UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHAYA RACHEL PRZEWOZMAN, et al.,

Plaintiffs,

v. Civil Action No. 19-2601 (RDM)

THE ISLAMIC REPUBLIC OF IRAN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On May 5, 2019, terrorist groups launched hundreds of rockets and mortars from the

Gaza Strip into various locations in Israel. Dkt. 23-1 at 41. Tragically, one of the projectiles

killed Pinches Menachem Przewozman, a United States citizen living in Ashdod, a city on

Israel’s southern coast. Dkt. 23-3. Przewozman’s family and estate now bring this lawsuit. Dkt.

6 (Am. Compl.). Plaintiffs, eleven in all, allege that Hamas and the Palestinian Islamic Jihad

(“PIJ”) carried out the attack that killed Przewozman. Id. at 9–10 (Am. Compl. ¶¶ 33–36). They

further contend that Defendants, the Islamic Republic of Iran (“Iran”), the Iranian Ministry of

Information and Security (“MOIS”), and the Islamic Revolutionary Guard Corps (“IRGC”), have

for years provided financial and other assistance to Hamas and the PIJ, and that this support

aided the May 5 strike. Id. at 5–10 (Am. Compl. ¶¶ 20–36).1

1 Although the Court does not make any findings of fact at this time, the Court notes that the evidence Plaintiffs have submitted is concerned almost exclusively with the relationship between Hamas and Iran and says very little about what support Iran may or may not provide to the PIJ. See Dkt. 23-1; Dkt. 23-2; Dkt. 23-3. If Plaintiffs renew their motion for entry of a default judgment at a later date, they are encouraged to address this deficiency. Plaintiffs seek compensatory and punitive damages from Defendants, relying on the state-

sponsored terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§ 1605A(a), to establish subject-matter jurisdiction. Id. at 1–2 (Am. Compl. ¶ 1). The seven of

Plaintiffs (inclusive of Przewozman’s estate) who are United States citizens also rely on another

FSIA provision, § 1605A(c), for a federal cause of action, alleging that Defendants provided

“material support” to Hamas and the PIJ, which in turn engaged in the “extrajudicial killing” of

Przewozman. Id. at 2, 5 (Am. Compl. ¶¶ 2, 17); Dkt. 23-7 at 1; Dkt. 24-2. Plaintiffs also assert

state common law claims for intentional infliction of emotional distress, loss of consortium,

aiding and abetting, and civil conspiracy. Id. at 11–13 (Am. Compl. ¶¶ 40–56).2 No Defendant

has answered or otherwise appeared in this action. Plaintiffs, accordingly, requested that the

clerk of the court enter default against two Defendants—the Islamic Republic of Iran and

MOIS—which the clerk of the court has done. Dkt. 20; Dkt. 21. To date, Plaintiffs have not

requested the entry of default against the IRGC. See Dkt. 20; Dkt. 21.

Plaintiffs have now moved for a default judgment against all three Defendants and for the

appointment of a special master to determine damages. Dkt. 23 at 1. As explained below,

Plaintiffs are not entitled to a default judgment, at least at this time, because the Court lacks

personal jurisdiction over Defendants. The reason is that Plaintiffs failed to serve them in

compliance with the relevant statutory requirements. The Court will therefore DENY Plaintiffs’

2 Although Plaintiffs’ motion for default judgment mentions Israeli law, Dkt. 23 at 22–23, in their Amended Complaint they assert common law claims only under District of Columbia law and what they refer to as “U.S. state common law,” Dkt. 6 at 11–13 (Am. Compl. ¶¶ 40–56). While expressing no view on the merits of these claims or conclusion about what law should control, the Court notes that it is far from clear that U.S. law, rather than Israeli law, applies. See Force v. Islamic Republic of Iran,

, 372–74 (D.D.C. 2020). In any event, Plaintiffs must demonstrate their right to relief under the law that does apply in order to obtain a default judgment. See Fritz v. Islamic Republic of Iran,

, 91–92 (D.D.C. 2018).

2 motion without prejudice and will provide them with a further opportunity to serve Defendants in

the manner required under the FSIA.

