MEMORANDUM AND ORDER

RONALD LAGUEUX, Senior District JudgePage 2

This matter is before the Court on Plaintiffs' motion to enter a final judgment against the Hamas Defendants pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The Hamas Defendants include Hamas — Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyva") (hereinafter, Hamas), and the following individual Hamas operatives who are responsible for the shooting attack that killed Yaron and Efrat Ungar: Abdel Rahman Ismail Abdel Rahman Ghanimat, Jamal Abdel Fatah Tzabich Al Hor, Raed Fakhri Abu Hamdiya, Ibrahim Ghanimat, and Iman Mahmud Hassan Faud Kafishe, ("the individual Hamas defendants"). Plaintiffs request that this Court: 1) adopt the Report and Recommendation issued by Magistrate Judge David L. Martin on July 3, 2003 and grant their motion to enter a default judgment against Hamas; 2) determine that there is no just reason for delaying the entry of a final judgment; and 3) direct the Clerk to enter a final judgment consistent with the Report and Recommendation, plus prejudgment interest.

The facts of this case are described at length in this writer's previous opinions. See Ungar I, 153 F. Supp.2d 76, 82-85 (D.R.I. 2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp.2d 40, 41-43 (D.R.I. 2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic events and extensive procedural history underlying this litigation. It suffices to say that on June 13, 2002, this writer referred Plaintiffs' Motion to Enter Default Judgment Against Hamas and the individual Hamas defendants to Magistrate Judge David L. Martin for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 32(a). In July of 2002, Judge Martin held a three day hearing on Plaintiffs' motion to enter a default judgment and took the matter under advisement.

Judge Martin reviewed the submitted memoranda and exhibits, performed independent research, and then issued an extensive Report and Recommendation on July 3, 2003. He recommended that this Court grant Plaintiffs' motion to enter a default judgment against Hamas but deny the motion as to the individual Hamas defendants and dismiss the claims against those defendants for lack of personal jurisdiction. Report and Recommendation, at 63. Judge Martin also recommended that this Court award Plaintiffs a total of $116,409,123.00 in damages, plus prejudgment interest, attorneys fees of $65,621.25, and costs of $1,437.72. Id. at 63. However, the Report and Recommendation did not direct this Court to any legal authority supporting the prejudgment interest award and was silent on the applicable interest rate. On July 10, 2003, during a hearing on related matters, this writer suggested that Plaintiffs provide the Court with an analysis of the legal basis for awarding prejudgment interest and the appropriate interest rate.

The time period for filing objections to the Report and Recommendation set forth in Rule 72(b) of the Federal Rules of Civil Procedure and Local Rule 32 elapsed on July 22, 2003, with no objection having been filed. Plaintiffs filed the present motion on August 18, 2003, and submitted the requested analysis regarding prejudgment interest and a proposed decision and order. This Court heard oral argument on October 1, 2003, and took the matter under advisement. At this writer's request, Plaintiffs later submitted a supplemental memorandum on the issue of whether prejudgment interest is permissible on an award of punitive or treble damages. The matter is now in order for decision.

This Court accepts and adopts Judge Martin's Report and Recommendation except as hereafter noted regarding prejudgment interest. Judge Martin recommended that this Court award Plaintiffs prejudgment interest but did not recommend a particular rate of interest to apply. Report and Recommendation, at 62. Plaintiffs urge this Court to award prejudgment interest at a rate of nine percent per annum. Mem. in Supp. of Pls.' Mot. for Entry of Final J. Against Hamas Pursuant to Fed.R.Civ.P. 54(b) , at 9 (citing Chang v. Univ. of R.I., 606 F. Supp. 1161, 1275 (D.R.I. 1985)). Plaintiffs cite to this Court's longstanding practice of applying a nine percent interest rate in civil rights actions and argue that there is no reason to award victims of terrorist acts any less. Id. They ask that interest accrue from June 9, 1996, (the date of this tragic incident) on the entire amount of the proposed judgement or, alternatively, on the original compensatory damages. Pls.' Supplemental Mem. in Supp. of their Mot. for Entry of Final J. Against Hamas Pursuant to Fed.R.Civ.P. 54(b) , at 3.

