Schwartz v. Islamic Republic of Iran ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RUTH SCHWARTZ, et al.,
Plaintiffs,
v. Civil Action No. 18-1349 (RDM)
THE ISLAMIC REPUBLIC OF IRAN,
Defendant.
MEMORANDUM OPINION AND ORDER
This civil action for compensatory and punitive damages arises under the terrorism
exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A. The
seventeen plaintiffs are the victims and their families of a terrorist attack that occurred on
November 19, 2015 “at Gush Etzion Junction in the Palestinian Territories.” Dkt. 1 at 1–2
(Compl. ¶ 2). Plaintiffs contend that Defendant, the Islamic Republic of Iran (“Iran”),
“knowingly provided material support to” the Islamic Resistance Movement (“Hamas”), which,
in turn, carried out the attack. Iran was at all relevant times designated under U.S. law as a state
sponsor of terrorism.
To establish subject-matter jurisdiction, Plaintiffs invoke the state-sponsored terrorism
exception to the FSIA, 28 U.S.C. § 1605A(a). And to supply their federal cause of action,
Plaintiffs rely on § 1605A(c), which permits suits by “national[s] of the United States” seeking to
recover against “[a] foreign state that is or was a state sponsor of terrorism.” In support of that
statutory cause of action, Plaintiffs assert four theories of liability: (1) intentional infliction of
emotional distress; (2) assault; (3) battery; and (4) wrongful death. Dkt. 24 at 16; Dkt. 1 at 15–
20 (Compl. ¶¶ 99–136).
Iran has neither answered nor otherwise appeared in this action. Consequently, at
Plaintiffs’ request, the clerk of the Court entered a default against Iran on January 2, 2019. Dkt.
16. Plaintiffs subsequently moved for the entry of a default judgment against Iran. Dkt. 22.
That motion is now ripe for the Court’s consideration, and, for the reasons that follow, the
motion is GRANTED. The Court will refer the matter to a Special Master for a report and
recommendation on compensatory damages and will defer entry of compensatory or punitive
damages awards pending receipt of that report.
I. INTRODUCTION
Plaintiffs, sixteen United States nationals and the estate of a seventeenth, bring this action
against the Islamic Republic of Iran, alleging that it “gave substantial aid, assistance and
encouragement to Hamas, and provided massive financial and other forms of material support to
Hamas, all with the specific intention of causing and facilitating the commission of acts of
extrajudicial killing, hostage taking and international terrorism,” Dkt. 1 at 13 (Compl. ¶ 91),
which ultimately included the extrajudicial killing and attempted extrajudicial killings at issue
here. Plaintiffs effected service on Defendant on October 24, 2018. Dkt. 14 at 1. Defendant has
not answered, filed a motion under Federal Rule of Civil Procedure 12, or otherwise appeared,
and, accordingly, the clerk of the Court entered a default on January 2, 2019. Dkt. 16. Plaintiffs
now seek entry of a default judgment with respect to liability and damages. Dkt. 22.
The entry of a default judgment “is not automatic,” Mwani v. Bin Laden, 417 F.3d 1, 6
(D.C. Cir. 2005), but instead rests with the “sound discretion” of the district court, Boland v.
Yoccabel Const. Co., Inc., 293 F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d
831, 836 (D.C. Cir. 1980)). Before entering default judgment, the Court must, at a minimum,
satisfy itself that it has subject-matter jurisdiction over the claims and personal jurisdiction over
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the defendants. See Jerez v. Republic of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (“A default
judgment rendered in excess of a court’s jurisdiction is void.”); Mwani, 417 F.3d at 6 (explaining
that the Court must “satisfy itself that it has personal jurisdiction before entering judgment
against an absent defendant”).
In cases brought against a foreign state, the Court’s discretion to enter a default judgment
is further circumscribed. By statute, no federal or state court may enter a default judgment
against a foreign state or instrumentality “unless the claimant establishes his claim or right to
relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This is the same standard that
applies to default judgments against the United States under Federal Rule of Civil Procedure
55(d). See Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (“Owens IV”),
vacated in part and remanded on other grounds sub nom. Opati v. Republic of Sudan, 140 S. Ct.
1601 (2020); Hill v. Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003).
Accordingly, where, as here, a plaintiff alleges that a foreign state materially supported
acts of terrorism, the Court must determine “how much and what kinds of evidence the plaintiff
must provide.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047 (D.C.
Cir. 2014). In doing so, the Court must be guided by Congress’s purpose in enacting § 1605A:
to “compensat[e] the victims of terrorism [so as to] punish foreign states who have committed or
sponsored such acts and [to] deter them from doing so in the future,” id. at 1048 (quoting Price
v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 88–89 (D.C. Cir. 2002)) (first
alteration in original). The Court must also remain mindful of the difficulty in obtaining
“firsthand evidence and eyewitness testimony . . . from an absent and likely hostile sovereign.”
Owens IV, 864 F.3d at 785.
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To obtain a default judgment against Iran, Plaintiffs must (1) carry their burden of
producing evidence sufficient to show that their claims fall within the state-sponsored terrorism
exception to the FSIA, see 28 U.S.C. § 1605A(a); Owens IV, 864 F.3d at 784; (2) establish that
Iran was served in accordance with the FSIA, see 28 U.S.C. § 1608(a); and (3) establish their
right to relief under federal, see id. § 1605A(c), or state law, Owens IV, 864 F.3d at 809 (“the
pass-through approach remains viable”), by offering evidence “satisfactory to the court,” 28
U.S.C. § 1608(e). When evaluating Plaintiffs’ evidence, the Court must abide by the Federal
Rules of Evidence, while also recognizing that, first, it has the “obligation[] to ‘adjust
[evidentiary requirements] to . . . differing situations,’” Han Kim, 774 F.3d at 1048 (quoting
Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)) (modifications in Han Kim), and, second,
that it need not “step into the shoes of the defaulting party and pursue every possible evidentiary
challenge,” Owens IV, 864 F.3d at 785. Accordingly, whether through expert testimony or other
competent evidence, the Court must determine whether the Plaintiffs have sufficiently
“substantiate[d] [the] essential element[s] of jurisdiction,” as well as their claim or right to relief,
with admissible evidence. Id. at 786. 1
The Court now makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
The record before the Court consists of the following materials: (1) the declaration of
Patrick L. Clawson, “an expert on the Islamic Republic of Iran” who has “extensively studied
1
Expert testimony is often sufficient to meet this burden in “terrorism cases, . . . because
firsthand evidence of terrorist activities is difficult, if not impossible to obtain. Owens IV, 864
F.3d at 787–88. The Court has reviewed the qualifications of Plaintiffs’ expert witnesses and
concludes that each is qualified to offer the opinions discussed below. Dkt. 25 at 1–7 (Clawson
Decl. ¶¶ 1–13); Dkt. 26 at 1–3 (Spitzen Decl. ¶¶ 1–6); see also Dkt. 27 at 1–2 (Wolf Decl. ¶ 1–
2).
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and researched Iran and its sponsorship of terrorism,” Dkt. 25 at 1 (Clawson Decl. ¶ 2); (2) the
declaration of Colonel Arieh Dan Spitzen, an expert on Hamas and its role in terrorism
perpetrated against civilians, Dkt. 26 at 3 (Spitzen Decl. ¶ 6); (3) the declaration of Steven A.
Wolf, an expert on the calculation of economic loss in terrorism cases, Dkt. 27 at 1 (Wolf Decl.
