Wachsman ex rel. Wachsman v. Islamic Rep. of Iran, Civil Action No. 06-0351 (RMU).

537 F.Supp.2d 85

Esther WACHSMAN ex rel. Nachshon WACHSMAN et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN et al., Defendants.

Civil Action No. 06-0351 (RMU).

United States District Court, District of Columbia.

February 28, 2008.

COPYRIGHT MATERIAL OMITTED

Emil Hirsch, Paul L. Knight, O'Connor & Hannan, LLP, Washington, DC, for Plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

In October 1994, members of the terrorist group Hamas abducted and executed Nachshon Wachsman, a 19-year-old U.S. citizen residing in Israel. Esther Wachsman, the mother of Nachshon Wachsman, individually and as a Personal Representative of the decedent's estate, along with her sons Menashe Yecheskel Wachsman, Yitzchak Shlomo Wachsman, Uriel Wachsman, Raphael Wachsman, Eliahu Wachsman and Chaim Zvi Wachsman bring suit against the Islamic Republic of Iran and the Iranian Ministry of Information and Security for the death of Nachshon. The plaintiffs allege that the defendants are responsible because they provided training and support to Hamas. Pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq., and the common and statutory law of the District of Columbia and Israel, the plaintiffs seek compensatory damages, prejudgment interest and costs of bringing the action.

Because the defendants failed to appear or respond to the plaintiffs' complaint, the Clerk of the Court entered default against them. The plaintiffs then filed a motion for default judgment, and the court ordered them to submit evidence supporting their claims. Based on a review of this evidence, the court makes the following findings of fact and conclusions of law and denies, without prejudice, the plaintiffs' motion for default judgment.

II. FINDINGS OF FACT

A. Procedural History

1. The plaintiffs filed suit against the defendants on February 28, 2008. Despite being properly served with process pursuant to 28 U.S.C. § 1608, the defendants failed to respond or appear in the case.

The Clerk of the Court entered default against the defendants on July 6, 2007.

3. The court must undertake a review of the evidence before it can enter a judgment by default against the defendants. See 28 U.S.C. § 1608(e) (requiring a claimant to "establish[] his claim or right to relief by evidence satisfactory to the court"); see also Int'l Road Fed'n v. Embassy of the Democratic Republic of the Congo, 131 F.Supp.2d 248, 252 n. 4 (D.D.C. 2001) ("accept[ing] as true plaintiffs' uncontroverted factual allegations, which are supported by the documentary and affidavit evidence") (internal quotations and citations omitted). Accordingly, the court ordered the plaintiffs, "in support of their motion for default judgment, to submit evidence through prior sworn testimony and affidavits." Minute Order (Aug. 27, 2007).

4. After the court granted a five-week extension of time, Minute Order (Oct. 19, 2007), the plaintiffs submitted their proposed findings of fact and conclusions of law with accompanying evidentiary support on November 30, 2007.

B. The Abduction and Execution

5. On October 9, 1994, as Nachshon waited on the side of the road for a ride to visit a friend, four members of Hamas, Salah A-Din Hassan Salem Jadallah, Hassan Natshe, Abd El Karim Yassin Bader and Jihad Ya'amur, abducted the decedent from a public street near Lod, Israel. Pls.' Proposed Findings of Fact and Conclusions of Law ("Pls.' Mem."), Ex. 3(a) ("Shay Aff.") at 4-5.¹

6. Three of the abductors — Jadallah, Natshe and Bader — were already wanted by Israeli security forces for prior acts of terrorism. Shay Aff. at 5-6. These three individuals recruited Ya'amur, who was not previously known to Israeli security, to provide logistical support, which included securing black hats and yarmulkes to wear as disguises and renting video equipment, a van with Israeli license plates, and a safe house where Nachshon would be held. Id.; Pls.' Mem., Ex. 7(b).

7. The abductors spotted Nachshon on the side of the road and with the disguises were able to lure him into the van. Shay Aff. at 6. Once in the van, the abductors overpowered, blindfolded and handcuffed Nachshon and drove him to the safe house in Bir Naballah. Id.

8. Shortly thereafter, the abductors made a video tape in which Nachshon's identification card and M-16 rifle, issued by the Israeli army, could be seen. Id. at 7. In the video tape the abductors also listed their demands — release of members of Hamas, the Palestinian Liberation Organization, the Islamic Jihad, the Popular Front for the Liberation of Palestine and all Palestinian women prisoners — and stated that these demands must be met by October 14, 1994 at 9:00 pm or they would execute Nachshon. Id. at 6-7, 10; Pls.' Mem., Ex. 5(a). These demands indicate collaboration between Hamas, Hizballah and Iran to achieve common goals. Shay Aff. at 26.

