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JUNGQUIST v. SHEIKH SULTAN BIN KHALIFA AL NAHYAN

September 20, 1996

TARA ANN JUNGQUIST, et al., Plaintiffs,
v.
SHEIKH SULTAN BIN KHALIFA AL NAHYAN, et al., Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court is the defendants' renewed Motion to Dismiss on the grounds of immunity, lack of subject matter and personal jurisdiction, and forum non conveniens. The Court denied the defendants' previous Motion to Dismiss in order to allow limited jurisdictional discovery. Based on the pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed below, the Court shall grant in part and shall deny in part the defendants' renewed Motion to Dismiss.

 BACKGROUND

 The Allegations

 This case involves a tragic boating accident that occurred in Abu Dhabi in 1993. At that time, the plaintiff Tara Ann Jungquist was a sixteen-year-old, unmarried, American child who lived with her parents in Abu Dhabi. She was a sophomore at the American Community School in Abu Dhabi. Compl. P 4. Tara's father, Calvin E. Jungquist, was employed by the Abu Dhabi National Oil Company for Distribution in Abu Dhabi as Coordinator for Technical and Marketing Affairs and as Advisor to its Director General. He had held these positions for over a year. Id. P 5. Tara's mother, Charlotte T. Jungquist, was employed as an executive secretary in Abu Dhabi with the Abu Dhabi Oilfield Services Establishment, where she had worked since June 1992. Id. P 6. At present, all of the plaintiffs are citizens of the United States and reside in the State of New York. Id. P 15.

 Tara Jungquist and her sister Michelle worked at the Abu Dhabi International Fair, an event hosted by Sheikh Sultan Bin Khalifa Bin Zayed al Nahyan ("Sheikh Sultan"), as the Honorary Chairman of the Chamber of Commerce. Aff. of Michelle Jungquist ("MJ Aff.") P 2. As the grandson of the ruler of Abu Dhabi and the first-born son of the Crown Prince of Abu Dhabi, Sheikh Sultan is in the direct line of succession to be the ruler of Abu Dhabi. Sultan Depo. at 6-7. Sheikh Sultan holds prominent positions in the Abu Dhabi government: he is the President of the Crown Prince Court, a member of the Executive Council of the Crown Prince Court, and the Honorary President of the Abu Dhabi Chamber of Commerce. Sultan Depo. at 7-9. In recognition of Tara's and Michelle's work at the fair, Sheikh Sultan invited the two sisters to attend a boat outing. MJ Aff. P 3.

 It is alleged that during the boat outing, on their return trip to the Royal Docks, Sheikh Sultan and one of his guests drove two motorboats recklessly through a hazardous channel after consuming alcoholic beverages. Compl. P 48, 51-80; MJ Aff. P 5. Their boats collided and Tara, a passenger in one of the boats, was ejected into the water and struck by the rotating propeller of the boat driven by Sheikh Sultan when he failed to turn off the engine. Id. ; Compl. P 71, 96, 117. As a result of the accident, Tara suffers permanent brain damage. Id. Although Sheikh Sultan admits to owning the two boats, he denies any involvement in the accident. Sheikh Sultan Depo. at 28-29.

 The plaintiffs allege that the contract was partially performed in the District of Columbia where Tara Jungquist was housed, medically treated, and supervised for several months at the defendants' expense. Compl. P 1. Using the formal procedural channels of the Crown Prince's Court and its medical treatment program, Sheikh Sultan and his agents paid Tara's expenses from the defendant United Arab Emirates' bank account in the District of Columbia to the Jungquists' bank account in the District of Columbia and to the National Rehabilitation Hospital in the District of Columbia. Id. After it was confirmed that Tara's brain damage was permanent and she would need indefinite medical care, the payments were terminated. Id. P 152.

 The Defendants

 The plaintiffs have named eight defendants in a 10 count complaint. The defendant United Arab Emirates is a federation of seven autonomous emirates. Abu Dhabi is one of the seven Emirates. The Abu Dhabi Crown Prince's Court is the administrative arm of the Crown Prince of Abu Dhabi, Sheikh Khalifa Bin-Zayed Al-Nahyan ("Sheikh Khalifa"). Sheikh Khalifa also is named in the Complaint, in his official capacity as the Crown Prince of Abu Dhabi. The defendant Sheikh Sultan, named in his individual and official capacities, is the eldest son of Sheikh Khalifa and is Chairman of the Crown Prince's Court. At all times relevant herein, the defendant Khalil I. Al-Malki ("Al-Malki"), named in his individual and official capacity, was a citizen of the UAE, and was the UAE Embassy's Medical Attache in Washington, DC. The defendant Osama Albaba ("Albaba"), named in his individual and official capacities, was a Lebanese citizen and employed as Director of Patient Relations at the UAE Medical Attache's office in Washington, DC. See Defs' Original Mot. to Dismiss at 1-2. The defendant Faisal M. Seddiq Samea ("Samea") is named in his individual capacity. He is alleged to be a personal friend and confidant of Sheikh Sultan, his secretary at the Crown Prince's Court, his private advisor, and Director General of the Abu Dhabi International Sports Club. Compl. P 14.

