Han v. Financial Supervisory Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KAREN C. HAN,
Plaintiff,
Civ. Action No. 18-141(EGS/GMH)
v.
FINANCIAL SUPERVISORY SERVICE,
Defendant.
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Karen C. Han (“Ms. Han” or “Plaintiff”) has sued
Defendant Financial Supervisory Service (“FSS” or “Defendant”),
alleging that FSS, a corporation established under the laws of
the Republic of Korea (“South Korea”) interfered with the
contractual relationship between Ms. Han’s now-defunct financial
services company, Peninsula Asset Management Ltd. (“Peninsula”),
and Hankook Tire Company, Ltd. See Complaint, ECF No. 1. 1 This
lawsuit is one of a series of suits filed by Ms. Han related to
a contractual relationship between Peninsula and Hankook Tire
Company, Ltd., as well as its controlling shareholder Mr. Yang-
Rae Cho (together, “Hankook”). On Jan. 7, 2019, the Court
referred the case to a Magistrate Judge for a Report and
1 When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
1
Recommendation (“R. & R.”) on the pending Motion to Dismiss, and
the case was randomly referred to Magistrate Judge G. Michael
Harvey. See generally, Docket for Civ. Act. No. 18-141.
Magistrate Judge Harvey issued a R. & R. recommending that this
Court grant Defendant’s motion, see R. & R., ECF No. 24 at 1; to
which Plaintiff objects, see Pl.’s Objs., ECF No. 26.
Upon careful consideration of the R. & R. and the
objections thereto, the applicable law, and the entire record
herein, the Court hereby ADOPTS the R. & R. as to the portion on
personal jurisdiction, see ECF No. 24; and GRANTS Defendants’
Motion to Dismiss, see ECF No. 7-19.
II. Background 2
The factual and procedural history of this case is complex,
and it is helpful to first describe the involved parties.
Plaintiff is a Texas citizen who owned a financial services
company—Peninsula—that entered into an agreement (which, for
reasons that will become clear, is known herein as the
“Peninsula/Ocean Agreement”) through which it would accomplish a
financial transaction on behalf of an alleged alter-ego of the
South Korean company Hankook. Compl., ECF No. 1 ¶¶ 2, 8, 19. FSS
is a South Korean financial regulator that, like the United
States’ Securities Exchange Commission, “operates as a ‘buffer’
2 In the interest of judicial efficiency, the Background section
is adopted mostly verbatim from Magistrate Judge Harvey’s R. &
R. See ECF No. 24, Background.
2
between South Korean financial institutions” and South Korea’s
government. Id. ¶ 3. Plaintiff alleges that the financial
transaction that was the basis of the Peninsula/Ocean Agreement
violated South Korean financial laws and regulations and that
reports of Peninsula’s involvement in the transaction caused
measurable damage to the company’s business and reputation. Id.
¶¶ 2, 23, 25. She further asserts that when, during an
investigation by FSS, Hankook provided FSS with a false report
connected with the relevant transaction, Peninsula was forced to
close because of fears that it could be criminally liable for
its participation in that transaction. Id. ¶ 32. Peninsula
therefore demanded that Hankook indemnify it pursuant to the
Peninsula/Ocean Agreement for its losses. Id. ¶ 48. When Hankook
refused, Peninsula sued Hankook, Mr. Cho, and Ocean in the 153rd
Judicial District Court of Tarran County, Texas for breach of
contract, and when the case was dismissed for lack of personal
jurisdiction, in the Northern District of Ohio for the same
claims. Id. ¶¶ 49-50. That action was also ultimately dismissed,
and those claims form part of the underpinning of the claims at
issue here. See id. ¶¶ 51-52.
In this case, Plaintiff asserts that FSS encouraged Hankook
to breach the indemnity provision of the Peninsula/Ocean
Agreement by assuring Hankook that FSS would not produce
discovery that was essential to Peninsula’s breach of contract
3
claim in the Northern District of Ohio. Id. ¶¶ 3-4, 52, 88.
Among the steps that FSS allegedly took in this scheme was
resisting a subpoena that Peninsula served on FSS’ New York
office by improperly procuring a diplomatic note from the South
Korean Embassy that asserted that FSS was entitled to foreign
sovereign immunity as an organ of the South Korean government.
Id. ¶ 5. Plaintiff seeks losses caused by FSS’ alleged
interference with the contractual relationship between Hankook
and Peninsula, which she measures as “the totality of the harm
[she] suffered during the entire period in which the [indemnity
provision] has remained breached,” including, presumably,
recompense for the damage to her business as well as legal
expenses she has incurred in the various actions that she has
filed in connection with her claims against Hankook. Id. ¶¶ 6,
90.
A. Factual and Procedural History
In 1995, Plaintiff founded Peninsula, with her husband No
Joon Park serving as director, to provide financial services to
“investment banks in international financial centers,” such as
Seoul and Hong Kong. Compl., ECF No. 1 ¶¶ 17–18, 25. In late
1998, Hankook retained Peninsula to act as the agent to raise
money for Ocean Capital Investment (L) Limited (“Ocean”), an
investment fund established by Hankook in Labuan, Malaysia. Id.
¶ 19. The agreement between Peninsula and Ocean (the
4
aforementioned Peninsula/Ocean Agreement) included an
indemnification clause by which Ocean agreed to indemnify
Peninsula against “all losses, liabilities, costs, charges and
expenses (including legal fees and expenses)” incurred in
connection with, among other things, violations or alleged
violations of the laws of Malaysia, South Korea, or the United
States. Id. ¶¶ 2, 38; ECF No. 7-7 at 9–10; see also Han v. Fin.
