DIBENEDETTO et al v. IRANIAN MINISTRY OF INFORMATION AND SECURITY et al
Filing
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MEMORANDUM OPINION regarding Plaintiffs' motion 19 for default judgment as to liability and Plaintiffs' motion 20 for appointment of a special master to recommend damages. Signed by Judge Tanya S. Chutkan on 9/30/2019. (lctsc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID DIBENEDETTO, et al.,
Plaintiffs,
v.
IRANIAN MINISTRY OF
INFORMATION AND SECURITY, et
al.,
Defendants.
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Civil Action No. 16-cv-02429 (TSC)
MEMORANDUM OPINION
Plaintiffs, victims of the 1983 suicide bombing of the U.S. Marine barracks in Beirut,
Lebanon and their immediate family members, have sued Defendants Iranian Ministry of
Information and Security (“MOIS”) and the Islamic Republic of Iran pursuant to the statesponsored terrorism exception of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§§ 1330, 1602 et seq., which provides a federal right of action against foreign states, id.
§ 1605A. (ECF No. 1 (“Compl.”).) Defendants have not answered or otherwise participated in
this litigation, although they were served with summons and a copy of the Complaint on October
18, 2017. The Clerk of the Court therefore declared them in default. (ECF No. 18 (“Clerk’s
Entry of Default”).)
Plaintiffs move, pursuant to Federal Rule of Civil Procedure 55(b), for default judgment
as to liability against Defendants. (ECF No. 19 (“Pls.’ Mot. Default. J.”).) They also move,
pursuant to 28 U.S.C. § 1605A(e)(1), for appointment of Alan L. Balaran as special master to
consider all issues regarding compensatory damages. (ECF No. 20 (“Mot. to Appt. Special
Master”).) For the reasons set forth below, Plaintiffs’ motions are GRANTED.
1
I. BACKGROUND
On October 23, 1983, the United States Marine barracks in Beirut, Lebanon was attacked
by terrorists, resulting in the death of about 421 U.S. servicemen and injuries to many others.
This is not the first case in this court arising out of the 1983 bombing. 1 “Over two days
in March 2003, the Court, [in Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C.
2003)], conducted a bench trial during which it heard testimony from lay and expert witnesses
and received documentary evidence concerning the horrific attack, the grave injuries many
suffered, defendants’ involvement in the bombing, and their support for international terrorism
more broadly.” Fain v. Islamic Republic of Iran, 856 F. Supp. 2d 109, 114 (D.D.C. 2012).
Following the conclusion of that bench trial, the Peterson Court determined,
that it is beyond question that Hezbollah and its agents received massive material
and technical support from the Iranian government . . . . [and] that it is highly
unlikely that this attack could have resulted in such loss of life without the
assistance of regular military forces, such as those of Iran. The Court then
determined, as a legal matter, that MOIS actively participated in the attack and was
“acting as an agent of . . . Iran” when doing so, and thus defendants Iran and MOIS
were “jointly and severally liable to the plaintiffs” for damages.
Id. (internal citations and quotation marks omitted). It then appointed a special master to
determine the appropriate amount of damages. Id.
In moving for default judgment in this case, Plaintiffs ask the court to take
judicial notice of the liability decisions entered in Peterson and Fain, pursuant to Federal
1
See, e.g., Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003); Valore v.
Islamic Republic of Iran, 478 F. Supp. 2d 101 (D.D.C. 2007); In re Islamic Republic of Iran
Terrorism Litig., 659 F. Supp. 2d 31 (D.D.C. 2009); Anderson v. Islamic Republic of Iran, 753 F.
Supp. 2d 68 (D.D.C. 2010); Bland v. Islamic Republic of Iran, 831 F. Supp. 2d 150 (D.D.C.
2011); O’Brien v. Islamic Republic of Iran, 853 F. Supp. 2d 44 (D.D.C. 2012); Davis v. Islamic
Republic of Iran, 882 F. Supp. 2d 7 (D.D.C. 2012); Fain v. Islamic Republic of Iran, 856 F.
Supp. 2d 109 (D.D.C. 2012); Spencer v. Islamic Republic of Iran, 922 F. Supp. 2d 108 (D.D.C.
2013); Worley v. Islamic Republic of Iran, 75 F. Supp. 3d 311 (D.D.C. 2014); Bathiard v.
