The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
After a three-day evidentiary hearing, this Court entered default judgment imposing liability and damages under 28 U.S.C. § 1605A, the exception in the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq., that permits suits against state sponsors of terrorism. The Syrian Arab Republic ("Syria") had not answered or otherwise defended or appeared, and the Court entered default judgment against Syria for acts that supported and facilitated the kidnapping, torture, and murder of Americans Olin Eugene Armstrong and Jack L. Hensley. See Sept. 26, 2008 Mem. Op. & Order [Dkt. ## 42 & 43], published as Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008).
On October 24, 2008, Syria filed a notice of appeal and argued to the appellate court that service was never effected and jurisdiction over it had never been obtained. On February 23, 2009, on the Circuit Court's own motion, the appeal was placed "in abeyance pending the district court's decision whether it intends to vacate the default judgment or otherwise grant relief to Appellants." Order [Dkt. # 64]. Syria has filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(4) and (6), arguing that the default judgment should be vacated as void for lack of service and that other relief should be granted for various reasons, most importantly because Plaintiffs did not state or serve a claim under § 1605A and thus should be permitted to proceed only under the predecessor statute, 28 U.S.C. § 1605(a)(7). A hearing was held regarding these matters on August 13, 2009. As explained below, the Court will deny Syria's request to vacate judgment. Even so, the Court would grant other relief under Rule 60(b)(6) if the case were remanded.
On September 26, 2009, the Court issued a Memorandum Opinion and Order granting default judgment in favor of Plaintiffs against Syria in the amount of $412,909,587.00.*fn1 See Sept. 26, 2008 Mem. Op. & Order. The Court found liability under a federal cause of action pursuant to § 1605A:
[P]laintiffs have heretofore sued leaders of foreign states under the FSIA in their personal capacities, advancing claims based on the law of the U.S. State that is or was the domicile of the injured party or decedent. See, e.g., Dammarell v. Islamic Republic of Iran, No. 01-2224, 2005 WL 756090, at *1 (D.D.C. Mar. 29, 2005) (holding that where Iran was subject to suit under the state-sponsored terrorism exception to the FSIA, the law of the state of domicile of each of the plaintiffs (or the law of domicile of a decedent) provided the causes of action against the foreign state).
This construct no longer applies. Under § 1605A(c), U.S. citizens who are victims of state-sponsored terrorism can sue a responsible foreign state directly. Significantly, state law no longer controls the nature of the liability and damages that may be sought when it is a foreign government that is sued: Congress has provided the "specific source of law" for recovery. See Acree, 370 F.3d at 59.*fn2 By providing for a private right of action and by precisely enumerating the types of damages recoverable, Congress has eliminated the inconsistencies that arise in these cases when they are decided under state law. Compare Jackovich v. Gen. Adjustment Bureau, Inc., 326 N.W.2d 458, 464 (Mich. App.1982) (under Michigan law, exemplary damages are available but punitive damages are not) with Todd v. Byrd, 640 S.E.2d 652, 661 (Ga. App. 2006) (citing OCGA § 51-12-5.1(b), noting that punitive damages are available under Georgia law); compare 28 U.S.C. § 1605A(c) (providing for solatium damages under the FSIA) and M.C.L.A. § 600.2922(6) (wrongful death damages under Michigan law constitute damages for loss of society and companionship of the deceased) with Young Men's Christian Ass'n v. Bailey, 146 S.E.2d 324, 341 (Ga. App. 1965) (wrongful death action under Georgia law does not provide damages for grief of survivors) and Runyon v. District of Columbia, 463 F.2d 1319, 1322 (D.C. Cir. 1972) (under D.C. law, a plaintiff in a wrongful death action may not recover for grief); see Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 29-30 (D.D.C. 1998) (noting many differences in the law of solatium among the states). Sept. 26, 2008 Mem. Op. at 19-20. The Order issued with the Memorandum Opinion dismissed Plaintiffs' state law claims. Sept. 26, 2008 Order at 2.
The Court also found that service was made on Syria pursuant to 28 U.S.C. § 1608(a)(3) via international courier service. See Pls.' Mem. Regarding Service, filed Dec. 28, 2007 [Dkt. # 17]. Syria contends that no service was made.