Plaintiffs' Request for Prejudgment Interest

This Court need not decide the applicable prejudgment interest rate or whether such interest applies to all or part of the judgment for two reasons. First, the congressional purpose behind 18 U.S.C. § 2333 was to deter acts of international terrorism and this Court will not add prejudgment interest to the substantial penalties of treble damages, court costs, and attorney's fees already provided for by Congress. Second, this Court finds the treble damages provision of 18 U.S.C. § 2333 overwhelmingly punitive, which makes an award of prejudgment interest inappropriate. Therefore, this Court declines to adopt Judge Martin's recommendation that Plaintiffs be awarded prejudgment interest.

When a complaint presents a federal question, the issue of whether or not the plaintiff may recover prejudgment interest is a matter of federal law. Robinson v. Watts Detective Agency, 685 F.2d 729, 741 (1st Cir. 1982). When there is no provision in the statue in question regarding prejudgment interest, the court looks to federal common law for guidance. Id. Federal case law in this area is clear. The decision of whether or not to award prejudgment interest rests within the sound discretion of the trial court. Criado v. IBM Corp., 145 F.3d 437, 446 (1st Cir. 1998); Conway v. Electro Switch Corp., 825 F.2d 593, 602 (1st Cir. 1987); United States v. Cal. State Bd. of Equalization, 650 F.2d 1127, 1132 (9th Cir. 1981);Chang, 606 F. Supp. at 1274. See also Rao v. New York City Health and Hosps. Corp., 882 F. Supp. 321, 325 (S.D.N.Y. 1995) and Bingham v. Zolt, 810 F. Supp. 100, 101 (S.D.N.Y. 1993) (both noting that when the applicable federal statue is silent on the availability of prejudgment interest, a court may award such interest in accord with its equitable discretion). The district court has wide latitude in determining the appropriate remedy and there is no abuse of discretion when its award makes the plaintiff whole and is sufficient to deter the defendant from future wrongdoing.Criado, 145 F.3d at 446. Prejudgment interest is presumptively available in suits brought under federal law, unless punitive damages are also awarded. Parington v. Broyhimm Furniture Indus. Inc., 999 F.2d 269, 274 (7th Cir. 1993).

The Supreme Court's decision in Rodgers v. United States, 332 U.S. 371 (1947), guides a court in deciding whether or not to award prejudgment interest. The Court noted that penalties imposed by an Act of Congress bear interest only if and to the extent that interest is required by federal law. Rodgers, 322 U.S. at 373. Absent Congress' unequivocal prohibition of prejudgment interest, courts should grant or deny interest by looking to the congressional purpose underlying the particular statute. Id. at 373; Golden State Transit Corp. v. City of Los Angeles, 773 F. Supp. 204, 208 (C.D. Cal. 1991) (citing Rodgers, 322 U.S. at 373). See also Segal v. Gilbert Color Sys. Inc., 746 F.2d 78, 82 (1st Cir. 1984) (when the statue is silent on the question of prejudgment interest, courts turn to legislative history). InRodgers, the framework of the Agricultural Adjustment Act and the reports of the congressional committees that drafted it demonstrated a primary purpose to limit farm production and marketing to the quotas allotted by law, and an intent to deter farmers from exceeding those quotas. 332 U.S. at 374. Given this clear intent to deter, the Court concluded that Congress did not also intend for courts to add prejudgment interest to the substantial penalties already imposed on non-cooperating farmers. Id. at 376.

In the instant case, Plaintiffs brought their Complaint pursuant to 18 U.S.C. § 2333. Enacted as part of the Antiterrorism Act of 1991, Section 2333 states:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

28 U.S.C. § 2333(a) (1992). Like the Agricultural Adjustment Act in Rodgers, neither Section 2333 nor any other federal statute address the issue of prejudgment interest in this context. Therefore, this writer turns to the legislative history of Section 2333 to determine Congress' purpose for creating the treble damages on which Plaintiffs request prejudgment interest.

On April 14, 1990, Senator Charles E. Grassley (R. Iowa) introduced S.2465, (now 18 U.S.C. § 2333) a bill providing a new, federal, civil cause of action for acts of international terrorism. S. Rep. No. 102-17, at 63 (1991). The bill was intended to fill a gap in the law by establishing a civil counterpart to the existing criminal statutes. 136 Cong. Rec. S14279-01 (1990). S.2465 gave victims of terrorism the remedies of traditional American tort law, including treble damages and attorney's fees. 137 Cong. Rec. S4511-04 (1991).

