Ghawanmeh v. Islamic Saudi Academy

672 F.Supp.2d 3

Sonia GHAWANMEH, Plaintiff, v. ISLAMIC SAUDI ACADEMY and the Kingdom of Saudi Arabia, Defendants.

Civil Action No. 09-631 (JMF).

United States District Court, District of Columbia.

November 27, 2009.

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Faisal Mahmood Gill, Washington, DC, for Plaintiff.

Mark A. Walsh, Dewey & Leboeuf LLP, Washington, DC, Margaret A. Keane, Dewey & Leboeuf LLP, East Palo Alto, CA, for Defendants.

MEMORANDUM OPINION

JOHN M. FACCIOLA, United States Magistrate Judge.

This case was referred for all purposes including trial. Currently pending and ready for resolution is Islamic Saudi Academy's Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) [# 10]. For the reasons stated below, defendants' motion will be granted in part and denied in part.

INTRODUCTION

Plaintiff, Sonia Ghawanmeh, is a naturalized American citizen originally from Jordan. Amended Complaint ("Am. Compl.") ¶ 15. Defendants are the Islamic Saudi Academy ("ISA"), where plaintiff worked as a teacher from 2000 to 2009, and the Kingdom of Saudi Arabia. Am. Compl. ¶¶ 10, 11, 18, 39. The gravamen of plaintiff's complaint is that she was discriminated against by her employer because she is a woman and a non-Saudi. Am. Compl. ¶ 2. Specifically, plaintiff asserts the following claims: 1) defendants violated her rights under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq.,¹ when they denied various leave requests, 2) defendants violated her rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., when they discriminated against her based on her gender and national origin, 3) defendants breached her employment contract when they fired her without cause, 4) defendants subjected her to either intentional or negligent infliction of emotional distress when various individuals associated with defendants made disparaging remarks about her professional competence, and 5) defendants subjected her to slander as a result of the spread of the disparaging remarks beyond the school community. Am. Compl. ¶¶ 49-74.

ANALYSIS

I. Subject Matter Jurisdiction

Defendants argue that the Court lacks subject matter jurisdiction over plaintiff's claims. Under Rule 12 of the Federal Rules of Civil Procedure, a party may assert the defense of lack of subject matter jurisdiction by motion as long as it is done before the filing of any responsive pleading. Fed.R.Civ.P. 12(b)(1). Additionally, "[b]ecause subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). Accord Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."); Casanova v. Marathon Corp., 256 F.R.D. 11, 12 (D.D.C.2009) ("Without regard to the merits of [plaintiff's] argument, the case law clearly supports the proposition that a court may at any time consider a challenge to its jurisdiction over the subject matter of a case.").

Specifically, defendants argue that the Court lacks subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq., and also under the FMLA. Defendant Islamic Saudi Academy's Statement of Points and Authorities in Support of its Motion to Dismiss Amended Complaint ("MTD"). Even though defendants acknowledge that "[t]he FSIA is the sole basis for obtaining jurisdiction over a foreign state, state agency, or state instrumentality," see MTD at 23, they fail to appreciate the significance of the explicit limitation in this statement. Cf. Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (FSIA is sole basis of jurisdiction over foreign sovereign); Jin v. Ministry of State Security, 557 F.Supp.2d 131, 138 (D.D.C.2008) (same). In other words, "once a foreign state's immunity has been lifted under [the FSIA] and jurisdiction is proper, [the statute] provides that `the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.'" Rimkus v. Islamic Republic of Iran, 575 F.Supp.2d 181, 195-96 (D.D.C.2008) (internal citations omitted). In that way, [the FSIA] acts "as a `pass-through' to substantive causes of action against private individuals that may exist in federal, state or international law." Id. at 196 (citing Dammarell v. Islamic Republic of Iran, No. 01-CV-2224, 2005 WL 756090, at *8-10 (D.D.C.Mar. 29, 2005)). Therefore, "[u]nder the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Agrocomplect, AD v. Republic of Iraq, 524 F.Supp.2d 16, 22 (D.D.C.2007) (internal citations omitted). Thus, as mandated by the Supreme Court, "[a]t the threshold of every action in a District Court against a foreign state, ... the court must satisfy itself that one of the exceptions applies." Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). That said, the Court will nevertheless address defendants' arguments as to jurisdiction under the FMLA in section "B" below.