Syria moves for relief under Federal Rule of Civil Procedure 60(b)(4) and (6). See Fed. R. Civ. P. 55(c) (if a default judgment has been entered, it may be set aside in accordance with Rule 60(b)). Rule 60(b) provides for motions for relief from a judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct; (4) void judgment; (5) satisfied, released, or discharged judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Rule 60(b)(6) is a catch-all provision that gives courts discretion to vacate or modify judgments when it is "appropriate to accomplish justice," Klapprott v. United States, 335 U.S. 601, 614-15 (1949), but it should be applied only in extraordinary circumstances, Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)). Relief under Rule 60(b)(6) "is not available unless the other clauses, (1) through (5), are inapplicable." Goland v. CIA, 607 F.2d 339, 372-73 (D.C. Cir. 1979).
The party seeking relief from judgment bears the burden of proof. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84 (1992); accord Mazengo v. Mzengi, 542 F. Supp. 2d 96, 100 n.3 (D.D.C. 2008). Further, the decision to set aside a default judgment is committed to the sound discretion of the trial court. Jackson v. Beech, 636 F.2d 831, 835 (1980). "Given the strong policies favoring the resolution of genuine disputes on their merits, however, an abuse of discretion in refusing to set aside a default judgment 'need not be glaring to justify reversal.'" Id. (quoting Keegel v. Key West & Carribean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980)). "Since a resolution on the merits is preferable to a judgment by default, a court should liberally allow relief under [Rule 60(b)]." Pulliam v. Pulliam, 478 F.2d 935, 936 (D.C. Cir. 1973).
When a Rule 60(b) motion is filed more than 10 days after judgment and an appeal is pending, the district court does not have jurisdiction to grant the Rule 60(b) motion, but it does have jurisdiction to deny it. LaRouche v. U.S. Dep't of Treasury, 112 F. Supp. 2d 48, 52 (D.D.C. 2000).
When a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue and "the District Court may consider the 60(b) motion, and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted."
Id. (quoting Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991)). Thus, a district court may issue an order on a Rule 60(b) motion during the pendency of an appeal either (1) denying the motion or (2) indicating that it would grant the motion if it had jurisdiction to do so.
Here, Syria filed its motion for relief from judgment more than 10 days after judgment and while appeal was pending. Further, the Circuit has invited the Court to indicate "whether it intends to vacate the default judgment or otherwise grant relief" to Syria. See Order [Dkt. # 64]. Accordingly, the Court may deny Syria's Rule 60(b) motion or it may indicate to the Circuit that it would, if the case were remanded, vacate the default or otherwise grant relief.
A court must consider three criteria in deciding whether to set aside a default judgment: whether the default was willful; whether setting aside the judgment would prejudice the plaintiff; and whether the alleged defense is meritorious. Jackson, 636 F.2d at 836. Syria contends that its default was not willful, that it could not have been because it was never served and it did not have notice of this suit. Syria also argues that it has meritorious defenses - that Plaintiffs' claims raise a non-justiciable political question, that the claims violate the United Nations Charter, that the claims are unconstitutional, and that it is entitled to other relief because it could not be held liable under a statute that came into effect after the default judgment hearing in this case.
Syria contends that the default judgment is void because Syria was never served. Before a court may exercise personal jurisdiction over a defendant, the procedural requirement of service must be satisfied. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 351 (1999). It is well-established that a judgment entered without personal jurisdiction over a defendant is void as to that defendant. Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987). "Since service of process is the means by which a court asserts jurisdiction to adjudicate the rights of a party, it is uniformly held that a judgment is void where the requirements for effective service have not been satisfied." Id.
Syria erroneously argues that Plaintiffs bear the burden of proving service and that Plaintiffs should be required to prove service beyond a reasonable doubt. Syria's Rule 60(b) Mot. [Dkt. # 66] at 3. Plaintiffs would bear the burden if service had been challenged before judgment, though such burden would have been by a preponderance of the evidence. See Koerner v. United States, 246 F.R.D. 45, 47 (D.D.C. 2007) (upon challenge to service, plaintiff bears the burden of proof); DP Env. Servs., Inc. v. Bertlesen, 834 F. Supp. 162, 164 (M.D.N.C. 1993) (plaintiff bears burden to show grounds for personal jurisdiction by a preponderance of the evidence). As noted above, ...