Allen v. Addi ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BENJAMIN P. ALLEN, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-cv-01650 (TSC)
)
MARY P. ADDI, et al., )
)
)
Defendants. )
MEMORANDUM OPINION
This matter is before the court on defendant TRT World’s Motion to Dismiss (“MTD”),
ECF No. 49, pursuant to Federal Civil Rules 12(b)(1), 41(b), and D.C. Local Civil Rule 83.23,
and its Memorandum in Support (“MTD Mem.”), ECF No. 49-1. For the reasons explained
below, the court will grant the Motion, dismiss all claims against TRT World without prejudice,
and close this case.
LEGAL STANDARD
Subject Matter Jurisdiction
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited
subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which
Congress grants jurisdiction.’” Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)
(alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012));
see Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are courts of limited
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jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’”) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Federal courts have an
obligation to ensure that they do not exceed the scope of their jurisdiction. See Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). Absent subject matter jurisdiction over a case, a court must
dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan,
540 U.S. 443, 455 (2004)); Fed. R. Civ. P. 12(h)(3).
To survive a motion to dismiss under Federal Rule 12(b)(1), the plaintiff bears the burden
of proving a court’s subject-matter jurisdiction over the claim at issue. Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015), cert. denied, 577 U.S. 1103 (2016); see also Hertz Corp. v. Friend,
559 U.S. 77, 96–97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942). When considering
such a motion, a court must accept as true all uncontroverted material factual allegations
contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of
all inferences that can be derived from the facts alleged’ and upon such facts determine
jurisdictional questions.” 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); Barr v. Clinton, 370 F.3d
1196, 1199 (D.C. Cir. 2004)). A court need not accept inferences drawn by the plaintiff,
however, if those inferences are unsupported by facts alleged in the complaint or amount merely
to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
When reviewing a challenge under Federal Rule 12(b)(1), a court may consider
documents outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330
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U.S. 731, 735 n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). By
considering documents outside the pleadings a court does not convert the motion into one for
summary judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be
converted into a motion for summary judgment” when documents extraneous to the pleadings
are considered by a court. Haase, 835 F.2d at 905.
Failure to Prosecute
Pursuant to D.C. Local Civil Rule 83.23, “[a] dismissal for failure to prosecute may be
ordered by the Court upon motion by an adverse party, or upon the Court’s own motion.” “A
Rule 41(b) dismissal is proper if, in view of the entire procedural history of the case, the litigant
has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor Co., 761
F.2d 713, 714 (D.C. Cir. 1985) (per curiam). “A lengthy period of inactivity may . . . be enough
to justify dismissal,” at least when “the plaintiff has been previously warned that [she] must act
with more diligence, or if he has failed to obey the rules or court orders[.]” Smith–Bey v. Cripe,
852 F.2d 592, 594 (D.C. Cir. 1988) (quoting 9 C. Wright & A. Miller, Federal Practice and
Procedure § 2370, at 205–07 (1971); citing Romandette v. Weetabix Co., Inc., 807 F.2d 309, 312
(2d Cir. 1986); Cherry v. Brown–Frazier–Whitney, 548 F.2d 965, 969 (D.C. Cir. 1976)).
The authority to dismiss suits for failure to prosecute has long been recognized as
“necessary in order to prevent undue delays in the disposition of pending cases and to avoid
congestion” in the courts. Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962). Further,
“[t]he court’s authority to dismiss a case for failure to prosecute or failure to follow the court’s
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orders is not discarded simply because a plaintiff is proceeding pro se.” Allen v. United States,
277 F.R.D. 221, 223 (D.D.C. 2011). Although a pro se plaintiff is afforded some latitude in
prosecuting her case, “such leeway does not constitute a license for a plaintiff filing pro se to
ignore the Federal Rules of Civil Procedure,” a court’s local rules, or a court’s orders. Moore v.
Robbins, 24 F. Supp. 3d 88, 97 (D.D.C. 2014) (internal quotation marks omitted) (citing Jarrell
v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987)).
DISCUSSION
First, the court agrees that it lacks subject matter jurisdiction. See MTD Mem. at 12–16.
