Lewis v. Mutond

• Court: District Court, District of Columbia
• Decided: September 24, 2021
• Docket: Civil Action No. 2016-1547
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DARRYL LEWIS,

Plaintiff,

v. Case No. 1:16-cv-1547-RCL

KALEV MUTOND, in his individual capacity only, and

ALEXIS THAMBWE MWAMBA, in his individual capacity only,

Defendants.

MEMORANDUM OPINION

Plaintiff Darryl Lewis sued Kalev Mutond, the General Administrator of the National

Intelligence Agency, Agence Nationale de Renseignements ("ANR") of the Democratic Republic

of the Congo ("DRC"), and Alexis Thambwe Mwamba, the DRC Minister of Justice (together,

"defendants"), alleging that defendants violated the Torture Victim Protection Act of 1991

("TVP A") by unlawfully detaining and torturing him. Compl., ECF No. I. Lewis sued both

defendants in their individual capacities and seeks compensatory and punitive damages. Id.

Defendants moved to dismiss the case for (1) lack of subject matter jurisdiction, (2) lack of

personal jurisdiction, and (3) insufficient service of process. ECF No. 15. The Court originally

held defendants immune under the common law of foreign official immunity and granted their

motion to dismiss for lack of subject matter jurisdiction. ECF No. 19. But on appeal, the D.C.

Circuit vacated and remanded the decision, holding that the defendants were not entitled to foreign

official immunity. Lewis v. Mutond, 918 F.3d 142, 147 (D.C. Cir. 2019).

1 The Court now addresses the remammg issues m defendants' motion to dismiss.

Defendants move to dismiss the case for lack of personal jurisdiction. ECF No. 15. In response,

Lewis requests jurisdictional discovery. 1 ECF No. 16. For the reasons explained below, the Court

will GRANT the motion to dismiss for lack of personal jurisdiction and DENY Lewis's request

for jurisdictional discovery.

I. BACKGROUND

This case originates from Darryl Lewis's alleged detention and torture in the DRC for a

six-week period. Lewis is an American citizen and military veteran. Compl. ,r 3. Lewis states

that on April 24, 2016, he was working in the DRC as an "unarmed security advisor" to DRC

presidential candidate Moise Katumbi. 2 Compl. ,r 18. While Lewis and his colleagues were

driving near a political rally, members of the ANR purportedly stopped them, dragged them from

the vehicle, and detained them because of their association with Katumbi. Id. ,r 19. Lewis asserts

that ANR officials then delivered the group to a jail in Lubumbashi. Id. ,r 21. These officials

allegedly inflicted physical abuse and "extreme mental and physical pain and suffering" on Lewis

to "obtain a false confession that [he] was an American mercenary soldier." Id. ,r 20-23. The

ANR then transported Lewis and his colleagues to Kinshasa. Id. ,r 26. Lewis's detention in

Kinshasa lasted six weeks. Id. ,r 27. During this detention, ANR officials interrogated Lewis for

"approximately 16 hours a day," deprived him of sleep, fed him "no more than one meal every 24

hours," and denied his requests for "basic toiletries." Id. ,r 27-29. Lewis asserts that Mutond-

the General Administrator of the ANR--directed subordinates to detain and torture Lewis. Id.

1 Defendants retracted their argument regarding insufficient service of process in their reply. See Defs.' Reply, ECF No. 17 at 3 n.2. 2 Katumbi is a former governor of the Katanga Province, and at the time of the alleged incident was a candidate for president of the DRC.

2 ,i 38. Mutond allegedly threated Lewis, telling him, "Don't let me find out you're a mercenary.''

Lewis further contends that Thambwe publicly accused him of being a "mercenary sent to

assassinate President [Joseph] Kabila" during a press conference. Id. ,i 32. At this press

conference, Thambwe explained that he had "documented proof'' that "American and South

African mercenaries, including ... Lewis" were working for Katumbi. Thambwe continued by

claiming that "600 United States citizens" and ex-soldiers had entered the DRC as "part of a

supposed plot by ... Katumbi to destabilize the DRC." Id. ,i 33, 35. Thambwe supposedly made

these statements to create a "false narrative" about "former U.S. military personnel infiltrating the

DRC to overthrow the government." Id. ,i 37.

