The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss for lack of subject matter and personal jurisdiction under Rule 12(b)(1) and (2) of the Federal Rules of Civil Procedure. Plaintiffs have brought suit seeking damages for defendant Kingdom of Saudi Arabia's alleged breach of two agreements to provide plaintiffs with financial assistance for medical treatment and other expenses. The Kingdom of Saudi Arabia asserts that it is a sovereign nation immune from suit in the courts of this country under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq. It further asserts that this Court does not have personal jurisdiction over it. Upon consideration of the motion, the opposition, the reply, and the entire record in this case, the Court will deny defendant's motion without prejudice.
Plaintiffs are Taha Elbasir, his wife Saadia Mohamed Ibrahim, and their minor children. See Complaint ("Compl.") at 1. Mr. Elbasir and his family are Sudanese citizens who formerly lived in Saudi Arabia. See id. ¶¶ 13, 14; see also Plaintiff's Opposition to Defendant's Motion to Dismiss ("Opp.") at 1. While living and working in Saudi Arabia, Mr. Elbasir was injured in an automobile accident on October 7, 1999. See Compl. ¶¶ 3, 4; Opp. at 1. Plaintiffs allege that the teenage driver of the car that injured Mr. Elbasir is a "member of the Royal Family." Compl. ¶ 5. Mr. Elbasir suffered traumatic brain injury and was apparently comatose for a period of time. Compare id. ¶ 4 (Mr. Elbasir was "unconscious for 2 months") with Opp. at 1 (Mr. Elbasir was "in a coma for over six months").
Following his injury, Mr. Elbasir received medical treatment in Saudi Arabia. See Motion to Dismiss for Lack of Subject Matter and Personal Jurisdiction ("Mot.") Ex. 2, Declaration of Dr. Mohammed A. Al-Sekait ("Al-Sekait Decl.") ¶ 6 (describing Mr. Elbasir's treatment history based on Elbasir's medical records). Plaintiffs allege that the government of Saudi Arabia promised to "pay all [Mr. Elbasir's] medical expenses and take care of the family until [he] is able to return to work" in exchange for the family not prosecuting the driver of the car. See Compl. ¶ 5. They further claim that this agreement was made in writing by Prince Abdulaziz bin Fahad bin Abdulaziz Al-Saud, but that the document reflecting the agreement was taken away from defendant's wife, Ms. Ibrahim, before the family left Saudi Arabia. See Opp. Ex. 3, Declaration of Sadia [sic] Ibrahim ("Ibrahim Decl.") ¶¶ 3, 4. Defendant counters that Mr. Elbasir's treatment was provided as part of Saudi Arabia's national health care system, and not pursuant to any agreement between plaintiffs and the Kingdom of Saudi Arabia. See Mot. at 12-16; Al-Sekait Decl. ¶ 3 (stating that, at the time of Mr. Elbasir's accident, Saudi Arabia's health care plan provided care for resident workers and their families). Defendant does not address or refute assertions respecting the alleged agreement between plaintiffs and Prince Abdulaziz bin Fahad bin Abdulaziz Al-Saud beyond the bare statement by Dr. Mohammed Al- Sekait, Director of the Saudi Embassy's Medical Supervision Division, in a sworn declaration that he does not have personal knowledge of such a promise. See Al-Sekait Decl. ¶ 18. From Dr. Al-Sekait's declaration it is clear, however, that he was not personally involved with Mr. Elbasir's treatment in Saudi Arabia; the declaration does not purport to represent that such an agreement was not reached.
After Mr. Elbasir was discharged from the hospital in Riyadh, Saudi Arabia where he was initially treated for his injuries, he was given further treatment at a rehabilitation hospital in Jeddah, Saudi Arabia. See Al-Sekait Decl. ¶ 6. On October 5, 2000, plaintiffs applied to the Saudi Patient Division of the Center for Research and Study ("the Center") for monetary assistance to pursue additional medical rehabilitation treatment beyond the care he received in the Saudi hospitals. See id. ¶ 7. The Center is run by Prince Abdulaziz bin Fahd bin Abdulaziz Al-Saud and provides assistance to those who require care not available in the Saudi Arabian health care system who cannot afford to pay for it themselves. See id. ¶ 3. The Center granted Mr. Elbasir's request for additional treatment, and he, his wife, and their three young children came to Washington D.C., where Mr. Elbasir was admitted for inpatient treatment to the National Rehabilitation Hospital ("NRH") on April 4, 2002. See id. ¶¶ 7, 9; see also Compl. ¶¶ 7, 8. While in the United States, Mr. Elbasir's treatment was overseen by Dr. Al-Sekait as the Director of the Saudi Arabian Embassy's Medical Supervision Division. See Al-Sekait Decl. ¶¶ 4, 5; see also Compl. ¶ 12.
