Weinstock et al v. The Islamic Republic of Iran et al
Filing
52
Final Default Judgment. ORDER granting 39 Motion for Default Judgment. Signed by Judge Robert N. Scola, Jr on 4/4/2019. See attached document for full details. (kpe)
United States District Court
for the
Southern District of Florida
Sharon Weinstock, et al.,
Plaintiffs,
v.
Islamic Republic of Iran,
Defendant.
)
)
)
) Civil Action No. 17-23272-Civ-Scola
)
)
)
Final Default Judgment
This cause comes before the Court on Plaintiffs’ Motion for Default
Judgment with Incorporated Memorandum of Law filed on November 6, 2018
(the “Motion”). Defendant, Iran has failed to file an answer or otherwise defend,
and on June 12, 2018, the clerk entered default (ECF No. 25). The Court has
considered the allegations of the Complaint, the Motion, and supporting
documentation submitted by the Plaintiffs. For the reasons that follow, the Court
grants Plaintiffs’ Motion for Default Judgment (ECF No. 39) and enters final
judgment in favor of the Plaintiffs.
1. Background
This is a civil action under the Foreign Sovereign Immunities Act (“FSIA”),
28 U.S.C. §§ 1602, et seq., the FSIA’s terrorism exception, 28 U.S.C. § 1605A,
and foreign law tort claims. The Plaintiffs’ claims arise from the shooting murder
(the “Terrorist Murder”) of the 19-year old U.S. citizen Yitzchak Weinstock by the
terrorist group Hamas, Islamic Resistance Movement (“Hamas”) on December 1,
1993, near Jerusalem. The Plaintiffs are Yitzchak’s estate, mother, and siblings,
and the estates of his late father and maternal grandparents. Defendant Iran
provided substantial material support to Hamas leading up to, and immediately
before and including, the date of the Terrorist Murder. Iran’s material support
enabled, facilitated and caused the murder of Yitzchak Weinstock and the lifeshattering emotional harm suffered by the Plaintiffs.
Iran was served with process in this action as of April 10, 2018. (ECF No.
22.) However, Iran “failed to plead or otherwise defend” this action. See Fed. R.
Civ. P. 55(a). After its time to do so expired, the Clerk of the Court entered default
against Iran on June 12, 2018. (ECF No. 25.) The Plaintiffs then filed the current
Motion for Default Judgment as to Defendant Iran. (ECF No. 39.)
2. Legal Standards
“A defendant, by his default, admits the plaintiff’s well-pleaded allegations
of fact,” as set forth in the operative complaint. Eagle Hosp. Physicians, LLC v.
SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (internal quotation
marks and citations omitted). However, “a sufficient basis must still exist in the
pleadings to state a claim before a court may enter a default judgment.” Under
Armour, Inc. v. 51nfljersey.com, No. 13–62809–CIV, 2014 WL 1652044, at *4
(S.D. Fla. Apr. 23, 2014) (Rosenbaum, J.) “A defendant’s default does not in itself
warrant the court entering a default judgment.” Luxottica Grp. S.p.A. v.
Individual, P’ship or Unincorporated Ass’n, No. 17-CV-61471, 2017 WL 6949260,
at *2 (S.D. Fla. Oct. 3, 2017) (Bloom, J.) (quotation marks, alterations, and
citations omitted). A defendant is “not held to admit facts that are not well
pleaded or to admit conclusions of law.” Id. The court must also establish that it
has subject matter jurisdiction and personal jurisdiction over the defendant.
TracFone Wireless v. Anadisk LLC, 685 F. Supp. 2d 1304, 1310 (S.D. Fla. 2010)
(King, J.).
Before a court may enter a default judgment against a foreign state, the
“claimants must establish their claim or right to relief by evidence that is
satisfactory to the Court.” Alejandre v. Republic of Cuba, 996 F. Supp. 1239,
1242 (S.D. Fla. 1997) (King, J.) (internal quotations omitted) (citing 28 U.S.C.
1608(e) (1994); Compania Interamericana Export–Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996); 28 U.S.C. § 1608(e).
This standard is identical to the standard for the entry of default judgment
against the United States under Federal Rule of Civil Procedure 55(d), which
provides that default judgment “may be entered against the United States, its
officers, or its agencies only if the claimant establishes a claim or right to relief
by evidence that satisfies the court.” Wachsman v. Islamic Republic of Iran, 537
F. Supp. 2d 85, 91 (D.D.C. 2008); Fed. R. Civ. P. 55(d).
In cases brought against a foreign government or citizens, the claim must
establish that “(1) there has been a waiver of sovereign immunity and (2) the
source of substantive law upon which the claimant relies provides an avenue for
relief.” Reed v. Islamic Republic of Iran, 439 F. Supp. 2d 53, 59 (D.D.C. 2006)
(internal quotations omitted) (citing FDIC v. Meyer, 510 U.S. 471, 484, 114 S. Ct.
