1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) ABRAHAM RON FRAENKEL, et al. , ) ) Plaintiffs, ) ) v. ) Civil Action N o. 15-1080 (RMC) ) ISLAMIC REPUBLIC OF IRAN, et al ., ) ) Defendants. )

_________________________________ ) MEMORANDUM OPINION ON RECONSIDERATION Abraham and Rachelle Fraenkel lo st their son, Naftali, when Ham as terrorists kidnapped and murdered him and t wo other young men. The Fraenk els and their remaining six children sued the Syrian Arab R epublic, Islamic Republic of Ira n, and Iranian Ministry of Information and Security (MOIS) , as supporters of Hamas, under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. (2012). The Court found in the Fraenkels’ favor and awarded money damages , and the Fraenkels now seek rec onsideration because the damages awards “are insufficient to provide them fair compensat ion,” specifically because the amount awarded is less than the “ gold standard” for FSIA awards as set in Estate of Heiser v. Islamic Republic of Iran , 466 F. Supp. 2d 229 (D.D.C. 2006). The Court will deny the motion f or reconsideration, but clarifi es its damages awards.
I. BACKGROUND The Court provided an in-depth de scription of the facts in its Memorandum Opinion on the motion for default judgment and will not repeat it here. See Fraenkel v. Islamic Republic of Iran , No. 15-1080, 2017 WL 1214353 (D.D.C. March 31, 2017). The Fr aenkels2 sued Iran, Syria, and MOIS on July 9, 2015. See Compl. [Dkt. 1]. The Court held a two-day hearing on the Fraenkels’ Moti on for Default Judgment on Decemb er 6-7, 2016 and Plaintiffs submitted proposed findings of fact and law. See Proposed Findings [Dkt. 36]. On March 31, 2017, the Court issued its Memora ndum Opinion and Order, findin g in favor of the Fraenkels and awarding the following damages: Pain and Suffering to the Estat e of Naftali Fraenkel – $1,000,0 00 Solatium to U.S. Citizen Plaintiffs – $3,100,000 Solatium to Abraham Fraenkel – $1,000,000 Punitive Damages to the Est ate of Naftali Fraenkel – $50,000,00 0 Final Order [Dkt. 40]. The Fraenkels moved to reopen the c ase and schedule a conferenc e on the same day as the Court’s Final Order, see Mot. for Conference [Dkt. 41] , which the Court denied. 4/3/2017 Minute Order. The Frae nkels filed the instant motion on April 27, 2017 asking the Court to: 1. Amend and make new findings of fact under Rule 52(b); 2. Amend or alter the judg ment under Rule 59(e); 3. Schedule a new trial under Rule 59; and/or 4. Reconsider the amount and allo cation of damages awarded. Mot. to Amend [Dkt. 44]. Defendants filed no opposition. The motion is ripe for review.
II. LEGAL STANDARD Under Federal Rule of Civil Pro cedure 52(b) a court “[o]n a par ty’s motion . . . may amend its findings—or make additional findings—and may amen d the judgment accordingly.” Fed. R. Civ. P. 52(b). Rule 52(b) “permits the trial court to correct manifest errors3 of law or fact, make additional findings or take other action t hat is in the interests of justice.” Bigwood v. Def. Intelligence Agency , 770 F. Supp. 2d 315, 318 (D.D.C. 2011); s ee also Salazar v. District of Columbia , 685 F. Supp. 2d 72, 75 (D.D.C. 2010) (noting that Rule 52(b) does not provide a party with a “second oppor tunity to litigate a point, to present evidence that was available but not previously o ffered, or to advance new theorie s by moving to amend a particular finding of fact or con clusion of law”); Material Supply Int’l, In c. v. Sunmatch Indus. Co. , No. 94-1184, 1997 WL 243223, at *2 (D.D.C . May 7, 1997) (explaining that under Rule 52(b), the moving party “bears a heavy burde n in seeking to demonstrate cl ear error or manifest injustice in amending the judgment”); Johnson v. Greater Se. Cmty. Hosp. Corp. , No. 90-1992, 1996 WL 377147, at *3 (D.D.C. June 24, 1996) ( “Rule 52(b) ensures the a dequacy of fact-finding by providing a trial court the oppor tunity to cover or clarify the essential factual and legal points so that they might be better unders tood by the parties and a revie wing