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Sisso v. Islamic Republic of Iran

August 23, 2006

AVRAHAM SISSO, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs in this civil action are the surviving husband and children of Rozana Sisso, a sixty-three-year-old woman who was killed in a terrorist bus bombing in Tel Aviv, Israel, on September 19, 2002. Defendants are the Islamic Republic of Iran, the Iranian Ministry of Information and Security ("MOIS"), and Harakat al-Muqawama al-Islamiyya, the jihadist Palestinian militia more commonly known as Hamas (hereinafter "Hamas"). The complaint alleges that each defendant was complicit in the bombing -- a brazen, midday suicide attack purportedly carried out by three individuals at the behest of Hamas and with substantial support from agents of the government of Iran -- and that each therefore is liable to plaintiffs for damages. Plaintiffs advance claims under New Jersey tort law; the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333(a); and the Israeli Civil Wrongs Ordinance ("ICWO"). Now before the Court is plaintiffs' motion for entry of default against defendants, who thus far have failed to appear to defend against this action. For the reasons that follow, the Court will grant plaintiffs' motion with respect to all claims still pending, except those brought against Hamas under the ICWO; dismiss without prejudice the ICWO claims against Hamas; and instruct the Clerk to record the defaults of each defendant on the remaining claims.

BACKGROUND

At approximately 1:00 p.m. on September 19, 2002, Rozana Sisso was standing on a street corner in downtown Tel Aviv, across the road from the city's Great Synagogue, when an alleged Hamas operative named Iyad Na'im Tubhi (a/k/a Iyad Radad) boarded a nearby public bus and detonated a bomb that he had been carrying. Am. Compl. ¶¶ 12-16. Mrs. Sisso, who owned a clothing store near the site of the bombing, was on her way to lunch at the time. Id. at ¶¶ 13-14. She was one of six people killed by the explosion, which lifted the bus off the ground, blew apart its roof, shattered its windows, and scattered debris and body parts on the street and sidewalk. Id. at ¶ 12. Another sixty people were injured as a result of the bombing. Id.

Rozana Sisso was survived by her husband, Charles Sisso, and her four children, Tobi Barda, Galit Sider, Avraham Sisso, and Moshe Sisso. Id. at ¶ 15. Within the Sisso family, only Avraham Sisso is a citizen of the United States -- a fact that is of some consequence to the claims advanced here. The others are Israeli citizens.*fn1 Nearly two and a half years after Rozana Sisso's murder, plaintiffs initiated this civil action against Iran, MOIS, and Hamas. The complaint, as amended, asserts that defendants are vicariously liable for the damages caused by this terrorist act (specifically, the emotional anguish and loss of support that Rozana Sisso's murder caused her immediate family) because the bombing was carried out by Hamas members and those individuals were "acting with the material support, resources, and sponsorship of Iran, through its agent the MOIS, acting within the scope of its agency, office, and employment." Id. at ¶ 28.*fn2

Earlier this year, based on the representations of plaintiffs' counsel that service of process had been accomplished for all defendants and that the time prescribed by the Federal Rules of Civil Procedure for filing a responsive pleading had elapsed (or was about to elapse) without any appearance by defendants, the Court ordered plaintiffs to file (1) an amended complaint that --consistent with prior rulings by this Court and the United States Court of Appeals for the District of Columbia Circuit in similar cases -- specified appropriate sources of law for the claims against Iran and MOIS, and (2) a motion for entry of default and a memorandum of law in support thereof that addressed, for each claim and claimant, the jurisdictional basis for the Court to impose liability on defendants. See Minute Order of January 13, 2006.*fn3

In compliance with that order, plaintiffs filed a five-count amended complaint on March 31, 2006, along with the motion for entry of default that is the subject of this opinion. The amended complaint asserted the following five claims: (1) a claim by Avraham Sisso against the Iran defendants for intentional infliction of emotional distress, based on the law of New Jersey, the state where he was domiciled at the time of his mother's murder; (2) a claim for treble damages by Avraham Sisso against Hamas, pursuant to the ATA; (3) a claim by Avraham Sisso, as the legal representative of the Estate of Rozana Sisso, against all defendants for assault under Section 23 of the ICWO; (4) a claim by Avraham Sisso, as the legal representative of the Estate of Rozana Sisso and on behalf of decedent's spouse and dependents, against all defendants for survivors' damages under Section 78 of the ICWO; and (5) individual claims by each of Rozana Sisso's children and her husband against Hamas for survivors' damages under Section 78 of the ICWO. See Am. Compl. ¶¶ 34-70. Following an inquiry from the Court about the legal status of the Estate of Rozana Sisso, plaintiffs acknowledged that Avraham Sisso lacked the requisite authorization to act on behalf of his mother's estate and voluntarily dismissed the third and fourth counts of the amended complaint -- thereby leaving only (1) Avraham Sisso's personal claim against Iran and MOIS under New Jersey law; (2) Avraham Sisso's personal ATA claim against Hamas; and (3) the ICWO Section 78 claims brought by Rozana Sisso's children and husband against Hamas. See Pls.' Resp. to Order to Show Cause at 3.*fn4

