The opinion of the court was delivered by: Jack D. Shanstrom Senior U.S. District Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court are pending Motions to Dismiss by Defendants Research Triangle Institute ("RTI") and Unity Resources Group ("Unity") in the separate cases of Plaintiffs Marani Awanis Manook and Jalal Askander Antranick. Because the factual and legal issues in both cases are similar, the Parties have agreed to consolidate their respective cases for the purposes of this Order.
In Plaintiff Manook's case, Defendant RTI's Motion seek (1) to dismiss Plaintiff Manook's First Amended Complaint; (2) for a More Definite Statement with respect to Counts IV-XVI; and (3) to transfer any remaining claims to the U.S. District for the Eastern District of North Carolina.
In Plaintiff Antranick's case, Defendant RTI's Motion seeks to (1) dismiss Plaintiff's Complaint; (2) to Strike Plaintiff's Request for Declaratory Judgment and Injunctive Relief; and (3) to transfer any remaining claims to the U.S. District of North Carolina.
In both Plaintiffs Manook and Antranick's cases, Defendant Unity's Motion seeks to dismiss for (1) lack of personal jurisdiction and (2) failure of service of process. A hearing has been held on these motions and the Court is prepared to render a ruling at this time.
Defendant Research Triangle Institute is under contract with the United States Agency for International Development ("USAID") to provide governmental development and support to the Iraqi government. Defendant Unity Resources Group is a private security contractor employed by Defendant RTI to provide protection to RTI employees and staff while they are in Iraq.
The Complaints allege that on October 9, 2007, Plaintiff Marani Awanis Manook was driving on Karrada Street in Baghdad, Iraq. Genevia Jalal Antranick, named Plaintiff Jalal Askander Antranick's daughter, was a passenger in Manook's vehicle. Plaintiffs allege that Defendant Unity personnel, while in the course of their service to Defendant RTI, shot and killed Marani Manook and Genevia Antranick without cause. Plaintiffs allege other incidents wherein other Iraqi citizens were killed by Defendant Unity.
Plaintiffs bring claims for (1) war crime violations of the Alien Tort Statute; (2) Aiding and Abetting under the Alien Tort Statute; (3) violations of the Torture Victim Protection Act; (4) Assault and Battery; (5) Wrongful Death; (6) Intentional Infliction of Emotional Distress; (7) Negligence; (8) Negligence in failing to rescue; and (9) Negligent Hiring, Training and Supervision.
Given that the issues in both cases are very similar, the pending motions shall be consolidated and analyzed together.
Rule 12(c) of the Federal Rules of Civil Procedure states that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The standard of review for motions for judgment on the pleadings under Rule 12(c) of the Federal Rules is essentially the same as that for motions to dismiss under Rule 12(b)(6). See Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C.Cir.2004); Ramirez v. Dep't of Corrections, 222 F.3d 1238, 1240-41 (10th Cir.2000); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987). On either motion, the Court may not rely on facts outside the pleadings and must construe the complaint in the light most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). As with a motion to dismiss under Rule 12(b)(6), a court may grant judgment on the pleadings only if the facts alleged in the complaint do not "raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), or fail to "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955; see also Nat'l Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C.2008) (dismissal is appropriate under Rule 12(c) "if the plaintiff fails to plead 'enough facts to state a claim [to] relief that is plausible on its face.' " (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955)).
1. Defendant Unity Resources Group's Motions to Dismiss
In bringing the present motion, Defendant Unity contends that (1) it has not been properly served and (2) this Court lacks personal jurisdiction over Unity.
A. SERVICE OF PROCESS - relates solely to Plaintiff Manook's case Regarding the issue of proper service of process, Unity contends that it is a corporation organized under the laws of the country of Singapore with its principal base of business in Dubai, in the United Arab Emirates. Unity contends that Plaintiff Manook provided "Notice of Service" to Unity on March 4, 2008 by sending a package of documents, including the summons, original complaint to Unity's offices in Dubai by DHL and Federal Express.*fn1 Defendant contends that Plaintiff Manook's "Notice of Service" stated that it served Unity pursuant to Rule 4(f)(2)(C)(ii) which allows service in a foreign country to be done by use of "any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt . . ." Id.
Fed.R.Civ.P. 4 directs service of process in civil suits. Rule 4(h)(2) directs service of a corporation in a place "not within any judicial district of the United States" to be done in a manner prescribed by Rule 4(f) for serving an individual, "except personal delivery under (f)(2)(C)(i). Id.
