The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE PLAINTIFFS'MOTION FOR DEFAULT JUDGMENT; GRANTINGMOTION FOR LEAVE TO FILE AMICUS CURIAE; DISMISSING THE PLAINTIFFS'CLAIMS FOR LACK OF SUBJECT-MATTER JURISDICTION
This case arises under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq. The plaintiffs -- 51 Falun Gong*fn1 practitioners who are visiting Chinese nationals, U.S. residents and U.S. citizens -- filed a complaint alleging violations of their rights under the Constitution and federal and state law by persons and entities associated with the People's Republic of China ("China"). The defendants -- the Chinese Ministry of State Security and the Chinese Ministry of Public Security (collectively, "defendant ministries") and the Chinese national broadcasting entity China Central Television ("CCTV") -- have abstained from entering into this suit, having filed no answer or response to the plaintiffs' original or amended complaints.
Consequently, this matter is presently before the court on the plaintiffs' motion for final default judgment against the defendants on Counts II and IX of the plaintiffs' amended complaint. The court previously declined to dismiss this complaint on a suggestion that the court lacks subject-matter jurisdiction over the defendants on the basis of alleged commercial activity within the meaning of FSIA. But, on default judgment, the plaintiffs do not provide evidence sufficient to establish that the court has jurisdiction over their negligent hiring-and-supervision claim. And, while the court concludes it does have jurisdiction over their claim of contractual interference, because the plaintiffs fail to provide legally sufficient evidence establishing that claim, the court dismisses it and denies their motion for default judgment.
The plaintiffs all practice Falun Gong, a self-improvement practice or discipline similar to Tai Chi that has its roots in ancient Chinese culture. Am. Compl. ¶ 36. According to the plaintiffs, Falun Gong was initially well received in China for its health benefits, obtaining numerous awards and counting many government officials and senior Communist Party members among its practitioners. Id. ¶ 38. The Chinese government subsequently began to perceive the spectacular growth of Falun Gong as a threat to state security, national stability and economic development. Id. ¶¶ 39-40. In 1996, after the government's limited success in early efforts to control Falun Gong's practice, the government began a campaign to marginalize and eventually eradicate Falun Gong. Id. ¶ 41. Over the next few years, the government allegedly escalated its efforts by issuing a nationwide ban on Falun Gong literature, starting a media campaign to characterize Falun Gong as a cult whose members advocated criminal activity, and harassing, physically intimidating, detaining and arresting practitioners without cause. Id. ¶¶ 41-43. In 1999, after a peaceful demonstration by Falun Gong practitioners for the release of their fellow practitioners, China's president Jiang Zemin allegedly directed government officials to utilize the full resources of the state to eradicate the Falun Gong practice both in China and overseas. Id. ¶¶ 46-47. The government's efforts within China allegedly resulted in the murder of 1,500 Falun Gong practitioners, the arrest and detention of up to 50,000 practitioners, the torture of thousands of Falun Gong members, the incarceration of practitioners in labor/re-education camps and mental institutions, and the expulsion of practitioners from educational institutions and employment. Id. ¶¶ 49-50.
In the United States, the Chinese government allegedly engaged in many of the same tactics of threats and coercion that it used in China. Id. ¶ 53.Theplaintiffs assert that the defendants hired various "John Doe Thugs" in New York City, Washington, D.C., Chicago, San Francisco and Los Angeles, "with a view towards intimidating the plaintiffs and injuring them in their personal lives, careers and business pursuits." Id. ¶¶ 104-105. The plaintiffs contend that the defendant ministries directed consulate officials to hire these thugs and "ordered [them] to ignore any proclivity [the thugs] might have for inflicting bodily harm or other damage on Falun Gong practitioners. The negligent hiring allegedly posed a threat of real physical harm, i.e., arson or several physical beatings." Id. ¶ 106. Additionally, the plaintiffs allege that "Embassy based personnel" have offered commercial incentives to Mike Liu, the owner of Channel 56, W.C.T.V. in Fairfax, Virginia, in a continuing effort to impair the existing contractual relationship between the plaintiffs and Channel 56. Id. ¶ 247. They contend that this effort to interfere with their "contract with Channel 56" was directed by the defendant ministries. Id. ¶ 245.
