Cengiz v. Bin Salman ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HATICE CENGIZ, et al.,
Plaintiffs,
v. Civil Action No. 20-3009 (JDB)
MOHAMMED BIN SALMAN, et al.,
Defendants.
MEMORANDUM OPINION
Jamal Khashoggi was a Saudi Arabia-born journalist who dedicated his career to
“advocating for democratization and greater human rights observance in the Arab world.” Compl.
[ECF No. 1] ¶¶ 45–46. He was tortured, murdered, and dismembered by Saudi Arabian nationals
on October 2, 2018 in the Saudi Consulate (“Consulate”) in Istanbul, Turkey. Id. ¶ 1; see also
U.N. Human Rights Council, Annex to the Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions: Investigation into the Unlawful Death of Mr. Jamal Khashoggi,
¶¶ 94–96, U.N. Doc. A/HRC/41/CRP.1 (June 19, 2019). His brutal murder, plaintiffs allege, was
ordered by Mohammed bin Salman, the Crown Prince of Saudi Arabia, and carried out by his
accomplices. Compl. ¶ 2.
While Khashoggi was tortured and murdered, plaintiff Hatice Cengiz, Khashoggi’s fiancé,
waited outside the Consulate for more than 12 hours “in a desperate and tormented state” for
Khashoggi to leave the Consulate with the papers they needed to civilly marry in Turkey. Compl.
¶¶ 101, 114, 119, 136–38. Cengiz, along with plaintiff Democracy for the Arab World Now, Inc.
(“DAWN”), the advocacy organization of which Khashoggi served as Executive Director, brought
1
this action against 25 named Saudi nationals and four John Does alleging that they planned and
executed Khashoggi’s murder. See id. ¶¶ 1, 6–35. 1
Only three defendants have entered an appearance: Mohammed bin Salman, the Crown
Prince of Saudi Arabia; and Saud al-Qahtani and Ahmed al-Assiri, both high-ranking Saudi
officials at the time of Khashoggi’s murder. See Notice of Appearance [ECF No. 11] (counsel for
al-Qahtani and al-Assiri); Notice of Appearance [ECF No. 14] (counsel for bin Salman). All three
defendants have moved to dismiss plaintiffs’ claims against them. See Def. Mohammed bin
Salman bin Abdulaziz Al Saud’s Mot. to Dismiss [ECF No. 21] (“Bin Salman Mot.”); Mot. of
Saud al-Qahtani and Ahmed al-Assiri to Dismiss the Compl. Against Them [ECF No. 22] (“Al-
Qahtani & Al-Assiri Mot.”).
Plaintiffs allege that bin Salman ordered Khashoggi’s “ruthless torture and murder,”
Compl. ¶ 2, and that it was planned and carried out by his accomplices, including al-Qahtani and
al-Assiri. The United States has reached the same conclusion: that the “horrific” killing was
approved by bin Salman himself. 2 Even defendants acknowledge that Khashoggi was murdered
in the Saudi Consulate, and that the murder was carried out by Saudi nationals. See Bin Salman
Mot. at 1. Hence, there is a strong argument that plaintiffs’ claims against bin Salman and the
other defendants are meritorious. However, the Court cannot resolve that issue at this time. The
1
The suit includes claims for extrajudicial killing under the Alien Tort Statute and Torture Victim Protection
Act, and a number of state law claims. Compl. ¶¶ 163–218.
2
In the suggestion of immunity filed by the United States in this case, the government described Khashoggi’s
killing as “horrific” and noted that the Office of the Director of National Intelligence (“ODNI”) declassified its
conclusions on the murder. Suggestion of Immunity by the United States [ECF No. 53] (“Suggestion of Immunity”).
ODNI concluded that “Saudi Arabia’s Crown Prince Muhammed bin Salman approved [the] operation in Istanbul,
Turkey to capture or kill Saudi journalist Jamal Khashoggi.” Office of the Director of National Intelligence, Assessing
the Saudi Government’s Role in the Killing of Jamal Khashoggi 2 (Feb. 11, 2021); see also Shane Harris et al., CIA
Concludes Saudi Crown Prince Ordered Jamal Khashoggi’s Assassination, Wash. Post (Nov. 16, 2018),
https://www.washingtonpost.com/world/national-security/cia-concludes-saudi-crown-prince-ordered-jamal-
khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a939-9469f1166f9d_story.html (reporting that a call to
Khashoggi directing him to go to the Consulate was made “at [bin Salman’s] direction”) (hereinafter, “CIA
Conclusions Article”).
2
Court has a responsibility to decide preliminary issues, such as jurisdiction, before the merits—
however strong the merits may be. Specifically, in light of the Statement of Interest filed by the
United States and the absence of any basis to assert personal jurisdiction over defendants al-
Qahtani and al-Assiri, the Court concludes that the case must be dismissed at this time.
Factual Background 3
Jamal Khashoggi was born in Saudi Arabia and spent many years working as a journalist
and advocate in the Arab world, including for the Kingdom of Saudi Arabia at times. Compl.
¶¶ 45–49. However, his “work, advocacy, and efforts to promote democracy and objective
journalism in the Arab world often met harsh opposition from officials and political leaders of the
region, as well as their supporters.” Id. ¶ 47. During this time, Saudi officials threatened
Khashoggi and ordered him to stop posting, writing, and speaking out against Saudi Arabia and
affiliated causes. Id. ¶¶ 50–51. In one instance, following tweets Khashoggi posted that were
critical of then-President Elect Donald Trump, al-Qahtani told Khashoggi that he was “not allowed
to tweet, not allowed to write, not allowed to talk.” Id. ¶ 50.
“Having lost his freedom to write, speak, and publish freely” in the Arab world, Khashoggi
moved to Washington, D.C., where he “developed strong ties to think tanks, journalists, and
academics,” including speaking at nonprofits and writing a column for the Washington Post.
Compl. ¶¶ 52–54. Specifically, he used his platform as a Washington Post columnist to
“challenge[] the Kingdom and the ruling royal family” to implement civil society reforms and
criticize “the media and civil society crackdowns initiated” by bin Salman. Id. ¶ 54. In 2018,
Khashoggi helped establish DAWN and began serving as the organization’s Executive Director
3
The facts set forth in this section are taken from plaintiffs’ complaint. Some of these facts—particularly
pertaining to Khashoggi’s attempts to obtain a marriage certificate in the United States and bin Salman’s involvement
in Khashoggi’s murder—are disputed by defendants in a series of declarations. Those disputes, and the weight the
Court assigns the contested facts, will be noted where relevant.
3
“with the intention of utilizing DAWN as a platform from which to advocate for democracy and
to promote human rights in the Arab world.” Id. ¶¶ 59–63.
