Przewozman v. Islamic Republic of Iran ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHAYA RACHEL PRZEWOZMAN, et al.,
Plaintiffs,
v. Civil Action No. 19-2601 (RDM)
THE ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On May 5, 2019, terrorist groups launched hundreds of rockets and mortars from the
Gaza Strip into various locations in Israel. Dkt. 23-1 at 41. Tragically, one of the projectiles
killed Pinches Menachem Przewozman, a United States citizen living in Ashdod, a city on
Israel’s southern coast. Dkt. 23-3. Przewozman’s family and estate now bring this lawsuit. Dkt.
6 (Am. Compl.). Plaintiffs, eleven in all, allege that Hamas and the Palestinian Islamic Jihad
(“PIJ”) carried out the attack that killed Przewozman. Id. at 9–10 (Am. Compl. ¶¶ 33–36). They
further contend that Defendants, the Islamic Republic of Iran (“Iran”), the Iranian Ministry of
Information and Security (“MOIS”), and the Islamic Revolutionary Guard Corps (“IRGC”), have
for years provided financial and other assistance to Hamas and the PIJ, and that this support
aided the May 5 strike. Id. at 5–10 (Am. Compl. ¶¶ 20–36).1
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Although the Court does not make any findings of fact at this time, the Court notes that the
evidence Plaintiffs have submitted is concerned almost exclusively with the relationship between
Hamas and Iran and says very little about what support Iran may or may not provide to the PIJ.
See Dkt. 23-1; Dkt. 23-2; Dkt. 23-3. If Plaintiffs renew their motion for entry of a default
judgment at a later date, they are encouraged to address this deficiency.
Plaintiffs seek compensatory and punitive damages from Defendants, relying on the state-
sponsored terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1605A(a), to establish subject-matter jurisdiction. Id. at 1–2 (Am. Compl. ¶ 1). The seven of
Plaintiffs (inclusive of Przewozman’s estate) who are United States citizens also rely on another
FSIA provision, § 1605A(c), for a federal cause of action, alleging that Defendants provided
“material support” to Hamas and the PIJ, which in turn engaged in the “extrajudicial killing” of
Przewozman. Id. at 2, 5 (Am. Compl. ¶¶ 2, 17); Dkt. 23-7 at 1; Dkt. 24-2. Plaintiffs also assert
state common law claims for intentional infliction of emotional distress, loss of consortium,
aiding and abetting, and civil conspiracy. Id. at 11–13 (Am. Compl. ¶¶ 40–56).2 No Defendant
has answered or otherwise appeared in this action. Plaintiffs, accordingly, requested that the
clerk of the court enter default against two Defendants—the Islamic Republic of Iran and
MOIS—which the clerk of the court has done. Dkt. 20; Dkt. 21. To date, Plaintiffs have not
requested the entry of default against the IRGC. See Dkt. 20; Dkt. 21.
Plaintiffs have now moved for a default judgment against all three Defendants and for the
appointment of a special master to determine damages. Dkt. 23 at 1. As explained below,
Plaintiffs are not entitled to a default judgment, at least at this time, because the Court lacks
personal jurisdiction over Defendants. The reason is that Plaintiffs failed to serve them in
compliance with the relevant statutory requirements. The Court will therefore DENY Plaintiffs’
2
Although Plaintiffs’ motion for default judgment mentions Israeli law, Dkt. 23 at 22–23, in
their Amended Complaint they assert common law claims only under District of Columbia law
and what they refer to as “U.S. state common law,” Dkt. 6 at 11–13 (Am. Compl. ¶¶ 40–56).
While expressing no view on the merits of these claims or conclusion about what law should
control, the Court notes that it is far from clear that U.S. law, rather than Israeli law, applies. See
Force v. Islamic Republic of Iran, 464 F. Supp. 3d 323, 372–74 (D.D.C. 2020). In any event,
Plaintiffs must demonstrate their right to relief under the law that does apply in order to obtain a
default judgment. See Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 91–92 (D.D.C.
2018).
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motion without prejudice and will provide them with a further opportunity to serve Defendants in
the manner required under the FSIA.
I. LEGAL STANDARD
Even in a garden-variety case, the entry of a default judgment “is not automatic,” Mwani
v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005), and requires the exercise of the Court’s “sound
discretion,” Boland v. Yoccabel Constr. Co., 293 F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v.
Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). Most notably, the Court must first satisfy itself that
it has subject-matter jurisdiction over the claims and personal jurisdiction over the defendants.
See Jerez v. Republic of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (“A default judgment
rendered in excess of a court’s jurisdiction is void.”); Mwani, 417 F.3d at 6 (explaining that the
Court “should satisfy itself that it has personal jurisdiction before entering judgment against an
absent defendant”). In addition, the Court can only consider a motion for entry of a default
judgment on the merits after the plaintiff requests that the clerk of court enter default based on a
party’s failure “to plead or otherwise defend.” Fed. R. Civ. P. 55(a); 10A Charles A. Wright &
Arthur Miller, Federal Practice and Procedure § 2682 (4th ed. 2022) (“Prior to obtaining a
default judgment . . . there must be an entry of default as provided by Rule 55(a).”). In cases
brought against a foreign state there are more requirements still. In particular, the claimant must
“establish[] his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C.
§ 1608(e).
Today, the Court need address only one of these prerequisites: personal jurisdiction.
Under the FSIA, the Court has personal jurisdiction over a foreign state “as to every claim for
relief over which the [Court] ha[s] jurisdiction . . . where service has been made under section
1608.” 28 U.S.C. § 1330(b). The key inquiry at this stage is whether Plaintiffs have properly
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served Defendants. See Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 442
(D.C. Cir. 1990) (citing 28 U.S.C. § 1330(b)). To establish personal jurisdiction, an FSIA
plaintiff must serve the summons and complaint (and, if applicable, a notice of suit) in
accordance with the appropriate provision of the FSIA. See id.; 28 U.S.C § 1608. As a result, to
evaluate whether Plaintiffs have properly effected service, the Court must first categorize each
defendant to determine which of the FSIA’s service provisions applies—28 U.S.C. § 1608(a) or
§ 1608(b). After deciding which provision governs as to each defendant, the Court must assess
whether Plaintiffs’ attempts to effect service satisfied the requirements of that provision.
Answering both questions requires the Court to weigh the evidence Plaintiffs have produced in
support of their motion for entry of a default judgment, which, in turn, requires the Court to
identify the burden of proof Plaintiffs must satisfy. See Mwani, 417 F.3d at 6 (explaining that a
court adjudicating an FSIA case against an absent defendant must “satisfy itself that it has
personal jurisdiction”). “In the absence of an evidentiary hearing,” plaintiffs may satisfy their
burden of demonstrating personal jurisdiction by making a “prima facie showing” based on
“their pleadings” and “bolstered by such affidavits and other written materials as they can
otherwise obtain.” Id. at 7 (internal citation and quotation omitted). The Court must therefore
satisfy itself that Plaintiffs have made a “prima facie showing” that they properly effected service
with respect to each defendant.
II. ANALYSIS
A. Determination of Which FSIA Provision Governs Service of Process
Section 1608 governs service of process under the FSIA and provides separate paths that
a plaintiff must follow depending on the nature of the entity being served. See 28 U.S.C. § 1608.
If a plaintiff seeks to serve a “foreign state,” she must comply with the requirements set out in
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§ 1608(a), and, if she seeks to serve an “agency or instrumentality of a foreign state,” she must
comply with the requirements of § 1608(b). Howe v. Embassy of Italy, 68 F. Supp. 3d 26, 31
(D.D.C. 2014). The D.C. Circuit has offered the following guidance for determining which path
applies: “if the core functions of the entity are governmental, it is considered the foreign state
itself; if commercial, the entity is an agency or instrumentality of the foreign state.” Roeder v.
Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003); see also Transaero, Inc. v. La
Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994) (same). “A nation’s armed forces”
or its “Ministry of Foreign Affairs,” for example, “are clearly . . . governmental,” Roeder, 333
F.3d at 234 (citing Transaero, 30 F.3d at 153), whereas a state-owned commercial airline is
clearly commercial, see, e.g., Seramur v. Saudi Arabian Airlines, 934 F. Supp. 48, 51 (E.D.N.Y.
1996).
Applying that approach here, the Court concludes that all three Defendants are subject to
service under § 1608(a) as “a foreign state or [a] political subdivision” thereof. 28 U.S.C.
