El-Fadl v. Central Bank of Jordan, EL-FAD

• Decision Date: 06 February 1996
• Docket Number: No. 94-7212,A,EL-FAD,94-7212
• Citation: 75 F.3d 668,316 U.S. App. D.C. 86
• Parties: , 33 Fed.R.Serv.3d 1131 Hassanppellant v. CENTRAL BANK OF JORDAN, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 668

75 F.3d 668

316 U.S.App.D.C. 86, 33 Fed.R.Serv.3d 1131

Hassan EL-FADL, Appellant v. CENTRAL BANK OF JORDAN, et al., Appellees.

No. 94-7212.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 14, 1995.

Decided Feb. 6, 1996.

Appeal from the United States District Court for the District of Columbia (No. 93cv01895).

Sam W. Burgan, Washington, DC, argued the cause for appellant, with whom Frederick R. McDermott, Oxon Hill, MD, was on the briefs.

Christopher M. Curran, argued the cause for appellees Central Bank of Jordan, et al., with whom George L. Paul, Washington, DC, was on the brief.

John R. Fornaciari, argued the cause for appellee Petra International Banking Corporation, with whom John J. Vecchione, Washington, DC, was on the brief.

Before: GINSBURG, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Hassan El-Fadl filed suit in the Superior Court of the District of Columbia seeking to recover damages against Petra International Banking Corporation ("PIBC") for wrongful termination of employment as well as for various tort claims against several Jordanian institutions and officials: the Central Bank of Jordan, its Governor and Deputy Governor, and Petra Bank (together, the "Jordanian defendants"). ¹ The Central Bank of Jordan removed the case to federal district court pursuant to the Federal Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1441(d) (1994). Following the removal, the Jordanian defendants filed a motion to dismiss, and PIBC also filed a motion to dismiss and, in the alternative, for summary judgment. The district court dismissed the complaint as to all defendants. First, the court ruled that the Central Bank, Governor Mohammed Saeed El-Nabulsi, and Deputy Governor Michel Marto (together, the "sovereign defendants") were immune from suit under the FSIA. Second, the court granted Petra Bank's motion to dismiss for lack of personal jurisdiction under the District of Columbia "doing business" and long-arm statutes found in D.C.Code §§ 13-334, 13-422, and 13-423. Third, the court granted PIBC's motion to dismiss on forum non conveniens grounds, although the court had personal jurisdiction, because El-Fadl had an available forum in the Jordanian courts. The court denied El-Fadl's motion for reconsideration.

On appeal, El-Fadl contends principally that the district court erred in finding that he had an adequate alternative forum available to sue PIBC in Jordan and that the court erred in dismissing, prior to discovery, his claims against Petra Bank for lack of personal jurisdiction in the District of Columbia. He also contends that the district court erred in dismissing his claims against Deputy Governor Marto. Although we find no merit to El-Fadl's claim that the court has jurisdiction over Deputy Governor Marto, we reverse the pre-discovery dismissal as to Petra Bank for lack of personal jurisdiction and remand to allow El-Fadl to have discovery of jurisdictional facts. We also reverse and remand the forum non conveniens dismissal of the claims against Petra Bank and PIBC because the defendants failed to show that El-Fadl's claims can be filed in the Jordanian courts.

I.

El-Fadl is a Lebanese national who has lived in Jordan since 1982. In his complaint, he alleges that he was employed by PIBC, a subsidiary in the District of Columbia of Petra Bank, a privately owned bank in Jordan. From 1982 to 1989 he was employed by PIBC in Jordan as manager of a regional office for Middle Eastern clients. He had signed a contract under which he "would be permanently employed for life as a senior manager of Petra International Banking Corporation." The defendants maintain that El-Fadl was employed by Petra Bank (not PIBC) as a senior manager with responsibility for currency and precious metals trading.

In August 1989, the Central Bank of Jordan announced that it had uncovered widespread financial improprieties at Petra Bank and placed Petra Bank in receivership. Since then, Petra Bank has been run by a Liquidation Committee appointed by the Jordanian government. The Deputy Governor of the Central Bank, Michel Marto, was appointed to administer the liquidation of PIBC, and Marto came to the District of Columbia for that purpose. On September 14, 1989, Marto sent El-Fadl a letter in which PIBC terminated El-Fadl's employment as senior manager of the PIBC office in Amman. As part of the Jordanian authorities' investigation of the Petra Bank scandal, El-Fadl was arrested on October 29, 1989. El-Fadl alleges that the military police detained him for five days and tortured him, until he was released on bail. El-Fadl was prosecuted first in the Military Courts under Martial Law and then in the State Security Court, where he was "declared innocent" on April 9, 1992, which finding was affirmed by the Prime Minister on August 2, 1992. While the charges were pending, El-Fadl alleges that he was forbidden to leave Jordan. On July 30, 1993, El-Fadl filed suit in the District of Columbia.

