Lee v. Iran

• Court: District Court, District of Columbia
• Decided: February 1, 2021
• Docket: Civil Action No. 2019-0830
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) WILLIAM LEE et al., ) ) Plaintiffs, ) ) v. ) Case No. 19-cv-00830 (APM) ) ISLAMIC REPUBLIC OF IRAN, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

From 2004 through 2011, the U.S. military faced insurgent attacks in Iraq that Plaintiffs

allege were materially supported by Iran. This case concerns 99 such attacks. It is brought by

over 352 Plaintiffs, who include American service members and military contractors who were

injured or killed while serving in Iraq, as well as their family members and estates. Iran has failed

to respond to the suit, and Plaintiffs have moved for default judgment.

Given the scope of Plaintiffs’ claims, this litigation will proceed in phases. Here, the court

considers Plaintiffs’ motion for default judgment as to four “bellwether” attacks, which involve

the claims of 20 Plaintiffs. The court will reserve damages determinations arising from these four

attacks, as well as issues of liability and damages on the remaining 95 attacks for later proceedings.

II. LEGAL STANDARD

Plaintiffs seek default judgment against Iran under the Foreign Sovereign Immunities Act

(“FSIA”) because Iran has failed to defend this lawsuit. See Pls.’ Proposed Findings of Fact &

Conclusions of Law in Supp. of Their Mot. for Default J., ECF No. 23 [hereinafter Pls.’ Proposed

Findings]. “[T]he entry of a default judgment is not automatic and requires the exercise of sound discretion.” Salzman v. Republic of Iran, No. 17-cv-2475 (RDM), 2019 WL 4673761, at *2

(D.D.C. Sept. 25, 2019) (internal quotation marks omitted). A claim for default judgment under

the FSIA is governed by the statutory requirement that “[n]o judgment by default shall be entered

. . . against a foreign state . . . unless the claimant establishes his claim or right to relief by evidence

satisfactory to the court.” 28 U.S.C. § 1608(e); Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C.

Cir. 2014). “[T]he FSIA leaves it to the court to determine precisely how much and what kinds of

evidence the plaintiff must provide, requiring only that it be satisfactory to the court.” Han Kim

v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014) (internal

quotation marks omitted). “[I]ndeed, the quantum and quality of evidence that might satisfy a

court can be less than that normally required.” Owens v. Republic of Sudan, 864 F.3d 751, 785

(D.C. Cir. 2017), vacated & remanded on other grounds sub nom. by Opati v. Republic of Sudan,

140 S. Ct. 1601 (2020).

In addition, “[a] plaintiff seeking default judgment must persuade the trial court that

subject-matter jurisdiction and personal jurisdiction over the defendant are satisfied.” Karcher v.

Islamic Republic of Iran, 396 F. Supp. 3d 12, 21 (D.D.C. 2019). “A default judgment rendered in

excess of a court’s jurisdiction is void.” Jerez, 775 F.3d at 422.

III. FINDINGS OF FACT

At this phase of the litigation, the court’s task is to determine whether Iran is liable for four

“bellwether” attacks against U.S. servicemen and contractors in Iraq between 2006 and 2009. The

attacks at issue are: (1) an October 22, 2006 attack on a hospital route in Baghdad; (2) a March 23,

2008 attack during a patrol outside Baghdad; (3) a May 17, 2009 attack on a patrol for countering

improvised rocket-assisted munitions; and (4) a January 20, 2007 attack on the Karbala Provincial

Joint Coordination Center (“PJCC”). All four of these attacks were the subject of Judge Kollar-

2 Kotelly’s unimpeachably thorough opinion, issued after a three-day bench trial, in Karcher v.

Republic of Iran. See 396 F. Supp. 3d at 33–35 (Oct. 22, 2006 attack); id. at 38–40 (Mar. 23, 2008

attack); id. at 42–45 (May 17, 2009 attack); id. at 45–46 (Jan. 20, 2007 attack). Judge Moss also

considered the January 20, 2007 attack on the Karbala PJCC at length in Fritz v. Republic of Iran,

320 F. Supp. 3d 48, 64–71 (D.D.C. 2018).

Per Plaintiffs’ request, the court takes judicial notice of the Karcher and Fritz decisions

pursuant to Federal Rule of Evidence 201(b), which “extends to judicial notice of court records in

related proceedings.” Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010).

In addition, Plaintiffs have submitted to the court all of the evidence that was presented to the

Karcher court during its three-day bench trial. Pls.’ Proposed Findings at 2 & n.5. As “the FSIA

does not require this Court to relitigate issues that have already been settled in previous decisions,”

the court can “review evidence considered in an opinion that is judicially noticed, without

necessitating the re-presentment of such evidence.” Murphy v. Islamic Republic of Iran,

740 F. Supp. 2d 51, 59 (D.D.C. 2010) (internal quotation marks omitted). The court therefore may

rely on the evidence presented to the Karcher court, but must nonetheless “reach [its] own,

independent findings of fact.” See Rimkus, 750 F. Supp. at 172. The court here has independently

reviewed the evidence submitted.

A. Service of Process

Before evaluating the evidence, the court makes its factual findings concerning Plaintiffs’

attempts to serve Iran, a component of the court’s personal jurisdiction analysis. Plaintiffs

attempted to serve Iran by mailing “one copy of the summons, [amended] complaint, and notice

of suit, together with a translation of each” by registered mail with return receipt through the

U.S. Postal Service to Dr. Mohammad Zarif, Iran’s head of the Ministry of Foreign Affairs.

3 See Aff. Requesting Foreign Mailing, ECF No. 18; Certificate of Mailing, ECF No. 20 [hereinafter

Certificate of Mailing]. When thirty days passed without a response from Iran, Plaintiffs served

Iran via diplomatic channels. See Aff. Requesting Foreign Mailing, ECF No. 22 [hereinafter

Diplomatic Service Request]. The Department of State transmitted a summons, Amended

Complaint, and notice of suit to Iran through the Embassy of Switzerland in Tehran on December

18, 2019. Letter from J. Hess, Attorney Adviser, Overseas Citizens Servs., Office of Legal Affairs,

to Angela D. Caesar, Clerk of Court for the U.S. District Court for the District of Columbia (Jan.

21, 2020), ECF No. 26 [hereinafter Dep’t of State Service Attempt]. Thereafter, Iran had sixty

days—or until February 18, 2020, accounting for weekends and holidays—to respond to the

Amended Complaint. 28 U.S.C. § 1608(d). It failed to do so.

B. Iran’s Responsibility for the Bellwether Attacks

The court next turns to its review of the Karcher decision, the evidence before the Karcher

court, and the Fritz decision, as well as supplemental evidence provided to the court regarding

Iran’s responsibility for each of the bellwether attacks.

1. Expert Testimony

As a threshold matter, Plaintiffs request that the court qualify seven experts in support of

their case. Each of these experts was previously qualified in Karcher, and the court relies on the

experts’ reports, the experts’ testimony at the Karcher trial, and the Karcher court’s thorough

consideration of each candidate to qualify the following individuals as experts:

• Dr. Matthew Levitt. 1 The court qualifies Dr. Levitt as an expert “regarding Iran’s role as

a state sponsor of terrorism; Iran’s Islamic Revolutionary Guard Corps, or IRGC, the

Islamic Revolutionary Guard Corps Qods Force, or IRGC-QF; Hezbollah; and those

1 For ease of reference, the court has omitted the titles of Plaintiffs’ expert witnesses after the first reference. 4 entities’ support and training of the Special Groups in Iraq.” Tr. 1 at 26:6–14; Expert

Report of Dr. Matthew Levitt, PX-154 [hereinafter Levitt Report, PX-154]; 2 see also

Karcher, 396 F. Supp. 3d at 18.