Supervisory Serv., No. 17-CV-4383, 2017 WL 7689223, at *1
(S.D.N.Y. Oct. 6, 2017), report and recommendation adopted, 2018
WL 791353 (S.D.N.Y. Feb. 8, 2018); Peninsula Asset Mgmt. (Cay-
man), Ltd. v. Hankook Tire Co., No 5:04 CV 1153, 2006 WL
2945642, at *6–7 (N.D. Ohio Oct. 13, 2006) (“Peninsula II”),
rev’d, 509 F.3d 271 (6th Cir. 2007) (“Peninsula IV”). Among the
acts Peninsula performed on behalf of Ocean was the placement of
$20 million of zero-coupon notes with the Korea Long Term Credit
Bank and the transfer of the proceeds to Ocean’s U.S. Dollar
account in New York. Id. ¶ 20. Ms. Han alleges that,
“[u]nbeknownst to Peninsula at that material point in time,”
Ocean was an off-the-books “slush fund” used for the benefit of
Hankook’s chairman Mr. Cho, and the Korea Long Term Credit Bank
was not the purchaser of the notes. Instead, the notes were
purchased by Hankook through “a designated cash trust account”
maintained at the bank in order to perpetrate a money-laundering
scheme in which it illegally transferred $20 million from South
5
Korea to New York, after which “the funds could be freely
transferred.” Compl., ECF No. 1 ¶¶ 21–23, 26; see also Han v.
Yangrai Cho, Civil No. 18-00277, 2019 WL 1300070, at *1 (D. Haw.
Mar. 21, 2019) (“Hankook Tire and Defendant Cho allegedly used
Peninsula Asset management to perpetrate a money-laundering
scheme to transfer $20 million . . . out of the Republic of
Korea to an account in New York.”), appeal docketed No. 19-16073
(9th Cir. May 22, 2019); Han, 2017 WL 7689223, at *1
(“Unbeknownst to Han, Ocean was a ‘slush fund maintained for the
benefit of Hankook’s Chairman, Yang-Rae Cho, and Hankook
purchased the notes itself, through various subsidiaries and
affiliates . . . .”).
In 2001, “serious scandals involving offshore secret funds
started to become widely publicized in South Korea” and “rumors
began to circulate” that Peninsula had been implicated in
certain illegal schemes, causing a drop in Peninsula’s business.
Compl., ECF No. 1 ¶ 25; see also Peninsula II, 2006 WL 2945642,
at *4. Peninsula later allegedly became aware of the illegality
of the Ocean scheme, which Ms. Han asserts exposed her, her
husband, and Peninsula to potential criminal penalties. Compl.,
ECF No. 1, ¶¶ 26, 31; see also Han, 2017 WL 7689223, at *1;
Peninsula II, 2006 WL 2945642, at *5. In November 2001, the
Ministry of Finance and Economy of South Korea ordered South
Korean businesses and residents to report offshore funds within
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three months; in addition, supervisory agencies like FSS which,
as noted above, is a regulator of the financial markets in South
Korea, “pressed for voluntary reports and announced their intent
to conduct thorough on-the-spot probes after the expiration of
the grace period in February 2002.” Compl., ECF No. 1 ¶ 27.
Peninsula reportedly became alarmed at these developments, and,
when it learned that neither Hankook or Mr. Cho had disclosed
their offshore funds, “was compelled to retain counsel” and
demanded that Hankook indemnify it pursuant to the
Peninsula/Ocean Agreement. Id. ¶¶ 28–29. In July 2002, “facing
the threat of potential criminal prosecution,” Ms. Han and her
husband decided to close Peninsula. Id. ¶ 31. According to Ms.
Han, in August 2002, Hankook made a false report to FSS, stating
that its offshore operations were for the benefit of the
company, rather than Mr. Cho personally. Id., ¶ 32. After FSS
investigated the transactions mentioned above, Peninsula Asset
Mgmt. (Cayman) Ltd. v. Hankook Tire Co., No. M8-85, 2005 WL
3046284, at *1 (S.D.N.Y. Nov. 14, 2005) (“Peninsula I”), in
December 2002, the Securities and Futures Commission of South
Korea allegedly levied penalties against Hankook and Mr. Cho,
id. ¶ 33. There is no evidence that Ms. Han, her husband, or
Peninsula has ever been criminally charged or otherwise
sanctioned in connection with the transaction at the heart of
the Peninsula/Ocean Agreement. See Peninsula II, 2006 WL
72945642, at *5 (noting that “there is no evidence . . . that
[Peninsula or Plaintiff] were sanctioned in any way for any
conduct arising out of their dealings with [Hankook].”).
Meanwhile, on September 10, 2002, Ms. Han and Peninsula again
requested indemnification from Hankook and Mr. Cho. Id. ¶ 48.
Hankook responded that it had not violated any laws of South
Korea in connection with the Ocean placement. Id. ¶ 49. Because
Ms. Han and Peninsula deemed that response to be a breach of the
indemnity provision in the Peninsula/Ocean Agreement, on October
8, 2002, Ms. Han and Peninsula filed an action alleging breach
of contract, fraud, negligent misrepresentation, and civil
conspiracy against Hankook, Mr. Cho, and Ocean in Texas state
court, which was dismissed for lack of personal jurisdiction
over the defendants. Id. ¶ 49. In June 2004, Ms. Han, her
husband, and Peninsula (the “Ohio Plaintiffs”) filed an action
in the U.S. District Court for the Northern District of Ohio
against the same defendants alleging similar claims (the “Ohio
Action”). Id. ¶ 50; see also Peninsula II, 2006 WL 2945642, at
*1. In a nutshell, the Ohio Plaintiffs claimed that Hankook
fraudulently induced them to assist the unlawful transfer of the
$20 million that was the subject of the Peninsula/Ocean
Agreement and then refused to indemnify them for damage to
Peninsula’s business caused by that illegal activity. Peninsula
II, 2006 WL 2945642, at *3; see also Peninsula Asset (Cayman)
8
Mgmt., Ltd. v. Hankook Tire Co., Case no. 5:04-cv-1153 (N.D.