Islamic Republic of Iran, No. 1:16-CV-1549 (CRC), 2019 WL 3412983 (D.D.C. July 29, 2019).
2
Rule of Evidence 201(b), because all three cases arise out of the same core facts and
circumstances. (Pls.’ Mot. Default J. at 1.)
A court may take judicial notice of facts “not subject to reasonable dispute” where
those facts are either “generally known within the trial court’s territorial jurisdiction” or
“can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). “This ability to take notice of
adjudicative facts extends to judicial notice of court records in related proceedings.”
Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010).
Consequently, in response to “the multiplicity of FSIA-related litigation in this
jurisdiction, Courts in this District have thus frequently taken judicial notice of earlier,
related proceedings.” Id. (collecting cases); see also Bathiard v. Islamic Republic of
Iran, No. 1:16-CV-1549 (CRC), 2019 WL 3412983, at *3 (D.D.C. July 29, 2019)
(collecting cases). And they have done so when the proceedings have taken place in front
of a different judge. See Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186, 191
(D.D.C. 2017) (“Moreover, courts have taken notice of facts found in earlier proceedings
in this District even when those proceedings have taken place in front of a different
judge.”); see also Bathiard, 2019 WL 3412983, at *3 (taking judicial notice of factual
findings from a hearing before another judge).
Having reviewed the pleadings filed in connection with this matter, and the
Peterson and Fain decisions, the court finds it appropriate to take judicial notice here. In
so doing, the court is mindful that although it may bypass “the formality of having that
evidence reproduced,” it must still reach its own independent findings of fact and
conclusions of law in the cases before it. Rimkus, 750 F. Supp. 2d at 172.
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II. FINDINGS OF FACT
Before entering default judgment, in accord with 28 U.S.C. § 1608, a court must ensure
that Plaintiffs have established a right to relief “by evidence satisfactory to the court.” 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.” Rimkus, 750 F. Supp. 2d at 171 (citing Oveissi v. Islamic
Republic of Iran, 498 F. Supp. 2d 268, 272 (D.D.C.2007)). Therefore, in addition to taking
judicial notice, in a FSIA case a court must examine “uncontroverted factual allegations, which
are supported by . . . documentary and affidavit evidence,” as well as testimony and
documentation in the form of affidavits. Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d
68, 74 (D.D.C. 2010) (internal quotation marks and citations omitted).
Taking into consideration the facts established in Plaintiffs’ proffered affidavits as well as
the decisions in Peterson and Fain, the court will make findings of fact. In so doing, the court
does not attempt to replicate the fulsome accounts of the 1983 bombing in earlier decisions, and
instead notes only what is required to support its conclusions of law. 2
A. Plaintiffs
Plaintiff Adam Webb was born in the United States of America and has at all times been
a United States citizen. (ECF No. 19-2 (“Affidavits Pt. 1”) at 1.) On October 23, 1983, he was
serving as a Lance Corporal in the Marine Corps and was stationed in Beirut as a member of the
2
Heeding the D.C. Circuit’s guidance in Maalouf v. Islamic Republic of Iran, the court will not
determine whether Plaintiffs’ action is timely pursuant to the ten-year statute of limitations
prescribed in 28 U.S.C. § 1605A(b). 923 F.3d 1095, 1115 (D.C. Cir. 2019) (“We therefore
conclude that when an entirely absent defendant has forfeited the FSIA terrorism exception’s
statute of limitations, the defense is excluded from the case and may not be raised by the court
sua sponte.”).
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24th Marine Amphibious Unit (“MAU”). (Id.) He was injured physically and emotionally by
the attack. (Id. at 2.) His wife, mother, the estate of his late father, his siblings, and the estate of
his late son are also Plaintiffs in this litigation. (Id. at 3, 10, 20, 39; ECF No. 19-3 (“Affidavits
Pt. 2”) at 17, 32, 48.)
Plaintiff Lorenzo Almanza was born in the United States of America and has at all times
been a United States citizen. (Affidavits Pt. 2 at 4.) On October 23, 1983, he was serving as a
Petty Officer in the Navy and was stationed in Beirut. (Id.) He was injured physically and
emotionally by the attack. (Id. at 5–6.) His mother, siblings, and estate of his late brother are
also Plaintiffs in this litigation. (Id. at 1, 6, 14, 24; Affidavits Pt. 1 at 4, 32.)
