Roth v. Islamic Republic of Iran

651 F.Supp.3d 65

Zachary Carl ROTH, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, Defendant.

Case No. 1:19-cv-02179-TNM

United States District Court, District of Columbia

Signed January 17, 2023

Bradley M. Lakin, SL Chapman LLC, St. Louis, MO, for Plaintiffs.

MEMORANDUM OPINION^*

TREVOR N. McFADDEN, UNITED STATES DISTRICT JUDGE

This civil action for compensatory and punitive damages arises under the terrorism exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A. Plaintiffs sue the Islamic Republic of Iran for personal injury and solatium damages. They allege that Iran provided material support and resources to multiple terrorist organizations in Iraq and Afghanistan that perpetrated various attacks injuring them or their family members.

Iran did not respond, and Plaintiffs now move for default judgment as to liability.¹ The Court finds that Plaintiffs have successfully established personal and subject matter jurisdiction under § 1605A for most alleged attacks. And Plaintiffs have proven that Iran committed assault, battery, and intentional infliction of emotional distress. Plaintiff GG, however, has not provided the Court with enough evidence to assure it that Iran proximately caused one of the two attacks in which he was injured. The Court will therefore grant Plaintiffs' motion for default judgment in large part but will deny it as to that one attack.

I. BACKGROUND

At issue are 26 attacks that occurred in Iraq and Afghanistan between 2003 and 2013. See Exp. Witness Rep. of Michael Pregent (Pregent Rep.) at 22-33, 35-37, ECF No. 91-2. Plaintiffs allege that so-called Shia Special Groups and al-Qaeda in Iraq and the Taliban in Afghanistan committed the attacks with Iranian "material support and resources." See Third Am. Compl. (Compl.) ¶¶ 17-46. The Foreign Sovereign Immunities Act (FSIA) "establishes a general rule granting foreign sovereigns immunity from the jurisdiction of United States courts . . . [but] that grant of immunity is subject to a number of exceptions." Mohammadi v. Islamic Repub. of Iran, 782 F.3d 9, 13-14 (D.C. Cir. 2015). One of these exceptions, known as the "terrorism exception," waives sovereign immunity for countries that provide material support to terrorist organizations. See 28 U.S.C. § 1605A. Plaintiffs bring their case under this exception. See Compl. ¶ 1.

Because Iran did not respond, Plaintiffs move for default judgment. Before the Court can enter default judgment, Plaintiffs must establish subject matter and personal jurisdiction. See Jerez v. Repub. of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014). Section 1605A provides a mechanism for Plaintiffs to show both types of jurisdiction over a non-responsive foreign sovereign. The Court's analysis thus focuses on whether Plaintiffs have properly pled all elements of a claim under § 1605A. To do this, Plaintiffs must identify the terrorist groups responsible for the attacks and show that Iran supported them.

Plaintiffs do this in two ways. First, they provide expert testimony. Plaintiffs' expert, former U.S. intelligence officer Michael Pregent, submitted a report and testified at an evidentiary hearing. See generally Pregent Rep.; Tr. of Evidentiary Hr'g (Hr'g Tr.), ECF 102. At that hearing, the Court recognized Pregent as an expert within the field of military intelligence, terrorism, and counterterrorism under Federal Rule of Evidence 702. See Hr'g Tr. at 19. Pregent has submitted reports and testified in three other FSIA cases in this district involving Iran and provided declarations in two others related to Yemen. See Hr'g Tr. at 12-13; see also, e.g., Frost v. Islamic Repub. of Iran, 383 F. Supp. 3d 33, 38 (D.D.C. 2019) (qualifying Pregent as an expert on "Iranian influence in Iraq"); Karcher v. Islamic Repub. of Iran, 396 F. Supp. 3d 12, 19 (D.D.C. 2019) (qualifying Pregent to testify "regarding 'intelligence matters, including attribution of terror attacks and also evidence collection and analysis in the intelligence field' "). In FSIA cases, expert testimony is often sufficient for plaintiffs to meet their burden because "firsthand evidence and eyewitness testimony is difficult or impossible to obtain from an absent and likely hostile sovereign." Owens v. Repub. of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017), vacated and remanded sub nom. Opati v. Repub. of Sudan, — U.S. —, 140 S. Ct. 1601, 206 L.Ed.2d 904 (2020).