court.”); 9C Wright & Miller, Fed. Prac. and Proc. § 2582 (3d ed.) (A Rule 52(b) “motion must raise questions of substance by seeking reconsiderati on of material findi ngs of fact or conclus ions of law to prevent manifest injustice or reflect newly discovered evidence.”). Federal Rule of Civil Procedure 59(a)(1) allows a court to gran t a new trial “on all or some of the issues . . . aft er a nonjury trial, for any reas on for which a rehearing has heretofore been granted in a suit in equityin federal court.” Fed. R. Ci v. P. 59(a)(1)(B). “Motions for a new trial ‘must clearly establis h either a manifes t error of la w or fact or must present newly discovered evidence.’” Nyman v. FDIC , 967 F. Supp. 1562, 1569 (D.D.C. 1997) (quoting FDIC v. Meyer , 781 F.2d 1260, 1268 (7th Cir. 1986)). Federal Rule of Civil Procedure 59(a)(2) permits a court, on a motion for a new trial after a nonjury trial, t o “open the judgment if one has b een entered, take additional4 testimony, amend findings of fact a nd conclusions of law or mak e new ones, and direct the entry of a new judgment.” Fed. R. Ci v. P. 59(a)(2). A motion to reo pen the trial record to submit additional proof “is addresse d to [the court’s] sound discretio n.” Zenith Radio Corp. v. Hazeltine Research, Inc. , 401 U.S. 321, 331 (1971). “A court should grant a motion und er Rule 59(a)(2) only to correct manifest errors of law or fact, or, in some lim ited situations, to present newly discovered evidence. The purpose of Rule 59(a)(2) is not to in troduce new evidence that was available at the time of trial but was not proffered, to advanc e new theories, or to secure a rehearing on the merits.” Chavez v. City of Albuquerque , 640 F. Supp. 2d 1340, 1343 (D.N.M. 2008). A court faced with a Rule 59(a)(2) motion after a nonju ry trial “should be most reluctant to set aside that which it has previously decided unless convin ced that . . . refusal to revisit the earlier decision would work a man ifest injustice. . . . Rule 59 is not a vehicle for relitigating old issues . . . or otherwise taking a ‘second bite at the apple.’” Barnes v. Alves , 304 F.R.D. 363, 366-67 (W.D.N.Y. 2015); see also 11 Wright & Miller, Fed. Prac. and Proc. § 2804 (3d ed.) (“A motion for a new trial in a nonjur y case or a petition for rehe aring should be based upon manifest error of law or mistake of fact, and a judgment should not be s et aside except for substantial reasons.”). Federal Rule of Civil Procedure 59(e) allows a party to move to alter or amend a judgment within 28 days of the ent ry of judgment. “‘Motions fi led under Rule 59(e) are generally disfavored, and are granted only when the moving party establishes that extraordinary circumstances justify relief.’” Moses v. Dodaro , 856 F. Supp. 2d 99, 102 (D.D.C. 2012) (quoting Niedermeier v. Office of Baucus , 153 F. Supp. 2d 23, 28 (D.D.C. 2001)). Motions for reconsideration under Rule 59(e) a re “discretionary and need no t be granted unless the court finds that there is ‘an interve ning change of c ontrolling law, the availability of new evidence, or5 the need to correct a clear error or prevent manifest injustice .’” Nanko Shipping, USA v. Alcoa,
Inc. , 118 F. Supp. 3d 372, 375 (D.D.C. 2015) (quoting Messina v. Krakower , 439 F.3d 755, 758 (D.C. Cir. 2006)). To constitute cle ar error, a final judgment “must be ‘dead wrong.’” Id

. (quoting Lardner v. FBI , 875 F. Supp. 2d 49, 53 (D.D.C. 2012)). “Rule 59(e) . . . ‘may not be used t o relitigate old matters, o r to raise arguments or present evidence that could have been raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Wr ight & Miller, Fed. Prac. and Proc. § 2810.1 (2d ed. 1995)); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (“In this Circuit, it is well-esta blished that motions for reconsideration, whatever their procedural basis, cannot be use d as an opportunity to reargue facts and theories upon which a c ourt has already ruled, nor as a vehicle for presenting theories or arguments that could ha ve been advanced earlier.”)
