                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                )
BATSHEVA SHOHAM                                 )
                                                )
               Plaintiff,                       )
                                                )
       v.                                       )     Civil No. 12-508 (RCL)
                                                )
ISLAMIC REPUBLIC OF IRAN, et al.                )
                                                )
              Defendants.                       )
                                                )


                                 MEMORANDUM OPINION

       This action was brought by Mrs. Batsheva Shoham against the Islamic Republic of Iran

(“Iran”), the Syrian Arab Republic (“Syria”), and other defendants pursuant to the updated state-

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

1605A. Mrs. Shoham now moves for entry of default against six defendants based on service of

the complaint in Pilant v. Islamic Republic of Iran, 11-cv-1077 on those defendants. See Pl.’s

Default Mot., ECF No. 14. She also moves for authorization of substitute service on three

defendants outside of their home country of Iran. See Pl.’s Service Mot. ECF No. 15. Finally,

she responds to Judge Jackson’s Order to show cause why her case should not be dismissed for

want of prosecution. Pl.’s Resp. to Order, ECF No. 17. For the reasons given below, the Court

will DENY Mrs. Shoham’s default motion, will GRANT her service motion, and will find that

she has satisfied Judge Jackson’s show cause order.

I.     BACKGROUND

       Mrs. Shoham alleges that she was driving in the West Bank with her five-month old son,

Yehuda Shoham, when they were ambushed by members of the Al-Aqsa Martyrs Brigade, a
terrorist group. Compl. ¶ 23, ECF No. 3. One of the terrorists’ stones struck young Yehuda,

causing a severe brain injury and, after a week of hospitalization, his death. Id. ¶ 24.

       In 2011, Mrs. Shoham joined with victims of similar attacks and their families to bring an

action against Iran, Syria, and other defendants under the FSIA’s state-sponsored terrorism

exception. See Compl., Pilant, ECF No. 3, (D.D.C. June 9, 2011). The Pilant plaintiffs

successfully served defendant Bashar Al-Assad, President of Syria, via mail service. See Return

of Service Affidavit, Pilant, ECF No. 30.

       Judge Collyer severed Mrs. Shoham’s claims from that action. Order (“Severance Order

1”), Pilant, Feb. 6, 2012, ECF No. 42; see also Order on Pl.’s Mot. for Clarification (“Severance

Order 2”), Pilant, Feb. 28, 2012, ECF No. 45. Judge Collyer ordered that, in any new case filed

by the severed plaintiffs, it would be required “that summonses be reissued and the new

summonses and the amended complaint be served.” Severance Order 1. The Judge granted to

the severed plaintiffs, including Mrs. Shoham, “leave . . . to refile their claims with separate

captions” and specified that “such new cases shall not be treated as related to the instant action.”

Severance Order 2.

       Mrs. Shoham subsequently filed this action. Compl., ECF No. 3. Her new complaint is

identical to the Pilant complaint except that it (1) bears a different caption, and (2) excludes facts

and prayers for relief particular to other plaintiffs in Pilant. Compare Compl., with Compl.,

Pilant; see also Pl.’s Default Mot. 10–12 (showing that the two complaints are identical save for

the aforementioned exclusions).

       Meanwhile, service of the Pilant complaint was effected on four additional defendants

through diplomatic channels: Iran, the Iranian Ministry of Information and Security (“MOIS”),




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Iran’s Revolutionary Guards (“IRGC”), and the Al Quds Force (“al Quds”). See Return of

Service Aff., Pilant, Aug. 13, 2012, ECF No. 48 (service effected June 24, 2012).

