Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 1 of 39 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) KHADIM ALKANANI, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-CV-1607 (KBJ)(AK) ) AEGIS DEFENSE SERVICES, LLC, ) and AEGIS DEFENCE SERVICES ) LIMITED, ) ) Defendants. ) ) _________________________________ ) MEMORANDUM OPINION Plaintiff Khadim Alkanani (“Alkanani” or “Plaintiff”), a former United States soldier, filed the instant tort action after an employee of a private defense contractor shot him in the foot in Iraq. That defense contractor, Defendant Aegis Defence Services Limited (“Aegis UK”), filed a motion to dismiss the complaint, contending that this Court need not reach the merits of Alkanani’s claims because the court lacks personal jurisdiction over the company. (Def.’s Mot. to Dismiss for Lack of Jurisdiction (“Def.’s Mot.”), ECF No. 48, at 1.) On August 7, 2013, Magistrate Judge Alan Kay filed a Report and Recommendation that concludes that this case should be dismissed for lack of personal jurisdiction over Aegis UK. (ECF No. 62, at 1.)1 Plaintiff has filed objections to that report (Pl.’s Mem. of P&A in Resp. to Magistrate’s Report and Recommendation, (“Pl.’s Objections”), ECF No. 63), and those objections 1 Page numbers throughout this opinion refer to the page numbers generated by the Court’s electronic filing system. 1 Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 2 of 39 are now before this Court. Because this Court concurs with Magistrate Judge Kay’s conclusions that it cannot exercise either specific or general personal jurisdiction over Aegis UK, the Court will overrule Alkanani’s objections and adopt Magistrate Judge Kay’s Report and Recommendation. Consequently, Aegis UK’s motion to dismiss for lack of personal jurisdiction is GRANTED, and this case is DISMISSED with prejudice. A separate order consistent with this opinion will follow. I. BACKGROUND A. Facts The parties do not dispute the facts giving rise to Alkanani’s allegations. On June 4, 2005, Alkanani, while on active duty as a U.S. soldier in Iraq, was a part of a vehicle convoy returning from an intelligence mission in the field to a U.S. military facility in Baghdad. (Compl., ECF No.1, ¶¶ 3-9.) Aegis UK, a private defense contractor, employed security guards to protect that facility. (Decl. of Jeffrey Day (“Day Decl.”), ECF No. 48-1, ¶¶ 7-8.) As Alkanani approached a guarded checkpoint near the facility’s main gate, at least one Aegis UK security guard overseeing the facility opened fire on Alkanani’s vehicle. (See Compl. ¶¶ 11-13 (alleging that three Aegis UK security guards shot at the vehicle); Def.’s Mot. at 8 (maintaining that a single Aegis UK security guard shot at the vehicle).) One bullet hit Alkanani in the foot, rendering him permanently disabled. (Compl. ¶¶ 14-17; Def.’s Mot. at 8.) After sustaining that injury, Alkanani brought suit against two defendants: Aegis UK and Aegis Defense Services, LLC (“Aegis LLC”). Aegis UK is a private defense contractor headquartered in London, England, and incorporated under the laws of England and Wales. (Day Decl. ¶ 1.) Aegis LLC—a company that recruits and runs 2 Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 3 of 39 background checks on Americans for Aegis UK to hire (Second Supp. Day Decl. ¶ 4)— is a nearly wholly-owned subsidiary of Aegis UK that is headquartered in the state of Virginia. (Id. ¶ 24; Second Supp. Decl. of Jeffrey Day (“Second Supp. Day Decl.”), ECF No. 60-1, ¶ 5.) At this stage of the litigation, the events surrounding the accident and the extent of Alkanani’s injury are not at issue. Rather, the question before this Court pertains to whether the Court has personal jurisdiction over Aegis UK, which depends in large part on the extent of the defendant’s business activity in the District of Columbia, as described in further detail below. With respect to nature and scope of Aegis UK’s business, the record evidence demonstrates that Aegis UK security guards were stationed in Baghdad to provide security-management and protective services to entities involved in reconstruction efforts in Iraq pursuant to a contract that the U.S. Department of the Army—a sub- division of the Department of Defense—had awarded to Aegis UK. (See Day Decl. ¶¶ 6-8 (referencing Contract No. W911SO-04-S-003 (the “Contract”)).). Further, the parties negotiated and executed the Contract outside of the District of Columbia: Aegis UK negotiated the Contract with government officials located in Virginia, and the company signed the Contract in the United Kingdom. (Id. ¶ 8.) It is also beyond dispute that Aegis UK does not maintain an office, base employees, or keep a bank account in the District of