Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation115 F.3d 1020
Docket NumberNo. 96-7220,96-7220
PartiesTara Ann JUNGQUIST, et al., Appellees, v. SHEIKH SULTAN BIN KHALIFA AL NAHYAN, et al., Appellants.
Decision Date12 August 1997

Appeal from the United States District Court for the District of Columbia (No. 95cv01005).

T. Barry Kingham, New York City, argued the cause for appellants, with whom George Kahale, III and Miriam K. Harwood were on the briefs.

R. Kenly Webster, Washington, DC, argued the cause and filed the brief for appellees. Michael W. Kirk entered an appearance.

Before WALD, GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In this interlocutory appeal of the denial of their motion to dismiss the complaint for lack of subject matter and personal jurisdiction, appellants Sheikh Sultan Bin Khalifa Al Nahyan ("Sheikh Sultan"), Khalil I. Al-Malki, Osama Al Baba, and Faisal M. Seddiq Samea contend first, that they are entitled to immunity under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq. ("FSIA"), and second, that due to their lack of contact with the District of Columbia, the district court did not have personal jurisdiction over them. Concluding that we have jurisdiction to consider the immunity claims under the collateral order doctrine, and may properly exercise pendent appellate jurisdiction over the non-immunity jurisdictional contentions, we reverse. Although we conclude that the evidence of a personal promise by Sheikh Sultan to compensate appellees Jungquists for medical expenses and injuries to Tara Jungquist from a boating accident in Abu Dhabi defeats the Sheikh's claim to immunity under the FSIA, we also conclude that the district court erred in ruling that it had personal jurisdiction over the Sheikh. The district court also erred in ruling it had personal jurisdiction over Samea. As to Al-Malki and Al Baba, because the evidence showed that they acted in their official capacities on behalf of a foreign state and the commercial activities exception is inapplicable, they are entitled to FSIA immunity.

I.

According to the complaint, Tara Jungquist, a sixteen-year-old living with her parents, who were United States citizens working in Abu Dhabi, 1 and her older sister Michelle Jungquist attended a boat outing in May 1993, that was organized by Sheikh Sultan, the eldest son of the Crown Prince of Abu Dhabi and the President of the Crown Prince Court. 2 Sheikh Sultan had invited Tara and Michelle in recognition of their work for the Abu Dhabi International Fair, an event hosted by the Sheikh as Honorary Chairman of the Chamber of Commerce. On the return trip from Sheikh Sultans's private island, the Sheikh and one of his guests, after consuming alcoholic beverages, negligently caused two motorboats to collide. Tara was ejected into the water, and as she came to the surface, the rotating propeller of the boat driven by Sheikh Sultan struck and penetrated her skull, causing brain damage, a gash on her left leg, cuts on her hand, and other injuries. She was rushed to local hospitals where she received emergency neurosurgery.

At that time, Sheikh Sultan informed Michelle Jungquist by telephone that he was responsible for the collision and promised that he personally and the Crown Prince Court would fully compensate Tara and her parents for Tara's medical expenses and injuries. The next week Sheikh Sultan, personally and through his agents, reaffirmed to Tara's parents his intention to abide by his promise. For more than a year Tara received medical treatment at several hospitals in Abu Dhabi and elsewhere that was paid for by the Abu Dhabi government, and her family was compensated for related expenses, pursuant to arrangements approved by the Sheikh and carried out by other defendants. Tara's treatments were paid for under the aegis of a medical program of the Abu Dhabi government and administered by the Crown Prince's Court for all citizens and residents in need of foreign medical treatment.

Tara first received treatment abroad by a specialist in Aachen, Germany, who saw her within weeks of the accident. Sheikh Sultan flew to Germany to visit her and, while there again acknowledged his responsibility for the accident and his intention to take care of Tara's expenses; he also gave Tara a diamond watch and a diamond and sapphire necklace. On the recommendation of her doctors in Germany, and pursuant to Sheikh Sultan's instructions, appellant Faisal M. Seddiq Samea, a personal friend and confidant of the Sheikh as well as his secretary at the Crown Prince Court, arranged for Tara to go to the United States for specialized medical treatment and evaluation. In late May, Tara was transferred to Emory Hospital in Atlanta, Georgia, for optic nerve testing and a neurological review, including brain scans and magnetic resonance imaging ("MRI"). Later, she received additional testing, including an MRI, at Johns Hopkins University in Baltimore, Maryland. She returned to Abu Dhabi in September, and between September 1993 and January 1994, she underwent additional neurological and neuropsychological testing in Abu Dhabi hospitals. 3

