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.