McGee v. Kingdom of Saudi Arabia

• Court: District Court, District of Columbia
• Decided: July 23, 2020
• Docket: Civil Action No. 2019-1734
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SHEILA MARGARET MCGEE , ) ) Plaintiff, ) ) v. ) Civil Action No. 19-1734 (ABJ) ) KINGDOM OF ) SAUDI ARABIA, et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff Sheila Margaret McGee has brought this action against the Kingdom of Saudi

Arabia and the Embassy of Saudi Arabia under section 1605(a) of the Foreign Sovereign

Immunities Act (“FSIA”). 28 U.S.C. § 1605(a); Compl. [Dkt. # 1] ¶ 4. She seeks damages – “no

less than $20 million” – for injuries and losses she sustained in an automobile accident in Virginia

when she was struck by a sport utility vehicle operated by an employee of Saudi Arabia and its

Washington D.C. Embassy. Compl. ¶¶ 2–3, 26. Defendants have moved to dismiss the action for

improper venue and for failure to state a claim, or to transfer venue to the Eastern District of

Virginia. See generally Defs.’ Mot. to Dismiss or Transfer Venue [Dkt. # 15] (“Defs.’ Mot.”);

Defs.’ Mem. of P. & A. [Dkt. # 15-2] (“Defs.’ Mem.”). For the following reasons, defendants’

motion to transfer will be granted, and the Court will not reach the issue of defendants’ motion to

dismiss on the merits.

1 BACKGROUND

On October 24, 2016, plaintiff was struck by an SUV in an intersection in Arlington

County, Virginia. Compl. ¶ 2. The vehicle was operated by Fathalla Mohamed Ahmed, who has

given sworn testimony that he was “operating the vehicle within the course and scope of his

employment with Saudi Arabia and its embassy, which owns the SUV.” Compl. ¶ 2. Plaintiff

alleges that the accident occurred when she was in a crosswalk, and Ahmed entered the intersection

against a red traffic signal. Compl. ¶ 2. The impact sent plaintiff “flying in the air and caus[ed]

her head to suffer multiple impacts with hard objects, including the SUV and pavement.” Compl.

¶ 18. She suffered “severe and permanent injuries, including, but not limited to, severe

neurological injuries, fractures, torso injuries, and musculo-skeletal injuries, [and] has been caused

to endure and will endure in the future physical pain, suffering and mental anguish.” Compl. ¶ 26.

She has also “been caused to incur and will incur in the future medical and related expenses, has

been caused to suffer and will suffer in the future lost earnings and earning capacity, has been and

will continue to be disabled from her customary activities,” among other damages. Compl. ¶ 26.

Plaintiff initially filed suit against Ahmed in the Circuit Court for Arlington County, and

she nonsuited that action on May 21, 2019. App. to Defs.’ Mem. [Dkt. # 15-3] (“Defs.’ App.”)

at 24. On June 14, 2019, plaintiff filed her complaint in this Court against the Kingdom of Saudi

Arabia and the Embassy of Saudi Arabia, which she alleges are jointly and severally liable for

Ahmed’s negligent behavior, pursuant to the FSIA. See generally Compl. She also refiled an

action against Ahmed in the Circuit Court in Virginia. See Defs.’ App. at 26.

2 On February 14, 2020, defendants filed their motion to dismiss or to transfer venue. See

generally Defs.’ Mot.; Defs.’ Mem. 1 The matter is fully briefed. 2

STANDARD OF REVIEW

“For the convenience of parties and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where it might have been brought.” 28

U.S.C. § 1404(a). The Court has “broad discretion” to transfer a case under section 1404. In re

Scott, 709 F.2d 717, 719 (D.C. Cir. 1983). The defendant, as the moving party, bears the burden

of establishing that transfer is proper. Greater Yellowstone Coal. v. Bosworth, 180 F. Supp.

2d 124, 127 (D.D.C. 2001). The decision to transfer requires an “individualized, case-by-case

consideration of convenience and fairness.” Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).

The threshold question under section 1404(a) is whether the action “might have been

brought” in the transferee district. 28 U.S.C. § 1404(a). This limitation imposes two prerequisites:

(1) “venue must be proper in the transferee district;” and (2) “the defendants must be subject to

the process of the federal court in the transferee district at the time the action was originally filed.”

