Mueller v. Syrian Arab Republic

656 F.Supp.3d 58

Richard Carl MUELLER, et al., Plaintiffs, v. SYRIAN ARAB REPUBLIC, Defendant.

Civil Action No. 1:18-cv-01229 (CJN)

United States District Court, District of Columbia

Signed January 31, 2023

Edward B. MacAllister, Emily Amick, Steven Robert Perles, Perles Law Firm, PC, Washington, DC, Joshua K. Perles, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge

Kayla Mueller, an American humanitarian aid worker, was kidnapped, tortured, and executed by ISIS. Plaintiffs here are her mother, father, and brother. Claiming that the Syrian Arab Republic was responsible for Kayla's injuries and death, they sued Syria under the state-sponsored terrorism exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1330, 1602 et seq. Plaintiffs served Syria by diplomatic channels, 28 U.S.C. § 1608(a)(4), and Syria subsequently failed to appear, id. § 1608(d). Plaintiffs therefore now move for default judgment as to liability. See Pls. Mot. for Def. J. as to Liability ("Mot."), ECF. No. 28. The Court agrees that Plaintiffs have demonstrated most of the elements of their claims, but before the Court can grant that motion, Plaintiffs must submit further briefing on their tort theories of liability.

I. Procedural History

Between August 2014 and February 2015, three American hostages—James Foley, Steven Sotloff, and Kayla Mueller—were killed by ISIS. Sotloff's family was the first to sue Syria in this district, claiming in March 2016 that Syria was responsible for Sotloff's hostage taking, torture, and extrajudicial killing under the terrorism exception to the FSIA. Sotloff v. Syrian Arab Republic, 525 F. Supp. 3d 121, 132 (D.D.C. 2021). Likewise, in July 2018, Foley's family "sued Syria for Foley's hostage taking, torture, and extrajudicial killing under the terrorist exception to the FSIA." Id. Those two actions were consolidated in September 2018 (hereinafter the Sotloff proceedings), and "Syria did not respond to either complaint or otherwise appear." Id. The Clerk of Court entered default against Syria in January 2019, and later that year, the plaintiffs in those proceedings moved for default judgment. Id. at 132-33. The Court granted the plaintiffs' motion in March 2021. See generally id.

This case also followed. Plaintiffs Robert Carl Mueller and Marsha Jean Mueller are Kayla's father and mother; they are suing both in their personal capacities and in their capacities as the co-personal representatives of Kayla's estate. See Compl., ECF No. 1, at ¶¶ 7-8. Eric Robert Mueller, Kayla's brother, is suing in his personal capacity only. Id. at ¶ 9. Their Complaint alleges wrongful death, battery, assault, false imprisonment and kidnapping, intentional infliction of emotional distress, survival damages conspiracy, aiding and abetting, and punitive damages. See generally id.

The Muellers served Syria through the Department of State's diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). See ECF No. 16. The diplomatic notes were served on November 12, 2018. Id. at 6. Syria thus had until January 11, 2019, to respond to the Complaint, 28 U.S.C. § 1608(d), but it failed to do so. The Clerk of the Court therefore entered default on the Muellers' behalf, ECF No. 19, and the Muellers then moved for entry of a default judgment against Syria as to liability. See generally Mot.; 28 U.S.C. § 1608(e).

Before entering default judgment in the Sotloff proceedings, Judge Timothy Kelly held a two-day evidentiary hearing in June 2020. See Sotloff, 525 F. Supp. 3d at 133. Two experts testified. Id. "The first expert, Dr. Daveed Gartenstein-Ross, is an anti-terrorism scholar and author who has worked, in various capacities, on issues related to violent non-state actors for over a decade." Id. "The Court qualified him as an expert on violent non-state actors generally, ISIS's evolution from its predecessor organizations, and ISIS's material supporters." Id. "The second, Dr. Matthew Levitt, is director of the counterterrorism and intelligence program at the Washington Institute, a think tank dedicated to U.S. policy in the Middle East." Id. "The Court qualified him as an expert on the Syrian government's relationship with ISIS's predecessor organizations and ISIS itself between 2010 and 2015." This testimony is relevant to the current proceedings because the Muellers have asked this Court to take judicial notice of the experts' testimony in the Sotloff matter as evidence in this action. See infra at 64-65.

II. Facts

The FSIA does not permit the ministerial entry of a default judgment. Instead, the Court must evaluate the evidence to ensure that Plaintiffs have "establish[ed] [their] claim[s] or right[s] to relief by evidence satisfactory to the [C]ourt." See 28 U.S.C. § 1608(e). "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." Memorandum Op., Encinas v. Islamic Republic of Iran, No. 18-cv-02568, at 3 (D.D.C. Feb. 28, 2022) (quotation omitted).

