United States District Court, District of Columbia
D&S CONSULTING, INC. DSCI, Plaintiff,
KINGDOM OF SAUDI ARABIA, Defendant.
G. Sullivan United States District Judge
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.
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.
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.
provisions of the contract 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. 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]
labor law, residence and other related laws.”
Id. at 67.
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.
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.
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).
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)).
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).
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