Gill v. Islamic Republic of Iran , 249 F. Supp. 3d 88 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MATI GILL, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-2272 (RBW)
)
ISLAMIC REPUBLIC OF IRAN, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Mati Gill, the plaintiff in this civil case, brings this personal injury action against the
Islamic Republic of Iran (“Iran”) pursuant to the Foreign Sovereign Immunities Act (the “Act”),
28 U.S.C. § 1605A (2012). Complaint (“Compl.”) ¶ 1. The plaintiff alleges that Iran knowingly
provides material support to Hamas, a Foreign Terrorist Organization, which executed a shooting
attack in Israel during which the plaintiff was shot and injured. Id. Currently before the Court is
the plaintiff’s Motion for Judgment by Default (“Pl.’s Mot.”). After carefully considering all of
the relevant evidence submitted by the plaintiff, 1 the Court concludes for the reasons below that
it must grant the plaintiff’s motion.
I. BACKGROUND
The plaintiff filed this action on December 31, 2015, Compl. at 1, asserting a personal
injury claim against Iran under the Act for providing material support to Hamas, which the
1
In addition to the filings identified above, the Court considered the following submissions in rendering its decision:
(1) the Plaintiff’s Memorandum of Law in Support of Motion for Default Judgment, ECF No. 31 (“Pl.’s Mem.”); (2)
the Declaration of Mati Gill, ECF No. 19-2 (“Gill Decl.”); (3) the Declaration of Natan Bar-Chama, M.D., ECF No.
19-3 (“Bar-Chama Decl.”); (4) the Declaration of Patrick L. Clawson, Ph.D, ECF No. 25 (“Clawson Decl.”); (5) the
Declaration of Ronni Shaked, Ph.D, ECF No. 23 (“Shaked Decl.”); (6) the Declaration of Gil Erez, ECF No. 20
(“Erez Decl.”); (7) Erez Decl., Exhibit (“Ex.”) B (CD-ROM); (8) the Deposition of Mati Gill, ECF No. 19-4 (“Gill
Dep.”); and (9) the Plaintiff’s Proposed Findings of Fact and Conclusions of Law in Support of Motion for Default
Judgment, ECF No. 27 (“Pl.’s Facts & Law”).
plaintiff alleges was responsible for a shooting attack in Israel on April 4, 2008, during which the
plaintiff was seriously injured, see id. ¶¶ 1, 8–10, 38–40. The Clerk of this Court sent by
certified mail two copies of the summons, Complaint, and notice of the suit, along with a Farsi
translation of each, to the United States Department of State. See Certificate of Mailing (Jan. 29,
2016), ECF No. 6. Thereafter, the Secretary of State sent the documents to the Foreign Interests
Section of the Embassy of Switzerland in Tehran, which subsequently delivered them to the
Iranian Ministry of Foreign Affairs on April 20, 2015. See Letter from Daniel Klimow, Attorney
Adviser in the Department of State’s Office of Legal Affairs, to the Clerk of the Court (June 7,
2016), ECF No. 10. After Iran failed to respond to the action, the plaintiff filed an affidavit in
support of a default being entered against Iran, see Affidavit in Support of Default (June 27,
2016), ECF No. 11, and the Clerk of the Court entered a default against Iran on June 28, 2016,
see Default (June 28, 2016), ECF No. 12. The plaintiff then filed his motion for default
judgment on July 19, 2016. See Pl.’s Mot. at 1.
On March 13, 2017, while the plaintiff’s motion was pending, the Court issued an Order
directing the plaintiff to show cause “why the Court should not dismiss this action for lack of
subject-matter jurisdiction,” in light of the fact that the plaintiff appeared to assert that the April
4, 2008 shooting attack constituted an extrajudicial killing, but did not “allege[] that any deaths
occurred as a result of the shooting.” See Order at 2 (Mar. 13, 2017), ECF No. 30. The plaintiff
timely responded to the Court’s Order. See generally Pl.’s Mem.
II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide for the entry of a default judgment “[w]hen
a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend” as provided by the rules. Fed. R. Civ. P. 55(a); see also Jackson v. Beech, 636 F.2d 831,
2
836 (D.C. Cir. 1980) (“The default judgment must normally be viewed as available only when
the adversary process has been halted because of an essentially unresponsive party.” (quoting
H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir.
1970)). Rule 55 sets forth a two-step process for a party seeking default judgment: entry of a
default, followed by entry of a default judgment. Fed. R. Civ. P. 55; see also 10A Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2682 (4th ed. 2017) (stating that “[p]rior to
obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry
of default as provided by Rule 55(a)”). When a defendant has failed to plead or otherwise
defend against an action, the plaintiff may request that the clerk of the court enter a default
against that defendant. See Fed. R. Civ. P. 55(a). Once the clerk enters the default pursuant to
Rule 55(a), Rule 55(b) authorizes either the clerk or the Court to enter a default judgment against
the defendant. See Fed. R. Civ. P. 55(b).
Under the Act, to prevail on a motion for a default judgment against a foreign sovereign,
the plaintiff must show that the Court has original jurisdiction over the claim and personal
jurisdiction over the defendant, see 28 U.S.C. § 1330(a)–(b), and must “establish[] his claim or
right to relief by evidence satisfactory to the [C]ourt,” id. § 1608(e); see also Braun v. Islamic
Republic of Iran, __ F. Supp. 3d __, __, 2017 WL 79937, at *5 (D.D.C. Jan. 9, 2017) (discussing
default judgments under the Act). This evidence may be presented through sworn affidavits or
declarations. See Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 20 (D.D.C. 2009).
“Upon evaluation, the Court may accept any uncontroverted evidence presented by plaintiffs as
true.” Id. (citing Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 255 (D.D.C. 2006)).
3
III. FINDINGS OF FACT
Based on the undisputed evidence submitted by the plaintiff, the Court finds that the
plaintiff has established the following facts.
A. The Attack and the Plaintiff’s Injuries
On April 4, 2008, the plaintiff, who was serving as the aide to Avi Dichter, Israel’s
Minister of Public Security, “accompan[ied] the Minister on a tour he was leading for a Canadian
delegation.” Gill Decl. ¶¶ 14–16. The group stopped at “Nizmit Hill, an elevated observation
area, inside Israel, a few hundred meters from the Gaza Border.” Id. ¶ 17. While at the
observation point, the delegation came under gunfire from the direction of the Gaza Strip. See
id. ¶¶ 16–22. The plaintiff “heard gunshots, and almost immediately felt something hit [his]
buttocks and go through [his] leg.” Id. ¶ 19. He “looked down and saw that the front of [his]
khaki pants [were] fill[ed] with blood.” Id. ¶ 20. The plaintiff then “crawled behind a car to take
cover,” id. ¶ 22, until an ambulance arrived and took him to a hospital, id. ¶ 23.
