Weinstock et al v. The Islamic Republic of Iran et al
Filing
55
Final Default Judgment. Order granting 49 Motion for Default Judgment. The Clerk is directed to close this case. Signed by Judge Robert N. Scola, Jr on 5/6/2019. See attached document for full details. (kpe)
Case 1:17-cv-23272-RNS Document 55 Entered on FLSD Docket 05/06/2019 Page 1 of 13
United States District Court
for the
Southern District of Florida
Sharon Weinstock, et al.,
Plaintiffs,
v.
Islamic Republic of Iran and
Hamas-Islamic Resistance
Movement, Defendants.
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Civil Action No. 17-23272-Civ-Scola
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Final Default Judgment
This cause comes before the Court upon Plaintiffs’ Motion for Default
Judgment with Incorporated Memorandum of Law against Defendant HamasIslamic Republic Movement (“Hamas”), filed on February 4, 2019 (the “Motion”).
Hamas has failed to file an answer or otherwise defend, and on November 26,
2018, the Clerk entered default (ECF No. 47). 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. 49) and enters final judgment
in favor of the Plaintiffs.
1. Background
This is a civil action under the Antiterrorism Act (“ATA”), 18 U.S.C. § 2333,
arising from the shooting murder of 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. Hamas
carried out the terrorist attack in which Yitzchak was murdered. (Compl., ECF
No. 1 at ¶¶ 17-35, 44.)
Defendant Hamas was served with process in this action as of August 31,
2018. (ECF Nos. 45, 46.) However, Hamas “failed to plead or otherwise defend”
this action, Fed. R. Civ. P. 55(a), and after the time to do so expired, the Clerk of
the Court entered default against Hamas on November 26, 2018 (ECF No. 47).
2. Legal Standard
“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.
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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.).
3. Analysis
A. Subject Matter Jurisdiction
The Court has subject matter jurisdiction in this case. The Plaintiffs bring
this civil action for damages under a federal statute, 18 U.S.C. § 2333. Pursuant
to 18 U.S.C. § 2338, the “district courts of the United States shall have exclusive
jurisdiction over an action brought under this chapter.” Thus, this Court has
original subject matter jurisdiction under 28 U.S.C. § 1331.
B. Personal Jurisdiction
The Court has personal jurisdiction over Hamas under Rule 4(k)(2) of the
Federal Rules, which provides in relevant part that: “For a claim that arises
under federal law, serving a summons . . . establishes personal jurisdiction over
a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts
of general jurisdiction; and (B) exercising jurisdiction is consistent with the
United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2).
Rule 4(k)(2) operates as a “national long-arm statute” which “permits a
court to aggregate a foreign defendant’s nationwide contacts” for jurisdictional
purposes when the defendant does not show that he is subject to the personal
jurisdiction of any individual U.S. state, provided that the Plaintiff’s claims,
“arise under federal law” and that the exercise of jurisdiction is consistent with
due process. Fraser v. Smith, 594 F.3d 842, 848–49 (11th Cir. 2010). Thus, “[t]he
applicable forum for purposes of Rule 4(k)(2) is the United States as a whole.”
Barrocos of Fla., Inc. v. Elmassian, 2012 U.S. Dist. LEXIS 64948, at *23 (S.D.
Fla. May 9, 2012) (Scola, J.) (citing Oldfield v. Pueblo De Bahia Lora, S.A., 558
F.3d 1210, 1220 (11th Cir. 2009)). All of these conditions are met here:
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First, the Plaintiffs’ claims are brought under federal law, i.e. ATA § 2333.
Second, Hamas was properly served with process in this action. As
explained in the Verified Application for Clerk’s Entry of Default as to Defendant
Hamas submitted by the Plaintiffs’ undersigned counsel (ECF No. 46) (“Verified
Application”), counsel delivered a request to serve process in this action on
defendant Hamas, pursuant to the Hague Convention of 15 November 1965 on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters (“Hague Convention”), to the State of Israel’s Administration
of Courts, which is Israel’s designated “Central Authority” for handling requests
for service under the Hague Convention. (Verified Application, ECF No. 46, at 1.)
