Shamoun v. Republic Iraq
| Decision Date | 26 February 2020 |
| Docket Number | Case No. 19-cv-832-MMA (BLM) |
| Citation | 441 F.Supp.3d 976 |
| Parties | Loaloa SHAMOUN, Plaintiff, v. REPUBLIC OF IRAQ, Embassy of the Republic of Iraq, The Independent High Electoral Commission, and Shefan Khosho, Defendants. |
| Court | U.S. District Court — Southern District of California |
Jimmie Davis Parker, Law Offices of Jimmie Davis Parker, APC, San Diego, CA, for Plaintiff.
Juan C. Basombrio, Dorsey and Whitney LLP, Faisal M. Zubairi, Irvine, CA, for Defendants Republic of Iraq, Embassy of the Republic of Iraq, and the Independent High Electoral Commission.
Hon. Michael M. Anello, United States District Judge On May 3, 2019, Plaintiff Loaloa Shamoun ("Plaintiff") filed a Complaint against Defendants Republic of Iraq ("Republic"), the Embassy of the Republic of Iraq ("Embassy"), the Independent High Electoral Commission ("Commission") (collectively, "Government Defendants"), and Iraqi national Shefan Khosho ("Khosho"). Doc. No. 1.1
Government Defendants filed a motion to dismiss. Doc. No. 16. Plaintiff then filed a First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). See Doc. No. 17 ("FAC"). Plaintiff alleges thirteen causes of action: (1) assault; (2) battery; (3) sexual battery; (4) negligence; (5) negligent infliction of emotional distress; (6) intentional infliction of emotional distress; (7) false imprisonment; (8) respondeat superior; (9) negligent hiring, supervising, and retention; (10) negligence for failure to maintain a reasonably safe workplace; (11) violation of California Labor Code §§ 6400 – 6404 for failure to maintain a safe work environment; (12) violation of California Civil Code § 51.7 for violence based on sex; and (13) violation of California Civil Code § 51.9 for sexual harassment. See FAC.
Government Defendants move to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6), Doc. No. 19. Plaintiff filed an opposition to Government Defendants' motion, and Government Defendants replied. See Doc. Nos. 20, 23. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. Doc. No. 24.
For the reasons set forth below, the Court GRANTS Government Defendants' motion to dismiss Plaintiff's causes of action without leave to amend .
Plaintiff's allegations arise out of a sexual assault that occurred at a polling place in El Cajon, California during the Republic of Iraq's 2018 parliamentary elections. See FAC ¶¶ 1, 20. Plaintiff alleges that Khosho sexually assaulted her and subsequently pled guilty to sexual battery. Id. ¶¶ 1, 28.
Plaintiff alleges that Plaintiff and Khosho were hired as employees of both Commission and Embassy.3 Id. ¶¶ 20–21 Plaintiff states that Commission—"in coordination with the Embassy"—hired Plaintiff, a dual citizen of the United States and Iraq, as a temporary poll worker in May 2018 "at 115 S. Mollison Ave in El Cajon, California (‘El Cajon polling place’) to assist in the operation of their polling location for the May 12, 2018 election servicing Iraqis in the Southern California area." Id. ¶¶ 13, 19–20. Khosho served as "Plaintiff's supervisor and person-in-charge of the El Cajon polling place." Id. ¶ 21. His job involved "overseeing all operations at the location including the direct daily supervision of approximately 50 poll workers." Id. Plaintiff states that she and Khosho were paid for their work by "a check issued by the Embassy [and] drawn from the ‘Embassy Account.’ " Id. ¶ 19.
Plaintiff alleges that Khosho made "threatening and intimidating comments, such as, ‘if anyone disobeys me, I will have them fired, right away.’ " Id. ¶ 22. Khosho also allegedly "frequently made degrading remarks regarding the attire, appearance, weight[,] and work ethic of various female employees occasionally directed at Plaintiff or within earshot of Plaintiff and observed by Defendant Khosho's superiors." Id. Plaintiff avers that Khosho felt "emboldened and secure as the person-in-charge of the polling location, surrounded by [his] family members, women[,] and newly-arrived immigrants while cloaked in the authority of the Republic of Iraq during critical elections." Id. While at work, Khosho "frequently made unwelcomed, lewd[,] and lascivious comments to Plaintiff." Id. ¶ 23. Plaintiff "unequivocally and expressly rejected the advances" and attempted to be accompanied by others while with Khosho. Id. Additionally, Plaintiff claims Khosho "frequently complained that Plaintiff ‘talked too much’ and ‘needed to pay attention’ during meetings, including requiring the separation of her from her friends during the workday." Id.
