Court: Court of Appeals for the D.C. Circuit; September 7, 2018; Federal Appellate Court
Ketanji Brown Jackson, United States District Judge, issued a ruling on March 30, 2018, denying RAK Investment Authority's (RAKIA) motion to dismiss in a case brought by Farhad Azima. Azima alleges that RAKIA orchestrated the hacking of his laptops from October 2015 to August 2016 and disseminated sensitive information obtained through these hacks. The court rejected RAKIA's arguments claiming lack of subject-matter jurisdiction due to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA) and the doctrine of forum non conveniens, asserting jurisdiction under the commercial activity exception to the FSIA. Additionally, RAKIA failed to prove that London was an adequate alternative forum or that public and private interests favored litigation there.
RAKIA has filed an interlocutory appeal concerning the court's FSIA determination and has requested certification of the forum non conveniens ruling for interlocutory appeal under 28 U.S.C. § 1292(b). RAKIA argues that three key legal questions warrant such certification: (1) whether English courts provide an adequate forum for Azima's claims; (2) whether English law offers sufficient legal remedies; and (3) whether a forum selection clause mandates litigation in the High Court of Justice in England. RAKIA claims that these issues present controlling questions of law with substantial grounds for differing opinions, potentially advancing the case's resolution.
Azima opposes RAKIA's certification request, contending that the forum non conveniens issue does not present significant grounds for differing opinions, thus making the certification inappropriate at this stage.
RAKIA's motion for section 1292(b) certification has been denied. The court found no substantial ground for difference of opinion on the key legal issues regarding forum non conveniens and the decision not to dismiss the complaint on those grounds. Therefore, the criteria for certifying the March 30, 2018 Order for interlocutory appeal were not met. RAKIA retains the option to petition the court of appeals to exercise "pendent jurisdiction" over the forum non conveniens matter. Under 28 U.S.C. § 1292(b), certification for interlocutory appeal requires a controlling question of law, a substantial ground for difference of opinion, and that an immediate appeal would materially advance the litigation. A mere claim of error does not suffice to establish a substantial ground for difference of opinion; it must arise from a lack of precedent or conflicting decisions. The burden lies with the party seeking appeal to demonstrate exceptional circumstances that justify deviation from the general policy against piecemeal appellate reviews. Interlocutory appeals are rarely granted, and the court must ensure that all elements of section 1292(b) are satisfied before exercising discretion to certify.
Certification for immediate appeal under section 1292(b) is contingent upon meeting all specified criteria. While interlocutory appeals can enhance efficiency, they cannot be pursued simply to expedite district court proceedings. The court identifies the issues raised by RAKIA regarding the adequacy of the English courts as "controlling questions of law," which could terminate the action if reversed. The court cites previous rulings to distinguish between evaluating forum adequacy and the applicability of forum-selection clauses.
The primary inquiry for certifying an order under section 1292(b) is whether there is "substantial ground for difference of opinion" regarding the court's ruling on RAKIA's motion for forum non conveniens. The court finds no substantial grounds for disagreement with its earlier conclusions, which included that RAKIA did not prove the UK was an adequate forum due to its sovereign immunity status and lack of remedy for Azima's claims. Additionally, even if the UK were deemed an adequate forum, RAKIA failed to show a strong tilt in the balance of factors favoring a particular forum. This led to the conclusion that Azima's choice of forum should not be disturbed. RAKIA's motion does not demonstrate any substantial grounds for differing opinions on these rulings, particularly regarding sovereign immunity in English courts.
RAKIA is presumed to have sovereign immunity in the relevant forum, but contends that a substantial difference of opinion exists regarding whether the Court should have granted a conditional motion to dismiss, contingent on the defendant consenting to jurisdiction in a foreign court. However, RAKIA's argument is insufficient as it fails to cite any case that mandates a conditional dismissal; instead, precedent indicates that such dismissals are discretionary. The Court's ruling that RAKIA's sovereign immunity prevents it from using England as an alternative forum does not constitute a substantial difference of opinion warranting interlocutory review under section 1292(b).
Additionally, the Court found no substantial ground for believing it imposed an unreasonably high burden on RAKIA to demonstrate the availability of an adequate legal remedy under English law. RAKIA's reliance on limited evidence, such as portions of the U.K. Data Protection Act and a single English High Court opinion, does not meet the standards set forth in the D.C. Circuit for proving the adequacy of an alternative forum. The Court's review indicates no precedent supports the notion that minimal foreign law citations suffice to establish adequacy. Rather, previous cases demonstrate that defendants must provide comprehensive evidence, tailored to the specifics of the case, to meet this burden.
The Court finds no substantial ground for a difference of opinion regarding whether RAKIA faced an unfairly high burden to prove that England offers an adequate remedy for its claims. It also sees no significant disagreement concerning its interpretation of the forum-selection clause in the settlement agreement between Azima and RAKIA related to a prior dispute. A wealth of precedent exists regarding forum-selection clause interpretation in this district, and RAKIA has not cited any cases that interpret a similar clause differently, which is necessary to establish a substantial difference of opinion under section 1292(b). RAKIA's disagreement with the Court's interpretation does not suffice to warrant certification for interlocutory appeal. Furthermore, the Court notes that while it cannot certify the forum non conveniens issue under section 1292(b), it would be efficient for the appellate court to consider both the foreign sovereign immunity and forum non conveniens issues together. The Court encourages RAKIA to ask the D.C. Circuit to exercise its "pendent appellate jurisdiction" over the forum non conveniens question, despite the D.C. Circuit's cautious approach to such jurisdiction.
Fairness and efficiency considerations can justify the use of pendent appellate jurisdiction, as established in Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, where the D.C. Circuit exercised such jurisdiction over threshold claims related to personal jurisdiction over a sovereign defendant amid an interlocutory appeal based on sovereign immunity under the FSIA. Similar applications of pendent jurisdiction regarding FSIA cases are noted in Chalabi v. Hashemite Kingdom of Jordan and Rendall-Speranza v. Nassim, which included related claims alongside FSIA appeals. However, RAKIA's motion for certification under section 1292(b) of Title 28 U.S.C. is denied. RAKIA concedes that the U.K. Data Protection Act of 1998 does not grant Azima a claim against it. While RAKIA references Gulati v. MGN Ltd regarding invasion of privacy, it remains uncertain whether Azima could pursue such a tort claim in the U.K., particularly since Gulati involved an admission of liability, and RAKIA has not established that English law would allow an American citizen to assert a tort claim based on activities without a meaningful connection to the U.K.