 Sheikh Sultan has been sued for civil conspiracy, negligence, negligent entrustment, fraud in the inducement, fraud, breach of contract, promissory estoppel, intentional infliction of emotional distress, loss of filial consortium, and loss of services. Al-Malki, Albaba, and Samea have been sued for civil conspiracy, fraud in the inducement, fraud, and intentional infliction of emotional distress. Sheikh Khalifa has been sued for breach of contract and promissory estoppel. The Crown Prince's Court has been sued for civil conspiracy, fraud in the inducement, fraud, breach of contract, promissory estoppel, and intentional infliction of emotional distress. The UAE and Abu Dhabi have been sued for fraud in the inducement, fraud, breach of contract, and promissory estoppel.

 DISCUSSION

 Pursuant to Rule 12 of the Federal Rules of Civil Procedure, the Court must dismiss a claim if it lacks jurisdiction over the subject matter or parties of the claim. Fed. R. Civ. P. 12(b)(1)-(2). In evaluating the plaintiffs' complaint on a motion to dismiss, the Court must base its judgment on the facts as alleged by the plaintiff and generously construed in the plaintiff's favor. Foremost-McKesson v. Islamic Republic of Iran, 284 U.S. App. D.C. 333, 905 F.2d 438, 440 n.3 (D.C. Cir. 1990); Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 311 U.S. App. D.C. 224, 52 F.3d 373, 375 (D.C. Cir. 1996) (on motion to dismiss, court must accept the factual allegations as true and draw all reasonable inferences therefrom in favor of the plaintiffs).

 The plaintiffs assert that the Court has subject matter jurisdiction under 28 U.S.C. § 1330 and 1332. They assert that the Court has personal jurisdiction over the defendants UAE, Abu Dhabi, the Abu Dhabi Crown Prince's Court, and Sheikh Khalifa pursuant to 28 U.S.C. § 1330, which provides that personal jurisdiction over a foreign state exists if subject matter jurisdiction exists and if service of process has been made. The plaintiffs further assert that the Court has personal jurisdiction over the individual defendants based on their purposeful and continuous contacts with the District of Columbia pursuant to the District's Long Arm Statute, D.C. Code § 13-423 and consistent with the Due Process clause of the Constitution. The plaintiffs assert that venue is proper under 28 U.S.C. § 1391(a), (d) and (f)(4).

 I. THE COURT HAS SUBJECT MATTER JURISDICTION OVER THE CLAIMS AGAINST THE DEFENDANTS SHEIKH SULTAN, AL-MALKI, ALBABA, AND SAMEA PURSUANT TO 28 U.S.C. § 1332; THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE CLAIMS AGAINST THE DEFENDANTS SHEIKH KHALIFA, ABU DHABI CROWN PRINCE'S COURT, ABU DHABI, AND THE UNITED ARAB EMIRATES.

 Section 1330 of Title 28 grants original jurisdiction in the district courts of "any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity . . . ." 28 U.S.C. § 1330. Section 1332 grants original jurisdiction in the district courts of "all civil actions where the matter in controversy exceeds the sum or value of $ 50,000 *fn1" . . . and is between [] citizens of a State and citizens or subjects of a foreign state . . . ." 28 U.S.C. § 1332. The defendants in the present case undisputedly are either foreign states or citizens or subjects of a foreign state. Thus, in order to exercise jurisdiction over the subject matter of the claims against these defendants, the Court must determine whether any of the defendants are entitled to immunity.

 A. THE FOREIGN SOVEREIGN IMMUNITIES ACT DOES NOT CONFER IMMUNITY TO THE DEFENDANTS SHEIKH SULTAN, AL-MALKI, ALBABA, AND SAMEA BECAUSE, NOT HAVING ACTED IN THEIR OFFICIAL CAPACITIES, THEY ARE NOT "AGENCIES OR INSTRUMENTALITIES" WITHIN THE MEANING OF THE ACT.

 The Foreign Sovereign Immunities Act, ("FSIA"), 28 U.S.C. §§ 1602-11, defines "foreign state" for the purposes of § 1330 and provides that a foreign state is entitled to immunity except as exempted from immunity by the FSIA. Thus, the FSIA "must be applied by the District Courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989) (FSIA provides sole basis for obtaining jurisdiction over a foreign state in a United States Court).

 Under the FSIA, a "foreign state" includes "political subdivision[s]" and "agencies or instrumentalities" thereof. 28 U.S.C. § 1603(a). The FSIA defines "agency or instrumentality of a foreign state" as any entity

 
(1) which is a separate legal person, corporate or otherwise, and
 
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign ...

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