United States District Court, District of Columbia
THEC INTERNATIONAL-HAMDARD CORDOVA GROUP-NAZARI CONSTRUCTION COMPANY, LTD. JOINT VENTURE, et al., Plaintiffs,
COHEN MOHR, LLP, et al., Defendants.
B. WALTON, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the plaintiffs' Motion to
Vacate Judgment Pursuant to Fed.R.Civ.P. 60(b)(6)
(“Pls.' Mot.”), ECF No. 44, which seeks to
vacate the Court's dismissal of the above-captioned
matter pursuant to the plaintiffs' notice of voluntary
dismissal and to instead dismiss this case for lack of
subject-matter jurisdiction, see generally Pls.'
Mot. at 1; Defendant Cohen Mohr LLP's Motion for Leave to
File a Sur-Reply (“Cohen Mohr's Mot.”), ECF
No. 50; the Motion of Defendants Abdul Hadi Rakin and THEC
International Corporation for Leave to File a Sur-Reply
(“Rakin & THEC's Mot.”), ECF No. 51; and
the Plaintiffs' Motion for Sanctions (“Pls.'
Sanctions Mot.”), ECF No. 57. Upon careful
consideration of the parties' submissions,  the Court
concludes for the reasons set forth below that it must deny
the defendants' motions for leave to file sur-replies,
deny the plaintiffs' motion to vacate the judgment the
Court previously entered in this matter, and deny the
plaintiffs' motion for sanctions.
November 3, 2015, the plaintiffs, THEC International-Hamdard
Cordova Group-Nazari Construction Company, Ltd. Joint Venture
(“THN Joint Venture”), the Hamdard Cordova Group
(the “Hamdard Group”), and the Nazari
Construction Company, Ltd. (the “Nazari
Company”), initiated this cause of action against two
of the named defendants, Cohen Mohr, LLP (“Cohen
Mohr”) and Abdul Hadi Rakin (“Rakin”),
asserting multiple common law claims based on an alleged
diversion of an approximate $3.6 million payment that the
plaintiffs purportedly earned for services performed in
conjunction with a road construction project in Afghanistan.
See Complaint for Fraud[, ] Conversion[, ] Civil
Conspiracy[, ] Negligence[, ] Tortious Interference With the
Contract[, and] Breach of Fiduciary Duty
(“Compl.”) at 1, ECF No. 2; see also
Pls.' Mot. at 1. Later, the plaintiffs amended their
Complaint in part to name the THEC International Corporation
(“THEC”), a company owned by Rakin, see
Pls.' Mem. at 1-2, as an additional defendant and to
assert, among others allegations, additional claims of
conversion, breach of fiduciary duty, and breach of contract,
see First Amended Complaint for Declaratory
Judgment, Conversion, Breach of Fiduciary Duty, Breach of
Contract, Tortious Interference with Contract, Civil
Conspiracy, Breach of the Standard of Care, and Breach of the
Standard of Conduct (“Am. Compl.”) at 1, ECF No.
each defendant moved to dismiss the plaintiffs' Amended
Complaint on both jurisdictional and procedural grounds.
See generally Defendant Abdul Hadi Rakin's
Motion to Dismiss (“Rakin's Mot.”), ECF No.
21; defendant Cohen Mohr LLP's Motion to Dismiss Amended
Complaint and Memorandum of Points and Authorities in Support
Thereof (“Cohen's Mot.”), ECF No. 23;
Defendant THEC International Corporation's Motion to
Dismiss (“THEC's Mot.”), ECF No. 34.
Specifically, the defendants argued that the Court lacked
subject-matter jurisdiction because the case involved
“an entity with Virginia citizenship [ ] suing another
entity with Virginia citizenship as well as an individual
with a Virginia domicile, ” and “[d]iversity
jurisdiction, therefore, di[d] not exist.” See,
e.g., Memorandum of Points and Authorities of Defendant
Abdul Hadi Rakin in Support of His Motion to Dismiss Pursuant
to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (“Rakin's
Mem.”) at 12. Consequently, because “the
pleadings and the record d[id] not reveal whether complete
diversity exist[ed] between the parties, ” Order at 6
(Apr. 29, 2016), ECF No. 37, the Court denied without
prejudice each of the defendants' motions to dismiss,
see id. at 8-9, and required the parties to conduct
jurisdictional discovery “limited to the question of
whether complete diversity exist[ed], ” id. at
9. However, before the close of the parties' limited
jurisdictional discovery, on June 27, 2016, the plaintiffs
filed a notice on the docket, voluntarily dismissing this
case without prejudice. See generally Notice of
Voluntary Dismissal Pursuant to Fed. R. Civ. P[. ]
41(a)(1)(A)(i) (“Pls.' Dismissal”). The
following day, the Court dismissed this matter without
prejudice and closed the case. See Minute Order
(June 28, 2016).