I. LEGAL STANDARD

Even in a garden-variety case, the entry of a default judgment “is not automatic,” Mwani

v. bin Laden,

(D.C. Cir. 2005), and requires the exercise of the Court’s “sound

discretion,” Boland v. Yoccabel Constr. Co.,

(D.D.C. 2013) (citing Jackson v.

Beech,

(D.C. Cir. 1980)). Most notably, the Court must first satisfy itself that

it has subject-matter jurisdiction over the claims and personal jurisdiction over the defendants.

See Jerez v. Republic of Cuba,

(D.C. Cir. 2014) (“A default judgment

rendered in excess of a court’s jurisdiction is void.”); Mwani,

(explaining that the

Court “should satisfy itself that it has personal jurisdiction before entering judgment against an

absent defendant”). In addition, the Court can only consider a motion for entry of a default

judgment on the merits after the plaintiff requests that the clerk of court enter default based on a

party’s failure “to plead or otherwise defend.” Fed. R. Civ. P. 55(a); 10A Charles A. Wright &

Arthur Miller, Federal Practice and Procedure § 2682 (4th ed. 2022) (“Prior to obtaining a

default judgment . . . there must be an entry of default as provided by Rule 55(a).”). In cases

brought against a foreign state there are more requirements still. In particular, the claimant must

“establish[] his claim or right to relief by evidence satisfactory to the court.”

(e).

Today, the Court need address only one of these prerequisites: personal jurisdiction.

Under the FSIA, the Court has personal jurisdiction over a foreign state “as to every claim for

relief over which the [Court] ha[s] jurisdiction . . . where service has been made under section

1608.”

(b). The key inquiry at this stage is whether Plaintiffs have properly

3 served Defendants. See Foremost-McKesson, Inc. v. Islamic Republic of Iran,

(D.C. Cir. 1990) (citing

(b)). To establish personal jurisdiction, an FSIA

plaintiff must serve the summons and complaint (and, if applicable, a notice of suit) in

accordance with the appropriate provision of the FSIA. See id.; 28 U.S.C § 1608. As a result, to

evaluate whether Plaintiffs have properly effected service, the Court must first categorize each

defendant to determine which of the FSIA’s service provisions applies—28 U.S.C. § 1608(a) or

§ 1608(b). After deciding which provision governs as to each defendant, the Court must assess

whether Plaintiffs’ attempts to effect service satisfied the requirements of that provision.

Answering both questions requires the Court to weigh the evidence Plaintiffs have produced in

support of their motion for entry of a default judgment, which, in turn, requires the Court to

identify the burden of proof Plaintiffs must satisfy. See Mwani,

(explaining that a

court adjudicating an FSIA case against an absent defendant must “satisfy itself that it has

personal jurisdiction”). “In the absence of an evidentiary hearing,” plaintiffs may satisfy their

burden of demonstrating personal jurisdiction by making a “prima facie showing” based on

“their pleadings” and “bolstered by such affidavits and other written materials as they can

otherwise obtain.”

(internal citation and quotation omitted). The Court must therefore

satisfy itself that Plaintiffs have made a “prima facie showing” that they properly effected service

with respect to each defendant.

II. ANALYSIS

A. Determination of Which FSIA Provision Governs Service of Process

Section 1608 governs service of process under the FSIA and provides separate paths that

a plaintiff must follow depending on the nature of the entity being served. See

.

If a plaintiff seeks to serve a “foreign state,” she must comply with the requirements set out in

4 § 1608(a), and, if she seeks to serve an “agency or instrumentality of a foreign state,” she must

comply with the requirements of § 1608(b). Howe v. Embassy of Italy,

(D.D.C. 2014). The D.C. Circuit has offered the following guidance for determining which path

applies: “if the core functions of the entity are governmental, it is considered the foreign state

itself; if commercial, the entity is an agency or instrumentality of the foreign state.” Roeder v.

