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Lempert v. Rice

United States District Court, District of Columbia

July 19, 2013

DAVID H. LEMPERT, Plaintiff,

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[Copyrighted Material Omitted]

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DAVID H. LEMPERT, Plaintiff, Pro se, Ardsley, NY.

For SUSAN RICE, U.S. Ambassador to the United Nations, Defendant: Nicholas P. Cartier, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.


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COLLEEN KOLLAR-KOTELLY, United States District Judge.

David H. Lempert (" Plaintiff" ) brings this action against Defendants the United Nations (" UN" ), the UN Development Programme (" UNDP" ) (collectively " UN Defendants" ), and Susan Rice, former United States Ambassador to the United Nations (" Rice" ). [1] Plaintiff, who is proceeding pro se, [2] asserts claims for breach of contract, fraud, and harassment alleging that Defendants failed to fulfill their obligations to reimburse and hire Plaintiff, an attorney and anthropologist, as part of a UN project abroad. Pending before the Court are three motions: Plaintiff's [16] Motion for Court Service of Defendant UN and UNDP and Sanctions against said Defendant[s] for Refusal of Service; Rice's [18] Motion to Dismiss; and Plaintiff's [25] Motion to Respond to New Arguments for Dismissal Raised by the Department of Justice, which, in essence, is a motion for leave to file a sur-reply. Also before the Court is a [17] Statement of Interest of the United States of America, which the Government submitted in response to the Court's request for the United States' views on whether the UN is immune fro suit in this action, see Order Soliciting the Views of the United States, ECF No. [11]. [3]

With respect to Plaintiff's motion for leave to file a sur-reply, the Court agrees with Rice that the motion is, in part, an improper attempt to reargue matters already addressed and to argue new arguments which Plaintiff neglected to raise in his opposition brief. However, because the Court finds the sur-reply useful to its understanding of Plaintiff's theory of this case and therefore to the Court's consideration of Rice's motion to dismiss, the Court shall GRANT Plaintiff's [25] motion and shall consider the memorandum attached thereto.

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Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT Rice's motion to dismiss. The Court shall also DENY Plaintiff's motion for court service upon, and sanctions against, the UN and UNDP and shall dismiss Plaintiff's Complaint against them. Accordingly, and for the reasons discussed below, this case shall be dismissed in its entirety. [4]


The following facts are taken from the Complaint and must be accepted as true for purposes of a motion to dismiss. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681, 386 U.S. App. D.C. 144 (D.C. Cir. 2009), cert. denied, 559 U.S. 1039, 130 S.Ct. 2064, 176 L.Ed.2d 418 (2010). Plaintiff, an attorney and anthropologist, has worked as an international consultant on " rights and rights protections" for over twenty years, including on projects for the UN. Compl. ¶ 4. On or about February 27, 2009, the UN Volunteers (" UNV" ) -- an administrative unit of the UNDP -- offered Plaintiff a one-year renewable position on a project in Vientiane, Laos, which Plaintiff accepted. See id . ¶ ¶ 5, 7-9. UNV informed Plaintiff that he could anticipate beginning the position in early May 2009. Id . ¶ 9.

Subsequently, in or around March 2009, the UNDP in Laos accepted two other lawyers to work on the project, including on several of the tasks for which Plaintiff allegedly had been hired. Id . ¶ 11. Shortly thereafter, in early April 2009, Plaintiff received and executed the contract for the position, which indicated that the offer was " subject to Lao government clearance and Medical clearance." Id . ¶ 12. After a longer than anticipated delay, on or about August 4, 2009, UNV confirmed to Plaintiff that it had obtained the requisite clearance from the Laos Ministry of Justice and set a start date of August 24, 2009. Id . ¶ 18-19. However, in September 2009, after Plaintiff had made all necessary preparations and arrived in Laos, the UNDP informed him that the Laos government had refused to issue him a long-term visa for unknown reasons and that the UNDP was therefore rescinding his position. Id . ¶ ¶ 28, 34. Plaintiff alleges that he later learned that UNDP had never submitted a proper visa request to the Laos government because the other two lawyers were already working on the project. Id . ¶ 30.

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Plaintiff further contends that UN officials have attempted to " induce him" to " drop any call for investigations of misconduct by the UN." Id . ¶ ¶ 47, 86. Based on the foregoing allegations, Plaintiff asserts that the UN and UNDP breached his employment contract, id. ¶ ¶ 75-81, 83, and that they committed the torts of fraud and " harassment," id. ¶ ¶ 84-90, 92-93, 97-98.

With respect to Rice, Plaintiff alleges that on several occasions, he wrote to her office about the UN's alleged misconduct and requested assistance from her office to review the matter and either assist directly or exert her authority to waive the UN's sovereign immunity so that Plaintiff could seek a remedy in federal court, but he received no response. Id . ¶ 42, 43, 48. Plaintiff contends that due to Rice's failure to " uphold the contracting rights of a U.S. citizen contracting with the [UN], an organization to which the U.S. is a Member and a contracting party," Rice is " jointly and severally liable" for the UN's alleged breach " as a party to the contract." Id . ¶ 82. Plaintiff also alleges that he wrote to Rice's office " that their transfer of his letter directly to the UN without any comment would likely have made his situation worse" and that by responding to Plaintiff's requests for assistance in ways that Rice's office " knew would cause harm" to him, including " silence, unreasonable delays, and apparent approval communicated to the UN of actions that the UN had taken" against Plaintiff, Rice is liable for fraud and harassment. See id. ¶ ¶ 91, 95, 97.

By way of relief, Plaintiff seeks compensatory damages, punitive damages, costs and fees, and a " full, thorough and independent investigation" of the alleged misconduct. See id. at 26. The Complaint does not specify as to which Defendant(s) Plaintiff seeks the various categories of relief. See id .


A. Motion to Dismiss for Lack of Subject Matter Jurisdiction under Rule 12(b)(1)

A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S. App. D.C. 72 (D.C. Cir. 2003) (citations omitted). " At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106, 368 U.S. App. D.C. 297 (D.C. Cir. 2005).

In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envt'l. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000). " Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['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." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

B. Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss

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on the grounds that the complaint " fail[s] to state a claim upon which relief can be granted." A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. (8)(a), " in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish " more than labels and conclusions" or " a formulaic recitation of the elements of a cause of action." Id. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (citation omitted). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, " state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.

In evaluating a Rule 12(b)(6) motion to dismiss, a court must view the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608, 199 U.S. App. D.C. 23 (D.C. Cir. 1979) (" The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged." ). While the court must construe the complaint in the plaintiff's favor, it " need not accept inferences drawn by the plaintiff if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276, 305 U.S. App. D.C. 60 (D.C. Cir. 1994). Moreover, the court is " not ...

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