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Haim v. Islamic Republic of Iran

United States District Court, District of Columbia

November 5, 2012

Seth Charles (Klein) Ben HAIM, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

Page 72

David J. Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiffs.

MEMORANDUM AND ORDER REGARDING SERVICE

ROYCE C. LAMBERTH, Chief Judge.

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. Jewell 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, 999 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

Page 73

§ 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 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 ...


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