UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HENRI MAALOUF, et al.,

Plaintiffs, v. Civil Action No. 16-0280 (JDB) ISLAMIC REPUBLIC OF IRAN, et al.,

Defendants.

MEMORANDUM OPINION

This case arises out of the death of Edward Maalouf, a U.S. government employee who

was tragically killed in the 1984 terrorist bombing of the U.S. Embassy in Beirut, Lebanon.

Edward’s estate, widow, three sisters, and son participated in an earlier lawsuit against the Islamic

Republic of Iran (“Iran”) and the Iranian Ministry of Intelligence and Security (“MOIS”) and were

awarded both compensatory and punitive damages as a result. See Doe v. Islamic Republic of

Iran,

(D.D.C. 2011); Estate of Doe v. Islamic Republic of Iran,

(D.D.C. 2013). When Edward’s oldest brother, Henri Maalouf, learned of the Doe judgment

years later, he filed the instant action on behalf of himself and the estates of his parents and his

younger brother Gaby (collectively “plaintiffs”) against Iran and MOIS. See Compl. [ECF No. 1];

Am. Compl. (July 21, 2016) (“First Am. Compl.”) [ECF No. 13]. Plaintiffs then chose to litigate

their action against Iran only, who—as in other similar lawsuits—never appeared in this Court.1

This Court previously considered plaintiffs’ motion for a default judgment against Iran in

1 Plaintiffs served their complaint and their first amended complaint on Iran only. See U.S. State Dep’t Letter (June 28, 2016) [ECF No. 11] (confirming service of plaintiffs’ complaint on the Islamic Republic of Iran); U.S. State Dep’t Letter (Aug. 30, 2017) [ECF No. 28] (confirming service of plaintiffs’ first amended complaint on the Islamic Republic of Iran). Likewise, plaintiffs presently move for a default judgment against Iran only. See Pls.’ Mot. for Default J. (“Pls.’ Mot.”) [ECF No. 31] at 1 (seeking a “default judgment against Defendant the Islamic Republic of Iran” without mention of MOIS).

1 February 2020, concluding that although “plaintiffs ha[d] stated valid causes of action [against

Iran] under state and/or foreign law,” plaintiffs had not “specif[ied] in their complaint or otherwise

a particular cause of action arising out of a specific source of law,” as binding D.C. Circuit case

law requires. Maalouf v. Islamic Republic of Iran, Civ. A. No. 16-0280 (JDB),

,

at * 1, *7 (D.D.C. Feb. 18, 2020) (internal quotation marks and citation omitted); see also Acree

v. Republic of Iraq,

(D.C. Cir. 2004), abrogated on other grounds by Republic of

Iraq v. Beaty,

(2009) (“A plaintiff proceeding under the FSIA must identify a

particular cause of action arising out of a specific source of law.”). Now that plaintiffs have

amended their complaint to plead specific causes of action under D.C. law, see Am. Compl. (June

16, 2020) (“Fourth Am. Compl.”) [ECF No. 58] ¶¶ 42, 46, this Court concludes, for the reasons

explained below, that plaintiffs are entitled to a $15 million judgment against Iran.

Background

The Court assumes familiarity with its prior decision, which sets forth the factual and

procedural background of this case in greater detail. See Maalouf,

, at *1–2.

Hence, only a brief description of the key facts follows.

On January 19, 1984, President Reagan “designated Iran a state sponsor of terrorism” in

response to its role in sponsoring several terrorist attacks in Lebanon, including the 1983 bombing

of the U.S. embassy in Beirut. Dammarrell v. Islamic Republic of Iran,

(D.D.C. 2003). Months later, a second bomb exploded at the U.S. embassy annex in East Beruit,

killing at least eleven people and injuring over fifty. Doe,

. Edward Maalouf,

a twenty-six-year-old security guard at the U.S. embassy, was among those who died in that attack.

Fourth Am. Compl. ¶¶ 23, 31; Decl. of Pl. Henri Maalouf (“Henri Maalouf Decl.”) [ECF No. 31-

1] ¶ 1.