The plaintiff was
taken into surgery “to remove as much shrapnel as possible and to attempt to repair the injuries.”
Id. ¶ 27; see also Bar-Chama Decl. ¶¶ 16–17. The plaintiff remained in the hospital for five
days, “was in extreme discomfort,” and described the experience as “traumatic.” Gill Decl. ¶ 28.
4
B. Iran’s Material Support of Hamas’s Terrorist Activities
According to Patrick L. Clawson, Ph.D, the Director of Research at the Washington
Institute for Near East Policy and a prior senior research professor at the National Defense
University, see Clawson Decl. ¶ 2, “[i]t has been well-documented for over thirty years that Iran
has provided funding and training for terrorism operations that targeted United States and Israeli
citizens[, and s]uch activities have included support for Hamas,” id. ¶¶ 23–24. “While Iran’s
relationship with Hamas has waxed and waned over the years, Iran never cut off all its support
for Hamas . . . .” Id. ¶ 27. “[T]here is ample evidence that Iran has supplied substantial material
support to Hamas, including in the period immediately before, during, and immediately after the
April 4, 2008 attack in which [the plaintiff] was injured.” Id. ¶ 48. This support has included
5
training and financial resources. See id. ¶¶ 41, 42, 44; see also Bodoff v. Islamic Republic of
Iran, 907 F. Supp. 2d 93, 100–01 (D.D.C. 2012) (finding that “Iran provided substantial support
for Hamas’[s] terrorist activities for the purpose of undertaking attacks such as the February
1996 bus bombing in which [the decedent] was killed, funneled money and material support to
Hamas through [the Iranian Ministry of Information and Security], and also demonstrates that
both defendants played necessary planning, logistical and support roles leading up to the bus
bombing”).
According to Ronni Shaked, Ph.D, who served as a Commander in the Israeli Security
Agency for thirteen years and is the current Head of the Middle East Unit at the Harry Truman
Institute for the Advancement of Peace at Hebrew University, see Shaked Decl. ¶¶ 4, 12, 20,
Hamas is a “deadly and . . . successful” terrorist organization, id. ¶ 21. Shaked states that
“Hamas considers terrorism, or ‘armed resistance’—as it terms its acts of violence—a central
way of attracting attention to itself for the Palestinian public and the Islamic world . . . .” Id.
¶ 22. Shaked notes that Hamas has “worked with determination to publicize its principal role in
the perpetration of violent attacks against Israelis.” Id. The United States designated Hamas a
Foreign Terrorist Organization in 1997, and it continues to retain that designation. See Foreign
Terrorist Organizations, U.S. Dep’t of State, https://www.state.gov/j/ct/rls/other/des/123085.htm
(last visited Mar. 21, 2017).
C. Hamas’s Responsibility for the Attack
“[F]or many years, Hamas worked with determination to publicize its principal role in the
perpetration of violent attacks . . . [and] its public recognition of its operatives when they died or
were arrested.” Shaked Decl. ¶ 22. “[W]hen Hamas makes an official claim of responsibility for
an attack, the claim has usually been accurate.” Id. ¶ 24. According to Gil Erez, a former
6
military intelligence officer for the Israeli Defense Forces with a specialty in aerial photo
analysis, see Erez Decl. ¶¶ 4–5, on the day of the attack, “Hamas claimed responsibility for the
[a]ttack in a news flash on Al Aqsa TV, Hamas’s Gaza-based television station,” id. ¶ 33. Also
that same day, the spokesperson for the Qassam Brigades, Hamas’s military arm, claimed that
the Qassam Brigades and another group called Defenders of Al Aqsa were jointly responsible for
the attack. See id. ¶¶ 15, 33; see also Shaked Decl. ¶¶ 59–65. Qassam Brigade’s website
includes the attack on its list of successful attacks, and specifies that the attack targeted Minister
Dichter’s convoy. See Erez Decl. ¶¶ 34 & n.17; Shaked Decl. ¶¶ 60, 68.
Further, “[i]n recent years, Hamas has begun to film some of its attacks on Israeli targets
for internal propaganda purposes.” Shaked Decl. ¶ 30. The Qassam Brigades recorded and
publicized a video of the attack that is the subject of this case on April 4, 2008. See Erez Decl.
¶ 34. On that day, “a video was broadcast on Al Aqsa TV showing the [a]ttack from the
perspective of the perpetrators, including how the shooter prepared and settled in, aimed toward
the people on the hill and shot several rounds.” Id. ¶ 34; see also id., Ex. B (CD-ROM); Shaked
Decl. ¶¶ 74–80.
IV. CONCLUSIONS OF LAW
A. Original Jurisdiction
The Act provides that “district courts shall have original jurisdiction without regard to
amount in controversy of any nonjury civil action against a foreign state,” so long as the claim
for relief is “in personam with respect to which the foreign state is not entitled to immunity.” 28
U.S.C. § 1330(a). Here, although the plaintiff requested a jury trial, see Compl. at 9, claims
under the Act are not subject to jury trials, see Braun, __ F. Supp. 3d at __, 2017 WL 79937, at
*5 (“[W]hile the plaintiffs have demanded ‘trial by jury of all issues legally triable to a jury’ no
7
jury trial is available for . . . claims [under the Act], and thus this action is a ‘nonjury civil
action.’” (internal citations omitted)). Additionally, the plaintiff brings this action against Iran as
a foreign sovereign for in personam relief. See Compl. ¶¶ 1, 13. Therefore, this action is a
“nonjury civil action,” and the claim for relief is “in personam.” See Braun, __ F. Supp. 3d at
__, 2017 WL 79937, at *5. Thus, the Court must initially determine whether the foreign state is
“entitled to immunity.” 28 U.S.C. § 1330(a).
