Elemary v. Philipp Holzmann A.G.
| Decision Date | 06 February 2008 |
| Docket Number | Civil Action No. 07-654(RCL). |
| Parties | Dr. Hoda ELEMARY, pro se, Plaintiff, v. PHILIPP HOLZMANN A.G., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Hoda Elemary, Laguna Niguel, CA, pro se.
Mark Butler Bierbower, Brent L. Van Norman, Dianne M. Keppler, Hunton Williams LLP, Roger Steven Goldman, Latham & Watkins, Washington, DC, Matthew H. Lembke, Bradley Arant Rose & White LLP, Birmingham, AL, for Defendants;
This opinion: addresses two Motions to Dismiss that raise several common issues.
Defendants Billy Harbert, Jr. ("Billy Harbert") and B.L. Harbert International, LLC ("HILLC") moved to dismiss all claims against them for lack of personal jurisdiction, improper venue, and/or failure to state a claim. The Court has considered defendants' motion [13], plaintiff's opposition thereto [17], defendants' reply [21], and the applicable law. For the reasons set forth below, the motion is hereby GRANTED, and all claims against these defendants are DISMISSED.
Defendants Bill L. Harbert, Sr. ("Bill L. Harbert") and Harbert International Establishment, Inc. ("HIE") moved separately to dismiss certain claims against them for lack of personal jurisdiction, improper venue, and/or failure to state a claim. The Court has considered defendants' motion [14], plaintiffs opposition thereto [18], defendants' reply [22], and the applicable law. For the reasons set forth below, the motion is hereby GRANTED in part and DENIED in part. Plaintiffs claim for violation of 18 U.S.C. section 1964 ("civil RICO") against Bill L. Harbert stands. Her. claims against HIE and her termination in violation of public policy and fraud claims against Bill L. Harbert are DISMISSED.
In the late 1970s, the United States Agency for International Development ("USAID") made funds available to the Egyptian government to complete a wastewater project. (Compl. 9.) The Egyptian government awarded contracts for the project on what were ostensibly sealed, competitive bids. See Miller v. Holzmann, No. 95-cv-1231-RCL, 2007 WL 710134, at *4-5, 2007 U.S. Dist: LEXIS 16105, at *15-17 (D.D.C. Mar. 6, 2007). In reality, the pre-qualified bidders ("the Contractors") conspired to manipulate the bidding process by agreeing in advance which company would win each bid. Id. at *5, 2007 U.S. Dist. LEXIS 16105, at *16-17. The unsuccessful bidders would receive lucrative subcontracts or guarantees of success in bidding for future contracts, and the winning bids incorporated these "costs." Id. at *5, 2007 U.S. Dist. LEXIS 16105, at *17. As a result, USAID overpaid the winning bidders and compensated the losers. Id. When uncovered, this bid-rigging scheme prompted criminal charges against numerous individual and corporate defendants as well as a qui tam action under the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-3732. (Compl. 6.)
Defendant Bill L. Harbert, an Alabama construction magnate, participated in the bid-rigging scheme. He also devised a phantom equipment-lending transaction through which he laundered the scheme's profits. (Id. 40.) In the criminal case, the Contractors pleaded guilty and paid a $54 million fine, which Bill L. Harbert began paying in February 2002, in part from personal funds. (Id. 6.) Bill L. Harbert was also named in the qui tam action, but this Court dismissed all claims against Bill L. Harbert on statute of limitations grounds. Order [854] in 95-cv-1231 — RCL (May 4, 2007).
Bill L. Harbert's son, defendant Billy Harbert, in association with defendant HILLC, also works in the construction industry. (Compl. 11.) Neither Billy Harbert nor HILLC was criminally charged or named as a defendant in the qui tam action.
During the wastewater project bidding process in the 1980s, plaintiff Dr. Hoda Elemary ("Elemary"), then an Egyptian citizen, served as the Contractors' liaison wit the, Egyptian government. (Id. 10. Her, influence with then-Prime Minister Dr. Atef Sedky, her uncle, proved crucial to the Contractors' success in securing the contract. (Id.) She contends that when she acted on the Contractors' behalf, defendants Bill L. Harbert, HIE, Billy Harbert, and HILLC either intended to engage in bid-rigging or were aware that others harbored such intentions. (Id. 30 Elemary claims they concealed these intentions from her to induce her to assist them. (Id. 32.) Had she been aware of their plan, she would not have aided them. (Id.).