On June 8, 2016, Lewis was released from detention. Id. ,i 45. The DRC government

never charged Lewis with any crime. Id. ,i 4 7. Lewis claims that Thambwe continues threatening

Lewis with imprisonment should he return to the DRC. Id. ,i 46.

II. LEGAL STANDARD

This case returns to the Court after the D.C. Circuit vacated the Court's decision that

defendants were entitled to foreign official immunity. Lewis, 918 F.3d at 144. Beyond that issue,

neither party disputes subject matter jurisdiction. See Compl. ,i 4; Defs.' Motion to Dismiss, ECF

No. 15. And for good reason-this case implicates both federal question and diversity

jurisdiction. 3 Mutond and Thambwe now move to dismiss for lack of personal jurisdiction. ECF

3 Lewis's claim arises under the TVPA, a federal statute. See 28 U.S.C. § 1350 note. Diversity jurisdiction also applies. Lewis, a citizen of Georgia, and Mutond and Thambwe, citizens of the DRC, are completely diverse. And Lewis pleaded an amount-in-controversy of $4,500,000. So the Court has subject matter jurisdiction under either 28 U.S.C. § 1331 or§ 1332.

3 No. 15. Lewis opposes this motion and, in the event of dismissal, requests jurisdictional discovery.

ECF No. 16.

To avoid dismissal under Rule 12(b)(2), the plaintiff carries the burden of proving personal

jurisdiction. Mwani v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). The court must resolve any

factual disputes in favor of the plaintiff. Crane v. NY Zoological Soc '.Y, 894 F.2d 454, 456 (D.C.

Cir. 1990). And while the court must "assume [the] veracity" of any ':well-pleaded factual

allegations" in the complaint, "conclusory allegations 'are not entitled to the assumption of truth.'"

Moldauer v. Constellation Brands Inc., 87 F. Supp. 3d 148, 153 (D.D.C. 2015) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009)); see First Chicago Int'! v. United Exchange Co., 836 F.2d

1375, 1378-79 (D.C. Cir. 1988). The plaintiff can satisfy this burden through a prima facie

showing. Mwani, 417 F.3d at 7.

III. DISCUSSION

Since the defendants no longer contest service of process, the Court must address two

remaining issues regarding their motion to dismiss. See Defs.' Reply, ECF No. 17 at 3 n.2

(acknowledging proper service under Rule 4(k)(2)). First, can the Court constitutionally exercise

personal jurisdiction over Mutond and Thambwe? Second, if the Court cannot, is Lewis entitled

to jurisdictional discovery? The Court must answer both questions in the negative.

A. The Court Will Dismiss the Case for Lack of Personal Jurisdiction

Defendants move to dismiss Lewis's claim for lack of personal jurisdiction under the Due

Process Clause of the Fifth Amendment. ECF No. 15. Federal Rule of Civil Procedure 4(k)(2)

authorizes personal jurisdiction over a defendant "who is not subject to jurisdiction in any state's

courts of general jurisdiction" provided that: ( 1) the defendant is served with a summons or files a

waiver of service; and (2) "exercising jurisdiction is consistent with the United States Constitution

4 and its laws." Fed. R. Civ. P. 4(k)(2). For personal jurisdiction to comport with the Fifth

Amendment's Due Process Clause, a defendant must "have certain minimum contacts with ...

[the forum] such that the maintenance of the suit does not offend traditional notions of fair play

and substantial justice." Int'! Shoe Co. v. Wash., 326 U.S. 310,316 (1945).