Ohio Dec. 1, 2004), Order, ECF No. 57 at 2 (“Plaintiffs claim
that defendants fraudulently and purposefully involved them in
complex, illegal money-laundering activities, under the guise of
legitimate investment activities, and as a result completely
ruined plaintiffs’ business reputation. Plaintiffs seek recovery
under the indemnity provisions of the placing agreements they
had with Ocean . . ..”). Hankook again denied that it had
breached any South Korean laws or regulations, asserted that FSS
had never alleged that it acted improperly or illegally, and
therefore denied that any duty to indemnify Plaintiff had been
triggered. Compl., ECF No. 1 ¶ 51. Because the question of
whether Hankook had violated South Korean financial regulations
was material to the claims and defenses in the Ohio Action, the
Ohio Plaintiffs served a subpoena duces tecum on FSS’ outpost in
New York City requesting that it appear for a deposition and
produce documents related to its investigation of those
defendants. Id. ¶ 53; see also Peninsula I, 2005 WL 3046284, at
*1. FSS moved in the U.S. District Court for the Southern
District of New York (the “2005 New York Action”) to quash the
subpoena on grounds of sovereign immunity under the Foreign
Sovereign Immunities Act, (“FSIA”), 28 U.S.C. § 1603 et seq.,
which the district court denied. Compl., ECF No. 1 ¶¶ 54–55; ECF
No. 1-1 at 2–4; see also Peninsula I, 2005 WL 3046284, at *1.
9
When FSS refused to comply with the subpoena, the plaintiffs
asked the district court to hold it in contempt. Compl., ECF No.
1, ¶ 54–55; see also Peninsula I, 2005 WL 3046284, at *1. In
response to that motion, on September 14, 2005, a diplomatic
note (the “2005 Diplomatic Note”) on the letterhead of the
embassy of the Republic of Korea (the “South Korean Embassy”),
which is located in the District of Columbia, was sent to the
U.S. Department of State explaining that FSS was “a regulatory
body of the Republic of Korea equivalent to the combination of
the United States Securities and Exchange Commission and the
United States Federal Reserve Board.” Compl., ECF No. 1-1 at 5–
6. According to the South Korean Embassy, the legislation
governing FSS prohibited the agency from revealing “internal
investigatory, and other files relating to a transaction in
which defendant Hankook engaged.” Id. at 6. The note continued,
stating that “[i]t is of the utmost concern to the government of
the Republic of Korea should FSS be held in contempt of court.
It is feared that any contempt of court against FSS may bring
about some undesirable effect on the relations between the
government of the United States and the government of the
Republic of Korea.” Id. at 7. The note therefore requested “that
the State Department take all appropriate steps to prevent FSS
being held in contempt of court.” Id. Plaintiff alleges that
“FSS fraudulently enlisted the South Korean Embassy to issue the
10
[diplomatic note] by telling a lie that the Head of FSS’ New
York Office might be sent to jail” and that the diplomatic note
was issued without proper authorization. Compl., ECF No. 1 ¶¶
62, 65; ECF No. 10 at 18–19. On October 5, 2005, the Counselor
for Finance and Economy at the Korean Embassy sent a letter to
the district court in New York asserting both that FSS was “an
organ of a foreign state and entitled to immunity under the
FSIA” and that the statute creating FSS “imposes confidentiality
on FSS and its employees.” ECF No. 1-1 at 10–11. Relying in part
on the 2005 Diplomatic Note as the “stated position of the
Korean embassy,” the district court denied the contempt motion
finding that South Korean law prevented FSS’ compliance with the
subpoena. Peninsula I, 2005 WL 3046284, at *2–3 & n.2. The
plaintiffs appealed the order denying sanctions for contempt and
FSS cross appealed the district court’s order denying it
immunity under the FSIA. Peninsula Asset Mgmt. (Cayman) Ltd. v.
Hankook Tire Co., 476 F.3d 140, 141 (2d Cir. 2007) (“Peninsula
III”). The Second Circuit affirmed the denial of the contempt
motion, although on different grounds than that relied on by the
lower court. Id. at 144. Specifically, the court “focuse[d] . .
. on whether FSS is an ‘organ of the Korean government’” under
the FSIA, looking for guidance to Filler v. Hanvit Bank, 378
F.3d 213 (2d Cir. 2004). That case instructed courts considering
whether an entity is an organ to a foreign government to ask
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(1) whether the foreign state created the
entity for a national purpose; (2) whether the
foreign state actively supervises the entity;
(3) whether the foreign state requires the
hiring of public employees and pays their
salaries; (4) whether the entity holds
exclusive rights to some right in the
[foreign] country; and (5) how the entity is
treated under foreign state law.
Peninsula III, 476 F.3d at 143 (alteration in original) (quoting
Filler, 378 F.3d at 217). Assessing those factors, the Second
Circuit found:
First, Korea created FSS for the national
purpose of examining, supervising, and
investigating Korean financial institutions.
Second, the Korean government actively
supervises FSS by, inter alia: (1) appointing
its governor and auditor; (2) acting through
a related agency, FSC; and (3) regulating the
inspection fees that FSS can collect. Third,
FSS has the exclusive right to receive monthly
business reports from the solvent financial
institutions it oversees. Finally, the Korean
government informed the State Department and
the district court that it treats FSS as a
government entity.
Only one factor weighs against finding
sovereign immunity: the Korean government
neither requires the hiring of public
employees for FSS positions, nor directly pays
the salaries of FSS employees. Nonetheless, in
light of the four other factors, this is
insufficient to deny FSS sovereign immunity.
Id. Having found that the court lacked jurisdiction over a claim
against FSS, the Second Circuit held that FSS’ cross appeal (on
the denial of its motion for foreign sovereign immunity) was
moot. Id. at 144. In October 2006, approximately three months
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before the Second Circuit issued Peninsula III, the court in the
Ohio Action granted the defendants’ motion for summary judgment
on all of the plaintiffs’ claims. Peninsula II, 2006 WL 2945642,
at *6–13. The plaintiffs appealed to the Sixth Circuit, which
reversed the district court’s judgment on jurisdictional
grounds, finding that, “because there [were] alien corporations
on both sides of the controversy”—a Cayman Islands corporation
(Peninsula) on the plaintiffs’ side and a South Korean
corporation (Hankook) on the defendants’ side—the case “lack[ed]
the complete diversity required for a federal court to exercise
jurisdiction under [28 U.S.C.] § 1332(a)(2).” Peninsula IV, 509
F.3d at 272; see, e.g., Roz Trading Ltd. v. Zeromax Grp., Inc.,
517 F. Supp. 2d 377, 390 n.6 (D.D.C. 2007) (noting that “because
‘under long-held precedent, diversity must be “complete”’ . . .
the D.C. Circuit and other circuits have held that 28 U.S.C. §
1332 does ‘not confer jurisdiction over a lawsuit involving an
alien on one side, and a[n] alien and a citizen on the other
side’” (first quoting Eze v. Yellow Cab Co., 782 F.2d 1064, 1065
(D.C. Cir. 1986), then quoting Saadeh v. Farouki, 107 F.3d 52,
55 (D.C. Cir. 1997)). On remand, the district court dismissed
the case. Peninsula Asset Mgmt. (Cayman) Ltd. v. Hankook Tire
Co., No. 5:04 CV 1153, 2008 WL 302370, at *3 (N.D. Ohio Feb. 1,
2008) (“Peninsula V”).
