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Nattah v. Bush

March 31, 2008

ABDULWAHAB NATTAH, PLAINTIFF,
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM OPINION

Now before the Court comes three motions by plaintiff Abdulwahab Nattah: motion [47] for leave to file first amended complaint, motion [48] for leave to join additional defendants, and motion [48] to vacate this Court's Order [32] granting dismissal to federal defendants.*fn1 Also before the Court is Defendant L-3 Communications Titan Group's ("Titan")*fn2 motion [38] to dismiss. Upon full consideration of the motions, opposition briefs, replies, the entire record herein, and applicable law, the Court finds that the motion for leave to file amended complaint will be GRANTED in part and DENIED in part, the motion to join additional defendants will be DENIED, the motion to vacate will be DENIED, and Titan's motion to dismiss will be GRANTED.

I. BACKGROUND

In January 2003, plaintiff Nattah, a dual citizen of Libya and the United States, began working as an employee of Titan as an Arabic linguist. (Am. Compl. ¶¶ 13, 97.) Although plaintiff makes reference to an employment contract signed January 17, 2003 (See id. ¶ 97), his employment offer letter, which Nattah signed on January 17, 2003, indicates that he would work in the capacity of an "at-will employee." (See Ltr. from Williams to Nattah (Jan. 17, 2003), Ex. 1 to Mot. to Dismiss.) According to Nattah, Titan contracted not to send Nattah to work in a war zone, promised that he would receive luxury accommodations in Kuwait, and agreed that he would only be terminated for one of three reasons. (Am. Compl. ¶¶ 22, 93--94.) Nattah states that he, relying upon these representations by Titan and those by President Bush regarding Iraq- including the representation that the war in Iraq would be swift and would not entail battling an insurgency-decided to accept Titan's employment offer. (See id. ¶¶ 75--90, 96, 139.)

At some time in early 2003, Nattah began working for Titan in Kuwait. According to Nattah, as the United States was preparing to invade Iraq, Titan "sold plaintiff as a slave to the military." (Id. ¶ 101.) At that time, "the U.S. military made plaintiff one of the first prisoner[s] of war." (Id. ¶ 102.) The military then allegedly forced Nattah to work in Iraq against his will and he was deployed there as a military interpreter on March 20, 2003. (Id. ¶ 103.) Plaintiff contends that these events occurred because of the military's secret agreement as to the "slave sale" with Titan "to trick plaintiff into staying in Kuwait" until war commenced in Iraq "at which time it would be impossible for plaintiff to leave the war zone." (See Docket Entry [47] at 6.) Nattah states that he "objected to his confinement, but that neither the military nor Titan would agree to release him from bondage." (Am. Compl. ¶ 103.)

At some point during Nattah's service in Iraq, he suffered a loss of all hearing in his left ear and partial hearing in his right ear, and required medical attention. (Id. ¶¶ 112--13, 118.) According to Nattah, he was sent to the American Army Hospital in Landstuhl, Germany and examined on May 16, 2003. (Id. ¶113.) Plaintiff next asserts that in June 2003, Rob Hansen, Deputy Director for Operations, indicated in a memo that Nattah needed to return to the United States, as he was on leave without pay as of May 12, 2003. (See id. ¶ 114.) Nattah felt that he needed to stay in Germany because "turbulence associated with a flight back to the United States would result in his death." (Id. ¶ 115.) At this point, Mr. Hansen apparently communicated to Nattah that his employment was terminated. (Id.) Then, Nattah states that on June 21, 2003, two "thugs" entered his hospital room, assaulted him, and told him to gather his belongings so that he could be taken to a doctor. (See id. ¶¶ 116, 271.) Nattah asserts that the "hoodlums" attempted to abduct him to send him back to the United States. (Id.) Plaintiff then underwent surgeries on June 23 and July 8, 2003 that failed to improve his hearing problems. (See id. ¶¶ 117--18.) Ultimately Nattah contends that in August 2003, he received a letter confirming his termination from employment and stating no reason for the termination. (Id. ¶ 122.) In addition to plaintiff's slavery and wrongful termination claims, he further alleges violations of several other United States laws, the Geneva Convention, the United Nations Charter, and provisions of Iraqi and Kuwaiti law. Further, Nattah seeks to hold Titan accountable for the manner in which it administered security clearance applications on behalf of its employees. (Id. ¶¶ 335--53.)

On October 30, 2006, federal defendants filed a motion [22] to dismiss. Plaintiff, having received an extension of time [26] to file an opposition to the motion, failed to file such a brief. On January 30, 2007, the Court granted federal defendants' motion and dismissed this case as it pertained to the federal defendants.*fn3 Plaintiff asks this Court to clarify whether its Order [32] dismissing the case as to the federal defendants applied to his Bivens claim against six unknown military personnel or only to the three named federal defendants. (See Docket Entry [47] at 4.) In March 2007, Titan filed a motion [38] to dismiss. While that motion was pending, plaintiff, on November 28, 2007, filed his motion for leave to file amended complaint, motion to join additional parties, and motion to vacate the Court's Order [32] granting dismissal as to the federal defendants. (See Docket Entry [47].) On March 24, 2008, plaintiff filed a notice [63] voluntarily dismissing his claims against President George W. Bush and Vice-President Dick Cheney.

