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Klayman v. Obama

United States District Court, D. Columbia.

August 21, 2015

LARRY KLAYMAN, et al., Plaintiffs,
BARACK HUSSEIN OBAMA, et al., Defendants

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         For LARRY E. KLAYMAN, A Natural Person, Resident of Florida, JOHN DOE, 1, A U.S. Citizan Physically in Israel, JOHN DOE, 2, A U.S. Citizen Physically in Israel, JOHN DOE, 3, A U.S. Citizen Physically in Israel, JOHN DOE, 4, A Dual U.S.-Israeli Citizen Physically in Israel, JACK ROE, 1, A U.S. Citizen, Family of Victim Killed by HAMAS, JACK ROE, 2, A U.S. Citizen, Family of Victim Killed by HAMAS, JACK ROE, 3, A Dual U.S.-Israeli Citizen, Family of Victim Killed By HAMAS, Plaintiffs: Larry E. Klayman , LAW OFFICES OF LARRY KLAYMAN, Washington, DC.

         For BARACK HUSSEIN OBAMA, II, acting then as President of the United States under color of law and individually, HILLARY RODHAM CLINTON, acting then as U.S. Secretary of State under color of law and individually, JOHN F. KERRY, acting as U.S. Secretary of State under color of law and individually, Defendants: April Denise Seabrook, William Mark Nebeker, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

         HAMAS (in Arabic, an acronym for " Harakat Al-Muqawama Al-Islamia" --Islamic Resistance Movement) As the Government of Gaza, Palestinian Authority, Defendant, Pro se.

         MALIK OBAMA, a natural person, and officer of The Barack H. Obama Foundation, a U.S. corporation, Defendant, Pro se.

         BAN KI-MOON, Secretary General of THE UNITED NATIONS acting individually, Defendant, Pro se.

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         TANYA S. CHUTKAN, United States District Judge.

         Plaintiff Larry Klayman visited Israel in 2014, when violence related to the Palestinian organization Hamas erupted. He and seven anonymous plaintiffs allege they (or their decedents) were " subject to the crimes of attempted murder and of assault by HAMAS . . . ." (Am. Compl. ¶ ¶ 16-18, ECF No. 7). The Plaintiffs allege a scheme to " funnel money from within the United States of America" in order to " finance terrorism by HAMAS and its parent the Muslim Brotherhood . . . ." ( Id. ¶ 20). Plaintiffs have sued Hamas, President Obama, Secretary of State John Kerry, former Secretary of State Hillary Clinton, United Nations Secretary-General Ban Ki-Moon, and Malik Obama, bringing a litany of claims under RICO, the Anti-Terrorism Act, the Constitution, and common law. The President and Secretaries of State (the " Federal Defendants" ), the only Defendants who have been served with the Complaint and have entered appearances, have moved to dismiss the Complaint. For the following reasons, the court GRANTS the motion (ECF No. 9) and dismisses all claims against the Federal Defendants.[1]

         Three defendants have not entered an appearance: Malik Obama, Secretary-General Ban Ki-Moon, and Hamas. As of April 27, 2015 no proof of service had been filed as to those defendants and on that day the court ordered Plaintiffs to show cause, on or before May 11, 2015, as to why the court should not dismiss the claims against those defendants for failure to effect service. (Minute Order to Show Cause, Apr. 27, 2015). Plaintiffs responded that service was made on Ban Ki-Moon and requested additional time within which to serve Hamas and Malik Obama. (Pls.' Service Response, ECF No. 19).[2] As discussed

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in Section III.G, infra, the request for additional time will be GRANTED.

         On June 22, 2015 the court ordered Plaintiffs to show cause why Ban Ki-Moon should not be dismissed from this case in light of the immunity granted to him under the Vienna Convention on Diplomatic Relations and 22 U.S.C. § 254d. (Minute Order to Show Cause, June 22, 2015). At the court's invitation, the United States submitted a statement of interest pursuant to 28 U.S.C. § 517. For the reasons set forth in Section III.H, infra, all claims against Ban Ki-Moon will be DISMISSED.


         Plaintiffs Larry Klayman and John Does 1 through 4 were physically present in Israel in the summer of 2014, when violence erupted in that country. (Am. Compl. ¶ ¶ 16-17). They allege that, due to their presence in the country at that time, they were " subject to the crimes of attempted murder and of assault by HAMAS" and were " subject to terroristic threats, fear, intimidation and blackmail from HAMAS . . . ." ( Id. ).[3] Three additional Jack Roe plaintiffs are the parents of children killed in Israel and the Gaza Strip during the 2014 conflict. ( Id. ¶ 18). The Plaintiffs allege that the Federal Defendants, along with Malik Obama and Ban Ki-Moon, have aided and abetted acts of terrorism committed by Hamas by providing funds and tacit support for those acts.

