-FBS Galustian v. Peter, et al, No. 2:2008cv00059 - Document 122 (E.D. Va. 2011)
Court Description: MEMORANDUM OPINION AND ORDER that the court DENIES as MOOT Galustian's Motion for Review of Certification. The court GRANTS the United States' Motion to Dismiss and, accordingly, GRANTS Peter's Second Motion to Drop a Party. The court GRANTS Peter's Second Motion to Dismiss on the grounds of forum non conveniens. This action is DISMISSED without prejudice to be properly filed in Iraq. Signed by District Judge Rebecca Beach Smith and filed on 8/8/11. (mwin, )
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FiLED UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA AUG - 8 2011 Norfolk Division RICHARD JOHN CHARLES CLEHK. U.S DISTRICT COUKT GALUSTIAN, NO".::o; k va Plaintiff, V. ACTION NO. LAWRENCE T. 2:08cv59 PETER, and UNITED STATES OF AMERICA, Defendants. MEMORANDUM OPINION AND This motions matter comes from each of before the the parties. ORDER court on On May 12, United States of America {"United States") several 2011, outstanding defendant the filed a Motion to Dismiss for lack of subject matter jurisdiction, claiming that the plaintiff, Richard John Charles administrative Motion, Amended claim as ("Galustian"), required by 28 failed U.S.C. § to 2675. file In an that the United States also moved to dismiss the Verified First Complaint alternative exceptions (the grounds to the "Amended that Federal sovereign immunity.1 {"Peter") Galustian Complaint") Galustian's Tort On June 13, Claims against claims Act's fall ("FTCA") it on under waiver the two of 2011, defendant Lawrence T. Peter filed a Second Motion to Drop Party and Dismiss Plaintiff's 1 Specifically, the United States argues that Galustian's claims are barred by the intentional tort exception of 28 U.S.C. § 2680(h) and the foreign country exception of 28 U.S.C. § 2680(k). Amended Complaint. Peter asks that the court dismiss the United States from the litigation, and then dismiss the action against him on the grounds of forum non conveniens or, in the alternative, failure to state a claim upon which relief can be granted. for On June 16, 2011, Galustian filed a Motion for Review of Certification, Leave to Conduct Discovery and Evidentiary Hearing on Col. John J. Holly's ("Holly") Scope of Employment, and to Reinstate Holly as a Defendant ("Motion for Review of Certification") . These matters have been fully briefed and are all now ripe for review. I. The court's relevant June 18, Factual factual 2008, and Procedural history is History set forth Memorandum Opinion, the in detail in the court's August 11, 2008, Clarification Order, the court's December 12, 2008, Memorandum Dismissal Order, and the court's November Opinion, and it need not be repeated herein. 561 F. Supp. 2d 559 (E.D. Va. 2008) Peter, 590 F. Galustian v. Galustian v. Supp. Peter, be repeated 750 Likewise, prior to November 9, not 804 (E.D. 591 F.3d 724 Peter, ("Galustian V"). 2d 2010, herein. F. 2010, 2008) (4th Cir. relevant, Galustian v. ("Galustian II") ; Galustian Va. Supp. Memorandum See Galustian v. Peter, ("Galustian I"); Peter, 570 F. Supp. 2d 836 (E.D. Va. 2008) v. 9, ("Galustian III"); 2010) 2d 670 ("Galustian IV"); (E.D. Va. 2010) detailed procedural history is set forth in those opinions and need In brief review, the court previously dismissed this action on two occasions, basis of forum non conveniens. Circuit reversed and remanded, without prejudice, In the first instance, this court's dismissal on the grounds of Galustian IV, lacked personal should be jurisdiction dismissed conveniens. as to over Peter See Galustian V, 750 F. the Supp. after finding that and that grounds 2d at only determine whether Iraq is available 678 as the of action forum non (noting that "now that Holly has been dismissed from the litigation . need therefore, Most recently, the 2010, Holly, on and, forum non conveniens was 591 F.3d at 730-31.2 court dismissed the action on November 9, it the Fourth finding that Galustian was entitled to amend his complaint without leave of this court, premature. on the . to . the court Peter, the Galustian filed a Notice of Appeal from remaining defendant"). On December 9, 2010, this court's Memorandum Opinion of November 9, 2011, Neil H. MacBride ("MacBride"), Eastern District of Virginia, 2010. On January 6, United States Attorney for the certified that " [o] n the basis of the information now available with respect to the claims set forth Galustian's Amended Complaint] 2 . . . Holly[] [in was acting within the The Fourth Circuit "express[ed] no opinion as to the substance of the forum non conveniens issue," Galustian IV, 591 F.3d at 731, but did offer this court "some guidance," which this court utilized in its second opinion dismissing the case. See Galustian V, 750 F. Supp. 2d at 680-81. scope of federal office or employment at the time of out of which the plaintiff's claims arose." of United States' Mot. Certification] . 