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.

Sudan appeared in the district court and moved to dismiss on the grounds that the actions were untimely. Iran did not appear. But on the plaintiffs’ motion for a default judgment, the court, sua sponte, considered whether the claims were timely, held they were not, and dismissed them. Iran appealed. The question in the case was whether a court has the power to raise the limitations defense sua sponte when a sovereign defendant fails to appear.

The gist of the decision is that Iran had forfeited the defense by failing to plead it, that except in very narrow circumstances not present here, courts lack the power to raise sua sponte affirmative defenses that a party has forfeited, and that there was no special rule of comity that required a different result in an FSIA case: if Congress wants to make such a rule, it can legislate. All of this seems basically plausible, and the opinion is interesting and worth your time. But rather than delve into the court’s reasoning, I want to comment on one twist in the case: both Sudan and Iran were defendants, and Sudan successfully raised limitations as a defense and obtained dismissal. This called to mind an old case called Frow v. de la Vega, 82 U.S. 552 (1872). I came across the case when I was a law clerk and have seen it every few years every since. The idea of the case is that if there are two defendants in a case, and one of them defaults, the court should not enter a judgment against the defaulting defendant until the case against the other defendant is decided on the merits, to avoid the risk of inconsistent judgments. It’s not precisely the same situation the court faced in Maalouf, but I wonder why the fact that another defendant had successfully raised the same issue wasn’t relevant to the court’s decision. It seems to me that the court’s rationale would be more compelling if Iran had been the only defendant. But where there is another defendant that raises the defense, and where the defense is meritorious, it doesn’t seem quite right to say that the court is acting sua sponte. It is just doing what seems obviously correct based on an issue that another party brought to its attention in the very same case. It’s true that ordinarily our courts wait for parties to bring issues to them for decision. But perhaps (I am not sure) the court made too much of that point here.