Despite his move to the United States, bin Salman and those working on his behalf
continued to target Khashoggi in an attempt to silence him. See Compl. ¶ 73; see also id. ¶ 57
(describing a call al-Qahtani placed to Khashoggi “to remind Khashoggi that Defendant MBS was
closely monitoring his writings”). They tried to convince Khashoggi to travel or move back to
Saudi Arabia and assured him it would be safe to do so. See, e.g., id. ¶ 81 (“Defendant al-Qahtani
contacted Mr. Khashoggi, offering him a job and requesting that Khashoggi return to the
Kingdom.”). “Khashoggi explained to friends and loved ones that these ruses were nothing more
than attempts to bring him back to the Kingdom so as to jail, kill, or otherwise silence him.” Id.
¶ 84.
Khashoggi met Cengiz in May 2018 in Istanbul. Compl. ¶ 87. In the subsequent months,
the two spoke frequently, and they “began their courtship in earnest” in July 2018. Id. ¶¶ 87–88.
A month later, Khashoggi traveled to Turkey, where the two “decided they would marry and began
their engagement.” Id. ¶ 89. Cengiz informed Khashoggi that “Turkey would require a certificate
of marriage eligibility from the Kingdom [of Saudi Arabia] to recognize a civil marriage.” Id.
After returning to the United States, Khashoggi contacted the Embassy of the Kingdom of Saudi
Arabia in Washington, D.C. to obtain the required certificate. Id. ¶ 90.
“[R]ecognizing an opportunity to abduct Mr. Khashoggi, Defendants, working through
officials at the Embassy, instructed Mr. Khashoggi that he would have to apply for the document
at the Saudi Consulate in Istanbul. These instructions were a ruse to lure Mr. Khashoggi to a
location where Defendants could carry out an operation to kidnap, torture and murder him.”
4
Compl. ¶ 90. Khashoggi called Khalid bin Salman, 4 Mohammed bin Salman’s brother who was
then serving as the Saudi Ambassador to the United States, seeking “assurances that it would be
safe for him to visit the Saudi Consulate in Istanbul.” Id. ¶ 91. Khalid bin Salman—reportedly
at the direction of Mohammed bin Salman—assured Khashoggi that it would be safe to do so. Id. 5
Khashoggi arranged to visit the Consulate in Istanbul on October 2, 2018. Compl. ¶ 102.
His plan to visit the Consulate was “communicated to certain Defendants in Riyadh,” who began
planning the murder. Id. ¶¶ 102–04. A number of the defendants traveled to Istanbul from Saudi
Arabia in the early morning of October 2, 2018 “to carry out the abduction, torture, and killing”
of Khashoggi. Id. ¶ 110.
The complaint describes the gory events of October 2 in great detail, not all of which will
be repeated here. Briefly, before Khashoggi arrived at the Consulate, two of the defendants “coldly
discussed the logistics of how the Defendants would remove Mr. Khashoggi’s dismembered body
parts from the Consulate,” and described in detail the difficulties of dismembering him. Compl.
¶ 117. Khashoggi arrived at the Consulate shortly afterwards and met with the defendants present.
Id. ¶¶ 118–20. He appeared to be aware of his impending horror, asking, “How could this happen
in an embassy?” Id. ¶ 125. Recordings from the Consulate captured sounds of a struggle, along
with a number of “horrifying statements,” including “Push here; don’t remove your hand; push it,”
accompanied by sounds of “movement, heavy panting, and plastic sheets.” Id. ¶ 128. While not
present, al-Qahtani “called into the torture session via a visual media call,” at one point asking
those in the room to “[b]ring [him] the head of the dog.” Id. ¶ 131. All this time, Cengiz was
4
This opinion refers to Khalid bin Salman by his full name, and refers to Mohammed bin Salman either by
his full name or as “bin Salman.”
5
Khalid bin Salman submitted a declaration denying that his brother gave him any such direction or that he
spoke with Khashoggi during the relevant time period or about the Saudi Consulate in Turkey. See Decl. of His Royal
Highness Prince Khalid bin Salman bin Abdulaziz Al Saud in Supp. of Defs.’ Mot. to Dismiss [ECF No. 21-2]
(“Khalid bin Salman Decl.”) ¶¶ 3–5.
5
outside waiting, “becoming increasingly anguished and enduring unimaginable distress.” Id.
¶ 136. She contacted authorities and asked two consular officials exiting the Consulate “about Mr.
Khashoggi’s whereabouts”; they told her he had left the Consulate. Id. ¶¶ 136–37.
In the weeks that followed, the perpetrators attempted to cover up the murder by denying
involvement, destroying evidence, and waging a “misinformation campaign” to divert blame.
Compl. ¶¶ 140–44. On October 18, Saudi Arabia’s “chief prosecutor appeared on state television
and admitted that Mr. Khashoggi had been killed in the Consulate—purportedly after a fistfight.”
Id. ¶ 146. Days later, the Saudi Foreign Minister characterized Khashoggi’s death as the “result
of a rogue operation,” and later the Saudi Attorney General acknowledged that it was “a planned,
pre-mediated murder.” Id. ¶¶ 147–48. U.N. and U.S. intelligence agencies opened probes into the
killing, and both concluded that bin Salman must have known about the operation; with the U.S.
finding that bin Salman “ordered Mr. Khashoggi’s assassination.” Id. ¶¶ 149–52. The U.S.
Treasury Department sanctioned several Saudi nationals in response, including al-Qahtani, whom
the Treasury Department concluded “was part of the planning and execution of the operation that
led to the killing of Mr. Khashoggi.” Id. ¶ 154.
Cengiz and DAWN brought the present lawsuit against defendants in October 2020. In
June 2021, bin Salman, al-Qahtani, and al-Assiri each moved to dismiss the claims against them
for various reasons, chief among them that bin Salman is immune from suit and that the Court
lacks personal jurisdiction over all three defendants. See generally Bin Salman Mot.; Al-Qahtani
& Al-Assiri Mot.
Analysis
I. Claims Against Mohammed bin Salman
Plaintiffs have named Mohammed bin Salman as a defendant in this case and allege that
he “ordered the murder of Mr. Khashoggi.” Compl. ¶ 8. At the time of Khashoggi’s death and
6
the filing of this lawsuit, bin Salman was the Crown Prince of Saudi Arabia and, he claims, widely
viewed as Saudi Arabia’s “acting head of state” despite his formal titles of just Deputy Prime
Minister and Minister of Defense. See Bin Salman Mot. at 21–22. In his motion to dismiss, bin
Salman argued that his status in the government entitled him to head-of-state immunity. See id. at
20–23.
Under customary international law, foreign heads of state, heads of government, and
foreign ministers are traditionally entitled to status-based immunity from civil suit in other
countries while they remain in office. Restatement (Second) of the Foreign Relations Law of the
United States § 66 (Am. L. Inst. 1965); see also Samantar v. Yousuf, 560 U.S. 305, 321 n.15 (2010)
(noting the Restatement’s application of absolute immunity “to the head of state, head of
government, or foreign minister” but “express[ing] no view on whether Restatement § 66 correctly
sets out the scope of the common-law immunity applicable to current or former foreign officials”).
In most instances, the Executive Branch makes the immunity determination and expresses its
conclusion through a “suggestion of immunity” filed in the civil case, which the district court
defers to and then dismisses the case. See, e.g., Miango v. Democratic Republic of Congo, Civ.
