Galustian v. Peter, et al
Filing
122
MEMORANDUM OPINION AND ORDER that the court DENIES as MOOT Galustian's Motion for Review of Certification. The court GRANTS the United States' Motion to Dismiss and, accordingly, GRANTS Peter's Second Motion to Drop a Party. The court GRANTS Peter's Second Motion to Dismiss on the grounds of forum non conveniens. This action is DISMISSED without prejudice to be properly filed in Iraq. Signed by District Judge Rebecca Beach Smith and filed on 8/8/11. (mwin, )
FiLED
UNITED
STATES
DISTRICT
EASTERN DISTRICT
COURT
OF VIRGINIA
AUG - 8 2011
Norfolk Division
RICHARD
JOHN CHARLES
CLEHK. U.S DISTRICT COUKT
GALUSTIAN,
NO".::o; k va
Plaintiff,
V.
ACTION NO.
LAWRENCE
T.
2:08cv59
PETER,
and
UNITED
STATES
OF AMERICA,
Defendants.
MEMORANDUM OPINION AND
This
motions
matter
comes
from each of
before
the
the parties.
ORDER
court
on
On May 12,
United States of America {"United States")
several
2011,
outstanding
defendant the
filed a Motion to Dismiss
for lack of subject matter jurisdiction, claiming that the plaintiff,
Richard
John
Charles
administrative
Motion,
Amended
claim
as
("Galustian"),
required
by
28
failed
U.S.C.
§
to
2675.
file
In
an
that
the United States also moved to dismiss the Verified First
Complaint
alternative
exceptions
(the
grounds
to
the
"Amended
that
Federal
sovereign immunity.1
{"Peter")
Galustian
Complaint")
Galustian's
Tort
On June 13,
Claims
against
claims
Act's
fall
("FTCA")
it
on
under
waiver
the
two
of
2011, defendant Lawrence T. Peter
filed a Second Motion to Drop Party and Dismiss Plaintiff's
1
Specifically, the United States argues that Galustian's claims
are barred by the intentional tort exception of 28 U.S.C. § 2680(h)
and the foreign country exception of 28 U.S.C. § 2680(k).
Amended Complaint.
Peter asks
that
the court dismiss
the United
States from the litigation, and then dismiss the action against him
on the grounds of forum non conveniens or,
in the alternative,
failure to state a claim upon which relief can be granted.
for
On June
16, 2011, Galustian filed a Motion for Review of Certification, Leave
to Conduct Discovery and Evidentiary Hearing on Col. John J. Holly's
("Holly") Scope of Employment, and to Reinstate Holly as a Defendant
("Motion
for Review of
Certification") .
These
matters
have
been
fully briefed and are all now ripe for review.
I.
The
court's
relevant
June
18,
Factual
factual
2008,
and Procedural
history
is
History
set
forth
Memorandum Opinion,
the
in detail
in
the
court's August
11,
2008, Clarification Order, the court's December 12, 2008, Memorandum
Dismissal
Order,
and
the
court's
November
Opinion, and it need not be repeated herein.
561 F.
Supp.
2d 559
(E.D.
Va.
2008)
Peter,
590 F.
Galustian v.
Galustian
v.
Supp.
Peter,
be
repeated
750
Likewise,
prior to November 9,
not
804
(E.D.
591 F.3d 724
Peter,
("Galustian V").
2d
2010,
herein.
F.
2010,
2008)
(4th Cir.
relevant,
Galustian v.
("Galustian II") ; Galustian
Va.
Supp.
Memorandum
See Galustian v. Peter,
("Galustian I");
Peter, 570 F. Supp. 2d 836 (E.D. Va. 2008)
v.
9,
("Galustian III");
2010)
2d
670
("Galustian IV");
(E.D.
Va.
2010)
detailed procedural history
is set forth in those opinions and need
In
brief
review,
the
court
previously
dismissed this action on two occasions,
basis of
forum non conveniens.
Circuit reversed and remanded,
without prejudice,
In the first instance,
this court's dismissal on the grounds of
Galustian IV,
lacked personal
should
be
jurisdiction
dismissed
conveniens.
as
to
over
Peter
See Galustian V,
750
F.
the
Supp.
after finding that
and
that
grounds
2d at
only
determine
whether
Iraq
is
available
678
as
the
of
action
forum
non
(noting that
"now that Holly has been dismissed from the litigation .
need
therefore,
Most recently, the
2010,
Holly,
on
and,
forum non conveniens was
591 F.3d at 730-31.2
court dismissed the action on November 9,
it
the Fourth
finding that Galustian was entitled
to amend his complaint without leave of this court,
premature.
on the
.
to
. the court
Peter,
the
Galustian filed a Notice of Appeal
from
remaining defendant").
