Saleh v. Bin Zayed Al Nahyan ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
AYMAN SALEH, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 20-1168 (ABJ)
)
KHALIFA BIN )
ZAYED AL NAHYAN )
President, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiffs Ayman Saleh and Linda Saleh brought this action on May 5, 2020, for claims
arising from the October 2015 alleged kidnapping and assault of Ayman in Abu Dhabi, under the
Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Victim Protection Act of 1991 (“TVPA”),
Pub. L. 102–256, 106 Stat. 73, (Mar. 12, 1992), codified at 28 U.S.C. § 1350, “the Fourth Geneva
Convention, President Lincoln’s 1863 Lieber Code, the Law of Nation’s clause in the U.S.
Constitution, the bilateral treaty between the UAE and the U.S., and various international human
rights conventions.” Compl. [Dkt. # 1] ¶ 1. They filed this suit against four defendants:
DarkMatter, the United Arab Emirates (“UAE”), the current President of the UAE, Sheikh Khalifa
bin Zayed Al Nahyan (“the President”), and the Crown Prince and Deputy Supreme Commander
of the UAE Armed Forces, Sheikh Mohammed bin Zayed Al Nahyan (“the Crown Prince”).
Id. ¶¶ 8–9. Of the eight counts in plaintiffs’ complaint, defendant DarkMatter is only named in
Count III, for violating the TVPA, and Count VIII, for engaging in civil conspiracy with the other
defendants. Id. ¶¶ 24–25, 45–50.
Pending before the Court is defendant DarkMatter’s motion to dismiss. Def.’s Mot. to
Dismiss [Dkt. # 17] (“Mot.”); Def.’s Mem. of Law in Support of Def.’s Mot. [Dkt. # 17] (“Mem.”).
Defendant has moved to dismiss this action for lack of subject matter jurisdiction, lack of personal
jurisdiction, insufficient service of process, and failure to state a claim pursuant to Federal Rules
of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6), respectively. Id. Plaintiffs have
replied, and the matter is fully briefed. 1 See Pls.’ Opp. to Def.’s Mot. to Dismiss [Dkt. # 20]
(“Opp.”); Def.’s Reply Mem. in Supp. of Mot. [Dkt. # 21] (“Reply”). Because the Court concludes
that it lacks subject matter jurisdiction over defendant DarkMatter for the claim arising from the
TVPA, and plaintiffs fail to state a claim for civil conspiracy against the defendant, it will grant
the motion to dismiss without reaching the issues of personal jurisdiction or insufficient service of
process.
FACTUAL BACKGROUND
Plaintiffs Ayman Saleh and Linda Saleh are married and domiciled in Portland, Oregon.
Compl. ¶ 2. Linda is a United States citizen, and Ayman is a dual citizen of the United States and
the United Arab Emirates. Id. ¶¶ 6–7. Plaintiffs allege the following facts in their complaint.
On October 14, 2015, Ayman was walking to the grocery store in Abu Dhabi when he was
approached by state security agents. Compl. ¶ 15. The agents claimed they needed to ask Ayman
a few questions. Id. Ayman went with the agents “because he feared that a long interrogation
would ensue if he did not do so.” Id. ¶ 16. The agents escorted Ayman to a police station where
1 On June 16, 2021, the Court received notice that plaintiffs’ original counsel had passed
away on June 6, 2021. See Notice [Dkt. # 28]. On September 8, 2021, plaintiffs’ new counsel
entered an appearance. See Notice [Dkt. # 32]. Since plaintiffs were represented by counsel at the
time of the filing of the motion to dismiss, they filed an opposition, and they are currently
represented, the Court will consider the fully-briefed motion.
2
they locked him in an office and tortured him. Id. Ayman was strangled, kicked in the head,
“smacked across the face, dragged across the floor, repeatedly whipped with electrical wire, and
threatened with a gun to his head.” Id. ¶ 17.
During the assault, Ayman was repeatedly questioned about his religion. Compl. ¶ 18.
Ayman told the agents he was Muslim, which upset the agents and did not halt his brutalization.