Islamic Republic of Iran,

(D.C. Cir. 2003); see also Transaero, Inc. v. La

Fuerza Aerea Boliviana,

(D.C. Cir. 1994) (same). “A nation’s armed forces”

or its “Ministry of Foreign Affairs,” for example, “are clearly . . . governmental,” Roeder,

(citing Transaero,

), whereas a state-owned commercial airline is

clearly commercial, see, e.g., Seramur v. Saudi Arabian Airlines,

(E.D.N.Y.

1996).

Applying that approach here, the Court concludes that all three Defendants are subject to

service under § 1608(a) as “a foreign state or [a] political subdivision” thereof.

(a). “Iran is, of course, the foreign state itself, and the ‘core functions’ of [the] IRGC and

MOIS are inherently governmental.” Holladay v. Islamic Republic of Iran,

,

59 (D.D.C. 2019); see also Nikbin v. Islamic Republic of Iran,

(D.D.C.

2007) (“[B]oth MOIS and [IRGC]” must be treated as the foreign state for purposes of

§ 1608(a)). The IRGC, as a branch of the Iranian Armed Forces, performs a military function,

and the MOIS serves as Iran’s primary intelligence agency. Dkt. 6 at 5 (Am. Compl. ¶¶ 18–19);

Holladay, 406 F. Supp. 3d at 59. As a result, they are both “so closely bound up with the

structure of the state that they must in all cases be considered as the ‘foreign state’ itself, rather

than a separate ‘agency or instrumentality’ of the state.” Transaero,

.

5 B. Service Under § 1608(a)

Section 1608(a) provides for four methods by which a party may serve a foreign state:

(1) by 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; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), by sending 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, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies 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 Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services--and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

(a).

These methods must be pursued in “descending order of preference,” Barot v. Embassy of

the Republic of Zambia,

(D.C. Cir. 2015), meaning that a party “must attempt

service by the first method (or determine that it is unavailable) before proceeding to the second

method, and so on,” Ben-Rafael v. Islamic Republic of Iran,

(D.D.C.

2008); Angellino v. Royal Family Al-Saud,

(D.C. Cir. 2012). Because

“Congress meant for section 1608(a) to establish a relative hierarchy of service methods,” a

plaintiff “may not opt to serve a foreign defendant out of order, i.e., by pursuing a less preferred

6 method first, in contravention of the express language of the statute.” Azadeh v. Gov’t of the

Islamic Rep. of Iran,

(D.D.C. 2018) (emphasis in original). One

consequence of this rule is that even an otherwise successful attempt to serve a foreign state is

invalid if conducted without following the statutorily prescribed order. In Azadeh v. Government

of the Islamic Republic of Iran, for instance, this Court held that a plaintiff who had served a

foreign state under § 1608(a)(4), without having previously attempted service under

§ 1608(a)(3), could not “cure[] the prior personal jurisdiction problem by backtracking and

seeking to effect service by mail under [§] 1608(a)(3)” after the fact. Id. Instead, the Court

required her to “re-serve[] [the] [d]efendants under [§] 1608(a)(4)” after having gone back and

attempted service under § 1608(a)(3), “because the prior [attempt at § 1608(a)(4) service] was

invalid due to her failure to undertake first service by mail under [§] 1608(a)(3).” Id. It “d[id]

not matter that [the plaintiff had] almost complied with the service requirements laid out in

[§] 1608(a), or that [the defendants] [we]re aware of th[e] lawsuit by virtue of her prior success

in providing notice” under § 1608(a)(4), because “with respect to serving a foreign state under

[§] 1608(a), a near miss is still a miss.” Id.; see also Estate of Hirshfeld v. Islamic Republic of

Iran,

, 47–48 (D.D.C. 2017) (refusing to find service effective where the

plaintiff successfully served the foreign state under § 1608(a)(4) before attempting service

under § 1608(a)(3)).