¶ 6); and (4) the declarations of each of the Plaintiffs (or a proper representative), see Dkt. 28 at
1–2; see also Dkt. 23-1; Dkt. 23-2. 2
Based on the foregoing, the Court finds that (1) Iran provided Hamas with extensive
support in the form of arms and financial assistance, as well as training and technical expertise;
(2) Hamas carried out the terror attack at issue here, which caused the death of Plaintiff Ezra
Schwartz, the injuries to Plaintiffs Michael Benzakein and Jason Geller, and the injuries to the
Schwartz, Benzakein, and Geller families; and (3) Hamas could not have committed the attack
without Iran’s support.
A. Iran’s Material Support to Hamas
As part of its longstanding opposition to Israeli interests in the Middle East, Iran has for
over thirty years “provided funding and training for terrorism operations that targeted United
States and Israeli citizens.” Dkt. 25 at 13 (Clawson Decl. ¶ 28). As a result, the United States
designated Iran as a state sponsor of terrorism in 1984 and has continued that designation ever
since then. Id. at 9 (Clawson Decl. ¶ 22). One significant recipient of Iran’s aid is Hamas, “the
2
On October 17, 2019, Plaintiffs moved to file under seal portions of their proposed findings of
fact and the declarations of two minors in the Geller family. Dkt. 23. Applying the six-factor
test set forth in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the Court agrees that
these materials, which include confidential, personal information—namely information related to
the mental health diagnoses of one Plaintiff—may be filed under seal. The Court will,
accordingly, grant Plaintiffs’ motion to seal.
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largest and most significant Islamist organization” in the Israel-Palestine arena. Dkt. 26 at 5
(Spitzen Decl. ¶ 13).
Hamas was “founded in the Gaza Strip in December 1987,” id. (Spitzen Decl. ¶ 11), by a
group of “Palestinian Sunni Islamist militants committed to globalizing jihad and destroying the
State of Israel,” Dkt. 25 at 9 (Clawson Decl. ¶ 23). The organization’s name means “zeal” in
Arabic and is also an acronym for “Ḥarakat al-Muqāwamah al-Islāmiyyah,” which translates to
the “Islamic Resistance Movement.” Dkt. 26 at 5 (Spitzen Decl. ¶ 12) (italics and internal
quotation marks omitted). “From its inception, Hamas [has] perpetrated terrorist attacks in Israel
and the Palestinian Territories,” Dkt. 25 at 9 (Clawson Decl. ¶ 24), and the organization
“considers terrorism . . . a central way of attracting political and financial support from the
Palestinian public and larger Islamic world,” Dkt. 26 at 6 (Spitzen Decl. ¶ 16).
Since the early 1990s, Hamas has received multiple forms of aid from Iran, including:
(1) weapons, including gunpowder, mortar propellant, mortar shells, and rockets, Dkt. 25 at 17,
18, 20 (Clawson Decl. ¶¶ 46, 49, 50, 52); (2) military training on intelligence gathering,
“establishing camouflage, constructing sophisticated explosive charges, and operating advanced
anti-tank missiles,” id. at 17 (Clawson Decl. ¶ 45); (3) strategic advice from its Revolutionary
Guard Corps Qods Force, id. at 16 (Clawson Decl. ¶ 43); and (4) millions to hundreds of
millions of dollars in financial aid, id. at 14–15, 18 (Clawson Decl. ¶¶ 34, 36, 39, 47). There is
near-universal agreement that Iran “has supplied substantial material support to Hamas” over the
past two-and-a-half decades. Id. at 23 (Clawson Decl. ¶ 59).
Iran began providing financial and logistical support for Hamas in 1993 “as a result of
Hamas’s willingness to perpetrate terrorist activities and bus bombings”—attacks that “Iran
strongly and publicly encouraged” in order “to disrupt the Middle East peace process.” Id. at
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13–14 (Clawson Decl. ¶ 31). In the years that followed, “Hamas operatives received military
training in Iran.” Id. One such operative planned a 1996 bombing of a bus in Jerusalem, an act
that then-Palestinian Authority Chairman Yasser Arafat claimed Iran had “ordered.” Id. at 14(Clawson Decl. ¶¶ 31–32). Iran also “gave Hamas millions of dollars” over this period, which,
“among other things, supported Hamas’s terrorist activities” by, for example, “bringing Hamas
into contact with potential terrorist recruits and by providing legitimate front activities behind
which Hamas could hide its terrorist activities.” Id. at 14 (Clawson Decl. ¶ 34). Iran, moreover,
undertook to pay Hamas “generously” for successful terrorist attacks; in return, Hamas
“commit[ed] numerous bombings during this time,” which Iran praised on “Iranian state-owned
television, radio, print media and Iran’s other propaganda networks throughout the Arab world.”
Id. (Clawson Decl. ¶¶ 33–34).
Although the Iran-Hamas relationship “cooled” from the late 90s to 2005—with an uptick
in 2003 when Iran provided Hamas an estimated $3 million in financial support—by 2006, after
Hamas “won a plurality in the Palestinian parliament,” “Iranian support, finances, and arms rose
exponentially.” Id. at 15 (Clawson Decl. ¶¶ 35–36, 39). According to Israel’s Intelligence and
Terrorism Information Center, Iran pledged “$250 million to Hamas’s then-Prime Minister
Ismail Haniyeh” that year and the next. Id. (Clawson Decl. ¶ 39). And “[a]lthough the Egyptian
authorities are reported to have confiscated some of these funds, large sums of Iranian money
flowed into the Gaza Strip earmarked for Hamas.” Id.In 2007, Iran and Hamas “grew even closer after . . . Hamas took complete control of the
Gaza Strip.” Id. (Clawson Decl. ¶ 40). Hamas began sending operatives to Iran “for training
that would last months and maybe years,” while Iran continued to funnel “more money and
arms” to Hamas. Id. at 15–16 (Clawson Decl. ¶ 40). Indeed, in March 2008, British
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correspondent Marie Colvin reported that “150 members of . . . Hamas’s military wing, the al-
Qassam Brigades[,] have passed through training in Tehran, where they study for between 45
days and six months at a closed military base under the command of the elite Revolutionary
Guard force.” Id. at 16–17 (Clawson Decl. ¶ 44) (internal brackets omitted).
The provision of military training was supplemented by arms-giving: that same year, in
2008, “Israeli forensic investigators concluded” that certain mortar shells that Hamas had twice
fired at Israel “had been manufactured in Iran.” Id. at 17 (Clawson Decl. ¶ 46). Iran continued
to supply Hamas arms even during a temporary Hamas-Israel ceasefire in early 2008 by
smuggling weapons in tunnels from Egypt to the Gaza Strip. Id. (Clawson Decl. ¶ 47). Hamas
was appreciative: soon after fighting between it and Israel returned in late December 2008 and
early January 2009, “Hamas leader Khaled Mashal . . . visited Tehran and thanked Iran for its
support during the conflict, calling it a ‘partner in victory.’” Id. at 17–18 (Clawson Decl. ¶ 48).
Iran’s support remained strong through the following year when, according to Clawson, “there is
strong reason to believe” that “a ship carrying 3,000 cases of powder for 120 and 130mm guns as
well as over 800 cases of propellant for 125mm mortars” was bound for Gaza before authorities
in Cyprus intercepted it. Id. at 18 (Clawson Decl. ¶ 49).
In 2012, “Iranian and Hamas officials became much blunter about Iranian support for
Hamas rocket attacks on Israel.” Id. (Clawson Decl. ¶ 50). For instance, “[o]n November 20,
Ziad al-Nakhla, deputy head of PIJ [the Palestinian Islamic Jihad, id. at 10 (Clawson Decl.
¶ 27)], told the pro-Hezbollah Lebanese Al Manar television station” that “[t]he arms of the
resistance, including those of Hamas, are Iranian, from the bullet to the missile.” Id. at 18
(Clawson Decl. ¶ 50) (internal quotation marks omitted). A day later, Hamas leader “Khaled
Mashal thanked Iran for ‘arms and funding.’” Id. at 18–19 (Clawson Decl. ¶ 50).
