and ready determination” from judicial records, Fed. R. Evid. 201(b), it cannot be said
that these same findings are “not subject to reasonable dispute.” Id. Specifically, such findings
represent merely a court’s probabilistic determination as to what happened, rather than a first-
hand account of the actual events. As such, they constitute hearsay, and thus are considered
inadmissible. Athridge v. Aetna Cas. & Sur. Co., 474 F. Supp. 2d 102, 110 (D.D.C. 2007) (citing
United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994)).
6
This Court grappled with these difficulties in its recent opinion in Rimkus, where—
“mindful that the statutory obligation found in § 1608(e) was not designed to impose the onerous
burden of re-litigating key facts in related cases arising out of the same terrorist attack,” ___ F.
Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991 at *18 (citing Brewer, 664 F. Supp. 2d at 54)—
determined that the proper approach is one “that permits courts in subsequent related cases to
rely upon the evidence presented in earlier litigation . . . without necessitating the formality of
having that evidence reproduced.” Id. (citing Murphy, __ F. Supp. 2d __, 2010 U.S. Dist. LEXIS
at *11). Thus, based on judicial notice of the evidence presented in the earlier cases—here,
Peterson and Valore 3—courts may reach their own independent findings of fact.
B. Relevant Findings of Fact
This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in
Beirut, Lebanon—an event that has been at the center of numerous FSIA suits. In support of
their claims, plaintiffs ask this Court to take judicial notice of its previous findings in the
Peterson case, during which the Court held a two-day bench trial on the issue of liability. 264 F.
Supp. 2d at 48–49. Bearing in mind the parameters for judicial notice in FSIA actions set forth
above, the Court takes notice of the evidence presented in Peterson and Valore, and renders the
following findings of fact:
Dennis Jack Anderson, Jr.
Documentary evidence presented to the assigned special master in Valore demonstrates
that Dennis Jack Anderson, Jr. was born on October 13, 1958 in the United States, and has at all
times in his life been a citizen of the United States. Report of Special Master (Anderson) 1, Dec.
3
Though plaintiffs only requested that the Court take judicial notice of the proceedings in Peterson, Motion
for Default Judgment at 1, the Court is permitted under the Federal Rules of Evidence to take judicial notice on its
own initiative. Fed. R. Evid. 201(c). Thus, the Court also takes judicial notice of the proceedings in Valore, as that
case involved testimony and documentary evidence concerning servicemen Anderson, Alvarado and Thompson
which is relevant here. 700 F. Supp. 2d at 60–61 n.1 & n.4.
7
15, 2009, Valore, No. 03 Civ. 1959 [46]. Serviceman Anderson’s testimony further establishes
that he joined the Marines at age 18, was trained as a field Wireman, and was sent to Beirut with
the 1st Battalion, 8th Marines as a float. Id. at 2.
Pedro J. Alvarado
Documentary evidence presented to the assigned special master in Valore shows that
serviceman Alvarado was born in Puerto Rico on February 8, 1955, and was a United States
citizen at all relevant times. Report of Special Master (Alvarado) 3, Feb. 19, 2010, Valore, No.
03 Civ. 1959 [50]. Serviceman Alvarado’s testimony further establishes that that he joined the
Navy in 1981, trained to become a Corpsman, and studied preventive medicine in field medical
school with the Marine Corps. Id. at 4. Serviceman Alvarado was deployed to Beirut as a
Corpsman at the time of the attack on the Marine barracks. Id. at 5.
Willie George Thompson
Documentary evidence presented to the assigned special master in Valore demonstrates
that Willie George Thompson was born on November 3, 1960 in the United States, and has at all
times in his life been a citizen of the United States. Report of Special Master (Thompson) 3,
Nov. 17, 2009, Valore, No. 03 Civ. 1959 [43]. Serviceman Thompson’s testimony further
establishes that he joined the Marine Corps in 1981 and was assigned to the headquarters
company of 1st Battalion, 8th Marines based in North Carolina. Id. at 4. Serviceman Thompson
was a Lance Corporal when he was deployed to Beirut. Id. at 5.
Defendants
Defendant Iran “is a foreign state and has been designated a state sponsor of terrorism
pursuant to section 69(j) of the Export Administration Act of 1979, 50 U.S.C. § 2405(j),
continuously since January 19, 1984.” Blais, 459 F. Supp. 2d at 47. Defendant MOIS is the
8
secret police and intelligence organization of Iran. In Valore, this Court characterized MOIS as a
“division of the state of Iran” that “acted as a conduit for the Islamic Republic of Iran’s provision
of funds to Hezbollah.” Valore, 700 F. Supp. 2d at 53, 65.
The Attack on the Marine Barracks
Documentary evidence presented to this Court in Peterson establishes that in late 1982,
the 24th Marine Amphibious Unit of the U.S. Marines—which included 1st Battalion, 8th
Marines—was dispatched as part of an international peacekeeping coalition to the Lebanese
capital of Beirut. Peterson, 264 F. Supp. 2d at 49. The rules of engagement issued to the
servicemen in this unit clearly stated that they “possessed neither combatant nor police powers.”
Id. Indeed, numerous witnesses at the Peterson trial testified that these servicemen “were more
restricted in their use of force than an ordinary U.S. citizen walking down a street in Washington,
D.C.” Id. at 50. As Col. Timothy Geraghty, the commander of the U.S. deployment testified:
“The rules – these were geared primarily again with the peacekeeping mission [in mind] and the
sensitivities of killing or maiming someone accidentally.” Id. (alteration in original). Given the
nature of this deployment, the Court finds that the servicemen were non-combatants operating
under peacetime rules of engagement.
