UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NOALA FRITZ, et al.,
Plaintijj‘s,
v. Civil Action No. 15-456 (RDM)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
This case arises from the abductions and murders of four U.S. soldiers serving in Iraq. In
January 2007, First Lieutenant Jacob Fritz, Specialist Johnathan Bryan Chism, and Private First
Class Shawn Falter Were abducted from the Provincial Joint Coordination Center in Karbala, Iraq
and, shortly thereafter, murdered by their captors. In October 2006, Staff Sergeant Ahmed AI-
Taie Was abducted While in Baghdad, held hostage, and, ultimately, murdered. Plaintiffs, the
estates and family members ofthe four direct victims, contend that “[t]hese two separate
incidents of kidnapping and murder are linked” because “both Were planned and executed mere
months apart” by the same terrorist organization: Asaib Ahl al-Haq (“AAH”), a network of lraqi
Shia militias. Dkt. 38 at l. Significantly, plaintiffs assert that AAH benefited from and relied on
“training, funding, direction, and support” from Iran, Which lran provided as part of a
“coordinated scheme . . . to target U.S. service-members in Iraq.” Id. Without Iranian aid,
Plaintiffs continue, AAH could not have carried out the Karbala attack nor evaded the U.S.
military’s search for Staff Sergeant Al-Taie.
Plaintiffs, all except one of whom are U.S. nationals, bring this action against the Islamic
Republic of Iran, the Islamic Revolutionary Guard Corps (collectively, “Iran”), and five “John
Doe” defendants. To establish subject matter jurisdiction, they invoke the state-sponsored
terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C. § 1605A(a).
They rely on another provision in the statute, § 1605A(c), to supply a federal cause of action,
alleging that Iran provided “material support” to AAH, which in turn engaged in acts of
extrajudicial killing, hostage taking, and torture. Ia'. § 1605A(c). Plaintiffs also assert state
common law claims for wrongful death, battery, assault, false imprisonment, intentional
infliction of emotional distress including solatium, survival damages, conspiracy, and aiding and
abetting. Iran, in the form of either the Islamic Republic of Iran or the Islamic Revolutionary
Guard Corps (“IRGC”), has not answered or otherwise appeared in this action and, at Plaintiffs’
request, the clerk of the court has entered a default as to both Defendants. Dkt. 23; Dkt. 39. The
John Doe defendants have not been served, and thus the Court’s decision does not apply to those
defendants
Plaintiffs have moved for a default judgment against the Islamic Republic of Iran and the
IRGC, Dkt. 64, and for the appointment of a special master to conduct damages proceedings,
Dkt. 49. As explained below, the U.S. national plaintiffs have established their right to relief
under 28 U.S.C. § 1605A. Plaintiffs concede, however, that because plaintiff Bashar Al-Taie is
not a U.S. national, he is not entitled to relief under 28 U.S.C. § 1605A(c). The Court concludes,
moreover, that Bashar Al-Taie has failed, at least at this stage of the litigation, to establish that he
is entitled to relief based on his state law claims. Accordingly, Plaintiffs’ motion for the entry of
a default judgment against the Islamic Republic of Iran and the IRGC will be GRANTED as to
the U.S. national plaintiffs and DENIED without prejudice as to Bashar Al-Taie. See 28 U.S.C.
§ 1608(e). Having found that the U.S. national plaintiffs have established Defendants’ liability
to the satisfaction of the Court, the Court will GRANT Plaintiffs’ motion for the appointment of
a special master as to the U.S. national plaintiffs DENY the motion without prejudice as to
Bashar Al-Taie, and APPOINT a special master to hear the damage claims ofthe U.S. national
plaintiffs and to report to the Court regarding the appropriate award.
I. INTRODUCTION
Plaintiffs, the estates of the four U.S. soldiers and twenty-two of their family members,
bring this action for damages against the Islamic Republic of Iran, the Islamic Revolutionary
Guard Corps, and five unidentified “senior Iranian government officials and members of the
IRGC” who, P|aintiffs allege, “planned, supported, and approved the abduction[s] and
murder[s]” of Fritz, Chism, Falter, and Al-Taie. Dkt. 9 at 6-10, 12 (Am. Compl. 1111 1 1-31, 37).