2 In a series of prior cases brought by victims and their families under the “terrorism

exception” in the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602–11, this Court

has held Iran liable for compensatory and punitive damages arising out of the Beirut embassy

bombings under different sources of federal and state law. See, e.g., Doe, 808 F. Supp. 2d at 21–

23; Salazar v. Islamic Republic of Iran,

, 113–15 (D.D.C. 2005). The instant

suit is nearly identical to the Doe case but involves a different set of plaintiffs. Edward’s estate,

as well as his widow, three sisters, and son, all participated in the Doe litigation and received

compensatory and punitive damage awards under D.C. law as part of the Court’s final judgment

in May 2013. See Estate of Doe, 943 F. Supp. 2d at 183–84; Henri Maalouf Decl. ¶ 7. Edward’s

brother Henri, however, only learned of the Doe suit years later, at which time he sought, on behalf

of himself and the estates of his brother Gaby and his parents, Elias and Olga, to bring the instant

action. See Henri Maalouf Decl. ¶¶ 52–53. Elias, Olga, and Gaby each survived Edward, but

passed away in 1986, 2000, and 2009, respectively.

¶¶ 2–5. Henri presently resides in London.

Id. ¶ 5.

Plaintiffs effected service of their first amended complaint on Iran on August 9, 2017 in

accordance with

(a)(4). See U.S. State Dep’t Letter (Aug. 30, 2017). The Clerk

of Court declared Iran in default on October 16, 2017. See Default [ECF No. 30]. This Court set

aside that default in March 2018 and dismissed plaintiffs’ action as untimely. Maalouf v. Islamic

Republic of Iran,

(D.D.C. 2018). The D.C. Circuit, however, reversed

that dismissal, holding that a district court “lacks authority to sua sponte raise a forfeited statute of

limitations defense in a FSIA terrorism case, at least where the defendant sovereign fails to

appear.” Maalouf v. Islamic Republic of Iran,

(D.C. Cir. 2019).

The Court then appointed a special master to make recommendations regarding plaintiffs’

3 claimed damages. See Order (August 29, 2019) [ECF No. 41]. After receiving the special master’s

report, see Redacted R. & R. of Special Master (“Special Master Report”) [ECF No. 47], the Court

considered plaintiffs’ motion for a default judgment for a second time in February 2020. The

Court concluded that although plaintiffs lacked a federal cause of action under § 1605A(c) of

FSIA, they could “rely on ‘applicable state and/or foreign law’” to assert their claims against Iran.

Maalouf,

, at *6 (quoting Doe,

). Thus, rather than deny

plaintiffs’ motion, the Court allowed plaintiffs to amend their complaint to specify “a particular

cause of action arising out of a specific source of law other than FSIA,”

(quoting Dammarell v.

Islamic Republic of Iran, Civ. A. No. 01-2244 (JDB),

, at *2 (D.D.C. Mar. 29,

2005)).2

Plaintiffs subsequently amended their complaint three times, most recently filing a fourth

amended complaint on June 16, 2020. The fourth amended complaint asserts claims against Iran

and MOIS under § 1605A(c) for causing Edward’s death, and under both § 1605A(c) and D.C.

law for loss of solatium and intentional infliction of emotional distress. See Fourth Am. Compl.

¶¶ 32–35, 42. Plaintiffs’ motion for a default judgment against Iran is once again before this Court

and ripe for consideration.

Legal Standard

FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in our courts.”

Argentine Republic v. Amerada Hess Shipping Corp.,

(1989). While foreign

states are generally immune from the jurisdiction of U.S. courts, see Saudi Arabia v. Nelson,

(1993); see also

, FSIA provides for federal court jurisdiction over

2 Shortly thereafter, plaintiffs’ counsel withdrew from this case, see Min. Order (Mar. 12, 2020), and the Court granted Henri’s motion to proceed pro se on behalf of himself and his family members’ estates, see Min. Order (Mar. 17, 2020).