996, 127 L.Ed.2d 308 (1994)).
With the Motion for Default, Plaintiffs submitted twenty-six affidavits in
support of their substantive claims and claims for intentional inflection of
emotional distress. (See ECF Nos. 42-1–42-26.) Because Iran has presented no
defense, the Court accepts as true Plaintiffs’ uncontroverted factual evidence.
See Alejandre, 996 F. Supp. at 1243.
3. Analysis
According to the Eleventh Circuit, the Foreign Sovereign Immunities Act
(FSIA) is “the exclusive source of subject matter jurisdiction over all civil actions
against foreign states.” Alejandre v. Telefonica Larga Distancia de Puerto Rico,
Inc., 183 F.3d 1277, 1282 (11th Cir. 1999). Under section 1604 of the FSIA,
unless a FSIA statutory exception to immunity applies, a foreign state is immune
from the jurisdiction of federal or state courts. Id.; see 28 U.S.C. § 1604(1); 28
U.S.C. § 1330(a). As such, this Court only has subject matter jurisdiction in an
action against a foreign state if one of the FSIA statutory exceptions to immunity
applies. Calzadilla v. Banco Latino Int'l, 413 F.3d 1285, 1286 (11th Cir. 2005)
(affirming the dismissal of a case against arm of Venezuelan government for lack
of subject matter jurisdiction). Accordingly, the Court must first determine
whether this Court has subject matter jurisdiction over Iran based on one of the
FSIA statutory exemptions.
Section 1605A, withdraws foreign sovereign immunity, grants
jurisdiction, and authorizes suits against state sponsors of terrorism for
“personal injury or death” arising from torture, extrajudicial killing, aircraft
sabotage, hostage taking, and the provision of material support. Owens v.
Republic of Sudan, 864 F.3d at 765. Section 1605A(a) provides in part:
A foreign state shall not be immune from the
jurisdiction of courts of the United States … in any case
… in which money damages are sought against a foreign
state for personal in- jury or death that was caused by
an act of … extrajudicial killing … or the provision of
material support or resources for such an act if such
act or provision of material support or resources is
engaged in by an official, employee, or agent of such
foreign state while acting within the scope of his or her
office, employment, or agency.
28 U.S.C.S. § 1605A(a)(1). As discussed below, Plaintiffs have shown that Iran
falls under Section 1605A(a) exception.
A. Iran is a designated state sponsor of terrorism
The terrorism exception allows claims to be heard only as against foreign
states that were designated as state sponsors of terrorism at the time of the act
of terrorism and that remain so designated. See 28 U.S.C. § 1605A(a)(2). The
term “state sponsor of terrorism” refers to countries, the governments of which
have been designated by the Secretary of State as having repeatedly provided
support for acts of international terrorism. 28 U.S.C. § 1605A(h)(6). Iran is
presently designated a state sponsor of terrorism and has been so designated
since 1984. (Clawson Decl., ECF No. 42-3 at ¶ 27); see also U.S. Department of
State, State Sponsors of Terrorism, https://www.state.gov/j/ct/list/
c14151.htm.
B. Yitzchak Weinstock’s killing was extrajudicial
Section 1605A adopts the definition of “extrajudicial killing,” that is
codified in the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 note
(“TVPA”). 28 U.S.C. § 1605A(h)(7). The TVPA defines “extrajudicial killing to
mean:
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. Such term, however, does not include any such killing that,
under international law, is lawfully carried out under the authority
of a foreign nation.
28 U.S.C.S. § 1350(Section 3)(a).
“On its face, this definition contains three elements: (1) a killing; (2) that
is deliberated; and (3) is not authorized by a previous judgment pronounced by
a regularly constituted court.” Owens v. Republic of Sudan, 864 F.3d 751, 770
(D.C. Cir. 2017). The terrorist murder of Yitzchak Weinstock satisfies all three
elements, and it “does not fall within the exception for killings carried out under
the authority of a foreign nation acting in accord with international law.” See id.
Rabbi Shpatz and Yitzchak were driving north as the car approached the
Palestinian town of Al-Bireh, approximately 20 minutes outside of Jerusalem.
The car’s exhaust pipe broke and was dragging under the car. Rabbi Shpatz
stopped the car to attempt a repair, and Yitzchak exited the car to help. (Y.
Shpatz Decl., ECF No. 42-14 at 2.) A second car slowly approached and
suddenly, the sound of automatic gunfire erupted. (Id.)
When the shooting stopped, Rabbi Shpatz saw that Yitzchak had been
badly wounded. He was gushing blood from a large wound next to his shoulder.
(Id. at 3.) Rabbi Shpatz attempted to stop Yitzchak’s bleeding while
simultaneously trying to flag cars for help. (Id.) Yitzchak was taken to the
hospital where he passed shortly after.