13
Meanwhile, Ms. Han alleges that in 2007, her husband
cooperated with FSS in an investigation of Hankook ordered by
the Financial Services Commission until the Governor of FSS
wrongfully ended the investigation. Compl., ECF No. 1, ¶ 45.
According to Ms. Han, several major South Korean news outlets
reported on the investigation and suspected that high-level
employees of FSS may have conspired with Hankook to cover up
unlawful acts of Hankook and Mr. Cho. Id. ¶ 46. Ms. Han alleges
that because FSS believed that she and her husband were the
source of such rumors, they “caus[ed] release of a news report”
that FSS was considering filing criminal defamation charges
against them and thereafter “blacklisted” Plaintiff’s husband,
causing him to lose an employment opportunity when FSS warned
the company that had recruited him that it “would not tolerate”
his employment there. Id. ¶¶ 46–47.
Ms. Han alleges that thereafter, in 2009, the South Korean
government “announced its decision to release FSS from the
designation of ‘public institution’ to secure autonomy and
independence of FSS . . . from the government,” thus
“transform[ing] FSS from a civil public corporation . . . into a
pure civil corporation that maintains complete independence from
the government or its agencies.” Compl., ECF No. 1 ¶¶ 70–71.
Since that time, Ms. Han and her husband have “urged FSS and
other relevant South Korean authorities such as [the Ministry of
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Foreign Affairs and Trade] and [the Financial Services
Commission] to rectify FSS’ legal status as a government organ
of South Korea in the United States so that Plaintiff can resume
her action against Hankook,” to no avail. Id. ¶¶ 74–78.
Plaintiff also asserts that officials at the Ministry of Finance
and Economy “hindered” her “efforts to seek remedies in this
matter” and that the petition of Ms. Han and her husband
regarding the status of FSS was batted around these agencies for
years. Id. ¶¶ 74–78. According to Ms. Han, in 2017, “all
executives of FSS” were “removed from their posts” after a
corruption investigation. Id. ¶ 82.
Around that time, Ms. Han initiated a series of lawsuits.
In June 2017, she filed an action in the U.S. District Court for
the Southern District of New York (the “2017 New York Action”)
against FSS seeking a declaratory judgment that the entity “‘is
not entitled to sovereign immunity’ and that FSS will be
‘obligated to provide testimony or produce document[s] in its
possession as requested by Plaintiff.’” Han, 2017 WL 7689223, at
*3 (quoting the complaint in the 2017 New York Action). In
September 2017, Ms. Han “re-instituted the Ohio Action” against
Hankook in the Northern District of Ohio (the “2017 Ohio
Action”). Compl., ECF No. 1 ¶ 80; Han v. Hankook Tire Co., No.
5:17-cv-2046, 2018 WL 4104198, at *1 (N.D. Ohio Aug. 28, 2018)
(“Han, although acknowledging the first action, now seeks to
15
assert those very same claims alleging Peninsula need not be
included as a party because it is ‘defunct’ and she is ‘the real
party in interest’ for Peninsula.”). The 2017 New York Action
was dismissed in February 2018 when the court found that Ms. Han
“improperly [sought] an advisory opinion as to an unripe
discovery dispute that will arise, if at all, in a case pending
against another defendant in another forum”—that is, the 2017
Ohio Action. Han, 2018 WL 791353, at *2 (quoting Han, 2017 WL
7689223, at *1). Ms. Han also initiated litigation against Mr.
Cho in the U.S. District Court for the District of Hawaii in
July 2018 alleging that Hankook had fraudulently induced
Peninsula to engage in the money-laundering scheme involving
Ocean (the “2018 Hawaii Action”). Han, 2019 WL 1300070, at *1–2.
The 2017 Ohio Action was dismissed in August 2018. The Northern
District of Ohio held that Ms. Han was judicially estopped from
arguing that Peninsula—the presence of which would destroy
diversity—was not an indispensable party to the litigation
because she had, in the earlier litigation, made the opposite
argument. Han, 2018 WL 4104198, at *2–3; see also Han v. Hankook
Tire Co., No. 5:17-cv-2046, 2019 WL 2868953, at *2–6 (N.D. Ohio
July 3, 2019) (denying motion for re-consideration). The 2018
Hawaii Action was dismissed for lack of jurisdiction over Mr.
Cho in March 2019. Han, 2019 WL 1300070, at *5.
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B. Tort Claims in This Action
In January 2018 Plaintiff filed this action against FSS for
tortious interference with contract (also known as intentional
interference with contract and intentional interference with
contractual relations) or, in the alternative, “New York Prima
Facie Tort.” Compl., ECF No. 1 ¶¶ 84–93. Generally, to state a
claim for intentional interference with contract, the plaintiff
must show that the defendant intentionally and improperly
interfered with the performance of a contract by “inducing or
otherwise causing” a breach of the contract and that the
plaintiff suffered damages because the contract was not
performed. Restatement (Second) of Torts, § 766. 3 The elements of
3 Plaintiff’s complaint assumes that either the law of New York
or the law of the District of Columbia will govern her tortious
interference claim in this action. Compl., ECF No. 1 ¶ 85
(stating that “[t]he law of New York and the law of the District
of Columbia with respect to a tortious interference claim are
the same in material respects as applied to this claim”). It is
not clear, however, that the laws of those two jurisdictions are
the only two possibilities. In a diversity case, “the applicable
choice of law rules are those of the forum state.” Samra v.
Shaheen Bus. & Inv. Grp., Inc., 355 F. Supp. 2d 483, 496 (D.D.C.
