Ashton v. Al Qaeda Islamic

• Court: District Court, S.D. New York
• Decided: March 12, 2025
• Docket: 1:02-cv-06977
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT. SOUTHERN DISTRICT OF NEW YORK ee eee eee KKK IN RE: : MEMORANDUM DECISION : AND ORDER TERRORIST ATTACKS ON : SEPTEMBER 11, 2001 03 MDL 1570 (GBD) (SN)

eee eee □□ ee eee eee re OH HK This document relates to: Ashton y. al Qaeda Islamic Army, No. 02-cv-06977 (GBD)(SN) Burnett v. Islamic Republic of Iran, No. 15-cv-09903 (GBD)(SN) Ortiz v. Islamic Republic of Iran, No. 22-cv-03100 (GBD\SN) GEORGE B. DANIELS, United States District Judge: Certain Ashton and Burnett Plaintiffs moved for partial final default judgment against the Islamic Republic of Iran, the Islamic Revolutionary Guard Corps, and the Central Bank of the Islamic Republic of Iran (collectively, the “Iran Defendants”). (ECF Nos. 9660, 9749, 9873, 9879, 9889.)! Additionally, Plaintiff Lisa Ortiz moved for partial final default judgment as to liability and damages against the Islamic Republic of [ran (“Iran”). (ECF No. 9853.) Before this Court is Magistrate Judge Sarah Netburn’s February 19, 2025 Report and Recommendation (“the Report”), recommending that this Court: 1) grant the Ortiz Plaintiffs motion and award her pain and suffering damages as set forth in Exhibit A’; 2) grant the motions filed by the Burnett Plaintiffs and award them pain and suffering damages as set forth in Exhibits A and B, subject to the reduction in damages for Mr. Anthony Ciarnella; 3) deny without prejudice the Ashton Plaintiffs motion; and 4) awarding Plaintiffs listed in Exhibits A and B prejudgment

1 Unless otherwise indicated, all ECF citations included herein refer to documents filed on the 9/11 multidistrict litigation docket, See In re Terrorist Attacks on September I1, 2001, No. 03-md-1570 (GBD\SN). 2 The Report refers to “Mr. Ortiz,” i.e, Angel R. Ortiz the claimant, as the Ortiz Plaintiff. (Report at 36, Ex. A.) This Court corrects this error and refers instead to Ms. Lisa Ortiz, the Personal Representative of the Estate of Angel R. Ortiz, as the Ortiz Plaintiff.

interest at a rate of 4.96 percent per annum, compounded annually for the period from September 11, 2001, until the date of judgment. (Report, ECF No. 10727, at 36.) Magistrate Judge Netburn advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (/d. at 37.) No party filed objections. Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report. I. LEGAL STANDARDS A court “may accept, reject, or modify, in whole or in part, the findings or recommendations” set forth in a magistrate judge’s report. 28 U.S.C. § 636(b)(1)(C). The court must review de novo the portions of a magistrate judge’s report to which a party properly objects. Id. Portions of a magistrate judge’s report to which no or “merely perfunctory” objections are made are reviewed for clear error. See Edwards v. Fischer, 414 F.Supp.2d 34, 346-47 (S.D.N.Y. 2006) (citations omitted). Clear error is present only when “upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed.” United States vy. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation and internal quotation marks omitted.) II. MAGISTRATE JUDGE NETBORN CORRECTLY CONCLUDED THAT JURISDICTION EXISTS The Court has both subject matter and personal jurisdiction over the Iran Defendants. (See Report at 3-8). As Magistrate Judge Netburn correctly noted, 28 U.S.C. § 1605A confers subject matter jurisdiction over claims by the Burnett VIT, Burnett LX and Ortiz Plaintiffs who are U. S. nationals. (Report at 3-4.) As for non-nationals, the Non-Nationals LI and Non-Nationals □□ groups of Burnett Plaintiffs and Ashton Plaintiff, Zofia Cieslik,? have established that 8 U.S.C. §

3 Magistrate Judge Netburn properly rejected Ms, Cieslik’s additional basis of subject matter jurisdiction under the Alien Tort Statute, 28 U.S.C. §1350. (Report at 6.) Magistrate Judge Netburn properly noted that “the [Foreign Sovereign Immunities Act] “provides the sole basis for obtaining jurisdiction over a foreign state in federal court’.” (See Report at 6 (citing Argentine Republic v, Amerada Hess Shipping Corp., 488 U.S. 428, 438-39 (1989)).)