3 to Dismiss, Accordingly, on ECF Ex. No. January the incident 1 to Mem. 102-1 19, in Supp. [hereinafter 2011, the United States moved the Fourth Circuit to dismiss the action against Holly, to substitute the United States for Holly as defendant/appellee, and to remand the case to this court. See 28 U.S.C. § 2679(d)(l) (providing that w[u]pon certification by the Attorney General . . . any civil action or proceeding commenced upon such claim in [federal court] shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant") . In an order filed March 16, 2011, the Fourth Circuit granted that motion and remanded the case for further proceedings. court vacated directed pursuant its the Clerk Memorandum to Opinion substitute the to the Fourth Circuit mandate II. of On May 12, 2011, this November United 9, States issued on May 2010, for 10, and Holly, 2011. Analysis A. Galustian's Motion for Review of Certification4 Seeking 3 Holly's MacBride also allegations made 4 The court disposition of in reinstatement certified that as he a defendant, was [the Amended Complaint]." addresses this motion other motions before the first court. "familiar Galustian with the Certification. because it affects challenges MacBride' s Certification that Holly was acting within the scope of out of federal office or employment at the time of the incident which Galustian's claims arose. To that end, Galustian requests that this court permit him to conduct discovery on the issue and that it hold an evidentiary hearing. The Fourth Circuit already ruled on the substitution issue upon proper motion brought by the United States. Order] See Order, ECF No. ("We grant the motion 879 F.2d 98, defendant).5 100 (4th Cir. . . 97 . 1989) [hereinafter Fourth Circuit ."); see also Jordan v. Hudson, (substituting the United States as Galustian cannot seek another "bite at the apple" the district court on the same issue. in It would be eminently improper for this court to entertain a de facto motion for reconsideration of a Fourth Circuit decision. Cf. 537 1976) F.2d 1182, relitigate Accordingly, 1183 (4th issues Cir. previously Galustian's Motion Boeckenhaupt v. (finding decided for that on Review of United States, a party direct cannot appeal). Certification is DENIED as MOOT.6 5 Indeed, Galustian "noted his objection to the Certification [in response to the United States' motion for substitution], and requested on remand an opportunity to object to the Certification and to conduct discovery on the issue of Holly' s scope of employment." Mem. in Supp. of Mot. However, for Review of Certification K 6, ECF No. 111. the Fourth Circuit provided no indication that it granted substitution subject 6 In any event, to further review by this Galustian's motion [to substitute] Motion is court. meritless. "Once the is filed, with the supporting certification, B. United States' Motion to Dismiss A federal court must have subject matter jurisdiction over a lawsuit in order for the court to have the power to award relief. See First Am. Supp. 945, Nat'l Bank v. 946 {E.D. Va. Straight Creek Processing Co., 1991). The United States is entitled to sovereign immunity and cannot be sued without its consent. v. Meyer, 510 U.S. 471, 475 756 F. (1994). Accordingly, See FDIC the court's jurisdiction over claims against the United States is limited to the terms of the United States' Nakshian, 453 U.S. 156, consent to be sued. 160 (1981). The See id.; Lehman v. FTCA provides a the plaintiff must come forward with competent, limited verified evidence, including affidavits, establishing that the defendant was not acting within the scope of his employment." 673, 679 (E.D. Va. Enforcement Admin. , 1995) ; plaintiff does not present by the Supp. United at 679 self-serving formed "on knowledge. t 15. see 111 F.3d 1148, States Gutierrez 1153-54 such evidence, Attorney's allegations See Mem. from and in Supp. de Jones, 902 F. Martinez the issue Supp. v. (4th Cir. 1997). certification." (citations omitted) . information Wilson v. Drug "If the is determined Wilson, 902 F. Galustian only presents his own his Amended belief," of Mot. Complaint, rather than which on were personal for Review of Certification Such allegations are insufficient to challenge certification. See Walker v. Tyler Cnty. Comm'n, 11 F. App'x 270, 274, 2001 WL 603408, at any *4 (4th Cir. 2001). substantiated Certification. The Galustian fails to provide the court with evidence that court does not contradicts MacBride's see what would be gained by an evidentiary hearing and unnecessary discovery, at the expense of both time and resources in already protracted litigation. 