Plaintiff Richard Zierhut was born in the United States of America and has at all times
been a United States citizen. (Affidavits Pt. 2 at 27.) On October 23, 1983, he was serving as a
Lance Corporal in the Marine Corps and was stationed in Beirut. (Id.) He was injured
physically and emotionally by the attack. (Id. at 29.)
On October 23, 1983, Steven Forrester was deployed with the United States Marine
Corps in Beirut. (Affidavits Pt. 1 at 7.) He was killed in the bombing. (Id. at 8.) His sister,
Angela Forrester, who was born in the United States of America and has at all times been a
United States citizen, is a Plaintiff in this litigation along with Steven Forrester’s mother,
brother, wife, children, and estate. (Id. at 9, 13, 25, 36; Affidavits Pt. 2 at 7, 10. 45.)
On October 23, 1983, Thomas DiBenedetto was deployed with the United States Marine
Corps in Beirut. (Affidavits Pt. 1 at 16.) He was killed in the bombing. (Id. at 17.) His brother,
David DiBenedetto, who was born in the United States of America and has at all times been a
United States citizen, is a Plaintiff in this litigation along with Thomas DiBenedetto’s estate and
his other siblings. (Id. at 19, 29, 42; Affidavits Pt. 2 at 41.)
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On October 23, 1983, Lex Trahan was deployed with the United States Marine Corps in
Beirut. (Affidavits Pt. 2 at 21.) He was killed in the bombing. (Id. at 22.) His father, Percy
Trahan, who was born in the United States of America and has at all times been a United States
citizen, is a Plaintiff in this litigation along with Lex Trahan’s estate and mother. (Id. at 22, 38.)
On October 23, 1983, Mark Payne was deployed with the United States Marine Corps in
Beirut. (Affidavits Pt. 2 at 35.) He was killed in the bombing. (Id. at 36.) His mother, Sandra
Lainhart, who was born in the United States of America and has at all times been a United States
citizen, is a Plaintiff in this litigation along with Mark Payne’s estate. (Id.)
B. Defendants
Defendant Iran “has been designated a State Sponsor of Terrorism (SST) for providing
support for acts of international terrorism” since January 19, 1984. U.S. Dep’t of State, Fact
Sheet, Designation Of The Islamic Revolutionary Guard Corps (2019),
https://www.state.gov/designation-of-the-islamic-revolutionary-guard-corps; see also Fain, 856
F. Supp. 2d at 116 (“Defendant Iran is a foreign state and has been designated a state sponsor of
terrorism pursuant to section 69(j) of the Export Administration Act of 1979, 50 U.S.C.
§ 2405(j), continuously since January 19, 1984.” (internal quotation marks omitted)).
Defendant MOIS served as Iran’s “intelligence agency” that “acted as a conduit for the
Islamic Republic of Iran’s provision of funds to Hezbollah, [and] provided explosives to
Hezbollah,” and at all relevant times “exercised operational control over Hezbollah.” 3 Peterson,
264 F. Supp. 2d at 53. It was not a “rogue agency.” Id.
3
Hezbollah is a separate entity formed under the auspices of government of Iran. Peterson, 264
F. Supp. 2d at 50. Its primary objective was framed as: “to engage in terrorist activities in
furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran.” Id.
at 51.
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C. The Attack on the Marine Barracks in Beirut, Lebanon
On October 23, 1983, Hezbollah operatives drove an explosive-laden truck into the
Marine barracks in Beiruit. Id. at 56. When the truck reached the center of the barracks, a bomb
detonated. Id. The explosion was “equal to between 15,000 to 21,000 pounds of TNT” and “the
largest non-nuclear explosion that had ever been detonated on the face of the Earth.” Id. The
force ripped locked doors from their doorjambs 256 feet away and the “four-story Marine
barracks was reduced to fifteen feet of rubble.” Id.
At the time of the explosion “the members of the 24th MAU, and the service members
supporting the unit, were clearly non-combatants operating under peacetime rules of
engagement” in Beirut. Id. at 50. As a result of the explosion, 241 service members were killed
and many others were severely injured. Id. at 58.