Defendant Unity contends that Plaintiff Manook's service of process is defective on the grounds that (1) the DHL package was not addressed to Unity's current address and as such was not properly addressed to Defendant as required by Rule 4(f)(2)(C)(ii); (2) the clerk's prepared package was delivered to DHL by Plaintiff's counsel, a non-neutral party; (3) Plaintiff's manner in which it performed the service of process was not only contrary to the Federal Rules, it conflicts with how the U.S. District of Columbia's Clerks Office performs delivery; (4) the record reflects no evidence that the Clerk's Office effectuated service on Defendant Unity; and (5) a private courier, like the one Plaintiff Manook used, is not considered "mail" for purposes of Rule 4.
In response, Plaintiff Manook states that the Clerk's office was very much involved in the service of the necessary documents on Defendant Unity. Specifically, Manook contends that the Clerk's Office addressed and sealed the document package and made two attempts to use a commercial messenger service but to no avail.*fn2 Consequently Plaintiff's Attorney then acted as the courier to DHL and did nothing more than deliver the document package.
This Court finds that the Clerk's Office was in fact engaged in the process serving and that good faith efforts were made to serve via commercial messenger service and therefore that is sufficient for this Court to conclude that Plaintiff's conduct did not invalidate service. Moreover, Defendant Unity has failed to show evidence of malfeasance or some prejudice (aside from being sued of course) by Plaintiff in her efforts to effectuate proper service.
Regarding Unity's claim that delivery to an incorrect address negates proper service, Plaintiff Manook states that the delivered address (although ultimately incorrect) was published on Unity's website as its business address. Further Unity admits that this address was its prior business address and remains the address of an affiliated business. Defendant Unity cites to a number of cases wherein private courier is insufficient to establish proper service.
However, this issue is rendered moot because this Court concludes that Unity has since been properly served via the Mayor of the District of Columbia pursuant to D.C. Code § 29-101.108(b). That statute authorizes service upon the mayor when, among other reasons, the registered agent cannot be found with reasonable diligence and does not require a plaintiff to deliver a copy of the process paperwork to the defendant's corporate address. Id. The statute contemplates that after the mayor is served, it is "the [m]ayor [who] shall immediately cause one of the copies to be forwarded by registered or certified mail to the corporation at its principal office ...." D.C. CODE § 29-101.108(b). Moreover, Plaintiff has since discovered Unity's business office here in the District and has served the summons and Complaint onto Defendant Unity pursuant to Fed.R.Civ.P. 4.
For the foregoing reasons, this Court concludes that Plaintiff Manook's efforts are sufficient for purposes of Rule 4 regarding service of process and that Defendant Unity's Motion to Dismiss on improper service shall be DENIED.
B. PERSONAL JURISDICTION - relates to both cases
Defendant Unity contends that it is not subject to personal jurisdiction in this District in either the Manook or the Antranick case. Specifically, Unity contends that it is a non-resident defendant that has neither an enduring relationship nor is doing business in the District of Columbia as to justify a finding of personal jurisdiction.
Where an issue of personal jurisdiction is raised, "[t]he burden is on the plaintiff to establish that this Court has personal jurisdiction over defendants and allege specific facts upon which personal jurisdiction may be based." Blumenthal v. Drudge, 992 F.Supp. 44, 53 (D.D.C.1998). The D.C. Court of Appeals has set forth a two-part inquiry for establishing personal jurisdiction over a non-resident defendant. First, a court must "examine whether jurisdiction is applicable under the state's long-arm statute," and second, "determine whether a finding of jurisdiction satisfies the constitutional requirements of due process." GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000).
Plaintiffs argue that the Court may obtain personal jurisdiction over Unity on the basis of either the D.C. long-arm statute, D.C.Code § 13-423, for transacting business in the District of Columbia, or the District of Columbia's general jurisdiction statute, D.C.Code § 13-334.
A finding of specific jurisdiction within the District is dictated by D.C.Code Ann § 13-423(a)(1). That statute states that "[A] District of Columbia court may exercise personal jurisdiction over a person ... transacting any business in the District of Columbia." Plaintiffs' claims sound in tort and arise from events alleged to constitute negligence which did not take place in the District of Columbia. The Court is urged to assume jurisdiction under D.C.Code Ann. § 13-423(a)(1), the "transacting business" provision of the long-arm statute.
