Roth v. Syrian Arab Republic ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ARNOLD ROTH, et al., )
Plaintiffs, )
)
v. ) Civil No. 1:14-cv-01946-RCL
)
SYRIAN ARAB REPUBLIC, et al., )
Defendants. » )
)
)
MEMORANDUM OPINION
Plaintiffs have brought claims pursuant to the Foreign Sovereign Immunities Act (FSIA)
against the Syrian Arab Republic (Syria) and the Syrian Air Force Intelligence. Plaintiffs seel<
damages for injuries suffered as a result of a terrorist attack committed in Jerusalem, Israel on
August 9, 2001. The Court has before it the plaintiffs’ motion for default judgment ECF No. 45.
For the reasons set forth below, the Court concludes that plaintiff s motion Will be GR_ANTED.
I. PROCEDURAL HlsToRY
Plaintiffs first filed their original complaint on July 28, 2011, pleading causes of action
against the Islamic Republic of Iran (Iran), the Iranian Ministry of Information and Security
(MOIS), Syria, and the Syrian Air Force Intelligence. Pls.’ Complaint, Roth v. Islamic Republic of
Iran et al., 78 F. Supp. 3d 379, Civil Action No. ll-l377 (RCL) (D.D.C. July 28, 2011), ECF No.
3. Plaintiffs were originally unable to complete service of process on Syria and the Syrian Air
Force Intelligence, which led this Court to sever plaintiffs’ claims against Syria and the Syrian Air
Force Intelligence on November 19, 2014. Order, ECF No. l. The Court decided the case against
Iran and the MOIS in Roth I. Roth v. Islamic Republic of Iran et al., 78 F. Supp. 3d 379 (D.D.C.
2015) [hereinafter Roth I]. This opinion now addresses plaintiffs’ claims against Syrian and the
Syrian Air Force Intelligence.l
Plaintiffs’ causes of action and this Court’s jurisdiction are premised on § 1605A of the
FSIA. Syria and the Syrian Air Force Intelligence were served with process on July 2, 2017. ECF
No. 41. Their answer was due on August 31, 2017. Id. Defendants made no response and have yet
to appear in this case. The Clerk of the Court entered default against defendants on September 28,
2017. ECF No. 43. Plaintiffs have now moved for entry of default judgment against defendants,
both as to liability and damages. Pls.’ Mot. for Default J., ECF No. 45.
II. FI`NDINGS oF FACT
The Court must consider evidence and make findings of fact with respect to plaintiffs’
allegations before determining whether defendants should have a default judgment against them.
This is because § l608(e) of the FSIA prohibits courts from entering a default judgement against
a foreign state or its political subdivision unless “the claimant establishes his claim or right to relief
by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Therefore, the Court cannot “simply
accept a complaint’s unsupported allegations as true.” Rimkus v. Islamic Republic of Iran, 750 F.
Supp. 2d 163, l7l (D.D.C. 2010). Rather, courts must “inquire further before entering judgment
against parties in default.” Id. (intemal quotations omitted). Courts may rely on uncontroverted
factual allegations that are supported by affidavits Id. Also, courts may take judicial notice of prior
related proceedings in cases before the same court. Id.A. Judicial Notice of Prior, Related FSIA Cases
Under Federal Rule of Evidence 20l(b), courts may “judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from sources
' All references to “defendants” in this opinion refer only to Syria and the Syrian Air Force Intelligence.
whose accuracy cannot reasonably be questioned.” Eed. R. Evid. 201(b). This means that a court
may “take judicial notice of, and give effect to, its own records in another but interrelated
proceeding.” Opati v. Republic of Sudan, 60 F.Supp.3d 68, 73 (D.D.C. 2014) (quoting Booth v.
Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)). ln light of this authority and the numerous FSIA
cases in recent years giving rise to nearly identical factual and legal issues, this Court and others
in this District have frequently taken judicial notice of earlier, related cases arising under the state-
sponsored terrorism exception to foreign sovereign immunity. See, e.g., Fain v. Islamic Republic
of Ircm, 856 F. Supp. 2d 109, 115 (D.D.C. 2012) (collecting cases).
The Court may not simply adopt previous factual findings without scrutiny. This is because
factual findings “represent merely a court’s probabilistic determination as to what happened, rather
than a first-hand`account of the actual events.” Ia'. at 116. As such`, courts have concluded that
findings of fact are generally considered hearsay, not subject to an enumerated exception to the
prohibition on hearsay evidence in the federal rules. Rimkus, 750 F. Supp. 2d at 172. This does not
mean, however, that courts in later, related FSIA proceedings are given the “onerous burden of re-
litigating key facts in related cases arising out of the same terrorist attack.” Id. Instead, courts
adjudicating related FSIA cases may “rely upon the evidence presented in earlier litigation_
without necessitating the formality of having that evidence reproduced_to reach their own,
independent findings of fact in the cases before them.” Id. As stated above, the records of this
Court in related proceedings are not subject to reasonable dispute. See Opati, 60 F. Supp. 3d at 73.
Thus, the type and substance of evidence previously presented to this Court in prior proceedings
may be judicially noticed in the process of reaching findings of fact in this case.
The Court decided the related case of Roth 1 in 2015. Roth I, 78 F. Supp. 3d at 379. Roth I
involved the same plaintiffs and the same attack upon which this suit is based. The Court shall take
judicial notice of the findings of fact in that case. Further, on May 19, 2006, the Court presided
over a hearing on liability in the case of Greenbaum v. Islamic Republic of lran, 451 F. Supp. 2d
90, 95 (D.D.C. 2006). There the Court received evidence regarding the August 9, 2001 attack upon
which this suit is also based. Id. at 94~95. The Court shall take judicial notice of that evidence in
making its findings of fact. The evidence received in Greenbaizm was also judicially noticed in
Roth I. Roth 1, 78 F. Supp. 3d at 387. Further, the Court shall take judicial notice of evidence
received in Braun v. Islamic Republic oflran, 228 F. Supp. 3d 64, 71 (D.D.C. 2017) and Wultz v.
Islamic Republic of Iran, 864 F. Supp. 2d 24, 32 (D.D.C. 2012), as these cases involved Syria and
the Syrian Air Force Intelligence’s liability for state sponsorship of terrorism.
B. The Attack
On August 9, 2001, Izz al-Din Shuheil Ahmed Masri detonated a ten-pound bomb at a
Sbarro restaurant in Jerusalem. Pls.’ Ex. List, Ex. 16, U.S. Dep’t of State, Patterns of Global
Terrorism 2001 at 54, 80 (2002), Greenbaum v. Islamic Republic of Iran, Civil Action No. 02-
2148 (RCL) (D.D.C. May 18, 2006)5 ECF No. 27-9 [hereinafter Patterns of Global Terrorism];
Pls.’ Supplemental Ex. List, Ex. 18, Catalog/Translation of Evidence, 1-2, Greenbaum, Civil
Action No. 02-2148 (RCL), ECF No. 28-6.2 The resulting explosion killed 15 people, including
plaintiff Malka Roth. Patterns of Global Terrorism at 80.
Shortly afterwards, it became clear that Hamas was ultimately responsible for the attack.
Patterns of Global Terrorism at 54; Patrick Clawson Dep. 18:2-8, May 24, 2006, Greenbaum,
Civil Action No. 02-2148 (RCL), ECF No. 28-2 [hereinafter Clawson Dep.]. This conclusion was
supported by the following factors:
[A] living will videotape of the bomber made by the bomber beforehand in which
he describes himself as being a member of Hamas and says he’s going to carry out
2 This source is an English translation of an Israeli police file relevant to the August 9, 2001 attack. The translation
was made by an individual employed by the Washington Institute for Near East Policy.
a suicide bombing; the description after the bombing by the bomber’s father of his
son as being a member of Hamas; and, furthermore, the court evidence and the
interviews with the two individuals who were subsequently arrested for having
helped the bomber identify the target and get him to the target in which they
describe themselves as members of Hamas . . . .