The plaintiffs filed their initial complaint on April 3, 2002 and an amended complaint on July 5, 2002. In their amended complaint, the plaintiffs allege eleven causes of action based on either a commercial activity or a non-discretionary tort activity within the meaning of FSIA. On March 24, 2003, the court granted CCTV's motion to dismiss the plaintiffs' defamation claim, their eighth count. Mem. Op. (Mar. 24, 2003). On October 9, 2004, the court granted the plaintiffs' motion for jurisdictional discovery. Mem. Op. (Oct. 24, 2004). The Chinese Society of Private International Law ("Society") delivered to the court its Suggestion, dated July 4, 2005, in which it argued that the court lacks subject-matter jurisdiction over the defendants. On July 15, 2005, the plaintiffs sent the court a letter in lieu of filing a motion to strike the Society's Suggestion. On November 14, 2005, the District Court Deputy Clerk entered default against the defendants because they failed to make an appearance or respond to this action.
On December 12, 2005, the court ordered the plaintiffs to show cause why this case should not be dismissed for lack of subject-matter jurisdiction. Order (Dec. 12, 2005). In January 2006, the plaintiffs filed their memorandum in response to the court's order and in February the Society provided a renewed Suggestion.*fn2 On March 1, 2007, the court issued an opinion based on its initial consideration of subject-matter jurisdiction, preserving claims (II) "FSIA 'tortious activity' § 1605(a)(5) negligent hiring, retention, and supervision" and (IX) "malicious interference with an existing contractual relationship" of the plaintiffs' amended complaint. The court determined that the plaintiffs alleged facts that, if established, were sufficient to deprive the defendants of immunity under the commercial activity exception of FSIA. Mem. Op. (Mar. 1, 2007) at 13.
On November 20, 2007, the plaintiffs filed a motion for final default judgment. ("Pls.' Mot. for Def. J.").*fn3 On February 12, 2008, the Society moved for leave to file an amicus curiae brief ("Society's Mot. for Leave to File") and simultaneously filed an amicus curiae brief ("Society's Amicus Brief") suggesting under Federal Rule of Civil Procedure 12(h)(3) that the court lacked subject-matter jurisdiction over the case. On March 3, 2008, the plaintiffs filed a opposition to both the Society's filings ("Pls.' Opp'n"), and on March 7, 2008 the Society filed a reply to Pls.' Opp'n ("Society's Reply").
A. Legal Standard for Filing Amicus Curiae Briefs
"An amicus curiae, defined as 'friend of the court,' . . . does not represent the parties but participates only for the benefit of the Court." United States v. Microsoft Corp., 2002 WL 319366, at *2 (D.D.C. 2002). "District courts have inherent authority to appoint or deny amici which is derived from Rule 29 of the Federal Rules of Appellate Procedure." Smith v. Chrysler Fin. Co., L.L.C., 2003 WL 328719, at *8 (D.N.J. Jan. 15, 2003); see also Sierra Club v. Fed. Emergency Mgmt. Agency, 2007 WL 3472851, at *3 (S.D. Tex. Nov. 14, 2007) (finding no statute, rule or controlling case defines a federal district court's power to grant or deny leave to file amicus brief). It is solely within the court's discretion to determine "the fact, extent, and manner" of the participation. Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003). While no rule requires that an amicus be impartial, the court does consider the presence of partiality with regard to an amici's admittance. Smith, 2003 WL 328719, at *8. The extent to which district courts will permit the participation of a patently partisan amicus varies. Sierra Club, 2007 WL 3472851, at *3 (denying leave to file where amicus sought to litigate fact issues and its interests and policy objectives were identical to those of the party whose position it sought to support).
An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the ...