Maalouf v. Islamic Republic of Iran, Civil Action No. 16–280 (JDB)

• Decision Date: 30 March 2018
• Docket Number: Civil Action No. 16–1507 (JDB),Civil Action No. 16–280 (JDB)
• Citation: 306 F.Supp.3d 203
• Parties: Henri MAALOUF, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN and Iranian Ministry of Information and Security, Defendants. Kenneth Mark Salazar and Kevin Michael Salazar, Plaintiffs, v. Islamic Republic of Iran, Defendant.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 203

Henri MAALOUF, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN and Iranian Ministry of Information and Security, Defendants.

Kenneth Mark Salazar and Kevin Michael Salazar, Plaintiffs,

v.Islamic Republic of Iran, Defendant.

Civil Action No. 16–280 (JDB)

Civil Action No. 16–1507 (JDB)

United States District Court, District of Columbia.

Signed March 30, 2018

Steven Marc Schneebaum, Steven M. Schneebaum, P.C., Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

If a defendant refuses on principle to appear in court, things usually do not end well for the defendant. But suppose we add two complicating factors. First, the lawsuit is clearly untimely under governing law. And second, the defendant is the Islamic Republic of Iran. Should a court rule against Iran in absentia? Or should the court consider the suit's timeliness on its own initiative? That is the question before this Court in the above-captioned cases, in which plaintiffs seek judgments against Iran for supporting the 1983 and 1984 U.S. embassy bombings in Beirut. Generally, it is up to the defendant to raise a timeliness defense. However, the Court finds that respect for other sovereign nations, the Court's duty to independently assess claims of state-sponsored terrorism, and the practical effect of ignoring the statutory deadline weigh against granting default judgments against Iran on plainly untimely claims. Hence, for the reasons explained below, the Court will set aside the defaults and dismiss the claims against Iran in both cases.

I. BACKGROUND

On April 18, 1983, a car bomb exploded at the U.S. embassy in Beirut, Lebanon, killing sixty-three people and injuring over one hundred more. Over a year later, on September 20, 1984, a second bomb exploded at the U.S. embassy annex in East Beirut, killing at least eleven people and injuring over fifty. In 2002 and 2008, two sets of plaintiffs timely filed cases on behalf of (among others) the same bombing victims who are at the center of the two instant cases. See Estate of Doe v. Islamic Republic of Iran, 808 F.Supp.2d 1, 16–17 & n.6 (D.D.C. 2011) ; Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 107 (D.D.C. 2005) ; Am. Compl. [Maalouf ECF No. 13] ¶¶ 2–3. The plaintiffs relied on the "terrorism exception" embedded in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 – 11, which eliminates immunity in cases seeking damages against designated state sponsors of terrorism for (among other things) providing "material support or resources" for acts of "extrajudicial killing." 28 U.S.C. § 1605(a)(7) (2006).¹

Iran, though served process, never appeared in either Salazar or Doe, and so defaulted. Following ex parte hearings under 28 U.S.C. § 1608(e), the Court concluded that Iran was not immune from suit in either case, and that Iran was liable to the victims of the 1983 and 1984 bombings. Doe, 808 F.Supp.2d at 23–24 ; Salazar, 370 F.Supp.2d at 117. This Court entered final judgments in the Salazar and Doe cases in May 2005 and May 2013, respectively, awarding a total of $18.3 million in compensatory damages in the former and over $8.4 billion in compensatory and punitive damages in the latter. See Estate of Doe v. Islamic Republic of Iran, 943 F.Supp.2d 180, 183–84 (D.D.C. 2013) ; Order, Salazar, No. 1:02–cv–0558 [ECF No. 27]. Because Iran never appeared, the judgments against it were not appealed.

The current two cases are nearly identical to Salazar and Doe, but are brought by different family members of each bombing victim. They were filed in February 2016 (Maalouf ) and July 2016 (Salazar )—eight and fourteen years, respectively, after their predecessor suits were filed. According to the allegations in the complaints, which the Court for now assumes are true, plaintiff Henri Maalouf (a Lebanese citizen) is the older brother of Edward Maalouf, a security guard killed in the embassy annex bombing in 1984. Maalouf Am. Compl. ¶ 9. He was unaware of the Doe suit because he had lost contact with his family, and now—along with the estates of his sister and parents—sues Iran and the Iranian Ministry of Information and Security for causing Edward's death, for loss of solatium, and for intentional infliction of emotional distress. Id. ¶¶ 4, 10–12, 28–40. Plaintiffs Kenneth and Kevin Salazar (both American citizens) are the twin sons of Mark Salazar, a staff sergeant killed in the 1983 embassy bombing. Compl. [Salazar ECF No. 1] ¶ 11. They, likewise, were unaware of the Salazar suit: they allege that Donna Salazar, the plaintiff in that suit, claimed that she was Mark's widow when the two were not legally married, and that she did not inform Kenneth and Kevin of her case. Id. ¶¶ 3–7. They now sue Iran for causing Mark's death and for intentional infliction of emotional distress. Id. ¶¶ 26–33.