The legislative history of 18 U.S.C. § 2333 evinces a clear congressional intent to deter and punish acts of international terrorism. During the floor debates, Senator Grassley spoke of holding terrorists accountable "where it hurts them most: at their lifeline, their funds." 136 Cong. Rec. S14279-01 (1990). He stated that his bill would put terrorists on notice "to keep their hands off Americans and their eyes on their assets," 136 Cong. Rec. S14279-01, and "would allow victims to pursue renegade terrorist organizations, their leaders, and the resources that keep them in business, their money." 138 Cong. Rec. S17252 (1992).

The Subcommittee on Courts and Administrative Practice held a hearing on S.2465 where the testimony focused on the bill's deterrent effect on the commission of acts of international terrorism against Americans. Antiterrorism Act of 1990: Hearing on S2465 Before the Subcomm. on Cts. and Admin. Practice of the Comm. on the Judiciary U.S. S., 101st Cong. (1990). One witness told the committee that in order to be an effective weapon against terrorism, S2465 had to punish by "hitting terrorists where it hurts, in their pockets." Id. at 133(statement of Wendy Collins Perdue, Associate Professor, Georgetown University Law Center). Joseph A. Morris, President and General Counsel for the Lincoln Legal Foundation in Chicago, testified that S.2465 would impose liability at any point along the chain of terrorism and would "interrupt, or at least imperil, the flow of terrorism's lifeblood, money." Id. at 85. While noting that executing civil judgments may be difficult, Morris testified that the bill would contribute to the antiterrorism struggle by deterring terrorists from choosing American targets and by "drying up terrorism's financial support in the United States." Id. at 85. He also noted the deterrent power of provisions allowing for treble damages, court costs, and attorney's fees. Id. at 89. Another witness testified that it would not be enough to simply go after the individual terrorists; the bill must "strike at the heart of the organization" and "go after the funding." Id. at 110 (statement of Daniel Pipes, Director of the Foreign Policy Research Institute).

Thus, the legislative history of Section 2333 shows an unequivocal congressional intent to deter acts of international terrorism and punish those who commit such acts against American citizens. A New York District Court arrived at a similar conclusion when it denied punitive damages to two relatives of victims of the September 11, 2001 attacks on the World Trade Center. Smith v. Islamic Emirate of Afghanistan, 262 F. Supp.2d 217, 240 (S.D.N.Y. 2003). That Court held that it would not award additional punitive damages because the treble damages provision of 18 U.S.C. § 2333 already provided a penalty. Id. at 240. Given Congress' clear intent to deter and punish terrorist acts, this Court is unable to conclude that Congress also intended to add interest to the substantial penalties of treble damages, court costs, and attorney's fees that are already imposed by the statute. Therefore, Plaintiffs' request for prejudgment interest must be denied.

Prejudgment interest is also inappropriate in this case because the treble damages provision of Section 2333 is overwhelmingly punitive, and prejudgment interest does not apply to a punitive damages award.See infra, at pg. 12. Prejudgment interest and treble, or multiple damages, serve different purposes. Suiter v. Mitchell Motor Coach Sales Inc., 151 F.3d 1275, 1289 (10th Cir. 1998). Prejudgment interest compensates a plaintiff for being deprived of the monetary value of his or her loss from the time of the loss until the payment of judgment. Id. at 1288; Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 23 (D.C. Cir. 1984).See also Osterneck v. Ernst Whinney, 489 U.S. 169, 175 (1989) (prejudgment interest has been traditionally considered part of the compensation due to the plaintiff); Golden State Transit Corp., 773 F. Supp. at 208 (prejudgment interest is an element of compensation and not a penalty). In contrast, multiple or treble damages serve to punish and are thus punitive in nature.McEvoy Travel Bureau Inc. v. Norton Co., 563 N.E.2d 188, 196 (Mass. 1990). See also, Suiter, 151 F.3d at 1289;Paper Converting Machine Co., 745 F.2d at 23.

