IN THE UNITED STATES DISTRICT COURT COUNCIL ON …Adam S. Caldwell (D.C. Bar No. 445786) Leslie G. Moylan (D.C. Bar No. 985716) DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave., N.W.,

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IFTIKHAR SAIYED, ) )

Plaintiff, ) )

v. ) CASE NO: 1:10-cv-00022 (PLF) )

COUNCIL ON AMERICAN-ISLAMIC ) RELATIONS ACTION NETWORK, ) INC., )

) Defendant. )

DEFENDANT’S MOTION TO DISMISS AND REQUEST FOR HEARING

Defendant Council on American-Islamic Relations Action Network, Inc. (“CAIR”)

hereby moves to dismiss the Complaint of Plaintiff Iftikhar Saiyed (“Mr. Saiyed”) pursuant to

Federal Rules of Civil Procedure 12(b)(1), 12(b)(7), 19(b) and 12(b)(6). This Motion is

accompanied by a Memorandum of Points and Authorities in Support of Defendant’s Motion to

Dismiss. Grounds for dismissal are as follows:

1. The Court lacks subject matter jurisdiction because:

a. Mr. Saiyed has failed to join an indispensable necessary party, whose joinder

would destroy diversity;

b. Mr. Saiyed does not meet the jurisdictional minimum to establish jurisdiction

based on diversity; and

c. Mr. Saiyed lacks standing because he has not demonstrated that he suffered

any injury caused by CAIR.

2. Alternatively, each cause of action should be dismissed with prejudice for failure to

state a claim upon which relief can be granted.

Case 1:10-cv-00022-PLF -AK Document 9 Filed 02/25/10 Page 1 of 49

2

WHEREFORE, CAIR respectfully requests that the Court enter an Order granting this

Motion to Dismiss, dismissing the action in its entirety with prejudice for lack of subject matter

jurisdiction. In the alternative, CAIR respectfully requests that the Court dismiss all claims with

prejudice for failure to state a claim.

Dated: February 25, 2010

Respectfully submitted,

/s/ Adam S. Caldwell

Adam S. Caldwell (D.C. Bar No. 445786) Leslie G. Moylan (D.C. Bar No. 985716) DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave., N.W., Suite 200 Washington, D.C. 20006-3402 (202) 973-4400 (202) 973-4499 fax

Attorneys for CAIR


3

REQUEST FOR HEARING

Pursuant to Local Rule 7(f), CAIR requests an oral hearing on its Motion to Dismiss.




Attorneys for CAIR


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 25th day of February, 2010, true and correct copies of

the foregoing Defendant’s Motion to Dismiss and Request for Hearing were served via ECF

upon all counsel of record.


Adam S. Caldwell (D.C. Bar No. 445786)


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IFTIKHAR MR. SAIYED, ) )

Plaintiff, ) )

v. ) CASE NO: 1:10-cv-00022 (PLF) )

COUNCIL ON AMERICAN-ISLAMIC ) RELATIONS ACTION NETWORK, ) INC., )

) Defendant. )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS



ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT..................................................................................................... 1

BACKGROUND RESPECTING RELATED CASE – LOPEZ I. ................................................. 3

STATEMENT OF ALLEGED FACTS .......................................................................................... 5

A. The Days Fraud Scheme And CAIR’s Discovery Of The Days Fraud Scheme.......................................................................................................... 5

B. The Alleged Cover-Up............................................................................................ 6

C. Damages Allegedly Suffered By Mr. Saiyed And The Lopez Plaintiffs ................ 7

D. Causes Of Action Alleged By Mr. Saiyed .............................................................. 7

E. The Disposition Of Lopez I ..................................................................................... 8

ARGUMENT. ................................................................................................................................. 9

I. This Action Should Be Dismissed Because The Court Lacks Subject Matter Jurisdiction ..................................................................................................................... 9

A. Standard of Review ................................................................................................. 9

1. Rule 12(b)(1) .................................................................................................. 9

2. Rule 12(b)(7) ................................................................................................ 10

B. This Case Should Be Dismissed Because Mr. Saiyed Failed To Join At Least Two Non-Diverse Indispensable Parties ................................................ 10

1. Days And CAIR-VA Are Necessary Parties................................................ 11

a. Allegations Of Wrongdoing By Days ..................................................... 11

b. Allegations Of Wrongdoing (vel non) By CAIR .................................... 12

2. Joinder Of Days And CAIR-VA Is Not Feasible......................................... 13


ii

3. Days And CAIR-VA Are Indispensable Parties .......................................... 13

a. There Is A Risk Of Prejudice To CAIR If Days And CAIR-VA Are Not Joined, And Vice Versa ................................... 14

b. The Potential Prejudice Cannot Be Lessened Or Avoided ..................... 16

c. A Judgment Rendered In The Absence Of Days Would Not Be Adequate ..................................................................................... 16

d. Mr. Saiyed Has An Adequate Remedy In Another Forum ...................................................................................................... 16

C. This Case Should Be Dismissed Because Mr. Saiyed Does Not Meet The Jurisdictional Minimum For Diversity Jurisdiction ....................................... 16

1. Mr. Saiyed Has Merely Modified The Identical Claim Asserted By The Lopez Plaintiffs In Lopez I In Order To Manufacture Diversity Jurisdiction ................................................................................... 18

2. Mr. Saiyed Has Not Provided Any Supporting Evidence............................ 18

3. To The Extent That Mr. Saiyed Seeks Punitive Damages, His Allegations Do Not Withstand The Heightened Scrutiny The Court Must Apply ................................................................................. 19

D. This Case Should Be Dismissed Because Plaintiff Does Not Have Standing To Assert His Claims ............................................................................. 21

II. Alternatively, This Action Should Be Dismissed Because Mr. Saiyed Has Failed To State A Claim On Each Cause Of Action .................................................................... 24

A. Standard Of Review .............................................................................................. 24

B. Each Of Mr. Saiyed’s Claims Fail For Failure To Demonstrate That CAIR Proximately Caused His Alleged Damages .......................................................... 25

C. Mr. Saiyed Has Not Stated Claims Under The District Of Columbia Or Virginia Consumer Protection Acts ...................................................................... 26

D. Mr. Saiyed Has Not Pled His Fraud Claim With Specificity, Nor Stated Facts That Allege A Claim For Fraud As A Matter Of Law................................. 27

E. Mr. Saiyed Has Not Stated A Claim For Breach Of Fiduciary Duty.................... 29


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F. Mr. Saiyed Has Not Stated A Claim For Intentional Infliction Of Emotional Distress ................................................................................................ 31

1. Mr. Saiyed Has Not Asserted Any Factual Allegations That Rise To The Level Of Outrageous Or Intolerable Conduct ......................... 32

2. Mr. Saiyed Has Not Asserted Facts Sufficient To Allege That He Suffered Severe Emotional Distress ....................................................... 33

CONCLUSION ............................................................................................................................. 34


iv

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Amarillo Oil Co. v. Mapco, Inc., 99 F.R.D. 602 (N.D. Tex. 1983) ....................................................................................... 15

Anderson v. Hall, 755 F. Supp. 2 (D.D.C. 1991) ........................................................................................... 10

Autozone Dev. Corp. v. District of Columbia, 484 F. Supp. 2d 24 (D.D.C. 2007) .................................................................................... 21

Baltimore & Ohio R.R. v. City of Parkersburg, 268 U.S. 35 (1925) ............................................................................................................ 16

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................... 24, 30

Bowman v. Chicago & N.W. Ry., 115 U.S. 611 (1885) .......................................................................................................... 18

Brewster v. C.I.R., 607 F.2d 1369 (D.C. Cir. 1979) ........................................................................................ 21

Carroll v. Merriwether, 921 F. Supp. 828 (D.D.C. 1996) ....................................................................................... 20

Chesapeake & Ohio Ry. v. Certain Underwriters at Lloyd’s, London, 716 F. Supp. 27 (D.D.C. 1989) ......................................................................................... 10

Clark v. Associated Retail Credit Men, 105 F.2d 62 (D.C. Cir. 1939) ............................................................................................ 32

Cobell v. Norton, 224 F.R.D. 1 (D.D.C. 2004) ............................................................................................... 3

College Sports Council v. Department of Educ., 465 F.3d 20 (D.C. Cir. 2006) ............................................................................................ 21

Community for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987) .......................................................................................... 21


v

Dernick v. Bralorne Resources, Ltd., 639 F.2d 196 (5th Cir. 1981)............................................................................................. 15

Diamond Phoenix Corp. v. Small, No. 05-79, 2005 WL 1530264 (D. Me. June 28, 2005) .................................................... 30

Estes v. Shell Oil Co., 234 F.2d 847 (5th Cir. 1956)............................................................................................. 10

Flip Mortgage Corp. v. McElhone, 841 F.2d 531 (4th Cir. 1988)............................................................................................. 27

Freeman v. Northwest Acceptance Corp., 754 F.2d 553 (5th Cir. 1985)............................................................................................. 15

Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992)............................................................................................. 17

General Motors Corp. v. Environmental Prot. Agency, 363 F.3d 442 (D.C. Cir. 2004) .......................................................................................... 10

Glenny v. American Metal Climax, Inc., 494 F.2d 651 (10th Cir. 1974)........................................................................................... 15

Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9 (D.D.C. 2001) ...................................................................................... 10

Hailes v. Lincoln Serv. Corp., No. 86-5252, 1987 U.S. App. LEXIS 14134 (D.C. Cir. 1987) (per curiam) .................... 33

Hargraves v. Capital City Mortgage Corp., 140 F. Supp. 2d 7 (D.D.C. 2000) ...................................................................................... 28

Herbert v. National Acad. of Scis., 974 F.2d 192 (D.C. Cir. 1992) .......................................................................................... 10

Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986) .......................................................................................... 10

Hunter v. District of Columbia, 384 F. Supp. 2d 257 (D.D.C. 2005) ............................................................................ 19, 20

Iqbal v. Ashcroft, 129 S. Ct. 1937 (2009) ...................................................................................................... 24


vi

Jovanovic v. US-Algeria Bus. Council, 561 F. Supp. 2d 103 (D.D.C. 2008) .................................................................................. 29