Columbia. (Id. ¶¶ 10-16, 23, 31-32.) Moreover, although Aegis UK owns approximately 99% of Virginia-based subsidiary Aegis LLC (Day Decl. ¶ 38), Aegis LLC manages its operations almost entirely separate from Aegis UK. (Day Decl. ¶¶ 26, 29-32.) The undisputed record evidence indicates that the two companies 3 Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 4 of 39 share two board members, but they do not share offices or business locations, and they maintain separate payrolls. (Id. ¶¶ 23, 28, 30-32.) B. Procedural Background Alkanani filed the instant complaint on August 24, 2009, and served the complaint on Aegis UK by having it delivered to the company’s offices in London. (See Return of Service/Aff., ECF No. 9.) The five-count complaint alleges that Aegis UK and Aegis LLC are liable for: (1) negligence, (2) negligence in hiring training and supervision, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) gross negligence. (Compl. ¶¶ 54-71.) In their required joint statement to the Court submitted under Federal Rule of Civil Procedure 16, both Defendants represented an intent to file a dispositive motion in this matter: Aegis UK stated that it intended to seek dismissal for lack of personal jurisdiction, while Aegis LLC stated that it intended to file a motion for summary judgment on the grounds that it was an improper party. (Joint Report to the Court Pursuant to Fed. R. Civ. P. 16.3(c), ECF No. 8, at 2.) The Court permitted the parties to engage in limited discovery regarding these threshold issues. (See Scheduling Order, ECF No. 10, ¶ 1 (allowing for discovery “limited to issues raised in” the “motions mentioned in” the parties’ joint report).) At the close of that limited discovery period, Aegis LLC filed a motion for summary judgment, contending that there is no basis for holding Aegis LLC liable for the tort of its parent company, Aegis UK (Aegis LLC’s Mot. for Summ. J., ECF No. 47), and Aegis UK filed a motion to dismiss for lack of personal jurisdiction (see Def.’s Mot. at 1). 4 Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 5 of 39 The Court referred both motions directly to Magistrate Judge Kay (ECF No. 46), who ultimately recommended that this Court grant both motions. (See Report and Recommendation; Report and Recommendation Regarding Summ. J., ECF No. 61.) Neither party objected to Magistrate Judge Kay’s recommendation that the Court grant Aegis LLC’s motion for summary judgment, and this Court adopted that recommendation, agreeing with Magistrate Judge Kay’s conclusion that Alkanani had failed to establish that any theory—including alter ego theory, successor liability theory, or agency theory—supported Aegis LLC’s legal liability for the acts of its parent company, Aegis UK. Alkanani v. Aegis Def. Servs., LLC, No. 09-CV-1607, 2013 WL 5203613, at *1 (D.D.C. Sept. 16, 2013). Alkanani did object, however, to Magistrate Judge Kay’s recommendation that this Court grant Aegis UK’s motion to dismiss for lack of personal jurisdiction. (See Pl.’s Objections at 5-6.) On September 4, 2013, Aegis UK filed a response to Alkanani’s objection. (Def.’s Resp. to Pl.’s Objections, ECF No. 64.) In addition, on January 21, 2014, Aegis UK submitted a letter notifying this Court of the Supreme Court’s recent decision on general jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), (see Def.’s Notice of Suppl. Auth., ECF No. 66), and Alkanani responded to that correspondence. (Pl.’s Resp. re Notice of Suppl. Auth., ECF No. 67.)2 Thus, before this Court at present is Aegis UK’s motion to dismiss for lack of personal jurisdiction, Magistrate Judge Kay’s Report recommending that this Court dismiss the 2 Notably, Defendant filed its notice of supplemental authority as a letter, and Alkanani responded in kind. (See Def.’s Notice of Suppl. Auth., ECF No. 66; Pl.’s Resp. re Notice of Suppl. Auth., ECF No. 67.) The Local Rules of this Court direct that “correspondence shall not be directed by the parties or their attorneys to a judge,” unless the judge requests otherwise, LCvR. 5.1(b), which means that the parties’ letters constitute a technical violation of the court’s rules. This Court has considered both filings despite this procedural error. 5 Case 1:09-cv-01607-KBJ Document 69 Filed 03/26/14 Page 6 of 39 case for lack of personal jurisdiction, Alkanani’s objections to the magistrate judge’s report, Aegis UK’s letter noting supplemental authority, and Alkanani’s response to Aegis UK’s correspondence. II. LEGAL FRAMEWORK A. Motions To Dismiss For Lack Of Personal Jurisdiction Pursuant To Rule 12(b)(2) Aegis UK seeks to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(2) on the grounds that the court lacks personal jurisdiction over the company.