• Lieutenant General (Ret.) Michael L. Oates. The court qualifies Lieutenant General Oates

as an expert “on the tactical and strategic threats faced by US and Coalition Forces in Iraq

[between] 2003 and 2008[,] . . . including the specific threat to US military forces from

[Improvised Explosive Devices (‘IEDs’)] and other ordnance, including [Explosively

Formed Penetrators (‘EFPs’)].” Tr. 1 at 86:15–22; Expert Report of Lieutenant General

Michael L. Oates, United States Army (Ret.), PX-153 [hereinafter Oates Report, PX-153];

see also Karcher, 396 F. Supp. 3d at 18.

• Colonel (Ret.) Leo E. Bradley III. The court qualifies Colonel Bradley as an expert on

U.S. military explosive ordnance disposal operations, which include the U.S. Army’s

capability “to locate, identify, render safe”—disarm or defuse—“unexploded ordnance,

exploit and evaluate that ordnance, and dispose of the ordnance,” and IED investigations.

Tr. 2 at 7:22–8:2, 12:9–13; Expert Report of Colonel Leo E. Bradley III, U.S. Army

(Retired), PX-156; see also Karcher, 396 F. Supp. 3d at 17–18.

• Captain (Ret.) Donald Wade Barker. The court qualifies Captain Barker as an expert on

“IEDs, EFPs and counter-IED technology.” Tr. 3 at 10:8–12; Expert Report of CPT (Ret.)

Donald Wade Barker, PX-158 [hereinafter Barker Report, PX-158]; see also Karcher, 396

F. Supp. 3d at 17.

2 For simplicity, the court has adopted a modified convention for citations to evidence submitted to the Karcher court. All transcripts from the Karcher trial are denominated with “Tr.” and a number 1 through 5 indicating the volume in which the cited testimony appears. A transcript designated “Tr. 1,” for example, appears in the first volume of the transcript from the Karcher trial. Exhibits from the Karcher trial are denoted by their title and “PX,” followed by the exhibit number assigned to the exhibit during the Karcher trial. 5 • Colonel (Ret.) Kevin Lutz. The court qualifies Colonel Lutz as an expert “in the use of

explosive devices, including IEDs and other ordnance, by transnational terrorist

organizations and specifically the tactics, techniques[,] and procedures used by terrorist

groups in Iraq between 2003 and 2011.” Tr. 5 at 15:4–11; Expert Report of COL (Ret.)

Kevin Lutz, PX-159 [hereinafter Lutz Report, PX-159]; see also Karcher, 396 F. Supp. 3d

at 18.

• Russell L. McIntyre. The court qualifies McIntyre as an expert “on IED threats to US

forces, specifically in Iraq between 2003 and 2011, and with an additional focus on

explosively formed projectiles or penetrators.” Tr. 5 at 64:16–22; Expert Report of Russell

L. McIntyre, PX-157 [hereinafter McIntyre Report, PX-157]; see also Karcher, 396

F. Supp. 3d at 18.

• Michael P. Pregent. The court qualifies Pregent as an expert in “intelligence matters,

including attribution of terror attacks and . . . evidence collection and analysis in the

intelligence field.” Tr. 5 at 173:3–7; Expert Report of Michael P. Pregent, PX-155

[hereinafter Pregent Report, PX-155]; see also Karcher, 396 F. Supp. 3d at 18–19.

2. Iran’s Role in Iraq

The roots of Iran’s involvement in Iraq date back to the late 20th century, when Iran began

supporting Shi’a groups in the region and developed relationships with terrorist organizations that

would ultimately operate in Iraq. In 1979, the Supreme Leader of Iran established what became

known as the Islamic Revolutionary Guard Corps (“IRGC”), which was designed to implement

the Ayatollah’s “vision for an Islamic theocratic government in Iran.” McIntyre Report, PX-157,

at 4–5. Over the course of the 1980s, Iran built up combat forces composed of religious extremists

and created “a fully functional militia backed by the Islamic Revolutionary Guard Corps-Qods

6 Force” (“Qods Force”). Levitt Report, PX-154, at 7; McIntyre Report, PX-157, at 5 & n.6. The

Qods Force “trains, advises and logistically supports terrorist and insurgent movements, and

performs related clandestine and covert special operation activities, on behalf of the Iranian

government.” McIntyre Report, PX-157, at 6.

At the same time, Iran and the IRGC were “provid[ing] critical assistance to newly-

emerging Hezbollah, which swore an oath of fealty to Iran.” Id. at 7. In exchange for Hezbollah’s

unwavering dedication to Iran and its revolutionary aims, Iran “bankroll[ed], arm[ed] and train[ed]

Hezbollah.” Id.; see also Levitt Report, PX-154, at 9.

Iran’s proxies were already operating in Iraq prior to 2003, when the United States and

coalition forces launched Operation Iraqi Freedom and dismantled Saddam Hussein’s regime.

Levitt Report, PX-154, at 6–7. With Hussein out of power, Iran seized the “historic opportunity

to reshape its relationship with Iraq and, in the process, increase its influence in the region.” Id.

at 7. Iran sought to install “weakened decentralized and Shi’a-dominated” leadership in Iraq and

therefore set out to “foster unity among Iraq’s various Shia parties and movements so that [it]

could consolidate Shia political control . . . over the new Iraqi government.” Id. at 8.

To that end, Iran developed numerous Shi’a proxies with a presence in Iraq. Iran backed

the Office of the Martyr Sadr, a movement that “spoke for Iraq’s disenfranchised Shi’a” and was

led by Muqtada al-Sadr. Oates Report, PX-153, at 17. In 2003, the Office of the Martyr Sadr

opened “an armed wing” called Jaysh al-Mahdi (“JAM”). Id. Iran offered the movement and its

armed wing “financing and weapons training,” and the Qods Force “dispatched Hezbollah

operatives . . . to help establish JAM and provide it with logistical assistance.” Id. al-Sadr

ultimately split JAM into different branches to address competing priorities and developed

“Special Groups” that were specifically designed to attack American and coalition forces. Id.

7 at 22–24. The Special Groups were successful, and “[f]rom 2003 to 2006, the IRGC primarily

used JAM as its proxy to conduct terror operations against U.S. and Coalition Forces in Iraq,”

McIntyre Report, PX-157, at 16. Iran later recruited new leadership for a Special Group called

Asayb al-Haq or “AAH.” Id. at 38–39. AAH also “acted as an Iranian proxy in Iraq, carrying out

the IRGC’s agenda and promoting its interests.” Id. at 39.

Iran provided its proxies with training, weapons, and financial support. Through

Hezbollah, Iran brought operatives “into Iran for training and smuggling weapons across the

border into Iraq” and sent IRGC and Qods Force operatives to Iraq. Pregent Report, PX-155, at 12.