During the Peterson trial, the Court heard the videotaped deposition of a Hezbollah
member known by the pseudonym “Mahmoud.” 264 F. Supp. 2d at 54. Mahmoud is a Lebanese
Shi’ite Muslim, and was part of the group that carried out the attack on the Marine barracks in
1983. He provided the following information concerning the planning and execution of the
bombing:
In 1983, high-ranking members of Hezbollah and a member of the Iranian Revolutionary
Guard Corps, acting at the direction of the Iranian Ambassador to Syria, met in Baalbek,
9
Lebanon. Id. at 55. At this meeting, the individuals “formed a plan to carry out simultaneous
attacks against the American and French barracks in Lebanon.” Id. Subsequent to these
discussions, members of Hezbollah disguised a 19-ton truck to resemble a water delivery truck
that regularly traveled to the Beirut International Airport, near the U.S. Marine barracks, and
rigged the truck so that it could carry an explosive device. Id. at 56. On the morning of October
23, 1983, a group of Hezbollah operatives ambushed the real water delivery truck, and the fake
truck was sent to the barracks, driven by an Iranian member of Hezbollah. Upon reaching the
barracks, the fake truck increased its speed and broke through the wire and sandbag barriers
surrounding the facility. Once the truck reached the center of the barracks, the bomb it carried
was detonated. Id.The Peterson Court also received substantial testimony concerning the explosion and its
aftermath. Danny A. Defenbaugh, the on-scene FBI forensic explosive investigation, testified as
an expert before the Court and explained that the explosion was, at the time, “the largest non-
nuclear explosion that had ever been detonated on the face of the Earth,” with a force that “was
equal to between 15,000 to 21,000 pounds of TNT.” Id. Steve Russell, the sergeant of the guard
at the time of the attack, stated that the bomb left many victims mangled and in severe pain. Id.
at 58. In particular, Wireman Anderson suffered severe burns and abrasions, Report of Special
Master (Anderson) at 4, Corpsman Alvarado sustained a number of contusions and bruises,
Report of Special Master (Alvarado) at 6, and Lance Corporal Thompson suffered a cracked hip
and broken wrist, as well as several lacerations on his fact. Report of Special Master
(Thompson) at 6. In all, the attack on the barracks killed 241 U.S. servicemen, and left countless
others severely injured, both physically and emotionally. Peterson, 264 F. Supp. 2d at 58.
Iranian Involvement in the Marine Barracks Bombing
10
The testimony of Mahmoud establishes that the barracks bombing was undertaken by
members of Hezbollah. 4 In Peterson, this Court found that the group Hezbollah “was formed
under the auspices of the government of Iran.” 264 F. Supp. 2d at 51. This determination was
based on the testimony of several expert witnesses in the Peterson trial. First, Dr. Patrick
Clawson, a “widely-renowned expert on Iranian affairs,” testified that Hezbollah was a creature
of the Iranian government: “Hezbollah is largely under Iranian orders. It’s almost entirely
acting at the – under the order of the Iranians.” Id. at 51. Second, Dr. Reuven Paz, “who has
researched Islamist terrorist groups over the last 25 years,” stated that “at that time – even today,
but especially at that time, when Hezbollah was not yet formed as a strong group, it was totally
controlled by Iran and actually served mainly the Iranian interest.” Id. at 52. Finally, Robert
Baer, “a case officer in the Directorate of Operations of the CIA,” explained that, at the time of
the 1983 bombing, Hezbollah was constituted by “a bunch of agents of Iran.” Id. at 52–53 n.10.
Thus, the Iranian government was directly tied to the actions undertaken by the members of
Hezbollah in the attack on the U.S. Marine barracks.
In addition to evidence concerning Iran’s role in creating and supporting Hezbollah,
plaintiffs in Peterson also presented testimony concerning an intercepted message from MOIS to
an Iranian official orderings attacks against U.S. Marines. Admiral James A. Lyons—who at the
time was the Deputy Chief of Naval Operations for Plans, Policy and Operation—“routinely
received intelligence information about American military forces” during the period leading up
to the 1983 bombing. Id. at 54. Admiral Lyons testified about a message from MOIS to the
Iranian ambassador to Syria, directing the Ambassador to contact a terrorist leader and “instruct
him to have his group instigate attacks against the multinational coalition in Lebanon, and ‘to
4
Hezbollah is synonymous with “Hizbollah,” which is merely a “variant transliteration[] of the same
name.” Oveissi v. Islamic Republic of Iran, 498 F. Supp. 2d 268, 273 n.3 (D.D.C. 2007) rev’d on other grounds,
573 F.3d 835 (D.C. Cir. 2009).
11
take a spectacular action against the United States Marines.’” Id. Additional evidence showed
that, following these instructions, this Ambassador to Syria then instructed an Iranian
Revolutionary Guard Corp officer to attend a meeting with Hezbollah operatives, and that the
attack on the Marine barracks was planned at that meeting. Id. at 54–55. Based on this
evidence, the Court finds that both Iran and MOIS played crucial and necessary roles in planning
and ordering the 1983 bombing.