2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941)). The District of Columbia choice-of-law rule
for torts takes into account “(1) the place where the injury
occurred, (2) the place where the conduct causing the injury
occurred, (3) the domicile, residence, nationality, place of
incorporation and place of business of the parties, and (4) the
place where the relationship is centered.” Hartley v.
Dombrowski, 744 F. Supp. 2d 328, 336 (D.D.C. 2010)). Here, the
pertinent jurisdictions are the District of Columbia, where FSS
allegedly procured the 2005 Diplomatic Note; New York, where
Plaintiff originally sued FSS; Texas, where Plaintiff resides;
and South Korea, where FSS is based. In addition, the Cayman
Islands might have some claim, because Peninsula, the entity
17
a claim for prima facie tort under New York law (which is the
claim pleaded in the alternative) are (1) intentional infliction
of harm that is motivated by “disinterested malevolence,” (2)
causing special damages, (3) without excuse or justification,
(4) by conduct that would otherwise be lawful. 4 Katz v.
that entered into the agreement that FSS allegedly interfered
with, was incorporated there; Ohio might also have some claim,
because that is where Plaintiff sued Hankook in the action
underlying the 2005 New York Action against FSS. The parties
have not meaningfully briefed the choice-of-law question.
However, as it turns out, the tort of tortious interference with
contract in each of the relevant jurisdictions—at least the
domestic ones— generally tracks the Restatement’s definition.
See, e.g., Berridge v. McNamee, 66 N.E.3d 1266, 1279 (Ct. App.
Ohio 2016); Palla v. Bio-One, Inc., 424 S.W.3d 722, 724 n.1
(Tex. App. 2014); Futrell v. Dep’t of Labor Fed. Credit Union,
816 A.2d 793, 807 (D.C. 2003); Joan Hansen & Co. v. Everlast
World’s Boxing Headquarters Corp., 296 A.D.2d 103, 111 (N.Y.
App. Div. 2002). In such a situation, the court may apply the
law of the forum. See, e.g., Intelsat USA Sales Corp. v. Juch-
Tech, Inc., 935 F. Supp. 2d 101, 110 (D.D.C. 2013) (“If no
conflict exists, the law of the forum— here, D.C. law—
applies.”).
4 Of the relevant domestic jurisdictions involved in this case,
it appears that only New York recognizes a separate cause of
action for prima facie tort. See, e.g. Taylor v. District of
Columbia, 957 A.2d 45, 50 (D.C. 2008) (noting that the District
of Columbia does not recognize a cause of action for prima facie
tort); Greater S.W. Office Park, Ltd. v. Tex. Commerce Bank,
N.A., 786 S.W.2d 386, 390 (Tex. Ct. App. 1990) (“[W]e have found
no Texas cases recognizing a ‘prima facie tort’ (the infliction
of an intentional harm by an act which is lawful, but results in
special damage . . . .”), superseded by statute on other grounds
as recognized in Resolution Tr. Corp. v. Westbridge Joint
Venture, 815 S.W.2d 327 (Tex. Ct. App. 1991); Costell v. Toledo
Hosp., 527 N.E.2d 858, 859–60 (Ohio 1988) (noting that Ohio does
not recognize a cause of action for prima facie tort); see also
Nix v. Hoke, 139 F. Supp. 2d 125, 132 (D.D.C. 2001)
(“Plaintiff’s first state law tort claim is based on the theory
18
Travelers, 241 F. Supp. 3d 397, 405 (E.D.N.Y. 2017) (quoting
Hall v. City of White Plains, 185 F. Supp. 2d 293, 304 (S.D.N.Y.
2002)).
Ms. Han indicates that FSS assured Mr. Cho and other
employees of Hankook that it would not produce documents in the
Ohio Action or the 2005 New York Action, thus scuttling a
proposed deal by which Mr. Cho would indemnify the plaintiffs
for expenses incurred in the Ohio Action. Compl., ECF No. 1 ¶
53–58. She further alleges that counsel for FSS falsely claimed
in court proceedings in the 2005 New York Action that if FSS
were held in contempt, the head of its New York office would be
jailed. Id. ¶ 65. According to Plaintiff, as a result of that
representation, employees of FSS, along with FSS’ counsel,
visited the South Korean Embassy and reported that claim, thus
fraudulently procuring the 2005 Diplomatic Note. Id. ¶¶ 64–65.
She also complains that in various court proceedings FSS has
continued to claim—according to her, falsely—that it is an organ
of the South Korean government, thus “delay[ing] [and]
hamper[ing] the resolution of her cause of action against
Hankook.” Id., ¶ 80. As a result of FSS’ interference, which she
alleges has caused Hankook to refuse to indemnify her, she
of prima facie tort. Plaintiff concedes that Ohio law does not
recognize such a claim.”).
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claims her business suffered economic and reputational harm and
that she has incurred legal expenses in the amount of
approximately $2 million. Id. ¶¶ 6, 90, 93. From these
allegations she seeks to show: (1) that FSS tortuously
interfered with the contract between Peninsula and Ocean—
specifically with the indemnity provision—by “inducing or
otherwise causing Hankook . . . not to honor its indemnity
obligations or intentionally procuring Hankook[’s] . . . breach
of [the relevant agreement] without justification” or;
alternatively, (2) that FSS maliciously obstruct[ed] her from
procuring proof of her claims against Hankook as part of a
“vendetta . . . aimed at securing revenge” for the fact that she
uncovered “pervasive corruption” at FSS. Id. ¶¶ 88, 92. FSS has
filed a motion to dismiss Plaintiff’s claims under Rules
12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil
Procedure. It does not argue that Plaintiff has failed to plead
the elements of her alleged causes of action. Instead, it
contends that: (1) this action is barred by claim preclusion or
issue preclusion 5 based on the Second Circuit’s decision in
5 Although FSS uses the terms “res judicata” and “collateral
estoppel” in its briefs, that nomenclature can be confusing
insofar as “res judicata” is used both as a general term
incorporating claim preclusion and issue preclusion (or
collateral estoppel) and as a specific term meaning only claim
preclusion. See, e.g., Koch v. Shapiro, 699 F. Supp. 2d 3, 8 n.3
(D.D.C. 2010) (“‘The doctrine of res judicata usually is parsed
into claim preclusion and issue preclusion.’ A generic reference
20
Peninsula III that FSS was immune from suit under the FSIA; (2)
even if Plaintiff’s claims are not precluded by Peninsula III,
FSS is, in fact, immune from suit under the FSIA as an organ of
the South Korean government; (3) this Court lacks personal
jurisdiction over FSS; and (4) Ms. Han’s claims are barred by
the statute of limitations. ECF No. 7-19; ECF No. 13. Magistrate
Judge Harvey has issued a R. & R. recommending that this Court
grant FSS’ motion, see ECF No. 24; to which Ms. Han objects, see
Pl.’s Objs., ECF No. 26. FSS has responded to the objections,
see Mem. of Law in Opp’n to the Obj. of Pl. Karen C. Han
(“Def.’s Resp.”), ECF No. 28; and Ms. Han has replied, see Pl.’s
Reply, ECF No. 29. The motion is ripe and ready for
adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge's Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject or modify the recommended
to ‘res judicata’ typically implies ‘claim preclusion.’”
