Masoud v. Suliman , 816 F. Supp. 2d 77 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASHRAF M. MASOUD,
Plaintiff,
v. Civil Action No. 10-0994 (BAH)
MOHAMMAD SULIMAN, et al.,
Defendants.
MEMORANDUM OPINION
This case involves a scrap metal deal gone wrong. The plaintiff, Ashraf M. Masoud,
brought this suit against the defendants – Mohammad Suliman and his Azerbaijani company,
Dar-Al Tanmiyah – alleging claims of breach of contract, fraud, misrepresentation, and unjust
enrichment stemming from their scrap metal business dealings. The defendants failed to respond
to the Complaint in a timely fashion and the Clerk of the Court entered default against the
defendants. The defendants have now appeared in this case and have moved to vacate entry of
default and to dismiss the Complaint. The Court, however, must dismiss this Complaint sua
sponte for lack of subject matter jurisdiction.
I. BACKGROUND
Plaintiff Masoud, a resident of Virginia, alleges that, in December 2006, defendant
Suliman, who is also a resident of Virginia, approached him with a business proposition. See
Compl. ¶ 1, 2, 5. Defendant Suliman allegedly told the plaintiff that he had a “willing and
ready” buyer of large amounts of scrap metal. See id ¶ 9. The defendant allegedly stated that if
the plaintiff invested $372,000 in the defendant’s Azerbaijani company, Dar-Al Tanmiyah, they
would use that investment to buy scrap metal and resell it to the willing buyer at a profit. See id.
¶ 5. There was just one problem, according to the plaintiff: The whole deal was a fraud
concocted by the defendants. See id. ¶¶ 13, 15.
In furtherance of this fraud, the plaintiff alleges that Suliman brought him to the
Azerbaijani embassy and showed him what appeared to be a certificate of good standing from
the government of Azerbaijan. See id. ¶¶ 7-8. Suliman also purportedly set up phone calls with
phony buyers to give the plaintiff the impression that he would see a healthy return on any
investment in the defendant’s company. See id. ¶ 7. Relying on these alleged
misrepresentations, the plaintiff provided the defendants with $372,000 for the purpose of
purchasing scrap metal to resell at a profit. Instead of purchasing the scrap metal, as was
discussed, the plaintiff alleges that the defendant kept the money with no intention of repaying
him. See id. ¶ 9.
Based on these allegations, the plaintiff filed a Complaint in this Court on June 15, 2010
asserting four claims: breach of contract, fraud, misrepresentation, and unjust enrichment. Id. ¶¶
19-38. The defendants failed to respond to the Complaint in a timely manner and, on June 30,
2011, the Clerk of the Court entered default against the defendants. On August 18, 2011, the
defendants filed a motion requesting that the Court set aside the default and dismiss all claims
against them. The defendants’ motion to vacate default and to dismiss the Complaint is presently
before the Court. Upon examination of the record, however, the Court finds that it does not have
subject matter jurisdiction over the plaintiff’s claims and therefore must dismiss this case.
II. STANDARD OF REVIEW
While neither party presents the issue, a court must dismiss a case when it lacks subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”); see also Jerez v. Republic of
Cuba, 777 F. Supp. 2d 6, 15 (D.D.C. 2011) (“[S]ubject matter jurisdiction may be raised at any
time, even by the court sua sponte.”); McManus v. District of Columbia, 530 F. Supp. 2d 46, 62
(D.D.C. 2007). “Plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Am. Farm Bureau v. U.S. EPA, 121 F. Supp. 2d 84, 90 (D.D.C.
