United States District Court, D. Columbia.
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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.
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,
(in Arabic, an acronym for " Harakat Al-Muqawama
Al-Islamia" --Islamic Resistance Movement) As the
Government of Gaza, Palestinian Authority, Defendant, Pro se.
OBAMA, a natural person, and officer of The Barack H. Obama
Foundation, a U.S. corporation, Defendant, Pro se.
KI-MOON, Secretary General of THE UNITED NATIONS acting
individually, Defendant, Pro se.
S. CHUTKAN, United States District Judge.
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.
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). As discussed
in Section III.G, infra, the request for additional
time will be GRANTED.
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
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.
). 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.
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.
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). 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
to HAMAS . . . ." ( Id. ¶
47). 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).
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.
). 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.
Secretaries Clinton and Kerry
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
from Libya into Syria and Gaza. ( Id. ¶
136-37). 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).
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).
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
further immunity analysis. See infra Section III.B.
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
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.
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).
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
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." ).
Service of Process
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).
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 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
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).
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
Service on Individuals within the United States
individual in the United States may be served by:
(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).
Service on Individuals Outside the United States
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
(A) as prescribed by the foreign country's law for
service in that country in an action in its courts of ...