Judicial insistence on strict compliance with § 1608(a)’s prescribed order-of-service is

just one application of the more general principle that, when serving a foreign state, “strict

adherence to the terms of [§] 1608(a) is required,” Transaero,

, and “neither

substantial compliance, nor actual notice” suffices, Barot,

. As the Supreme Court

recently explained in Republic of Sudan v. Harrison,

(2019), although

7 “enforcing compliance” with the letter of § 1608(a) may at times seem like an “empty

formality,” in “cases with sensitive diplomatic implications,” such as FSIA suits, “the rule of law

demands adherence to strict requirements even when the equities of a particular case may seem

to point in the opposite direction.” Id. at 1062. And in Harrison the Supreme Court

demonstrated just how seriously it takes this notion. In that case, plaintiffs seeking to sue Sudan

under the FSIA attempted to effect service pursuant to § 1608(a)(3) by addressing a service

packet to the foreign minister by name and sending it to Sudan’s embassy in the United States.

Id. at 1053. The Court held that this attempt at service was inadequate, because § 1608(a)(3)’s

requirement that a service packet “be addressed and dispatched by the clerk of the court to the

head of the ministry of foreign affairs of the foreign state concerned” was “[m]ost naturally read

. . . [to] require[] that a mailing be sent directly to the foreign minister’s office in the minister’s

home country,” not to that country’s embassy in the United States. Id. (emphasis added). The

Court reached this result notwithstanding its recognition that (1) Ҥ 1608(a)(3) does not

expressly provide where service must be sent,” id. at 1061, (2) its reading of the statute was “not

. . . the only plausible reading of the statutory text,” id. at 1056, and (3) its strict holding would

cause the plaintiffs “understand[able] . . . exasperation,” id. at 1062.

Mindful of its obligation to apply a similarly stringent standard for service in the instant

case, the Court turns to Plaintiffs’ efforts to serve Defendants. The first two mechanisms of

effecting service—by delivery of the summons and complaint either “in accordance with any

special arrangement for service between the plaintiff and the foreign state” under § 1608(a)(1) or

“in accordance with an applicable international convention on service of judicial documents”

under § 1608(a)(2)—were unavailable to Plaintiffs in this case. See Dkt. 12-1 at 1. No “special

arrangement” governs service between the United States and Iran, nor is Iran party to an

8 international convention on service of judicial documents. See Braun v. Islamic Republic of

Iran,

, 77–78 (D.D.C. 2017).

Plaintiffs’ problems arose when they attempted to serve Defendants under § 1608(a)(3),

which requires service by mail “addressed and dispatched by the clerk of the court to the head of

the ministry of foreign affairs of the foreign state concerned.” Beginning with the Islamic

Republic of Iran, Plaintiffs requested that the clerk of court mail a service packet to:

The Islamic republic of Iran The Ministry of Foreign Affairs Imam Khomeini Street Imam Khomeini Square Tehran, Iran 1136914811

Dkt. 9. The clerk did so, Dkt. 10-1 at 1–2, but the service attempt failed, Dkt. 12-1 at 1.

This service attempt did not strictly adhere to § 1608(a)(3)’s requirements, because

Plaintiffs did not direct the clerk to “address[] and dispatch[]” the mailing “to the head of the

[Iranian] ministry of foreign affairs.” See

(a)(3). Instead, Plaintiffs had the

packet addressed to the ministry of foreign affairs in general. Dkt. 9; Dkt. 10. Although this

mistake is a technical one, the Court cannot overlook it. The FSIA’s text must be strictly

enforced, Transaero,

, and that text clearly requires that the packet be addressed to

a particular individual—namely, the “head of the ministry of foreign affairs of the foreign state

concerned,” § 1608(a)(3).

Precedent confirms both this reading of § 1608(a)(3) and its consequences for this case.

That Plaintiffs’ failure correctly to address their mailing was fatal to their service attempt follows

almost a fortiori from Harrison, because the requirement that the mailing be addressed to “the

head of the ministry of foreign affairs” is far more explicit in § 1608(a)(3)’s text than is the

requirement Harrison found dispositive—that a packet addressed to the minister be sent to the

9 minister’s office within his or her country. See

. Harrison also repeatedly

explains that “the most natural reading of § 1608(a)(3) is that the service packet must bear the

foreign minister’s name and customary address and that it be sent to the minister in a direct and

expeditious way.” Id. at 1057 (emphasis added); see id. at 1061 (“The service packet must be

mailed directly to the foreign minister at the minister’s office in the foreign state.”).

