The case of the day is Kinyua v. Republic of Sudan (D.D.C. 2018). The case arose out of the bombing of the US embassies in Kenya and Tanzania in 1998. Since 2001, victims and their families had been suing Iran and Sudan, state sponsors of the terrorist attacks, under the FSIA’s state-sponsored terrorism exception to the rule of foreign sovereign immunity.

The first round of cases resulted in default judgment against Sudan and Iran. Kinyua and others then sued, bringing similar claims. By that time, Sudan, which had defaulted earlier, was again participating in the FSIA cases against it. It moved to dismiss the action on the grounds that it was barred by the statute of limitations. The terrorism exception requires actions to be brought by 2006 or within ten years after the claim arises. 28 U.S.C. § 1605A(b). The court granted the motion, thus ending the case against Sudan. The plaintiffs then sought default judgments against Iran.

It was clear that the case was not timely. But the interesting question in the case was whether the court should consider the timeliness of the action at all. In an ordinary case the statute of limitations is an affirmative defense that is waived if not pleaded. The terrorism exception’s statute of limitations is not jurisdictional, and so there is no reason that the court had to consider it. The judge reasoned that while there is no requirement to consider such an issue sua sponte, it might be appropriate to raise it sponte in “special circumstances.” The judge noted the comity considerations particular to FSIA cases, and he noted that in FSIA cases, unlike ordinary cases, the court has an independent duty to examine the merits of the case before entering a default judgment. Finally, he observed a practical need to police plaintiffs, who could act strategically by waiting for other plaintiffs to obtain default judgments against a foreign sovereign and then bring a claim many years after the fact.

Thus the court denied the motion for a default judgment and dismissed the action with prejudice.