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Batsheva Shoham v. Islamic Republic of Iran

February 13, 2013

BATSHEVA SHOHAM
PLAINTIFF,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

This action was brought by Mrs. Batsheva Shoham against the Islamic Republic of Iran ("Iran"), the Syrian Arab Republic ("Syria"), and other defendants pursuant to the updated state-sponsored terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A. Mrs. Shoham now moves for entry of default against six defendants based on service of the complaint in Pilant v. Islamic Republic of Iran, 11-cv-1077 on those defendants. See Pl.'s Default Mot., ECF No. 14. She also moves for authorization of substitute service on three defendants outside of their home country of Iran. See Pl.'s Service Mot. ECF No. 15. Finally, she responds to Judge Jackson's Order to show cause why her case should not be dismissed for want of prosecution. Pl.'s Resp. to Order, ECF No. 17. For the reasons given below, the Court will DENY Mrs. Shoham's default motion, will GRANT her service motion, and will find that she has satisfied Judge Jackson's show cause order.

I. BACKGROUND

Mrs. Shoham alleges that she was driving in the West Bank with her five-month old son, Yehuda Shoham, when they were ambushed by members of the Al-Aqsa Martyrs Brigade, a terrorist group. Compl. ¶ 23, ECF No. 3. One of the terrorists' stones struck young Yehuda, causing a severe brain injury and, after a week of hospitalization, his death. Id. ¶ 24.

In 2011, Mrs. Shoham joined with victims of similar attacks and their families to bring an action against Iran, Syria, and other defendants under the FSIA's state-sponsored terrorism exception. See Compl., Pilant, ECF No. 3, (D.D.C. June 9, 2011). The Pilant plaintiffs successfully served defendant Bashar Al-Assad, President of Syria, via mail service. See Return of Service Affidavit, Pilant, ECF No. 30.

Judge Collyer severed Mrs. Shoham's claims from that action. Order ("Severance Order 1"), Pilant, Feb. 6, 2012, ECF No. 42; see also Order on Pl.'s Mot. for Clarification ("Severance Order 2"), Pilant, Feb. 28, 2012, ECF No. 45. Judge Collyer ordered that, in any new case filed by the severed plaintiffs, it would be required "that summonses be reissued and the new summonses and the amended complaint be served." Severance Order 1. The Judge granted to the severed plaintiffs, including Mrs. Shoham, "leave . . . to refile their claims with separate captions" and specified that "such new cases shall not be treated as related to the instant action." Severance Order 2.

Mrs. Shoham subsequently filed this action. Compl., ECF No. 3. Her new complaint is identical to the Pilant complaint except that it (1) bears a different caption, and (2) excludes facts and prayers for relief particular to other plaintiffs in Pilant. Compare Compl., with Compl., Pilant; see also Pl.'s Default Mot. 10--12 (showing that the two complaints are identical save for the aforementioned exclusions).

Meanwhile, service of the Pilant complaint was effected on four additional defendants through diplomatic channels: Iran, the Iranian Ministry of Information and Security ("MOIS"), Iran's Revolutionary Guards ("IRGC"), and the Al Quds Force ("al Quds"). See Return of Service Aff., Pilant, Aug. 13, 2012, ECF No. 48 (service effected June 24, 2012).

Six months after filing her complaint in this action, Mrs. Shoham had failed to provide proof of service of the complaint on any defendants. Judge Jackson ordered her to show cause why the case should not be dismissed for want of prosecution. See Show Cause Order, Oct. 15, 2012, ECF No. 13. Mrs. Shoham responded with the two filings before the Court, as well as a memorandum in response to the order. Pl.'s Default Mot.; Pl.'s Substitute Service Mot.; Pl.'s Response. The case was subsequently reassigned by consent to the undersigned judge. *fn1

II. MRS. SHOHAM IS NOT ENTITLED TO ENTRY OF DEFAULT BECAUSE DEFENDANTS HAVE NOT BEEN SERVED WITH THE COMPLAINT IN THIS ACTION

After Judge Collyer severed Mrs. Shoham's claims, she also ordered that in any new action filed after severance, "summonses be reissued and the new summonses and the amended complaint be served." Severance Order 1. Mrs. Shoham concedes that none of the defendants have been served with her new complaint in this action. See Pl.'s Default Mot. 12--13. Instead, she asks that the Court ignore Judge Collyer's order and deem service of process complete on six defendants-Iran, MOIS, IRGC, al Quds, Bashar Al-Assad and Syria*fn2 (hereinafter "Pilant-served defendants")-based on effective service of the Pilant complaint on these defendants. As explained below, the Court cannot grant this request.

"[P]ersonal jurisdiction is 'an essential element of the jurisdiction of a district court without which the court is powerless to proceed to an adjudication.'" Sierra Club v. TVA, 12-cv-1852, 2012 WL 5974034 at *1 (D.D.C. Nov. 29, 2012) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). "[B]efore a court may exercise personal jurisdiction over a defendant, there must be . . . a basis for the defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant." Id. (quoting Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)).

A court has personal jurisdiction over a foreign state defendant in a § 1605A action where the defendant has been served under 28 U.S.C. § 1608. World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1160 n.5 (D.C. Cir. 2002). Where a plaintiff serves a complaint on a foreign state defendant under the FSIA, the foreign state defaults, and then the plaintiff files an amended complaint, service of the new complaint is only necessary if the changes are "substantial." Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 20 (D.D.C. 2009); Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 46 (D.D.C. 2006); Dammarell v. Islamic Republic of Iran, 370 F. Supp. 2d 218, 255 (D.D.C. 2005). For example, in Belkin, Judge Friedman did not require plaintiffs to serve an amended complaint on foreign state defendants in default where the amended complaint merely restated the allegations from their original complaint under the updated state sponsor of terrorism exception § 1605A. Belkin, 667 F. Supp. 2d at 19--20. Similarly, in Blais, this Court did not require plaintiffs to serve an amended complaint on foreign state defendants in default where the amended complaint only served to "put the remaining defendants on notice that the claims sought by plaintiffs were grounded in state substantive law as well as in the federal statutory scheme." Blais, 459 F. Supp. 2d at 46. And, in Dammarrell, Judge Bates did not require plaintiffs to serve an amended complaint on foreign state defendants in default where the amended complaint did "little more than provide the particularity required" that plaintiffs must "identify a particular cause of action arising out of a specific source of law" other than the FSIA itself. Dammarrell, 370 F. Supp. 2d at 255, 222 (quoting Acree v. Republic of Iraq, 370 F.3d 41, 58 (D.C. Cir. 2004)).

Unlike Belkin, Blais, and Dammarrell, however, Mrs. Shoham is not amending a complaint in an existing action, but has filed a new and unrelated one in which defendants are not yet in default. Mrs. Shoham cites no case, and this Court is aware of none, in which a plaintiff was not required to ...


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