The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiffs, the Great Socialist People's Libyan Arab Jamahiriya (the "Libyan Government") and the Embassy of the Libyan Arab Jamahiriya ("Libyan Embassy"), bring this action against the defendant, Ahmad Miski, for allegedly infringing their trademark rights in violation of two provisions of the Lanham Act, 15 U.S.C. §§ 1125(a)(1)(A) and (B) (2006), and the AntiCybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d) (2006). See generally Complaint ("Compl."). The defendant has responded by asserting counterclaims for monetary damages, costs, and attorneys' fees arising from the plaintiffs' alleged tortuous interference with the defendant's contracts and prospective business advantage. See Counter Claim [sic] ¶¶ 54-62.*fn1 The defendant also pleads an abuse of process counterclaim against the plaintiffs based on the plaintiffs' initiation of this lawsuit. Id. ¶¶ 71-75. Currently before the Court are seven motions seeking various forms of relief by both the plaintiffs and the defendant. Each of these motions will be addressed in this opinion.
I. The Motions Related to Questions of Immunity
The four motions before the Court related to the question of immunity are the following: (1) the plaintiffs' motion to strike the defendant's answer and counterclaims, see generally Plaintiff Libyan Government's Motion to Strike Defendant Miski's Amended Answer, Counterclaim and Jury Demand (Docket #36), or in the Alternative, Motion to Dismiss, and Motion for Default Judgment ("Pls.' Mot. to Strike"); (2) a motion by the Ambassador for the Great Socialist People's Libyan Arab Jamahiriya ("the Ambassador") seeking to quash the defendant's notice to take the Ambassador's deposition, see generally Ambassador Aujali's Motion to Quash Defendant Miski's Notice of Deposition ("Ambassador's Mot. to Quash"); (3) the plaintiffs' motion to discharge Magistrate Judge Robinson's imposition of sanctions against them, see generally Plaintiff Libyan Government's Objection to Magistrate Judge's Order Regarding Sanctions ("Pls.' Mot. re Sanctions"); and (4) the defendant's motion to dismiss the plaintiffs' complaint, see generally Defendant's Opposition to Plaintiffs' Objection to Magistrate Judge's Order Regarding "Sanctions" and Defendant's Motion to Dismiss Plaintiffs' Case ("Def.'s Mot. to Dismiss"). While each of these motions seeks various forms of relief and sets forth various legal theories in support of the relief sought, they all turn on two issues concerning immunity: (1) whether the Libyan government has waived its sovereign immunity with respect to the defendant's counterclaims, see Pls.' Mot. to Strike at 4, and (2) whether the Ambassador of the Libyan government has waived his diplomatic immunity in this matter by filing with the Court an affidavit in response to the defendant's motion to transfer venue, see Ambassador's Mot. to Quash at 2; Pls.' Mot. re Sanctions at 6; Def.'s Mot. to Dismiss at 12; see also Plaintiff Libyan Government's Response to Defendant Ahmad Miski's Motion to Transfer Venue, Ex. 4 (Affidavit of Ambassador Aujali in Support of the Libyan Government's Response to Defendant Ahmad Miski's Motion to Transfer Venue ("Ambassador Aujali Aff.")). For the reasons set forth below, the Court finds: (1) that the plaintiffs have waived their sovereign immunity by initiating this lawsuit against the defendant, and therefore must answer to the defendant's counterclaims arising from the same transaction or occurrence as the subject matter of the allegations set forth in their complaint, but need not answer the defendant's separate abuse of process counterclaim; and (2) that the Ambassador did not waived his diplomatic immunity by submitting an affidavit in connection with the defendant's motion to transfer venue, and therefore, he cannot be unwillingly deposed in this matter. Accordingly, for the reasons set forth below, the Court must grant in part and deny in part the plaintiffs' motion to strike the defendant's answer and counterclaims, grant the Ambassador's motion to quash a notice to take his deposition, deny the plaintiffs' motion seeking to discharge an imposition of sanctions against them, and deny the defendant's motion to dismiss the plaintiffs' complaint.*fn2
A. The Plaintiffs' Sovereign Immunity
The plaintiffs seek to strike the defendant's amended answer and counterclaims, or in the alternative, request that judgment be entered in their favor on the defendant's counterclaims on two grounds: first, that the defendant's amended answer was untimely filed without leave of the Court, Pls.' Mot. to Strike at 3, and second, that sovereign immunity precludes the defendant from maintaining his counterclaims, id. at 4-5.