Finally, testimony from explosives experts at the Peterson trial also points to Iranian
involvement in the attack. At trial, experts from both the FBI and AFT “concluded that the
explosive material” in the bomb “was ‘bulk form’ pentaerythritol tetranitrate, or PETN.” Id. at
56. Mr. Defenbaugh, the FBI investigator, then explained that the ‘bulk form’ of PETN, rather
than the manufactured form, “is not generally sold commercially,” and that—at the time of the
attack—bulk form PETN “was manufactured within the borders of Iran.” Id. at 57. And Warren
Parker, a forty-year veteran explosives expert for the Army and ATF, testified that “[t]hese are
not things that you just go down to the drugstore and buy a pound of . . . . it is a state- or
military-run factory that produces this type of material.” Id. at 57–58. Based on this testimony,
the Court concurs and adopts its finding in Peterson that “Hezbollah and its agents received
massive material and technical support from the Iranian government. . . . [I]t is highly unlikely
that this attack could have resulted in such loss of life without the assistance of regular military
forces, such as those of Iran.” Id. at 58.
Iranian Support for Terrorism
In addition to the direct support of Hezbollah for the purpose of carrying out the horrific
bombing of the U.S. Marine barracks in 1983, the evidence presented at the Peterson trial
demonstrates that Iran has also played a critical role in support for terrorism more generally. At
12
the Peterson trial, Dr. Clawson estimated that between 1983 and 1988, the Iranian government
annually spent approximately $ 50 to $150 million financing terrorist organizations in the Near
East. Id. at 51. In funding such operations, Iran uses MOIS to exercise operational control over
groups such as Hezbollah. Id. at 53. And these activities have only intensified and worsened: In
an affidavit filed with this Court in Valore, Dr. Clawson estimates that today the “financial
material support provided by Iran in support of terrorism is in the range of $ 300 million to $ 500
million a year.” 700 F. Supp. 2d at 88.
IV. CONCLUSIONS OF LAW
Based on these findings of fact, the Court reaches the following conclusions of law:
A. Jurisdiction
Subject to certain enumerated exceptions—including the state-sponsored terrorism
exception—the FSIA simultaneously provides immunity to foreign states from suit and denies all
U.S. federal and state courts jurisdiction over such actions. 28 U.S.C. § 1604. Under certain
conditions, however, courts obtain original jurisdiction for suits against foreign states, and those
states’ general immunities are waived by operation of statute. Based on the evidence here, these
conditions have been met.
1. Original Jurisdiction
The state-sponsored terrorism exception provides that federal courts possess original
jurisdiction over suits against a foreign state only if (1) “money damages are sought,” (2)
“against a foreign state” for (3) “personal injury or death” that (4) “was caused” (5) “by an act of
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources . . . for such an act.” Id. at § 1605A(a)(1).
13
Here, each of these prerequisites is met. First, plaintiffs have only identified monetary
remedies in their Complaint, Amended Complaint at 7–10, rendering this a suit involving only
“money damages.” Second, defendant Iran is plainly a foreign state. With respect to defendant
MOIS, the FSIA defines foreign state to include “a political subdivision . . . or an agency or
instrumentality of a foreign state.” Id. at § 1603(a). Applying this definition, courts in this
jurisdiction have been directed to ask whether an entity “is an integral part of a foreign state’s
political structure”; if so, that defendant is treated as a foreign state for FSIA purposes. TMR
Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 300 (D.C. Cir. 2005) (internal
quotations omitted). Here, the evidence establishes that MOIS is a division of the state of Iran
that acted as a conduit for the state’s provision of funds to terrorist organizations, including
Hezbollah. See supra Section III.B. Defendant MOIS is thus a foreign state for purposes of
these proceedings. See Oveissi, 498 F. Supp. 2d at 275 (finding MOIS to constitute a foreign
state). Third, the testimony presented to the special masters in Valore establishes that each of the
servicemen at the center of this action suffered both physical and mental injuries as a result of
the attack. See supra Section III.B. Fourth, the evidence establishes that defendant Iran founded
Hezbollah for the purpose of undertaking attacks such as the 1983 bombing and funneled money
to the terrorist organization through defendant MOIS, and also demonstrates that both defendants
played necessary planning, logistical and support roles leading up the horrific attack. See id.
This is more than sufficient to satisfy the FSIA’s requirement that there be “some reasonable
connection between the act or omission of the defendant and the damages which the plaintiff has
suffered.” Valore, 700 F. Supp. 2d at 66 (internal quotations omitted). Finally, the 1983
bombing constitutes an extrajudicial killing that occurred as a direct and proximate result of
14
defendants’ conduct in providing financial and military assistance to the attackers. On the basis
of these findings, the Court has jurisdiction over plaintiffs’ claims.
2. Waiver of Sovereign Immunity
While this Court’s exercise of jurisdiction over this action is a necessary prerequisite to
moving forward, foreign states remain immune from suit absent a waiver of sovereign immunity.
Waiver of a foreign states’ immunity can occur either by that state’s own action or by operation
of statute. The state-sponsored terrorism exception provides that such waiver occurs where (1)
“the foreign state was designated as a state sponsor of terrorism at the time the act . . . or was so
designated as a result of such act, and . . . either remains so designated when the claim is filed
under this section or was so designated within the 6-month period before the claims is filed under
this section,” (2) the claimant or the victim was, at the time of the act . . . a national of the United
States [or] a member of the armed forces [or] otherwise an employee of the Government of the
United States . . . acting within the scope of the employee’s employment,” and (3) “in a case in
which the act occurred in the foreign state against which the claim has been brought, the
claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.” 28
U.S.C. § 1605A(a)(2)(i)–(iii) (emphasis added).