Due Process requires that a defendant "have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Health Communications, Inc. v. Mariner Corp., 860 F.2d 460, 462 (D.C.Cir.1988) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Personal jurisdiction over a defendant exists when "the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). While "[e]ven a small amount of in-jurisdiction business activity is generally enough to permit the conclusion that a nonresident defendant has transacted business here," Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 331 (D.C. 2000), it is important to remember that "[t]he Court must resolve personal jurisdiction issues 'on a case-by-case basis.' " Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 49 (D.D.C.1994) (quoting Envtl. Research Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 811 (D.C.1976)).
More importantly, any claim for relief under the D.C. long-arm statute must "aris[e] from" the act or acts conferring jurisdiction over the defendant. D.C.Code § 13-423(b). This limitation is intended to exclude all claims "that do not bear some relationship to the acts in the forum state relied upon to confer jurisdiction." Jackson v. Loews Washington Cinemas, Inc., 944 A.2d 1088, 1092 (D.C. 2008) (citing Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158 (D.C. 1978)).
Here, the undisputed record reflects that the Defendant Unity Resources is a Singaporean corporation that is headquartered in Dubai. Further the tortious acts alleged in both Plaintiffs' Complaints occurred in Iraq. Plaintiffs have alleged no legitimate and substantial connection between the acts that occurred in Iraq and this District to form a basis for jurisdiction. Gonzalez v. Internacional De Elevadores, S.A., 891 A.2d 227, 234 (D.C. 2006). Consequently, nothing on the face of these facts lead this Court to conclude that there is a "discernible relationship" between the Plaintiffs' claims raised and the business transacted in the District. Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 335 (D.C.2000).
To the extent Plaintiffs rely on contract theory to establish specific jurisdiction, this Court finds that argument to be without merit. Plaintiffs contend that specific jurisdiction exists over Defendant Unity because Unity had a contract with Defendant RTI who also had a contract with USAID which is based within the District. Further Plaintiffs argue that said contract contains a clause that is binding on all of RTI's subcontractors (i.e. Unity) and therefore personal jurisdiction exist over Unity.
First, it is undisputed that the contract with Unity and RTI was executed in Dubai and not in the District. Gowens v. Dyncorp, 132 F.Supp.2d 38, 42 (D.D.C. 2001). Second, Unity's contacts with RTI within the United States occurred in North Carolina and not within the District. Lastly, this Court concludes that to rely on a subcontractor clause found in a contract between RTI and USAID to obtain personal jurisdiction over Unity is too tenuous a connection as to establish a jurisdictional basis and further is unsupported by case law. For the foregoing reasons, this Court concludes that there is no basis for exercising personal jurisdiction over Defendant Unity under the long-arm statute, D.C.Code Ann § 13-423(a)(1).
Presently Defendant Unity seeks dismissal on the grounds that this Court may not exercise general jurisdiction over it. Specifically, Unity contends that it's business contacts within the District are not continuous, systematic and substantial. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415 (1984). In response, Plaintiffs contend that they have presented prima facie evidence of general jurisdiction that at the very least would allow for limited discovery on the issue of jurisdictional facts. On the matter of personal jurisdiction, federal courts are to look to the state law. Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998). D.C. Code § 13-422 provides that
A District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim or relief. Id.
D.C. Code § 13-334 provides for personal jurisdiction over a foreign corporation when said corporation is (1) served with process within the District of Columbia and (2) is doing business in the District. Id.; Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 516 (D.C. Cir. 2002).
Unity contends that because it was served outside the District and is domiciled, organized and maintains operations outside of the District of Columbia, under § 13-422, this Court lacks personal jurisdiction over it. Further, Unity argues that even if it was served within the District, it would still not be subject to the jurisdiction of this Court because its business contacts with the District are not "substantial" nor "continuous and systematic." Gorman, 293 F.3d at 510.
The Due Process Clause of the Fifth Amendment to the U.S. Constitution requires the plaintiff to demonstrate that the defendant has "purposely established minimum contacts with the forum State," Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citation omitted). These minimum contacts must be grounded in "some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws." Burger King, 471 U.S. at 476. "This purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person." Id., 471 U.S. at 475.
In the instant case, Defendant Unity is a foreign based corporation that was providing services in Iraq where the events of the present case arose. The crux of the issue is whether Unity's "conduct and connection with the forum State are such that [it] should reasonably anticipate being haled into court there. " World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980).
The contacts that Plaintiffs Manook and Antranick allege establish personal jurisdiction within the District are (1) the presence of Defendant Unity's office at 1701 Pennsylvania Avenue within the District that is staffed by an independent contractor; (2) the contract between Defendant RTI and USAID wherein Defendant Unity is a subcontracting party; (3) a Unity employee ...