The first issue is easily resolved. The plaintiffs argue that the defendant's amended answer and counterclaims were filed without first seeking leave of Court in compliance with Federal Rules of Civil Procedure 12 and 15, given that over a year had lapsed since the defendant's first answer was filed, and the defendant sought neither the consent of the plaintiffs nor leave of the Court before the amended answer and counterclaims were filed. Id. at 3-4; see also Plaintiff Libyan Government's Reply to Defendant Miski's Opposition (Docket #43) to Plaintiff Libyan Government's Motion to Strike Defendant Miski's Amended Answer, Counterclaim and Jury Trial and Plaintiff Libyan Government's Alternative Motion to Dismiss (Docket #41) at 4. It is the defendant's position, however, that the parties had an agreement, as set forth in their joint status report filed with the Court on January 15, 2009, that the "pleadings [could] be amended at any time until 30 days after the completion of discovery," which gave him until July 30, 2009, to file any amended pleadings. Defendant's Response to Plaintiffs' Motion to Strike Defendant Miski's Amended Answer, Counterclaim and Jury Trial and Plaintiffs' Alternative Motion to Dismiss and Default Judgment at 6.
Regardless whether the parties had an agreement prior to the initial scheduling conference, the Court's issuance of its February 3, 2009 Scheduling Order, issued following that conference, designated the deadlines for the parties to follow. The Scheduling Order did not incorporate the agreement relied upon by the defendant, and the parties cannot agree to filing deadlines inapposite to a court order. Moreover, considering that under the agreement any post-discovery amendment of a party's pleadings would theoretically foreclose the other party from obtaining discovery on newly asserted allegations or claims, the agreement would wreak havoc on the Court's ability to control its calendar and advance this action to final resolution, as the Court is confident that the agreement would inevitably result in the Court having to entertain requests to reopen discovery to avoid a potential unfair resolution of this litigation. Therefore, the Federal Rules of Civil Procedure and this Court's Scheduling Order must govern the parties' actions in this dispute, including the applicable filing deadlines.
Rule 15 states that after the time during which a party may amend a pleading "as a matter of course" has passed, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a) (emphasis added). Here, the defendant answered the plaintiffs' complaint on December 14, 2007, and he was not entitled to amend his answer without complying with Rule 15 by acquiring either the consent of the plaintiffs or leave of the Court.*fn3 Accordingly, as the plaintiffs correctly contend, the defendant's First Amended Answer and Counterclaim must be stricken, with the result being that the defendant's original answer and counterclaims are the operative pleadings on behalf of the defendant properly before the Court.*fn4
However, striking the defendant's amended answer and counterclaims does not resolve the second issue raised by the plaintiffs: whether they have sovereign immunity against the defendant's counterclaims for abuse of process and tortious interference. The plaintiffs argue that they are protected from suit by sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605 (2006), which provides that a foreign state is "immune from the jurisdiction of courts of the United States" unless at least one of several exceptions applies, id. §1604 Those statutory exceptions relevant to this litigation include, in pertinent part, circumstances where "the foreign state has waived its immunity either explicitly or by implication," id. § 1605(a)(1), or where "money damages are sought against a foreign state for... damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment," id. § 1605(a)(5). The defendant's counterclaims for monetary damages arise from the plaintiffs' alleged tortuous interference with the defendant's contracts and prospective business advantage, Counter Claim [sic] ¶¶ 54-62, and this alleged conduct clearly falls within this later exception. However, this exception does not apply to "any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights," id. § 1605(a)(5)(B) (emphasis added), which, without question, encompasses the defendant's claims. The plaintiffs rely entirely upon this limitation, arguing that because the defendant's counterclaims are the type of claims specifically identified in § 1605(a)(5)(B) and the "Libyan Government has not waived its immunity from suit,... the counterclaim[s] must be dismissed." Pls.' Mot. to Strike at 5. Were this exception and its limitation the only provisions governing this dispute, the plaintiffs' position would be correct, as neither the defendant's abuse of process claim nor his tortious interference counterclaims fall within the sovereign immunity exceptions. However, the plaintiffs ignore one of the other exceptions to sovereign immunity under § 1605: waiver pursuant to § 1605(a)(1).