Even more directly on point, the D.C. Circuit addressed this very issue in Barot and

explained that § 1608(a)(3) requires:

serving a summons, complaint, and notice of suit, along with any necessary translations, that are “dispatched by the clerk of the court,” and sent to the “head of the ministry of foreign affairs” . . . whether identified by name or title, and not to any other official or agency.

(emphasis added) (internal citations omitted). In Barot, the court held that service

was ineffective under § 1608(a)(3) where the service materials, although sent to the correct Post

Office Box, were addressed to the “Embassy of Zambia,” and not to the “Head of the Ministry of

Foreign Affairs.” Id. at 29. This Court has also repeatedly held that a failure to address service

to the foreign minister renders a service attempt ineffective. See, e.g., Law Offs. of Arman

Dabiri & Assocs. P.L.L.C. v. Agric. Bank of Sudan, No. 17-cv-2497,

, at *5

(D.D.C. Jan. 16, 2019); Mohammad Hilmi Nassif & Partners v. Republic of Iraq, No. 17-cv-

2193,

, at *2–3 (D.D.C. Mar. 25, 2020).

Plaintiffs’ attempts to serve the MOIS and the IRGC suffered from the same error as well

as an additional one. As discussed above, for purposes of § 1608, the MOIS and the IRGC are

treated as a foreign state, i.e., they are considered to be Iran itself, not an “agency or

instrumentality” of Iran. They must therefore be served in strict compliance with § 1608(a).

Transaero, 30 F.3d at 153–54. Consequently, where, as here, service under the first two

paragraphs of that section fails, a party must serve the MOIS and the IRGC in accordance with

10 § 1608(a)(3), which (at the risk of belaboring the point) requires that a service packet “be

addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of

the foreign state concerned.” Plaintiffs, however, asked the clerk to send the service packets to

the IRGC and the MOIS themselves, directing the clerk to mail the materials to:

Iranian Ministry of Intelligence & Security (a/k/a Verzarat-e Ettela’at Va Amniat-e Keshvar a/k/a VEVAK a/k/a VAJA) Second Negarestan Street Pasdaran Avenue Tehran, Iran

and

The Islamic Revolutionary Guard Corps (“IRGC”) Armed Forces Headquarters Iran Tehran – Zone 7 – Shariati Ghoddoosi Square (Ghaar) Tehran, Iran

Dkt. 7; Dkt. 8; Dkt. 10. These mailings, like Plaintiffs’ mailing to Iran, were refused. Dkt. 13-1

at 1; Dkt. 14-1 at 1. And these mailings, like Plaintiffs’ mailing to Iran, did not comply with

§ 1608(a)(3). The most significant defect with Plaintiffs’ approach is that they did not have the

service packets addressed to Iran’s ministry of foreign affairs at all, addressing them instead to

the MOIS and the IRGC. In addition, and as above, they did not direct the packets to the foreign

minister specifically. Plaintiffs therefore failed properly to attempt service of the MOIS and the

IRGC under § 1608(a)(3).

But Plaintiffs, presumably not realizing their mistakes and assuming that they had made

proper albeit unavailing attempts to serve Defendants pursuant to § 1608(a)(3), then proceeded to

serve Defendants under § 1608(a)(4). That provision requires service by mail from the clerk of

court to the Secretary of State, who must transmit the required material “through diplomatic

channels to the foreign state.”

(a)(4). The Department of State must then send

11 “the clerk of the court a certified copy of the diplomatic note indicating when the papers were

transmitted.”

Plaintiffs provided the Clerk with the relevant documents and requested

service pursuant to § 1608(a)(4) on December 18, 2019. Dkt. 12; Dkt. 13; Dkt. 14. The Clerk

mailed these materials to the State Department on December 23, 2019. Dkt. 16. On May 28,

2020, the State Department notified the Clerk that the documents had been delivered to Iran, the

MOIS, and the IRGC. Dkt. 18. As the Department explained, “[b]ecause the United States does

not maintain diplomatic relations with the Government of Iran,” the documents were transmitted

to the Embassy of Switzerland in Iran, which then transmitted the materials to the Iranian

Ministry of Foreign Affairs on April 6, 2020. Id. at 1.