D. Iranian Involvement in the Attack
Before the attack, MOIS directed the Iranian ambassador to Syria to contact a terrorist
leader and “instruct him to have his group instigate attacks against the multinational coalition in
Lebanon, and ‘to take spectacular action against the United States Marines.’” Id. at 54.
Following MOIS’ directive, the Iranian ambassador to Syria instructed an Iranian Revolutionary
Guard Corp. Officer to attend a meeting with Hezbollah operatives at which the attack on the
Marine barracks was planned. Id. at 54–55.
Iran then provided Hezbollah and its agents with “massive material and technical
support” to assist with the attack on the Marine barracks. Id. at 58. The quantity of bulk form
pentaerythritol tetranitrate, the sophistication of the attack, and “the devastating effect of the
detonation of the charge indicates that it is highly unlikely that this attack could have resulted in
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such loss of life without the assistance of regular military forces, such as those of Iran.” Id. at
56–58.
III. CONCLUSIONS OF LAW
Based on these findings of fact, the court reaches the following conclusions of law:
A. Jurisdiction
“The FSIA provides a basis for asserting jurisdiction over foreign nations in the United
States.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002).
It grants U.S. district courts original jurisdiction, without regard to the amount in controversy,
over any (1) “nonjury civil action” (2) “against a foreign state” for (3) “any claim for relief in
personam,” so long as the state is (4) “not entitled to immunity.” 28 U.S.C. § 1330(a). Here,
each of these requirements is readily met.
First, no party has sought a jury trial in this matter and because this is a FSIA case, they
are not “entitled to [a jury trial] under the Seventh Amendment.” Valore v. Islamic Republic of
Iran, 700 F. Supp. 2d 52, 65 (D.D.C. 2010).
Second, both Defendants—Iran and MOIS—are foreign states. The definition of foreign
state encompasses both a “political subdivision of a foreign state” and any “agency or
instrumentality of a foreign state.” 28 U.S.C. § 1603(a). An agency or instrumentality of a
foreign state is defined as an entity “(1) which is a separate legal person, corporate or otherwise,
and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of
whose shares or other ownership interest is owned by a foreign state or political subdivision
thereof, and (3) which is neither a citizen of a State of the United States . . . nor created under the
laws of any third country.” Id. §§ 1603(a)–(b). Applying these definitions, “courts in this
jurisdiction have been directed to ask whether an entity ‘is an integral part of a foreign state’s
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political structure’; if so, that defendant is treated as a foreign state for FSIA purposes.”
Anderson, 753 F. Supp. 2d at 79 (quoting TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411
F.3d 296, 300 (D.C. Cir. 2005)). Iran clearly satisfies the definition, and MOIS qualifies because
it is “a division of the state of Iran that acted as a conduit for the state’s provision of funds to
terrorist organizations, including Hezbollah.” Anderson, 753 F. Supp. 2d at 79.
Third, as discussed in note 4 infra, the court has personal jurisdiction over Iran and MOIS
as legal persons rather than property. Therefore, this action is appropriately in personam, as
opposed to in rem.
Fourth, Defendants are not entitled to immunity. In fact, under the FSIA terrorism
exception, Defendants waived immunity. The terrorism exception provides that foreign states
shall not be immune in cases in which: (1) “money damages are sought,” (2) “against a foreign
state” for (3) “personal injury or death” that (4) “was caused” (5) “by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or
resources . . . for such an act.” U.S.C. § 1605A(a)(1). Factor one is met because Plaintiffs seek
only monetary damages as relief. (See Compl. ¶ 74.) Factor two is met because, as explained
above, both Iran and MOIS are foreign states. Factor three has been established through the
Complaint, which contains actions for personal injury, and is further supported by affidavits
submitted by the servicemen and their relatives. (See Compl; Affidavits Pt. 1; Affidavits Pt. 2.)
Factor four—causation—has been established through uncontroverted evidence that Iran
controlled, funded, and supported Hezbollah vis-à-vis the MOIS. In addition, both Defendants
participated in the planning and execution of the attack. And the fifth and final factor is met
because the 1983 bombing constituted an extrajudicial killing, and Defendants provided financial
and military assistance to the Hezbollah operatives. See 28 U.S.C. § 1605A(h)(7) (providing that
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extrajudicial killing is defined 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”); 28 U.S.C. § 1605A(h)(3) (providing that
material support is defined as “any property, tangible or intangible . . . expert advice or
assistance . . . weapons, lethal substances, explosives, personnel”).
