Case of the Day: Shoham v. Islamic Republic of Iran

The case of the day is Shoham v. Islamic Republic of Iran (D.D.C. 2013). Batsheva Shoham alleged that while she was driving in the West Bank with her infant son, she was ambushed by members of the Al-Aqsa Martyrs Brigade, a terrorist group. One of the terrorists threw a stone that struck her son, killing him. In 2011, Mrs. Shoham and victims of similar attacks sued Iran, Syria, and others in the District of Columbia. Judge Collyer severed Mrs. Shoham’s claims from the action and granted her leave to refile with a new caption, noting that the summonses would have to be reissued and that the amended complaint would have to be served.

Mrs. Shoham then filed a new action, with a complaint identical to the complaint in the prior action, but with a new caption. The remaining plaintiffs in the first case managed to serve Iran and its instrumentalities with process via diplomatic channels. After the court ordered Mrs. Shoham to show cause why her new action should not be dismissed for want of prosecution (as she had filed no return of service after six months), Mrs. Shoham moved for entry of default judgment on the theory that despite Judge Collyer’s order, service of the original complaint in the first action sufficed. She cited precedents for the proposition that service of an amended complaint under the FSIA after a default by the foreign state is necesssary only if the amendments are substantial.

Judge Lamberth distinguished these cases on the grounds that they involved the service of an amended complaint in a single action, not, as was the case here, service of a complaint in an entirely new civil action. It hardly matters, from the jurisdictional point of view, whether the complaint in the second action was similar or even identical to the complaint in the first. However, the judge did give her additional time to effect service, and he blasted the government for the high fees it charges to effect service via diplomatic channels under the FSIA.

Mrs. Shoham also sought leave to serve Bank Melli, Bank Saderat, and Iran Air in Austrialia, Canada, France, Italy, Hong Kong, the Netherlands, Sweden, and the UK, by registered mail, return receipt requested. The judge granted the request. All three defendants are agencies or instrumentalities of Iran for purposes of the FSIA. Therefore, service was governed by 28 U.S.C. § 1608(b). Mrs. Shhoam had been unable to make service by registered mail at the defendants’ headquarters in Iran, and therefore her request was proper under § 1608(b)(3)(C), which permits service by delivery of the documents “as directed by order of the court consistent with the law of the place where service is to be made” when other means of service have failed. All of the countries named are parties to the Hague Service Convention, and none has objected to service by postal channels under Article 10(a).1 The judge held, correctly, that service by mail under Article 10(a) despite the minority view to the contrary.

Note that § 1608(b)(3)(C) asks whether the service is “consistent with the law of the place where service is to be made.” Is there an issue about whether service by postal channels is consistent with the law of the state where service is to be made, particularly if in a particular state the Convention is not self-executing? The decision does not raise this issue, and I simply pose it as a question.

  1. Australia requires that such service be by registered mail, return receipt requested, and I refer readers to one of my many discussions with Antonin Pribetić on the issue of service by mail in Canada.

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