They effected service on the Islamic Republic of Iran and the IRGC in January 2017 and
December 2017, respectively, and neither Defendant has answered, filed a motion under Federal
Rule of Civil Procedure 12, or otherwise appeared. See Dkt. 21; Dkt. 37. Accordingly, at
P|aintiffs’ request, the clerk of the court declared the Islamic Republic of Iran in default on
August 14, 2017, Dkt. 23, and declared the IRGC in default on March 27, 2018, Dkt. 39.
Plaintiffs now seek entry of a default judgment with respect to liability against both
Defendants pursuant to Federal Rule of Civil Procedure 55. Dkt. 64. Even in a garden variety
case,_ the entry of a default judgment is not automatic and requires the exercise of sound
discretion. See Mwanl` v. bin Laa'en, 417 F.3d 1, 6 (D.C. Cir. 2005); Sanchez v. Devashz`sh
Hospitall'ty, LLC, 322 F.R.D. 32, 36 (D.D.C. 2017); Boland v. Yoccabel Const. Co., lnc., 293
F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
Most notably, the Court must-at a minimum_satisfy itself that it has subject matter jurisdiction
over the claims and personal jurisdiction over the defendants. See Jerez v. Republic of Cuba,
775 F.3d 419, 422 (D.C. Cir. 2014) (“A defaultjudgment rendered in excess ofa court’s
jurisdiction is void.”); Mwam', 417 F.3d at 6 (explaining that the Court must “satisfy itselfthat it
has personal jurisdiction before entering judgment against an absent defendant”).
In cases brought against a foreign state, however, the Court’s discretion to enter a default
judgment is more narrowly circumscribed By statute, no federal or state court may enter a
defaultjudgment against a foreign state or instrumentality “unless the claimant establishes his
claim or right to reliefby evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This is the
same standard that applies to default judgments against the United States under Federal Rule of
Civil Procedure 55(d). See Owens v. Republic ofSudan, 864 F.3d 751, 785 (D.C. Cir. 2017);
Hill v. Republic oflraq, 328 F.3d 680, 683 (D.C. Cir. 2003). In a case, such as this, alleging,that
a foreign state materially supported acts of terrorism, the district court must determine “how
much and what kinds of evidence the plaintiff must provide.” Han Kim v. Democrall`c People 's
Republic ofKorea, 774 F.3d 1044, 1047 (D.C. Cir. 2014). But the Court must do so in light of
Congress’s purpose in enacting § 1605A_that is, to “compensate the victims ofterrorism [so as
to] punish foreign states who have committed or sponsored such acts and [to] deter them from
doing so in the future,” id. at 1048 (citation omitted)_and the difficulty in obtaining “firsthand
evidence and eyewitness testimony . . . from an absent and likely hostile sovereign,” Owens, 864
F.3d at 785. This means that, to obtain a defaultjudgment against Iran, plaintiffs must (1) carry
their burden of producing evidence sufficient to show that their claims fall within the state-
sponsored terrorism exception to the FSIA, see 28 U.S.C. § 1605A(a); Owens, 864 F.3d at 784;
(2) establish that defendants were served in accordance with the FSIA, see 28 U.S.C. § 1608(a);
and (3) establish their right to relief under federal, see 28 U.S.C. § 1605A(c), or state law,
Owens, 864 F.3d at 809 (“the pass-through approach remains viable”), by offering evidence
“satisfactory to the court,” 28 U.S.C. § 1608(e).
Against this backdrop, the Court held a four-day hearing on liability, Dkt. 51 (Transcript
of Evidentiary Hearing, Apr. 10, 2018); Dkt. 52 (Transcript of Evidentiary Hearing, Apr. l 1,
2018); Dkt. 53 (Transcript of Evidentiary Hearing, Apr. 12, 2018); Dkt. 54 (Transcript of
Evidentiary Hearing, Apr. 13, 2018), and received additional evidentiary submissions, Dkt. 55,
as well as proposed findings of fact and conclusions oflaw from plaintiffs, Dkt. 59-1. ln the
course of the hearing, the Court applied the Federal Rules of Evidence, but did so on the
understanding that, first, it has “the authority-indeed, . . . the obligation_to ‘adjust [evidentiary
requirements] to . . . differing situations,”’ Han Kim, 774 F.3d at 1048 (quoting Buna'y v.
Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)) (modifications in Han Kim), and, second, that the
Court need not “step into the shoes of the defaulting party and pursue every possible evidentiary
challenge,” Owens, 864 F.3d at 785. Recognizing that expert testimony is not only entirely
proper, but often sufficient, id. at 788, and even indispensable in “terrorism cases . . . because
firsthand evidence ofterrorist activities is difficult, if not impossible to obtain,” id. at 787, the
Court also considered the extensive expert testimony the Plaintiffs presented. Whether through
expert testimony or other competent evidence, the Court must ultimately determine whether the
Plaintiffs have “substantiate[d] [the] essential element[s] ofjurisdiction” with admissible
evidence. Id. at 786.
The Court now makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
Plaintiffs’ evidentiary presentation included testimony from thirteen witnesses (including
experts) and dozens of exhibits (including several government reports). Along with other
witnesses, the Court heard from Colonel William Rabena (ret.), the U.S. Army officer appointed
to investigate the 2007 Karbala attack; General George Casey (ret.), the Commander of the
Multi-National Forces in Iraq at the time of the Karbala attack and of the abduction of Staff
Sergeant Al-Taie; Dr. Matthew Levitt, an expert on Hezbollah and Iran’s support for terrorist
proxies, including AAH; Dr. Daveed Gartenstein-Ross, an expert on AAH and Iranian support
for terrorism in Iraq; Dr. Craig Mallak, a forensic pathologist who previously served as the U.S.
Arde For<>es Medical E>i< >i<
The Court, accordingly, concludes that the Islamic Republic of Iran and the IRGC are not
entitled to foreign sovereign immunity, and the Court possesses subject matter jurisdiction over
Plaintiffs’ ciaims.“‘ see 28 U.sc. §§ 1330(a), 1605A(a)(1).
14 The fact that most of the Plaintiffs in this case are “third-party claimant[s]” rather than “the
legal representative[s] of [the] victim[s] [who were] physically injured” does not divest this
Court of subject matterjurisdiction. Owens, 864 F.3d at 807. “Who in particular may bring a
claim against a foreign sovereign is a question of substantive law, wholly separate from the
question of [federal courts’] jurisdiction.” Id.
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4. F ederal Cause of Action
Having concluded that the Court possesses subject matterjurisdiction, little else is
required to show that Plaintiffs are entitled to relief under the federal cause of action the
Congress enacted as part of the National Defense Authorization Act. See Pub. L. No. 1 10-181, §
1083, 122 Stat. 33 8-44 (2008) (codified at 28 U.S.C. § 1605A(c)). Although the federal cause of
action was added to the FSIA in 2008, “§ 1605A(c) operates retroactively” and “plainly
applies . . . to the pre-enactment conduct ofa foreign nation.” Owens, 864 F.3d at 815. There is
almost total “overlap between the elements of [§ 1605A(c)’s] cause of action and the terrorism
exception to foreign sovereign immunity,” Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186,
205 (D.D.C. 2017), and a plaintiffthat offers proof sufficient to establish a waiver of foreign
sovereign immunity under § 1605A(a) has also established entitlement to relief as a matter of
federal law_with one minor exception: a foreign state is only liable to “a national of the United
States,” “a member of the armed forces” “an employee [or contractor] of the [U.S.] Government
. . . acting within the scope of the employee’s employment,” or “the legal representative of ” any
such person. Id.
This one exception affects the claim of one of the plaintiffs in this case, Bashar Al-Taie,
the brother ofAhmed Al-Taie Although Ahmed Al-Taie was a U.S. national and a member of
the armed forces Bashar Al-Taie is neither. See Dkt. 38 at 8 n.9. For jurisdictional purposes
this fact is non-consequential, because the waiver of foreign sovereign immunity applies so long
as “the claimant or the victim was at the time ofthe” terrorist attack, a U.S. national, member of
the armed forces or government employee 28 U.S.C. § 1605A(a)(2)(A)(ii) (emphasis added).
The federal cause of action, however, is more restrictive and limits liability to those who are
themselves U.S. nationals members of the armed services or government employees 28 U.S.C.
