28 U.S.C. § 1607 — Counterclaims

Page 433 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1607 (b) RESPONSIBILITY OF FOREIGN STATES.—A for- eign state shall not be immune from the juris- diction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by— (1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, re- gardless where the tortious act or acts of the foreign state occurred. (c) CLAIMS BY NATIONALS OF THE UNITED STATES.—Notwithstanding section 2337(2) of title 18, a national of the United States may bring a claim against a foreign state in accord- ance with section 2333 of that title if the foreign state would not be immune under subsection (b). (d) RULE OF CONSTRUCTION.—A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence. (Added Pub. L. 114–222, § 3(a), Sept. 28, 2016, 130 Stat. 853.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any civil action pending on, or commenced on or after, Sept. 28, 2016, and arising out of an injury to a person, property, or business on or after Sept. 11, 2001, see section 7 of Pub. L. 114–222, set out as an Effective Date of 2016 Amendment note under section 2333 of Title 18, Crimes and Criminal Procedure. STAY OF ACTIONS PENDING STATE NEGOTIATIONS Pub. L. 114–222, § 5, Sept. 28, 2016, 130 Stat. 854, pro- vided that: ‘‘(a) EXCLUSIVE JURISDICTION.—The courts of the United States shall have exclusive jurisdiction in any action in which a foreign state is subject to the juris- diction of a court of the United States under section 1605B of title 28, United States Code, as added by sec- tion 3(a) of this Act. ‘‘(b) INTERVENTION.—The Attorney General may in- tervene in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code, as added by section 3(a) of this Act, for the purpose of seeking a stay of the civil action, in whole or in part. ‘‘(c) STAY.— ‘‘(1) IN GENERAL.—A court of the United States may stay a proceeding against a foreign state if the Sec- retary of State certifies that the United States is en- gaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought. ‘‘(2) DURATION.— ‘‘(A) IN GENERAL.—A stay under this section may be granted for not more than 180 days. ‘‘(B) EXTENSION.— ‘‘(i) IN GENERAL.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods. ‘‘(ii) RECERTIFICATION.—A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other par- ties as to whom a stay of claims is sought.’’ § 1606. Extent of liability As to any claim for relief with respect to which a foreign state is not entitled to immu- nity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private indi- vidual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been con- strued to provide, for damages only punitive in nature, the foreign state shall be liable for ac- tual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2894; amended Pub. L. 105–277, div. A, § 101(h) [title I, § 117(b)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–491; Pub. L. 106–386, div. C, § 2002(g)(2), for- merly § 2002(f)(2), Oct. 28, 2000, 114 Stat. 1543, re- numbered § 2002(g)(2), Pub. L. 107–297, title II, § 201(c)(3), Nov. 26, 2002, 116 Stat. 2337.) Editorial Notes AMENDMENTS 2000—Pub. L. 106–386, § 2002(g)(2), formerly § 2002(f)(2), as renumbered by Pub. L. 107–297, which directed repeal of section 101(h) [title I, § 117(b)] of div. A of Pub. L. 105–277, was executed by striking out ‘‘, except any ac- tion under section 1605(a)(7) or 1610(f)’’ after ‘‘punitive damages’’, to reflect the probable intent of Congress. See 1998 Amendment note below. 1998—Pub. L. 105–277 inserted ‘‘, except any action under section 1605(a)(7) or 1610(f)’’ after ‘‘punitive dam- ages’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–277 applicable to any claim for which a foreign state is not immune under section 1605(a)(7) of this title arising before, on, or after Oct. 21, 1998, see section 101(h) [title I, § 117(c)] of Pub. L. 105–277, set out as a note under section 1610 of this title. EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1607. Counterclaims In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim— (a) for which a foreign state would not be en- titled to immunity under section 1605 or 1605A of this chapter had such claim been brought in a separate action against the foreign state; or (b) arising out of the transaction or occur- rence that is the subject matter of the claim of the foreign state; or (c) to the extent that the counterclaim does not seek relief exceeding in amount or dif- fering in kind from that sought by the foreign state. Page 434 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1608 1 So in original. Probably should be followed by a comma. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2894; amended Pub. L. 110–181, div. A, title X, § 1083(b)(2), Jan. 28, 2008, 122 Stat. 341.) Editorial Notes AMENDMENTS 2008—Subsec. (a). Pub. L. 110–181 inserted ‘‘or 1605A’’ after ‘‘section 1605’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT For applicability of amendments by Pub. L. 110–181 to pending cases, see section 1083(c) of Pub. L. 110–181, set out as an Effective Date note under section 1605A of this title. EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1608. Service; time to answer; default (a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special ar- rangement for service between the plaintiff and the foreign state or political subdivision; or (2) if no special arrangement exists, by deliv- ery 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 para- graphs (1) or (2), by sending a copy of the sum- mons and complaint and a notice of suit, to- gether with a translation of each into the offi- cial language of the foreign state, by any form of mail requiring a signed receipt, to be ad- dressed and dispatched by the clerk of the court to the head of the ministry of foreign af- fairs 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 Wash- ington, 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. As used in this subsection, a ‘‘notice of suit’’ shall mean a notice addressed to a foreign state and in a form prescribed by the Secretary of State by regulation. (b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special ar- rangement for service between the plaintiff and the agency or instrumentality; or (2) if no special arrangement exists, by deliv- ery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by ap- pointment or by law to receive service of proc- ess in the United States; or in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under para- graphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state— (A) as directed by an authority of the for- eign state or political subdivision in re- sponse to a letter rogatory or request or (B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or in- strumentality to be served, or (C) as directed by order of the court con- sistent with the law of the place where serv- ice is to be made. (c) Service shall be deemed to have been made— (1) in the case of service under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic note; and (2) in any other case under this section, as of the date of receipt indicated in the certifi- cation, signed and returned postal receipt, or other proof of service applicable to the method of service employed. (d) In any action brought in a court of the United States or of a State, a foreign state, a po- litical subdivision thereof, or an agency or in- strumentality of a foreign state shall serve an answer or other responsive pleading to the com- plaint within sixty days after service has been made under this section. (e) No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfac- tory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2894.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1609. Immunity from attachment and execution of property of a foreign state Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be im- mune from attachment 1 arrest 1 and execution