§ 1608(a). “Iran is, of course, the foreign state itself, and the ‘core functions’ of [the] IRGC and
MOIS are inherently governmental.” Holladay v. Islamic Republic of Iran, 406 F. Supp. 3d 55,
59 (D.D.C. 2019); see also Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53, 59 (D.D.C.
2007) (“[B]oth MOIS and [IRGC]” must be treated as the foreign state for purposes of
§ 1608(a)). The IRGC, as a branch of the Iranian Armed Forces, performs a military function,
and the MOIS serves as Iran’s primary intelligence agency. Dkt. 6 at 5 (Am. Compl. ¶¶ 18–19);
Holladay, 406 F. Supp. 3d at 59. As a result, they are both “so closely bound up with the
structure of the state that they must in all cases be considered as the ‘foreign state’ itself, rather
than a separate ‘agency or instrumentality’ of the state.” Transaero, 30 F.3d at 153.
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B. Service Under § 1608(a)
Section 1608(a) provides for four methods by which a party may serve a foreign state:
(1) by delivery of a copy of the summons and complaint in accordance with
any special arrangement for service between the plaintiff and the foreign
state or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons
and complaint in accordance with an applicable international convention
on service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), 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
(4) if service cannot be made within 30 days under paragraph (3), by sending
two copies 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 Secretary of State in
Washington, District of Columbia, to the attention of the Director of
Special Consular Services--and the Secretary shall transmit one copy of
the papers through diplomatic channels to the foreign state and shall send
to the clerk of the court a certified copy of the diplomatic note indicating
when the papers were transmitted.
28 U.S.C. § 1608(a).
These methods must be pursued in “descending order of preference,” Barot v. Embassy of
the Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015), meaning that a party “must attempt
service by the first method (or determine that it is unavailable) before proceeding to the second
method, and so on,” Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 52 (D.D.C.
2008); Angellino v. Royal Family Al-Saud, 688 F.3d 771, 773 (D.C. Cir. 2012). Because
“Congress meant for section 1608(a) to establish a relative hierarchy of service methods,” a
plaintiff “may not opt to serve a foreign defendant out of order, i.e., by pursuing a less preferred
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method first, in contravention of the express language of the statute.” Azadeh v. Gov’t of the
Islamic Rep. of Iran, 318 F. Supp. 3d 90, 100 (D.D.C. 2018) (emphasis in original). One
consequence of this rule is that even an otherwise successful attempt to serve a foreign state is
invalid if conducted without following the statutorily prescribed order. In Azadeh v. Government
of the Islamic Republic of Iran, for instance, this Court held that a plaintiff who had served a
foreign state under § 1608(a)(4), without having previously attempted service under
§ 1608(a)(3), could not “cure[] the prior personal jurisdiction problem by backtracking and
seeking to effect service by mail under [§] 1608(a)(3)” after the fact. Id. Instead, the Court
required her to “re-serve[] [the] [d]efendants under [§] 1608(a)(4)” after having gone back and
attempted service under § 1608(a)(3), “because the prior [attempt at § 1608(a)(4) service] was
invalid due to her failure to undertake first service by mail under [§] 1608(a)(3).” Id. It “d[id]
not matter that [the plaintiff had] almost complied with the service requirements laid out in
[§] 1608(a), or that [the defendants] [we]re aware of th[e] lawsuit by virtue of her prior success
in providing notice” under § 1608(a)(4), because “with respect to serving a foreign state under
[§] 1608(a), a near miss is still a miss.” Id.; see also Estate of Hirshfeld v. Islamic Republic of
Iran, 235 F. Supp. 3d 45, 47–48 (D.D.C. 2017) (refusing to find service effective where the
plaintiff successfully served the foreign state under § 1608(a)(4) before attempting service
under § 1608(a)(3)).