Here, the established facts warrant waiver of defendants’ sovereign immunity as provided
by the FSIA. First, Iran was designated by the U.S. Secretary of State as a sponsor of terrorism,
partially in response to the Beirut bombing. U.S. Dep’t of State, Determination Pursuant to
Section 6(i) of the Export Administration Act of 1979—Iran, 49 Fed. Reg. 2836, Jan. 23, 1984
(designating Iran upon concluding that “Iran is a country which has repeatedly provided support
for acts of international terrorism”). Second, all three victims of the attack—servicemen
Anderson, Alvarado and Thompson—were U.S. citizens, and each plaintiff is as well. See supra
15
Section III.B. Finally, because the bombing occurred at the Marine barracks in Lebanon—and
not Iran—the FSIA’s requirement that defendants be given an opportunity to arbitrate this claim
is inapplicable here. For these reasons, defendants’ immunity is waived and they may be held
liable for the attack which left 241 U.S. servicemen dead, and numerous others severely injured. 5
B. Retroactive Application of § 1605A to this Case
The NDAA provides that § 1605A may be applied retroactively under particular
circumstances. Specifically, “a plaintiff in a case pending under former § 1605(a)(7) may move
the Court to have that case treated as if brought under § 1605A, or a plaintiff may bring a
separate action under § 1605A within a specified range following final judgment in the earlier
related proceeding.” Rimkus, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS at *46. Under the
latter approach, a FSIA plaintiff must file a related action “not later than the latter of 60 days
after (A) the date of entry of judgment in the original action; or (B) the date of the enactment of
this Act.” NDAA § 1083(c)(3). Judgment was issued in the related Valore case on March 31,
2010. 6 700 F. Supp. 2d at 90. This action was filed in March of 2008—well before 60 days after
entry of judgment in Valore. The Court shall therefore apply § 1605A retroactively to Plaintiffs’
claims for relief. 7
5
Plaintiff served the Amended Complaint on defendants through diplomatic channels on June 1, 2010, as
authorized under FSIA, 28 U.S.C. § 1608(a)(4). Return of Service/Affidavit, Aug. 20, 2010 [21]. The Court thus
has personal jurisdiction over the defendants. See Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 296
(D.D.C. 2003) (Lamberth, J.) (holding that personal jurisdiction exists over non-immune foreign state where service
is effected under §1608).
6
Another requirement of § 1083(c)(3)’s retroactive procedures is that the original action to which the
action before the Court is related must have been “timely commenced under section 1605(a)(7).” NDAA §
1083(c)(3). Valore was originally brought under § 1605(a)(7), and thus fits this criteria. 700 F. Supp. 2d at 57.
7
The Court is aware that plaintiffs, in filing their Amended Complaint in this action, did not bring a
separate proceeding as contemplated in the related action procedures found in the NDAA. See NDAA § 1083(c)(3)
(stating that, where prior § 1605(a)(7) proceeding was pending, “any other action arising out of the same act or
incident may be brought under section 1605A”) (emphasis added). Instead, the act of filing an Amended Complaint,
as plaintiffs did here, is much more akin to the re-filing procedures outlined in the prior actions section of the Act.
See id. at § 1803(c)(2) (stating that “[a] motion may be made or an action may be refiled” under § 1605A)
(emphasis added). Indeed, this Court has previously noted that Ҥ 1083(c)(3) pertaining to related actions . . . is
really a vehicle best reserved for those cases that had reached a final judgment and were not before the courts at time
16
C. Estate-Plaintiff Standing
Four of the six plaintiffs in this action are either estates, representatives of decedents, or
direct heirs bringing a right of action on behalf of decedents. These plaintiffs do not bring
actions related to the decedent’s own deaths, but instead seek recovery for emotional and mental
anguish that the decedents suffered while still alive. Such recovery for pain and suffering,
however, is not universally available to estate-plaintiffs. See, e.g., Cal. Code Civ. P. § 377.34
(“In an action or proceeding by a decedent’s personal representative or successor in interest on
the decedent’s cause of action, the damages recoverable . . . do not include damages for pain,
of the enactment of the 2008 NDAA.” In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 91
(D.D.C. 2009).
Were the Court to treat plaintiffs’ filing of the Amended Complaint as a request for application of §
1083(c)(2), however, such a request would be untimely. Congress explicitly limited the use of the prior action
procedures to a strict 60-day period following the act. See NDAA § 1083(c)(2)(C)(ii) (stating that motions or
refilings under § 1083(c)(2) must be made “within the 60-day period beginning on the date of the enactment of this
Act”); see also Beer v. Islamic Republic of Iran, 574 F. Supp. 2d 1, 5 n.1 (“[T]o benefit from § 1605A, a plaintiff in
an action pending under § 1605(a)(7) must, within 60 days from the date of the NDAA’s enactment, either (1) refile
the action; or (2) file a motion for an order giving effect to the action as if it had originally been filed under §
1605A.”). By the plain terms of the Act, the window to invoke the prior action procedures thus expired on March
28, 2008. In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 65. Plaintiffs here filed the Amended
Complaint more than a year after the expiration of this window. See supra Section II.B.
The Court is also mindful, however, that at the time plaintiffs filed the Amended Complaint, they were
proceeding with a timely action under § 1605(a)(7). Under the plain terms of the NDAA, they were therefore
eligible to bring a separate action under the related action procedures outlined in the Act. See NDAA § 1083(c)(3)
(“If an action arising out of an act of incident has been timely commenced under section 1605(a)(7) . . . any other
action arising out of the same act or incident may be brought under section 1605A.”). Using this action as the
“original” suit, plaintiffs could have brought a separate but related action under § 1605A. In light of the fact that
plaintiffs were capable of bringing such a suit, the Court does not see why it should punish plaintiffs for instead
choosing to amend their original Complaint.
