                                   1

                                   2

                                   3

                                   4                                    UNITED STATES DISTRICT COURT

                                   5                                   NORTHERN DISTRICT OF CALIFORNIA

                                   6

                                   7      BROOK CUMMINGS, et al.,                             Case No. 19-cv-05254-DMR
                                   8                     Plaintiffs,
                                                                                              ORDER TRANSFERRING CASE
                                   9              v.

                                  10      THE ISLAMIC REPUBLIC OF IRAN,
                                  11                     Defendant.

                                  12          Plaintiffs Brook Gordon Cummings and Novella Cummings filed this personal injury
Northern District of California
 United States District Court




                                  13   action against the Islamic Republic of Iran (“Iran”) pursuant to the Foreign Sovereign Immunities

                                  14   Act (“FSIA”). The FSIA provides that “a foreign state shall be immune from the jurisdiction of

                                  15   the courts of the United States and of the States except as provided in sections 1605 to 1607 of this

                                  16   chapter.” 28 U.S.C. § 1604. Under FSIA’s terrorism exception, a foreign state shall not be

                                  17   immune from suit in any case “in which money damages are sought against a foreign state for

                                  18   personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft

                                  19   sabotage, hostage taking, or the provision of material support or resources for such an act . . . .”

                                  20   28 U.S.C. § 1605A(a)(1). A “‘foreign state’ . . .includes a political subdivision of a foreign state

                                  21   or an agency or instrumentality of a foreign state as defined in [28 U.S.C. § 1603(b).]” 28 U.S.C.
                                       § 1603(a). Further, 28 U.S.C. § 1605A(c) provides United States nationals and other enumerated
                                  22
                                       individuals with a private right of action against “[a] foreign state that is or was a state sponsor of
                                  23
                                       terrorism . . . for personal injury or death caused by acts described in [28 U.S.C. § 1605A(a)(1)] . .
                                  24
                                       . .”
                                  25
                                              The FSIA has its own venue provision. It provides that a civil action under the FSIA may
                                  26
                                       be brought
                                  27                   (1) in any judicial district in which a substantial part of the events or
                                                           omissions giving rise to the claim occurred, or a substantial part
                                  28                       of property that is the subject of the action is situated;
                                   1                  (2) in any judicial district in which the vessel or cargo of a foreign
                                                          state is situated, if the claim is asserted under section 1605(b) of
                                   2                      this title;
                                   3                  (3) in any judicial district in which the agency or instrumentality is
                                                          licensed to do business or is doing business, if the action is
                                   4                      brought against an agency or instrumentality of a foreign state as
                                                          defined in section 1603(b) of this title; or
                                   5
                                                      (4) in the United States District Court for the District of Columbia if
                                   6                      the action is brought against a foreign state or political subdivision
                                                          thereof.
                                   7
                                       28 U.S.C. § 1391(f).
                                   8
                                              In this action, Plaintiffs sue Iran, a foreign state. As it appears that the United States
                                   9
                                       District Court for the District of Columbia is the proper venue for this action pursuant to 28 U.S.C.
                                  10
                                       § 1391(f)(4), on November 15, 2019, the court ordered Plaintiffs to show cause why this action
                                  11
                                       should not be transferred to the United States District Court for the District of Columbia. [Docket
                                  12
Northern District of California




                                       No. 18.]
 United States District Court




                                  13
                                              Plaintiffs timely filed a response to the Order to Show Cause. [Docket No. 20
                                  14
                                       (Response).] In their response, they argue that that venue in this District is proper under 28 U.S.C.
                                  15
                                       § 1391(f)(3), which states that “a civil action against a foreign state as defined in [28 U.S.C. §
                                  16   1603(a)] may be brought . . . in any judicial district in which the agency or instrumentality is
                                  17   licensed to do business or is doing business, if the action is brought against an agency or
                                  18   instrumentality of a foreign state as defined in” 28 U.S.C. § 1603(b). 28 U.S.C. § 1391(f)(3). In
                                  19   turn, 28 U.S.C. § 1603(b) provides that
                                  20
                                                      (b) An “agency or instrumentality of a foreign state” means any
                                  21                  entity--

                                  22                          (1) which is a separate legal person, corporate or otherwise,
                                                                  and
                                  23
                                                              (2) which is an organ of a foreign state or political subdivision
                                  24                              thereof, or a majority of whose shares or other ownership
                                                                  interest is owned by a foreign state or political subdivision
                                  25                              thereof, and

                                  26                          (3) which is neither a citizen of a State of the United States as
                                                                  defined in section 1332(c) and (e) of this title, nor created
                                  27                              under the laws of any third country.
                                       28 U.S.C. § 1603(b).
                                  28
                                                                                          2
                                   1           Plaintiffs argue that venue in this District is proper under 28 U.S.C. § 1391(f)(3) because

                                   2   the complaint alleges that “California resident non-parties . . . acted as an ‘agency or

                                   3   instrumentality’ of the Islamic Republic of Iran.” Response 5 (citing Compl. ¶¶ 7-10). They note

                                   4   the complaint’s allegations that Defendant Iran “regularly conducted business with affiliates or

                                   5   subsidiaries of certain American banks and companies,” including Halliburton, which maintains

                                   6   offices in this District, and that Iran “raised and transferred funds which were used to finance

                                   7   terrorist groups” with Bank Saderat Iran, which was authorized to conduct business in California.

                                   8   Compl. ¶¶ 7-10.

                                   9           Plaintiff’s argument is without merit, as the complaint does not actually allege that

                                  10   Halliburton or Bank Saderat Iran were Iran’s agents and instrumentalities. More importantly, this

                                  11   action is against Iran; neither Halliburton nor Bank Saderat Iran are named as defendants.

                                  12   Therefore, section 1391(f)(3), which applies to actions “against an agency or instrumentality of a
Northern District of California
 United States District Court




                                  13   foreign state,” does not apply. Instead, section 1391(f)(4) applies, because this is an action

                                  14   “against a foreign state.” Accordingly, the United States District Court for the District of

                                  15   Columbia is the proper venue for this action.

                                  16           28 U.S.C. § 1406(a) states that if a case is filed in an improper district, the district court

                                  17   “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in

                                  18   which it could have been brought.” In the interest of justice, the court transfers this action to the
                                       United States District Court for the District of Columbia.
                                  19                                                                               ISTRIC
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                                  21           IT IS SO ORDERED.
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                                                                                                                   OO
                                  22   Dated: December 30, 2019
                                                                                                           IT IS S
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                                  23                                                        ______________________________________
                                                                                                          Donna M. Ryu
                                                                                                                            . Ryu
                                                                                                                        a MJudge
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                                  24                                                                          e D o n n
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                                                                                                  United States Magistrate
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