On December
9,
2010,
this court's Memorandum Opinion of November 9,
2011,
Neil H.
MacBride
("MacBride"),
Eastern District of Virginia,
2010.
On January 6,
United States Attorney for the
certified that " [o] n the basis of the
information now available with respect to the claims set forth
Galustian's Amended Complaint]
2
.
.
.
Holly[]
[in
was acting within the
The Fourth Circuit "express[ed] no opinion as to the substance
of the forum non conveniens
issue,"
Galustian IV,
591 F.3d at 731,
but did offer this court "some guidance," which this court utilized
in its second opinion dismissing the case.
See Galustian V, 750 F.
Supp.
2d at
680-81.
scope of
federal office or employment at the time of
out of which the plaintiff's claims arose."
of
United
States'
Mot.
Certification] . 3
to
Dismiss,
Accordingly,
on
ECF
Ex.
No.
January
the incident
1 to Mem.
102-1
19,
in Supp.
[hereinafter
2011,
the
United
States moved the Fourth Circuit to dismiss the action against Holly,
to substitute the United States for Holly as defendant/appellee, and
to
remand
the
case
to
this
court.
See
28
U.S.C.
§ 2679(d)(l)
(providing that w[u]pon certification by the Attorney General
.
.
.
any civil action or proceeding commenced upon such claim in [federal
court]
shall be deemed an action against the United States
.
.
. and
the United States shall be substituted as the party defendant") .
In
an order filed March 16, 2011, the Fourth Circuit granted that motion
and remanded the case for further proceedings.
court
vacated
directed
pursuant
its
the
Clerk
Memorandum
to
Opinion
substitute
the
to the Fourth Circuit mandate
II.
of
On May 12, 2011, this
November
United
9,
States
issued on May
2010,
for
10,
and
Holly,
2011.
Analysis
A. Galustian's Motion for Review of Certification4
Seeking
3
Holly's
MacBride
also
allegations made
4
The
court
disposition of
in
reinstatement
certified
that
as
he
a
defendant,
was
[the Amended Complaint]."
addresses
this
motion
other motions before
the
first
court.
"familiar
Galustian
with
the
Certification.
because
it
affects
challenges MacBride' s Certification that Holly was acting within the
scope of
out
of
federal office or employment at the time of the incident
which
Galustian's
claims
arose.
To
that
end,
Galustian
requests that this court permit him to conduct discovery on the issue
and that it hold an evidentiary hearing.
The Fourth Circuit already
ruled on the substitution issue upon proper motion brought by the
United States.
Order]
See Order,
ECF No.
("We grant the motion
879 F.2d 98,
defendant).5
100
(4th Cir.
.
.
97
.
1989)
[hereinafter Fourth Circuit
.");
see also Jordan v.
Hudson,
(substituting the United States as
Galustian cannot seek another "bite at the apple"
the district court on the same issue.
in
It would be eminently improper
for this court to entertain a de facto motion for reconsideration
of a Fourth Circuit decision.
Cf.
537
1976)
F.2d
1182,
relitigate
Accordingly,
1183
(4th
issues
Cir.
previously
Galustian's
Motion
Boeckenhaupt v.
(finding
decided
for
that
on
Review
of
United States,
a party
direct
cannot
appeal).
Certification
is
DENIED as MOOT.6
5
Indeed, Galustian "noted his objection to the Certification [in
response to the United States'
motion for substitution],
and
requested on remand an opportunity to object
to the Certification
and to conduct discovery on the issue of Holly' s scope of employment."
Mem. in Supp. of Mot.
However,
for Review of Certification K 6, ECF No. 111.
the Fourth Circuit provided no indication that it granted
substitution subject
6
In
any
event,
to
further review by this
Galustian's
motion [to substitute]
Motion
is
court.
meritless.
"Once
the
is filed, with the supporting certification,
B.
United States'
Motion to Dismiss
A federal court must have subject matter jurisdiction over a
lawsuit in order for the court to have the power to award relief.
See
First Am.
Supp.