1605B(b) applies to their claims as an exception to the Foreign Sovereign Immunities Act (“FSIA”), (Report at 3-6.) Once a court determines that subject matter jurisdiction exists over a foreign state under 28 U.S.C. § 1330(a), personal jurisdiction is straightforward, simply requiring valid service of process under 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b). Magistrate Judge Netburn correctly found that Plaintiffs achieved service under 28 U.S.C. § 1608(a)(4) and 28 U.S.C. § 1608(b)(3). (See Report at 7-8.) Therefore, this Court has personal jurisdiction over the Iran Defendants. lil. MAGISTRATE JUDGE NETBURN PROPERLY NOTED THAT THE IRAN DEFENDANTS DEFAULTED Plaintiffs’ effectuation of service triggered a sixty-day period for the Iran Defendants to serve “an answer or other responsive pleading to the complaint.” 28 U.S.C. § 1608(d). The Iran Defendants failed to do so, and the Clerk of Court entered Certificates of Default against the Iran Defendants on December 5, 2016 (Burnett), and against Iran on December 22, 2011 (Ashton) and September 25, 2023 (Ortiz). Thus, Magistrate Judge Netburn did not err in concluding that the Iran Defendants defaulted in this action. (See Report at 8 (citing Certificates of Default, No. 15-cv- 09903, ECF No. 67; No. 02-cv-06977, ECF No. 651; No. 22-cv-03100, ECF No. 11).) IV. MAGISTRATE JUDGE NETBURN DID NOT ERR IN HOLDING THE FRAN DEFENDANTS LIABLE A. U.S. National Plaintiffs This Court already “granted the Burnett Plaintiffs default judgment as to liability.” (Report at 8 (citing 15-cv-09903, Order of Judgment, ECF No. 85).) This decision arose under 28 U.S.C, § 1605A(c), and therefore, applies only to U.S. nationals. Thus, the Iran Defendants remain liable to the U.S. national Burnett Plaintiffs. Furthermore, the Ortiz Plaintiff was a U.S. national who brings her claim under 28 U.S.C. § 1605(A) and incorporates much of the evidence that this Court considered in the 2011 decision.

(See Pls. Mem. of Law., ECF No. 9854.) The underlying evidence supports the conclusion that this Court should avoid relitigating the same issues which have already been settled, and hold Iran liable to the Ortiz Plaintiff, B. Non-U.S. National Plaintiffs As for the non-U.S. national Plaintiffs, Magistrate Judge Netburn properly noted that they may bring claims pursuant to 28 U.S.C. § 1605B(b) and New York tort law. (See Report at 2 (citing In re 9/11, 2024 WL 4268663 (S.D.N.Y. Jan. 5, 2024) (“King R&R”), report and recommendation adopted by 2024 WL 1312504 (S.D.N.Y. Mar. 26, 2024) (“King Opinion”),) When multi-district litigation courts preside over state law claims, they apply the choice-of-law rules “that would have been applied by a state court in the jurisdiction in which a case was filed.” Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir 1993.) Here, Magistrate Judge Netburn did not err in applying New York assault and battery law to the claims by the Burnett Plaintiffs who suffered injuries in New York. (Report at 9.) Further, Magistrate Judge Netburn did not err in concluding that the Ian Defendants are liable on the Burnett Plaintiffs’ assault and battery claims. (See Report at 10-12.) Under New York law, civil assault “is an intentional placing of another person in fear of imminent harmful or offensive contact.” Tardif v. City of New York, 991 F.3d 394, 410 (2d Cir. 2021) (internal citation and quotation marks omitted), Civil battery is an intentional wrongful physical contact with another person without consent. /d. (internal citation and quotation marks omitted). “Aiding- fand-Jabetting includes the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury ; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.” King Opinion, 2024 WL 1312504, at *5 (internal citation omitted).

As stated previously, “[t|his Court has little trouble finding that the al Qaeda hijackers committed assault and battery against Plaintiff]s],” id, and the Iran Defendants aided and abetted the 9/11 attacks. Considering the evidence that the Burnett Plaintiffs have proffered—which the Iran Defendants have admitted is true by virtue of their default—this Court agrees with Magistrate Judge Netburn that the Burnett Plaintiffs successfully established the elements of their assault and battery claims under New York law, establishing liability over the lran Defendants here. (See Report at 10-12.) It is also appropriate for the Magistrate Judge to direct the Ashton Plaintiff, Ms. Cieslik, to refile her motion and assert a new cause of action. (See Report at 12.) Non-U.S. national Plaintiffs are barred from bringing claims under 28 U.S.C. § 1605A. Furthermore, a Plaintiff is “required to identify, and to bring his claims pursuant to, some . . . ‘cause of action arising out of a specific source of law’—for example, state law.” (Report at 12 (citing Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 840 (D.C. Cir. 2009) (internal citations omitted)).) Therefore, Ms. Cieslik’s claim pursuant to 28 U.S.C. § 1605A is denied without prejudice for failure to state a proper cause of action. V. MAGISTRATE JUDGE NETBURN DID NOT ERR IN APPLYING THE PERSONAL INJURY FRAMEWORK TO THE PLAINTIFFS On February 7, 2020, Magistrate Judge Netburn established a framework to award personal injury damages to individual Plaintiffs who had sustained injuries during the 9/11 attacks, which this Court adopted on February 14, 2020. (R. & R. to the Honorable George B. Daniels (“Personal Injury Report”), ECF No. 5879, adopted by Mem. Decision and Order, ECF No. 5946.) This framework outlined the personal injury awards for individual Plaintiffs as follows:

(Mem. Decision and Order, ECF No. 5946, at 3.) In the Personal Injury Report, Magistrate Judge Netburn defined and categorized what types of injuries this Court will typically consider to be “significant,” “severe,” or “devastating.” (Personal Injury Report at 6-9.) Magistrate Judge Netburn reserves her discretion to award further upward departures in what appears to be exceptional circumstances. (/d. at 6.) Here, Magistrate Judge Netburn properly determined that awards of pain and suffering damages as set forth in Exhibits A and B are appropriate. (Report at 14-36.) Plaintiffs submitted declarations wherein they extensively detailed the injuries they sustained during the September 11, 2001 terrorist attacks. (See Decl. in Supp. of Mot. for Entry of Partial Final Default Js. on Behalf of Burnett/Iran Personal-Injury Pls., ECF No. 9664; Decl. in Supp. of Mot. for Entry of Partial Final Default Js. on Behalf of Non-National 9/11 Personal-Injury Pls., ECF No. 9752; Decl, in Supp. of Mot. for Entry of Partial Final Défault J. against the Islamic Rep. of Iran as to Liability and Damages, ECF No. 9856; Decl. in Supp. of Mot. for Entry of Partial Final Default Js. on Behalf of Burnett/Iran Personal-Inyury Pls., ECF No. 9876; Decl. in Supp. of Mot. for Entry of Partial Final Default Js. on Behalf of Burnett/Iran Pls. Identified at Exhibit A, ECF No. 9881; Decl. in Supp. of Mot. for Entry of Partial Final Default Js. on Behalf of Non-National 9/11 Personal-Injury Pls., ECF No. 9892.) The Report accurately describes the relevant injuries, and Magistrate Judge Netburn did not err in her categorization of each injury as “significant,” “severe,” or “devastating.” Further, she did not err in recommending a reduction in damages for Mr. Ctarnella, nor in finding that Plaintiff Felipe David is entitled to a $12,000,000 award, due to his

“burns, six-week coma, months-long hospital stay, years-long physical therapy, and continuing care” which constitute “devastating injuries.” (Report at 26-28.) Additionally, Magistrate Judge Netburn appropriately found that “Plaintiffs should also be awarded prejudgment interest at a rate of 4.96 percent per annum, compounded annually for the period from September 11, 2001, until the date of the judgment.” (/d. at 36). VI. CONCLUSION

The Ashton Plaintiff's motion is DENIED without prejudice as to her claim under 28 U.S.C. § 1605A, with leave to amend; and the Burnett and Ortiz Plaintiffs’ motions are GRANTED, It is ORDERED that service of process was properly effectuated upon the Iran Defendants under 28 U.S.C. § 1608(a)(4) and 28 U.S.C. § 1608(b)(3); and it is ORDERED that this Court has subj ect matter and personal jurisdiction over the Plaintiffs’ claims against the Iran Defendants under 28 U.S.C. §§ 1330(a), 1605A, and 1605B(b); and it is ORDERED that judgment as to liability is entered for the Ortiz Plaintiff on her 28 U.S.C. § 1605A claims against Iran as described in this Order; and it is ORDERED that judgments as to liability are entered for the U.S. national Burnett Plaintiffs on their 28 U.S.C. § 1605A claims against the Iran Defendants as described in this Order; and it is ORDERED that judgments as to liability are entered for the non-U.S. National Burnett Plaintiffs on their assault and battery claims based on New York law against the Iran Defendants as described in this Order; and it is ORDERED that a partial final default judgment is entered against Iran for the Ortiz Plaintiff; and it is

ORDERED that a partial final default judgment is entered on behalf of the Burnett Plaintiffs identified in Exhibits A and B against the Iran Defendants; and it is ORDERED that Plaintiffs identified in Exhibit A be awarded pain and suffering damages as set forth therein; and it is ORDERED that Plaintiffs identified in Exhibit B be awarded pain and suffering damages as set forth therein; and it is ORDERED that Plaintiffs receiving pain and suffering damages identified in Exhibits A and B are awarded prejudgment interest of 4.96 percent per annum, compounded annually, running from September 11, 2001, until the date of judgment; and it is ORDERED that Plaintiffs identified in Exhibits A and B may submit future applications for punitive or other damages at a later date consistent with any future rulings of this Court; and it is ORDERED that Plaintiffs not appearing in Exhibits A and B may submit in later stages applications for damage awards to the extent they have not done so already.