4 foreign states under a limited set of exceptions. Subject matter jurisdiction exists if the defendant’s

conduct falls within a specific statutory exception. See

(a), 1604. And personal

jurisdiction exists if the plaintiff properly serves the defendant in accordance with

. See

§ 1330(b).

In order for a district court to enter a default judgment against a foreign state, “the claimant

[must] establish[] his claim or right to relief by evidence satisfactory to the court.” Id. § 1608(e).

The “satisfactory” evidence standard can be met through “uncontroverted factual allegations”

supported by “documentary and affidavit evidence.” Valore v. Islamic Republic of Iran,

(D.D.C. 2010) (citation omitted). A court may also “take judicial notice of any

fact ‘not subject to reasonable dispute in that it is . . . capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned,’” including facts established

in related proceedings and other court records.

(quoting Fed. R. Evid. 201(b)). “The district

court . . . has an unusual degree of discretion over evidentiary rulings in a FSIA case against a

defaulting state sponsor of terrorism,” and “only where the court relies upon evidence that is both

clearly inadmissible and essential to the outcome has it abused its discretion.” Owens v. Republic

of Sudan,

, 785–86 (D.C. Cir. 2017).

“To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must

prove that the consequences of the foreign state’s conduct were ‘reasonably certain (i.e., more

likely than not) to occur, and must prove the amount of damages by a reasonable estimate.’”

Salazar, 370 F. Supp. 2d at 115–16 (quoting Hill v. Republic of Iraq,

(D.C. Cir.

2003)).

5 Analysis

I. Jurisdiction

In its prior opinion, the Court determined that subject matter jurisdiction over this case

exists under FSIA’s “terrorism exception,” set forth in 28 U.S.C. § 1605A. See Maalouf,

, at * 3. As relevant here, that exception applies when (1) the defendant foreign state

participated in an “extrajudicial killing” or provided “material support or resources for such an

act,” see 28 U.S.C. § 1605A(a)(1); (2) the foreign state was “designated as a state sponsor of

terrorism at the time” of the terrorist act and remains so designated at the time of the lawsuit, see

id. § 1605A(a)(2)(A)(i)(l); and (3) the claimant or victim is a U.S. national, a member of the armed

services, or “otherwise an employee of the Government of the United States” or a government

contractor, acting within the scope of his employment at the time of the terrorist act, see id.

§ 1605A(a)(2)(A)(ii).

All three requirements are satisfied in this case. The Court already has concluded that

Edward’s death was an “extrajudicial killing” for which Iran and its agents provided material

support. See Maalouf,

, at *3; Doe, 808 F. Supp. 2d at 13–16. Iran was

designated a “state sponsor of terrorism” at the time of the attack and remains so designated today.

See Maalouf,

, at *3; State Sponsors of Terrorism, U.S. Dep’t of State,

https://www.state.gov/state-sponsors-of-terrorism/ (last visited Jan. 22, 2021). And Edward

Maalouf, the victim in this case, was a U.S. government employee acting within the scope of his

employment as a security guard at the time of the bombing. See Maalouf,

, at

*3; Doe,

.

The Court also previously determined that personal jurisdiction exists over Iran because

plaintiffs properly served Iran with their first amended complaint on August 9, 2017 via diplomatic

6 channels. See Maalouf,

, at *3 (concluding that “service was properly effected

on Iran” in accordance with

(a)(4)). Although plaintiffs have since amended their

complaint, this Court already has explained that “service of [the] Fourth Amended Complaint

[was] not required pursuant to

and Fed. R. Civ. P. 5(a)(2).” See Min. Order

(Oct. 2, 2020).

“[A]dditions to a complaint [which are] substantial” might warrant additional service of

process under

. Dammarell v. Islamic Republic of Iran,

(D.D.C. 2005). But a plaintiff is not obligated to serve an amended complaint on a foreign state

where the “state has failed to appear, and is therefore in default, and where an amendment does

not add any claims but instead clarifies existing claims.”