Clawson Dep. 18:8-19:1.
C. Defendants’ Actions and Involvement in the Attack
Hamas is described by the State Department as an “outgrowth of the Palestinian branch of
the Muslim Brotherhood” that uses “both political and violent means, including terrorism, to
pursue the goal of establishing an Islamic Palestinian state in place of Israel.” Patterns of Global
Terrorism at 93. '
Syria has'been continuously designated as a state sponsor of terrorism by the U.S. State
Department`since 1979. Decl. of Benedetta Berti 1[ 30, Braun v`. Islamic Republic of Irari, 228 F.
Supp. 3d 64, Civil Action No. 15-1136 (BAH) (D.D.C. July 19, 2016), ECF No. 33-2 [hereinafter
Berti Decl., Braun]. In Braun, the Court reviewed evidence that indicated in the 1980s, Syria
reached an agreement with Hamas in which “Hamas undertook to carry out acts of extrajudicial
killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Syria undertook
to provide Hamas with material support and resources to carry out such extrajudicial killings and
terrorist attacks.” Braun, 228 F. Supp. 3d at 71. “Hamas has had a presence in Syrian since at least
1991,” Decl. of Marius Deeb 11 13, Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64, Civil
Action No. 15-1136 (BAH) (D.D.C. May 25, 2016), ECF No. 31-2 [hereinafter Deeb Decl.,
Braun], and Syria provided safe haven for Hamas for many years. Berti Decl. 11 31, Braun. This
granted Hamas a base from which to operate, and Syria became a “planning hu ” for Hamas in the
mid-1990s. Berti Decl. 111[ 31_33, Braun; Deeb Decl. 11 15, Braun. ln fact, Syrian military
intelligence worked closely with Hamas military leaders in Syria, and “[i]nst_ructions for terrorist
attacks were transmitted directly from Damascus to the terrorist cell that was _to carry out the
attack.” Ia'. While under Syria’s protection, “Hamas was able to organize political events from
Damascus,” Berti Decl. 11 40, Braun, as well as to “access both [Syria’s] military strategists and to
Hezbollah’s resources in Lebanon, from which Hamas was able to learn terrorist strategies,” Deeb
Decl. 11 23, Braun.
Hamas has received financial support channeled through Syria to finance its military
operations and terrorist attacks. Berti Decl. 1111 43-44, Braun. This Court in Wultz examined
evidence that the Syrian Air Force Intelligence specifically acted as a conduit for Syria’s
"‘provision of funds to terrorist organizations,” including Hamas and Palestinian Islamic Jihad,
which came from Iran. Wultz, 864 F. Supp. 2d at 32; Transcript of _Evidentiary Hearing on Feb.
27, 2012, 2614-27:2`, 31 :7-32:6, Wultz v. Islamic Republic of Iran, 864 F'. Supp. 2d 24, Civil Actiori
No. 08-1460 (RCL) (D.D.C. Mar. 30, 2012), ECF No. 129. Syria has also served as a key channel
through which Hamas has smuggled and obtained weapons. Berti Decl. 11 44, Braun. Further,
“Syrian sponsorship and support has enabled Hamas to at times carry out military training in Syria
and Lebanon where its operatives have acquired essential tactical skills and knowledge enabling
them to carry out ever more sophisticated attacks.” Id. Ultimately,
[t]he support which Syria provided to Hamas, by giving the organization and its
leaders safe haven, allowing it to operate its military headquarters in Damascus and
giving it access to other resources such as unrestrained access to funding, weapons,
travel, communications, military training, intelligence and strategy proved
significant for the terror organization’s overall operational infrastructure.
Deeb Decl. 11 19, Braun. Although Syria no longer provides support to Hamas, Hamas benefitted
from the substantial support that it received from Syria, especially during the period in which the
attack at the heart of this matter occurred.3
3 Syria and Hamas split in 2012 because of Hamas’ support for rebel forces in the Syrian civil war. Syria no longer
provides support to Hamas as a result of this split. Berti Decl. jj 45, Braun.
D. Plaintiffs’ Status and Injuries
The Court now makes findings regarding each plaintiff, including the injuries each plaintiff
suffered as a result of the August 9, 2001 attack and each plaintiffs citizenship (as is relevant to
their entitlement to recover under § 1605A of the FSIA).
1. Malka Roth
Plaintiff Malka Roth was killed in the August 9, 2001 attack. Amold Roth Decl. 11 2, Roth
v. Islamic Republic of Iran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2,
2014), ECF No. 34-2 [hereinafter Amold Roth Decl., Roth I]. She was 15 years old. Ia'. 11 3. She
is represented in this litigation by her parents, Amold and lFrimet Roth, who serve as co-
administrators of her estate. Compl., ECF No. 4; Pls.’ Supp. Mem. Ex. A, Roth v. lslamic Republic
oflran` et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C. Jan. 16, 2015`, 2016), ECF
No. 42-1. Malka Roth was a United States citizen. Amold Roth Decl. 11 3, Roth I.
2. Immediate family of Malka Roth
The other plaintiffs in this case are all immediate family members of Malka Roth. Amold
and Frimet Roth are her parents and Pesia Roth, Rivka Roth Rappaport, Zvi Roth, Shaya Roth,
Pinchas Roth, and Haya Elisheva Roth are her siblings. All except Amold Roth are United States
citizens.4 All reside in Jerusalem, lsrael. Amold Roth Decl. 11 6, Roth I. Amold Roth and Haya
Elisheva Roth have filed a notice of voluntary dismissal without prejudice as to their claims pled
in their individual capacities. ECF No. 44. Because defendants have not filed an answer or a motion
4 Arnold Roth Decl. 1[1| 2, 5, 26, Roth I; Frimet Roth Decl. 1[1[ 3, 7, Roth v. Islamic Republic oflran et al., 78 F. Supp.
3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-3; Rivka Roth Rappaport Decl. 111[ 2, 4, Roth v.
Islamic Republic of]ran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-6;
Zvi Roth Decl. 1111 2, 4, Roth v. Islamic Republic ofIran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C.
Oct. 2, 2016), ECF No. 34-7; Shaya Roth Decl. 1111 2, 4, Roth v. Islamic Republic oflran et al., 78 F. Supp. 3d 379,
Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-8; Pinchas Roth Decl. 1[1[ 2, 4, Roth v. Islamic Republic
oflran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-9; Pesia Roth Decl.
1111 2, 4, Roth v. Islamic Republic oflran et al., 78 F. Supp. 3d 379, Civil Action No. ll-1377 (D.D.C. Oct. 2, 2016),
ECF No. 34-10.
for summary judgment, _Arnold Roth and Haya Elisheva Roth’s claims were dismissed without
prejudice upon filing of this notice. Fed. R. Civ. P. 41(a)(1)(A)(i).5
Each plaintiff has alleged emotional injuries resulting from Malka Roth’s death. These
injuries are detailed below.
a. Frimet Roth
Frimet Roth first heard of the bombing a few minutes after it occurred through a CNN news
report. Frimet Roth Decl. 11 8, Roth v. Islamic Republic of Iran et al., 78 F. Suppi 3d 379, Civil
Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-3. She was immediately concerned for the
safety of three of her children who were out on the streets of Jerusalem. Ia'. While two retumed`
home a half hour later unharmed, Malka did not appear and did not respond to repeated phone
calls. Ia'. Later in the day, Frimet set out for Shaarei Zedek Medical Center to search for her
daughter, accompanied by the mother of Malka’s best friend, who had been with Malka that day.
