Estate of Yonadav Hirshfeld v. Islamic Republic of Iran ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ESTATE OF YONADAV HIRSHFELD, et al.,
Plaintiffs
v. Civil Action No. 15-1082 (CKK)
ISLAMIC REPUBLIC OF IRAN,
Defendant
MEMORANDUM OPINION AND ORDER
(October 10, 2017)
Plaintiffs are the Estate, heirs, survivors, and immediate family members of Yonadav
Hirshfeld who bring this case under the Foreign Services Immunities Act (“FSIA”), 28 U.S.C. §
et seq., against Defendant Islamic Republic of Iran (“Iran”). Am. Compl. ¶ 1, ECF No. 7. Plaintiffs
allege that Iran and its agents materially supported and caused the death of Mr. Hirshfeld in a
terrorist shooting on March 6, 2008, while he was attending school at the Mercaz Harav Yeshiva
in Jerusalem, Israel. Id. Presently before the Court is Plaintiffs’ Response to this Court’s Order
of August 15, 2017 concerning Effectiveness of Service, ECF No. 26 (Pls.’ Mot.), which requests
that service on Defendant, the Islamic Republic of Iran, be deemed effective. This motion is
uncontested as Iran has failed to appear in this action to contest service, or otherwise, despite
Plaintiffs’ efforts to serve Defendant as mandated by the Court’s January 25, 2017 Order, ECF No.
19.
The FSIA instructs plaintiffs seeking relief under the statute to effectuate service upon a
foreign state or its political subdivision using one of four methods, set forth in descending order
of preference. 28 U.S.C. § 1608(a); Fed. R. Civ. P. 4(j)(1). First, plaintiff may effect service “by
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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.” 28 U.S.C. §
1608(a)(1). Second, “if no special arrangement exists,” service may be accomplished “by delivery
of a copy of the summons and complaint in accordance with an applicable convention on service
of judicial documents.” 28 U.S.C. § 1608(a)(2). Third, “if service cannot be made under
paragraphs (1) or (2),” plaintiff may:
[send] 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.
28 U.S.C. § 1608(a)(3). Fourth, if service cannot be made “within 30 days” of the third method,
service can be effectuated through the Department of State, which transmits the summons and
complaint to the foreign state via diplomatic channels. 28 U.S.C. § 1608(a)(4).
On December 8, 2015, Plaintiffs contacted the Clerk of Court requesting that service of
process be effected on Iran pursuant to section 1608(a)(4). They represented that service was not
feasible pursuant to sections 1608(a)(1) and (a)(2), as there is no special arrangement for service
between the United States and Iran, nor is service permitted on Iran pursuant to any applicable
convention on service of documents. Pls.’ Letter, ECF No. 8. On December 14, 2015, the Clerk
of the Court issued a Certificate of Mailing, indicating that two copies of the summons, Amended
Complaint, and notice of suit, along with a translation, were sent by certified mail to the U.S.
Department of State pursuant to 28 U.S.C. § 1608(a)(4). Cert. of Mailing, ECF No. 10. The Clerk
of the Court entered on the docket a letter from the U.S. Department of State and a diplomatic
note, indicating that the documents were delivered to the Iranian Ministry of Foreign Affairs on
January 31, 2016. Return of Service, ECF No. 11. On April 8, 2016, Plaintiffs filed an Affidavit
Requesting Foreign Mailing pursuant to 28 U.S.C. § 1608(a)(3). On April 14, 2016, the Clerk of
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the Court filed a Certificate of Mailing, indicating that one copy of the summons, complaint, and
notice of suit, along with a translation, was sent by registered mail to the head to the ministry of
foreign affairs pursuant to 28 U.S.C. § 1608(a)(3), on April 12, 2016. Certificate of Mailing, ECF
No. 16.
On May 27, 2016, Plaintiffs sought for the Court to issue an order declaring that service
was effective. Pls.’ Mot. for Order Declaring Effectiveness of Service, ECF No. 17. On January
25, 2017, the Court denied Plaintiffs’ motion without prejudice, determining that service could be
attempted under section 1608(a)(4) only after plaintiffs attempt and fail to effect service within 30
days under 1608(a)(3). See Estate of Hirshfeld v. Islamic Republic of Iran, 235 F. Supp. 3d 45, 47
(D.D.C. 2017). The Court determined that because Plaintiffs had not attempted service in the
sequence required under the clear language of the statute, they had failed to demonstrate “strict
adherence” to the terms of section 1608(a), as this Circuit has interpreted is required. See Barot v.
