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D&S Consulting, Inc. (DSCI) v. Kingdom of Saudi Arabia

United States District Court, District of Columbia

August 21, 2018



          Emmet G. Sullivan United States District Judge

         On April 11, 2017, plaintiff D&S Consulting, Inc., (“DSCI”) filed a complaint in the Superior Court of the District of Columbia against defendant the Kingdom of Saudi Arabia (“KSA”) for, inter alia, breach of contract and unjust enrichment. KSA timely removed the action to this Court. Pending before the Court is KSA's motion to dismiss the complaint on the ground of forum non conveniens. Upon careful consideration of KSA's motion, the response and reply thereto, the applicable law, and for the reasons set forth below, the Court GRANTS KSA's motion to dismiss.

         I. Background

         This case arises out of a contractual dispute between DSCI and KSA. DSCI and KSA entered into a contract that provided for performance between August 2013 and April 2015. Compl., ECF No. 1-1 ¶ 4. The contract was entered into in Saudi Arabia. Id. ¶ 3. DSCI performed under the contract and KSA paid DSCI on a monthly basis. Id. ¶ 4. At the same time DSCI was performing under its contract with KSA, DSCI was awarded another contract, the details of which are not relevant to this case. Id. ¶ 5.

         DSCI breached the other contract and was terminated for failure to timely post a bond required by that contract. Id. Because of that termination, DSCI became insolvent and surrendered control of its assets to Bank of America, its secured creditor. Id. ¶ 6. Bank of America appointed a restructuring officer to wrap up DSCI's affairs and resolve its outstanding debts and receivables. Id. In reviewing its outstanding debts, DSCI discovered two invoices for work completed on the KSA contract that had not been previously invoiced or collected. Id. ¶ 7. Accordingly, DSCI submitted invoices for this work, but KSA has refused to pay. Id. ¶ 8, 9. DSCI filed suit against KSA to, inter alia, recoup the funds it alleges KSA owed to it.

         Several provisions of the contract[1] between DSCI and KSA are relevant to this motion to dismiss. The contract provides that “its interpretation, performance and enforcement shall be governed and construed by and in accordance with the applicable laws of the Kingdom of Saudi Arabia.” Mot. to Dismiss, Attach., ECF No. 10-1 at 25.[2] Additionally, “Arabic language shall be the approved language in interpreting and executing [the] contract.” Id. at 45. Although the parties were permitted to use a “foreign language in writing the contract . . . [i]n cases of discrepancy between the Arabic text and the foreign language's text, the Arabic text shall supersede.” Id. The contract also provides that “[t]he consultant and its employees shall commit to all regulation, laws and customs prevailing in [Saudi Arabia]

         including labor law, residence and other related laws.” Id. at 67.

         The contract designates Saudi Arabia as the place where the contract was to be performed. Id. at 75-76. The contract required DSCI to keep all “books and all accounts and documents related to this cont[r]act locally in Arabic . . . certified by a chartered accountant licensed to work in [Saudi Arabia].” Id. at 46. Saudi Arabian currency was the form of payment under the contract. Id. at 23. Finally, the forum-selection clause provides that “[t]he grievance council shall be assigned for settlement of any disputes or claims arising from the execution of this cont[r]act, or related to this contract, or resulting from its dissolution.” Id. at 46. Although not defined in the contract, the “grievance council” refers to the Board of Grievances in Saudi Arabia, an administrative court, which has jurisdiction over government contract claims brought against the Kingdom of Saudi Arabia. Mot. to Dismiss, ECF No. 10 at 13.

         On September 20, 2017, KSA moved to dismiss DSCI's complaint on the ground of forum non conveniens. DSCI filed its opposition on November 13, 2017, and KSA filed its reply on December 13, 2017. KSA's motion to dismiss is now ripe for consideration by the Court.

         II. Legal Standard

         Whether to dismiss a case on the ground of forum non conveniens “is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). Because the doctrine applies in federal courts “only in cases where the alternative forum is abroad, ” the appropriate remedy is dismissal rather than transfer. Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 429 (2007) (citation and internal quotation marks omitted); see also Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 66 n.8 (2013) (“Unlike a § 1404(a) motion [to transfer], a successful motion under forum non conveniens requires dismissal of the case.”) (citation omitted).

         When considering a motion to dismiss on the ground of forum non conveniens, the Court ordinarily must first determine whether the proposed alternative forum is adequate. Friends for all Children, Inc. v. Lockheed Aircraft Corp., 717 F.2d 602, 607 (D.C. Cir. 1983) (citing Piper Aircraft Co., 454 U.S. at 354 n.22). If there is an adequate alternative forum, the Court then “must balance the private interests of the litigants in keeping the case in the District of Columbia or dismissing it in favor of the foreign court, and the interests of the public and the courts of this district in keeping the case here.” Irwin v. World Wide Fund, Inc., 448 F.Supp.2d 29, 32-33 (D.D.C. 2006) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).

         That calculus of factors changes, however, when the parties have agreed to a mandatory forum-selection clause because a forum-selection clause “represents the parties' agreement as to the most proper forum.” Atl. Marine Constr., 571 U.S. at 63 (citation omitted). When a contract contains a valid forum-selection clause, the parties' agreement regarding the proper forum for resolving disputes should be “given controlling weight in all but the most exceptional cases.” Id. (citation and internal quotation marks omitted).

         The Supreme Court has articulated a two-step analysis for addressing a defendant's forum non conveniens motion based on a forum-selection clause. See Id. at 63-64. The first question is validity of the forum-selection clause. See Id. at 63 & n.5. Forum-selection clauses are presumptively valid and enforceable unless the party opposing enforcement meets a heavy burden of proof of showing that the clause is “the product of fraud or that its enforcement would contravene a strong public policy ...

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