A. No. 15-1265 (ABJ), 2019 WL 2191806, at *2 (D.D.C. Jan. 19, 2019).
On July 1, 2022, the Court invited the United States to “submit a statement of interest
regarding any issue in this case, but particularly with respect to . . . the applicability of head-of-
state immunity in this case.” July 1, 2022 Order [ECF No. 39] at 1. The United States indicated
it may file such a statement and requested an extension of time until October 3, 2022, which the
Court granted. See Notice of Potential Participation & Unopposed Req. for Extension [ECF No.
41]; July 18, 2022 Min. Order.
Six days before the government’s statement of interest was due, King Salman bin
Abdulaziz Al Saud appointed bin Salman, his son, as Prime Minister of the Kingdom of Saudi
7
Arabia. See Notice of Suppl. Authority [ECF No. 45] at 1. Shortly after his appointment as Prime
Minister, bin Salman notified the Court of his new position and argued that “the United States has
made clear in prior cases” that “a sitting Prime Minister such as the Crown Prince enjoys immunity
from the jurisdiction of U.S. courts in light of his current status as his nation’s head of
government.” Id. at 1–2 (cleaned up). The United States requested an extension of time to submit
a statement of interest in light of this development, see Notice by the United States & Second Req.
for Extension of Time [ECF No. 44], and then on November 17, 2022, filed a statement of interest
informing the Court that bin Salman was entitled to head-of-state immunity based on his current
position as Prime Minister, see Suggestion of Immunity at 1.
The United States’ Suggestion of Immunity stressed that:
The United States Government has expressed grave concerns regarding Jamal
Khashoggi’s horrific killing and has raised these concerns publicly and with the
most senior levels of the Saudi government. It has also imposed financial sanctions
and visa restrictions as a result of, and related to, Mr. Khashoggi’s killing, and has
sought to promote transparency through the release of the intelligence community
assessment of the Saudi government’s role in the incident.
Suggestion of Immunity ¶ 2 (footnote omitted). However, the United States concluded that “the
doctrine of head-of-state immunity is well-established in customary international law and has been
consistently recognized in longstanding Executive Branch practice as a status-based determination
that does not reflect a judgment on the underlying conduct at issue in the litigation.” Id. And, the
United States argued, “this determination is controlling and is not subject to judicial review.” Id.
¶ 1.
Plaintiffs vigorously disagree. See Resp. to Notice of Suppl. Authority [ECF No. 51];
Resp. to Suggestion of Immunity [ECF No. 55]. They make two primary claims in opposition: (1)
an analysis of the Saudi Arabian government structure suggests that the Saudi Prime Minister is
not in fact the head of government, and thus King Salman remains both the head of state and the
head of government; and (2) the “unusual timing and circumstances” of the decree suggest the
8
appointment of Mohammed bin Salman as Prime Minister is an “attempt to manipulate the Court’s
jurisdiction,” which the Court should not credit. Resp. to Notice of Suppl. Authority at 2; see
Resp. to Suggestion of Immunity at 2–9.
As to their first argument, plaintiffs appear to concede that the Executive Branch’s
determination that bin Salman is the head of government is controlling for purposes of the
immunity analysis. See Resp. to Suggestion of Immunity at 2 (noting that however “unfounded”
the determination may be, plaintiffs “acknowledge the Executive Branch’s authority to decide
whether to recognize MBS as Saudi Arabia’s head of government”). 6
Plaintiffs instead dedicate most of their response to the government’s Suggestion of
Immunity to the argument that the Court need not accept the Executive Branch’s determination
that a head of state is entitled to immunity under these circumstances. As described above, bin
Salman was appointed Prime Minister just days before the United States’ deadline to take a
position on his immunity status. The government positions he held prior to his appointment as
Prime Minister were not historically recognized as the “head of state” for immunity purposes, and
“there is no suggestion that the Executive has yet extended this immunity to . . . [the] positions
that the Crown Prince [held].” Aldossari on behalf of Aldossari v. Ripp, 537 F. Supp. 3d 828, 852
(E.D. Pa. 2021), vacated and remanded on other grounds, 49 F.4th 236 (3d Cir. 2022). 7 Beyond
the suspicious timing, plaintiffs note two other anomalies in the Royal Order appointing bin
Salman Prime Minister: his appointment was “an unexplained and unprecedented ‘exception’ to
the Basic Law of Governance,” under which the King is the Prime Minister; and King Salman
6
The Court also notes that plaintiffs’ complaint describes King Salman as the “head of the Kingdom’s
government” because he (at that time) “serve[d] as the Prime Minister.” Compl. ¶ 8.
7
Bin Salman made similar arguments in Aldossari as in his initial motion to dismiss here—that his role as
Crown Prince, his government positions, and his recognized status as “acting head of state” entitled him to immunity.
See Bin Salman Mot. at 20–23; Aldossari, 537 F. Supp. 3d at 852. The Aldossari court expressed skepticism that bin
Salman would be entitled to immunity in those roles. 537 F. Supp. 3d at 852.
9
“continue[d] to chair the sessions of the Council of Ministers.” Resp. to Suggestion of Immunity
at 6. A contextualized look at the Royal Order thus suggests that it was not motivated by a desire
for bin Salman to be the head of government, but instead to shield him from potential liability in
this case. See, e.g., Stephanie Kirchgaessner, Mohammed bin Salman Named Prime Minister
Ahead of Khashoggi Lawsuit, Guardian (Sept. 27, 2022, 6:19 PM),
https://amp.theguardian.com/world/2022/sep/27/mohammed-bin-salman-named-prime-minister-
ahead-of-khashoggi-lawsuit (“[T]he timing of the decision was seen by critics of the Saudi
government as almost certainly linked to a looming court-ordered deadline [the following]
week.”). Plaintiffs’ argument, then, proceeds in two steps: first, they argue that the Court is not
bound by the Executive Branch’s immunity determination, see Resp. to Suggestion of Immunity
at 3–5; and second, they urge the Court to consider “principles of customary international law” in
an independent analysis of the immunity issue, which caution against finding bin Salman immune,
see id. at 5–8. 8 For the reasons set forth below, the Court concludes that even if it is not strictly
bound by the Executive Branch’s determination, it is nonetheless appropriate to defer to the
Executive Branch’s decision in this instance.
Plaintiffs contend that this Court has authority to reject the Executive Branch’s immunity
determination. Historically, when the State Department filed a suggestion of immunity, “the
district court surrendered its jurisdiction.” Manoharan v. Rajapaksa, 711 F.3d 178, 179 (D.C. Cir.
2013) (quoting Samantar, 560 U.S. at 312). But, as plaintiffs note, courts may entertain some
challenges to the application of common-law immunity—including head-of-state immunity—in
certain cases. For example, in Manoharan, the D.C. Circuit considered whether the Torture Victim
8
For example, one reason for immunity is to “promote international comity.” Resp. to Suggestion of
Immunity at 8. Foreign nations should give “the respect to the laws, policies and interests of others that it would have
others give to its own in the same or similar circumstances.” Id. (quoting Usoyan v. Republic of Turkey, 6 F. 4th 31,
48 (D.C. Cir. 2021)). Plaintiffs argue that the United States would never find itself in a similar situation to Saudi
Arabia, where an executive is declared the head of government arguably for purposes of eluding foreign litigation.
