Case of the Day: Azadeh v. Iran

The case of the day is Azadeh v. Government of the Islamic Republic of Iran (D.D.C. 2018). Asfaneh Azadeh sued the Iranian government, asserting she was wrongfully imprisoned for months and was tortured in prison. She served process via diplomatic channels under 28 U.S.C. § 1608(a)(4), without first attempting service on the Iranian foreign ministry under 28 U.S.C. § 1608(a)(3). The court’s guidebook for service abroad seemed to permit this, saying:

The countries of Iran and Iraq have not objected to service by mail. However, many attempts at service by mail or courier are unsuccessful. Therefore, it is okay for an attorney to request service directly through diplomatic channels (28 U.S.C. § 1608(a)(4)) without attempting service under any other provision first.

This, of course, is terrible advice—the law requires plaintiffs to try the applicable methods of service under § 1608(a) in a particular order. I am of two minds about the practice in some courts for the clerk’s office to have official guidance available for litigants on service abroad, and in particular on service on foreign sovereigns. On the one hand, it can be useful to understand the clerk’s procedures for complying with FRCP 4(f)(2)(C)(ii), a rule that allows service abroad by mail if the clerk addresses and sends the mail. The clerk can give practical guidance on the ministerial issues involved. But the DDC guide at issue in today’s case clearly crosses the line, in my view, into providing legal advice, which ordinarily clerk’s offices are very good about refusing to do.

The magistrate judge had recommended granting Azadeh’s motion for a default judgment, but because of the invalid service, the judge properly ruled that the motion had to be denied without prejudice. There was a real possibility of prejudice to Azadeh, since she was up against a deadline to make a claim to the US government fund set up to compensate victims of state-sponsored terrorism, and the judge recommended that the special master administering the fund grant relief from the deadline in the circumstances, but a recommendation was all he had the power to give.

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