The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOEY STRAUSS, et al.,
Plaintiffs,
v. Case No. 1:22-cv-52-RCL
ISLAMIC REPUBLIC OF IRAN,
Defendant.
MEMORANDUM OPINION
This Opinion addresses claims brought by four sets of plaintiffs arising from three separate °
attacks allegedly perpetrated by agents of Iran-backed terrorist organizations in 2004 and 2005.
All three attacks were allegedly carried out by the insurgents’ use of explosively formed
penetrators (“EFPs”) to penetrate the hulls of, and detonate inside, vehicles driven by relatives of
the plaintiffs.
The first attack took place on November 20, 2004 (the “First Attack”) and injured Leon
Botha, the brother of plaintiff Jacques Botha. The second attack took place on November 14, 2005
(the “Second Attack”) and took the life of both Johannes Potgieter and Ignatius du Preez. Two
sets of plaintiffs have brought claims arising from the Second Attack: the first set of plaintiffs is
comprised of the Estate of Johannes Potgieter and his surviving family members, Iris Potgieter,
Nicholas Potgieter, Johannes T. Potgieter, and Wessel Potgieter (the “Potgieter plaintiffs”). The
Second Attack also gives rise to the claims of those plaintiffs who are family members of Ignatius
du Preez: Adri du Preez, Stephne du Preez, Charne Bell, and Chantelle Botha (the “du Preez
plaintiffs”). The third attack took place on December 22, 2005 (the “Third Attack”) and took the
life of Johannes Strauss. This attack gave rise to the claims of Johannes Strauss’s surviving family
members, plaintiffs Joey Strauss, Jean Cameron, and Jacobus Strauss (the “Strauss plaintiffs”).
The operative Second Amended Complaint alleges two counts against the defendant.
First, it brings a claim on behalf of Plaintiff the Estate of Johannes Potgieter seeking damages
for his wrongful death. Second Am. Compl. ff] 124-134, ECF No. 30. Second, it brings claims
on behalf of all other plaintiffs (the “Family Member plaintiffs”) for intentional infliction of
emotional distress (“IIED”). Id. at § 135-144. For the reasons that follow, the Court will
GRANT the plaintiffs’ Renewed Motion [ECF No. 31] for Default Judgment and APPOINT
Alan Balaran as a Special Master to take evidence from the plaintiffs and calculate their
damages.
I. LEGAL STANDARD
A. Default Judgment Standard
The Federal Rules of Civil Procedure and FSIA together establish the standard a court must
apply in determining whether to award default judgment to a plaintiff proceeding against a foreign
sovereign defendant. Federal Rule of Civil Procedure 55(a) requires the Clerk of the Court to enter
a party’s default if the party “against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P.
55(a). However, “the entry of a default judgment is not automatic,” and courts in FSIA cases must
consider the evidence presented to it before entering a default judgment against no-show
defendants. Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (internal citations omitted).
The FSIA instructs that courts may not enter default judgment 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). A district court retains discretion “to determine precisely how much and
what kinds of evidence the plaintiff must provide” to establish their claim or right to relief. See
Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014). But
this requirement is not a free pass for courts to accept plaintiffs’ assertions as true. Instead, courts
are required to “inquire further before entering judgment” against foreign sovereign parties in
default. Rimkus v. Islamic Republic of Iran, 750 F. Supp 2d 163, 171 (D.D.C. 2010) (citing Oveissi
y. Republic of Iran, 498 F. Supp. 2d 268, 272 (D.D.C. 2007)). This Court can rely on, among other
things, plaintiffs’ “uncontroverted factual allegations, which are supported by . . . documentary
and affidavit evidence.” Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 59 (D.D.C. 2010)
(Lamberth, C.J.) (quoting Int’l Road Fed'n v. Embassy of the Democratic Republic of the Congo,
131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)).
B. Choice of Law
A federal court assessing state-law claims under the FSIA must apply the choice-of-law
rules of the forum. Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009). In this
case, the plaintiffs have sued in the United States District Court for the District of Columbia
pursuant to 28 U.S.C. § 1391()(4). D.C. employs a “constructive blending” of “governmental
interest” analysis and the “most significant relationship” test of the Restatement (Second) of
Conflict of Laws. District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995).
Governmental interest analysis requires a court to (1) “identify[] the policies underlying the laws”
of each potential jurisdiction, In re APA Assessment Fee Litig., 766 F.3d 39, 52 (D.C. Cir. 2014),
then (2) determine whether a jurisdiction’s policy would be advanced “by having its law applied
to the facts of the case under review.” Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31,
41 (D.C. 1989). As part of this analysis, a court should also consider the jurisdiction with the
“most significant relationship” to the dispute under the principles listed in the Second Restatement.
See Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 714 (D.C. 2013);
Washkoviak v. Student Loan Mktg. Ass’n, 900 A.2d 168, 180 (D.C. 2006). According to the
Second Restatement, for personal-injury actions, courts must take into account specific contacts
between the venue claiming jurisdiction and the acts giving rise to the dispute. These contacts
include: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury
occurred, (c) the domicil[e], residence, nationality, place of incorporation, and place of business
"of the parties, and (d) the place where the relationship, if any, between the parties is centered.”
The law of the “state where the injury occurred” should govern unless another state has a “more
significant relationship” to the dispute. RESTATEMENT (SECOND) OF CONFLICT OF L. § 145 (AM.
L. INST. 1971).
Il. PROCEDURAL HISTORY
The plaintiffs filed their initial Complaint in January 2022. Compl., ECF No. 1. They
invoked this Court’s subject matter jurisdiction under the terrorism exception to foreign state
sovereign immunity found at 28 U.S.C. § 1605A, and they sought monetary damages pursuant to
the FSIA’s private cause of action at § 1605A(c). The plaintiffs’ original claims can be sorted into
two categories: (1) assault and battery on behalf of the Estate of Johannes Potgieter and Jacob
Zuccaro and (2) intentional infliction of emotional distress on behalf of the Family Member
plaintiffs.
As discussed in more detail below, the defendants were successfully served pursuant to 28
U.S.C. § 1608(a)(4) in September 2022. In February 2023, the plaintiffs filed their First Amended
Complaint, which brought no new claims but changed the name of a plaintiff to reflect her
marriage. First Am. Compl., ECF No. 20. The plaintiffs filed their First Motion for Default
Judgment in June 2023. Pl.’s First Mot. for Def. J., ECF No. 21 (“First Mot.”). This Court denied
their Motion without prejudice in March 2024 and granted leave for the plaintiffs to correct and
refile their motion. Mem. Order, ECF No. 23. Most of the reasons for the Court’s denial of the
First Motion were deficiencies in the Complaint.
