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Nikbin v. Islamic Republic of Iran

January 11, 2007

GHOLLAM NIKBIN, PLAINTIFF,
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

Plaintiff Ghollam Nikbin ("Nikbin") has filed this civil action against the Islamic Republic of Iran, the Iranian Ministry of Intelligence and Security ("MOIS"), the Islamic Revolutionary Guards ("Revolutionary Guards"), and the individuals Ali Akbar Hashemi Rafsanjani ("Rafsanjani"), Ali Akbar Fallahian Khuzestani ("Khuzestani"), and Does 1-10 seeking money damages for injuries arising from acts of torture allegedly committed against Nikbin while he was in the custody of the Iranian government. His amended complaint asserts various state-law causes of action and a claim under the Flatow Amendment, 28 U.S.C. § 1605 (note). On July 28, 2006, the Clerk of this Court declared all of the named defendants in default. See Clerk's Entry of Default, Docket Entry Nos. 29, 30, 31. To this date, defendants have not responded to the suit. The Court has therefore scheduled an evidentiary hearing for February 2, 2007, at which Nikbin may present evidence in support of his claims. See 28 U.S.C. § 1608(e) (requiring claimant to establish claim or right to relief by evidence satisfactory to the court before entry of judgment by default).

This Memorandum Opinion addresses only a few preliminary matters, reserving discussion of the merits until after the evidentiary hearing. At this stage in the litigation, the Court merely undertakes its independent obligation to verify that jurisdiction exists over all of Nikbin's claims.*fn1 For the reasons described in this Memorandum Opinion, the Court finds that it may exercise jurisdiction over the claims asserted against Iran, MOIS, and the Revolutionary Guards. The Court further finds that it lacks personal jurisdiction over all claims asserted against the individual defendants, and that these claims must therefore be dismissed.

BACKGROUND

Ghollam Nikbin has been a naturalized citizen of the United States since October 1991; he first came to this country as a student, presumably from his home in Iran, in 1975. Am. Compl. ¶¶ 14, 15. Nikbin converted to Mormonism in 1982, prior to marrying a woman who was a member of the Mormon Church, and from whom he is now divorced. Id. ¶ 15. In 1993, Nikbin moved back to Iran to be closer to his family. Id. ¶ 16. The heart of Nikbin's complaint concerns acts that allegedly occurred while he was in Iran during the years 1994 through 1998.

Nikbin married an Iranian woman in 1994. Id. Nikbin alleges that members of the Munkerat and Mafasad Society ("Munkerat")--Iranian government officials charged with enforcing Islamic law--disrupted his 1994 wedding party and arrested Nikbin and twenty-eight guests after they observed several boys dancing with their mothers. Id. ¶¶ 17, 18. Nikbin and the guests were taken first to the Munkerat offices and then to a local court, where they were placed in a guarded, unventilated room in the basement until called on by a judge. Id. ¶¶ 18, 19. Nikbin and the others were required to return to the room every day for a month. Id. ¶ 19. They were not allowed legal representation at their hearings and could not present witness testimony. Id. Eventually the guests received fines, which Nikbin paid on their behalf, and Nikbin was sentenced to forty lashes with a leather whip, which were inflicted upon his back, buttocks, upper thighs, torso, and ear, causing severe pain and lasting injuries. Id. ¶¶ 19, 20.

In the year following this experience, Nikbin remained in Iran but "became outspoken about his frustration with the Iranian government." Id. ¶ 21. After being informed by acquaintances that the secret police had been asking about his activities and religious practices, Nikbin began to fear punishment or arrest. Id. He attempted to leave Iran for the United States on May 28, 1995, but was detained by Iranian officials at the Tehran airport. Id. ¶ 22. A group of men in plain clothes took Nikbin from the airport to the Tehran headquarters of the Revolutionary Guards, where he was held in a four-foot-by-twelve-foot cell for one month. Id. ¶¶ 22, 23, 26. He was let out of this cell only twice a day to use the bathroom and on two or three other occasions for interrogation. Id. ¶ 23. During these interrogations, which focused on his religious conversion, Nikbin was hit on the head repeatedly and endured insults directed at him and his family. Id. In the course of the second interrogation, Nikbin was forced to lie on his back with his legs in the air while the interrogators hit him repeatedly on the soles of his feet with an electrical cable. Id. Nikbin experienced severe pain as a result of this incident, and had difficulty feeling his legs for several days. Id. Even when he was not being interrogated, from his cell Nikbin could hear the sounds of other detainees being tortured. Id. ¶ 25.

Around late June 1995, Nikbin was taken to the same Munkaret office in which he had been detained in 1994. Id. ¶¶ 26, 27. Once there, Nikbin was told that he was sentenced to decapitation for the crime of converting to another religion. Id. ¶ 27. Nikbin was held in a cell at the Munkaret office for four additional months. Id. ¶ 28. During this time, Nikbin "could hear the screams and cries of others being tortured." Id. Nikbin was also subjected to further interrogations at the Munkaret office; during one of these sessions, he was hung upside down by his feet for several hours and experienced intense pain and difficulty breathing. Id.