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In July of the following year, after the Egyptian military had overthrown “the Morsi
government which had been close to Hamas, “Bassam Naim, a[] senior Hamas official,” stated
that “new blood” had been brought “back into [Hamas’s] relationship with Iran.” Id. at 19
(Clawson Decl. ¶ 51). Then, in 2014, “Hamas stepped up its terror activities,” “kidnap[ping] and
murder[ing] three teenagers[,] including [an] American citizen,” and targeting rocket attacks at
Israel. Id. at 19–20 (Clawson Decl. ¶ 52). “Iran issued statements strongly supporting Hamas’s
activities during this time and in the aftermath.” Id. at 19 (Clawson Decl. ¶ 52). It also
continued providing material support: “a freighter carrying 40 medium-range rockets was
intercepted by Israeli commandos in 2014 in the Red Sea, a shipment they say was destined for
Gaza.” Id. at 20 (Clawson Decl. ¶ 52). Later that year, several Hamas officials, including Abu
Obeida, a spokesman for Hamas’s Qassam Brigades, acknowledged and praised Iran for its
support of Hamas’s fight against Israel, despite “Hamas’s usual policy . . . [that it] does not . . .
reveal the mechanism and details of the support it receives.” Id. at 20–21 (Clawson Decl. ¶ 53).
In 2015, a visit by “Hamas leader Khaled M[e]shal[] . . . to Saudi Arabia was not well
received in Iran,” but Iran did not cut off Hamas and, instead, took “revenge on” Meshal by
“bypass[ing]” him and providing support “‘directly to the leaders of the group’s military wing in
the Gaza Strip.’” Id. at 21 (Clawson Decl. ¶ 55). By 2016, “Hamas-Iran relations were warm”
again, “in no small part because Hamas had few alternative suppliers of arms and money.” Id. at
22 (Clawson Decl. ¶ 56). And in 2017, after a visit from Hamas senior leadership, Ali Akbar
Velayati, the advisor to the Leader of the Islamic Revolution in Iran, stated: “We are proud of
supporting the Palestinian resistance and Hamas Movement. The Iranian leadership and our
people will continue to support the resistance led by Hamas and Islamic Jihad.” Id. (Clawson
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Decl. ¶ 57). “The Iran-Hamas relationship . . . continued consistently” throughout 2019, up to
the time Plaintiffs filed the pending motion. Id. at 23 (Clawson Decl. ¶ 58).
Based on the foregoing, unrebutted expert testimony, the Court finds that Iran provided
material support in the form of arms, training, funds, and technology to Hamas from 1993 to at
least 2019, “including in the period immediately before, during, and immediately after the
November 19, 2015 attack at Gush Etzion Junction in which Ezra Schwartz was killed and
Plaintiffs Michael Benzakein and Jason Geller were injured.” Id. (Clawson Decl. ¶ 59).
B. November 19, 2015 Attack
1. The Attack
On November 19, 2015, Ezra Schwartz, Michael Benzakein, and Jason Geller, each
United States nationals spending the year abroad in Israel to do volunteer work, were “riding in a
passenger van on their way to deliver care packages to Israeli soldiers and to beautify a park in
honor of three Israeli teenagers who had been kidnapped and murdered” the previous year. Dkt.
1 at 6 (Compl. ¶ 37); see also id. at 2–4 (Compl. ¶¶ 8, 16, 22); Dkt. 28-1 at 4 (Ruth Schwartz
Decl. ¶ 18); Dkt. 28-6 at 3–4 (Michael Benzakein Decl. ¶¶ 4, 10–11); Dkt. 28-12 at 4–5 (Jason
Geller Decl. ¶¶ 10–12). As Plaintiffs’ van approached the Gush Etzion Junction, a roundabout
roughly twenty miles south of Jerusalem, “it encountered traffic and was forced to slow down.”
Dkt. 1 at 6 (Compl. ¶ 38); see also Dkt. 28-6 at 3–4 (Michael Benzakein Decl. ¶ 13).
A Toyota Corolla with Israeli license plates approached from the west. Dkt. 26 at 13–14,
26 (Spitzen Decl. ¶¶ 34–35, 65). In the driver’s seat was Muhammad Abd al-Basset Odeh al-
Harub, “a Hamas operative” with a “longstanding intention to commit a terrorist attack,” who
had earlier that day set out “from his home in the Dir Sammet village . . . toward Gush Etzion
Junction . . . to perpetrate a terrorist attack.” Id. at 13–14, 18, 26 (Spitzen Decl. ¶¶ 34–35, 47,
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64). Al-Harub was armed with “an Uzi submachine gun and three full magazines (75 bullets in
all),” id. at 26 (Spitzen Decl. ¶ 64).
Each bullet was spent. “[W]ith a line of cars heading from west to east” stalled in the
junction, al-Harub “stuck his weapon outside the left window of his car” and began shooting. Id.
at 14, 26 (Spitzen Decl. ¶¶ 35, 65); see also Dkt. 1 at 6–7 (Compl. ¶¶ 39, 42–43); Dkt. 28-6 at 4
(Michael Benzakein Decl. ¶ 14); Dkt. 28-12 at 2 (Jason Geller Decl. ¶ 1). He drove slowly,
“taking aim at the nearby cars,” “a passenger bus,” and Plaintiffs’ van. Id. at 26–27 (Spitzen
Decl. ¶¶ 66–67). His “shots killed Ezra Schwartz . . . and injured Michael Benzakein and Jason
Geller.” Id. at 26 (Spitzen Decl. ¶ 66). When his three magazines of ammunition were
expended, al-Harub “rammed his car forcefully into a car with Israeli license plates in order to
injure more people.” Id. at 14, 26–27 (Spitzen Decl. ¶¶ 35, 67).
“After what seemed like hours, but was probably only minutes, Israeli soldiers” arrived at
the scene, Dkt. 28-12 at 6 (Jason Geller Decl. 19), subduing and arresting al-Harub, Dkt. 26 at 27
(Spitzen Decl. ¶ 68). Al-Harub was later “indicted and convicted by an Israeli military court for
murdering three people and injuring several others.” Id. at 27 (Spitzen Decl. ¶ 68). One of the
murdered was Ezra Schwartz; two of the injured were Michael Benzakein and Jason Geller.
2. The Injuries to Plaintiffs
Ezra Schwartz’s estate and his immediate family, as well as Michael Benzakein, Jason
Geller, and their immediate families, are the Plaintiffs here. The families seek damages for the
“emotional pain and suffering[] and mental anguish” that they suffered as a result of their
children’s injuries. Dkt. 1 at 16 (Compl. ¶ 107). The estate of Ezra Schwartz seeks damages for
“wrongful death, lost wages and benefits, physical and emotional pain and suffering, and mental
anguish.” Id. at 17 (Compl. ¶ 113). And Michael Benzakein and Jason Geller seek damages for
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emotional distress, lost employment opportunities (including concomitant wages and benefits),
physical and emotional pain and suffering, and mental anguish. Id. at 18–20 (Compl. ¶¶ 122–25,
133–35). Each Plaintiff’s claim of injury is substantiated.
First, as to the direct victims of the attack: Ezra Schwartz “was shot in the head,” Dkt.
28-12 at 2 (Jason Geller Decl. ¶ 1), leading to his death, id. at 5–6 (Jason Geller Decl. ¶ 17).
Shrapnel and glass lacerated Jason Geller’s knee and neck. Id. at 2, 7 (Jason Geller Decl. ¶¶ 1,
21). He attests that, after the attack, he “didn’t travel like [he] had before,” that he “was scared”
while traveling, and that he “continued to dream about” Ezra. Id. at 8–9 (Jason Geller Decl.