The Court highlighted three jurisdictional flaws in the plaintiffs’ First Amended
Complaint. First, the Court noted that the plaintiffs requested a jury trial in blatant disregard of
the FSIA’s grant of original jurisdiction to district courts only over “any nonjury civil action
against a foreign state.” Jd. (citing 28 U.S.C. § 1330(a)). While the Court suspected that this was
a simple drafting mistake, it cautioned the plaintiffs here and elsewhere to avoid “muddying the
Court’s jurisdiction on the front cover of their complaint.” Id.
Second, the Court dismissed numerous claims made by the plaintiffs for lack of subject
matter jurisdiction under the FSIA’s terrorism exception. The Court explained that for the FSIA
to abrogate a foreign state’s sovereign immunity under the statute’s terrorism exception, a plaintiff
must (among other things) seek damages stemming from “an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking,” or the provision of material support for those activities. Mem.
Order 2 (citing 28 U.S.C. § 1605A(a)(1)). A few weeks before the Court’s Memorandum Order
denying the first motion for default judgment in this case, the D.C. Circuit decided Borochov v.
Islamic Republic of Iran. In Borochov, the D.C. Circuit held that the FSIA’s requirement that
plaintiffs’ personal injuries arise from an “‘extrajudicial killing’ [means that] the perpetrator must
have actually killed someone.” Id. (citing Borochov v. Islamic Republic of Iran, 94 F Ath 1053
(D.C. Cir. 2024)). Because several of the EFP attacks in the original Complaint “did not result in
any deaths,” the Court dismissed the claims “stemming from those attacks where no one died.” Jd.
at 3. Specifically, the Court dismissed the claims brought by plaintiffs Jacob Zuccaro, Jamie
Zuccaro, Blake Darsaw, and Jacques Botha. Id. at 2-3.
The Court pointed out a third jurisdictional flaw in the plaintiffs’ briefing on behalf of the
Family Member plaintiffs. The Court first explained that the terrorism exception is only available
to certain plaintiffs: U.S. nationals, members of the armed forces, employees of the United States
government, and “individual[s] performing a contract awarded by the United States Government,
acting within the scope of the employee’s employment.” 28 U.S.C. § 1605A(a)(@ii). None of the
decedents in this case was a citizen of the United States. And while the plaintiffs assert that their
family members were contractors acting within the scope of their employment, they failed to
provide the Court with satisfactory evidence that their family members killed in the EFP attacks
were acting “within the scope” of their employment. Mem. Order 5.
In addition to these three jurisdictional flaws, the Court found that the plaintiffs failed to
clear an important Article III hurdle: the Estate of Johannes Potgieter failed to present satisfactory
evidence as to its standing to bring a claim for pain and suffering. Jd. at 4 (citing 28 U.S.C.
§ 1608(e)). Estate plaintiffs in FSIA cases must establish that they have standing to maintain a
cause of action for injuries that occurred during the decedent’s life. Worley v. Islamic Republic of
Iran, 75 F. Supp. 3d 311, 333 (D.D.C. 2014). And this Court noted that whether a plaintiff can
maintain such an action “is a question that is ‘governed by the law of the state which also governs
the creation of the estate.” Mem. Order 4 (citing Worley, 75 F. Supp. 3d at 333). The Court found
that the plaintiffs had presented no evidence to establish what law governs the creation of the Estate
of Johannes Potgieter. Id.
Finally, the plaintiffs failed to provide evidence satisfactory to the court as to the merits of
their argument. Jd. 5 (citing 28 U.S.C. § 1608(e)). The Family Member plaintiffs provided “no
details” as to the injuries they suffered as a result of the attack. Jd. at 5. The bulk of the claims
alleged in the First Amended Complaint were IIED claims brought by the Family Member
plaintiffs. First Am. Compl. {J 132-142. While the First Amended Complaint and First Motion
for Default Judgment painted a harrowing picture of the trauma suffered by these plaintiffs in the
wake of their loved ones’ deaths at the hands of terrorists, their allegations should be “supported
by ... documentary and affidavit evidence.” Valore, 700 F. Supp. 2d at 59.
The Court denied the First Motion for Default Judgment without prejudice and granted the
plaintiffs leave to refile their motion and address these issues. The plaintiffs then sought leave to
file a Second Amended Complaint, which the Court granted. Order of May 21, 2024, ECF No. 27.
The plaintiffs have now filed their Second Amended Complaint and Renewed Motion for Default
Judgment. See Second Am. Compl.; Renewed Motion for Default Judgment, ECF No. 31
(“Renewed Mot.”). The defendants, unsurprisingly for an FSIA case brought under the terrorism
exception, did not respond. The Renewed Motion is therefore ripe for review.
Ill. FINDINGS OF FACT
A. Judicial Notice of the Roberts Opinion and Affidavit Testimony
The plaintiffs have asked this Court to take judicial notice of the findings of fact and
conclusions of law made by this Court in the related case Roberts v. Islamic Republic of Iran, No.
20-cv-1227 (RCL) (“Roberts”), which itself relied in part on the findings in this Court’s
Memorandum Opinion in Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d 12 (D.D.C. 2019).
First Mot. 5-6. The Federal Rules of Evidence allow a court to take judicial notice of facts that
are “not subject to reasonable dispute” either because they are “generally known within the trial
court’s territorial jurisdiction” or because they “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts in this
district have taken “judicial notice of court records in related proceedings” when adjudicating
FSIA cases that arise from a common set of facts and require expert testimony on similar issues.
Rimkus, 750 F. Supp 2d at 171 (citing Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)).
While courts must be careful to avoid simply accepting any implications that arise from the
existence of prior opinions, the validity of the judicial record itself is generally “not subject to
dispute” and recognition of that record is therefore “a proper exercise of judicial notice.” Id. at
172. However, it is still up the Court to determine the significance of that evidence in the case
before it, and the Court must evaluate the implications of the prior cases of which it takes judicial
notice and the allegations alleged in the complaint before it.
Here, the Court will take judicial notice of several sworn affidavits by experts whom the
Court has already qualified in prior proceedings. See Mem. Op. 5-6, Roberts, ECF No. 24. In
particular, the Court will refer to the expert affidavits of Michael Pregent and Donald Wade Barker
admitted by the Court in Roberts. Mr. Barker was a member of the United States Army for fourteen
years, during which time he oversaw the development and implementation of countermeasures to
the proliferation and effectiveness of EFPs. See Expert Affidavit of Donald Wade Barker J 2,
Roberts, ECF No. 17-2 (“First Barker Aff.”). He currently serves as CEO of the Tisdale Group, a
defense company focused on producing technology to counter, among other weapons, EFPs. Id.
q 4. Mr. Pregent is a former intelligence officer who has served in various roles over a thirty-year
career, including at the National Military Command Center at the Pentagon. Expert Affidavit of
Michael Pregent J 1-3, Roberts, ECF No. 17-1 (“Pregent Aff.”). As discussed further below, these
affidavits collectively provide evidence satisfactory to this Court of Iran’s involvement in the
creation and proliferation of EFPs throughout Iraq during the relevant time period. In addition to
these expert affidavits, the Court will take judicial notice of the sworn affidavits of Leon Botha,
Pierre Du Plessis, and George Kieser submitted in Roberts to make its factual findings regarding
the First, Second, and Third Attacks, respectively. George Kieser has also provided crucial
testimony regarding the fatal nature of the First Attack, which the Court will also judicially notice.
