Azima v. Rak Inv. Auth.

325 F.Supp.3d 30

Farhad AZIMA, Plaintiff,

v.RAK INVESTMENT AUTHORITY, Defendant.

No. 16-cv-1948 (KBJ)

United States District Court, District of Columbia.

Signed September 7, 2018

Ian A. Herbert, Pro Hac Vice, Charles Francis Benedict McAleer, Jr., Timothy Patrick O'Toole, Kirby D. Behre, Miller & Chevalier, Chartered, Washington, DC, for Plaintiff.

Daniel Brett Kohlhofer, Dechert, LLP, Washington, DC, Linda C. Goldstein, Dechert LLP, New York, NY, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

On March 30, 2018, this Court issued an opinion denying the motion to dismiss that Defendant RAK Investment Authority ("RAKIA") had filed in the instant matter—a case that involves claims by Plaintiff Farhad Azima that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops from October 2015 to August 2016, and then published disparaging material that was illicitly gleaned from Azima's computers during the hacking." Azima v. RAK Inv. Auth. , 305 F.Supp.3d 149, 154 (D.D.C. 2018). The Court's opinion addressed two arguments that RAKIA made in support of its motion to dismiss: (1) that this Court lacks subject-matter jurisdiction to entertain Azima's suit because RAKIA is entitled to sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1604, and (2) that Azima's suit should be dismissed under the doctrine of forum non conveniens in favor of litigating this case in London, England, because Azima and RAKIA had previously entered into a settlement agreement that contained a forum-selection clause designating London as the forum for any disputes over the contents of that settlement agreement. See id. Ultimately, this Court rejected both arguments, concluding that it has subject-matter jurisdiction under the commercial activity exception to the FSIA, and that RAKIA's forum non conveniens argument was meritless, because RAKIA had not carried its heavy burden of establishing that London was, in fact, an adequate alternative forum to hear this case, nor had RAKIA demonstrated that the balance of public and private interests (including the settlement agreement upon which RAKIA relied) weighed in favor of having this case heard in London, see id. ; see also id. at 173–76.

RAKIA has since filed an interlocutory appeal regarding this Court's FSIA determination, as it is clearly authorized to do under the collateral order doctrine. See Agudas Chasidei Chabad of U.S. v. Russian Federation , 528 F.3d 934, 939 (D.C. Cir. 2008). Apparently, RAKIA also wishes to appeal this Court's Order denying RAKIA's motion to dismiss for forum non conveniens , and to this end, before this Court at present is a motion that Rakia has filed to ask this Court to certify its forum non conveniens ruling for interlocutory appeal in accordance with section 1292(b) of Title 28 of the United States Code. (See Mem. of Law in Supp. of Def.'s Mot. for Certification of March 30, 2018 Order ("Def.'s Mem."), ECF No. 45 -1, at 5.)¹

In its Section 1292(b) motion, RAKIA has asked this Court to certify its prior forum non conveniens order for interlocutory appeal with respect to

three controlling issues of law: (i) whether the Courts of England, where a parallel proceeding is already underway between the parties in the High Court of Justice (the "High Court"), is an adequate forum for Plaintiff's claims; (ii) whether the law of England offers an adequate legal remedy to Plaintiff; and (iii) whether a mandatory forum selection clause directs the parties to litigate this dispute in the High Court.

(Def.'s Mem. at 5.) RAKIA contends that certification of this Court's ruling regarding these three pivotal forum non conveniens issues is appropriate "because [certification] meets each of the elements of [ section] 1292(b), and is the most efficient path forward given the already-pending appeal." (Id. at 10.) Thus, RAKIA maintains that this Court's ruling with respect to these issues and its ultimate conclusion about forum non conveniens raises "controlling question[s] of law" that permit a "substantial ground for difference of opinion[,]" and that the resolution of that question may "materially advance the ultimate termination of the litigation." (Id. at 9 (quoting 28 U.S.C. § 1292(b).) See also Van Cauwenberghe v. Biard , 486 U.S. 517, 530, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (" Section 1292(b)... provides an avenue for review of forum non conveniens determinations in appropriate cases."). Azima opposes RAKIA's certification request, arguing primarily that the forum non conveniens issue presents no substantial ground for difference of opinion—as the standard for interlocutory review requires—and that, therefore, certifying the case for interlocutory appeal is improper at this point in time. (See Pl.'s Opp'n to Def. RAKIA's Mot. for Certification ("Pl.'s Opp'n"), ECF No. 46, at 6–13.)