Iran also used its resources to support EFP attacks specifically: “one of Iran’s primary forms of

material support to the Special Groups was financing, manufacturing and deploying EFPs.” Oates

Report, PX-153, at 24. Iran funneled to Special Groups in Iraq EFPs that “were professionally

manufactured and specifically designed to target U.S. and Coalition Forces’ armor, such as

armored patrols and supply convoys.” Id. Iran also backed its proxies with extensive financial

resources; by August 2007, Iran, through IRGC and the Qods Force, was estimated to be

“providing between $750,000 and $3 million worth of equipment and funding to Special Groups

every month.” Pregent Report, PX-155, at 12.

3. Explosively Formed Penetrators (EFPs)

Three of the four bellwether attacks Plaintiffs claim Iran materially supported involved a

uniquely lethal weapon known as an EFP or explosively formed penetrator. EFPs are explosive

devices that are intentionally “designed to defeat armor.” Barker Report, PX-158, at 5. According

to Barker, the earliest known EFPs “appear[ed] on modern battlefields in the 1990s as a weapon

deployed in Lebanon by Hezbollah.” Id. at 6.

8 EFPs became insurgents’ weapon of choice in Iraq after the United States began to “up-

armor” its military vehicles, particularly its Humvees, in response to increased attacks from local

militias and terrorist cells. See id. at 12–13. EFPs enabled insurgents to specifically target and

explode even these heavily armored U.S. military vehicles, and their use against U.S. forces

quickly proliferated starting in 2005. See id. at 13–14.

The EFPs that were detonated “in Iraq were generally made with a precision manufactured

concave copper disk liner and [high-energy] explosive . . . packed behind the liner.” Id. at 6

(footnote omitted). EFPs travel at high speeds and can “pierce through several inches of military-

grade armor like a fist through a wall.” Id. at 7 (internal quotation marks omitted). The weapons

create “a massive blast overpressure, capable of blowing the doors and turrets from vehicles close

to the device,” and “the heat and force of the penetrator [can] shatter [a] vehicle’s armor and

materials inward,” propelling “razor-sharp shards of Teflon and steel ripping through the interior

compartment.” Id. The heat generated by EFPs is powerful enough to “ignite engine fuel and set

vehicles ablaze.” Id.

EFPs detonate after being armed via remote frequency or insulated command wire. Id.

at 10. EFPs that employ a command-wire trigger allow insurgents to detonate the device from a

distance of up to 100 meters from the blast site, while remote-frequency triggers give insurgents a

300-meter range. Id. Once armed, EFPs are “triggered using a passive infra-red device” that is

attached to the EFP and can, “for example, detect the heat signature of a passing vehicle” and

“send an electrical current [to] set off [an] explosion within the EFP’s casing.” Id.

4. EFPs in Iraq

To combat lethal EFP attacks, the U.S. military began adding even more armor to its

vehicles and increased its use of Bradley Fighting Vehicles (“Bradleys”) in Iraq. Id. at 15. When

9 the additional armor failed to provide meaningful protection, the U.S. military developed

technology that jammed the radio frequencies that insurgents used to trigger EFPs and began using

a device known as a Rhino, which was attached to the front of a combat vehicle and simulated the

heat of the vehicle to prematurely trigger EFPs. Id. at 16. With each advancement in

U.S. technology, however, EFP warfare evolved to become even more stealthy and sophisticated.

See id. at 15–18. For example, when the United States introduced radio-frequency jammers,

insurgents began “modulating the frequencies of their remote activators.” Id. at 16. And when

the United States began attaching Rhinos to its vehicles, insurgents began angling EFPs “backward

to account for” the early triggers. Id. at 18.

The sophistication of the devices in Iraq was beyond the capacity of individuals with basic

training in IED construction. See Tr. 3 at 18:23–19:10; see also Barker Report, PX-158, at 16.

Barker opined that insurgents’ ability to defeat the United States’ sophisticated countermeasures

would not have been possible “without the active involvement, training, equipment and support of

the IRGC.” Barker Report, PX-158, at 16. Oates testified similarly at the Karcher trial that “the

rapid capability development of the Shi’a militia in Iraq from a weapons training and tactics

procedure, the speed with which they achieved this capability and their ability to adapt led [him]

to believe that there was external assistance provided.” Tr. 1 at 98:5–9.

These opinions are confirmed by U.S. military forensic analyses of IED and EFP

detonations. Tr. 5 at 27:14–28:10. Via such analyses, the U.S. military was able to “identify

signatures by bomb makers” and “the emerging enemy tactics, techniques and procedures” that

were being used. Id. “The U.S. military traced much of the machinery used to manufacture the

EFPs, high explosives and [passive infra-red] devices deployed in Iraq to Iran and its illicit supply

chain.” Oates Report, PX-153, at 25. U.S. intelligence ultimately traced tens of thousands of

10 devices that interfered with the United States’ counter-EFP measures from Iran to Baghdad. Tr. 5

at 48:16–49:12. Moreover, the U.S. military concluded that Iran and its proxies “provided training

both inside and outside of Iraq for Iraqi militants in the construction and use of sophisticated IED

technology and other advanced weaponry.” Office of the Coordinator for Counterterrorism, U.S.

Dep’t of State, Country Reports on Terrorism 2008 (Apr. 2009), PX-18, at 183.

These reports are consistent with Barker’s testimony at the Karcher trial. Barker explained

that “EFPs are extremely complicated systems to build,” so Iran and its proxies “would build

[EFPs] complete, [and] bring them in as a complete total system, ready to go.” Tr. 3 at 44:13–16.

Iraqi operatives would then emplace the EFP by “get[ting] in a local vehicle” that was equipped

with “a false floor.” Id. at 44:19–22. The operatives would pretend that the vehicle had broken

down on the road and “pull over on the side of the road” to “raise the hood.” Id. at 44:20–21.

Meanwhile, operatives inside the vehicle would “pull[] the floor out,” “crawl out,” “lay the device

in the predetermined position[,] and drive away.” Id. at 44:22–24.

5. The Attacks

Having established Iran’s presence in Iraq and its assistance in developing and providing

EFPs, the court now turns to the four “bellwether” attacks.

a. October 22, 2006 Attack

Plaintiffs Karar Alabsawi, the estate of David G. Taylor, Michelle Taylor, J.T., Phyllis

Taylor, John Taylor, Brian G. Taylor, and Judas Recendez assert that Iran is responsible for an

October 22, 2006 attack on U.S. military forces in Iraq. Pl.’s Proposed Findings at 8–9 (citing

Am. Compl., ECF No. 1 [hereinafter Am. Compl.], ¶¶ 482–506). As discussed below, Plaintiffs

Specialist Karar Alabsawi, Specialist Brian Taylor, and Sergeant Judas Recendez served in the

U.S. military and were victims of the October 22, 2006, attack, and the estate of David Taylor is

11 the legal representative of Major David Taylor, who also was a U.S. serviceman and victim of the

October 22, 2006 attack. Michelle Taylor, J.T., Phyllis Taylor, and John Taylor are relatives of

David Taylor. See Am. Compl. ¶¶ 491, 493–495.