         Resolution of the Federal Defendants' motion to dismiss turns, in almost all respects, on the nature of the conduct purportedly undertaken by those Defendants. Plaintiffs' Amended Complaint rises or falls on the extent to which the Federal Defendants' actions are deemed to be within the scope of each Federal Defendant's authority as an official of the United States. The court's focus in reciting the factual background is therefore on the nature of the Federal Defendants' alleged conduct and that conduct's relationship to each Defendant's authority as an official of the United States.

         A. President Obama

         The Amended Complaint alleges that in 2009, President Obama " ordered that $900 million be sent to Gaza" purportedly in the form of humanitarian aid, with the knowledge (and, possibly, the intention) that the money would be used to fund Hamas' terrorism. ( Id. ¶ 39). Plaintiffs allege that bags of U.S. dollars found in the wreckage of an Israeli military strike against a Hamas leader " were provided to HAMAS at the direction of Barack Hussein Obama from the U.S. State Department 'slush fund.'" ( Id. ¶ 44). This " slush fund" is a discretionary fund established at Secretary Clinton's request for use in North Africa and the Middle East. ( Id. ¶ 132).[4] President Obama is alleged to have " corruptly misused and abused his position while President of the United States to cause funding and material support to be transferred

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to HAMAS . . . ." ( Id. ¶ 47).[5] Plaintiffs allege the President has " personally collaborated with, conspired with, aided and abetted HAMAS' money laundering of funds," ( id. ¶ 55), and, in his role as commander in chief, " threatened Israel that U.S. aid would be cut off if [Israel] does not make peace with HAMAS . . . ." ( Id. ¶ 54; see also id. ¶ 49 (President Obama has " personally caused military weapons of the United States military, Libyan military and benefactors of the Libyan uprising called the 'Arab Spring' to be transferred from the territory of Libya to the Muslim Brotherhood generally" )). Overall, " [a]s President and Commander in Chief, Defendant Barack Hussein Obama has intentionally and deliberately used the resources of the United States of America government to strengthen the Muslim Brotherhood and HAMAS around the world . . . ." ( Id. ¶ 73).[6]

         President Obama is also alleged to support the efforts of his half-brother, defendant Malik Obama, to raise money through the Barack H. Obama Foundation (the " Foundation" ). The Amended Complaint alleges that this Foundation operates in the name of President Obama. ( Id. ¶ ¶ 105-08). However, a news article cited in the Amended Complaint as proof of this link ( id. at 26 n.24) includes a screen shot of the Foundation's website, which makes clear that the Foundation is named in honor of President and Malik Obama's father, Barack H. Obama, Sr., and " is not dependent on the endorsement of" President Obama." ( Id. ).[7] Given the disavowal by the Foundation of any link to the President, the court disregards allegations that the President approves the Foundation's use of his name as a fundraising tool.[8]

         B. Secretaries Clinton and Kerry

         The Amended Complaint alleges that despite sanctions imposed on Hamas by the United States, then-Secretary of State Hillary Clinton, " under color of law," caused funds from the Department of State to be sent to Hamas. ( Id. ¶ 131-34). Together with President Obama, through the U.S. consulate in Benghazi, Secretary Clinton directed a flow of U.S. weapons

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from Libya into Syria and Gaza. ( Id. ¶ 136-37).[9] Similarly, current Secretary of State John Kerry has " continued the pattern and practices of his predecessor Hillary Clinton by providing funding to HAMAS" and " has actively sought to interfere with attempts by Israel to stop the violence." ( Id. ¶ ¶ 148-49).


         A. Subject-Matter Jurisdiction

         Federal courts are courts of limited jurisdiction. See GMC v. EPA, 363 F.3d 442, 448, 361 U.S. App.D.C. 6 (D.C. Cir. 2004) (" As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction." ) The law presumes that " a cause lies outside [the court's] limited jurisdiction" unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a defendant files a motion to dismiss a complaint for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002).

         " Under the doctrine of sovereign immunity, the United States is immune to suit unless it explicitly consents to being sued." Russell v. Dupree, 844 F.Supp.2d 46, 49 (D.D.C. 2012) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). To survive a Rule 12(b)(1) motion, plaintiff must show that sovereign immunity has been waived. Id. (citing Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C. 2006)). Claims brought against an official in his or her official capacity are, " in all respects other than name, to be treated as a suit against the" United States, Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and, " [a]bsent a specific waiver by the government, sovereign immunity bars" those claims. Keyter v. Bush, No. 03-cv-2496 (EGS), 2004 WL 3591125, at *2 (D.D.C. Aug. 6, 2004) (citing Clark v. Library of Congress, 750 F.2d 89, 103, 242 U.S. App.D.C. 241 (D.C. Cir. 1984)); Abou-Hussein v. Mabus, 953 F.Supp.2d 251, 262 (D.D.C. 2013) (" Sovereign immunity bars suits for money damages against the government itself, and against public officials sued in their official capacities" ) (internal quotation and alteration omitted).