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§ 1605(0). lfBashar Al-Taie had sued as the administrator ofAhmed Al-Taie’s estate, he would
have had a cause of action in that capacity. But that role has fallen to Kousay Al-Taie, Ahmed’s
father. Ex. 46 (Estate Documents of Ahmed Al-Taie). Accordingly, the Court concludes_as
Plaintiffs concede, see Dkt. 59-1 at 50_that Bashar Al-Taie’s federal law claim fails as a matter
of law. Subject to a showing that they suffer compensable losses however, the remaining
plaintiffs have, for the reasons described above, carried their burden on demonstrating that they
are entitled to relief under § 1605A(c).
B. Personal Jurisdiction
The Court also concludes that it has personal jurisdiction over both the Islamic Republic
of Iran and the IRGC, Under the FSIA, the Court has personal jurisdiction over a foreign state
“as to every claim for relief over which the [Court] ha[s] jurisdiction . . . where service has been
made under section 1608.” 28 U.S.C. § 1330(b). Thus “[i]n order to sue a foreign state or one
ofits political subdivisions a plaintiff must effect service in compliance with” 28 U.S.C. §
1608(a). Barot v. Embassy ofthe Republic onam., 785 F.3d 26, 27 (D.C. Cir. 2015).
Section 1608(a) “provides four methods of service in descending order of preference:”
(1) by delivery of a copy of the summons and complaint in accordance with any
special arrangement for service between the plaintiff and the foreign state
or political subdivision; or
(2) if no special arrangement exists by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of
the summons and complaint and a notice of suit, together with a translation
of each into the official language of the foreign state, by any form of mail
requiring a signed receipt, to be addressed and dispatched by the clerk of
the court to the head of the ministry of foreign affairs of the foreign state
concerned, or
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(4) if service cannot be made within 30 days under paragraph (3), by sending
two copies ofthe summons and complaint and a notice of suit, together with
a translation of each into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the Secretary of State in Washington, District of
Columbia, to the attention of the Director of Special Consular Services--and
the Secretary shall transmit one copy of the papers through diplomatic
channels to the foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when the papers were
transmitted
28 U.S.C. § 1608(a).
The first two mechanisms of effecting service_by delivery of the summons and
complaint either “in accordance with any special arrangement for service between the plaintiff
and the foreign state” under § 1608(a)(1) or “in accordance with an applicable international
convention on service of judicial documents” under § 1608(a)(2)_were not available to
Plaintiffs in this case See Dkt. 18 at l. No “special arrangement” governs service between
Plaintiffs and Iran, and “Iran is not party to an international convention on service of judicial
documents.” Ben-Rafael v. Islamic Republic oflran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008)
(internal citations omitted).
As a result, Plaintiffs attempted service under the third alternative, which requires service
by mail from the clerk of the court to the head of the ministry of foreign affairs of the foreign
state 28 U.S.C. § 1608(a)(3). On November 30, 2015, Plaintiffs initiated service as to both
Defendants under § 1608(a)(3). Dkt. 10. The clerk of court, accordingly, mailed the relevant
documents to Iran on December 2, 2015. Dkt. 12. On February 9, 2016, Plaintiffs notified the
Court that Iran had refused service Dkt. 13.
Finally, Plaintiffs served Defendants under § 1608(a)(4). That provision requires service
by mail from the clerk of court to the Secretary of State, who must then transmit the required
material through diplomatic channels to the foreign state 28 U.S.C. § l608(a)(4). The
59
Department of State must then send “the clerk ofthe court a certified copy of the diplomatic note
indicating when the papers were transmitted.” Id. Plaintiffs provided the clerk with the relevant
documents and requested service pursuant to § l608(a)(4) on February 9, 2016. Dkt. 14. The
clerk mailed these materials to the State Department the next day. Dkt. 16. On March 8, 2017,
the State Department notified the clerk that the documents had been delivered to the Islamic
Republic of Iran. Dkt. 19. As the Department explained, “[b]ecause the United States does not
maintain diplomatic relations with the government of lran,” the documents were transmitted to
the Embassy of Switzerland in Iran, which then transmitted the materials to the Iranian Ministry
of Foreign Affairs on January 31, 2017. Ia'. at 1, 4. The Swiss Embassy reported that the Iranian
Ministry of Foreign Affairs “refused” to accept the documents that same day. Id. at 4. After the
Islamic Republic of Iran failed to respond, the clerk entered a default. Dkt. 23.