Judicial insistence on strict compliance with § 1608(a)’s prescribed order-of-service is
just one application of the more general principle that, when serving a foreign state, “strict
adherence to the terms of [§] 1608(a) is required,” Transaero, 30 F.3d at 154, and “neither
substantial compliance, nor actual notice” suffices, Barot, 785 F.3d at 27. As the Supreme Court
recently explained in Republic of Sudan v. Harrison, 139 S. Ct. 1048 (2019), although
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“enforcing compliance” with the letter of § 1608(a) may at times seem like an “empty
formality,” in “cases with sensitive diplomatic implications,” such as FSIA suits, “the rule of law
demands adherence to strict requirements even when the equities of a particular case may seem
to point in the opposite direction.” Id. at 1062. And in Harrison the Supreme Court
demonstrated just how seriously it takes this notion. In that case, plaintiffs seeking to sue Sudan
under the FSIA attempted to effect service pursuant to § 1608(a)(3) by addressing a service
packet to the foreign minister by name and sending it to Sudan’s embassy in the United States.
Id. at 1053. The Court held that this attempt at service was inadequate, because § 1608(a)(3)’s
requirement that a service packet “be addressed and dispatched by the clerk of the court to the
head of the ministry of foreign affairs of the foreign state concerned” was “[m]ost naturally read
. . . [to] require[] that a mailing be sent directly to the foreign minister’s office in the minister’s
home country,” not to that country’s embassy in the United States. Id. (emphasis added). The
Court reached this result notwithstanding its recognition that (1) Ҥ 1608(a)(3) does not
expressly provide where service must be sent,” id. at 1061, (2) its reading of the statute was “not
. . . the only plausible reading of the statutory text,” id. at 1056, and (3) its strict holding would
cause the plaintiffs “understand[able] . . . exasperation,” id. at 1062.
Mindful of its obligation to apply a similarly stringent standard for service in the instant
case, the Court turns to Plaintiffs’ efforts to serve Defendants. The first two mechanisms of
effecting service—by delivery of the summons and complaint either “in accordance with any
special arrangement for service between the plaintiff and the foreign state” under § 1608(a)(1) or
“in accordance with an applicable international convention on service of judicial documents”
under § 1608(a)(2)—were unavailable to Plaintiffs in this case. See Dkt. 12-1 at 1. No “special
arrangement” governs service between the United States and Iran, nor is Iran party to an
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international convention on service of judicial documents. See Braun v. Islamic Republic of
Iran, 228 F. Supp. 3d 64, 77–78 (D.D.C. 2017).
Plaintiffs’ problems arose when they attempted to serve Defendants under § 1608(a)(3),
which requires service by mail “addressed and dispatched by the clerk of the court to the head of
the ministry of foreign affairs of the foreign state concerned.” Beginning with the Islamic
Republic of Iran, Plaintiffs requested that the clerk of court mail a service packet to:
The Islamic republic of Iran
The Ministry of Foreign Affairs
Imam Khomeini Street
Imam Khomeini Square
Tehran, Iran
1136914811
Dkt. 9. The clerk did so, Dkt. 10-1 at 1–2, but the service attempt failed, Dkt. 12-1 at 1.
This service attempt did not strictly adhere to § 1608(a)(3)’s requirements, because
Plaintiffs did not direct the clerk to “address[] and dispatch[]” the mailing “to the head of the
[Iranian] ministry of foreign affairs.” See 28 U.S.C. § 1608(a)(3). Instead, Plaintiffs had the
packet addressed to the ministry of foreign affairs in general. Dkt. 9; Dkt. 10. Although this
mistake is a technical one, the Court cannot overlook it. The FSIA’s text must be strictly
enforced, Transaero, 30 F.3d at 154, and that text clearly requires that the packet be addressed to
a particular individual—namely, the “head of the ministry of foreign affairs of the foreign state
concerned,” § 1608(a)(3).
Precedent confirms both this reading of § 1608(a)(3) and its consequences for this case.
That Plaintiffs’ failure correctly to address their mailing was fatal to their service attempt follows
almost a fortiori from Harrison, because the requirement that the mailing be addressed to “the
head of the ministry of foreign affairs” is far more explicit in § 1608(a)(3)’s text than is the
requirement Harrison found dispositive—that a packet addressed to the minister be sent to the
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minister’s office within his or her country. See 139 S. Ct. at 1056. Harrison also repeatedly
explains that “the most natural reading of § 1608(a)(3) is that the service packet must bear the
foreign minister’s name and customary address and that it be sent to the minister in a direct and
expeditious way.” Id. at 1057 (emphasis added); see id. at 1061 (“The service packet must be
mailed directly to the foreign minister at the minister’s office in the foreign state.”).