Id. During the joumey, Frimet learned that Malka’s friend had sent a text message shortly before
the bombing stating that the two girls were going to Sbarro. Id. At that point,' Frimet stated, she
“knew that the worst had happened and broke down banging on the car window and crying.” Id.After returning home, she waited with her family and some neighbors, “moaning uncontrollably”
while waiting for news. Id. Finally, around 2 a.m. the following morning, her sons Pinchas and
Shaya called from the govemment’s pathology lab. Id. 1111 8-9. Arnold took the call; Frimet
recounted that just by reading his reaction, she knew that Malka’s death had been confirmed. Id. 11
9. Frimet now mournfully recalls this moment as a cruel culmination with indelible effects: “The
trauma of the evening and night leading up to that moment and then of the hours immediately after
are impossible for me to describe. They will never leave me. They changed my life forever.” Id.5 Arnold Roth’s claims made in his capacity as representative of Malka Roth’s estate remain.
Frimet states that her pain at Malka’s death “has never left [her] for a moment.” lai 11 10.
Indeed, because the mere memory of her daughter triggers such powerful sadness, she willfully
suppresses her memories of Malka “in order to function, to plod ahead with life.” Id. 11 11.
Nonetheless, her declaration affirms her powerful love for Malka, detailing her admiration and
gratitude for Malka’s many positive qualities, including Malka’s ardent devotion to her disabled
sister, Haya Elisheva. Ia'. 1[11 12-16.
b. Rivka Roth Rappaport
Rivka Roth Rappaport is Malka Roth’s sister, three and a half years Malka’s junior. Rivka
Roth Rappaport Decl. 11 3, Roth v.` Islamic Republic of Iran et al. , 78 F. Supp. 3d 379,'Civil Action
No. 11¥1377 (D.D.C. Oct. 2, 2016), ECF No. 34-6. Rivka states that she and Malka were “very
cl`ose” growing up. Id. 11 7. lndeed, during that time they shared a bedroom and`attended the same
school and youth group. Id. Rivka remembers the day and night spent waiting for news of Malka’s
fate as traumatic; she recalls crying and being distraught at the news Malka’s best friend had been
killed. Id. 11 14 (characterizing the night’s uncertainty as “excruciating”). She knew Malka had died
when she awoke to hear her mother “wailing and moaning” at the news. Ia'. 11 15.
Rivka declares that she has experienced emotional trauma and physical pain from her
sister’s death. Ia'. 11 16. She visited a psychologist once or twice but did not go regularly because
of her skepticism of therapy at the time. Id. She now regrets that decision. Ia'. Rivka states that her
life will never be the same as a result of the attack. ]d. 1[ 17.
c. Zvi Roth
Zvi Roth is Malka Roth’s brother, born two and a half years before her. Zvi Roth Decl. 1111
2-3, Roth v. Islamic Republic ofIran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C.
Oct. 2, 2016), ECF No. 34-7. He states that he and Malka were “very close” growing up. Ia'. 11 7.
They spent a great deal of time together, doing things like playing together and going to the
swimming pool. Id. Like his sister Rivka, Zvi recalls the night waiting for news about Malka after
the attack as being “very difficult.” Id. 11 13. Upon hearing of his sister’s death, he felt “terribly
exhausted” and like “everything in my life was collapsing.” Id. 1[ 14.
Zvi states that he has suffered emotional trauma and physical pain as a result of Malka’s
death. Id. 11 15. In the aftermath, he had trouble “studying and socializing” and felt isolated by his
experience and his grief. Id. He “received grief counseling from both a psychologist and from a
social worker.” Ia'. He states that his life will never be the same without Malka and that he misses
her and regrets`that his memories of her are fading from clarity. Id.` 1111 8, 16.
`d. Shaya Roth
Shaya Roth is Malka Roth’s brother. Shaya Roth De`cl. 11 2, Roth v. Islamic Republic of
Iran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (D.D.C. Oct. 2, 2016), ECF No. 34-8.
He is four and a half years older than her. Id. 1[ 3. Shaya declares that he and Malka were very
close as young children but that they grew apart somewhat as teenagers because of the busy
schedule and expanding social life that attends adolescence. Id. 11 7. Nonetheless, Shaya recounts
anecdotes of his relationship with Malka from the summer of 2001 that demonstrate the continued
affection the two shared for one another up until her death. Id. 11 11 (describing a “refreshing and
enj oyable” hike they took together that is one of Shaya’s favorite memories of his sister); id. 1[ 12
(recalling that a couple of days before her death, Malka gave Shaya a shopping bag full of snacks
to take with him in anticipation of his enlistment in the army, a gesture that “moved” Shaya so
much that he kept the snacks for months after her death, unable to eat or discard them).
Shaya, along with his older brother Pinchas, traveled to the Israeli government pathology
center at Abu Kabir in the morning following the attack at 2 a.m. Ia’. jj 15. They went to determine
10
whether a body at the center potentially matching Malka’s description was indeed their sister. Id.
Shaya’s declaration vividly describes the events that followed:
I will never forget my wandering thoughts on the long drive to Abu Kabir; my
deliberation while looking at her body lying on the clinic’s bed, knowing it was her
but hesitating to declare it and making it official and all the while having a glimmer
of doubt or hope that I may be making a mistake and that Malka is alive somewhere;
the call horne to say I had found her body - talking to my father and hearing my
mother crying in the background; and then the long drive home in silence.
Id.
Like his siblings, Shaya states that he has suffered emotional trauma and physical pain as
a result of Malka’s death. Iq'. 11 16. In particular, Shaya highlighted the difficulty of being a new
soldier in the wake of the attack, with his only relief from the rigors of military life being
emotionally difficult weekends on leave at home with a family now “severely limited” in its ability l
to “filnction healthin as a supportive and constructive force” in his life. Ia'. 1111 8, 16. He affirms
that he misses Malka, that he regrets that she will not be a presence in the lives of his family, and
that he believes his life will never be the same without her. Id. 11 17.
e. Pinchas Roth
Pinchas Roth is Malka Roth’s brother and is seven and a half years older than her. Pinchas
Roth Decl. 11 3, Roth v. Islamic Republic of Iran et al., 78 F. Supp. 3d 379, Civil Action No. 11-
1377 (D.D.C. Oct. 2, 2016), ECF No. 34-9. Pinchas states that, like the other plaintiffs, he spent
the time immediately following the attack “frantically trying to find some information about where
[Malka] might be.” Id. 11 8. He was given the difficult task, along with his brother Shaya, of
identifying Malka’s body shortly thereafter. Ia’. jj 9. Pinchas states that he experienced emotional
trauma and physical pain because of Malka’s death. Id. 11 10. He recalls that the attack resulted in
his having “trouble moving around in public places among strangers, for fear that one of them
might be carrying a bomb.” Id. He participated in individual and group therapy for several years.
11
Id. Pinchas declares that he misses talking to his sister and sharing stories with her; he believes his
life will never be the same without her. Id. 11 11.
f Pesia Roth
Pesia Roth is Malka Roth’s sister and is seven years younger than Malka. Pesia Roth Decl.
1111 2-3, Roth v. Islamic Republic of Iran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377
(D.D.'C. Oct. 2, 2016), ECF No. 34-10. Despite their age gap, Pesia states that she and Malka were
“very close.” Ia'. 11 7. They would “sing and play music together, have deep and meaningful
conversations (despite our age gap she would talk to me at eye level), play cards, [and] go
swimming.” Id. Pesia viewed Malka as an “incredible big sister,” a person who was “very
precious” to her. Id.Like many members o'f her family, Pesia states `that she was distraught w`hile waiting for
news about Malka, crying as she waited. la'. jj 13. She states that she experienced emotional trauma
and physical pain as a result of Malka’s death. Id. 11 15. She received counseling as treatment for
this trauma, including from professional psychologists. Id. Pesia believes that her life will never
be the same without Malka. Id. 1[ 16.
III. CoNCLUsIoNs oF LAW
A. Jurisdiction and Sovereign Immunity
The FSIA is the “sole basis for obtaining jurisdiction over a foreign state in our courts.”