As for the IRGC, Plaintiffs noted in a status report that the diplomatic note from the
Swiss Embassy referred to the Iranian Ministry of Information and Security, rather than the
IRGC, due to “a possible clerical error” but that the underlying service materials “properly
identifie[d] the IRGC as the second Defendant.” Dkt. 20 at 2-3. In an abundance of caution, on
September 12, 2017, Plaintiffs reinitiated service on the IRGC under § 1608(a)(4). Dkt. 25. The
clerk transmitted the materials to the State Department on September 15. Dkt. 27. On January
24, 2018, the Department notified the clerk that the documents had been delivered to Iran via the
Swiss Embassy on December 10, 2017, and, once again, the Iranian Ministry of Foreign Affairs
refused to accept service the same day. Dkt. 30 at 1, 4. The IRGC failed to respond On March
27, 2018, the clerk entered a default as to the IRGC. Dkt. 39.
60
Because Plaintiffs accomplished service under 28 U.S.C. § 1608(a)(4) on Defendants the
Islamic Republic of Iran and the IRGC, the Court possesses personal jurisdiction over both
Defendants See 28 U.S.C. § 1330(b).
C. Liability for State Law Claims
In addition to suing under federal law, Plaintiffs assert several state law claims As to
most ofthe plaintiffs these claims are redundant oftheir federal law claims and do not provide
any additional right to recover. As noted above, however, Bashar Al-Taie is not entitled to
recover under federal law. The fact that he is neither a U.S. national nor a member ofthe U.S.
armed forces does not, however, foreclose him from seeking to recover under state tort law.
See Owens, 864 F.3d at 809. Historically, the state-sponsored terrorism exception to the FSIA
was not understood to create a federal cause of action against foreign states (as opposed to state
officials) but, rather, to operate merely as a “pass-through” for state law claims Owens, 864
F.3d at 764; see also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir.
2004). When Congress amended the law to provide a federal cause of action, see National
Defense Authorization Act for Fiscal Year 2008 § 1083, it did not upset the prior law permitting
plaintiffs to assert state law claims after clearing the hurdle of foreign sovereign immunity, see
Owens, 864 F.3d at 807-09. Although most plaintiffs proceeding under the state-sponsored
terrorism exception to the FSIA need not rely on state tort law, the “pass-through approach
remains” a “viable” option for those who are unable to invoke the federal cause of action, such as
“foreign family members” like Bashar Al-Taie. Id. at 809.
1. Choice ofLaw
In the absence of a federal cause of action, the Court must first consider what law applies
Because “[t]he FSlA does not contain an express choice-of-law provision,” the Court must apply
61
the choice oflaw rules ofthe forum state Oveissi v. Islamic Republic oflran, 573 F.3d 835, 841
(D.C. Cir. 2009). The Court will, accordingly, apply District of Columbia choice of law
principles
The District of Columbia uses a choice-of-law rule that “blend[s] a ‘governmental
interest analysis’ with a ‘most significant relationship’ test.” Id. at 842 (quoting Hercules & Co.,
Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n.18 (D.C. 1989)). Under the governmental
interest analysis the Court “must evaluate the governmental policies underlying the applicable
laws and determine which jurisdiction’s policy would be most advanced by having its law
applied to the facts of the case under review.” Id. (quoting Hercules & Co). And, under the
“most significant relationship test,” the Court must consider the following four factors taken
from the Restatement (Second) of Conflict of Laws: (1) “the place where the injury occurred”;
(2) “the place where the conduct causing the injury occurred”; (3) “the domicil[e], residence,
national ity, place ofincorporation and place of business of the parties”; and (4) “the place where
the relationship, if any, between the parties is centered.” Id. (quoting Restatement (Second) of
Conflict of Laws § 145(2) (1971)). Section 145 of the Restatement “also references the factors
in Section 6 of the Restatement, which include the needs of the interstate and the international
systems the relevant policies of the forum, the relevant policies of other interested states
certainty, predictability and uniformity of result, and ease in the determination and application of
the law to be applied.” Dammarell v. Islamic Republic oflran, No. CIV.A. 01-2224JDB, 2005
WL 756090 at *18 (D.D.C. Mar. 29, 2005) (citing Restatement (Second) of Conflict of Laws §
145 (1971)); see also Owens v. Republic ofSudan, 826 F. Supp. 2d 128, 154 (D.D.C. 2011), ajj"d
in part and vacated in part on other grounds 864 F.3d 751 (D.C. Cir. 2017).