B. Waiver of Sovereign Immunity
The Act provides exceptions to the grant of sovereign immunity generally accorded to
foreign states. See generally 28 U.S.C. § 1605A (entitled “Terrorism exception to the
jurisdictional immunity of a foreign state”). The terrorism exception provides that a district
court has jurisdiction to hear a claim against a foreign state if, in addition to other scenarios not
applicable in this case, (1) that “state was designated as a state sponsor of terrorism” at the time
of the act that is the subject of the action and retains that designation at the time the claim is
filed, id. § 1605A(a)(2)(A)(i)(I); (2) the claimant was a United States national at the time of the
act, id. § 1605A(a)(2)(A)(ii)(I); and (3) the foreign state provided material support or resources
for “an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking,” which caused
the personal injury or death that is the subject of the action, id. § 1605A(a)(1). 2
The first two elements of the terrorism exception are clearly satisfied in this case. First,
Iran was designated as a state sponsor of terrorism at the time of the attack on April 4, 2008, see
22 C.F.R. § 126.1(d) (2008), and when the plaintiff filed his Complaint in 2015, see id.
§ 126.1(d) (2015); see also State Sponsors of Terrorism, U.S. Dep’t of State,
2
The fourth requirement, which requires the plaintiff to “afford[] the foreign state a reasonable opportunity to
arbitrate the claim,” does not apply because the attack that is the subject of this action did not “occur[] in the foreign
state against which the claim has been brought.” 28 U.S.C. § 1605A(a)(2)(A)(iii).
8
https://www.state.gov/j/ct/list/c14151.htm (last visited Mar. 21, 2017) (stating that Iran was
designated as a State Sponsor of Terrorism on January 19, 1984, and currently retains that
designation). Second, the plaintiff was a United States citizen at the time of the attack. See Gill
Decl. ¶ 4 (stating that he is a dual citizen of the United States and Israel).
The last element of the terrorism exception applicable to this case requires the plaintiff to
prove that (1) the foreign state provided material support or resources (2) for “an act of torture,
extrajudicial killing, aircraft sabotage, [or] hostage taking,” which (3) caused the personal injury
or death that is the subject of the action. 28 U.S.C. § 1605A(a)(1). The Court is satisfied that
the plaintiff has demonstrated that Iran provides material support for Hamas’s terrorist activities,
such as the April 4, 2008 attack that is the subject of this case, see supra Part III.B, and that
Hamas is responsible for that attack, which caused the plaintiff’s injuries, see supra Part III.A, C.
“This evidence satisfies the [Act’s] requirement of a causal connection between the act or
omission of [Iran] and the damages which the plaintiff[] ha[s] suffered.” Bodoff, 907 F. Supp.
2d at 101; see also Cohen v. Islamic Republic of Iran, __ F. Supp. 3d __, __, No. 12-cv-1496
(CRC), 2017 WL 818208, at *5 (D.D.C. Mar. 1, 2017) (“[W]here a foreign state routinely
funnels money to a terrorist organization, a plaintiff need not establish that the material support
or resources . . . contributed directly to the act from which the claim arises to satisfy his
obligation under the [Act].” (quoting Valencia v. Islamic Republic of Iran, 774 F. Supp. 2d 1, 12
(D.D.C. 2010))).
The question that remains regards the second prerequisite; namely, whether the attack
constitutes “an act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking.” 28
U.S.C. § 1605A(a)(1). Upon consideration of the text and history of the terrorism exception, the
Court agrees with the plaintiff that the attack that injured him qualifies as an attempted
9
extrajudicial killing, which is included in the terrorism exception’s definition of extrajudicial
killing. See Pl.’s Mem. at 1.
The Court relies in part on another member of this Court’s comprehensive historical
analysis of the terrorism exception as set forth in In re Islamic Republic of Iran Terrorism
Litigation, 659 F. Supp. 2d 31 (D.D.C. 2009). In that case, (then Chief) Judge Lamberth noted
that “[t]he state sponsor of terrorism exception of the [Act] was first enacted in 1996, . . . [but]
the original exception at § 1605(a)(7) was repealed [in 2008] by the 2008 [National Defense
Appropriations Act], and replaced with a new exception at § 1605A.” Id. at 39. The original
terrorism exception eliminated foreign sovereign immunity in cases
in which money damages [we]re sought against a foreign state for personal injury
or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or resources (as defined in
section 2339A of title 18) for such an act if such act or provision of material support
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. § 1605(a)(7) (repealed 2008). And, the Act, when first enacted, adopted the
definitions of “torture” and “extrajudicial killing” provided by the Torture Victims Protection
Act of 1991. See id. § 1605(e)(1).
Judge Lamberth noted that “[t]he new terrorism exception—§ 1605A—clear[ed] away a
number of legal obstacles, including adverse court rulings, that ha[d] stifled plaintiffs’ efforts to
obtain relief in civil actions against designated state sponsors of terrorism.” In re Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d at 40. Specifically, § 1605A (1) created a new
federal cause of action against state sponsors of terrorism, (2) allowed for punitive damages
under the new cause of action, (3) authorized compensation for special masters, and (4)
“implement[ed] new measures designed to facilitate the enforcement of judgments.” Id. at 58–
59.
10
The District of Columbia Circuit has come to a similar conclusion regarding the terrorism
exception’s objective, noting in Han Kim v. Democratic People’s Republic of Korea that
“Congress enacted the terrorism exception expressly to bring state sponsors of terrorism . . . to
account for their repressive practices.” 774 F.3d 1044, 1048 (D.C. Cir. 2014). On that point, the
Circuit continued:
Concerned with victims’ inability to obtain redress in terrorism cases, Congress
later amended the statute to make it easier to attach a foreign State’s property during
litigation and to seize those assets to satisfy a judgment. See 28 U.S.C.
§§ 1605A(g), 1610. And the statute has always authorized courts to enter default
judgments against defendants who refuse to appear. Id. § 1608(e). With these
provisions, Congress aimed to prevent state sponsors of terrorism—entities
particularly unlikely to submit to this country’s laws—from escaping liability for
their sins.
Han Kim, 774 F.3d at 1048. In another case brought under the Act, after recounting the
terrorism exception’s history, see Van Beneden v. Al-Sanusi, 709 F.3d 1165, 1167 (D.C. Cir.
2013), the Circuit concluded that, given the Act’s “text and purpose,” its “ambiguities [should be
interpreted] flexibly and capaciously,” id. at 1167 –68 & n.4 (citing with approval Doe v. Bin
Laden, 663 F.3d 64, 70 (2d Cir. 2011), which stated that “[t]he text, history, and purpose of the
statute make clear that the statute does not counsel a narrow reading”).