B. EFP Proliferation by Iranian-Backed Forces
As with every case invoking the terrorism exception—the facts of this case shock the
conscience and evoke sympathy for the victims and their families. Each of the four victims in this
case was an employee of a government contractor performing work to rebuild Iraq after the fall of
Saddam Hussein in 2003. The three decedents—Johannes Strauss, Johannes Potgieter, and
Ignatius du Preez—worked for DynCorp as security contractors, escorting military members from
the United States and its allies (the “Coalition”) to and from the various projects throughout Iraq.
Ex. 2, Decl. of Joey Strauss 8, Renewed Mot., ECF No. 31-3; id. Ex. 3, Decl. of Joey Strauss 9—
11. Leon Botha was likewise part of a “personal security detail for a [unspecified] United States
government contractor.” Decl. of Leon Botha {| 1-2, Roberts, ECF No. 17-12.
Iran almost immediately began to impede these efforts. It dispatched a group of trained
Iraqi Shia exiles known as the Badr Corps to infiltrate the rebuilding Iraqi security forces, and it
supported a national militia known as Jaysh al-Mahdi (“JAM”) that threatened the Coalition forces,
including government contractors like the victims in this case. Soon after the Coalition began its
work of rebuilding Iraq, Iran provided “tactical and material support to these two groups in their
efforts to undermine the ongoing Coalition mission in Iraq.” Pregent Aff. 31. In addition to the
Badr Corps and JAM, two other groups fought against the Coalition’s efforts to rebuild and
stabilize the new Iraqi army: Hezbollah, a terrorist organization supported by Iran since the 1979
Iranian revolution, and the Islamic Revolutionary Guard Corps Qods Force (“IRGC-QF”), a
pseudo-governmental military organization reporting directly to the Supreme Leader of Iran. Jd.
qq 15, 23.
Hezbollah and the IRGC-QF were primarily responsible for most of the EFP attacks against
USS. interests in Iraq during the mid-2000s. Id. ]37. EFPs are designed for the express purpose
of penetrating the armor of military vehicles. First Barker Aff. 11. Their design is simple: one
end of a steel pipe is welded shut with a steel plate, creating what is essentially a fixed mass at that
end. The open end of the pipe is packed with explosive material known as C-4 and then closed
with a specially manufactured copper plate. Id. 17. As Donald Barker explains, this design is
“highly effective against armored vehicles because of [the] ability to focus the energy of an
explosive blast into a plate of metal, forming that metal into the shape of a slug.” Id. § 15. Copper
is considered the perfect metal for EFPs because “its melting point is just below the maximum
detonation temperature of C-4 and other similar explosive materials,” meaning it can form the
requisite slug shape needed to penetrate armor without completely melting from the blast. Id. J 19.
Simply knowing the science behind EFP detonation is not enough to make them effective
against modern armored vehicles. Obtaining the knowledge to mill the copper plate so that it is
the right amount of thickness—neither “too thin so as to shatter or too thick so as to fail to take the
desired shape”—requires specific training and equipment. Id. 20. And once one has the correct
materials (C-4, copper, and steel pipes) and training to create an EFP, they still must know how to
strategically place and disguise the devices to avoid detection. One common way of disguising
EFPs has been to “remov[e] a portion of curb from the side of the roadway and replacing it with
an EFP array that was painted to match the adjacent curb.” Jd. { 23.
The first known use of the EFP by Hezbollah was against the Israeli Defense Forces in
1998, and it was “introduced . . . to [anti-Coalition] Iraqi militias in 2004 for use against American
and Coalition up-armored vehicles.” Pregent Aff. (38. And as the Coalition’s military presence
escalated during the rebuilding of Iraq, “the EFP became the signature weapon of Iranian-
sponsored Iraqi militias.” Id. In 2006, Coalition forces discovered a large cache of copper plates
“snecifically designed for use in EFP devices.” Jd. 941. As additional discoveries of these caches
10
were made, Coalition forces could “confirm[] Iran’s continued infusion of EFP devices into Iraq.”
Id. (citations omitted).
The materials, assembly training, and strategic thinking behind EFP placements were all
provided to Iraqi Shia militants by Hezbollah and Iran. In addition to the caches of copper plates
found in Iranian mines, the United States military has confirmed that Iran trained militants to
assemble and deploy EFPs through interrogation of detainees. First Barker Aff. 423.
Additionally, the military has determined that the quantity and quality of explosive material
required for EFPs to function effectively “was not readily available to Iraq’s Shia militants without
Iranian sponsorship.” Jd. § 30. Finthenttore} the level of sophistication required to adapt the EFPs
to “the technological complexity” of the Coalition’s response to EFP detonations would not have
been possible “without the active involvement and oversight of the IRGC and Hezbollah.”
Id. 933. With this background established, the Court will review the evidence submitted for the
three attacks.
C. The First Attack
Leon Botha is a citizen of South Africa who, at the time of the First Attack, “was working
in Iraq as a member of a personal security detail for a United States government contractor.” Decl.
of Leon Botha J 1-2, Roberts. On November 20, 2004, he and his team escorted a United States
government group as part of their duties. Leon Botha was driving the second of four vehicles in
the convoy. Jd. During their return voyage, an EFP detonated next to their vehicles, piercing
Leon’s vehicle and injuring several of the occupants. Jd. 6. This was one of the first instances
of an EFP being used in Iraq. Id. 9. An investigation revealed copper residue on the targeted
vehicle, which “confirmed... that an EFP was used as part of the attack.” Id. 9 11. The
investigation concluded that Iranian diplomatic personnel likely perpetrated the attack, both
11
because of the presence of copper residue consistent with Iranian-backed EFP explosions and
because the attack took place in front of the Iranian Embassy compound. Id.
George Kieser was working for the same security contractor as Leon Botha and was present
during the First Attack, where he saw the EFP detonate next to their convoy and a nearby civilian
vehicle. Supplemental Affidavit of George Kieser J 3, ECF No. 31-15. According to Mr. Kieser,
“several individuals inside that vehicle died instantly,” and he returned as part of the investigative
team to find “the burned-out shell of that vehicle.” Jd. Leon Botha’s Supplemental Affidavit in
this case includes a picture of that burned-out shell as well as a picture of the vehicle he was
driving, which shows “human brain matter stuck to the front” of the vehicle. Botha Aff. 5, ECF
No. 31-14.