In November 1995, Nikbin convinced his captors that he was mentally ill and he was transferred to a mental hospital. Id. ¶ 29. In the hospital, Nikbin was forcibly injected with psychotropic drugs at least twice a week. Id. After a month in the mental hospital, Nikbin was moved to a city jail, where he was forced to take pills that made him lethargic. Id. ¶ 30. While in the city jail, Nikbin was "often denied adequate food, special meals and other benefits due to his refusal to participate in Muslim religious practices." Id. Nikbin remained in this jail, his health deteriorating, until his release on December 8, 1998. Id. ¶¶ 30, 31. Nikbin returned to the United States on December 23, 1998. Id. ¶ 32. He currently resides in New York. Id. ¶ 5.

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 & Prod. Co. v. U.S. Dep't of Interior, 252 F.3d 473, 479 (D.C. Cir. 2001); Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000). 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 any 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."). For purposes of these inquiries, the Court must accept all of plaintiff's factual allegations as true under the present circumstances.*fn2

For the sake of clarity, this Memorandum Opinion will consider the claims asserted against Iran, MOIS, and the Revolutionary Guards (collectively "Iranian sovereign defendants") separately from those brought against the individual defendants Rafsanjani, Kuzestani, and Does 1-10.

ANALYSIS

I. Jurisdiction over the Iranian Sovereign Defendants

The Foreign Sovereign Immunities Act ("FSIA") provides the sole basis for obtaining jurisdiction over a foreign state in a United States court. See 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). The "interlocking provisions" of that statute, Mar. Int'l Nominees Establishment 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 § 1330; Mar. Int'l Nominees Establishment, 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 . . . ."); see also Price, 294 F.3d at 89 (observing that § 1330(b) provides that, "[i]f service of process has been made under § 1608, personal jurisdiction over a foreign state exists for every claim over which the court has subject matter jurisdiction," and that § 1330(a), in turn, "automatically confers subject matter jurisdiction whenever the state loses its immunity"); 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" (internal quotation marks omitted)).*fn3 In other words, the Court may proceed to consider the merits of a claim against a foreign state only if proper service is effectuated and one of the FSIA's enumerated exceptions to sovereign immunity applies to that claim. The Court considers below whether each of these necessary conditions has been met with respect to the Iranian sovereign defendants.

A. Service of Process

Section 1608 of the FSIA lists the procedures governing service of process upon a foreign state or a political subdivision, agency, or instrumentality thereof. See Fed. R. Civ. P. 4(j). Under this section, the methods available for proper service upon foreign states and political subdivisions differ from those available for service upon agencies and instrumentalities. See 28 U.S.C. § 1603(a) ("A 'foreign state,' except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b)."); id. § 1608. The D.C. Circuit has developed a "categorical approach" to distinguishing between a foreign state and agencies and instrumentalities for purposes of the FSIA's service-of-process provisions: "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) (citing Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 149-50 (D.C. Cir. 1994)). This Court has previously held that, pursuant to this core-functions test, both MOIS and the Revolutionary Guards must be treated as the foreign state itself. See Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 274-75 (D.D.C. 2005) (MOIS); Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 117 (D.D.C. 2005) (Revolutionary Guards).

There are four methods for serving process upon a foreign state, and they are listed in § 1608(a) in order of descending preference. The preferred method of service against Iran is found in § 1608(a)(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, 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.; see also Sisso v. Islamic Republic of Iran, 448 F. Supp. 2d 76, 83 (D.D.C. 2006). In accordance with this provision, and for each sovereign defendant, the Clerk of this Court sent a copy of the required documents to the Ministry of Foreign Affairs via registered mail on July 8, 2005. See Docket Entry No. 15. The Ministry refused these documents. See Docket Entry No. 12 (Dec. 15, 2005).

Having failed to complete service against the Iranian sovereign defendants through the preferred method, Nikbin resorted to the procedures described in § 1608(a)(4), which provides for service "through diplomatic channels to the foreign state." On March 20, 2006, the Clerk of this Court dispatched to the State Department two copies of the required documents for each sovereign defendant. See Docket Entry No. 16 (Mar. 27, 2006). The State Department then transmitted these documents to the U.S. Interests Section of the Swiss Embassy in Tehran, which in turn delivered the documents to the Iranian Ministry of Foreign Affairs under cover of diplomatic notes on May 17, 2006. See Letter from William P. Fritzlen, Attorney Adviser, Office of Policy Review & Interagency Liaison, U.S. Dep't of State, to Nancy Mayer-Whittingham, Clerk, U.S. District Court for the District of Columbia (July 5, 2005), Docket Entry No. 23 ("State Department Letter"). The State Department filed certified copies of these diplomatic notes with the Clerk of the Court. See id. Service is therefore deemed to have been made on the three sovereign defendants on May 17, 2006. See § 1608(c)(1).

Because plaintiffs have properly effected service under ยง 1608, this Court may exercise personal jurisdiction over the sovereign defendants "for every claim over which the court has subject matter jurisdiction." Price, 294 ...


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