Moreover, no purpose is served by the Court requiring future plaintiffs in timely § 1605(a)(7) actions to file
an entirely separate action, rather than amending their complaints to state a cause of action under § 1605A. Were
the Court to do so, two separate results may obtain. First, plaintiffs may choose to then pursue two parallel
actions—one under former § 1605(a)(7), and one under § 1605A. There is no benefit to either plaintiffs or
defendants of having simultaneous litigations, while the costs to the Court—in terms of time, repetition, and
needless complication—has already been established. See In re Islamic Republic of Iran Terrorism Litig., 659 F.
Supp. 2d at 91–92 (“[R]equiring this Court to maintain two nearly identical actions on the docket . . . and will
inevitably require this Court to flip back and forth between dozens of related cases involving hundreds upon
hundreds of repeat plaintiffs. . . . [S]uch a result wastes time and resources, and invites great confusion.”) Second, if
plaintiffs instead (reasonably) choose to pursue only their newly filed action under § 1605A while voluntarily
dismissing their prior § 1605(a)(7) action, absolutely nothing has been gained. The Court is left with a single action
under § 1605A—just as it is now when it permits plaintiffs to simply amend their complaints—while procedural
maneuvering has imposed needless delay and waste into already time-consuming proceedings.
For these reasons, the Court finds the filing of the Amended Complaint in this action to constitute
invocation of the related action procedures of the NDAA, and that plaintiffs’ filing in this regard was timely under
the terms of § 1083(c)(3)(A).
17
suffering, or disfigurement”). Thus, before determining whether plaintiffs have stated a valid
cause of action under § 1605A, the Court must first determine whether these estate-plaintiffs
have standing to pursue such claims in this case.
As the D.C. Circuit Court of Appeals has previously explained, because an action brought
pursuant to the state-sponsored terrorism exception is based on a federal statute, the “extent and
nature” of the claims brought under the FSIA is a federal question. Bettis v. Islamic Republic of
Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). However, an estate’s standing to maintain a cause of
action seeking damages for injuries suffered during the decedent’s lifetime is not an issue
touching on the “extent and nature” of the estate’s underlying claim, but rather is a threshold
question concerning the powers of the estate to bring and maintain legal claims. Such questions
are governed by the law of the state which also governs the creation of the estate. This is plainly
supported by Congress’ purpose in creating a federal cause of action under § 1605A, which is to
ensure that a “foreign state shall be liable in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 1606. If an estate-plaintiff would not be
permitted to bring suit against a private individual due to the operation of the state law governing
the estate—which is plainly unrelated to the “extent and nature” of the specific cause of action—
nothing in the FSIA indicates that the same estate-plaintiff should otherwise be permitted to
bring an identical claim against a foreign state. Bearing these principles in mind, the Court shall
examine the state law applicable to each of the estate-plaintiffs in this action.
Estate of Dennis Jack Anderson, Sr.
The estate of Wireman Anderson’s father is governed by Georgia law. Declaration of
Joseph Peter Drennan ¶ 2, Nov. 23, 2010 [29] (“Drennan Decl.”). The Georgia Civil Practice
Act makes clear that “[n]o action for a tort shall abate by the death of either party,” Ga. Code.
18
Ann. § 9-2-41, and that “the cause of action shall . . . survive to . . . the legal representative of the
deceased party. Id. at § 9-2-40. In 1952, these rules were amended, inserting the phrase “cause
of action.” As the Georgia Court of Appeals has made clear, the purpose of this amendment was
to expand the rule’s prior applicability to pending cases only so as to include rights of actions
that a decedent possessed, but had not yet exercised. See Posner v. Koplin, 94 S.E.2d 434, 437
(Ga. Ct. App. 1956) (noting that amendment “made the provisions of the act of 1889 applicable
to causes of action or rights of action, as opposed to pending suits which alone were dealt with in
that act”). Thus, because Georgia state courts frequently entertain suits, without limitation,
brought by estate representatives for personal injury suffered by the decedent while still alive,
see, e.g., MARTA v. Maloof, 698 S.E.2d 1, 3 (Ga. Ct. App. 2010); Griffin v. Hunt Ref. Co., 664
S.E.2d 823, 825 (Ga. Ct. App. 2008), the Court shall permit this claim to proceed.
Estate of Andres Alvarado Mirabal
The estate of Andres Alvardo Mirabal, father to Corpsman Alvarado, is governed by the
laws of New York. Drennan Decl. ¶ 3. The ability for a New York estate or representative to
bring a personal injury action belonging to the decedent is governed by New York’s Estates,
Powers and Trusts Law. The relevant provision provides: “No cause of action for injury to
person . . . is lost because of the death of the person in whose favor the cause of action existed.
For any injury an action may be brought . . . by the personal representative of the decedent.”
N.Y. E.P.T.L. § 11-3.2. As the New York Court of Appeals very recently made clear, this
provision ensures that “all tort and contract actions that belonged to a decedent may now be
maintained by the estate’s personal representative.” Heslin v. County of Greene, 923 N.E.2d
1111, 1114 n.4 (N.Y. 2010). The estate of Mr. Mirabal therefore has standing here.
Estate of Nerida Tull-Baex
19
The estate of Corpsman Alvarado’s mother is governed by the laws of Puerto Rico.
