ABULKHAIR v. THE FEDERAL BUREAU OF INVESTIGATION et al

Filing 39

MEMORANDUM. Signed by Judge Esther Salas on 2/618. (cm, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ASSEM A. ABULKHAIR,
Plaintiff,
v.
THE FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

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Civil Action No. 14-5677 (ES) (JAD)
MEMORANDUM

SALAS, DISTRICT JUDGE
Pending before the Court are Defendants’1 motion to dismiss pro se Plaintiff Assem A.
Abulkhair’s Amended Complaint (D.E. No. 33) and Plaintiff’s cross-motion “to enter default and
compel defendants to cease and desist their unlawful surveillance forthwith” (D.E. No. 34). The
Court has considered the parties’ submissions in support of and in opposition to the pending
motions and decides these matters without oral argument. See Fed. R. Civ. P. 78(b). For the
following reasons, Defendants’ motion is GRANTED and Plaintiff’s cross-motion is DENIED.
Plaintiff shall have thirty days to amend his pleading to cure the deficiencies identified below.

1

The moving defendants are the Federal Bureau of Investigation; former FBI Director Robert S. Mueller, III;
former FBI Director James B. Comey; former Special Agent in Charge of the FBI’s Newark Division Aaron T. Ford;
and the United States of America. (D.E. No. 33-1 at 1).
Plaintiff’s Amended Complaint also names the following Defendants: “All Assistant Agents in Charge” in
their official capacities; “All FBI’s Supervisors, Officers, Employees, Agents” in their official capacities; “All FBI’s
Informers and Informants” in their official capacities; and “All Fictitious Persons John Does One Through Twenty”
in their official capacities “as FBI’s employees.” (See D.E. No. 8, Am. Compl.).

I.

Relevant Background
The parties are familiar with the facts and procedural posture of this case, so the Court will

be brief. 2 Plaintiff alleges that, since the events of September 11, 2001 to date, Defendants have
engaged “in patterns of discriminatory and abusive secret surveillance” of Plaintiff because he is
Muslim. (See D.E. No. 8, Am. Compl. ¶¶ 26-29). In particular, Plaintiff alleges that the FBI is
carrying out this surveillance “using a full force of an uncountable mirage of its fleet marked and
unmarked vehicles throughout its decade and a half of its unlawful surveillance operation.” (Id.
¶ 68).

Plaintiff’s Amended Complaint recounts multiple incidents of alleged unlawful

surveillance. (See, e.g., id. ¶¶ 41, 45, 56). The following passage is illustrative:
On many occasions, the Plaintiff leaves his home in the very early morning, just
shortly after five o’clock, he always observes the FBI’s agents waiting for him.
This is an obvious indication that the Defendant FBI aside from (wiretapping)
Plaintiff’s personal and private phone, is likewise infiltrating his residency and
bugging his home by entering in, during his absence, and planting electronic
listening devices in his personal and private apartment without a warrant or a court
order or even a probable cause to conduct such an unreasonable search and invasion
of privacy.
(Id. ¶ 40). Plaintiff’s Amended Complaint states twenty-three causes of action. (See id. ¶¶ 74155).
II.

Legal Standard
A. Rule 12(b)(1) Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), a court must grant a motion to dismiss if

it lacks subject matter jurisdiction. See In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012).3 A party bringing a motion under Rule 12(b)(1)

The Court must accept Plaintiff’s factual allegations as true for purposes of resolving Defendants’ motion to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012) (“As
such, we set out facts as they appear in the Complaint and its exhibits.”).
2

3

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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may assert either a “facial or factual challenge to the court’s subject matter jurisdiction.” See
Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
In a facial attack, the moving party “challenges subject matter jurisdiction without
disputing the facts alleged in the complaint,” and the Court must “consider the allegations of the
complaint as true.” See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). Here, Defendant
United States of America brings a facial challenge to the Court’s subject matter jurisdiction for all
of Plaintiff’s claims “for which there has not been an express waiver of the Government’s
sovereign immunity,” including “Plaintiff’s constitutional claims,” “conspiracy claims,” and
“Plaintiff’s New Jersey Law Against Discrimination claims.” (D.E. No. 33-1 (“Def. Mov. Br.”)
at 8). The individually named Defendants bring facial challenges to “Plaintiff’s New Jersey state
law claims because they have personal immunity from suit on those claims under the Westfall
Act.” (Id.) (citing 28 U.S.C. § 2679(b)(1)).
In a factual attack, on the other hand, the moving party “attacks the factual allegations
underlying the complaint’s assertion of jurisdiction, either through the filing of an answer or
otherwise presenting competing facts, and [the court may] weigh and consider evidence outside
the pleadings.” See Davis, 824 F.3d at 346 (cleaned up). Here, Defendant United States brings a
factual challenge to the Court’s subject matter jurisdiction for “Plaintiff’s causes of action based
on negligence, negligent supervision and negligent infliction of emotional distress,” as Defendants
contend that Plaintiff “failed to satisfy the presentment requirement of the Federal Tort Claims Act
(“FTCA”). (Def. Mov. Br. at 8) (citing 28 U.S.C. §§ 1346(b), 2401(b), 2671-80).
B. Rule 12(b)(6) Standard of Review
To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678.
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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be accepted
as true, and the plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required
to accept as true “legal conclusions.” Iqbal, 556 U.S. at 678. And “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d
Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached to or
submitted with the complaint, and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, and items appearing in the record
of the case.”).
III.

