RUDOLPH CONTRERAS United States District Judge.
This case arises out of the October 12, 2000, terrorist bombing of the U.S.S. Cole ("the Cole") in Yemen, which resulted in the death of seventeen American sailors, including Electronic Warfare Technician First Class Kevin Shawn Rux ("Kevin"). First Amended Complaint [#18] at 1. The plaintiffs are Kevin's mother ("Doe Victim A") and his four brothers ("Doe Victim B," "Doe Victim C," "Doe Victim D," and "Doe Victim E"). Id. ¶¶ 4-8. The defendants are: 1) the state of Iran and its
On October 31, 2012, defaults were entered against the Iranian and Sudanese defendants. See Default [#26] at 1; Default [#27] at 1. According to the plaintiffs, as of March 28, 2013, they were unable to effectuate service of process against the Syrian defendants. See Plaintiffs' Status Report [#28] at 1. The plaintiffs decided, therefore, to proceed against the Iranian and Sudanese defendants. Id. at 2. Thus, currently pending and ready for resolution is Plaintiffs' Motion for Default Judgment Upon Evidentiary Hearing Against Iranian and Sudanese Defendants [#29].
An evidentiary hearing on liability and damages was held on August 12, 2014.
1. During the Afghanistan war against the Soviet Union, from 1979 to 1989, Osama Bin Laden, the son of a Saudi construction magnate, organized and financed the recruitment and training of Arab nationals to join the Afghan national resistance movement in what was known as the anti-Soviet "jihad" or holy war. PEX 9
2. In approximately 1988, Bin Laden founded Al-Qaeda to serve as a base "for future jihad." Id. at 56. Al-Qaeda's "structure included as its operating arms an intelligence component, a military committee, a financial committee, a political committee, and a committee in charge of media affairs and propaganda. It also had an Advisory Council (Shura) made up of Bin Ladin's inner circle." Id.
3. Since its inception, Al-Qaeda has executed or inspired acts of terrorism around the world, including the September 11, 2001, attack on the United States, which have killed or injured thousands of innocent people. Id. at 47-63.
4. Specifically, "Bin Ladin saw himself as called `to follow in the footsteps of the Messenger and to communicate his message to all nations,' and to serve as the rallying point and organizer of a new kind of war to destroy America and bring the
5. "At approximately 8:30 a.m. on October 12, 2000, the Cole entered the Port of Aden, Yemen, to temporarily stop for refueling." Rux, 495 F.Supp.2d at 544-45.
6. "The Republic of Yemen is a country of 203,850 square miles located on the southern coast of the Arabian Peninsula. Aden is a city of approximately 440,000 located on Yemen's south coast. The Port of Aden is a natural harbor with a deep draft in most areas and natural land protection on all sides." Id. at 545.
7. "In February 1999, the Navy began using Aden instead of Djibouti as the primary refueling stop for American ships during their 3,000-mile journey to the Arabian Gulf from the Mediterranean Sea. Under a contract entered into between the United States and Yemen, U.S. Navy vessels could obtain fuel at one of two fueling `dolphins' located near the mouth of the harbor without going to the pier." Id.
8. "The Cole, an Arleigh Burke Class Destroyer, was the twenty-fifth Navy ship to stop in Aden Harbor for refueling over the previous nineteen months. As of October 2000, the ship had a crew of twenty-six officers and 270 enlisted personnel. The Cole departed from its home port of Norfolk, Virginia, on August 8, 2000, before patrolling the Mediterranean Sea. On October 9, 2000, the ship transited the Suez Canal and headed for Yemen. At the time that the ship entered the Port of Aden on October 12, 2000, the U.S. Department of Defense terrorist threat level in Aden was `Threat Condition (THREATCON) BRAVO,' which indicated an `increased and more predictable threat of terrorist activity.'" Id.
9. "At approximately 8:49 a.m., the Cole moored starboard side to Refueling Dolphin Seven, near the mouth of the harbor. The ship began refueling at approximately 10:31 a.m. At approximately 11:10 a.m., one of the sailors standing watch over the refueling noticed a small boat heading `fast and hard' toward the Cole from the direction of the city. The boat, painted white with fire red trim, was about thirty-five feet long and six to seven feet wide and had a shallow V-hull. It looked `brand new.' The boat was similar in size and shape to many other small vessels in the harbor, including the service craft that had been alongside the Cole. The boat was manned by two males, both of whom appeared to be in their early thirties. The two men slowed the boat as they approached the Cole, maneuvered it parallel to the ship and came down the port side headed aft. As they did so, the two men in the boat were smiling, and waved to the crew. Some crew members returned the greeting. Seconds later, the boat exploded." Id.
10. "The explosion occurred between approximately 11:15 and 11:18 a.m., just as some of the crew was sitting down for lunch. The blast ripped a thirty-two-by thirty-six-foot hole in the port side.... Smoke, dust, and fuel vapors filled the air. The main engine room, auxiliary machine room, and the dry provisions storeroom were flooded. Several chambers, including the Crew and Chief Petty Officer's Galley, were structurally destroyed. The blast and its after-effects killed seventeen Navy sailors, all of them American citizens. Forty-two others were injured, some of them sustaining serious burns to their faces, hands and arms, as well as lacerations and fractures." Id.
