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Hourani v. Psybersolutions LLC

United States District Court, District of Columbia

February 18, 2016

DEVINCCI HOURANI, Plaintiff,
v.
PSYBERSOLUTIONS LLC, et al., Defendants.

OPINION

ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

This case shows how small the world has become. Plaintiff Devincci Hourani is a businessman from the Republic of Kazakhstan who now lives in Virginia. He sues PsyberSolutions LLC and others for alleged defamation arising from demonstrations outside his brother’s residence in London and elsewhere in that city. Video of at least one demonstration was posted on the Internet, on a website hosted by Defendants’ server. Mr. Hourani complains that Defendants set up defamatory websites and paid actors to conduct the demonstrations, which called him a murderer. The Court will grant Defendants’ motion to dismiss, dismissing Alistair Thomson and Bryan McCarthy for lack of personal jurisdiction and dismissing all claims against the remaining defendants, PsyberSolutions and its chief executive officer, Allison Blair, for failure to state a claim. Mr. Hourani has not alleged actual malice, as required for a defamation claim asserted by a limited-purpose public figure under Virginia law.

I. FACTS

Until 2007, Devincci Hourani was a successful businessman who owned and operated oil, broadcasting, and publishing companies in the Republic of Kazakhstan. See Mot. to Dismiss [Dkt. 15], Ex. E (Hourani v. Mirtchev First Am. Compl.) ¶ 11.[1] Indeed, as Kazakhstan privatized its industries, the Hourani family came to own “literally billions of dollars’ worth of important businesses in Kazakhstan.” See Ex. B (Aliyev Decl.) ¶ 16; see also Ex. D (Devincci Hourani Decl.) ¶ 4 (the Hourani family has had business interests in Kazakhstan since shortly after Kazakhstan declared its independence from the Soviet Union in 1991). Among other businesses, Plaintiff is the 92% owner of Caratube International Oil Company LLP, which has been engaged in a billion dollar arbitration against Kazakhstan over the termination of a concession for the exploration to explore and drill for oil. See Devincci Hourani Decl. ¶ 7; Aliyev Decl. ¶ 15; Ex. F (Arbitration Decision); Ex. H (Liz Hoffman, Kazakhstan Beats $1.2B Claims Over Axed Oil Contract, Law360, June 15, 2012).

Plaintiff was connected with the President of Kazakhstan, Nursultan Nazarbayev.[2]Plaintiff’s brother, Issam Hourani, was at relevant times married to the sister of Rakhat Aliyev, President Nazarbayev’s son-in-law. Aliyev Decl. ¶¶ 4, 14. Specifically, Mr. Aliyev was married to the President’s daughter, Dariga Nazarbayeva, from 1983 to 2007. Id. ¶¶ 4, 17, 36. Plaintiff and the Hourani family “were always perceived within Kazakhstan as being among Mr. Aliyev’s strongest supporters morally, materially, and financially.” Ex. C (Issam Hourani Decl.) ¶ 4. During the ten year period from 1997 to 2007, Mr. Aliyev held high-level positions within the Kazakh government, including Chief of the Tax Police, First Deputy Minister for state tax revenues, First Deputy Head of the National Security Committee, Kazak Ambassador to Austria (twice), Kazakh Representative to the Organization for Security and Cooperation in Europe, and Deputy Foreign Affairs Minister. Aliyev Decl. ¶ 5. In 2007, Mr. Aliyev challenged his father-in-law’s ability to remain President for life, and Mr. Aliyev publicly declared his own desire to run for President of Kazakhstan in the 2012 election. Id. ¶¶ 6, 16, 27. In response, President Nazarbayev allegedly proceeded to eliminate Mr. Aliyev from politics and from his family, stripping him of his ambassadorship, investigating him for various crimes, and demanding that a court enter Mr. Aliyev’s divorce from Dariga Nazarbayeva. Id. ¶¶ 33-36.