Argentine Republic v. Amerada Hess Shz'pping Corp., 488 U.S. 428, 434 (1989). The FSIA'codifies
specific exceptions to foreign sovereign immunity that provides the sole authority for a district
court to assert subj ect matter jurisdiction over claims against a foreign state. Oa’hiambo v. Republic
of Kenya, 764 F.3d 31, 34 (D.C. Cir. 2014). The D.C. Circuit has stated that “if no exception
applies the district court has no jurisdiction.” Id.12
District courts must decide whether an exception to foreign sovereign immunity applies
“even if the foreign state does not enter an appearance to assert an immunity defense.” Verlinden
B. V. v. Central Bank ofNigeria, 461 U.S. 480, 493 n.20 (1983). This is because courts would lack
subject matter jurisdiction unless there is an exception to foreign sovereign immunity and
“[s]ubj ect-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134,
141 (2012). Thus, “[w]hen a requirement goes to subject-matter jurisdiction, courts are obligated
to consider sua sponte issues that the parties have disclaimed or have not presented.” Id.
1. Original Jurisdiction
Federal district courts have original jurisdiction over FSIA under 28 U.S.C. § 1330. Section
1330 provides that district courts have original jurisdiction over (1) nonjury civil actions (2) for
claims seeking relief in personam (3) against a foreign state (4) when the foreign state is not
entitled to immunity either under §§ 1605_1607 of Title 28. 28 U.S.C. § 1330(a).
All of the requirements in § 1330(a) are met in this case. First, plaintiffs have not demanded
a jury trial_this is a nonjury civil action. Second, this is a suit against defendants as legal persons,
which means that the claims in this case seek relief in personam. Cf. Gang L_uan v. United States,
722 F.3d 388, 399 n.15 (D.C. Cir. 2013) (“In personam jurisdiction is jurisdiction over the
defendant.”). Third, this suit is against a “foreign state.” The defendants in this case, Syria and the
Syrian Air Force Intelligence, are both foreign states under the FSIA. Syria is clearly a foreign
state. The Syrian Air Force Intelligence is also a foreign state under the FSIA. Under the FSIA, a
“foreign state . . . includes a political subdivision of a foreign state or an agency or instrumentality
of a foreign state.” 28 U.S.C. § 1603(a). The D.C. Circuit has adopted a “categorical approach” to
determining the status of foreign government-related entities for purposes of FSIA’s jurisdiction
and service of process provisions. Roea'er v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.
13
2003). The D.C. Circuit has stated that “if the core functions of the entity are governmental, it is
considered the foreign state itself; if commercial, the entity is an agency or instrumentality of the
foreign state.” Ia'. The Syrian Air Force Intelligence is an intelligence service and serves as a
conduit of Syrian funds to terrorist organizations Malina v. Syrian Arab Republic, Civil Action
No. 11-93 (JMF), 2013 WL 12308199, at *1 (D.D.C. Nov. 13, 2013); Buonocore v. Great Socialist
People’s Libyan Arab Jamahiriya, Civil Action No. 06-727 (JMF), Civil Action No. 08-529
(JMF), 2013 WL 351546, at *21 (D.D.C. Jan. 29, 2013), amended sub nom. Estate of Buonocore
v. Great Socialist People ’s Libyan Arab Jamahiriya, 2013 WL 653921 (D.D.C. Mar. 13, 2013);
Wult`z, 864 F. Supp. 2d at 32; Certain Underwriters at Lloya1 ’s London v. Great So`cz`alist People ’s
Libyan Arab Jamahiriya, 811 F. Supp. 2d 53, 70 (D.D.C. 2011). Intelligence gathering and
' conducting operations ar`e core government functions, not commercial. See Roth I, 78 F.Supp.3d
at, 393. Thus, the Syrian Air Force Intelligence constitutes a “foreign state” under the FSIA.
See Gates v. Syrian Arab Republic (Gates 1), 580 F. Supp. 2d 53, 64 (D.D.C.2008)
(citing Roeder, 333 F.3d at 234). The fourth and final requirement for subject matter jurisdiction
under § 1330(a) is that there must be an exception to foreign sovereign immunity. This is analyzed
in the following subsection.
a. Sovereign Immunily
The FSIA provides a state sponsor of terrorism exception to foreign sovereign immunity.
28 U.S.C. § 1605A. Section 1605A states that foreign states do not have immunity
in any case . . . in which money damages are sought against a foreign state for
personal injury or death that was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or resources
for such an act if such act or provision of material support or resources is engaged
in by an official, employee, or agent of such foreign state while acting within the
scope of his or her office, employment, or agency.
14
Ia'. Each element of this section are met. Plaintiffs only seek monetary remedies for their injuries l
in this case. As discussed supra, both defendants, Syria and the Syrian Air Force Intelligence, are
foreign states under the FSIA. Further, plaintiffs have proven instances of personal injury or death,
and plaintiffs have proven that their claims arise from these instances. Under § 1605A, such injury
or death “must merely be the bases of a claim for which money damages are sought.” Valore v.
Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 2010). Jurisdiction is not restricted to
physical injury suffered directly by each claimant. Ia’. Thus, plaintiffs’ various claims for
emotional injuries to Malka’s family and economic losses to her estate, all of which spring from
Malka’s death in lthe bombing, constitute the type of claims required for jurisdiction
Finally, the “causation” element of § 1605A(a) is established in this case. The plaintiffs`do
not need to show that their injuries would not have occurred “but for” defendants’ actions to meet
the causation element. See Kz'lburn v. Socialist People ’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1 128 (D.C. Cir. 2004) (interpreting the similarly-worded causation requirement of the former state-
sponsored terrorism exception to foreign sovereign immunity, § 1605(a)(7), as requiring only
“proximate cause”). Instead, the “causation” element is established by showing “some reasonable
connection between the act or omission of the defendant and the damages which the plaintiff has
suffered.” Valore, 700 F. Supp. 2d at 66 (D.D.C. 2010). Here, plaintiffs have sufficiently
demonstrated a “reasonable connection” between defendants’ acts and their damages. The facts
found by the Court demonstrate that defendants: (1) provided substantial support to Hamas through
provision of a safe haven from which to plan attacks, financial support, training, and weapons, and
(2) encouraged terrorist activities, especially against Israeli targets. These acts have a reasonable
connection to the attack ultimately carried out by Hamas on August 9, 2001. This is sufficient for
the relatively low proximate cause bar imposed by the FSIA.
15
Also, plaintiffs’ claims must arise out of “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). This act or provision of material support must be engaged in by an officer,
employee, or agent of the foreign state within the scope of the actor’s office, employment, or
agency. Id.
In this context, provision of material support or resources has the same meaning as it is
given in § 2339A of Title 18 of the U.S. Code. 28 U.S.C. § 1605A(h)(3). That section defines
“material support or resources” 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 (l or more individuals ‘ who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1).
Extrajudicial killing has the same meaning as it is given in § 3 of the Torture Victim
Protection Act of 1991. 28 U.S.C. § 1605A(h)(7). That section defines extrajudicial killing as “a
deliberated killing not authorized by a previous judgment pronounced by a regularly constituted
court affording all the judicial guarantees which are recognized as indispensable by civilized
peoples.” See Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 3(a), 106 Stat. 73(excluding from the definition killings that are lawful under international law).
The August 9, 2001 bombing caused the deaths of innocent civilians, including Malka
Roth. Those individuals were killed by the malicious design of the terrorists who carried out the
attack_not according to the judgment of a regularly constituted court. Thus, the bombing was an
“extrajudicial killing” as defined by the FSIA. Defendants provided “material support or
resources” for this act by their provision of a safe haven from which to plan attacks, financial
16
support, training, and weapons to Hamas and its members. Finally, this provision of material
support or resources was within the scope of the provider’s office, employment, or agency. As set
forth above, Syria, which is a foreign state, provided this material support to Hamas and the Syrian
Air Force Intelligence, treated as the foreign state itself, served as a conduit for the provision of
funds to Hamas.