         Six months after filing her complaint in this action, Mrs. Shoham had failed to provide

proof of service of the complaint on any defendants. Judge Jackson ordered her to show cause

why the case should not be dismissed for want of prosecution. See Show Cause Order, Oct. 15,

2012, ECF No. 13. Mrs. Shoham responded with the two filings before the Court, as well as a

memorandum in response to the order. Pl.’s Default Mot.; Pl.’s Substitute Service Mot.; Pl.’s

Response. The case was subsequently reassigned by consent to the undersigned judge. 1

II.      MRS. SHOHAM IS NOT ENTITLED TO ENTRY OF DEFAULT BECAUSE
         DEFENDANTS HAVE NOT BEEN SERVED WITH THE COMPLAINT IN THIS
         ACTION

         After Judge Collyer severed Mrs. Shoham’s claims, she also ordered that in any new

action filed after severance, “summonses be reissued and the new summonses and the amended

complaint be served.” Severance Order 1. Mrs. Shoham concedes that none of the defendants

have been served with her new complaint in this action. See Pl.’s Default Mot. 12–13. Instead,

she asks that the Court ignore Judge Collyer’s order and deem service of process complete on six

defendants—Iran, MOIS, IRGC, al Quds, Bashar Al-Assad and Syria 2 (hereinafter “Pilant-

served defendants”)—based on effective service of the Pilant complaint on these defendants. As

explained below, the Court cannot grant this request.
1
  Most recently, Mrs. Shoham voluntarily dismissed one of her six claims—based on assault—apparently because of
timeliness concerns raised by this Court. See Notice, ECF No. 21; see also Order 3, ECF No. 22 (“Mrs. Shoham has
now voluntarily dismissed her assault claims based on the same incident . . . which might have been found untimely
. . .”). There is some confusion created by the language used in the Notice and the Complaint it refers to. The
Notice of Dismissal provides that Mrs. Shoham voluntarily dismisses “her claims for Assault under Count 2 of the
Complaint.” See Notice, ECF No. 21. Under “Count II” of the complaint, however, is Mrs. Shoham’s “Survival
Claim for Death of Yehuda Shoham.” See Compl. 41. There is, confusingly, no “Count III” of the Complaint.
There is, however a “Claim III,” which is “For Assault.” See Compl. 41-42. Accordingly, the Court will construe
the Notice of Dismissal as dismissing “Claim III” of the Complaint, “For Assault.”
2
  As “presidents of foreign states are ‘states’ for the purpose of determining service pursuant to § 1608,” service of
the Pilant complaint on Syria’s leader Bashar Al-Assad qualifies as effective service on Syria. See Baumel v. Syrian
Arab Republic, 550 F. Supp. 2d 110, 114 (D.D.C. 2008).

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       “[P]ersonal jurisdiction is ‘an essential element of the jurisdiction of a district court

without which the court is powerless to proceed to an adjudication.’” Sierra Club v. TVA, 12-cv-

1852, 2012 WL 5974034 at *1 (D.D.C. Nov. 29, 2012) (quoting Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 584 (1999)). “[B]efore a court may exercise personal jurisdiction over a

defendant, there must be . . . a basis for the defendant’s amenability to service of summons.

Absent consent, this means there must be authorization for service of summons on the

defendant.” Id. (quoting Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104

(1987)).

       A court has personal jurisdiction over a foreign state defendant in a § 1605A action

where the defendant has been served under 28 U.S.C. § 1608. World Wide Minerals, Ltd. v.

Republic of Kazakhstan, 296 F.3d 1154, 1160 n.5 (D.C. Cir. 2002). Where a plaintiff serves a

complaint on a foreign state defendant under the FSIA, the foreign state defaults, and then the

plaintiff files an amended complaint, service of the new complaint is only necessary if the

changes are “substantial.” Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 20 (D.D.C.

2009); Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 46 (D.D.C. 2006); Dammarell v.