In In re Islamic Republic of Iran Terrorism Litigation, Judge Lamberth noted that,
although the current terrorism exception removed certain legal barriers for plaintiffs to pursue
relief against state sponsors of terrorism, its “grant of subject[-]matter jurisdiction for suits
against state sponsors of terrorism is virtually unchanged” from the original terrorism exception.
659 F. Supp. 2d at 39. The current terrorism exception in § 1605A provides, in relevant part:
A foreign state shall not be immune from the jurisdiction of courts of the United
States or of the States in any case not otherwise covered by this chapter in which
money damages are sought against a foreign state for personal injury or death that
was caused by 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
11
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 (2012). Congress continued to define the terms “torture” and “extrajudicial
killing” for purposes of § 1605A as they are defined in the Torture Victims Protection Act of
1991. See 28 U.S.C. § 1605A(h)(7).
The Torture Victims Protection Act defines an extrajudicial killing as
a deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. Such term, however, does not
include any such killing that, under international law, is lawfully carried out under
the authority of a foreign nation.
106 Stat. 73, 28 U.S.C. § 1350 (note). The Torture Victims Protection Act amended the Alien
Tort Statute, which grants district courts “original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States.” 28
U.S.C. § 1350. And the Alien Tort Statute “confers a jurisdictional grant for a ‘narrow set of
common law actions derived from the law of nations.’” Ali Shafi v. Palistinian Auth., 686 F.
Supp. 2d 23, 26 (D.D.C. 2010) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004)). A
former judge of this Court summarized the purpose underlying the Torture Victims Protection
Act as follows:
After a federal circuit judge expressed doubt that such a judicially-created cause of
action was appropriate, see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813
(D.C. Cir. 1984) (Bork, J., concurring) (questioning the propriety of finding that “a
rule has evolved against torture by government so that our courts must sit in
judgment of the conduct of foreign officials in their own countries with respect to
their own citizens”), Congress passed the [Torture Victims Protection Act]. See S.
Rep. 102–249, at 4–5 (1991) (“Judge Robert H. Bork questioned the existence of a
private right of action under the [Alien Tort Statute], reasoning that separation of
powers principles required an explicit grant by Congress of a private right of action
for lawsuits which affect foreign relations. The [Torture Victims Protection Act]
would provide such a grant[.]” (citing Tel-Oren )). The [Torture Victims Protection
Act] provides, in relevant part, that “[a]n individual who, under actual or apparent
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authority, or color of law, of any foreign nation ... subjects an individual to torture
shall, in a civil action, be liable for damages to that individual[.]” 28 U.S.C. § 1350.
The Supreme Court cited the [Torture Victims Protection Act] as an example of a
clear Congressional mandate for creating a cause of action for claims of torture and
extrajudicial killing . . . .
Ali Shafi, 686 F. Supp. 2d at 26. To summarize, Congress passed the Torture Victims Protection
Act in order to create an explicit federal cause of action for plaintiffs to bring claims of torture
and extrajudicial killing against foreign states to ensure that federal courts would have original
jurisdiction over such claims under the Alien Tort Statute. See id. Accordingly, the purposes of
the Torture Victims Protection Act and the terrorism exception are similar, in that Congress
passed both statutes in order to aid victims in their pursuit to prosecute claims of particular types
of torture and terrorism against foreign states.
The plaintiff has not identified any case, nor could the Court find any, in which a court
concluded that the terrorism exception creates a waiver of a foreign state’s sovereign immunity
against a claim for extrajudicial killing in circumstances where no fatalities actually resulted. 3
Two courts have determined, however, that the definition of an extrajudicial killing under the
Torture Victims Protection Act includes liability for an attempted extrajudicial killing. In
Warfaa v. Ali, 33 F. Supp. 3d 653 (E.D. Va. 2014), aff’d, 811 F.3d 653 (4th Cir. 2016), petition
for cert. filed, (U.S. May 2, 2016) (No. 15-1345), a member of the Eastern District of Virginia
declined to grant the defendant’s motion to dismiss the plaintiff’s Torture Victims Protection Act
claims, concluding that the plaintiff sufficiently pleaded claims of torture and attempted
extrajudicial killing under the Torture Victims Protection Act because the plaintiff “describe[ed]
3
In his memorandum, the plaintiff cites and Buonocore v. Great Socialist People’s Libyan Arab Jamahiriya, No.
CIV.A. 06-727 JMF, 2013 WL 351546 (D.D.C. Jan. 29, 2013); Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1
(D.D.C. 2011); and Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008). See Pl.’s Mem. at 4. In
each of these cases, however, the terrorist attack resulted in fatalities. See Buonocore, 2013 WL 351546 at *7, 10,
12; Haim, 784 F. Supp. 2d at 4; Acosta, 574 F. Supp. 2d at 18.
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in graphic detail the nature of the torture he endured and [the] defendant’s ‘deliberated’ attempt
to kill him without process,” id. at 657, 666 (emphasis added); see also id. at 666 (noting that the
“defendant personally participated in [the] plaintiff’s torture and further attempted to kill him by
shooting him five times”). 4 Similarly, in Doe v. Constant, No. 04 Civ. 10108 (SHS) (S.D.N.Y.
Oct. 24, 2006), aff’d, 354 Fed. App’x 543 (2d Cir. 2009), a judge of the Southern District of
New York entered a default judgment against the defendant after finding that liability for
extrajudicial killing under the Torture Victim Protection Act “ha[d] been clearly established”
where the plaintiffs were victims of “attack[s] that were attempts to kill them,” even though the
plaintiffs survived the attacks, see id. at 9 n.3. In both Warfaa and Constant, the plaintiffs
asserted attempted extrajudicial killing and torture as separate claims, and the courts in both
cases evaluated the claims of attempted extrajudicial killing independently of the torture claims.
See Warfaa, 33 F. Supp. 3d at 666 (concluding that the plaintiff “alleged both offending acts
with requisite specificity, describing in graphic detail the nature of the torture he endured and
[the] defendant’s ‘deliberated’ attempt to kill him without process” (emphasis added)); Constant,
No. 04 Civ. 10108 (SHS) at 9 n.3 (concluding, after determining that the plaintiffs adequately
pleaded a claim for torture, that “[a]dditionally, plaintiff Jane Doe I was the victim of a brutal
stabbing and Jane Doe III the victim of an attack that were attempts to kill them. As such,
liability has been clearly established for attempted extrajudicial killing” (emphasis added)).