Thus, the final element for waiver of sovereign immunity under § 1605A is met and
defendants are not entitled to sovereign immunity. Because all of § 1330(a)’s requirements for
jurisdiction are satisfied, the Court possesses original jurisdiction over this matter.
2. Requirements for a claim lto be heard
Section 1605A only applies if three conditions are met: (1) the foreign state was designated
a state`sponsor of terrorism at the time of the act giving rise to liability or was so designated in
response to such act and remains so designated; (2) the claimant or victim was a national of the
United States at the time of the act waiving sovereign immunity6; and (3) in cases where the act
occurred in the foreign state against whom suit has been brought, the foreign state was afforded a
reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of
arbitration. 28 U.S.C. § 1605A(a)(2). Each of these conditions is met here.
First, Syria was designated a state sponsor of terrorism in 1979. Gates v. Syrian Arab
Republic, 646 F.3d 1, 2 (D.C. Cir. 2011). This designation meets § 1605A’s definition of “state
sponsor of terrorism.” 28 U.S.C. § 1605A(h)(6). Syria continues to be designated as a state sponsor
of terrorism to this day. State Sponsors of Terrorism, U.S. Dep’t of State,
http://www.state.gov/j/ct/list/c1415l.htm (last visited Sept. 26, 2018). Because Syria was a
6 Two other categories of claimants or victims that would meet § 1605A’s requirements are not relevant here.
17
l designated state sponsor of terror at the time of the incident underlying plaintiffs’ claims and
because it continues to be so designated, the first condition for a claim to be heard is met.
Plaintiffs meet the second requirement because all claimants or victims are nationals of the
United States. Malka Roth and all members of her family that bring claims on their own behalf are
citizens of the United States.
Finally, plaintiffs have met the third requirement because the “act” described in subsection
(a)( 1)_i.e. the act of extrajudicial killing_occurred in Israel, not the defendant state. Thus,
plaintiffs were not required by statute to afford defendants a reasonable opportunity to arbitrate.
3. Personall jurisdiction
Federal courts have personal jurisdiction over a foreign state if (1) the court has jurisdiction
pursuant to § 1330(a) and (2) service has`been properly made unde`r § 1608 of the FSIA. 28 U.S.C.
§ 1330(b). As established above, the requirements for jurisdiction under § 1330(a) are met in this
case. The Court next proceeds to an analysis of § 1608’s requirements for service.
Section 1608(a) requires that service upon a foreign state or a political subdivision of a
foreign state-such as the Syrian Air Force Intelligence-be completed in one of four ways. 28
U.S.C. § 1608(a). The methods are presented in order of preference; a method of service must be
unavailable or unsuccessful for a party to attempt service under a later method. Ia'. The first three
methods are: (1) delivery of a copy of the summons and complaint in accordance with any special
arrangement for service between plaintiff and the foreign state, (2) delivery of the same documents
in accordance with an applicable international convention on service of judicial documents, or (3)
delivery of the same documents as well as a notice of suit, all translated into the foreign state’s
official language, by mail, return receipt requested. 28 U.S.C. § 1608(a)(1-3). The Court is not
aware of any special arrangement for service between these parties and no international convention
18
on service applies. Plaintiffs were thus authorized to attempt service under subsection_3. Their
attempt was unsuccessful; defendants returned the documents unexecuted a few weeks after their
mailing. ECF No. 12.
Therefore, plaintiffs were authorized to effect service under § 1608(a)(4). That provision
authorizes service
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 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)(4). The clerk of the Court cerrined mailing the specified documents,
translated as required, to the State Department on May 8, 2012. ECF No. 23. The State Department
subsequently confirmed transmission of the documents to the Syrian Ministry of Foreign Affairs
by way of the Foreign Interests Section of the Embassy of the Czech Republic in Damascus, Syria.
ECF No. 41. Certified copies of the diplomatic notes showing the date of transmission-July 2,
2017_were attached thereto. Ia'. In light of these filings, the Court concludes that plaintiffs have
complied with § 1608(a)(4) and have, therefore, properly served defendants in accordance with
the FSIA. The Court may exercise personal jurisdiction over defendants7
B. Timeliness
Section 1605A includes a limitations provision, at subsection (b), setting out a series of
time periods within which an action under the section “may be brought or maintained.” 28 U.S.C.
7 The Court also notes that no minimum contacts threshold must be met as to the defendants, either as a matter of
constitutional or customary international law. See Valore, 700 F. Supp. 2d at 70-71 (concluding that neither Iran nor
MOIS, as foreign states, Were protected by the Fifth Amendment’s Due Process Clause and that customary
international law did not come into play because it cannot prevail over a contrary federal statute). Satisfaction of §
1330(b) is all that is required for assertion of personal jurisdiction over defendants
19
§ 1605A(b). This Court has held that § 160_5A’s limitations provision is not jurisdictional See
Worley v. Islamic Republic of Iran, 75 F. Supp. 3d 311, 328-32 (D.D.C. 2014). Nonetheless, the
Court shall briefly explore the matter because it concludes that plaintiffs have complied with the
statute of limitations
Section 1605A(b) provides that an action may be brought “10 years after the date on which
the cause of action arose.” 28 U.S.C. § 1605A(b)(2). The attack giving rise to this action occurred
on August 9, 2001. Plaintiffs’ cause of action arose on that date. Cf Amobi v. D. C. Dep ’t of Corr. ,
755 F.3d 980, 994 (D.C. Cir. 2014) (intemal citation omitted) (holding that under District of
Columbia law, `the statute of limitations usually begins running when a plaintiff “sustains a tortious
injury’.’). Plaintiffs filed their original complaint on July 28, 2011, less than 10 years from the date
their cause of action arose. Although plaintiffs’ claims against Syria and the Syrian`Air Force
Intelligence were severed on November 19, 2014, these claims relate back to plaintiffs initial
complaint ECF l. Therefore, plaintiffs’ claims are timely under § 1605A of the FSIA.
C. FSIA Liability
The state-sponsored terrorism exception provides a private right of action. The action is
available to, among others, nationals of the United States and the legal representatives of such
persons 28 U.S.C. § 1605A(c). Foreign states that meet subsection (a)(2)(A)(i)’s requirements as
state sponsors of terrorism may be held liable under subsection (c). Ia’.
Section 1605A’s private right of action has four basic elements A plaintiff must prove: (1)
“an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act” where (2) the act was committed, or the material
support was provided, by the foreign state or agent of the foreign state, and the act (3) caused
20
personal injury or death (4) “for which the courts of the United States may maintain jurisdiction
under this section for money damages.” Ia’. § 1605A(a)(1), (c).
1. Threshold determination of plaintiffs’ and defendants’ statuses
The Court first determines whether the parties are such that § 1605A(c)’s cause of action
may be pursued.
a. Defena'ants are state sponsors of terrorism
Defendants, for the reasons stated above in Part III.A.2, are state sponsors of terrorism
within the meaning of § 1605A(a)(2)(A)(i) and may be held liable.
b. Entitlement of plaintijfs to bring § l 605A (c) action
All of the plaintiffs may pursue § 1605A(c)’s private right of action. All plaintiffs except
Arnold Roth are citizens of the United States and, therefore, fall within l§ 1605A(c)(1)’s ambit.
Amold Roth, while not himself a United States national, is only before the Court in his capacity
as legal representative of Malka Roth’s estate. Because Malka Roth is a United States national,
Arnold Roth meets § 1605A(c)(4).
c. Stana'ing of estate plaintiffs
Arnold and Frimet Roth seek to recover on behalf of Malka Roth as her personal
representatives for injuries she suffered during life. They must establish their standing before they
may recover for harms suffered during Malka’s life. Taylor v. Islamic Republic of Iran, 811 F.
Supp. 2d 1, 12 (D.D.C. 2011) (noting that “recovery for pain and suffering . . . is not universally
available to estate-plaintiffs”). The determination of whether an estate may maintain a cause of
action for injuries suffered during the decedent’s life is a question “governed by the law of the
state which also governs the creation of the estate.” Ia'. State law governs this issue because it is
21
not related tol the extent and nature of the claims, but instead involves a threshold question
regarding the “power of the estate to bring and maintain legal claims.” Ia'.