Plaintiff Benjamin P. Allen, proceeding pro se and in forma pauperis, purports to bring this
defamation action based on diversity jurisdiction. See Compl., ECF No. 1, at 1. A district court
may exercise diversity jurisdiction in a case involving an amount in controversy that exceeds
$75,000, involving parties of diverse citizenship. 28 U.S.C. § 1332(a). Relevant here, parties
enjoy diverse citizenship when they are “citizens of different States,” or “citizens of a State and
citizens or subjects of a foreign state,” or “citizens of different States and in which citizens or
subjects of a foreign state are additional parties.” 28 U.S.C. §§ 1332(a)(1)–(a)(3).
While initially screening this matter, see 28 U.S.C. § 1915(e), another court in this
District found that the citizenship of the parties was unclear, and questioned whether the court
had subject matter jurisdiction over the case. See Show Cause Order, ECF No. 3. That court
ordered Allen to show cause why the case should not be dismissed outright for want of subject
matter jurisdiction. See id. On August 27, 2022, Allen filed a Response (“RSC”), ECF No. 8, to
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the Order to Show Cause, and, having reviewed the response, another screening court found that
while the citizenship of the parties was “still unclear,” because the case was at an “early pleading
stage,” the court must “take Allen’s supplemental assertions” regarding subject matter
jurisdiction “at face value[,]” and it therefore discharged the Show Cause Order, see Order, ECF
No. 8, at 2. Shortly thereafter, this matter was assigned to this court.
Per his own attestations, Allen is a United States citizen who, sometime in 2018 and well
before he filed this case, left the United States and moved to Turkey, for fear of retribution by his
estranged wife. He has resided in Turkey with extended family members, for the entire duration
of this case. See RSC ¶ 4; Compl. ¶¶ 1, 7, 12–16; see also Declaration of Defense Counsel, Efe
Poturoglu, Esq. (“Poturoglu Decl.”), ECF No. 49-3 ¶ 12; Reply Exhibits, ECF No. 45-1 (Emails
b/t Allen & Defense Counsel), at 2; Ct. Docket at address of record.
Although Allen is a United States citizen, he was not domiciled in any U.S. state at the
time he filed the Complaint, therefore he cannot be considered “citizen of a State” for purposes
of diversity jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828–30
(1989). The Supreme Court has mandated that “[i]n order to be a citizen of a State within the
meaning of the diversity statute, a natural person must both be a citizen of the United States and
be domiciled within the State.” Id. at 828 (emphasis added) (citing Robertson v. Cease, 97 U.S.
646, 648–49 (1878); Brown v. Keene, 33 U.S. 112, 115 (1834)); see CostCommand, LLC v. WH
Adm'rs, Inc., 820 F.3d 19, 21 (D.C. Cir. 2016) (same). As in Newman-Green, 490 U.S. at 828,
“[t]he problem in this case is that [Allen], although a United States citizen, has no domicile in
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any State.” That renders him “stateless” for purposes of § 1332(a), destroying diversity under
any applicable subsection of the statute. See id. at 828–29; see also Janvey v. Proskauer, 59 F.
Supp. 3d 1, at 5–6 (D.D.C. 2014) (finding that the court lacked subject matter jurisdiction
because “[a]n American citizen domiciled abroad, while being a citizen of the United States is,
of course, not domiciled in a particular state, and therefore such person is stateless for purposes
of diversity jurisdiction[,]” and that a stateless party destroys complete diversity) (internal
quotation marks omitted) (quoting Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 183–184 (3rd
Cir. 2008); Newman-Green, 490 U.S. at 829); Core VCT Plc v. Hensley, 59 F. Supp. 3d 123, 125
(D.D.C. 2014) (holding that a “United States citizen who has no domicile in any State . . . is
stateless and cannot sue or be sued in federal court on the basis of diversity.”) (internal quotation
marks omitted) (quoting Newman-Green, 490 U.S. at 828; citing Cresswell v. Sullivan &
Cromwell, 922 F.2d 60, 68 (2d Cir.1990) (“Though we are unclear as to Congress’s rationale for
not granting United States citizens domiciled abroad rights parallel to those it accords to foreign
nationals, the language of § 1332(a) is specific and requires the conclusion that a suit by or
against United States citizens domiciled abroad may not be premised on diversity.”)); Jankovic v.