945,
Nat'l Bank v.
946
{E.D.
Va.
Straight Creek Processing Co.,
1991).
The United States is entitled to
sovereign immunity and cannot be sued without its consent.
v.
Meyer,
510
U.S.
471,
475
756 F.
(1994).
Accordingly,
See FDIC
the
court's
jurisdiction over claims against the United States is limited to the
terms of the United States'
Nakshian,
453
U.S.
156,
consent to be sued.
160
(1981).
The
See id.; Lehman v.
FTCA provides a
the plaintiff must come forward with competent,
limited
verified evidence,
including affidavits, establishing that the defendant was not acting
within the scope of his employment."
673,
679
(E.D.
Va.
Enforcement Admin. ,
1995) ;
plaintiff does not present
by
the
Supp.
United
at 679
self-serving
formed
"on
knowledge.
t 15.
see
111 F.3d 1148,
States
Gutierrez
1153-54
such evidence,
Attorney's
allegations
See Mem.
from
and
in Supp.
de
Jones,
902 F.
Martinez
the
issue
Supp.
v.
(4th Cir. 1997).
certification."
(citations omitted) .
information
Wilson v.
Drug
"If the
is determined
Wilson,
902
F.
Galustian only presents his own
his
Amended
belief,"
of Mot.
Complaint,
rather
than
which
on
were
personal
for Review of Certification
Such allegations are insufficient to challenge certification.
See Walker v. Tyler Cnty. Comm'n, 11 F. App'x 270, 274, 2001 WL 603408,
at
any
*4
(4th Cir.
2001).
substantiated
Certification.
The
Galustian fails to provide the court with
evidence
that
court does not
contradicts
MacBride's
see what would be gained by an
evidentiary hearing and unnecessary discovery, at the expense of both
time and resources in already protracted litigation.
111 F.3d at 1155
See Gutierrez,
(providing that a district court "should not" allow
discovery or conduct an evidentiary hearing "if the certification,
the
pleadings,
the
affidavits,
and
any
supporting
evidence do not reveal an issue of material
fact").
documentary
Accordingly,
even if this court could consider Galustian's Motion on the merits,
it would deny it.
waiver
of
employees
sovereign
of
the
immunity
United
States
employment.
See Williams v.
Cir.
As a waiver of
1995).
construed,
sovereign."
(citations
The
and
all
for
torts
acting
committed
within
United States,
immunity,
ambiguities
50
scope
of
to be
resolved
in
80 F.3d 884,
887
or
their
305
(4th
"strictly
favor
of
the
(4th Cir. 1996)
omitted).
proper procedure
for
analyzing whether
the
FTCA
jurisdiction over an action against the United States
to dismiss pursuant to Rule 12(b)(1)
Procedure.
agents
F.3d 299,
the FTCA is
[]
Robb v. United States,
the
by
See Williams,
is
confers
a motion
of the Federal Rules of Civil
50 F.3d at 304.
The plaintiff bears the
burden of showing subject matter jurisdiction,
see id., by alleging
supportive
Acceptance
Ind.,
facts.
298 U.S.
178,
See
189
McNutt
v.
(1936).
Gen.
Motors
Corp.
of
The court may also consider facts
and exhibits outside of the pleadings without converting the motion
to dismiss into a motion for summary judgment.
at
See Williams, 50 F.3d
304.
1.
Failure
to
Submit Administrative Claim
The United States first argues that Galustian failed to exhaust
his administrative remedies.
the
United
States
in
a
In order to bring a tort claim against
federal
court,
a
plaintiff
must
npresent[]
the claim to the appropriate Federal agency,"
§
and that claim must be
2675(a),
first
28 U.S.C.
"finally denied by the agency in
writing and sent by certified or registered mail."
U.S.C.
§
2401
("A tort claim against
Id.;
the United States
see
28
shall
be
forever barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues .
.
.
.") ■
"It is well-settled that the requirement of filing an administrative
claim is jurisdictional and may not be waived."
States,
785 F.2d 121,
123
{4th Cir.
States,
223 F.3d 275,
278
(4th Cir.
1986);
2000)
Henderson v. United
see Kokotis v.
United
("Precisely because the
FTCA constitutes a waiver of sovereign immunity,
plaintiffs
must
with
file
(citations
an
FTCA
action
in
careful
compliance
its
.
.
.
terms."
omitted)).