Elemary next represented Bill L. Harbert before the. Saudi Royal Board of Grievances in Saudi Arabia, from 1990 or 1991 to 1997 or 1998. (Incorp.Schedd.ii, vi.) In April 2001 or 2002, he hired her to negotiate with the Department of Justice ("DOJ") concerning the criminal and civil cases then pending against him (Compl. 27, 32.) At that time, she claims he and Billy Harbert concealed "the extent of culpability in the bid-rigging, scheme," and she was deceived about their involvement for some undefined period. (I at 14, 31.) Again, she asserts she would not have worked for Bill L. Harbert had she been aware of his culpability. (Id. at 32.)
On September 21, 2004, Elemary and Bill L. Harbert signed an agreement relating to Elemary's role as a negotiator, or elusive case manager," in the qui tam action ("the September 21 Agreement"). (Compl. Ex. G at 4.) It defines her compensation for these duties: in addition to a monthly "fee," she was "unconditionally guaranteed to receive five percent (5%) ... of any funds she saved] Mr. Harbert from ultimately paying the government in a settlement" — essentially, five percent of difference between the government's then — current demand of $56 million and any ultimate settlement amount. (Id.)
In March 2005, Elemary alleges she obtained a written offer from DOJ to settle the qui tam action for $15 million. (Compl. 23.) She asserts the "offer was acceptable to [Bill L. Harbert], but [Billy Harbert], acting in his personal capacity and on behalf of HILLC, caused it to be rejected." (Id.) Billy Harbert "declined to obey his father's wishes" and "insisted he could a do a better job than [Elemary] in negotiating a lower [settlement] figure." (Id. at 7.) Elemary claims Billy Harbert feared his father would disinherit him in favor of her and thus acted "out of sheer malice towards [her]." (Id. 8, 23.) She further claims he threatened her career and life repeatedly between 1997 and 2006 and actively sought "to destroy [her] financially and physically" and in her career and reputation. (Id. 9, 36.)
At some point before November 2004, Elemary acquired banking records implicating the Contractors in the bid-rigging scheme. (Id. 12, 28.) Thereafter, she alleges that Bill L. Harbert, Billy Harbert, HILLC, and HIE attempted to coerce her to conceal these documents from DOJ or to resign her negotiating position, and that they later threatened her life. (Id.) When she persistently refused to withhold evidence from the government, Bill L. Harbert "terminated [her] employment" on April 5, 2005. (Id. at 28.) Nine days later, Elemary suffered a broken shoulder when a stranger assaulted her outside her California residence. (Id. 38.) She claims Bill L. Harbert and/or Billy Harbert — in both his personal capacity and as HILLC's agent — dispatched this "hired Myrmidon" to dissuade her from filing the present action or from providing the, incriminating records to DOJ and/or to reclaim those records. (Id. at 13-14, 37.)
Elemary filed the present action on April 10, 2007. Her complaint names seven defendants and lists seven causes of action: (1) tortious interference with prospective economic advantage ("TIPEA") against Billy Harbert and HILLC; (2) breach of contract against Bill L. Harbert; (3) quantum meruit against Bill L. Harbert; (4) termination in violation of public policy against Bill L. Harbert; (5) fraud against Sabbia Aktiengesellschaft, Philipp Holzmann, A.G.,1 Bill L. Harbert, HIE, Billy Harbert, and HILLC; (6) civil RICO against Billy Harbert; and (7) civil RICO against Bill L. Harbert.
On June 27, 2007, Billy Harbert, Jr. and HILLC, and Bill L. Harbert and HIE, filed separate motions to dismiss some or all of the various claims arrayed against them. These motions raise common legal issues — in particular, personal jurisdiction and the adequacy of Elemary's statement of her claims.2 Accordingly, the Court addresses them here together.
A plaintiff must establish the court's jurisdiction over each defendant through specific allegations in his complaint. Kopff v. Battaglia, 425 F.Supp.2d 76, 80-81 (D.D.C.2006) (Bates, J.). He may neither "rely on conclusory allegations" nor "aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant." Id. at 81 (). In resolving a challenge to personal jurisdiction, "the Court may assume laintiffs claims are meritorious," but it need not give credence to factual allegations that are directly contradicted by affidavit. Id.
"In a diversity case," such as this one, "the federal district court's jurisdiction over a defendant is coextensive with that of a District of Columbia court." Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C.Cir, 2004). Thus, jurisdiction must satisfy both the District of Columbia long-arm statute and due process. United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995).
The District of Columbia long-arm statute provides that "[a] District of Columbia court may exercise jurisdiction over a person, who acts directly or by an agent, as to a claim arising" from the defendant's
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