Leutwyler v. Office of Queen Rania al-Abdullah

• Decision Date: 08 August 2001
• Docket Number: No. 00 Civ. 5485(GEL).,00 Civ. 5485(GEL).
• Citation: 184 F.Supp.2d 277
• Parties: Henry LEUTWYLER and Talk to the Hand, Inc., Plaintiffs, v. OFFICE OF HER MAJESTY QUEEN RANIA AL-ABDULLAH, Rania Atalla, Suhad Fitiany, and Alia A Toukan, Defendants.
• Court: U.S. District Court — Southern District of New York

184 F.Supp.2d 277

Henry LEUTWYLER and Talk to the Hand, Inc., Plaintiffs, v. OFFICE OF HER MAJESTY QUEEN RANIA AL-ABDULLAH, Rania Atalla, Suhad Fitiany, and Alia A Toukan, Defendants.

No. 00 Civ. 5485(GEL).

United States District Court, S.D. New York.

August 8, 2001.

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Amy J. Benjamin, Darby & Darby PC, (Eric A. Prager and Shernette A.L. Stafford, of counsel), New York City, for Plaintiffs Henry Leutwyler and Talk to the Hand, Inc.

John S. Willems, White & Case LLP (Karen M. Asner and Sali A. Qaragholi, of counsel), New York City, for Office of Her Majesty Queen Rania Al Abdullah, Rania Atalla, Suhad Fitiany and Alia A. Toukan.

OPINION AND ORDER

LYNCH, District Judge.

This action for copyright infringement, breach of contract and defamation, among other claims, is brought by Plaintiff Henry Leutwyler, A Swiss national who resides in New York City, and his corporation, Talk To The Hand, Inc. (collectively, "Leutwyler"), against Queen Rania Al-Abdullah of the Hashemite Kingdom of Jordan, the Office of the Her Majesty the Queen of Jordan (the "Office of the Queen") (a Jordanian governmental body) and three officials of the Office of the Queen (the "Individual Defendants") (collectively, "Defendants"). On March 28, 2001, the Government of the United States filed a Suggestion of Immunity, requesting the Court to defer to the Executive Branch's determination that Queen Rania is a head of state who should be immune from suit in courts of the United States. Such an Executive Branch decision is entitled to conclusive deference from the courts. See, e.g., Lafontant v. Aristide, 844 F.Supp. 128, 131-32 (E.D.N.Y.1994) Accordingly, by order dated June 13, 2001, the Court dismissed all of the claims asserted against Queen Rania.

The remaining Defendants have moved to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), contending that under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., they are covered by the longstanding presumption that foreign sovereigns and their agents are immune from suit in federal court, and that no exception to the Act covers the claims alleged in this action. They have also moved to dismiss under the doctrines of forum non conveniens and comity.

For the reasons that follow, Defendants' motion to dismiss for lack of subject matter jurisdiction is granted in part and denied in part with regard to those claims asserted against the Individual Defendants. All of the claims asserted against the Office of the Queen are dismissed, because that entity does not have a juridical existence. Leave is granted, however, for Leutwyler to file and serve an amended complaint within 30 days that asserts his copyright infringement and/or breach of contract claims against an appropriate Jordanian governmental entity. Additionally, Defendants' forum non conveniens and comity motions are denied.

BACKGROUND

On a motion to dismiss for lack of subject matter jurisdiction, the Court is required to accept the facts of the plaintiff's complaint as true, unless they have been disputed by the defendants through extrinsic evidentiary submissions, which the Court must then consider to resolve the factual dispute. Filetech S A. v. France Telecom S A, 157 F.3d 922, 932 (2d Cir. 1998); see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027-28 (D.C.Cir.1997) (holding that on a motion to dismiss based on a sovereign immunity defense, "the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial.") (internal quotations omitted). Unless otherwise noted, the facts pertinent to the Court's consideration of Defendants' jurisdictional motions are not controverted by the parties.

Leutwyler Photographs the Royal Family

Henry Leutwyler is a noted New Yorkbased photographer who, among his artistic endeavors, has often been hired as a portraitist by world leaders, entertainers and various other luminaries. (First Am. Compl. ¶¶ 4, 12.) He and his wife, Ruba Abu-Nimah, are co-owners of Talk To The Hand, Inc., a corporation based in New York City, "through which Leutwyler conducts his photography business." (Id. ¶ 5; Leutwyler Decl. ¶ 2.). Ms. Abu-Nimah is the daughter of Hasan Abu-Nimah, who formerly served as Jordan's Ambassador to the United Nations. (Defs.' Mem. Supp. at 2.)