Also in 2007, the government of Kazakhstan and Dariga Nazarbayeva took Plaintiff’s companies from him through a series of actions. Opp’n [Dkt. 17] at 15; see also Devincci Hourani Decl. ¶ 9 (asserting that on June 9, 2007, Dariga Nazarbayeva threatened Plaintiff causing him to sign legal papers turning over millions of dollars of media interests to the First Presidential Fund);[3] Aliyev Decl. ¶¶ 45-47 (stating that over $2 billion was expropriated from the Hourani family by the government of Kazakhstan). Plaintiff asserts that the “decision to strip me of my assets in . . . various businesses stem[med] directly from my family’s association with the President’s former son-in-law Rakhat Aliyev.” Devincci Hourani Decl. ¶ 5.

Plaintiff sues PsyberSolutions LLC, its Chief Executive Officer Allison Blair, Alistair Thomson, and Bryan McCarthy alleging that they operated a “Campaign” to assassinate Plaintiff’s character, portraying Plaintiff as a “criminal” involved in the abduction, false imprisonment, torture, drugging, rape, and murder of Anastasya Novikova, the reputed mistress of Mr. Aliyev, in Beirut, Lebanon in 2004. Compl. [Dkt. 1] ¶¶ 9, 29-31, 53. Ms. Novikova died when she fell, jumped, or was thrown out of a window at an upper-floor Beirut apartment owned by Plaintiff and his brother, Issam.

Mr. Aliyev and the Hourani brothers were implicated publicly in the death of Ms. Novikova. On June 9, 2007, Interpol issued a notice regarding Ms. Novikova’s murder, and noting that it occurred at the Hourani brothers’ apartment in Beirut. Issam Hourani Decl. ¶ 23. On December 18, 2008, the U.S. Embassy in Kazakhstan stated on its website that the Hourani brothers owned the apartment where “the alleged mistress of Rakhat Aliyev was falsely imprisoned, drugged, and eventually murdered.” Hourani v. Mirtchev First Am. Compl. ¶ 58. Further, Lebanese authorities put Plaintiff’s name on a list of “persons warranting investigation for murder.” Arbitration Decision ¶ 29. In 2012, Ms. Novikova’s mother, in conjunction with the government of Kazakhstan, filed a joint criminal complaint as a partie civile in court in Lebanon against Plaintiff, his brother, and Mr. Aliyev related to the imprisonment and death of Ms. Novikova. See Arbitration Decision at ¶¶ 30-31, 38-40, 70, 74, 131-138. Mr. Aliyev died in February 2015, [4] and on July 13, 2015, the investigation judge in Lebanon, Rami Abdallah, dismissed the murder charges against Mr. Aliyev due to his death. See Decision of Investigation Judge Abdullah at 11. He also dismissed the murder charges against Plaintiff and his brother for lack of evidence. Id. The Kazakhstan government and Ms. Novikova’s family appealed “on the ground that the investigative judge did not consider other crimes that were included in the criminal complaint.” Reply [Dkt. 18] at 12 n.7 (citing Ex. A to Reply (Appeal of Decision by Investigation Judge Abdullah)). In recent years, Plaintiff has been the subject of multiple news articles describing his relationship with Mr. Aliyev and his ongoing disputes with the government of Kazakhstan. Ex. G (Eric Lipton, Feud in Kazakh President’s Family Spills Into U.S., N.Y. Times, May 29, 2011); Ex. H (Liz Hoffman, Kazakhstan Beats $1.2B Claims Over Axed Oil Contract, Law360, June 15, 2012); Ex. I (Caratube Oil Company and its Majority Shareholder Devincci Hourani Launch ICSID Arbitration Seeking over USD 1 Billion Compensation for Expropriation from Kazakhstan, PRNewswire, June 17, 2013).