(quoting NextWave Personal Comm’s Inc. v. FCC, 254 F.3d 130, 143
(D.C. Cir. 2001), and citing 18 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 4402 (2d ed. 2002))).
To avoid any confusion, the terms “claim preclusion” and “issue
preclusion” are used throughout this decision.
21
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”). A district court “must determine de novo
any part of the magistrate judge's disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,
the party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the [R. &
R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d
86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly
erroneous standard, the magistrate judge's decision is entitled
to great deference” and “is clearly erroneous only if on the
entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Buie v. D.C., No.
CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)
(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))
(internal quotation marks omitted).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for objection.” LCvR 72.3(b). “[O]bjections which
merely rehash an argument presented to and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
22
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
B. The FSIA
The Foreign Sovereign Immunity Act (“FSIA”) governs whether
a court in the United States—federal or state—will have juris-
diction over an action against a foreign sovereign. See, e.g.,
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611
(1992). The statute generally provides that “a foreign state
shall be immune from the jurisdiction of the courts of the
United States and of the States.” 28 U.S.C. § 1604. As relevant
here, a “foreign state” includes “an agency or instrumentality
of a foreign state,” which, in turn, is defined as “any entity”
that is (1) “a separate legal person, corporate or otherwise,”
(2) “an organ of a foreign state or political subdivision
thereof,” and (3) “neither a citizen of the United States . . .
nor created under the laws of any third country.” 28 U.S.C. §
1603(a)–(b). However, the statute contains several exceptions to
the general principle of foreign sovereign immunity, so that
even where it has been shown that a litigant is a foreign state
that would otherwise be immune from jurisdiction, it may still
be sued if, for example, the foreign state has waived immunity,
the action is based on commercial activity conducted by the
foreign state in the United States, or the claim seeks damages
for personal injury or death caused by acts such as torture,
23
extrajudicial killing, or hostage-taking from a foreign state
designated as a state sponsor of terrorism. 28 U.S.C. §§
1605(a)(1)–(2), 1605A; see also Phoenix Consulting Inc. v.
Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (“Under the
FSIA a foreign state is immune from the jurisdiction of both the
federal and the state courts, except as provided by
international agreements, by nine specifically enumerated
exceptions, and by certain other exceptions relating to
counterclaims in actions brought by the foreign state itself.”
(internal citations omitted)). To “preserve the full scope” of a
foreign state’s immunity, “the district court must make the
‘critical preliminary determination’ of its own jurisdiction as
early in the litigation as possible; to defer the question is to
‘frustrate the significance and benefit of entitlement to
immunity from suit.’” Phoenix Consulting, 216 F.3d at 39(quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438, 449 (D.C. Cir. 1990)).
C. Rule 12(b)(2) Motion to Dismiss
Under Rule 12(b)(2), a defendant may move to dismiss an
action when the court lacks personal jurisdiction. Fed. R. Civ.
P. 12(b)(2). On such a motion, the plaintiff bears the burden of
establishing a factual basis for the exercise of personal
jurisdiction over each defendant. Crane v. N.Y. Zoological
Soc’y., 894 F.2d 454, 456 (D.C. Cir. 1990). To meet this burden,
24
the plaintiff must allege specific facts that connect each
defendant with the forum. Second Amendment Found. v. U.S.
Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). The
plaintiff cannot rely merely on conclusory allegations.
Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 42
(D.D.C. 2003). The court may consider, receive, and weigh
affidavits and other relevant materials outside of the pleadings
to assist it in determining the pertinent jurisdictional facts.
U.S. v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C.
2000).
A “court’s exercise of personal jurisdiction over
nonresidents must satisfy both the Due Process Clause and D.C.’s
long-arm statute.” Cockrum v. Donald J. Trump for President,
Inc., 319 F. Supp. 3d 158, 173 (D.D.C. 2018) (citation omitted).
To satisfy due process requirements, “a plaintiff must
demonstrate that there are ‘minimum contacts between the
defendant and the forum establishing that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.’” Swecker v. Midland Power Coop., 253 F.
Supp. 3d 274, 278 (D.D.C. 2017) (citation omitted). The court
may exercise either general or specific personal jurisdiction.
The Urban Institute v. Fincon Services, 681 F. Supp. 2d 41, 44
(D.D.C. 2010).
25
“A court with general jurisdiction may hear any claim
against that defendant.” Brystol-Myers Squibb Co. v. Superior
Court of California, San Francisco Cty., 137 S. Ct. 1773, 1780
(2017). For an individual, the “paradigm forum” for the exercise
of general jurisdiction is the individual’s domicile; for a
corporation, it is an equivalent place, one in which the
corporation is fairly regarded as at home. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S. Ct. 2846(2011).
In contrast, “[s]pecific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the
very controversy that establishes jurisdiction.” Molock v. Whole
Foods Mkt., Inc., 297 F. Supp. 3d 114, 122 (D.D.C. 2018)
(quoting Goodyear, 562 U.S. at 919). “[S]pecific jurisdiction
exists if a claim is related to or arises out of the non-
resident defendant’s contacts with the forum.” Molock, 297 F.
Supp. 3d at 122. A plaintiff must demonstrate “that specific
jurisdiction comports with the forums long-arm statute, D.C.
