By Louis M. Solomon
In Estate of Yael Botvin v.
Islamic Republic of Iran, et al., Civil Action No. 05-0220 (D.D.C. March
enhanced version of this opinion is available to lexis.com subscribers] plaintiff is the estate of an Israeli domiciliary killed in
a 1997 terrorist attack in Jerusalem, Israel. The District Court had earlier
denied a motion for a default judgment and treated the current motion ass one
to reargue/reconsider and to grant the default. The District Court essentially
granted the reargument by addressing the issues anew and reaffirmed its
denial of the motion for entry of a default judgment, without prejudice.
The District Court's decision
addresses on a motion to reconsider several timely topics in international
First, the Court observed that it
had substantially more discretion to review its own interlocutory orders than
it would have had to review a final order, even one that it had rendered. The
primary reasons for altering or amending a final judgment, said the Court, are
"an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or to prevent manifest injustice". With
respect to an interlocutory order, on the other hand, modification could be
done "as justice requires", which included a broader set of principles,
including whether the Court "has patently misunderstood a party, has made a
decision outsider the adversarial issues presented to the Court by the parties,
has made an error not of reasoning, but of apprehension, or where controlling
or significant change in the law or facts [has occurred] since the submission
of the issue to the court". The Court reaffirmed that interlocutory review is
not "subject to the law of the case doctrine".
Second, the Court found that its
prior choice of law determination was correct. The Court noted that the Foreign
Sovereign Immunities Act did not grant a private right of action against
non-U.S. states. (The plaintiff did not sue under 28 U.S.C. § 1605A, which, as we
have discussed in prior postings (for example here),
does provide a federal cause of action for state sponsored terrorism (subject
to qualification). To find that cause of action, therefore, the District Court
had to engage in a choice of law analysis and applied District of Columbia
choice of law rules and ultimately Israeli substantive law. The Court
distinguished earlier decisions by observing that, in this case, the plaintiff
was and remains domiciled in Israel.
Third, under Israeli law, the
District Court stated that it was unpersuaded by the plaintiff's showing that a
cause of action existed again Iran for damages, for vicarious liability for
assault, or for wrongful death. The District Court understood that in
determining non-U.S. law under Fed. R. Civ. P. 44.1 the court did not have to
rely on the parties; nonetheless the Court found the plaintiff's demonstration
lacking, finding that a heightened showing was necessary for entry of a default
judgment ("A court should not enter a default judgment against a foreign state
'unless the claimant establishes his claim or right to relief by evidence
satisfactory to the court'"). For a discussion of Rule 44.1, see the
discussion of proof of non-U.S. law in our e-book, International
Practice: Topics and Trends.
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