UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NOALA FRITZ, et al.,
Plaintiffs, Civil Action No. 15-456 (RDM) v.
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on Plaintiff Bashar Al-Taie’s renewed motion for entry of
default. Dkt. 108. As the Court explained in its prior opinion, Plaintiffs brought his action
against Defendants the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps
(collectively, “Iran”), seeking compensatory and punitive damages for the injuries suffered as a
result of “the abductions and murders of four U.S. soldiers serving in Iraq,” including, as
relevant here, the October 2006 abduction, hostage-taking, and murder of Staff Sergeant Ahmed
Al-Taie. Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 55 (D.D.C. 2018) (“Fritz I”.). In
Fritz I, the Court held that it has subject matter jurisdiction under the state-sponsored terrorism
exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A, id. at 86, and that it has
personal jurisdiction over both Defendants, id. at 89. The Court further held that Plaintiffs had
established by a preponderance of the evidence that Iran provided material support to a network
of Iraqi Shia militias known as Asaib Ahl Al-Haq (“AAH”) and that AAH used that support to
take Staff Sergeant Al-Taie hostage and to torture and kill him, in violation of 18 U.S.C.
§ 2339A. Id. at 78–86. Based on these findings, the Court held that the estate of Staff Sergeant Al-Taie and Staff Sergeant Al-Taie’s father, mother, and brother Hathal were all entitled to
relief. Id. at 87.
The Court went on to explain, however, that it was not yet persuaded that Staff Sergeant
Al-Taie’s brother Bashar was entitled to relief because he “is not a U.S. national” and therefore
“is not entitled to relief under” the federal cause of action created in the statute, 28 U.S.C.
§ 1605A(c),” and because he had failed “to establish that he is entitled to relief based on [his]
state law claims,” id. at 87, 91–92. Plaintiff Bashar Al-Taie now renews his motion for the entry
of default, relying solely on the claim that he is entitled to relief under District of Columbia law
for Defendants’ intentional infliction of emotional distress (“IIED”). Dkt. 108. For the reasons
explained below, the Court agrees, and, accordingly, will grant Bashar Al-Taie’s renewed motion
for entry of default and will enter an award of damages.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court has previously made extensive findings of fact regard Sergeant Al-Taie’s
abduction, torture, and murder, all of which apply here with equal force. Fritz I, 320 F. Supp. 3d
at 57–75. The Court will briefly summarize only those facts relevant to the present motion.
Plaintiff Bashar Al-Taie is the brother of Staff Sergeant Ahmed Al-Taie, a U.S. Service
member who was abducted while deployed to Baghdad, held hostage, tortured, and ultimately
murdered. See id. at 78–86. As relevant here, the Court previously found that (1) Iran provided
AAH with “significant support—in the form of training, supplies, intelligence, and funding—as
part of its larger strategy to destabilize Iraq and [to] drive the United States from the Middle
East,” (2) “AAH held [Sergeant] Al-Taie hostage, brutally beat and murdered him,” and (3)
AAH could “not have committed . . . th[o]se acts without Iran’s support.” Id. at 58. The Court
further found that Iran’s role in these events was sufficient to support the Court’s subject matter
2 jurisdiction under 28 U.S.C. § 1605A(a), see id. at 86, and that, because “Plaintiffs accomplished
service under 28 U.S.C. § 1608(a)(4) on Iran, the Court possesses personal jurisdiction over it,
id. at 89. In addition to those findings, the Court concluded that the U.S. national plaintiffs had
“carried their burden of establishing a right to relief under the federal cause of action established
in § 1605A.” Id. at 76. That conclusion, however, did not extend to Plaintiff Bashar Al-Taie.
Plaintiff Bashar Al-Taie is not a U.S. national and, as a result, cannot rely on the FSIA’s
cause of action, which applies only 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. 28 U.S.C.
§ 1605A(c). But, as the Court explained in Fritz I, that does not fully resolve Bashar Al-Taie’s
claims. Under the “pass-through approach” foreign family members, like Bashar Al-Taie, may
rely on state tort law to supply the requisite cause of action. See Fritz I, 320 F. Supp. 3d at 89.
That approach requires the court first to determine “which jurisdiction’s substantive law to
apply,” Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009), and then to
evaluate whether the plaintiff has offered “admissible evidence sufficient to substantiate the
essential elements of [his] claim,” Fritz I, 320 F. Supp. 3d at 76.