¶ 30). Jason was also “referred to a trauma specialist while he was home, and . . . scheduled
follow-up appointments with the specialist” for months afterword. Dkt. 28-13 at 5 (Marc Geller
Decl. ¶ 13). Shrapnel “lodged in [Michael Benzakein’s] knee,” Dkt. 28-6 at 6 (Michael
Benzakein Decl. ¶ 22), and he attests that, after the attack, he had “nightmares about the attack
and also nightmares that were not about the attack, but in which someone ended up dying,” id. at
9 (Michael Benzakein Decl. ¶ 36); that he “fe[els] constantly restless;” id., that he has had to
repeatedly visit a trauma specialist, id. (Michael Benzakein Decl. ¶ 37); that he cannot
adequately pay attention in school, id. at 10 (Michael Benzakein Decl. ¶ 39); and that he has lost
faith in his religion, developed anger issues, startles easily, has trouble sleeping, and “think[s]
about the attack constantly,” id. at 10–11 (Michael Benzakein Decl. ¶¶ 40–45).
Second, as to the families: Ezra Schwartz’s mother, Ruth Schwartz, attests that she “will
always feel the trauma of that day,” Dkt. 28-1 at 4 (Ruth Schwartz Decl. ¶ 16); that she “cr[ies]
every day;” and that on some days there are “too many tears and too much emotion to function
properly,” id. at 8 (Ruth Schwartz Decl. ¶ 30). “The hardest part of Ezra’s death is that it is
forever,” she recounts. Id. at 7 (Ruth Schwartz Decl. ¶ 26). “Our family is broken forever. . . .
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My children will never have their brother. Their lives have been changed forever. They will
bear the trauma of that terrible day and Ezra’s absence for their entire lives.” Id. at 7 (Ruth
Schwartz Decl. ¶ 27). Similarly, Ezra’s father, Ari Schwartz, attests that “[t]he pain of that day
[of Ezra’s death] and that week and the years that have followed cannot be described and cannot
be quantified. . . . It doesn’t go away. The feelings change and the thoughts change but the pain
stays. The pain does not ease, we just learn to live with it.” Dkt. 28-2 at 4 (Ari Schwartz Decl.
¶ 10). And “[d]espite doing [his] best with the hand that [he] was dealt,” Ari Schwartz attests, he
“will never be the same person.” Id. at 5 (Ari Schwartz Decl. ¶ 17). Ezra Schwartz’s eldest
sister’s declaration is to the same effect: “I often imagine my life if Ezra had not been killed.
When I let myself think about it, I am still in utter shock. I was introduced to a certain type of
pain the day Ezra died, and that pain sits dormant inside me as I go about my everyday life. . . .
It is the kind of pain that melts you, from the inside out. . . . [It is a] disease without a
treatment.” Dkt. 28-4 at 4 (Mollie Schwartz Decl. ¶ 15). Ezra’s younger brother likewise avers:
“I still need[] my big brother. . . . I still think about Ezra. I still cry for him, and I still need the
love and support of my older brother.” Dkt. 28-5 at 3 (H. Schwartz Decl. ¶ 12). Finally, in a
declaration submitted by their parents on their behaves, Ezra’s two remaining siblings state that
they “struggle with their feelings of fear and loss,” “do not really have a good place to deal with”
those feelings, and, to this day “attend a bereavement camp for siblings and children of victims
of terror in Israel twice a year.” Dkt. 28-3 at 6 (Ruth and Ari Schwartz on behalf of E. Schwartz
and A. Schwartz, minors, Decl. ¶ 25).
The Geller family’s declarations make similar points. See, e.g., Dkt. 23-2 at 4
(*SEALED*) (Jacqueline Geller Decl. ¶¶ 8–9); id. at 9 (*SEALED*) (Sandra Geller Decl. ¶¶ 12,
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14); Dkt. 28-13 at 5 (Marc Geller ¶ 13) (Jason’s father acknowledging that he “must have been
suppressing some anger” for months after the attack).
And so too do the declarations submitted by the Benzakein family. See, e.g., Dkt. 28-7 at
11 (Betty Benzakein Decl. ¶ 36) (Michael’s mother stating that, for months after the attack, she
“felt panicked, anxious, sleepless,” that she “didn’t have the energy” to go to therapy); Dkt. 28-8
at 7 (Ralph Benzakein Decl. ¶ 23) (Michael’s father explaining that “Michael’s decision not to be
observant” after the attack “hurts [him] in the extreme.”); Dkt. 28-9 at 5 (Jacques Benzakein
Decl. ¶ 16) (Michael’s brother stating that he felt the “need to walk on eggshells” around
Michael for “the first few years” after the attack, and that it is “tough to see how Michael’s
relationship with [his] parents has changed” since the attack.); Dkt. 28-11 at 3–4 (L. Benzakein
Decl. ¶¶ 9–11) (Michael’s youngest sibling averring the same) Dkt. 28-10 at 4 (Sabrina
Benzakein Decl. ¶¶ 17–8) (Michael’s sister explaining that she is now “more scared of being in
Israel” and that her relationship with Michael has strained because she is “not sure [Michael’s]
sudden bad moods will ever stop” and because Michael has “changed for good.”).
Based on this evidence, the Court finds that each of the Plaintiffs suffered a “personal
injury or death” as a result of the November 19, 2015 attack.
3. Attribution to Hamas
According to Colonel Arieh Dan Spitzen, an expert on Islamic terrorist groups, “Hamas
was responsible for the November 19, 2015 [a]ttack at Gush Etzion Junction.” Dkt. 26 at 32
(Spitzen Decl. ¶ 88); see also id. at 4 (Spitzen Decl. ¶ 10). Spitzen relies on three sources of
evidence to reach his conclusion: “(1) public statements or acts that Hamas and al-Harub’s
family members made following the [a]ttack, (2) al-Harub’s detailed and punctilious planning of
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the [a]ttack, and (3) the resources needed and expended in perpetrating the [a]ttack.” Id. at 4–5
(Spitzen Decl. ¶ 10).
First, as to the public statements or acts, Spitzen recounts that:
• “[T]he day after the attack, Hamas expressed its congratulations in a poster
praising and glorifying al-Harub’s deeds as heroic,” id. at 28 (Spitzen Decl.
¶ 72);
• Three months after the attack, “Hamas issued a press release on its official
website . . . calling upon the people in the Hebron area to support the famil[y]
of . . . al-Harub,” who, the release states, was an “excellent symbol[] of [the]
Hamas movement’s operatives,” id. (Spitzen Decl. ¶ 73) (emphasis added);
• “Al-Harub’s mother declared in 2016 that the people of the Qassam Brigades
[Hamas’s operational terror apparatus, id. at 4 (Spitzen Decl. ¶ 10)] . . .
would free her son,” and she made express reference “to names of senior
officials of Hamas and the Qassam Brigades” during interviews she provided
to the media, id. at 29 (Spitzen Decl. ¶ 75);
• Al-Harub’s parents spoke at “Hamas sites” and gave an interview to a
Hamas-affiliated website; a “Hamas flag accompanied the report” of one of
these interviews; “posters shown in the course of [an] interview as
background . . . stated that al-Harub . . . belong[ed] to the Qassam
Brigades;” and, during other interviews, “al-Harub’s organizational
affiliation with Hamas and its operational terrorist apparatus was
emphasized,” id. (Spitzen Decl. ¶ 76) (emphasis added);
• “Posters explicitly noting that al-Harub was an operative of the Qassam
Brigades . . . were displayed at al-Harub’s home on February 23, 2016,
immediately after it was destroyed by the IDF [Israeli Defense Forces],” id.
at 28–29 (Spitzen Decl. ¶ 74);
• “[A]l-Harub’s father received compensation from Hamas for the destruction
of the family home,” id. at 30 (Spitzen Decl. ¶ 77); and
• “Hamas officially claims responsibility for the [a]ttack[:] a senior Hamas
figure publicly described al-Harub as a ‘son of the Hamas movement,’” id.
at 31 (Spitzen Decl. ¶ 87), a phrase that Hamas uses to refer to “its own
operatives in various Hamas publications and posters [that] it distributed,”
id. at 12 (Spitzen Decl. ¶ 33).