A. The FSIA

1. The Commercial Activities Exception

Under Section 1605(a)(2) of the FSIA, foreign states are not immune from the jurisdiction of the United States courts where "the action is based upon a commercial activity carried on in the United States by the foreign state." 28 U.S.C. § 1605(a)(2). "Commercial activity," is defined as "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). In Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992), the Supreme Court concluded "that when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are `commercial' within the meaning of the FSIA." Id. at 614, 112 S.Ct. 2160. The Supreme Court therefore described the pertinent question as "not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objections" but rather "whether the particular actions that the foreign state performs ... are the type of actions by which a private party engages in `trade and traffic or commerce.'" Id. at 614, 112 S.Ct. 2160 (internal citations omitted). In other words, "a foreign state engages in commercial activity ... where it acts `in the manner of a private player within' the market." Saudi Arabia v. Nelson, 507 U.S. at 360, 113 S.Ct. 1471; Restatement (Third) of the Foreign Relations Law of the United States § 451 (1987) ("Under international law, a state or state instrumentality is immune from the jurisdiction of the courts of another state, except with respect to claims arising out of activities of the kind that may be carried on by private parties.").

According to plaintiff, defendants waived their sovereign immunity to suit under the FSIA by virtue of their engaging in commercial activity: "In the instant case, Defendant ISA, as a full-time school, engaged in a `commercial activity' as an arm, branch, and/or commercial instrumentality of Defendant KSA.'" Am. Compl. ¶ 13. Defendants, while not contesting that the ISA is an instrumentality of the KSA, argue instead that "[p]laintiff fails to make a showing and relies instead on mere conclusory assertions that the Academy engages in commercial activity." MTD at 23. Because defendants, who bear the burden of establishing that none of the FSIA exceptions to sovereign immunity apply challenge only the legal sufficiency of plaintiff's jurisdictional claims, the Court will take plaintiff's factual allegations as true when considering whether jurisdiction exists. Heroth v. Kingdom of Saudi Arabia, 565 F.Supp.2d 59, 63-64 (D.D.C.2008).

The issue therefore is whether the KSA's operation of the ISA constitutes commercial activity under the FSIA. Because the administration of a school is an activity that is routinely performed by private parties, it is therefore precisely the type of action by which a private party may choose to engage in "trade and traffic or commerce." In other words, if the act of running a school was exclusively reserved for the sovereign, it would clearly not be commercial in nature as defined in the FSIA. Cf. Weltover, 504 U.S. at 616, 112 S.Ct. 2160 (issuance of public debt instruments deemed commercial activity under the FSIA where "[t]hey may be held by private parties; they are negotiable and may be traded on the international market ... and they promise a future stream of cash income."); Agudas Chasidei Chabad of United States v. Russian Fed'n, 528 F.3d 934, 948 (D.C.Cir.2008) (entering into contracts for the purpose of publishing and selling reproductions of historical documents and other materials in the United States deemed commercial activity under the FSIA); Altmann v. Republic of Austria, 317 F.3d 954, 968-69 (9th Cir.2002) (marketing of an art exhibition and publication of related materials in the United States deemed commercial activity under the FSIA), aff'd on other grounds, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004); Sabbithi v. KH N.S. Al Saleh, 605 F.Supp.2d 122, 128-29 (D.D.C.2009) ("hiring domestic employees is an activity incidental to the daily life of a diplomat and his or her family, and does not constitute commercial activity [under the FSIA] outside a diplomat's official...