Kokkenen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ............................................................................................................ 9

*Lopez v. CAIR, 657 F. Supp. 2d 104 (D.D.C. 2009) ........................................................................... passim

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................................ 9

Lyles v. Micenko, 468 F. Supp. 2d 68 (D.D.C. 2006) .................................................................................... 34

Massengale v. Ogu, No. 91-489, 1992 U.S. Dist. LEXIS 975 (D.D.C. Jan. 28, 1992) ..................................... 32

McQueen v. Woodstream Corp., No. 05-2058 (RMU), 2009 WL 4641764 (D.D.C. Dec. 9, 2009) ..................................... 17

Metropolitan Life Ins. v. Barbour, 555 F. Supp. 2d 91 (D.D.C. 2008) .................................................................................... 33

Mount v. Baron, 154 F. Supp. 2d 3 (D.D.C. 2001) ...................................................................................... 25

Neitzke v. Williams, 490 U.S. 319 (1989) .......................................................................................................... 24

North Carolina Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62 (D.D.C. 2007) .................................................................................... 21

Paul v. Judicial Watch, Inc., 543 F. Supp. 2d 1 (D.D.C. 2008) ...................................................................................... 29

Pigford v. Veneman, 225 F.R.D. 54 (D.D.C. 2005) ............................................................................................. 3

Pinel v. Pinel, 240 U.S. 594 (1916) .......................................................................................................... 17

Prakash v. American Univ., 727 F.2d 1174 (D.C. Cir. 1984) ......................................................................................... 9


vii

RWN Dev. Group, LLC v. Travelers Indem. Co. of Conn., 540 F. Supp. 2d 83 (D.D.C. 2008) .................................................................................... 19

Saadeh v. Farouki, 107 F.3d 52 (D.C. Cir. 1997) ............................................................................................. 9

Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr., Ltd. P’ship, 90 F. Supp. 2d 15 (D.D.C. 2000) ...................................................................................... 23

Soanes v. Baltimore & Ohio R.R., 89 F.R.D. 430 (E.D.N.Y. 1981) ........................................................................................ 15

State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003) .......................................................................................................... 20

Than v. Radio Free Asia, 496 F. Supp. 2d 38 (D.D.C. 2007) .................................................................................... 33

United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Cir. 1981) ........................................................................................ 28

US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20 (D.C. Cir. 2000) .............................................................................................. 9

Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004) ............................................................................................ 24

Winpisinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980) .......................................................................................... 21

STATE CASES

Almy v. Grisham, 273 Va. 68 (2007) ............................................................................................................. 33

Banks v. D.C. Dep’t of Consumer & Regulatory Affairs, 634 A.2d 433 (D.C. 1993)................................................................................................. 27

Beyers v. Richmond, 594 Pa. 654 (2007) ............................................................................................................ 27

Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135 (D.C. 2006)................................................................................................. 31


viii

Estrada v. Potomac Elec. Power Co., 488 A.2d 1359 (D.C. 1985)............................................................................................... 31

Hercules & Co v. Shama Restaurant Corp., 613 A.2d 916 (D.C. 1992)................................................................................................. 28

Koschene v. Hutchinson, 73 Va. Cir. 103 (2007) ...................................................................................................... 26

Russo v. White, 241 Va. 23 (1991) ................................................................................................. 31, 32, 33

Ruth v. Fletcher, 237 Va. 366 (1989)...................................................................................................... 31, 32

Vuitch v. Furr, 482 A.2d 811 (D.C. 1984)................................................................................................. 23

Waldon v. Covington, 415 A.2d 1070 (D.C. 1980)............................................................................................... 32

Washkoviak v. Sallie Mae, 900 A.2d 168 (D.C. 2006)................................................................................................. 26

Weiss v. Cassidy Dev. Corp., 61 Va. Cir. 237 (2003) ...................................................................................................... 26

Winn v. Aleda Constr. Co., 227 Va. 304 (1984)............................................................................................................ 27

Womack v. Eldridge, 215 Va. 338 (1974)............................................................................................................ 31

STATUTES

28 U.S.C. § 1332 ................................................................................................................. 9, 16, 20

D.C. Code § 28-3901 .................................................................................................................... 26

D.C. Code § 28-3903 .................................................................................................................... 27

D.C. Code § 28-3905 .................................................................................................................... 26

Va. Code Ann. § 59.1-196 ............................................................................................................ 26


ix

RULES

*Fed. R. Civ. P. 12(b)............................................................................................................. passim

*Fed. R. Civ. P. 19 ................................................................................................................. passim

OTHER SOURCES

14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3637 (1986)................ 11

Restatement (Second) Torts .......................................................................................................... 32

*Authorities upon which we chiefly rely are marked with asterisks.


1

Defendant Council on American-Islamic Relations Action Network, Inc. hereby submits

this Memorandum of Points and Authorities in support of its Motion to Dismiss the Complaint

for lack of jurisdiction and for failure to state a claim upon which relief can be granted, pursuant

to Federal Rules of Civil Procedure 12(b)(1), 12(b)(7), 19(b) and 12(b)(6).

PRELIMINARY STATEMENT

The Council on American-Islamic Relations (“CAIR”) is America’s largest civil liberties

advocacy organization for Muslims. Its mission is to enhance the understanding of Islam,

encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that

promote justice and mutual understanding. CAIR has over 30 independently managed offices

and chapters in the United States and Canada. From December 2004 until April 2008, there was

a chapter of CAIR operating in Herndon, Virginia (“CAIR-VA”).

According to the allegations of the Complaint, in June 2006, Morris L. Days (“Days”)

became associated with CAIR-VA. Contrary to CAIR policy, Days allegedly requested and

obtained money from a number of people who came to him seeking help on matters such as their

immigration status or perceived religious or ethnic discrimination. Days purportedly sought the

money to cover fees associated with handling various legal matters, but never actually performed

work on or mishandled those matters, and was not actually an attorney. Plaintiff Mr. Saiyed

(“Mr. Saiyed”) claims that it was not until November 2007

that CAIR became aware of Days’

fraud, after

Days allegedly carried out the fraud. The Complaint, however, seeks redress only

against CAIR for its alleged participation in an alleged conspiracy to conceal or “cover-up”

Days’ fraudulent conduct. Just like the people who came to Days for assistance, CAIR was a

victim of Days’ wrongdoing. However, Mr. Saiyed’s five-count Complaint against CAIR, who

has caused no harm to him, has only a tangential connection to Days’ misconduct.


2

This action represents Mr. Saiyed’s counsel’s last ditch effort to seek a federal stage to

assert purely state law claims CAIR. In a previously dismissed action, several other plaintiffs

(the “Lopez Plaintiffs”) who were allegedly victimized by Days asserted the exact same state law

claims based on the exact same facts against CAIR through the same attorney.. In the previous

action, the Lopez Plaintiffs also asserted a federal RICO claim, named non-diverse defendants

including Days, and claimed a federal question existed. In that action, the Court (Urbina, J.)

dismissed the RICO claim with prejudice for failure to state a claim and dismissed the state law

claims for lack of supplemental jurisdiction (“Lopez I”).1 With the RICO claim gone, the Lopez

Plaintiffs re-filed their action (on the same day the instant Complaint was filed), but simply

removed the non-diverse defendants from the caption of their previous Complaint and now claim

that diversity jurisdiction exists (“Lopez II”). Both Lopez I and Lopez II were identified by Mr.

Saiyed as a “Related Case” in the instant action.

In apparent recognition that the Lopez Plaintiffs in Lopez II would be collaterally

estopped from making the same argument on the dispositive issue in Lopez I – that no conduct

on the part of CAIR caused injury to the Lopez Plaintiffs – Mr. Saiyed’s counsel filed the instant

carbon copy Complaint solely on behalf of Mr. Saiyed. While the collateral estoppel doctrine

that bars Lopez II does not apply here, the same result is compelled by the doctrine of stare

decisis.

Mr. Saiyed’s attempt to manufacture diversity jurisdiction fails for three independent

reasons. First, Mr. Saiyed has failed to join two necessary and indispensable parties whose

joinder would destroy diversity. Second, Mr. Saiyed’s allegation that he suffered damages of at

1 That decision has been appealed to the U.S Court of Appeals for the D.C. Circuit, Case No. 09-7129.


3

least $75,001 was not made in good faith, and was clearly a maneuver to manufacture diversity.2

Finally, Mr. Saiyed has not asserted, and cannot assert because of the findings in Lopez I, that

CAIR caused any damages he allegedly suffered. He thus lacks standing to assert his claims.

Alternatively, each claim should be dismissed for failure to state a claim upon which relief can

be granted.

BACKGROUND RESPECTING RELATED CASE – LOPEZ I

Like Mr. Saiyed, the Lopez Plaintiffs – Rene Arturo Lopez, Aquilla A. D. Turner,

Mohammed Barakatulla Abdussalaam (“MB”), and Bayenah Nur – claim that they were victims

of a fraudulent scheme by Days, an individual that was at one time associated with CAIR-VA.

On November 18, 2008, the Lopez Plaintiffs filed a lawsuit against CAIR, Zahara Investment

Corporation, Greater Washington LLC Delaware, Khalid Iqbal, Tahra Goraya, Ibrahim Hooper,

Amina Rubin, Nihad Awad, Parvez Ahmed, Khadijah Athman, and Nadhira Al-Khalili

(collectively, “Original CAIR Defendants,” and natural persons collectively, “Original Individual

CAIR Defendants”) in this Court in Case No. 08-1989 (Lopez I). The Lopez I Complaint also

named Days, who is now deceased, as a defendant.3 Attached hereto as Exhibit 1 is a true and

2 The good faith nature of the Complaint is further called into question by the fact that the bulk of the allegations of the Complaint are admittedly based on “the investigation of [Mr. Saiyed’s] legal counsel.]” (Compl. 1). As highlighted in CAIR’s motion to dismiss in Lopez I, the involvement of Mr. Saiyed’s counsel, David Yerushalmi, indicates that this action is not about seeking redress for Days’ alleged victims, but rather about an unrelated attempt to “take down” CAIR in support of Mr. Yerushalmi’s own agenda. (See Lopez I Motion to Dismiss at 2-5.) The ulterior purpose of the Complaint is further demonstrated by the derogatory, impertinent, and scandalous allegations in paragraphs 1 and 3 of the Complaint that are entirely irrelevant to Mr. Saiyed’s claim, all of which should be stricken pursuant to Fed. R. Civ. P 12(f). See Pigford v. Veneman, 225 F.R.D. 54, 59 (D.D.C. 2005) (striking allegations that did not serve a “legitimate litigation-related purpose and appear to be a form of grandstanding really addressed to other audiences”); Cobell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 2004) (finding that plaintiff’s many allegations, without proof, gave rise to both Rule 11 sanctions and striking as scandalous under Rule 12(f)). 3 Morris Days was never served with the Summons and Complaint in Lopez I.