Islamic Republic of Iran, 370 F. Supp. 2d 218, 255 (D.D.C. 2005). For example, in Belkin,

Judge Friedman did not require plaintiffs to serve an amended complaint on foreign state

defendants in default where the amended complaint merely restated the allegations from their

original complaint under the updated state sponsor of terrorism exception § 1605A. Belkin, 667

F. Supp. 2d at 19–20. Similarly, in Blais, this Court did not require plaintiffs to serve an

amended complaint on foreign state defendants in default where the amended complaint only

served to “put the remaining defendants on notice that the claims sought by plaintiffs were

grounded in state substantive law as well as in the federal statutory scheme.” Blais, 459 F. Supp.



                                                  4
2d at 46. And, in Dammarrell, Judge Bates did not require plaintiffs to serve an amended

complaint on foreign state defendants in default where the amended complaint did “little more

than provide the particularity required” that plaintiffs must “identify a particular cause of action

arising out of a specific source of law” other than the FSIA itself. Dammarrell, 370 F. Supp. 2d

at 255, 222 (quoting Acree v. Republic of Iraq, 370 F.3d 41, 58 (D.C. Cir. 2004)).

       Unlike Belkin, Blais, and Dammarrell, however, Mrs. Shoham is not amending a

complaint in an existing action, but has filed a new and unrelated one in which defendants are

not yet in default. Mrs. Shoham cites no case, and this Court is aware of none, in which a

plaintiff was not required to serve process in a new, unrelated action against a foreign state

defendant.

       Mrs. Shoham’s best case appears to be an unpublished 2003 opinion from the District of

Minnesota by Magistrate Judge Arthur Boylan. See DIRECTV v. Barrett, 2003 U.S. Dist. LEXIS

25897 at *4–5 (D. Minn. Oct. 2, 2003); see also Pl.’s Default Mot. 18–19. In that case, the court

severed the plaintiff’s claims against various defendants, authorized plaintiff to refile new

complaints against each, and stated that the plaintiff was “not required to re-serve pleadings on

Defendants who have already been served” in the original action. Barrett, 2003 U.S. Dist.

LEXIS 25897 at *4–5. Even setting aside the weakness of this source of authority, this case is

not persuasive because it does not address service on foreign state defendants, which raises

unique concerns and is subject to particular statutory requirements. See 28 U.S.C. § 1608; see

also Murphy v. Islamic Republic of Iran, 778 F. Supp. 2d 70, 71 (D.D.C. 2011) (“As a law that

codifies sovereign immunity with limited exceptions, the FSIA envisions a process for litigating

against foreign powers that respects the independence and dignity of every foreign state as a

matter of international law while providing a forum for legitimate grievances.”). Moreover, even



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in Barrett, Magistrate Judge Boylan ordered that, though service of process was not required,

“Plaintiff [bore] the obligation to notify the Defendant of the new case number” of any new cases

filed. Barrett, 2003 U.S. Dist. LEXIS 25897 at *4.

       Accordingly, the Court will not deem service on these six defendants effected, and will

DENY Mrs. Shoham’s motion for default. Because Mrs. Shoham has filed a new action, she

must effect service of process of the new complaint on all defendants as required under the

FSIA, and the Court will order her to do so.

       Before turning to the next issue, the Court pauses to recognize Mrs. Shoham’s

predicament of having to repeat the “exhaustive, costly and time consuming process” of serving

the foreign defendants. See Pl.’s Default Mot. 19–20. The Court is not unsympathetic to Mrs.

Shoham’s position. See Haim v. Islamic Republic of Iran, 08-cv-520, 2012 WL 5384152 at *3

(D.D.C. Nov. 5, 2012); Murphy, 778 F. Supp. 2d at 73. The U.S. Department of State apparently

charges a substantial fee for victims of terrorism who must use the State Department to serve

Iran with FSIA-related papers. See Schedule of Fees for Consular Services, 75 Fed. Reg. 36532,

36534 (June 28, 2010) (setting $2,275 fee for processing FSIA judicial assistance cases). The

imposition of these substantial fees imposes a significant burden upon victims of terrorism,

particularly given that successful enforcement of these judgments is notoriously difficult and the

prospects for recovering damages rather bleak. See In re Islamic Republic of Iran Terrorism

