MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE.
The
plaintiff, Africa Growth Corporation (“AFGC”), a
U.S.-based, publicly-listed corporation which, through its
subsidiaries, builds and manages apartments in Angola's
capital city, Luanda, instituted this suit against three
Angolan government officials and the Republic of Angola to
recover damages for an alleged series of brazen fraudulent
actions culminating in the outright seizure and occupation of
AFGC's properties by the three individual defendants:
Angolan Army General António Francisco Andrade
(“General Andrade”), his son, Angolan Army
Captain Miguel Kenehele Andrade (“Captain
Andrade”), and daughter, Angolan State Prosecutor
Natasha Andrade Santos (“Prosecutor Andrade”)
(collectively, “Andrade
Defendants”).[1] Angola has filed a Motion to Dismiss, ECF
No. 42, for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1), arguing that it is immune from suit
pursuant to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. §§ 1602 et
seq.[2] AFGC subsequently filed a Motion for
Voluntary Dismissal Without Prejudice (“Mot. Vol.
Dismissal”), ECF No. 67, to dismiss only the claims
against Angola, claiming that Angola and AFGC had
“negotiated and freely entered into a settlement of all
claims, ” id. at 1, for alleged breach of
which AFGC has brought a separate action against Angola in
the Southern District of Florida, see Mot. Vol.
Dismissal, Ex. A, Complaint, Africa Growth Corporation v.
Republic of Angola, No. 1:19-cv-21995-KMW (S.D. Fla. May
16, 2019), ECF No. 67-2. For the reasons set forth below,
Angola's motion to dismiss for lack of subject matter
jurisdiction is granted, and AFGC's motion for voluntary
dismissal without prejudice is denied as moot.[3]
I.
BACKGROUND
The
factual allegations central to this case were outlined in the
Court's Memorandum Opinion denying the plaintiff's
Motion for Default Judgment, ECF No. 23, and granting
Angola's Motion to Set Aside Default, ECF No. 28, see
Africa Growth Corporation v. Republic of Angola
(AFGC I), No. 17-cv-2469 (BAH), 2018 WL 6329453
(D.D.C. Dec. 3, 2018), and thus is only briefly summarized
here.
AFGC
operates in Angola through a series of subsidiaries
incorporated in countries other than the United
States.[4] The Angolan apartment buildings named Isha
1, Isha 2, Isha 2.5, and Pina, Compl. ¶¶ 27-29, ECF
No. 1, allegedly seized by the Andrade Defendants, are owned
and operated by AFGC's Angolan subsidiaries, see AFGC
I, 2018 WL 6329453, at *1. Allegedly, “[u]nder
color of his official position within the Angolan government,
” Compl. ¶ 41, the individual defendant General
Andrade used both threats of violence, id.
¶¶ 41-45, and fraudulent Powers of Attorney,
id. ¶ 35, to appoint himself as the director
and General Manager of AFGC's three Angolan subsidiaries,
AGPV, Illico, and Maximilio, in August 2017, id.
¶ 49. The individual defendant Prosecutor Andrade
allegedly used her official position as a prosecutor to bring
“a patently frivolous, false, baseless, and abusive
criminal claim against various AFGC representatives, ”
id. ¶ 62, “stat[ed] that she would have
[an AFGC representative] killed, ” id. ¶
63, and “facilitated the fraudulent transfer of the
surface rights to [AFGC's properties] into her own name
by personally appearing at the Angolan Property Registry and
ordering that the change be made by and through a transfer of
title, ” id. ¶ 97. The defendant Captain
Andrade allegedly “threatened the safety of”
AFGC's accountants in Angola, id. ¶ 108,
instructing them “to send all the corporate
records” to the Andrade Defendants' “personal
accountant, ” id. ¶ 106, and “sent
a false and defamatory complaint against AFGC to the Chairman
of the SEC, ” id. ¶¶ 67-68,
“aimed at discrediting and undermining AFGC and its
shareholders with respect to its investment in Angola,
” id. ¶ 146(b). Thus, with limited
exception, all of the conduct alleged in the complaint took
place in Angola, all of the individual defendants are Angolan
nationals residing in Angola, and all of the disputed
property is located in Angola.
II.
LEGAL STANDARD
A.
Motion to Dismiss for Lack of Subject Matter
Jurisdiction
To
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), the plaintiff bears the burden of
demonstrating the court's subject matter jurisdiction
over his claim. Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015). “‘Federal courts are courts of
limited jurisdiction,' possessing ‘only that power
authorized by Constitution and statute.'” Gunn
v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)). Indeed, federal courts are “forbidden
. . . from acting beyond our authority, ”
NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.
2008), and, therefore, have “an affirmative obligation
‘to consider whether the constitutional and statutory
authority exist for us to hear each dispute, '”
James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085,
1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad.
of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent
subject matter jurisdiction over a case, the court must
dismiss it. See Arbaugh v. Y & H Corp., 546 U.S.
500, 506-07 (2006); Fed.R.Civ.P. 12(h)(3).