4

correct copy of the Lopez I Complaint. For the reasons explained below, this Court (Urbina, J.)

dismissed Lopez I. Attached hereto as Exhibit 2 is a true and correct copy of the decision

dismissing the Complaint in Lopez I.

The Lopez Plaintiffs, who appealed the Lopez I decision,4 re-filed their lawsuit in this

Court – the only difference being that they removed the non-diverse defendants and the

dismissed federal RICO claim, instead basing jurisdiction over their state law claims on

diversity.5 As explained in CAIR’s Motion to Consolidate this action with Lopez II,6 each and

every allegation of the Complaint in this action and the Lopez II Complaint are exactly the same,

save for each plaintiff’s allegations specific to their contact with Days. (See Compl. ¶¶ 15-53,

84-138; Lopez II Compl. ¶¶ 15-53, 127-181.) Because the Lopez II action was essentially a

carbon copy of Lopez I, and this action is essentially a carbon copy of Lopez II, there are thus

now three pending actions arising from the identical nucleus of facts, asserting the same claims

against the same defendant. Mr. Saiyed admits as much in the Notice of Related Case filed with

the Complaint, which states that this action “involves common issues of fact” and “grows out of

the same event or transaction” as Lopez II, and also indicates that Lopez I is a previously

dismissed related action.7 Because portions of the legal argument herein rely on this Court’s

previous decision dismissing Lopez I, and because the factual allegations upon which those

findings were based have not changed in any meaningful way, the following statement of alleged

4Lopez, et al. v. CAIR, et al., Case No. 09-7129 (D.C. Cir.). 5 Lopez, et al. v. CAIR, Case No. 1:10-cv-00023 (PLF) (D.D.C.). 6 CAIR also filed a Motion to Transfer and Consolidate in the Lopez II action, seeking to have the Lopez II action first transferred to Judge Urbina, who was assigned to the Lopez I action, and then to consolidate this action and Lopez II. That CAIR has now had to file two motions to consolidate and two motions to dismiss, each making the same arguments based on the same nucleus of facts only highlights why consolidation of this action with Lopez II is appropriate. 7 Notice of Designation of Related Civil Cases Pending in This or Any Other United States Court [Dkt. # 2].


5

facts includes citations to both the Complaint in the instant action and the parallel allegations by

the Lopez Plaintiffs in Lopez I.8 Any relevant factual allegations that did not originally appear in

Lopez I (i.e., the allegations specific to Mr. Saiyed) are so noted.

STATEMENT OF ALLEGED FACTS

A. The Days Fraud Scheme And CAIR’s Discovery Of The Days Fraud Scheme

Mr. Saiyed alleges that in or about June 2006, Days became associated with CAIR-VA as

its “resident attorney” and “manager” of its “civil rights department.” (Compl. ¶¶ 16-17; Lopez I

Compl. ¶¶ 22-23.) While CAIR’s policy is not to charge CAIR clients for legal representation, at

some time beginning in 2007, Days allegedly asked for legal fees from approximately thirty of

his clients. (Compl. ¶¶ 15, 22; Lopez I Compl. ¶¶ 4, 21, 26.) Days purportedly sought the

money to cover fees associated with filing lawsuits or starting administrative proceedings (the

“Days Fraud Scheme”). (Compl. ¶¶ 22, 55-56, 62; Lopez I Compl. ¶¶ 57, 74.) According to Mr.

Saiyed, Khalid Iqbal, the Executive Director of CAIR-VA, discovered that Days had taken fees

from one or more clients in November 2007, and that Days was not an attorney. (Compl. ¶¶ 27,

31; Lopez I Compl. ¶¶ 32-33.)

Mr. Saiyed claims that it was not until November 2007 that CAIR “had substantial and

overwhelming evidence” that Days was not a lawyer and had taken legal fees from clients

without performing legal services or had inadequately represented their interests. (Compl. ¶ 31;

Lopez I Compl. ¶¶ 32-33.)9 Mr. Saiyed claims CAIR-VA terminated Days’ employment on

February 10, 2008. (Compl. ¶ 30; Lopez I Compl. ¶ 34.)

8 The Lopez Plaintiffs make the same allegations in the Lopez II Complaint as well; however, to prevent confusion, citations to the parallel allegations are only made as to the Complaint in the instant action and the Lopez I Complaint. 9 In the Lopez I Complaint, the Lopez Plaintiffs initially alleged that only Iqbal and CAIR-VA knew of Days’ fraud and did not report it to CAIR until February 2008. This new allegation also appears in the Lopez II Complaint.


6

In sum, the Complaint alleges that Days “knowingly, willfully, and with the specific

intent to defraud CAIR clients, represented that he was a competent, licensed attorney” (Compl.

¶ 23; Lopez I Compl. ¶ 27), and “charged money for the CAIR legal services rendered by him”

(the “Days Fraud”). (Compl. ¶ 22; Lopez I Compl. ¶ 26.) Mr. Saiyed alleges that the Days

Fraud Scheme took place from June 2006, when Days became associated with CAIR-MD/VA,

until November 2007, when the Days Fraud Scheme was allegedly discovered by Iqbal and

CAIR-VA.

Mr. Saiyed does not allege that CAIR had actual knowledge of the Days Fraud Scheme

until November 2007. (Compl. ¶ 22; Lopez I Compl. ¶ 32.) Nevertheless, Mr. Saiyed seeks to

hold CAIR liable for the Days Fraud Scheme because “Days was an employee of CAIR-VA,”

and CAIR-VA “was a subsidiary or entity controlled by CAIR and/or acted as CAIR’s alter

ego.”10 (Compl. ¶ 16.)

B. The Alleged Cover-Up

Mr. Saiyed alleges that, after learning of the Days Fraud Scheme, CAIR conspired to

conceal the Days Fraud Scheme during the period between November 2007 and September 2008

(the “Alleged Cover-Up”). In sum, the Alleged Cover-Up consists of the following actions:

Upon discovering Days’ fraudulent actions, CAIR made no effort to contact any government agencies to report the criminal fraud, nor did CAIR make any effort to contact their clients to inform them of the fact that Days was not a licensed attorney. CAIR made no effort to inform their clients orally or in writing that they should seek independent legal counsel to ascertain if they had viable claims against CAIR and/or Days nor did CAIR attempt to provide restitution to their clients. Instead, CAIR and its employees conspired to defraud their clients by telling them that Days was never an employee of CAIR, that he was acting on his own or as an “independent contractor,” and that they (i.e., the defrauded clients) should seek redress from Days himself.

10 This allegation was not contained in the Lopez I Complaint.


7

(Compl. ¶ 8; Lopez I Compl. ¶ 6.)

C. Damages Allegedly Suffered By Mr. Saiyed And The Lopez Plaintiffs

Mr. Saiyed alleges that he came to Days for legal representation relating to a claim for

employment discrimination against his employer, Enterprise. (Compl. ¶ 54.) The Lopez

Plaintiffs alleged that they came to Days for legal representation relating to divorce proceedings,

immigration status, hostile work environment, and employment discrimination, respectively.

(Lopez I Compl. ¶ 53.)

Mr. Saiyed seeks a total of $900 that he allegedly paid to Days to represent him, and

“damages relating to [Mr. Saiyed’s] claims against Enterprise which were dismissed by the U.S.

District Court for the Eastern District of Virginia.” (Compl. ¶¶ 62, 79.) The Lopez Plaintiffs

each alleged that they suffered out-of-pocket damages as a result of Days’ wrongful acts, such as

payments made to Days for his services, lost wages, and moving expenses. (Lopez I Compl.

¶¶ 53, 78, 85-86, 124.)11 Such alleged damages ranged in amounts from $223.99 to $8,925.

(Lopez II Compl. ¶ 78.)

D. Causes Of Action Alleged By Mr. Saiyed

Mr. Saiyed alleges five state law causes of action against CAIR: violations of the District

of Columbia Consumer Protection Procedures Act (“DCCPPA”) (Count One); violations of the

Virginia Consumer Protection Act (“VCPA”) (Count Two); Common Law Fraud and

Conspiracy to Commit Fraud (Count Three); Breach of Fiduciary Duties (Count Four);

Intentional Infliction of Emotional Distress (Count Five).12

11 The Lopez Plaintiffs did not allege any damages relating to their legal claims in Lopez I; however, in Lopez II, MB seeks “damages relating to MB’s expired federal claims against the City of Lynchburg for employment discrimination.” (Lopez II Compl. ¶ 78.) 12 In addition to the Lopez Plaintiffs’ federal RICO claim that was the basis for the Court’s jurisdiction, each of these causes of action was alleged in the Lopez I Complaint. The Lopez


8

E. The Disposition Of Lopez I

The Original CAIR Defendants filed a motion to dismiss the Lopez I Complaint for lack

of jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rules

12(b)(1) and 12(b)(6). On September 28, 2009, the Court granted the motion to dismiss. Lopez

v. CAIR, 657 F. Supp. 2d 104 (D.D.C. 2009) (Urbina, J.).

