Saleh v. Nahyan
| Decision Date | 22 September 2021 |
| Docket Number | Civil Action 20-1168 (ABJ) |
| Parties | AYMAN SALEH, et al., Plaintiffs, v. KHALIFA BIN ZAYED AL NAHYAN President, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs Ayman Saleh and Linda Saleh brought this action on May 5 2020, for claims arising from the October 2015 alleged kidnapping and assault of Ayman in Abu Dhabi, under the Alien Tort Claims Act, 28 U.S.C. 1350, the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. 102-256 106 Stat. 73, (Mar. 12, 1992), codified at 28 U.S.C. 1350 “the Fourth Geneva Convention, President Lincoln's 1863 Lieber Code, the Law of Nation's clause in the U.S Constitution, the bilateral treaty between the UAE and the U.S., and various international human rights conventions.” Compl. [Dkt. # 1] ¶ 1. They filed this suit against four defendants: DarkMatter, the United Arab Emirates (“UAE”), the current President of the UAE, Sheikh Khalifa bin Zayed Al Nahyan (“the President”), and the Crown Prince and Deputy Supreme Commander of the UAE Armed Forces, Sheikh Mohammed bin Zayed Al Nahyan (“the Crown Prince”). Id. ¶¶ 8-9. Of the eight counts in plaintiffs' complaint, defendant DarkMatter is only named in Count III, for violating the TVPA, and Count VIII, for engaging in civil conspiracy with the other defendants. Id. ¶¶ 24-25, 45-50.
Pending before the Court is defendant DarkMatter's motion to dismiss. Def.'s Mot. to Dismiss [Dkt. # 17] (“Mot.”); Def.'s Mem. of Law in Support of Def.'s Mot. [Dkt. # 17] (“Mem.”). Defendant has moved to dismiss this action for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process, and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6), respectively. Id. Plaintiffs have replied, and the matter is fully briefed.[1] See Pls.' Opp. to Def.'s Mot. to Dismiss [Dkt. # 20] (“Opp.”); Def.'s Reply Mem. in Supp. of Mot. [Dkt. # 21] (“Reply”). Because the Court concludes that it lacks subject matter jurisdiction over defendant DarkMatter for the claim arising from the TVPA, and plaintiffs fail to state a claim for civil conspiracy against the defendant, it will grant the motion to dismiss without reaching the issues of personal jurisdiction or insufficient service of process.
Plaintiffs Ayman Saleh and Linda Saleh are married and domiciled in Portland, Oregon. Compl. ¶ 2. Linda is a United States citizen, and Ayman is a dual citizen of the United States and the United Arab Emirates. Id. ¶¶ 6-7. Plaintiffs allege the following facts in their complaint.
On October 14, 2015, Ayman was walking to the grocery store in Abu Dhabi when he was approached by state security agents. Compl. ¶ 15. The agents claimed they needed to ask Ayman a few questions. Id. Ayman went with the agents “because he feared that a long interrogation would ensue if he did not do so.” Id. ¶ 16. The agents escorted Ayman to a police station where they locked him in an office and tortured him. Id. Ayman was strangled, kicked in the head, “smacked across the face, dragged across the floor, repeatedly whipped with electrical wire, and threatened with a gun to his head.” Id. ¶ 17.
During the assault, Ayman was repeatedly questioned about his religion. Compl. ¶ 18. Ayman told the agents he was Muslim, which upset the agents and did not halt his brutalization. Id. Upon Ayman's repeated insistence that he was Muslim, the agents “pulled out a cell phone with [Ayman's] baptism certificate from 2013 (for converting to Christianity) and placed it on the table in front of [him].” Id. Ayman contends that at that moment, he believed was being tortured because he had converted from Islam to Christianity, id. ¶¶ 18, 21, and because the UAE government “prescribes punishment, including the death penalty, for the possession of material that opposes Islam.” Id. ¶ 9. Converting from Islam to Christianity, according to plaintiffs, “is something that you d[o] not do in the UAE.” Id. ¶ 33.
Plaintiffs allege that the Crown Prince and the President hired the security company that employed the agents who detained and tortured Ayman Saleh, Compl. ¶ 40, and that the UAE retained defendant DarkMatter to engage in the “offensive mass surveillance” of its citizens that resulted in these events. Id. ¶¶ 46-50; see also id. ¶ 11 (). According to the complaint, DarkMatter is a cybersecurity company founded in the UAE in 2014 that hires toplevel talent from the world's tech giants and recruits skilled hackers and staff. Id. ¶¶ 46-47. Plaintiffs claim that the UAE “has adopted a policy of close surveillance of its citizens in the guise of national security” and that DarkMatter “partners with the UAE government to conduct offensive mass surveillance of its citizens, including digital espionage services.” Id. ¶ 46. Plaintiffs allege that DarkMatter partners with the UAE government to hack hardware probes installed in major cities, take advantages of weaknesses in the software, and install malware to locate and hack UAE-based individuals. Id. Plaintiffs believe that Ayman was a victim of these cybersecurity tactics when he was targeted by the security agents and allege that DarkMatter and the Crown Prince conspired to “prevent religious conversions and inflict severe pain on all UAE citizens who renounced the Islamic faith, ” including Ayman Saleh. Id. ¶¶ 49-50.[2]
Plaintiffs filed this action on May 5, 2020. See Compl. Plaintiffs struggled to serve defendants, and on June 24, 2020, filed their first motion for alternative methods of service, seeking permission to effectuate service by alternative means on DarkMatter. Pls.' Req. for Service by Alternative Methods [Dkt. # 3] (“Req.”). On July 30, 2020, the Court granted the motion and ordered that “[p]laintiff[s] . . . utilize all of the proposed methods contained in [their] request.” Min. Order (July 30, 2020). On October 19, 2020, plaintiffs successfully served defendant DarkMatter. See Return of Service [Dkt. # 11]; see also Pls.' Status Report for Service of Process [Dkt. # 14] ¶¶ 2-4.
On December 18, 2020, defendant DarkMatter filed a motion to dismiss the claims against it on multiple grounds: lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); lack of personal jurisdiction over defendant DarkMatter pursuant to Federal Rule of Civil Procedure 12(b)(2); insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5); and for failure to state a claim upon which relief may be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6). Mot. at 1. Plaintiffs oppose the motion, request an award of jurisdictional discovery, and maintain that the Court has personal jurisdiction under the District's long-arm statutes. See Opp. ¶¶ 17, 21, citing D.C. Code §§ 13-422 & 13-423 (2001).
In evaluating a motion to dismiss under Rule 12(b)(1) or 12(b)(6), the Court must “treat the complaint's factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (). But the Court need not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept a plaintiff's legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (rule 12(b)(6) case); see also Food and Water Watch, Inc v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (rule 12(b)(1) case).
Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); see also Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
It is the plaintiff who bears the burden of establishing...
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