On October 22, 2006, two units were rehearsing the route between Forward Operating Base

Falcon, in southern Baghdad, and the Baghdad hospital. Tr. 4 at 162:3–16. Major David Haines,

Specialist Taylor, Major Taylor, Specialist Alabsawi, and Sergeant Recendez were five of the

servicemen involved in the operation. Id. at 163:8–10, 15–25. The five men were travelling in an

up-armored M114 Humvee equipped with a Level 5 Interim Fragmentary Armor Kit. See Barker

Report, PX-158, at 23. As they were driving, an explosive device struck the passenger-side front

door of the Humvee, killing Major Taylor and inflicting serious injuries on the four other men in

the vehicle. Tr. 4 at 164:7–11, 164:23–165:15.

Plaintiffs’ experts submitted reports and testimony that the explosive device was an EFP

that originated with the IRGC. A military investigation of the attack revealed the presence of

copper and high-energy explosive residue from the device, consistent with an EFP. See Barker

Report, PX-158, at 25. Barker testified that the EFP in this attack was able to overcome the

Humvee’s Rhino protective device because the insurgents “angled” the EFP’s passive infra-red

trigger and warheads, “and then the warheads struck the vehicle as designed.” Tr. 3 at 46:3–8.

Based on the military investigative reports and photos of the damage caused to the Humvee, Barker

testified that the explosive device used in the attack “was a sophisticated EFP array” that “used a

dual-initiation system” to increase its accuracy. Id. at 47:10–13; see also Barker Report, PX-158,

at 25–28. Likewise, Lutz concluded in his report that the attack “involv[ed] the use of a uniquely

concealed, copper-lined EFP array” that was “emplaced on the curb . . . in such fashion as to defeat

the vehicle’s Rhino anti-[passive infra-red] device.” Lutz Report, PX-159, at 38. He further

12 opined that “[t]he damage to the vehicle strongly indicates that the array was precision

manufactured and copper-lined,” which contributed to his conclusion that “[a]n IRGC-sponsored

Special Group was likely involved in the assembly and emplacement of the array.” Id. Based on

the sophistication and precision of the EFP used in the October 22, 2006 attack and the extensive

evidence before the Karcher court, the court agrees with Plaintiffs’ experts that Iran, acting through

its proxies, was responsible for the EFP attack on U.S. forces in Iraq on October 22, 2006.

b. March 23, 2008 Attack

Plaintiffs estate of Andrew J. Habsieger, Jennifer Renee York, Jason York, Russell Mason,

and Andy Pool claim that Iran is liable for a March 23, 2008 attack on U.S. forces in Iraq.

Pl.’s Proposed Findings at 9–13 (citing Am. Compl. ¶¶ 933–965). As discussed below, First

Lieutenant Russell Mason and Specialist Andy Pool served in the U.S. military and were victims

of the March 23, 2008 attack, and the estate of Habsieger is the legal representative of Private First

Class Andrew Habsieger, who was also a U.S. serviceman and victim of the March 23, 2008 attack.

Jennifer Renee York and Jason York are the step-siblings of Sergeant Christopher Hake, a U.S.

serviceman who was injured in the March 23, 2008 attack. See Am. Compl. ¶¶ 943–944.

On March 23, 2008, a patrol of two armored M2 Bradleys, several Iraqi National Police

vehicles, and an M1151 Humvee transporting a “Tactical Psychological Operations” team

departed Forward Operating Base Falcon. Barker Report, PX-158, at 37. Plaintiff First Lieutenant

Mason, a platoon leader commanding the rear Bradley in the patrol, testified about the attack

before the Karcher court. See Tr. 4 at 52:23–53:4, 58:22–59:3. According to his testimony, the

crew in the lead Bradley on that patrol consisted of Sergeant Steve McCoy, Specialist Jose Rubio,

Private George Delgado, and Private First Class Habsieger. Id. at 59:8–13. In addition, Sergeant

13 Hake’s squad was present and included Specialist Phillip Sime, Specialist Pool, Sergeant Joseph

Lloyd, and Specialist Joseph Parker. Id. at 71:1–13. 3

As the patrol began to drive back to Forward Operating Base Falcon, the lead Bradley was

struck by an explosive. See id. at 61:21–62:1; Barker Report, PX-158, at 38. First Lieutenant

Mason “heard a loud pop” on his radio that had been transmitted from the radio on the lead

Bradley, and he proceeded to investigate the status of the lead Bradley. Tr. 4 at 62:7–63:6. As he

approached the lead Bradley, it became clear to him that the vehicle had been struck by an

explosive. See id. at 65:3–10. A few moments later, he saw “a person running back to” the rear

Bradley who was “completely engulfed in flames”; First Lieutenant Mason later identified the man

as Sergeant McCoy. Id. at 65:12–66:9. The patrol also came under small arms fire as the soldiers

were attempting to evacuate to the hospital. See id. at 67:11–68:3. Staff Sergeant Hake, Private

First Class Habsieger, and Specialist Delgado all perished in the explosion, and Sergeant McCoy

died three months later of the burns he suffered in the attack. Barker Report, PX-158, at 38.

Barker testified that the explosive device that detonated on March 23, 2008, “was a

precision-made, very effective EFP” that “was powered on by the command wire and then

detonated” when it sensed the Bradley. Tr. 3 at 60:23–61:6; Barker Report, PX-158, at 43. Barker

also concluded in his report that, based on the damage to the heavily armored Bradley, “the EFP

was precision manufactured and copper-lined.” Barker Report, PX-158, at 43. Lutz came to a

similar conclusion, opining that “the large penetration hole of the Bradley’s armor is indicative of

a well-manufactured EFP that was a signature of EFPs provided to Iranian-backed Special Groups

by the IRGC and Iran’s Hezbollah proxy.” Lutz Report, PX-159, at 56. Based on a review of the

3 First Lieutenant Mason was uncertain of serviceman Parker’s rank, which may have been Specialist or Private First Class at the time of the attack. See Tr. 4 at 71:10–13. 14 extensive evidence before the Karcher court that has been refiled here, the court concludes that

the March 23, 2008 attack bears hallmarks of the involvement of Iranian-backed proxies, and Iran

was responsible for the EFP attack on March 23, 2008.

c. May 17, 2009 Attack

Plaintiffs Sebastian Canine and Steven Richards claim that Iran is liable for a May 17, 2009

attack on U.S. forces in Iraq. See Pl.’s Proposed Findings at 10 (citing Am. Compl. ¶¶ 1119–1142).

Sebastian Canine is the son of Staff Sergeant Robert Canine, see Tr. 4 at 122:16–17, and Steven

Richards is the father of U.S. serviceman Nathan Richards, Am. Compl. ¶ 1141.

On May 17, 2009, four up-armored M1151 Humvees were conducting a routine patrol near

Baghdad. Tr. 4 at 107:17–108:2; id. at 106:17–19 (noting Staff Sergeant Canine deployed to

Baghdad); Barker Report, PX-158, at 50–51. The Humvees were equipped with two EFP

countermeasures: radio frequency jammers and “a Rhino early initiation device.” See T4

at 108:9–22. Staff Sergeant Robert Canine testified at the Karcher trial that he was riding in the

lead Humvee of the convoy, which also carried servicemembers Rhett Murphy, Nathan Richards,

and Roady Lanteizer. 4 Id. at 107:23–24, 109:1–7. The lead Humvee was struck on the passenger

side—where Staff Sergeant Canine was seated—by an explosive device that was hidden next to a

light pole. Barker Report, PX-158, at 50–51. Immediately following the explosion, small arms

fire targeted the patrol on multiple sides. Lutz Report, PX-159, at 65; see also Barker Report,

PX-158, at 51. Staff Sergeant Canine was severely wounded in the attack, and both of his legs

were amputated due to his injuries. Tr. 4 at 121:15–122:1, 124:9–11. Richards lost consciousness

after the explosion and suffered a concussion and ruptured eardrum. Am. Compl. ¶ 1137.