The Clerk of the Court is directed to close the motions at: e ECF Nos. 9660, 9749, 9853, 9873, and 9889 in 03-md-1570 ECF Nos. 693, 707, 720, and 729 in 15-cv-9903 e ECF No. 12 in 22-cv-03100 e ECF No. 2081 in 02-cv-06977

Dated: March {2 _, 2025 . New York, New York te “A aha ORGIE B, DANIELS nited States District Judge

Exhibit A Case 1:02-cv-06977-GBD-SN Document 2236 Filed 03/12/25 Page 11 of 13 EXHIBIT A U.S. National Personal Injury Personal Representative Claimant Claim Information Pain & Suffering Damages First Middle Last Suffix First Middle Last Suffix Na ot nio 9n /a 1l 1ity 9/11 Site Case Complaint A Sm ue bn sd tim tue tin ot ns s& Documentation AP wri ao rr d Amount Treble Scott Roy Beloten 1:15-cv-09903, 53, at 3692 1 U.S. NY Burnett VIII $7,000,000 Maria E. Castillo 1:15-cv-09903, 53, at 3790 2 U.S. NY Burnett VIII $5,000,000 Anthony Ciarnella 1:15-cv-09903, 53, at 3801 3 U.S. NY Burnett VIII $5,000,000 John Cretella 1:15-cv-09903, 53, at 3845 4 U.S. NY Burnett VIII $5,000,000 James J. Csorny 1:15-cv-09903, 53, at 3852 5 U.S. NY Burnett VIII $5,000,000 Hipolito D'Oleo 1:15-cv-09903, 53, at 3923 6 U.S. NY Burnett VIII $5,000,000 Barbara Ellen Einzig 1:15-cv-09903, 53, at 3958 7 U.S. NY Burnett VIII $5,000,000 Fausto Antonio Gomez 1:15-cv-09903, 53, at 4063 8 U.S. NY Burnett VIII $5,000,000 Thomas Joseph Grogan 1:15-cv-09903, 53, at 4084 9 U.S. NY Burnett VIII $5,000,000 Vincent J. Panaro 1:15-cv-09903, 53, at 4548 10 U.S. NY Burnett VIII $5,000,000 Milcia C. Pena 1:15-cv-09903, 53, at 4567 11 U.S. NY Burnett VIII $5,000,000 1:15-cv-09903, 53, at 3869 12 Jeremy Brandon Davids U.S. NY Burnett IX $5,000,000 13Lisa Ortiz Angel R. Ortiz U.S. NY Ortiz 1:22-cv-03100, 1, at 1 $5,000,000 Exhibit B Case 1:02-cv-06977-GBD-SN Document 2236 Filed 03/12/25 Page 13 of 13 EXHIBIT B Non-U.S. National Personal Injury Claimant Claim Information Pain & Suffering Damages Nationality on Amendments & Prior First Middle Last Suffix 9/11 Site Case Complaint Documentation Amount Treble 9/11 Substitutions Award Philipson Azenabor Nigeria NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 3661 $5,000,000 Felipe David Honduras NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 3868 $12,000,000 Dominican Antonio Narcisco Fernandez Republic NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 3985 $5,000,000 Edgar Gutierrez Columbia NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4098 $5,000,000 Dominican Jose Nivar Republic NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4511 $5,000,000 Dominican Manuela Pichardo Republic NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4581 $5,000,000 Dominican Miriam Rodriguez Republic NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4670 $5,000,000 Thelma Savery Belize NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4716 $5,000,000 Dominican Yuni Vasquez Republic NY Burnett Non-Nationals II 1:15-cv-09903, 53, at 4874 $5,000,000 Dominican 1:15-cv-09903, 53, at 3639 Ivan Almendarez Jr. Republic NY Burnett Non-Nationals III $5,000,000 Robert Ramos Nicaragua NY Burnett Non-Nationals III 1:15-cv-09903, 53, at 4622 $5,000,000