11. In 1989, General Omar Bashir assumed the presidency of Sudan in a military
12. Following the Soviet withdrawal from Afghanistan in 1989, Bin Laden briefly returned to his home country of Saudi Arabia but had his passport seized by the government due to his relationship with extremists in Afghanistan. PEX 1-A
13. Bin Laden moved to Sudan in 1991, and lived there until 1996, when he was expelled from the country under international pressure. PEX 11
14. Turabi and Bin Laden shared a common extremist ideological and religious outlook. PEX 9 at 61; PEX 1 at ¶ 43. Turabi envisioned a pan-Islamic force consisting of both Shiites and Sunnis to counterbalance Western powers militarily, economically, and politically. PEX 1 at ¶ 45. Bin Laden agreed to help Turabi in the regime's ongoing war against African Christian separatists in southern Sudan, and also to invest his wealth in the country's infrastructure. PEX 9 at 57. In exchange, Sudan provided Bin Laden's group with a sanctuary within which it could freely meet, organize, and train militants for future operations. Id.; PEX 1 at ¶¶ 12-13, 36, 45.
15. Starting in the early 1990s, Turabi and the Sudanese regime convened annual conferences in Sudan under the label "the Popular Arab and Islamic Conference." PEX 10 at 6; PEX 1 at ¶ 44. At these conferences, Bin Laden and other top leaders and operatives from the Palestinian Liberation Organization, Hamas, and Hezbollah, congregated to exchange information and plan terrorist activities. Id.
16. Since 1993, the United States has designated Sudan a state sponsor of terrorism. See http://www.state.gov/j/ct/list/c14151.htm (last visited Jan. 27, 2015).
17. Each year from 1997 through 2000, Sudan continued to serve as a meeting place, safe haven, and training hub for Al-Qaeda and other terrorist groups, including Lebanese Hizballah, Palestinian Islamic Jihad, Abu Nidal Organization, and Hamas.
18. Sudan's material support of Al-Qaeda, such as "(1) its provision of sanctuary and safe haven from 1991-1996; and (2)[the] technical training and support Sudanese military and intelligence forces provided al Qaeda throughout the 1990s; was indispensable for al Qaeda not just to survive but also to then develop the expertise, technical knowledge and wide network of contacts that allowed it to flourish as a terrorist organization and carry out the USS Cole bombing." PEX 1 at ¶ 83.
19. Al-Qaeda's time in Sudan from 1991 through 1996 was invaluable to the development of the terrorist organization:
[#40] at 108:6-110:11.
20. Even after Al-Qaeda was expelled from Sudan in 1996, Sudan continued to be a safe harbor for the organization, allowing the organization to "plan more freely." Id. at 112:5-113:12.
21. Bin Laden established several joint business ventures with the Sudanese regime that flourished upon his arrival in Khartoum in 1991. PEX 1 at ¶ 19; PEX 1-A at 2-3. He "also formed symbiotic business relationships with wealthy NIF members by undertaking civil infrastructure development projects on the regime's behalf." PEX 1 at ¶ 19. These projects included:
PEX 1 at ¶ 19; PEX 1-A at 2-3.
22. These businesses "allowed al-Qaeda to funnel money for terrorist activities through Sudanese banks and Sudanese-based legitimate businesses, therefore overcoming the difficulties in transferring funds the group would have otherwise faced." PEX 1 at ¶ 35. Accord PEX 1 at ¶¶ 21-35. Bin Laden maintained those interests even after his expulsion from Sudan. PEX 6
24. "[B]y January 1994, Bin Laden had begun financing at least three terrorist training camps in northern Sudan — camp residents included Egyptian, Algerian, Tunisian, and Palestinian extremists — in cooperation with the NIF." PEX 1-A at 3. See also PEX 13
25. Bin Laden's main training camp in Sudan was "a 20-acre site near Soba, 10 kilometers south of Khartoum." PEX 1 at ¶ 36.
26. In addition, "Bin Laden's Al-Hijrah for Construction and Development Company work[ed] directly with Sudanese military officials to transport and provision terrorists training in such camps." PEX 1-A at 3.
27. While Bin Laden and Al-Qaeda were in Sudan, they "were allowed to operate freely." PEX 1 ¶ 36.
28. In 1998, "Al-Zawaheri
29. An individual carrying a diplomatic passport was "immune from [most] laws and criminal process." [#40] at 116:5-6. Furthermore, "diplomatic passports have diplomatic pouches which are not authorized to be examined by the host country... [allowing its holder to transport] materials without government scrutiny or scrutiny at the borders." Id. at 116:19-21, 24-25.
30. When Bin Laden moved to Sudan, the Sudanese government provided Al-Qaeda members with Sudanese travel documentation, including 200 passports, which facilitated the movement of Al-Qaeda operatives in and out of Sudan. PEX 1 at ¶¶ 36, 41-42; PEX 11 at 17; PEX 12 at 11.
31. "In addition to providing some al-Qaeda operatives with new passports, Sudanese officials also made sure that al-Qaeda members traveling to Sudan with different passports could enter and leave the country without having their passports stamped." PEX 1 at ¶ 42.
32. "These officials would have been acting with the full knowledge and consent of the highest levels of the Sudanese government... because a stamp from Sudan (a country known for its support of terrorism) would have raised the attention of immigration officials in other countries." Id.
33. Significantly, Sudan also exempted Al-Qaeda and its members from paying any taxes or import duties, thus permitting it to bring containers into the country without inspection by customs officials. PEX 1 at ¶ 20.
34. Bin Laden and Al-Qaeda would not have been able to carry out the attack on the Cole without the support of the Sudanese defendants:
PEX 1 at ¶ 81.