Even more directly on point, the D.C. Circuit addressed this very issue in Barot and
explained that § 1608(a)(3) requires:
serving a summons, complaint, and notice of suit, along with any necessary
translations, that are “dispatched by the clerk of the court,” and sent to the “head
of the ministry of foreign affairs” . . . whether identified by name or title, and
not to any other official or agency.
785 F.3d at 30 (emphasis added) (internal citations omitted). In Barot, the court held that service
was ineffective under § 1608(a)(3) where the service materials, although sent to the correct Post
Office Box, were addressed to the “Embassy of Zambia,” and not to the “Head of the Ministry of
Foreign Affairs.” Id. at 29. This Court has also repeatedly held that a failure to address service
to the foreign minister renders a service attempt ineffective. See, e.g., Law Offs. of Arman
Dabiri & Assocs. P.L.L.C. v. Agric. Bank of Sudan, No. 17-cv-2497, 2019 WL 231753, at *5
(D.D.C. Jan. 16, 2019); Mohammad Hilmi Nassif & Partners v. Republic of Iraq, No. 17-cv-
2193, 2020 WL 1444918, at *2–3 (D.D.C. Mar. 25, 2020).
Plaintiffs’ attempts to serve the MOIS and the IRGC suffered from the same error as well
as an additional one. As discussed above, for purposes of § 1608, the MOIS and the IRGC are
treated as a foreign state, i.e., they are considered to be Iran itself, not an “agency or
instrumentality” of Iran. They must therefore be served in strict compliance with § 1608(a).
Transaero, 30 F.3d at 153–54. Consequently, where, as here, service under the first two
paragraphs of that section fails, a party must serve the MOIS and the IRGC in accordance with
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§ 1608(a)(3), which (at the risk of belaboring the point) requires that a service packet “be
addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of
the foreign state concerned.” Plaintiffs, however, asked the clerk to send the service packets to
the IRGC and the MOIS themselves, directing the clerk to mail the materials to:
Iranian Ministry of Intelligence & Security
(a/k/a Verzarat-e Ettela’at Va Amniat-e Keshvar a/k/a VEVAK a/k/a VAJA)
Second Negarestan Street
Pasdaran Avenue
Tehran, Iran
and
The Islamic Revolutionary Guard Corps (“IRGC”)
Armed Forces Headquarters Iran
Tehran – Zone 7 – Shariati
Ghoddoosi Square (Ghaar)
Tehran, Iran
Dkt. 7; Dkt. 8; Dkt. 10. These mailings, like Plaintiffs’ mailing to Iran, were refused. Dkt. 13-1
at 1; Dkt. 14-1 at 1. And these mailings, like Plaintiffs’ mailing to Iran, did not comply with
§ 1608(a)(3). The most significant defect with Plaintiffs’ approach is that they did not have the
service packets addressed to Iran’s ministry of foreign affairs at all, addressing them instead to
the MOIS and the IRGC. In addition, and as above, they did not direct the packets to the foreign
minister specifically. Plaintiffs therefore failed properly to attempt service of the MOIS and the
IRGC under § 1608(a)(3).
But Plaintiffs, presumably not realizing their mistakes and assuming that they had made
proper albeit unavailing attempts to serve Defendants pursuant to § 1608(a)(3), then proceeded to
serve Defendants under § 1608(a)(4). That provision requires service by mail from the clerk of
court to the Secretary of State, who must transmit the required material “through diplomatic
channels to the foreign state.” 28 U.S.C. § 1608(a)(4). The Department of State must then send
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“the clerk of the court a certified copy of the diplomatic note indicating when the papers were
transmitted.” Id. Plaintiffs provided the Clerk with the relevant documents and requested
service pursuant to § 1608(a)(4) on December 18, 2019. Dkt. 12; Dkt. 13; Dkt. 14. The Clerk
mailed these materials to the State Department on December 23, 2019. Dkt. 16. On May 28,
2020, the State Department notified the Clerk that the documents had been delivered to Iran, the
MOIS, and the IRGC. Dkt. 18. As the Department explained, “[b]ecause the United States does
not maintain diplomatic relations with the Government of Iran,” the documents were transmitted
to the Embassy of Switzerland in Iran, which then transmitted the materials to the Iranian
Ministry of Foreign Affairs on April 6, 2020. Id. at 1.