D. The Second Attack
The Second Attack occurred on November 14, 2005, outside the Iranian Embassy. A four-
vehicle escort convoy led by affiant Pierre Du Plessis passed by the Embassy and triggered an
EFP. Du Plessis Aff. §{ 5-6, Roberts, ECF No. 17-14. The fourth vehicle was hit directly by the
EFP, “causing it to immediately burst into flames.” Jd. | 6. Johannes Potgieter and Ignatius du
Preez were both killed in the attack. Id.
E. The Third Attack
The Third Attack took the life of Johannes Strauss on December 22, 2005. Mr. Strauss
was on security detail for a United States government contractor when his vehicle was struck by
an EFP. Shrapnel from the EFP penetrated both the passenger side and driver side of the vehicle
in which Mr. Strauss was traveling. The blast killed Mr. Strauss, who was pronounced dead at the
scene by the time Mr. Kieser, his colleague, arrived to investigate the blast and document its
damage. Affidavit of George Kieser 94, ECF No. 21-4.
12
F. Scope of Employment
As mentioned supra, to succeed on their default judgment motion, the Family Member
plaintiffs must provide evidence that their deceased family members were government contractors
acting within the scope of their employment at the time they were killed. As noted above, three
decedents’ status as government contractors acting within the scope of their employment is at
issue: Ignatius du Preez, Johannes Strauss, and Johannes Potgieter. The Court will address the
evidence submitted by plaintiffs for each of these individuals in turn, finding that the evidence is
sufficient to show that each decedent was acting within the scope of their employment at the time
they were killed and is thus eligible for relief under the terrorism exception.
The plaintiffs submit several evidentiary documents to prove that Ignatius du Preez was a
government contractor operating within the scope of his employment when he was killed. First,
Mr. du Preez’s wife Adri du Preez submits an affidavit in which she recalls being informed of her
husband’s passing. Decl. of Adri du Preez 2, Renewed Mot., ECF No. 31-2. She recalls being
informed by a company representative that her husband “died while acting in the line of duty.” Id.
While this would normally constitute hearsay evidence, the Court in FSIA cases may rely on
plaintiffs’ “uncontroverted factual allegations” as long as those allegations are supported by
“documentary and affidavit evidence.” Valore, 700 F. Supp. 2d at 59. Counsel for Mrs. du Preez
claims that her assertions are supported by a “Department of Health Letter.” Renewed Mot. 5.
However, the letter does not appear anywhere in the Motion or exhibits, and its absence calls into
question whether enough documentary evidence has been submitted to substantiate the du Preez
plaintiffs’ claims. Luckily for the du Preez Plaintiffs, the Court has identified in the record an
email from Ignatius du Preez’s employer sent on May 28, 2010, listing him among those
employees who “lost their lives while carrying out their duties.” Ex. 2, Decl. of Joey Strauss 7-8,
13
Renewed Mot. (“Memorial Day Email”). Together with Mrs. du Preez’s affidavit statement, the
Memorial Day email provides evidence satisfactory to the Court that Ignatius du Preez was “an
individual performing a contract awarded by the United States Government, acting within the
scope of’ his employment and therefore a proper plaintiff under the terrorism exception. 28
U.S.C. § 1605A(a)(2)(A)(ii).
The Memorial Day Email also saves the claims of Johannes Potgieter, as it provides the
only documentary evidence that he was a government contractor acting within the scope of his
employment. See Memorial Day Email (listing Johannes Potgieter as among those who “gave
their lives” in the “honorable service” of “build[ing] a better world”). Iris Potgieter, the wife of
Johannes Potgieter, provides affidavit testimony that her husband was killed “while carrying out a
security contract on behalf of the United States.” Decl. of Iris Potgieter 1, Renewed Mot., ECF
No. 31-6. The Memorial Day Email and the sworn statement of Mrs. Potgieter satisfy the Court
that Johannes Potgieter was acting within the scope of his employment as a contractor with the
United States government at the time of his death.
Lastly, the Strauss plaintiffs provide the most documentary and affidavit evidence that
Johannes Strauss was acting within the scope of his employment when he was killed. First, they
provide an affidavit from Johannes Strauss’s wife Joey in which she states that he died “while
carrying out a security contract on behalf of the United States government.” Decl. of Joey Strauss
1. They also submit a letter from Johannes Strauss’s employer DynCorp International in which
the company states that Johannes “worked daily to protect those working to rebuild and reestablish
Iraq,” which permits the Court to draw the reasonable inference that he was so engaged at the time
his convoy was allegedly attacked. Jd. Ex. 2. Most tellingly, the Strauss plaintiffs include an email
from DynCorp International stating that Johannes Strauss was killed “when his armored vehicle
14
was hit by an improved explosive device” while he and his team “were providing security as part
of a convoy that was transporting US corrections officials to Baqubah for prison inspections.” Id.
Ex.3. Taken together, these two documents and Mrs. Strauss’s affidavit testimony provide
satisfactory evidence that Johannes Strauss was killed while acting within the scope of his
employment as a poyerninent contractor for the United States. The Court will therefore move on
to analyze the plaintiffs’ claims.
IV. CONCLUSIONS OF LAW
A. Subject Matter Jurisdiction
1. This Court Has Original Jurisdiction Under § 1330(a)
“For the better part” of the first two centuries of our nation’s existence, the Executive
branch requested that courts grant immunity to foreign states involved in suits before them.
Republic of Argentina v. NML Capital, Lid., 573 US. 134, 140 (2014). However, in 1976
Congress “replac[ed] the old executive-driven, factor-intensive, loosely common-law-based
immunity regime with the Foreign Sovereign Immunities Act’s [“FSIA”] ‘comprehensive set of
legal standards governing claims of immunity in every civil action against a foreign state.’” Id. at
141 (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983)). Under the
new FSIA regime, though, sovereign immunity is still the default in civil actions such as this one.
28 U.S.C. § 1604 (explaining that, subject to certain exceptions, “a foreign state shall be immune
from the jurisdiction of the courts of the United States and of the States”). Therefore, the FSIA
only bestows on district courts original jurisdiction over (1) nonjury civil actions; (2) commenced
against a foreign state; (3) for claims seeking relief in personam, (4) where the foreign state is not
entitled to immunity under sections 1605 or 1607 of the FSIA or under any applicable international
agreement. 28 U.S.C. § 1330(a).
15
Here, the first three requirements of Section 1330(a) are met. As mentioned above, the
plaintiffs initially fumbled the ball with the first requirement by requesting a jury trial in the First
Amended Complaint. However, this deficiency was easily cured in the Second Amended
Complaint: the plaintiffs no longer seek a trial by jury. Compare First Am. Compl. 1, with Second
Am. Compl. Second, Iran is a “foreign state” within the meaning of the FSIA. 28 U.S.C.