Accordingly, the courts’ holdings in Warfaa and Constant regarding a claim for attempted
4
This holding regarding the attempted extrajudicial killing is not what is being challenged in the plaintiff’s petition
for a writ of certiorari. See Petition for Writ of Certiorari at (i), Warfaa, No. 15-1345 (U.S. May 2, 2016) (stating
that the plaintiff’s question presented concerns “[w]hether a foreign official’s common-law immunity for acts
performed on behalf of a foreign state is abrogated by [the] plaintiff’s allegations that those official acts violated jus
cogens norms of international law”).
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extrajudicial killing did not depend on the fact that the plaintiffs were also tortured or that a third
party was killed.
This Court is persuaded by the Warfaa and Constant rulings that the Torture Victim
Protection Act’s definition of extrajudicial killing allows plaintiffs to assert liability for a
defendant’s attempted extrajudicial killing, even if no one died as a result of that attempt. See
Warfaa, 33 F. Supp. 3d at 666; Constant, No. 04 Civ. 10108 (SHS) at 9 n.3. Therefore, because
the terrorism exception adopts the Torture Victim Protection Act’s definition of extrajudicial
killing for the purposes of determining whether a foreign state has waived its sovereign
immunity for particular categories of terrorism, see 28 U.S.C. § 1605A(a)(1), (h)(7), the Court
concludes that Hamas’s attempted extrajudicial killing of the plaintiff constitutes an extrajudicial
killing under the terrorism exception. In reaching this conclusion, the Court is guided by the
Circuit’s direction that Congress amended the terrorism exception to “prevent state sponsors of
terrorism . . . from escaping liability for their sins,” Han Kim, 774 F.3d at 1048, and therefore,
given the Act’s “text and purpose,” its “ambiguities [should be interpreted] flexibly and
capaciously,” Van Beneden, 709 F.3d at 1167 & n.4; see also Cohen, __ F. Supp. 3d at __, 2017
WL 818208 at *5 (“For purposes of subject matter jurisdiction, [the p]laintiffs need only
establish that the bombing here was unauthorized, deliberate, and that there were casualties. It is
not necessary, however, for one of the plaintiffs to have died in the attack in order for the state-
sponsor-of-terrorism exception to apply.”). Accordingly, because (1) Iran was designated as a
state sponsor of terrorism in 2008 and 2015; (2) the plaintiff is a United States citizen; and (3)
Iran provided material support for Hamas, which committed the attempted extrajudicial killing of
the plaintiff, the Court concludes that Iran’s sovereign immunity is waived based on the
terrorism exception.
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C. Personal Jurisdiction
“Personal jurisdiction over a foreign state shall exist as to every claim of relief over
which the district courts have jurisdiction . . . where service has been made under [§] 1608 of this
title.” 28 U.S.C. § 1330(b). Thus, because subject-matter jurisdiction has already been
established, see supra Part III.A–B, the Court must determine whether the plaintiff has properly
effected service pursuant to § 1608.
Section 1608 provides several means of serving a foreign state. One acceptable method
is serving the foreign state “through diplomatic channels,” which requires the plaintiff to send
“two copies of the summons and complaint and a notice of suit, together with a translation of
each into the official language of the foreign state.” Id. § 1608(a)(4). The copies may be sent
“by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of
the court” in order to have the copies sent through “diplomatic channels” to the foreign state. Id.
The clerk of the court shall receive “a certified copy of the diplomatic note indicating when the
papers were transmitted.” Id.
Here, the plaintiff properly made effective service through diplomatic channels because
the Clerk of the Court sent by certified mail “two copies of the summons and complaint and a
notice of suit, together with a translation of each into the official language of the foreign state,”
id. § 1608(a)(4), to the Secretary of State, see Certificate of Mailing (Jan. 29, 2016), ECF No. 6,
who then delivered the forms to Iran by sending them to the Foreign Interests Section of the
Embassy of Switzerland in Tehran, which subsequently delivered them to the Iranian Ministry of
Foreign Affairs on April 20, 2015, see Letter from Daniel Klimow, Attorney Adviser in the
Department of State’s Office of Legal Affairs, to the Clerk of the Court (June 7, 2016), ECF No.
10. The Secretary of State then “sen[t] to the clerk of the court a certified copy of the diplomatic
16
note indicating when the papers were transmitted,” 28 U.S.C. § 1608(a)(4), see Letter from
Daniel Klimow, Attorney Adviser in the Department of State’s Office of Legal Affairs, to the
Clerk of the Court (June 7, 2016), ECF No. 10. Accordingly, the plaintiff complied with all of
the required steps of Section 1608(a)(4) for serving process on Iran.
Therefore, because the Court has valid subject-matter jurisdiction over the action, and the
plaintiff properly served Iran through diplomatic channels, the Court has personal jurisdiction
over Iran. See Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 69–70 (D.D.C. 2010)
(concluding that the court had personal jurisdiction under the Act because “the clerk dispatched
the documents, and the Secretary of State transmitted one copy of the documents to Iran via a
diplomatic note though the Embassy of the Swiss Confederation while returning the other copy
to the clerk. Plaintiffs therefore properly served defendants under § 1608(a)(4).”).
D. Iran’s Liability for the Plaintiff’s Personal Injury
The Act provides a private right of action against a state sponsor of terrorism for personal
injury caused by an extrajudicial killing. See 28 U.S.C. § 1605A(c). “[A] foreign state shall be
vicariously liable for the acts of its officials, employees, or agents.” Id. Here, the plaintiff
alleges that he “was seriously injured by Hamas, whose operatives committed a willful, wrongful
and intentional act constituting both an assault and battery upon his person, causing injury to
him,” Compl. ¶ 38, 5 and that Iran is vicariously liable for Hamas’s actions under a theory of civil
conspiracy, see Pl.’s Facts & Law ¶¶ 54–56.
5
The plaintiff pleaded a single claim under the Act, see Compl. at 8, but the Court treats the plaintiff’s allegations of
assault and battery as two distinct claims. See, e.g., Braun, __ F. Supp. 3d at __, 2017 WL 79937, at *9 (treating
battery and assault as two separate claims); Valore, 700 F. Supp. 2d at 76–77 (addressing assault and battery
separately).
17
1. Civil Conspiracy
The elements of civil conspiracy consist of: (1) an agreement between two or more
persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner;
(3) an injury caused by an unlawful overt act performed by one of the parties to the
agreement; (4) which overt act was done pursuant to and in furtherance of the
common scheme.
Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 27 (D.D.C. 2008) (citing Halberstam v.
Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)).
Other members of this Court have held that “sponsorship of terrorist activities inherently
involves a conspiracy to commit terrorist attacks.” Id. (quoting Bodoff, 424 F. Supp. 2d at 84).
Here, the plaintiff has provided sufficient evidence for the Court to conclude that Iran’s support
of Hamas through “funding and training for terrorism activities that targeted United States and
Israeli citizens,” Clawson Decl. ¶¶ 23–24, constituted an agreement to commit terrorist acts, see
Shaked Decl. ¶ 22 (“[F]or many years, Hamas worked with determination to publicize its
principal role in the perpetration of violent attacks against Israelis.”), like the April 4, 2008
shooting attack that injured the plaintiff, see Gill Decl. ¶¶ 16–22; Erez Decl. ¶¶ 15, 33, 34.
Accordingly, the plaintiff has established the elements of a civil conspiracy between Iran and
Hamas, and thus has provided a basis of Iran’s vicarious liability. 6
2. Assault
“Although [§] 1605A(c) provides a private right of action, it provides no guidance on the
substantive bases for liability to determine [a] plaintiff[’s] entitlement to damages.
Consequently, courts have applied ‘general principles of tort law,’ such as the Restatement
(Second) of Torts, to determine liability.” Braun, __ F. Supp. 3d at __, 2017 WL 79937, at *8
6
The plaintiff alleges that Iran is also vicariously liable for Hamas’s actions under theories of inducement and
aiding and abetting. See Pl.’s Facts & Law ¶¶ 53, 57. Because the Court concludes that Iran is vicariously liable
under a theory of civil conspiracy, it need not address these alternative theories.
18
(citing Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 24 (D.D.C. 2009)); see
also Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379, 399 (D.D.C. 2015); Worley v. Islamic
Republic of Iran, 75 F. Supp. 3d 311, 335 (D.D.C. 2014). Consistent with the approach taken by
its colleagues, which the Court finds convincing, the undersigned will also evaluate the
plaintiff’s claims of assault and battery under the principles adopted by the Restatement (Second)
of Torts.
Under the Restatement, Iran is liable for assault if, through its material support of Hamas,
see 28 U.S.C. § 1605A(a)(1), Iran “act[ed] intending to cause a harmful or offensive contact with
the person . . . or [to cause] an imminent apprehension of such a contact, and the other is thereby
put in such imminent apprehension.” Restatement (Second) of Torts § 21(1) (Am. Law Inst.
1965). The objective of terrorism is to use violence and fear to achieve political means. See
Terrorism, Black’s Law Dictionary (10th ed. 2014) (defining terrorism as “[t]he use or threat of
violence to intimidate or cause panic, esp[ecially] as a means of achieving a political end”); see
also 22 U.S.C. § 2656f(d) (defining “terrorism” as “premeditated, politically motivated violence
perpetrated against noncombatant targets by subnational groups or clandestine agents”).
Other members of this Court have held that acts of terrorism constitute assault under the
Act. For example, in Valore, the Court held that Iran and its Ministry of Information and
Security were liable under the Act for assault for the 1983 bombing of the United States Marine
barracks in Beirut, Lebanon. 700 F. Supp. 2d at 57, 76. The Court in Valore concluded:
It is clear that [the] defendants acted with intent to cause harmful contact and the
immediate apprehension thereof: acts of terrorism are, by their very nature,
intended to harm and to terrify by instilling fear of further harm. Accepting these
plaintiffs’ uncontroverted assertions that they did, in fact, fear such harm because
of the attack, the Court concludes that [the] defendants are liable for assault.
19
Id. at 76; see also Braun, __ F. Supp. 3d at __, 2017 WL 79937, at *9 (noting that a terrorist
attack is “intended to cause harm or, at least, fear of such harm among those targeted”).
Moreover, the plaintiff has asserted that the attack was a “traumatic event[],” Gill Decl. ¶ 35,
thus satisfying the requirement of assault that he was put in imminent apprehension of harm, see
Restatement (Second) of Torts § 21(1). Accordingly, the plaintiff has provided sufficient
evidence to demonstrate that Iran is liable for assault because it provided material support to
Hamas, see Clawson Decl. ¶ 48, which, by committing the April 4, 2008 attack, see Erez Decl.
¶ 33, “intend[ed] to cause a harmful or offensive contact with the [plaintiff] . . . or [to cause] an
imminent apprehension of such a contact, and the [plaintiff] [wa]s thereby put in such imminent
apprehension,” Restatement (Second) of Torts § 21(1).
3. Battery
Iran is liable for battery if, through the material support of Hamas, see 28 U.S.C.
§ 1605A(a)(1), Iran “act[ed] intending to cause a harmful or offensive contact . . . or [to cause]
an imminent apprehension of such a contact, and a harmful contact with the person of the other
directly or indirectly results.” Restatement (Second) of Torts § 13 (Am. Law Inst. 1965).
“Again, it is clear that [Iran, through material support provided to Hamas,] acted with intent to
cause harmful contact and the immediate apprehension thereof: acts of terrorism are, by their
very nature, intended to harm and to terrify by instilling fear of such harm.” Valore, 700 F.
Supp. 2d at 77. Additionally, the plaintiff has sufficiently demonstrated that harmful contact
resulted from the actions of Hamas, because he suffered severe injuries as a result of the attack.
20
Based on this
evidence, the plaintiff has demonstrated that Iran is liable for the plaintiff’s injuries caused by the
tort of battery, because it provided material support to Hamas, which committed the attack that
caused the intended harmful contact, and the plaintiff was injured as a result of the attack. See
Restatement (Second) of Torts § 13. Accordingly, the Court concludes that Iran is liable for
battery.
E. Damages
“The [Act] specifically permits plaintiffs suing under [ ] § 1605A to pursue ‘economic
damages, solatium, pain and suffering[,] and punitive damages.’” Acosta, 574 F. Supp. 2d at 29
(quoting 28 U.S.C. § 1605A). Here, the plaintiff is requesting $10 million in compensatory
damages, see Compl. at 8, for his “physical injury and extreme mental anguish and pain and
suffering,” id. ¶ 40, as well as $30 million in punitive damages, 7 see id. at 8, based on his
allegation that the attack “constituted a threat to the public at large,” id. ¶ 41. 8
1. Compensatory Damages
“[C]ourts may look to expert testimony and prior awards for comparable injury” to
determine the appropriate amount of compensatory damages. Braun, __ F. Supp. 3d at __, 2017
WL 79937, at *11 (citing Reed v. Islamic Republic of Iran, 845 F. Supp. 2d 204, 214 (D.D.C.