III. ANALYSIS The Court begins by determining w hich Rules are properly raised by the Fraenkels’ Motion to Reconsider. The Court’s Memorandum Opinio n and Order on liability and damages came as a result of the Fraenkels’ Moti on for Default J udgment, not a trial on the merits. Although the Court held a n evidentiary hearing, heard witnesses, and considered evidence submitted by the Fraenke ls to reach the conclusion tha t Iran and Syria were liable under the FSIA, the hearing was not a trial. Therefore, any motion u nder Rule 59(a), either for a new trial or to open the judg ment are improper. The Court’s decision on the Moti on for Default Judgment is more consistent with a decision on summary judgment or other final judgment on the f acts made short of a trial. Therefore, the Court considers the Fraenkels’ Motion to Reconsi der under Rules 52(b) and 59(e),6 as follows. Both Rules 52(b) a nd 59(e) have limited applicabil ity and are not intended to be used to relitigate old ma tters, but instead to address newly discove red facts, changes in the law, or prevent manifest injustice. Plaintiffs fail to meet tha t exacting standard, offering no new facts or change in the law that supports altering t he judgment and failing to demo nstrate that without amendment the Court’s order will result i n manifest injustice. Instead, Plaintiffs’ Motion for Reconsideration raises the following issues wit h the Court’s Memorandum Opinion : (1) the amounts awarded to Plaintiffs are “insufficient t o provide them fair compensation for their damages”; (2) the damages award “differed dramatical ly from awards made by other courts in this dist rict”; (3) the Court failed to itemize the dama ges awarded to each Plaintiff; (4) the Court failed to explain adequately the reasoning behind t he damages awarded; (5) the Co urt failed to award damages for the pain and suffering during the 18 days Naftali was missing; 1 and (6) the Court misspelled the name of the village where the Fraenkels live and inaccurately d escribed it as a“settlement.” Plaintiffs urge the Court to follow Estate of Heiser v. Islamic Rep. of Iran , 466 F. Supp. 2d 299 (D.D.C. 2006), an opinion in which Judge Royce Lam berth of this Court set an award scale for plaintiffs in FSIA cases. Heiser has been followed by nume rous judges of this Court, whom Plaintiffs cite. See Mot. to Amend at 14-16. Relying on Heiser , which Plaintiffs call the “gold standard . . . for de termination of damages awar ds in FSIA terrorism cases,” Mot. to Amend. at 11, they assert that they are, collectively, entit led to an award of no less than $35,500,000. It is true, as Plainti ffs contend, that “the Cour t’s compensatory damages awards are inconsistent” with Heiser , which they describe as “establ ished precedent in this distric t.” Id.

1 To the contrary, the Court’s awards of damages for each indivi dual Plaintiff took account of the entirety of the pain and sufferi ng of that individual, includin g both the 18 days N aftali Fraenkel was missing and the time since learning of Naftali’s murder.7 There is no doubt that Judge Royce Lamberth is an excellent jur ist of welldeserved respect and that, in Heiser , he developed a remedial scale for damages in FSIA terrorism cases in the context of United States servicemen kill ed in a bomb attack in Saudia Arabia. See 466 F. Supp. 2d 299. Judge Lamberth’s standardized approach a wards $8 million to spouses of deceased victims; $5 million to parents of deceased victims; and $2.5 million to siblings of deceased victims. Plaintiffs argue correctly that Judge Lamberth and many other judges of this Court have used the Heiser framework to award money da mages in situations of terrorist activities that kille d U.S. citizens, including attac ks by Hamas in Israel. Despite its common acceptance, Heiser is not binding; it is an opinion of a valued colleague, not a superior court . This jurist believes that awa rds made through the “lens of civil tort liability” require all FSI A plaintiffs to justify their da mages, which means that damages must be reasonably tied to aplaintiff’s facts. Rimkus v. Islamic Republic of Iran , 750 F. Supp. 2d 163, 176 (D.D.C. 2010). Thus, different p laintiffs (even under FSIA ) will prove different facts that may well (and should) result in di fferent damage awards. This Court has previ ously declined to adopt Heiser , so its position now should not be a surprise. See Gates v. Syrian Arab Republic , 580 F. Supp. 2d 53, 75 (D.D.C. 2008). The Court views the Frae nkels’ claims in contrast to the claims of the plaintiffs in Gates and finds that the specific fa cts surrounding Naftali’s kidnap ping and murder warrant a damages award below that awarded by this C ourt in Gates

