HAN KIM v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 950 F.Supp.2d 29 (D.D.C. 2013)
quent courts, see, e.g., Gates, 580
F.Supp.2d at 63, have adopted as the standard that the plaintiffs must put forth a
‘‘legally sufficient prima facie case.’’ See,
e.g., Kilburn, 699 F.Supp.2d at 150.
Interpreting the ‘‘satisfactory to the
court’’ standard to require a legally sufficient prima facie case best accounts for
the posture of default proceedings under
the FSIA. Where the defendant has not
participated in the proceedings and there
has been no opportunity for discovery,
plaintiffs cannot be expected to meet a
typical standard for judgment as a matter
of law. However, the plaintiff’s evidence
must be rigorous enough to support the
facts necessary for jurisdiction.
[3] In FSIA default proceedings, ‘‘the
court may accept as true the plaintiffs’
uncontroverted evidence.’’ Wachsman v.
Islamic Republic of Iran, 603 F.Supp.2d
148, 155 (D.D.C.2009) (internal quotations
omitted) (quoting Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.
2000)); see also Gates, 580 F.Supp.2d at 63
(same); Alejandre v. Republic of Cuba,
996 F.Supp. 1239, 1243 (S.D.Fla.1997)
(same). The evidence provided, however,
is subject to the Federal Rules of Evidence. See, e.g., Daliberti v. Republic of
Iraq, 146 F.Supp.2d 19, 21 n. 1 (D.D.C.
2001) (noting that ‘‘[i]n the absence of defense counsel, the Court used particular
care to draw the TTT findings of fact and
conclusions of law from admissible testimony in accordance with the Federal Rules of
Evidence’’). Hearsay evidence therefore
is normally inadmissible because it lacks
sufficient indicia of reliability. Expert witnesses, however, may rely on hearsay evidence to reach their conclusions. Fed.
R.Evid. 703. Plaintiffs may present their
evidence in the form of affidavits or declarations, see Campuzano, 281 F.Supp.2d at
the trial judge must direct a verdict if, under
the governing law, there can be but one reasonable conclusion as to the verdict’’). In
35
268 (citing Weinstein, 184 F.Supp.2d at
19), and an evidentiary hearing is not required before a default judgment against a
foreign state is entered. See Ben–Rafael
v. Islamic Republic of Iran, 540 F.Supp.2d
39, 43 (D.D.C.2008).
III.
PLAINTIFFS’ EVIDENCE
[4] Plaintiffs have submitted their own
declarations, as well as declarations from
family member Dani Butler, and from multiple experts on North Korea. Exhibits
include congressional resolutions relating
to Reverend Kim’s abduction, and press
materials, book excerpts and reports from
human rights organizations and the U.S.
State Department about North Korea.
The plaintiffs rely in particular on the
decision of a South Korean court that tried
and convicted a DPRK intelligence agent
for crimes including the abduction of Reverend Kim. Plaintiffs have provided a
sworn English translation of that decision.
See Declaration of J.D. Kim (certifying
translation of Decision of Seoul Joong Ang
Ji Bang Court, Criminal Part 23 (‘‘South
Korean court decision’’)). The judgment
of the South Korean court is a proper
subject of judicial notice under Federal
Rule of Evidence 201 to establish the fact
of foreign litigation and the resulting actions of the foreign court. Fed.R.Evid.
201 (permitting judicial notice of a fact
that is not subject to reasonable dispute
because it can be accurately and readily
determined from sources whose accuracy
cannot reasonably be questioned); see, e.g.,
Jordan (Bermuda) Inv. Co., Ltd. v. Hunter Green Invs. Ltd., 154 F.Supp.2d 682,
689 (S.D.N.Y.2001) (taking judicial notice
of foreign court judgment); Luxpro Corp.
v. Apple Inc., No. C 10–03058 JSW, 2011
WL 1086027, at *3 (N.D.Cal. March 24,
this light, the standards actually applied in
Hill and Ungar are virtually identical.