Having considered the parties' arguments and the law surrounding section 1292(b) certification motions, this Court has concluded that RAKIA's section 1292(b) motion for certification must be DENIED . In this Court's view, there is no substantial ground for difference of opinion regarding the controlling issues of law that RAKIA has identified with respect to forum non conveniens or this Court's ultimate conclusion that the complaint should not be dismissed on forum non conveniens grounds, which means that the legal standard for certifying the March 30, 2018 Order for interlocutory appeal has not been met. However, even in the absence of a certification from this Court, RAKIA still has the option of petitioning the court of appeals to exercise its "pendent jurisdiction" over the forum non conveniens issue in this case. (See Part II, infra ; see also Def.'s Mem. at 8–9 (noting that RAKIA may make such a petition).) A separate Order consistent with this Memorandum Opinion will follow.

I.

Under section 1292(b) of Title 28 of the United States Code, a district court may certify an order for interlocutory appeal when "(1) the order involves a controlling question of law; (2) a substantial ground for difference of opinion concerning the ruling exists; and (3) an immediate appeal would materially advance the litigation." APCC Servs., Inc. v. Sprint Commc'ns Co. , 297 F.Supp.2d 90, 95 (D.D.C. 2003) ; see also 28 U.S.C. § 1292(b). Notably, within this circuit, "a substantial ground for difference of opinion" does not exist based solely on "[a] mere claim that the district court's ruling was incorrect." Singh v. George Wash. Univ. , 383 F.Supp.2d 99, 104 (D.D.C. 2005) (internal quotation marks and citation omitted). Rather, the requisite grounds for difference of opinion are "often established by a dearth of precedent within the controlling jurisdiction and conflicting decisions in other circuits[,]" APCC Servs. , 297 F.Supp.2d at 97–98 (citations omitted), or by "a split within this district on [the disputed] issue[,]" Nat'l Cmty. Reinvestment Coalition v. Accredited Home Lenders Holding Co. , 597 F.Supp.2d 120, 122 (D.D.C. 2009). Cf. Chavez v. Occidental Chem. Corp. , 300 F.Supp.3d 517, 538 (S.D.N.Y. 2018) ("A substantial ground for difference of opinion exists when (1) there is conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression for the Second Circuit." (internal quotation marks and citation omitted) ). Of course, a district court is not looking to other similar cases merely "to ‘keep score’ and determine which side has more decisions in its favor, but instead ... to analyze the reasoning in those decisions and the ‘strength of the arguments in opposition’ in order to decide whether there is a substantial ground for dispute." Molock , 317 F.Supp.3d 1, 5, 2018 WL 2926162, at *3 (quoting APCC Servs. , 297 F.Supp.2d at 98 ).

The party who seeks an interlocutory appeal under section 1292(b) must not only satisfy the certification elements in a technical sense; it also "bears the burden of showing that [such] exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment[,]" Virtual Def. & Dev. Int'l, Inc. v. Republic of Moldova , 133 F.Supp.2d 9, 22 (D.D.C. 2001) (internal quotation marks and citation omitted), and interlocutory appeals are generally disfavored, given the "strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals," Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp. , 233 F.Supp.2d 16, 20 (D.D.C. 2002) (internal quotation marks and citation omitted). It is thus well established that section 1292(b) should "be applied in relatively few situations[.]" Howard v. Office of the Chief Admin. Office of the U.S. House of Representatives , 840 F.Supp.2d 52, 55 (D.D.C. 2012) (internal quotation marks and citation omitted); see also Kennedy v. District of Columbia , 145 F.Supp.3d 46, 51 (D.D.C. 2015) ("Interlocutory appeals are infrequently allowed[.]").

When a request for certification of issues for interlocutory appeal under section 1292(b) is presented, the district court must confirm that the moving party has satisfied all of the elements of section 1292(b), and it must also conclude that certification is appropriate as a discretionary matter. See Molock v. Whole Foods Market Grp., Inc. , 16-cv-2483, 317 F.Supp.3d 1, 3–4, 2018 WL 2926162, at *1 (D.D.C. June 11, 2018) ; see also Ahrenholz v. Bd. of Trs. of Univ. of Ill. , 219 F.3d 674, 676 (7th Cir. 2000) ("Unless all [of section 1292(b)'s] criteria are satisfied, the district court may not and should not certify its order ... for an immediate appeal under section 1292(b)." (emphasis omitted) ). Moreover, despite the efficiency gains that can result from a well -timed interlocutory appeal, the court must bear in mind that "the federal scheme does not provide for an immediate appeal solely on the ground that such an appeal may advance...