When
considering a motion to dismiss under Rule 12(b)(1), the
court must accept as true all uncontroverted material factual
allegations contained in the complaint and
“‘construe the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived
from the facts alleged' and upon such facts determine
jurisdictional questions.” Am. Nat'l Ins. Co.
v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). The court need not accept inferences drawn by the
plaintiff, however, if those inferences are unsupported by
facts alleged in the complaint or amount merely to legal
conclusions. See Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002).
In
evaluating subject matter jurisdiction, the court, when
necessary, may “undertake an independent investigation
to assure itself of its own subject matter jurisdiction,
” Settles v. U.S. Parole Comm'n, 429 F.3d
1098, 1107 (D.C. Cir. 2005) (quoting Haase v.
Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987)), and
consider “facts developed in the record beyond the
complaint, ” id. See also Herbert, 974 F.2d at
197 (concluding that in disposing of motion to dismiss for
lack of subject matter jurisdiction, “where necessary,
the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts.”). To do so, “the
district court may consider materials outside the
pleadings.” Jerome Stevens Pharm., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also
Belhas v. Ya'Alon, 515 F.3d 1279, 1281 (D.C. Cir.
2008) (examining materials outside the pleadings in ruling on
a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction); Coal. for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (noting that
courts may consider materials outside the pleadings in ruling
on a Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction).
B.
The Foreign Sovereign Immunities Act
Under
the FSIA, a foreign state and its political subdivisions,
agencies, and instrumentalities are presumed to be immune
from the jurisdiction of the United States courts. See
TMR Energy Ltd. v. State Prop. Fund of Ukr., 411 F.3d
296, 299 (D.C. Cir. 2005) (citing Saudi Arabia v.
Nelson, 507 U.S. 349, 355 (1993)); see also 28
U.S.C. § 1604. The “presumption is overcome only
if the plaintiff shows that one of the exceptions to immunity
provided in 28 U.S.C. §§ 1605-07 applies.”
TMR Energy, 411 F.3d at 299.
The
FSIA's commercial activity exception sets out, in three
separate clauses, three circumstances under which a foreign
state is not “immune from the jurisdiction of courts of
the United States, ” 28 U.S.C. § 1605(a)-when
“the action is based upon” (1) “a
commercial activity carried on in the United States by the
foreign state, ” (2) “an act performed in the
United States in connection with a commercial activity of the
foreign state elsewhere, ” or (3) “an act outside
the territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States, ”
id. § 1605(a)(2). “[C]ommercial
activity” is “a regular course of commercial
conduct or a particular commercial transaction or act.”
Id. § 1603(d). An activity's
“commercial character” is “determined by
reference to the nature of the course of conduct or
particular transaction or act, rather than . . . to its
purpose.” Id. A foreign state's acts are
“commercial” within the FSIA's meaning
“when a foreign government acts, not as regulator of a
market, but in the manner of a private player within that
market.” Republic of Argentina v. Weltover,
Inc., 504 U.S. 607, 614 (1992). In other words,
“the question is not whether the foreign government is
acting with a profit motive or instead with the aim of
fulfilling uniquely sovereign objectives, ” but
“whether the particular actions that the foreign state
performs (whatever the motive behind them) are the
type of actions by which a private party engages in
trade and traffic or commerce.” Id. (emphasis
in original) (citation and internal quotation marks omitted).
The Supreme Court has explained that “an action is
‘based upon' the ‘particular conduct'
that constitutes the ‘gravamen' of the suit.”
OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390, 396
(2015); see also Fry v. Napoleon Cmty. Sch., 137
S.Ct. 743, 755 (2017) (“[A] court's jurisdiction
under the Foreign Sovereign Immunities Act turns on the
‘gravamen,' or ‘essentials,' of the
plaintiff's suit.” (quoting Sachs, 136
S.Ct. at 395-97)).
The
FSIA's expropriation exception requires that “(1)
‘rights in property are at issue;' (2) ‘those
rights were taken in violation of international law;' and
(3) ‘a jurisdictional nexus [exists] between the
expropriation and the United States.'” Nemariam
v. Federal Democratic Republic of Ethopia, 491 F.3d 470,
475 (D.C. Cir. 2007) (alteration in original) (quoting
Peterson v. Royal Kingdom of Saudi Arabia, 332
F.Supp.2d 189, 196-97 (D.D.C. 2004), aff'd, 416
F.3d 83 (D.C. Cir. 2005)). The necessary
“jurisdictional nexus is established if: (a) the
property ‘is present in the United States in connection
with a commercial activity carried on in the United States by
the foreign state' or (b) the property ‘is owned or
operated by an agency or instrumentality of the foreign state
and that agency or instrumentality is engaged in engaged in a
commercial activity in the United States.'”
Id. at 475 (quoting 28 U.S.C. § 1605(a)(3)).
III.
DISCUSSION
AFGC
argues that both the “commercial activity” and
the “expropriation” exceptions to sovereign
immunity under the FSIA apply to this case. Neither
exception, however, is supportable here.
A.
The Commercial Activity ...