The Court may look to various sources of evidence to satisfy this statutory obligation, including testimony, documents, and affidavits. See id. "And a FSIA court may take judicial notice of related proceedings and records in cases before the same court." Id. (quotation omitted). Here, the Muellers rely on judicial notice of related proceedings and records, declarations, affidavits, two expert reports, government reports and press releases, ISIS's ransom emails, and public remarks made by U.S. officials. See Exhibits 1-33, ECF Nos. 28-1-38.

The first expert report provides Dr. Gartenstein-Ross's opinion "on the evolution of the Islamic State . . . through the time of Kayla Mueller's death; on ISIS's responsibility for the death of Kayla Mueller; on the conditions that Mueller faced while held captive by the militant group; and on the Syrian Arab Republic's relationship with ISIS." Exhibit 1, ECF No. 28-1, at 3 ("Gartenstein-Ross Report"). Dr. Gartenstein-Ross testified on similar matters before Judge Kelly in the Sotloff proceedings, see Sotloff v. Syrian Arab Republic, 16-cv-724, ECF No. 41 (D.D.C. June 10, 2020) ("Kelly Hr'g Tr. Day 1"), and the Muellers have asked the Court to take judicial notice of that testimony. See Mueller, No. 18-cv-1229, ECF No. 29 at 2 (Proposed Findings of Fact and Conclusions of Law).

The second expert report provides Dr. Levitt's opinion on Syria's support of ISIS and its precursors. Exhibit 2, ECF No. 28-2, at 1 ("Levitt Report"). Dr. Levitt also testified on similar matters before Judge Kelly in the Sotloff proceedings, see Kelly Hr'g Tr. Day 1; Sotloff, ECF No. 42 ("Kelly Hr'g Tr. Day 2"), and the Muellers have asked the Court to also take judicial notice of that testimony, see Mueller, No. 18-cv-1229, ECF No. 29 at 2.

A. Judicial Notice of Evidence Produced in Prior Proceedings

"This Court may take judicial notice of facts 'not subject to reasonable dispute' if they are 'generally known within the [Court's] territorial jurisdiction' or 'can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.' " Encinas, supra, at 4 (quoting Fed. R. Evid. 201(b)). This rule permits taking "judicial notice of related proceedings and records in cases before the same court." Fain v. Islamic Republic of Iran, 856 F. Supp. 2d 109, 115 (D.D.C. 2012) (quotation omitted). "Because of the multiplicity of FSIA-related litigation, courts in this District have frequently taken judicial notice of earlier, related proceedings." Id.

As many judges on this Court have recognized, "evidentiary problems lurk when taking judicial notice of another court's factual findings in a different case." Encinas, supra, at 4. "Such findings are a court's attempt to determine what happened; they are not a first-hand account of the actual events." Id. "As such, they constitute hearsay, and thus are considered inadmissible." Fain, 856 F. Supp. 2d at 116.

But courts in FSIA actions "must be mindful that the statutory obligation found in [28 U.S.C.] § 1608(e) was not designed to impose the onerous burden of re-litigating key facts in related cases arising out of the same terrorist attack." Rimkus v. Islamic Republic of Iran, 750 F. Supp 2d 163, 172 (D.D.C. 2010). And as Judge Lamberth concluded in Rimkus, "courts in FSIA litigation have adopted a middle-ground approach that permits courts in subsequent related cases to rely on 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. "This is permissible because the validity of judicial records is generally 'not subject to reasonable dispute,' and such records are perfectly capable of establishing the type and substance of evidence that was presented to earlier courts." Id. (citing Fed. R. Evid. 201(b)). The Court agrees, and so will make its own findings of fact while relying on evidence presented in earlier, but related, cases. See Encinas, supra, at 4-5.

B. Findings of Fact

Based on the evidence presented to the Court and the testimonial evidence in the Sotloff proceedings, the Court makes the following findings of fact.

1. The Rise of ISIS

"Syria has provided safe haven and support to terrorist organizations within its borders for decades." Sotloff, 525 F. Supp. 3d at 127. One such group is the Zarqawi organization, a militant group that originated in the 1990s and—after several name changes—evolved into what we now know as the "Islamic State of Iraq and al-Sham," or "ISIS." Gartenstein-Ross Report at 13. This section includes the Court's findings regarding the history of the Zarqawi organization and its ties to the Syrian government, relying primarily on the expert report of Dr. Gartenstein-Ross. See id. at 13-23, 44-73.

The namesake of the Zarqawi organization is "Ahmed...