Galustian does not deny that he failed to file an administrative
claim.
Rather,
he requests that the court "withhold ruling on the
USA's Motion to Dismiss until
it has
challenging the Certification," Mem.
to Dismiss
4,
ECF No.
112,
because,
ruled on Galustian's Motion
in Opp.
if
the
to United States'
United States
entitled to be substituted as a defendant for Holly,
Mot.
is not
"Holly will be
reinstated as a defendant in this case and will not have available
to him the sovereign immunity defenses that the USA has made."
at
3-4.7
The
court
has
denied Galustian's
Motion
Id.
for Review of
7
Galustian also asserts that "failure to file an administrative
claim prior to filing his Amended Complaint against Holly is curable
pursuant to 28 U.S.C. § 2675."
Mem. in Supp. of Mot. for Review of
Certification H 9.
Galustian is mistaken.
There is no cure
8
Certification, 8
and,
thus,
Holly
will
not
be
reinstated
as
a
defendant.
Galustian does not allege any facts indicating that he
filed
administrative
an
Accordingly,
claim
with
any
federal
agency.
9
the court FINDS that Galustian failed to exhaust his
administrative remedies before bringing this action in this court.
2.
Exceptions to FTCA's Waiver of Sovereign Immunity
Galustian did not exhaust his administrative remedies, and thus
cannot
maintain
Although this
suit
on
resolves
his
claims
the matter,
against
the
United
the United States
States.
argues
that
Galustian's claims against it are also barred by two exceptions to
the
FTCA's
limited
waiver
of
sovereign
immunity.10
The
court
provision in 28 U.S.C.
§ 2675 and no basis to find that the United
States' sovereign immunity can be waived, if a plaintiff files an
administrative claim after commencing an action against the United
States.
In fact, relevant case law counsels that a failure to
exhaust administrative remedies prior to bringing a tort claim
against
the
McNeil v.
United
States
United States,
in
federal
508 U.S.
court
106,
112
is
not
(1993)
curable.
See
(holding that a
prematurely filed FTCA action may not be maintained even if a claimant
exhausts his administrative remedies after filing suit); see also
Webb v.
United States,
8
Moreover,
F.3d 691,
693
(4th Cir.
1995).
Supra Part II.A.
9
66
the United States provided a declaration from Milton
W. Boyd, Assistant Counsel for Litigation for the United States Army
Corps
of
Engineers,
Headquarters,
n[a]fter a thorough review of
in
which
Boyd
declares
that
[the relevant records within the Army
Corps of Engineers for an administrative tort claim associated with
the same tort claim presented in this lawsuit] ,
of
the
10
there are no records
an administrative tort claim from Richard Galustian concerning
subject matter of
See
supra note
1
this
lawsuit."
and accompanying
Boyd Aff.,
text.
ECF No.
102-2.
addresses
each exception in turn.
Intentional
Tort
Exception
Even if a plaintiff exhausts his administrative remedies,
the
United States does not waive sovereign immunity against w [a] ny claim
arising out of
U.S.C.
the
...
§ 2680(h).
slander,
[or]
misrepresentation."
Galustian's claims against Holly, and,
United States,
Holly's
libel,
see,
e.g.,
allegedly providing
Fourth Circuit
Peter
with
an
Order,
Iraqi
28
therefore
arise
warrant
out
of
bearing
Galustian's name,
even though Holly knew or should have known it was
fraudulent,
Peter
for
to
distribute
to
members
Security Company Association of Iraq ("PSCAI"),
F.
Supp.
2d
at
672,
and
the
humiliation and embarrassment,
resulting
of
the
see Galustian V,
"injury
to
ECF No. 59.
750
reputation,
and monetary loss including loss of
business in [Galustian's] private security business."11
t 69,
Private
Am. Compl.
In other words, Galustian seeks damages that flow
from Holly's participation in disseminating an allegedly defamatory
e-mail.
In Talbot v.
United States,
932 F.2dlO64
(4th Cir.
1991),
the
Fourth Circuit found that the libel and slander exception of 28 U.S.C.
§
2680(h)
precluded
suit
" [b]ecause the damages
11
against
the
[the plaintiff]
United States
in
that
case,
alleges appear to flow from
Peter is the Director of PSCAI, a non-profit trade association
serving
the private
security
industry in Iraq.