Id. Upon Ayman’s repeated insistence that he was Muslim, the agents “pulled out a cell phone
with [Ayman’s] baptism certificate from 2013 (for converting to Christianity) and placed it on the
table in front of [him].” Id. Ayman contends that at that moment, he believed was being tortured
because he had converted from Islam to Christianity, id. ¶¶ 18, 21, and because the UAE
government “prescribes punishment, including the death penalty, for the possession of material
that opposes Islam.” Id. ¶ 9. Converting from Islam to Christianity, according to plaintiffs, “is
something that you d[o] not do in the UAE.” Id. ¶ 33.
Plaintiffs allege that the Crown Prince and the President hired the security company that
employed the agents who detained and tortured Ayman Saleh, Compl. ¶ 40, and that the UAE
retained defendant DarkMatter to engage in the “offensive mass surveillance” of its citizens that
resulted in these events. Id. ¶¶ 46–50; see also id. ¶ 11 (“DarkMatter is likely responsible for
tracking the movement of Plaintiff Ayman Saleh, which led to his brutal attack.”). According to
the complaint, DarkMatter is a cybersecurity company founded in the UAE in 2014 that hires top-
level talent from the world’s tech giants and recruits skilled hackers and staff. Id. ¶¶ 46–47.
Plaintiffs claim that the UAE “has adopted a policy of close surveillance of its citizens in the guise
of national security” and that DarkMatter “partners with the UAE government to conduct offensive
mass surveillance of its citizens, including digital espionage services.” Id. ¶ 46. Plaintiffs allege
that DarkMatter partners with the UAE government to hack hardware probes installed in major
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cities, take advantages of weaknesses in the software, and install malware to locate and hack
UAE-based individuals. Id. Plaintiffs believe that Ayman was a victim of these cybersecurity
tactics when he was targeted by the security agents and allege that DarkMatter and the Crown
Prince conspired to “prevent religious conversions and inflict severe pain on all UAE citizens who
renounced the Islamic faith,” including Ayman Saleh. Id. ¶¶ 49–50. 2
PROCEDURAL HISTORY
Plaintiffs filed this action on May 5, 2020. See Compl. Plaintiffs struggled to serve
defendants, and on June 24, 2020, filed their first motion for alternative methods of service,
seeking permission to effectuate service by alternative means on DarkMatter. Pls.’ Req. for
Service by Alternative Methods [Dkt. # 3] (“Req.”). On July 30, 2020, the Court granted the
motion and ordered that “[p]laintiff[s] . . . utilize all of the proposed methods contained in [their]
request.” Min. Order (July 30, 2020). On October 19, 2020, plaintiffs successfully served
defendant DarkMatter. See Return of Service [Dkt. # 11]; see also Pls.’ Status Report for Service
of Process [Dkt. # 14] ¶¶ 2–4.
On December 18, 2020, defendant DarkMatter filed a motion to dismiss the claims against
it on multiple grounds: lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1); lack of personal jurisdiction over defendant DarkMatter pursuant to Federal
Rule of Civil Procedure 12(b)(2); insufficient service of process pursuant to Federal Rule of Civil
Procedure 12(b)(5); and for failure to state a claim upon which relief may be granted pursuant to
2 Paragraph 50 also asserts, “[i]f it were not for the conduct engaged in by the Crown Prince,
DarkMatter, and UAE officials, Plaintiff Saleh would not have been kidnapped and savagely
beaten up by DarkMatter contractors and/or state sponsored security agents.” Compl. ¶ 50. But
this is the only suggestion in the complaint that the attackers were retained by DarkMatter as
opposed to the UAE.
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Federal Rule of Civil Procedure 12(b)(6). Mot. at 1. Plaintiffs oppose the motion, request an
award of jurisdictional discovery, and maintain that the Court has personal jurisdiction under the
District’s long-arm statutes. See Opp. ¶¶ 17, 21, citing D.C. Code §§ 13–422 & 13–423 (2001).
STANDARD OF REVIEW
In evaluating a motion to dismiss under Rule 12(b)(1) or 12(b)(6), the Court must “treat
the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all inferences that
can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113
(D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011),
quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (applying the Rule 12(b)(6)
principle to a Rule 12(b)(1) motion). But the Court need not accept inferences drawn by a plaintiff
if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept a
plaintiff’s legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)
(rule 12(b)(6) case); see also Food and Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015) (rule 12(b)(1) case).
I. Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992); see also Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal
courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen.
Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction,
we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter
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jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can
confer subject-matter jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia,
339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, the court “is not limited to
the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).
Rather, “a court may consider such materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of
Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).
II. Lack of Personal Jurisdiction
It is the plaintiff who bears the burden of establishing personal jurisdiction over each
defendant. See Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). In order to
survive a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2), the “plaintiff must make a prima facie showing of the pertinent jurisdictional
facts.” First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). To establish
that personal jurisdiction exists, the plaintiff must allege specific acts connecting the defendant
with the forum. See In re Papst Licensing GMBH & Co. KG Litig., 590 F. Supp. 2d 94, 97–98
(D.D.C. 2008), citing Second Amend. Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524
(D.C. Cir. 2001). Plaintiff “cannot rely on conclusory allegations” to establish personal
jurisdiction. Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 42 (D.D.C. 2003).
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“A court may consider material outside of the pleadings in ruling on a motion to dismiss for
lack of . . . personal jurisdiction[.]” Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002).
However, “the plaintiff is not required to adduce evidence that meets the standards of admissibility
reserved for summary judgment and trial; rather, [the plaintiff] may rest her arguments on the
pleadings, ‘bolstered by such affidavits and other written materials as she can otherwise obtain.’”
Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010), quoting Mwani v. bin Laden,
417 F.3d 1, 7 (D.C. Cir. 2005) (alteration in original). Any factual discrepancies should be
resolved in favor of the plaintiff. See Crane, 894 F.2d at 455–56.
But the Court need not treat all of a plaintiff’s jurisdictional allegations as true. United
States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000). “Instead, the court ‘may
receive and weigh affidavits and any other relevant matter to assist it in determining the
jurisdictional facts.’” In re Papst Licensing, 590 F. Supp. 2d at 98, quoting D’Onofrio v. SFX
Sports Group, Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008).
III. Insufficient Service of Process
A plaintiff bears the burden to establish that it has properly effectuated service. See Light
v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (“[T]he party on whose behalf service is made has the
burden of establishing its validity when challenged.”). When sufficiency of service is challenged,
a plaintiff must demonstrate “that the procedure employed to deliver the papers satisfies the
requirements of the relevant portions of Rule 4.” Mann v. Castiel, 681 F.3d 368, 372
(D.C. Cir. 2012), quoting Wright, Federal Practice and Procedure § 1803 (3d ed. 2002 &
Supp. 2012).
Federal courts lack the power to assert personal jurisdiction over a defendant unless the
procedural requirements of service of process are satisfied. See Omni Cap. Int’l, Ltd. v. Rudolf
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Wolff & Co., 484 U.S. 97, 104 (1987); see also Gorman v. Ameritrade Holding Corp.,
293 F.3d 506, 514 (D.C. Cir. 2002). “Service is therefore not only a means of ‘notifying a
defendant of the commencement of an action against him,’ but ‘a ritual that marks the court’s
assertion of jurisdiction over the lawsuit.’” Mann, 681 F.3d at 372, quoting Okla. Radio Assocs.
v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992).
If a plaintiff does not meet this burden, the Court may dismiss the complaint without
prejudice for ineffective service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. Dist. of
Columbia Gov’t, 108 F.3d 366, 368–69 (D.C. Cir. 1997) (recognizing that the district court had
the authority to dismiss certain claims without prejudice due to insufficiency of service of process).
IV. Failure to State a Claim
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” 556 U.S. at 678–79, citing Twombly, 550 U.S. at 555–56.