Drennan Decl. ¶ 4. District Courts in the First Circuit have had numerous opportunities to
discuss the application of Puerto Rico law on this matter, and have reached a consensus that “the
Puerto Rico law regarding causes of action by members of an estate permits individual members
to bring a cause of action for the decedent’s pain and suffering.” Martinez-Alvarez v. Ryder
Mem’l Hosp., No. 09 Civ. 2038, 2010 U.S. Dist. LEXIS 90499, at *46 (D.P.R. Aug. 31, 2010);
see also Ruiz-Hance v. P.R. Aqueduct & Sewer Auth., 596 F. Supp. 2d 223, 229 (D.P.R. 2009)
(“In Puerto Rico, the cause of action for the pain and suffering experienced by a decedent prior
to his/her death passes on to his/her estate and is actionable by the heirs.”); Mangual v. Toledo,
536 F. Supp. 2d 127, 134 (D.P.R. 2008) (“The law of Puerto Rico allows [decedent]’s pain and
suffering to transmit to his immediate heirs, who can bring an action claiming damages for the
deceased’s pain.”). Corpsman Alvardo, heir to his mother’s estate, brings the claims on behalf of
his interest in that estate, and thus may validly proceed under Puerto Rico law.
Estate of Melvin Oley Thompson
The estate of Melvin Oley Thompson is governed by South Carolina law. Drennan Decl.
¶ 5. The survival of the decedent’s tort claim under South Carolina law is governed by the
state’s Civil Remedies and Procedures code, the relevant provision of which states: “Causes of
action for . . . any and all injuries to the person . . . shall survive both to and against the personal
or real representative . . . of a deceased person.” S.C. Code Ann. § 15-5-90. The Supreme Court
of South Carolina has explained that this survivability statute “has a wide ambit,” and that,
“[g]enerally, any cause of action which could have been brought by the deceased in his lifetime
survives to his representative.” Ferguson v. Charleston Lincoln Mercury, Inc., 564 S.E.2d 94,
96–97 (S.C. 2002) (citing Layne v. Int’l Bhd. Of Elec. Workers, 247 S.E.2d 346, 349 (S.C.
20
1978)). Here, Lance Corporal Thompson brings a cause of action on behalf of his deceased
father, and thus has standing to pursue that claim.
D. Liability
Section 1605A of the FSIA creates a federal statutory cause of action for acts of
terrorism. Specifically, under the state-sponsored terrorism exception, a plaintiff can seek to
hold a foreign state liable for (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 provision provided, by the foreign state or an official, employee, or
agent of the foreign state if the act (3) “caused” (4) “personal injury or death” (5) “for which
courts of the United States may maintain jurisdiction under this section for money damages.” 28
U.S.C. §§ 1605A(a)(1) & (c). As the Court has recently discussed at length, the third and fourth
elements—causation and injury—“require plaintiffs to prove a theory of liability” in which
plaintiffs articulate a justification for the recovery the damages which they seek, generally
expressed “through the lens of civil tort liability.” Rimkus, ___ F. Supp. 2d at __; 2010 U.S.
Dist. LEXIS 120991 at *28. The Court will examine each of these elements in turn.
1. Act
On the basis of the evidence presented in Peterson, plaintiffs here have sufficiently
established that defendants were responsible for the horrific attack on the U.S. Marine barracks
in Beirut in 1983, which killed 241 U.S. servicemen and left hundreds of others severely
wounded. The evidence concerning the actions of defendants Iran and MOIS demonstrates that
they are culpable both for the extrajudicial killing of U.S. citizens and for the provision of
material support to the members of Hezbollah participating in the bombing, in satisfaction of the
first element of liability under the federal cause of action.
21
The FSIA defines extrajudicial killing by reference to Section 3 of the Torture Victim
Protection Act of 1991. 28 U.S.C. § 1605A(h)(7). That Act defines an extrajudicial killing as
[(1)] a deliberated killing [(2)] not authorized by a previous
judgment pronounced by a regularly constituted court [(3)]
affording all judicial guarantees which are recognized as
indispensable by civilized peoples.
Torture Victim Protection Act of 1991 § 3(a), 28 U.S.C. § 1350 note. The evidence presented in
Peterson establishes that, prior to the attack on the U.S. Marine barracks, orders were issued by
Iran, through MOIS and to the Iranian Ambassador to Syria, instructing him to direct members
of terrorist organizations—such as those that perpetrated the attack in Beirut—to take action
against U.S. peacekeeping forces stationed in Lebanon. See supra Section III.B. There is no
evidence that this order was sanctioned by any judicial body, and the order to use force against
members of an international peacekeeping force was in direct contravention of civil guarantees
recognized as indispensable to all free and civilized peoples. Based on these findings, the
barracks bombing constitute an extrajudicial killing, undertaken by members of Hezbollah acting
as agents for defendants Iran and MOIS.
The FSIA declares that the concept of “material support or resources” is defined by
reference to the U.S. criminal code. 28 U.S.C. § 1605A(h)(3). That definition states that support
means any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance, safehouses,
false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel . . . and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1). The evidence presented at the Peterson trial demonstrates that during
the period leading up to the bombing, Iran founded and supported Hezbollah for the purpose of
advancing its own agenda. See supra Section III.B. Testimony of multiple expert witnesses
establishes that Hezbollah was essentially composed of a number of Iranian agents who were
22
supported financially and materially by Iran and MOIS. Id. And more specifically, the evidence
shows that the explosive materials used in the attack were of a type and grade that would only
have been available to the perpetrators of the attack through direct cooperation of the Iranian
government, and that these materials could only have been used as effectively as they were with
military assistance and training, which was provided by MOIS. Id. Taken together, these acts
plainly constitute the provision of material support for FSIA purposes.