Malka Roth’s estate exists under Israeli law. Pls.’ Supp. Mem. Ex. A, Roth v. Islamic
Republic ofIran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (RCL) (D.D.C. Jan. 16,
2015), ECF No. 42-1 [hereinafter Pls.’ Supp. Mem. Ex. A, Roth 1] (Inheritance Order issued by an
Israeli government official demonstrating that Malka Roth’s estate exists in Israel). Israeli
statutory law provides that a deceased tort victim’s right to recover for injuries suffered during life
passes to his or her estate. Civil Wrongs Ordinance (New Version), 5728-1968, § 19, 2 LSI (New
Version) 5 (1972) (as amended) (Isr`.). The Inheritance Order submitted by plaintiffs demonstrates
that Amold and Frimet Roth are Malka’s heirs under Israeli law. Pls.’ Supp. Mem. Ex. A, Roth I.
Thu`s, Amold and Frimet have standing to pursue a survival action on behalf of Malka’s estate.
2. Act
For the reasons stated in part III.A.1.a, the Court finds that the acts giving rise to this case
are of the type for which a foreign state may be held liable under § 1605A(c). Specifically, the
evidence establishes that acts of extrajudicial killing were committed by members of Hamas and
that defendants provided material support in furtherance of those acts
3. Actor
Defendants may only be held liable under § 1605A(c) if the acts of extrajudicial killing
were committed or the provision of material support made by defendants themselves or by their
agents 28 U.S.C. § 1605A(c). The facts found by the Court show that the Syrian Air Force
Intelligence served as a conduit for Syria’s provision of funding to Hamas and its membership
Therefore, Syria itself is treated as having provided material support. See Roea'er, 333 F.3d at 234(holding that the actions of a political subdivision of a foreign state are attributable to the foreign
22
state itself because they are treated as legally the same under the FSIA). Further, Syria provided
safe haven, training, and weapons to Hamas, which constitutes material support.
4. Theory of recovery-causation and injury
The elements of causation and injury under § 1605A(c) require plaintiffs “to prove a theory
of liability” which justifies holding the defendants culpable for the injuries that the plaintiffs have
allegedly suffered. Valore, 700 F. Supp. 2d at 73; see also Rimkus, 750 F. Supp. 2d at 175-76(“[P]laintiffs in § 1605A actions . . . must articulate the justification for such recovery, generally
through the lens of civil tort liability.”). While § 1605A(c) requires courts to determine the
substantive basis for liability arising under it, the Court is not given the authority (or duty) to
articulate “federal common law.” Valore, 700 F. Supp. 2d at 76. Instead, because liability under §
1605A(c) is based on “statutory rights,” federal judges are instructed `to “find the relevant law, not
to make it.” Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). Thus, judges
may not “fashion a complete body of law” in considering claims under § 1605A(c). Id.` Based on
the D.C. Circuit’s guidance, district courts in this jurisdiction “rer on well-established principles
of law, such as those found in the Restatement (Second) of Torts and other leading treatises, as
well as those principles that have been adopted by the majority of state jurisdictions” to define the
elements and scope of these theories of recovery. Oveissi, 879 F. Supp. 2d 44, 54 (D.D.C. 2012)
(quoting In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 61 (D.D.C. 2009)).
Plaintiffs seek to recover economic damages arising from Malka’s wrongful death, survival
damages for her pain and suffering prior to death, and solatium damages for intentional infliction
of emotional distress (IIED). The Court will consider each theory of recovery below.
a. Wrongful death
23
Plaintiffs seek recovery for economic losses accruing to the estate of Malka_Roth. This
Court has previously determined that a decedent’s heirs at law, through the decedent’s estate, may
bring a wrongful death action under § 1605A(c) “for economic losses which result from a
decedent’s premature death.” Valore, 700 F. Supp. 2d at 78 (intemal citation omitted). Where
defendants are liable for a decedent’s extrajudicial killing, as these defendants are, they may be
held “liable for the economic damages caused to decedents’ estates.” Id. Plaintiffs have sufficiently
proved the validity of their wrongful death theory of recovery against defendants
b. Survival action for pain and suffering
Plaintiffs seek damages for Malka Roth’s pain and suffering between the`moment of the
bombing and her death. Thus; plaintiffs are seeking to recover by way of a survival claim on a l
` battery theory. A survival claim is one “that could have been brought by the decedent, had he lived
to bring it.” Valore, 700 F. Supp. 2d at 77 (citing Restatement (Second) of Torts § 926). The
recovery is limited, however, to harms suffered before death, Restatement (Second) of Torts §
926(a).
Liability for battery arises when defendant “acted ‘intending to cause a harmful or
offensive contact with . . . , or an imminent apprehension of such a contact’ by, those attacked and
(2) ‘a harmful contact with’ those attacked ‘directly or indirectly result[ed].”’ Valore, 700 F. Supp.
2d at 77 (alterations in original) (quoting Restatement (Second) of Torts § 13). The Court
concludes that element one has been sufficiently proved, as “acts of terrorism are, by their very
nature, intended to harm and to terrify by instilling fear of further harm.” Id. The second element
is also established because uncontroverted affidavits establish that Malka was killed by the
bombing. Thus, she was met with a “harmful contact.” Plaintiffs have stated a valid theory of
recovery,
24
c. Intentional infliction of emotional distress
Plaintiffs seek to recover solatium damages for defendants’ intentional infliction of
emotional distress Relying principally on the Restatement (Second) of Torts, this Court has set
out the following standard for recovery on a theory of IIED in § 1605A(c) cases: “One who by
extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if bodily harm to the other results
from it, for such bodily harm.” Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20,
26 (D.D.C. 2009) (quoting Restatement (Second) of Torts § 46(1)).
An actor may also be liable for IIED to a party against whom the extreme and outrageous
conduct was not directed if that party is (1) a member of the victim’s immediate family and (2)
was present lat the time of the extreme and outrageous conduct. See Murphy v. Islamic Republic of
Iran, 740 F. Supp. 2d 51, 75 (D.D.C. 2010) (citing Restatement (Second) of Torts § 46(2)(a)). The
“immediate family” requirement is strictly construed in FSIA cases; generally, only spouses,
parents, siblings, and children are entitled to recover. Id. As to the issue of presence, this Court has
previously held that 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.” Valore, 700 F. Supp. 2d at 80. This
is because terrorism is sufficiently extreme and outrageous to demonstrate that it is intended to
inflict severe emotional harm on even those not present at the site of the act. Id.The plaintiffs have stated a valid theory of recovery as to their IIED claims As this Court
has previously held, “[a]cts of terrorism are by their very definition extreme and outrageous and
intended to cause the highest degree of emotional distress.” Murphy, 740 F. Supp. 2d at 74 (quoting
Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)). Uncontroverted affidavits
submitted by plaintiffs demonstrate that such emotional distress did result. Also, the evidence
25
establishes that Syria intentionally provided material support to Hamas, and did so with the intent
that Hamas would carry out attacks that would cause severe emotional distress Finally, plaintiffs
have proved the additional elements of an IIED claim applicable when the claim is based on actions
directed against a third person. Each has established by uncontroverted affidavits that they are
Malka Roth’s immediate family members Further, although the family member plaintiffs do not
allege that they were present at the site of the attack, this requirement is not imposed when the
extreme and outrageous conduct is a terrorist attack such as this
5. Personal injury
For the reasons stated in part III.A.l.a, this suit is one for “person injury or death.” This
element of § 1605A(c)’s private right of action is also met.
6. Jurisdiction
For the reasons laid out above in part III.A.l, the Court “may maintain jurisdiction” over
this suit. In light of plaintiffs’ satisfaction of § 1605A(c)’s requirements the Court concludes that
defendants may be held liable to them on the basis of this statute.