The attack on Yitzchak was “deliberated.” The Eleventh Circuit has held
that “deliberate” under the TVPA refers to killings that were “undertaken with
studied consideration and purpose.” Mamani v. Berzaín, 654 F.3d 1148, 1155
(11th Cir. 2011). Yitzchak Weinstock was shot at close range from a car from
which at least two shooters fired automatic weapons and had time and
munitions to reload their weapons and to escape capture. (Y. Shpatz Decl., ECF
No. 42-14 at 1–3.) An attack of this nature requires careful planning, funding of
operational costs, including salaries, weapons, intelligence, logistical support,
preparation, and training. (Levitt Decl., ECF No. 42-2 at ¶ 27.)
In a proclamation issued by Hamas, the terrorist organization claimed
responsibility for the attack. (Spitzen Decl., ECF No. 42-5 at ¶ 18 n.1.) The
Plaintiffs submitted the verified report of Arieh Dan Spitzen, an expert on
Palestinian affairs and society and the structure, leadership, personnel, and
activities of various Palestinian terror groups, including Hamas. (Id. at ¶ 1.) Mr.
Spitzen explains in his detailed report that proclamations of this sort were
routinely used by the various terrorist organizations, including Hamas, that the
claims of responsibility for acts of terrorism made in these proclamations are
credible; and that the proclamation he reviewed is what it purports to be an
authentic proclamation issued by Hamas’s militant wing, the Izz al-Din alQassem Brigades claiming responsibility for the murder of Yitzchak Weinstock
and Shalva Ozanah. (Id. at ¶¶ 21-23, 33, 34.)
Additionally, the killing of Yitzchak Weinstock was not “authorized by a
previous judgment pronounced by a regularly constituted court.” See 28 U.S.C.
§ 1350; Owens, 864 F.3d at 770. This was a planned and professionally executed
drive-by shooting attack directed at random civilians. “Clearly, this killing was
not authorized by a prior judgment affording judicial guarantees or due process,
nor is such deliberate killing lawful under any international law. It is a
quintessentially extrajudicial killing.” See Estate of Hirshfeld v. Islamic Republic
of Iran, 330 F. Supp. 3d 107, 134 (D.D.C. 2018).
Thus, Yitzchak Weinstock’s murder was a deliberate killing, that was not
authorized by a pervious judgment by a constituted court.
C. Iran Provided material support for the commission of the killing
Iran provided Hamas with material support and resources for the
extrajudicial killing of Yitzchak Weinstock. “Material support or resources” is a
defined term under the FSIA’s terrorism exception. Section 1605A(h)(3)
incorporates the definition provided under the Anti-Terrorism Act (ATA), 18
U.S.C. § 2339A(b)(1):
The term “material support or resources” means 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.
As detailed by the Plaintiffs’ expert witnesses’ affidavits, Iran provided
Hamas with substantial amounts of nearly every form of “material support or
resources” included in the statutory definition. These were provided for the
explicit purpose of promoting, enabling, assisting, and executing terrorist
attacks like the murder of Yitzchak Weinstock.
Iran provided the material support and resources to Hamas through its
officials, employees and agents acting within the scope of their official duties.
The cooperation between Iran and Hamas was a matter of Iranian government
policy and was being directed from the highest levels of the Iranian government.
(Levitt Decl., ECF No. 42-2 at ¶¶ 42–44.) These officials included, President
Rafsanjani, Foreign Minister Velayati, and Supreme Leader Ayatollah Khamenei,
among others. (Clawson Decl., ECF No. 42-3 at ¶ 42.) The Iranian officials and
representatives acted in accordance with their “approved roles and pursuant to
official Iranian government policy directives.” (Id.) Additionally, the brother of
Iran’s then President, Rafsanjani, headed the department of the Iranian foreign
ministry that coordinated the funding of Hamas. The amount of arming, training,
indoctrinating, and provision of logistical support Iran provided to Hamas could
have only been carried out by the government through its officials, employees
and agents (including foreign agents such as the Hizballah members who also
provided substantial support and resources to Hamas at the direction of Iranian
government officials). (Id.)
Thus, the Court finds that Iran provided material support to Hamas with
the purpose of promoting and enabling terrorist attacks like the murder of
Yitzchak Weinstock.
D. Causation
Section 1605A(a) includes a proximate causation element. See Ben-Rafael
v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 54 (D.D.C. 2008) (citing Kilburn
v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1128–29 (D.C. Cir.
2004)). The causation element of § 1605A, does not require that the Plaintiffs
prove that the injury would not have happened but for the Defendant’s actions.
Kilburn, 376 F.3d at 1128. Proximate cause under §1605A is established by
demonstrating “some reasonable connection between the act or omission of the
defendant and the damage which the plaintiff has suffered.” Owens, 864 F.3d at
794; Valore v Islamic Republic of Iran, 700 F. Supp. 2d 52, 66 (D.D.C. 2010). As
the Kilburn court noted, material support is difficult to trace. 376 F.3d at 1128;
Boim v. Holy Land Foundation for Relief & Development, 596 F.3d 685, 695–698
(7th Cir. 2008) (en banc) (finding causation and liability under the Anti-Terrorism
Act against a U.S.-based organization that provided funds to Hamas, which killed
an American teenager in a drive-by shooting).
