Karcher v. Islamic Republic of Iran ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY KARCHER, et al.,
Plaintiffs,
Civil Action No. 16-232 (CKK)
v.
ISLAMIC REPUBLIC OF IRAN,
Defendant.
MEMORANDUM OPINION AND ORDER
(November 28, 2018)
The Court has received Plaintiffs’ [61] Motion to Admit Certain Exhibits as Evidence
Before Trial, to Admit Expert Reports Before Trial, and to Take Judicial Notice of Certain
Findings in Fritz v. Islamic Republic of Iran (“Pls.’ Mot.”). The Court issued a separate Order
regarding the first part of Plaintiffs’ [61] Motion, which concerns pre-admission of certain
exhibits. The Court now turns to the remainder of the motion, regarding pre-admission of expert
reports and judicial notice of certain findings.
Expert Reports
Plaintiffs’ authority for urging admission of expert reports is that other courts have done
so in prior Foreign Sovereign Immunities Act (“FSIA”) cases. See Pls.’ Mot. at 12-13
(collecting cases). While this Court may agree that the reports should be admitted, the Court is
not persuaded that such authority supports admission before trial. Accordingly, the Court
DENIES that portion of Plaintiffs’ [61] Motion seeking pre-admission of expert reports.
The author of each of the proffered expert reports is scheduled to testify at trial.
Accordingly, Plaintiffs may ask the respective experts at the beginning of their trial testimony
whether they adopt the facts and conclusions in their reports. If Plaintiffs lay that additional
foundation, then the Court will be persuaded to admit the reports.
Judicial Notice
Plaintiffs request judicial notice of three specific paragraphs of Judge Randolph Moss’s
opinion in Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48 (D.D.C. 2018): 1
1
The Court assumes that Plaintiffs’ request for judicial notice only of this material in Fritz
supplants their request, earlier in these proceedings, for broader notice of findings in a variety of
other cases. See Br. on Jurisdiction and Judicial Notice of Facts, ECF No. 37, at 5-10. The
Court’s own prior Order seems to have dissuaded them. See Pretrial Scheduling and Procedures
Order, ECF No. 39, at 1 (observing that the Court’s hearing would “involve [its] determination
of whether to take under judicial notice certain facts proposed by Plaintiffs, as well as its
1
• “On January 20, 2007, the U.S. forces at the Karbala PJCC included the 1st Platoon, A
Battery, 2d Battalion, 377th Parachute Field Artillery Regiment. At that time, the
platoon’s mission was to help the provincial government plan security for an upcoming
religious event that was expected to draw more than ten million pilgrims. The 1st Platoon
was led by First Lieutenant Jacob Fritz and included, among others, Specialist Johnathan
Bryan Chism and Private First Class Shawn Falter. As platoon leader, Fritz was
responsible for interacting with elected and religious officials who ‘would come to the
PJCC to speak with the governing body of the PJCC.’ He lived and worked out of a
small, courtyard-facing room at the front of the main building along with Captain Brian
Freeman. Chism and Falter, meanwhile, worked rotating guard shifts, helping the Iraqi
police secure the PJCC.” Id. at 65 (internal citations and footnote omitted). 2
• “The Court, accordingly, finds that Fritz, Chism, and Falter were each shot, beaten, and
subsequently executed. Although it is possible that many of the contusions on the
victim’s [sic] bodies were received in the course of the abduction, the evidence that both
Fritz and Chism were kicked in the face, along with the extensive nature of the injuries
all three sustained, supports a finding that the victims were severely beaten while in
captivity.” Id. at 70 (internal citation omitted).
• “AAH repeatedly claimed responsibility for the Karbala attack. First, the group produced
and published a video titled ‘The General’s Downfall,’ which contains footage of the
PJCC, displays the photographs of the U.S. soldiers who were killed, and ‘claims [the
attack] as one of [its] successes.’ This video was admitted into evidence based on
testimony from Dr. Gartenstein-Ross, describing internal and external indicia that it was
produced by AAH. As Dr. Gartenstein-Ross explained, the video served multiple
purposes; it helped ‘rally[ ] popular support with AAH portraying itself as being at the
forefront of the resistance,’ and it ‘show[ed] value to their sponsors[,] like Iran, that
they[ ] [were] carrying out these attacks.’” Id. at 71 (internal citations omitted;
alterations in original).
Evidently Plaintiffs seek such notice because their trial presentation of the attack at issue in Fritz
will be limited, consisting mostly, if not exclusively, of “independent evidence to establish Iran’s
legal responsibility for the attack.” Pls.’ Mot. at 14.