9 On October 10, 1994, Hamas took responsibility for the abduction and delivered copies of their demands to the media. Id. at 7 & Exs. 5(c), 4 at 4.

10. Three days later Israeli security forces arrested Ya'amur, one of the abductors. Id. at 9. During his interrogation, Ya'amur provided Israeli security forces with the location of the safe house where Nachshon was being held. Id.

11. The following day, on October 14, 1994, shortly before the 9:00 pm deadline, an Israeli commando unit raided the safe house. Id. at 9. A fire fight ensued during which one Israeli soldier and the three remaining abductors were killed. Id.

12. After the fire fight, the Israeli commandos found Nachshon dead in a back room with his hands and legs bound. Id. The abductors had shot him several times at close range, as the Israeli soldiers were raiding the house. Id.

13. Pictures of Nachshon's body² indicate that his abductors bit him prior to his execution. Id. at 9; Pls.' Mem., Exs. 7(k)-(s). Bite marks appear on Nachshon's arm and back, while "soot marks" appear on his abdomen along with several "shallow" wounds. Pls.' Mem., Exs. 6(b), 7(k)-(s). Additional bullet wounds, or other traumatic injury, appear on his arm, neck, shoulder, back and head. Id.

C. The Relationship Between Iran and Hamas

14. Hamas, an Islamic militant terrorist organization, has a close relationship with Iran. Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 291 (D.D.C.2003); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 262 (D.D.C.2003). Iran's official policy is to support terrorism and to provide support to Hamas through both economic assistance and terrorist training. Stern, 271 F.Supp.2d at 292; Campuzano, 281 F.Supp.2d at 262; Shay Aff. at 12 (stating that "[s]ince the beginning of 1980, Iran has appeared on the list of states that support terror, compiled by the U.S. State Department"). Iran funnels its financial support through its Ministry of Information and Security and provides professional military and terrorist training through its Revolutionary 19. Guard. Stern, 271 F.Supp.2d at 292; Campuzano, 281 F.Supp.2d at 262.

15. Dr. Shaul Shay, an expert in Islamic terrorism, reports that in 1992, Israel deported approximately 400 Hamas operatives living in the Gaza Strip. Shay Aff. at 11, 20. Israel deported these operatives to Lebanon where Iran, through its Revolutionary 20. Guard, provided military and terrorist training. Id. Only after receiving such training did Hamas begin targeting Israelis in suicide bombings and other organized acts of terrorism. Id. at 18, 21; Stern, 271 F.Supp.2d at 291.

16. Indeed, upon returning to Gaza at the end of 1993, several of these former deportees were instrumental in the abduction and execution of Nachshon Wachsman. Id. at 20. These individuals included Muhammad Dif, the commander of the Hamas military branch in Gaza who led the negotiations with Israel and Nur a din Salah a din Rada Darawza, one of the commanders of the abduction team. Id. at 8, 10.

17. Another former deportee, Imam Jadallah Jadallah had two sons who were involved in the kidnapping. They were Salah Jadallah, who was killed during the raid on the safe house, and Ahmad Jadallah, who helped prepare the video cassette of Nachshon in Gaza. Id. at 5, 9-11.

18. Iran's financial support, tactical training and political direction proximately caused the abduction and execution of Nachshon.

D. The Plaintiffs

19. Esther Wachsman is the mother of the decedent, Nachshon Wachsman. She is, and was at the time of Nachshon's abduction and execution, a citizen of the United States. Pls.' Mem., Ex. 1(a). She is also representative of the decedent's estate and the mother of the co-plaintiffs. Id., Ex. 2.

20. These co-plaintiffs — Menashe Yecheskel Wachsman, Yitzchak Shlomo Wachsman, Uriel Wachsman, Raphael Wachsman, Eliahu Wachsman and Chaim Zvi Wachsman — are, and were at the time of Nachshon's abduction and execution, citizens of the United States and of Israel. Id. at 3, Exs. 1(b)-(g).

21. Nachshon Wachsman was born on April 3, 1975 in Jerusalem, Israel, but was a citizen of the United States. Id., Ex. 1(h). At 18-years-old, Nachshon began his three year commitment to the Israeli Defense Forces. He was assigned to the Golani Brigade and was a Corporal at the time of his death.

III. CONCLUSIONS OF LAW

A. Jurisdiction

1. Legal Standard for a Default Judgment

A court shall not enter a default judgment against a foreign state "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C.Cir.2003). This "satisfactory to the court" standard is identical to the standard for entry of default judgments against the United States in Federal Rule of Civil Procedure 55(e).³ Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In evaluating the plaintiffs' proof, the court may "accept as true the plaintiffs' uncontroverted evidence," Elahi...