Embassy of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015) (“When serving a foreign sovereign, ‘strict
adherence to the terms of 1608(a) is required.’”) (quoting Transaero, Inc. v. La Fuerza Aerea
Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994)). The Court declined to accept Plaintiffs’ argument
that they had “substantially complied” with the requirements of the statute, and found that the plain
language of the statute controlled. Estate of Hirshfeld, 235 F. Supp. 3d at 48. The Court then
directed Plaintiffs to effectuate service on Defendant pursuant to 28 U.S.C. § 1608(a), to the extent
Plaintiffs sought to pursue their claims. On August 15, 2017, the Court entered an Order mandating
that Plaintiffs “file on or before September 11, 2017, a brief indicating the factual and legal basis
for their belief that service on Defendant has been successfully accomplished” and that it
“specifically address each of the subsections of 28 U.S.C. § 1608(a).” Minute Order, ECF No. 25.
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On September 11, 2017, Plaintiffs timely filed the [26] Status Report Responding to the
Court Order of August 15, 2017, asserting that service on Iran had been perfected. In this instance,
the Court agrees that Plaintiffs cured the sequential defect described above, and have perfected
service on Iran. As an initial matter, “no special arrangements for service exist between Iran and
the plaintiffs, nor is Iran a party to any applicable international convention on service of judicial
documents.” Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 70 (D.D.C. 2010); see also
Bluth v. Islamic Republic of Iran, 203 F. Supp. 3d 1, 18 (D.D.C. 2016) (same). Accordingly,
Plaintiffs were permitted to attempt to serve Iran by mail pursuant to section 1608(a)(3). As section
1608(a)(3) requires, Plaintiffs have: (i) had the Clerk of Court dispatch; (ii) a copy of the summons,
complaint, and a notice of suit; (iii) all translated into Farsi, the official language of Iran; (iv) by
certified mail, which is a form of mail requiring a signed receipt, (v) to the Iranian Ministry of
Foreign Affairs. Request from Plaintiffs to Clerk, ECF No. 14; Certificate of Clerk, ECF No. 16.
Service under this method failed, as the certified mail package containing the service papers was
returned to the Court as undeliverable on September 8, 2016, and no receipt or certification of
delivery was received within 30 days of mailing. Unexecuted Returned Summons, ECF No. 18.
Accordingly, as service was not effectuated within 30 days under section 1608(a)(3),
Plaintiff was permitted to serve Defendant through diplomatic channels under section 1608(a)(4).
Plaintiff has complied with the dictates of that section, as they: (i) had the Clerk of the Court
dispatch; (ii) two copies of the summons and complaint and a notice of suit, (iii) along with a
translation into Farsi, the official language of Iran; (iii) by certified mail, which is a form of mail
requiring a signed receipt, (iv) to the U.S. Department of State. Affidavit Requesting Foreign
Mailing, ECF No. 20; Certificate of Clerk, ECF No. 22. In a letter to the Court dated May 4,
2017, the United States Department of State certified that diplomatic service had been
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accomplished when the papers were transmitted on April 4, 2017, completing the requirements for
service under section 1608(a)(4). Return of Service, ECF No. 23. On the same day, the Iranian
Ministry of Foreign Affairs refused reception of the papers. Id.The Court agrees that Plaintiffs have now demonstrated “strict adherence to the terms of
1608(a).” Barot, 785 F.3d at 27. Pursuant to §1608(c), service is perfected “in the case of service
under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic
note,” even though the Iranian Ministry of Foreign Affairs refused reception of the papers. See,
e.g., Valore, 700 F.2d at 70 (finding that plaintiffs properly served defendants under § 1608(a)(4)
upon completing its requirements even though Iran refused service). Accordingly, the Court agrees
that Plaintiff perfected service on the Defendant under section 1608(c) on April 4, 2017, the date
the Department of State indicated that the papers had been transmitted in the Diplomatic Note.
Return of Service, ECF No. 23.
For the foregoing reasons, on this 10th day of October, 2017, the Court GRANTS Plaintiffs’
Motion, which seeks to deem service effective pursuant to section 1608(a)(4). Accordingly, Iran
is deemed to have been served on April 4, 2017. 28 U.S.C. § 1608(c)(1).
Iran was required to answer or otherwise respond to the Amended Complaint by June 3,
2017. 28 U.S.C. § 1608(d) (“a foreign state shall serve an answer or other responsive pleading to
the complaint within sixty days after service has been made under this section”). Having failed to
do so, Plaintiffs rightfully moved for Default on June 7, 2017, and the Clerk entered Default against
Iran on June 9, 2017. Default, ECF No. 25.
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Accordingly, concurrent with the filing of this Memorandum Opinion and Order, the Court
shall issue a Scheduling Order governing further proceedings in this matter in a default setting.
SO ORDERED.
___________/s/_______________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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