Thus, the court has jurisdiction over Plaintiffs’ claims; 4 and the claims shall be heard. 5
B. Liability
To prevail on a private right of action under the FSIA, a plaintiff must establish that the
foreign state engaged in “(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
4
The court has personal jurisdiction over each Defendant. Pursuant to 28 U.S.C. § 1330(b),
“[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the
district courts have jurisdiction . . . where service has been made under section 1608 of this title.”
The court has concluded that it has subject matter jurisdiction and Plaintiffs served the
Complaint on Defendants on October 18, 2017, in accordance with the FSIA. (ECF No. 16
(“Return of Service”).)
5
Pursuant to 28 U.S.C. § 1605A(a)(2), the court shall hear a claim if (1) the foreign state was
designated as “a state sponsor of terrorism” at either the time that a terrorist act occurred “or was
so designated as a result of such act,” and “either remains so designated when the claim is filed
. . . or was so designated within the 6-month period before the claim is filed”; (2) the claimant or
victim was, at the time of the incident, a U.S. national, a member of the armed service, a
government employee, or government contractor acting within the scope of the employee’s
employment; and (3) where the act occurred in the foreign state against which the claim has been
brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate. 28
U.S.C. § 1605A(a)(2). Here, “Iran was designated by the U.S. Secretary of State as a sponsor of
terrorism, partially in response to the Beirut bombing.” Fain, 856 F. Supp. 2d at 120
(referencing U.S. Dep’t of State, Determination Pursuant to Section 6(i) of the Export
Administration Act of 1979—Iran, 49 Fed. Reg. 2836, Jan. 23, 1984). And Iran was listed as a
state sponsor of terrorism in both 2016 and 2017. See U.S. Department of State, Country
Reports on Terrorism 2017 (2018); U.S. Department of State, Country Reports on Terrorism
2016 (2017). Further, as established by the affidavits, all Plaintiffs are United States citizens.
Finally, Plaintiffs did not have a duty to arbitrate because the attack occurred in Lebanon and the
suit is against Iran.
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committed, or the provision provided, by the foreign state or an official, employee, or agent of
the foreign state if the act (3) ‘caused’ (4) ‘personal injury or death’ (5) ‘for which courts of the
United States may maintain jurisdiction under this section for money damages.’” Fain, 856 F.
Supp. 2d at 120–21 (quoting 28 U.S.C. §§ 1605A(a)(1) & (c)).
1. Defendants engaged in an extrajudicial killing and provided material support.
Based on the findings of fact above and the detailed, uncontroverted account in Peterson,
the court finds that Defendants are liable for engaging in the October 23, 1983 extrajudicial
killing and for providing material support to the Hezbollah operatives.
The FSIA borrows the definition for the term “extrajudicial killing” from the Torture
Victim Protection Act of 1991, which provides that an extrajudicial killing is “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.”
Torture Victim Protection Act of 1991 § 3(a), 28 U.S.C. § 1350 note. Here, the factual findings
show that Iran used MOIS to control Hezbollah. Peterson, 264 F. Supp. 2d at 53. U.S.
intelligence intercepted a message from MOIS to the Iranian ambassador to Syria instructing the
ambassador to conduct an act against the U.S. Marines, which ultimately led to a meeting in
which the attack on the Marine barracks was planned. Id. at 54–55. There is no evidence that a
court authorized this action. Additionally, “the order to use force against members of an
international peacekeeping force was in direct contravention of civil guarantees recognized as
indispensable to all free and civilized peoples.” Fain, 856 F. Supp. 2d at 121.
With respect to material support, the FSIA provides that “material support or resources”
in the FSIA context will have the same meaning as that prescribed in 18 U.S.C. § 2339A, which
defines material support or resources as:
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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 (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1). Here, “MOIS acted as a conduit for the Islamic Republic of Iran’s
provision of funds to Hezbollah, [and] provided explosives to Hezbollah.” Peterson, 264 F.
Supp. 2d at 53. Further,
the evidence shows that the explosive materials used in the attack were of a type
and grade that would only have been available to the perpetrators of the attack
through direct cooperation of the Iranian government, and that these materials could
only have been used as effectively as they were with military assistance and
training, which was provided by MOIS.
Fain, 856 F. Supp. 2d at 122.