§ 1603(a). Third, the claims are against the Iran as a legal entity and the claims therefore seek
relief in personam.
The fourth prong of the Section 1330(a) analysis requires the Court to consider whether a
foreign state is nevertheless immune from suit under sections 1605 or 1607. The plaintiffs here
seek to invoke this Court’s subject matter jurisdiction based on the so-called terrorism exception
to sovereign immunity. Section 1605A of the FSIA lays out requirements both for abrogation of
sovereign immunity under the terrorism exception and for courts to hear the claims of the plaintiffs.
For the reasons set forth below, the Court finds both that the statutory Fequinestients for abrogation
of sovereign immunity and the requirements for a claim to be heard are met here, and the Court
may therefore exercise subject matter jurisdiction over the claims.
2. Subsection 1605A(a)(1)—Abrogation of Immunity
Subsection 1605A(a)(1) states that a foreign state “shall not be immune from the
jurisdiction of the courts of the United States or of the States in any case ... [1] in which money
damages are sought [2] against a foreign state [3] for personal injury or death that was [4] caused
by [5] an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). The first, second, and
third requirements are self-evidently met here. First, the plaintiffs in this case seek monetary
damages against the defendants. Second Am. Compl. 23-24. They seek this relief against Iran, a
16
foreign state as defined by the FSIA. The Family Member plaintiffs seek damages for the pain
and suffering they have experienced, while the Estate of Johannes Potgieter seeks pain and
suffering damages for the death of Johannes Potgieter. Jd.
However, it is not so immediately clear whether the fifth requirement—that the actions of
the foreign state were acts of extrajudicial killings—is met for the First Attack. And since the
fourth requirement, causation, is predicated on a finding of extrajudicial killing, the Court must
first find that an extrajudicial killing occurred. The FSIA defines “extrajudicial killing” the same
way that section 3 of the Torture Victim Protection Act of 1991 does. 28 U.S.C. § 1605A(h)(7).
That section, in turn, defines extrajudicial killing as “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.” Torture Victim Protection Act of
1991, Pub. L. No. 102-256, § 3(a), 106 Stat. 73.
In its previous Memorandum Order, the Court dismissed Plaintiff Jacques Botha’s Eldims
because they arose out of the First Attack, in which the evidence introduced showed that Botha’s
brother Leon “was injured by an EFP attack” but for which there was no evidence that “Leon or
anyone else died in that attack.” Mem. Order 3 (emphasis added). In the Renewed Motion, Botha
now asserts that while his brother Leon did not die in the First Attack, “at least one by-stander was
killed during this attack, thereby satisfying the definition of ‘extrajudicial killing’ under
Borochov.” Renewed Mot. 3. As evidence in support of this claim, Botha submits two
supplemental affidavits from plaintiffs in Roberts.
The first affidavit was submitted by Jacques Botha’s brother Leon, who suffered serious
injuries as a victim of the First Attack. In the affidavit, Leon recalls the First Attack and testifies
that it was his “immediate understanding that all of the occupants of that vehicle would have died
17
instantly.” Supplemental Affidavit of Leon Botha, Renewed Mot. Ex. 14 94, ECF No. 31-14
(“Leon Aff.”). Leon’s affidavit also includes two pictures. The first is a picture of a white vehicle,
which Leon testifies “was taken to memorialize the discovery of human brain matter stuck to the
front of our vehicle as a result of the explosion.” Jd. The second picture depicts the crumpled
shell of “the civilian vehicle that was completely destroyed by the explosion.” Jd. 6. The second
affidavit was submitted by Mr. Kieser, another subcontractor who was a plaintiff in Roberts but
not in this case. See Compl., Roberts, ECF No. 1. He testifies that he was present at the First
Attack and saw the EFP detonate. Leon Aff. 1. He further testifies that he saw several
individuals inside the civilian vehicle die instantly. Jd. The plaintiffs submit that these two
affidavits, coupled with the evidence considered by this Court in Roberts, should lead the Court to
now find that Leon Botha’s injuries were caused by an extrajudicial killing.
Upon review of the affidavits submitted by the plaintiffs and the pictures included therein,
the Court finds that the First Attack did constitute an extrajudicial killing. All that remains of the
civilian car depicted in a picture in Leon Botha’s affidavit is a hollow shell. Jd. 6. Any people
inside the car when the EFP detonated would have died instantly. Like the heavily armored
military Suburban vehicles depicted in pictures here and in other cases the Court has seen, the
windows of this civilian vehicle were completely blown out. Jd. Unlike those heavily armored
suburban vehicles, the civilian vehicle had no armor. Id. The frame of the civilian car is more
mutilated than those of the military-grade vehicles, and the hood of the car appears to have caved
in from the force of the blow. Jd. Comparing the state of this vehicle to the heavily armored
military vehicles struck by EFPs in the other attacks described in the Complaint, which had holes
in the windows from where the shrapnel entered the cabin and killed the passengers inside, it is
more likely than not that the passenger(s) inside the civilian vehicle would have been killed by an
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EFP blast. The affidavits of Leon Botha and George Kieser provide the Court with satisfactory
evidence that it is more likely than not that there were, tragically, individuals inside the civilian
vehicle at the time of the explosion. The pictures submitted as part of those affidavits lead the
Court to only one conclusion: the individuals inside the civilian vehicle perished in the attack. The
First Attack was therefore an extrajudicial killing and satisfies the fourth requirement for
abrogation under § 1605A(a)(1).
The only remaining question is whether the act of extrajudicial killing “caused” the
personal injury to the Family Member plaintiffs and the death of J ohannes Potgieter. The answer
is clearly yes. The FSIA does not incorporate a “but-for” standard of causation, that is, plaintiffs
“need not show that their injuries would not have occurred ‘but for’ defendants’ actions.” Worley,
75 F. Supp. 3d at 325 (citing Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123,
1128 (D.C. Cir.2004)). Instead, this element “is established by showing “some reasonable
connection between the act or omission of the defendant and the damages which the plaintiff has
suffered.’” Id. (citing Valore, 700 F. Supp. 2d at 66).
As mentioned, each of the three attacks was carried out by the use of an EFP, which
Hezbollah had access to only because of the training, financing, and provision of materials by Iran.
Each of the three attacks bore signatures of Iranian support. The “presence of copper slugs” in the
First Attack leaves strongly suggests that the attack was perpetrated with the assistance of
Hezbollah and the IRGC. First Barker Aff 42. The assailants in the Second Attack utilized “EFP
warheads encased in concrete,” which they placed in sections of concrete on the road so as to blend
in. Expert Affidavit of Donald Wade Barker 43, ECF No. 21-3 (“Second Barker Aff.”).! The
1 Note that Barker submitted a new affidavit for the present case. While much of his testimony in this affidavit reflects
his prior statements in the affidavit for the Roberts case, there are new statements relevant to this case, including the
one preceding this footnote. The Court therefore refers to the affidavit submitted for this case as the Second Barker
Affidavit.