Prejudgment interest does not apply to punitive damages awards.United States v. Reul, 959 F.2d 1572, 1578 (D.C. Cir. 1992);Wickham Contracting Co. v. Local Union No. 3, Int'l. Bhd. of Elec. Workers, 955 F.2d 831, 834 (2d Cir. 1992). See also Murphy v. United Steelworkers of America, 507 A.2d 1342, 1346 (R.I. 1986) (holding that Rhode Island's prejudgment interest statute does not apply to punitive damages); Right to Prejudgment Interest on Punitive or Multiple Damages Awards, 9 A.L.R. 5th 63 (1993) (noting that attempts to collect prejudgment interest on punitive and statutory multiple damages are unsuccessful in a majority of courts). In City Coal Co. of Springfiled, Inc. v. Noonan, the Massachusetts Supreme Judicial Court decided not to award prejudgment interest on the treble damages awarded pursuant to a state law. 751 N.E.2d 894, 900 (Mass. 2001). The Court noted that no compensatory purpose would be served by imposing interest on punitive damages and saw no reason to exempt treble damages from the principle that adding interest on punitive damages has the "flavor of unseemly piling on." Id. In addition, a New York District Court has found that the treble damages available in actions under the Racketeer Influenced and Corrupt Organizations Act ("RICO") adequately compensate plaintiffs and obviate the need for prejudgment interest.Bingham, 810 F. Supp. at 102. See also Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 80 (2d Cir. 1971) rev'd on other grounds, 409 U.S. 363, 389 (1973) (finding that the treble damages provided for under the Clayton Act sufficiently compensated the plaintiff and made an award of prejudgment interest unnecessary).

This Court recognizes that no amount of money will ever adequately compensate Plaintiffs for the devastating and incomprehensible losses that they suffered as a result of these heinous terrorist acts. However, Congress' clear intent to deter and punish those who commit acts of international terrorism makes Section 2333 overwhelmingly punitive and precludes this Court from awarding prejudgment interest on what is essentially a punitive damages award.

Plaintiffs rely on Atena Cas. Sur. Co. v. Rodco Autobody, 43 F.3d 1546, 1571 (1st Cir. 1994), for their argument that there is no abuse of discretion when a court applies prejudgment interest to a treble damages award under a federal statute. Pls.' Supplemental Mem. in Supp. of their Mot. for Entry of Final J. Against Hamas Pursuant to Fed.R.Civ.Pro. 54(b) , at 2. However, the discussion of prejudgment interest in Atena Casualty, is dictum because the defendant failed to preserve that issue for appeal. 43 F.3d at 1571. The First Circuit recognized "some force" in the defendant's argument that prejudgment interest on treble damages was inappropriate because those damages were punitive. Id. However, the Court noted that it could be reasonably argued that damages in RICO actions were primarily compensatory and that an award of prejudgment interest was proper.Id. at 1572.

Given the legislative history discussed above, it cannot be reasonably argued that the treble damages provided for in Section 2333 are primarily compensatory. The punitive aspect and congressional intent to deter and punish those who commit terrorist acts permeate the statute and overshadow its compensatory aspects. Therefore, this Court cannot adopt Judge Martin's recommendation that prejudgment interest be awarded.

Plaintiffs' Motion to Enter Final Judgment Against Hamas

This Court now turns to Plaintiffs' motion to enter a final judgement against Hamas. Since this writer adopts Judge Martin's recommendation that the claims against the individual Hamas defendants be dismissed for lack of personal jurisdiction, it is only necessary to consider Plaintiffs' motion with regard to Defendant, Hamas.

Rule 54(b) of the Federal Rules of Civil Procedure allows a court to direct the entry of a final judgment as to one or more but not all of the claims or parties. A court granting a motion brought under Rule 54(b) must make: 1)an express determination that there is no just reason for delay; 2)an express direction that judgment be entered; and 3)a brief but particularized statement of its reasons for acting in order to demonstrate that the rule was properly invoked. Fed.R.Civ.P. 54(b).See also Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39 (1st Cir. 1991) (citing Spiegel v. Trs. of Tufts Coll., 843 F.2d 38, 43, n. 4 (1st Cir. 1988)); Quinn v. City of Boston, 325 F.3d 18, 26 (1st Cir. 2003) (noting that the trial judge must make more than a "rote recital of Rule 54(b)'s talismanic phrase"). When a non-defaulting party continues to litigate, ensuring collection of a judgment is a proper basis under Rule 54(b) to enter a final judgment against a defaulting party. See Storage Computer Corp. v. Worldwide Domination Corp., 208 F.R.D. 474, 476 (D.N.H. 2002). In that situation, a delay in entering a final judgment will cause an injustice to the plaintiff because the plaintiff may become unable to collect. Id.