35 In approximately 1991, Iran and Sudan wanted to foster coordination between Sunni and Shia Islamists, by forming a "tripartite front" against their common enemies, the United States and Israel. PEX 16
36. "Eventually an agreement was reached to collaborate politically and militarily." PEX 16 at 7. Specifically, the parties agreed that "experience from Hizballah and Iran should be transferred to new nations/extremist groups who lack this expertise ... [in order to] allow Islamic Army members to gain the necessary experience in terrorist operations." Id. at 8.
37. "At that [same] time, the Iranian government was providing very active assistance to the Sudanese government for its fighting in the civil war in the south of the country." PEX 2 at ¶ 41. In addition, "in 1991, the Sudanese government [] supported a conference of those resisting the Madrid conference launching Israeli-Arab peace talks, and both Iranian representatives and Bin Laden were active at this event." Id.
38. Ultimately, the relationship between Sudan and Iran in the 1990s offered Al-Qaeda the opportunity to build ties with Iranian officials, Hezbollah, and other terrorist organizations dedicated to attacking United States personnel, military targets, and citizens in the Middle East. See PEX 27
39. Since 1984, the United States has designated Iran a state sponsor of terrorism. See http://www.state.gov/j/ct/list/c14151.htm (last visited Jan. 27, 2015).
37. Iran's material support of the Al-Qaeda/Egyptian Islamic Jihad in the 1990s was described by a high level Al-Qaeda operative as follows:
PEX 19 at 19. Accord PEX 3 at ¶ 68 (noting that Iran often used "both its own people and facilities" as well as those of "its close ally Hizballah" to support terrorist operations).
41. Although Iranians are Shias, they nevertheless supported the terrorist activities of Bin Laden, a Suni, because of their mutual hatred of "the infidels in the United States." [#40] at 121:10-17. See also PEX 2 at ¶ 73 (stating that Iran often support the terrorist activities of organizations "with which it ha[d] some profound differences").
42. Iranian "[s]upport for militant and terrorist groups [was] almost always done via Iran's Ministry of Intelligence and Security (MOIS) or the Islamic Revolutionary Guard Corps (IRGC), a parallel military force that [was] tasked with protecting Iran's revolution at home and spreading it abroad, among other duties." PEX 3 at ¶ 71.
43. With respect to the MOIS, "`Iran has used its intelligence services extensively to facilitate and conduct terrorist attacks... [and] Intelligence officers have used the diplomatic pouch for conveyance of weapons and finances for terrorist groups.'" PEX 2 at ¶ 40 (internal citation omitted).
44. In addition, "`MOIS [] facilitated the movement of al Qa'ida operatives in Iran and provided them with documents, identification cards, and passports'" and "`also negotiated prisoner releases of AQI operatives.'" PEX 3 at ¶ 75 (internal citations omitted).
45. With respect to the IRGC and the IRGC Qods, they sponsored terrorism in the following fashion:
PEX 2 at ¶¶ 26-37.
46. Iran supported Al-Qaeda financially:
PEX 17 at ¶¶ 25, 30.
47. Iran directly trained Al-Qaeda operatives:
PEX 9 at 61. Accord PEX 27 at 2-4.
47. Iran also supported Hezbollah, which in turn provided training for Al-Qaeda:
PEX 3 at ¶ 49. Accord [#40] 122:5-9; 121:21-24 (describing the closeness of the relationship between Hezbollah and Iran and thereby affirming Iran's intent to directly support the activities of Al-Qaeda); PEX 3 at ¶ 68 (same).
49. Finally, Iran has long provided material support to Al-Qaeda in the form of safe passage and facilitation of travel:
PEX 2 at ¶¶ 78-79.
51. "In the mid-1990s, Mustafa Hamid[, a senior Al-Qaeda operative,] reportedly negotiated a secret relationship between Usama Bin Laden and Iran, allowing many al Qaida members safe transit through Iran to Afghanistan." PEX 20
52. In order to facilitate the travel of Al-Qaeda members through Iran, Iran let the organization set up guest houses:
PEX 3 at ¶ 53 (internal citations omitted).
53. "Al-Qaeda also deliberately established training camps on the western border of Afghanistan to make it easier for recruits to travel through Iran." Id. at ¶ 53.
54. Ultimately, Iran's facilitation of travel had a significant impact on Al-Qaeda's efforts:
PEX 3 at ¶ 58. Accord [#40] at 124:9-127:3.
55. Laden and Al-Qaeda were firmly established:
PEX 3 at ¶¶ 70, 81 (internal citations omitted).
56. As a result of Iran's complicity, it is likely that Abd Rahim Hussayn Muhammad al Nashiri, one of the masterminds of the attack on the Cole, travelled through Iran when moving between Yemen and Afghanistan both before and after the bombing. PEX 2 at ¶¶ 80, 81 ("Certainly, during the late 1990s and through 2000, Iran was the common route that al-Qaeda members used when traveling from gulf countries such as Yemen to Afghanistan. Iran was also the common route used by al-Qaeda members when returning from Afghanistan to gulf countries such as Yemen.").
57. Doe Victim A is Kevin's mother. [#40] at 15:5-6.
59. Doe Victim A enjoyed an especially close relationship with her son. [#40] at 19:2-6. He also helped financially support his mother. Id. at 19:7-8.
60. After Kevin died, Doe Victim A stated: "I couldn't function.... I just wanted to sleep, and I mostly laid in my bed in a fetal position." Id. at 26:4-7. It took her months to return to her job. Id. at 26:11-18.