Litig., 659 F.Supp.2d 31, 49 (D.D.C. 2009). Sadly, this is not the first time that the government

has stationed itself in a position to undermine victims of terrorism in FSIA litigation. See In re

Terrorism Litig., 659 F.Supp.2d at 53. The federal government has promised victims of

terrorism a forum and opportunity to seek compensation for their devastating losses, then

apparently exploited this glimmer of hope to extract exorbitant fees from those victims, and then



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actively undermined those victims’ efforts to obtain satisfaction of legal and valid judgments in

order to protect its own coffers. See id. Several years ago, this Court observed that “the great

travesty in all this is that our political branches have essentially told victims of terrorism to

continue their long march to justice down a path that leads to nowhere.” Id. at 125. The

government now taxes those victims for their travails, as well. See Haim, 2012 WL 5384152 at

*3; Murphy, 778 F. Supp. 2d at 73.

III.    SUBSTITUTE SERVICE IS APPROPRIATE

        Mrs. Shoham moves the Court to allow substitute service by registered mail, return

receipt requested, on defendants Bank Melli, Bank Saderat, and Iran Air, in Australia, Canada,

France, Italy, Hong Kong, the Netherlands, Sweden, and the United Kingdom. The Court will

GRANT that motion.

        These three defendants are state-owned and their “core functions” are commercial, not

governmental, so they qualify as “agencies or instrumentalities” of Iran. Transaero, Inc. v. La

Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994); see also Order 2, Pilant, ECF No.

49 (finding these three organizations constituted “agencies or instrumentalities” of Iran).

Accordingly, service on these defendants is governed by 28 U.S.C. § 1608(b). Mrs. Shoham’s

Service Motion sufficiently demonstrates that she has not been able to effect service of process

on these defendants under § 1608(b)(1) or (2). See Pl.’s Service Mot. 6–7. Subsection

1608(b)(3)(C) authorizes service to be made “by delivery of a copy of the summons and

complaint, together with a translation of each into the official language of the foreign state . . . as

directed by order of the court consistent with the law of the place where service is to be made”

provided service is “reasonably calculated to give actual notice.”




                                                   7
       Mrs. Shoham has attempted unsuccessfully to serve each of these three defendants via

international registered mail at their headquarters in Iran. See Certificate of Mailing, July 30,

2012, ECF No. 10; see also Pl.’s Service Mot. 4, 9. She now seeks this Court’s permission to

attempt service on these defendants at other locations. Pl.’s Service Mot. 10. For Bank Melli

and Bank Saderat, Mrs. Shoham seeks to direct service to addresses on record with the U.S.

Treasury Department Office of Foreign Assets Control (“OFAC”) in countries that are

signatories to the Hague Convention on Service. Pl.’s Service Mot. 5, 8. For Iran Air, Mrs.

Shoham seeks to direct service to its worldwide offices in Hague Convention signatory countries,

as listed on its official website. Pl.’s Service Mot. 5 n.3.

       The Court finds that substitute service at these addresses would be “reasonably calculated

to give actual notice” and so is appropriate under 28 U.S.C. § 1608(b)(3)(C). It remains to be

decided whether the mode of service Mrs. Shoham requests—international registered mail—is

acceptable at these locations.

       Where American law allows or requires service to be made in a foreign country that is a

signatory to the Hague Convention on Service, the Convention controls the method by which

service may be effected. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700

(1988) (“If the internal law of the forum state defines the applicable method of serving process as

requiring the transmittal of documents abroad, then the Hague Service Convention applies.”).

Article 10(a) of the Convention provides that, if “the State of destination does not object, the

present Convention shall not interfere with . . . the freedom to send judicial documents, by postal

channels, directly to persons abroad.” Hague Service Convention art. 10(a), Nov. 15, 1965, 20

U.S.T. 361, 658 U.N.T.S. 163.