Following that approach, the Court applied D.C. choice-of-law principles and concluded
that D.C. law applies to Bashar Al-Taie’s common law claims. See Fritz I, 320 F. Supp. 3d at
89–91. The Court further concluded, however, that Bashar had yet to establish that he was
entitled to relief under D.C. law for any of his asserted state law claims, which included (1)
wrongful death, (2) intentional infliction of emotional distress, (3) conspiracy, and (4) aiding and
abetting. See id. at 91–92. As to his wrongful death claim, the Court noted that it was not aware
of any authority that “permits a sibling to recover for wrongful death under D.C. law.” Id. at 91.
3 His claims for “conspiracy” and “aiding and abetting” were, likewise, unavailing because Bashar
had not identified, and the Court was not aware of, any authority that recognized an independent
action for those claims. Id. Finally, as to his IIED claim, the Court noted that the D.C. Circuit
had certified to the D.C. Court of Appeals the question whether “a claimant alleging emotional
distress arising from a terrorist attack that killed or injured a family member” must “have been
present at the scene of the attack in order to state an [IIED] claim,” and concluded that it would
be premature to decide Bashar’s IIED claim “[u]ntil [after] the D.C. Court of Appeals answer[ed]
that question.” Id. at 92 (quoting Owens v. Republic of Sudan, 864 F.3d 751, 809–10 (D.C. Cir.
2017)). The Court, accordingly, denied without prejudice Bashar Al-Taie’s motion for entry of
default. Id.
The month after the Court issued its opinion in Fritz I, the D.C. Court of Appeals
answered the question in Republic of Sudan v. Owens, 194 A.3d 38 (D.C. 2018), holding that
D.C. law permits a plaintiff to bring an IIED claim for emotional distress arising from a terrorist
attack that killed or injured a family member, even if the plaintiff was not present at the scene of
the attack. Id. at 42–45. Relying on that decision, Bashar Al-Taie now moves for (1) the entry
of a default judgment on liability against Iran, (2) an award of damages for the intentional
infliction of emotional distress resulting from those acts, and (3) an award of punitive damages.
Dkt. 108 at 1.
II. ANALYSIS
To obtain a default judgment against Iran, Bashar “must (1) carry [his] burden of
producing evidence sufficient to show that [his] claims fall within the state-sponsored terrorism
exception to the FSIA,” (2) “establish that [D]efendants were served in accordance with the
FSIA,” and (3) “establish [his] right to relief under federal or state law . . . by offering evidence
4 satisfactory to the court.” Fritz I, 320 F. Supp. 3d at 57 (internal quotations and citations
omitted). In Fritz I, the Court found that Bashar Al-Taie, like the other plaintiffs in the case, had
satisfied the first and second of these requirements—that is, his claims fall within the state-
sponsored terrorism exception to the FSIA and Iran and the IRGC were served in accordance
with the FSIA. See id. at 86, 89. Bashar Al-Taie failed to show, however, that he had satisfied
the third requirement—that is, that a federal statute or an applicable common law tort affords
him a right to relief. As the Court explained in Fritz I, D.C. law governs Bashar Al-Taie’s state
law claims but he had “yet to establish . . . that [he] [was] entitled to recover under that body of
law.” Id. at 91. His renewed motion picks up where his previous motion left off. He now
presses only his IIED claim and argues that he is entitled to relief because the D.C. Court of
Appeals has now recognized that a plaintiff who suffers emotional distress due to a terrorist
attack that killed a family member is entitled to relief, even if the plaintiff was not present at the
terrorist attack. Dkt. 108 at 4, 9.
A. IIED and D.C. Tort Law
In Republic of Sudan v. Owens, 194 A.3d 38 (D.C. 2018), the D.C. Court of Appeals was
asked to answer the following question certified to it by the D.C. Circuit:
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 38. As a starting point, the D.C. Court of Appeals held that under D.C. law § 46(2)(a) of
the Restatement (Second) of Torts “governs IIED claims where the plaintiff’s distress was
caused by harm to a member of his or her immediate family member.” Id. at 41. Thus, “as a
general matter, to recover for IIED [under D.C. law], a plaintiff whose emotional distress arises
5 from harm suffered by a member of his or her immediate family must be ‘present’ when the
harm occurs and otherwise satisfy the rule established in . . . § 46(2)(a).” Id. at 42.