61. Describing the impact of Kevin's death, Doe Victim A stated:
Id. at 27:23-28:7. She also stated that she had seen a grief counselor on several occasions. Id. at 28:11-14.
57. Dr. Larry Pastor, a clinical psychiatrist, described Doe Victim A's condition as follows:
PEX 4 at ¶ 9.
63. Doe Victim B is Kevin's youngest brother. [#40] at 68:15-18.
64. Doe Victim B stated that Kevin was his "best friend" and also "like a father figure" to him. Id. at 68:21-24. He further stated that when their parents separated, when Doe Victim B was eleven, Kevin "took [him] under his wing and took care of [him]." Id. at 68:25-69:5. Doe Victim B also stated that Kevin disciplined him on several occasions. Id. at 72:4-8.
65. After his parents got divorced, Doe Victim B "got into trouble" and "spent 19 months in prison for arson." PEX 4 at ¶ 14.
66. Doe Victim B described his brother Kevin as "the glue that held [the family] together." [#40] at 70:7-10. He stated that the moment he learned that Kevin had been killed was "the worst moment in [his] entire life." Id. at 75:1-4.
67. Since Kevin's death, Doe Victim B has become withdrawn, has suffered from debilitating depression, and has had difficulty holding down a job. Id. at 76:18-77:13.
68. Doe Victim B's wife stated:
Id. at 139:1-6.
69. Dr. Pastor described Doe Victim B's condition as follows:
PEX 4 at ¶ 17.
70. Doe Victim C is Kevin's second youngest brother. [#40] at 56:4-13.
71. Doe Victim C was close with Kevin growing up. Id. at 57:10-11. As adults, the brothers spoke once a week, even though they lived in different states. Id. at 58:1-6; 60:24-25. Kevin was a figure of stability and a role model for Doe Victim C. Id. at 58:21-25.
72. Doe Victim C testified that he was in prison when Kevin was killed. Id. at 58:6-7.
73. After Kevin was killed, Doe Victim C began to experience nightmares of Kevin's death and became severely depressed. Id. at 64:11-65:3. As a result, Doe Victim C has not been able to work and is on disability for his depression. Id. at 65:4-14.
74. Dr. Pastor described Doe Victim C's condition as follows:
PEX 4 at ¶ 25.
75. Doe Victim D is one of Kevin's older brothers. [#40] at 47:7-9.
76. Doe Victim D has struggled with depression his entire life and attempted suicide prior to Kevin's death. PEX 4 at ¶ 18. While he was in high school, his father kicked him out of the house. Id. He later "spent three years in prison on a charge of probation violation/drug possession." Id.
77. Doe Victim D and Kevin were very close. [#40] at 47:18-22. Doe Victim D thought of Kevin as his "best friend." Id. at 48:16.
78. Doe Victim D also joined the Navy and they were both stationed in Charleston, South Carolina. Id. at 47:23-48:4.
79. After Kevin died, Doe Victim D began experiencing nightmares on a daily
80. Dr. Pastor described Doe Victim D's condition as follows:
Id. at ¶ 21.
81. Doe Victim E is Kevin's oldest brother. [#40] at 33:3-14.
82. Doe Victim E and Kevin had a very close relationship. Id. at 33:15-22.
83. Doe Victim E testified that they moved around a lot as a family because their father was in the Navy. Id. at 34:21.
84. After Kevin died, Doe Victim E fell into a deep depression and cried regularly in the five years following his brother's death. PEX 4 at ¶ 21. He is constantly preoccupied by images of his brother's death, and imagines him suffering. Id. His pain is just as intense today as it was the day he learned that Kevin was killed. Id.
85. Dr. Pastor described Doe Victim E's condition as follows:
PEX 4 at ¶ 28.
In order to have standing in an action under 28 U.S.C. § 1605A, either "the claimant or the victim [must be] a national of the United States" at the time of the terrorist act. 28 U.S.C. § 1605A(a)(2)(A)(ii)(I). Pursuant to the United States Code, a "national of the United States" is defined as "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). In this
The FSIA provides generally as follows:
28 U.S.C. § 1604. See also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (holding that the FSIA provides the sole basis for a district court to assert jurisdiction over a foreign state).
Under section 1605A, no foreign sovereign immunity exists where:
28 U.S.C. § 1605A(a)(1).
Under the FSIA, the term "extrajudicial killing" is defined 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." Torture Victim Protection Act of 1991, Pub.L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1992); § 1605A(h)(7). The term "material support or resources" is defined as "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel ... and transportation, except medicine or religious materials." 28 U.S.C. § 1605A(h)(3) (citing 18 U.S.C. § 2339A(b)(1)). See also Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 67-68 (D.D.C.2008) (providing examples of material support).
In this case, the Court may assert jurisdiction over the subject matter because money damages are sought for an extrajudicial killing that was caused by the provision of material support or resources (financial support, support for training, and facilitation of travel) to Bin Laden and Al-Qaeda by the Sudanese and Iranian defendants, acting within the scope of their official employment. See generally [#18].
Under the FSIA, personal jurisdiction exists if the defendants have been properly served pursuant to section 1608. Subsection (a) governs service upon a foreign state or political subdivision of a foreign state, while subsection (b) provides for service upon an agency or instrumentality of a foreign state. See 28 U.S.C. § 1608(a) and (b); I.T. Consultants Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C.Cir. 2003).