Accordingly, this court finds that Iran and MOIS engaged in an extrajudicial killing and
provided material support or resources to facilitate the killing.
2. Defendants provided provisions and Defendants’ agent committed the
extrajudicial killing.
As discussed above, Defendants supported Hezbollah during the relevant period. With
respect to the 1983 bombing, Hezbollah operatives executed the attack following direct orders
from Defendants; thereby rendering Hezbollah an agent of Defendants. Peterson, 264 F. Supp.
2d at 54–55. “Under such circumstances, [D]efendants may be held vicariously liable for the
extrajudicial killing perpetrated by the bombers.” Fain, 856 F. Supp. 2d at 122.
3. Defendants are liable under several theories of relief.
Plaintiffs seeking relief under § 1605A must submit a theory of liability to justify
recovery. The D.C. Circuit has advised that although the claims presented by plaintiffs under
§ 1605A are federal questions, the court should not “fashion a complete body of federal law,”
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Bettis v. Islamic Republic of Iran, 315 F.3d 325, 332 (D.C. Cir. 2003); therefore, in the FSIA
context, courts in this district rely on “well-established principles of law” in the Restatement
(Second) of Torts, see In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 31,
61 (D.D.C. 2009). The theory of liability in this case, as well as in the preceding litigation on the
Marine barracks attack, is “through the lens of civil tort liability.” See Rimkus, 750 F. Supp. 2d
at 176. Plaintiffs articulate five bases for relief: (i) wrongful death, (ii) survival, (iii) battery, (iv)
assault, and (v) intentional infliction of emotional distress.
i. Wrongful death
Plaintiffs, on behalf of estates, bring wrongful death claims on behalf of Thomas
DiBenedetto, Lex Trahan, Steven Forrester, and Mark Payne. (Compl. ¶¶ 57–60.)
“A decedent’s heirs at law, through the decedent’s estate, may bring a wrongful death
action under section 1605A(c) ‘for economic losses which result from a decedent’s premature
death.’” Worley v. Islamic Republic of Iran, 75 F. Supp. 3d 311, 335 (D.D.C. 2014) (quoting
Valore, 700 F. Supp. 2d at 78). “Where defendants are liable for a decedent’s extrajudicial
killing, . . . they may be held ‘liable for the economic damages caused to decedents’ estates.’”
Id.
Because Defendants are liable for the deaths of Thomas DiBenedetto, Lex Trahan, Steven
Forrester, and Mark Payne arising out of the bombing on the Marine barracks, Plaintiffs have
proven the validity of their wrongful death theory.
ii. Survival
Plaintiffs, on behalf of estates, also allege survival claims on behalf of Thomas
DiBenedetto, Lex Trahan, Steven Forrester, and Mark Payne. (Compl. ¶¶ 61–62.)
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A survival claim is one brought by a decedent’s estate on behalf of the decedent for the
pain and suffering endured after the injury, but before death. See Restatement (Second) of Torts
§ 926. To succeed on a survival claim, a plaintiff must show that the decedent’s death was
“anything but instantaneous.” Valore, 700 F. Supp. 2d at 77.
Therefore, to the extent that Plaintiffs are able to demonstrate to the special master that
Thomas DiBenedetto, Lex Trahan, Steven Forrester, and Mark Payne did not die
instantaneously, they are entitled to recovery. See id. (dismissing survival claim with prejudice
where “special masters who took evidence in the[] cases were unable to conclude that decedents’
deaths were anything but instantaneous”).
iii. Battery
Plaintiffs Adam Webb, Lorenzo Almanza, and Richard Zierhut plead claims of battery
against Defendants. (Compl. ¶¶ 65–67)
To establish liability on the battery claims, each Plaintiff must show that Defendants
acted “intending to cause a harmful or offensive contact . . ., or an imminent apprehension of
such a contact” and “a harmful contact with” those attacked “directly or indirectly
result[ed].” Restatement (Second) of Torts § 13. Harmful contact results when there is “any
physical impairment of the condition of another’s body, or physical pain or illness.” Id. § 15.
As already determined, Defendants intended to cause harmful contact to Plaintiffs when
they directed and aided the attack on the Marine barracks. Indeed, “acts of terrorism, are, by
their very nature, intended to harm and to terrify by instilling fear of such harm.” Valore, 700 F.