111 F.3d at 1155 See Gutierrez, (providing that a district court "should not" allow discovery or conduct an evidentiary hearing "if the certification, the pleadings, the affidavits, and any supporting evidence do not reveal an issue of material fact"). documentary Accordingly, even if this court could consider Galustian's Motion on the merits, it would deny it. waiver of employees sovereign of the immunity United States employment. See Williams v. Cir. As a waiver of 1995). construed, sovereign." (citations The and all for torts acting committed within United States, immunity, ambiguities 50 scope of to be resolved in 80 F.3d 884, 887 or their 305 (4th "strictly favor of the (4th Cir. 1996) omitted). proper procedure for analyzing whether the FTCA jurisdiction over an action against the United States to dismiss pursuant to Rule 12(b)(1) Procedure. agents F.3d 299, the FTCA is [] Robb v. United States, the by See Williams, is confers a motion of the Federal Rules of Civil 50 F.3d at 304. The plaintiff bears the burden of showing subject matter jurisdiction, see id., by alleging supportive Acceptance Ind., facts. 298 U.S. 178, See 189 McNutt v. (1936). Gen. Motors Corp. of The court may also consider facts and exhibits outside of the pleadings without converting the motion to dismiss into a motion for summary judgment. at See Williams, 50 F.3d 304. 1. Failure to Submit Administrative Claim The United States first argues that Galustian failed to exhaust his administrative remedies. the United States in a In order to bring a tort claim against federal court, a plaintiff must npresent[] the claim to the appropriate Federal agency," § and that claim must be 2675(a), first 28 U.S.C. "finally denied by the agency in writing and sent by certified or registered mail." U.S.C. § 2401 ("A tort claim against Id.; the United States see 28 shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .") "It is well-settled that the requirement of filing an administrative claim is jurisdictional and may not be waived." States, 785 F.2d 121, 123 {4th Cir. States, 223 F.3d 275, 278 (4th Cir. 1986); 2000) Henderson v. United see Kokotis v. United ("Precisely because the FTCA constitutes a waiver of sovereign immunity, plaintiffs must with file (citations an FTCA action in careful compliance its . . . terms." omitted)). Galustian does not deny that he failed to file an administrative claim. Rather, he requests that the court "withhold ruling on the USA's Motion to Dismiss until it has challenging the Certification," Mem. to Dismiss 4, ECF No. 112, because, ruled on Galustian's Motion in Opp. if the to United States' United States entitled to be substituted as a defendant for Holly, Mot. is not "Holly will be reinstated as a defendant in this case and will not have available to him the sovereign immunity defenses that the USA has made." at 3-4.7 The court has denied Galustian's Motion Id. for Review of 7 Galustian also asserts that "failure to file an administrative claim prior to filing his Amended Complaint against Holly is curable pursuant to 28 U.S.C. § 2675." Mem. in Supp. of Mot. for Review of Certification H 9. Galustian is mistaken. There is no cure 8 Certification, 8 and, thus, Holly will not be reinstated as a defendant. Galustian does not allege any facts indicating that he filed administrative an Accordingly, claim with any federal agency. 9 the court FINDS that Galustian failed to exhaust his administrative remedies before bringing this action in this court. 2. Exceptions to FTCA's Waiver of Sovereign Immunity Galustian did not exhaust his administrative remedies, and thus cannot maintain Although this suit on resolves his claims the matter, against the United the United States States. argues that Galustian's claims against it are also barred by two exceptions to the FTCA's limited waiver of sovereign immunity.10 The court provision in 28 U.S.C. § 2675 and no basis to find that the United States' sovereign immunity can be waived, if a plaintiff files an administrative claim after commencing an action against the United States. In fact, relevant case law counsels that a failure to exhaust administrative remedies prior to bringing a tort claim against the McNeil v. United States United States, in federal 508 U.S. court 106, 112 is not (1993) curable. See (holding that a prematurely filed FTCA action may not be maintained even if a claimant exhausts his administrative remedies after filing suit); see also Webb v. United States, 8 Moreover, F.3d 691, 693 (4th Cir. 1995). Supra Part II.A. 9 66 the United States provided a declaration from Milton W. Boyd, Assistant Counsel for Litigation for the United States Army Corps of Engineers, Headquarters, n[a]fter a thorough review of in which Boyd declares that [the relevant records within the Army Corps of Engineers for an