                                                   8
       The circuits are divided about whether this provision authorizes service of process by

mail. Compare Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004) (concluding, in light of

the purpose and history of the convention that the word “send” in the convention should be read

to encompass “serve”), and Ackermann v. Levine, 788 F.2d 830, 838 (2d Cir. 1986) (same), with

Bankston v. Toyota Motor Corp., 889 F.2d 172, 173–74 (8th Cir. 1989) (concluding, based on

the text of the convention, that “send” does not encompass “serve”), and Nuovo Pignone v.

Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) (same). Our circuit has not addressed the

issue, but Judge Collyer recently adopted the approach of the Ninth and Second Circuits, citing

the “history and purpose of the Convention” as discussed by the Ninth Circuit. See Order 3–4,

Pilant, ECF No. 49 (collecting district court cases from other circuits supporting this position).

This Court agrees with Judge Collyer that the Ninth Circuit’s analysis of the purpose and history

of the Convention is compelling on this point, see Brockmeyer, 383 F.3d at 802–03, and finds

that the narrower reading of “send” is overly rigid and unjustified. Accordingly, the Court finds

that the Convention allows for service of process via registered mail if “the State of destination

does not object.” See Hague Service Convention art. 10(a).

       Mrs. Shoham seeks to effect service on defendants at their addresses in Australia,

Canada, France, Italy, Hong Kong, the Netherlands, Sweden and the United Kingdom. All of

these countries are signatories to the Convention and none of them object to service via

international mail under Article 10(a). See Hague Conference on Private Int’l Law, Status Table,

(hereinafter “HCCH, Status Table”), http://www.hcch.net/index_en.php?act=

conventions.status&cid=17 (last visited Feb. 11, 2013) (listing all objections and declarations of

signatories to the Hague Convention, and showing that Australia, Canada, France, Hong Kong,

Italy, the Netherlands, Sweden and the United Kingdom have not objected to service via



                                                 9
international registered mail under Article 10(a)); see also U.S. Dep’t of State, Travel.State.Gov,

Judicial Assistance—Country-Specific Information, http://travel.state.gov/law/judicial/

judicial_2510.html (last visited Feb. 11, 2013) (stating that Canada, Hong Kong, Italy, the

Netherlands, Sweden, and the United Kingdom have no objection to service by international

registered mail). The one partial exception appears to be Australia, which “does not object to

service by postal channels, where it is permitted in the jurisdiction in which the process is to be

served.” Australia Declarations, HCCH, Status Table (emphasis added). Mrs. Shoham seeks to

effect service via international mail on Iran Air in Sydney, Australia, but did not provide any

information indicating that this jurisdiction in Australia permits service by mail.

       The Court will order that Mrs. Shoham may make substitute service on defendants Bank

Melli, Bank Saderat, and Iran Air pursuant to § 1608(b)(3)(C) by serving a summons and copy of

the Complaint (both documents prepared in English and Farsi) by registered mail, return receipt

requested, through the Clerk of the Court, at the addresses identified in her Service Motion, with

the exception of any addresses in Australia.

IV.    MRS. SHOHAM HAS SATISFIED THE SHOW CAUSE ORDER

       In October 2012, Judge Jackson ordered Mrs. Shoham to show cause why her case should

not be dismissed for want of prosecution. Show Cause Order, ECF No. 13. Upon consideration

of the response to this order, ECF No. 17, as well as various motions Mrs. Shoham has filed

since that order, the Court concludes that she has demonstrated sufficient efforts such that the

case should not be dismissed for want of prosecution.




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V.     CONCLUSION

       For the foregoing reasons, the Court DENIES Mrs. Shoham’s motion for default,

GRANTS her motion for authorization of substitute service, and finds that she has satisfied the

Order to show cause. An order shall issue with this opinion.

       Signed by Royce C. Lamberth, Chief Judge, on February 13, 2013.




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