Relf v. Gasch, 511 F.2d 804, 806–07 (D.C. Cir. 1975).

If the threshold requirement of venue has been met, the Court must then go on to balance

case-specific private interest and public interest factors to determine whether transfer is

1 Specifically, defendants contend that the Kingdom of Saudi Arabia is entitled to summary judgment because plaintiff has improperly sued it under a respondeat superior negligence theory, even though it was not Ahmed’s employer, and that venue is only authorized in the Eastern District of Virginia, where the accident occurred. Defs.’ Mem. at 2–9. They argue in the alternative that if the case is not dismissed, it should be transferred. Defs.’ Mem. at 9–15.

2 See Pl.’s Opp. to Defs.’ Mot. [Dkt. # 16] (“Pl.’s Opp.”); Defs.’ Reply Mem. in Supp. of Defs.’ Mot. [Dkt. # 18] (“Defs.’ Reply”).

3 appropriate. See Wilderness Soc’y v. Babbitt, 104 F. Supp. 2d 10, 12 (D.D.C. 2000). Private

interest considerations include:

(1) the plaintiffs’ choice of forum, unless the balance of convenience is strongly in favor of the defendants;

(2) the defendants’ choice of forum;

(3) whether the claim arose elsewhere;

(4) the convenience of the parties;

(5) the convenience of the witnesses of the plaintiff and defendant but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and

(6) the ease of access to sources of proof.

Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). The public interest

considerations that also weigh into the decision include:

(1) the transferee’s familiarity with the governing laws;

(2) the relative congestion of the calendars of the potential transferee and transferor courts; and

(3) the local interest in deciding local controversies at home.

Id.

ANALYSIS

I. The appropriate venue

As an initial matter, the Court finds that venue is appropriate in both the District of

Columbia and in the Eastern District of Virginia.

Pursuant to 28 United States Code section 1391, in general, a civil action may be brought

in “(1) a judicial district in which any defendant resides, if all defendants are residents of the State

4 in which the district is located;” or “(2) a judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred. . . .” 28 U.S.C. § 1391(b).

Here, though, plaintiff has predicated jurisdiction on 28 United States Code

section 1391(f), which provides that civil actions against a foreign state may be brought:

(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;

(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;

(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.

28 U.S.C. § 1391(f).

Defendants contend that venue is only appropriate in the Eastern District of Virginia, and

that dismissal is warranted because the complaint includes language that suggests that the Embassy

of Saudi Arabia is a mere “agency or instrumentality” of Saudi Arabia and not a foreign state.

Defs.’ Mem. at 4, citing Compl. ¶ 9. As a result, they submit that venue is only appropriate under

subsection (1): “in any judicial district in which a substantial part of the events or omissions giving

rise to the claim occurred,” and not under subsection (4), which permits an action against a “foreign

state” to be brought in the District of Columbia. See Defs.’ Mem. at 4.

But defendants concede that “the Embassy is a ‘foreign state’ for purposes of who is

covered by the [FSIA], . . .” Defs.’ Mem. at 3, and courts in this district have long held that

5 embassies are foreign states for FSIA purposes. 3 See, e.g., de Sousa v. Embassy of Republic of

Angola., 229 F. Supp. 3d 23, 26 (D.D.C. 2017), citing Transaero, Inc. v. La Fuerza Aerea

Boliviana, 30 F.3d 148, 151 (D.C. Cir 1994) (“Courts have uniformly found that embassies are

‘integral part[s] of a foreign state’s political structure,’ and therefore appropriately considered

‘foreign states’ for FSIA purposes.”); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F.

Supp. 2d 136, 140 (D.D.C. 2012) (accepting the parties’ concession that the Nigerian embassy in

Washington D.C., was a ‘foreign state’ for purposes of the FSIA); Int’l Rd. Fed’n v. Embassy of

Dem. Rep. Congo, 131 F. Supp. 2d 248, 250 (D.D.C. 2001) (holding that the embassy of the foreign

state was a “foreign state” for purposes of the FSIA). Under this guidance, the Embassy of Saudi

Arabia, like Saudi Arabia, is properly considered a “foreign state,” and venue would be appropriate

in the District of Columbia pursuant to subsection (4) and in the Eastern District of Virginia under

subsection (1). 4

II. Private interest factors

Having determined that venue is appropriate in both districts, the Court will move on to an

analysis of the private and public interest factors. The first private interest factor is plaintiff’s

choice of forum. Other courts in this district have noted that while a plaintiff’s choice of forum is

ordinarily accorded deference, this deference is weakened where “a plaintiff is not a resident of

the forum and ‘most of the relevant events occurred elsewhere.’” Aftab v. Gonzalez, 597 F. Supp.