A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678, citing Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 556. A pleading must offer
more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,”
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Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678, citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe
a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler, 617 F.2d at 608. Nevertheless, the Court
need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts
alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. See Browning,
292 F.3d at 242. In ruling upon a motion to dismiss for failure to state a claim, a court may
ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
I. Subject matter jurisdiction under Rule 12(b)(1)
Defendant’s motion cites Federal Rule of Civil Procedure 12(b)(1), but its memorandum
does not address that issue directly or take the position that the Court lacks subject matter
jurisdiction to consider the complaint as a whole. The basis for defendant DarkMatter’s
jurisdictional argument is that the only federal claim brought against it is Count III, under
the TVPA, and that statute only authorizes suits against individuals, not entities. Mem. at 20–21;
see 28 U.S.C. § 1350, note § 2(a) (limiting liability to an “individual”); see also Jesner v. Arab
Bank, PLC, 138 S. Ct. 1386, 1404 (2017) (“The key feature of the TVPA . . . is that it limited
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liability to ‘individuals,’ which, the Court has held, unambiguously limits liability to natural
persons.”), citing Mohamed v. Palestinian Auth., 566 U.S. 449, 453–56 (2012) (holding that the
“individual” liability under the TVPA does not encompass corporations or other organizations).
Plaintiffs do not respond to this contention in their opposition, and so under the Local Rules
of this court this claim is deemed to be conceded. See Local Civil Rule 7(b) (“Within 14 days of
the date of service [of a party’s motion] or at such other time as the Court may direct, an opposing
party shall serve and file a memorandum of points and authorities in opposition to the motion.
If such a memorandum is not filed within the prescribed time, the Court may treat the motion as
conceded.”). 3
Since the Court must dismiss Count III on that basis against defendant DarkMatter,
the only claim left against DarkMatter is the state law claim for civil conspiracy, Count VIII.
See Compl. ¶¶ 45–50. Defendant contends that the Court should decline to exercise jurisdiction
pursuant to 28 U.S.C. § 1367(c)(3). See Mem. at 22–23. Plaintiffs’ only response is half-hearted
and insufficient:
As this Court knows, 28 U.S. C. 1367 affords Plaintiffs the right to claim
supplemental jurisdiction under certain circumstances. Plaintiffs believe
that those circumstances are present here. Whether or not the Defendants’
argument has merit is going to be determined by this Court with respect to
whether or not the case can go forward.
Opp. ¶ 30.
3 But see Wash. Alliance of Tech. Workers v. United States, 892 F.3d 332, 344–45
(D.C. Cir. 2018) (finding that district court abused its discretion in dismissing a complaint
under Local Rule 7(b) when the plaintiff timely filed an opposition and “rest[ed] on its
complaint in the face of a motion to dismiss”); Coulston v. Wash. Metro Area Transit Auth.,
Civ. Action No. 19-2060 (TJK), 2020 WL 1236563, at *5 n.2 (“[T]he D.C. Circuit recently cast
doubt on whether failing to oppose an argument is, alone, enough to warrant dismissal. Wash.
Alliance, 892 F.3d at 345. Because the Court agrees with Defendants, it need not decide whether
Plaintiffs’ failure to respond is dispositive.”).
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But dismissal under section 1367(c)(3) is discretionary, not mandatory, see, e.g., Harris
v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 346 (D.C. Cir. 1997) (“When the District
Court has dismissed claims properly before it, it retains discretion to decide whether or not to
dismiss other claims as to which it may exercise supplemental jurisdiction.”), and Count VIII
alleges a conspiracy with other defendants that have not yet moved to dismiss the federal claims
that supply jurisdiction. Id., citing 28 U.S.C. § 1367(c)(3) (“[The Court] may decline to exercise
supplemental jurisdiction if ‘the district court has dismissed all claims over which it has original
jurisdiction.’”); see also Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005) (“A district
court may choose to retain jurisdiction over, or dismiss, pendent state law claims after federal
claims are dismissed.”). Therefore, the Court finds it appropriate to address the defendant’s
contention that the case should be dismissed under another provision of Rule 12.
II. Failure to state a claim under Rule 12(b)(6)
Like all of the other counts, the civil conspiracy claim arises out of the brutal assault
allegedly suffered by plaintiff Ayman Saleh at the hands of UAE security forces in October 2015.
Putting aside the highly conclusory nature of the limited allegations of defendant DarkMatter’s
role or involvement, 4 the complaint is devoid of any allegations of overt acts in furtherance of the
alleged conspiracy since then. Therefore, the claim against defendant DarkMatter – assuming one
was stated in the first place – is barred by the statute of limitations.