In light of Plaintiffs’ faulty attempts to serve Defendants pursuant to § 1608(a)(3)
followed by their (otherwise) proper service pursuant to § 1608(a)(4), the Court confronts the
following question: Can it disregard or excuse Plaintiffs’ noncompliant attempts at § 1608(a)(3)
service and exercise personal jurisdiction over Defendants, because Plaintiffs subsequently and
successfully served Defendants under § 1608(a)(4)? The answer is no. Because Plaintiffs’
attempts to serve Defendants pursuant to § 1608(a)(3) did not strictly adhere to the requirements
of that provision, their later service under § 1608(a)(4) was a nullity.
This conclusion finds support in the text of § 1608 and in the caselaw interpreting that
provision: failure to follow the carefully delineated rules for serving a foreign state cannot be
cured or excused without retracing the steps required under § 1608. Under the statute, “if service
cannot be made within 30 days under paragraph (3)”—i.e., under § 1608(a)(3)—then a party can
attempt service under § 1608(a)(4). 28 U.S.C. § 1608(a)(4). The question, then, is what the
phrase “if service cannot be made under paragraph (3)” means. The words “cannot be made”
indicate that a plaintiff must attempt to effect service under § 1608(a)(3), and some impediment
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must stand in the way of accomplishing service under that provision, before progressing to
§ 1608(a)(4). After all, without attempting service in a particular manner, a plaintiff cannot
know whether service can be made in that manner or not. And the word “cannot” connotes more
than inexactitude or negligence; if service can be achieved under § 1608(a)(3), that is what the
statute requires. Consistent with this language, courts have often held that plaintiffs are
obligated to work through the statutory service methods in order, exhausting § 1608(a)(3) before
moving to § 1608(a)(4). E.g., Angellino, 688 F.3d at 773 (“Section 1608 prescribes four
methods of service—‘in descending order of preference’—and a plaintiff ‘must attempt service
by the first method (or determine that it is unavailable) before proceeding to the second method,
and so on.’” (quoting Ben-Rafael, 540 F. Supp. 2d at 52)); Azadeh, 318 F. Supp. 3d at 100
(same); Estate of Hirshfeld, 235 F. Supp. 3d at 47–48 (same). Thus, an FSIA plaintiff must
attempt service under § 1608(a)(3) in a manner that complies with the statutory directives and
may move on to attempt service under § 1608(a)(4) only if that compliant effort to effect service
fails.
This reading of the statute accords with the well-established rule that parties must strictly
comply with the terms of § 1608(a). Barot, 785 F.3d at 27. The D.C. Circuit has explained that
mere “substantial compliance” with § 1608(a) is the same, for personal jurisdiction purposes, as
not complying with § 1608(a) at all. See id.; see also Azadeh, 318 F. Supp. 3d at 100 (“[W]ith
respect to serving a foreign state under section 1608(a), a near miss is still a miss.”). But if a
failure completely to comply with one method of service could be obviated merely by moving
along to the next option, this strict-adherence rule would lose much of its force. “[A] near miss”
would no longer be a miss, as long as a plaintiff pursued his next alternative. Azadeh, 318 F.
Supp. 3d at 100. As Harrison explained, “the rule of law” demands more in the FSIA context.
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139 S. Ct. at 1062. Not only that, once one recognizes that imperfect service under one of
§ 1608(a)’s provisions is no different than no service under that provision at all, it becomes clear
that the situation here is the same as that in cases in which plaintiffs have simply skipped over
earlier-enumerated service methods in favor of those appearing later in the statute. And as
discussed, courts consistently have held that this latter practice deprives them of personal
jurisdiction. See, e.g., Azadeh, 318 F. Supp. 3d at 100; Estate of Hirshfeld, 235 F. Supp. 3d at
47–48; Karcher v. Islamic Republic of Iran, 249 F. Supp. 3d 557, 559 (D.D.C. 2017). The same
result must obtain here.