7
In his Complaint, the plaintiff seeks $30 million in punitive damages, Compl. at 8, but in his Proposed Findings of
Fact and Conclusions of Law, the plaintiff seeks $150 million in punitive damages, Pl.’s Facts & Law ¶ 64. The
plaintiff also seeks prejudgment interest in his Proposed Findings of Fact and Conclusions of Law, id. ¶ 65, but he
did not request this relief in his Complaint, see generally Compl. “A default judgment must not differ in kind from,
or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c); see also Salmeron v. District of
Columbia, 77 F. Supp. 3d 201, 212 (D.D.C. 2015) (Walton, J.) (denying the plaintiffs’ request in their Memorandum
in Support of their Motion for Default Judgment for “a penalty for late payment of attorneys’ fees [because it] is not
requested in either the Complaint or the Amended Complaint”), vacated on other grounds, (D.D.C. 2015) (Walton,
J.). Accordingly, this Court can consider only the damages requested in the plaintiff’s Complaint.
8
The plaintiff also requested “any and all costs . . . including attorneys’ fees,” Compl. at 9, but § 1605A does not
provide for this award, see 28 U.S.C. § 1605A(c) (only allowing recovery of “economic damages, solatium, pain and
suffering, and punitive damages”).
21
2012)). In making such awards, courts have made “an assessment of such factors as ‘the severity
of the pain immediately following the injury, the length of hospitalization, and the extent of the
impairment that will remain with the victim for the rest of his or her life.’” Harrison v. Republic
of Sudan, 882 F. Supp. 2d 23, 48 (D.D.C. 2012) (quoting Valore, 700 F. Supp. 2d at 83–84).
And, “[i]n awarding pain and suffering damages, the Court must take pains to ensure that
individuals with similar injuries receive similar awards.” Id. (quoting Valore, 700 F. Supp. 2d at
84).
In Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 51 (D.D.C. 2007), “the Court
granted a baseline award of $5 million to individuals suffering such physical injuries as
compound fractures, severe flesh wounds, and wounds and scars from shrapnel, as well as
‘lasting and severe psychological pain.’” Valore, 700 F. Supp. 2d at 84 (quoting Peterson, 515 F.
Supp. 2d at 54). “The [Patterson] Court was willing to depart upward from this baseline to $7.5–
$12 million in more severe instances of physical and psychological pain, such as where victims
suffered relatively more numerous and severe injuries, were rendered quadriplegic, partially lost
vision and hearing, or were mistaken for dead . . . .” Id. (quoting Peterson, 515 F. Supp. 2d at
54). “Similarly, the Court [in Patterson] was willing to depart downward to $2–$3 million where
victims suffered only minor shrapnel injuries or minor injury from small-arms fire.” Id. (citing
Peterson, 515 F. Supp. 2d at 54).
In determining the amount of damages for pain and suffering that should be awarded in
this case, the Court has considered several cases in which compensatory damages were awarded
under the Act to compare the injuries and the amounts of compensatory damages that were
awarded. For example, plaintiffs were awarded $9 to $10 million in compensatory damages in
cases where the victims were held as hostages and tortured for extensive periods of time, see,
22
e.g., Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 64–65, 70 (D.D.C. 1998) (awarding
one plaintiff $9 million in damages after he was kidnapped, held hostage, and extensively
tortured for 532 days), or sustained severe injuries that ultimately led to a person’s death, see,
e.g., Weinstein v. Islamic Republic of Iran, 184 F. Supp. 2d 13, 17–18, 22–23 (D.D.C. 2002)
(awarding the administrators of the victim’s estate $10 million in damages for pain and suffering
after a terrorist attack that caused the victim’s skin to “literally rip[] from his body,” and he
sustained second to fourth degree burns on approximately one third of his body, experienced
respiratory failure, had tubes inserted into his chest, needed to use a ventilator, and endured a
multitude of other severe complications because of the attack until ultimately dying as a result of
his injuries). The injuries, pain, and suffering that merited $9 to $10 million in compensatory
damages in Cicippio and Weinstein are far more severe than the plaintiff’s injuries, pain, and
suffering in this case, and therefore merit an award of damages in a lesser amount.
The plaintiff’s injuries, pain, and suffering are more similar to the surviving plaintiffs’
injuries and pain and suffering proven in Harrison. See 882 F. Supp. 2d at 35–44. The plaintiffs
in Harrison were military personnel serving on a United States naval ship, the U.S.S. Cole, in the
Port of Aden, Yemen, when “a small boat manned by two men pulled up parallel to the ship.
Seconds later, the boat exploded.” Id. at 31. “[T]he blast and its after-effects killed seventeen
[N]avy sailors, and forty-two others were injured.” Id. Several of the injured Navy members
brought the action in Harrison. See id. at 35–44.
Based on the $5 million baseline for compensatory damages established by Peterson, 515
F. Supp. 2d at 54, the Court in Harrison awarded three plaintiffs $7.5 million each for their pain
and suffering. 882 F. Supp. 2d at 48–49. One of those plaintiffs, Margaret Lopez, was working
in the oil lab at the time of the blast. See id. at 37. “As a direct result of the blast, [ ] Lopez
23
sustained burns to her face, neck, legs, and arms; her ear drums were ruptured; and several discs
in her spine were ruptured.” Id. at 38. After the blast, the oil lab began to flood so Lopez “freed
herself from debris and jumped into the sea through a hole created by the blast,” and “remained
in the water for over an hour before being pulled to safety.” Id. She then “remained . . . under
the care of a burn specialist” for two weeks. Id. Further, “while waiting to get a skin graft, [ ]
Lopez developed pneumonia.” Id. She also had eardrum replacement surgery and suffered
emotional and psychological injuries, such as post-traumatic stress disorder, insomnia, mood
swings, and nightmares. See id.
