McKevitt v. Mueller

• Decision Date: 16 February 2010
• Docket Number: No. 09 Civ. 3744 (JGK).,09 Civ. 3744 (JGK).
• Citation: 689 F. Supp.2d 661
• Parties: John McKEVITT, Plaintiff, v. Director Robert MUELLER III, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

689 F.Supp.2d 661

John McKEVITT, Plaintiff, v. Director Robert MUELLER III, et al., Defendants.

No. 09 Civ. 3744 (JGK).

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

February 16, 2010.

Eamonn Seamus Dornan, Dornan & Associates, PLLC, Long Island City, NY, for Plaintiff.

Emily Ewell Daughtry, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

John McKevitt ("the plaintiff" or "McKevitt"), currently imprisoned in the Republic of Ireland for terrorism-related offenses, is a defendant in a civil case in Northern Ireland brought by the families and relatives of victims of a car bombing in Omagh, Northern Ireland on August 15, 1998. The bombing caused the deaths of twenty-nine people and injured many others. The civil suit alleges that McKevitt was responsible for the bombing both personally and as a leader of the Real Irish Republican Army ("Real IRA").

The plaintiff here seeks to obtain documents from the Federal Bureau of Investigations ("FBI") pertaining to an alleged cooperator who testified against the plaintiff at his criminal trial. The plaintiff, as a defendant in the civil case in Northern Ireland, sought to obtain documents by having the court in Northern Ireland request the documents under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Evidence Convention"). After the FBI failed to produce the requested documents, the plaintiff brought this suit against the United States Department of Justice, the FBI, and assorted government personnel in their official capacity (collectively, "the defendants") under the Freedom of Information Act ("FOIA"), the Hague Evidence Convention, 28 U.S.C. § 2201 (the declaratory judgment act), and 28 U.S.C. § 1361 (writ of mandamus).

The defendants move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Procedure 12(b)(1) & (6).

I.

When presented with motions under both Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990); Abrahams v. App. Div. of the Sup. Ct. 473 F.Supp.2d 550, 554 (S.D.N.Y.2007), aff'd on other grounds, 311 Fed.Appx. 474 (2d Cir.2009); see also S.E.C. v. Rorech, 673 F.Supp.2d 217, 220 (S.D.N.Y.2009).

In defending a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir.2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). In so doing, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Rorech, 673 F.Supp.2d at 220-21.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007); Arista Records LLC v. Lime Group LLC, 532 F.Supp.2d 556, 566 (S.D.N.Y.2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.; see also Rorech, 673 F.Supp.2d at 221-22.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir.2003); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); Rorech, 673 F.Supp.2d at 221-22.

II.

The following facts are undisputed, unless otherwise noted.

The plaintiff, a citizen of the Republic of Ireland, was convicted of membership in an illegal organization and directing terrorism and is currently incarcerated in Laois, Ireland. (Compl. ¶ 18.) David Rupert ("Rupert"), who has acknowledged cooperating with the FBI and the British intelligence agency, was a key witness against the plaintiff in the criminal trial. (Compl. ¶ 21.)

McKevitt is also a defendant in a civil case before the High Courts of Justice in Northern Ireland, brought by the families of the victims of a car bombing on August 15, 1998 in Omagh, Northern Ireland. (Compl. ¶¶ 7, 19.) Twenty-nine people died in the attack and many more were injured. (Compl. ¶¶ 19-20.) The suit alleges that McKevitt is responsible for the attack both personally and as the leader of the Real IRA. (Compl. ¶¶ 19-20.) While the case in this Court was still pending, McKevitt lost the civil suit in Northern Ireland. See John F. Burns, $2.6 Million Awarded in Suit Over Northern Ireland Attack, N.Y. Times, June 8, 2009, at A4. At argument of the current motion, the plaintiff's counsel advised that an appeal is pending in that case.

Rupert was originally listed as a witness in the civil trial, but the FBI later notified the civil plaintiffs in Northern Ireland that he would not be available to testify. (Compl. ¶¶ 22-23.) The Irish plaintiffs were successful in having Rupert's statements and e-mails adduced as part of the plaintiffs' case, but Rupert was not available for cross-examination by McKevitt. (Compl. ¶ 23.) In response, McKevitt sought disclosure by Letter Rogatory of various documents relating to Rupert's work for any payment from the FBI and other intelligence agencies. (Compl. ¶¶ 24-26.)

The Department of Justice's ("DOJ") Office of International Judicial Assistance ("OIJA") received the Letter Rogatory request for international judicial assistance from the High Courts of Justice in Northern Ireland pursuant to the Hague Evidence Convention on September 17, 2008 and a clarification to direct the request to the FBI on November 3, 2008. (Compl. ¶ 12 & Ex. A.) On March 5, 2009, Robert Hollis, the DOJ director of OIJA, declined to provide the requested information under the rationale of FOIA exemptions 1 and 7. (Compl. ¶¶ 12, 14 & Ex. B.) See also 5 U.S.C. § 552(b)(1) & (7) (FOIA exemptions for national security and law enforcement).

The plaintiff now brings this action to compel production of the documents pursuant to the Hague Evidence Convention, 28 U.S.C. §§ 1781-82, FOIA 5 U.S.C. § 552, and for declaratory judgment, injunctive relief, and writ of mandamus pursuant to 28 U.S.C. § 1361. The Government moves to dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Procedure 12(b)(1) & (6).

III.

A.

The plaintiff's major alleged basis for federal jurisdiction is the FOIA. Under the FOIA, an agency must make records available, unless an exemption applies, when there is a "request for records ... made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(a)(3)(A). After a request is received, an agency has twenty days, excepting weekends and legal public holidays, to determine whether it will comply with the request and immediately notify the requester of its determination and the right to appeal an adverse determination. See 5 U.S.C. § 552(a)(6)(A)(i). This Court has jurisdiction to compel production when records are "improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). A plaintiff has standing to bring such a complaint in this Court when "a person makes a request for information under the FOIA and the petitioned agency denies that request." McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir.1993) (citing United States v. Richardson, 418 U.S. 166, 171, 94 S.Ct. 2940, 41 L.Ed.2d 678 (19...