II.

Sovereign immunity. The district court dismissed the claims against the Central Bank, Governor Nabulsi and Deputy Governor Marto under the FSIA. The court found that the Central Bank was a "foreign state" under the FSIA, 28 U.S.C. § 1603(a), and had not waived its sovereign immunity. The court ruled that Nabulsi and Marto were also immune because they were being sued in their official capacities as agents of the Central Bank. The court rejected El-Fadl's arguments that his claims fell under the "non-commercial tort" exception or the "commercial activity" exception to the FSIA. 28 U.S.C. §§ 1604, 1605(a)(2), (5).

On appeal, El-Fadl has abandoned his claims against the Central Bank and Nabulsi but seeks to maintain his claims against Marto on the ground that Marto was acting not in his official capacity but in an individual capacity as Chairman and General Manager of PIBC. Because El-Fadl failed to present any evidence that Marto was acting outside his official capacity, the district court found that Marto had no "personal interests at stake in connection with Petra [Bank] or PIBC." We affirm.

An individual can qualify as an "agency or instrumentality of a foreign state." 28 U.S.C. § 1603(b) (1994); ² see Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101-03 (9th Cir.1990). Although El-Fadl claims to be suing Marto in an individual capacity, the only evidence in the record shows that Marto's activities in managing PIBC were neither personal nor private, but were undertaken only on behalf of the Central Bank. Thus, Marto's affidavit states that in connection with the liquidation of PIBC, after being elected Chairman of PIBC and serving as its General Manager, he continued to be employed only at the Central Bank and that his "responsibilities with respect to PIBC were only a very minor part of [his] responsibilities as a Deputy Governor of the Central Bank." El-Fadl points to nothing more than the fact that Marto was Chairman and General Manager of PIBC and sent the letter of termination while he was in the District of Columbia. We therefore affirm the dismissal of the claims against Marto on grounds of sovereign immunity. ³ El-Fadl is not entitled to discovery against Marto because, in light of the evidence that Marto proffered to the district court and the absence of any showing by El-Fadl that Marto was not acting in his official capacity, discovery would " 'frustrate the significance and benefit of entitlement to immunity from suit.' " Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C.Cir.1990) (quoting Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 451 (6th Cir.1988)).

III.

Personal jurisdiction. The district court granted Petra Bank's motion to dismiss for lack of personal jurisdiction under D.C.Code §§ 13-422, 13-334 or 13-423(a). First, the district court agreed that it lacked general jurisdiction over Petra Bank under D.C.Code § 13-422 because Petra Bank was not a "person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia." ⁴ D.C.CODE ANN. § 13-422 (1995). Second, the court agreed with Petra Bank that it was not subject to general jurisdiction for "doing business" in the District of Columbia under D.C.Code § 13-334. ⁵ Neither Petra Bank's maintenance of correspondent banking relationships nor its ownership of more than 70% of the shares in PIBC sufficed for "doing business." Third, the court agreed that it lacked specific jurisdiction over Petra Bank under the District of Columbia long-arm statute because none of El-Fadl's claims "arose from" Petra Bank's alleged contacts with the District. D.C.CODE ANN. § 13-423(a) (1995). Although El-Fadl had moved to stay dismissal for lack of personal jurisdiction until he had conducted discovery of jurisdictional facts, the district court denied his motion as moot.

A.

Raising Issue on Appeal. In his brief on appeal, El-Fadl contends that the district court had personal jurisdiction over Petra Bank. He alleges, citing the long-arm statute, that various general business contacts of Petra Bank with the District of Columbia constitute "transacting any business in the District of Columbia." D.C.CODE ANN. § 13-423(a)(1). In addition, he alleges that, by entering into collateral loan agreements in the District, Petra Bank is "contracting to supply services in the District of Columbia." Id. § 13-423(a)(2). El-Fadl also alleges that Petra Bank caused him tortious injury in the District of Columbia because he was employed in the District when Petra Bank allegedly tortiously interfered with his employment contract and defamed him. Id. § 14-423(a)(3), (4).

El-Fadl's brief does not distinguish between "transacting business" under the long-arm statute and "doing business" for purposes of general jurisdiction. See Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987). His reliance on the...