But, as the court further explained, the general rule that an IIED claimant must be
“present” when the harm occurs is subject to an important “caveat”: the presence requirement
does not apply in “an IIED case where the defendant is a state sponsor of terrorism denied
sovereign immunity by the FSIA.” Id. The D.C. Court of Appeals reasoned that the presence
requirement was not necessary to “ward off disingenuous claims” or to provide “a judicially
manageable standard that protects courts form a flood of IIED claims” in FSIA terrorism cases
because the same factors that “justify stripping foreign sovereigns of their immunity allay the
concerns that the presence requirement was designed to address.” Id. at 42–43. As a result, if a
plaintiff satisfies the requirements of 28 U.S.C. § 1605A, he is excused from the presence
requirement and may establish an IIED claim by “satisfying the remaining elements of
§ 46(2)(a)—that is, [he] must establish that the defendant engaged in ‘extreme and outrageous
conduct’ and [that the defendant] ‘intentionally or recklessly’ caused the plaintiff[] ‘severe
emotional distress’ by harming a member of the[] [plaintiff’s] ‘immediate family.’” Id. at 44.
B. Bashar Al-Taie’s IIED Claim
Bashar Al-Taie satisfies all the elements required to recover against Iran on his IIED
claim.
To start, the presence requirement does not apply to his IIED claim because he has
already satisfied each of the requirements of the state-sponsored terrorism exception to the FSIA,
28 U.S.C. § 1605A. See Fritz I, 320 F. Supp. 3d at 78 (discussing the requirements for the
FSIA’s state-sponsored terrorism exception and concluding that they are satisfied in this case).
The only remaining question, then, is whether Bashar Al-Taie has offered evidence sufficient to
6 satisfy the remaining elements of the tort. The evidence must show that (1) Iran engaged in
“extreme and outrageous conduct” that (2) “intentionally or recklessly” (3) caused him to suffer
severe emotional distress (4) by harming a member of his “immediate family.” Restatement
(Second) of Torts § 46.
The evidence already before the Court easily satisfies most of these elements. The
immediate family member element is satisfied because “immediate family” encompasses
siblings. See Murphy v. Islamic Rep. of Iran, 740 F. Supp. 2d 51, 75 (D.D.C. 2010). Likewise,
the requirement that the conduct be “extreme and outrageous” is satisfied because “[a]cts of
terrorism are by their very definition extreme and outrageous and intended to cause the highest
degree of emotional distress.” Valore v. Islamic Rep. of Iran, 700 F. Supp. 2d 52, 79 (D.D.C.
2010). That same conclusion applies when a foreign state, which has been designated as a “state
sponsor of terrorism,” provides material support or resources used to effectuate an act of
terrorism. See, e.g., Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 298
(D.D.C. 2006) (holding that Iran’s “conduct in facilitating, financing, and providing material
support to bring about this attack was intentional, extreme, and outrageous”).
On the facts of this case, moreover, the Court has no difficulty finding that Iran’s conduct
was “beyond all possible bounds of decency” and thus “extreme and outrageous.” Bernstein v.
Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) of Torts § 46,
comment d.). As the Court previously explained, Iran actively provided material support to
“AAH as part of a comprehensive campaign to deter the U.S. from maintaining a presence in the
Middle East by terrorizing and intimidating coalition forces.” Fritz I, 320 F. Supp. 3d at 86.
That conduct allowed AAH to hold Sergeant Al-Taie hostage, to torture him, and, ultimately to
murder him. The conduct was, by any measure, “atrocious, and utterly intolerable in a civilized
7 community,” Bernstein, 649 A.2d at 1075 (quoting Restatement (Second) of Torts § 46, cmt. d).
The Court is also persuaded that Iran acted “intentionally or recklessly.” As explained in greater
detail in Fritz I, the evidence shows that Iran acted “in deliberate disregard of a high degree of
probability,” Restatement (Second) of Torts § 46, cmt. d, that its conduct would result in
emotional distress to the immediate family members of the victims of the acts of terror that their
support helped to accomplish—including Bashar, see Fritz I, 320 F. Supp. 3d at 86 (concluding
that “Plaintiffs’ injuries were ‘reasonably foreseeable or anticipated as a natural consequence’ of
Iran’s support to AAH”).
This leaves only the question whether Bashar Al-Taie suffered severe emotional distress.
Under D.C. law, “‘mental anguish’ and ‘stress’ [does] not rise to the level of ‘severe emotional
distress’ required” to establish an IIED claim. Futrell v. Dep’t of Labor Fed. Credit Union, 816
A.2d 793, 808 (D.C. 2003) (citing Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.
1982)). Rather, the conduct must “cause the plaintiff emotional upset of so acute a nature that
harmful physical consequences might be not unlikely to result.” Sere, 443 A.2d at 37 (quoting
Clark v. Associated Retail Credit Men, 105 F.2d 62, 65 (D.C. 1939)). Bashar Al-Taie has
offered no evidence that he has suffered any “physical consequences” of his emotional trauma,
but the Court finds that the emotional impact of years of uncertainty about the fate of his brother,
only to learn that he had been tortured and brutally murdered, is both “severe” and the type of
trauma that is “not unlikely to result” in “harmful physical consequences.”