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Here, there are three potential sources of law that might govern Bashar Al-Taie’s claims:
the law ofthe forum state (the District of Columbia), the law of Bashar Al-Taie’s domicile
(Canada), or the law ofthe place of Ahmed Al-Taie’s abduction, torture, and murder (Iraq).
Plaintiffs contend that D.C. law should govern Bashar Al-Taie’s claims and the Court agrees
This case does not raise a conflict between various domestic jurisdictions; rather, the
Court must decide whether to apply D.C. law or the law of one oftwo foreign jurisdictions_
Canada and Iraq. The sole nexus to Canada is that Bashar Al-Taie happens to live there The
nexus to lraq, in contrast, is stronger because that is where Ahmed Al-Taie served, and it is
where he was captured, tortured, and killed He was however, a U.S. citizen and member of the
U.S. armed forces Ex. 70 at 1 (Certificate of Death (Overseas) for Ahmed Al-Taie, Feb. 29,
2012), and, most importantly, he was targeted by AAH because he was a U.S. citizen and soldier.
In dicta bearing directly on the question presented here, the D.C. Circuit observed as
follows in Oveissi v. Islamic Republic of lran: “We have no doubt that the United States has a
strong interest in applying its domestic law to terrorist attacks on its nationals especially when,
as was the case in Dammarell [v. Islamic Republic oflran], the attacks are ‘by reason of their
nationality.”’ 573 F.3d at 843. In Dammarell, in turn, the district court “applied the law ofthe
American plaintiffs’ state of domicile_rather than that of Lebanon_to a suit brought by
American victims ofthe 1983 bombing ofthe United States Embassy in Beirut.” Id. As the
district court explained in Dammarell and the D.C. Circuit repeated in Oveissi, “the injuries in
that case were ‘the result of a state-sponsored terrorist attack on a United States embassy and
diplomatic personnel[,] [and the] United States has a unique interest in its domestic law . . .
determining damages in a suit involving such an attack.” Id (quoting Dammarell, 2005 WL
756090 at *20). That principle, moreover, found support in the Restatement (Third) of Foreign
63
Relations which recognizes a country’s “jurisdiction to prescribe law with respect to ‘certain
conduct outside its territory by persons not its national that is directed against the security of the
state or against a limited class of other interests,”” and notes that “this principle is ‘increasingly
accepted as applied to terrorist . . . attacks on a state’s nationals by reason of their
nationality . . .” Id. (quoting Restatement (Third) of Foreign Relations § 402(3) & 402 cmt. g)
(emphasis in Oveissi) (citation to Dammarell omitted).
Although expressing approval for this summary of the governing law, the D.C. Circuit
declined to apply domestic law in Oveissi. Because, in that case, the victim of the assassination
was not a U.S. national, there was no evidence that the assailants knew that the victim’s
grandchild_the plaintiff in Oveissi_-was a U.S. national, and there was no evidence that “the
United States or its nationals were in any other way the object of the attack.” Id at 374. The
evidence, to the contrary, showed that the assassination occurred in France and was intended “to
deter French intervention in Lebanon.” Id (emphasis omitted). ln short, “if any country was the
object of the attack, it was France” Id The Court of Appeals, therefore, concluded that French
law should govern.
Although not identical, the present case is closer to Dammarell than to Oveissi. lt is
moreover, on all fours with Owens v. Republic of Sudan, where the district court applied the
principles discussed above and held that D.C. law, rather than the law of the places of the tort
(Kenya and Tanzania) or the place of the domicile of each plaintiff (including both U.S. and
foreign locations), was appropriate 826 F. Supp. 2d at 154. There, the court emphasized the
“unique interest” of the United States in applying domestic law in terrorism cases and it stressed
the interest in applying the law of “the seat of the federal government” in a case involving an
overseas attack on the United States Id at 155-56. The Court concludes that the same
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considerations apply here and that D.C. law, rather than Canadian or Iraqi law, should govern.