In Owens, the D.C. Circuit held that proximate cause requires (a) that the
defendant’s actions must be a “substantial factor” in the sequence of events
leading to the plaintiff’s injury, and (b) that the injury must have been a
reasonably foreseeable or anticipated consequence of the defendant’s conduct.
864 F.3d at 794. Iran’s material support was certainly a substantial factor in the
sequence of events leading to the murder of Yitzchak Weinstock. Until 1992,
Hamas had engaged in sporadic terrorist attacks and lacked the money, training,
logistical support and other resources necessary to execute attacks of this
nature. At the end of that year, Iran summoned Hamas leaders for meetings in
Iran and reached agreements pursuant to which Iran would provide material
support for Hamas attacks, which Iran made clear it wanted to increase. Both
Dr. Levitt and Dr. Clawson confirmed that the very extensive, all-encompassing
Iranian support for Hamas was at least a substantial factor in the sequence of
events leading to the Terrorist Murder. (Levitt Decl., ECF No. 42-2 at ¶¶ 58–60.)
The Terrorist Murder was also both a reasonably foreseeable and
anticipated consequence of Iran’s policy of providing material support to Hamas.
The very purpose of the Iranian support was to enlist Hamas to engage in
terrorist attacks against Israel in an attempt to scuttle the peace process, attack
Israel and undermine the West. (Id. at ¶¶56–57.) Iran passed a law that
established an account used to fund Palestinian terrorism. (Id. at ¶ 35.) Iran
entered into agreements with Hamas the purpose of which were to increase
terrorist activities. (Id. at ¶ 37; Clawson Decl., ECF No 42-3 at ¶ 35.) This intent,
coupled with the extensive efforts made by Iran through its officials, employees
and agents to maintain Hamas as a menacing terrorist organization
demonstrates that the Murder of Yitzchak Weinstock was a reasonably
foreseeable and anticipated consequence of Iran’s conduct.
Therefore, because Iran’s material support to Hamas was the proximate
cause of Yitzchak Weinstock’s murder and Iran’s classification as a state sponsor
of terrorism, the Court finds that it has subject matter jurisdiction for the current
case under 28 U.S.C. §§ 1330 and1605A.
E. Personal Jurisdiction
The Plaintiffs must also establish the Court’s personal jurisdiction over
Iran. Section 1330(b) provides that personal jurisdiction over a foreign state
defendant exists as to every claim for which the district court has subject matter
jurisdiction so long as service has been made under 28 U.S.C. § 1608. Thus,
personal jurisdiction against a foreign state is dependent upon a finding of
subject matter jurisdiction and proper service. 28 U.S.C. § 1330(b); S & Davis
Int'l, Inc. v. Yemen, 218 F.3d 1292 (11th Cir. 2000) (personal jurisdiction under
the FSIA established by subject matter jurisdiction plus valid service of process).
As recounted in the Plaintiffs’ several status reports on service of process,
service upon Iran was made properly under 28 U.S.C. § 1608(a)(4). (See Plaintiffs’
Response to Notice of Upcoming Deadline to Serve under Federal Rule of Civil
Procedure 4(m), ECF No. 12); Clerk’s Notice of International Service, ECF No. 14;
Status Report of Service Upon Defendants, ECF No. 18; Letter dated May 14,
2018, ECF No. 22; Verified Motion for Clerk’s Entry of Default, ECF No. 24.)
Accordingly, the Court may also exercise personal jurisdiction over Iran.
F. Damages
Iran is liable to all Plaintiffs other than the Estate of Dov Weinstock under
Section 1605A(c). In addition to creating a federal statutory cause of action,
§1605A(c) specifies that plaintiffs may recover damages including “economic
damages, solatium, pain and suffering, and punitive damages.” The D.C. Circuit
held in Owens that the punitive damages provision of 1605A(c) does not apply
retroactively to conduct occurring before the passage of § 1605A in 2008. Owens,
864 F.3d at 812, 815. Accordingly, the Court does not award punitive damages
against Iran. Additionally, the record does not include evidence supporting a
claim for any conscious pain and suffering Yitzchak Weinstock may have
endured before he died of his injuries. However, the plaintiffs are entitled to
damages for Yitzchak Weinstock’s lost earnings and for their solatium claims.