10
past or future communication of the contents of the personnel files
and the resulting injury to
[the plaintiff's]
reputation," and such
a claim "'resound [s] in the heartland of the tort of defamation:
the
injury is to reputation; the conduct is the communication of an idea,
either implicitly or explicitly.'"
932 F.2d at 1066-67
omitted).
the
This
establishes
that
court
with
claim
" [a]
agrees
for
the
United
States
communication
(citations
that
of
Talbot
allegedly
defamatory information is not cognizable under the FTCA."
Mem.
in
Supp. of United States' Mot. to Dismiss 6, ECF No. 102; see Williams,
50 F.3d at 305
(remarking that all ambiguities regarding the FTCA's
sovereign
immunity
waiver
States).
Accordingly,
are
the
court
against the United States are,
U.S.C.
resolved
FINDS
in
favor
that
the
United
Galustian's
claims
in the alternative,
of
barred under 28
§ 2680 (h) ,12
Foreign Country Exception
The FTCA's waiver of sovereign immunity also does not apply to
"[a]ny claim arising
in a
foreign country."
28
U.S.C.
§
2680{k).
This foreign country exception exempts the United States from suit
for injuries "suffered in a foreign country,
tortious
12
act
or omission occurred."
regardless of where the
Sosa v.
Alvarez-Machain,
542
Galustian does not dispute that he cannot maintain suit against
the United States on the claims he brought against Holly.
8.
11
See supra
U.S.
692,
712
(2004) .
Galustian
suffered in the United States.
675
does
not
allege
See Galustian V,
any
750 F.
injuries
Supp.
2d at
(finding that "Galustian has alleged no facts to support damage
suffered to his reputation in Virginia,
in Iraq,"
and,
thus,
"Iraq,
of the alleged harm").
in Iraq.13
independent of his business
and not Virginia,
Rather,
was
he only alleges
the
focal point
injuries suffered
See Am. Compl. t 1 (providing that the actionable conduct
had the "eventual effect of destroying Plaintiff's existing business
and future potential in Iraq"
Accordingly,
United
13
the
States
Although
court
are,
the
FINDS
in
the
location
(emphasis added));
that
Galustian's
alternative,
of
the
claims against
the United States
against
under
tortious
irrelevant to the sovereign immunity analysis,
the
Uil 53-54.14
claims
barred
alleged
id.
28
the
U.S.C.
conduct
is
the court notes that
only concern Holly's
alleged
actions in Iraq.
See Am. Compl. t 4 (alleging that " [a] t the material
time,
the
Holly
was
Director
Contracting Office of the U.S.
Division,
H
45
(alleging that Holly
warrant
was
with an office
to Peter,
of
Logistics
for
the
Project
Army Corps of Engineers'
in Baghdad,
Iraq"
(emphasis
"purposefully delivered"
"who then operated
[PSCAI]
Gulf Region
added)};
(now International)
id.
the fraudulent
from his desk,
located literally feet away from Holly's own desk,
office in the Green
and
Zone of Baghdad"
which
in Holly's
(emphasis
added)).
14
Galustian also alleges that he is a subject of the United Kingdom
and a resident of the United Arab Emirates ("UAE") , id. f 2, as well
as
that GEMINI
ISI LIMITED,
owner and director,
the company of
which he
is beneficial
is incorporated under the laws of Dubai and the
UAE and does business
throughout
the Middle
East.
The court need
not decide whether such allegations are enough to allege injury in
those countries, because the relevant inquiry is whether Galustian's
alleged injuries were suffered in the United States.
§
2680(k).
12
See 28 U.S.C.
§ 2680{k) .15
3.
Galustian
failed
to
Summary
exhaust
his
administrative
bring a claim against the United States.
Moreover,
remedies
to
his claims are
subject to two express exceptions to the FTCA's sovereign immunity
waiver.
For those reasons,
the court FINDS that the United States
has not waived its sovereign immunity in this case,
and,
therefore,
this court is without subject matter jurisdiction over Galustian's
claims against the United States.
United States'
Procedure
C.
Peter's
Accordingly,
Motion to Dismiss,
the court GRANTS the
pursuant to Federal Rule of Civil
12(b) (1) .
Second Motion to Drop
Peter's
Second
Motion
dismiss the United States
to
Party
Drop
from this
Party
requests
that
the
court
litigation for the reasons set
forth in the United States Motion to Dismiss.
Because this
court
grants the United States' Motion to Dismiss,16 Peter's Second Motion
to Drop
D.