administrative tort claim associated with the same tort claim presented in this lawsuit] , of the 10 there are no records an administrative tort claim from Richard Galustian concerning subject matter of See supra note 1 this lawsuit." and accompanying Boyd Aff., text. ECF No. 102-2. addresses each exception in turn. Intentional Tort Exception Even if a plaintiff exhausts his administrative remedies, the United States does not waive sovereign immunity against w [a] ny claim arising out of U.S.C. the ... § 2680(h). slander, [or] misrepresentation." Galustian's claims against Holly, and, United States, Holly's libel, see, e.g., allegedly providing Fourth Circuit Peter with an Order, Iraqi 28 therefore arise warrant out of bearing Galustian's name, even though Holly knew or should have known it was fraudulent, Peter for to distribute to members Security Company Association of Iraq ("PSCAI"), F. Supp. 2d at 672, and the humiliation and embarrassment, resulting of the see Galustian V, "injury to ECF No. 59. 750 reputation, and monetary loss including loss of business in [Galustian's] private security business."11 t 69, Private Am. Compl. In other words, Galustian seeks damages that flow from Holly's participation in disseminating an allegedly defamatory e-mail. In Talbot v. United States, 932 F.2dlO64 (4th Cir. 1991), the Fourth Circuit found that the libel and slander exception of 28 U.S.C. § 2680(h) precluded suit " [b]ecause the damages 11 against the [the plaintiff] United States in that case, alleges appear to flow from Peter is the Director of PSCAI, a non-profit trade association serving the private security industry in Iraq. 10 past or future communication of the contents of the personnel files and the resulting injury to [the plaintiff's] reputation," and such a claim "'resound [s] in the heartland of the tort of defamation: the injury is to reputation; the conduct is the communication of an idea, either implicitly or explicitly.'" 932 F.2d at 1066-67 omitted). the This establishes that court with claim " [a] agrees for the United States communication (citations that of Talbot allegedly defamatory information is not cognizable under the FTCA." Mem. in Supp. of United States' Mot. to Dismiss 6, ECF No. 102; see Williams, 50 F.3d at 305 (remarking that all ambiguities regarding the FTCA's sovereign immunity waiver States). Accordingly, are the court against the United States are, U.S.C. resolved FINDS in favor that the United Galustian's claims in the alternative, of barred under 28 § 2680 (h) ,12 Foreign Country Exception The FTCA's waiver of sovereign immunity also does not apply to "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680{k). This foreign country exception exempts the United States from suit for injuries "suffered in a foreign country, tortious 12 act or omission occurred." regardless of where the Sosa v. Alvarez-Machain, 542 Galustian does not dispute that he cannot maintain suit against the United States on the claims he brought against Holly. 8. 11 See supra U.S. 692, 712 (2004) . Galustian suffered in the United States. 675 does not allege See Galustian V, any 750 F. injuries Supp. 2d at (finding that "Galustian has alleged no facts to support damage suffered to his reputation in Virginia, in Iraq," and, thus, "Iraq, of the alleged harm"). in Iraq.13 independent of his business and not Virginia, Rather, was he only alleges the focal point injuries suffered See Am. Compl. t 1 (providing that the actionable conduct had the "eventual effect of destroying Plaintiff's existing business and future potential in Iraq" Accordingly, United 13 the States Although court are, the FINDS in the location (emphasis added)); that Galustian's alternative, of the claims against the United States against under tortious irrelevant to the sovereign immunity analysis, the Uil 53-54.14 claims barred alleged id. 28 the U.S.C. conduct is the court notes that only concern Holly's alleged actions in Iraq. See Am. Compl. t 4 (alleging that " [a] t the material time, the Holly was Director Contracting Office of the U.S. Division, H 45 (alleging that Holly warrant was with an office to Peter, of Logistics for the Project Army Corps of Engineers' in Baghdad, Iraq" (emphasis "purposefully delivered" "who then operated [PSCAI] Gulf Region added)}; (now International) id. the fraudulent from his desk, located literally feet away from Holly's own desk, office in the Green and Zone of Baghdad" which in Holly's (emphasis added)). 14 Galustian also alleges that he is a subject of the United Kingdom and a resident of the United Arab Emirates ("UAE") , id. f 2, as well as that GEMINI ISI LIMITED, owner and director, the company of which he is beneficial is incorporated under the laws of Dubai and the UAE and does business throughout the Middle East. The court need not decide whether such allegations are enough to allege injury in those countries, because the relevant inquiry is whether Galustian's alleged injuries were suffered in the United States. § 2680(k). 