Analysis
A. Plaintiff’s Bivens claims against the United States, the FBI, and all individual
defendants in their official capacities are dismissed for lack of subject matter
jurisdiction.
Defendants argue that Plaintiff’s Bivens claims against the United States, the FBI, or any

of the individually named defendants in their official capacities should be dismissed for lack of
subject matter jurisdiction. (Def. Mov. Br. at 10). The Court agrees.
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“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). This immunity applies to Bivens actions.
See id. at 486 (holding that federal agencies are not subject to Bivens claims); Albert v. Yost, 431
F. App’x 76, 81 (3d Cir. 2011) (“A Bivens claim can be maintained only against individual federal
officers, not against a federal entity.”); see also Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008)
(dismissing Bivens claims against individual defendants in their official capacities because “[a]n
action against government officials in their official capacities constitutes an action against the
United States[,] and Bivens claims against the United States are barred by sovereign immunity”).
Plaintiff does not address this argument.
Accordingly, to the extent Plaintiff alleges Bivens claims against the United States, the FBI,
or any of the individually named defendants in their official capacities, those claims are dismissed
with prejudice for lack of subject matter jurisdiction.
B. Plaintiff’s negligence claims are dismissed for failure to meet the FTCA’s
administrative-exhaustion requirement.
Defendants argue that Plaintiff’s failure to present his negligence claims to the FBI, as
required under the FTCA, warrants dismissal of those claims. (Def. Mov. Br. at 12-15). For the
following reasons, the Court agrees.
The FTCA waives the federal government’s sovereign immunity “for tort claims arising
from the negligence of its employees acti[ng] within the scope of their employment.” Bruno v.
U.S. Postal Serv., 264 F. App’x 248, 248 (3d Cir. 2008). But “an initial presentation of the claim
to the appropriate federal agency and a final denial by that agency are non-waivable jurisdictional
prerequisites for suits brought under the FTCA.” Id. Because the FTCA constitutes a waiver of
sovereign immunity, its “established procedures have been strictly construed.” White-Squire v.
U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
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“Although an administrative claim need not propound every possible theory of liability” to
satisfy the FTCA’s presentment requirement, “a plaintiff cannot present one claim to the agency
and then maintain suit on the basis of a different set of facts.” Roma v. United States, 344 F.3d
352, 362 (3d Cir. 2003). The Third Circuit has held that notice in the form of an administrative
claim satisfies the FTCA’s presentment requirement “if the claimant (1) gives the agency written
notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on
his or her claim.” Id.
Here, Plaintiff’s administrative claim states in relevant part:
Immediately after September 11th, 2001 event and without any proper notice, the
Federal Bureau of Investigation, its agencies and its employees named within this
Notice, probably coordinated with another or multiple federal agencies, started and
continued to this very date to launch its own campaign of spying on the Claimant
by having two idiotic FBI agents, waiting in an FBI. GOV marked vehicle and other
unmarked vehicles bearing regular New Jersey license plate numbers, watching
him leaving and coming to his residence in the absence of any authority to authorize
such an invasion of privacy, spying and making him a criminal suspect among his
peaceful community without any justification, except that the Claimant belongs to
an Islamic faith.
(D.E. No. 33-2, Ex. A). In his opposition brief, Plaintiff does not appear to argue that his
administrative claim gave sufficient notice of his negligence claims. (See generally D.E. No. 34
(“Pl. Opp. Br.”) at 4-6).4 Rather, Plaintiff argues that “any dispute or argument with respect to the
FTCA Notice’s deficiency or jurisdiction has become irrelevant and obviated” in light of “the
United States[’s] fail[ure] to file its answer to the [Amended] Complaint as it defaulted here.” (Id.
at 4).
The Court has already ruled on Plaintiff’s incorrect contention that Defendants did not
timely respond to the Amended Complaint. (See D.E. Nos. 28 & 37); see also infra Section III.E.