The evidence Bashar Al-Taie offers falls into two buckets. First, he offers compelling
evidence that he shared a very close relationship to his brother. He has offered, for example,
deposition testimony that he and his brother were “close [in] age” and, as children, “used to play
together,” go “to school together,” and engaged in “hobbies . . . together.” Dkt. 80-9 at 5
8 (Bashar Dep. 10:7-8, 11:7–13.). He and his brother “used to drive together with [their] parents
and swim together, play together, do everything together . . . [a]ll the time . . . together,” Dkt. 80-
9 at 9 (Bashar Dep. 28:14–18). As a teenager, Bashar Al-Taie “used to go” watch his brother’s
band practice. Id. at 7 (Bashar Dep. 18:7–8). Staff Sergeant Al-Taie was also close to Bashar
Al-Taie’s children; “they used to love their uncle too much because [he let them] do whatever
they want to do, [even if] they want[ed] to mess the room and all.” Id. at 9 (Bashar Dep. 26:18–
22). Later, when Ahmed Al-Taie joined the army, he called “like every week[,] twice probably.”
Id. at 6 (Bashar Dep. 16:17–18).
Second, Bashar Al-Taie offers evidence that the loss of his brother had a terrible impact
on his family. He attests, for instance, that after his brother’s death his father “[couldn’t] sleep
for two to three days,” id. at 8 (Bashar Dep. 24:15–17), and that both his parents now have a
“bunch of pills”—antidepressants and anti-anxiety medications—that “they have to take every
day,” id. (Bashar Dep. 25:12–13). This testimony is consistent with the deposition testimony of
their father, Kousay Al-Taie, and mother, Nawal Al-Taie. Both attest, for example, that since
their son’s abduction and death they have suffered from anxiety, depression, and high-blood
pressure, that Nawal Al-Taie has also developed diabetes despite having no family history of
diabetes, and that Nawal and Kousay Al-Taie have been on antidepressants and sleeping
medication. See Dkt. 80-6 at 8 (Kousay Dep. 22:1–23:21) (describing physical manifestations of
the emotional distress Kousay and Nawal suffered); accord Dkt. 80-7 at 7 (Nawal Dep. 19:17–
20:4) (sleeplessness); id. at 8–9 (Nawal Dep. 25:15–26:2) (high-blood pressure, diabetes, sleep
medication); id. at 9 (Nawal Dep. 26:15–24) (depression and antidepressants); id. (Nawal Dep.
29:4–15) (ongoing need for medication).
9 Although there is no evidence that Bashar Al-Taie suffered “physical” harm as a result of
his emotional distress, the Court finds that he suffered the type of devastating—indeed,
crushing—emotional trauma that falls within the scope of the tort of IIED. Iran’s conduct in
supporting AAH’s terrorist activity—including the torture and murder of a son and brother—was
“sufficiently extreme and outrageous” to support Bashar Al-Taie’s claim for relief. See, e.g.,
Homan v. Goyal, 711 A.2d 812, 821 (D.C. 1998) (holding that a plaintiff could establish severe
emotional distress even absent evidence of bodily harm).
C. Damages
The final question is the measure of damages. Bashar seeks “$5,000,000 in solatium
damages” and “an award of punitive damages in an equal amount [the Court awarded] to . . . his
brother, [Plaintiff] Hathal.” Dkt. 108 at 13. As explained below, the Court concludes that
Bashar is entitled to an award of compensatory damages, prejudgment interest, and punitive
damages akin to what the Court has awarded to Hashal Al-Taie, Ahmed’s other brother.
A foreign state that that is not entitled to immunity under the FSIA “shall be liable in the
same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C.
§ 1606. In the context of Bashar Al-Taie’s claim, that means that he is entitled to the types of
relief that a court may award an IIED claimant under D.C. law. He has not, however, provided
any briefing on the types of damages available under D.C. law and merely asserts that he entitled
to solatium and punitive damages. Dkt. 108 at 14–15. The Court, moreover, is unaware of any
decisions from the D.C. Court of Appeals regarding the appropriate relief for an IIED claimant in
an FSIA terrorism case. Courts in this jurisdiction, however, have long treated § 1605A(c)
solatium claims as “indistinguishable from . . . IIED claim[s]” and have looked to precedents
“awarding damages for intentional infliction of emotional distress” in assessing FSIA solatium
10 claims. Valore, 700 F. Supp. 2d at 85; see also Estate of Hirshfeld v. Islamic Republic of Iran,
330 F. Supp. 3d 107, 140–41 (D.D.C. 2018). The converse is equally apt, and the Court will,
accordingly, look to FSIA precedent in considering the proper measure of damages in this
terrorism-related IIED case.
