Ben Haim v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SETH CHARLES (KLEIN) BEN HAIM, et al., )
)
Plaintiffs, )
)
v. ) 08-cv-520 (RCL)
)
ISLAMIC REPUBLIC OF IRAN, et al., )
)
Defendants. )
)
MEMORANDUM AND ORDER REGARDING SERVICE
On September 9, 2012 plaintiffs filed a Notice of Post Judgment Service [27] describing
attempted mail service under 28 U.S.C. § 1608 against defendants the Islamic Republic of Iran
and the Iranian Ministry of Information and Security (MOIS). Plaintiffs claim that post judgment
service was effectuated on defendant Islamic Republic of Iran where a service package was
signed for and then immediately rejected. Plaintiffs claim that post judgment service was
effectuated against defendant MOIS where the package was rejected outright.
On October 2, this Court ordered plaintiffs to identify legal authority to support their
claim that this constituted adequate service under FSIA. [28] On October 12, plaintiffs submitted
a supplemental brief. [29]
Most of the legal authorities cited in the brief are not on point. Some of plaintiffs’
authorities actually deal with diplomatic service under § 1608(a)(4), not mail service under §
1608(a)(3) which is the provision at issue here. See Pl. Supp. Br. at 2 (citing Ben-Rafael v.
Islamic Republic of Iran, 540 F. Supp. 2d 39, 53 (D.D.C. 2008)). Other of plaintiffs’ authorities
deal with service outside the context of FSIA, and are thus inapposite. See, e.g., Pl. Supp. Br. at 3
(quoting Murray v. Jewel County, 2011 WL 4485931, at * 4 (D. Colo. Sept. 28, 2011) (quoting
an Oklahoma service statute)).
Plaintiffs’ strongest legal authority for their position is a footnote from this Court’s
opinion in Flatow v. Islamic Republic of Iran, 99 F. Supp. 1, 6 n.1 (D.D.C. 1998). In that
footnote, this Court held that that mail service on the Islamic Republic of Iran was adequate
under § 1608(a)(3) where the service package was rejected. The Court observed:
The Islamic Republic of Iran also apparently attempted to evade service of process by
international registered mail, pursuant to 28 U.S.C. § 1608(a)(3). When the service
package was returned to counsel in June 1997, the package had been opened, the return
receipt, which counsel had not received, had been completely removed, and the message
“DO NOT USA” was written in English across the back of the envelope. This
contumacious conduct bolsters the entry of a default judgment.
999 F. Supp. at 6 n.1.
However, this authority does not support plaintiffs’ case. In the present case, there is no
evidence of any “contumacious conduct” of the type that led this Court in Flatow to find service
had been effectuated. See id. Here defendants simply rejected the service packages; they did not
open the package, nor did they take the return receipt, nor did they scrawl any message on the
back of the envelope. Though someone apparently signed for one package before rejecting it, this
does not match the “contumacious conduct” that led this Court to find service adequate in
Flatow. Thus there is no legal basis for this Court to conclude that service by mail has been
effectuated on either defendant.
As this Court noted in its October 2, 2012 Order [28], before permitting enforcement of a
FSIA judgment, a court must ensure that all foreign entities involved receive notice of the
exposure of their interests to attachment and execution. Section 1610(c) requires that “notice
required under section 1608(e)” be given, and § 1608(e) requires that “[a] copy of any such
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default judgment shall be sent to the foreign state or political subdivision in the manner
prescribed for service in this section.” § 1608(e).
Section 1608 divides the methods for serving foreign entities under FSIA into two
sections: procedures governing service “upon a foreign state or political subdivision” and
procedures governing service “upon an agency or instrumentality of a foreign state.” 28 U.S.C. §
1608(a)-(b). Here, plaintiff has sued one entity in each category.
