WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
ing that [Otto] had not contracted botulism
while in North Korea that would have
caused respiratory failure.’’ Id. ¶ 18. That
Otto would die from this brain injury was
also reasonably foreseeable. According to
Mr. Hawk, North Korea released Otto
‘‘just before he would have died in detention,’’ H’rg Tr. (Rough) at 98 (Expert
David Hawk), deciding it ‘‘needed to get
him out of the country before he [died] in
detention, which would be harder for
[North Korea] to explain,’’ id. at 104.
With respect to the second element,
North Korea deliberately caused Otto’s
brain damage, which resulted in his death.
North Korea’s torture methods ‘‘pose a
substantial danger to human life,’’ and
North Korea ‘‘routinely withholds medical
care from those in its custody, with such
frequency that it amounts to an intentional
act.’’ Hawk Expert Decl. ¶ 40; see also id.
¶ 25 (explaining denial of food rations and
imposition of hard labor are also ‘‘common’’ intentional acts resulting in death);
Kanter Decl. ¶ 15 (‘‘Because the [brain]
injury was so extensive, it was unlikely
that [Otto] was with medical personnel
who were willing and able to intervene to
resuscitate him when the injury occurred.’’). The expert’s conclusions are
‘‘more than sufficient’’ evidence that North
Korea deliberately caused Otto’s death.
Kim, 774 F.3d at 1050; see also id. at 1051.
Moreover, the fact that North Korea continued to detain Otto in this severely compromised condition for over a year, rather
than send him home earlier to obtain medical care, compounds the deliberate nature
of that totalitarian state’s brutal treatment
of Otto. See F.W. Decl. ¶ 12.
Finally, as for the third element, Otto’s
death was not authorized by a ‘‘regularly
constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.’’ 28 U.S.C.
§ 1350 (note). The North Korean criminal
53
judgment against Otto was illegitimate because North Korea does not have an independent judiciary, fabricated Otto’s ‘‘confession,’’ and put on a ‘‘show trial.’’ H’rg
Tr. (Rough) at 100–01 (Expert David
Hawk); Collins Expert Decl. ¶ 14 (‘‘[T]he
judiciary and prosecutors are thus highly
controlled by the same entity that controls
all other party and state apparatuses.’’);
id. ¶ 27 (concluding Otto’s ‘‘speech at the
press conference purporting to confess to
the alleged crime was most likely dictated
to him in advance and the product of torture’’). Further, even if North Korea’s judiciary were legitimate, Otto’s sentence authorized 15 years of hard labor, not death.
Hatch. Decl., Ex. E (KCNA Article on
Otto’s ‘‘Trial,’’ titled ‘‘American Student
Sentenced to 15 Years of Hard Labor in
DPRK’’).
B.
Personal Jurisdiction
To impose judgment on a foreign state
under the FSIA, this Court must have
personal jurisdiction. Personal jurisdiction
over North Korea, as a foreign state, depends on whether ‘‘service has been made
under section 1608 of this title.’’ 28 U.S.C.
§ 1330(b) (defining limits of personal jurisdiction over foreign states). Service may
be effected under 28 U.S.C. § 1608 in one
of four ways: (1) by ‘‘special arrangement
for service between the plaintiff and the
foreign state,’’ (2) ‘‘in accordance with an
applicable international convention on service of judicial documents,’’ or, if the first
two options are not applicable, (3) by
‘‘sending a copy of the summons and complaint and a notice of suit, together 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 head of the ministry of foreign
affairs of the foreign state concerned,’’ or,
if service cannot be made under the third
option, (4) by requesting the Clerk of the