10
Protection Act had displaced common-law head-of-state immunity such that a court retained
jurisdiction over the sitting president of Sri Lanka—despite the Suggestion of Immunity filed on
his behalf. See id. at 274–75. Plaintiffs urge this Court similarly to entertain a challenge to a head
of state’s entitlement to immunity based on the circumstances of his appointment under customary
international law. But even assuming the Court has authority to make such a determination—a
questionable proposition, see, e.g., Doe v. State of Israel, 400 F. Supp. 2d 86, 111 (D.D.C. 2005)
(“When . . . the Executive has filed a Suggestion of Immunity as to a recognized head of a foreign
state, the jurisdiction of the Judicial Branch immediately ceases.”) 9—it declines to do so here.
As described above, plaintiffs first argue that the Court does not need to defer to the
Executive Branch, then move to reasons why the Court, undertaking an independent analysis of
customary international law, should decline to grant bin Salman immunity.10 But plaintiffs do not
grapple with the intermediate question of whether the Court should nonetheless defer to the
Executive Branch’s conclusion on the issue—a question grounded in separation of powers
principles, not customary international law, see Ye, 383 F.3d at 626 (noting in response to
9
The clear weight of authority suggests that the Court lacks authority to review the Executive Branch’s
determination of immunity. See, e.g., Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974) (“For more than 160 years
American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the
executive branch . . . with no further review of the executive’s determination.” (footnote omitted)); Isbrandtsen
Tankers, Inc. v. President of India, 446 F.2d 1198, 1201 (2d Cir. 1971) (“[O]nce the State Department has ruled in a
matter of this nature, the judiciary will not interfere.”); Rich v. Naviera Vacuba, S.A., 295 F.2d 24, 26 (4th Cir. 1961)
(“[The] grant of immunity issued by the Department of State should be accepted by the court without further inquiry.”).
10
This is no small ask. Plaintiffs are unable to cite any instance, foreign or domestic, where a court declined
to grant head-of-state immunity to a defendant based on the circumstances of their appointment—or based on anything
other than a finding that the defendant was not in fact the head of state. Cf. Ye v. Zemin, 383 F.3d 620, 625 (7th Cir.
2004) (finding defendant entitled to head-of-state immunity despite his perpetration of crimes violative of jus cogens
norms). Of course, this exact situation quite possibly has never arisen. But because customary international law
derives from “a general practice accepted as law,” see Statute of the International Court of Justice, art. 38, June 26,
1945, 59 Stat. 1055, 1060, T.S. No. 993, it is difficult for the Court, given the long history of granting head-of-state
immunity, to conclude that bin Salman is not immune under international law. And that difficulty is compounded
because the only nation to comment on this exact issue—the United States, via the Executive Branch’s Suggestion of
Immunity—has concluded exactly the opposite. See TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296,
302 (D.C. Cir. 2005) (“[P]olitical branches have the final say about whether and how [customary international law]
applies in the United States . . . .” (second alteration in original) (quoting J. Goldsmith & E. Posner, The Limits of
International Law 77 (2005))).
11
plaintiff’s customary international law arguments that the court’s “first concern . . . is to ascertain
the proper relationship between the Executive and Judicial Branches insofar as the immunity of
foreign leaders is concerned”).
Deference to the Executive Branch’s foreign immunity determinations is motivated by “the
caution [courts] believe appropriate of the Judicial Branch when the conduct of foreign affairs is
involved.” Ye, 383 F.3d at 626. As the branch of government primarily responsible for
international affairs and diplomacy, the Executive Branch may be hindered or embarrassed should
the judiciary second-guess its foreign immunity decisions. See, e.g., In re Muir, 254 U.S. 522, 533
(1921) (explaining that deference to the Executive Branch on foreign immunity questions “makes
for better international relations, conforms to diplomatic usage in other matters, accords to the
Executive Department the respect rightly due to it, and tends to promote harmony of action and
uniformity of decision”); Ex parte Republic of Peru, 318 U.S. 578, 588 (1943) (“[C]ourts may not
so exercise their jurisdiction, by the seizure and detention of the property of a friendly sovereign,
as to embarrass the executive arm of the government in conducting foreign relations.”). Thus, it
is well-settled that judicial interference “in the chess game that is diplomacy”—where grants of
immunity may “serve as a bargaining counter in complex diplomatic negotiations” and denials
could “preclude a significant diplomatic advance”—is ill-advised. See, e.g., Spacil, 489 F.2d at
619.
These considerations are no less present when the circumstances of a head of state’s
appointment are suspect: the Executive Branch remains responsible for foreign affairs, including
with Saudi Arabia, and a contrary decision on bin Salman’s immunity by this Court would unduly
interfere with those responsibilities all the same.
If the immunity determination was in front of the Court without input from the Executive
Branch, the Court certainly would consider plaintiffs’ arguments about whether, as a substantive
12
matter, bin Salman was entitled to head-of-state immunity. But because the United States has
determined that bin Salman is so entitled, “the doctrine of the separation of powers under our
Constitution requires us to assume that all pertinent considerations have been taken into account
by the [Executive Branch] in reaching [its] conclusion.” Rich, 295 F.2d at 26; see also Doe I, 400
F. Supp. 2d at 111 (noting that plaintiff’s arguments against immunity when the Executive Branch
had weighed in were “entirely irrelevant” because “the filing of a Suggestion of Immunity ends
the court’s inquiry”).
Despite the Court’s uneasiness, then, with both the circumstances of bin Salman’s
appointment and the credible allegations of his involvement in Khashoggi’s murder, the United
States has informed the Court that he is immune, and bin Salman is therefore “entitled to head of
state immunity . . . while he remains in office.” Manoharan, 711 F.3d at 180. Accordingly, the
claims against bin Salman will be dismissed based on head-of-state immunity. 11
II. Claims Against Saud al-Qahtani and Ahmed al-Assiri
Plaintiffs have also named Saud al-Qahtani and Ahmed al-Assiri as defendants in this case,
alleging that they acted as co-conspirators in the murder of Khashoggi. Compl. ¶¶ 10–11. Al-
Qahtani and al-Assiri filed a motion to dismiss incorporating many of bin Salman’s arguments and
raising additional ones, primarily arguing that this Court lacks personal jurisdiction over them.
See Al-Qahtani & Al-Assiri Mot. at 5–12. In response, plaintiffs assert three theories of personal
jurisdiction: (1) it is “reasonable to infer” that al-Qahtani and al-Assiri “participated in luring
Khashoggi out of the United States”; (2) with respect to al-Qahtani, there is a “close relationship”
between his contacts with Khashoggi over the years and the murder such that the case “relate[s] to
the defendant’s contacts with the forum”; and (3) under Calder v. Jones, 465 U.S. 783 (1984), “the
11
Given the resolution on the basis of immunity, the Court does not reach either personal jurisdiction or the
other issues raised in bin Salman’s motion to dismiss.