The Constitution permits two types of personal jurisdiction: general jurisdiction and

specific jurisdiction. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024

(2021 ). A court may exercise general personal jurisdiction over a defendant that has "continuous

and systematic" contacts that render it "essentially at home" in the forum. Id. General jurisdiction

extends to "any and all claims brought against a defendant." Id. (internal quotation omitted). For

an individual, the "paradigm forum" with general jurisdiction is the individual's domicile. Bristol-

Myers Squibb Co. v. Super. Ct. of Calif, 137 S. Ct. 1773, 1780 (2017). Since Mutond and

Thambwe are citizens of the DRC, the Court cannot exercise general jurisdiction over them. See

Compl. ,r 6; Defs.' Mot. to Dismiss, ECF No. 15-1 at 13.

A court has specific jurisdiction over a foreign defendant when the defendant has minimum

contacts with the forum such that it "should reasonably anticipate being haled into court there."

GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (quoting

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Specific jurisdiction

"focuses on 'the relationship among the defendant, the forum, and the litigation."' Walden v.

Fiore, 571 U.S. 277, 284 (2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775

(1984)). First, a defendant must have "'purposefully directed' his activity at residents of the

forum." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985) (quoting Keeton, 465 U.S.

at 774). A defendant who "purposefully avails itself of the privilege of conducting activities"

within the forum will also meet this requirement. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

5 Second, the plaintiffs claim "must arise out of or relate to the defendant's contacts with the

forum." Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Daimler AG v. Bauman, 571 U.S. 117,

127 (2014) (alterations omitted). "[T]he plaintiff cannot be the only link between the defendant

and the forum." Walden, 571 U.S. at 285. Rather, "the defendant's conduct ... must form the

necessary connection." Id.

Lewis offers two theories to support specific jurisdiction. First, he posits that the

defendants "targeted [him] for detention and torture" because he is an American military veteran.

ECF No. 16 at 23. Second, Lewis suggests that the defendants targeted him "to support a false

narrative ... that American mercenaries were attempting to overthrow the Kabila regime." Id. By

portraying Lewis as an American mercenary, the defendants sought to "entangl[e] the United

States in DRC affairs." Id. at 24. For example, Lewis points to press conferences in which

Thambwe "asserted that 600 United States citizens ... and some ex-soldiers had entered the DRC

since October 2015" and were "part of a supposed plot by [Katumbi] to destabilize the DRC."

Compl. ,i 35. Neither of these theories enable this Court to exercise specific jurisdiction over the

Lewis's first theory-that torture permits an inference that defendants purposefully

directed their conduct at the United States-is foreclosed by this Circuit's precedents. As the

D.C. Circuit has explained, the torture of American citizens abroad, standing alone, does not meet

the minimum-contacts requirement. Price v. Socialist People's Libyan Arab Jamahiriya, 294 F .3d

82, 95 (D.C. Cir. 2002). The same standard applies to defendants who kill American citizens

abroad but have no other contacts with the United States. Livnat v. Palestinian Authority, 851 F .3d

45, 57 (D.C. Cir. 2017). Instead, defendants must "expressly intend[]" to affect the United States

through their violent conduct. Nikbin v. Islamic Republic ofIran, 471 F. Supp. 2d 53, 73 (D.D.C.

6 2007). For example, victims of an al-Qaeda terrorist bombing showed purposeful direction by

pointing to al-Qaeda's long-running conspiracy to "cause pain and sow terror" in the United States.

Mwani v. bin Laden, 417 F.3d 1, 13 (D.C. Cir. 2005). These cases reflect the principle that "a

plaintiff's contacts with the defendant and the forum state" cannot "drive the jurisdictional

analysis." Walden, 571 U.S. at 289. Lewis has not alleged that Mutond and Thambwe had a

conspiracy to cause pain or sow terror in the United States by torturing American citizens. And

the torture itself cannot permit that inference. See Price, 294 F.3d at 95; Livnat, 851 F.3d at 57.

Without more, Lewis's torture allegations cannot justify specific jurisdiction.