2000); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). It is well established
that, in assessing subject matter jurisdiction, a court must construe the allegations in the
Complaint liberally but “need not accept factual inferences drawn by plaintiffs if those
inferences are not supported by facts alleged in the complaint, nor must the Court accept
plaintiffs' legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006);
see also Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.1986), vacated on other grounds,
482 U.S. 64 (1987). The Court must be assured that it is acting within the scope of its
jurisdictional authority and therefore must give the plaintiffs' factual allegations closer scrutiny
in assessing subject matter jurisdiction than would be required for a Rule 12(b)(6) motion for
failure to state a claim. See Westberg v. FDIC, 759 F. Supp. 2d 38, 41 n. 1 (D.D.C. 2011) (citing
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)); Dubois v. Wash. Mut. Bank,
2010 U.S. Dist. LEXIS 91855, at *5 (D.D.C. Sept. 2, 2010) (citing Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13-14 (D.D.C. 2001)); Hoffman v. District of
Columbia, 643 F. Supp. 2d 132, 135 (D.D.C. 2009). In evaluating subject matter jurisdiction, the
Court, when necessary, may look outside the Complaint to “undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed
facts.” Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir.1992) (citing Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Alliance for Democracy v. FEC, 362
F.Supp.2d 138, 142 (D.D.C. 2005) (“[I]n deciding a Rule 12(b)(1) motion, it is well established
in this Circuit that a court is not limited to the allegations in the complaint, but may also consider
material outside of the pleadings. . .”).
III. DISCUSSION
The Complaint in this case does not provide a basis for subject matter jurisdiction in this
Court. The Complaint purports to invoke federal question jurisdiction by generally referencing
fourteen separate federal criminal statutes. See Compl. ¶ 4 (“[T]he case arises from a violation
of federal law or question [sic], and pendent state law claims.”); id. (citing federal criminal
statutes, including 18 U.S.C § 659 (theft from interstate carrier), 18 U.S.C § 1832 (theft of trade
secrets), 18 U.S.C. § 641 (theft of federal property), and 18 U.S.C. § 1001 (false statements on a
matter within the jurisdiction of a branch of the federal government)). These criminal statutes,
however, do not and cannot provide the basis for the plaintiff’s civil causes of action. See
Leggett v. Powers, No. 09-558, 2009 WL 4032664, at *1 (D.D.C. Nov. 20, 2009) (“Plaintiff’s
harassment claim against [the defendant] does not present a federal question under [28 U.S.C.] §
1331, and he cannot bring a private right of action based on defendant’s alleged criminal
behavior.”); Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F. Supp.
2d 17, 23 (D.D.C. 2003) (finding that “plaintiff is precluded from asserting any claims pursuant
to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they do not convey a private right of
action.”).
Furthermore, the Complaint’s four enumerated counts do not purport to invoke any
federal statutes. Rather, the Complaint on its face has asserted four common law claims for
breach of contract, fraud, misrepresentation, and unjust enrichment. See Compl. ¶¶ 19-38. None
of these causes of action purport to present a claim for relief under federal law. Accordingly, the
plaintiff’s invocation of federal question jurisdiction pursuant to 28 U.S.C. § 1331 is misplaced.
Finally, the Complaint does not invoke federal jurisdiction based on diversity of
citizenship. To the contrary, the Complaint alleges that both the plaintiff and defendant Suliman
are residents of the Commonwealth of Virginia. See id. ¶¶ 1-2. Accordingly, diversity
jurisdiction pursuant to 28 U.S.C § 1332 is also lacking.
The plaintiff bears the burden of demonstrating subject matter jurisdiction, Am. Farm
Bureau, 121 F. Supp.2d at 90, and has not done so. Since this Court is without subject matter
jurisdiction to consider the claims alleged in this case, the Court must dismiss this action.
IV. CONCLUSION
For the reasons stated above, this action is dismissed for lack of subject matter
jurisdiction and the defendants’ pending motion is denied as moot.1 An Order consistent with
this Memorandum Opinion will be entered.
DATED: October 6, 2011 /s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
1
The apparent basis for the defendants’ handwritten motion to dismiss was that the claims underlying this action
have already been adjudicated in a lawsuit in state court in Virginia. See Defs.’ Mot. to Dismiss and to Set Aside
Default. The plaintiff appears to concede that fact, but still argues that this Court should not vacate the default and
should deny the motion to dismiss. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss and to Set Aside Default. The Court
does not reach these issues given the evident lack of subject matter jurisdiction.