Third, to defeat the assertion of jurisdiction under Rule 4(k)(2), the
defendant bears burden to show that he is subject to jurisdiction in another
state’s courts of general jurisdiction. Barrocos, 2012 U.S. Dist. LEXIS 64948, at
*20 (“Because Heng Lee has not identified any other state where it might be
subject to personal jurisdiction, this Court is authorized to assume that Heng
Lee is not amenable to jurisdiction in the courts of any state, and it may proceed
under Rule 4(k)(2).”) (citing cases). See also Jackson v. Grupo Indus. Hotelero,
2008 U.S. Dist. LEXIS 88922, at *21 (S.D. Fla. Oct. 20, 2008) (Huck, J.) (same).
By defaulting this action, Hamas has failed to meet his burden under Rule
4(k)(2). See Mwani v. Osama Bin Laden, 417 F.3d 1, 11 (D.D.C. 2005) (defaulted
defendant forfeits opportunity to show amenability to jurisdiction in a particular
state under Rule 4(k)(2)); Sisso v. Islamic Republic of Iran, 448 F. Supp. 2d 76,
89 (D.D.C. 2006) (“Hamas . . . has not appeared to defend against this suit, and
therefore it has not conceded to the jurisdiction of any state. Hence, the Court
will presume that Hamas is ‘not subject to the jurisdiction of the courts of general
jurisdiction of any state[,]’ under Rule 4(k)(2)).
Fourth, the exercise of specific personal jurisdiction over Hamas in this
case is fully consistent with due process. In their complaint, the Plaintiffs allege
that Hamas’ co-founder and senior leader Mousa Abu Marzook was continuously
domiciled and resident in the United States from 1981 until early 1993. Plaintiffs
further allege in detail that upon Hamas’ establishment in late 1987, Hamas
began to carry out extensive activities in the United States, through its leader
Abu Marzook, which activities continued through the date of the terrorist attack
in which Yitzchak Weinstock was murdered, December 1, 1993, and includedthe
following: (a) Hamas raised millions of dollars in the United States during this
period, which it transferred to Hamas leaders and operatives in the West Bank
and Gaza Strip; (b) during this period Hamas built and organized its own
permanent U.S.-based fundraising and recruitment apparatus, consisting of
both individuals domiciled in the U.S. and U.S.-incorporated associations; (c)
during this period Hamas recruited individuals domiciled in the U.S. and
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elsewhere to serve as Hamas leaders and operatives; and (d) during this period
Hamas sent operatives from the U.S. to the West Bank and Gaza, bearing
instructions and funds supplied by Abu Marzook on behalf of Hamas, for the
purpose of organizing and funding terrorist attacks. (See Compl., ECF No. 1 at
¶¶ 18–28.)
Moreover, in his expert declaration in the Plaintiffs’ related action against
Abu Marzook, Weinstock v. Abu Marzook, Civ. No. 17-cv-23202-RNS (S.D. Fla.)
(Scola, J.), the Plaintiffs’ expert on Hamas, Arieh Dan Spitzen, explained in detail
the critical role played by Hamas’ U.S.-based activities, conducted and directed
by Abu Marzook, in preserving and building Hamas’ organizational, human and
material infrastructure in the West Bank and Gaza Strip during this period and
concluded that “it is my expert opinion that without the extensive leadership,
organizational and financial activities on behalf of Hamas initiated and
conducted by Abu Marzook from the United States, Hamas would have had
extremely limited organizational and operational capabilities, and it is very
unlikely that the December 1, 1993 attack would have occurred.” Weinstock, Civ.
No. 17-cv-23202-RNS, Spitzen Decl., ECF No. 48-2, at ¶ 30.
Mr. Spitzen also cited numerous other Hamas experts who have similarly
concluded that Hamas’ U.S.-based activities during this period were crucial to
its operational capabilities. Id. at ¶ 27 (quoting Hamas experts who concluded
that Abu Marzook’s activities in the U.S. during this period “restored to Hamas
its operational ability” and provided “financial resources vital to renewal of
Hamas’ public and violent activity.”); and at ¶ 29 (quoting conclusion of former
U.S. Treasury terrorism finance analyst and Hamas expert that Abu Marzook’s
U.S.-based operation on behalf of Hamas “was critical to the group’s survival.”).