In light of Plaintiffs’ faulty attempts to serve Defendants pursuant to § 1608(a)(3)

followed by their (otherwise) proper service pursuant to § 1608(a)(4), the Court confronts the

following question: Can it disregard or excuse Plaintiffs’ noncompliant attempts at § 1608(a)(3)

service and exercise personal jurisdiction over Defendants, because Plaintiffs subsequently and

successfully served Defendants under § 1608(a)(4)? The answer is no. Because Plaintiffs’

attempts to serve Defendants pursuant to § 1608(a)(3) did not strictly adhere to the requirements

of that provision, their later service under § 1608(a)(4) was a nullity.

This conclusion finds support in the text of § 1608 and in the caselaw interpreting that

provision: failure to follow the carefully delineated rules for serving a foreign state cannot be

cured or excused without retracing the steps required under § 1608. Under the statute, “if service

cannot be made within 30 days under paragraph (3)”—i.e., under § 1608(a)(3)—then a party can

attempt service under § 1608(a)(4).

(a)(4). The question, then, is what the

phrase “if service cannot be made under paragraph (3)” means. The words “cannot be made”

indicate that a plaintiff must attempt to effect service under § 1608(a)(3), and some impediment

12 must stand in the way of accomplishing service under that provision, before progressing to

§ 1608(a)(4). After all, without attempting service in a particular manner, a plaintiff cannot

know whether service can be made in that manner or not. And the word “cannot” connotes more

than inexactitude or negligence; if service can be achieved under § 1608(a)(3), that is what the

statute requires. Consistent with this language, courts have often held that plaintiffs are

obligated to work through the statutory service methods in order, exhausting § 1608(a)(3) before

moving to § 1608(a)(4). E.g., Angellino,

(“Section 1608 prescribes four

methods of service—‘in descending order of preference’—and a plaintiff ‘must attempt service

by the first method (or determine that it is unavailable) before proceeding to the second method,

and so on.’” (quoting Ben-Rafael,

)); Azadeh,

(same); Estate of Hirshfeld, 235 F. Supp. 3d at 47–48 (same). Thus, an FSIA plaintiff must

attempt service under § 1608(a)(3) in a manner that complies with the statutory directives and

may move on to attempt service under § 1608(a)(4) only if that compliant effort to effect service

fails.

This reading of the statute accords with the well-established rule that parties must strictly

comply with the terms of § 1608(a). Barot,

. The D.C. Circuit has explained that

mere “substantial compliance” with § 1608(a) is the same, for personal jurisdiction purposes, as

not complying with § 1608(a) at all. See id.; see also Azadeh,

(“[W]ith

respect to serving a foreign state under section 1608(a), a near miss is still a miss.”). But if a

failure completely to comply with one method of service could be obviated merely by moving

along to the next option, this strict-adherence rule would lose much of its force. “[A] near miss”

would no longer be a miss, as long as a plaintiff pursued his next alternative. Azadeh,

. As Harrison explained, “the rule of law” demands more in the FSIA context.

13

. Not only that, once one recognizes that imperfect service under one of

§ 1608(a)’s provisions is no different than no service under that provision at all, it becomes clear

that the situation here is the same as that in cases in which plaintiffs have simply skipped over

earlier-enumerated service methods in favor of those appearing later in the statute. And as

discussed, courts consistently have held that this latter practice deprives them of personal

jurisdiction. See, e.g., Azadeh,

; Estate of Hirshfeld, 235 F. Supp. 3d at

47–48; Karcher v. Islamic Republic of Iran,

(D.D.C. 2017). The same

result must obtain here.