13
effect of the murder was to silence Khashoggi’s speech within the United States,” which
“establishes personal jurisdiction over all of Khashoggi’s murderers, including Al-Qahtani and Al-
Assiri.” Opp’n to Defs.’ Mot. to Dismiss [ECF No. 27] (“Opp’n”) at 25–26.
Courts may exercise either general or specific jurisdiction over a defendant. See Ford
Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021). Plaintiffs here do not
contend that either defendant is “essentially at home” in the United States such that they are subject
to general jurisdiction. Id. (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)); see Opp’n at 25–27. Instead, plaintiffs rely on specific jurisdiction, see Opp’n
at 25–27, which requires that a plaintiff’s claims “arise out of or relate to the defendant’s contacts
with the forum,” Ford, 141 S. Ct. at 1025 (internal quotation marks omitted).
A “plaintiff must make a prima facie showing of the pertinent jurisdictional facts.” First
Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). “‘Conclusory
statements’ or a ‘bare allegation of conspiracy or agency’ do not satisfy [a plaintiff’s] burden” to
make such a showing. Livnat v. Palestinian Auth., 851 F.3d 45, 56–57 (D.C. Cir. 2017) (quoting
First Chicago Int’l, 836 F.2d at 1378–79). “When deciding personal jurisdiction without an
evidentiary hearing—as here—the court must resolve factual disputes in favor of the plaintiff, but
it need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts.”
Id. at 57 (cleaned up).
A. The “Inference of Luring” Theory
Plaintiffs first argue that the Court has personal jurisdiction over both al-Qahtani and al-
Assiri because it is “reasonable to infer” that they “participated in luring Khashoggi out of the
United States.” Opp’n at 25. Plaintiffs allege that the Embassy officials in Washington were
instructed to inform Khashoggi that he would need to go to the Saudi Consulate in Turkey to get
the required marriage certificate. Compl. ¶ 90. They further allege that Mohammed bin Salman
14
purposefully targeted the United States via a conversation he had with his brother, Ambassador
Khalid bin Salman, who was in the United States at the time of the conversation. Id. ¶ 38; Opp’n
at 8–11. In this conversation, Mohammed bin Salman allegedly directed Khalid bin Salman to
give Khashoggi false assurances of his safety at the Saudi Consulate in Turkey. Compl. ¶ 38.12
Plaintiffs describe these two U.S.-based activities as defendants’ “luring” of Khashoggi out of the
United States. See Opp’n at 25–26.
Plaintiffs argue that given the “central roles” al-Qahtani and al-Assiri played in the
conspiracy, it is reasonable to infer that they participated in the U.S.-directed conduct (luring
Khashoggi to Turkey). See Opp’n at 25; Compl. ¶ 10 (“[Al-Qahtani] acted as a co-conspirator in
the murder of Jamal Khashoggi and called into the killing of Mr. Khashoggi, reportedly, via
Skype.”); id. ¶ 11 (“Defendant Ahmed al-Assiri . . . [served] as Deputy Director of the Saudi
General Intelligence Presidency and was a Saudi Major General. On information and belief, at the
behest of Defendant MBS, Defendant Assiri planned and organized the team in Riyadh that
ultimately travelled to Turkey to murder Jamal Khashoggi.” (footnote omitted)).
Despite plaintiffs’ characterization of this as a reasonable inference, it is not. Beginning
with al-Assiri, plaintiffs allege only that he “planned and organized” the group that traveled from
Riyadh to Turkey—plans that materialized after Khashoggi had spoken with the Saudi Embassy
in Washington and with Khalid bin Salman. Compl. ¶ 11; see also id. ¶ 104 (noting al-Assiri
“delivered . . . orders” on September 29, after Khashoggi had already contacted the Consulate in
12
As described above, bin Salman submitted a declaration from his brother, Khalid bin Salman, denying that
this conversation ever happened or that Khalid bin Salman ever discussed the visit to Turkey with Khashoggi. See
Khalid bin Salman Decl. ¶¶ 4–5. Plaintiffs supported their allegations with a Washington Post article citing the
conclusion of U.S. intelligence that Mohammed bin Salman did, in fact, direct his brother to give Khashoggi false
assurances of his safety in Turkey. See CIA Conclusions Article. These dueling factual proffers raise interesting
questions about how a court should balance factual disputes related to jurisdiction at the motion to dismiss stage, and
what inferences a court may or should make. However, this Court need not answer those questions to resolve the
present motion. Thus, the Court will assume Mohammed bin Salman had a conversation with Khalid bin Salman
directing him to give Khashoggi assurances of his safety in Turkey, and that it happened when Khalid bin Salman was
in the United States (and Mohammed bin Salman was aware of his brother’s location).
15
Turkey). Al-Qahtani’s interactions with Khashoggi began years before the “luring” occurred, but
plaintiffs do not allege that his earlier contacts with Khashoggi included any knowledge of, or
involvement in, the initial plan to lure Khashoggi to Turkey. The first involvement plaintiffs allege
al-Qahtani had with the murder plot was after Khashoggi scheduled his October 2 visit to the
Consulate in Turkey, when the department run by al-Qahtani “presumably” was informed of the
visit. Id. ¶ 102. Plaintiffs allege no facts suggesting either of these defendants had knowledge of
or involvement in the conversations related to the Embassy in the U.S., which happened a month
before.
Making the “inference” that one co-conspirator had knowledge of or participated in an act
of the conspiracy absent any facts suggesting so would be inconsistent with the law on conspiracy
jurisdiction following the Supreme Court’s decision in Walden v. Fiore, 571 U.S. 277 (2014).
Walden held that the exercise of personal jurisdiction must be based on suit-related connections to
the forum created by the “defendant himself.” 571 U.S. at 284 (emphasis in original). “Some
cases in this Circuit, predating the Supreme Court’s 2014 decision in Walden v. Fiore, discussed
a conspiracy theory of personal jurisdiction, and those cases required ‘a prima facie showing of
(1) a conspiracy (2) in which the defendant participated and (3) a coconspirator’s overt act within
the forum, subject to the long-arm statute and in furtherance of the conspiracy.’” Cockrum v.
Donald J. Trump for President, Inc., 319 F. Supp. 3d 158, 185 (D.D.C. 2018) (collecting cases).
Thus, under the pre-Walden test, any co-conspirator could be subject to a court’s jurisdiction based
solely on the in-forum actions of a co-conspirator. However, that articulation of conspiracy-based
personal jurisdiction is on shaky ground following the Supreme Court’s admonishment that “a
defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for
jurisdiction.” Walden, 571 U.S. at 286. Hence, the existence of a conspiracy linking a defendant
to a co-conspirator who may have taken in-forum acts is insufficient, alone, to establish
16
jurisdiction. The defendant himself must have sufficient connections to a forum, and thus, “a
plaintiff who seeks to establish jurisdiction over a defendant based on a co-conspirator’s contacts
must plead, at a minimum, that the defendant knew his co-conspirator was carrying out acts in
furtherance of the conspiracy in the forum.” EIG Energy Fund XIV, L.P. v. Petróleo Brasileiro
S.A., 246 F. Supp. 3d 52, 91 (D.D.C. 2017) (emphasis in original) (discussing the impact of
Walden on personal jurisdiction), aff’d, 894 F.3d 339 (D.C. Cir. 2018).