This Court concludes that there is no just reason for delay and Plaintiffs' motion must be granted because the limited pool of Hamas assets against which Plaintiffs may execute this Court's judgment is steadily depleting. There is strong evidence that the Holy Land Foundation for Relief and Development ("HLF") operates as a fund-raiser for Hamas in the United States. Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156, 163 (D.C. Cir. 2003). On December 4, 2001, the Office of Foreign Asset Control, a division of the Treasury Department, determined that the HLF acts "for or on behalf of" Hamas and was thus a Specially Designated Terrorist under Executive Order 12947 and a Specially Designated Global Terrorist under Executive Order 13224.Holy Land Found. for Relief and Dev. v. Ashcroft, 219 F. Supp.2d 57, 64 (D.D.C. 2002). These designations allowed the Treasury Department to block all of the HLF's funds, accounts, and real property. Id.

The Terrorism Risk Insurance Act of 2002, ("TRIA") subjects the blocked assets of a terrorist party, and any agency or instrumentality of that terrorist party, to execution or attachment in order to satisfy a judgment against them on any claim based on an act of terrorism. Pub.L. No. 107-297, 116 § 201(a), Stat. 2322 (2002). The HLF is an agency and instrumentality of Hamas because it acts "for or on behalf of" Hamas as Hamas' fund-raising agent in the United States. Therefore, the HLF's blocked assets are also subject to attachment and execution under the TRIA in order to satisfy the present judgment against Hamas.

However, these blocked assets are steadily depleting because the Treasury Department has allowed the HLF to use the assets to pay its attorneys to challenge the blocking order and defend the HLF against a civil action arising from its collection of funds for Hamas. An Asssessment of the Tools Needed to Fight the Financing of Terrorism Before the Senate Comm. on the Judiciary, 107th Cong. Nov. 20, 2002 (testimony of Nathan Lewin, Esq. of Lewin Lewin, LLP),available at: 2002 WL 31648382, at *37. Any delay in entering a final judgment against Hamas will allow further depletion of these assets and reduce the amount of money available to satisfy this Court's judgment. Given Presidents Clinton and Bush's designations of Hamas as a terrorist organization, it is unlikely that Hamas will bring any new assets into the United States. See Exec. Order No. 12947, 60 Fed. Reg. 5079 (Jan. 23, 1995); Exec. Order No. 13224, 66 Fed. Reg. 49, 079 (Sept. 23, 2001). Therefore, the blocked assets of the HLF and Hamas may be Plaintiffs' sole source of money to satisfy this Court's judgment. When the HLF and/or Hamas fully deplete these assets, this Court's judgment against Hamas will likely become a dead letter. Such a result would defeat Congress' clear intent that 18 U.S.C. § 2333 deter terrorist acts through the enforcement of civil causes of action such as the one presently before the Court.

Simply put, time is of the essence. Any delay in entering a final judgment against Hamas may make Plaintiffs unable to collect the compensation due to them and cause Plaintiffs to suffer further injustices at the hands of Hamas. Therefore, it is the determination of this Court that there is no just reason for delay and that Plaintiffs' motion to enter a final judgment against Hamas should be granted.

For the afformentioned reasons, and those set forth in the Report and Recommendation attached hereto, this Court, hereby, 1) adopts Judge Martin's Report and Recommendation, except with regard to prejudgment interest; 2)finds that there is no just reason for delay; and 3)orders the Clerk to enter a final judgment against Hamas with specificity in the amounts indicated below after the trebling provided for in 18 U.S.C. § 2333:

Estate of Yaron Ungar for lost earnings: $1,432,158.00 for pain and suffering of decedent: $1,500,000.00

Dvir Ungar (son) for loss of companionship, society, and guidance and mental anguish: $30,000,000.00 For loss of parental services: $488,482.50

Yishai Ungar (son) for loss of companionship, society, and guidance and mental anguish: $30,000,000.00 for loss of parental services: $488,482.50

Judith Ungar (mother) for loss of society and companionship and mental anguish: $15,000,000.00

Meir Ungar (father) for loss of society and companionship and mental anguish: $15,000,000.00

Michal Cohen (sister) for loss of society and companionship and mental anguish: $7,500,000.00

Amichai Ungar (brother) for loss of society and companionship and mental anguish: $7,500,000.00

Dafna Ungar (sister) for loss of society and companionship and mental anguish: $7,500,000.00

-------------- Total: $116,409,123.00

Plaintiffs, as a group, are also awarded $65,621.25 for attorney's fees and $1,437.72 in court costs.

The Clerk shall enter judgment forthwith.