In sum, as Spitzen explains, “[a]l-Harub’s mother’s public declarations supporting
Hamas’s ideology, and her expressed confidence that the Qassam Brigades would arrange to
15
promptly free her terrorist son; declarations of other family members indicating support for
Hamas; interviews supplied by the family to Hamas media and accompanied by Hamas symbols;
. . . the family[‘s] [receipt of] compensation from Hamas for the destruction of their home by
Israeli security forces . . . ; and the fact that no other terrorist organizations claimed
responsibility for the [a]ttack—all support the conclusion that Hamas was responsible for the
[a]ttack in which three people were killed, including Ezra Schwartz, and nine others were
injured, including Plaintiffs Michael Benzakein and Jason Geller.” Id. (Spitzen Decl. ¶ 79).
Second, further confirming Hamas’s responsibility for the attack, according to Spitzen, is
the evidence of “al-Harub’s detailed and punctilious planning of the [a]ttack.” Id. at 4–5
(Spitzen Decl. ¶ 10). Spitzen notes that:
• Al-Harub’s “Will describes his upcoming attack as an act of jihad for Allah’s
sake and for ‘the defense of our nation and our honor,’ which was crushed
by ‘the occupation and its herds of its settlers,’” id. at 16–17 (Spitzen Decl.
¶ 43), and Al-Harub “linked his decision to perpetrate a terrorist attack to his
desire for vengeance against the Jews for the condition of the Palestinian
people as well as the Jews’ purported damaging of the al-Aqsa Mosque,” id.
at 16 (Spitzen Decl. ¶ 42);
• Many months before the attack, “[i]n February 2015, al-Harub purchased an
Uzi submachine gun and three magazines of ammunition from a Bedouin of
the Ramadin tribe;” he subsequently “purchased further ammunition, he
examined the condition of the weapon[], cleaned [it], and oiled [it] every
month after his shooting practice;” and he “preventively painted” the
weapon[] and “concealed [it] in a hiding place, wrapping [it] in airtight bags
to prevent rusting and preserve [it] in good working order,” id. at 20–21
(Spitzen Decl. ¶¶ 52–54);
• He engaged in “regular training in operating the weapon and target practice,”
making “a point of practicing his shooting every month” at “an
inconspicuous location outside his village so that he would not be
discovered,” id. at 21 (Spitzen Decl. ¶ 55); and
• His execution of the attack demonstrated a level of “operational performance
clearly indicating prior training,” and his “tactical driving while shooting
and switching magazines, which is a very difficult task and requires
16
advanced skill generally acquired through lengthy organized practice, id. at
27 (Spitzen Decl. ¶ 69).
Based on these facts, Spitzen concludes that “[a]l-Harub’s behavior and spoken and written
words before the [a]ttack demonstrate his adherence to the . . . ideology of Hamas and like-
minded terrorist organizations,” id. (Spitzen Decl. ¶ 43); that “[h]is attention to operational
preparedness . . . was far more consistent with the operational discipline exhibited by members
of terror cells who operate within organizational frameworks,” id. at 21–22 (Spitzen Decl. ¶ 56);
and that “the [a]ttack itself indicates long and precise preparation [consistent with] the behavior
of a terrorist who belonged to an organized, established terrorist organization that provided
logistical and operational backing to its operatives,” id. at 27 (Spitzen Decl. ¶ 70).
Third, Spitzen explains that “the resources needed and expended in perpetrating the
[a]ttack” and the date of the attack further support his conclusion that Hamas bore responsibility
for the attack. Id. at 4–5 (Spitzen Decl. ¶ 10). Spitzen notes that al-Harub expended roughly
$15,000 over two years accumulating weapons and ammunition. Id. at 20 (Spitzen Decl. ¶ 53).
“That sum is exceptionally large and unusual for a young Palestinian,” and, in Spitzen’s view, “it
is very difficult to believe that the purchase[s] [were] made from al-Harub’s own private
resources.” Id. Finally, Spitzen explains that al-Harub selected the date of the attack—
November 19—“in part because it was the anniversary of the death of the namesake of Hamas’s
operational terror apparatus, the Izz al- Din al-Qassam Brigades.” Id. at 28 (Spitzen Decl. ¶ 71).
All told, then, “[a]l-Harub’s conduct was far more consistent with the operational discipline
exhibited by members of terror cells who operate within organizational frameworks.” Id. at 22
(Spitzen Decl. ¶ 56).
Based on the foregoing, Spitzen offers the expert opinion that al-Harub “was a Hamas
operative who committed the [a]ttack with the support and approval of Hamas,” because of:
17
(1) his “profile, which reflects extremist, Islamist beliefs,” id. at 28 (Spitzen Decl. ¶ 71); (2) his
“decision to commit the [a]ttack on the anniversary of the death of Sheikh Izz al-Din al-
Qassam,” id.; “the operation and the level of professionalism al-Harub exhibited in preparing for
the [a]ttack,” id.; “the content of al-Harub’s Will, which reflected signature Hamas . . . themes,”
id. at 4 (Spitzen Decl. ¶ 10); (5) the statements made by al-Harub’s parents and the payment
made by Hamas to al-Harub’s father after the IDF destroyed the family home, id. at 29–30
(Spitzen Decl. ¶¶ 76–77); (6) the posters referring to al-Harub as “the Qassami prisoner,” id. at
28 (Spitzen Decl. ¶ 74); and (7) “Hamas’s celebration and identification of al-Harub after his
arrest as one of its operatives,” id. at 4 (Spitzen Decl. ¶ 10).
In light of Spitzen’s unrebutted declaration, and cognizant of how difficult it is to obtain
“firsthand evidence and eyewitness testimony” in terrorism cases, Owens IV, 864 F.3d at 785, the
Court finds that Hamas was responsible for the November 19 attack.
III. CONCLUSIONS OF LAW
Under the Foreign Sovereign Immunity Act, 28 U.S.C. § 1604, a foreign state, including
its instrumentalities, is immune from suit in state or federal court unless the case falls within an
express statutory exception. See Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d
1123, 1126 (D.C. Cir. 2004). For present purposes, the sole relevant exception is found in the
“state-sponsored terrorism exception,” 28 U.S.C. § 1605A, which both confers subject matter
jurisdiction on federal district courts to hear certain terrorism-related claims, see 28 U.S.C.
§ 1330(a), and recognizes a federal cause of action against those foreign states subject to the
exception, see Owens IV, 864 F.3d at 764–65. The FSIA also addresses personal jurisdiction and
specifies precise procedures that a plaintiff must follow to effect service on a foreign state. See
28 U.S.C. § 1608.
18
The Court must satisfy itself that Plaintiffs have cleared each of these hurdles,
notwithstanding Defendant’s failure to appear. First, the FSIA deprives courts of subject-matter
jurisdiction in the absence of a relevant exception, and courts are “obligated to consider [their
jurisdiction] sua sponte.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Verlinden B.V.
v. Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983) (even where a defendant foreign state
does not appear, the Court “still must determine that immunity is unavailable”). Second, with
respect to the substance of a plaintiffs’ federal (or state) law claims, as noted above, the FSIA
precludes courts from entering a default judgment against a foreign state unless the court is
satisfied that the plaintiff has established her “right to relief by evidence satisfactory to the
court.” 28 U.S.C. § 1608(e); see also Owens, 864 F.3d at 784–86. And, because “the entry of a
default judgment is not automatic,” courts must “satisfy [themselves] that [they have] personal
jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6(footnote omitted).
