Elsalameen v. Bank of Palestine, P.L.C.

FADI ELSALAMEEN, Plaintiff, v. BANK OF PALESTINE, P.L.C., Defendant.

Civil Action No. 16-1976 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 4, 2019

***FILED UNDER SEAL***

MEMORANDUM OPINION

Plaintiff, Fadi Elsalameen, filed an eight-count amended complaint against the Bank of Palestine, P.L.C. ("Bank of Palestine" or "Bank") alleging: 1) defamation per se, 2) conspiracy to defame, 3) invasion of privacy - publicity concerning private life of another, 4) invasion of privacy - false light, 5) tortious interference with contract, 6) fraud, 7) civil conspiracy, and 8) intentional infliction of emotional distress. Second Am. Compl. [Dkt # 36] ("Am. Compl.") ¶¶ 111-59. Plaintiff seeks a declaratory judgment, compensatory damages of at least $5,980,000.00, punitive damages, and attorneys' fees and costs. Id., "Prayer for Relief," at 39-40. The Bank moved to dismiss the complaint for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. Plaintiff opposed the motion and cross-moved for limited jurisdictional discovery. The Court granted plaintiff's discovery request and held the motion to dismiss in abeyance while the parties conducted discovery. After reviewing the complete record, including the parties' post-discovery supplemental filings, the Court finds that it lacks personal jurisdiction over defendant, and it will dismiss the suit pursuant to Federal Rule of Civil Procedure 12(b)(2).

BACKGROUND

In his second amended complaint, plaintiff alleges that the Bank of Palestine engaged in a "prolonged, calculated effort to discredit, threaten, extort, and silence" him due to his criticism of the "Palestinian regime" and "powerful Palestinian institutions and individuals." Second Am. Compl. at 1.¹ Plaintiff brought this suit under the Court's diversity jurisdiction, 28 U.S.C. § 1332. Id. ¶ 1. He alleges that he is a U.S. citizen currently residing in the state of North Carolina, but that he suffered most of the alleged harm while he was living in the District of Columbia. Id. The Bank of Palestine is a citizen of Palestine, and it is not domiciled in the District of Columbia nor North Carolina. Id.

On July 12, 2018, the Bank of Palestine moved to dismiss the suit for lack of personal jurisdiction and failure to state a claim. Def. Bank of Palestine, P.L.C.'s Mot. to Dismiss [Dkt. # 29] ("Def.'s Mot."), Def. Mem. of Law in Supp. of its Mot. [Dkt. # 29-1] ("Def.'s Mem."). Plaintiff opposed the motion, arguing among other things, that personal jurisdiction is proper under the D.C. long-arm statute, D.C. Code § 13-423(a)(4), based upon the Bank's activities which "are persistent and reasonably connect[ed] . . . to the District of Columbia." Pl.'s Opp. to Def.'s Mot. to Dismiss & Mem. in Supp. of Cross-Mot. [Dkt. # 31] ("Pl.'s Opp.") at 4-7. Plaintiff asserted that, among other activities, the defendant solicited capital investments in the District and engaged in online banking transactions with D.C. residents. Id. at 5-7. In the alternative, plaintiff cross-moved to conduct limited jurisdictional discovery on the extent of the Bank's contacts with the District of Columbia. Pl.'s Cross-Mot., In the Alternative, For Limited Jurisdictional Discovery [Dkt. # 32] ("Pl.'s Cross-Mot.") at 2-4.

On November 27, 2018, the Court granted plaintiff's cross-motion to hold defendant's motion to dismiss in abeyance to allow for jurisdictional discovery. Min. Order (Nov. 27, 2018). The Court limited the scope of discovery to address four relevant questions:

In particular, discovery may address: 1) whether defendant solicited capital investments from private individuals or entities - as opposed to any governmental entities or arms of the World Bank, which would not be relevant - within the District of Columbia; 2) whether it solicited new banking customers within the District of Columbia; 3) whether it operates any branches or offices or employs any individuals in the District of Columbia; and 4) the use of its online website by customers within the District of Columbia to transact banking business, including, the nature, frequency, and volume of any such use.

Id. After conducting discovery, the parties submitted supplemental briefs and exhibits in support of their positions. Pl.'s Suppl. Opp. to Def.'s Mot. to Dismiss [Dkt. # 41] ("Pl.'s Suppl.") (sealed); Def.'s Suppl. Reply in Supp. of Mot. to Dismiss [Dkt. # 42] (Def.'s Suppl.").

STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), a plaintiff "must make a prima facie showing of the pertinent jurisdictional facts." Livnat v. Palestinian Auth., 851 F.3d 45, 56-57 (D.C. Cir. 2017), quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). This requires specific factual allegations connecting the defendant to the forum. First Chicago Int'l, 836 F.3d at 1378, citing Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1208 n.5 (9th Cir. 1980). Conclusory statements and bare allegations are insufficient. Livnat, 851 F.3d at 57, citing First Chicago Int'l, 836 F.3d at 1378-79. In conducting the personal jurisdiction analysis, any factual discrepancies must be resolved in favor of the plaintiff, Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). But the Court need not treat all of the plaintiff's jurisdictional allegations as true. Myers v. Holiday Inns, Inc., 915 F. Supp. 2d 136, 139 (D.D.C. 2013). "Instead, the court may receive and weigh affidavits andany other relevant matter to assist it in determining the jurisdictional facts." Id., citing United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000).

ANALYSIS

"To establish personal jurisdiction over a non-resident . . . [the Court] must first decide whether statutory jurisdiction exists under the District's long-arm statute and, if it does, then [the Court] must determine whether an exercise of jurisdiction would comport with constitutional limitations" of the Due Process Clause. Forras v. Rauf, 812 F.3d 1102, 1105-06 (D.C. Cir. 2016). In his opposition to the motion to dismiss, plaintiff contends that personal jurisdiction is proper under Section (a)(4) of the District's long arm statute. Pl.'s Opp. at 4, citing D.C. Code § 13-423(a)(4).

Section (a)(4) allows a court to exercise personal jurisdiction over a non-resident who:

caus[es] tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia

D.C. Code § 13-423 (a)(4). These requirements, in addition to the in-forum injury, "serve to filter out cases in which the in[-]forum impact is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum." Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987).

Plaintiff submits that "the facts collected through . . . discovery have demonstrated that Bank of Palestine's contacts with Washington, D.C. are frequent, persistent, and substantial." Pl.'s Suppl. at 1 (sealed). Viewing the facts in the light most favorable to plaintiff, the Court finds that the evidence does not support that conclusion.

I. The Customers

It is undisputed that the Bank has no offices, branches, facilities, ATMs, or real estate in the District Columbia. Def.'s Suppl. at 3. Nor does the Bank have employees, directors, officers, agents for service of process, or subsidiaries within this forum.² Id. The Bank only has four customers in D.C. out of its nearly 1 million customers worldwide. Id. at 1; Pl.'s Suppl. at 3 (sealed).

Plaintiff asks the Court to find that defendant regularly does and solicits business in the District of Columbia based upon the banking activities of those four customers. Plaintiff points out that since 2015, those customers engaged in transactions that involved "$40 million in aggregate value." Pl.'s Suppl. at 9 (sealed). In support of his position, plaintiff cites Founding Church of Scientology v. Verlag, 536 F.2d 429 (D.C. Cir. 1976). But that case is inapposite because there the D.C. Circuit focused on revenues rather than the amount of money involved in the transactions, and it considered whether that amount was "substantial" based upon the defendant's total revenues. Id. at 432-33.

Here, the four D.C. clients generated merely $6,685.00 in revenues from banking fees collected over a four-year period between January 1, 2015 to February 1, 2019. Def.'s Suppl. at 12; Pl.'s Suppl. at 3; Ex. A to Pl.'s Suppl. [Dkt. # 40-4] ("Def.'s Resp. to Pl.'s Interrog.") at 15 (sealed). To put that in context, over the period from 2015 through 2017, the Bank reported a gross income of $535,206,456 and net interest and commission revenue (i.e., fees) of $447,572,908. Def.'s Ex. 2, 2017 Annual Report [Dkt. # 42-1] at 8. Therefore, the banking feescollected from the D.C. clients represent approximately 0.001494 percent of the Bank's total fee-related revenues. Such an infinitesimal percentage and relatively small amount of gross revenues is insufficient to support an inference that defendant regularly does and solicits business in the District of Columbia or derives substantial revenue from banking activities in the District. See, e.g., Verlag, 536 at 433 (holding that $26,000 of magazine sales to D.C. residents, which represented one percent of the defendant's total gross revenues, constituted "substantial revenue" and demonstrated a "reasonable connection" to the forum); Burman v. Phoenix Worldwide Indus., Inc., 437 F. Supp. 2d 142, 155 (D.D.C. 2006) (holding that $30,000 in revenue derived from contacts in the District of Columbia, amounting to 0.15 percent of a total annual revenue of twenty to thirty million dollars, was insufficient to "indicate a commercial impact in the forum, such that a defendant fairly could have expected to...