With respect to defendant Iran, service on a foreign state or political subdivision is
governed by § 1608(a), which “prescribes four methods of service, in descending order of
preference. Plaintiffs 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). These methods are service (1) “in
accordance with any special arrangement . . . between the plaintiff and the foreign state,” (2) “by
delivery . . . in accordance with an applicable international convention,” (3) “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,” and, as a
last resort “if service cannot be made within 30 days under paragraph (3)” then (4) “by sending
two copies” to the U.S. Department of State, which “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)(1)-(4).
Here, the first two methods of service are inapplicable, and plaintiffs have failed to
accomplish service under paragraph (3) by mail for well over the statutory period of 30 days.
Indeed, plaintiffs’ first effort to accomplish service via this method was initiated over 13 months
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ago on September 9, 2011. [21] Because more than 30 days have elapsed and plaintiffs have
failed to effectuate service by mail, pursuant to § 1608 plaintiffs must now attempt service
through diplomatic channels under paragraph (4) of that section.
As for defendant MOIS, an instrumentality or agency of a foreign state, service is
governed by § 1608(b). That section permits service (1) “in accordance with any special
arrangement”, (2) “by delivery . . . either to an officer, a managing or general agent, or to any
other agency authorized . . . to receive service of process in the United States [or] in accordance
with an applicable international convention on service of judicial documents,” (3) or, “if
reasonably calculated to give actual notice, by delivery . . . as [either (A) ] directed by an
authority of the foreign state[, or (B) ] any form of mailing requiring a signed receipt, to be
addressed and dispatched by the clerk of the court[, or (C) ] as directed by order of the court
consistent with the law of the place where service is to be made.” 28 U.S.C. § 1608(b)(1)-(3).
Here, again, the first two methods are inapplicable, and plaintiffs have failed to
accomplish service by mail under paragraph (3) after over a year of trying. Thus, plaintiffs must
now attempt to effectuate service on MOIS via diplomatic channels pursuant to § 1608 (a)(4).
See, e.g., Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70, 71 (D.D.C. 2011) (holding that
under the FSIA, plaintiffs had to effectuate post-judgment service on both Iran and MOIS via
diplomatic channels over plaintiffs’ objections).
The Court pauses to emphasize, as it has before, that the above conclusion should not be
read as a lack of sympathy for plaintiffs’ position. See Murphy, 778 F. Supp. 2d at 73. The U.S.
Department of State charges a substantial fee for victims of terrorism—such as plaintiffs here—
who must use the State Department to serve Iran with FSIA-related papers. See Schedule of Fees
for Consular Services, 75 Fed. Reg. 36532, 36534 (June 28, 2010) (setting $2,275 fee for
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processing FSIA judicial assistance cases). In a context where successful enforcement of
judgments is notoriously difficult and the prospects for recovering damages are rather bleak, see
In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 49 (D.D.C. 2009), the
imposition of these substantial fees imposes a significant burden upon victims of terrorism. And,
sadly, this is not the first time that the government has stationed itself in a position to undermine
the interests of victims of terrorism in FSIA litigation. See In re Terrorism Litig., 659 F. Supp. 2d
at 53. The federal government has promised victims of terrorism a forum and opportunity to seek
compensation for their devastating losses, exploited this glimmer of hope to extract exorbitant
fees from those victims, and then actively undermined those victims’ efforts to obtain
satisfaction of legal and valid judgments in order to protect its own coffers. See id. Three years
ago, this Court observed that “the great travesty in all this is that our political branches have
essentially told victims of terrorism to continue their long march to justice down a path that leads
to nowhere.” Id. at 125. The government now taxes those victims for their travails, as well. See
Murphy, 778 F. Supp. 2d at 73.
Despite these injustices, the Court cannot ignore the important procedural protections for
foreign states and their instrumentalities built into the FSIA. Accordingly, it is hereby
ORDERED that no later than November 30, 2012, plaintiffs attempt post judgment
service on Iran and MOIS through diplomatic channels under § 1608(a)(4).
SO ORDERED
Signed by Royce C. Lamberth, Chief Judge, on November 5, 2012.
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