Lewis's assertion that defendants sought to "entangl[e] the United States in DRC affairs"

fails for similar reasons. ECF No. 16 at 24. In Lewis's telling, Mutond and Thambwe revealed

purposeful direction to ensnare the United States in DRC affairs by promoting a narrative about

American mercenaries operating in the DRC. See id. He asserts that defendants tortured him to

obtain a false ·confession promoting this narrative. Id. Hence, Mutond' s threat: "You better not

let me find out you're a mercenary." Compl. ,r 31. Lewis also points to Thambwe's statements at

press conferences: (1) that Lewis was "sent to assassinate [then-]President Kabila," (2) that

American and South African mercenaries were working for Katumbi, (3) that "600 United States

citizens" were present in the DRC as "part of a supposed plot by [Katumbi] to destabilize the

DRC," and (4) that those mercenaries were living in residences owned by Katumbi. Compl. ,r,r 32-35. These statements· do reference the United States. But the references appear incidental to

Mutond and Thambwe's goal-affecting politics in the DRC. Take Thambwe's investigation into

"American and South African" mercenaries. Compl. ,r 33. Defendants could have stated that

mercenaries were invading from virtually any nation; what mattered was that mercenaries were

aiding Katumbi' s election chances.

7 Moreover, the defendants pushed a narrative about American mercenaries. A mercenary ·

is "a professional soldier hired to serve in a foreign army." Mercenary, New Oxford American

Dictionary (2d ed. 2005). . And international law establishes that a mercenary is wholly

unconnected from his home nation's government. The Geneva Conventions define a "mercenary"

as, in part, "any person who ... [i]s motivated to take part in the hostilities essentially by the desire

for private. gain" and who "[h]as not been sent by a State which is not a Party to the conflict on

official duty as a member of its armed forces." 4 Defendants' use of "mercenary" fits with this

definition. Thambwe opened an investigation into foreign mercenaries working for Katumbi.

Compl. ,i 33. And the mercenary narrative implicated "former U.S. military personnel" rather than

individuals connected with the American government. See Compl. ,i 37. The Court cannot infer

that Mutond and Thambwe purposefully directed their conduct at the United States when Lewis's

allegations point their intent squarely at the DRC.

Lewis parallels his case to Mwani, but the shoe does not fit. The plaintiffs in Mwani alleged

that Osama bin Laden "orchestrated the bombing of the American embassy in Nairobi" both to kill

American and Kenyan employees and to "cause pain and sow terror in the United States." Mwani,

417 F.3d at 13. This bombing, the plaintiffs alleged, was part of a conspiracy by al-Qaeda to

commit violence against the United States. Id. Plaintiffs pointed to al-Qaeda's pre-9/11 attacks

to demonstrate this anti-United States animus. Id. Lewis has not shown that Mutond and

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 47, June 8, 1977, 1125 U.N.T.S. 4, 25, https://treaties.un.org/doc/ publication/unts/volume%201125/volume-1125-i-17512-english.pdf (emphasis added).

8 Thambwe's mercenary narrative furthered a conspiracy against the United States. Nor has Lewis

indicated that Mutond and Thambwe sought to "cause pain" or "sow terror" in the United States.

In short, Lewis has not made a prima facie showing to support a finding of specific personal

jurisdiction. Price, Livnat, and Nikbin establish that Lewis's allegations of torture, standing alone,

cannot permit this Court to infer that defendants purposefully directed their conduct at the United

States. See Price, 294 F.3d at 95; Livnat, 851 F.3d at 57; Nikbin, 471 F. Supp. 2d at 73. And any

narrative that Mutond and Thambwe sought to construct was focused on the DRC-not the United

States. For these reasons, the Court cannot exercise personal jurisdiction over the defendants

consistent with the Fifth Amendment of the Constitution.

B. The Court Will Deny Lewis's Request for Jurisdictional Discovery

Lewis argues that the Court should permit him to conduct jurisdictional discovery in the

event the Court finds that it lacks personal jurisdiction. A district court has "broad discretion" to

resolve discovery disputes. In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C.