Supp. 2d at 77. Therefore, accepting as true Webb, Almanza, and Zierhut’s sworn statements
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that they suffered physical injuries from the attack, (see Affidavits Pt. 1; Affidavits Pt. 2), 6 the
court finds Defendants liable for battery.
iv. Assault
Plaintiffs Adam Webb, Lorenzo Almanza, and Richard Zierhut plead claims of assault
against Defendants. (Compl. ¶¶ 68–70.)
To succeed on a claim of assault, Plaintiffs must establish that Defendants intended to
“cause a harmful or offensive contact with . . ., or an imminent apprehension of such a contact”
and as a result put Plaintiffs in “imminent apprehension.” Restatement (Second) of Torts
§ 21(1).
Here, given the magnitude of the explosion, there is no question that Defendants intended
to injure Plaintiffs and place them in a state of fear. As stated in Fain, “acts of terrorism are, by
their very nature, intended to harm and to terrify by instilling fear of further harm.” 856 F. Supp.
2d at 123. Therefore, accepting as true Webb, Almanza, and Zierhut’s sworn statements that
they were placed in fear and apprehension of harm as a direct result of the attack, (see Affidavits
Pt. 1; Affidavits Pt. 2), 7 the court finds Defendants liable for assault.
6
Adam Webb suffered acromioclavicular joint separation and broken bones in his foot.
(Affidavits Pt. 1 at 2.) Lorenzo Almanza’s injuries included, “fractured left tibia, fractured right
tibia, fractured pelvis, amputated right foot at the metatarsals, right foot drop, fused ankle right
foot, osteomyelitis right tibia, foreign body left eye, hearing loss and tinnitus in right ear.”
(Affidavits Pt. 2 at 5.) Richard Zierhut “suffered permanent physical injuries, including hearing
loss and scars from superficial wounds.” (Id. at 29.)
7
Adam Webb felt the blast in his chest and experienced “the sensation of falling through a tube
or hole”; he suffers from “anxiety, trouble sleeping, and PTSD” and he does not do well in
crowds, in large buildings, or with flash photography. (Affidavits Pt. 1 at 2.) After the
explosion, Lorenzo Almanza woke up buried, and began to panic and yell for help; he still
suffers from severe emotional stress. (Affidavits Pt. 2 at 5–6.) Richard Zierhut was awake when
the explosion occurred and thought the base was “under a full siege” and that they were going to
be “overrun”; he still suffers from “serious emotional injuries, including PTSD.” (Id. at 28–29.)
15
v. Intentional infliction of emotional distress – Survivors and Relatives
1. Survivors
Plaintiffs Adam Webb, Lorenzo Almanza, and Richard Zierhut plead claims of
intentional infliction of emotional distress against Defendants. (Compl. ¶¶ 71–72.)
To succeed on an intentional infliction of emotional distress claim, Plaintiffs must show
that Defendants “by extreme and outrageous conduct intentionally or recklessly cause[d] severe
emotional distress.” Restatement (Second) of Torts § 46(1). In addition, if Plaintiffs
demonstrate that bodily harm resulted from Defendants’ conduct, Defendants are liable for the
resulting emotional distress and subsequent bodily harm. See id.
Those who engage in terrorism endeavor to be extreme and outrageous, thereby instilling
the optimum fear into victims and forcing emotional trauma upon them. See Belkin v. Islamic
Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009) (“Acts of terrorism are by their very
definition extreme and outrageous and intended to cause the highest degree of emotional
distress.”) (citation omitted). The unprecedented bombing of the Marine barracks was patently
extreme and outrageous. Therefore, accepting as true Webb, Almanza, and Zierhut’s sworn
statements that they suffered emotional distress as a direct result of the attack, (see Affidavits Pt.
1; Affidavits Pt. 2), 8 the court finds Defendants liable.
8
In addition to the emotional distress described in note 7 infra, the survivors suffered in the
following ways: Adam Webb turned to alcohol and has battled alcoholism for much of his life;
Lorenzo Almanza feels ashamed of his amputation and becomes “frustrated and angry” over his
limitations; Richard Zierhut suffers substance abuse as a result of his experience in the attack.
(Affidavits Pt. 1 at 2–3; Affidavits Pt. 2 at 5–6, 29–30.)