In determining whether a foreign entity is to be treated as the state itself or as an
Sudan and Iran are clearly foreign states. With respect to the seven remaining Sudanese defendants, because they are each subdivisions of the Sudanese government and perform governmental functions, they will be treated as the foreign state of Sudan. See [#18] ¶¶ 12, 15; Owens v. Republic of Sudan, 374 F.Supp.2d 1, 25-26 (D.D.C.2005) (treating Sudan's Ministry of the Interior as a foreign state). With respect to the three remaining Iranian defendants, because they too are each subdivisions of the Iranian government, they will be treated as the foreign state of Iran. See [#18] ¶¶ 9, 10; Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53, 59 (D.D.C.2007) (treating Iran's MOIS and the Revolutionary Guards as foreign states). Having determined that each of the Sudanese and Iranian defendants is, under the FSIA, a foreign state, the next issue is whether service of process was perfected.
With respect to the Sudanese defendants, service was perfected on January 30, 2011, under 28 U.S.C. § 1608(a)(3), through courier delivery of the summonses, complaints and attachments to Ahmed Ali Karti, the Sudanese Minister of Foreign Affairs, in Khartoum, Sudan. See Return of Service [#15]. With respect to the Iranian defendants, because the United States does not maintain diplomatic relations with Iran, service was perfected on February 15, 2010, under 28 U.S.C. § 1608(a)(4), through delivery of the summonses, complaints and notices of suit to the Foreign Interests Section of the Embassy of Switzerland in Tehran, for conveyance to the Iranian Ministry of Foreign Affairs. See April 19, 2011 and April 20, 2011 letters from William Fritzlen, Attorney Advisor at the State Department's Office of Policy Review and Interagency Liaison, to Angela Caesar, Clerk of the United States District Court for the District of Columbia [#16]. Because plaintiffs properly served the Sudanese and Iranian defendants, this Court may assert subject matter jurisdiction. See 28 U.S.C. § 1330(b); TMR Energy Ltd. v. State Property Fund, 411 F.3d 296, 327 (D.C.Cir.2005).
Under Rule 55 of the Federal Rules of Civil Procedure, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). After the party's default is entered, plaintiffs must move the court for the entry of a default judgment. Fed. R. Civ. P. 55(b).
Before plaintiffs can be awarded any relief, however, plaintiffs must establish their claims by "evidence satisfactory to the court." 28 U.S.C. § 1608(e). See also Taylor v. Islamic Republic of Iran, 811 F.Supp.2d 1, 6-7 (D.D.C.2011); Roeder v. Islamic Republic of Iran, 195 F.Supp.2d 140, 159 (D.D.C.2002). This requirement "imposes a duty on FSIA courts to not simply accept a complaint's unsupported allegations as true, and obligates courts to `inquire further before entering judgment' against parties in default." Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163,
In evaluating plaintiffs' proofs, a court may "accept as true plaintiffs' uncontroverted evidence, which may take the form of sworn affidavits or prior transcripts." Estate of Botvin v. Islamic Republic of Iran, 510 F.Supp.2d 101, 103 (D.D.C.2007). Such evidence may also include judicial notice of the evidence presented in related proceedings. Id.
There are five elements of liability under the FSIA's state-sponsored terrorism exception: "(1) `an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or provision of material support or resources for such an act' where (2) the act was committed, or the provision provided, by the foreign state or agent of the foreign state, and the act (3) `caused' (4) `personal injury or death' (5) `for which the courts of the United States may maintain jurisdiction under this section for money damages.'" Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 101 (D.D.C.2012) (quoting 28 U.S.C. § 1605A(1), (c)). In order to satisfy the third and fourth elements, plaintiffs must "prove a theory of liability under which defendants cause the requisite injury or death." Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 73 (D.D.C.2010). "In other words, plaintiffs in § 1605A actions — whether seeking solely punitive damages or pursuing compensatory relief as well — must articulate the justification for such recovery, generally through the lens of civil tort liability." Rimkus, 750 F.Supp.2d at 175-76.
In this case, it has been established, with evidence satisfactory to the Court, that the defendants, through the provision of material support and resources (the financial support, support for training, and facilitation of travel) to Bin Laden and Al-Qaeda, facilitated the planning and execution of the attack on the Cole, which resulted in the extrajudicial killing of Kevin Rux. See Findings of Fact supra ¶¶ 17-34 (Sudanese defendants); ¶¶ 40-55 (Iranian defendants). The next issue, therefore, is whether plaintiffs have proven an appropriate theory of liability.
Plaintiffs claim that the defendants are liable upon a theory of IIED and solatium. See [#18] ¶¶ 138-144. Under the Restatement of Torts, a defendant shall be liable for IIED to family members of an injured person if the defendant engaged in extreme and outrageous conduct which 1) was directed at persons other than plaintiffs and 2) intentionally or recklessly caused severe emotional distress, but not necessarily bodily harm, to such persons' immediate family members, who were present at the time such conduct occurred. RESTATEMENT (SECOND) OF TORTS § 46(1)-(2)(a) (1965). "Acts of terrorism are by their very definition extreme and outrageous and intended to cause the highest degree of emotional distress." Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22 (D.D.C.2009) (citing Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 89 (D.D.C.2002)). Notably, in terrorism actions brought pursuant to section 1605A of the FSIA, the requirement of presence at the time of the incident is waived. Valore, 700 F.Supp.2d at 80 ("One [] need not be present at the time of a terrorist attack upon a third person to recover for severe emotional injuries suffered as a result.").