3 In her reply, plaintiff clarifies that she brings her claims against the Embassy as a part of the foreign state of Saudi Arabia. See Pl.’s Reply at 2.

4 Defendants also insist that the FSIA identifies the district where the events occurred as the “primary” place for filing a civil action against a foreign state, Defs.’ Reply at 5, but that is not consistent with the plain text of the provision and its use of the conjunction “or” when listing the four options. See 28 U.S.C. § 1391(f)(1)–(4).

6 2d 76, 80 (D.D.C. 2009), quoting Hunter v. Johanns, 517 F. Supp. 2d 340, 344 (D.D.C. 2007).

Here, plaintiff’s choice to bring this case in the District must be given some weight, but it is

weakened by the fact that plaintiff previously chose a state court in the Eastern District of Virginia

as the forum for her claim against Ahmed. And neither plaintiff nor this case have any particular

connection to the District: plaintiff is a resident of the Eastern District of Virginia, the claim arose

there, and almost all of the potential witnesses who might be called are Virginia residents. See

Compl. ¶¶ 7, 11, Defs.’ App. at 9–19. For these reasons, plaintiff’s choice to bring the case in the

District must accorded some deference, but it is not substantial.

The second factor – the defendant’s choice of forum – is “accorded some weight” if the

defendant “presents legitimate reasons for preferring to litigate the case in the transferee district.”

Gulf Restorative Network v. Jewell, 87 F. Supp. 3d 303, 313 (D.D.C. 2015), citing Nat’l Wildlife

Fed’n v. Harvey, 437 F. Supp. 2d 42, 48 (D.D.C. 2006). Here, defendants maintain that the Eastern

District of Virginia is a more appropriate venue because the accident occurred in that district, the

plaintiff received police and medical attention there, and most of the witnesses reside there. See

Defs.’ Mem. at 12. The Court agrees, and for that reason, the first and second private interest

factors largely balance each other out.

The third private interest factor – whether the claim arose elsewhere – weighs heavily in

favor of transfer. As both parties acknowledge, the accident and any violations of traffic laws took

place in Virginia, and plaintiff’s initial medical care was rendered in Arlington, Virginia. See

Compl. ¶ 11; Defs.’ Mem. at 12; Defs.’ App. at 15.

And the fourth factor, the convenience of the parties, is largely neutral if it does not tilt in

favor of transferring the case; plaintiff brought her initial case against Ahmed in Arlington County

Circuit Court, nonsuited it, and has refiled the case there. See Defs.’ App. at 24, 26. So the Eastern

7 District of Virginia, where that court is located, is clearly adequate and convenient for plaintiff

who lives in Virginia. Compl. ¶ 7. Plaintiff has attempted to demonstrate that venue is more

appropriate in the District by submitting a chart listing the distances that parties and witnesses

would have to travel to the two courthouses, and she points to the fact that for some, the distance

to Alexandria is slightly greater. See Ex. 6 to Pl.’s Opp. [Dkt. # 16-6] (“Distance Chart”).

However, the information included in the chart is based solely on counsel’s informal online

investigation of the mileage involved, and it does not even attempt to take any of the practical

realities into account, such as the time it actually takes to traverse that distance across a bridge in

traffic from Virginia into the District, to locate parking, etc. Therefore, plaintiff may be relying

too heavily on the numbers alone. At the same time, defendants, who are residents of the District,

cannot persuasively claim that this court is inconvenient for them or that Virginia is significantly

more convenient. So the Court finds that the fourth factor is neutral.

Finally, the fifth and sixth private interest factors – the convenience of the witnesses and

the ease of access to the sources of proof – may be examined together. Defendants have supported

their motion with plaintiff’s answers to interrogatories in the original Arlington County case

against Ahmed. See Defs.’ App. at 9–19. It reveals that while plaintiff has received care since the

accident in Virginia, Maryland and the District, the eyewitnesses and first responders are in

Virginia. See Distance Chart at 1–2. Also, treating physicians and records that may bear on the

existence of alleged pre-existing conditions are located in Virginia. 5 See Defs.’ Reply at 11–12.