The remaining plaintiffs may recover damages for the severe emotional
injuries they suffered, otherwise known as solatium damages. 28 U.S.C. §
1605(c); Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64, 84 (D.D.C. 2018);
(Shnoor Decl., ECF No. 42-6 at ¶¶ 33–43.) Solatium claims compensate plaintiffs
for the “mental anguish, bereavement and grief that those with a close personal
relationship to a decedent experience as a result of the decedent's death, as well
as the harm caused by the loss of the decedent, society and comfort.” Braun, 228
F. Supp. 3d at 84 (citations omitted). “Solatium damages are available to FSIA
plaintiffs when extreme and outrageous conduct has caused grief and anguish
to plaintiffs closely related to a victim of terrorism. Acts of terrorism are by their
very definition extreme and outrageous and intended to cause the highest degree
of emotional distress, literally, terror.” Campuzano v. Islamic Republic of Iran,
281 F. Supp. 2d 258, 273 (D.D.C. 2003).
Courts addressing the availability and amount of solatium damages in
terrorism cases have traditionally looked to prior similar cases awarding
solatium or emotional damages. Braun, 228 F. Supp. 3d at 85; Heiser v. Islamic
Republic of Iran, 466 F. Supp. 2d 229, 269 (D.D.C. 2006); Valore, 700 F. Supp.
2d at 85. Applying this methodology, courts have formulated a widely-accepted
framework for calculations of damages awarded to victims of international
terrorism. In Heiser, the court surveyed past terrorism awards in the context of
deceased victims of terrorism and found that parents of those killed in terrorist
attacks typically received damages awards of $5 million and siblings received
$2.5 million. 466 F. Supp. 2d at 269. The court also specified “baseline” amounts
awarded to other relatives, such as spouses. See id. In Braun, the court awarded
$2.5 million in compensatory damages to each of the four grandparents of a baby
killed in a terrorist attack. 228 F. Supp. 3d at 86. Many courts have applied the
Heiser framework, which bases terrorism damages awards upon typical prior
terrorism awards. See e.g., Braun, 228 F. Supp. 3d at 85 (citing cases); Valore,
700 F. Supp. 2d at 85 (holding that the Heiser framework is “an appropriate
measure of damages for the family members of victims.”). The D.C. Circuit
recently agreed that that Heiser framework reflects reasonable baseline awards
and reaffirmed that “past solatium awards from comparable cases are
appropriate sources of guidance for district courts.” Fraenkel v. Islamic Republic
of Iran, 892 F.3d 348, 361–62 (D.C. Cir. 2018). The Fraenkel court held that
while Heiser is not binding on other courts, it provides a “useful reference point”
to which courts may adhere or depart upwards or downwards in their damage’s
awards, depending upon the circumstances of the case and the discretion of the
judge. 892 F.3d at 351. This Court too finds that the Heiser framework should
be applied to the calculation of non-economic damages in the instant case.
1. The Estate of Yitzchak Weinstock is entitled to an award of
$1,291,000 for lost earnings.
The Plaintiffs have introduced the verified economic report of Mark
Berenblut, a forensic and investigative accountant educated at the London
School of Economics and qualified in the United States and Canada. (Berenblut
Decl., ECF No. 42-7.) Mr. Berenblut’s CV is attached to his report. Id. In
calculating Yitzchak Weinstock’s lost earnings, Mr. Berenblut considered two
scenarios. First, he calculated a range for Yitzchak’s projected lost earnings
based upon an assumption that he would have made his career in Israel. Second,
because Yitzchak was an American citizen, Mr. Berenblut calculated an
alternative income based upon the possibility that Yitzchak would have made his
career in the United States.
Mr. Berenblut concluded that the total adjusted lost earning amount
based upon a career in the United States would have been approximately
$2,720,000 U.S. dollars. Id. at 4. Under the scenario in which Yitzchak would
have pursued a career in Israel, Mr. Berenblut calculated the loss to be
approximately $1,291,000 U.S. dollars. (Id.)
Because the Court finds that Yitzchak would likely have remained in Israel
where most of his family resides, the Court accepts the calculation of lost
earnings based upon a career in Israel rather than one in the United States. The
Court awards damages for lost earnings in the amount of $1,291,000 million.
2. Sharon Weinstock is entitled to solatium damages in the amount
of $5 million for the murder of her son.
On the morning of December 1, 1993, Sharon Weinstock was at work in
Jerusalem when a social worker from her community called to tell her that there
had been a terrorist attack and that she was coming to see Sharon. (Sharon Decl.
at 2, ECF No. 42-10 at 2.) The social worker drove Sharon to the hospital, where
her husband and some family friends and neighbors were already waiting. (Id.)
That was when she heard that Yitzchak was in critical condition. (Id.)
Sharon caught only a glimpse of Yitzchak as the medical staff wheeled him
into surgery. (Id.) Yitzchak fought for 18 hours. (Id.) But his injuries were too
numerous and too severe. He lost so much blood. (Id.) Finally, at approximately
1:00 am, the next morning, the surgeon came out of the operating room and
broke the news to the family. (Id.)
For at least a month after Yitzchak’s murder, Sharon “stayed in bed and
slept or cried all the time.” (Moshe Decl., ECF No. 42-11 at 3.) Moshe relates that
because his parents were “completely unable to deal with day-to-day
responsibilities,” he paid the costs of his own college education, without asking
them to help. Years after he completed his university studies, his mother asked
him, “Hey, how did you pay for college?” Moshe explains that his mother had
been completely oblivious as a result of the shock and grief following Yitzchak’s
murder. (Id.)