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technique of encasing EFP warheads in concrete “has been regularly used by anti-Iraq and anti-
Afghan forces that are trained by the Iranians.” Jd. And the cars destroyed in the Third Attack
had “a couple of indentations that... left copper residue behind,” which indicate the use of
Iranian-backed EFPs. Id. 52. Each of these attacks was the culmination of years of planning by
anti-Iraqi agents operating on behalf of Iran. Iran’s financial support for these agents of evil and
their provision of supplies to create EFPs is more than enough of a “reasonable connection” to the
damages suffered by the victims of these attacks for the Court to find the plaintiffs’ injuries were
caused by Iran’s actions. Because the requirements of Section 1605A(a)(1) are met, the Court
finds that Iran has abrogated the sovereign immunity of a foreign state.
3. Section 1605A(a)(2)—Requirements for a Claim to Be Heard
Even when the requirements of § 1605A(a)(1) are met, a district court must still find that
- the requirements of § 1605A(a)(2) are also met to exercise subject matter jurisdiction. Namely,
the requirements for a claim under the terrorism exception to be heard a that (i) the foreign
country was designated a “state sponsor of terrorism at the time [of] the act,” (ii) the claimant or
the victim was a “national of the United States . .. a member of the armed forces; or . . . otherwise
an employee of the Government of the United States, or of an individual performing a contract
awarded by the United States Government, acting within the scope of the employee’s
employment” at that time, and (iii) “in a case in which the act occurred in the foreign state against
which the claim has been brought, the claimant has afforded the foreign state a reasonable
opportunity to arbitrate the claim.” 28 U.S.C. § 1605A(a)(2).
The first and third requirements are easily satisfied. Iran has been designated a state
sponsor of terrorism since January 19, 1984, and therefore meets the first requirement. U.S. Dep’t
of State, State Sponsors of Terrorism, https://www.state.gov/state-sponsors-of-terrorism/
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[https://perma.cc/GV7N-ER27]. And the third requirement is not relevant here as all three attacks
took place in Iraq, which is not “the foreign state against which the claim has been brought.”
Therefore, the plaintiffs were under no obligation to afford Iran a reasonable opportunity to
arbitrate.
The second requirement under § 1605A(a)(2) operates as a jurisdictional bar that allows
only certain types of plaintiffs to proceed under the terrorism exception. As discussed supra, the
Court has found that each of the victims in these attacks were acting within the scope of their
employment. Therefore, all three requirements for a claim to be heard have been met in this case,
and the terrorism exception accordingly applies.
The Court will briefly address other potential statutory barriers to adjudicating this matter:
Personal Jurisdiction, Timeliness, and Venue. After confirming that none of those barriers present
an obstacle here, the Court will proceed to its analysis of the Estate’s and the Family Member
plaintiffs’ claims.
B. Personal Jurisdiction Over Iran
Courts adjudicating FSIA cases must assure themselves not only of subject matter
jurisdiction but also of personal jurisdiction over the defendants. 28 U.S.C. § 1330. To exercise
personal jurisdiction over a foreign defendant under the FSIA, courts must find that service has
been properly made under Section 1608 of the FSIA. Jd. § 1330(b). Section 1608 provides four
acceptable methods of service “upon a foreign state or political subdivision of a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance with any
special arrangement for service between the plaintiff and the foreign state or
political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on service of
judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the
summons and complaint and a notice of suit, together with a translation of each into
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the official language of the foreign state, by any form of mail requiring a signed
receipt, to be addressed and dispatched by the clerk of the court to the head of the
ministry of foreign affairs of the foreign state concerned, or
(4) if service cannot be made within 30 days under paragraph (3), by sending two
copies of the summons and complaint and a notice of suit, to gether with a
translation of each into the official language of the foreign state, by any form of
mail requiring a signed receipt, to be addressed and dispatched by the clerk of the
court to the Secretary of State in Washington, District of Columbia, to the attention
of the Director of Special Consular Services—and the Secretary shall transmit one
copy of the papers through diplomatic channels to the foreign state and shall send
to the clerk of the court a certified copy of the diplomatic note indicating when the
papers were transmitted.
28 U.S.C. § 1608(a).
The plaintiffs attempted service under the first three provisions to no avail. Notice
of Failed Service, ECF No. 10. Therefore, they filed an affidavit requesting foreign mailing
and sought to have service effectuated under cover of diplomatic note pursuant to
§ 1608(a)(4). They succeeded, and Iran was served on September 26, 2022. Return of
Service 1, ECE No. 14. The Court may therefore exercise personal jurisdiction over the
defendant.
C. Venue is Proper in This Court
For civil actions ‘against a foreign state or political subdivision thereof,’ venue is proper
“in the United States District Court for the District of Columbia.” 28 U.S.C. § 1391(f)(4). Iran is
a foreign state as defined by the FSIA. Jd. § 1603(a). Venue is therefore proper in this District.
D. The Court Will Not Bar the Plaintiffs’ Late Claims Under Section 1605A(b)
Section 1605A also includes a limitations provision, at subsection (b), setting out a series
of time periods within which an action under the section “may be brought or maintained.” 28
U.S.C. § 1605A(b). The statute of limitations bars claims brought later than “10 years after the
date on which the cause of action arose.” 28 U.S.C. § 1605A(b)(2). The attacks giving rise to this
action took place between November 2004 and December 2005, so at the latest the plaintiffs’
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causes of actions arose in 2005. Amobi v. Dist. of Columbia Dep’t of Corr., 755 F.3d 980, 994
(D.C. Cir. 2014) (internal citation omitted) (holding that under District of Columbia law, the statute
of limitations usually begins running when a plaintiff “sustains a tortious injury”). The plaintiffs
filed their Complaint in January 2022, far past the ten-year limitations period contemplated by the
statute. The plaintiffs’ claims would, therefore, appear to be barred.
However, this Court has held that Section 1605A’s limitations provision is not
jurisdictional. See Worley, 75 F. Supp. 3d at 328. Because statutes of limitations “are typically
treated as affirmative defenses that may be waived if not timely raised by that party,” the Court
has held that where, as here, the defendants do not appear in court to raise these affirmative
defenses, the claims may proceed. Jd. (citing John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 133 (2008)). The Court certainly believes that the “interests of justice would be better
served” here by addressing the merits of the plaintiffs’ claims than dismissing them as barred by
the statute of limitations. Day v. McDonough, 547 U.S. 198, 208 (2006). However, the Court will
admonish plaintiffs’ counsel that it does not take lightly the omission of briefing on any of the
statutory requirements for claims under § 1605A. While this Court may be familiar with the
requirements of the FSIA, it is incumbent upon plaintiffs, not the Court, to ensure that all the
requirements are met for a claim to be heard and no statutory provision otherwise bars relief.
