UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ESTATE OF YONADAV HIRSHFELD, et al., Plaintiffs

v. Civil Action No. 15-1082 (CKK)

ISLAMIC REPUBLIC OF IRAN, Defendant

MEMORANDUM OPINION AND ORDER (October 10, 2017)

Plaintiffs are the Estate, heirs, survivors, and immediate family members of Yonadav

Hirshfeld who bring this case under the Foreign Services Immunities Act (“FSIA”), 28 U.S.C. §

et seq., against Defendant Islamic Republic of Iran (“Iran”). Am. Compl. ¶ 1, ECF No. 7. Plaintiffs

allege that Iran and its agents materially supported and caused the death of Mr. Hirshfeld in a

terrorist shooting on March 6, 2008, while he was attending school at the Mercaz Harav Yeshiva

in Jerusalem, Israel. Id. Presently before the Court is Plaintiffs’ Response to this Court’s Order

of August 15, 2017 concerning Effectiveness of Service, ECF No. 26 (Pls.’ Mot.), which requests

that service on Defendant, the Islamic Republic of Iran, be deemed effective. This motion is

uncontested as Iran has failed to appear in this action to contest service, or otherwise, despite

Plaintiffs’ efforts to serve Defendant as mandated by the Court’s January 25, 2017 Order, ECF No.

19.

The FSIA instructs plaintiffs seeking relief under the statute to effectuate service upon a

foreign state or its political subdivision using one of four methods, set forth in descending order

of preference.

(a); Fed. R. Civ. P. 4(j)(1). First, plaintiff may effect service “by

1 delivery of a copy of the summons and complaint in accordance with any special arrangement for

service between the plaintiff and the foreign state or political subdivision.”

(a)(1). Second, “if no special arrangement exists,” service may be accomplished “by delivery

of a copy of the summons and complaint in accordance with an applicable convention on service

of judicial documents.”

(a)(2). Third, “if service cannot be made under

paragraphs (1) or (2),” plaintiff may:

[send] a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.

(a)(3). Fourth, if service cannot be made “within 30 days” of the third method,

service can be effectuated through the Department of State, which transmits the summons and

complaint to the foreign state via diplomatic channels.

(a)(4).

On December 8, 2015, Plaintiffs contacted the Clerk of Court requesting that service of

process be effected on Iran pursuant to section 1608(a)(4). They represented that service was not

feasible pursuant to sections 1608(a)(1) and (a)(2), as there is no special arrangement for service

between the United States and Iran, nor is service permitted on Iran pursuant to any applicable

convention on service of documents. Pls.’ Letter, ECF No. 8. On December 14, 2015, the Clerk

of the Court issued a Certificate of Mailing, indicating that two copies of the summons, Amended

Complaint, and notice of suit, along with a translation, were sent by certified mail to the U.S.

Department of State pursuant to

(a)(4). Cert. of Mailing, ECF No. 10. The Clerk

of the Court entered on the docket a letter from the U.S. Department of State and a diplomatic

note, indicating that the documents were delivered to the Iranian Ministry of Foreign Affairs on

January 31, 2016. Return of Service, ECF No. 11. On April 8, 2016, Plaintiffs filed an Affidavit

Requesting Foreign Mailing pursuant to

(a)(3). On April 14, 2016, the Clerk of

2 the Court filed a Certificate of Mailing, indicating that one copy of the summons, complaint, and

notice of suit, along with a translation, was sent by registered mail to the head to the ministry of

foreign affairs pursuant to

(a)(3), on April 12, 2016. Certificate of Mailing, ECF

No. 16.

On May 27, 2016, Plaintiffs sought for the Court to issue an order declaring that service

was effective. Pls.’ Mot. for Order Declaring Effectiveness of Service, ECF No. 17. On January

25, 2017, the Court denied Plaintiffs’ motion without prejudice, determining that service could be

attempted under section 1608(a)(4) only after plaintiffs attempt and fail to effect service within 30

days under 1608(a)(3). See Estate of Hirshfeld v. Islamic Republic of Iran,

(D.D.C. 2017). The Court determined that because Plaintiffs had not attempted service in the

sequence required under the clear language of the statute, they had failed to demonstrate “strict

adherence” to the terms of section 1608(a), as this Circuit has interpreted is required. See Barot v.