See Owens, 864 F.3d at 809 (noting that “[t]he district court held that District ofColumbia law
control[led]” the plaintiffs’ state law claims); id. at 809-12 (discussing the application of D.C.
law to plaintiffs’ claims for intentional infliction of emotional distress).
2. Liability
Having concluded that D.C. law applies however, the Court concludes that Plaintiffs
have yet to establish that Bashar Al-Taie is entitled 'to recover under that body of |aw. The
amended complaint asserts four state law claims on behalf of Bashar Al-Taie: (1) wrongful
death, (2) intentional infliction of emotional distress (3) conspiracy, and (4) aiding and abetting
Dkt. 9 (Am. Compl. 1111 80-84, 105-10, 116-21, 122-27). But Plaintiffs offer no analysis of
whether and how the elements of these claims might be satisfied here, and Bashar Al-Taie’s right
to recover under D.C. for his brother’s death is far from clear. The D.C. wrongful death statute,
for example, permits “the spouse or domestic partner and the next of kin of the deceased person”
to recover, but it makes no reference to a sibling’s right to recover. See D.C. Code § 16-2701(b).
If some other authority exists that permits a sibling to recover for wrongful death under D.C.
law, Plaintiffs have not directed the Court’s attention to it. Nor have they pointed to any
authority that recognizes an “independent tort action for civil conspiracy in the District of
Columbia,” Wiggins v. Phillip Morris, Inc., 853 F. Supp. 470, 483 (D.D.C. 1994); Cockrum v.
DonaldJ. Trumpfor President, Inc., No. CV 17-1370 (ESH), 2018 WL 3250445 * 10 (D.D.C.
July 3, 2018) (quoting Wiggins), or an independent action for “aiding and abetting,” which is
typically treated as a form of “secondary liability,” see Central Bank of Denver, NA v. First
Interstate Bank ofDenver, NA, 51 1 U.S. 164, 184 (1994).
65
On seemingly stronger footing, Bashar Al-Taie also asserts a claim for intentional
infliction of emotional distress But, as the D.C. Circuit recognized in Owens v. Republic of
Sudan, the D.C. courts have yet to decide whether “D.C. tort law requires a plaintiff to be present
at the scene of a defendant’s outrageous and extreme conduct in order to recover for” intentional
infliction of emotional distress 864 F.3d at 809-10. In light ofthis uncertainty, and given the
importance ofthe question, the Owens court certified the following question to the D.C. Court of
Appeals:
Must a claimant alleging emotional distress arising from a terrorist attack that killed
or injured a family member have been present at the scene of the attack in order to
state a claim for intentional infliction of emotional distress?
Id. at 812. Until the D.C. Court of Appeals answers that question, it would be premature for this
Court to determine whether Bashar Al-Taie_or any other plaintiff suing as a family member in
this case_is entitled to recover under D.C. law for intentional infliction of emotional distress
The Court will, accordingly, deny Bashar Al-Taie’s motion for entry of a default
judgment without prejudice
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CONCLUSION
As discussed in the Court’s prior order, Dkt. 86, Plaintiffs’ motion for defaultjudgment,
Dkt. 64, is GRANTED in part and DENIED in part. The Court GRANTS default judgments
against Defendants the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps with
respect to liability on the claims brought by the estates of each of the four direct victims and the
U.S. national Plaintiffs under 28 U.S.C. § 1605A(c), subject to each showing the required
familial relationship, The Court DENIES Plaintiff Bashar Al-Taie’s motion for a default
judgment with respect to his federal law claim and DENIES without prejudice his motion for a
default judgment with respect to his state law claim. The Court has entered a separate order
regarding the appointment of a special master to hear the damages claims of the estates of the
four direct victims and the U.S. national plaintiffs and to report to the Court regarding the
appropriate award See Dkt. 87.
lsi Randolph D. MOSS
RANDOLPH D. MOSS
United States District Judge
Date: August 2, 2018
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