Heching v. Syrian Arab Republic

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NORMAN HECHING et al, Plaintiffs, v. SYRIAN ARAB REPUBLIC, Defendant.

NORMAN HECHING et al, Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.

Civil Action Nos. 17-cv-1192 (TSC), 17-cv-1659 (TSC)

United States District Court, District of Columbia

March 5, 2023

MEMORANDUM OPINION

TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

Plaintiffs are surviving victims, estates of decedent victims, and their family members, who have sued the Syrian Arab Republic (“Syria”) and the Islamic Republic of Iran (“Iran”) in separate actions under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C § 1604, seeking money damages for injuries resulting from a terrorist attack. See Heching v. Syrian Arab Republic, 17-cv-1192, ECF No. 1; Heching v. Islamic Republic of Iran, 17-cv-1659, ECF No. 1.

Plaintiffs filed their case against Syria on June 18, 2017. 17-cv-1192 ECF No. 1. Because Plaintiffs served Syria with the complaint on January 16, 2018, Syria's answer was due on March 17 2018. Return of Service/Aff. of Summons and Compl. Executed to Syrian Arab Republic, 17-cv-1192, ECF No. 15. On August 15, 2017, Plaintiffs filed their action against Iran 17-cv-1659, ECF No. 1. Because Plaintiffs served Iran with the complaint on February 7, 2018, Iran's answer was due on April 8, 2018. Return of Service/Aff. of Summons and Compl. Executed to Islamic Republic of Iran, 17-cv-1659, ECF No. 12.

Syria and Iran have not appeared. See Clerk's Entry of Default as to Syria, 17-cv-1192, ECF No. 17; Clerk's Entry of Default as to Iran, 17-cv-1659, ECF No. 14. Plaintiffs have therefore moved for Entry of Final Judgment by Default and ask the court to: 1) enter judgments on liability against Syria and Iran; 2) refer the calculation of Plaintiffs' damages to a Special Master appointed pursuant to 28 U.S.C. § 1605A(e); and 3) enter Final Judgments by Default after reviewing the Special Master's damages recommendations. See Mot. for Default J. as to Syria, 17-cv-1192, ECF No. 21-1; Mot. for Default J. as to Iran, 17-cv-1659, ECF No. 22-1.^[1]

On January 24, 2022, twenty-one Plaintiffs voluntarily dismissed their claims against Syria and Iran without prejudice. See Notice of Voluntary Dismissal Against Syria, ECF No. 22; Notice of Voluntary Dismissal Against Iran, ECF No. 23. Forty-five Plaintiffs remain in these actions. Based on the findings of fact set forth below, the court will GRANT in part and DENY in part the remaining Plaintiffs' motions.

I. FINDINGS OF FACT

Based on the undisputed evidence before it, the court finds the following facts.

In 1967 a group of individuals who sought to unify Arab regimes in the effort to destroy the State of Israel founded the Popular Front for the Liberation of Palestine (“PFLP”). See Expert Decl. of Dr. Daniel Byman, 17-cv-1192, ECF No. 21-3 at 7. At the time, PFLP “saw itself as a vanguard movement that would mobilize the working classes and wage revolutionary warfare” by engaging in “anti-imperialist guerrilla violence and terrorism.” Id.

On November 18, 2014, the PFLP carried out an attack on congregants at the Bnei Torah Synagogue in Jerusalem, Israel. See 17-cv-1192, ECF No. 21-1 at 2; Expert Decl. of Dr. Matthew Levitt, 17-cv-1192, ECF No. 21-2 at 6. Armed with a handgun and butcher knives, PFLP terrorists “shot and hacked their way through the congregation” while congregants were in the middle of their morning prayers. See 17-cv-1192, ECF No. 21-1 at 2. PFLP terrorists murdered six people, including U.S. citizens Kalman (Cary) Levine, Aryeh Kupinsky, and Mosheh Twersky (together the “Decedent Victims”), and injured numerous others, including U.S. citizens Dr. Norman Heching, Joseph Werfel, David Samuel Salis, Avraham Nefoussi, Akiva Pollack, Saul Goldstein, and his then twelve-year-old son, Mordechai Goldstein (the “Surviving Victims”). Id.