4 See, e.g., Compl. ¶¶ 49–50 (“It is, therefore, probable that Plaintiff Saleh was a victim of
these offensive cybersecurity tactics when he was tracked down, taken off the streets and brutally
beaten by security agents hired by the UAE government. . . . The company and the Crown Prince
have therefore conspired, in Plaintiff Saleh’s case, to prevent religious conversions and inflict
severe pain on all UAE citizens who renounced the Islamic faith. If it were not for the conduct
engaged in by the Crown Prince, DarkMatter, and UAE officials, Plaintiff Saleh would not have
been kidnapped and savagely beaten up by DarkMatter contractors and/or state sponsored security
agents.”).
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Civil conspiracy is a state-law claim, and so this Court must apply the District of
Columbia’s choice-of-law rules. See Dubois v. Wash. Mut. Bank, Civ. Action No. 092176 (RJL),
2010 WL 3463368, at *10 (D.D.C. Sept. 2, 2010), quoting A.I. Trade Fin. v. Petra Int’l Banking
Corp., 62 F.3d 1454, 1463 (D.C. Cir. 1995) (“When exercising supplemental jurisdiction, the
Court ‘applies the forum state’s choice of law rules and the state statute of limitation indicated
thereby.’”). For a civil conspiracy claim under D.C. law, the applicable limitations period is
determined by the underlying tort. See Nader v. Democratic Nat’l Comm., 567 F.3d 692, 697
(D.C. Cir. 2009) (“[A] civil conspiracy claim incorporates not only every substantive element of
the underlying tort, but also its statute of limitations.”). However, plaintiffs fail to allege any
specific underlying tort in their complaint. See Inova Health Care Servs. v. Omni Shoreham Corp.,
Civ. Action No. 20784 (JDB), 2020 WL 4201661, at *24 (D.D.C. July 22, 2020) (collecting cases
where judges in this district have “permitted civil conspiracy claims to proceed against parties that
had no underlying tort asserted against them”).
To the extent that plaintiffs’ claim for civil conspiracy relies on the alleged kidnapping
and torture of one of the plaintiffs, the underlying tort could be false arrest, assault, battery, or
false imprisonment. The statute of limitations for any of these torts under D.C. law is one year.
See D.C. Code § 12-301(a)(4) (stating that “for libel, slander, assault, battery, mayhem, wounding,
malicious prosecution, false arrest or false imprisonment,” the applicable statute of limitations is
“1 year.”). If plaintiffs allege an underlying tort not included in this list, the maximum statute of
limitations is three years. See D.C. Code § 12-301(a)(8) (stating that for a tort “for which a
limitation is not otherwise specially prescribed,” the applicable statute of limitations is “3 years”).
The statute of limitations begins to run “from the time the right to maintain the action
accrues,” D.C. Code § 12-301(a), which would be in October 2015. See Compl. ¶ 15. Under either
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the one-year or three-year limitations period, then, plaintiffs’ civil conspiracy claim is time-
barred because it accrued more than four and a half years before the filing of the instant lawsuit on
May 5, 2020.
Therefore, Count VIII for civil conspiracy will be dismissed against defendant
DarkMatter for failure to state a claim upon which relief can be granted. See Bryne v. Clinton,
410 F. Supp. 3d 109, 121 (D.D.C. 2019) (“It has long been established in this circuit . . . that a
statute of limitations defense that is clear on the face of the complaint is properly brought under
Rule 12(b)(6).”) (collecting cases).
CONCLUSION
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the Court will grant
defendant DarkMatter’s motion to dismiss for lack of subject matter jurisdiction and for failure to
state a claim upon which relief may be granted. 5 A separate order will issue.
_______________________
AMY BERMAN JACKSON
United States District Judge
DATE: September 22, 2021
5 Defendant raised other procedural and substantive challenges to the lawsuit, but because
the claims against DarkMatter will be dismissed on other grounds, the Court need not reach the
merits of the motion to dismiss for insufficient service of process or lack of personal jurisdiction,
and this renders plaintiffs’ request for jurisdictional discovery moot.
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