And, as Mr. Spitzen confirms, Marzook’s U.S. activities were conducted on behalf
of and in coordination with Hamas. Id. at ¶¶ 22–23.
Thus, Hamas took actions in the United States, which resulted in the
injuries to the plaintiffs. This is therefore a case for exercise of specific
jurisdiction.
C. The Complaint States a Claim under ATA § 2333
The Plaintiffs’ allegations easily state a claim under ATA § 2333, which
provides that: “Any national of the United States injured in his or her person,
property, or business by reason of an act of international terrorism, or his or her
estate, survivors, or heirs, may sue therefor in any appropriate district court of
the United States and shall recover threefold the damages he or she sustains
and the cost of the suit, including attorney’s fees.” 18 U.S.C. § 2333(a).
The Plaintiffs’ have standing to sue as U.S. nationals or the survivors of
U.S. nationals, and the allegations relating to the fact that they were injured by
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reason of a terrorist attack are set forth throughout the complaint. (Compl., ECF
No. 1 at ¶¶ 8–16.)
The phrase “act of international terrorism” used in § 2333(a) is defined in
ATA § 2331 as “activities that (A) involve violent acts or acts dangerous to human
life that are a violation of the criminal laws of the United States or of any State,
or that would be a criminal violation if committed within the jurisdiction of the
United States or of any State; (B) appear to be intended (i) to intimidate or coerce
a civilian population; (ii) to influence the policy of a government by intimidation
or coercion; or (iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping; and (C) occur primarily outside the territorial
jurisdiction of the United States, or transcend national boundaries in terms of
the means by which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate or seek
asylum.” 18 U.S.C. § 2331(1).
The allegations regarding defendant Hamas’ conduct satisfy each of these
elements of “international terrorism” as defined in ATA § 2331(1). (See, e.g., ECF
No. 1 at ¶¶ 19–23, 79–85.)
D. Damages
As an initial matter, courts hearing terrorism cases routinely accept
verified or sworn declarations as competent evidence to establish damages. See
Stansell v. Revolutionary Armed Forces of Colom. (FARC), No. 8:09-cv-2308-T26MAP, 2010 U.S. Dist. LEXIS 149212, at *11 (M.D. Fla. June 14, 2010) (citing
Securities & Exchange Comm’n v. Smyth, 420 F.3d 1225, 1231 n.13 (11th Cir.
2005)) (“Where the record is sufficient, as is the case here, a court may be able
to determine damages without a hearing.”).
1. The ATA extends to the Plaintiffs the full array or tort remedies.
Section 2333 of the ATA provides: Any national of the United States injured
in his or her person … by reason of an act of international terrorism, or his or
her estate, survivors, or heirs, may sue therefor in any appropriate district court
of the United States and shall recover threefold the damages he or she sustains
and the cost of the suit, including attorney’s fees. 18 U.S.C. § 2333(a). Section
2333 allows actions by nationals of the United States, their estates, survivors,
or heirs, which includes all the Plaintiffs herein. Even Dov Weinstock, who was
not a United States citizen, is included among those permitted to bring claims
under Section 2333. As Yitzchak’s father, Dov, was a “survivor” of a United States
national who was murdered in the terrorist attack. The ATA “contains no
requirement that the survivors or heirs of a United States national killed by an
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act of international terrorism must themselves be citizens of the United States,
and this court will not read such a requirement into the statute.” Estates of
Ungar v. Palestinian Auth., 304 F. Supp. 2d 232, 271 (D.R.I. 2004). See also,
Weiss v. Nat'l Westminster Bank PLC, 453 F. Supp. 2d 609, 620 (E.D.N.Y. 2006)
(“it is sufficient for plaintiffs to allege a familial relationship, such as that of child,
parent, spouse, or sibling of a U.S. national.”).
Further, U.S. nationals who are the relatives of a person killed by terrorists
are themselves “victims of international terrorism.” Estates of Ungar, 304 F.
Supp. 2d at 263. See also Biton v. Palestinian Authority, 310 F. Supp. 2d 172,
182 (D.D.C. 2004) (U.S. citizen may assert direct claim under ATA for murder of
family member, irrespective of decedent’s nationality). Similarly, surviving U.S.
national grandparents like Rabbi and Mrs. Dolgin, who shared an unusually
close relationship with Yitzchak, are considered to be victims of international
terrorism and are entitled to damages under the ATA. See e.g., Lelchook v.
