United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
defendant refuses on principle to appear in court, things
usually do not end well for the defendant. But suppose we add
two complicating factors. First, the lawsuit is clearly
untimely under governing law. And second, the defendant is
the Islamic Republic of Iran. Should a court rule against
Iran in absentia? Or should the court consider the suit's
timeliness on its own initiative? That is the question before
this Court in all three of the above-captioned cases, in
which plaintiffs seek judgments against Iran for supporting
al Qaeda's 1998 U.S. embassy bombings in East Africa.
Generally, it is up to the defendant to raise a timeliness
defense. However, the Court finds that respect for other
sovereign nations, the Court's duty to independently
assess claims of state-sponsored terrorism, and the practical
effect of ignoring the statutory deadline weigh against
granting default judgments against Iran on plainly untimely
claims. Hence, for the reasons explained below, the Court
will set aside the defaults and dismiss the claims against
Iran in all three cases.
August 7, 1998, two truck bombs detonated outside the U.S.
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The
bombs killed more than two hundred people and injured
thousands more. Beginning in 2001, several groups of
plaintiffs began to sue Iran and Sudan, alleging that they
had provided material support to the al Qaeda terrorists who
had carried out the attacks. (The Court will refer to these
suits collectively as the “Owens
cases.”) The plaintiffs relied on the “terrorism
exception” embedded in the Foreign Sovereign Immunities
Act (FSIA), 28 U.S.C. §§ 1602-11, which eliminates
immunity in cases seeking damages against designated state
sponsors of terrorism for (among other things) providing
“material support or resources” for acts of
“extrajudicial killing.” 28 U.S.C. §
initially defending in the first of the Owens cases,
Sudan defaulted. Iran, meanwhile, never appeared, and so also
defaulted. Following an ex parte hearing under 28 U.S.C.
§ 1608(e), the Court concluded that neither country was
immune from suit, and that both were liable to the victims of
the bombings. Owens v. Republic of Sudan, 826
F.Supp.2d 128, 157 (D.D.C. 2011). The Court then referred the
Owens cases to a number of special masters, who
spent the next several years assessing what damages each of
the hundreds of individual plaintiffs should be awarded.
March and October 2014, this Court entered final judgments in
the Owens cases, awarding a total of over $10
billion in compensatory and punitive damages. On appeal by
Sudan- which sought to reenter the cases after judgments were
entered-the D.C. Circuit affirmed most of this Court's
judgments against Sudan, but vacated the punitive damages
award and certified a question of District of Columbia law to
the D.C. Court of Appeals. Owens v. Republic of
Sudan, 864 F.3d 751, 825 (D.C. Cir. 2017). Because Iran
never appeared, the judgments against it were not appealed;
thus, the Court's 2014 decisions remain final as to Iran.
three instant cases are nearly identical to the
Owens cases, but were filed more than thirteen years
later, in December 2014 (Sheikh and Kinyua)
and June 2015 (Chogo). According to the allegations
in the complaints, which the Court for now assumes are true,
plaintiffs Farhat Mahmood Sheikh, Moses Magothe Kinyua, and
Caleb Ndeda Chogo were victims of the Nairobi embassy
bombing. Sheikh worked for the U.S. government and was killed
in the blast. Compl. [Sheikh ECF No. 1] ¶ 9.
Sheikh's estate, joined by his widow and children (all
British citizens), alleged that Sudan and Iran were
responsible for the bombing and are liable for Sheikh's
death, his family's emotional distress, and their loss of
Sheikh's society. Id. ¶¶ 9-22, 70-85.
Kinyua also worked for the U.S. government and was killed in
the blast. Compl. [Kinyua ECF No. 1] ¶ 9.
Kinyua's brothers, sisters, and informally adopted son
(all Kenyan citizens) alleged that Sudan and Iran were
responsible for the bombing and are liable for their
emotional distress and loss of Kinyua's society.
Id. ¶¶ 9-24, 74-77. Chogo likewise worked
for the U.S. government and was injured in the attack. Compl.
[Chogo ECF No. 1] ¶ 9. He and forty-seven other
alleged victims bring suit on their own behalf, along with
ten family members of other alleged victims, alleging that
Sudan and Iran were responsible for the bombing and are
liable for assault and battery, emotional distress, aiding
and abetting terrorism, and civil conspiracy. Id.
¶¶ 9-66, 69-75, 150- 168.
time plaintiffs filed these cases, Sudan had begun
participating in the various FSIA suits against it. After
learning of the Sheikh and Kinya suits,
Sudan moved to dismiss them both as untimely. The Court
granted Sudan's motion. See Sheikh v. Republic of
Sudan, 172 F.Supp.3d 124, 132 (D.D.C.
2016). Iran, by contrast, has never appeared in
any of the cases arising out of these bombings, including
these three. The Court asked all three sets of plaintiffs to
show cause why their claims against Iran should not also be
dismissed as untimely, see Order [Chogo ECF
No. 11]; Order [Kinyua ECF No. 29]; Order
[Sheikh ECF No. 30], and plaintiffs in all three
cases responded, see Mem. Per Court's Mar. 24,
2016 Order to Show Cause Why This Action Should Not Be
Dismissed (“Chogo Mem.”) [Chogo
ECF No. 12]; Pls.' Supp. Br. Regarding Why Pls.'
Claims Against the Republic of Iran Should Not Be Dismissed
(“Kinyua Mem.”) [Kinyua ECF No.
31]; Mem. Per Court's Mar. 24, 2016 Order
(“Sheikh Mem.”) [Sheikh ECF No.
32]. Plaintiffs have also filed default judgment motions
against Iran and the Iranian Ministry of Information and
Security. See Pls.' Mot. for Judicial Notice and
for Entry of Default J. Against Iranian Defs. [Chogo
ECF No. 24] [Kinyua ECF No. 27] [Sheikh ECF
No. 28]. Those motions are fully briefed and ripe for joint
decision, the issues in all three cases being effectively
it can reach the merits of plaintiffs' default judgment
motions, the Court must determine whether it will consider
the timeliness of their lawsuits. The statute of limitations
for claims brought under the terrorism exception to foreign
sovereign immunity is codified at 28 U.S.C. § 1605A(b).
That provision reads, in relevant part:
An action may be brought or maintained under this section if
the action is commenced, or a related action was commenced
under section 1605(a)(7) (before the date of the enactment of
this section) . . . not later than the latter of-
(1) 10 years after April 24, 1996; or
(2) 10 years after the date on which the
cause of action arose.
28 U.S.C. § 1605A(b). Thus, an action is timely if
either the action itself is timely or a “related
action” was timely. If the statute of limitations has
run, but the defendant has not entered an appearance, the
Court must ...