The Court found that the Lopez Plaintiffs had alleged two separate acts of wrongdoing –

the Days Fraud Scheme and the Alleged Cover-Up – and that the Lopez Plaintiffs’ alleged

injuries were caused by Days, not by the subsequent cover-up. 657 F. Supp. 2d at 112. The

Court further held that, even if the Lopez Plaintiffs could show that the RICO defendants had

joined in a conspiracy to further the objectives of Days’ scheme through the Alleged Cover-Up,

the Lopez Plaintiffs still could not demonstrate that the RICO defendants proximately caused

their monetary losses. Id. at 112-13. The court also held that CAIR’s activities did not constitute

the “pattern of racketeering” activity required for a successful RICO claim. Id. at 115. The

RICO claim was thus dismissed with prejudice. Id. at 115, 107. Once the one claim that raised a

federal question was dismissed, the Court dismissed the remaining seven state law claims,

without prejudice, for lack of supplemental jurisdiction. Id. at 116, 107. The Lopez Plaintiffs

have appealed the dismissal.

Plaintiffs also alleged Conversion and Unjust Enrichment in the Lopez I Complaint. The causes of action asserted in the instant action are identical to those alleged in Lopez II.


9

ARGUMENT

I. This Action Should Be Dismissed Because The Court Lacks Subject Matter

Jurisdiction

Mr. Saiyed alleges that the Court has diversity jurisdiction in this case under 28 U.S.C.

§ 1332(a)(2). (Compl. ¶ 10.) That provision confers jurisdiction in the district courts where the

matter is between “citizens of a State and citizens or subjects of a foreign state” and where the

amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(2). Diversity as between the

plaintiff and the defendant must be complete. See Saadeh v. Farouki, 107 F.3d 52, 55 (D.C. Cir.

1997 (“[F]ederal diversity jurisdiction is lacking if there are any litigants from the same state on

opposing sides.”) (quoting Prakash v. American Univ., 727 F.2d 1174, 1178 n.25 (D.C. Cir. 1984

Mr. Saiyed has failed to join at least two indispensable parties to this action under Federal

Rule of Civil Procedure 19. Because joinder of the indispensable parties would destroy Mr.

Saiyed’s allegations of diversity jurisdiction, this case should be dismissed pursuant to Rules

12(b)(1), 12(b)(7) and 19(b). Alternatively, because Mr. Saiyed does not satisfy the

jurisdictional minimum amount in controversy, this case should be dismissed pursuant to Rule

12(b)(1). Finally, Mr. Saiyed does not have standing to assert his claims because he has not

sufficiently demonstrated that he was injured by CAIR’s conduct, and the case should be

dismissed pursuant to Rule 12(b)(1).

A. Standard Of Review

1. Rule 12(b)(1)

Under Rule 12(b)(1), Mr. Saiyed bears the burden of establishing by a preponderance of

evidence that the Court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992); US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir.

2000). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies


10

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); see also General Motors Corp. v. Environmental Prot. Agency, 363 F.3d 442, 448 (D.C.

Cir. 2004) (noting that, “[a]s a court of limited jurisdiction, we begin, and end, with an

examination of our jurisdiction”).

Because subject matter jurisdiction focuses on the Court’s power to hear the claim,

Mr. Saiyed’s factual allegations in the Complaint “will bear closer scrutiny in resolving a

12(b)(1) motion than in resolving a 12(b)(6) motion.” Grand Lodge of Fraternal Order of Police

v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001) (internal citation and quotation omitted).

Thus, the Court is not limited to the allegations contained in the Complaint. Hohri v. United

States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987).

When necessary, the Court may consider the Complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

2. Rule 12(b)(7)

A defendant may move to dismiss a complaint for “failure to join a party under Rule 19.”

Fed. R. Civ. P. 12(b)(7). Courts may consider materials outside the pleadings in resolving a

motion to dismiss under Rule 12(b)(7), Anderson v. Hall, 755 F. Supp. 2, 5 (D.D.C. 1991), and

consideration of such materials will not convert the motion into a Rule 56 motion for summary

judgment, see Estes v. Shell Oil Co., 234 F.2d 847, 849 n.5 (5th Cir. 1956).

B. This Case Should Be Dismissed Because Mr. Saiyed Failed To Join At Least Two Non-Diverse Indispensable Parties

A party may not “avoid the requirement of complete diversity by failing to join a non-

diverse party if that person is ‘indispensable’ to the proper resolution of the litigation.”

Chesapeake & Ohio Ry. Co. v. Certain Underwriters at Lloyd’s, London, 716 F. Supp. 27, 29


11

(D.D.C. 1989), rev’d on other grounds, 910 F.2d 960 (D.C. Cir. 1990) (citing 14 C. Wright, A.

Miller, & E. Cooper, Federal Practice and Procedure § 3637 (2d ed. 1986)). Rule 19 sets forth

a two-step analysis for the required joinder of parties. First, courts must determine whether a

party is required and must therefore be joined. Fed. R. Civ. P. 19(a). If so, and if joinder is not

feasible, then the court must next balance the equitable factors set forth in Rule 19(b) to decide if

the party is indispensable such that the action should be dismissed. Fed. R. Civ. P. 19(b).

1. Days And CAIR-VA Are Necessary Parties

Rule 19(a) provides that a person is required to be joined:

(1) in that person’s absence, the court cannot accord complete relief among existing parties, or (2) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a). Here, the alleged wrongful acts upon which Mr. Saiyed’s claims are based

are those carried out principally by Days (which Mr. Saiyed attributes to CAIR-VA by alleging

that Days was an “employee/agent” of CAIR-VA (Compl. ¶ 82)), which Mr. Saiyed, in turn,

seeks to vicariously attribute to CAIR. It is not until July 2008 that Mr. Saiyed alleges any actual

conduct on the part of CAIR specific to his claims.

a. Allegations Of Wrongdoing By Days

The Complaint alleges that “Plaintiff contacted CAIR through its Herndon, Virginia

branch office (“CAIR-VA”) from January 2007 through August 2008.” (Compl. ¶ 2.) However,

the only allegations of Plaintiff’s contacts with anyone between January 2007 and May 2008 are

those with Days:


12

Mr. Saiyed alleges that he first met with Days in January 2007 (id. ¶¶ 54-55), that Days

represented that he was a lawyer and was competent to represent Mr. Saiyed (id. ¶¶ 55, 60), that

Mr. Saiyed continued to correspond and meet with Days respecting his matter (id. ¶ 56), that

Days sent a letter to Mr. Saiyed’s employer (id. ¶ 58), that Days continued to assure Mr. Saiyed

that he was handling Mr. Saiyed’s claim (id. ¶ 59), that Days filed a complaint with the EEOC

and HRC on Mr. Saiyed’s behalf (id. ¶ 61), that Days assisted Mr. Saiyed with the filing of a

complaint in federal court (id. ¶¶ 62-64), and that Mr. Saiyed paid money to Days (id. ¶¶ 56, 62,

79).

The foregoing allegations form the Days Fraud Scheme, which this Court already

determined in Lopez I to be the only conduct that could have proximately caused the Lopez

Plaintiff’s alleged injuries. 657 F. Supp. 2d at 111-14. Based on the foregoing allegations

specific only to Days (attributed to CAIR-VA through his alleged status as an

“agent/employee”), the Court cannot accord complete relief among the existing parties. There

also can be no dispute that Days has an interest in the subject matter of this action, as well as

CAIR-VA, to the extent Mr. Saiyed claims Days was its “agent/employee.” The disposition of

the action could both impede Days’ and CAIR-VA’s ability to protect that interest and/or leave

CAIR vulnerable to a substantial risk of incurring inconsistent obligations as a result of that

interest. Days and CAIR-VA are thus necessary parties under Rule 19(a).

b. Allegations Of Wrongdoing (vel non) By CAIR

In comparison, Mr. Saiyed makes few allegations of actual conduct on the part of CAIR.

Mr. Saiyed alleges that, in mid-July 2008, a CAIR employee “assured Plaintiff” that she would

look into Mr. Saiyed’s matter and “get back to [Mr. Saiyed] immediately” (Compl. ¶ 66), that a

week later another employee informed Mr. Saiyed that Days “had in fact not filed any HRC,


13

EEOC, or federal complaints” (id. ¶ 67), that a CAIR employee obtained and faxed Mr. Saiyed a

copy of his original federal complaint (id. ¶ 68), and that CAIR sent Mr. Saiyed a letter

explaining that it could not assist Mr. Saiyed with his legal matters and that “Days was never

employed by CAIR” (id. ¶¶ 70-71). These allegations hardly amount to any wrongful conduct

on the part of CAIR that could have caused Mr. Saiyed’s alleged injuries, underscoring the

necessity of Days and CAIR-VA as parties to this action.

2. Joinder Of Days And CAIR-VA Is Not Feasible

It is not feasible to join Days and CAIR-VA in this action, because to do so would

destroy diversity and divest this Court of subject matter jurisdiction. Upon information and

belief, Days was a citizen of Virginia, as is CAIR-VA, which had its principal place of business

in Virginia at all relevant times. Indeed, the non-diversity of Days and the individual CAIR-VA

defendants is no doubt the reason the Lopez Plaintiffs (and Mr. Yerushalmi) chose not to re-

name them to the very causes of action they originally asserted against them in Lopez I. This

Court should not countenance Mr. Saiyed’s follow-on maneuver to manufacture diversity

jurisdiction.

3. Days And CAIR-VA Are Indispensable Parties

Because Days and CAIR-VA are necessary parties and joinder is not feasible, Rule 19(b)

directs the Court to determine if these parties are indispensable to the action – i.e., “whether, in

equity and good conscience, the action should proceed.” Fed. R. Civ. P. 19(b). In making this

determination, Rule 19(b) allows the Court to consider the following factors:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment; (B) shaping the relief; or


14

(C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed. R. Civ. P. 19(b). In light of these factors, it is clear that the presence of Days and CAIR-

VA, to the extent Mr. Saiyed attributes his conduct to it as an “agent/employee,” is critical to the

disposition of this action.

a. There Is A Risk Of Prejudice To CAIR If Days And CAIR-VA Are Not Joined, And Vice Versa

As stated above, it is clear that the alleged primary participants in the Days Fraud Scheme

are, of course, Days and also CAIR-VA (by reason of Plaintiffs’ agent/employee allegation).

