Friedman v. Gov't of Abu Dhabi

• Decision Date: 14 May 2020
• Docket Number: Civil No. 19-2021 (JDB)
• Citation: 464 F.Supp.3d 52
• Parties: William J. FRIEDMAN, Plaintiff, v. GOVERNMENT OF ABU DHABI, UNITED ARAB EMIRATES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

464 F.Supp.3d 52

William J. FRIEDMAN, Plaintiff,

v.GOVERNMENT OF ABU DHABI, UNITED ARAB EMIRATES, et al., Defendants.

Civil No. 19-2021 (JDB)

United States District Court, District of Columbia.

Signed May 14, 2020

John William Chierichella, Sheppard Mullin Richter & Hampton LLP, Washington, DC, for Plaintiff.

Charles Andrea Patrizia, Igor V. Timofeyev, Scott Mitchell Flicker, Paul, Hastings, Janofsky & Walker, L.L.P., Washington, DC, for Defendant Government of Abu Dhabi, United Arab Emirates.

Jamil Zouaoui, Mizene PLLC, Washington, DC, for Defendant Janata Bank Ltd.

Igor V. Timofeyev, Paul Hastings LLP, Washington, DC, for Defendant Sheikh Khalifa Bin Mohamed Al Nehyan.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff William J. Friedman brought this action against the Government of Abu Dhabi, Sheikh Khalifa bin Mohamed al Nehyan in his former official capacity as Minister of the Government of Abu Dhabi Purchasing and Housing Office (collectively, the "Abu Dhabi defendants"), and Janata Bank, Ltd., seeking to recover damages for defendants’ alleged failure to honor a debt owed to him. Several motions are now pending before the Court: first, the Abu Dhabi defendants’ timely motion to dismiss; second, Friedman's motion for default judgment against Janata Bank, which began participating in the litigation late, following an entry of default against it by the Clerk of Court; and third, Janata Bank's motion to set aside the entry of default, filed in conjunction with a proposed motion to dismiss. For the reasons stated below, the Court concludes that it lacks subject matter jurisdiction over most of Friedman's claims and that the rest are barred by the applicable statute of limitations.

Background ¹

Many of the facts in this case, particularly the timing of events, are something of a mystery. From what the Court can glean from the complaint, the case stems back to when, at an unspecified time but presumably before 1985, the government of the United Arab Emirates (of which Abu Dhabi is a constituent part) approached Friedman and asked him to "help establish the requisite political relationships between the UAE and the United States for the purpose of facilitating military sales agreements between the two nations." Compl. [ECF No. 1] ¶ 19. At the time, Friedman was an advisor with "extensive experience providing advisory services such as guiding and facilitating introductions to high-level policymakers in the U.S. government." Id. ¶ 18. Following the initial approach by UAE, Friedman participated in several meetings in Washington, DC, to discuss UAE's relationship with the United States and how Friedman could help "advanc[e] dialogues with Pentagon decisionmakers and legislators on Capital Hill." Id. ¶ 20. During one or more of these meetings, Friedman agreed to advise UAE, and UAE "agreed to provide Mr. Friedman good and valuable consideration in exchange for his services." Id. ¶ 21.

According to the complaint, Friedman made good on his obligations to UAE by persuading a top Defense Department official, as well as U.S. Senator John Tower, "to provide fair and serious evaluation of [UAE's] strategic military interests." Id. ¶ 22. Because of Friedman's efforts, the U.S. government considered UAE's "requests for strategic military hardware." Id. ¶ 23. Friedman provided further services to UAE (again at an unspecified time) by bringing his "business and financial resources" to bear to help UAE "encourage the economic growth of, and thereby stabilize," the country, which was then "in its nascent stage as a nation." Id. ¶ 24. Specifically, Friedman "invested significant capital" in a joint venture with UAE designed to "provide engineering and construction services for public infrastructure projects" planned by UAE. Id. The joint venture was unsuccessful and went bankrupt. Id. ¶ 25.

To repay Friedman for his "extraordinary services" to UAE, at some point "Abu Dhabi caused to be delivered to Mr. Friedman at his then-residence in Alexandria, Virginia," two documents executed under seal. Id. ¶ 27. Both documents were dated May 30, 1975, with maturity dates in 1985. Id. The documents, which branded themselves as "promissory note[s]," each stated that, at maturity, the "identified holder" would be paid $2,500,000. Exhibit 1 to Compl. ("Promissory Notes") [ECF No. 1-5] at 2, 4. The notes themselves did not identify a holder. The notes had several other features: (1) they could be "transferred, pledged, or assigned one or more times"; (2) they were to be governed by the laws of the "International Chamber of Commerce of Paris, resolution 222, last edition 1962," as well as Swiss and Canton of Geneva law prevailing in 1975; and (3) apparently before payment, "all the signatures must be authenticated by a bank." Id. The notes, on their face, purported to be issued by Abu Dhabi and Khalifa and bore the seals of a number of Abu Dhabi officials. See id. at 2–4. Abu Dhabi was the "first guarantor" of the notes, and Janata Bank was the "second guarantor." Id. at 3, 5.

