Case of the Day: Maalouf v. Iran

The case of the day is Maalouf v. Islamic Republic of Iran (D.D.C. 2018). The case arose out of the Beirut embassy bombings in the 1980s. Some plaintiffs brought claims against Iran in the early 2000s, and the courts held that Iran was not immune from suit in light of the terrorism exception to foreign sovereign immunity. Then Maalouf sued. While the earlier suits were timely under the statute of limitations the FSIA prescribes in such cases, Maalouf’s suit was plainly untimely. Iran did not appear in the case, and the question was whether the court should grant Maalouf’s motion for default judgment notwithstanding the evident limitations defense that Iran could have (would have?) asserted if it appeared.

The judge denied the motion for a default judgment and dismissed the case. The issue is difficult, because a statute of limitations is an affirmative defense that the defendant has the burden to plead and prove. When a foreign state defaults, it never asserts the defense, so why should the court consider it sua sponte? But on the other hand, courts have said they have discretion to consider affirmative defenses sua sponte in some cases. The question is really whether such consideration is warranted here, not whether it is permissible at all. The court focused on comity, on its role in independently reviewing the merits of FSIA claims on motions for default judgment, and on the plaintiff’s strategic decision to wait until other plaintiffs had succeeded and then to piggyback on their claims, even after such a long time had passed. All of this is reasonable, but I could imagine the case coming out the other way. Then, the focus would be on Iran’s strategic decision not to answer the case and on the general principle that we encourage defendants to participate in litigation by holding that they waive non-jurisdictional points they could have made had they answered the complaint.

3 responses to “Case of the Day: Maalouf v. Iran”

  1. […] The case of the day is Maalouf v. Iran (D.C. Cir. 2019). The cases arose out of the 1983 and 1984 bombings of US diplomatic missions in Beirut by Hizbullah and the 1998 bombings of the US embassies in Kenya and Tanzania by Al Qaeda. The Iranian government has been linked to all of the bombings, and the Sudanese government to the bombings in Africa. I wrote about one of the cases in the lower court, Kinyua v. Sudan, about a year ago, and about Maalouf itself in April 2018. […]

  2. Hi
    I am Henri Maalouf. My attorney withdrew from continuing the case and I had difficulty finding an attorney will continue. Therefore, I applied to be Pro Se and Judge Bates approved it. So I continued the case and won it. Now I have the order and the memorandum opinion. It must be noted as a success after 5 years struggle for a straight forward case. The merits of the case is simple. My brother was killed in the Iranian terrorist attack. My sisters were part of J. Doe case 08-cv-540 but I was excluded.
    So my sisters received 3 round payments and I have not. But I calimed and eventually won the case after 5 years.

    1. Thank you for this comment, Mr. Maalouf!

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