5 Defendants state: “[p]laintiff claims the head injury aggravated her pre-existing depression and causes unexplained anger outbursts. Plaintiff was treated for pre-existing depression in Virginia.” Defs.’ Reply at 11–12. They add that because plaintiff attended the University of Virginia, “there may be witnesses in the Charlottesville area with knowledge of the [p]laintiff’s pre-injury temperament.” Defs.’ Reply at 12.

8 Thus, these factors are also neutral if not tilted slightly towards Virginia, and in any event,

convenience of the witnesses may only be considered to the extent that the witnesses may actually

be unavailable for trial in one of the districts, and that has not been shown here. 6

Therefore, the Court finds that the private interest factors as a whole weigh in favor of

transferring the case.

III. Public interest factors

Next the Court must assess the three public interest factors, and here, it finds that when

taken together, the factors weigh in favor of transferring the case. The first factor is the transferee’s

familiarity with governing laws of the case. Ctr. for Envtl. Science, Accuracy, & Reliability v.

Nat’l Park Serv., 75 F. Supp. 3d 353, 358 (D.D.C. 2014). “Under the District’s choice of law

rules, the law governing the claim is to be the law of the state with the most significant relationship

to the matters at issue.” Church of Scientology Int’l v. Eli Lilly & Co., 848 F. Supp. 1018, 1026

(D.D.C. 1994), citing Hitchcock v. United States, 665 F.2d 354, 360–61 (D.C. Cir. 1981). Courts

in this district have held that “[t]he interests of justice are best served by having a case decided by

the federal court in the state whose laws govern the interest at stake.” Kafack v. Primerica Life

Ins. Co., 934 F. Supp. 3, 8 (D.D.C. 1996), citing Schmid Labs., Inc. v. Hartford Accident and

6 Defendants make the general observation that the “vast majority of Virginia is more than 100 miles from the District of Columbia courthouse,” Defs.’ Reply at 11, and they posit that this may impair their ability to gain access to sources of proof under Federal Rule of Civil Procedure 45, which provides that “[a] subpoena may command a person to attend a trial . . . or deposition only . . . within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A). But a review of the addresses of the individuals named in defendants’ appendix and plaintiff’s distance chart does not reveal that any source of information would be beyond the power of either court to reach. See Defs.’ App. at 9–19; Distance Chart.

9 Indem. Co., 654 F. Supp. 734, 737 (D.D.C. 1986) and Islamic Republic of Iran v. Boeing Co., 477

F. Supp. 142, 143–44 (D.D.C. 1979).

Here, the Eastern District of Virginia is the jurisdiction with the most significant

relationship to the event at issue – it is where the accident occurred. So this Court, like the court

in Virginia, would apply Virginia law to the facts. And based on District precedent, the interests

of justice favor transferring the case to Virginia to apply its own state law. Moreover, although

jurisdiction in this case is established through the FSIA, and the District, as plaintiff notes,

frequently deals with matters involving embassies and the FSIA, nothing in the FSIA venue

provision mandates that a case against a foreign state be brought in the District, and this particular

action is based solely on a claim of negligence grounded in state law. Therefore, this factor weighs

in favor of transfer.

The second public interest factor is the relative congestion of the courts. Neither party

presents any facts or arguments about the comparative congestion of the courts, and the Court finds

that this factor is neutral. Finally, the third public interest factor is the local interest in deciding

local controversies at home. This factor weighs in favor of transferring the case because the

accident occurred within the Eastern District of Virginia.

Thus, the three public interest factors point strongly in favor of transferring the case, and

when weighed in the Court’s discretion with the private interest factors, the matter will be

transferred.

CONCLUSION

For the reasons stated above, the Court finds that venue is more appropriately found in the

Eastern District of Virginia, and it will grant defendants’ motion to transfer the case. Therefore,

the motion to dismiss, to the extent it was based on Federal Rule of Civil Procedure 12(b)(3) and

10 improper venue, will be denied, and the arguments based on Rule 12(b)(6) will be determined by

the transferee court. A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: July 23, 2020