On May 10, 2018, Plaintiff claims Embassy and Commission sent Asam, an official, "to observe and oversee the election process."4 Id. ¶ 24. Asam "was a higher-ranking employee than Defendant Khosho and had immediate and direct authority over him." Id. Plaintiff alleges Asam failed to intervene despite witnessing Khosho "aggressively interacting and making unwelcomed advances upon Plaintiff during the working hours." Id. This included "intimidation, unwelcome touching, aggressive posturing, unwarranted threats of firing, and discipline of Plaintiff." Id.
During working hours at the polling place on May 11, 2018, Khosho sexually attacked Plaintiff. Id. ¶ 25. The attack occurred on "one of the two days where the polling location was open to the public for voting." Id. ¶ 26. Plaintiff alleges the sexual assault proceeded as follows:
While Plaintiff was alone in the main office of the El Cajon polling place, a room approximately 400 square feet with no windows and one double door, Defendant Khosho approached within one foot of Plaintiff, asked her to speak to him about her failure to pay attention during meetings, and subsequently ask[ed] her to wipe his chin and asked her for a kiss. Plaintiff refused and Defendant advanced upon her, grabbing Plaintiff by the shoulders attempting to kiss Plaintiff. Plaintiff avoided the unwanted kissing and said that she wanted to leave the room. At that time, Defendant Khosho walked to the double doors, locked them and stood in between Plaintiff and her only means of escape. After locking the door, Defendant Khosho continued his assault on Plaintiff despite Plaintiff's numerous pleas of "no" and forcefully grabbed Plaintiff's breasts and genitals over her clothes approximately a dozen times while Plaintiff attempted to fight off the attack. Plaintiff was eventually able to break away from Defendant[,] and the Defendant unlocked the door as he exited the room. The entire attack was recorded on a security camera.
Plaintiff secured the video camera footage of the incident and reported the attack to Asam. Id. ¶ 26. Id. Plaintiff had no further contact with Asam. Id.
Plaintiff alleges that the sexual battery left her traumatized, and she "has suffered and continues to suffer severe emotional distress as a result of the attack, necessitating over year of therapy from a licensed therapist." Id. ¶ 26. Khosho was "initially charged with violations of ... California Penal Code §§ 243.4(A), 236 - Felony Sexual Battery and Felony False Imprisonment with Violence, respectively." Id. ¶ 28. On October 2, 2019, Khosho "pled guilty pursuant to a plea deal to one count of Sexual Battery." Id.
Government Defendants move to dismiss Plaintiff's claims based on lack of subject-matter jurisdiction and failure to state a claim.
A Federal Rule of Civil Procedure 12(b)(1) motion to dismiss allows for dismissal of a complaint for lack of subject-matter jurisdiction. Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes of the Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989). Subject-matter jurisdiction must exist when the action is commenced. Morongo Band of Mission Indians v. California State Bd. of Equalization , 858 F.2d 1376, 1380 (9th Cir. 1988). Further, subject-matter jurisdiction may be raised "at any stage of the litigation." Arbaugh v. Y & H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; see also Fed. R. Civ. P. 12(h)(3) ().
A facial attack on jurisdiction asserts that the allegations in a complaint are insufficient to invoke federal jurisdiction, whereas a factual attack disputes the truth of the allegations that would otherwise confer federal jurisdiction. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a facial challenge to jurisdiction, a court accepts the allegations of the complaint as true and draws all reasonable inferences in favor of the plaintiff. Holy See , 557 F.3d at 1073 (citing Wolfe , 392 F.3d at 362 ). In resolving a factual attack, a court may examine extrinsic evidence "without converting the motion to dismiss into a motion for summary judgment," and a court need not accept the allegations as true. Safe Air for Everyone , 373 F.3d at 1039 ; see also Land v. Dollar , 330 U.S. 731, 735 n.4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) (). "[A] motion to dismiss for lack of jurisdiction under the [Foreign Sovereign Immunities Act] is no different from any other motion...
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