Each of these inquiries implicates a slightly different standard of proof. To establish
subject-matter jurisdiction, a FSIA “plaintiff bears an initial burden of production to show [that]
an exception to immunity, such as § 1605A, applies.” Owens IV, 864 F.3d at 784. When the
plaintiff meets that burden of production, it must then “prove [its] case on the merits.” Id. To do
so, the plaintiff must “establish his . . . right to relief by evidence satisfactory to the court.” 28
U.S.C. § 1608(e). Although this provision’s “protection against an unfounded default judgment”
does not altogether “relieve[] the sovereign from the duty to defend,” it does require the plaintiff
to offer “admissible evidence” sufficient to “substantiate [the] essential element[s]” of his claim.
Owens IV, 864 F.3d at 785–86 (quotations omitted). Finally, to establish personal jurisdiction
19
over a defaulting defendant, the plaintiff must make “a prima facie showing of [personal]
jurisdiction.” Mwani, 417 F.3d at 6–7.
As explained below, the Court concludes that it has subject-matter jurisdiction over
Plaintiffs’ claims and personal jurisdiction over Iran. The Court also concludes that Plaintiffs
have carried their burden of establishing a right to relief under the federal cause of action
established in § 1605A. Finally, the Court will defer until the damages stage the determination
of the damages to which each Plaintiff is entitled.
A. Subject-Matter Jurisdiction and Liability for § 1605A(c) Claims
“[T]he [federal] district courts . . . have original jurisdiction” over “any nonjury civil
action against a foreign state” asserting “any claim for relief in personam with respect to which
the foreign state is not entitled to immunity under” the FSIA. 28 U.S.C. § 1330(a). This Court,
accordingly, has subject-matter jurisdiction over the present “nonjury civil action” against Iran if,
and only if, the conditions for the waiver of immunity found in 28 U.S.C. § 1605A are satisfied.
As explained below, Plaintiffs have carried their burden of establishing the Court’s subject-
matter jurisdiction.
Under the state-sponsored terrorism exception, 28 U.S.C. § 1605A(a)(1), a foreign state
is not immune from the jurisdiction of the federal (and state) courts in cases in which:
[(1)] money damages are sought against a foreign state [(2)] for personal injury
or death [(3)] that was caused by [(4)] an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act if such act or provision of material support or resources
is [(5)] 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(a)(1). The exception, moreover, applies only to suits in which two additional
requirements are met. First, the claimant or victim must be a U.S. national, a member of the U.S.
armed forces, or a U.S. government employee or contractor at the time the act of terrorism
20
occurred. 28 U.S.C. § 1605A(a)(2)(A)(ii). Second, the foreign state must be designated as a
state sponsor of terrorism both at the time the act occurred (or was so designated as a result of
the act) and at the time the lawsuit was filed (or was so designated within the six-month period
preceding the filing of the suit). 3 Id. § 1605A(a)(2)(A)(i)(I); see also Owens IV, 864 F.3d at
763–64.
Several of the conditions for subject-matter jurisdiction are easily addressed in this case.
First, Plaintiffs expressly seek only monetary relief, costs and expenses, and attorneys’ fees.
Dkt. 1 at 21 (Compl. Prayer for Relief). Second, Iran was designated as a state sponsor of
terrorism in 1984, see 49 Fed. Reg. 2836–02 (Jan. 23, 1984) (statement of Secretary of State
George P. Shultz) (Iran), and remains designated as such to this day, see U.S. Dep’t of State,
State Sponsors of Terrorism, available at https://www.state.gov/state-sponsors-of-terrorism (last
visited November 23, 2020). Third, at the time the Gush Etzion Junction attack occurred, each
Plaintiff here was a United States national. Dkt. 1 at 4 (Compl. ¶ 26)
As a result, the only substantial jurisdictional question left for the Court is whether
Plaintiffs’ claims are for “personal injury or death that [were] caused by . . . act[s] of torture,
extrajudicial killing . . . hostage taking, or the provision of material support or resources” by an
“official, employee, or agent of” Iran or Syria. 28 U.S.C. § 1605A(a)(1). For the reasons
explained below, the Court concludes as follows: (1) Hamas committed an act of “extrajudicial
killing” within the meaning of the Torture Victim Protection Act; (2) Iran and its agents provided
“material support or resources” for the extrajudicial killings that caused Plaintiffs’ injuries within
3
Section 1605A(a)(2) also requires that the foreign state have received “a reasonable
opportunity to arbitrate the claim,” but only if the act of terrorism “occurred in the foreign state
against which the claim has been brought.” 28 U.S.C. § 1605A(a)(2)(A)(iii). That requirement
is inapplicable to the facts of this case because none of the alleged acts of terrorism occurred in
Iran.
21
the meaning of 18 U.S.C. § 2339A; and (3) Iran’s provision of material support caused the
injuries or deaths suffered by Plaintiffs. Plaintiffs’ claims against Iran, therefore, fall within the
state-sponsored terrorism exception of 28 U.S.C. § 1605A(a)(1).
1. “Personal Injury or Death . . . Caused By” Defendant’s Conduct
The FSIA effects a waiver of sovereign immunity for claims seeking to recover for
“personal injury or death that was caused by” certain terrorist acts or the provision of material
support for such acts. 28 U.S.C. § 1605A(a)(1). Here, Ezra Schwartz died and Plaintiffs
Michael Benzakein and Jason Geller suffered physical injuries as a result of the Gush Etzion
Junction terrorist attack. Their claims, accordingly, satisfy the personal injury requirement of
§ 1605A(a)(1). And because the statute is understood to encompass claims by close family
members of those injured or killed for the distress caused by their relative’s injuries, also known
as solatium actions, see 28 U.S.C. § 1605A(c); see also Salzman v. Islamic Republic of Iran, No.
17-1745, 2019 WL 4673761, at *12 (D.D.C. Sept. 25, 2019), the close relatives of Ezra
Schwartz, Michael Benzakein, and Jason Geller also satisfy the personal injury requirement of
§ 1605A(a)(1). A family member’s claim for solatium damages resulting from a terrorist attack
may be considered for FSIA purposes as a variety of claim for an intentional infliction of
emotional distress, see Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 54–55 (D.D.C.
2012) (“Oveissi II”), and, as such, constitutes a “claim[] for personal injury,” id. at 55.
2. Hamas’s Extrajudicial Killing
To fall within the FSIA’s waiver of sovereign immunity, Plaintiffs’ “personal injur[ies]
or death[s]” must also have been “caused by an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of material support or resources for such an act.” 28
U.S.C. § 1605A(a)(1). The FSIA looks to the Torture Victims Protection Act of 1991 (“TVPA”)
22
to define “extrajudicial killing.” 28 U.S.C. § 1605A(h)(7). Under the TVPA, “extrajudicial
killing” means:
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.
TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73. As the D.C. Circuit has explained, this
definition “contains three elements: (1) a killing; (2) that is deliberated; and (3) is not authorized
by a previous judgment pronounced by a regularly constituted court.” Owens IV, 864 F.3d at
770.
a. Killing
The Gush Etzion Junction attack constitutes an act of extrajudicial killing: Ezra Schwartz
and others died as a result of the terrorist attack. Dkt. 28-12 at 2, 5–7 (Jason Geller Decl. ¶¶ 1,
17, 21); Dkt. 28-13 at 5 (Marc Geller Decl. ¶ 13); Dkt. 28-6 at 6, 9 (Michael Benzakein Decl.