D. Liability Under Non-Federal Law
In Count II of their complaint, plaintiffs plead a wrongful death action arising under both
section 1605A’s private right of action and “state common law.” Section 1605A(c) authorizes
recovery for wronng death, for the reasons set forth above. Plaintiffs can only have one recovery
for their injuries, regardless of the number of theories upon which they base their complaint.
Kassman v. Am. Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1976) (“Where there has been only one
injury, the law confers only one recovery, irrespective of the multiplicity of parties whom or
theories which the plaintiff pursues.”). Because defendants are liable to plaintiffs under § 1605A(c)
and because that subsection explicitly provides for the type of damages that plaintiffs seek in Count
26
II (upon sufficient proof of course), the C_ourt will proceed only on the basis of the § 1605A(c)
claims with respect to Count II. See Belkin, 667 F. Supp. 2d at 22-23 (D.D.C. 2009) (declining to
proceed on two counts of a complaint because, although the complaint pled causes of action under
District of Columbia and Israeli law, the requested damages were duplicative of a wrongful death
count arising under § 1605A(c)).
E. Damages
Having established defendants’ liability for plaintiffs’ injuries, the Court proceeds to
decide the amount of individual damages to which each plaintiff is entitled.
1. Legal standard
Damages available under § 1605A’s cause of action “include economic damages, solatium,
pain and suffering, and punitive damages.” 28 U.S.C.` § 1605A(c). Accordingly, deceased
plaintiffs’ estates can recover economic losses stemming from wrongful death of the decedent;
family members can recover solatium for their emotional injury; and all plaintiffs can recover
punitive damages Valore, 700 F. Supp. 2d at 83. The estate of a deceased victim may also recover
damages for pain and suffering if it can be proved that the decedent experienced pain and suffering
prior to the decedent’s death. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 112 (D.D.C.
2000). Finally, in appropriate cases, plaintiffs may recover prejudgment interest on their
compensatory damages awards Amduso v. Republic of Sudan, 61 F. Supp. 3d 42, 53-54 (D.D.C.
2014), ajj"’d in part, vacated in part sub nom. Owens v. Republic of Sudan, 864 F.3d 751 (D.C.
Cir. 2017).
“To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must
prove that the consequences of the foreign state’s conduct were ‘reasonably certain’ (i.e., more
likely than not) to occur, and must prove the amount of damages by a ‘reasonable estimate’
27
consistent with this [Circuit]’s application of the American rule on damages.” Salazar v. Islamic
Republic of Iran, 370 F. Supp. 2d 105, 115_16 (D.D.C. 2005) (quoting Hill v. Republic of Iraq,
328 F.3d 680, 681 (D.C. Cir. 2003)) (intemal quotation marks omitted). As to the issue of a
reasonable estimate of damages in cases brought under § 1605A, a court may consider prior
damage awards for pain and suffering and solatium as examples for determining an appropriate
award for each plaintiff Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 29 (D.D.C. 2008).
a. Pain and suffering
Assessing appropriate damages for pain and suffering can depend upon a myriad of factors,
such as “the severity of the pain immediately following the injury, the`length of hospitalization,l
and the extent of the impairment that will remain with the victim for the rest of his or her life.”
O’Brien v. Islamic Republic of Iran, 853 F. Supp. 2d 44, 46 (D.D`.C. 2012) (intemal citation and
quotation marks omitted). Plaintiffs who were killed in the attack giving rise to the cause of action
cannot receive an award for pain and suffering if their death was instantaneous Elahi v. Islamic
Republic of Iran, 124 F. Supp. 2d 97, 112 (D.D.C.~ 2000). Also, a court must refuse to award
damages for pain and suffering if the plaintiff is unable to prove that the decedent consciously
experienced the time between an attack and his or her death. Estate of Botvin, 873 F. Supp. 2d at
244.
b. Economic loss
Economic loss damages can be recovered pursuant to § 1605A(c). Such damages may be
proven by the submission of a forensic economist’s expert report. Belkin, 667 F. Supp. 2d at 24.
ln considering an award for lost future earnings, the Court shall take account of the reasonableness
and foundation of the assumptions relied upon by the expert. Reed v. Islamic Republic of Iran, 845
F. Supp. 2d 204, 214 (D.D.C. 2012). For example, in Belkin, the court awarded economic damages
28
based on its conclusion that expert testimony before it was based on reasonable assumptions about
the plaintiffs likely earnings if she had survived, including the length of time she would have
worked and received retirement benefits Belkin, 667 F. Supp. 2d at 24.
c. Solatium
Solatium under the FSIA is functionally identical to IIED. Id. at 22. lt is a form of damages
intended to compensate persons for “mental anguish, bereavement and grief that those with a close
personal relationship to a decedent experience . . . as well as the harm caused by the loss of the
decedent[’s] society and comfort.” Oveissi v. Islamic Republic of Iran, 768 F. Supp. 2d 16, 25
(D.D.C`. 2011) (internal citation and quotation marks omitted). Courts may presume`that those in
direct lineal relationships with victims of terrorism‘suffer compensable mental anguish. See Flatow
v.`Islamic Republic of Iran, `999 F. Supp. 1, 30 (D.D.C. 1998) (discussing solatium damages under
the prior version of the statutory state-sponsored terrorism exception to foreign sovereign
immunity). As for siblings, testimony proving a close emotional relationship will usually be
sufficient to sustain an award of solatium damages Id.This Court developed a standardized approach for evaluating IIED claims for solatium
damages in Estate of Heiser, where it surveyed past awards to family members of victims of
terrorism to determine that, based on averages, “[s]pouses typically receive greater damage awards
than parents, who, in tum, typically receive greater awards than siblings.” Estate of Heiser, 466 F.
Supp. 2d at 269. Relying upon its evaluation of past average awards, the Heiser Court articulated
a framework in which parents of deceased victims were awarded approximately $5 million and
siblings received $2.5 million. Id.; see also Valore, 700 F. Supp. 2d at 85 (observing that this
framework has been adopted by other courts as an appropriate measure of solatium damages for
the family members of victims of state-sponsored terror).
29
In applying_this framework, however, courts must be wary that “[t]hese numbers . . . are
not set in stone,” Murphy, 740 F. Supp. 2d at 79, and that deviations may be Warranted when, for
example, “evidence establish[es] an especially close relationship between the plaintiff and
decedent, particularly in comparison to the normal interactions to be expected given the familial
relationship; medical proof of severe pain, grief or suffering on behalf of the claimant [is
presented]; and circumstances surrounding the terrorist attack [rendered] the suffering particularly
more acute or agonizing.” Oveissi, 768 F. Supp. 2d at 26-27.
d. Punitive damages
Punitive damages are explicitly made available under § 1605A’s cause of action to punish
and deter foreign states from engaging in or materially supporting terrorism. See Bodoffv. Islamic
Republic `0flran, 907 F. Supp. 2d 93, 105 (D.D.C. 2012). F our factors are relevant in deciding the
level of punitive damages appropriate in a given case: “( 1) the character of the defendants’ act, (2)
the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3)
the need for deterrence, and (4) the wealth of the defendants.” Id. (intemal citation omitted). One
additional factor is relevant: in situations where punitive damages have been awarded repeatedly
against a defendant for the same conduct in a series of lawsuits, the Court should consider whether
to limit such damages so as not to over-punish that defendant for that particular conduct. See
Murphy, 740 F. Supp. 2d at 81. In cases where this factor has been salient, the Court has tied
punitive damages to compensatory damages by applying a multiplier to the amount of
compensatory damages awarded. Id. at 81~83. The Court has also tied punitive damages to
compensatory damages by applying a multiplier to the amount of compensatory damages awarded
when the plaintiff in a case has not presented evidence relating to a country’s actual expenditures
30
on terrorist activities See Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 49*51 (D.D.C.
2012).