Code § 13-423(a), and does not violate due process.” Id. (citing
FC Inv. Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094-65
(D.C. Cir. 2008)).
IV. Analysis
FSS argues that this case should be dismissed because: (1)
claim preclusion or issue preclusion bars this action; (2) FSS
26
is entitled to foreign sovereign immunity as an organ of the
South Korean government and the Court therefore lacks subject
matter jurisdiction; (3) FSS’ activities in D.C. are
insufficient for it to be subject to personal jurisdiction; and
(4) Ms. Han’s causes of action are time-barred. See Def.’s MTD,
ECF No. 7-19 at 2.
Magistrate Judge Harvey recommends finding that (1) res
judicata does not apply, see R. & R., ECF No. 24 at 21-22, 31;
(2) FSS is immune from suit pursuant to the FSIA, see id. at 44;
(3) the Court lacks general and personal jurisdiction over FSS
because Ms. Han can neither show that she suffered any
cognizable injury nor that the alleged injury occurred in D.C.,
see id. at 54-55; and (4) Ms. Han’s claims are untimely and are
barred by the statute of limitations of the relevant law, i.e.,
that of D.C., id. at 60-62.
Ms. Han raises several objections to Magistrate Judge
Harvey’s R. & R., arguing that (1) the Court should provide her
the opportunity for discovery and to submit additional evidence
before ruling on the 12(b)(1) motion to dismiss, see Pl.’s
Objs., ECF No. 26 at 17; (2) the Court has specific
jurisdiction, see id. at 27; and (3) the allegations in the
Complaint meet the requisite elements of continuing violations
doctrine such that Ms. Han’s claims are not time-barred, see id.
at 34. Recognizing that there is no mandatory sequencing of non-
27
merits issues, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584, 119 S. Ct. 1563 (1999); the Court begins by addressing the
issue of personal jurisdiction. After finding that it lacks
personal jurisdiction, the Court does not reach any further
objections. The Court also does not address the parts of
Magistrate Judge Harvey’s R. & R. to which no objection is
raised.
A. The Court Lacks Personal Jurisdiction Over FSS
For an individual, the “paradigm forum” for the exercise of
general jurisdiction is the individual’s domicile; for a
corporation, it is where the corporation is incorporated or has
its primary place of business. Goodyear, 564 U.S. at 924.
“Residence in fact, coupled with the purpose to make the place
of residence one’s home, are the essential elements of
domicile.” Texas v. Florida, 306 U.S. 398, 424 (1939); see also
Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir. 1984). On
the other hand, to establish specific personal jurisdiction, the
defendant must have “minimum contacts” with D.C. IMAPizza, LLC
v. At Pizza Ltd., 334 F. Supp. 3d 95, 113 (D.D.C. 2018).
“Specific jurisdiction exists if a claim is related to or arises
out of the non-resident defendant’s contacts with the forum.”
Molock, 297 F. Supp. 3d at 122. A plaintiff must demonstrate
“that specific jurisdiction comports with the forums long-arm
28
statute, D.C. Code § 13-423(a), and does not violate due
process.” Id. (citation omitted).
When responding to a motion to dismiss based on personal
jurisdiction, without an evidentiary hearing, a plaintiff need
only make a prima facie showing that the court has personal
jurisdiction over the defendant. Edmond v. U.S. Postal Service
General Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991). To meet
this burden, the plaintiff must allege specific facts that
connect each defendant with the forum. Second Amendment Found.,
274 F.3d at 524. Any “factual discrepancies appearing in the
record must be resolved in favor of the plaintiff.” Crane, 894
F.2d at 456 (citing Reuber v. United States, 750 F.2d 1039, 1052
(D.C. Cir. 1984)).
FSS argues that this Court lacks personal jurisdiction
because “FSS is a ROK entity that has at all times maintained
its headquarters in Seoul, and the conduct about which Ms. Han
complains [inducing Hankook to breach the Indemnity Agreement]
did not occur in D.C.” Def.’s MTD, ECF No. 7-19 at 28. FSS
admits that the South Korean Embassy’s issuance of a diplomatic
note to the U.S. State Department in September 2005, regarding
FSS’ status as a government organ, could be seen as a wrong
committed within D.C., but argues that this act is not
jurisdiction conferring because: (1) a court of the United
States cannot inquire into the internal operations of a foreign
29
government; and (2) there is no liability for tortious
interference with contract caused by a citizen’s petitioning the
government. Id. at 29.
Ms. Han responds that this Court does have specific
jurisdiction because the primary harm Ms. Han complains about,
FSS’ allegedly false representation to the South Korean Embassy
that it was a government organ of South Korea, happened in D.C.
Pl.’s Opp’n, ECF No. 10 at 35. Ms. Han contends that this false
representation, which was the basis for the South Korean
Embassy’s issuance of a diplomatic note to the U.S. State
Department, is jurisdiction conferring because: (1) the act of
state doctrine is inapplicable since the conduct at issue took
place in D.C., not South Korea, it is the acts of FSS rather
than the South Korean government that she is challenging, and
an application of the doctrine is foreclosed by the fraudulent
petition; and (2) FSS’ failure to state a right that is superior
to her right to maintain an action for interference means that
there is liability for tortious interference. Id. at 36-37.
Magistrate Judge Harvey finds that there is “no indication
that this Court may exercise general personal jurisdiction over
FSS.” R. & R., ECF No. 24 at 47. As to specific jurisdiction,
Magistrate Judge Harvey finds that FSS’ reliance on the act of
state doctrine is misplaced, albeit not for the reasons that Ms.
Han states, but because the doctrine goes to the merits and is
30
“not a jurisdictional defense.” R. & R., ECF No. 24 at 51; see
also Marra v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000);
Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of
Venezuela, 971 F. Supp. 2d 49, 62 (D.D.C. 2013) (“The act of
state doctrine goes to the merits, and is not a jurisdictional
defense.”); cf. World Wide Minerals, Ltd. v. Republic of
Kazakhstan, 296 F.3d 1154, 1164 (D.C. Cir. 2002) (noting that
the court would normally examine the question of personal
jurisdiction before addressing the act of state doctrine).