Although it might be argued that as a matter of fairness the Court should distinguish
between wholly ignoring one of § 1608(a)’s service methods and attempting to adhere to a
service method (albeit without careful attention to statutory requirements), doing so would be at
odds with the rule of strict compliance and would also create significant practical problems. For
one thing, this approach would disincentivize plaintiffs from “adher[ing] to [§ 1608(a)’s] strict
requirements,” which, for reasons already given, is a significant strike against it. Allowing
subsequent service under § 1608(a)(4) to cure a flawed attempt to effect service under
§ 1608(a)(3) would also drag courts into the messy inquiry of what constitutes a good faith or
flawed-but-close-enough attempt at service sufficient to permit a plaintiff to proceed from one
method to the next. Presumably, courts would need to develop some test to assess whether a
flawed attempt at service was close enough; if any attempt, however minimal, counted for this
purpose, the statutory directive would lose all meaning. But setting and enforcing such a
limitation would invite a host of other problems. What if, for example, a plaintiff addressed a
service packet to the wrong country? Or prepared the packet but forgot to deliver it to the clerk
of court to send? Or translated the summons, complaint, and notice of suit into the wrong
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language? What result? Questions of this type would doubtless arise, and courts would have
nothing to guide their resolution of them. Harrison rejected exactly this sort of “line-drawing”
“in favor of maintaining a clear, administrable rule.” 139 S. Ct. at 1061. This is particularly
important in the context of suits against foreign states, where uncertainty and open-ended
inquiries raise the risk of significant diplomatic consequences.
Although one might argue that requiring Plaintiffs to go back and attempt service
pursuant to § 1608(a)(3) (and potentially § 1608(a)(4)) would constitute a waste of time or a
pointless formality, the Court cannot agree. As an initial matter, that argument is at odds with
both Harrison and D.C. Circuit precedent. See 139 S. Ct. at 1062; Barot, 785 F.3d at 27;
Transaero, 30 F.3d at 154. Taking the argument head on, the possibility that strict compliance
with § 1608(a) will take more time than noncompliance is both predictable and no justification
for noncompliance. Courts already require plaintiffs who entirely skip one of § 1608(a)’s service
methods to go back and try again. See, e.g., Azadeh, 318 F. Supp. 3d at 100; Estate of Hirshfeld,
235 F. Supp. 3d at 47–48. The inefficiency is no greater where, as here, a plaintiff has instead
made errors in her attempt to serve a defendant. Nor is § 1608(a)(3) service merely a formality
on the way to inevitable § 1608(a)(4) service, at least not in this case. Iran not infrequently
accepts service that has been properly made under § 1608(a)(3). See, e.g., Karcher, 249 F. Supp.
3d at 559–60; Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 49 (D.D.C. 2012); Taylor
v. Islamic Republic of Iran, 811 F. Supp. 2d 1, 6 (D.D.C. 2011). So, if Plaintiffs choose to
attempt § 1608(a)(3) service again, they might well succeed.
The Court, accordingly, concludes that Plaintiffs have failed to effect service of any of
Defendants in the manner required under § 1608 and that, as a result, the Court lacks personal
jurisdiction over Defendants. See 28 U.S.C. § 1330(b).
15
* * *
Although Plaintiffs have failed properly to effect service, dismissal is unwarranted. Even
if a party “has not complied with the service of process requirements,” the Court has discretion
to permit the party to give it another go, rather than dismiss the case. See Candido v. District of
Columbia, 242 F.R.D. 151, 164 (D.D.C. 2007). Indeed, the D.C. Circuit has cautioned that
“dismissal is not appropriate when there exists a reasonable prospect that service can be
obtained.” Barot, 785 F.3d at 29 (emphasis added) (quoting Novak v. World Bank, 703 F.2d
1305, 1310 (D.C. Cir. 1983)). Barot is instructive. In that case, the D.C. Circuit held that it was
an abuse of discretion to dismiss for insufficient service of process when (1) the service attempt
“came very close to satisfying the Act’s requirements . . . [thus] showing good faith;” (2) “the
statute of limitations [had] run on [the plaintiff’s] claims;” and (3) “[the defendant] [had]
identified no particular prejudice it would suffer if [the plaintiff] were permitted another
opportunity to make proper service.” Id. at 29.