4 Staff Sergeant Canine’s testimony did not identify the military ranks of Murphy, Richards, or Lanteizer, and Plaintiffs have not provided the court with their ranks. 15 Barker identified the explosion as an EFP array that was “precision manufactured and

copper-lined.” Barker Report, PX-158, at 56. He noted that the attacked “unit was operating in

territory that previously experienced kinetic events directed by Iranian-backed Special Groups,”

id., which is supported by the fact that there had been “three previous EFP attacks within 3 miles

and 25 days of this event,” Task Force Troy, IED Event Storyboard (May 17, 2009), PX-133, at 20.

Lutz likewise concluded that “[t]he attack involved the use of a concealed, copper-lined EFP that

was likely remotely armed and [passive infra-red] triggered.” Lutz Report, PX-159, at 71. Based

on the damage to the vehicle, he opined that the EFP was “precision manufactured” and was likely

“of original Hezbollah and IRGC design that was supplied by the IRGC.” Id. at 70–71. The

evidence of copper lining and the attack’s consistency with similar Iranian-backed attacks in the

immediate vicinity of the attack at a similar time, in addition to a full review of the evidence

presented to the Karcher court, leads the court to conclude that Iran was responsible for the EFP

attack on May 17, 2009.

d. January 20, 2007 Attack

Plaintiffs Albert Snyder, Kathaleen Freeman, Richard Lee, Marcia Kirby, and Steven Kirby

allege that Iran is liable for the January 20, 2007 attack on U.S. forces. Pl.’s Proposed Findings

at 11 (citing Am. Compl. ¶¶ 600–611). Albert Snyder, Kathaleen Freeman, and Richard Lee are

relatives of Captain Brian Freeman. Am. Compl. ¶¶ 601–603. Marcia and Steven Kirby are

relatives of Evan Kirby. Id. ¶¶ 609–610. Like the Karcher Plaintiffs before them, however,

Plaintiffs have failed to present evidence that Evan Kirby was present for the January 20, 2007

attack on U.S. forces. See Karcher, 396 F. Supp. 3d at 47 n.31, 59. The court therefore cannot

grant default judgment to Marcia and Steven Kirby on the present record.

16 Unlike the first three bellwether attacks, this final bellwether attack does not involve the

detonation of an explosive device. Rather, the January 20, 2007 attack on the PJCC in Karbala

was a targeted assault on an Iraqi government facility that operated as a “nexus” of the local

provincial government and U.S. soldiers, military police, and interpreters. See Pregent Report,

PX-155, at 15.

On the day of the attack, a U.S. team was “assisting the Karbala provincial government

with security planning for the upcoming Shi’a religious observation of Ashura.” Id. at 16. A team

of insurgents arrived at the Karbala PJCC disguised as American servicemen: they drove

American-model SUVs disguised as security contractor vehicles, approached the complex wearing

American combat uniform variants, and spoke in English. Id. at 17. As the insurgents approached

the PJCC, they reached several checkpoints where they impersonated American soldiers and

ordered the Iraqi Police manning the checkpoints to surrender their weapons. Id. They likewise

detained at gunpoint the Iraqi Police at the gate to the parking lot, west guard tower, and guard

shack. Id.

Arriving at the PJCC, the insurgents exited their vehicles and greeted in English two

American soldiers guarding the complex, Private First Class Shawn Falter and Specialist Jonathan

Chism, maintaining the ruse that they were American soldiers. Id. at 18. Private First Class Falter

exited his military vehicle and approached the insurgents’ SUVs as they walked past. Id. at 18–19.

The insurgent in the back of the group then turned and shot Private First Class Falter in his neck,

while another insurgent scaled a Humvee to shoot Specialist Chism. Id. at 19.

Meanwhile, other operatives—who appeared to have entered the PJCC

separately—attacked U.S. forces inside the PJCC, specifically in the Command and Control room.

Id. at 20–21. The Command and Control room was a strategic target because seizing control of

17 the command room would cripple the ability of soldiers at the PJCC “to respond to an attack.” Id.

at 20. The insurgents were unable to force entry to the room, but nonetheless managed to shoot

into the room and hurl a grenade through a cracked door. Id. at 20–21. A soldier in the Command

and Control room, Private First Class Johnathon Millican, fell on the grenade to prevent it from

harming his fellow soldiers, and the remaining soldiers were able to fend off the insurgent

attempting to enter. Id.

At the same time, another team of attackers abducted Captain Freeman and First Lieutenant

Jacob Fritz from the officers’ room. Id. at 22–23. They handcuffed Captain Freeman to Specialist

Chism, whom they had shot outside the PJCC earlier, and handcuffed First Lieutenant Fritz to

Private First Class Falter. Id. at 23. The attackers put the two pairs of men in separate SUVs and

fled. Id. at 23, 25. They followed a ratline—a known route used by the IRGC to smuggle weapons

and explosive devices from Iran into Iraq—and the Army’s Investigating Officer concluded that

the insurgents’ use of this route meant the attack had a clear “connection to Iran” and that the

escape route had been pre-coordinated. Id. at 25 (internal quotation marks omitted).

The attackers’ SUVs were stopped at an Iraqi Army checkpoint. Id. at 25–26. When they

discovered they could not pass the checkpoint, the attackers diverted off the pre-planned route and

began executing the U.S. soldier hostages. Id. at 26. Each of the soldiers the insurgents had taken

hostage were killed, although Captain Freeman did not die until after the Iraqi Army had attempted

to rescue him. Id. at 26–27.

Iran’s connection to the attack on the PJCC was confirmed by many sources. First, a U.S.

satellite detected a “training center in Iran that duplicate[d] the layout of the governor’s compound

in Karbala, Iraq.” Id. at 27 (emphasis omitted) (internal quotation marks omitted). As Pregent

opined, “The mock-up’s very existence is direct evidence of Iran’s involvement in planning,

18 supplying and authorizing the [a]ttack, and training the men who carried it out.” Id. at 28.

Moreover, an investigation into the incident revealed that the Iraqi Police Force colluded with the

attackers, which is consistent with IRGC-backed groups’ successful infiltration of the force.

See id. at 28–31. Perhaps most critically, after a raid on known senior leadership of AAH and

Hezbollah, the United States obtained “a 22-page memorandum that detailed the planning,

preparation, approval process and conduct of the Karbala operation, as well as [a senior Hezbollah

commander’s] role in overseeing other Special Groups operations.” Id. at 31 (cleaned up). The

captured terrorists “admitted that senior leadership within the IRGC-QF knew of and helped plan

the” PJCC attack. Id. at 32. AAH also took credit for the attack on its website, claiming that “[t]he

goal of the operation was to kidnap U.S. soldiers and officers.” Id. at 33 (internal quotation marks

omitted).