Section 1607 of Title 28 of the United States Code provides, in pertinent part, that when a foreign state brings an action in a Court of the United States, it is not immune from a counterclaim "arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state[, id. § 1607(b),] or... to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state[,]" id. § 1607(c). See also Wacker v. Bisson, 348 F.2d 602, 610 (5th Cir. 1965) ("[A] voluntary appearance by a foreign government waives immunity as to any essentially defensive measures taken by the private citizen."). Essentially, where "[a] sovereign has freely come as a suitor into [United States] courts," the principle of "fair dealing... allows a setoff or counterclaim based on the same subject matter" as the allegations upon which the sovereign is seeking relief. Nat'l City Bank of New York v. Republic of China, 348 U.S. 356, 364-65 (1955).
In a previous memorandum opinion issued in this case by another member of this Court, the Court discussed the plaintiffs' previous motion to strike the defendant's counterclaims and set forth the governing law on immunity, see Dec. 9, 2008 Order & Memorandum at 6-7 (Oberdorfer, J.), noting that parties claiming immunity, as the plaintiffs do here, also carry the burden of establishing by a preponderance of the evidence that they are entitled to sovereign immunity, id. at 6 (citing Agudas Chasidei Chadbad of U.S. v. Russian Fed'n, 528 F.3d 934, 940 (D.C. Cir. 2008)). In that earlier opinion, Judge Oberdorfer concluded that the plaintiffs did not meet their burden of establishing that they were entitled to immunity because "it appear[ed] that both [counter]claims [asserted by the defendant] ar[o]se out of the [d]efendant's use of the [specified] domain names [that provided the basis for the plaintiffs' claims]." Dec. 9, 2008 Order & Memorandum at 8.
Nothing about the nature of the plaintiffs' claims or the defendant's counterclaims has changed since Judge Oberdorfer weighed in on the issue. The defendant asserts in his counterclaims allegations regarding his online-based document-services business, his interactions with the plaintiffs, and his discussions with the Ambassador. See Counter Claim [sic] ¶¶ 51-52, 55-56, 64-68. These are essentially the same type of allegations relied upon by the plaintiffs, see generally Compl.; see also Plaintiff Libyan Government's Response to Defendant Ahmad Miski's Motion to Transfer Venue, Ex. 4 (Ambassador Aujali Aff.), but from a view unfavorable to them. In their renewed motion to strike, the plaintiffs simply have not addressed the Court's concern by submitting any additional evidence or legal authority establishing that the defendant's counterclaims are unrelated to the claims being pursued in their complaint. As noted earlier, the plaintiffs' entire sovereign immunity argument relies on the exceptions recognized in 28 U.S.C. § 1605, but completely ignores the counterclaim waiver provision of § 1607, as well as the fact that the claims asserted in the plaintiffs' complaint and the defendant's tortious interference with contract and prospective economic advantage counterclaims arise out of the defendant's use of the domain names identified in the plaintiffs' complaint. Merely because the plaintiffs refer in their complaint to the specified domain names, while the defendant instead refers to the name of his business which operates at those domain names, does not distract from the fact that at the heart of both sides' positions is the question of whether the defendant and his business have used the domain names at issue in a legally permissible manner.
The same is not the case as to the defendant's counterclaim for abuse of process. Unlike the defendant's other two counterclaims, his counterclaim for abuse of process does not arise out of the transaction or occurrence that is the subject matter of the plaintiffs' complaint. Instead, the defendant's abuse of process counterclaim seeks relief stemming from the plaintiffs' initiation of this lawsuit itself, not his use of the specified domain names. While the sometimes acrimonious litigation process can result in the filing of additional tangentially related claims in a case, where, as here, the plaintiffs are foreign sovereigns, the principle of sovereign immunity stands as a bar to such claims. The plaintiffs cannot be said to have waived their sovereign immunity for all counterclaims filed against them by the defendant, just counterclaims arising from the transactions and occurrences specified in their complaint. Moreover, it is not clear that an abuse of process claim could even lie based on the allegations asserted by the defendant, which are that the plaintiffs initiated this case without proper motive, Counter Claim ¶ 73. See Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C. 1959) ("The complaint alleges that [the opposing party] knowingly brought suit on an unfounded claim, which by itself ...