Sheikh v. Republic of the Sudan, Civil Action No. 14–2090 (JDB)

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 308 F.Supp.3d 46
• Docket Number: Civil Action No. 14–2090 (JDB), Civil Action No. 14–2118 (JDB), Civil Action No. 15–951 (JDB)
• Parties: Nasrin Akhtar SHEIKH, et al., Plaintiffs, v. REPUBLIC OF the SUDAN, et al., Defendants. Geoffrey Githui Kinyua, et al., Plaintiffs, v. Republic of the Sudan, et al., Defendants. Caleb Ndeda Chogo, et al., Plaintiffs, v. Republic of the Sudan, et al., Defendants.
• Decision Date: 30 March 2018

308 F.Supp.3d 46

Nasrin Akhtar SHEIKH, et al., Plaintiffs,
v.
REPUBLIC OF the SUDAN, et al., Defendants.

Geoffrey Githui Kinyua, et al., Plaintiffs,
v.
Republic of the Sudan, et al., Defendants.

Caleb Ndeda Chogo, et al., Plaintiffs,
v.
Republic of the Sudan, et al., Defendants.

Civil Action No. 14–2090 (JDB)
Civil Action No. 14–2118 (JDB)
Civil Action No. 15–951 (JDB)

United States District Court, District of Columbia.

Signed March 30, 2018

308 F.Supp.3d 48

Daniel Sage Ward, Ward & Berry, PLLC, Washington, DC, Milin Chun, Pro Hac Vice, Raymond P. Boucher, Pro Hac Vice, Boucher, LLP, Woodland Hills, CA, Nazareth M. Haysbert, Pro Hac Vice, Haysbert Moultrie, LLP, Los Angeles, CA, 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 all three of the above-captioned cases, in which plaintiffs seek judgments against Iran for supporting al Qaeda's 1998 U.S. embassy bombings in East Africa. 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 all three cases.

I. BACKGROUND

On August 7, 1998, two truck bombs detonated outside the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombs killed more than two hundred people and injured thousands more. Beginning in 2001, several groups of plaintiffs began to sue Iran and Sudan, alleging that they had provided material support to the al Qaeda terrorists who had carried out the attacks. (The Court will refer to these suits collectively as the "Owens cases.") 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

After initially defending in the first of the Owens cases, Sudan defaulted. Iran, meanwhile, never appeared, and so also defaulted. Following an ex parte hearing under 28 U.S.C. § 1608(e), the Court concluded that neither country was immune from suit, and that both were liable to the victims of the bombings. Owens v. Republic of Sudan, 826 F.Supp.2d 128, 157 (D.D.C. 2011). The Court then referred the Owens cases to a number of special masters, who spent the next several years assessing what damages each of the hundreds of individual plaintiffs should be

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awarded. Between March and October 2014, this Court entered final judgments in the Owens cases, awarding a total of over $10 billion in compensatory and punitive damages. On appeal by Sudan—which sought to reenter the cases after judgments were entered—the D.C. Circuit affirmed most of this Court's judgments against Sudan, but vacated the punitive damages award and certified a question of District of Columbia law to the D.C. Court of Appeals. Owens v. Republic of Sudan, 864 F.3d 751, 825 (D.C. Cir. 2017). Because Iran never appeared, the judgments against it were not appealed; thus, the Court's 2014 decisions remain final as to Iran.

The three instant cases are nearly identical to the Owens cases, but were filed more than thirteen years later, in December 2014 (Sheikh and Kinyua ) and June 2015 (Chogo ). According to the allegations in the complaints, which the Court for now assumes are true, plaintiffs Farhat Mahmood Sheikh, Moses Magothe Kinyua, and Caleb Ndeda Chogo were victims of the Nairobi embassy bombing. Sheikh worked for the U.S. government and was killed in the blast. Compl. [Sheikh ECF No. 1] ¶ 9. Sheikh's estate, joined by his widow and children (all British citizens), alleged that Sudan and Iran were responsible for the bombing and are liable for Sheikh's death, his family's emotional distress, and their loss of Sheikh's society. Id. ¶¶ 9–22, 70–85. Kinyua also worked for the U.S. government and was killed in the blast. Compl. [Kinyua ECF No. 1] ¶ 9. Kinyua's brothers, sisters, and informally adopted son (all Kenyan citizens) alleged that Sudan and Iran were responsible for the bombing and are liable for their emotional distress and loss of Kinyua's society. Id. ¶¶ 9–24, 74–77. Chogo likewise worked for the U.S. government and was injured in the attack. Compl. [Chogo ECF No. 1] ¶ 9. He and forty-seven other alleged victims bring suit on their own behalf, along with ten family members of other alleged victims, alleging that Sudan and Iran were responsible for the bombing and are liable for assault and battery, emotional distress, aiding and abetting terrorism, and civil conspiracy. Id. ¶¶ 9–66, 69–75, 150–168.

By the time plaintiffs filed these cases, Sudan had begun participating in the various FSIA suits against it. After learning of the Sheikh and Kinya suits, Sudan moved to dismiss them both as untimely. The Court granted Sudan's motion. See Sheikh v. Republic of Sudan, 172 F.Supp.3d 124, 132 (D.D.C. 2016).² Iran, by contrast, has never appeared in any of the cases arising out of these bombings, including these three. The Court asked all three sets of plaintiffs to show cause why their claims against Iran should not also be dismissed as untimely, see Order [Chogo ECF No. 11]; Order [Kinyua ECF No. 29]; Order [Sheikh ECF No. 30], and plaintiffs in all three cases responded, see Mem. Per Court's Mar. 24, 2016 Order to Show Cause Why This Action Should Not Be Dismissed ("Chogo Mem.") [Chogo ECF No. 12]; Pls.' Supp. Br. Regarding Why Pls.' Claims Against the Republic of Iran Should Not Be Dismissed ("Kinyua Mem.") [Kinyua ECF No. 31]; Mem. Per Court's Mar. 24, 2016 Order ("Sheikh Mem.") [Sheikh ECF No. 32]. Plaintiffs have also filed default judgment motions against Iran and the Iranian Ministry of Information and Security. See Pls.' Mot. for Judicial Notice and for Entry of Default J. Against Iranian Defs. [Chogo ECF No. 24] [Kinyua ECF No. 27] [Sheikh ECF No. 28]. Those motions are fully briefed and ripe for joint decision, the issues in all three cases being effectively identical.

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II. DISCUSSION

Before it can reach 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

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). The three actions were filed in December 2014 and June 2015, long after the April 24, 2006 deadline. Moreover, "the plaintiffs' causes of action arose on August 7, 1998, the date of the embassy bombings"; therefore, "the last day to file a new action under § 1605A was August 7, 2008, ten years after the bombings." Owens, 864 F.3d at 800. Because plaintiffs did not file these actions until more than six years after that deadline, none were timely under § 1605A(b).

Nor were any of the cases 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 in all three actions point to the Owens cases as the ones to which these actions are "related." See Sheikh, 172 F.Supp.3d at 131 ; Chogo Mem. at 11. The instant cases arise out of the same incident as did the Owens cases: the 1998 embassy bombings in Kenya and Tanzania. However, the Court has already...