The Surviving Victims suffered serious physical injuries and emotional distress. See Id. at 6-11. Heching was slashed across his back by one of the terrorists. Id. at 5. Another terrorist spotted Saul Goldstein attempting to make a call for help and attacked him with a meat cleaver, severely wounding Goldstein's head and back such that his left ear was “hanging by a thread” and his internal organs were “falling out of his back” as paramedics put him in an ambulance. Id. at 6-7. Meanwhile Goldstein's son crawled across the blood-stained sanctuary floor to safety, leaving his father behind in the chaos. Id. The terrorists placed congregants like Werfel and Salis, as well as emergency medical responders like Nefoussi and Pollack in extreme danger and caused them to fear for their lives. Id. at 5. Following the attack, relatives of those murdered and injured agonized as they awaited news updating them on the status of their loved ones. Id. at 10.

The PFLP leadership has repeatedly and publicly claimed responsibility for the attack, confirming that the perpetrators, Ghassan and Uday Abu Jamal, were PFLP operatives and members of PFLP's armed wing, and that the attack was an official PFLP operation. See Expert Decl. of Arieh Dan Spitzen, 17-cv-01192, ECF No. 21-5 ¶¶ 21-31. Senior PFLP leader Kayed al-Ghoul explained that the synagogue was selected to send the message that the Palestinians “will defend their city with all they have, until Jerusalem will become Arab, until it will become Palestinian,” and that the attack “reinforced Jerusalem's Arab identity, and has thwarted the attempts to Judaize Jerusalem.” Id. at ¶ 23.

Syria and Iran provided material support to PFLP in the years prior to 2014, which enabled the terrorist organization to carry out the attack at the Bnei Torah Synagogue. See 17-cv-1192, ECF No. 21-2 at 36. The PFLP has maintained its headquarters in Syria since 1982. See Expert Decl. of Dr. Daniel Byman, 17-cv-1192, ECF No. 21-3 at 14. “Without a headquarters in Syria, the PFLP leaders would have been far more vulnerable to Israeli raids or arrests by hostile Arab governments.” Id. at 9. In the years leading up to the 2014 attack, Syria offered a sanctuary, enabling PFLP to recruit, plan operations, train its forces, protect its leadership, and otherwise maintain itself. See id. at 18. Likewise, Iran has provided large amounts of financial and military support for the PFLP since at least 2012. See Expert Decl. of Dr. Patrick Clawson, 17-cv-1192, ECF No. 21-4 at ¶¶ 33-36. This support has come directly from the Iranian government and via proxies such as the terrorist organization Hezbollah, which for decades has been used by Iran as a conduit to provide material support, including training to other terrorist groups. See id.

II. CONCLUSIONS OF LAW

a. Burden of Proof

Federal Rule of Civil Procedure 55(b)(2) gives a district court the discretion to enter a default judgment upon a party's motion, but the “entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). “[S]trong policies favor resolution of disputes on their merits,” and therefore “[t]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (internal quotations omitted)). In addition, “the procedural posture of a default does not relieve a federal court of its ‘affirmative obligation' to determine whether it has subject matter jurisdiction over the action,” Cohen v. Islamic Republic of Iran, 238 F.Supp.3d 71, 79 (D.D.C. 2017) (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996)), and “a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6. The party seeking default judgment has the burden of establishing both subject matter and personal jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008).

“Under the FSIA, 28 U.S.C. §§ 1330, 1602-1611, a foreign state is presumptively immune from the jurisdiction of the United States courts; that presumption is overcome only if the plaintiff shows that one of the exceptions to immunity provided in 28 U.S.C. §§ 1605-07 applies.” TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 299 (D.C. Cir. 2005) (internal quotations and citation omitted). To obtain a default judgment against a defendant under the FSIA, a plaintiff must establish their claim “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Thus, the court “may not unquestioningly accept a complaint's unsupported allegations as true,” Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 211 (D.D.C. 2012), but “[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true.” Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016).

In addition, 28 U.S.C. “§ 1608(e) does not require the court to demand more or different evidence than it would ordinarily receive; indeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required.” Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (emphasis added) (internal quotations omitted); see also Han Kim v Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014) (“when the defendant State fails to appear and the plaintiff seeks a default judgment, the FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide”). An evidentiary hearing is not required, as a “plaintiff may establish proof by affidavit.” Reed, 845 F.Supp.2d at 211; see also, e.g., Bluth v. Islamic Republic of Iran, 203 F.Supp.3d 1, 16-17 (D.D.C. 2016) (explaining that an evidentiary hearing is not required...