Party is
Peter's
GRANTED.
Second Motion to Dismiss Amended Complaint
In order to dismiss a case for forum non conveniens,
must
find that
Iraq
is
15
See supra note 12.
16
an adequate
Supra Part II.B.
13
and available
the court
forum as
to all
defendants
and
that
the
private
and
enumerated in Gulf Oil Corp. v. Gilbert,
weigh in favor of dismissal.
On November 9,
2010,
750
501,
factors
508-09
(1947)
591 F.3d at 731-32.
the court dismissed this action as to Holly for
analysis
Galustian V,
interest
330 U.S.
See Galustian IV,
lack of personal jurisdiction and,
conveniens
public
F.
as
to
Supp.
thus,
Peter,
2d
at
only conducted a forum non
the
678.
remaining
Finding
that
defendant.
Iraq
was
an
adequate and available forum as to Peter, as well as that the private
and public interest factors weighed in favor of dismissal,
the court
dismissed the action on the basis of forum non conveniens.
678-81.
a
Id.
at
Because the United States was subsequently substituted as
defendant,
the
Fourth
Circuit
remanded
the
case
for
further
proceedings, presumably to analyze inter alia whether an Iraqi forum
is
adequate and available as
to both Peter and
the United States.
However, this court dismisses the United States from the litigation,17
leaving Peter once again as
the
sole defendant.
Accordingly,
the
court need only determine whether Iraq is an adequate and available
forum as
to Peter.
Peter
Court's
prior
arguments
"dismissal
17
represents
from
of
[forum
his
that
non
conveniens]
previous
Plaintiff's
"[n]othing
motions
claims
Supra Part II.B.
14
on
has
changed
rulings,"
to
dismiss,
the
to
alter
the
incorporates
his
and
grounds
of
argues
forum
that
non
conveniens
is again appropriate."
Mem.
in Supp.
of Peter's Second
Mot. to Dismiss Am. Compl. 4, ECFNo. 108; see Mem, in Supp. of Peter's
Mot.
to Dismiss
Mot.
to Dismiss Am.
"too
will
Compl.,
rest
ECF No.
Compl.,
on,
to
Peter's
(citing Mem.
and
and Mem.
68) .
Second Mot.
in Opp.
in Opp.
Nothing
62.
in
on
forum
record
non
dismissal.
Accordingly,
Peter's
the
that he
reference,
conveniens."
Compl.
5,
court
Mem.
ECF No.
Compl,
to
Galustian
court
for the reasons
Motion to Dismiss
conveniens.
of
Peter's
pursuant
in
114
10
ECF No.
abandon
its
V,
readopts
750
and
F.
factors weigh in favor
Supp.
2d
incorporates
at
in
678-81.
full
reasoning set forth in its Memorandum Opinion of November 9,
and,
his
ECF No.
Compl.,
to Dismiss Am.
persuades
First
ruling that Iraq is an adequate and available forum
See
the
by
to Dismiss
to Peter and that the private and public
of
of
Galustian states
to Dismiss Am.
to Peter's Mot.
the
in Supp.
incorporate
to Peter's First Mot.
November 9, 2010,
as
Mem.
ECF No.
previously-submitted briefing
Opp.
7;
stated there and above,
Rule of
of
forum non
the court does not reach the portion
Second Motion to Dismiss
to Federal
2010,
GRANTS Peter's Second
the Amended Complaint on the basis
Given this ruling,
the
Civil
15
for failure
Procedure
to
state
12(b)(6).
a
claim,
III.
For
the
reasons
set
Conclusion
forth
above,
the
court
Galustian's Motion for Review of Certification.
United States' Motion
to Dismiss
Second Motion to Drop a Party.
and,
DENIES
as
MOOT
The court GRANTS the
accordingly,
GRANTS
Peter's
The court GRANTS Peter's Second Motion
to Dismiss on the grounds of forum non conveniens.
This action is,
therefore, DISMISSED without prejudice to be properly filed in Iraq.
The
Clerk
is
DIRECTED
to
Opinion and Order to counsel
forward
a
copy
of
this
Memorandum
for the parties.
IT IS SO ORDERED.
/s/
Rebecca Beach Smith
United States District Judge r)0Q
REBECCA BEACH
Norfolk,
Virginia
August D ,
2011
16
SMITH
UNITED
DISTRICT
STATES
JUDGE
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