Pregent also opined that AAH, “which was created by the IRGC and trained by Hezbollah,”

was responsible for the January 20, 2007 attack. Id. at 37. He based this conclusion on the fact

that “the [a]ttack was complex and sophisticated, requiring advance knowledge of the PJCC

compound’s layout, the location of the officers’ room and the [Command and Control] room, and

the expected tactical response of the American soldiers on site.” Id. The “extensive amount of

advanced planning and training” suggested Iranian involvement because, to Pregent’s knowledge,

“neither AAH nor any other Iraqi terror cell active in the Karbala area ever previously

demonstrated that level of sophistication prior to the [a]ttack” on January 20, 2007. Id.

Pregent testified that Iran was deploying a strategy it had used before to “capture . . .

American officers and soldiers as leverage that Iran could use based on Lebanese Hezbollah’s

successes with Israel and other Shi’a proxies that have kidnapped in the past.” Tr. 5 at 186:5–9.

“Lebanese Hezbollah and the IRGC-Qods Force,” he testified, identified the Karbala PJCC as “a

19 vulnerable site where Americans could be kidnapped in order to be exchanged for high-value

prisoners that Iran wanted back.” Id. at 174:1–4.

Based on the court’s review of the evidence submitted in Karcher, as well as the decisions

of Judge Kollar-Kotelly in Karcher and Judge Moss in Fritz, the court concludes that Iran bears

responsibility for the January 20, 2007 attack on U.S. forces at the Karbala PJCC.

IV. CONCLUSIONS OF LAW

The court next considers three questions of law: (1) whether there is subject matter

jurisdiction over the dispute, (2) whether the court has personal jurisdiction over Iran, and

(3) whether Iran is liable for Plaintiffs’ injuries.

A. Subject Matter Jurisdiction

The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in our

courts.” Argentine Republic v. Amerada Hesse Shipping Corp., 488 U.S. 428, 434 (1989). “Under

the FSIA, a foreign state is immune from the jurisdiction of American courts unless the case falls

within one of a list of statutory exceptions . . . .” Kilburn v. Socialist People’s Libyan Arab

Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). Plaintiffs claim that this court has jurisdiction

over Iran under a statutory exception known as the “terrorism exception.” Pls.’ Proposed Findings

at 15.

Pursuant to the terrorism exception:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an

20 official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

28 U.S.C. § 1605A(a)(1).

The terrorism exception applies only if three additional requirements are met. First, the

foreign state must have both (1) been “designated as a state sponsor of terrorism at the time the”

underlying act occurred or designated because of the act and (2) been so-designated at the time the

claim was filed or in the six-month period before the claim was filed. Id. § 1605A(a)(2)(A)(i)(I).

Second, at the time of the attack, the victim must have been a national of the United States, a

member of the armed forces, or an employee or contractor of the United States. Id.

§ 1605A(a)(2)(A)(ii). Third, if “the act occurred in the foreign state against which the claim has

been brought,” the plaintiff must have “afforded the foreign state a reasonable opportunity to

arbitrate the claim.” Id. § 1605A(a)(2)(a)(iii).

Plaintiffs have easily satisfied most of these jurisdictional prerequisites. First, Plaintiffs

seek money damages against a foreign state. See Am. Compl. at 142. Second, Plaintiffs are

seeking to recover for their personal injuries, including “physical injury, extreme mental anguish,

and pain and suffering that ultimately led to their deaths” and “severe emotional distress, extreme

mental anguish, loss of sleep, loss of appetite, and other severe physical manifestations, [and] the

loss of their loved ones’ society, companionship, comfort, advice and counsel.” Id. ¶¶ 1167, 1172,

1177. Third, Iran has been continuously designated as a state sponsor of terrorism since 1984.

See Determination Pursuant to Section 6(i) of the Export Administration Act of 1979—Iran,

49 Fed. Reg. 2,836, 2,836 (Jan. 23, 1984); Salzman, 2019 WL 4673761, at *12 (“Iran is a

designated state sponsor of terrorism and has been since 1984.”). Fourth, Plaintiffs have submitted

under seal documentation establishing that the Plaintiffs claiming injury from the bellwether

attacks are U.S. nationals. See ECF Nos. 35–37. Fifth, all of the acts Plaintiffs complained of 21 occurred in Iraq, not Iran, see, e.g., Am. Compl. ¶ 1, so the requirement to afford Iran the

opportunity to arbitrate is not implicated here.

The only remaining jurisdictional inquiries are whether Plaintiffs’ injuries were (1) caused

by (2) “the provision of material support or resources” for (3) “an act of torture, extrajudicial

killing, aircraft sabotage, [or] hostage taking” by “an official, employee, or agent of such foreign

state while acting within the scope of his or her office, employment, or agency.” See 28 U.S.C.

§ 1605A(a)(1).

1. An Act of Extrajudicial Killing or Hostage Taking

The court turns first to whether Plaintiffs’ claims are predicated on an extrajudicial killing

or hostage taking. 5

a. Extrajudicial killing

The FSIA defines “extrajudicial killing” by reference to the Torture Victim Protection Act

of 1991 (“TVPA”). Id. § 1605A(h)(7). Under the TVPA an “extrajudicial killing” is:

a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

Pub. Law No. 102-256, 106 Stat. 73, § 3(a) (1992). “[T]his definition contains three elements:

(1) a killing; (2) that is deliberated; and (3) is not authorized by a previous judgment pronounced

by a regularly constituted court.” Owens, 864 F.3d at 770.

As to the first element, a killing, three of the four attacks resulted in at least one killing, but

Plaintiffs have conceded that they have not presented evidence that the May 17, 2009 attack

5 Plaintiffs argue that the January 20, 2007 attack was a hostage taking rather than an extrajudicial killing. Pls.’ Proposed Findings at 17. 22 resulted in a killing. See Pls.’ Proposed Findings at 17 n.9. The court concludes that this does not

preclude jurisdiction over the May 17, 2009 attack. The Karcher court encountered this same

question. There, the court reasoned that while “[t]he text of Section 1605A(a)(1) does not

expressly address attempts to commit acts that are listed in that provision,” the court was required

to “construe[] the FSIA’s ambiguities broadly.” 396 F. Supp. 3d at 58. Following the reasoning

of a number of other courts in this District, the Karcher court held that “injuries resulting from

‘deliberated’ attempts to kill fall within the scope of Section 1605A(a)(1).” Id. (citing Schertzman

Cohen v. Islamic Republic of Iran, No. 17-cv-1214 (JEB), 2019 WL 3037868, at *3 (D.D.C. July

11, 2019); Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88, 99 (D.D.C. 2017); Cohen v. Islamic

Republic of Iran, 238 F. Supp. 3d 71, 81 (D.D.C. 2017)). This court similarly concludes that the

text of Section 1605A(a)(1) and the court’s mandate to construe ambiguities in the FSIA broadly

permits the court to exercise jurisdiction where a designated state supplies material resources in

an attempt to commit an extrajudicial killing.