Perhaps in recognition of this, plaintiffs do not argue that bin Salman’s (or any other alleged
co-conspirator’s) in-forum actions may be imputed to al-Assiri or al-Qahtani under a pre-Walden
theory. But their proposed basis for personal jurisdiction reaches functionally the same result: it
gives a court jurisdiction over all co-conspirators (or at least, all that played a “central role[],”
Opp’n at 25, in the conspiracy) on the basis of one co-conspirator’s in-forum actions. To be sure,
plaintiffs characterize this basis as making a reasonable inference that a defendant in fact took the
in-forum action (which could satisfy Walden). Id. at 25. But a court cannot just assume the
defendant—forum connection; the plaintiff must support it with facts. Hence, this theory is
insufficient to establish personal jurisdiction over al-Qahtani and al-Assiri here.
B. Al-Qahtani’s Communication with Khashoggi
Plaintiffs further argue that the Court has jurisdiction over al-Qahtani based on other
“specific allegations of his contacts to the United States.” Opp’n at 25. The complaint alleges
that, in response to tweets from Khashoggi critical of Donald Trump, and before Khashoggi’s
move to the United States, al-Qahtani told him that he was “not allowed to tweet, not allowed to
write, not allowed to talk.” Compl. ¶ 50. 13 While Khashoggi was in the United States, he had two
13
Plaintiffs’ opposition suggests this interaction happened while Khashoggi was in the United States. See
Opp’n at 25. However, the complaint suggests that this interaction happened before Khashoggi’s “[s]elf-[i]mposed
[e]xile” to the United States. See Compl. ¶¶ 50–52 & n.19. The Washington Post article on which the complaint
relies dates this interaction to late 2016, when Khashoggi was working for a London-based newspaper, and specifically
notes that the conversation happened “while Khashoggi was attending a conference in Qatar.” Souad Mekhennet &
17
interactions with al-Qahtani: (1) al-Qahtani contacted Khashoggi to remind him that bin Salman
was monitoring his writings, id. ¶ 57, and (2) al-Qahtani contacted Khashoggi to offer him a job
and request that he return to Saudi Arabia, id. ¶ 81.
To make a prima facie case of specific jurisdiction, plaintiffs must allege that the suit
“arise[s] out of or relate[s] to the defendant’s contacts with the forum.” Ford, 141 S. Ct. at 1026
(emphasis in original) (quoting Bristol-Myers Squibb Co. v. Superior Ct. of California, 137 S. Ct.
1773, 1780 (2017)). “The first half of that standard asks about causation; but the back half, after
the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.”
Id.In Ford, the Supreme Court upheld the exercise of personal jurisdiction over a car
manufacturer in two products liability suits arising out of car accidents in Montana and Minnesota,
relying on Ford’s extensive activities in those states—advertising, maintaining dealerships,
distributing replacement parts, etc.—even though Ford had not sold the particular cars at issue in
the forum states (such that its in-forum conduct was not causally linked to the accidents at issue).
See 141 S. Ct. at 1026–30. The Supreme Court rejected Ford’s proposed causation-only approach
to specific jurisdiction, id. at 1026, and held that, even if Ford’s purposeful availment of the forum
states was not a but-for cause of the accident, specific jurisdiction was proper because “Ford had
systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs
allege malfunctioned and injured them in those States,” id. at 1028.
Relying on Ford, plaintiffs argue that there is a sufficiently “close relationship” between
al-Qahtani’s contacts with Khashoggi in the United States and the murder of Khashoggi such that
Greg Miller, Jamal Khashoggi’s Final Months as an Exile in the Long Shadow of Saudi Arabia, Wash. Post (Dec. 22,
2018), https://www.washingtonpost.com/world/national-security/jamal-khashoggis-final-months-an-exile-in-the-
long-shadow-of-saudi-arabia/2018/12/21/d6fc68c2-0476-11e9-b6a9-0aa5c2fcc9e4_story.html. Khashoggi moved to
the United States in June 2017. Id.
18
the Court may exercise jurisdiction over al-Qahtani. Opp’n at 26. Specifically, al-Qahtani
attempted to lure Khashoggi out of the United States and silence his speech; and ultimately,
Khashoggi’s murder was effectuated by luring him out of the United States and was done to silence
his speech. Id.
But Ford itself was clear that its rejection of a causation-only standard “does not mean
anything goes.” 141 S. Ct. at 1026. “[T]he phrase ‘relate to’ incorporates real limits,” id., which
are guided by the “essential foundation” of specific jurisdiction: “a strong ‘relationship among the
defendant, the forum, and the litigation,’” id. at 1028 (quoting Helicopteros Nacionales de
Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). In defining those limits, the Ford Court
emphasized the level of targeting of the forum state: “Ford urge[d] Montanans and Minnesotans
to buy its vehicles” by “every means imaginable”; operated dozens of dealerships in each state;
and “work[ed] hard to foster ongoing connections to its’ cars’ owners,” including in those states.
141 S. Ct. at 1028; see also Staggs v. Smith & Wesson, Civ. A. No. 21-2535 (JEB), 2022 WL
2713277, at *3 (D.D.C. July 13, 2022) (noting that Ford requires some “requisite level of
targeting”). Further, the relevant connections that Ford found between the defendant, the forum,
and the litigation included plaintiffs’ residence in the forum state, use of the defective product in
the forum state, and injury in the forum state. Ford, 141 S. Ct. at 1031.
Applying those limitations, the facts here regarding al-Qahtani’s contacts with the United
States fall far short of the requisite connection for personal jurisdiction. His alleged targeting
consisted of two phone calls to Khashoggi, who was presumably in the United States at the time—
a far cry from the systematic activities Ford conducted in Montana and Minnesota. And here the
litigation itself is unmoored from the United States in a way that Ford was not: Cengiz is not a
19
U.S. resident, nor did the murder happen here. 14 See Ford, 141 S. Ct. at 1030 (stating that a
defendant is on “notice” that it “will be subject to jurisdiction in the State’s courts when the product
malfunctions there” (emphasis added and internal quotation marks omitted)). Hence, the
connections here are too infrequent and attenuated to support personal jurisdiction.
C. The “Effects” Theory
Under their third theory, plaintiffs assert that the “purpose of the [murder] was to silence
Khashoggi’s speech within the United States, prevent Khashoggi from exposing MBS’s abuses to
the American public, and prevent him from persuading American legislators to withdraw their
support of MBS.” Opp’n at 18. Accordingly, plaintiffs argue that the Court may exercise
jurisdiction over any participant in the murder under the rule in Calder v. Jones, 465 U.S. 783(1984), commonly called the Calder “effects” test. See Opp’n at 18–23.