Lacking any significant allegations of wrongful conduct to pin on CAIR, Mr. Saiyed attempts to

attribute Days’ alleged wrongful actions to CAIR in the following convoluted manner:

All of the acts described above and attributed to Days were carried out in his capacity as an employee and/or agent of CAIR-VA and carried out within and arising from the course of Days’ responsibilities and employment at CAIR-VA and/or within the scope of his authority as the “manager” and “resident” attorney in the CAIR-VA civil rights department.

CAIR-VA was operated and controlled ultimately by CAIR and treated as a wholly owned subsidiary and/or related entity and/or alter ego. Upon information and belief, decisions relating to the opening of CAIR-VA, its funding, the staffing of its executives, promotional materials, its operations, its closing, and the transfer of the client files from CAIR-VA to CAIR’s offices in D.C. were ultimately controlled by CAIR.

(Compl. ¶¶ 82-83.) In short, Mr. Saiyed’s theory is that Days’ wrongful conduct must first be

attributed to CAIR-VA under an employment and/or agency theory, and then to CAIR on a

subsidiary and/or related entity and/or alter ego theory. Even if Mr. Saiyed’s theory were viable


15

(it is not), Days and CAIR-VA, to the extent Mr. Saiyed attributes his conduct to it as an

“agent/employee,” are still indispensable.

Because Mr. Saiyed seeks to impose liability on CAIR not for its own acts, but for the

alleged acts of Days that are, in turn, attributed to CAIR-VA, and because Days and CAIR-VA

(on an “agency/employee” theory) are the alleged primary participants in the alleged fraud, Days

and CAIR-VA are indispensable. This requirement has frequently been imposed by federal

courts in the parent-subsidiary context. See, e.g., Freeman v. Northwest Acceptance Corp., 754

F.2d 553, 559 (5th Cir. 1985) (finding that subsidiary, as primary participant in conversion

attributed to parent corporation, was an indispensable party to be joined in the action); Dernick v.

Bralorne Resources, Ltd., 639 F.2d 196, 199 (5th Cir. 1981) (“Failure to join the subsidiary in

such circumstances would be improper.”); Glenny v. American Metal Climax, Inc., 494 F.2d 651,

654 (10th Cir. 1974) (same); Amarillo Oil Co. v. Mapco, Inc., 99 F.R.D. 602, 607 (N.D. Tex.

1983) (same); Soanes v. Baltimore & Ohio R.R., 89 F.R.D. 430, 432 (E.D.N.Y. 1981) (same).

Moreover, the Lopez Plaintiffs joined Days and the CAIR-VA individuals as defendants

in Lopez I, which is a carbon copy of this action brought by Mr. Saiyed. Indeed, evidence

pertaining to Days and CAIR-VA will either support the complaint or bolster CAIR’s defense,

will corroborate or compromise Mr. Saiyed’s allegations, and will be crucial to the determination

of CAIR’s liability.

Finally, non-joinder of these indispensable parties could result in a decision that may

prejudice the Original Individual CAIR Defendants in the Lopez I action. In order to find CAIR

liable here, the Court would first have to find that Days engaged in some wrongful conduct that

can be attributed to CAIR-VA, and ultimately to CAIR. Such determination could be binding on


16

and/or create the risk of inconsistent rulings should Lopez I be remanded to this Court and if the

claims against all of the Original CAIR Defendants are reinstated.

b. The Potential Prejudice Cannot Be Lessened Or Avoided

CAIR does not foresee any satisfactory way to protect against the foregoing potential

prejudice.

c. A Judgment Rendered In The Absence Of Days Would Not Be Adequate

The Court would also be unable to shape the relief requested in the Complaint, as the

alleged injuries stem from the alleged actions of Days. Also, Mr. Saiyed seeks to impose a

constructive trust; however, there are no allegations that anyone other than Days obtained money

from Mr. Saiyed. A judgment against CAIR would thus provide inadequate relief.

d. Mr. Saiyed Has an Adequate Remedy in Another Forum

Unquestionably, Mr. Saiyed has a satisfactory forum available in state court. The Court

held in Lopez I that, failing a federal claim, the state claims (which are identical to those asserted

here and, in fact, were brought against Days and the CAIR-VA individuals in Lopez II) belong in

state court. 657 F. Supp. 2d at 116. It is well-settled that, where a party is indispensable, and its

joinder destroys diversity of citizenship, the party must nevertheless be joined as a party with the

resulting loss of jurisdiction by the court. See Baltimore & Ohio R.R. v. City of Parkersburg,

268 U.S. 35, 45 (1925). Accordingly, because the Court “in equity and good conscience” cannot

proceed without Days and CAIR-VA, and their joinder will destroy diversity, this action must be

dismissed.

C. This Case Should Be Dismissed Because Mr. Saiyed Does Not Meet The Jurisdictional Minimum For Diversity Jurisdiction

When a defendant challenges jurisdiction, it is the plaintiff’s burden to establish a “good

faith” expectation of recovery of the threshold amount in controversy. See 28 U.S.C. § 1332(a);


17

McQueen v. Woodstream Corp., No. 05-2068 (RMU), 2009 WL 4641764, at *2-3 (D.D.C.

Dec. 9, 2009). A “mere averment” that the amount in controversy exceeds $75,000 is

insufficient. Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). Additionally, aggregation of

“separate and distinct demands” of multiple plaintiffs is not permitted. Pinel v. Pinel, 240 U.S.

594, 596 (1916). The only cause of action for which Mr. Saiyed alleges he could possibly

recover damages to satisfy the amount in controversy requirement is Intentional Infliction of

Emotional Distress. Thus, if the Court finds that Mr. Saiyed cannot meet his burden of

establishing a “good faith” expectation of recovery of the threshold amount in controversy on

this claim, this action must be dismissed for lack of jurisdiction.13

Mr. Saiyed alleges that he has “suffered severe emotional, mental, and physical distress

resulting from CAIR’s breach of fiduciary duty owed to him, including anxiety, lack of appetite,

inability to sleep, relationship problems with his friends and family, inability to sustain

employment resulting from his anxiety, and other manifestations, resulting in damages not yet

quantified but no less than $75,001.” (Compl. ¶ 80.) To find that these rote allegations were

made in good faith would be to accept not only that, amazingly, Mr. Saiyed’s alleged emotional

distress has manifested itself in the exact same manner as each of the Lopez Plaintiffs (see Lopez

II Compl. ¶¶ 79, 96, 123), but also that Mr. Saiyed suffered damages in an amount that is as yet

unknown, but that coincidentally is alleged to be not less than the threshold amount in

controversy required for this Court to exercise jurisdiction over this action. This allegation

smacks of bad faith.

13 CAIR has also moved to dismiss this claim for failure to state a claim. See Section II.E., infra. If that motion is granted, failure to allege the amount in controversy is even more clear.


18

1. Mr. Saiyed Has Merely Modified The Identical Claim Asserted By The Lopez Plaintiffs In Lopez I In Order To Manufacture Diversity Jurisdiction

It should be noted that, in the original Lopez I Complaint, the Lopez Plaintiffs made an

identical claim for Intentional Infliction of Emotional Distress (Lopez I Compl. ¶¶ 169-175)

against all of the defendants in that action (including CAIR) arising from the same factual

allegations as herein. All that Mr. Saiyed and the Lopez Plaintiffs have done differently here and

in the Lopez II Complaint is to tack on a conclusory allegation that their damages are “no less

than $75,001” – an alleged dollar amount that was not included in the identical emotional

distress claim in Lopez I.

It has long been deemed appropriate to dismiss an action for lack of jurisdiction where it

is evident that an original demand for damages is later altered “for the sole purpose of giving

color of jurisdiction.” Bowman v. Chicago & N.W. Ry., 115 U.S. 611, 613-14 (1885) (plaintiffs’

demand was obviously amended “not in the expectation of recovering more than was originally

claimed, but to give color to the jurisdiction of this court.”). This is exactly what Mr. Saiyed has

done here. As stated above, it was only after the sole federal claim in Lopez I was dismissed that

the Lopez Plaintiffs affixed the “no less than $75,001” damages amount to their claim in Lopez II

(which strategy Mr. Saiyed obviously adopted in this identical action). This obvious ploy to

manufacture jurisdiction in this Court demonstrates that Mr. Saiyed’s allegation of damages in an

amount “no less than $75,001” was not made in good faith.

2. Mr. Saiyed Has Not Provided Any Supporting Evidence

Mr. Saiyed has not pled a single allegation pointing to a quantifiable amount of damages

resulting from his supposed emotional distress. If Mr. Saiyed has been unable to quantify his

damages since the Days Fraud Scheme was allegedly made apparent to him in August 2008

(Compl. ¶ 71), it is implausible that he will do so in the course of this proceeding. Moreover,


19

Mr. Saiyed is the only person that would possess information relevant to his alleged damages, so

no argument can be reasonably made that his alleged damages will be later quantified with the

aid of discovery. Mr. Saiyed’s failure to support his claim of damages for “no less than

$75,001,” without more, does not sufficiently prove the amount in controversy. See, e.g., RWN

Dev. Group, LLC v. Travelers Indem. Co. of Conn., 540 F. Supp. 2d 83, 90 (D.D.C. 2008)

(refusing to find jurisdiction because claimant provided no documentation or other supporting

evidence to establish that the claims exceeded the amount in controversy requirement, without

which the asserted value of those claims “reduces them to nothing more than pure speculation.”).

Thus, Mr. Saiyed has not met his burden of demonstrating an amount in controversy to support

diversity jurisdiction.

3. To the Extent That Mr. Saiyed Seeks Punitive Damages, His Allegations Do Not Withstand the Heightened Scrutiny The Court Must Apply

Mr. Saiyed’s sole allegation to support his claim for punitive damages is that CAIR’s

conduct “amounted to egregious and intentional and/or reckless conduct.” (Compl. ¶¶ 94, 115,

123, 129.) When a punitive damages claim makes up the bulk of the amount in controversy, the

court will “scrutinize that claim closely” to be certain jurisdiction exists. See, e.g., Hunter v.