STANDARD OF REVIEW

As a court of limited jurisdiction, a federal district court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001); see also Murphy Exploration and Prod. Co. v. U.S. Dep't of the Interior, 252 F.3d 473, 479 (D.C. Cir. 2001). That means that this Court cannot overlook a potential defect in its jurisdiction simply because the parties fail to call it to the Court's attention. Nor may the Court "presume the existence of jurisdiction in order to dispose of a case on other grounds." Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981). In all cases, this independent obligation means that the Court must satisfy itself that it possesses subject-matter jurisdiction to rule on the merits of the claim. See Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Furthermore, in cases where a defendant has not appeared, the Court is obliged to consider whether it properly has jurisdiction over that person or entity. See Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) ("[A] court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant."); Estates of Ungar ex rel. Strachman v. Palestinian Authority, 304 F. Supp. 2d 232, 247 (D.R.I. 2004) ("[W]hen judgment is sought against parties who have failed to plead or otherwise defend, a district court has an affirmative duty to assure itself that it has jurisdiction over both the subject matter and the parties."). For purposes of these inquiries, the Court must accept all of plaintiffs' factual allegations as true under the present circumstances.*fn5

ANALYSIS

I. Jurisdiction over the Iran Defendants and the Claim Against Them

Before any civil action against a foreign state may proceed in a U.S. court, plaintiffs must overcome the jurisdictional protections of the Foreign Sovereign Immunities Act ("FSIA"). See 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989) ("[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country[.]").*fn6 The "interlocking provisions" of that statute, Mar. Int'l Nominees Estab't v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C. Cir. 1982), compress subject-matter jurisdiction and personal jurisdiction into a single, two-pronged inquiry: (1) whether service of the foreign state was accomplished properly, and (2) whether one of the statutory exceptions to sovereign immunity applies. See 28 U.S.C. §§ 1330(a)-(b); see also Mar. Int'l Nominees Estab't, 693 F.2d at 1099 ("[T]he absence of immunity is a condition to the presence of subject matter jurisdiction. ... [And] a lack of subject matter jurisdiction also deprives the court of personal jurisdiction[.]"); Price, 294 F.3d at 89 (observing that section 1330(b) provides that, "[i]f service of process has been made under [section] 1608, personal jurisdiction over a foreign state exists for every claim over which the court has subject matter jurisdiction," and section 1330(a), in turn, "automatically confers subject matter jurisdiction whenever the state loses its immunity") (citation omitted); Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987) (stating that, under the FSIA, "subject matter jurisdiction plus service of process equals personal jurisdiction").*fn7 In other words, the Court may not consider the merits of a claim against a foreign state unless proper service has been effectuated and one of the FSIA's enumerated exceptions to sovereign immunity applies to that claim.*fn8

The Court therefore must determine whether, in this case, each of these two jurisdictional prerequisites has been satisfied with regard to Avraham Sisso's claim against Iran and MOIS. As the following discussion explains, the Court concludes that the unchallenged facts relating to service and the unrebutted allegations of the complaint are sufficient to move this claim past the jurisdiction threshold.*fn9

A. Service of Process

The FSIA establishes the requirements for proper service upon a foreign state or a political subdivision, agency, or instrumentality of a foreign state. See Fed. R. Civ. P. 4(j)(1). Section 1608 of the FSIA prescribes four methods for serving legal process, in descending order of preference -- meaning that a plaintiff must attempt service by the first method (or determine that it is unavailable) before proceeding to the second method, and so on. See 28 U.S.C. § 1608(a). The preferred method of service is delivery of the summons and complaint "in accordance with any special arrangement for service between the plaintiff and the foreign state." 28 U.S.C. § 1608(a)(1). If, however, no such arrangement exists, then the statute permits delivery of the summons and complaint "in accordance with an applicable international convention on service of judicial documents." 28 U.S.C. § 1608(a)(2). If neither of the foregoing methods is available, then the plaintiff may send the summons, 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). Finally, if mailed service cannot be accomplished within thirty days, then the statute permits the plaintiff to request that the clerk of the court dispatch two copies of the summons, complaint, and notice of suit (together with a translation of each into the foreign state's official language) to the Secretary ...


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