Under the FSIA, a claim for solatium is nearly indistinguishable from a claim for IIED. Spencer v. Islamic Republic of Iran, No. 12-CIV-42, 71 F.Supp.3d 23, 26-27, 2014 WL 5141429, at *2 (D.D.C. Oct. 14, 2014) (citing Valore, 700 F.Supp.2d at 85). "A claim of solatium is a claim for the mental anguish, bereavement and grief
In this case, it has been established, with evidence satisfactory to the Court, that the defendants enabled Bin Laden and Al-Qaeda to perpetrate the attack on the Cole, thereby causing Kevin's death and the resulting mental anguish, bereavement, and grief of his immediate family members, the plaintiffs. See Findings of Fact supra ¶¶ 57-85 (detailing. injury caused to Kevin's mother and brothers as a result of his death).
In any action brought under section 1605A of the FSIA, "damages may include economic damages, solatium, pain and suffering, and punitive damages." 28 U.S.C. § 1605A(c). In this case, plaintiffs seek both compensatory and punitive damages, and the Court will consider each in turn after a preliminary discussion of joint and several liability.
In section 1605A actions against foreign states or their instrumentalities, the court may assess damages jointly and severally against defendants that conspired to provide material support for terrorist activity. See Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 30, 34 (D.D.C.2012) (making Iranian and Syrian defendants jointly and severally liable for all damages, where Palestinian Islamic Jihad ("PIJ") received "substantial logistical, financial, and technical support" from and "act[ed] as agents for" the defendants); Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44, 59 (D.D.C.2012) (holding the Islamic Republic of Iran and the Iranian Ministry of Information and Security jointly and severally liable for all damages).
Because the record supports a finding that the Iranian and Sudanese defendants conspired to support Al-Qaeda, which in turn carried out the bombing of the Cole, the Court concludes that all defendants shall be jointly and severally liable for all damages. This conspiracy can be traced back at least to 1991, when Iran and Sudan decided to form a "tripartite front" against the United States and Israel,
Iran took primary responsibility for transferring, via Lebanese Hizballah, extensive technical expertise to Al-Qaeda and other terrorist organizations. See id. at 8; PEX 27 at 2-7; PEX 9 at 61. In the 1990s, Al-Qaeda was able to deepen relationships with Iranian officials and Hizballah. See PEX 27 at 2-7; PEX 9 at 61. Al-Qaeda also used Iran as a "transit point" for moving money and fighters. PEX 2 at ¶ 36; cf. Wultz, 864 F.Supp.2d at 35 ("[T]he Iranian Defendants funneled money through the Syrian Defendants to the PIJ in order for the PIJ to carry out terrorist attacks."). In the years leading up to the Cole bombing, Iran was directly involved in establishing Al-Qaeda's Yemen network and supported training and logistics for Al-Qaeda in the Gulf region. See PEX 3 at ¶ 70. Throughout, Iran used Lebanese Hizballah, long-trusted yet easily distanced in public, as its primary "facilitator" for providing training and communications support. PEX 3 at ¶ 49.
For its part, Sudan served as a meeting place, safe haven, and training ground for Al-Qaeda and others, including Lebanese Hizballah in the 1990s and into 2000. See PEX 12 at 10; PEX 15 at 10; cf. Wultz, 864 F.Supp.2d at 35("[T]he safe haven, advice, encouragement, assistance, and facilities provided by Syrian Defendants substantially contributed to the PIJ's ability to train suicide bombers."). In exchange, Bin Laden agreed to support Turabi, head of Sudan's NIF, in his war against Christian separatists in southern Sudan. See PEX 9 at 57. Additionally, Bin Laden established business ventures with the NIF elite that facilitated the transfer of funds for terrorist activities. See PEX 1 at ¶¶ 19, 35. In sum, Sudan's support was "indispensable" in enabling Al-Qaeda to acquire expertise and contacts for carrying out the Cole bombing. PEX 1 at ¶ 81.
Lastly, there is ample evidence that Al-Qaeda carried out the final act of bombing the Cole and proximately causing the injury suffered by the plaintiffs. See PEX 3 at ¶¶ 70, 81. In light of the evidence of the Iranian and Sudanese defendants' conspiracy to support the terrorist activities of Al-Qaeda, which ultimately executed the Cole bombing, joint and several liability for all damages is appropriate.
In determining the appropriate amount of compensatory damages, courts may look to prior decisions awarding damages for pain and suffering, and to those awarding damages for solatium. See Acosta v. The Islamic Republic of Iran, 574 F.Supp.2d 15, 29 (D.D.C.2008) (citing Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56, 71 (D.D.C.2006)). In Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C.2006), the court, following an extensive survey of other decisions of the District Court for the District of Columbia, noted that "courts typically award between $8 million and $12 million for pain and suffering resulting from the death of a spouse[,] approximately $5 million to a parent whose child was killed[,] and approximately $2.5 million to a plaintiff whose sibling was killed." Id. at 269. It is also true, however, that courts "award greater amounts in cases with `with aggravating circumstances,' ... indicated by such things as `[t]estimony which describes a general feeling of permanent loss or change caused by decedent's absence' or `[m]edical treatment for depression and related affective disorders,'" Valore, 700 F.Supp.2d at 85-86 (internal citations omitted). With respect to such enhancements, the court in Oveissi v. Islamic Republic
Id. at 26-27. Accord Spencer, 71 F.Supp.3d at 27-28, 2014 WL 5141429, at *3.