with the filing of their notice of the voluntary dismissal of
this matter, the plaintiffs initiated arbitration proceedings
against THEC in the International Court of Arbitration of the
International Chamber of Commerce (“ICC”).
See Cohen Mohr's Opp'n, Exhibit
(“Ex.”) A (International Chamber of Commerce -
International Court of Arbitration, Request for Arbitration
(“ICC Request for Arbitration”)). In March 2017,
the plaintiffs also filed a cause of action against Cohen
Mohr in the Superior Court of the District of Columbia
(“Superior Court”). See id., Ex. B (The
plaintiffs' Complaint in the Superior Court of the
District of Columbia (“Superior Court
Complaint”)). On June 25, 2017, “the ICC
proceedings were dismissed for lack of jurisdiction . . . [,
and] the Tribunal awarded THEC almost 100% of its fees and
costs incurred in the arbitration.” Rakin &
THEC's Opp'n at 4; see also id., Ex. 2 (ICC
International Court of Arbitration, Case No. 22065/RD/MK
(“ICC Arbitration Award”)) at 35 (ordering the
plaintiffs to pay THEC $87, 558.79 in legal costs related to
the arbitration proceedings). In the Superior Court
proceedings, defendant Cohen Mohr filed a motion seeking
costs and a stay of those proceedings under Superior Court
Local Rule 41(d) “[b]ecause the Superior Court Action
alleged the same wrongs and injury as [the voluntarily
dismissed] federal court action, . . . [and] Rule 41(d) . . .
warranted relief.” Cohen Opp'n at 3. On June 29,
2017, the Superior Court issued an order, ruling that
“[s]hould [Cohen Mohr] move for an assessment of costs
under Rule 41(d), [the p]laintiffs may then present their
positions as to the suitability of awarding such costs to
[Cohen Mohr].” Id., Ex. F (Order of the
Superior Court of the District of Columbia) (June 29, 2017)
(“Superior Court Order”)), at 4. That same day,
the plaintiffs filed their motion in this Court to vacate
their voluntary dismissal of this matter. See
Pls.' Mot. at 1. The following day, on June 30, 2017,
defendant Cohen Mohr filed its motion for costs and to stay
the litigation in the Superior Court proceedings.
See Pls.' Status Update, Ex. 1 (Omnibus Order of
the Superior Court of the District of Columbia) (Aug. 31,
2017) at 2.
briefing of the plaintiffs' motion to vacate was
completed, each defendant requested that this Court permit
them to file sur-replies given their shared position that the
plaintiffs' replies to their oppositions raised new
arguments. See, e.g., Cohen Mohr's Sur-Reply
Mot. at 1. On September 6, 2017, the plaintiffs filed on the
docket a status update, indicating that on August 31, 2017,
the Superior Court denied defendant Cohen Mohr's motion
for costs and to stay that litigation. See Pls.'
Status Update, Ex. 1 (Omnibus Order of the Superior Court of
the District of Columbia) at 16. The plaintiffs also
reiterated in their status update their request for relief
under Rule 60(b)(6), contending that the ICC's
“dismissal of the [plaintiffs] arbitration creates a
new, additional imperative for the Court to vacate the
voluntary dismissal and substitute an Order of Dismissal
noting its ab initio lack of subject[-]matter
jurisdiction.” See id. at 1 (citation
omitted). In addition, on October 26, 2017, the plaintiffs
filed a motion for sanctions in this case against the
defendants for alleged misconduct, see generally
Pls.' Sanctions Mot., which the parties have now fully
STANDARDS OF REVIEW
Motion for Leave to File a Sur-Reply
will grant a motion for leave to file a sur-reply if
“the party making the motion would be unable to contest
matters presented to the court for the first time in the
opposing party's reply.” Lewis v.
Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001),
remanded on other grounds, No. 01-5296, 2003 WL
21018861 (D.C. Cir. Apr. 30, 2003) (per curiam); see also
Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir.
2003) (quoting Lewis, 154 F.Supp.2d at 61). Although
“sur[-]replies are generally disfavored, ”
Kifafi v. Hilton Hotels Ret. Plan, 736 F.Supp.2d 64,
69 (D.D.C. 2010), aff'd, 701 F.3d 718 (D.C. Cir.
2012), “[t]he decision to grant or deny leave to file a
sur-reply is committed to the sound discretion of the Court,
” Ying Qing Lu v. Lezell, 45 F.Supp.3d 86, 91
(D.D.C. 2014). If new arguments appear for the first time in
a movant's reply, granting leave to file a sur-reply is
appropriate. See Flynn v. Veazey Constr. Corp., 310
F.Supp.2d 186, 189 (D.D.C. 2004). But, such arguments
“must be truly new.” United States ex rel.
Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238
F.Supp.2d 270, 277 (D.D.C. 2002). “Simply put, a
sur[-]reply is not a vehicle for rehashing arguments that
have already been raised and briefed by the parties. Were
that not true, briefing would become an endless
pursuit.” Crummey v. Soc. Sec. Admin., 794
F.Supp.2d 46, 63 (D.D.C. 2011), aff'd, No.
11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012).
Motion to Vacate Judgement
Rule of Civil Procedure 60(b)(6) “grants federal courts
broad authority to relieve a party from a final judgment
‘upon such terms as are just.'” Salazar
ex rel. Salazar v. District of Columbia, 633 F.3d 1110,
1116 (D.C. Cir. 2011) (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863 (1988)); see
also Fed.R.Civ.P. 60(b)(6) (permitting courts to
“relieve a party . . . from a final judgment, order, or
proceeding” for “any other reason that justifies
relief”). Although district courts “enjoy a
large measure of discretion in deciding whether to grant or
deny a [Rule] 60(b)[(6)] motion, ” Randall v.
Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987), the
Supreme Court has held that Rule 60(b)(6) applies only in
“extraordinary” circumstances, see Ackermann
v. United States, 340 U.S. 193, 202 (1950), and this
Circuit has cautioned that Rule 60(b)(6) “should be
only sparingly used, ” Twelve John Does v. District
of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988)
(quoting Good Luck Nursing Home, Inc. v. Harris, 636
F.2d 572, 577 (D.C. Cir. 1980)). “In short, plaintiffs
must clear a very high bar to obtain relief under Rule
60(b)(6).” Kramer v. Gates, 481 F.3d 788, 792
(D.C. Cir. 2007).
Motion for Sanctions
“[Federal Civil Procedure] Rule 11[, ] sanctions may be
imposed where a party files a pleading, motion[, ] or other
paper with the court for an improper purpose, that is
unwarranted by existing law, [ ] that is lacking evidentiary
support, ” Henok v. Chase Home Fin., LLC, 926
F.Supp.2d 100, 104 (D.D.C. 2013) (citing Fed.R.Civ.P.
11(b)(1)-(3)), or that is not “reasonably based on
belief or a lack of information, ” Fed.R.Civ.P.
11(b)(4). “Rule 11 sanctions are an extreme punishment
for filing pleadings that frustrate judicial
proceedings.” Brown v. FBI, 873 F.Supp.2d 388,
408 (D.D.C. 2012) (quoting Wasserman v. Rodacker,
No. 06-1005 (RWR), 2007 WL 2071649, at *7 (D.D.C. July 18,
2007)). Although “‘the district court is accorded
wide discretion' in determining whether sanctions are
appropriate, ” Gomez v. Aragon, 705 F.Supp.2d
21, 23 n.2 (D.D.C. 2010) (quoting Westmoreland v. CBS,
Inc., 770 F.2d 1168, 1174 (D.C. Cir. 1985)), the test
“under Rule 11 is an objective one: that is, ...