The Complaint alleges that PsyberSolutions, Ms. Blair, and Mr. McCarthy established three websites, two Facebook pages, a YouTube channel, and three Twitter accounts on which they published words and images defaming Plaintiff and “assassinating” his character by connecting him to Ms. Novikova’s murder. Compl. ¶¶ 10-18, 22-45. The Complaint also alleges that Messrs. Thomson and McCarthy, at the instruction and direction of the other Defendants, organized a vigil outside the London home of Plaintiff’s brother on June 19, 2014, and a demonstration in Hyde Park and outside the Lebanese Embassy in London on November 16, 2014 (collectively, the Demonstrations) to commemorate the tenth anniversary of Ms. Novikova’s death. Compl. ¶¶ 19-21, 46-51. Plaintiff alleges that Mr. Thomson hired an events and marketing company to organize a group of actors to conduct the vigil by informing the company that Plaintiff and his brother had admitted committing the crimes and that the occupants of the residence would be sympathetic. Id. ¶¶ 48-49. Further, the Complaint alleges that paid actors conducted the Demonstrations and used banners and placards bearing Plaintiff’s photograph and the word “Murderer.” Id. ¶¶ 51, 54. The Internet Protocol (IP) address used for establishing the websites that displayed videos of the Demonstrations is allegedly owned by PsyberSolutions and Ms. Blair. Id. ¶¶ 34-35.

In opposing the motion to dismiss, Plaintiff asserts that Defendants created the websites, posted on YouTube and Facebook, and conducted the Demonstrations for money:

[D]efendants are not reporting on a news story. They are also not individuals expressing their own protected views as to plaintiff. Defendants are people who were hired to stage fake protests in London depicting plaintiff and his brother on large placards with the word “murderer” written above their picture. Defendants filmed these fake demonstrations, and then created websites and also made postings on YouTube and Facebook showing the demonstrations they filmed and other staged material alleging that plaintiff and his brother were involved with the murder of a young woman in Beirut. Defendants did all this for money.
Nothing in the complaint alleges that defendants knew anything about the plaintiff or his brother before they were hired.

Opp’n at 6.

The Complaint alleges six counts: (1) Conspiracy to Defame; (2) Defamation; (3) Defamation, Actual Malice; (4) Defamation, Reckless Disregard/Malice; (5) False Light; and (6) Emotional Distress. Plaintiff claims over $100 million in damages.

Defendants move to dismiss on two grounds: (1) lack of personal jurisdiction over Messrs. Thomson and McCarthy, who reside in New York and Pennsylvania, respectively, and have no minimum contacts with the District of Columbia; and (2) failure to state a claim against PsyberSolutions and Ms. Blair because Plaintiff is a limited-purpose public figure who must plead facts to show malice and he has not done so. Plaintiff opposes.

II. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Personal Jurisdiction

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the court’s exercise of personal jurisdiction over the defendant. Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). The plaintiff must allege specific acts connecting the defendant with the forum. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001); see First Chi. Int’l v. United Exchange Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988) (“[T]he general rule is that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts.”). Bare allegations and conclusory statements are insufficient. Second Amendment, 274 F.3d at 524. Further, a plaintiff cannot aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any single defendant. See Rush v. Savchuk, 444 U.S. 320, 331-32 (1980).

In determining whether a factual basis for personal jurisdiction exists, the court should resolve factual discrepancies appearing in the record in favor of the plaintiff. Crane, 894 F.2d at 456. However, the court need not treat all of the plaintiff’s allegations as true. Plesha v. Ferguson, 760 F.Supp.2d 90, 92 (D.D.C. 2011). Instead, the court “may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” Id. (internal quotation marks and citation omitted).

B. Motion to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true “even if doubtful, ” id., to state a claim for relief that is “plausible on its face.” Id. at 570. Even so, a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In deciding a Rule 12(b)(6) motion, a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). A court may take judicial notice of public records, id. at 1059, including facts on the record of other proceedings, see Covad Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005). A court also may take judicial notice of historical, political, or statistical facts, or any other facts that are verifiable with certainty. Mintz v. FDIC, 729 F.Supp.2d 276, 278 n.5 (D.D.C. 2010). Thus, the Court takes judicial notice of the public record of Hourani v. Mirtchev, the Arbitration Decision, and the Decision of the Investigation Judge cited above. Also, the Court takes judicial notice of the fact that the news articles cited above concerned Plaintiff.

III. ANALYSIS

A. Lack of Personal Jurisdiction over Thomson and ...


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