The District of Columbia Court of Appeals heard oral arguments Monday morning on whether a trial judge erred in dismissing a wrongful death lawsuit against two private contractors working in Iraq.
Jalal Askander, a U.S. permanent resident, wants to sue a U.S. Agency for International Development contractor, RTI International, and the private security company RTI hired, Unity Resources Group in the death of his daughter, Genevia Jalal Antranick.
According to the complaint, Antranick was killed in Baghdad in 2007 after Unity guards opened fire on a car she was riding in as a passenger. RTI, as the lead contractor, should also be held responsible, Askander said. Neither defendant has addressed the underlying claims to date.
As previously reported in the National Law Journal, Askander first filed his lawsuit in U.S. District Court for the District of Columba in April 2008 under the Alien Tort Statute and other federal torts claims, only to have the bulk of the lawsuit dismissed and the case moved to U.S. District Court for the Eastern District of North Carolina, in RTI’s home state. A judge in North Carolina dismissed the remaining federal claims, meaning the only option was to refile in a state court.
Represented by solo practitioner Paul Wolf, Askander refiled his lawsuit in District of Columbia Superior Court in August 2010. In February, a judge dismissed the case, finding that Unity hadn’t been properly served; that North Carolina remained the most appropriate forum for RTI; and that neither party had enough ties in D.C. for it to make sense to proceed in a local court.
A three-judge panel heard oral arguments on Monday morning. Judge Anna Blackburne-Rigsby asked Wolf why his failure to properly serve Unity wouldn’t make all other arguments moot, regardless of whether the trial judge decided to make rulings on other questions of jurisdiction. Unity leases office space in Washington but was served through an employee in Virginia.
Wolf said he realized he might need to refile and carry out proper service in Washington, but asked the appeals court to make it clear to the trial judge that any other rulings she had made on questions of jurisdiction would need to be reconsidered.
He also argued against severing the two defendants. Wolf said that if the court forces him to refile his lawsuit against RTI – who was properly served in Washington – in North Carolina, he would either have to pursue his case against Unity in Washington separately or file against Unity in North Carolina and risk having a court in that state find that it has no jurisdiction over Unity.
“I think we risk not having any U.S. court” hear the case, Wolf told the judges. Unity, which was created in Singapore and is headquartered in Dubai, has “organized themselves this way to make them difficult to sue,” he said.
Kevin Walsh of Locke Lord, arguing for Unity, said the failure to properly serve his client was a “show-stopper” and that the trial judge wasn’t wrong to dismiss the case on those grounds. If the court did consider other questions of jurisdiction, he said, his client would still prevail because they don’t do any real business in Washington.
Counsel for RTI, Leslie Paul Machado of LeClairRyan, said that even though his client was properly served in Washington, where they have an office, the trial judge was correct to find that North Carolina was the most appropriate forum. Not only does his client have minimal ties to Washington, but the underlying case has no connection to the District.
Senior Judge John Steadman asked Machado why their forum argument wouldn’t depend on whether the court ultimately decides whether Unity can be sued in Washington. If Unity can be sued in Washington, Steadman asked, wouldn’t that change whether North Carolina would be the most appropriate forum for the case a whole?
Machado flipped the question, saying that the burden should be on Wolf to show why both parties couldn’t be sued in North Carolina.
Judge Kathryn Oberly also heard the case.