E. Iran is Liable to The Estate of Johannes Potgieter Under the Private Right of
Action in § 1605A(c)
In its previous Memorandum Order, the Court dismissed the assault and battery claims of
the Estate of Johannes Potgieter from the First Amended Complaint because it had not shown that
it had standing to sue. Mem. Order 4. The Estate has not sought to reassert those claims here,
acknowledging that “it appears most likely that Johannes Potgieter died instantaneously, making
any claim for pain and suffering on behalf of his estate unsuitable.” Renewed Mot. 4. The Estate
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now seeks economic damages stemming from the wrongful death of Johannes Potgieter. As the
Court will now explain, the Estate has cured its standing issue and may proceed against Iran under
the FSIA’s private right of action.
Section 1605A creates a private right of action against countries deemed state sponsors of
terrorism by the State Department. Prior to the enactment of § 1605A, plaintiffs had to prove that
defendants were liable under specific state-law claims under the now-repealed provision of the
FSIA found at § 1605(a)(7). As a result, “most terrorism victims who pursued FSIA cases against
Iran were in fact able to litigate claims based on the tort law of the state jurisdiction where they
were domiciled at the time of the terrorist incident giving rise to the lawsuit.” In re Islamic
Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 46 (D.D.C. 2009) (Lamberth, C.J.). While
this approach worked for most victims of state-sponsored terrorism, “hundreds of
other[] . . . plaintiffs had their claims denied because they were domiciled in jurisdictions that did
not afford them a substantive claim.” Jd. at 47.
Congress changed the legal landscape for terrorism victims with its enactment of § 1605A
in 2008. National Defense Appropriations Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083,
122 Stat. 3, 338-44 (repealing § 1605(a)(7) and replacing it with § 1605A). The most sweeping
change wrought by this enactment was to subject state sponsors of terrorism “to a federal cause of
action for money damages if those terrorist states cause or otherwise provide material support for
an act of terrorism that results in the death or injury of a United States citizen or national.” In re
Terrorism, 659 F. Supp. 2d at 59 (citing 28 U.S.C. § 1605A(c)). This private right of action
brought about a “crucial change in the law” for victims of state-sponsored terrorism, who were
previously unable to rely on state tort law to create a cause of action. Id.
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Section 1605A(c) allows plaintiffs to recover “economic damages, solatium, pain and
suffering, and punitive damages” for any personal injury or death described in § 1605A(a)(1). 28
U.S.C. § 1605A(c). It provides that state sponsors of terrorism “shall be liable” to United States
nationals, members of the armed forces, government employees, government contractors acting
within the scope of their employment, or the legal representative of such persons “for personal
injury or death caused by acts described in § 1605A(a)(1).” 28 U.S.C. § 1605A(c). Subsection
(a)(1), in turn, contains the terrorism exception to sovereign immunity. As numerous courts in this
district have noted, determining liability under § 1605A(c)’s private cause of action is “essentially
the same” as determining the immunity-abrogation question in subsection 1605A(a)(1). Warmbier
vy. Democratic People’s Republic of Korea, 356 F. Supp. 3d 30, 54 (D.D.C. 2018) (citing Kilburn
v. Islamic Republic of Iran, 699 F.Supp.2d 136, 155 (D.D.C. 2010)). The “overlap between the
elements of [the private] cause of action [in § 1605A(c)] and the terrorism exception to foreign
sovereign immunity” means that if a member of one of the classes named in § 1605A(c) brings
claims that satisfy the terrorism exception, then the defendant’s liability is automatically
established. Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186, 205 (D.D.C. 2017).
Nevertheless, plaintiffs must still prove a “theory of liability” for their injuries. Roth, 78
F. Supp. 3d at 399. Here, the plaintiffs seek recovery on a wrongful death theory. Renewed Mot.
4-5. The Court has previously determined that an estate-plaintiff, as the legal representative of an
entity with standing to bring claims under § 1605A(c), may bring a wrongful death action “for
economic losses which result from decedent’s premature death.” Valore, 700 F. Supp. 2d at 78.
Here, the Court has already determined that Johannes Potgieter was a government contractor acting
within the scope of his employment. See supra IV.A.3. And his estate has met the requirements
for the terrorism exception to abrogate sovereign immunity and establish his claims. See supra
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IV.A.2. Therefore, Iran is liable to the Estate of Johannes Potgieter under the private cause of
action for his wrongful death.
F. Iran Is Liable to the Family Members for HED
None of the Family Member plaintiffs is a citizen of the United States, so the federal cause
of action in § 1605A(c) is not available to them. However, courts have made clear that § 1605A
“did not displace a claimant's ability to pursue claims under applicable state or foreign law upon
the waiver of sovereign immunity” that existed under § 1605(a)(7) prior to the 2008 enactment of
the private cause of action. Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 20(D.D.C.
2011) (Bates, J.). And because Iran’s immunity is waived in this case, the Court may consider
whether Iran is liable to the plaintiffs for their injuries under the laws of the appropriate
jurisdiction. In determining liability for plaintiffs’ non-federal claims under the FSIA, the D.C.
Circuit has “instructed federal [district] judges to find relevant law, not to make it.” Bettis v.
Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003). But before the Court can find the
relevant law, it must first determine where to look. That is, it must engage in a choice-of-law
analysis to determine whose law to apply: the law of the forum (D.C.); the law of the plaintiffs’
domicile (South Africa); or the law of the place where the wrong occurred (Iraq). After conducting
the choice-of-law analysis, the Court will conclude that South African law controls.
As stated above, this Court must apply the choice-of-law rules of the forum, which in all
FSIA cases is the District of Columbia. 28 U.S.C. § 1391(£)(4); see also Oveissi, 573 F.3d at 841.
D.C. employs a “constructive blending” of “governmental interest” analysis and the “most
significant relationship” test of the Second Restatement. Coleman, 667 A.2d at 816. The Family
Member plaintiffs argue that D.C. law should apply to their IED claims. First Mot. 33-35. They
argue that under the government interest analysis, “there is a unique and compelling reason for the
26
domestic law of the United States to apply” to their claims— namely, that “the EFP Attacks were
specifically directed against American interests and the United States.” Id.
While it is true that the EFP attacks were perpetrated by foreign enemies of the United
States, the plaintiffs conflate the policy interests of the United States with the policy interests of
the District of Columbia. Although Washington, D.C. houses the seat of the federal government,
it also has its own standalone legislature and court system that are distinct from the federal
government. The Constitution grants to Congress the power to “exercise exclusive legislation in
all cases whatsoever over” the District of Columbia. U.S. Const. art. I, § 8, cl.17. For much of
our nation’s history, Congress did directly legislate in D.C. If that were still the case, and Congress
had passed the FSIA while the United States District Court for the District of Columbia had
established the elements for an IIED claim under D.C. law, the use of D.C. law to adjudicate
plaintiffs’ claims might make more sense. But in 1973, Congress “delegate[d] certain legislative
powers to the government of the District of Columbia” and “vested in the District of Columbia
Court of Appeals” the “judicial power of the District.” District of Columbia Home Rule Act, Pub.