         Suits against a federal official in his or her official capacity must be distinguished from suits against a federal official in his or her individual (personal) capacity for acts taken in the course of official duties or while acting under the color of law. Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F.Supp.2d 19, 29 (D.D.C. 2007) (citing Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). In some circumstances, the claims are one and the same. For instance, tort claims against individual officials of the United States for conduct undertaken while performing their official duties may be deemed to be claims against the United States subject to limitations of the sovereign immunity waiver of the Federal Tort Claims Act. See infra Section III.A.iii. In other circumstances, the distinction permits a valid claim, or at least requires

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further immunity analysis. See infra Section III.B.

         In evaluating a motion to dismiss for lack of subject-matter jurisdiction, the court must " assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'" Am. Nat'l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139, 395 U.S. App.D.C. 316 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972, 364 U.S. App.D.C. 326 (D.C. Cir. 2005)). Nevertheless, " the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions." Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)) (internal quotation marks omitted).

         Finally, when considering a motion to dismiss for lack of subject matter jurisdiction, the court " is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241, 251 U.S. App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. National Academy of Sciences, 974 F.2d 192, 197, 297 U.S. App.D.C. 406 (D.C. Cir. 1992)).

         B. Failure to State a Claim

         " A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242, 352 U.S. App.D.C. 4 (D.C. Cir. 2002). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where " recovery is very remote and unlikely[,]" the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level . . . ." Bell A. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than " labels and conclusions" or a " formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. United States HHS, 922 F.Supp.2d 56, 61 (D.D.C. 2013).

         In deciding a 12(b)(6) motion, a court may " consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." St. Francis Xavier Parochial Sch., 117 F.3d at 624. The court may also consider " documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Hinton v. Corrections Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C. 2009) (internal quotation marks and citations omitted); see also Kaempe, 367 F.3d at 965 (" It is also clear that these documents -- which were appended to Myers' motion to dismiss and

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whose authenticity is not disputed -- may be considered here because they are referred to in the complaint and are integral to Kaempe's conversion claim." ).

         C. Service of Process

         i. Time Limitations

         Federal Rule 4(m) states:

If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff-- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).

Fed. R. Civ. P. 4(m) (emphasis added).

         The plaintiff bears the burden of establishing either proper service of process, see Light v. Wolf, 816 F.2d 746, 751, 259 U.S. App.D.C. 442 (D.C. Cir. 1987); OPEC, 766 F.3d at 78, or " valid reason for delay" warranting an extension of time to effect service. Mann v. Castiel, 681 F.3d 368, 375, 401 U.S. App.D.C. 37 (D.C. Cir. 2012) (internal quotation marks and citation omitted). The D.C. Circuit has noted good cause for failure to effect timely service exists in three types of circumstances. The first is when " outside factor[s]" --such as when a defendant evades service or conceals a defect in service--contributed to the service failure. Id. at 374 (quoting Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007)). Second, courts will be lenient towards a pro se plaintiff[10] who makes honest mistakes, or who " proceeds in forma pauperis and [i]s entitled to rely on the United States marshal (or deputy marshal) to effect service . . . ." Id. ; see also Dumaguin v. Sec'y of Health & Human Servs., 28 F.3d 1218, 1221, 307 U.S. App.D.C. 351 (D.C. Cir. 1994). Third, good cause exists where a statute of limitations would bar refiling the action. Mann, 681 F.3d at 376; see also Fed.R.Civ.P. 4(m) (advisory committee's note).

         Conversely, circumstances such as negligence, attorney mistake, ignorance of the rules governing service, or evidence of a plaintiff's " inadvertence, oversight, or neglect" do not establish the requisite good cause. Mann, 681 F.3d at 376 (internal quotation marks and citation omitted); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004). If a plaintiff claims service on a particular party is impossible by conventional means, the court may consider whether plaintiffs in other cases have successfully served that party. See Angellino v. Royal Family Al-Saud, 688 F.3d 771, 776-77, 402 U.S. App.D.C. 136 (D.C. Cir. 2012).

         If a plaintiff fails to show good cause for failing to meet the service deadline, " the court has a choice between dismissing the suit and giving the plaintiff more time" to properly effect service. Battle v. District of Columbia, 21 F.Supp.3d 42, 44-45 (D.D.C. 2014) (collecting cases). The D.C. Circuit has instructed that " when there exists a reasonable prospect that service can be obtained," an extension of time, rather than dismissal, is appropriate. Barot v. Embassy of the Repub. of Zambia, 785 F.3d 26, 29 (D.C. Cir. 2015) (quoting Novak v. World Bank, 703 F.2d 1305, 1310, 227 U.S. App.D.C. 83 (D.C. Cir. 1983)) (internal quotation marks omitted).

         ii. Service on Individuals within the United States

         An individual in the United States may be served by:

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(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Rule 4(e) does not contemplate service on an individual at his or her place of work. See, e.g., Auleta v. U.S. Dep't of Justice, 80 F.Supp.3d 198, 2015 WL 738040, at *2 (D.D.C. 2015) (noting that service at defendant's place of business did not comport with Federal or D.C. rules of service).

         iii. Service on Individuals Outside the United States

         An individual outside the United States may be served:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of ...

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