. Here, the fourth amended

complaint adds to the first amended complaint in three different respects: (1) by grounding

plaintiffs’ causes of action in D.C. law; (2) by rephrasing and reasserting facts alleged elsewhere

in the complaint; and (3) by incorporating additional discussions of prior court decisions

concerning the Beirut embassy bombings.3

The first addition does not require service of the fourth amended complaint because

“identify[ing] a particular cause of action arising out of a specific source of law,” only serves to

“clarif[y] existing claims.” See

at 223–24; see also Blais v. Islamic Republic of Iran,

(D.D.C. 2006) (service not necessary where amended complaint put “defendants

on notice that the claims sought by plaintiffs were grounded in state substantive law”). The second

and third additions likewise are not “substantial” changes that necessitate service of the fourth

3 The fourth amended complaint also deletes certain content from the first amended complaint, namely plaintiffs’ request for prejudgment interest and punitive damages. These deletions also do not obligate plaintiffs to serve the fourth amended complaint. See Prevatt v. Islamic Republic of Iran,

(D.D.C. 2006) (finding service of the amended complaint “not necessary” where amended complaint “simply deleted some of the references and information that was contained in the initial complaint,” including a wrongful death count). Furthermore, although the fourth amended complaint purports to “add[] three additional parties,” see Fourth Am. Compl. ¶ 3, those parties were actually added in the first amended complaint, see First Am. Compl. ¶ B, 21.

7 amended complaint at this time. See Dammarrell, 370 F. Supp. 2d at 224; see also HostLogic Zrt.

v. GH Int’l, Inc., Case No. 6:13-cv-982-Orl-36KRS,

, at *1 (M.D. Fla. Dec.

17, 2013) (no service required where amended complaint was largely identical, except it added

some factual detail and additional allegations); Orocovis Petroleum Corp. v. Puerto Rico Ports

Auth., Civ. No. 08–2359 (GAG/BJM),

, at *2 (D.P.R. Aug. 2, 2010) (no service

required where “amended complaint contains greater detail than the original,” but “most of that

detail is . . . a reiteration of the facts section found in the original complaint”). Hence, as the Court

previously concluded, plaintiffs need not effect service of the fourth amended complaint until after

final judgment is entered.

II. Iran’s Liability for the 1984 Beirut Embassy Bombing

With jurisdiction established, the Court turns to plaintiffs’ causes of action and Iran’s

liability for the 1984 Beirut embassy bombing. Plaintiffs sue Iran for loss of solatium and

intentional infliction of emotional distress (IIED) under both 28 U.S.C. § 1605A(c) and D.C. law,

as well as for wrongful death under § 1605A(c). See Fourth Am. Compl. ¶¶ 32–35, 42. As the

Court has already determined, because plaintiffs are citizens of Lebanon, see id. ¶¶ 32–35, and do

not fall into the other categories specified in § 1605A(c), they cannot bring a federal cause of action

under § 1605A(c). See Maalouf,

, at *6–7 (explaining that “the federal cause of

action [under FSIA] is limited to claimants who are themselves citizens [of the United States],

members of the armed forces, government contractors, or the legal representatives thereof,” and

that, as “non-U.S. national family members of victims of terrorist attacks,” “plaintiffs do not satisfy

this requirement”); see also Order (May 8, 2020) [ECF No. 55] at 2–3 (denying motion for

reconsideration on this issue). Moreover, “solatium[] . . . is not an independent cause of action,

but rather is a form of damages” that is available to IIED claimants. Reed v. Islamic Republic of

8 Iran,

, 67–68 (D.D.C. 2006). Thus, the Court will turn directly to plaintiffs’

IIED claims under D.C. law.

D.C. law “enables foreign-national family members of terrorist attack victims” to bring

IIED claims “to recover solatium damages when their allegations are reinforced by the evidence.”