Plaintiff’s opposition brief does not contain page numbers, so the Court will use the ECF-generated page
numbers appearing in the header of Plaintiff’s brief to refer to pages therein.
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Accordingly, the Court rejects Plaintiff’s argument as without merit. In any event, the Court agrees
with Defendants that Plaintiff’s administrative claim does not sufficiently advise the FBI that
Plaintiff’s injuries were caused by negligence. See, e.g., Barnes v. United States, 707 F. App’x
512, 516 (10th Cir. 2017) (affirming district court’s dismissal of plaintiff’s negligence claims
based on plaintiff’s failure to give sufficient notice under the FTCA); Kikumura v. Osagie, 461
F.3d 1269, 1302 (10th Cir. 2006), overruled on other grounds by Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) (same); Edwards v. United States, 57 F. Supp. 3d 938, 948-50 (D. Minn. 2014)
(dismissing negligence claims for failure to exhaust under the FTCA).
The Court therefore dismisses Plaintiff’s negligence claims with prejudice.
C. Plaintiff’s remaining claims are dismissed for failure to state a claim.
Defendants argue, among other things, that Plaintiff’s Amended Complaint should be
dismissed because Plaintiff fails “to allege any facts showing each defendant’s personal
involvement in each of the alleged wrongs as specifically instructed in the Court’s September 18,
2014 Order.” (Def. Mov. Br. at 19) (citing D.E. No. 2). In particular, Defendants point out that
“[a]ll twenty-three (23) causes of action fail to specify which particular defendants are liable for
which particular cause of action and why.” (Id. at 18-19). The Court agrees with Defendants and
dismisses Plaintiff’s remaining claims without prejudice so that Plaintiff may amend his pleading
to cure these deficiencies.
“In general, a Complaint must indicate which claims are being asserted against which
defendants.” Smalls v. Riviera Towers Corp., No. 12-6312, 2013 WL 4048008, at *2 (D.N.J. Aug.
9, 2013). “Courts in this district have held that pleadings that fail to explain who has committed
what actions are impermissibly vague and fail to comport with the pleading standards set out by
the Supreme Court in Twombly.” Transp. Ins. Co. v. Am. Harvest Baking Co., No. 15-0663, 2015
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WL 9049273, at *8 (D.N.J. Dec. 16, 2015) (collecting cases). Indeed, “alleging that Defendants
undertook certain illegal acts—without more—injects an inherently speculative nature into the
pleadings, forcing both the Defendants and the Court to guess who did what to whom when.”
Russo v. City of Paterson, No. 16-5665, 2017 WL 2312360, at *3 (D.N.J. May 25, 2017). “And
such speculation is anathema to contemporary pleading standards.” Id.
As an initial matter, the Court notes that Plaintiff does not address this argument. But more
to the point, Plaintiff “cannot merely state that ‘Defendants did x’—he must specifically allege
which Defendants engaged in what wrongful conduct.” See id. (emphasis in original) (alteration
omitted). Plaintiff’s Amended Complaint “fails to explain who committed what actions and
impermissibly relies on pleaded elements of a cause of action, supported by conclusory
statements.” See id. Like the defendants in Russo, “Defendants in this case occupied different
positions and presumably had distinct roles in the alleged misconduct.” See id. But it is unclear
from the Amended Complaint “which Defendants engaged in what wrongful conduct to support”
Plaintiff’s claims. See id.
Accordingly, the Court dismisses Plaintiff’s remaining claims without prejudice. Plaintiff
may amend his pleading to cure these deficiencies.5
D. Plaintiff’s claims against Defendant Ford in his individual capacity are dismissed.
Finally, Defendants argue that the Court does not have personal jurisdiction over Ford
because Plaintiff failed to timely serve him with process. (Def. Mov. Br. at 27). For the following
reasons, the Court agrees.