Int’l Crisis Grp., No. 04-01198, 2005 WL 3276227, at *5 (D.D.C. Aug. 23, 2005) (same).
A person's “[d]omicile is determined by two factors: physical presence in a state, and
intent to remain there for an unspecified or indefinite period of time.” Prakash v. Am. Univ., 727
F.2d 1174, 1180 (D.C. Cir. 1984). And “for purposes of diversity jurisdiction, courts apply a
presumption of continuing domicile, so that domicile in one place remains until domicile in a
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new place is established.” Core VCT, 59 F. Supp. 3d at 126 (citing Desmare v. United States, 93
U.S. 605, 610 (1876); Techno-TM, LLC v. Fireaway, Inc., 928 F. Supp. 2d 694, 697 (S.D.N.Y.
2013)). Here, Allen has neither represented nor presented any other evidence that, at the time he
filed suit, he was domiciled in Ohio or in any other U.S. state. To the contrary, he concedes he
was domiciled in Turkey when he filed this case, and he remains there, over three years later.
The court also notes that Allen has not represented that he is a dual citizen of Turkey, but
even if he is, it would not assist in establishing diversity jurisdiction. TRT World has attested
that it “is an international news channel of, and operated by, Türkiye Radyo Televizyon Kurumu
(hereinafter “TRT”), which is a public entity organized under the laws of the Republic of
Turkiye.” MTD Mem. at 15 (citing Declaration of Hakan Corpur, Washington Bureau Chief of
TRT World (“Corpur Decl.”), ECF No. 49-2, ¶ 2); see also Answer (“Ansr.”), ECF No. 22, ¶ 3.
“TRT World is the national public broadcaster of Türkiye, and its “primary place of business is
in Istanbul, Türkiye.” MTD Mem. at 15 (quoting Corpur Decl. ¶¶ 2, 4); see Ansr. ¶ 3. While
“TRT World has a broadcast studio in Washington, D.C.” it is “registered as a foreign non-profit
corporation under the name ‘Turkish Radio-Television Corporation (The).’” MTD Mem. at 15
(quoting Corpur Decl. ¶ 3); see Ansr. ¶ 3.
A corporation's citizenship, for diversity jurisdiction purposes, is determined by its state
of incorporation and its principal place of business. See 28 U.S.C. § 1332(c)(1); see also Hertz
Corp., 559 U.S. at 80–81. On the record before it, the court concludes that TRT World is a
citizen of Turkey for purposes of diversity jurisdiction. Therefore, even assuming arguendo
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Allen is also a Turkish citizen, any diversity jurisdiction would be defeated, because TRT World
is also a Turkish citizen, and “[f]or jurisdiction to exist under 28 U.S.C. § 1332, there must be
complete diversity between the parties, which is to say that the plaintiff may not be a citizen of
the same state as any defendant.” Bush v. Butler, 521 F. Supp. 2d 63, 71 (D.D.C. 2007) (citing
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373–74 (1978)).
Second, the court agrees that the circumstances of this case also warrant dismissal for
failure to prosecute. See MTD Mem. at 7–12. Allen has engaged in persistent dilatory behavior,
and, despite repeated warnings, he has continually disregarded the court’s orders and the
applicable Federal and Local Rules of Civil Procedure.
At the outset of the case, the court issued an Order, ECF No. 15, advising the pro se
parties, including Allen, of their obligation to follow the Federal and Local Civil Rules and the
orders of this court, and it cautioned those parties that failure to comply could result in sanctions.
Just two months later, on March 4, 2021, the court was compelled to again remind Allen of this
same obligation, because he had flagrantly violated D.C. Local Civil Rule 5.4(f), in filing a
Response, ECF No. 24 [SEALED], that included unredacted exhibits containing former
defendant Mary P. Addi’s private and sensitive information. See Minute Order (entered 3/4/21).
Allen was again warned that continued failure to comply could result in sanctions, including
dismissal of this case. See id. He was again issued this same warning by Minute Order on
March 11, 2021.