. To begin the discussion, the Cour t notes that once a plaintiff has demonstrated “his claim or right to relief [under the FSIA] by evidence sati sfactory to the c ourt,” 28 U.S.C. § 1608(e), the plaintiff may be awarded “economic damages, sola tium, pain and suffering, and punitive damages.” 28 U.S.C. § 1605A (c)(4). Plaintiffs must j ustify the actual amount of damages through the lens of civil tort liability. See Salazar v. Islamic Republic of Iran , 370 F.8 Supp. 2d 105, 115-16 (D.D.C. 2005) (quoting Hill v. Republic of Iraq , 328 F.3d 680, 681 (D.C. Cir. 2003) (“To obtain damages aga inst defendants in an FSIA ac tion, the plaintiff must prove that the consequences of the de fendants’ conduct were ‘reasonab ly certain (i.e., more likely than not) to occur, and must prove the amount of the damages by a re asonable estimate consistent with this [Circuit’s] applicat ion of the American rule on damag es.’”)). First, the Court recognizes the differences between the victims and surviving family members in Gates and this case. The victims in Gates were U.S. citizens temporarily living abroad in Iraq and worki ng as civilian contractors that “provided technical and operational assistance and resources for the military in non-combat environ ments.” Gates , 580 F. Supp. 2d at 56. They were abducted because they were U.S. citizens livi ng abroad engaged in work at the behest of the United States gove rnment and brutally murdered inslow beheadings with a knife, broadcast across the world on the Internet. Rachelle Fraenkel and her children are all natives of Israel and dual U.S. and Israeli ci tizens living in Nof Ayalon, Israel, which straddles the Green Line. 2 3

2 The Green Line, so-named fo r the green ink used to draw it ona map, is the demarcation line between Israel and Jordan and I srael and Egypt, which notes the agreement reached as part of the Armistice in 1949. The armistice agreements were intended to s erve as interim agreements pending permanent peace treaties. See Armistice Lines (1949-1967) , Israel Ministry of Foreign Affairs, http://mfa.gov.il/MFA/AboutIsrael/Maps/Pages/1949-1967%20Armist ice%20Lines.aspx (last visited June 22, 2017).

3 Plaintiffs object that this Cour t called Nof Ayalon a “settle ment” because the term has political connotations that do not apply; t hey argue that Nof Ayalon is i n the center of Isr ael. The Court was only noting the fact that Nof Ayalon sits on top of the Gre en Line and so half of it is, officially, in contested territory. See Google Maps – Nof Ayalon, Israel, https://www.google.com/maps/place/Nof+Ayalon,+Israel/@31.858917 9,35.007935,14.3z /data=!4m5!3m4!1s0x1502ce897aca714d:0xdf8bea0c5e055324!8m2!3d31 .871215!4d34.991321 (last visited June 21, 2017).9 The Six Day War of 1967 was fough t fifty years ago this month a nd a full truce between some of the warring partie s has never been reached. Th e West Bank, the Gaza Strip, East Jerusalem, and the Golan H eights were seized by Israel at the end of the Six Day War and peace efforts to re-draw the boundaries since then have not suc ceeded. See The 1967 ArabIsraeli War , U.S. Department of State, Offi ce of the Historian, https://hi story.state.gov/ milestones/1961-1968/arab-israe li-war-1967 (last visited June 2 2, 2017). “Hamas, both an acronym for Harakat al-Muqawama al-Islamiya (Islamic Resistance Movement) and an Arabic word meaning ‘zeal’, is a Palestinian Islamist group that emerg ed in 1987 as an outgrowth of the Palestinian branch of the Egypt -based Muslim Brotherhood. Hama s was founded in December of that year with the goal of e liminating the State of Israel.” Ex. 34, Declaration of Dr. Matthew Levitt (Levitt Decl.) ¶ 19. Hamas seeks to consolidate Israel, the West Bank, and the Gaza Strip into a single Islamist state. Id. Plaintiffs accepted the risks of living in a community built ac ross the Green Line in Israel and sending Naftali Fr aenkel 40 miles further into th e West Bank for high school in Gush Etzion. Gush Etzion is about six miles from Hebron, a pre dominately Palestinian city. See Ex. 21, Declaration of Arieh Dan S pitzen (Spitzen Decl.) ¶ 20 n .3. At age 16, Naftali Fraenkel was hitchhiking home at 10:30 at night from Gush Etzion Junctio n when he and two other young men were picked up by two Hamas mem bers disguised as Israelis. Plaintiffs’ own expert describes the junction as a site of “many terror attacks” since 2000. Gush Etzion Junction, commonly known as “Gush Junction,” is located approximately 13 miles south of Jerusalem and 6 miles n orth of Hebron. Due to its central l ocation and the daily encounter between Israeli citizens and Palestinians, many terror attacks have taken place at this junction si nce the year 2000, especially du ring the latest wave of terror, which began in 