Barry v. Islamic Republic of Iran,

, 50 (D.D.C. 2020) (quoting Cohen v. Islamic

Republic of Iran,

(D.D.C. 2017)). To prevail on an IIED claim, “a plaintiff

must show (1) extreme and outrageous conduct on the part of the defendant, which (2) either

intentionally or recklessly, (3) causes the plaintiff severe emotional distress.” Opati v. Republic

of Sudan,

(D.D.C. 2014). Although typically a plaintiff must also be “present

at the time” of the injury, the presence requirement is waived in FSIA terrorism cases when a

plaintiff is a “member[] of the injured victim’s immediate family.” See Kinyua v. Republic of

Sudan,

, 9 (D.D.C. 2020); see also Republic of Sudan v. Owens,

(D.C. 2018) (concluding that, under D.C. law, “when § 1605A applies, the need for the presence

requirement does not”).

Under D.C. law, “a decedent’s estate may pursue after the decedent’s death a claim the

decedent could have pursued but for his death.” Valore,

(citing Peterson v.

Islamic Republic of Iran,

(D.D.C. 2007)); see also

.

Hence, as the legal representative of their estates, see Henri Maalouf Decl. ¶ 6, Henri may bring

survival actions on behalf of Gaby, Elias, and Olga as long as they could have brought IIED claims

if they were alive today.

Here, Henri, Gaby, Elias, and Olga each satisfy the requirements to prevail on an IIED

claim. “[A]cts of terrorism are ‘by their definition’ extreme and outrageous conduct,” Ewan v.

Islamic Republic of Iran,

, 246 (D.D.C. 2020) (quoting Mwila v. Islamic

9 Republic of Iran,

(D.D.C. 2014)), and the Court has already concluded that

Iran purposefully aided in perpetrating the 1984 Beirut embassy bombing through its material

support to terrorist forces, see Doe,

; see also Barry, 437 F. Supp. 3d at 46

(“[T]he Court finds it self-evident that Iran’s role in both the 1983 and 1984 bombings was

‘intended to cause the highest degree of emotional distress.’” (quoting Estate of Heiser v. Islamic

Republic of Iran,

(D.D.C. 2009)). All four individuals are members of

Edward’s immediate family: Henri and Gaby are Edward’s brothers, and Elias and Olga were his

parents. See Murphy v. Islamic Republic of Iran,

(D.D.C. 2010). And, as

Henri’s declaration sets forth in substantial detail, all four of them had close relationships with

Edward before the attack and suffered significantly as a result of his death. See Henri Maalouf

Decl. ¶¶ 18, 21–22, 24, 26, 37–39, 43–46; see also Ewan, 466 F. Supp. 3d at 246 (finding severe

emotional distress element met where credible testimony “compellingly evidenced the close

relationships” between the victim and plaintiffs before the attack and “the comfort and

companionship [plaintiffs] lacked” thereafter); Barry, 437 F. Supp. 3d at 51 (showing of

“immediate and ongoing pain and suffering for the family member[s]” was sufficient to

demonstrate severe emotional distress).

The Court thus concludes that Iran is liable to all plaintiffs for IIED stemming from

Edward’s death in the 1984 Beirut embassy bombing.

III. Damages

Plaintiffs seek compensatory damages and the costs of suit in the fourth amended

complaint.4 See Fourth Am. Compl. at 9–10. Solatium damages are awarded for IIED claims to

4 Plaintiffs’ first amended complaint also sought punitive damages and prejudgment interest on any award of compensatory damages. See First Am. Compl. ¶¶ 32–33, 36–37. However, because “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings,” see Fed. R. Civ. P. 54(c), and plaintiffs do not specifically demand these additional forms of relief in their fourth amended complaint, the Court will only

10 compensate for “[m]ental anguish, bereavement and grief” resulting from a loved one’s death or

injury. Fraenkel v. Islamic Republic of Iran, Ministry of Foreign Affs.,

, 356–57

(D.C. Cir. 2018) (quoting Flatow v. Islamic Republic of Iran,

(D.D.C. 1998)).

The now-accepted framework in this District for awards of solatium damages in FSIA cases was

first developed in Estate of Heiser v. Islamic Republic of Iran,

(D.D.C.