Under Federal Rule of Evidence 201, the Court “may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). “This ability to take notice of adjudicative
facts extends to judicial notice of court records in related proceedings.” Rimkus v. Islamic
Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010) (citing, e.g., Booth v. Fletcher, 101
F.2d 676, 679 n.2 (D.C. Cir. 1938)); see also Han Kim v. Democratic People’s Republic of
evaluation of additional evidence as needed to connect those facts with the claims of specific
Plaintiffs” (citation omitted)). The Court considers the present Order as resolving the question of
what judicial notice it will take in this case.
2
Plaintiffs did not expressly observe that they omitted a footnote from the Fritz opinion.
2
Korea, 774 F.3d 1044, 1049 (D.C. Cir. 2014) (FSIA decision citing approvingly district court’s
judicial notice of foreign court judgment pursuant to Rule 201); Owens v. Republic of Sudan, 864
F.3d 751, 789 (D.C. Cir. 2017) (recognizing judicial notice in Kim). “Because of the multiplicity
of FSIA-related litigation in this jurisdiction, Courts in this District have thus frequently taken
judicial notice of earlier, related proceedings.” Id. Specific to the request here, “when a court
has found facts relevant to a FSIA case involving material support to terrorist groups, courts in
subsequent, related cases may ‘rely upon the evidence presented in earlier litigation . . . without
necessitating the formality of having that evidence reproduced.’” Harrison v. Republic of Sudan,
882 F. Supp. 2d 23, 31 (D.D.C. 2012) (quoting Taylor v. Islamic Republic of Iran, 811 F. Supp.
2d 1, 7 (D.D.C. 2011)). Moreover, courts have taken notice of facts found in earlier proceedings
in this District even when those proceedings have taken place in front of a different judge. See
Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d 43, 54 (D.D.C. 2009) (“[r]elying on the
pleadings and the . . . findings of other judges in this jurisdiction”).
“At the same time, taking notice of another court’s finding of fact does not necessarily
denote adoption or finding of that fact.” Harrison, 882 F. Supp. 2d at 31. Instead, “courts in
subsequent related cases [may] rely upon the evidence presented in earlier litigation,” but must
still “reach their own, independent findings of fact in the cases before them.” Rimkus, 750 F.
Supp. 2d at 172; see also Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 59 (D.D.C.
2010) (“The taking of judicial notice of the Peterson opinion, therefore, does not conclusively
establish the facts found in Peterson for, or the liability of the defendants in, this case. . . . In
rendering default judgment against defendants, the Court was . . . required to, and did, find facts
and make legal conclusions anew.”). 3
The Court determines that the specified Fritz findings are relevant to this FSIA case and,
crucially, reliance upon them will not supplant the Court’s obligation to make independent
findings in this case. The Karbala attack at issue in Fritz is among those going to trial in this
case, but the plaintiffs are unique. This case involves different soldiers who were killed or
injured in the same attack, together with their family members. Of the three paragraphs that
Plaintiffs seek to judicially notice, the first two expressly focus only on the plaintiffs in Fritz,
with one exception. The first paragraph briefly refers to the late Captain Brian Freeman, whose
estate is a Plaintiff in this case. The third paragraph is not explicitly limited to the Fritz
plaintiffs, nor does it refer by name to Plaintiffs in this case. Notwithstanding the differences in
plaintiffs, however, all three paragraphs help to depict the basic story of the Karbala attack.
Rather than require “the formality of having that evidence reproduced,” the Court shall take
3
A sister court in this Circuit observed, in an FSIA decision in 2010, that the Court of Appeals
had “not directly considered whether and under what circumstances a court may judicially notice
the truth of [findings of fact and conclusions of law in related cases],” but the same court
determined that other Circuits do not automatically treat such findings as indisputable. Murphy,
740 F. Supp. 2d at 58 (citing, e.g., Taylor v. Charter Med. Corp., 162 F.3d 827, 829-30 (5th Cir.
1998)). Subsequently, our Court of Appeals in Kim and Owens recognized the judicial notice of
a foreign court judgment taken by the trial court in Kim, without delineating standards for future
trial courts to make similar decisions. This Court shall remain on safe ground when it takes
judicial notice of factual findings in Fritz but acknowledges its obligation to make independent
findings of fact and law necessary to support its decision. The Court shall discharge that
obligation after the upcoming trial in this matter.
3
notice of the above-described factual findings in Fritz, consider the evidence presented at the
upcoming trial, and independently reach factual and legal conclusions necessary to decide this
case. Harrison, 882 F. Supp. 2d at 31 (internal quotation marks omitted).
Accordingly, in an exercise of its discretion, the Court GRANTS that portion of
Plaintiffs’ [61] Motion requesting judicial notice of the three specific paragraphs in Fritz. As
stated above, although the Court shall consider these findings, it must make its own independent
findings when deciding whether Plaintiffs have proven their case. Plaintiffs should bear this in
mind as they determine what is necessary to present at trial to establish that they are entitled to
recovery.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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