Cir. 1981 ). When faced with a motion to dismiss for lack of personal jurisdiction, a plaintiff is

"entitled to reasonable discovery." Diamond Chem. Co., Inc. v. Atofina Chems., Inc., 268 F. Supp.

2d 1, 15 (D.C. Cir. 2003) (emphasis added). This standard is "quite liberal"-jurisdictional

discovery is proper "so long as a party demonstrates that it can supplement its jurisdictional

allegations." Id.; see GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C.

Cir. 2000). Thus, a plaintiff seeking personal-jurisdiction discovery "must have at least a good

faith belief that such discovery will enable it to show that the court has personal jurisdiction over

the defendant." Diamond Chem., 268 F. Supp. 2d at 15. Requests for jurisdictional discovery,

however, "cannot be based on mere conjecture or speculation." FC Inv. Grp. LC v. IFX Mkts.,

Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008). So when a district court "denies a discovery request

9 that would amount to nothing more than a fishing expedition," it "does not abuse its discretion."

Bastin v. Fed. Nat 'l Mortgage Ass 'n, 104 F.3d 1392, 1396 (D.C. Cir. 1997).

Even considering this Circuit's permissive standard on this subject, Lewis fails to show

that additional discovery could cure this case's jurisdictional problems. In his response, Lewis

argues that discovery is appropriate because it is "reasonably inferable that there is more to the

story" than what he can recall. ECF No. 16 at 27. But recall that Lewis has two theories of

jurisdiction: (1) that defendants tortured him, an American citizen; and (2) that defendants

purposefully directed their conduct at the United States by publicizing a narrative about American

mercenaries. See ECF No. 16 at 19. Sole allegations of torture do not permit a court to infer that

defendants purposefully directed their conduct toward the United States. See Price, 294 F.3d at

95; Livnat, 851 F.3d at 57; Nikbin, 471 F. Supp. 2d at 73. And additional facts about defendants'

mercenary narratiye would not permit the Court to infer that defendants purposefully directed their

actions toward the United States. Lewis's conclusory allegation about defendants' intent to

"entangl[ e] the United States in DRC affairs" cannot support personal jurisdiction without this

link.

Livnat is instructive on this point. In Livnat, victims of a terrorist attack in Israel alleged

that the defendant had a "general practice of using terrorism to influence United States public

opinion and policy." Livnqt, 851 F.3d at 57. But they requested discovery concerning the

defendant's "general political and financial activities in the United States, such as its lobbying

contracts and U.S. investments." Id. The D.C. Circuit thus denied jurisdictional discovery

because it would not "cure the [victims'] failure to tie their jurisdictional theory to the attack ...

with specific facts." Id. at 58. So too here. Lewis asserts only that "it is reasonably inferable that

there is more to the story" than he could allege based on personal knowledge. ECF No. 16 at 22.

10 But without identifying specific ways to supplement his allegations, Lewis has failed to tie

defendants' supposed contacts to his specific attack.

The present allegations do not draw the requisite connection between the defendants'

conduct and the United States. And any discovery on this matter would be outside the scope of

these already-existing allegations-essentially, a fishing expedition. Cf Livnat, 851 F.3d at 57-

58; Erwin-Simpson v. AirAsia Berhad, 985 F.3d 883, 892 (D.C. Cir. 2021) (affirming the denial

of jurisdictional discovery because the court could "not see what facts additional discovery could

produce that would affect [its] jurisdictional analysis"). The Court will DENY Lewis's request

IV. CONCLUSION

For the reasons discussed above, the Court shall GRANT defendants' motion to dismiss

for lack of personal jurisdiction and DENY plaintiff's request for jurisdictional discovery. The

case is DISMISSED WITHOUT PREJUDICE. 5 A separate order consistent with this

Memorandum Opinion shall issue this date.

SIGNED this Z,,.'(~ of September, 2021.

Royce C. Lamberth United States District Judge

5 See Caribbean Broadcasting Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1091 (D.C. Cir. 1998) (acknowledging that dismissals for lack of personal jurisdiction are without prejudice).