Karcher v. Islamic Republic of Iran

249 F. Supp. 3d 557, 2017 WL 1401264, 2017 U.S. Dist. LEXIS 59527
CourtDistrict Court, District of Columbia
DecidedApril 19, 2017
DocketCivil Action No. 2016-0232
StatusPublished
Cited by6 cases

This text of 249 F. Supp. 3d 557 (Karcher v. Islamic Republic of Iran) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Karcher v. Islamic Republic of Iran, 249 F. Supp. 3d 557, 2017 WL 1401264, 2017 U.S. Dist. LEXIS 59527 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiffs are the estates and families of U.S. nationals and/or members of the U.S. armed forces who bring this case under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., against Defendant Islamic Republic of Iran (“Iran”). Am. Compl. ¶ 1, ECF No. 8. Plaintiffs allege that Iran and its agents were complicit in the deaths and maiming of these U.S. nationals and service members in Iraq from 2004 to 2011. Id. Presently before the Court are two motions filed by Plaintiffs regarding their efforts to effect service on Iran. See Pis.’ Mot. in Response to this Ct.’s Nov. 15, 2016 Order, ECF No. 23 (“Pis.’ First Mot.”); Pis.’ Mot. to Deem Dec. 18, 2016 Service on Def. as Proper Service, ECF No. 27 (“Pis.’ Second Mot.”). These motions are uncontested as Iran has failed to appear in this action to contest service, or otherwise, despite Plaintiffs’ diligent efforts to serve Defendant with the First Motion, as mandated by the Court’s November 15, 2016 Order, ECF. No. 22.

The FSIA sets forth the requirements for service on a foreign state such as Iran. 28 U.S.C. § 1608(a); Fed. R. Civ. P. 4(j)(1). Under the FSIA, there are four methods of effecting service, which are set forth in descending order of preference. First, service may be effected “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.” 18 U.S.C. § 1608(a)(1). Second, service may be accomplished “by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents.” Id. § 1608(a)(2). Third, if service cannot be made by the first two methods, service may be accomplished

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.

Id. § 1608(a)(3). Fourth, if service cannot be made “within 30 days” pursuant to the third method, service can be effected through the Department of State, which transmits the summons and complaint to the foreign state via diplomatic channels. Id. § 1608(a)(4).

On April 6, 2016, 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 1608(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 international convention on service of documents. Letter to Angela D. Caesar, Clerk of Court, ECF No. 13. Moreover, Plaintiffs posited that “although 28 USC § 1608(a)(3) generally requires a party suing a foreign government under the Foreign Sovereign Immunities Act to attempt service through mail before requesting service through diplomatic channels,” Plaintiffs were not obligated to proceed first under section 1608(a)(3) because Iran has repeatedly refused to accept service of process by mail. Id. In support of this contention, Plaintiffs cited the Attorney Manual for Service of Process on a Foreign Defendant (“Attorney Manual”), *559 published by the United States District Court for the District of Columbia, .which instructs that with respect, to ■ Iran and Iraq, “it is okay for an attorney to request service directly through diplomatic, channels ... without attempting service under any other provisions first.” Id.) see also Att’y Manual § I(B)(11)(f) (Mar. 2016 Ed.). Notwithstanding this language in the Attorney Manual, however, the Court recently held that service can be attempted under section 1608(a)(4) only after plaintiffs attempt and fail to effect service within 30 days under section 1608(a)(3). See Estate of Hirshfeld v. Islamic Republic of Iran, No. CV 15-1082 (CKK), 235 F.Supp.3d 45, 2017 WL 361062, at *2 (D.D.C. Jan. 25, 2017) (Kollar-Kotelly, J,), In .reaching that conclusion, this Court noted that the United States Court of Appeals for the District of Columbia Circuit has repeatedly held that “[w]hen serving a foreign sovereign, strict adherence to the terms of 1608(a) is required.” Id. (citing Barot v. Embassy of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015)) (internal quotation marks omitted). Consequently, as Plaintiffs did not attempt service pursuant to section 1608(a)(3) prior to attempting service pursuant to section 1608(a)(4), their motion to deem service effective must be denied to the extent it is predicated on section 1608(a)(4).

Reaching this conclusion, however, does not end the Court’s inquiry. As noted above, this Court ordered Plaintiffs to “make diligent efforts to serve Defendant” with their First Motion. November. 15, 2016 Order, ECF No. 22. In the course of doing so, Plaintiffs requested" that. the Clerk of Court effect service upon Iran pursuant to section 1608(a)(3) with a copy of the summons, complaint, and notice of suit, all translated into Farsi (the official language of Iran), as well as riith Plaintiffs First Motion and the Court’s November 15, 2016 Order. November 29, 2016 Letter to Angela' D. Caesar, Clerk of Court, ECF No. 24. In particular, Plaintiffs requested that the Clerk of Court use a DHL package and waybill provided by Plaintiffs to transmit the aforementioned documents to the Iranian Minister of Foreign Affairs, at the Ministry of Foreign Affairs of Iran, located on Khomeini Avenue in Tehran, Iran. Id.- Accordingly, the Clerk of Court issued a Certificate of Mailing on December 1, 2016, which indicated that it had mailed “[o]ne copy of the summons, complaint and notice of suit, together with a translation of each into the official language of the foreign state, by DHL, to the- head of the ministry of foreign affairs, pursuant to the provisions of 28 U.S.C. § 1608(a)(3).” ECF No. 26. The Certificate of Mailing attached a Confirmation from DHL, which indicated that the carrier would retrieve the package on December 1, 2016, and included a confirmation number. Id. According to a printout from the DHL website, accessed on December 19, 2016, the package mailed by the Clerk of Court to the Iranian Ministry of Foreign Affairs was delivered in Tehran on December 18, 2016. Pis.’ Second Mot., Ex A. According to thát printout, the package was signed for by “DABIRKHO-NEH.” In addition, Plaintiffs have provided the Court with a DHL proof of delivery, which they represent, under penalty of perjury, pertains to the package mailed by the Clerk of Court. Id.,

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Bluebook (online)
249 F. Supp. 3d 557, 2017 WL 1401264, 2017 U.S. Dist. LEXIS 59527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karcher-v-islamic-republic-of-iran-dcd-2017.