Although it might be argued that as a matter of fairness the Court should distinguish

between wholly ignoring one of § 1608(a)’s service methods and attempting to adhere to a

service method (albeit without careful attention to statutory requirements), doing so would be at

odds with the rule of strict compliance and would also create significant practical problems. For

one thing, this approach would disincentivize plaintiffs from “adher[ing] to [§ 1608(a)’s] strict

requirements,” which, for reasons already given, is a significant strike against it. Allowing

subsequent service under § 1608(a)(4) to cure a flawed attempt to effect service under

§ 1608(a)(3) would also drag courts into the messy inquiry of what constitutes a good faith or

flawed-but-close-enough attempt at service sufficient to permit a plaintiff to proceed from one

method to the next. Presumably, courts would need to develop some test to assess whether a

flawed attempt at service was close enough; if any attempt, however minimal, counted for this

purpose, the statutory directive would lose all meaning. But setting and enforcing such a

limitation would invite a host of other problems. What if, for example, a plaintiff addressed a

service packet to the wrong country? Or prepared the packet but forgot to deliver it to the clerk

of court to send? Or translated the summons, complaint, and notice of suit into the wrong

14 language? What result? Questions of this type would doubtless arise, and courts would have

nothing to guide their resolution of them. Harrison rejected exactly this sort of “line-drawing”

“in favor of maintaining a clear, administrable rule.”

. This is particularly

important in the context of suits against foreign states, where uncertainty and open-ended

inquiries raise the risk of significant diplomatic consequences.

Although one might argue that requiring Plaintiffs to go back and attempt service

pursuant to § 1608(a)(3) (and potentially § 1608(a)(4)) would constitute a waste of time or a

pointless formality, the Court cannot agree. As an initial matter, that argument is at odds with

both Harrison and D.C. Circuit precedent. See

; Barot,

;

Transaero,

. Taking the argument head on, the possibility that strict compliance

with § 1608(a) will take more time than noncompliance is both predictable and no justification

for noncompliance. Courts already require plaintiffs who entirely skip one of § 1608(a)’s service

methods to go back and try again. See, e.g., Azadeh,

; Estate of Hirshfeld,

235 F. Supp. 3d at 47–48. The inefficiency is no greater where, as here, a plaintiff has instead

made errors in her attempt to serve a defendant. Nor is § 1608(a)(3) service merely a formality

on the way to inevitable § 1608(a)(4) service, at least not in this case. Iran not infrequently

accepts service that has been properly made under § 1608(a)(3). See, e.g., Karcher, 249 F. Supp.

3d at 559–60; Oveissi v. Islamic Republic of Iran,

(D.D.C. 2012); Taylor

v. Islamic Republic of Iran,

(D.D.C. 2011). So, if Plaintiffs choose to

attempt § 1608(a)(3) service again, they might well succeed.

The Court, accordingly, concludes that Plaintiffs have failed to effect service of any of

Defendants in the manner required under § 1608 and that, as a result, the Court lacks personal

jurisdiction over Defendants. See

(b).

15 * * *

Although Plaintiffs have failed properly to effect service, dismissal is unwarranted. Even

if a party “has not complied with the service of process requirements,” the Court has discretion

to permit the party to give it another go, rather than dismiss the case. See Candido v. District of

Columbia,

(D.D.C. 2007). Indeed, the D.C. Circuit has cautioned that

“dismissal is not appropriate when there exists a reasonable prospect that service can be

obtained.” Barot,

(emphasis added) (quoting Novak v. World Bank,

(D.C. Cir. 1983)). Barot is instructive. In that case, the D.C. Circuit held that it was

an abuse of discretion to dismiss for insufficient service of process when (1) the service attempt

“came very close to satisfying the Act’s requirements . . . [thus] showing good faith;” (2) “the

statute of limitations [had] run on [the plaintiff’s] claims;” and (3) “[the defendant] [had]

identified no particular prejudice it would suffer if [the plaintiff] were permitted another

opportunity to make proper service.” Id. at 29.

