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Lazaridis v. United States Dep't of Justice

May 26, 2010

EMMANUEL N. LAZARIDIS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In this pro se civil action, plaintiff Emmanuel N. Lazaridis, who is suing also on behalf of his minor daughter, V.L, seeks records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from the United States Department of Justice ("DOJ"), the National Center for Missing and Exploited Children ("NCMEC") and the International Centre for Missing and Exploited Children ("ICMEC"). In addition, Mr. Lazaridis seeks relief under 28 U.S.C. § 1782(a) to "compel... testimony and documents [from NCMEC and ICMEC] as may not be obtained under the FOIA, for use in proceedings before foreign tribunals."*fn1 Compl. ¶¶ 1, 83-94.

Pending before the Court are DOJ's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted [Dkt. # 27], NCMEC and ICMEC's joint motion to dismiss under Rule 12(b)(6) [Dkt. # 18] and Mr. Lazaridis' motion for summary judgment on "Claims 1 and 2" [Dkt. # 30]. Upon consideration of the parties' submissions, the Court will grant NCMEC and ICMEC's motion to dismiss, grant in part and deny in part DOJ's motion to dismiss, and deny Mr. Lazaridis' motion for summary judgment.

I. BACKGROUND

A. DOJ Records

Mr. Lazaridis, who resides in Greece, alleges that on August 22, 2005, he submitted three FOIA requests to DOJ for records maintained by the Executive Office for United States Attorneys ("EOUSA"), the Federal Bureau of Investigation ("FBI") and the United States National Central Bureau of INTERPOL. Compl. ¶ 9. He requested "written audio, video or electronic records" pertaining to himself and V.L. "dating from 2002 to 2005." Id. ¶ 10. DOJ denied Mr. Lazaridis' requests because of his alleged fugitive status. Id. ¶ 11. On November 13, 2008, Mr. Lazaridis submitted four requests to DOJ for the same type of records but "dating from 2002 to 2008." Id. ¶ 13. INTERPOL denied Mr. Lazaridis' request for V.L.'s records based on its determination that he was in violation of two state court judgments awarding custody of V.L. to his ex-wife and, thus, "lack[ed] the capacity to make a [FOIA] request for [his] daughter's records on her behalf[.]" Id. ¶ 14 (quoting "Denial of March 27, 2009").

B. NCMEC and ICMEC Records

Mr. Lazaridis alleges that on November 13, 2008, he submitted two requests to NCMEC and to ICMEC, both based in Alexandria, Virginia, "for records pursuant to the Privacy Act 1974, the FOIA and Virginia Code § 2.2-3806." Id. ¶ 15. Each organization denied Mr. Lazaridis' request on the basis that it was a private, non-profit organization not subject to the Privacy Act or the FOIA. Id. ¶¶ 16-17. Mr. Lazaridis filed this civil action on June 26, 2009.

II. LEGAL STANDARD

The Court's jurisdiction under the FOIA extends only to claims arising from the improper withholding of agency records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)). As a general rule, the requestor's identity and need for the records are irrelevant to the FOIA analysis. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 770-71 (1989); Swan v. S.E.C.,96 F.3d 498, 499-500 (D.C. Cir. 1996); North v. Walsh, 881 F.2d 1088, 1096-97 (D.C. Cir. 1989). Therefore, the Court, unlike the parties, will confine its discussion to the FOIA issues at hand.*fn2

At this pleading stage, a complaint may be dismissed for failure to state a claim upon a determination that the plaintiff cannot establish "any set of facts consistent with the allegations in the complaint" to support the alleged violation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). "A pleading that [merely] offers 'labels and conclusions'[,] 'a formulaic recitation of the elements of a cause of action' [or] 'naked assertion[s]' devoid of 'further factual enhancement'" cannot survive a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly). In ruling on a motion to dismiss, the Court need not accept legal conclusions cast as factual allegations, Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004), or "inferences drawn by [the plaintiff] if such inferences are unsupported by the facts set out in the complaint," Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

III. ANALYSIS

A. Subject Matter Jurisdiction

On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Delaney v. District of Columbia, 612 F. Supp. 2d 38, 42 (D.D.C. 2009) (citing cases). "The defect of standing is a defect ...


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