L. No. 93-198, § § 102, 431, 87 Stat. 774 (1973). The D.C. Home Rule Act established the District
of Columbia Council and District of Columbia courts, which work in tandem to establish and
clarify the laws of the District of Columbia.
The Family Member plaintiffs do not—and indeed, as explained above, cannot—invoke
federal law for their claims. Instead, they rely on an IIED theory established by the District of
Columbia Court of Appeals. First Mot. 35-36 (citing Larijani v. Georgetown Univ., 791 A.2d 41,
44 (D.C. 2002)). There is a clear distinction between the local D.C. government, whose courts
have established the IIED theory upon which the plaintiffs rely, and the federal government, which
represents the interests and values of our nation that the defendant seeks to destroy. Therefore, the
27
Court must consider the policy interests of the D.C. local government, rather than the federal
government, in its analysis. The plaintiffs give no reason why the District of Columbia
government would have any interest in compensating foreign citizens for injuries they suffered
while employed by contractors operating on behalf of the United States government. It does not
appear to this Court that any such reason exists.
Turning to the second part of the choice-of-law analysis, South Africa has the most
significant relationship to this dispute. In conducting the most-significant-relationship analysis,
courts consider the contacts a forum has with the parties and the dispute. “Contacts to be taken
into account . . . include: (a) the place where the injury occurred, (b) the place where the conduct
causing the injury occurred, (c) the domicil[e], residence, nationality, place of incorporation, and
place of business of the parties, and (d) the place where the relationship, if any, between the parties
is centered.” Coleman, 667 A.2d at 816 (citing RESTATEMENT (SECOND) OF CONFLICT OF L. § 145)
Although the conduct causing the plaintiffs’ injuries in this case occurred in Iraq, Iraq’s
“relationship cannot be said to be more significant than that of the Family Member Plaintiffs’
domicile countries.” Mem. Op. 10, Roberts, ECF No. 47. This is because the first factor (the place
where the injury occurred) and the third factor (the domicile of the parties) cut in favor of applying
South African law. The plaintiffs’ domiciles are South Africa, and their injuries, which they
describe as “severe emotional distress,” Second Am. Compl. 22, are felt by the plaintiffs in South
Africa. Indeed, courts in this district have recognized that in terrorism-exception cases, “the
plaintiffs’ domicile often has a more significant relationship to the dispute than the law of the place
of the conduct giving rise to the injury.” Jd. (citing Dammarell v. Islamic Republic of Iran, No.
01-cv-2224 (JDB), 2005 WL 756090, at *20 n.17 (D.D.C. Mar. 29, 2005)). The same is true here.
28
The Court must therefore turn to South African law to find a relevant theory under which
the plaintiffs can prevail on their claims. South African law has an ITED analogue, which they
style “emotional shock.” The plaintiffs point the Court to a memorandum from Tzvi Brivik, a
personal injury attorney in South Africa upon whose opinion the Court relied in Roberts. Brivik
Mem., Ex. 2 to Renewed Mot. for Default J., Roberts, ECF No. 35-3. The elements of emotional
shock are: “(1) a voluntary act causing emotional shock; (2) factual and legal nexus between the
voluntary act and the harm; (3) wrongfulness, that is, conduct causing ‘relatively ser[iJous physical
or mental harm’; (4) fault; and (5) damage, specifically ‘personality infringement, pain and
suffering, [or] patrimonial loss.’”” Brivik Mem. § 11.
Given this legal framework, the plaintiffs have established their right to relief under South
African law. The Court has already found that Iran took deliberate, voluntary acts throughout the
early 2000s to support anti-Coalition insurgents operating in Iraq. See supra. There is a factual
and legal nexus between that siafernal provision of support and the injuries suffered by the
plaintiffs, and the injuries suffered by the plaintiffs are undoubtedly serious. The Court has already
determined that Iran is at fault for the death of the decedents.
The anguish and pain that the Family Member plaintiffs have suffered since losing their
loved ones is clear from their statements, and they are affected by the traumatic loss of their loved
ones to this day. The plaintiffs describe their continued reliance on medication for insomnia and
anxiety, while the children of the decedents struggled in school. At least one had to attend anger
management classes in the wake of his father’s death and throughout his high school years. The
Potgieter plaintiffs’ loss was compounded shortly after the attacks, as Johannes Potgieter’s brother
committed suicide two months after Johannes’s death, leaving Johannes’s children and widow
even more emotionally unstable. Johannes’s son Nicholas describes “reliving [his] father’s death
29
all over again” just two months after his father died. The evidence presented by these declarations
provides the Court with satisfactory evidence of the plaintiffs’ pain and suffering. Iran is therefore
liable to the Family Member plaintiffs under South African law for the intentional infliction of
emotional shock.
Vv. DAMAGES
The Court has authority to “appoint special masters to hear damage claims brought” under
§ 1605A. 28 U.S.C. § 1605A(e)(1). The Court does not have sufficient evidence before it to assess
the plaintiffs’ damages. The Court will therefore appoint a special master pursuant to its authority
under the FSIA. The special master shall take evidence and timely file a report and
recommendation as to the amount of damages to which each plaintiff shall be entitled. Given the
inadequacy of previous filings by plaintiffs’ counsel, the Court underscores once again that the
attorneys for the plaintiffs must ensure they have all relevant evidence related to the damages
calculations ready in a timely manner for the special master. Undue delay will not help these
plaintiffs, who require a final determination as to their damages before they can seek monetary
relief.
The Court appointed Special Master Alan Balaran in the related case. Order of July 31,
2023, Roberts, ECF No. 52. The plaintiffs in this case have consented to the appointment of
Special Master Balaran for this case, and the Court believes his selection would be appropriate
given his familiarity with the facts of this case and his general knowledge of this Court’s
expectations of a special master. The Court will therefore appoint Alan Balaran as Special Master
in this related case.
VI. CONCLUSION
The Family Member plaintiffs will feel the loss of their loved ones for years to come. AS
with all FSIA cases arising out of the terrorism exception, the Court’s entry of default judgment
30
for the plaintiffs will not ease this pain or return their loved ones. However, the Court hopes that
this award helps to alleviate their injury and aid them into the road to recovery.
The Court will refer to the Special Master the consideration of compensatory damages and
defer consideration of punitive damages until such time as the Special Master has issues his report
and recommendations. 5
A separate Order and Judgment consistent with this Opinion shall issue.
Date:*7__ March, 2025 © Coes C. Aut,
Royce C. Lamberth
United States District Judge
31