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Rishikof v. Mortada

United States District Court, D. Columbia.

September 29, 2014

HARVEY RISHIKOF, As personal representative of the estate of Trudith N. Rishikof, deceased, Plaintiff,
v.
KAMAL MORTADA and SWISS CONFEDERATION, Defendants

Page 9

For HARVEY RISHIKOF, As personal representative of the estate of TRUDITH N. RISHIKOF, deceased, Plaintiff: Denis C. Mitchell, Robert F. Muse, LEAD ATTORNEYS, STEIN, MITCHELL & MUSE, LLP, Washington, DC.

For KAMAL MORTADA, SWISS CONFEDERATION, The Federal Justice and Police Department, Defendants: Charles A. Arcodia, LEAD ATTORNEY, CHARLES A. ARCODIA, Fallston, MD; Thomas C. Hill, LEAD ATTORNEY, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC; Ashley L.T. Joyner, PILLSBURY, LLP, Washington, DC; Stephan E. Becker, PILLSBURY WINTHROP SHAW PITTMAN, Washington, DC.

Page 10

ORDER GRANTING MOTION TO DISMISS

Barbara Jacobs Rothstein, United States District Judge.

I. INTRODUCTION

Defendants' Motion to Dismiss Kamal Mortada for Lack of Jurisdiction [Dkt. No. 26] was referred to Magistrate Judge Alan Kay for a report and recommendation pursuant to Local Civil Rule 72. Magistrate Judge Kay filed a Report and Recommendation on June 10, 2014 [Dkt. No. 33]. He recommended that this Court find that Defendant Mortada does not qualify for common law foreign immunity, and therefore, further recommended that this Court deny Defendants' motion to dismiss. Defendants filed objections to the Report and Recommendation on June 24, 2014 [Dkt. No. 34].

Having reviewed the Report and Recommendation, Defendants' objections, Plaintiff's response thereto, and the underlying record, the Court HEREBY concludes that Defendant Mortada is entitled to immunity under the common law, and therefore, DECLINES TO ADOPT the Report and Recommendation, and further, GRANTS Defendants' motion to dismiss. The reasoning for this Court's decision is set forth below.

II. BACKGROUND

Plaintiff Harvey Rishikof (" Plaintiff" ) is the personal representative for the estate of his late wife, Trudith N. Rishikof. On October 6, 2011, Defendant Kamal Mortada (" Mortada" ) was driving a vehicle owned by Defendant Swiss Confederation while he was in the process of delivering a package from the Swiss Embassy to the World Bank. Mortada, who Plaintiff alleges is a legal resident of Washington, D.C., was employed as a driver and messenger by the Swiss Confederation. Dkt. No. 1 " Compl." at ¶ ¶ 1, 6. As Mortada was making a turn, his vehicle struck and killed Ms. Rishikof, who was walking in a crosswalk. Id.

On December 22, 2011, Plaintiff filed this civil lawsuit alleging claims of motor vehicle negligence and recklessness against Mortada and the Swiss Confederation, jointly and severally. Id. at ¶ 2. Plaintiff alleges that this Court has jurisdiction over the Swiss Confederation pursuant to 28 U.S.C. § § 1605(a)(5) and 1330. Id. He further asserts that this Court has supplemental jurisdiction over the claims arising under District of Columbia law pursuant to 28 U.S.C. § 1367. Id.

The Swiss Confederation concedes that Mortada is an employee of Switzerland and that he was acting within the scope of his employment at the time of the tragic accident. See Dkt. No. 26-2. In addition, the Swiss Confederation has agreed to " accept any legal liability for Mr. Mortada's actions that arises out of the claims" in this lawsuit. Id.

Page 11

III. DISCUSSION

Rule 72(b) of the Federal Rules of Civil Procedure authorizes the referral of dispositive motions to a magistrate judge for a report and recommendation. When a party files written objections to any part of the magistrate judge's recommendation, the court considers de novo those portions of the recommendation to which objections have been made, and " may accept, reject, or modify the recommended decision[.]" Fed.R.Civ.P. 72(b).

Defendants move to dismiss Plaintiff's claims against Mortada for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds that: (1) Mortada is immune under common law foreign immunity, and (2) the Swiss Confederation is the real party in interest. Defendants argue that Mortada is entitled to common law immunity from this lawsuit because the acts underlying Plaintiff's claims are admitted to be official acts taken within the scope of Mortada's individual duties as an agent of the Swiss Confederation, and the Swiss Confederation has accepted responsibility for the acts at issue.[1] Alternatively, Defendants argue that because Plaintiff seeks $10 million in damages from the Swiss Confederation for the official actions of its agent--Mortada--this suit should be treated as an action against the Swiss Confederation and the claims against Mortada should be ...


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