¶ 22, 36). Although Jason Geller and Michael Benzakein were not killed, “[s]everal decisions
from this district have held that individuals who are injured but not killed in an attack that results
in the death of others may recover for their injuries under § 1605A.” Force v. Islamic Republic
of Iran, 464 F. Supp. 3d 323, 360 (D.D.C. 2020) (citing Karcher, 396 F. Supp. 3d at 58; Salzman
v. Islamic Republic of Iran, No. 17-2475, 2019 WL 4673761, at *12 (D.D.C. Sept. 25, 2019);
Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 6, 14 (D.D.C. 2011); Cohen v.
Islamic Republic of Iran, 238 F. Supp. 3d 71, 81 (D.D.C. 2017); Haim v. Islamic Republic of
Iran, 784 F. Supp. 2d 1, 11 (D.D.C. 2011)). Jason Geller and Michael Benzakein’s injuries
were, like Ezra Schwartz’s, “caused by” the “act of . . . extrajudicial killing”—a shooting that
killed three people and injured nine others, see Dkt. 26 at 13 (Spitzen Decl. ¶ 34). Salzman,
2019 WL 4673761, at *12. Indeed, they sat close to Ezra Schwartz when he was shot in the
23
head, as al-Harub deliberately sprayed their van with bullets in an effort to kill as many innocent
people as he could. It follows, moreover, that the personal injuries suffered by their family
members were caused by the same act of extrajudicial killing. See 28 U.S.C. § 1605A(c); see
also Salzman, 2019 WL 4673761, at *12; Oveissi II, 879 F. Supp. 2d at 54–55.
b. Deliberated and Unauthorized
Plaintiffs must also show that the attacks that caused their injuries were “deliberated,” in
order to qualify as an “extrajudicial killing.” “A ‘deliberated’ killing is simply one undertaken
with careful consideration, not on a sudden impulse.” Owens v. Republic of Sudan, 174 F. Supp.
3d 242, 263 (D.D.C. 2016) (“Owens III”) (subsequent history omitted) (citing Webster’s Third
New International Dictionary 596 (1993); 4 The Oxford English Dictionary 414 (2d ed. 1989);
Black’s Law Dictionary 492 (9th ed. 2009)).
Here, there is ample evidence that the attacks in question were planned. As Plaintiffs’
expert Arieh Spitzen explains: “al-Harub prepared himself for the [a]ttack not only spiritually
and emotionally, but also in the following ways: with intelligence-gathering, by selecting the
site; with logistics, by purchasing the gun and ammunition; and operationally, by training to
commit the attack.” Dkt. 26 at 18 (Spitzen Decl. ¶ 46); see also id. (Spitzen Decl. ¶ 47)
(“Several unique features in the [a]ttack indicate al-Harub’s longstanding intention to commit a
terrorist attack, including punctilious planning, financing, intelligence gathering and training –
all characteristic activity of an official and organized organization like Hamas.”); id. at 27(Spitzen Decl. ¶ 70) (“[Al-Harub’s] preparations for the [a]ttack and of the [a]ttack itself
indicates long and precise preparation for its commission[:] Acquisition of weapons and
logistical tools, operational and intelligence preparations, and strict secrecy . . . are all atypical of
the 2015 terror wave, and they indicate the behavior of a terrorist who belonged to an organized,
24
established terrorist organization that provided logistical and operational backing for its
operatives.”).
Finally, the attack was, without a doubt, perpetrated without “a prior judgment affording
judicial guarantees o[f] due process,” Foley, 249 F. Supp. 3d at 202; see also Owens IV, 864 F.3d
at 770, or “under the [lawful] authority of a foreign nation,” TVPA § 3(a). To the contrary,
Hamas, a non-state actor, claimed responsibility for al-Harub’s attack. See, e.g., Dkt. 26 at 28
(Spitzen Decl. ¶ 72) (“One day after the [a]ttack, Hamas expressed its congratulations in a poster
praising and glorifying al-Harub’s deeds as heroic[.]”); id. (Spitzen Decl. ¶ 73) (“On February
24, 2016, Hamas issued a press release on its official website . . . calling upon the people in the
Hebron area to support the famil[y] of the prisoner[] Muhammad Abd al-Basset al-Harub[.]”
(quotation marks omitted)); id. (Spitzen Decl. ¶ 74) (“Posters explicitly noting that al-Harub was
an operative of the Qassam Brigades, (referring to him as ‘the Qassami prisoner’), were
displayed at al-Harub’s home on February 23, 2016 . . . and made clear publicly and openly that
Hamas was claiming the perpetrator of the November 19, 2015 [a]ttack . . . .”): id. at 31 (Spitzen
Decl. ¶ 87) (“Hamas officially claimed responsibility for the [a]ttack[, and] a senior Hamas
figure publicly described al-Harub as a son of the Hamas movement . . . .” (quotation marks
omitted)).
* * *
The Court, accordingly, concludes that the Gush Etzion Junction attack qualifies as an act
of “extrajudicial killing” under 28 U.S.C. § 1605A(a)(1).
3. Iran’s Provision of Material Support for Hamas November 19, 2015 Extrajudicial
Killing
The FSIA’s terrorism exception applies when a plaintiff seeks money damages for
“personal injury or death that was caused by . . . the provision of material support or resources
25
for” an “act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking,” so long as that
support was provided 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(a)(1). Section
1605A(h)(3) defines “material support or resources” by reference to 18 U.S.C. § 2339A, the
criminal material support statute. Section 2339A defines “material support or resources” to
mean:
any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1).
The Court has found that, during the years leading up to and surrounding the attacks at
issue, Iran provided millions—if not hundreds of millions—of dollars to Hamas. See supra Part
II.A. Iran also provided substantial operational aid to Hamas, including weapons, training, and
strategic support. See id. The Court therefore concludes that Iran provided Hamas “material
support” in the form of, inter alia, “currency,” “training,” “expert . . . assistance,” and
“weapons” within the meaning the FSIA. 28 U.S.C. § 1605A(h)(4); 18 U.S.C. § 2339A(b)(1).
4. Causation
The Court must also consider whether Plaintiffs’ injuries were “caused by” provision of
material support to Hamas. 28 U.S.C. § 1605A(a)(1). Plaintiffs need not show that Iran
“specifically knew of or intended its support to cause” the particular attacks in question, Owens
IV, 864 F.3d at 798, or even that Iran’s material support was a “but for” cause of their injuries,
Kilburn, 376 F.3d at 1128. Instead, the FSIA requires only a “showing of ‘proximate cause,’”
which is satisfied where a Plaintiff can show “some reasonable connection between the act or
26
omission of the defendant and the damage which the plaintiff has suffered.” Id. (quoting Prosser
& Keeton on the Law of Torts 263 (5th ed. 1984)). This inquiry thus “contains two similar but
distinct elements.” Owens IV, 864 F.3d at 794. “First, the defendant’s actions must be a
‘substantial factor’ in the sequence of events that led to the plaintiff’s injury.” Id. (quoting
Rothstein v. UBS, 708 F.3d 82, 91 (2d Cir. 2013)). “Second, the plaintiff’s injury must have
been ‘reasonably foreseeable or anticipated as a natural consequence’ of the defendant’s
conduct.” Id. (Rothstein, 708 at 91).