Next, the court must determine whether the killings were “deliberated.” “A ‘deliberated’

killing is simply one undertaken with careful consideration, not on a sudden impulse.” Salzman,

2019 WL 4673761, at *13 (internal quotation marks omitted). The October 22, 2006, March 23,

2008, and May 17, 2009 attacks all involved the detonation of EFPs. EFPs must be strategically

placed and later armed via either remote frequency or command wire to properly detonate.

See Barker Report, PX-158, at 10. Planning an EFP’s location and constructing a means to trigger

the device require forethought, and an EFP therefore cannot be detonated on “a sudden impulse.”

See Salzman, 2019 WL 4673761, at *13. In addition, the court received expert testimony that

EFPs were constantly retooled to overcome U.S. defenses that attempted to make EFPs less deadly,

indicating that EFPs were intentionally designed to inflict maximum harm on their targets.

23 See Barker Report, PX-158, at 12–18. The court therefore concludes that causing or attempting to

cause death by detonating an EFP constitutes a deliberated killing.

Finally, there is no evidence that would suggest that the killings and attempted killings in

the October 22, 2006, March 23, 2008, and May 17, 2009 attacks were authorized by a judgment

of a regularly constituted court or were lawfully carried out under the authority of a foreign nation.

The killings or attempted killings of persons via detonating an EFP at issue here are therefore

extrajudicial killings under the FSIA.

b. Hostage taking

Plaintiffs argue that the January 20, 2007 attack on the Karbala PJCC was a hostage taking.

See Pls.’ Proposed Findings at 17–18. The FSIA defines “hostage taking” by reference to Article 1

of the International Convention Against the Taking of Hostages (“ICATH”). 28 U.S.C.

§ 1605A(h)(2). Article 1 of the ICATH provides that a hostage taking occurs when a person

“seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter

referred to as the ‘hostage’) in order to compel a third party,” such as a state, “to do or abstain

from doing any act as an explicit or implicit condition for the release of the hostage.” International

Convention Against the Taking of Hostages, art. 1, ¶ 1, Dec. 17, 1979, 1316 U.N.T.S. 205. “The

essential element of the hostage-taking claim is that the intended purpose of the detention be to

accomplish the sort of third-party compulsion described in the Convention.” Simpson v. Socialist

People’s Libyan Arab Jamahiriya, 470 F.3d 356, 359 (D.C. Cir. 2006) (cleaned up). “There must

be some quid pro quo arrangement whereby the hostage would have been released upon

performance or non-performance of any action by that third party.” Id. (internal quotation marks

24 Here, the insurgents patently detained U.S. service members by handcuffing them and

driving them away from the Karbala PJCC. See Pregent Report, PX-155, at 23–25. The only

remaining question is whether the insurgents detained the servicemen to achieve a quid pro quo

arrangement. On that matter, Pregent testified that Iran intended to “exchange[]” the four

servicemen who were kidnapped and ultimately executed in the January 20, 2007 attack on the

Karbala PJCC “for high-value prisoners that Iran wanted back.” Tr. 5 at 174:1–4. The Karcher

and Fritz courts likewise concluded that the Karbala “attack was intended to capture U.S.

servicemembers who could be exchanged for Iranian detainees.” Karcher, 396 F. Supp. 3d at 57;

Fritz, 320 F. Supp. 3d at 71. The court agrees that, because insurgents kidnapped U.S. servicemen

and intended to exchange them for Iranian detainees, the January 20, 2007 attack was a hostage

taking, as defined in the FSIA.

2. Material Support or Resources by an Official or Agent of Iran

Plaintiffs must next establish that an official or agent of Iran provided material support to

the actors who carried out the bellwether EFP attacks and attack on the Karbala PJCC. The FSIA

defines “material support or resources” as:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . . , and transportation, except medicine or religious materials[.]

18 U.S.C. § 2339A(b)(1); 28 U.S.C. § 1605A(h)(3) (defining “material support or resources” by

reference to 18 U.S.C. § 2339A).

Plaintiffs have provided numerous examples of Iran funneling material support through the

IRGC and Qods Force to terrorist proxies in Iraq. And, as the court in Karcher held, the Qods

Force “is at least an agent of Iran, if not a part of the government such that individuals working for 25 [the Qods Force] would be officials or employees of Iran.” Karcher, 396 F. Supp. 3d at 55. This

material support manifested as millions of dollars of funding, training, and advanced weaponry.

See, e.g., Pregent Report, PX-155, at 12; Oates Report, PX-153, at 24. Thus, Plaintiffs have easily

established that Iran provided material support for the terrorist attacks that harmed them.

3. Causation

Finally, for the court to have subject matter jurisdiction over this matter, Plaintiffs must

prove that Iran’s “provision of material support or resources” caused Plaintiffs’ “personal injury

or death.” 28 U.S.C. § 1605A(a)(1). The D.C. Circuit has adopted a proximate cause standard for

the FSIA terrorism exception. See Kilburn, 376 F.3d at 1128; Owens, 864 F.3d at 794 (“In Kilburn,

we held a plaintiff must show proximate cause to establish jurisdiction under § 1605(a)(7), the

predecessor of the current FSIA terrorism exception. Because § 1605A(a) restates the predicate

acts of § 1605(a)(7), it stands to reason that proximate cause remains the jurisdictional standard.”

(citation omitted)). The touchstone of proximate causation is the existence of “‘some reasonable

connection between the act . . . of the defendant and the damage which the plaintiff has suffered.’”

Owens, 864 F.3d at 794 (quoting Kilburn, 376 F.3d at 1128). There are two components to this

inquiry: “First, the defendant’s actions must be a ‘substantial factor’ in the sequence of events that

led to the plaintiff’s injury. Second, the plaintiff’s injury must have been ‘reasonably foreseeable

or anticipated as a natural consequence’ of the defendant’s conduct.” Id. (citation omitted)

(quoting Rothstein v. UBS, 708 F.3d 82, 91 (2d Cir. 2013)).

Plaintiffs have satisfied both components of proximate cause. First, as to the EFP attacks,

Iran’s support was a “substantial factor” leading to Plaintiffs’ injuries because Iran provided the

funding, training, and weaponry that was used to injure Plaintiffs. See Pregent Report, PX-155,

at 12; Oates Report, PX-153, at 24. This support was particularly crucial: as the U.S. military

26 developed countermeasures to make EFP attacks less lethal, Iran’s training, technology, and

provision of resources equipped insurgents with EFPs that could respond to U.S. countermeasures

and inflict maximum damage. See Tr. 1 at 98:5–9; Oates Report, PX-153, at 25 (noting that the

U.S. military traced components of EFPs to Iran’s illicit supply chain); Tr. 5 at 48:21–49:12

(noting devices that interfered with counter-EFP measures were likewise traced to Iran). Second,

as to the Karbala PJCC attack, Iran provided support in key aspects of the planning of the attack.

In addition to Iran’s construction of a duplicate of the Karbala PJCC within its borders, Iran’s

proxies AAH and Hezbollah were caught with a 22-page planning document that detailed the

planning process of the PJCC attack. See Pregent Report, PX-155, at 27–28, 31. This support was

critical because, as Pregent opined, no active “Iraqi terror cell . . . in the Karbala area ever

previously demonstrated th[e] level of sophistication” displayed in the attack on the PJCC. Id.

at 37. Iran’s involvement in planning the attack and the attack’s sophistication bolster this court’s

conclusion that Iran’s support was a substantial factor in Plaintiffs’ injuries from the attack on the

PJCC. See Karcher, 396 F. Supp. 3d at 56–57.