The Court applies the Heiser framework and awards Sharon Weinstock
$5,000,000 in solatium damages for the loss of her son to the terrorist murders.
See Braun, 228 F. Supp. 3d at 85; Estate of Hirshfeld, 330 F. Supp. 3d at 147.
3. The Estate of Dov Weinstock is entitled to solatium damages in
the amount of $5 million for the murder of Dov’s son.
Dov Weinstock, Yitzchak Weinstock’s now-deceased father, was not a
United States citzen, and therefore his estate cannot benefit from the private
right of action of §1605A(c). Leibovitch v Islamic Republic of Iran, 697 F.3d 561,
572 (7th Cir. 2012); Owens, 864 F.3d at 808-809. However, the jurisdictional
immunity exception enables Dov’s estate to bring its claim under Israeli law.
Leibovitch, 697 F.3d at 572 n.6; Owens, 864 F.3d at 808–809. The Estate of Dov
Weinstock brings a claim under the Israeli law of negligence. (Compl., ECF No.
1 at ¶¶ 67–76.)
To establish Dov Weinstock’s tort claim and the basis for relief for Dov’s
estate, the Plaintiffs have filed the expert opinion of Dr. Boaz Shnoor, an Israeli
tort law expert who holds LL.D, LL.M and LL.B degrees from the Hebrew
University and has been a senior lecturer at the Academic Center of Law and
Business in Ramat Gan, Israel. (Shnoor Decl., ECF No. 42-6 at ¶¶ 1, 3.) Dr.
Shnoor is a member of the Israeli Bar and is licensed to practice law in the State
of Israel. (Id. at ¶ 3.) Dr. Shnoor has previously served as an expert witness on
matters relating to Israeli tort law and liability for ter- rorist attacks in numerous
federal and state cases in the United States. (Id. at ¶ 4.)
In a very thorough and balanced opinion, Dr. Shnoor opines that under
Israeli law, Iran would be directly liable to Dov Weinstock under what is referred
to in Israel as a “negligence” theory. Under Israeli law, the tort of “negligence”
includes any unreasonable conduct that causes foreseeable harm, even where
the conduct is intentional. (Id. at ¶ 12.) Thus, the Israeli Supreme Court has
found defendants directly liable under negligence for assisting a terrorist who
carries out an attack. (Id. at ¶ 13.)
Yitzchak Weinstock’s father, Dov Weinstock passed away in 2007. Sharon
and Moshe Weinstock, the widow and eldest son of Dov Weinstock pursue Dov’s
claims on behalf of his estate.
Dov Weinstock suffered immeasurably as a result of Yitzchak’s murder. In
the words of Moshe Weinstock, Yitzchak’s murder caused Dov “to go completely
off the rails.” (Moshe Decl., ECF No. 42-11 at 3.) Aryeh states that “[t]he impact
of Yitzchak’s death on my father was very obvious and dramatic. (Aryeh Decl.,
ECF No. 42-12 at 3.) It felt like we lost a big part of our father along with our
brother.” Id. Mishael states that their father “was completely unable to cope.”
(Mishael Decl., ECF No. 42-13 at 2.) Dov became withdrawn from the children –
an “absentee father.” (Sharon Decl., ECF No. 42-10 at 4.) In 2007, Dov suffered
from his final, fatal heart attack. (Aryeh Decl., ECF No. 42-12 at 3.)
The Court applies the Heiser framework and awards Dov Weinstock
$5,000,000 in solatium damages for the loss of his son to the terrorist murders.
See Braun, 228 F. Supp. 3d at 85; Estate of Hirshfeld, 330 F. Supp. 3d at 147.
4. Moshe Weinstock is entitled to an award of $2.5 million in
solatium damages for the murder of his brother.
Moshe Weinstock is the older brother of Yitzchak. (Moshe Decl., ECF No.
42-11 at 1.) Moshe and Yitzchak remained close, taking advantage of their
weekends at home and breaks from school to spend time together. (Id.)
On December 1, 1993, Moshe Weinstock was in southern Israel performing
his mandatory military service when he heard a news report of a terrorist attack
outside of Jerusalem. (Id. at 2.) After someone informed Moshe that Yitzchak had
been wounded in the attack, he attempted to call home, but nobody answered
the phone, so Moshe rushed to Jerusalem, “first to one hospital, and then to
another before I found them.” (Id.) The shock of Yitzchak’s death hit Moshe so
hard he cannot clearly recall the events at the hospital or Yitzchak’s funeral. (Id.)
Yitzchak’s death was a terrible blow to Moshe. (Sharon Decl., ECF No. 4210 at 5.) He continues to live with the pain. It is very difficult for him to talk
about or otherwise engage in the subject of Yitzchak’s murder. (Miriam Decl.,
ECF No. 42-26 at 3.)