At least two of the same considerations weigh against dismissal in this case. Plaintiffs’
attempts at service came “very close” to satisfying § 1608(a)(3). With respect to Iran itself, as in
Barot, “[t]he defect . . . came down to one line of the address block: it should have said ‘Head of
the Ministry of Foreign Affairs.’” Id. Although the mistakes in Plaintiffs’ attempts to serve the
MOIS and the IRGC were marginally more substantial, they are still a matter of fixing the
address. In all three cases, “[t]here clearly exists a reasonable prospect that service can be
obtained.” Id. (internal quotation marks and citation omitted). Nor can the Court identify any
prejudice to Defendants that would result from allowing Plaintiffs to perfect service or any
benefit that would result from requiring Plaintiffs to re-file their complaint. It would neither
further the interests of fairness nor judicial economy to force Plaintiffs to do so.
16
To be clear, if Plaintiffs wish to attempt to re-serve Defendants, they must do the
following: First, they must serve Defendants in strict compliance with § 1608(a)(3). If that
proves successful, nothing more is necessary from a service perspective. But if this approach
does not succeed within 30 days of Plaintiffs’ proper attempt, Plaintiffs must then re-serve
Defendants in strict compliance with § 1608(a)(4). See 28 U.S.C. § 1608(a)(4).
Before concluding, the Court notes a further problem with all of Plaintiffs’ efforts at
§ 1608(a)(3) service in this case, although it is less clear that this issue, standing alone, would
deprive the Court of personal jurisdiction. Plaintiffs attempted, unsuccessfully as it turns out, to
serve all three Defendants pursuant to § 1608(a)(3), or at least that is what they claim in their
motion for default judgment. Dkt. 23 at 14. But on each of Plaintiffs’ affidavits requesting the
clerk of court to mail service packets to these Defendants, Plaintiffs indicated that they were
seeking service pursuant to 28 U.S.C. § 1608(b)(3)(B), not § 1608(a)(3). Dkt. 7; Dkt. 8; Dkt. 9.
This is evident because each affidavit states that the undersigned counsel is requesting the clerk
to mail a copy “pursuant to the provisions of” one of four sources of legal authority, each with a
check box next to it. Dkt. 7; Dkt. 8; Dkt. 9. These options are: (1) FRCP 4(f)(2)(C)(ii); (2) 28
U.S.C. § 1608(a)(3); (3) 28 U.S.C. § 1608(b)(3)(B); and (4) 28 U.S.C. § 1608(a)(4). Dkt. 7; Dkt.
8; Dkt. 9. On all of the affidavits (one each for Iran, the MOIS, and the IRGC), Plaintiffs’
counsel checked the third box, corresponding to § 1608(b)(3)(B). Dkt. 7; Dkt. 8; Dkt. 9.
Had Plaintiffs’ efforts at § 1608(a)(3) service been otherwise consistent with the statutory
requirements, the Court would need to resolve the question whether these efforts were
nevertheless deficient because Plaintiffs indicated that they were serving Defendants pursuant to
the wrong statutory provision. The question is not an easy one. On the one hand, courts require
“strict adherence to the terms of [§] 1608(a).” Transaero, 30 F.3d at 154. But, on the other
17
hand, nothing in § 1608(a)(3) expressly requires that a plaintiff accurately identify under which
provision of law it is attempting service. The Court need not and does not decide the question,
however, because the other defects in Plaintiffs’ attempts to serve Defendants are sufficient to
preclude the exercise of personal jurisdiction. But should Plaintiffs make another attempt to
serve Defendants, they should do so with careful attention to all the relevant details, including by
checking the correct box on any affidavits they submit.3
CONCLUSION
To sum up, the Court cannot enter default judgment against Defendants, because it lacks
personal jurisdiction over them. Plaintiffs may, however, make another attempt to serve
Defendants in strict compliance with § 1608(a). As a result, it is hereby ORDERED that the
motion for default judgment is DENIED without prejudice. It is further ORDERED that the
clerk’s entry of default against the Islamic Republic of Iran and the Iranian Ministry of
Information and Security, Dkt. 21, is VACATED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 19, 2022
3
Even if Plaintiffs had properly served Defendants and otherwise met the requirements for relief
on their claims, the Court would still have been unable enter a default judgment against the
IRGC, because Plaintiffs never requested an entry of default against IRGC. Antoine v. U.S. Bank
Nat’l Ass’n, 547 F. Supp. 2d 30, 35 (D.D.C. 2008); Dkt. 20; Dkt. 21. Should Plaintiffs wish to
continue to pursue this action against all Defendants, they will need to request an entry of default
against every Defendant at the appropriate time.
18