As a result of his treatment at the NRH, Mr. Elbasir's condition improved. See Compl. ¶ 8; see also Mot. Ex. 1E, Sept. 17, 2002 Examiner's Report on Taha Ali Al-Baseer [sic] ("Examiner's Report"). As a result of Mr. Elbasir's improved condition, on July 9, 2002 NRH doctors recommended to Dr. Al-Sekait that Mr. Elbasir be discharged to out-patient care. See Mot. Ex.1B, July 18, 2002 Letter from Wendy Baynard, Director, NRH International, Telehealth and Volunteer Programs to Dr. Mohammed Al-Sekait ("Baynard Letter"); Al-Sekait Decl. ¶ 10. On July 10, 2002, the NRH unsuccessfully attempted to discharge Mr. Elbasir. See Examiner's Letter; Al-Sekait Decl. ¶¶ 11, 12. Mr. Elbasir's wife, Ms. Ibrahim, apparently refused to allow him to leave in-patient care and was uncooperative with NRH staff. See Examiner's Report; see also Al-Sekait Decl. ¶ 11. Because of these problems with Mr. Elbasir's wife and the undesirable impact it had on Mr. Elbasir's behavior, the NRH suggested to Dr. Al-Sekait that Mr. Elbasir's wife and their children return to Sudan, and that Mr. Elbasir remain at the NRH only through the end of July for a scheduled ear surgery. See Baynard Letter at 2; Al-Sekait Decl. ¶ 11.
At some point between July 18, 2002 and August 13, 2002, the NRH again attempted to move Mr. Elbasir and his family from in-patient accommodations to a temporary room in the hospital, as part of a plan to eventually move plaintiffs to the NRH's guest accommodation facilities. See Mot. Ex. 1C, August 14, 2002 letter from Todd Bernstein, Medical Director, NRH International Program to Dr. Mohammed Al-Sekait ("Bernstein Letter"). Again plaintiffs refused to cooperate. As the NRH prepared to move plaintiffs to a different floor within the hospital, Mr. Elbasir's wife left the hospital and refused to disclose her whereabouts to NRH staff, forcing the hospital to keep Mr. Elbasir in in-patient treatment for safety reasons. See Al-Sekait Decl. ¶ 12; Examiner's Report; Bernstein Letter. Ms. Ibrahim stated that the attempt to move her husband from outpatient treatment violated her agreement with Prince Abdulaziz bin Fahad bin Abdulaziz Al-Saud. Ibrahim Decl. ¶¶ 8-9. She further stated that defendant was already in violation of its agreement with her because it did not provide her or her children with accommodations, as it does for most Saudi citizens. Id. ¶¶ 10-12.
The hospital terminated Mr. Elbasir's therapy on August 13, 2002 and provided Mr. Elbasir with "medical care only." See Examiner's Report; Mot. Ex. 1D, August 20, 2002 letter from Dr. Andrew McCarthy to Dr. Al-Sekait.*fn1 On August 14, 2002, the hospital requested Dr. Al-Sekait's assistance in dealing with the Mr. Elbasir and Ms. Ibrahim. See Bernstein Letter. On August 15, 2002, Dr. Al-Sekait notified plaintiffs that the Center was terminating its sponsorship of Mr. Elbasir's treatment in the United States. See Al-Sekait Decl. ¶ 13.
Ms. Ibrahim continued to refuse to cooperate in the NRH's plan to discharge her husband. See Examiner's Report. Pursuant to the NRH's request, Maher H. Hanania (who is also plaintiff's counsel in this matter) was appointed Mr. Elbasir's guardian by the Superior Court of the District of Columbia on October 1, 2002. See Compl. ¶ 11. On October 25, 2002, the NRH was granted a temporary restraining order by the Superior Court, enjoining Mr. Elbasir from occupying NRH premises after October 28, 2002. See Mot. Ex. 1A, District of Columbia Superior Court Temporary Restraining Order.
After the issuance of the temporary restraining order, Mr. Elbasir's guardian Mr. Hanania "looked to the government of Saudi Arabia to provide [the Elbasir family with] the means" to continue to pay for outpatient treatment and living expenses. See Opp. at 3. Plaintiffs allege that Mr. Hanania contacted the Saudi Arabian embassy and spoke with Dr. Al-Sekait. See id. Plaintiffs claim that Dr. Al-Sekait "informed the guardian that if [the guardian] took [p]laintiffs out of the hospital[, Dr. Al-Sekait] would continue financial assistance for the family's expenses and out-patient treatment." Compl. ¶ 16. Plaintiffs maintain that they have incurred various non-medical expenses in reliance on Dr. Al-Sekait's assurances that defendant would continue financial assistance to the family, including leasing an apartment at a cost of over $15,000, buying furniture costing $4,700, and $15,000 in personal expenditures. Id. ¶¶ 17-19; see also Ibrahim Decl. ¶ 28 (stating that as of June 27, 2005, plaintiffs had borrowed approximately $50,000 based on Dr. Al-Sekait's alleged assurances).
Defendant has moved to dismiss on two bases: lack of personal jurisdiction and lack of subject matter jurisdiction. The arguments the defendant advances in its motion relate solely to the assertion of sovereign immunity without explicit reference to whether such immunity presents a challenge to personal or subject matter jurisdiction. Defendant's argument for dismissal under the FSIA on grounds that the defendant is immune from suit is properly the subject of a motion to dismiss for lack of subject matter jurisdiction. See Republic of Austria v. Altmann, 541 U.S. 677, 691 (2004) (subject matter jurisdiction exists in the federal courts of the United States under the FSIA only if one of the exceptions to sovereign immunity applies); Kirkham v. Societe Air France, 429 F.3d 288, 291 (D.C. Cir. 2005) ("[P]arties seeking FSIA immunity do so through Rule 12(b)(1) motions to dismiss for lack of ...