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On March 15, 2021, Allen filed his First Motion to Stay Proceedings, ECF No. 27. On
April 5, 2021, the court entered a Minute Order granting that Motion in part and staying the case
against TRT World for six months, but it also noted that Allen had failed to comply with D.C.
Local Civil Rule 7(m). Consequently, Allen was cautioned, now for at least the fourth time,
about potential sanctions, including dismissal, arising from his continued failures to comply. See
id.On September 22, 2021, the court entered a Memorandum Opinion, ECF No. 29, and
Order, ECF No. 30, granting Addi’s Motion to Dismiss, ECF No. 14, and dismissing the claims
against her without prejudice pursuant to Federal Rule 12(b)(2).
On September 30, 2021, Allen filed a Second Motion to Stay, ECF No. 31, asking the
court to toll certain deadlines and to stay the case against TRT World, but Allen again failed to
comply with D.C. Local Civil Rule 7(m). See Minute Order (entered 10/6/21). Consequently, he
was directed to refile the Second Motion to Stay, with an accompanying Rule 7(m) certification.
See id. He was again reminded of his obligation to follow the court’s Rules and orders, and
about the potential repercussions of his continued failure to comply, including possible dismissal.
See id.On November 8, 2021, Allen refiled his Second Motion to Stay, ECF No. 32 [SEALED],
which was ultimately sealed because it contained yet more irrelevant and defamatory statements
about Addi. See Order, ECF No. 37. Allen was again reprimanded, for at least the sixth time,
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for his failures to follow the court’s orders and Rules, and he was again cautioned about the
possibility of future sanctions, including dismissal. See id. at 12.
On January 12, 2022, after considering TRT World’s Opposition, ECF No. 38, Allen’s
Second Motion to Stay was denied, see Order, ECF No. 39. The court also ordered TRT World
and Allen to meet and confer, and it directed TRT World to, by February 9, 2022, file a joint
report of the parties’ planning meeting. See id. (citing Fed. R. Civ. P. 26(f); D.C. LCvR 16.3).
Id. The parties were warned that separate Rule 26 reports would be stricken. Id. Despite this
warning, and predominantly due to Allen’s continued failures to cooperate, see Order (“Ord.”),
ECF No. 47, at 1–2 (explaining same), the parties filed separate Meet and Confer Statements, see
ECF Nos. 40, 42. During that time, Allen also filed a flurry of other frivolous Motions and
submissions. See, e.g., Response, ECF No. 41; Motion for Temporary Order, ECF No. 43;
Motion to Remove or Cancel, ECF No. 44; Objections (“Objs.”), ECF No. 46; see also Ord. at
4–5 (denying Allen’s Motions).
On June 9, 2022, the court entered an Order, inter alia, reluctantly accepting the separate
Meet and Confer Statements in the interest of judicial economy. See Ord. at 2. The court also
recounted this matter’s frustrating procedural history, characterized by “continued delays and
unnecessary disputes, many of which were caused by Plaintiff.” See id. And it again reminded
Allen that his pro se status was not a license to ignore either the court’s Rules or its directives,
and he was strongly cautioned regarding his continued circumvention of the court’s procedures,
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lack of civility, and refusals to cooperate. Id. at 3–4, 6. For at least the seventh time, Allen was
advised of potential resulting sanctions, including future dismissal.
The court then entered a Scheduling Order, ECF No. 48, on June 13, 2022. The
Scheduling Order also apprised the parties, including Allen, of their duty to adhere to the
deadlines and procedures set forth therein. See id. at 1. Discovery closed on December 22, 2022,
see id., and on January 21, 2023, TRT filed the pending Motion to Dismiss. On January 23,
2023, the court entered an Order, ECF No. 50, advising Allen to, in accordance with the court's
existing briefing schedule, respond to TRT World’s Motion to Dismiss by February 22, 2023, or
risk the court ruling on the Motion without the benefit of his position, see id. at 1–2 (citing Fox v.
Strickland, 837 F.2d 507 (D.C. Cir. 1988)). In accordance with its procedure as to all docketed
entries in this case, the court directed the Clerk to serve Allen with a copy of this Order by both
mail at his address of record, and to his email address of record. 1 See id. at 2; Docket Entries.