Embassy of Zambia,

(D.C. Cir. 2015) (“When serving a foreign sovereign, ‘strict

adherence to the terms of 1608(a) is required.’”) (quoting Transaero, Inc. v. La Fuerza Aerea

Boliviana,

(D.C. Cir. 1994)). The Court declined to accept Plaintiffs’ argument

that they had “substantially complied” with the requirements of the statute, and found that the plain

language of the statute controlled. Estate of Hirshfeld,

. The Court then

directed Plaintiffs to effectuate service on Defendant pursuant to

(a), to the extent

Plaintiffs sought to pursue their claims. On August 15, 2017, the Court entered an Order mandating

that Plaintiffs “file on or before September 11, 2017, a brief indicating the factual and legal basis

for their belief that service on Defendant has been successfully accomplished” and that it

“specifically address each of the subsections of

(a).” Minute Order, ECF No. 25.

3 On September 11, 2017, Plaintiffs timely filed the [26] Status Report Responding to the

Court Order of August 15, 2017, asserting that service on Iran had been perfected. In this instance,

the Court agrees that Plaintiffs cured the sequential defect described above, and have perfected

service on Iran. As an initial matter, “no special arrangements for service exist between Iran and

the plaintiffs, nor is Iran a party to any applicable international convention on service of judicial

documents.” Valore v. Islamic Republic of Iran,

(D.D.C. 2010); see also

Bluth v. Islamic Republic of Iran,

, 18 (D.D.C. 2016) (same). Accordingly,

Plaintiffs were permitted to attempt to serve Iran by mail pursuant to section 1608(a)(3). As section

1608(a)(3) requires, Plaintiffs have: (i) had the Clerk of Court dispatch; (ii) a copy of the summons,

complaint, and a notice of suit; (iii) all translated into Farsi, the official language of Iran; (iv) by

certified mail, which is a form of mail requiring a signed receipt, (v) to the Iranian Ministry of

Foreign Affairs. Request from Plaintiffs to Clerk, ECF No. 14; Certificate of Clerk, ECF No. 16.

Service under this method failed, as the certified mail package containing the service papers was

returned to the Court as undeliverable on September 8, 2016, and no receipt or certification of

delivery was received within 30 days of mailing. Unexecuted Returned Summons, ECF No. 18.

Accordingly, as service was not effectuated within 30 days under section 1608(a)(3),

Plaintiff was permitted to serve Defendant through diplomatic channels under section 1608(a)(4).

Plaintiff has complied with the dictates of that section, as they: (i) had the Clerk of the Court

dispatch; (ii) two copies of the summons and complaint and a notice of suit, (iii) along with a

translation into Farsi, the official language of Iran; (iii) by certified mail, which is a form of mail

requiring a signed receipt, (iv) to the U.S. Department of State. Affidavit Requesting Foreign

Mailing, ECF No. 20; Certificate of Clerk, ECF No. 22. In a letter to the Court dated May 4,

2017, the United States Department of State certified that diplomatic service had been

4 accomplished when the papers were transmitted on April 4, 2017, completing the requirements for

service under section 1608(a)(4). Return of Service, ECF No. 23. On the same day, the Iranian

Ministry of Foreign Affairs refused reception of the papers.

The Court agrees that Plaintiffs have now demonstrated “strict adherence to the terms of

1608(a).” Barot,

. Pursuant to §1608(c), service is perfected “in the case of service

under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic

note,” even though the Iranian Ministry of Foreign Affairs refused reception of the papers. See,

e.g., Valore, 700 F.2d at 70 (finding that plaintiffs properly served defendants under § 1608(a)(4)

upon completing its requirements even though Iran refused service). Accordingly, the Court agrees

that Plaintiff perfected service on the Defendant under section 1608(c) on April 4, 2017, the date

the Department of State indicated that the papers had been transmitted in the Diplomatic Note.

Return of Service, ECF No. 23.

For the foregoing reasons, on this 10th day of October, 2017, the Court GRANTS Plaintiffs’

Motion, which seeks to deem service effective pursuant to section 1608(a)(4). Accordingly, Iran

is deemed to have been served on April 4, 2017.

(c)(1).

Iran was required to answer or otherwise respond to the Amended Complaint by June 3,

2017.

(d) (“a foreign state shall serve an answer or other responsive pleading to

the complaint within sixty days after service has been made under this section”). Having failed to

do so, Plaintiffs rightfully moved for Default on June 7, 2017, and the Clerk entered Default against

Iran on June 9, 2017. Default, ECF No. 25.

5 Accordingly, concurrent with the filing of this Memorandum Opinion and Order, the Court

shall issue a Scheduling Order governing further proceedings in this matter in a default setting.

SO ORDERED.

___________/s/_______________ COLLEEN KOLLAR-KOTELLY United States District Judge

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