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2. Relatives
The immediate family members of Mark Payne, Lex Trahan, Steven Forrester, Thomas
DiBenedetto, Adam Webb, Lorenzo Almanza, and Richard Zierhut bring intentional infliction of
emotional distress claims against Defendants. (Compl. ¶¶ 63–64, 73–74.)
As discussed above, a claim of intentional infliction of emotional distress succeeds where
a defendant “by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress.” Restatement (Second) of Torts § 46(1). However, when the conduct is
directed at a third person, the defendant may be liable “if he intentionally or recklessly causes
severe emotional distress (a) to a member of such person’s immediate family who is present at
the time, whether or not such distress results in bodily harm, or (b) to any other person who is
present at the time, if such distress results in bodily harm.” See id. at § 46(2)(a)–(b).
Although none of the Plaintiffs bringing this claim were in Beirut during the attacks,
courts in this district have found that because terrorist attacks are specifically designed to inflict
the most intense form of severe emotional distress via extreme and outrageous conduct, nonpresent plaintiffs can recover if they are a member of the victim’s immediate family. See Valore,
700 F. Supp. 2d at 79–80 (“One therefore 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.”); Roth v.
Islamic Republic of Iran, 78 F. Supp. 3d 379, 400 (D.D.C. 2015) (explaining that presence
requirement is not imposed in terrorism context). This court agrees with earlier decisions finding
that the 1983 Beirut bombing qualifies as an extreme and outrageous act that invokes the theory
of recovery for non-present plaintiffs, see, e.g., Valore, 700 F. Supp. 2d 79–80; therefore,
17
Defendants are liable to the relatives of the survivors and decedents for the mental anguish set
forth in their affidavits. 9
4. Plaintiffs suffered both personal injury and death.
As discussed in Part III.B.3 supra, Plaintiffs have brought an action for claims of
wrongful death, survival, battery, assault, and intentional infliction of emotional distress, which
fulfill the “personal injury or death” requirement.
5. Plaintiffs have established jurisdiction and seek only monetary damages.
As discussed in Part III.A, the court has jurisdiction over Defendants in this action and
Plaintiffs seek only monetary compensation. Accordingly, as all elements required to prove
liability have been met, it is appropriate to hold Defendants liable under the FSIA.
C. Damages
Under the FSIA, Plaintiffs can recover for “economic damages, solatium, pain and
suffering, and punitive damages.” 28 U.S.C. § 1605(A)(c). In obtaining recovery from
Defendants, Plaintiffs “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’ consistent with this [Circuit]’s application of the American rule on
damages.” Roth, 78 F. Supp. 3d at 402.
Although the court has found Defendants liable for the claims brought by Plaintiffs, it
lacks the evidence necessary to calculate damages. The FSIA provides that “[t]he courts of the
United States may appoint special masters to hear damage claims brought under this section.” 28
U.S.C. § 1605A(e)(1). In appointing a special master, “the court must consider the fairness of
9
The court has reviewed the affidavits and found that they support a finding of liability.
However, given the number of relatives and supporting statements, the court will not recount the
statements here.
18
imposing the likely expenses on the parties and must protect against unreasonable expense or
delay.” Fed. R. Civ. Pro. 53(a)(3). Here, there is no concern of either undue expenses for the
parties (special masters are compensated from the Attorney General’s Victims of Crime Fund) or
unreasonable delay (a special master will help to expedite resolution of this claim). Therefore,
the court finds it appropriate to appoint a special master to recommend compensatory damages.
Plaintiffs have moved this court to appoint Alan Balaran, who has submitted the requisite
curriculum vitae and affidavit, to consider all issues related to compensatory damages as to each
of Plaintiffs’ claims. (Mot. to Appt. Special Master.) In addition, Balaran, who has served as a
special master in similar cases involving Iran, has agreed to abide by the Administrative Plan
Governing Special Masters that has been deemed sufficient in similar litigation.
Therefore, pursuant to 28 U.S.C. § 1605A(e)(1), the court will appoint Balaran as special
master and direct him to prepare a report regarding compensatory damages. Upon receipt of the
report regarding compensatory damages, the court will consider the appropriate level of punitive
damages, if any.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for default judgment as to liability and
Plaintiffs’ motion for the appointment of a special master as to compensatory damages are
GRANTED.
A corresponding order shall issue separately.
Date: September 30, 2019
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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