The Court applies the Heiser framework and awards Moshe Weinstock
$2,500,000 in solatium damages for the loss of his brother to the terrorist
murders. See Estate of Hirshfeld, 330 F. Supp. 3d at 147.
5. Geula (“Gili”) Weinstock is entitled to an award of $2.5 million in
solatium damages for the murder of her brother.
Geula (“Gili”) Weinstock is the severely disabled sister of Yitzchak
Weinstock. (Miriam Decl., ECF No. 42-26 at 4.) She is not legally competent and
has not submitted her own declaration. However, others discussed in their
declarations the impact Yitzchak’s death had on Gili. Gili felt very close to
Yitzchak. (Moshe Decl., ECF No. 42-11 at 2.) The emotional impact of the loss of
her brother was obvious to others. (Id.) Following Yitzchak’s murder, Gili began
displaying “terrible behavioral problems.” (Id.) Previously, Gili was “a warm,
cooperative and very pleasant and well-liked child with much charm.” (Dr.
Pollack Decl., ECF No. 42-8 at 1.) But as a result of Yitzchak’s murder, Gili began
having emotional outbursts, and displayed rigidity, and obsessive behavior. (Id.
at 2.) Yitzchak’s absence created much chaos in Gili’s mind. (Mishael Decl., ECF
42-13 at 3.)
Gili had been studying in a main-stream school where she made much
progress. (Dr. Pollack Decl., ECF No. 42-8 at 1.) But after Yitzchak’s death, she
refused to continue. (Id.) Ultimately, Sharon had no choice but to transfer Gili to
a less favorable school in another city. (Id.) In the aftermath of Yitzchak’s murder,
Gili developed many behavioral difficulties, including, severe anxiety, outbursts
of anger, obsessive behaviors, and other manifestations that compounded her
physical disabilities. (Id. at 1–2.)
Dr. Pollak concludes, “I have observed her difficulties over the years, and
can confidently say that after her brother’s murder, [Gili] suffered a definite
deterioration in her emotional and behavioral state, and that she and her family
continue to struggle with the painful manifestations of [Gili’s] emotional state.
(Id. at 2.) Dr. Pollak’s assessment is confirmed by Inbal Sharvit Zamir, a licensed
psychotherapist, who treated Gili from 2009 until 2012. (Inbal Zamir Decl., ECF
No. 42-9 at 1.) According to Zamir, Gili’s primary issues were her “inability to
cope with her bereavement over Yitzchak, and the processing of her intense
emotional pain.” (Id. at 1–2). This intense and persistent emotional pain and
mourning prevent Gili from engaging in ordinary life activities. (Id. at 2.)
The Court applies the Heiser framework and awards Geula Weinstock
$2,500,000 in solatium damages for the loss of her brother to the terrorist
murders. See Estate of Hirshfeld, 330 F. Supp. 3d at 147.
6. Aryeh Weinstock is entitled to an award of $2.5 million in solatium
damages for the murder of his brother.
Aryeh Weinstock is Yitzchak’s younger brother and was in the seventh
grade when Yitzchak was murdered. Today, Aryeh maintains: “The single worst
memory of my life was when my father came to the house in the morning and
said to us, ‘it’s over,’ I started shouting uncontrollably and breaking things all
over the house.” (Aryeh Decl., ECF No. 42-12 at 2.)
Following Yitzchak’s murder, Aryeh, began experiencing severe difficulties
in school. (Moshe Decl., ECF No. 42-11 at 2.) “He actually completely stopped
functioning in school.” (Miriam Decl., ECF No. 42-26 at 5.) In high school, he
started suffering from panic attacks and, on several occasions, Aryeh required
hospitalization. (Aryeh Decl., ECF No. 42-12 at 2.) Unable to focus on school
work, Aryeh fell behind in his studies and eventually left his high school. (Id.)
Moshe realized that his parents were not fully functioning as parents and
took it upon himself to find a new school for Aryeh. He drove to the remote
northern Israeli town of Hispin and convinced the principal of a yeshiva high
school there to accept Aryeh, as an act of charity. (Moshe Decl., ECF No. 42-11
at 2.) Moshe sees this event as stark evidence of the devastation and disfunction
that overtook the Weinstock household as a result of Yitzchak’s death. (Id.) Aryeh
was no more successful in Hispin than he had been in his prior school. Aryeh
says that he spent his high school years “drifting around” to various schools and
communities, and that the years from 9th through 12th grades “have been
almost completely blacked out of my memory.” (Aryeh Decl., ECF No. 42-12 at
2.)
Aryeh describes a before-and-after life that was turned upside down by
Yitzchak’s murder. Before the murder, “we were a family that was close and
happy.” (Id. at 4.) The family would spend weekends together and with friends
laughing, telling stories, and taking long walks. (Id.) “That was all taken away
from us with Yitzchak’s death. Now, there’s always something in our hearts that
hurts.” (Id.)