In January 1994, Tara returned to the United States for more specialized testing and treatment. For the next six months, with the approval of the Medical Attache at the United Arab Emirates ("UAE") Embassy, Tara received extensive testing, evaluation, speech therapy, psychological evaluation, and physical therapy for her leg injury at the National Rehabilitation Hospital in the District of Columbia. Pursuant to UAE authorization, she and her mother received a housing and subsistence allowance while living in the District of Columbia, and established a bank account there to receive the allowance through direct deposits. In March 1994, after Michelle Jungquist complained about a reduction in the allowance, Sheikh Sultan reaffirmed his commitment to pay for Tara's medical expenses and to compensate her for her injuries.

In July 1994, the payments for Tara's medical treatment and related expenses stopped. Earlier that month the National Rehabilitation Hospital and the Jungquists provided a medical report to the UAE's Medical Attache indicating that Tara would require indefinite, long-term medical care to treat the damage to her brain. The Crown Prince Court directed the UAE Medical Attache to refuse to approve further medical treatment for Tara. In August, Al Baba contacted one of Tara's treating physicians in an unsuccessful attempt to persuade him to alter his diagnosis that Tara would require indefinite medical care.

The Jungquists filed suit for money damages, asserting tort, contract, and conspiracy claims, against eight defendants, including the UAE; the Emirate of Abu Dhabi; the Abu Dhabi Crown Prince Court; and Sheikh Khalifa Bin Zayed Al Nahyan, the Crown Prince of Abu Dhabi, as well as appellants Sheikh Sultan; Faisal M. Seddiq Samea; Khalil I. Al-Malki, the UAE Embassy's Medical Attache in the District of Columbia; and Osama Al Baba, the Director of Patient Relations at the UAE Medical Attache's Office in the District of Columbia. 4 The Jungquists sued each appellant for civil conspiracy, fraud, fraud in the inducement, and intentional infliction of emotional distress, and also sued Sheikh Sultan for negligence, negligent entrustment, breach of contract, promissory estoppel, loss of filial consortium, and loss of services. The complaint alleged that in reliance on the promises of Sheikh Sultan and his agents, the Jungquists agreed to "cooperate in protecting Sheikh Sultan from public and private exposure concerning his presence at, involvement in, and responsibility for the collision and the illicit activities engaged in during the boat outing." According to the complaint, under Islamic law, a person who causes a collision resulting in injury requiring hospitalization may be incarcerated until the victim is released, and if the injury is permanent, the person who caused the accident can be incarcerated permanently. Further, the complaint alleged that Sheikh Sultan's father had told him that "if he was lying about [his non-involvement in] the collision, he would personally take Sheikh Sultan 'for a walk in the desert,' meaning that he would cause his son to die."

The defendants moved to dismiss on the grounds that the district court lacked jurisdiction over the subject matter and parties, and on the basis of forum non conveniens. As part of the discovery on the jurisdictional issues, Michelle and Calvin Jungquist submitted affidavits to the effect that Sheikh Sultan had promised that both he, in his personal capacity, and the Crown Prince Court would take care of Tara's medical expenses and her family's related expenses, and that the Sheikh took a number of actions personally to ensure that Tara received treatment and that her expenses and those of her family were taken care of from May 1993 until July 11, 1994. The district court denied in part the motion to dismiss, Jungquist v. Al-Nahyan, 940 F.Supp. 312, 323 (D.D.C.1996), and the non-dismissed defendants appeal. 5

II.

Initially, we must address the Jungquists' contention that the court lacks jurisdiction to review the denial of appellants' motion to dismiss on interlocutory appeal. While acknowledging that the court has appellate jurisdiction to consider appeals from final orders denying certain claims of immunity from suit under the "collateral order doctrine," Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), the Jungquists, relying on Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), maintain that the resolution of the FSIA immunity claim falls outside the collateral order doctrine because it merely "resolved a fact-related dispute about the pre-trial...

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