12 See 28 U.S.C. § 2680{k) .15 3. Galustian failed to Summary exhaust his administrative bring a claim against the United States. Moreover, remedies to his claims are subject to two express exceptions to the FTCA's sovereign immunity waiver. For those reasons, the court FINDS that the United States has not waived its sovereign immunity in this case, and, therefore, this court is without subject matter jurisdiction over Galustian's claims against the United States. United States' Procedure C. Peter's Accordingly, Motion to Dismiss, the court GRANTS the pursuant to Federal Rule of Civil 12(b) (1) . Second Motion to Drop Peter's Second Motion dismiss the United States to Party Drop from this Party requests that the court litigation for the reasons set forth in the United States Motion to Dismiss. Because this court grants the United States' Motion to Dismiss,16 Peter's Second Motion to Drop D. Party is Peter's GRANTED. Second Motion to Dismiss Amended Complaint In order to dismiss a case for forum non conveniens, must find that Iraq is 15 See supra note 12. 16 an adequate Supra Part II.B. 13 and available the court forum as to all defendants and that the private and enumerated in Gulf Oil Corp. v. Gilbert, weigh in favor of dismissal. On November 9, 2010, 750 501, factors 508-09 (1947) 591 F.3d at 731-32. the court dismissed this action as to Holly for analysis Galustian V, interest 330 U.S. See Galustian IV, lack of personal jurisdiction and, conveniens public F. as to Supp. thus, Peter, 2d at only conducted a forum non the 678. remaining Finding that defendant. Iraq was an adequate and available forum as to Peter, as well as that the private and public interest factors weighed in favor of dismissal, the court dismissed the action on the basis of forum non conveniens. 678-81. a Id. at Because the United States was subsequently substituted as defendant, the Fourth Circuit remanded the case for further proceedings, presumably to analyze inter alia whether an Iraqi forum is adequate and available as to both Peter and the United States. However, this court dismisses the United States from the litigation,17 leaving Peter once again as the sole defendant. Accordingly, the court need only determine whether Iraq is an adequate and available forum as to Peter. Peter Court's prior arguments "dismissal 17 represents from of [forum his that non conveniens] previous Plaintiff's "[n]othing motions claims Supra Part II.B. 14 on has changed rulings," to dismiss, the to alter the incorporates his and grounds of argues forum that non conveniens is again appropriate." Mem. in Supp. of Peter's Second Mot. to Dismiss Am. Compl. 4, ECFNo. 108; see Mem, in Supp. of Peter's Mot. to Dismiss Mot. to Dismiss Am. "too will Compl., rest ECF No. Compl., on, to Peter's (citing Mem. and and Mem. 68) . Second Mot. in Opp. in Opp. Nothing 62. in on forum record non dismissal. Accordingly, Peter's the that he reference, conveniens." Compl. 5, court Mem. ECF No. Compl, to Galustian court for the reasons Motion to Dismiss conveniens. of Peter's pursuant in 114 10 ECF No. abandon its V, readopts 750 and F. factors weigh in favor Supp. 2d incorporates at in 678-81. full reasoning set forth in its Memorandum Opinion of November 9, and, his ECF No. Compl., to Dismiss Am. persuades First ruling that Iraq is an adequate and available forum See the by to Dismiss to Peter and that the private and public of of Galustian states to Dismiss Am. to Peter's Mot. the in Supp. incorporate to Peter's First Mot. November 9, 2010, as Mem. ECF No. previously-submitted briefing Opp. 7; stated there and above, Rule of of forum non the court does not reach the portion Second Motion to Dismiss to Federal 2010, GRANTS Peter's Second the Amended Complaint on the basis Given this ruling, the Civil 15 for failure Procedure to state 12(b)(6). a claim, III. For the reasons set Conclusion forth above, the court Galustian's Motion for Review of Certification. United States' Motion to Dismiss Second Motion to Drop a Party. and, DENIES as MOOT The court GRANTS the accordingly, GRANTS Peter's The court GRANTS Peter's Second Motion to Dismiss on the grounds of forum non conveniens. This action is, therefore, DISMISSED without prejudice to be properly filed in Iraq. The Clerk is DIRECTED to Opinion and Order to counsel forward a copy of this Memorandum for the parties. IT IS SO ORDERED. /s/ Rebecca Beach Smith United States District Judge r)0Q REBECCA BEACH Norfolk, Virginia August D , 2011 16 SMITH UNITED DISTRICT STATES JUDGE
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