Despite this additional consideration, and the convenience afforded him, Allen has failed to file
any response to TRT World’s Motion to Dismiss, and his deadline elapsed five months ago.
Allen has also failed to meet a single discovery deadline, including production of his
initial Rule 26(a)(1) disclosures or of his expert designation. See MTD Mem. at 8–10; Poturoglu
Decl. at ¶¶ 2–11; see also MTD Ex. 3 (Emails from defense counsel to Allen). Indeed, he has
failed to participate in discovery altogether, despite multiple communications and attempts by
1
Neither this Order, nor any other mail, has been returned to the court as undeliverable to
Allen.
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defense counsel to “engage Plaintiff and move this case forward.” MTD Mem. at 8; Poturoglu
Decl. at ¶¶ 2–11; see also MTD Ex. 3. In fact, he has not participated in this case, in any way, in
over 17 months. See Objs. (filed 2/16/22) (representing Allen’s last submission in this case);
Poturoglu Decl. ¶¶ 12–15 (attesting that defense counsel had not heard from Allen since
February 8, 2022).
Given Allen’s repeated failures to comply with the court’s orders and Rules, including
the court’s countless warnings to Allen regarding the potential implications of same, and his
“lengthy period of inactivity,” Smith–Bey, 852 F.2d at 594, dismissal for failure to prosecute is
appropriate. Put simply, Allen has “not manifested reasonable diligence in pursuing” this matter,
see Bomate, 761 F.2d at 714, and because he has done nothing to suggest that he intends to
prosecute his claims, they must be dismissed.
TRT World seeks dismissal with prejudice based on Allen’s failure to prosecute. See
MTD Mem. at 7–9, 12. Pursuant to D.C. Local Rule 83.23, such a dismissal “should be made
without prejudice unless the delay in prosecution impairs the opposing party’s interests.” Wingo
v. WMATA, No. 19-cv-3507, 2023 WL 2562542, at *2 (D.D.C. Mar. 16, 2023) (citing D.C.
LCvR 83.23). Here, the court is mindful of both Allen’s pro se status, see id., and of the fact that
the sanctions employed must be proportionate to the misconduct, and that less drastic sanctions
other than outright dismissal must be considered, see Bonds v. District of Columbia, 93 F.3d 801,
809 (D.C. Cir. 1996), cert. denied, 520 U.S. 1274 (1997). For that reason, and as noted, the
court provided Allen with multiple warnings, and he was provided with ample opportunity to
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respond to TRT World’s arguments in support of dismissal. TRT World broadly asserts that it
has been burdened by the pendency of this matter, and that both it and the court deserve to be
spared from “expend[ing] further resources” on this matter, see MTD Mem. at 12, and the court
does not disagree. But, while this argument generally supports dismissal, it does not speak
directly to why the dismissal should be made with prejudice. Therefore, without more, and given
Allen’s pro se status, the court “sees no reason to depart from” the “default rule,” of dismissing
this matter without prejudice. 2 See Wingo, 2023 WL 2562542, at *2.
CONCLUSION
For all of the foregoing reasons, TRT World’s Motion to Dismiss is granted and the case
against it is dismissed without prejudice. An Order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Date: July 21, 2023 Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
2
In addition, and as discussed, the court dismisses this case for lack of subject matter
jurisdiction, and such a dismissal must be without prejudice to a subsequent action raising the
same or similar underlying facts if different grounds for jurisdiction are claimed. See Fed. R.
Civ. P. Rule 41(b); see also Allen v. Brown, 320 F. Supp. 3d 16, 36 (D.D.C. 2018) (finding that a
“dismissal for lack of subject matter jurisdiction is not a ‘judgment on the merits.’”) (citing 10A
C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 2713, p. 239 (3d ed. 1998) (“If
the court has no jurisdiction, it has no power to enter a judgment on the merits.”); Restatement
(Second) of Judgments § 11, p. 108 (1980) (“A judgment may properly be rendered against a
party only if the court has authority to adjudicate the type of controversy involved in the
action.”)).
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