The Court applies the Heiser framework and awards Aryeh Weinstock
$2,500,000 in solatium damages for the loss of his brother to the terrorist
murders. See Estate of Hirshfeld, 330 F. Supp. 3d at 147.
7. Chaim Mishael Weinstock (“Mishael”) is entitled to an award of
$2.5 million in solatium damages the murder of his brother.
Mishael was only five years old when Yitzchak was murdered. (Sharon
Decl., ECF No. 42-10 at 6.) As a result, “[e]verything around him was filled with
sadness and difficulty. He was deprived of a normal childhood.” (Michael Dolgin
Decl., ECF No. 43 at 3.)
Soon after Yitzchak’s murder, Mishael began suffering from a sleep
disorder and bed wetting. This lasted until he was 10 years old. (Id. at 2.) Michael
says that between third and eighth grades, “I was depressed most of the time. I
slept a lot and was barely interested in anything. I missed a lot of school; I would
show up late to class and leave when I wanted. The teachers made allowances
for me because they knew I was Yitzchak’s brother.” (Id. at 2–3.)
Mishael continued to deal with depression into his teen years. When he
reached his late teens, Mishael could not even conceive of being alive at age 20
or 21. But, he was not disturbed by that feeling. “I felt it was part [of] my destiny,
just another part of life.” (Id. at 3.) He recalls a hiking trip when he deliberately
ate a certain plant that someone had warned might be poisonous. At the same
time, Mishael says that he lived in a perpetual survival mode, where he was
constantly thinking about possible dangers. (Id. at 4.)
The Court applies the Heiser framework and awards Mishael Weinstock
$2,500,000 in solatium damages for the loss of his brother to the terrorist
murders. See Estate of Hirshfeld, 330 F. Supp. 3d at 147 (granting siblings who
were only 4 and 7 years old at the time of their brother’s murder damages awards
in amount identical to that granted to older siblings who shared mature,
developed relationships with decedent).
8. The estates of Rabbi Simon and Mrs. Shirley Dolgin are each
entitled to awards of $2.5 million in solatium damages for the
murder of their grandson.
Yitzchak shared an unusually close relationship with his maternal
grandparents. (Sharon Decl., ECF No. 42-10 at 6.) Yitzchak often visited his
grandparents, both with his family and on his own. (Id.) Rabbi Dolgin’s long time,
close friend Israel Harel recalls that on several occasions when he visited the
Dolgins he found Yitzchak at their home engaged in Talmudic or Biblical study
with his grandfather. (Isreal Harel Decl., ECF No. 42-21 at 2.) Yitzchak’s
proficiency in these studies was a great source of pride for Rabbi Dolgin. (Id.)
Immediately after the terrorist attack, Mrs. Dolgin joined the family in the
hospital waiting room. (Tzirl Horowitz Decl., ECF No. 42-20 at 2.) As the surgery
continued late into the night, Yitzchak’s grandmother grew tired and eventually
fell asleep. (Id.) When someone woke Mrs. Dolgin and told her what had
happened, she screamed in horror, “What have I done?!” (Id.) According to Tzirl
Horowitz, Mrs. Dolgin was speaking to god and blaming herself for her
grandson’s death. (Id.) Yitzchak’s grandmother felt so connected to him that she
was sure that his death must have been because of some flaw in her.
The day after the attack, Rabbi Dolgin’s old friend, Israel Harel rushed to
the Dolgin’s home when he heard the news on the radio. Mr. Harel says this was
the first time he had ever seen Rabbi Dolgin cry. (Harel Decl., ECF No. 42-21 at
3.) Rabbi Dolgin, who had been a strong man with a sharp mind, began to rapidly
deteriorate. “At once he looked like an old man…. He lost his drive for life.” (Id.)
The Heiser framework is based upon awarding similarly situated terrorism
victims’ similar damages awards for their emotional damages. In accordance with
the Heiser framework and the holding in Braun, the Court awards to each of the
estates of Rabbi and Mrs. Dolgin damages in the amount of $2.5 million. Braun,
228 F. Supp. 3d at 86.
G. Conclusion
For the reasons stated, the Court grants the Plaintiffs’ Motion for Default
Judgment (ECF No. 39).
A total of $26,291,000 in damages is awarded as follows:
The Estate of Yitzchak Weinstock is awarded $1,291,000 in
compensatory damages.
Sharon Weinstock and the Estate of Dov Weinstock are each
awarded $5,000,000 in compensatory damages.
Each of Yitzchak’s four siblings are awarded $2,500,000 in
compensatory damages for a total of $10,000,000.
The Estates of Rabbi Simon and Mrs. Shirley Dolgin are each
awarded $2,500,000 in compensatory damages.
Done and ordered in chambers, at Miami, Florida, on April 4, 2019.
________________________________
Robert N. Scola, Jr.
United States District Judge
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