II. ANALYSIS

A. Clarification of this Court's January 30, 2007

Order

This Court's January 30, 2007 Order dismissed claims only against the following federal defendants: President George W. Bush, Vice-President Dick Cheney, and former Secretary of Defense Donald Rumsfeld. The remaining defendants are Titan and "six unknown United States Government employees."

B. Motion for Leave to File Amended Complaint

1. Legal Standard

Plaintiffs are permitted to amend a complaint once as a matter of right anytime "before being served with a responsive pleading." FED. R. CIV. P. 15(a)(1). This right to amend is generally absolute as long as no responsive pleading has been served. See James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282--83 (D.C. Cir. 2000). A motion to dismiss is not ordinarily considered a "responsive pleading." See Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999) (citing Confederate Mem'l Ass'n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)). Once such a pleading has been served, "leave of court or [ ] written consent of the adverse party" is required to amend a complaint. See Confederate Mem'l, 995 F.2d at 299 (citing FED. R. CIV. P. 15(a)).

2. Leave to Amend Shall be Granted in Part and Denied in Part

The Court will evaluate the motion for leave to amend by dividing the named defendants in the proposed amended complaint into three groups: (1) defendants with claims pending against them at the time Nattah moved for leave to file; (2) defendants who were granted dismissal with prejudice; and, (3) new proposed defendants who were not included in the original complaint.

i. Titan and Six Unknown Government Employees

First, the Court finds that plaintiff's amendment as to Titan and six unknown government employees will be granted as of right under Rule 15(a) because no responsive pleading has been filed. The proposed amended complaint will be deemed filed as the amended complaint as of November 28, 2007.

ii. Previously Dismissed Defendants

a. Court Has Discretion

The Court next examines Nattah's motion for leave to amend as to federal defendants George W. Bush, Dick Cheney, and Robert Gates. Upon plaintiff's notice [63] voluntarily dismissing his cause of action against President Bush and Vice-President Cheney, Secretary Gates is now the only previously dismissed defendant that plaintiff wishes to include as a named defendant. When the motion was filed, Nattah's claims against Secretary Gates had been dismissed with prejudice.*fn4 This Court agrees with the approach that "[w]hen a plaintiff's first amended complaint asserts claims against defendants who have been dismissed from the suit," courts have "discretion in denying amendment as to those defendants." Johnson v. Dist. of Columbia, 244 F.R.D. 1, 4 (D.D.C. 2007) (Lamberth, J.); see Bancoult v. McNamara, 214 F.R.D. 5, 8--9 (D.D.C. 2003) (granting motion to amend complaint "as a matter of course" as to defendants against whom claims remained pending, but denying the motion as futile as to dismissed defendant); see also Cassell v. Michaux, 240 F.2d 406, 408 (D.C. Cir. 1956)) (holding that the district court had discretion where plaintiff sought to amend a count that had been dismissed with prejudice). Thus, plaintiff lost the ability to amend as a matter of course as to Secretary Gates when the Court entered its Order dismissing Nattah's claims against him, and the Court has discretion in determining whether to permit amendment as to this federal defendant.

b. Amendment Denied as Futile

When a court has discretion, it "should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). However, it is within a court's discretion to deny leave to amend for "sufficient reason, such as 'undue delay, bad faith, [ ] dilatory motive . . . repeated failure to cure deficiencies by [previous] amendments . . . [or] futility of amendment.'" Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (finding no abuse of discretion when district court denied leave to amend because additional claim would have been futile). A court may deny a motion to amend as futile "if the proposed claim would not survive a motion to dismiss." James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing Foman, 371 U.S. at 181--82).

For the reasons set forth below, the Court finds that Nattah's proposed claims against Secretary Gates are futile; the Court, in its discretion, will deny Nattah's motion for leave as to Secretary Gates. Despite Nattah's assertions to the contrary, the proposed amended complaint does not assert a new factual basis for liability against Secretary Gates but rather relies on plaintiff's same vague assertions that he was tricked into working for Titan in the Middle East by defendant's false representations as to the nature of his work and as to whether the United States would ultimately invade Iraq in 2003. Nattah relies on these facts to support the many claims alleged in his proposed amended complaint. To the extent that plaintiff seeks damages against Secretary Gates in his official capacity,*fn5 all of Nattah's claims would fail to survive a motion to dismiss because the Government has not waived sovereign immunity. All suits against the United States are barred by sovereign immunity except in terms of explicit waiver of such immunity. See Lane v. Pena, 518 U.S. 187, 192 (1996). And, Nattah's claims against Secretary Gates in his official capacity are properly considered claims against the United States.*fn6 Thus, sovereign immunity would bar Nattah's claims against Secretary Gates in his official capacity.

To the extent that plaintiff asserts a claim against Secretary Gates in his individual capacity, such a claim would also fail to survive a motion to dismiss. The Court recognizes that under Bivens, a cause of action may exist for a violations of a person's constitutional rights. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). However, such a suit is subject to the defense qualified immunity for claims against government officials. Government officials retain qualified immunity to the extent that, in the performance of discretionary functions, "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citations omitted). Here, Secretary Gates would be shielded from liability because the nexus between his actions and plaintiff's alleged harm has not been sufficiently plead. Plaintiff essentially ...


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