Another plaintiff in Harrison, Jeremy Stewart, was “thrown to the ground and suffered a
concussion, los[t] consciousness for five to fifteen minutes,” and then lost consciousness again
for “approximately one week.” Id. at 41. “As a result of the blast, [ ] Stewart suffered multiple
fractures and shattered bones in his arms and legs, a gastric rupture, internal bleeding, and
shrapnel wounds.” Id. 41–42. Additionally, “[h]is injuries caused permanent scarring on his
forearms, knees, legs, and stomach,” and “[h]e is no longer able to run and has lost range of
motion in his right shoulder, and endures constant pain on a daily basis.” Id. at 42. Stewart also
suffered emotional and psychological injuries such as “sadness, flashbacks, nightmares,
irritability, and high anxiety.” Id.
The other Harrison plaintiff who received $7.5 million in compensatory damages for pain
and suffering, John Buckley, was “flung . . . through the air to the other end of the passageway,
where he had a concussion and lost consciousness.” Id. at 37. Buckley “suffered fractures to
both knees, hearing loss, and severe lower back trauma. [He] continues to suffer from his
physical injuries.” Id. Buckley also “cannot lift over 100 pounds, has undergone two back
surgeries, and continues to receive treatment for his knee injuries.” Id. Further, Buckley
24
suffered emotional and psychological injuries such as “nightmares and headaches, [and he] is
prone to aggressive behaviors, and hears voices.” Id.
The plaintiff’s physical injuries and pain and suffering are similar to those sustained by
the three Harrison plaintiffs because his injuries caused him to experience trauma and severe
discomfort immediately after the attack, see Gill Decl. ¶¶ 28, 30, and will have lifelong effects,
see Bar-Chama Decl. ¶ 22. The plaintiff’s injuries, however, do not rise to the level of injury
caused by torture or death, which have merited compensatory damages awards in the range of $9
to $10 million. See Weinstein, 184 F. Supp. 2d at 22–23; Cicippio, 18 F. Supp. 2d at 64–65, 70.
Accordingly, the Court will award the plaintiff $7.5 million in compensatory damages.
2. Punitive Damages
Under the Act, a state sponsor of terrorism may be held liable for punitive damages. See
28 U.S.C. § 1605A(c). The purpose of punitive damages is to “punish [the defendant] for [its]
outrageous conduct and to deter [it] and others like [it] from [engaging in] similar conduct in the
future.” Restatement (Second) of Torts § 908(1). Further, punitive damages may be awarded
“for conduct that is outrageous, because of the defendant’s evil motive or [its] reckless
indifference to the rights of others.” Id. Here, the Court finds that Iran’s actions are sufficiently
outrageous to support an award of punitive damages because its “demonstrated policy of
encouraging, supporting and directing a campaign of . . . terrorism is evidence of the monstrous
character of the [attack] that inflicted . . . pain and suffering on [an] innocent pe[rson].” Valore,
700 F. Supp. 2d at 88.
Moreover, “[p]unitive damages are warranted where ‘defendants supported, protected,
harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist
organization whose modus operandi included the targeting, brutalization, and murder of
25
American citizens and others.’” Braun, __ F. Supp. 3d at __, 2017 WL 79937, at *14 (citing
Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48, 85 (D.D.C. 2011)). The
Court agrees with another member of this Court’s conclusion that Iran’s “support[] [of] Hamas
justifies the imposition of punitive damages here.” Id.; see also Acosta, 574 F. Supp. 2d at 30–
31 (concluding that punitive damages were warranted to punish Iran for its material support of
terrorist groups).
“[C]ourts in similar cases have generated two numbers that, together, determine the
punitive damages award: (1) the multiplicand and (2) the multiplier . . . .” Harrison, 882
F. Supp. 2d at 50. “[T]he multiplicand is either the magnitude of the defendant’s annual
expenditures on terrorist activities or the amount of compensatory damages already awarded.”
Id. Here, Clawson states that Iran pledged $250 million to Hamas for 2006 through 2007, see
Clawson Decl. ¶ 36, and Iran “decided to increase its financial support for Hamas to $150
million for the second half of 2008,” id. ¶ 44. The approach of using Iran’s annual expenditures
on terrorist activities, “which may result in awards of billions of dollars, has been used in the
case of exceptionally deadly attacks, such as the 1983 bombing of the Marine barracks in Beirut,
which killed 241 American military servicemen.” Braun, __ F. Supp. 3d at __, 2017 WL 79937,
at *14. The attack here was not an “exceptionally deadly attack,” as there were no deaths, see
Pl.’s Facts & Law ¶ 48, and so far as the Court is aware, the only resulting injuries were the
injuries sustained by the plaintiff. Accordingly, the Court will utilize a multiplicand in the same
amount as the compensatory damages awarded—$7.5 million.
“The multiplier [other members of this Court have used] has ranged between three and, in
exceptional cases, five.” Harrison, 882 F. Supp. 2d at 50. Here, the plaintiff requests a punitive
damages award of $30 million, which would require use of a multiplier of four. In Harrison,
26
however, three of the plaintiffs suffered similar injuries that also merited a compensatory
damages award of $7.5 million, see 882 F. Supp. 2d at 48–49, and the Harrison Court used a
multiplier of three to determine punitive damages because it “f[ound] no exceptional
circumstances,” id. at 50. Similarly, because the Court finds no exceptional circumstances in this
case, it will use a multiplier of three, and award the plaintiff $22.5 million in punitive damages.
IV. CONCLUSION
The Court concludes that it has original jurisdiction under the Foreign Sovereign
Immunities Act because Iran is a state sponsor of terrorism, the plaintiff is a citizen of the United
States, and Iran waived its sovereign immunity under the terrorism exception by providing
material support to Hamas, a Foreign Terrorist Organization, which attempted the extrajudicial
killing of the plaintiff. The Court has valid personal jurisdiction over Iran because the Court has
valid subject-matter jurisdiction over this action, and the plaintiff properly effected service under
the Act. The plaintiff provided sufficient evidence to establish that Iran is vicariously liable for
assault and battery under the Act because it engaged in a civil conspiracy with Hamas to commit
terrorist activities, and Hamas is responsible for the attempted extrajudicial killing that injured
the plaintiff. Accordingly, based on the nature and extent of the plaintiff’s injuries, coupled with
the pain and suffering he has endured, the plaintiff is entitled to $7.5 million in compensatory
damages, and Iran’s support of terrorism warrants a punitive damages award of $22.5 million.
For the foregoing reasons, the plaintiff’s motion for entry of default judgment is granted, and
damages are awarded in the amount of $30 million.
SO ORDERED this 31st day of March, 2017. 9
REGGIE B. WALTON
United States District Judge
9
An Order will be issued contemporaneously with this Memorandum Opinion.
27