In Calder, the plaintiff was a California resident who brought suit in California against the
author and editor of an allegedly libelous story about her in the National Enquirer. 465 U.S. at785–86. The Supreme Court held that, although the article was written and edited in Florida,
California could exercise specific jurisdiction over the defendants because their “intentional, and
allegedly tortious, actions were expressly aimed at California,” such that they “must reasonably
14
Although there are two plaintiffs—Cengiz and DAWN—the two federal law claims are brought by Cengiz
only. See Compl. ¶¶ 163, 174. DAWN brings only one claim, a tortious inference claim under state law. See id.¶¶ 184–91. This distinction is relevant because plaintiffs argue that personal jurisdiction is appropriate under Fed. R.
Civ. P. 4(k)(2), which provides for personal jurisdiction for “a claim that arises under federal law” only. See Compl.
¶ 39; Opp’n at 6. Plaintiffs’ complaint asserts that the Court would have personal jurisdiction over the state law claims
through “pendent personal jurisdiction” because the claims share a “common nucleus of operative fact with Plaintiffs’
federal claims,” which could serve as anchor claims. Compl. ¶ 43.
For the reasons discussed throughout this opinion, the Court concludes that exercising personal jurisdiction
over al-Qahtani and al-Assiri would violate due process as the Court has neither general nor specific jurisdiction over
them. Plaintiffs state that if the federal claims are dismissed for lack of personal jurisdiction, they would amend the
complaint to assert a basis other than Rule 4(k)(2) for personal jurisdiction for the state law claims. Opp’n at 24. But
because the Court concludes that exercising personal jurisdiction over al-Qahtani and al-Assiri would be inconsistent
with due process, there is no alternate basis that plaintiffs could rely on. See Livnat, 851 F.3d at 47–48, 54 (finding
that the outer boundaries of Rule 4(k)(2) are equivalent to those found in the due process clause of the Fifth
Amendment).
20
anticipate being haled into court there to answer for the truth of the statements made in their
article.” Id. at 789–90 (internal quotation marks omitted). 15 Relying on this language, plaintiffs
argue that defendants’ conduct was “expressly aimed” at the United States because its purpose was
to “silence Khashoggi’s speech within the United States,” and “prevent [him] from persuading
American legislators to withdraw their support of MBS.” Opp’n at 18.
But that argument, and the allegations it relies on in the complaint, are “conclusory” and
“merely state the plaintiffs’ theory of specific jurisdiction.” Livnat, 851 F.3d at 57. Plaintiffs
plead no facts that “establish” that Khashoggi’s murder was “expressly aimed at” the United
States. 16 Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1072 (10th Cir. 2008).
For example, in their opposition, plaintiffs point to Khashoggi’s columns in the Washington Post
about “media and civil society crackdowns initiated by Defendant MBS” and conclude that
defendants therefore targeted Khashoggi to “silence his criticism and pro-democracy activities.”
Opp’n at 19 (quoting Compl. ¶¶ 54, 73). But that conclusion does not necessarily follow. And
D.C. Circuit precedent counsels against drawing unsupported inferences—even if reasonable—
when analyzing whether defendants intended to cause effects in the forum state. See Livnat, 851
15
The Supreme Court’s subsequent decision in Walden characterized Calder’s holding slightly differently,
noting that “[t]he strength of that connection was largely a function of the nature of the libel tort.” 571 U.S. at 287.
“[B]ecause publication to third persons is a necessary element of libel, the defendants’ intentional tort actually
occurred in California.” Id. at 288 (citation omitted). Thus, it may be that post-Walden, alleging that a tort’s effects
were intended to be felt in the forum state will not necessarily establish jurisdiction—the “effects” test may only be
available for libel and certain other torts which, like libel, actually occur in part in the state where the effects are felt.
See Est. of Klieman by & through Kesner v. Palestinian Auth., 923 F.3d 1115, 1125 (D.C. Cir. 2019), (“Unlike the
tort in Calder, which had ‘occurred in’ the forum, the planning, carrying out, and occurrence of Klieman's killing all
took place in the West Bank” (citation omitted)), cert. granted, judgment vacated, 140 S. Ct. 2713 (2020), opinion
reinstated in relevant part, No. 15-7034, 2020 WL 5361653 (D.C. Cir. Aug. 18, 2020).
16
Plaintiffs do allege facts showing that defendants were monitoring Khashoggi’s speech and had taken
action in the past to curtail it. See, e.g. Compl. ¶ 50 (describing how Saudi officials banned Khashoggi from “speaking
publicly because of comments he made that were critical of the then-United States President-elect” during a speech in
Washington); id. ¶ 57 (describing call from al-Qahtani “remind[ing] Khashoggi that Defendant MBS was closely
monitoring his writings”). However, they do not connect those facts to Khashoggi’s murder; nor is it obvious to infer
that a government that monitors a journalist’s writings would murder him. See, e.g., CIA Conclusions Article
(describing intelligence community’s “lingering question” as to “why Mohammed might have decided to kill
Khashoggi, who was not agitating for the crown prince’s removal”). Plaintiffs must provide facts or evidence that
connect “the defendant, the forum, and the litigation.” Walden, 571 U.S. at 284 (emphasis added).
21
F.3d at 57 (declining to draw the inference that a specific attack was aimed at influencing U.S.
policy despite evidence “that the Palestinian Authority encourages terrorism against Jews and
Israelis in order to influence U.S. policy”); Klieman, 923 F.3d at 1123–24 (noting that although
the “basic theme [of conduct targeting the United States] appears reasonable and seems to possess
historical support,” the jurisdiction inquiry “requires tangible allegations relating the attack that
cost Esther Klieman’s life to defendants’ contacts with the forum”); see also Lewis v. Mutond,
568 F. Supp. 3d 47, 52 (D.D.C. 2021) (describing D.C. Circuit cases prohibiting the inference, in
cases involving the torture or murder of an American citizen, that defendants were targeting the
U.S.). 17 As in Livnat and Klieman, it would certainly be “reasonable” to conclude that, because
Khashoggi was a U.S.-based journalist who criticized the Saudi government, he was murdered
with the intent of silencing such criticism. Klieman, 923 F.3d at 1123. But plaintiffs simply do
not plead facts that establish that link.
Notably, almost all of the facts that plaintiffs rely on to support this theory involve
Khashoggi’s connections to the United States—such as his residence here and his writing and
advocacy based here. Keeping in mind the fundamental rule that “plaintiff’s contacts with the
defendant and the forum state” cannot “drive the jurisdictional analysis,” Walden, 571 U.S. at 289,
absent evidence about the defendants’ U.S.-directed contacts, see Mwani, 417 F.3d at 13 (noting
plaintiffs offered “allegations and evidence” of defendant’s U.S.-focused intent (emphasis added)),
17
Plaintiffs rely heavily on Mwani v. bin Laden, see Opp’n at 7–8, 11, 19–20, 22, 24, where the D.C. Circuit
found personal jurisdiction in a case arising out of the bombing of the U.S. Embassy in Nairobi. 417 F.3d 1, 4 (D.C.