In this case, the evidence demonstrates that Kevin was the center of his family. See Findings of Fact supra ¶¶ 57-85. His unexpected death was devastating to his mother and brothers. Id. Furthermore, the violent nature in which he died further exacerbated their grief and mental suffering, with several of his family members tortured by the fact that he may have suffered before he died. See generally PEX 4. Finally, the medical evidence shows that each plaintiff experienced extraordinarily severe pain and suffering following Kevin's death. Id. at ¶¶ 9-12 (concluding that Plaintiff A suffers from "traumatic grief" or "persistent complex bereavement-related disorder"); Id. at ¶ 17 (concluding that Plaintiff B suffers from "traumatic grief" or "persistent complex bereavement-related disorder"); Id. at ¶ 25 (concluding that Plaintiff C suffers from PTSD); Id. at ¶ 21 (concluding that Plaintiff D suffers from "traumatic grief" or "persistent complex bereavement-related disorder"); Id. at ¶ 28 (concluding that Plaintiff E suffers from "traumatic grief" or "persistent complex bereavement-related disorder").
Under these circumstances an upward departure of 25%
Plaintiff Relationship Baseline 25% Total Solatium
to Kevin Award Enhancement Damages
1. Plaintiff A Mother $5,000,000 $1,250,000 $6,250,000
2. Plaintiff B Brother $2,500,000 $625,000 $3,125,000
3. Plaintiff C Brother $2,500,000 $625,000 $3,125,000
4. Plaintiff D Brother $2,500,000 $625,000 $3,125,000
5. Plaintiff E Brother $2,500,000 $625,000 $3,125,000
"[T]he purpose of punitive damages is `to punish' a defendant for `outrageous
In this case, punitive damages are clearly warranted. First, when the Cole was bombed, it was manned by 26 officers and 270 enlisted personnel. See Findings of Fact supra ¶ 8. The result of the bombing was the death of 17 American sailors and the injury of 42 others. Id. ¶ 10. This was, without a doubt, a heinous act. The defendants' provision of material support to the perpetrators of that bombing was no less heinous. See Harrison, 882 F.Supp.2d at 50 (finding that "[w]hile Sudan's support of Al Qaeda [in the bombing of the Cole] does not rise to level of direct involvement in the attacks, it was nonetheless intentional, material and, as a result, reprehensible").
Second, in supporting Bin Laden and Al-Qaeda, the defendants' intention was clearly to further their own Anti-Western, Anti-American agenda. See Findings of Fact supra ¶¶ 11-16 (Sudanese defendants); ¶¶ 35-39 (Iranian defendants).
Third, numerous courts have acknowledged that the need to deter these defendants from committing future terrorist acts is great. See, e.g., Onsongo v. Republic of Sudan, No. 08-CIV-1380, 60 F.Supp.2d 144, 151-52, 2014 WL 3702875, at *5 (D.D.C. July 25, 2014) (awarding punitive damages against Sudan following the bombings of the U.S. embassies in Tanzania and Kenya, upon a finding that the need for deterrence was great); Wultz, 864 F.Supp.2d at 41-42 (awarding punitive damages against Iran following the suicide bombing of a Tel Aviv restaurant, upon an implicit finding that the need for deterrence was great); Harrison, 882 F.Supp.2d at 50-51 (awarding punitive damages against Sudan following the bombing of the U.S.S. Cole, upon a finding that the need for deterrence was great); Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1, 13-14 (D.D.C.2011) (awarding punitive damages against Iran following the suicide bombing of an Israeli bus, upon
Furthermore, it appears as though Iran is acutely aware of these U.S. lawsuits:
PEX 2 at ¶¶ 92-99.
The degree to which Sudan is concerned about these U.S. lawsuits is unclear, as none of plaintiffs' experts addressed this issue. However, the state has, on occasion, participated in litigation brought in U.S. courts. See Owens v. Republic of Sudan, 531 F.3d 884 (D.C.Cir.2008) (full participation); Kumar v. Republic of Sudan, No. 2:10-CIV-171, 2011 WL 4369122 (E.D.Va. Sept. 19, 2011) (limited participation); Rux v. Republic of Sudan, 672 F.Supp.2d 726 (E.D.Va.2009) (limited participation).
Finally, the wealth of Sudan and Iran supports an award of punitive damages. In 2014, Sudan's GDP was estimated at $85.3 billion. See http://www.heritage.org/index/country/sudan (last visited Jan.26, 2015). Iran's GDP in 2014 was estimated at $999.2 billion. See http://www.heritage.org/index/country/iran (last visited Jan. 26, 2015). In light of the foregoing analysis, the Court concludes that an award of punitive damages is warranted.
The next step, then, is to quantify punitive damages. Courts have adopted two primary approaches to calculating punitive damages against foreign states under section 1605A of the FSIA, but both approaches seem ill-suited to this case.
Many courts apply the Flatow method, multiplying the defendant state's annual expenditures on terrorism (the multiplicand) by a factor usually ranging from three to five (the multiplier). See, e.g., Beer v. Islamic Republic of Iran, 789 F.Supp.2d 14, 26 (D.D.C.2011) (using multiplier of three); Valore, 700 F.Supp.2d at 89 (using multiplier of five); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 32-34 (D.D.C.1998) (articulating punitive
Under the second approach, some courts impose a fixed $300 million punitive award. This approach is based on courts' perception that punitive awards are converging toward this figure, and on the theory that consistent, foreseeable punishment serves as a better deterrent for the rational bad actor. See, e.g., Bodoff, 907 F.Supp.2d at 106 (awarding $300 million in punitive damages and explaining that a punitive damage award should be "reasonably predictable in its severity" so that a "bad man can look ahead with some ability to know what the stakes are in choosing one course of action or another" (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 502, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008)));
Most crucially, both approaches fail to account for a relatively unique feature of this case: This Court has already rendered a punitive award against the Republic of Sudan in connection with the very same bombing of the Cole. See Harrison v. Republic of Sudan, 882 F.Supp.2d 23 (D.D.C.2012). The Harrison court applied the Flatow method, but explained that in light of the absence of "evidence relating to Sudan's actual expenditures on terrorist activities," it would "use the compensatory damages value as the multiplicand." Id. at 50. The court then used a multiplier of three, in the absence of any "exceptional circumstances" justifying an upward adjustment. Id.
