WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
43
FED. R. CIV. P. 56(e)(2) (authorizing court
to ‘‘consider the fact undisputed for purposes of the motion’’ when adverse party
‘‘fails to properly address another party’s
assertion of fact’’). Section 1608(e), thus,
‘‘does not require a court to step into the
shoes of the defaulting party and pursue
every possible evidentiary challenge.’’ Owens v. Republic of Sudan, 864 F.3d 751,
785 (D.C. Cir. 2017). ‘‘This is part of the
risk a sovereign runs when it does not
appear and alert the court to evidentiary
problems.’’ Id. at 786.
tions omitted). ‘‘Eyewitnesses in a state
that sponsors terrorism are similarly difficult to locate and may be unwilling to
testify for fear of retaliation,’’ and ‘‘[t]he
sovereigns themselves often fail to appear
and to participate in discovery.’’ Id. Accordingly, ‘‘[w]ith a dearth of firsthand
evidence, reliance upon secondary materials and the opinions of experts is often
critical in order to establish the factual
basis of a claim under the FSIA terrorism
exception.’’ Id.
[9, 10] In a FSIA default proceeding, a
district court can find that the evidence
presented is satisfactory ‘‘when the plaintiff shows ‘her claim has some factual basis,’ TTT even if she might not have prevailed in a contested proceeding.’’ Id. at
785 (citations omitted). ‘‘This lenient standard is particularly appropriate for a FSIA
terrorism case, for which firsthand evidence and eyewitness testimony is difficult
or impossible to obtain from an absent and
likely hostile sovereign.’’ Id. Thus, courts
are accorded ‘‘an unusual degree of discretion over evidentiary rulings in a FSIA
case against a defaulting state sponsor of
terrorism.’’ Id. This ‘‘broad discretion extends to the admission of expert testimony,
which, even in the ordinary case, ‘does not
constitute an abuse of discretion merely
because the factual bases for an expert’s
opinion are weak.’ ’’ Id. (quoting Joy v.
Bell Helicopter Textron, Inc., 999 F.2d
549, 567 (D.C. Cir. 1993) ). Indeed, ‘‘[t]he
testimony of expert witnesses is of crucial
importance in terrorism cases TTT because
firsthand evidence of terrorist activities is
difficult, if not impossible, to obtain,’’
‘‘[v]ictims of terrorist attacks, if not dead,
are often incapacitated and unable to testify about their experiences,’’ and ‘‘[p]erpetrators of terrorism typically lie beyond
the reach of the courts and go to great
lengths to avoid detection.’’ Id. at 787 (cita-
III.
DISCUSSION
[11] In a FSIA case, ‘‘[a] default judgment may be entered when (1) the Court
has subject matter jurisdiction over the
claims, (2) personal jurisdiction is properly
exercised over the defendants, (3) the
plaintiffs have presented satisfactory evidence to establish their claims against the
defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to
the monetary damages they seek.’’ Braun
v. Islamic Republic of Iran, 228 F.Supp.3d
64, 75 (D.D.C. 2017); accord Akins v. Islamic Republic of Iran, 332 F.Supp.3d 1,
32 (D.D.C. 2018). Each of these requirements is addressed seriatim below.
A.
Subject Matter Jurisdiction
This Court may exercise ‘‘original jurisdiction’’ over a foreign state ‘‘without
regard to amount in controversy’’ in
‘‘nonjury civil action[s]’’ seeking ‘‘relief in
personam with respect to which the foreign state is not entitled to immunity either under sections 1605–1607 of this title
or under any applicable international
agreement.’’ 28 U.S.C. § 1330(a). As the
plaintiffs have not demanded a jury trial,
see Civil Cover Sheet at 2, ECF No. 1-1,
and they seek in personam relief, see
Compl. at 21, the remaining question is
whether North Korea is entitled to im-