As to the factors relating to the need for deterrence and the wealth of the defendants this
Court has repeatedly adopted a method for calculating an appropriate amount of damages based
on the magnitude of the defendant’s support for terrorism. The Court has generally considered an
estimate of the defendant state’s annual expenditure in support of terrorist organizations and
applied a multiplier to it, usually between three and five. Haim v. Islamic Republic of Iran, 784 F.
Supp. 2d 1, 13 (D.D.C. 2011). This method is calibrated to produce an award that, while
proportional to a defendant"s acts, is large enough to `have a deterrent effect on the foreign state.
Estate of Heiser, 659 F. Supp. 2d at 30-31.8 _
e. Prejudgment interest
Whether to award prejudgment interest is a matter committed to the discretion of the court,
subject to equitable considerations Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir.
1997). Prejudgment interest may be awarded on compensatory damages but there are limitations
on when such awards are appropriate. First, prejudgment interest should not be added to economic
loss damages when such awards are already discounted to present value because this would result
in double counting of the interest multiplier. Amduso, 61 F. Supp. 3d at 53-54. Also, this Court
has consistently declined to award prejudgment interest on solatium damage awards calculated
according to the Heiser framework outlined above. Oveissi, 879 F. Supp. 2d at 58-59. This is
8 This method of calculating punitive damages in § 1605A cases remains valid, despite recent Supreme Court
precedent strengthening constitutional protections against large punitive damage awards, because “foreign sovereigns
cannot use the constitutional constraints of the Fifth Amendment due process clause to shield themselves from large
punitive damages awards.” Bodo/f, 907 F. Supp. 2d at 106. Also, the Supreme Court’s punitive damages
jurisprudence in the field of maritime law_articulated in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)_need
not and should not be extended to change the method for calculating punitive damages in FSIA cases See Beer v.
Islamic Republic of Iran, 789 F. Supp. 2d 14, 22-26 (D.D.C. 2011) (extensively discussing the issue and providing
three independent reasons for not extending the Supreme Court’s Exxon decision to cover § 1605A suits).
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because the Heiser framework represents a calculation of the appropriate level of compensation,
regardless of an attack’s timing. Id.
2. Application
The Court begins by considering the threshold issue of whether defendants’ actions were
reasonably certain to cause the consequences complained of. All damages in this case spring from
Malka Roth’s death and the pain and suffering her family experienced as a result. Such
consequences were “reasonably certain” to occur as a result of defendants’ material support of
Hamas’ terrorist activities Indeed, expert testimony indicates that this fact was clear even to Syria.
Cf Brauri, 228 F. Supp. 3d at 82_83 (citing expert declarations explaining that Syria provided
material support to Hamas, a known terrorist organization, “which has as its goal the targeting of
civilian for acts of terror,” and concluding that Syria’s “conduct in supporting Ha`mas was likely,
and intended, to result in injury and death to civilians and to devastate the families of the victims”).
Therefore, the Court will next evaluate each plaintiff s entitlement to an award and the appropriate
amount.
a. Estate of Malka Roth
The estate of Malka Roth seeks damages (1) for her pain and suffering before death and
(2) for economic losses accruing to her estate. This Court analyzed these same issues in Roth I.
The Court concluded that it could not award Malka Roth’s estate any damages for pain and
suffering for the period between the bombing and her death because no evidence was submitted
that Malka was conscious for any period of time between the bombing and her death. Roth I, 78 F.
Supp. 3d at 404~05. The Court did award the estate of Malka Roth an economic loss damages
award of $1,191,019. Id. This Court adopts these findings and conclusions made in Roth l and
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finds that Syria and the Syrian Air Force Intelligence shall be jointly and severally liable for this
judgment
b. Family of Malka Chana Roth
The following members of Malka Roth’s family seek solatium damages for IIED: her
mother Frimet and her siblings Pesia, Rivka, Zvi, Shaya, and Pinchas Again, the Court analyzed
these same issues in Roth I. The Court concluded that these family members sufficiently
demonstrated the sort of personal connection and mental anguish resulting from her death to
support an award of solatium damages Id. at 405-06. The Court determined that it would not make
an upward or downward departure from the normal solatium framework applied in state-sponsored
terrorism cases Id. Accordingly, the Court concluded that “Frimet Roth shall receive $5 million
and five of Malka’s siblings_Pesia, Rivka, Zvi, Shaya, and Pinchas_shall each receive $2.5
million in solatium damages.” Id. at 406. This Court adopts these findings and conclusions made
in Roth 1 and finds that Syria and the Syrian Air Force Intelligence shall be jointly and severally
liable for this judgment
c. Punitive damages
Analysis of the four factors relevant to an award of punitive damages shows that a
substantial award of punitive damages is justified in this case, Regarding the first factor_the
character of the defendants’ acts_defendants’ material support for Hamas’ terrorist activities is
truly awful and worthy of the gravest condemnation The second factor also points to a substantial
award; the harm caused by defendants’ support is among the worst imaginable_the death of an
innocent child and the emotional devastation of her family. Further, the Court has never before
awarded punitive damages against Syria in a case arising out of this incident Thus, the Court finds
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Syria’s acts sufficiently outrageous to justify punitive damages and there is no need to_ reduce the
level of punitive damages in light of prior awards
Although plaintiffs ask the Court to adopt the same punitive damages award against Syria
as was awarded against Iran in Roth I, plaintiffs have not presented evidence related to Syria’s
actual expenditures on terrorist activities Therefore, to the extent that Syria and the Syrian Air
Force Intelligence are severally liable from the judgment issued against Iran and MOIS in Roth I,
the Court will use the compensatory damages value as the multiplicand to determine the punitive
damage award against the present defendants This is the standard that the Court has used in other
cases in which plaintiffs have not presented evidence of `a foreign nation’s actual expenditures on
terrorist activities See Harrison, 882 F. Supp.`2d at 49-51. The multiplier has ranged between
'three and, in exceptional cases, five. See Haim, 784 F.Supp.2d at 13; Valore, 700 F. Supp. 2d at88_89. The Court concludes, based on an analysis of prior cases of this type, that a multiplier of
three is appropriate; plaintiffs have not offered a reason to depart from the usual practice in state
sponsored terrorism cases See, e.g., Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14, 26
(D.D.C. 2011). Therefore, the plaintiffs are entitled to a punitive damages of three times the
compensatory damages to be apportioned according to each plaintiffs share of compensatory
damages The Court awards $18,691,019 in compensatory damages and accordingly awards
$56,073,057 in punitive damages
d. Prejudgment interest
Plaintiffs have requested prejudgment interest The Court concludes, however, that it
cannot award such interest First, the economic loss damages awarded to the estate of Malka Roth
have already been discounted to present value. Pls.’ Mot. Def. J. and Damages Mem. Ex. D, 3,
Roth v. Islamic Republic of Iran et al., 78 F. Supp. 3d 379, Civil Action No. 11-1377 (RCL)
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(D.D.C. Oct. 2, 2014), ECF No. 34-5.' Second, the Court does not award prejudgment interest on
solatium damage awards that are based on the Heiser framework. These rules encompass every
type of compensatory damages the Court is awarding in this case.
V. CoNcLUsroN
For the foregoing reasons, the Court finds that defendants Syria and the Syrian Air Force
Intelligence are jointly and severally liable for the death of Malka Roth and injuries to her family.
The Court in Roth I awarded plaintiffs 818,691,019 in compensatory damages in the proportion
set forth in the Order and Judgment in Roth I. This Court now finds that defendants Syria and the
Syrian Air Force Intelligence are jointly and severally liable for this amount Further, to the extent
that Syria and the Syrian Air Force Intelligence are severally liable, the Court finds that plaintiffs
are awarded $56,073,057 in punitive damages, in the proportions set forth in the Order and
Judgment in Roth I.
SIGNED this 2 Iday of September, 2018.
./zu c. ;£M
U
Royce C. Lamberth
United States District Judge
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