2. Actor
The Court has determined that defendants Iran and MOIS are responsible for the
provision of material support which led to the attack on the U.S. Marine barracks in Beirut. In
addition, the evidence presented in Peterson establishes that Hezbollah acted generally as an
agent of Iran during this period, and that it was a direct order emanating from defendants which
prompted the barracks bombing. See supra Section III.B. Under such circumstances, defendants
may be held vicariously liable for the extrajudicial killing perpetrated by the bombers. See
Murphy, ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 101250 at *50–51 (holding that
defendant foreign state may be held liable where Hezbollah agents “acted at the behest and under
the operational control of defendants”).
3. Theory of Recovery – Causation & Injury
The elements of causation and injury in the federal cause of action created by § 1605A
require FSIA plaintiffs “to prove a theory of liability” which justifies holding the defendants
culpable for the injuries that the plaintiffs allege to have suffered. Valore, 700 F. Supp. 2d at 73;
see also Rimkus, ___ F. Supp. 2d at __; 2010 U.S. Dist. LEXIS at *28 (“[P]laintiffs in § 1605A
actions . . . must articulate the justification for such recovery, generally through the lens of civil
tort liability.”). When determining the contours of these theories, the D.C. Circuit Court of
23
Appeals has cautioned that while the “extent and nature” of such claims “are federal questions,”
the FSIA “does not . . . authorize the federal courts to fashion a complete body of federal law.”
Bettis, 315 F.3d at 333. Based on the Circuit Court’s guidance, District Courts in this
jurisdiction “rely on well-established principles of law, such as those found in Restatement
(Second) of Torts and other leading treatises, as well as those principles that have been adopted
by the majority of state jurisdictions” to outline the boundaries of these theories of recovery. In
re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 61 (D.D.C. 2009). Here,
plaintiffs articulate two bases for relief: intentional infliction of emotional distress, and
exemplary damages. Amended Complaint ¶¶ 10–17.
(i) Intentional Infliction of Emotional Distress
Plaintiffs sets forth three Counts of intentional infliction of emotional distress—one
Count for each grouping of plaintiffs related to one of the three servicemen at the heart of this
action. Amended Complaint Counts I–III. Count I is brought on behalf of Emma Jean
Anderson—both individually and as the representative for the estate of Dennis Jack Anderson,
Sr.—and Mitchell Scott Anderson; they are Wireman Anderson’s mother, father and brother,
respectively. Id. at ¶¶ 10–11. Count II is brought on behalf of the estates of Andreas Alvarado
Mirabal and Nerida Tull-Baex, the father and mother of Corpsman Alvarado. Id. at ¶¶ 12–13.
Count III is brought on behalf of the estate of Melvin Oley Thompson, Lance Corporal
Thompson’s father. Id. at ¶¶ 14–15. Each Count sets forth similar factual allegations—that the
attack on the U.S. Marine barracks caused the plaintiffs to suffer “severe mental distress, which .
. . will continue.” Id. at ¶¶ 11, 13, 15. Each individual plaintiff seeks $ 20 million in
compensatory damages for their injuries.
This Court and others have frequently addressed the intentional infliction of emotional
distress theory following enactment of § 1605A. Relying principally on the Restatement, courts
24
have set for the following standard: “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.” Heiser v. Islamic
Republic of Iran, 659 F. Supp. 2d 20, 26 (D.D.C. 2009) (citing Restatement (Second) of Torts §
46(1)). The scope of recovery under this theory is limited by two qualifications: the plaintiff
must be “a member of [the injured person’s] immediate family” and must be “present at the
time.” Restatement (Second) of Torts § 46(2)(a)–(b). The former qualification is of no
consequence here, as plaintiffs are either parents or siblings of the injured servicemen, and thus
fall within even the strictest definition of immediate family. See Valore, 700 F. Supp. 2d at 79(noting that immediate family “is consistent with the traditional understanding of one’s
immediate family” and includes “one’s spouse, parents, siblings, and children”).
The issue of presence, however, warrants a bit more discussion. Plainly, none of the
plaintiffs in this action were present in Beirut and witnesses to the bombing of the U.S. Marine
barracks. However, this Court has previously recognized that the presence requirement is
subject to a caveat—specifically, the Restatement “‘expresses no opinion as to whether there
may not be other circumstances under which the actor may be subject to liability.’” Heiser, 659
F. Supp. 2d at 26–27 (quoting Restatement (Second) of Torts § 46). As the Heiser Court
explained: “Terrorism [is] unique among the types of tortuous activities in both its extreme
methods and aims . . . . ‘All acts of terrorism are by the very definition extreme and outrageous
and intended to cause the highest degree of emotional distress, literally, terror.’” Id. at 27
(quoting Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78, 89 (D.D.C. 2002)). Thus, the
Court concluded that a plaintiff “need not be present at the place of outrageous conduct, but must
be a member of the victim’s immediate family.” Id. Following this holding, the Valore Court
25
determined that the Beirut bombing qualified as an extreme and outrageous act sufficient to
invoke this theory of recovery for non-present plaintiffs, 700 F. Supp. 2d at 79–80, and the Court
shall do the same here. Defendants are thus liable for the mental anguish and suffering that
plaintiffs have endured as a result of the attack on the U.S. Marine barracks in Beirut.