Second, Plaintiffs ask the Court to take judicial notice of prior decisions by courts in this district that have held Iran responsible under § 1605A on similar facts. See Pls.' Mem. in Supp. of Pls.' Mot. for Default J. (Pls.' Mem.) at 3-4, ECF No. 91. Federal Rule of Evidence 201(b) permits courts to take judicial notice of facts that are "not subject to reasonable dispute" and that are "either (1) generally known within the territorial jurisdiction . . . or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

In FSIA litigation, courts can "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." Rimkus v. Islamic Repub. of Iran, 750 F. Supp. 2d 163, 172 (D.D.C. 2010). The Court therefore takes judicial notice of these cases: Cabrera v. Islamic Repub. of Iran, No. 19-cv-3835, 2022 WL 2817730 (D.D.C. July 19, 2022); Selig v. Islamic Repub. of Iran, 573 F. Supp. 3d 40 (D.D.C. 2021); Fritz v. Islamic Repub. of Iran, 320 F. Supp. 3d 48 (D.D.C. 2018); Frost, 383 F. Supp. 3d 33; Karcher, 396 F. Supp. 3d 12; Karcher v. Islamic Repub. of Iran, No. 16-cv-232, 2021 WL 133507 (D.D.C. Jan. 14, 2021); Lee v. Islamic Repub. of Iran, 518 F.Supp.3d 475 (D.D.C. 2021). This is not to say that the Court automatically accepts all findings or assertions in these prior cases; it merely considers relevant findings from them when evaluating Plaintiffs' burdens here.

The Court assesses this evidence and makes findings of fact before proceeding to its conclusions of law.

II. FINDINGS OF FACT

A. The Beginning of Iran's Support for Terrorism

Modern Iran began with the 1979 revolution. See Karcher, 396 F. Supp. 3d at 22. Ayatollah Khomeini established himself as Supreme Leader and created the Islamic Revolutionary Guard Corps (IRGC) to prevent "backsliding in implementing his vision for an Islamic theocratic government." Id. In Khomeini's vision, the conventional Iranian military would protect Iran's borders while the IRGC "protect[ed] the revolution." Id. Khomeini also established the Quds Force, an arm of the IRGC responsible for its international operations. Id. It "trains, advises and logistically supports terrorist and insurgent movements, and performs related clandestine and covert special operation activities, on behalf of the Iranian government." Lee, 518 F. Supp. 3d at 482. The Quds Force "is responsible to and directed by the Supreme Leader of Iran." Frost, 383 F. Supp. 3d at 39. As Plaintiffs' expert explained, the Quds force is "a hybrid . . . intelligence service and special operations service. And it is one of the most capable entities that the U.S. military has faced." Hr'g Tr. at 8.

One of the terrorist movements the Quds Force supports is Hezbollah, a Lebanese terrorist organization. Hezbollah is the Quds Force's "premier proxy" in the Middle East. Pregent Rep. at 7. "In exchange for Hezbollah's unwavering dedication to Iran and its revolutionary aims, Iran bankrolled, armed, and trained Hezbollah." Lee, 518 F. Supp. 3d at 482. In 2018, experts estimated that "Iran provides Hezbollah with as much as $700 million-$1 billion per year in the form of cash, training, intelligence, and weapons." Fritz, 320 F. Supp. 3d at 60 (cleaned up). "Hezbollah envisions itself as 'the sharp end of the spear, going where Iran tells it to go in defense of . . . Shia Muslims around the world.' " Id. (cleaned up). Hezbollah has carried out multiple attacks on Americans at Iran's behest. See id.

Hezbollah also provided vital support to terrorist groups in Iraq and Afghanistan. Beginning in the early 1990s, al-Qaeda leaders secretly traveled to Iran to meet with Hezbollah. See Pregent Rep. at 7-9. For example, al-Qaeda principal Ayman al-Zawahiri "made a secret visit to Iran to ask for help in al-Qaeda's campaign to overthrow the government of Egypt" in 1991. Id. at 7. At that meeting, al-Zawahiri met with Hezbollah's chief of terrorist operations. See id. The Hezbollah chief persuaded al-Zawahiri that suicide bombings—which al-Qaeda had frowned upon for religious reasons—were "justified [ ] as an appropriate act of a jihad warrior." Id. at 8.

Several years later, Osama bin Laden and other senior al-Qaeda leaders met with Iranian officials and the terrorist operations chief for Hezbollah in Sudan to discuss a terrorism alliance. See id. After the meeting, bin Laden began sending terrorist operatives to train at Hezbollah camps in both Lebanon and Iran. See id. This arrangement continued for a decade. See id. And starting in 1995, the Quds Force began teaching al-Qaeda operatives in Lebanese training camps how to make better explosive devices and other weapons that terrorists would later use in Afghanistan and Iraq. See id. at 9. Iran's Supreme Leader approved of the Iranian Hezbollah terrorist training programs. See id. at 8.

B. Iran's Role in Iraq

Iran's proxies were already active in Iraq when American and coalition forces entered to topple Saddam Hussein. See Lee, 518 F. Supp. 3d at 482. The same month that the United States began its attack, Iran freed many Sunni jihadists that it had been holding captive and sent them to Iraq to battle the U.S. military.² See Pregent Rep. at 9; see also Hr'g Tr. at 26. The Quds Force then provided Abu Musab al-Zarqawi (a Jordanian jihadist leader), with funds and weapons, all while facilitating his safe passage into Iraq to fight the U.S. forces. See Pregent Rep. at 9; see...