In the typical FSIA terrorism case, solatium damages are awarded to the victim’s family
members “based on multiple factors—including ‘evidence establishing an especially close
relationship between the plaintiff and decedent,’ ‘medical proof of severe pain, grief or suffering
on behalf of the claimant,’ and the particular ‘circumstances surrounding the terrorist attack
which made the suffering particularly more acute or agonizing.’” Fritz v. Islamic Republic of
Iran, No. 5-cv-456, 2018 WL 5046229, at *23 (D.D.C. Aug. 13, 2018), report and
recommendation adopted as modified, 324 F. Supp. 3d 54 (D.D.C. 2018) (quoting Oveissi, 768
F. Supp. 2d at 26–27). Here, Bashar Al-Taie has offered compelling evidence concerning his
close relationship to Ahmed Al-Taie and the extreme pain that Bashar suffered as a result of
Ahmed’s abduction, torture, and murder. Based on that evidence, the Court finds that, like the
others Al-Taie Plaintiffs, Bashar experienced “extreme suffering” as he “waited for over five
years to learn the fate” of his brother. Fritz, 2018 WL 5046229, at *23. The Court, accordingly,
concludes that it is appropriate to award Bashar Al-Taie $4.5 million in compensatory damages,
which is equal to the amount of solatium damages awarded to Plaintiff Hathal Al-Taie. See id.
Likewise, the Court concludes that it is appropriate to award Bashar Al-Taie prejudgment
interest on that award utilizing the same methodology used to calculate the Hathal’s award,
11 which results in an award of $ 3,240,000.1 See id. at *24 (“It is within the Court’s discretion to
award prejudgment interest from the date of the attack until the date of final judgment”).
Bashar also seeks, and the Court will award, “punitive damages in an equal amount to
that of his brother, Hathal.” Dkt. 108 at 14. Under D.C. law, the intentional infliction of
emotional “provide[s] an appropriate basis for an award of punitive damages” because “it is by
definition willful and outrageous conduct which society finds intolerable, and seeks to deter.”
Sere, 443 A.2d at 37–38. Moreover, as the Court has previously explained, despite the D.C.
Circuit’s holding that “a plaintiff proceeding under either state or federal law cannot recover
punitive damages for conduct occurring prior to the enactment of § 1605A,” Owens, 864 F.3d at
818, the Al-Taie Plaintiffs, including Bashar Al-Taie, may recover punitive damages because
Ahmad Al-Taie “was not murdered until sometime between February 2009 and February 2011,
well after the enactment of the 2008 NDAA,” Dkt. 93 at 15. Given that D.C. law and the FSIA
permit Bashar to obtain punitive damages and given that the Court has previously concluded that
punitive damages is warranted in this case, it will award Bashar Al-Taie punitive damages in an
amount equal to the amount awarded Hathal. That is, Bashar Al-Taie is awarded $7,826,831 in
punitive damages.2
1 As in Fritz I, the Court has calculated the prejudgment interest as the average prime rate in each year from the date of the attack, October 23, 2006, to April 2020. See Dkt. 93 at 14 & n.2. Here, that results in a multiplier of 1.72. 2 This figure was calculated by first determining Hathal Al-Taie’s portion of the compensatory damages awarded to the estate and family of Al-Taie. To do so, the Court divided the total amount of compensatory damages awarded to Hathal Al-Taie ($7,224,887) by the sum of compensatory damages awarded to the Estate of Ahmed Al-Taie, Kousay Al-Taie, Nawal Al- Taie, and Hathal Al-Taie ($51,604,488). The Court then multiplied that figure (0.14) by the total amount of punitive damages awarded to Estate of Ahmed Al-Taie, Kousay Al-Taie, Nawal Al- Taie, and Hathal Al-Taie ($55,903,936). See Fritz v. Islamic Republic of Iran, 324 F. Supp. 3d 54, 66 (D.D.C. 2018) (holding that “the award of punitive damages will be apportioned among the estate and family of Al-Taie relative to their individual compensatory awards” (internal quotations and citations omitted)). 12 CONCLUSION
For the reasons explained above, the Court will grant Plaintiff Bashar Al-Taie’s motion
for default judgment, Dkt. 108, will enter default judgments against Defendants the Islamic
Republic of Iran and the Islamic Revolutionary Guard Corps with respect to the intentional
infliction of emotional distress claim brought by Plaintiff Bashar Al-Taie, and will award
damages to Plaintiff Bashar Al-Taie as described above.
A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: April 10, 2020