The Court recognizes Defendants’ argument that Plaintiff’s conspiracy claims are “so attenuated and
insubstantial” that the Court does not have subject matter jurisdiction over them. (See Def. Mov. Br. at 11). Because
the Court is permitting Plaintiff to amend his pleading, the Court declines to address this argument now. Defendants
may raise this argument on any future dispositive motion.
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At the start of this litigation, Plaintiff requested that the Court order the U.S. Marshal
Service to serve Plaintiff’s Amended Complaint on Defendants. (D.E. No. 13). The Court granted
Plaintiff’s request. (D.E. No. 14). Thereafter, Plaintiff instructed the U.S. Marshal Service to
serve Ford at the FBI Newark Division Office. (D.E. No. 18). Plaintiff’s Summons for Ford
indicates that the U.S. Marshal Service attempted service on March 6, 2017. (Id.). Defendants
argue that service was not effective as to Ford in his individual capacity because the FBI did not
have authorization to accept service on his behalf, as Ford retired from the FBI in 2015. (Def.
Mov. Br. at 29).
Nevertheless, in Defendants’ May 8, 2017 letter requesting an extension of time to respond
to the Amended Complaint, Defendants stated their position that Ford had not been properly served
and advised Plaintiff that the FBI Newark Division “has since been authorized by Mr. Ford to
accept service of process on his behalf.” (D.E. No. 25 at 2 n.1). Defendants argue that,
notwithstanding this notice to Plaintiff, “there is no evidence that . . . Plaintiff took steps to have
Mr. Ford served with process after that date although service still could have been completed
timely.” (Def. Mov. Br. at 29). Defendants contend that, because Plaintiff needed to serve Ford
(and the other individual defendants) within ninety days after the complaint was filed, see Fed. R.
Civ. P. 4(m), the absolute latest Plaintiff could have served Ford was May 23, 2017, i.e., ninety
days after the Court granted Plaintiff’s request to have the U.S. Marshal Service complete service
of process. (Id.).
In response, Plaintiff seems to misinterpret Defendants’ statement that the FBI Newark
Division “has since been authorized by Mr. Ford to accept service of process on his behalf.” (D.E.
No. 25 at 2 n.1). Plaintiff seems to think Defendants meant the FBI Newark Division has been
authorized to accept service on Ford’s behalf since Ford’s retirement in 2015. (See Pl. Opp. Br.
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at 7).6 But that is not how the Court interprets Defendants’ statement, which is reproduced in full
below:
We note that although a Return of Service document was filed indicating that
service of process was completed on Aaron T. Ford on March 6, 2017, see Dkt. No.
18, that service was only effective as to the FBI. Mr. Ford retired from the FBI in
early 2015. While the FBI Newark Division has since been authorized by Mr. Ford
to accept service of process on his behalf, service has not been completed on Mr.
Ford in his individual capacity.
(D.E. No. 25 at 2 n.1). Plaintiff appears to concede that Ford retired from the FBI in 2015 (see Pl.
Opp. Br. at 7) and has not come forward with affidavits or other evidence showing that jurisdiction
is proper over Ford. See Dayhoff v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996) (“[O]nce a
defendant has raised a jurisdictional defense, a plaintiff bears the burden of proving by affidavits
or other competent evidence that jurisdiction is proper.”).
Accordingly, Plaintiff’s claims against Ford are dismissed without prejudice.
E. Plaintiff’s cross-motion for entry of default is denied because Defendants timely
answered Plaintiff’s Amended Complaint.
Plaintiff appears to be under the mistaken impression that Defendants did not timely answer
the Amended Complaint. Although it is true that Defendants sought an extension of time to
respond to the Amended Complaint one business day late (see D.E. No. 25), the Court already

For example, Plaintiff calls Defendants’ arguments regarding service “an outright ‘lie’” that “totally
contradicts their initial pleading requesting the extension of time.” (Pl. Opp. Br. at 7). Plaintiff then states:
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There, they admitted in their footnote as pointed out in Plaintiff’s May 10, 2017 opposition
[doc. 29], “[T]he FBI Newark Division [h]as [since] been authorize[d] by Mr. Ford [t]o accept
[service] of process on [h]is behalf.” Whether the English language is the first or the second
language to any speaker regardless of his culture or background, using word “since” by the
graduated “professional liar” meant (only) “since” Defendant Ford’s retirement was of 2015. No
other interpretation could possibly leads to believe otherwise. To make mockery of his own corrupt
and rotten judicial system to increase the mud muddiness and wetness, the “professional liar”
idiotically and moronically contradicted his first pleading by modifying his misleading fabricated
fact to argue in another footnote [M. 20, fn. 4] that “Mr. Ford has [now] authorized to accept service
on his behalf.”
(Id. at 7-8) (brackets, quotation marks, and alterations in original).

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dealt with this issue on more than one occasion. In a May 10, 2017 Order, the Hon. Joseph A.
Dickson, U.S.M.J., found good cause to extend Defendants’ time to answer or otherwise respond
to Plaintiff’s Amended Complaint. (D.E. No. 27). That same day, Plaintiff filed a request (i) to
strike Defendants’ letter request for an extension of time to answer; and (ii) for entry of default
against Defendants. (D.E. No. 26). On May 11, 2017, the Court denied Plaintiff’s request as moot
in light of Magistrate Judge Dickson’s May 10, 2017 Order. (D.E. No. 28).
Plaintiff then appealed to this Court Magistrate Judge Dickson’s May 10, 2017 Order and
the Court’s May 11, 2017 Order. (D.E. No. 30). While that appeal was pending, Defendants
timely moved to dismiss. (D.E. No. 33). The Court thereafter denied Plaintiff’s appeal. (D.E.
No. 37). Thus, Plaintiff has not advanced a proper basis for obtaining default against Defendants.7
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. An appropriate

Order accompanies this Memorandum.
s/Esther Salas
Esther Salas, U.S.D.J.

Plaintiff also cross-moves “to compel Defendants to cease and desist their unlawful surveillance forthwith.”
(See D.E. No. 34). The Court declines to reach this issue at this time given the procedural posture of this case.
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