District of Columbia, 384 F. Supp. 257 261 (D.D.C. 2005) (“When the existence of federal

jurisdiction depends on a claim for punitive damages, the court should scrutinize the punitive

damage claim to ensure that it has at least a colorable basis in law and fact. . . . Liberal pleading

rules are not a license for plaintiffs to shoehorn essentially local actions into federal court

through extravagant or invalid punitive damage claims.”) (internal citation and quotations

omitted). Courts view punitive damages claims with skepticism, especially if asserted for the

apparent purpose of meeting the jurisdictional minimum. See, e.g., Hunter, 384 F. Supp. 2d at


20

261; Carroll v. Merriwether, 921 F. Supp. 828, 829 (D.D.C. 1996); State of Missouri ex rel.

Pemiscot County, Mo. v. Western Sur. Co., 51 F.3d 170, 173 (8th Cir. 1995); Miller v. European

Am. Bank, 921 F. Supp. 1162, 1167 (S.D.N.Y. 1996).

Even assuming Mr. Saiyed could recover the compensatory damages alleged elsewhere in

the Complaint (though not sought in connection with his emotional distress claim), additional

recovery of the difference between those amounts and “no less than $75,001” as punitive

damages is highly unlikely. Based on Mr. Saiyed’s claim for out-of-pocket damages totaling

$900, the ratio of punitive to compensatory damages would be approximately 82 to 1.14

This district has adhered to the Supreme Court’s observation that “few awards exceeding

a single-digit ratio between punitive and compensatory damages . . . will satisfy due process.”

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). See, e.g., Hunter, 384 F.

Supp. 2d at 261 (holding that the plaintiff could not meet the amount in controversy requirement

based on a 13 to 1 ratio of punitive to compensatory damages). With this observation in mind,

Mr. Saiyed’s allegations fall far short of suggesting that he would conceivably be entitled to such

a high ratio of punitive to compensatory damages.

In sum, given that Mr. Saiyed has failed to assert a plausible claim for at least $75,000 in

compensatory and punitive damages, he cannot satisfy the amount-in-controversy requirement of

28 U.S.C. § 1332(a)(2). Therefore, the Court should dismiss this action for lack of subject

matter jurisdiction.

14 Mr. Saiyed also seeks damages relating to his expired employment discrimination claim. (Compl. ¶ 79.) However, as CAIR argues in Section II.B, infra, Mr. Saiyed has not sufficiently alleged that he is entitled to such damages.


21

D. This Case Should Be Dismissed Because Mr. Saiyed Does Not Have Standing To Assert His Claims

To establish Article III standing, Mr. Saiyed must demonstrate that CAIR’s challenged

conduct is a “substantial factor” in causing his injury. Community for Creative Non-Violence v.

Pierce, 814 F.2d 663, 669-70 (D.C. Cir. 1987). At its core, the causation inquiry asks whether

the defendant’s “actions materially increase[d] the probability of injury.” North Carolina

Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62, 83 (D.D.C. 2007). However, there is no

standing where the Court “would have to accept a number of very speculative inferences and

assumptions in any endeavor to connect the alleged injury with [the challenged conduct].”

Autozone Dev. Corp. v. District of Columbia, 484 F. Supp. 2d 24, 29 (D.D.C. 2007) (brackets in

original) (quoting Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980)).

This Court previously determined in Lopez I that the Lopez Plaintiffs do not have standing to

bring their claims because they failed to demonstrate that their injuries were caused by CAIR. Lopez

I, 657 F. Supp. 2d at 111-14. In Lopez I, the Court stated:

In this case, the plaintiffs have alleged two separate acts of wrongdoing, the initial fraud by Days and the subsequent cover-up by the RICO Defendants. The plaintiffs’ injuries were caused by Days, not by the subsequent cover up.

657 F. Supp. 2d at 112 (citations omitted) (emphasis added). This previous determination in Lopez

I is dispositive of Mr. Saiyed’s claims under the doctrine of stare decisis. See College Sports

Council v. Department of Educ., 465 F.3d 20, 22 (D.C. Cir. 2006) (where the jurisdictional issue

was raised in a substantially similar action that involved a different plaintiff against the same

defendant, “all parties here are bound by the stare decisis effect of this court’s decisions. The

statutory and constitutional issues raised in this case have been conclusively settled by this court

in [the previous similar action].”); Brewster v. C. I. R., 607 F.2d 1369, 1374, n.5 (D.C. Cir. 1979)

(where “[t]he only facts germane to [the previously litigated] issue were . . . no more disputed


22

here than they were there,” “the principle of Stare decisis controls, we need not consider whether

[the previous case] also collaterally estops appellant from relitigating the issue”). Here, there can

be no dispute that Lopez I, which Mr. Saiyed admits arises from the same set of alleged facts,

involved the same issue of causation that is presented in the instant action. As it did in Lopez I, the

Court should dismiss this action for lack of jurisdiction pursuant to Rule 12(b)(1) because Mr. Saiyed

does not establish that his injuries were proximately caused by CAIR . Lopez I, 657 F. Supp. 2d

at 116.

Mr. Saiyed attempts to plead around this Court’s ruling in Lopez I by alleging that CAIR

itself engaged in conduct that it knew or should have known amounted to fraud, and/or that Days’

actions should ultimately be attributed to CAIR on an alter ego theory. However, Mr. Saiyed’s

remaining allegations are inconsistent with this newly contrived theory and merely confirm that

CAIR was not the proximate cause of Mr. Saiyed’s alleged injuries.

The only new act specifically attributed to CAIR itself is that, “[b]eginning at least in

March 2007, CAIR promoted Days to the public through various publications . . . and through

CAIR’s web site as a well-respected and publicly honored “resident attorney,” and as the “manager”

of the CAIR-VA “civil rights department.” (Compl. ¶ 17.) First, despite its best efforts to pin a

wrongful act on CAIR, this new allegation is insufficient. The alleged publications and website

printouts attached to the Complaint as examples of CAIR’s alleged promotional activities are those

of CAIR-VA

– not CAIR. There is no allegation that the materials were created or made available by

CAIR as opposed to CAIR-VA (indeed, the Complaint admits that the publication at Exhibit 1 was

sent “by CAIR-VA”). Second, even if Mr. Saiyed could vicariously attribute CAIR-VA’s promotion

of Days to CAIR, the promotion of Days alone does not amount to fraud on the part of CAIR

because, according to Mr. Saiyed’s allegations, CAIR did not have knowledge that Days was not

actually an attorney until November 2007. Without such knowledge, CAIR’s promotion of Days


23

prior to November 2007 could not have been done with the intent to deceive Mr. Saiyed – an

essential element to pleading a cause of action for fraud (and Mr. Saiyed’s remaining causes of action

predicated on fraud). See Section II.D, infra.

As to the alter ego theory, Mr. Saiyed’s naked allegation that Days was “employed by

CAIR-VA” and that “CAIR-VA was a subsidiary or entity controlled by CAIR and/or acted as

CAIR’s alter ego” (Compl. ¶ 16) is woefully deficient. Mr. Saiyed has not alleged a single

allegation to support this theory. “Whether one corporation is the alter ego of another is a

question of law to be decided by the court.” Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard,

Jr., Ltd. P’ship, 90 F. Supp. 2d 15, 22 (D.D.C. 2000) (citation omitted). To pierce the corporate

veil between CAIR and CAIR-VA (which the Court can only do if it first finds Days was acting

as “agent/employee” of CAIR-VA) and thereby establish that one is the alter ego of the other,

Mr. Saiyed must show “use of the corporate form to perpetrate fraud or wrong.” Vuitch v. Furr,

482 A.2d 811, 815 (D.C. 1984) (citation omitted); accord, Shapiro, 90 F. Supp. 2d at 23.

Relevant factors include “whether corporate formalities have been disregarded, and whether

there has occurred an intermingling of corporate and personal funds, staff, and property. . . .

Unity of interest and ownership can also be established by showing domination and control of

[one] corporation [by another].” Vuitch, 482 A.2d at 816 (citations omitted). Mr. Saiyed has

made no allegations to establish these factors. Indeed, his allegations establish the exact opposite –

i.e., that CAIR and CAIR-VA observed corporate formalities and maintained separate identities. For

example, Mr. Saiyed alleges that CAIR-VA had an entirely separate branch office (Compl. ¶ 19),

CAIR-VA sent out its own publications (Compl. ¶ 17), a separate website for CAIR-VA was

maintained (Compl. ¶ 17), CAIR-VA had its own stationery (Compl. ¶ 19), CAIR-VA had its own

managing director (Compl. ¶ 26), CAIR-VA made its own hiring decisions (Compl. ¶ 27), and that

CAIR-VA had its own staff members (Compl. ¶¶ 22, 26, 71).


24

Moreover, as stated above in Section I.B.1(a), the only allegations of wrongful conduct

between January 2007 and May 2008 are directed at the conduct of Days. Mr. Saiyed repeatedly

alleges that it was not until November 2007 that CAIR allegedly knew or should have known of

Days’ fraudulent conduct. (See, e.g., Compl. ¶¶ 6, 7, 27, 31, 33.) Because Mr. Saiyed admits

that CAIR did not have knowledge of Days’ fraudulent conduct until November 2007, CAIR

could not have in fact controlled Days’ alleged fraudulent actions, all of which occurred prior to

November 2007 and were the actual cause of Mr. Saiyed’s alleged damages.

As such, Mr. Saiyed does not have standing because he has not demonstrated that his injuries

were caused by CAIR. For this reason, the action should be dismissed.

II. Alternatively, This Action Should Be Dismissed Because Mr. Saiyed Has Failed To State A Claim On Each Cause Of Action

A. Standard Of Review

Rule 12(b)(6) permits the Court to terminate lawsuits that are fatally flawed in their legal

premises and thus to spare the litigants the burdens of unnecessary pretrial and trial activity.

Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). Granting judgment on a motion to dismiss for

failure to state a claim under Rule 12(b)(6) is thus warranted where, as here, the plaintiff fails to

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 547 (2007). On a motion to dismiss pursuant to Rule 12(b)(6), the

Court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004). Plaintiff’s “[t]hreadbare recitals of the elements” of each cause of action that are

“supported by mere conclusory statements” do not suffice to withstand dismissal of the

Complaint for failure to state a claim. Iqbal v. Ashcroft, 129 S. Ct. 1937, 1949 (2009).

Accordingly, the Complaint should be dismissed in its entirety.


25

B. Each Of Mr. Saiyed’s Claims Fail For Failure To Demonstrate That CAIR Proximately Caused His Alleged Damages

As set forth above, based on this Court’s determination in Lopez I, Mr. Saiyed does not have

standing because he has not demonstrated that his injuries were caused by CAIR. As causation of

damages is a key element of each of Mr. Saiyed’s causes of action, each claim automatically

must fail.

The Court can also reach the same conclusion on the face of the Complaint as to Mr.

Saiyed’s allegation that, “but for [CAIR’s and Days’] failures and fraudulent conduct, Plaintiff

would have filed a timely complaint with the EEOC and HRC and would have had a valid claim

in federal court against Enterprise for wrongful and retaliatory termination,” and that he has been

damaged as a result. (Compl. ¶¶ 78-79.) Mr. Saiyed seeks damages related to the fact that his

administrative complaint with the EEOC and HRC had to be filed by December 21, 2007 (id.

¶ 76), but that it was not filed until May 6, 2008 (id. ¶ 61), and as a result his claim was

dismissed as untimely (id. ¶ 73), which decision was ultimately affirmed by the Eastern District

of Virginia and the Fourth Circuit (id. ¶¶ 75, 77). However, Mr. Saiyed does not allege that

CAIR had knowledge of his claim and that Days had purported to represent him until, at the

earliest, “mid-July 2008,” when Mr. Saiyed alleges that he “explained the situation about his

lawsuit against Enterprise” to a CAIR employee. (Id. ¶¶ 65, 66.) Thus, it could only be the

alleged conduct of Days – not CAIR – that proximately caused Mr. Saiyed’s alleged injuries.

Moreover, even if Mr. Saiyed could establish that CAIR was somehow responsible for

the untimely filing of his administrative claims (which he cannot), he still has not demonstrated

or even alleged that he would have been successful on such claims and that he would have thus

been entitled to any damages. Mr. Saiyed thus has not even alleged that he was damaged, let

alone by CAIR. Cf. Mount v. Baron, 154 F. Supp. 2d 3, 10 (D.D.C. 2001) (granting motion to


26

dismiss legal malpractice claim because the plaintiffs “failed to allege any facts showing that but

for the defendants’ negligence, there would have been a different verdict”).

C. Mr. Saiyed Has Not Stated Claims Under The District of Columbia Or Virginia Consumer Protection Acts

Mr. Saiyed’s claims under the DCCPPA, D.C. Code § 28-3901 et seq. (Count One), and

under the VCPA, Va. Code Ann. § 59.1-196 et seq. (Count Two), must be rejected for failure to

state a claim because the allegations quite simply have no relationship to these consumer

protection statutes.15

First, CAIR is explicitly exempt from Plaintiff’s claim under the DCCPPA. Section 28-

3905(k) of the DCCPPA, the section under which Mr. Saiyed brings his claim, specifically

provides that “[a]n action brought by a person under this subsection against a nonprofit

organization

shall not be based on . . . membership services . . . legal malpractice . . . or any

other transaction, interaction, or dispute not arising from the purchase or sale of consumer goods

or services in the ordinary course of business.” D.C. Code § 28-3905(k)(5) (emphasis added).

Plaintiff alleges that CAIR, a nonprofit organization, is a “public interest law firm” providing

“pro bono legal services” and “purports to advocate and litigate on behalf of Muslims in the U.S.

to protect their civil liberties.” (Compl. ¶ 1.) Mr. Saiyed’s claims arise from the alleged

mishandling of his legal claims by CAIR, and those claims may not be brought under the

DCCPPA because CAIR is a nonprofit organization.

15 In the event the Court does not dismiss the consumer protection claims with prejudice for failure to state a claim, it should dismiss them for failure to state the claim with specificity. In order to state a claim for violation of the VCPA, “a plaintiff must allege a fraudulent misrepresentation of fact” with the requisite specificity. Weiss v. Cassidy Dev. Corp., 61 Va. Cir. 237, 244 (2003); see Koschene v. Hutchinson, 73 Va. Cir. 103, 107 (2007) (plaintiff must allege a fraudulent misrepresentation of fact to state a cause of action for violation of the VCPA). See also Washkoviak v. Sallie Mae, 900 A.2d 168, 174 (D.C. 2006) (allegations of misrepresentation under DCCPPA must be pled with particularity). As argued in Section II.D., supra, Mr. Saiyed has failed to plead his allegations of fraud with specificity.


27

Further, to the extent that Mr. Saiyed argues he has an attorney-client relationship with

CAIR that makes CAIR a merchant or goods supplier subject to the DCCPPA, the claim fails

because the statute explicitly exempts lawyers. D.C. Code § 28-3903(c)(2)(C) (excluding from

its purview the “professional services of . . . lawyers”).16 The VCPA claim must also fail,

because the nature of the attorney-client relationship is not one that gives rise to a consumer

claim. While Virginia courts have not had occasion to consider the issue of whether a lawyer is

a “supplier” under the VCPA, the “majority of jurisdictions that have addressed this issue have

held that the regulation of attorneys does not fall within the ambit of consumer protection laws.”

Beyers v. Richmond, 594 Pa. 654, 660 & n.7 (2007) (citing cases). Accordingly, Mr. Saiyed’s

claims under the DCCPPA and VCPA should be dismissed.

D. Mr. Saiyed Has Not Pled His Fraud Claim With Specificity, Nor Stated Facts That Allege A Claim For Fraud As A Matter of Law

In an action for fraud under Virginia law,17 the plaintiff bears the burden of proving “(1)

a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with

intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.”

Flip Mortgage Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir. 1999) (quoting Winn v. Aleda

Constr. Co., 227 Va. 304, 308 (1984)). Similarly, under D.C. law, fraud must be pled with

particularity and proven by clear and convincing evidence, and requires proof of: “(1) a false

representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with

the intent to deceive, and (5) an action that is taken in reliance upon that representation.”

16 As Days himself is not a lawyer, Days personally would not be not subject to the exemption. See Banks v. D.C. Dep’t of Consumer & Regulatory Affairs, 634 A.2d 433, 437 (D.C. 1993). 17 Mr. Saiyed alleges that his claims are brought “under the common law of the Commonwealth of Virginia and/or the District of Columbia.” Even though D.C.’s choice of law principles would likely apply Virginia law, see Estrada v. Potomac Elec. Power Co., 488 A.2d 1359, 1361 n.2 (D.C. 1985), the elements are analyzed under the law of both jurisdictions.


28

Hargraves v. Capital City Mortgage Corp., 140 F. Supp. 2d 7, 27 (D.D.C. 2000) (quoting

Hercules & Co. v. Shama Restaurant Corp., 613 A.2d 916, 923 (D.C. 1992)).

First, Mr. Saiyed has not pled fraud with specificity as required by Fed. R. Civ. P. 9(b).

This specificity requirement “means that the pleader must state the time, place and content of the

false misrepresentations, the fact misrepresented and what was obtained or given up as a

consequence of the fraud.” United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C.

Cir. 1981) (internal citation and quotation omitted). To support his claim for fraud against CAIR

individually, Mr. Saiyed states that, “CAIR damaged Plaintiff through its fraudulent acts” – and

nothing more. (Compl. ¶ 112.) This one-sentence conclusory statement clearly does not even

come close to pleading a fraud claim against CAIR with specificity and, as already demonstrated,

there is not a single allegation in the Complaint that points to any wrongdoing on the part of

CAIR alone. As stated in Section I.D, supra, the one act that Mr. Saiyed alleges to tie CAIR to

the Days Fraud Scheme is actually an allegation of conduct by CAIR-VA

– not CAIR – and,

nonetheless, does not amount to fraudulent conduct because neither CAIR nor CAIR-VA are

alleged to have known that Days was not actually an attorney until November 2007, which is

after the Days Fraud allegedly damaged Mr. Saiyed.

Mr. Saiyed also seeks to attribute fraud to CAIR on the basis of an alleged conspiracy:

“CAIR conspired with Days by entering into an agreement with Days to engage in the fraudulent

conduct described herein above and because Defendant CAIR provided substantial assistance in

carrying out the fraudulent conspiracy.” (Compl. ¶ 113.) The Complaint is completely devoid of

any allegation that CAIR and Days entered into any agreement and/or what “substantial

assistance” CAIR contributed to the alleged conspiracy. Accordingly, this claim lacks the

requisite specificity to pass muster under Rule 19(b).


29

Second, Mr. Saiyed’s claim must fail because they have not alleged – and cannot allege –

any reliance on any statement of CAIR that resulted in damage to them. See Jovanovic v. US-

Algeria Bus. Council, 561 F. Supp. 2d 103, 116 (D.D.C. 2008) (dismissing fraud claim under

12(b)(6) because plaintiff “fail[ed] to sufficiently allege that he suffered damages as a result of

his reliance on the representations”) (emphasis in original). As set forth in Section I.B.1(a),

supra, Mr. Saiyed’ specific allegations giving rise to his “victimization” by the Days Fraud

Scheme focus on conduct by Days – not CAIR. The few allegations of conduct by CAIR do not

amount to fraud, and, even if they did, such alleged conduct was only in connection with the

Alleged Cover-Up, which was not the cause of Mr. Saiyed’s alleged damages. Indeed, Mr.

Saiyed alleges that he first hired Days to represent him on January 8, 2007 (id. ¶ 54), thus

precluding any claim that Mr. Saiyed relied to his detriment on any alleged promotional

activities on the part of CAIR (which allegedly began in March 2007) – the only specific alleged

act attributed to CAIR outside of the Alleged Cover-Up. Mr. Saiyed fails to allege that he took

any action, or refrained from taking any action, that caused him any harm, or that benefited

CAIR, as a result of any allegedly fraudulent statement or omission of CAIR. Accordingly,

Mr. Saiyed’s fraud claim must be dismissed.