Commerzbank, 2011 U.S. Dist. LEXIS 106305, at *5 (S.D.N.Y. Aug. 1, 2011)
(“Nothing in the statute limits the ability of [survivors] to sue; as long as the
proximate cause of the injury is alleged to be ‘by reason of an act of international
terrorism,’ id., the claim may be brought.”); Braun v. Islamic Republic of Iran, 228
F. Supp. 3d 64, 86 (D.D.C. 2017) (awarding damages to grandparents for
terrorist killing of granddaughter under the terrorism exception to the Foreign
Sovereign Immunities Act).
Section 2333 does not specify the nature of damages that can be recovered.
However, courts construing this provision have found that it extends to the
Plaintiffs the full array of tort remedies, including both “the broadest range of
economic damages” as well as solatium and other non-economic damages. See
Estates of Ungar, 304 F. Supp. 2d at 266–67. Thus, the estate of Yitzchak
Weinstock is entitled to recover economic damages for lost earnings; and the
remaining Plaintiffs may recover damages for the severe emotional injuries they
suffered, otherwise known as solatium damages. See id. “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. Estates of Ungar, 304 F. Supp. 2d at 270–77;
Stansell, 2010 U.S. Dist. LEXIS 149212, at *13–14. Moreover, courts considering
damages in cases decided under the Antiterrorism Act, 18 U.S.C. §§ 2331, et
seq. have considered damages awards in other terrorism cases, including those
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decided under the related terrorism exception to the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. § 1605A (and the former terrorism exception
1605(a)(7) for cases decided prior to 2008). See e.g., Estates of Ungar, 304 F.
Supp. 2d at 263; Rubin v. HAMAS--Islamic Resistance Movement, 2004 U.S. Dist.
LEXIS 20883, at *10 (D.R.I. 2004); Stansell, 2010 U.S. Dist. LEXIS 149212, at
*10.
Applying this methodology, courts have formulated a widely-accepted
framework for calculations of damages awarded to victims of international
terrorism. In Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 269 (D.D.C.
2006), 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. The court also specified “baseline” amounts awarded to other relatives,
such as spouses. 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.
The court found that the grandparents suffered greatly from witnessing the
effects of the murder of the baby on the baby’s parents. Braun, 228 F. Supp. 3d
at 86.
2. 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.
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3. 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 severe. 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 Weinstock,
Yitzchak’s brother, 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 v. Islamic Republic of Iran,
330 F. Supp. 3d 107, 147 (D.D.C. 2018).
4. The Estate of Dov Weinstock is entitled to solatium damages in
the amount of $5 million for the murder of Dov’s son.
Yitzchak Weinstock’s father, Dov was not a United States national.
However, he was entitled to sue under Section 2333 as the survivor of a victim
of the terrorist attack. See 18 U.S.C. § 2333(a). 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
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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.
5. Moshe Weinstock is entitled to an award of $2.5 million in
solatium damages for the murder of his brother.
Yitzchak was Moshe Weinstock’s little brother. (Moshe Decl., ECF No. 4211 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.
6. 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
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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.
7. 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
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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.
8. 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. 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).
Case 1:17-cv-23272-RNS Document 55 Entered on FLSD Docket 05/06/2019 Page 12 of 13
9. 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 longtime, 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.
4. Conclusion
For the reasons stated, the Court grants the Plaintiffs’ Motion for Default
Judgment (ECF No. 49).
Damages are 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.
Case 1:17-cv-23272-RNS Document 55 Entered on FLSD Docket 05/06/2019 Page 13 of 13
The Estates of Rabbi Simon and Mrs. Shirley Dolgin are each
awarded $2,500,000 in compensatory damages.
Pursuant to 18 U.S.C. § 2333(a), the amounts of compensatory damages
are trebled for a total damages award of $78,873,000.
The Clerk is directed to close this case.
Done and ordered in chambers at Miami, Florida, on May 6, 2019
_______________________________
Robert N. Scola, Jr.
United States District Judge
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