2006). See Peterson v. Islamic Republic of Iran,

(D.D.C. 2007), abrogation

on other grounds recognized in Mohammadi v. Islamic Republic of Iran,

(D.D.C. 2013)). Under that framework, the standard damages awards for the immediate family

members of a deceased victim of a terrorist attack are $5 million for parents and $2.5 million for

siblings. See Mwila, 33 F. Supp. 3d at 44–45 (citing Peterson

); Davis v.

Islamic Republic of Iran,

(D.D.C. 2012) (citing Heiser

). “These numbers, however, are not set in stone,” and a court may award “greater amounts in

cases with aggravating circumstances” or “depart downward in amount where the relationship

between the claimant and the decedent is more attenuated.” Valore, 700 F. Supp. 2d at 85–87

(quotation marks and citations omitted).

Here, plaintiffs request, and the special master recommends, awards that are consistent

with the Heiser framework, namely $2.5 million for each brother and $5 million for each parent.

See Special Master Report at 14; Fourth Am. Compl. ¶ C. The special master noted that the impact

of Edward’s death on his brothers and parents “has been profound and [] permanent.” See Special

Master Report at 14. That finding is borne out by the record. Henri describes the devastation that

consider plaintiffs’ requests for compensatory damages and the costs of suit. See, e.g., Frost v. Islamic Republic of Iran,

, 116 (D.D.C. 2020) (“Courts have invoked Rule 54(c) to deny . . . prejudgment interest on compensatory damage awards when that specific form of relief was not demanded in the complaint.”); Kinyua, 466 F. Supp. 3d at 11 (denying punitive damages, despite “references to punitive damages in [plaintiffs’] complaint,” because plaintiffs had not specifically sought punitive damages “under a viable cause of action”).

11 he, Gaby, Elias, and Olga experienced as a result of Edward’s death. Henri was the one to identify

Edward’s body at the hospital and inform the family that Edward had been killed. Henri Maalouf

Decl. ¶¶ 35–36. Henri recalls “s[itting] in a chair for three days, seeing the shadow of [his] brother

circulating around [him],” and he still mourns Edward each year on the anniversary of his passing.

Id. ¶¶ 42, 49. His father “could not go to work” and was “unable to get over the shock” of losing

his son. Id. ¶ 43. “[H]is health deteriorated rapidly,” and he died two years later “never having

recovered” from his grief. Id. His mother was similarly “shattered,” and her “health worsened

dramatically” as well. Id. ¶¶ 38, 45. Gaby initially mourned Edward’s death alongside his parents,

but ultimately left home for work because he “could not stand the sadness” and “somebody had to

provide for the family.” Id. ¶¶ 39, 46. In the years that followed, the family continued to “set the

table with a place for” Edward at every Sunday lunch and “prayed that he had gone to a better

place.” Id. ¶ 47. In sum, the Court agrees that the Heiser framework provides an appropriate

measure of damages in this case, and thus will award $2.5 million each to Henri and Gaby’s estate,

and $5 million each to Elias and Olga’s estates.

Henri finally requests compensation for “costs if equitable.” Fourth Am. Compl. ¶ 49. But

aside from referencing a need to pay his former attorney, see Resp. to Order of Ct. [ECF No. 60]

at 4, he has “not provided any information regarding the fees and costs sought,” and therefore, his

“request is denied without prejudice.” Maalouf,

, at *7 (quoting Aceto v. Islamic

Republic of Iran, Civ. A. No. 19-464 (BAH),

, at *23 (D.D.C. Feb. 7, 2020)).

Plaintiffs may, however, “file post-judgment motions for attorneys’ fees in accordance with

Federal Rule of Civil Procedure 54(d)(2)(B) and for costs in accordance with Federal Rule of Civil

Procedure 54(d)(1),” if they so choose.

(quoting Aceto,

, at *23).

12 Conclusion

For the foregoing reasons, the Court concludes that plaintiffs have demonstrated significant

loss as a result of Iran’s deliberate and extreme conduct in providing material support for the 1984

bombing of the U.S. embassy in Beirut. The Court will therefore enter judgment for plaintiffs on

their IIED claims and award plaintiffs a total of $15 million in compensatory damages. A separate

order will be issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: January 22, 2021

13