Magistrate Judge Harvey adds that even if the act of state
doctrine were applicable here, “the validity of any act of the
South Korean government is simply irrelevant to Plaintiff’s
claims” because the claims do not require the Court to determine
the validity of the 2005 Diplomatic Note. R. & R., ECF No. 24 at
52. Instead, the claims focus on FSS’ alleged misrepresentations
to the South Korean Embassy. Id.Nonetheless, Magistrate Judge Harvey finds that there is no
personal jurisdiction because Ms. Han “cannot show that she has
suffered any cognizable injury from the 2005 Diplomatic Note.”
Id. at 54. Magistrate Judge Harvey’s reasoning is twofold.
First, Magistrate Judge Harvey points out that “Plaintiff’s
theory appears to be that FSS’ conduct in procuring that
document injured her by preventing her from receiving discovery
that she sought in connection with the Ohio Action against
31
Hankook, which led to the dismissal of that action on summary
judgment because she did not have the evidence to prove her
claims.” R. & R., ECF No. 24 at 54. However, the Sixth Circuit
reversed the lower court’s decision, holding that the case
should have been dismissed for lack of diversity jurisdiction.
See Peninsula IV, 509 F.3d at 273; see also Peninsula V, 2008 WL
302370, at *3 (dismissing the Ohio Action on remand from the
Sixth Circuit). Therefore, Magistrate Judge Harvey reasons that
Ms. Han did not suffer an injury from FSS’ procurement of the
Diplomatic Note in D.C. since it was the lack of diversity
jurisdiction that led to the failure of the Ohio Action.
R. & R., ECF No. 24 at 54. Second, Magistrate Judge Harvey
concludes that Ms. Han’s alleged injury, if any, did not occur
in D.C. because “[i]t is simply not rational for a court to find
that a plaintiff suffered an injury in a jurisdiction to which
she had no connection at the time of the allegedly injurious
act.” Id. at 57.
Ms. Han objects to each of these conclusions, and the Court
considers her objections in turn. First, Ms. Han argues that
Magistrate Judge Harvey’s logic is flawed because “viewing the
allegations in light favorable to Plaintiff, in the absence of
the Diplomatic Note, Plaintiff must have obtained evidence from
FSS and prevailed in the Ohio action, or the Ohio Action might
have been settled.” Pl.’s Objs., ECF No. 26 at 28. She adds that
32
SDNY would have awarded her with monetary relief if the Court
had granted Plaintiff’s contempt motion against FSS, and she
therefore suffered monetary injury from the issuance of the
Diplomatic Note. Id. She also asserts that she would have
refiled the Ohio action with a state court after dismissal for
lack of diversity jurisdiction if she had procured evidence from
FSS in 2005, such that “dismissal of the Ohio action based on
the jurisdictional defect caused Plaintiff no material injury.”
Id. Since Ms. Han’s objection “specifically identif[ies] the
portions of the proposed findings and recommendations to which
objection is made and the basis for objection,” Local R. Civ. P.
72.3(b); the Court reviews her objection de novo. The Court
concludes that Ms. Han misunderstands the relevant legal
standards.
While the Court is required to view the allegations in the
light most favorable to Plaintiff, that does not extend to using
a hypothetical victory to find injury. The Court cannot assume
that Ms. Han “must have obtained evidence from FSS,” or that
SDNY would have awarded her with monetary relief, Pl.’s Objs.,
ECF No. 26 at 28; when the record clearly shows that a lack of
diversity jurisdiction is what led to the dismissal of the Ohio
action, see Peninsula IV, 509 F.3d at 273 (finding a lack of
diversity jurisdiction); Peninsula V, 2008 WL 302370, at *3
(dismissing the Ohio Action on remand from the Sixth Circuit).
33
The relevant legal question for the Court is not whether
“dismissal of the Ohio action based on the jurisdictional defect
caused Plaintiff no material injury,” Pl.’s Objs., ECF No. 26 at
28; but rather whether FSS’ procurement of the Diplomatic Note
caused Ms. Han an injury. Ms. Han is unable to establish such an
injury absent excessive conjecture far removed from the
boundaries of this Court’s purview.
Second, Ms. Han argues that Magistrate Judge Harvey
erroneously concludes that the injury did not take place in D.C.
See Pl.’s Objs., ECF No. 26 at 30. Since Ms. Han reiterates her
arguments from her opposition brief, compare Pl.’s Objs., ECF
No. 26 at 28 with Pl.’s Opp’n, ECF No. 10 at 35; the Court
reviews Magistrate Judge Harvey’s R. & R. only for clear error,
see Houlahan, 979 F. Supp. 2d at 88. The Court finds no error
here.
As Magistrate Judge Harvey observed, recognizing the proper
legal standard that “the site of the injury is the location of
the ‘original events that caused the alleged injury,’” R. & R.,
ECF No. 24 at 55 (quoting Nu Image, Inc. v. Does 1–23,322, 799
F. Supp. 2d 34, 39 (D.D.C. 2011)); the site of Ms. Han’s injury
may well be New York, where her motion for contempt was denied,
or perhaps Ohio, where her suit against Hankook was dismissed,
or even “the Cayman Islands or Texas—under the theory that a
plaintiff that claims damages from financial losses due to a
34
business-related tort ‘suffers such losses at its business
location,’” but it is certainly not D.C. Id. at 58 (quoting
Geier v. Conway, Homer & Chin-Caplan, P.C., 983 F. Supp. 2d 22,
36 (D.D.C. 2013)). The Court concludes that it lacks personal
jurisdiction over FSS, both because Ms. Han has not established
an injury, and because even if such an injury did exist, it
would not be in D.C.
Absent personal jurisdiction, the Court need not consider
FSS’ remaining arguments as to subject matter jurisdiction or
the statute of limitations.
V. Conclusion and Order
For the foregoing reasons, the Court
ADOPTS Magistrate Judge Harvey’s R. & R., see ECF No. 24,
as to the portions on personal jurisdiction. The Court does not
find it necessary to reach any further arguments.
Accordingly, it is HEREBY ORDERED that
Defendants’ Motion to Dismiss is GRANTED, see ECF No. 7-19.
This is a final, appealable Order. See Fed. R. App. P.
4(a).
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 5, 2022
35