(ii) Punitive Damages
In addition to the three Counts of intentional infliction of emotional distress, plaintiffs set
forth a final Count on behalf of all plaintiffs, titled “Exemplary Damages.” Amended Complaint
¶¶ 16–17. The Count alleges that defendants’ actions “were malicious, misanthropic, willful,
unlawful, and in wanton disregard of life and the standards of law which govern the actions of
civilized nations,” and seeks an award of $250 million in punitive damages. Id.It is a well-established principle that “punitive damages is not an independent cause of
action.” Botvin v. Islamic Republic of Iran, 604 F. Supp. 2d 22, 25 (D.D.C. 2009) (internal
quotations omitted). The Court recently grappled with claims solely for punitive damages under
the FSIA in Rimkus, explaining that “a plaintiff must set forth an independent claim—generally
sounding in intentional tort or strict liability—for which punitive damages may be an appropriate
remedy.” ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991 at *26 (emphasis own; citing
Restatement (Second) of Torts § 908 cmt. c (1979)). In Rimkus, the Court permitted the
plaintiff’s claim for punitive damages to go forward after determining that the plaintiff had
“specifically alleged” a claim under FSIA by setting forth “each element in the federal cause of
action provided by § 1605A.” Id. 8
8
Though the Court permitted the plaintiff’s claim in Rimkus for punitive damages to proceed, it did
emphasize that “future plaintiffs in all § 1605A actions . . . [should] clearly articulate the theories of recovery in
future actions,” rather than submitting merely an outline of the language found in § 1605A. ___ F. Supp. 2d at __,
2010 U.S. Dist. LEXIS 120991 at *30.
26
Here, plaintiffs have not attempted to set forth a complete cause of action under Count
IV, but rather rely primarily on the nature of defendants’ conduct in this case to sustain their
claims for punitive damages. Amended Complaint ¶ 17. This is plainly insufficient, see
Iacangelo v. Georgetown Univ., 580 F. Supp. 2d 111, 114 (D.D.C. 2008) (dismissing “free-
standing punitive damages claim as improperly pled”), and Count IV should be dismissed.
This is not to say, however, that plaintiff may not recover punitive damages in this action.
As the Rimkus Court also made clear, where appropriate, punitive damages may be pursued as a
remedy to an intentional tort. ___ F. Supp. 2d at __, 2010 U.S. Dist. LEXIS 120991 at *26.
Here, as seen above, plaintiffs have set forth proper causes of action for intentional infliction of
emotional distress—an intentional tort. The Court will thus treat Count IV of the Amended
Complaint as requesting the remedy of punitive damages in relief of the claims set forth in
Counts I–III. See Park v. Hyatt Corp., 436 F. Supp. 2d 60, 66 (D.D.C. 2006) (noting that
“punitive damages are not an independent cause of action” but treating plaintiff’s claim for
punitive damages “as part of an ad damnum clause”).
4. Jurisdiction
The Court has already determined that it is proper to exercise jurisdiction over defendants
in this action, and that plaintiffs are only seeking monetary compensation. See Supra Section
V.A. This element is thus satisfied, and defendants may be properly held liable under the federal
cause of action embodied in § 1605A for the 1983 bombing of the U.S. Marine barracks, which
resulted in numerous injuries to servicemen Anderson, Alvarado and Thompson, and caused
members of their families to suffer severe mental anguish as a result.
V. SPECIAL MASTERS
27
Though the Court has determined that defendants are liable to plaintiffs under the FSIA,
it also lacks evidence necessary to render an appropriate measure of damages. In determining
the proper measure of damages, “[t]he courts of the United States may appoint special masters to
hear damages claims brought under” the state-sponsored terrorism exception to the FSIA. 28
U.S.C. § 1605A(e)(1). Here, appointment of a special master would not impose undue expenses
on any party and will not result in unreasonable delay—a prerequisite set forth in Fed. R. Civ. P.
53(a)(3). To the contrary, the use of special masters will affirmatively assist the Court in the
efficient resolution of claims in this action.
As noted extensively above, this case is related to the Peterson case, and as a result it is
subject to the administrative plan for special masters first set forth in that action. See Amended
Administrative Plan Governing Appointed Special Masters 1, July 30, 2003, Peterson, No. 01
Civ. 2094 [29] (noting that the plan applies to “any other cases arising out of the October 23,
1983 occurrence at Beirut, Lebanon assigned to Judge Royce C. Lamberth in which special
masters are appointed”) (“Plan”). The Plan requires that plaintiffs provide the Court, within
thirty days of the adoption of the Plan, with the potential master’s curriculum vitae, and that the
potential master submit an affidavit to the court disclosing whether there is any ground for his or
her disqualification under 28 U.S.C. § 455, consistent with Rule 53. Id. at 2. Location and
appointment of a special master is therefore the next step in this action.
VI. CONCLUSION
On October 23, 1983, plaintiffs here could only sit in horror upon learning of the tragic
and devastating destruction of the U.S. Marine barracks in Beirut, Lebanon. At that time, there
was no way for these individuals to know whether their sons or brother—who were stationed in
Beirut as part of a peacekeeping operation—were dead or alive. Thankfully, despite the efforts
28
of Iran and MOIS to inflict of maximum devastation and death, servicemen Anderson, Alvarado
and Thompson escaped with their lives. Plaintiffs, however, still suffered greatly, both from the
thought that their close relatives might be dead, and from fear arising from the knowledge that a
close member of their family had been the victim of a horrific terrorist attack. The Court,
however, lacks sufficient evidence to render any determination concerning the appropriate
amount of damages to be awarded to plaintiffs here. Thus, the Court holds that defendants Iran
and MOIS are legally liable to plaintiffs for the emotional and mental anguish they suffered as a
result of the Beirut bombing, and directs plaintiffs to submit a motion for appointment of a
special master to assist the Court in making an appropriate determination of damages.
A separate Order and Judgment consistent with these findings shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on December 1, 2010.
29