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International Creative Talent Agency, LLC v. Turkish Republic of Northern Cyprus

April 24, 2012

INTERNATIONAL CREATIVE TALENT AGENCY, LLC,
PLAINTIFF,
v.
TURKISH REPUBLIC OF NORTHERN CYPRUS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Turkey and Greece have long engaged in a dispute about the governance of the northeastern part of the island of Cyprus. Against this international backdrop, Plaintiff International Creative Talent Agency, LLC (ICTA) brings an action that reads more like a political manifesto than a contract suit. The Complaint decries the Turkish Republic of Northern Cyprus (TRNC), which "exists only on the strength of occupation by Turkish military forces," who "illegally invaded the Republic of Cyprus and forcibly displaced approximately 200,000 Greek Cypriots." Compl., ¶¶ 1, 36. The suit itself names as defendants the TRNC, a hotel, and its parent company, and the basis of the action relates to a contract for a concert performance on Cyprus. Proof of service has only been filed as to Defendant TRNC, which has now moved to dismiss on a number of grounds, including lack of federal subject-matter jurisdiction. As the Court agrees that Plaintiff has not sufficiently alleged such jurisdiction, it will grant the Motion and dismiss the case without prejudice against the TRNC.

I.Background

The gravamen of the Complaint, which must be presumed true at this stage, is that Defendants "have colluded wrongfully to procure by deception the services of the [i]nternational artist Julio Iglesias, to perform in an area in which it is illegal to do so under United States and international law" -- namely, in the TRNC, which is "not a recognized state [and] exists only on the strength of occupation by Turkish military forces." Compl. at 2. ICTA is an international talent agency headquartered in the United States. Id., ¶ 4. Defendant Voyager is "an illegal foreign company operating as a hotel and casino" on Cyprus, the "rightful owner" having been "forcibly displaced . . . during the Turkish invasion of Cyprus in 1974." Id., ¶ 5. Defendant Net Holdings is "the parent company and sole owner of Voyager." Id., ¶ 6.

On or about August 8, 2010, Voyager contracted with ICTA for its client, Julio Igleisas, to perform at a concert in the part of Cyprus under TRNC control. Id. at ¶¶ 10-11. Voyager "intentionally concealed the fact" that the performance would violate the laws of the Republic of Cyprus, which, among other nations, does not recognize the TRNC. Id., ¶¶ 13-14. Informed of the issue, Iglesias decided not to perform. Id., ¶¶ 24, 29. Plaintiff claims that Defendants falsely represented the lawfulness of their actions, thus misleading it into the contract, which Plaintiff requests be declared "illegal and void ab initio." Id., ¶ 25. Plaintiff further alleges that the TRNC and Voyager's "deceptive trade practices lure United States citizens to its illegal operations, making them unknowing violators of the law and causing an intentional trespassing on the lands of another." Id., ¶ 51.

Plaintiff brings claims for common-law fraud, civil conspiracy, breach of contract, "detrimental reliance," intentional and negligent misrepresentation, "constructive fraud," "concealment or non-disclosure," "aiding and abetting," violation of the Lanham Act, intentional interference with prospective business advantage, and false-light invasion of privacy. Id., ¶¶ 55-105. No proof of service has yet to be filed for either Voyager or Net Holdings. TRNC has now submitted a lengthy Motion to Dismiss.

II.Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case - a dismissal under Rule 12(b)(1) on ripeness grounds - the court may consider materials outside the pleadings"); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

III.Analysis

The TRNC points out numerous defects with the causes of action in Plaintiff's Complaint, as well as asserting that the Court lacks subject-matter jurisdiction over the entire case. "Subject matter jurisdiction 'is, of necessity, the first issue for an Article III court,' for '[t]he federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds.'" Loughlin v. United States, 393 F.3d 155, 170 (D.C. Cir. 2004) (quoting Tuck v. Pan Am. Health Org., 668 F.2d 546, 549 (D.C. Cir. 1981)); see also Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000) ("The court cannot address any issue if it lacks subject matter jurisdiction . . . ."). The Court, therefore, will address this ground for dismissal first. Because it concludes that no subject-matter jurisdiction exists here and because the exercise of supplemental jurisdiction over the common-law claims would be improper, it will dismiss the Complaint without prejudice.

The Court will first discuss the three alleged bases of subject-matter jurisdiction and then turn to the question of supplemental jurisdiction.

A. 28 U.S.C. § 1330(a)

The first basis upon which Plaintiff grounds its assertion of subject-matter jurisdiction is 28 U.S.C. § 1330(a). See Compl., ¶ 1. This provision grants federal district courts "original jurisdiction without regard to amount in controversy of any non-jury civil action against a foreign state," where the foreign state is not entitled to sovereign immunity. If Plaintiff's principal argument is that the TRNC is not a recognized foreign state, this seems like a curious basis for jurisdiction. And, indeed, Plaintiff abjures reliance on that statute in its Opposition, although it is unclear whether it is admitting its mistake or wrongly accusing the TRNC of the error. See Opp. at 8 ("The Defendant points out that diversity and federal question jurisdiction was alleged in the civil cover sheet submitted by Plaintiff but has mistakenly included 28 USC 1330 as a ...


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