In July 1998, a representative of Princess Rania Al Abdullah, the wife of Crown Prince Abdullah bin Al-Hussein, at that time the heir apparent to Jordan's monarchy, contacted Leutwyler to arrange for him to take black-and-white portraits of the princess in Amman, Jordan. (First Am. Compl. ¶ 14 & Ex. A at 1.) Leutwyler sent a "Production Estimate" to Princess Rania, in which he stated that he would retain all copyright and usage rights in the photographs — with the exception of a limited license to Princess Rania for "public relations and press" purposes. (Id. ¶ 15 & Ex. A at 1-2.) The parties canceled the photo shoot, however, when King Hussein bin Talal. Princess Rania's father-in-law, was stricken with cancer. (First Am. Compl. ¶ 16 & Atalla Aff Ex A at 43) King Hussein died on February 7, 1999, and Prince Abdullah and his wife became King and Queen of Jordan. (Atalla Aff. Ex. A at 43-44.)

Jordan is a patriarchal monarchy, governed by a king who serves as head of state, chief executive and commander-in-chief. The King exercises his executive authority in part through a governmental body called the Royal Court, which acts as a political and administrative conduit through which the King commands the government and the armed forces.¹ The Royal Court, which might be analogized to a hybrid of the United States' Office of the President and various administrative agencies within the Executive Branch, contains various sub-offices and departments that conduct a variety of executive and administrative functions. (Al Rifa`i Aff. ¶¶ 3, 5-6.) One such department is the Office of the Queen, which assists the Queen with her various public functions.

According to Samir Al Rifa`i, the Secretary General of the Royal Court, the Office of the Queen "is not responsible" for any of Queen Rania's "private or personal functions." (Id. ¶ 11.) Indeed, Al Rifa`i avers that two other sub-offices within the Royal Court — His Majesty's Chief Chamberlain and His Majesty's Private Chamberlain — are "responsible for the private affairs of the Royal Family." (Id. ¶ 9.) The Office of the Queen has about seventeen staff members, all of whom are employed by the Royal Court. (Id. ¶ 13.)

By letter dated August 2, 1999, defendant Suhad Fitiany, Queen Rania's Personal Assistant, informed Leutwyler that the Queen was once again interested in arranging for Leutwyler to travel to Amman man — this time, to take photos of the Royal Family at its residence. (First Am. Compl. ¶ 17; Leutwyler Decl. ¶ 5 & Ex. A.) Fitiany is employed by the Royal Court (Al Rifa`i Aff. ¶ 16), and her official responsibilities consist of "a wide variety of matters relating to Her Majesty's public functions, engagements and image," including scheduling "appointments with hair and makeup and other professionals for Her Majesty's public functions, appearances and image" and drafting "correspondence relating to such activities." (Atalla Aff. ¶ 8.)

Leutwyler accepted Queen Rania's offer, and, by letter to Fitiany dated August 2, 1999, agreed to perform his services gratis² — with the exception of his travel, lodging, film and developing costs. (First Am. Compl. ¶ 17 & Ex. E; Leutwyler Decl. ¶ 6 & Ex. B.) Later that month, Leutwyler, accompanied by a hair stylist and makeup artist.³ traveled to Amman, where he took approximately 2,500 photos of the Royal Family, including both formal portraits and casual shots. (First Am. Compl. ¶ 18; Leutwyler Decl. ¶ 10.)

Following the photo shoot, Leutwyler returned to his New York City studio, where he developed temporary "work print[s]" of the various photos taken in Amman. On October 1, 1999, he sent approximately 140 of the prints to defendant Alia Toukan, Queen Rania's Press Secretary (First Am Compl. ¶ 19, Leutwyler Decl. ¶ 12.) Toukan, also an employee of the Royal Court, is responsible as part of her official duties for "overseeing all pressrelated matters for Her Majesty and the office of Her Majesty" (Al Rifa`i Aff. ¶ 15), including reviewing "newspaper and magazine articles that discuss Her Majesty" to ensure that "Her Majesty is portrayed in a favorable light." (Atalla Aff. ¶ 7.) The prints were marked with the following notices. "Copyright Henry Leutwyler, New York City 1999" and "Work Prints for Review Purposes Only." (First Am. Compl. ¶ 20.) In a letter accompanying the prints, Leutwyler informed Toukan that he would grant the Royal Family a limited license for their "personal use and all press rights for all print media throughout the Middle East." Otherwise, the letter further stated, Leutwyler would retain usage rights. (First Am. Compl. ¶ 19; Leutwyler Decl. ¶ 13 & Ex. C.)

By letter dated November 16, 1999, Leutwyler wrote to Toukan to inquire about King Abdullah and Queen Rania's opinions of the interim photos and whether they were interested in ordering any of the final versions. Neither Toukan nor any other employee of the Royal Court responded to Leutwyler's letter. (First Am. Compl. ¶¶ 21-22; Leutwyler Decl. ¶ 14 & Ex. D.)

Publication of Photos in the Jordan Diary

In December 1999, the International Press Office ("IPO") of Jordan, which at that time was a sub-department within the Royal Court (Atalla Aff. ¶ 10), published The 2000 Jordan Diary (the "Jordan Diary," a complete copy of which is annexed as Exhibit A to the Atalla Affidavit). The Jordan Diary, which was marketed and distributed in various countries, including the United States,⁴ contains information about, among other things, Jordan's history, political structure and geography. (Atalla Aff. Ex....