Iran has never appeared in any of the cases arising out of these bombings, including these two. Plaintiffs have filed default judgment motions against defendants in both suits, and argued in those motions that judgment should not be withheld because of the statute of limitations. See Pls.' Mot. for Default J. ("Maalouf Mem.") [Maalouf ECF No. 31] at 6–8; Pls.' Mot. for Default J. ("Salazar Mot.") [Salazar ECF No. 13] at 8–10.² Those motions are fully briefed and ripe for joint decision, the issues in both being effectively identical.

II. DISCUSSION

Before reaching the merits of plaintiffs' default judgment motions, the Court must determine whether it will consider the timeliness of their lawsuits.³ The statute of limitations for claims brought under the terrorism exception to foreign sovereign immunity is codified at 28 U.S.C. § 1605A(b). That provision reads, in relevant part:

An action may be brought or maintained under this section if the action is commenced, or a related action was commenced under section 1605(a)(7) (before the date of the enactment of this section) ... not later than the latter of—

(1) 10 years after April 24, 1996; or

(2) 10 years after the date on which the cause of action arose.

28 U.S.C. § 1605A(b). Thus, an action is timely if either the action itself is timely or a "related action" was timely. If the statute of limitations has run, but the defendant has not entered an appearance, the Court must decide whether to raise the timeliness issue sua sponte.

A. These Actions Were Not Timely

Plaintiffs do not claim that their suits are timely. Indeed, Maalouf admits that his action falls outside of the statute of limitations. Maalouf Mem. at 2.⁴ This fact is equally true of the Salazar suit.⁵ To be timely in their own right, these actions must have been commenced not later than either (1) April 24, 2006, or (2) "10 years after the date on which the cause of action arose." 28 U.S.C. § 1605A(b). These actions were filed in 2016, long after the April 24, 2006 deadline. Moreover, "the plaintiffs' causes of action arose on ... the date[s] of the embassy bombings"; therefore, "the last day to file a new action under § 1605A was" April 18, 1993 in Salazar and September 20, 1994 in Maalouf, "ten years after the bombings." Owens v. Republic of Sudan, 864 F.3d 751, 800 (D.C. Cir. 2017). Since plaintiffs did not file these suits until more than two decades after those deadlines, neither is timely under § 1605A(b).

Nor was either case related to another timely action. The FSIA allows plaintiffs to hitch their wagons to another suit that was timely filed under the predecessor provisions to the NDAA if the cases "aris[e] out of the same act or incident," and if plaintiffs filed "within 60 days of the entry of judgment in the original action or of the enactment of the NDAA, whichever was later." Owens, 864 F.3d at 765 (quoting NDAA § 1083(c)(3) ). Plaintiffs point to Salazar and Doe as the cases from which the Court should draw for its liability findings in the current Salazar and Maalouf actions, respectively—though neither set of plaintiffs argues that these cases are "related" to those for statute of limitations purposes. See Maalouf Mot. at 2–3; Salazar Mot. at 2. Both Salazar actions arose from the 1983 embassy bombing, and Doe and Maalouf both arose from the 1984 bombing. However, plaintiffs here did not file within sixty days of the judgments in those earlier cases. The Salazar plaintiffs filed eleven years after entry of judgment in Salazar, and the Maalouf plaintiffs filed nearly three years after entry of judgment in Doe. See Maalouf Mem. at 2 (conceding that the suit was filed too late to be "related" to Doe ). Moreover, the Doe case was itself brought under the NDAA, not under the prior version of the terrorism exception as the statute of limitations requires. See Doe, 808 F.Supp.2d at 16–17.

Because neither of the instant cases is timely in its own right, and neither is related to a timely-filed action, both run afoul of the FSIA's statute of limitations. The question remains: what, if anything, should be done about that?

B. The Court Will Exercise Its Discretion to Dismiss the Claims Against Iran

Statutes of limitations are affirmative defenses, meaning that normally a defendant must explicitly raise the issue early on. See Fed. R. Civ. P. 8(c). If the defendant does not do so, then—in the ordinary case—the defense is forfeited. See Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Because the FSIA's statute of limitations does not implicate the Court's jurisdiction,⁶ the Court is "under no obligation to raise the time bar sua sponte." Day, 547 U.S. at 205, 126 S.Ct. 1675. However, "courts have the discretion ... to raise on their own initiative certain nonjurisdictional barriers to suit," including statutes of limitations. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 277 n.14, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). In the mine run of cases, courts should refrain from exercising this discretion, relying on the adversarial process to raise any non-jurisdictional issues in dispute. See Eriline Co. S.A. v....