This Court's prior assessment in Harrison of punitive damages against Sudan for the same attack on the Cole presents two additional challenges. First, the Court should avoid imposing a duplicative punishment against the Sudanese defendants for the same conduct, given that they are jointly and severally liable for all damages in this case. See supra Part IV.A.
Fortunately, the shortcomings of the Flatow and fixed-award approaches and the duplication and consistency challenges presented by Harrison's prior punitive award all find a reasonably elegant solution in Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51 (D.D.C.2010). In Murphy, the plaintiffs' injuries arose from the 1983 bombing of a U.S. Marine Corps barracks in Lebanon. Id. at 55. In calculating the punitive award, the court acknowledged a "quandary": It had already awarded punitive damages against Iran in Valore for precisely the same bombing. See id. at 81. "Recurrent awards in case after case arising out of the same facts," the Court reasoned, "can financially cripple a defendant, over-punishing the same conduct through repeated awards with little additional deterrent effect, and awards... can differ, creating anomalous results." Id.
Following the Supreme Court's teaching that punitive damages are "personal" to injured plaintiffs in a specific case,
Here, following Murphy, this Court finds guidance in the ratio between the punitive and compensatory awards rendered in Harrison, which arose out of the same bombing of the Cole. The Harrison court awarded $236,029,422 in punitive damages and $78,676,474 in compensatory damages. See Harrison, 882 F.Supp.2d at 51. Accordingly, Harrison's ratio of punitive damages to compensatory damages is 3-to-1, and in this case, the Court shall apply the same ratio to derive punitive damages.
Plaintiffs contend that "Harrison's calculation of punitive damages is not appropriate here" because "plaintiffs there did not provide evidence relating to Sudan's actual expenditures on terrorist activities... [whereas] here, plaintiffs have established evidence regarding Iran's actual expenditures on terrorism, and that much of the terrorism sponsored was done in conjunction with the Sudan." Plaintiffs' Proposed Findings of Fact and Conclusions of Law Redacted [#44] at 53 n.16 (internal citations and quotations omitted). But this argument misses the mark. At issue is not whether Harrison is correct, but rather, whether Murphy provides a sound methodology for calculating punitive damages. In opting to follow Murphy, this Court relies on Harrison only insofar as that case arises from the same incident and similar injuries (the bombing of the Cole), and supplies a ratio between compensatory and punitive damages. As a doctrinal matter, therefore, this case is governed not by Harrison, but by Murphy.
Accordingly, the Court will award punitive damages to each plaintiff in this case in an amount three times greater than his or her respective compensatory damages:
Plaintiff Relationship Total Punitive-to-Compensatory-Damages Total Punitive to Kevin Solatium Ratio Damages Damages 1. Plaintiff A Mother $6,250,000 3 : 1 $18,750,000 2. Plaintiff B Brother $3,125,000 3 : 1 $9,375,000 3. Plaintiff C Brother $3,125,000 3 : 1 $9,375,000 4. Plaintiff D Brother $3,125,000 3 : 1 $9,375,000 5. Plaintiff E Brother $3,125,000 3 : 1 $9,375,000
For the forgoing reasons, Plaintiffs' Motion for Default Judgment Upon Evidentiary Hearing Against Iranian and Sudanese Defendants [#29] will be granted. Furthermore, final judgment will be entered against the defendants, jointly and severally, in the amounts set forth above, along with post-judgment interest at the statutory rate, 28 U.S.C. § 1961(a).
Other courts prefer a fixed punitive award for each immediate victim harmed directly by the terrorist act (i.e., those whom the terrorists killed, tortured, kidnapped, etc.). See, e.g., Baker, 775 F.Supp.2d at 86 (awarding $150,000,000 in punitive damages against Syria for each of three Americans shot in execution-style by terrorist hijackers, for a total punitive award of $450,000,000); Gates, 580 F.Supp.2d at 75 (awarding $150,000,000 in punitive damages against Syria for each of two civilian contractors beheaded by Al-Qaeda in Iraq operatives, for a total punitive award of $300,000,000). But this immediate-victim approach cannot fully account for the foreseeable effects of terrorism on secondary victims such as family members or other potential claimants. The more numerous these secondary victims, the greater the likelihood that the immediate-victim methodology could under-punish and under-deter the perpetrator, relative to the actual magnitude of resultant harm. A further complication is that, insofar as duplicative punishment is to be avoided, courts instating immediate-victim punitive awards assume that all potential plaintiffs are before the court and that no other secondary victims have brought or will bring claims related to the same immediate victim. See Baker, 775 F.Supp.2d at 86 (awarding punitive damages to "each of the victims of the hijacking and their families"); Gates, 580 F.Supp.2d at 75 (awarding punitive damages to estates of two victims). But this case illustrates the limits of such an assumption: Kevin's wife is not in this case and, in fact, was unable to obtain punitive damages in the earlier Rux case. See infra