Cir. 2005). As the D.C. Circuit later explained, in Mwani, “defendants’ contacts with the United States were manifest
in the very act that had precipitated the suit—a ‘devastating truck bomb’ outside the U.S. Embassy.” Klieman, 923
F.3d at 1125 (internal quotation marks omitted). Further, the plaintiffs in Mwani offered specific facts showing
defendants’ attempts to cause harm in the United States—“plaintiffs described an ongoing conspiracy to attack the
United States, with overt acts occurring within this country’s borders.” Mwani, 417 F.3d at 13. Unlike in Mwani, the
facts here—the killing of a Saudi national who had been monitored by the Saudi government for years and had resided
in the United States for only months—do not inherently give rise to the conclusion that defendants must have been
targeting the United States; and plaintiffs have not offered any other facts showing purposeful targeting of the United
States (as opposed to one resident).
22
the Court declines to infer a motive on behalf of defendants based primarily on facts concerning
Khashoggi’s U.S. contacts. 18
The dearth of facts here is underscored by the “wholly plausible alternative explanation”
for the attack suggested by plaintiff’s complaint—namely, that the murder was aimed at “dynamics
altogether internal to” the Saudi government. See Klieman, 923 F.3d at 1125; see also Lewis v.
Mutond, 568 F. Supp. 3d 47, 53–54 (D.D.C. 2021) (finding no jurisdiction under Calder because
although defendant’s statements “reference the United States,” “the references appear incidental
to [defendants’] goal—affecting politics in the DRC”). Plaintiffs here allege that the Saudi
government’s censorship of Khashoggi began before he relocated to the United States, suggesting
that his residence at the time of his murder was not critical to any desire to silence him (even
assuming that was the purpose). See Compl. ¶ 47–51. And when Khashoggi was in the United
States, the complaint describes his work with DAWN as “contrary to [defendants’] pecuniary and
other interests and pos[ing] an existential threat to Defendant MBS’ plans to secure power as an
autocrat.” Id. ¶ 80. The sources plaintiffs cite provide further alternative explanations. See, e.g.,
CIA Conclusions Article (“A theory the CIA has developed is that Mohammed believed
Khashoggi was a dangerous Islamist who was too sympathetic to the Muslim Brotherhood . . . .”).
18
Along these lines, plaintiffs rely heavily on Hassen v. Nahyan, where a court exercised personal jurisdiction
on the basis of somewhat analogous facts: a U.S. citizen was abducted in the United Arab Emirates and alleged that
the purpose of his abduction was to “harm American companies by impeding their ability to garner business contracts
in the UAE” and “acquire United States government secrets.” No. CV 09-01106, 2010 WL 9538408, at *10 (C.D.
Cal. Sept. 17, 2010). Hassen pre-dates Walden, and relies on an outdated statement of the law: the “effects” test can
be satisfied as easily as “targeting ‘a plaintiff whom the defendant knows to be a resident of the forum state.’” Id. at
*9. That rule was rejected by Walden. See Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1069–70 (9th
Cir. 2017) (“In Walden, the Supreme Court rejected our conclusion that the defendants’ knowledge of the plaintiffs’
strong forum connections, plus the foreseeable harm the plaintiffs suffered in the forum, comprised sufficient
minimum contacts.” (cleaned up)). Further, the Hassen court found jurisdiction in part based on a factual allegation
that “his torturers demanded a list of CIA agents in the UAE,” a fact expressly tying defendants, the torture, and the
forum state together. Hassen, 2010 WL 9538408, at *10. As discussed, there is no such allegation in this case. To
the extent Hassen credited other, unsupported allegations, that approach cannot be squared with recent binding D.C.
Circuit precedent. See Livnat, 851 F.3d at 57.
23
Given the wide range of motives alleged and supported by the facts, the Court is unwilling to infer
and credit the motive that simply restates plaintiffs’ specific jurisdiction theory. See Aljabri v.
Saud, Civ. A. No. 20-2146 (TJK), 2022 WL 4598519, at *7 (D.D.C. Sept. 30, 2022) (“From these
allegations, the Court could reasonably infer various motives on bin Salman’s part related to his
efforts to seize and maintain power in Saudi Arabia. But inferring that he tried to kill Aljabri
specifically to impact the U.S. intelligence community is a bridge too far.”)
Thus, defendants’ alleged purpose in killing Khashoggi—to silence his speech about bin
Salman within the United States—is neither self-evident nor inferable from the facts pled in the
complaint. Plaintiffs’ Calder argument, which necessarily turns on this alleged purpose, therefore
fails.
D. Jurisdictional Discovery
In the alternative, plaintiffs request jurisdictional discovery. See Opp’n at 15–18. Much
of the discovery requested is irrelevant to the claims against al-Qahtani and al-Assiri given the
legal deficiencies in the jurisdiction theories. For example, further discovery as to whether
Khashoggi went to the Saudi Embassy in Washington or spoke to Khalid bin Salman about his trip
to Turkey would be irrelevant as those facts do not concern al-Qahtani or al-Assiri’s involvement
in the conspiracy or connections to the United States.
Plaintiffs do request party discovery, which theoretically could uncover further information
linking al-Qahtani or al-Assiri to the United States, including information on whether defendants’
intent was to have effects in the United States as relevant under Calder. But jurisdictional
discovery “is justified only if the plaintiff reasonably ‘demonstrates that it can supplement its
jurisdictional allegations through discovery,’” and “‘[m]ere conjecture or speculation’ is not
enough.” Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C.
2009). Plaintiffs must provide “plausible factual support” that the discovery would yield relevant
24
information. Toumazou v. Turkish Republic of N. Cyprus, 71 F. Supp. 3d 7, 18 (D.D.C. 2014).
They fail to do so here. Instead, they simply assert that it could yield information, which is “based
on speculative inferences the Court has already rejected.” Aljabri, 2022 WL 4598519, at *17.
Further, plaintiffs do not explain specifically what information they would request or through
which discovery mechanisms. The request is thus “ill-defined and overly broad.” See Cockrum
v. Donald J. Trump for President, Inc., 319 F. Supp. 3d 158, 188 (D.D.C. 2018). Finally, granting
broad party discovery at this stage would “draw this Court into endless discovery disputes,” id. at
189, which would be compounded by the nature of the discovery: documents and depositions of
two high-ranking Saudi officials. See Aljabri, 2022 WL 4598519, at *17. Absent a clearer link
between the proposed discovery and personal jurisdiction, the Court will not enter into that thicket.
* * *
Because plaintiffs have not adequately pled personal jurisdiction over al-Qahtani or al-
Assiri or established a basis for jurisdictional discovery, the claims against al-Qahtani and al-Assiri
will be dismissed.
Conclusion
For the foregoing reasons, the Court will grant both motions to dismiss and accordingly
dismiss all claims against bin Salman, al-Qahtani, and al-Assiri. A separate Order consistent with
this opinion will issue.
/s/
JOHN D. BATES
United States District Judge
Dated: December 6, 2022
25