Plaintiffs have offered no evidence tying the provision of specific support from Iran to
the Gush Etzion Junction attack. But establishing that type of close nexus is unnecessary,
because financial support and material aid are fungible and, more importantly, Iranian support
helped make Hamas the force that it was in November 2015. The FSIA does not condition
Plaintiffs’ recovery on Hamas’s “careful bookkeeping.” Kilburn, 376 F.3d at 1130. Here, it is
enough for Plaintiffs to have shown that Iran’s financial and military aid to Hamas played a
significant role in aiding its operational capacity. It is uncontested that Iran provided material
support to Hamas for nearly two-and-a-half decades, Dkt. 25 at 23 (Clawson Decl. ¶ 59); that
Hamas accepted responsibility for the instant attack, claiming al-Harub as one of its own
operatives, Dkt. 26 at 28 (Spitzen Decl. ¶ 73); and that Hamas’s resources were at a minimum
used in the attack’s aftermath (payment to al-Harub’s parents after their house was destroyed by
the IDF, id. at 28–29 (Spitzen Decl. ¶ 74), and were likely used in the attack itself, id. at 20
(Spitzen Decl. ¶ 53) (suggesting Hamas funded al-Harub’s purchase “of weapons and
ammunition”). More generally, Iran’s resources allowed Hamas to function as it did; indeed, as
Spitzen attests, “Hamas had few alternative suppliers of arms and money” around the time of the
attack, Dkt. 25 at 22 (Clawson Decl. ¶ 56). The Court, accordingly, concludes that there is a
27
“reasonable connection” between Iran’s support of Hamas and the instant attack, and that,
therefore, Iran’s support was a substantial factor in the attack that caused the Plaintiff’s injuries.
The remaining question is whether Plaintiffs’ injuries resulting from the attacks at issue
were “reasonably foreseeable” or “natural consequence[s]” of Defendant’s conduct. Owens IV,
864 F.3d at 794. They were. Iran not only materially supported Hamas, it actively encouraged
Hamas to carry out attacks on civilians in Israel and provided Hamas the financial and military
capabilities enabling those attacks. See supra Part II.A. Ezra Schwartz’s death, Jason Geller and
Michael Benzakein’s injuries, and their families’ immense emotional pain was, by any measure,
a foreseeable result of Iran’s sponsorship of terror. Owens IV, 864 F.3d at 797–98; see also
Salzman, 2019 WL 4673761, at *14.
6. Federal Cause of Action
Having concluded that the Court possesses subject-matter jurisdiction, little else is
required to show that Plaintiffs are entitled to relief under the federal cause of action that
Congress enacted in 2008 as part of the National Defense Authorization Act. See Pub. L. No.
110-181, § 1083, 122 Stat. 338–44 (2008) (codified at 28 U.S.C. § 1605A(c)). There is almost
total “overlap between the elements of [§ 1605A(c)’s] cause of action and the terrorism
exception to foreign sovereign immunity,” Foley, 249 F. Supp. 3d at 205, and a plaintiff that
offers proof sufficient to establish a waiver of foreign sovereign immunity under § 1605A(a) has
also established entitlement to relief as a matter of federal law—with one minor exception not
relevant here: a foreign state is only liable to a limited class of individuals, namely, “a national of
the United States,” “a member of the armed forces,” “an employee [or contractor] of the [U.S.]
Government . . . acting within the scope of the employee’s employment,” or “the legal
representative of ” any such person, 28 U.S.C. § 1605A(c); see also Dkt. 1 at 4 (Compl. ¶ 26)
28
(alleging that “[e]ach Plaintiff was a United States citizen at all relevant times, including at the
time of the [a]ttack”). Accordingly, for the same reasons that the Court has subject-matter
jurisdiction, Plaintiffs have a statutory claim to relief.
B. Personal Jurisdiction
The Court also concludes that it has personal jurisdiction over Defendant. Under the
FSIA, the Court has personal jurisdiction over a foreign state “as to every claim for relief over
which the [Court] ha[s] jurisdiction . . . where service has been made under section 1608.” 28
U.S.C. § 1330(b). Thus, “[i]n order to sue a foreign state or one of its political subdivisions, a
plaintiff must effect service in compliance with” 28 U.S.C. § 1608(a). Barot v. Embassy of the
Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015).
Section 1608(a) “provides four methods of service in descending order of preference,”
id.:
(1) by delivery of a copy of the summons and complaint in accordance with any
special arrangement for service between the plaintiff and the foreign state
or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of
the summons and complaint and a notice of suit, together with a translation
of each into the official language of the foreign state, by any form of mail
requiring a signed receipt, to be addressed and dispatched by the clerk of
the court to the head of the ministry of foreign affairs of the foreign state
concerned, or
(4) if service cannot be made within 30 days under paragraph (3), by sending
two copies of the summons and complaint and a notice of suit, together with
a translation of each into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the Secretary of State in Washington, District of
Columbia, to the attention of the Director of Special Consular Services--and
the Secretary shall transmit one copy of the papers through diplomatic
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channels to the foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when the papers were
transmitted.
28 U.S.C. § 1608(a).
The first two mechanisms of effecting service—by delivery of the summons and
complaint either “in accordance with any special arrangement for service between the plaintiff
and the foreign state” under § 1608(a)(1) or “in accordance with an applicable international
convention on service of judicial documents” under § 1608(a)(2)—were unavailable to Plaintiffs
in this case. See Dkt. 24 at 14; Karcher, 2019 WL 4017636, at *2. No “special arrangement”
governs service between the United States and Iran, and Iran is not party to an international
convention on service of judicial documents. See Braun v. Islamic Republic of Iran, 228 F.
Supp. 3d 64, 77–78 (D.D.C. 2017). As a result, Plaintiffs attempted service under the third
alternative, which requires service by mail from “the clerk of the court to the head of the ministry
of foreign affairs of the foreign state.” 28 U.S.C. § 1608(a)(3). On June 20, 2018, Plaintiffs
initiated service as to all Defendants under § 1608(a)(3), Dkt. 7 and, at Plaintiffs’ request, the
Clerk of Court mailed the relevant documents to Iran on June 22, 2018, Dkt. 8. On July 9, 2018,
the Court notified Plaintiffs that the documents sent to Iran were returned undelivered. Dkt. 9.
Plaintiffs then proceeded to serve Iran pursuant to 28 U.S.C. § 1608(a)(4). Dkt. 24 at 14.
That provision requires service by mail from the clerk of court to the Secretary of State, who
must then transmit the required material “through diplomatic channels to the foreign state.” 28
U.S.C. § 1608(a)(4). The Department of State must then send “the clerk of the [C]ourt a
certified copy of the diplomatic note indicating when the papers were transmitted.” Id. Plaintiffs
provided the Clerk with the relevant documents and requested service pursuant to § 1608(a)(4)
on August 22, 2018. Dkt. 11; see also Dkt. 12. The Clerk mailed these materials to the State
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Department on August 24, 2018. Dkt. 13. On November 28, 2018, the State Department
notified the Clerk that the documents had been delivered to Iran through the Swiss Ministry of
Foreign Affairs. Dkt. 14 at 3. As the Department explained, “[b]ecause the United States does
not maintain diplomatic relations with the Government of Iran,” the documents were transmitted
to the Embassy of Switzerland in Tehran, Iran, which then transmitted the materials to the
Iranian Ministry of Foreign Affairs on October 24, 2018. Id. at 1. After Iran failed to respond,
the Clerk of Court entered a default. Dkt. 22.
Because Plaintiffs accomplished service pursuant to 28 U.S.C. § 1608(a)(4) on the
Islamic Republic of Iran, the Court possesses personal jurisdiction over Iran. See 28 U.S.C.
§ 1330(b).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the motion for default judgment,
Dkt. 22, and the motion to file certain documents under seal, Dkt. 23, are GRANTED. The
Court will APPOINT a special master to hear Plaintiffs’ damages claims and to report to the
Court a recommendation as to the appropriate award. A separate order appointing a special
master and setting the terms of that appointment will follow.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: November 30, 2020
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