At least two of the same considerations weigh against dismissal in this case. Plaintiffs’

attempts at service came “very close” to satisfying § 1608(a)(3). With respect to Iran itself, as in

Barot, “[t]he defect . . . came down to one line of the address block: it should have said ‘Head of

the Ministry of Foreign Affairs.’” Id. Although the mistakes in Plaintiffs’ attempts to serve the

MOIS and the IRGC were marginally more substantial, they are still a matter of fixing the

address. In all three cases, “[t]here clearly exists a reasonable prospect that service can be

obtained.” Id. (internal quotation marks and citation omitted). Nor can the Court identify any

prejudice to Defendants that would result from allowing Plaintiffs to perfect service or any

benefit that would result from requiring Plaintiffs to re-file their complaint. It would neither

further the interests of fairness nor judicial economy to force Plaintiffs to do so.

16 To be clear, if Plaintiffs wish to attempt to re-serve Defendants, they must do the

following: First, they must serve Defendants in strict compliance with § 1608(a)(3). If that

proves successful, nothing more is necessary from a service perspective. But if this approach

does not succeed within 30 days of Plaintiffs’ proper attempt, Plaintiffs must then re-serve

Defendants in strict compliance with § 1608(a)(4). See

(a)(4).

Before concluding, the Court notes a further problem with all of Plaintiffs’ efforts at

§ 1608(a)(3) service in this case, although it is less clear that this issue, standing alone, would

deprive the Court of personal jurisdiction. Plaintiffs attempted, unsuccessfully as it turns out, to

serve all three Defendants pursuant to § 1608(a)(3), or at least that is what they claim in their

motion for default judgment. Dkt. 23 at 14. But on each of Plaintiffs’ affidavits requesting the

clerk of court to mail service packets to these Defendants, Plaintiffs indicated that they were

seeking service pursuant to

(b)(3)(B), not § 1608(a)(3). Dkt. 7; Dkt. 8; Dkt. 9.

This is evident because each affidavit states that the undersigned counsel is requesting the clerk

to mail a copy “pursuant to the provisions of” one of four sources of legal authority, each with a

check box next to it. Dkt. 7; Dkt. 8; Dkt. 9. These options are: (1) FRCP 4(f)(2)(C)(ii); (2)

(a)(3); (3)

(b)(3)(B); and (4)

(a)(4). Dkt. 7; Dkt.

8; Dkt. 9. On all of the affidavits (one each for Iran, the MOIS, and the IRGC), Plaintiffs’

counsel checked the third box, corresponding to § 1608(b)(3)(B). Dkt. 7; Dkt. 8; Dkt. 9.

Had Plaintiffs’ efforts at § 1608(a)(3) service been otherwise consistent with the statutory

requirements, the Court would need to resolve the question whether these efforts were

nevertheless deficient because Plaintiffs indicated that they were serving Defendants pursuant to

the wrong statutory provision. The question is not an easy one. On the one hand, courts require

“strict adherence to the terms of [§] 1608(a).” Transaero,

. But, on the other

17 hand, nothing in § 1608(a)(3) expressly requires that a plaintiff accurately identify under which

provision of law it is attempting service. The Court need not and does not decide the question,

however, because the other defects in Plaintiffs’ attempts to serve Defendants are sufficient to

preclude the exercise of personal jurisdiction. But should Plaintiffs make another attempt to

serve Defendants, they should do so with careful attention to all the relevant details, including by

checking the correct box on any affidavits they submit.3

CONCLUSION

To sum up, the Court cannot enter default judgment against Defendants, because it lacks

personal jurisdiction over them. Plaintiffs may, however, make another attempt to serve

Defendants in strict compliance with § 1608(a). As a result, it is hereby ORDERED that the

motion for default judgment is DENIED without prejudice. It is further ORDERED that the

clerk’s entry of default against the Islamic Republic of Iran and the Iranian Ministry of

Information and Security, Dkt. 21, is VACATED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 19, 2022

3 Even if Plaintiffs had properly served Defendants and otherwise met the requirements for relief on their claims, the Court would still have been unable enter a default judgment against the IRGC, because Plaintiffs never requested an entry of default against IRGC. Antoine v. U.S. Bank Nat’l Ass’n,

(D.D.C. 2008); Dkt. 20; Dkt. 21. Should Plaintiffs wish to continue to pursue this action against all Defendants, they will need to request an entry of default against every Defendant at the appropriate time.

18