Plaintiffs’ injuries were also a reasonably foreseeable consequence of Iran’s conduct. The

U.S. military has successfully traced EFP devices that circumvented the United States’ counter-

EFP measures to Iran. Tr. 5 at 48:21–49:12. It is clear from Iran’s financial support and its

provision of evolving and ever-more lethal weaponry to insurgents in Iraq that Iran reasonably

anticipated—and indeed, intended—that its support would lead to the death and serious injury of

U.S. soldiers. See Karcher, 396 F. Supp. 3d at 56–57 (finding harm to plaintiffs was reasonably

foreseeable consequence when Iran intended “to kill people, not just disable vehicles”); see also

Owens, 864 F.3d at 797–98 (finding bombings were reasonably foreseeable consequence of

Sudan’s provision of “opportunities” to al Qaeda and Osama bin Laden (internal quotation marks

27 omitted)). Likewise, the suffering of the families of victims of Iran-supported attacks was a

reasonably foreseeable consequence of Iran’s support for terrorist attacks in Iraq. See Salzman,

2019 WL 4673761, at *14 (finding “the related suffering of [victims’] family members” was

“reasonably foreseeable”). As to the PJCC attack, the evidence shows Iran was extensively

involved in a plot that it intended to use to extract and hold hostage U.S. soldiers. It was reasonably

foreseeable that this conduct would result in death or fatal injury to the kidnapped soldiers and

cause their families’ related suffering. See Karcher, 396 F. Supp. 3d at 57; Fritz, 320 F. Supp. 3d

at 86 (finding that, due to Iran’s assistance in training and preparing for the attack on the Karbala

PJCC, “[t]he fact that the soldiers were also tortured and killed was, by any reasonable measure, a

foreseeable consequence of Iran’s support”).

The court therefore concludes that Iran’s material support for the extrajudicial killing and

hostage taking involved in the four bellwether attacks proximately caused Plaintiffs’ injuries, and

the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1605A(a)(1).

B. Personal Jurisdiction

As with subject matter jurisdiction, the court has “an independent obligation . . . to satisfy

itself of its personal jurisdiction before entering a default against a missing party.” Kaplan v. Cent.

Bank of the Islamic Republic of Iran, 896 F.3d 501, 512 (D.C. Cir. 2018). Under the FSIA, a court

has personal jurisdiction over a foreign sovereign where the court has subject matter jurisdiction

and “service has been made under” 28 U.S.C. § 1608. 28 U.S.C. § 1330(b). “In other words,

under the FSIA, subject matter jurisdiction plus service of process equals jurisdiction.” GSS Grp.

Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir. 2012) (internal quotation marks omitted).

The FSIA provides four means for serving a foreign state. See 28 U.S.C. § 1608(a). First,

a plaintiff may effect service “by delivery of a copy of the summons and complaint in accordance

28 with any special arrangement for service between the plaintiff and the foreign state or political

subdivision.” Id. § 1608(a)(1). If service cannot be made under such an arrangement, then the

plaintiff may effect service “by delivery of a copy of the summons and complaint in accordance

with an applicable international convention on service of judicial documents.” Id. § 1608(a)(2).

If the plaintiff cannot serve the defendant via the first two methods, then the plaintiff must attempt

to effect service “by sending a copy of the summons and complaint and a notice of suit,” as well

as “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.” Id. § 1608(a)(3). If, after thirty days, service

cannot be effected by this third option, the plaintiff must attempt service through diplomatic

means. To do so, the plaintiff must provide the clerk of court with two copies of the summons and

complaint, and a notice of the suit, along with a translation of each into the official language of the

foreign state, which the clerk of court transmits to the Secretary of State. Id. § 1608(a)(4). The

Secretary of State will then “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.” Id.

Plaintiffs could not serve Iran under the first two mechanisms of service, as the United

States and Iran do not have a “special arrangement” for service and “‘Iran is not party to an

international convention on service of judicial documents.’” Salzman, 2019 WL 4673761, at *15

(quoting Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008)). Plaintiffs

therefore first attempted to effect service under the third mechanism—via registered mail with

return receipt requested. See Certificate of Mailing. When Iran did not respond after 30 days,

Plaintiffs served Iran via diplomatic channels. See Diplomatic Service Request; Dep’t of State

29 Service Attempt. Under 28 U.S.C. § 1608(c)(1), service was deemed effected “as of the date of

transmittal indicated in the certified copy of the diplomatic note”—in this case, December 18,

2019. See Dep’t of State Service Attempt. Accordingly, this court finds that Plaintiffs properly

effected service on Iran under 28 U.S.C. § 1608(a)(4).

Because the court concludes that it has subject matter jurisdiction and Plaintiffs have

properly effected service, the court likewise has personal jurisdiction over Iran. See GSS Grp.,

680 F.3d at 811.

C. Liability

Finally, the court must determine whether Iran is liable for Plaintiffs’ injuries with respect

to the bellwether attacks. Plaintiffs bring their claims under 28 U.S.C. § 1605A(c). See Am.

Compl. ¶¶ 1165–1178. Section 1605A(c) provides that “[a] foreign state that is or was a state

sponsor of terrorism” and any of its agents are liable “for personal injury or death caused by acts

described in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that

foreign state, for which the courts of the United States may maintain jurisdiction under this section

for money damages.” 28 U.S.C. § 1605A(c). Liability is limited, however, to U.S. nationals,

members of the armed forces, employees or contractors of the U.S. government, and legal

representatives of any of those individuals. See id.

“There is almost total ‘overlap between the elements of § 1605A(c)’s cause of action and

the terrorism exception to foreign sovereign immunity,’ and a plaintiff that offers proof sufficient

to establish a waiver of sovereign immunity under § 1605A(a) has also established entitlement to

relief as a matter of law.” Salzman, 2019 WL 4673761, at *15 (cleaned up) (quoting Foley v.

Syrian Arab Republic, 249 F. Supp. 3d 186, 205 (D.D.C. 2017)); see also Karcher, 396 F. Supp.

3d at 59; Allan v. Islamic Republic of Iran, No. 17-cv-338, 2019 WL 2185037, at *6 (D.D.C. May

30 21, 2019); Fritz, 320 F. Supp. 3d at 86–87. The court has already concluded that Plaintiffs are all

U.S. nationals or members of the armed forces and that it has subject matter jurisdiction over

Plaintiffs’ claims under the terrorism exception. Accordingly, the court also concludes that Iran

is liable for Plaintiffs’ injuries under 28 U.S.C. § 1605A(c).

V. CONCLUSION AND ORDER

For the foregoing reasons, the court grants Plaintiffs’ motion for default judgment against

Defendant as to the four bellwether attacks considered herein. The court does not, however, grant

default judgment to bellwether Plaintiffs Marcia Kirby and Steven Kirby. The court requires

further information to establish that Evan Kirby was present for the January 20, 2007 attack on

U.S. forces.

Plaintiffs shall appear for a telephonic status conference on February 8, 2021, at 10:30 a.m.,

to discuss further proceedings in this matter.

Dated: February 1, 2021 Amit P. Mehta United States District Court Judge