2015.10 Id . Rachelle Fraenkel explained that “[t ]he boys thought they we re getting a ride home in a spot where hitchhiking is very normal and usually safe.” Ex. 11, De claration of Plaintiff Rachelle Fraenkel (R. Fraenkel Decl.) ¶43. Ms. Fraenkel also stated th at “[a]s soon as [she] heard that [the boys’ phones were traced to Hebron], [she] understood that it was an act of terrorism.” Id. ¶ 21. Expert witness Arieh Dan Spitze n further explained the signific ance of the situation and the m ethod of attack used: It is significant that the ki dnapping of Jews—designed to obtai n the release of Hamas prisoners from Israeli prisons—is a preferred modus operandi for Hamas. Furthermore, Hamas regards the kidnapping of Jews as a strategic weapon in its struggle agains t Israel. . . . [Since 2011, when I srael released more than 1,000 Palestinian terrorists to obtain the release of one Israeli Def ense Forces (IDF) soldier], the organ ization has increasingly preferred this method, considering it t o be highly effective. Spitzen Decl. ¶ 24 Expert witness Dr. Matthew Levitt added, “ both before and after [the 2011 release of 1,000 Palestinians], H amas has ceaselessly engaged i n kidnappings and attempted kidnappings in hopes of gaining a v aluable bargaining chip to u se in future negotiations with Israel.” Levitt Decl. ¶ 22. Hamas itself “described the attac k as a[n] ‘heroic’ operation in which three ‘settlers’ wer e captured in Hebron a nd stated that the op eration was performed for the sake of the Palestinian prisoners , who were hunger-striking in the p risons at the time.” Spitzen Decl. ¶ 30. Thus, Naftali Fraenkel and the other two young men were kidnapp ed and murdered because they were Jewis h-Israeli teenag ers. Naftali w as not targeted because he was a U.S. citizen, Levitt Decl. ¶ 21 (Hamas does not target Westerners), and he was not a U.S. citiz en inadvertently caught up in the Isr aeli-Palestinia n conflict (Na ftali was born and grew up in Israel). To the contrary, Nafta li Fraenkel was an Hamas target because of his Israeli citizenship.11 These facts do nothing to lessen th e Plaintiffs’ grief or loss or U.S. citizenship, but they do affect their remedie s when viewed through the lens of civil tort liabi lity. Aside from Rachelle Fraenkel’s single sta tement about the safety of hitchh iking from Gush Etzion, the record is bereft of information to counter Plaintiffs’ own expe rts’ statements that the location was the site of many terror att acks aimed at Jewish-Israeli cit izens. Further, the case is in the posture of a default judgment, whi ch requires the judge to exer cise balanced legal judgments despite the absence of an adversary, on both the facts and the law. See Roeder v. Islamic Republic of Iran , 333 F.3d 228, 232 (D.C. Cir. 2003) (“The court still has an o bligation to satisfy itself that plaintiffs have estab lished a right to relief [unde r the FSIA].”). In addition to challenging the ove rall infirmity of the damages award, Plaintiffs argue that the Court’s award of a single damages amount to all U.S. citizen Plaintiffs was insufficient and ask the Court t o make individual awards to eac h Plaintiff. Although the Court specifically chose to award a s ingle amount to prevent the Frae nkel children from thinking any testimony was more or less useful or significant, the Court wil l provide each Pla intiff with their specific award amount. For the r easons described above, the Co urt awarded Ms. Rachelle Fraenkel and Mr. Abraham Fr aenkel each $1,000,000 in solatium d amages. As in Heiser and this Court’s decision in Gates , siblings of victims generally receive less than spouses or parent s. Therefore, the Court awa rded $500,000 in solatium damages to Tzvi Fraenkel, A.H. F raenkel, A.L. Fraenkel, and N.E . Fraenkel. Due to the age of both N.S. Fraenkel and S.R. Fraenke l at the time of Naftali’s d eath, the Court determined that a lower award was appropriate.12 IV. CONCLUSION The deaths of Naftali Fraenkel a nd his friends were tragic acti ons carried out by Hamas terrorists in an attempt to influence Israel. Only Hamas and its supporters are at fault. Plaintiffs have presented no new evidence or law and have not d emonstrated that the Court’s initial decision constitutes mani fest injustice. Therefore, th e Court will deny Plaintiffs’ Motion to Amend, but clarifies the award s for damages to each U.S. cit izen Plaintiff. Solatium to Rachelle Fraenkel – $1,000,000 Solatium to Tzvi Amitay Fraenkel - $500,000 Solatium to A.H. Fraenkel - $500,000 Solatium to A.L. Fraenkel - $500,000 Solatium to N.E. Fraenkel - $500,000 Solatium to N.S. Fraenkel - $50,000 Solatium to S.R. Fraenkel - $50,000

Date: June 28, 2017 /s/ ROSEMARY M. COLLYER United States District Judge