E. Mr. Saiyed Has Not Stated A Claim For Breach Of Fiduciary Duty

“To state a claim for breach of fiduciary duty, a plaintiff must allege facts sufficient to

establish the following: (1) defendant owed plaintiff a fiduciary duty; (2) defendant breached that

duty; and (3) to the extent plaintiff seeks compensatory damages – the breach proximately

caused an injury.” Paul v. Judicial Watch, Inc., 543 F. Supp. 2d 1, 5-6 (D.D.C. 2008).

Mr. Saiyed fails to state a claim for breach of fiduciary duty against CAIR because (a) this claim

is based on Mr. Saiyed’s fraud claim, which he has failed to sufficiently plead and (b) Mr. Saiyed


30

has not alleged facts sufficient to establish the existence of a fiduciary relationship between

Mr. Saiyed and CAIR.

First, Mr. Saiyed alleges that the breach of fiduciary duty claim arises from the fraudulent

actions of CAIR. (Compl. ¶¶ 119, 121.) However, because Mr. Saiyed has not adequately pled

his fraud claim, so too must the breach of fiduciary duty claim fail.

Further, Mr. Saiyed alleges that he “reposed trust and confidence in Defendant CAIR and

CAIR agreed with Mr. Saiyed to act as a fiduciary.” (Compl. ¶ 118.) Beyond this conclusory

allegation, Mr. Saiyed has not made any other allegations in the Complaint to support this

alleged relationship between CAIR and himself. The Court is not required to credit Mr. Saiyed’s

conclusory statements that CAIR was in the position of a fiduciary to him (Compl. ¶ 163).

Twombly, 550 U.S. at 555-56. See also Diamond Phoenix Corp. v. Small, No. 05-79, 2005 WL

1530264, at *6 (D. Me. June 28, 2005) (“In order to survive a motion to dismiss a claim for

breach of fiduciary duty, the plaintiff must set forth specific facts constituting the alleged

relationship with sufficient particularity to enable the court to determine whether, if true, such

facts could give rise to a fiduciary relationship”). Indeed, Mr. Saiyed’s factual allegations all

indicate that he put his trust in Days, not CAIR or even CAIR-VA. Mr. Saiyed alleges that,

“during the week of July 21, 2008,” he spoke to a CAIR employee that “informed Plaintiff not to

speak further with Days and reassured Plaintiff that CAIR would look into his case and make

sure it was properly pursued.” (Compl. ¶ 67.) Mr. Saiyed does not even allege what “case” the

CAIR employee was allegedly speaking of, but even if such statement was related to

Mr. Saiyed’s administrative claims, the December 21, 2007 deadline for filing such claims had

long past. Thus, even if this statement (or any statements thereafter) caused Mr. Saiyed to

“repose his trust” in CAIR, any alleged breach of such trust is not what allegedly damaged him


31

by preventing him from filing his administrative claims. These facts indicate that, at all times

relevant to the Days Fraud Scheme, Mr. Saiyed placed his trust in and sought advice from Days

alone. Mr. Saiyed’s allegations clearly do not give rise to a fiduciary relationship between CAIR

and himself. Accordingly, the breach of fiduciary duty claim must be dismissed.

F. Mr. Saiyed Has Not Stated A Claim For Intentional Infliction Of Emotional Distress

The tort of intentional infliction of emotional distress is not favored by the law. Ruth v.

Fletcher, 237 Va. 366, 373 (1989). In order for a plaintiff to survive a challenge on a motion to

dismiss, he must sufficiently allege four elements: (1) the wrongdoer’s conduct was intentional

or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection

between the wrongdoer’s conduct and the resulting emotional distress; and (4) the resulting

emotional distress was severe. Russo v. White, 241 Va. 23, 28 (1991); Womack v. Eldridge, 215

Va. 338 (1974). See also Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 139 (D.C. 2006)

(a claim of intentional infliction of emotional distress requires a showing of “(1) extreme and

outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes

the plaintiff severe emotional distress.”). Here, Mr. Saiyed has failed to allege any facts

establishing outrageous or intolerable conduct on the part of the CAIR, or severe emotional

distress on the part of Mr. Saiyed, as required for his Intentional Infliction of Emotional Distress

claim to survive.


32

1. Mr. Saiyed Has Not Asserted Any Factual Allegations That Rise To The Level Of Outrageous Or Intolerable Conduct

Mr. Saiyed has not alleged, as a matter of law, any “conduct [that] goes ‘beyond all

possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized

community.” Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980) (quoting Restatement

(Second) Torts 46 cmt d. n.21). See also Russo, 241 Va. at 27 (“outrageous or intolerable

conduct” is defined as actions reaching “beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.”) (quoting Ruth, 237 Va.

at 368). Additionally, there is no allegation in the Complaint that CAIR’s conduct reflects “an

intent to ‘purposefully [cause] a disturbance of other’s mental or emotional tranquility to such a

degree that physical consequences would not be unlikely to occur.’” Waldon, 415 A.2d at 1077

(brackets in original) (quoting Clark v. Associated Retail Credit Men, 105 F.2d 62 (D.C. Cir.

1939)).

Mr. Saiyed makes the conclusory allegation that “the wrongful conduct . . . was . . .

outrageous and intolerable.” (Compl. ¶ 126.) Mr. Saiyed asserts this essential element of the

claim as a rote conclusion of law without pleading any demonstrative facts. Mr. Saiyed states

that his emotional distress claim is based on “the wrongful conduct of Defendant CAIR giving

rise to the fraud described herein” and that such conduct “was (a) intentional and/or reckless and

(b) outrageous and intolerable.” (Compl. ¶ 126.) Merely claiming that CAIR’s alleged actions

rise to the level of “outrageous” or “intolerable” does not make them so. This Court has held

that “fraud alone is not enough to state a claim for intentional infliction of emotional distress

under District of Columbia law.” Massengale v. Ogu, No. 91-489, 1992 U.S. Dist. LEXIS 975,


33

at *2 (D.D.C. Jan. 28, 1992).18 Even if it were, CAIR has demonstrated why Mr. Saiyed’s fraud

claim must fail and thus his claim for emotional distress based on such fraud must necessarily

fail as well. As such, the requirement that the CAIR’s behavior be outrageous or intolerable has

not been met and the claim should be dismissed. Metropolitan Life Ins. v. Barbour, 555 F.

Supp. 2d 91, 101 (D.D.C. 2008) (granting motion to dismiss intentional infliction of emotional

distress claim under District of Columbia law where claim “fails to plead any conduct . . . that

could be considered ‘atrocious’ and ‘utterly intolerable’”).

Further, when no reasonable person could find the behavior outrageous, the claim should

be dismissed as a matter of law. Almy v. Grisham, 273 Va. 68 (2007). In this case, no

reasonable person could view CAIR’s alleged behavior as sufficiently outrageous or outside the

bounds of decency.

2. Mr. Saiyed Has Not Asserted Facts Sufficient To Allege That He Suffered Severe Emotional Distress

Finally, Mr. Saiyed’s claim for intentional infliction of emotional distress also fails

because there is no allegation that Mr. Saiyed suffered from severe emotional distress. Severe

emotional distress is so extreme that “no reasonable person could be expected to endure it.”

Russo, 241 Va. at 27. Recovery is not permitted merely because the conduct causes mental

distress. Than v. Radio Free Asia, 496 F. Supp. 2d 38, 51 (D.D.C. 2007).

In this case, Mr. Saiyed does not allege any physical manifestations, let alone any

emotional symptoms at all. He does not allege that he saw any medical providers as a result of

18 To the extent that Mr. Saiyed alleges that CAIR’s “violation of its fiduciary duty to plaintiff” is the basis for the claim (Compl. ¶ 127), a claim of breach of fiduciary duty cannot be the sole basis for an intentional infliction of emotional distress claim. See Hailes v. Lincoln Serv. Corp., No. 86-5252, 1987 U.S. App. LEXIS 14134, at *3, *6-7 (D.C. Cir. 1987) (per curiam) (affirming summary judgment against plaintiff mortgagor by finding that intentional infliction of emotional distress was not supported by allegations of breach of a fiduciary duty to maintain accurate records, because such conduct was not “beyond all bounds of decency,” “extreme or outrageous,” or “without just cause or excuse”).


34

the severe emotional distress. The sum total of the alleged facts surrounding his “severe

emotional distress” are the verbatim conclusory allegations that he “suffered severe emotional,

mental, and physical distress resulting from CAIR’s breach of fiduciary duty owed to him,

including anxiety, lack of appetite, inability to sleep, relationship problems with his friends and

family, inability to sustain employment resulting from his anxiety, and other manifestations.”

(Compl. ¶ 80.) This allegation is woefully insufficient and the claim must fail as a matter of law.

See, e.g., Lyles v. Micenko, 468 F. Supp. 2d 68, 75 (D.D.C. 2006) (granting motion for summary

judgment where plaintiff submitted “mere allegations or conclusory statements” that plaintiff

suffered from severe emotional distress). Accordingly, Mr. Saiyed’s cause of action for

intentional infliction of emotional distress should be dismissed.

CONCLUSION

WHEREFORE, for the foregoing reasons, CAIR respectfully requests that the Court

enter an Order granting its Motion to Dismiss, dismissing all claims with prejudice for lack of

subject matter jurisdiction. In the alternative, CAIR respectfully requests that the Court dismiss

the Complaint in its entirety for failure to state a claim.

Dated: February 25, 2010




Attorneys for CAIR


35

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 25th day of February, 2010, true and correct copies of

the foregoing Defendant’s Memorandum of Points and Authorities in Support of Defendant’s

Motion to Dismiss were served via ECF upon all counsel of record.


Adam S. Caldwell (D.C. Bar No. 445786)


Documents

IN THE UNITED STATES DISTRICT COURT COUNCIL ON …Adam S. Caldwell (D.C. Bar No. 445786) Leslie G. Moylan (D.C. Bar No. 985716) DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave., N.W.,