Since the maturity dates of the promissory notes in 1985, Friedman has made a number of attempts to collect the $5,000,000 that he claims is owed to him. His first attempt involved placing the notes for collection at First American Bank in Virginia; this attempt ended in failure when Abu Dhabi officials "disclaim[ed] any knowledge of the issuance of the [promissory notes]." Compl. ¶¶ 43–50. The bank subsequently returned the notes to Friedman. Id. Some time thereafter, Friedman became aware of an October 6, 1987 letter from the UAE Presidential Court to the U.S. Ambassador to UAE, in which UAE represented that neither Khalifa nor Janata Bank had "any connection with these notes" and that the notes were false and fraudulent. Id. ¶¶ 51–52; Exhibit 5 to Compl. [ECF No. 1-9] at 3. This letter led Friedman to "believe that the [promissory notes] likely were invalid." Compl. ¶ 56.

Nonetheless, Friedman opted "to take further steps to confirm [the] assertion that the [promissory notes] are inauthentic." Id. Between 1987 and 2010, he enlisted the help of no less than three U.S. senators to attempt to recover on the promissory notes: in 1987, Senator Paul Trible; in 1988, Senator John Kerry; and in 2010, Senator John D. Rockefeller IV. Id. ¶¶ 59, 66–70, 81. Each senator attempted to assist Friedman by using political and diplomatic channels to reach out to UAE; each time, UAE responded that the notes were "fake, forged, and fraudulent." Id. ¶¶ 62, 67, 82–85. Throughout this period, and until February 2019, Friedman believed "that any [court] action to enforce the [promissory notes] would be futile." Id. ¶ 88.

In February 2019, Friedman discovered that ten other promissory notes existed that are "substantially similar" to those in his possession. Id. ¶ 89. This discovery led Friedman to believe that his promissory notes are valid, and that Abu Dhabi's consistent "representations that the [promissory notes] are ‘fake’ and ‘forgeries’ were made with the intention of fraudulently concealing [its] wrong-doing from Mr. Friedman and to lull him into not filing suit ... sooner." Id. ¶ 102.

Friedman then decided to bring this action, which he filed on July 8, 2019. His complaint asserts three counts: (1) breach of contract, against all defendants; (2) quantum meruit, against the Government of Abu Dhabi; and (3) unjust enrichment, against the Government of Abu Dhabi. Id. ¶¶ 104–17. The Abu Dhabi defendants timely moved to dismiss. See Defendants the Government of Abu Dhabi, United Arab Emirates’ Mot. to Dismiss Pl.’s Compl. ("Abu Dhabi MTD") [ECF No. 23]. Janata Bank, however, failed to timely file an answer or motion to dismiss as required by the Federal Rules of Civil Procedure. Instead, it sent two letters to the Court indicating that it had not been properly served under Bangladeshi law. See Letter [ECF No. 15]; Letter [ECF No. 22].

On January 10, 2020, Friedman filed simultaneously a declaration requesting the Clerk of Court to enter a default against Janata Bank and a motion for default judgment. See Decl. in Supp. of Entry of Default Against Janata Bank [ECF No. 25]; Pl.’s Mot. for Default J. Against Janata Bank & Statement of P. & A. in Supp. Thereof ("Default Mot.") [ECF No. 26]. Three days later, the Clerk of Court entered a default against Janata Bank. See Default [ECF No. 28]. Upon entry of default, counsel for Janata Bank entered an appearance and began actively participating in the litigation. Then, following the Court's grant of an extension of time to file the relevant briefs, Janata Bank moved to set aside the entry of default and filed a proposed motion to dismiss. See Def. Janata Bank Ltd. Mot. to Set Aside Entry of Default ("Janata Mot. to Set Aside") [ECF No. 34]; Def. Janata Bank Ltd. Mot. to Dismiss Compl. ("Janata Proposed MTD") [ECF No. 35].

There are, therefore, three pending motions before the Court: (1) the Abu Dhabi defendants’ motion to dismiss; (2) Friedman's motion for default judgment against Janata Bank; and (3) Janata Bank's motion to set aside the entry of default. All three motions are now fully briefed and ripe for decision.

Discussion

I. The Foreign Sovereign Immunities Act

Analysis of this case begins, and in part ends, with the Foreign Sovereign Immunities Act ("FSIA"). The FSIA provides "the sole basis for obtaining jurisdiction over a foreign state in [U.S.] courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) ; see also Orange Middle East & Africa v. Republic of Equatorial Guinea, 2016 WL 2894857, at *2 (D.D.C. May 18, 2016) ("FSIA is the source of jurisdiction in federal court over claims against foreign states, their agencies, or their instrumentalities."). Under the FSIA, "a foreign state is presumptively immune from the jurisdiction of United States courts," and "unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim...