# CDM Smith Inc. v. Atasi

> District Court, D. Massachusetts · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10200164

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200164

## How later opinions describe it (automated extraction)

- holding that a forum selection clause was unenforceable

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
CDM SMITH INC., )
)
Plaintiff, )
) Civil Action
v. ) No. 20-cv-12108-PBS
)
KHALIL ATASI, )
)
Defendant. )
)
______________________________ )

MEMORANDUM AND ORDER
March 29, 2022
Saris, D.J.
INTRODUCTION
Plaintiff CDM Smith Inc. (“CDM”) brings this action against
its former employee, Defendant Khalil Atasi, who successfully
litigated a claim for compensation under a Saudi Arabian contract
against CDM in the Kingdom of Saudi Arabia (“KSA”). Alleging that
Atasi was paid twice for the same work, CDM asserts claims under
state law seeking the return of the duplicate wages. CDM claims
unjust enrichment (Count I), money had and received (Count II),
breach of the duty of loyalty and against self-dealing (Count III),
breach of a constructive trust (Count IV), conversion (Count V),
breach of the implied covenant of good faith and fair dealing
(Count VI), negligent and/or intentional misrepresentation (Count
VII), and fraud on the court (Count VIII). CDM also seeks a
declaratory judgment:
(a) that the KSA Instrument did not require CDM to pay
Atasi a salary in addition to the compensation he
received pursuant to his at-will employment arrangement;
and (b) that the KSA Award is not recognized or
conclusive under the Massachusetts Uniform Foreign
Money-Judgment[s] Recognition Act (M.G.L. c. 235 § 23);
and [(c)] ordering Atasi to return the Funds to CDM.

Dkt. 24, ¶ 110.
Atasi has moved to dismiss on the grounds of collateral
estoppel, forum non conveniens, and failure to state a claim as to
several counts. As to collateral estoppel, Atasi argues that all
claims are precluded by the KSA judgment, which is entitled to
recognition and enforcement under Massachusetts’ version of the
Uniform Foreign Money-Judgments Recognition Act (“Massachusetts
Foreign Money-Judgments Recognition Act”). As to forum non
conveniens, Atasi argues that the KSA contract’s forum selection
clause should be enforced via the dismissal of all claims without
prejudice to refiling in the KSA. And Atasi argues that Counts
III, IV, V, VI, and VIII fail to state a claim upon which relief
can be granted.
CDM has moved to strike the expert affidavits on the law of
Saudi Arabia that Atasi filed with his Motion to Dismiss, arguing
that they cannot be considered at the motion-to-dismiss stage and
that at least portions of them are inadmissible under Federal Rules
of Evidence 702 and 403. Atasi responds that the affidavits are
admissible under Federal Rule of Civil Procedure 44.1 for the
determination of foreign law.
After hearing, Plaintiff’s Motion to Strike Defendant’s
Expert Affidavits (Dkt. 51) is ALLOWED IN PART and DENIED IN PART.
Defendant’s Motion to Dismiss (Dkt. 40) is ALLOWED IN PART without
prejudice under the doctrines of collateral estoppel and forum non

conveniens as to Counts III, IV, V, VI, and VIII and DENIED IN
PART as to Counts I, II, and VII.
FACTUAL BACKGROUND
The verified amended complaint alleges the following facts.
In addition, the court considers the rulings of the court in KSA.
See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (noting the
rule that courts do not consider documents outside of the complaint
at the motion-to-dismiss stage before explaining that “courts have
made narrow exceptions for documents the authenticity of which are
not disputed by the parties; for official public records; for
documents central to plaintiffs' claim; or for documents

sufficiently referred to in the complaint”).
I. Two Contracts
CDM, an engineering and construction firm in Massachusetts,
hired Khalil Atasi in 2008, pursuant to an at-will employment
contract, as an environmental engineer. At the time of his
discharge in 2018, he was a Senior Vice President and Shareholder.
Atasi’s responsibilities included traveling to various countries
in the Middle East, including the KSA, where he managed the
company’s operations. He was being paid an annual salary of
$228,841 (not including benefits) by CDM’s accounting office in
Massachusetts. He held a power of attorney authorizing him to act
as a fiduciary on CDM’s behalf.
For CDM to hold a KSA Commercial Registration, the person

responsible for the company’s KSA operations, or “General
Manager,” was required to hold a work permit and a residence visa
known as an Iqama. Acquiring these documents required a written
employment contract from the local KSA CDM entity. As such, Atasi
prepared a document, written in both English and Arabic, evidencing
his employment with CDM’s local KSA branch. The document was
executed on September 15, 2015; Atasi asked a CDM employee in KSA
to whom he reported to sign on the company’s behalf. An email
transmitting the document states that the KSA contract’s salary
was intended to “match” his existing U.S. compensation. The KSA
contract contained a forum selection clause that read, “Any

disputes or differences arising between the two contract parties
. . . shall be referred to the competent authorities concerned in
solving the disputes according to the Law of Labor.” Dkt. 40-3 at
13. The next provision made clear that this is the “Law of Labor
of the Kingdom of Saudi Arabia.” Id.
Atasi’s job responsibilities did not change after executing
the KSA contract and he spent less time in the KSA than he had
previously. Prior to his termination, Atasi did not ask for payment
under the KSA contract and never received any. He filed timesheets
for U.S. payroll payments, not the separate timesheets used for
local payroll in the KSA. CDM continued to pay Atasi under his
U.S. contract until it wound down its KSA operations and terminated
Atasi in February 2018.

II. Atasi Sues CDM in the KSA
Shortly after his termination, Atasi commenced a legal action
before the KSA Labor Committee, alleging that the KSA contract was
a separate contract entitling him to payment in addition to his
payment under the U.S. contract. He told the Committee that he had
previously asked for this additional salary to be paid, and that
CDM had told him its KSA bank account was frozen and that he would
receive his payment, and his accumulated vacation time, once all
of the company’s matters in the KSA were addressed. CDM alleges
that Atasi lied to the Committee.
According to CDM, the proceedings were unfair. Under the KSA

Committee’s procedures, CDM was unable to conduct any electronic
or document discovery. No oral testimony was permitted, and the
factual submissions through attorneys were not submitted under
oath.
The KSA Committee found for Atasi, holding:
[T]he plaintiff’s contracts were fundamentally different
as the job title in his contract signed in the United
States of America was under the name (environmental
engineer) with a weekly wage of $ 7308 and the contract
the one executed + [sic] in the Kingdom of Saudi Arabia
under another job title is (General Manager) in the tenth
degree and the monthly wage is (74250) riyals, and
therefore the two contracts are separate from each other
and not as the defendant’s attorney claimed.

Dkt. 40-3 at 35. CDM appealed, unsuccessfully. The KSA Supreme
Committee held:
[T]he argument presented by the company which is based
on claiming that the employment contract is fictitious
and concluded only for completing procedures for the
issuance of Work visa is not considered as a cause for
cancelling what was drawn up and signed between the two
parties, and if the case had been as stated by the
company, it would have drawn up a document proving that
that contract was fictitious, or presented whatever
proofs to support such claim. Also the argument
presented by the company that the employee has not
claimed his wages throughout the period of his work at
the company’s branch in the Kingdom of Saudi Arabia is
not a reason that leads to dropping the right.
. . .
Whereas the basis is the agreement, which was made and
documented by signatures of the two parties, and as the
defendant did not present in its arguments and in its
list of appeal document and subsequent memos whatever
proves that the labor relation is an extension of the
relation with the company without additional
obligations, and as it failed to provide evidence for
all that it has mentioned, and it didn’t present the
email that it has mentioned. So, the Circuit agrees with
what [was] stated by the Primary Commission which stated
that the relation with the branch is an independent
relation which is separate from the relation with the
parent company, and it agrees with it in the judgment
about wages of the employee for his period of work.

Id. at 83–84. CDM was ordered to pay Atasi the equivalent of
$760,744 for his salary under the KSA contract along with an end
of service gratuity payment and compensation for his untaken leave.
CDM paid the KSA Enforcement Court the full amount to avoid further
penalties and made a formal demand upon Atasi to return the funds,
which are now deposited in a Bank of America Account.
DISCUSSION
I. Motion to Strike Defendant’s Expert Affidavits
Atasi attached several exhibits to his Motion to Dismiss,
including the original Arabic court filings and the English

translations of these filings. CDM has moved to strike two
affidavits that were attached to the motion: one by Zikra Bint
Mohammad Bin Abdullah AlQarni, who represented Atasi in the KSA
action, and one by Saad AlMansour, who was not involved in the
action, but whom Atasi describes as “a lawyer with years of
experience practicing in Saudi Arabia and a deep understanding of
both the Saudi and American legal systems.” Dkt. 55 at 2.
CDM argues that these two affidavits should be stricken,
primarily arguing that they cannot be considered on a motion to
dismiss because they introduce facts outside the pleading.
Alternatively, CDM argues they should be stricken as inadmissible

under Federal Rules of Evidence 403 and 702.
As the parties agree, Federal Rule of Civil Procedure 44.1
governs the admissibility of evidence “[w]hen foreign law is
relevant to a case instituted in federal court.” Animal Sci.
Prods., Inc. v. Heibei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865,
1869 (2018). The Rule provides, “In determining foreign law, the
court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under
the Federal Rules of Evidence.” Fed. R. Civ. P. 44.1. This is
because a determination of foreign law “must be treated as a ruling
on a question of law.” Id. CDM does not dispute that Rule 44.1
governs the admissibility of affidavits for the determining of
foreign law, even on a motion to dismiss, but argues that the

fundamental issue raised by the Motion to Dismiss is the
application of the Massachusetts Foreign Money-Judgments
Recognition Act, a state law.
In applying the Massachusetts Foreign Money-Judgments
Recognition Act, a court must determine foreign law. Questions
such as whether KSA tribunals are impartial, whether they use
procedures compatible with the requirements of due process, and
whether they recognize Massachusetts judgments all involve at
least in part questions of law, so Rule 44.1 governs. See Soc’y of
Lloyd’s v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (explaining
that whether a foreign state provides impartial tribunals and

procedures compatible with due process “is not, strictly speaking,
a question of law . . . , but it is a question about the law of a
foreign nation, and in answering such questions a federal court is
not limited to the consideration of evidence that would be
admissible under the Federal Rules of Evidence”).
Insofar as the affidavits help with these determinations of
foreign law, they are admissible under Rule 44.1. See 9A Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2444
(3d ed. 2008) (“Since foreign law is an issue to be determined by
the district judge, an expert witness has not been required to
meet any special qualifications.). That said, Rule 44.1 does not
allow for the admissibility of expert testimony that goes beyond
helping the court determine the content of foreign law. See id.

(“Although courts do not strike experts who offer legal
conclusions, the purpose of an expert witness in foreign law is to
aid the court in determining the content of the applicable foreign
law, not to apply the law to the facts of the case.”). The portions
of the affidavits that attempt to introduce facts of the case not
found in the pleadings, rather than the content of foreign law,
are not governed by Rule 44.1 and so will not be considered on
this Motion to Dismiss.
II. Motion to Dismiss
A. Massachusetts Foreign Money-Judgments Recognition Act and
Collateral Estoppel

Atasi argues that the action should be dismissed on the ground
that the action is barred by the doctrine of collateral estoppel
because the KSA judgment is recognizable under the Massachusetts
Foreign Money-Judgments Recognition Act and precludes relitigation
of CDM’s claims. CDM responds that the KSA judgment is not
conclusive under Massachusetts law because it was not rendered
under a system that provides impartial tribunals and procedures
compatible with due process and cannot be recognized under
Massachusetts law because it was procured by fraud, Atasi’s claim
for double salary is repugnant to the public policies of
Massachusetts, and Massachusetts judgments are not recognized in
the KSA. CDM also argues that, even if the KSA judgment is
conclusive and recognizable, Atasi has not met the necessary

elements of collateral estoppel, so the judgment has no preclusive
effect.
1. Massachusetts Foreign Money-Judgments Recognition Act
The Massachusetts Foreign Money-Judgments Recognition Act
provides that “any foreign judgment that is final and conclusive
and enforceable where rendered . . . shall be conclusive between
the parties to the extent that it grants or denies recovery of a
sum of money.” M.G.L. c. 235, § 23A. CDM argues that the following
statutory exceptions apply: a foreign judgment shall not be
“conclusive” if “it was rendered under a system which does not
provide impartial tribunals or procedures compatible with the

requirements of due process of law” and a foreign judgment shall
not be recognized if “the judgment was obtained by fraud,” “the
cause of action on which the judgment is based is repugnant to the
public policy of this state,” or “judgments of this state are not
recognized in the courts of the foreign state.” Id. Whether a
foreign judgment should be recognized must be determined when a
party seeks to rely on the prior adjudication of a controversy,
including under the doctrine of res judicata. See Evans Cabinet
Corp. v. Kitchen Int’l, Inc. 593 F.3d 135, 142 n.8 (1st Cir. 2010).
“The burden of proof in ‘establishing the conclusive effect of a
foreign judgment is on the party asserting conclusiveness.’”
Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276, 286 (S.D.N.Y.
1999) (holding a foreign system not impartial given an ongoing

civil war) (quoting 11 Jack B. Weinstein et al., New York Civil
Practice ¶ 5302.01 (1998)).
a. System of Impartial Tribunals
The first issue is whether the KSA judgment was rendered under
a system that provides impartial tribunals. To make this
determination, the court must conduct an analysis of the “system”
as a whole, regardless of whether the instant proceedings were
impartial. See Ashenden, 233 F.3d at 477 (“The statute, with its
reference to ‘system,’ does not support . . . a retail approach.”).
But the parties differ in how they view the scope of the “system”:
the judicial system as a whole or just the KSA Labor Courts.

CDM argues that KSA tribunals overall are biased against non-
Muslim litigants and so are not impartial. CDM submitted expert
testimony to address recognition under the Massachusetts Foreign
Money-Judgments Recognition Act, but the affidavit does not
directly address the issue of pro-Muslim bias. CDM’s expert,
Christopher H. Johnson, who has practiced Saudi Law for 43 years
and served as an expert in Saudi Law for the U.S. Department of
Justice, did not discuss any bias, despite being asked to “analyze
what substantive and procedural differences, if any, exist between
the processes and procedures employed by the Commission and that
of the American system of jurisprudence, with particular attention
to . . . the criteria described in the Massachusetts Foreign Money-
Judgments Recognition Act.” Dkt. 50-8, ¶ 15.

CDM cites a section of a recent Department of State report on
the KSA criminal system that found “the law and practice
discriminate against women, noncitizens, nonpracticing Sunni,
Shia, and persons of other religions” in trial procedures. U.S.
Department of State, 2017 Country Reports on Human Rights
Practices: Saudi Arabia 18, state.gov/reports/2017-country-
reports-on-human-rights-practices/saudi-arabia/ (“For example, in
most cases a woman’s testimony before a court counts as only half
that of a man’s. Judges may discount the testimony of nonpracticing
Sunni Muslims, Shia Muslims, or persons of other religions; sources
reported that judges sometimes completely disregarded or refused

to hear testimony by Shia.”). The report raises serious concern
abut the impartiality of the criminal justice system. See
Restatement (Fourth) of Foreign Rel. L. § 483 (“Courts that
systematically discriminate on the basis of factors such as
nationality, race, sex, wealth, political affiliation, or other
status may fail to qualify as impartial tribunals.”). But the
report does not address the impartiality of the KSA Labor Courts.
As to the KSA Labor Courts, a district court held, based on
the undisputed testimony of two expert witnesses, that the Labor
Courts were not an adequate forum because they would only credit
an individual’s testimony if it is corroborated by two adult, male,
Muslim witnesses. Petersen v. Boeing Co., 108 F. Supp. 3d 726, 729
(D. Ariz. 2015) (holding that a forum selection clause was

unenforceable). A Massachusetts court also expressed doubt two
decades ago about KSA forums, also based on undisputed expert
testimony. See Rhodes v. ITT Sheraton Corp., No. Civ.A. 97-4530-
B, 1999 WL 26874, at *3 (Mass. Super. Ct. Jan. 15, 1999) (declining
to dismiss for forum non conveniens on the ground of biases against
women and non-Muslims in Saudi Arabia).
The question of impartiality is a close call. It is disputed
whether the system-wide analysis under the Massachusetts Foreign
Money-Judgments Recognition Act involves all aspects of the
judicial system or just the particular kind of court or procedures
involved in handling the type of dispute at issue. Atasi

convincingly focuses on the KSA civil legal system, and the KSA
Labor Courts in particular, as the system in question. This is the
“system” which must provide impartial tribunals and procedures
compatible with due process for its judgments to be recognized.
CDM’s expert was silent as to any pro-Muslim bias, let alone
in the KSA Labor Courts specifically. Atasi’s expert Almansour,
who has nine years of experience in Saudi Law, stated, “All parties
to a case before the labor commissions are treated equally as the
judges are limited to base their decisions on the Saudi Labor law
and as it is a given all Saudi laws including the Labor law
considers opposing parties equal.” Dkt. 40-4, ¶ 26. On the record
before the Court, Atasi has met his burden in demonstrating that
the KSA Labor Courts provide impartial tribunals.

b. Procedures Compatible with Due Process
The second issue is whether the KSA judgment was rendered
under a system that provides procedures compatible with due process
of law. CDM argues that the procedures of the KSA Committee are
not compatible with due process because they limit discovery and
cross-examination, and primarily limit the formal presentation of
evidence to written submissions, without requiring they be
submitted under oath. See Dkt. 50-8, ¶¶ 22–32 (“It is my
professional opinion that because of the due process limitations
described above, CDM was deprived of the right to a fair and fully
considered determination of all relevant facts consistent with

U.S. Constitutional principles.”). Contrary to the assertion of
CDM’s expert, these procedures are compatible with due process.
See Ashenden, 233 F.3d at 476–77 (“The statute requires only that
the foreign procedure be ‘compatible with the requirements of due
process of law,’ and we have interpreted this to mean that the
foreign procedures are ‘fundamentally fair’ and do not offend
against ‘basic fairness.’”); see also Restatement (Fourth) of
Foreign Rel. L. § 483 cmt. c (Am. L. Inst. 2018) (“[T]he absence
of attorney cross-examination of witnesses or a foreign court’s
primary reliance on written depositions, rather than oral
testimony, does not by itself constitute a fundamentally unfair
approach to the presentation of evidence.”).
c. Fraud on the Court

CDM alleges that the judgment was procured by fraud on the
court, chiefly via falsehoods in the submissions. In the context
of the Massachusetts Foreign Money-Judgments Recognition Act, “the
fraud ‘must relate to matters other than issues that could have
been litigated and must be fraud on the court.’” Soc’y of Lloyd’s
v. Hamilton, 501 F. Supp. 2d 248, 252 (D. Mass. 2007) (quoting
Soc'y of Lloyd's v. Mullin, 255 F. Supp. 2d 468, 473 (E.D. Pa.
2003)). There is fraud on the court “where it can be demonstrated,
clearly and convincingly, that a party has essentially set in
motion some unconscionable scheme calculated to interfere with the
judicial system’s ability impartially to adjudicate a matter by

improperly influencing the trier or unfairly hampering the
presentation of the opposing party’s claim or defense.” Aoude v.
Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). A party “must
prove ‘the most egregious conduct involving a corruption of the
judicial process itself. Examples are bribery of judges,
employment of counsel to “influence” the court, bribery of the
jury, and the involvement of an attorney (an officer of the court)
in the perpetuation of fraud.’” In re Paternity of Cheryl, 746
N.E.2d 488, 498 (Mass. 2001) (quoting MacDonald v. MacDonald, 552
N.E. 2d 533, 536 (Mass. 1990)).
CDM’s allegations of falsehoods were actually litigated in
the KSA action. See, e.g., Dkt. 40-3 at 28 (“We respond by saying
that what was stated by the plaintiff’s attorney about a new

contract is false.”). Moreover, any such allegations of falsehoods
about the issues in a case would not generally amount to the
egregious conduct of fraud on the court. See Restatement (Fourth)
of Foreign Rel. L. § 484 cmt. d (“False testimony or forged
evidence does not by itself provide a basis for nonrecognition
because it should have been raised and dealt with in the foreign
proceeding.”).
d. Cause of Action Repugnant to Public Policy
CDM argues that Atasi’s cause of action “to fraudulently
leverage a double salary” is repugnant to public policy, Dkt. 50
at 17, but this misstates the cause of action. Atasi brought a

breach of contract claim based on his allegation that he had a
separate KSA contract. Breach of contract is not a cause of action
repugnant to Massachusetts public policy. See Mullin, 255 F. Supp.
2d at 476 (holding a breach of contract action was not repugnant
to public policy, regardless of the facts underlying the cause or
the differences in law in deciding the action because “the Court
must focus on the ‘cause of action’ . . . [which] narrows the scope
of the Court’s inquiry significantly”).
e. Reciprocity
CDM and Atasi’s experts stated opposite conclusions as to
whether U.S. judgments are recognized by KSA courts. Compare
Dkt.50-8, ¶ 39 (“It has been our law firm’s experience that absent

an international treaty, the Saudi Enforcement Court is reluctant
to recognize or enforce foreign judgments.”) with Dkt. 40-4, ¶ 36
(“[C]ourts in Saudi Arabia do enforce judgments from courts of the
United States of America.”) and Dkt. 40-2, ¶ 25 (“I . . . can
attest that the courts of the Kingdom of Saudi Arabia regularly
recognize and enforce [U.S.] judgments.”). Atasi has produced
evidence that United States judgments are recognized by the KSA:
a 2008 KSA decision recognizing and enforcing a D.C. district court
judgment. See Dkt. 81-1 at 12–13 (“[T]he principle of reciprocity
between the Kingdom of Saudi Arabia and the United States of
America exists . . . . Therefore, the Chamber decided to execute

the judgment issued by the US District court for the District of
Columbia.”).1 CDM has failed to produce a single instance of the

1 CDM moved to strike this supplemental authority, arguing that Atasi failed to
obtain leave to file its notice, included redundant argument with the authority,
and failed to provide notice that he intended to raise an issue of foreign law,
as required by Fed. R. Civ. P. 44.1. See Dkt. 83. But Atasi did not raise any
issue of foreign law in filing the notice of supplemental authority; the
question of reciprocity has already been briefed by both parties and the Court
asked the parties at the hearing whether either had proof of reciprocity through
a KSA case enforcing or refusing to enforce an American judgment. The Court
allowed the notice of supplemental authority but refused to consider the
additional briefing on the issues. See Dkt. 86; see also Fed. R. Civ. P. 44.1
KSA refusing to recognize a Massachusetts or United States
judgment. Absent this evidence, its expert affidavit cannot rebut
Atasi’s evidence of reciprocity. The KSA judgment is entitled to
recognition under the Massachusetts Foreign Money-Judgments
Recognition Act.
2. Collateral Estoppel

Atasi moves to dismiss all claims under the doctrine of
collateral estoppel based on the KSA judgment. Under the
traditional approach to collateral estoppel:
When the parties in a subsequent action are the same as
those in a prior one, a party seeking to invoke the
doctrine of issue preclusion needs to establish four
essential elements: “(1) the issue sought to be
precluded must be the same as that involved in the prior
action; (2) the issue must have been actually litigated;
(3) the issue must have been determined by a valid and
binding final judgment; and (4) the determination of the
issue must have been essential to the judgment.”

Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 51
(1st Cir. 1997) (quoting Grella v. Salem Five Cent Sav. Bank, 42
F.3d 26, 30 (1st Cir. 1994)).
Here, the question of issue preclusion involves only issues
actually decided in the KSA action. See Grella, 42 F.3d at 30 (“The
principle of collateral estoppel, or issue preclusion, bars
relitigation of any factual or legal issue that was actually
decided in previous litigation . . . .”).

(“In determining foreign law, the court may consider any relevant material or
source.”) (emphasis added).
The KSA Committee held that “the two contracts are separate
from each other” and that Atasi was owed money under the terms of
the KSA contract. Dkt. 40-3 at 35. The Supreme Committee agreed,
holding, “[T]he argument presented by the company which is based
on claiming that the employment contract is fictitious and
concluded only for completing procedures for the issuance of Work

visa is not considered as a cause for cancelling what was drawn up
and signed between the two parties.” Id. at 83. While CDM argued
in the KSA litigation that “those tasks that [Atasi] carries out
as a director of the company’s branch in the Kingdom of Saudi
Arabia is among the core of his duties that were contracted with
him in the United States of America,” id. at 74, the KSA Committee
did not actually decide the issue of whether CDM is entitled to an
equitable set-off credit for duplicative pay, nor whether Atasi
breached his duties to CDM in drafting a contract that would
entitle him to unexpected payment and misrepresenting this
intention. Atasi argued in the KSA action that the KSA Committee

had ”nothing to do with his contract in his country [the United
States].” Id. at 35. The KSA Committee agreed. Insofar as the
claims allege a cause of action arising under the KSA contract,
they are barred under the doctrine of collateral estoppel. But the
KSA judgment does not preclude the remaining claims relating to
the U.S. employment contract.
B. Forum Non Conveniens
The Court next addresses Atasi’s argument that all claims
should be dismissed under the forum selection clause in the KSA
contract. The KSA contract contains a forum selection clause that
reads, “Any disputes or differences arising between the two
contract parties . . . shall be referred to the competent

authorities concerned in solving the disputes according to the Law
of Labor.” Dkt. 40-3 at 13. The next provision makes clear that
this is the “Law of Labor of the Kingdom of Saudi Arabia.” Id.
“[T]he appropriate way to enforce a forum-selection clause
pointing to a . . . foreign forum is through the doctrine of forum
non conveniens.” Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct.
for W. Dist. of Tex., 571 U.S. 49, 60 (2013).
Normally, a defendant moving for dismissal on forum non
conveniens grounds “bears the burden of showing both that an
adequate alternative forum exists and that considerations of
convenience and judicial efficiency strongly favor litigating the

claim in the alternative forum.” Iragorri v. Int’l Elevator, Inc.,
203 F.3d 8, 12 (1st Cir. 2000). As to convenience and efficiency,
“the defendant must show that the compendium of factors relevant
to the private and public interests implicated by the case strongly
favors dismissal.” Id.
A valid forum selection clause alters the forum non conveniens
analysis because the enforcement of bargained for provisions
protects the parties’ legitimate expectations and furthers the
interests of justice; thus “a valid forum-selection clause [should
be] given controlling weight in all but the most exceptional
cases.” Atl. Marine Constr. Co., 571 U.S. at 63 (quoting Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J.,
concurring)). “[T]he plaintiff’s choice of forum merits no weight”

because the plaintiff agreed to a forum through the forum selection
clause. Atl. Marine Constr. Co., 571 U.S. at 63. And the parties’
private interests are not considered at all because, in agreeing
to the clause, “they waive[d] the right to challenge the
preselected forum as inconvenient or less convenient for
themselves or their witnesses, or for their pursuit of the
litigation.” Id. at 64. In fact, “[a] court accordingly must deem
the private-interest factors to weigh entirely in favor of the
preselected forum.” Id. Additionally, “[m]ost courts do not
discuss whether the location identified in an applicable,
mandatory, valid, and enforceable forum-selection clause is

available or adequate,” on the assumption that the parties selected
an adequate forum. Azima v. RAK Inv. Auth., 926 F.3d 870, 875 &
n.2 (D.C. Cir. 2019).
1. Forum Selection Clause
In deciding whether a forum selection clause is enforceable,
the Court first determines whether the clause is mandatory or
permissive, then whether the claims at issue fall within the scope
of the clause, and finally whether the clause should be enforced.
Atlas Glass & Mirror, Inc. v. Tri-North Builder, Inc., 997 F.3d
367, 374–75 (1st Cir. 2021).
a. Mandatory or Permissive
“Permissive forum selection clauses, often described as
‘consent to jurisdiction’ clauses, authorize jurisdiction and

venue in a designated forum, but do not prohibit litigation
elsewhere. . . . In contrast, mandatory forum selection clauses
contain clear language indicating that jurisdiction and venue are
appropriate exclusively in the designated forum.” Rivera v. Centro
Medico de Turabo, Inc., 575 F.3d 10, 17 (1st Cir. 2009) (quoting
14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3803.1 (3d ed. 1998)). Contrary
to CDM’s assertions, based on the use of this term “shall,” this
is best understood as a mandatory forum selection clause.
b. Scope of the Clause
With respect to the scope of the clause, the forum selection

clause is broadly written to cover “any” dispute, between the
contracting parties, so claims relating to the KSA contract are
covered by the clause.
CDM argues that the clause extinguished upon Atasi’s
termination and so this dispute outside the parties’ contractual
relationship, particularly as it relates to Atasi’s actions in the
KSA litigation. This misstates the law on forum selection clauses.
See Litton Financial Printing v. NLRB, 501 U.S. 190, 208 (1991)
(“We presume as a matter of contract interpretation that the
parties did not intend a pivotal dispute resolution provision to
terminate for all purposes upon the expiration of the agreement.”)
CDM also argues that some of its claims do not arise under
the KSA Contract and so cannot be governed by it. For example, it

argues that its claim for an “equitable right to a set-off” or “an
offsetting credit” for work under the U.S. contract falls outside
the scope of the KSA contract. Dkt. 50 at 26. I agree that some of
CDM’s claims squarely arise under the separate U.S. contract. Count
I (unjust enrichment) focuses on Atasi’s retention of the funds
“and his at-will salary.” Dkt. 24, ¶ 59. Count II (money had and
received) asks for return of “Funds which in equity and good
conscience should be returned to CDM.” Id. ¶ 63. Insofar as these
claims are based on CDM’s right to recoup for its payment under
the U.S. contract for work that Atasi has already been paid for
under the KSA contract, the claims are outside the scope of the

forum selection clause. Similarly, Count VII (negligent and/or
intentional misrepresentation) focuses on Atasi’s silence during
his at-will employment under the U.S. contract as to “his secret
intention to later seek double compensation under the KSA
Instrument.” Id. ¶ 91. CDM argues that it “continued to pay Atasi
pursuant to the parties’ at-will employment arrangement” in
reliance on Atasi’s misrepresentation. Id. ¶ 94. This claim arises
under the U.S. contract and is outside the scope of the forum
selection clause. Counts I, II, and VII are not dismissed because
they are outside the scope of the forum selection clause and, as
stated above, not barred by collateral estoppel because they were
not decided in the KSA litigation.
On the other hand, claims involving the dispute between the

parties relating to the KSA contract (Counts III, IV, V, VI, and
VIII) fall squarely within the scope of the clause. Most of these
claims are barred under the doctrine of collateral estoppel.
However, to the extent they are not barred, they fall within the
scope of the forum selection clause.
c. Enforceability
CDM argues that even for claims within the scope of the forum
selection clause, the clause is unenforceable. There are four
possible grounds for finding a forum selection clause
unenforceable:
(1) the clause was the product of “fraud or
overreaching”; (2) “enforcement would be unreasonable
and unjust”; (3) proceedings “in the contractual forum
will be so gravely difficult and inconvenient that [the
party challenging the clause] will for all practical
purposes be deprived of his day in court”; or (4)
“enforcement would contravene a strong public policy of
the forum in which suit is brought, whether declared by
statute or by judicial decision.”

Atlas Glass & Mirror, 997 F.3d at 375 (quoting Claudio-de León v.
Sistema Universitario Ana G. Méndez, 775 F.3d 41, 48-49 (1st Cir.
2014)). CDM argues that all four grounds apply.
As to fraud and overreaching, CDM argues that “[a]s the person
responsible for the Employment Contract’s preparation and content,
Atasi abused his authority as CDM’s Senior Vice President to lure
CDM into an ambiguous arrangement whereby he later would demand an
additional salary to which he was not entitled.” Dkt. 50 at 26.
Fraud in this context refers to when “a party’s manifestation of

assent is induced by either a fraudulent or material
misrepresentation by the other party upon which the recipient is
justified in relying.” Rivera, 575 F.3d at 20 (quoting Restatement
(Second) of Contracts § 164 (Am. L. Inst. 1979)). But this
“requires a ‘focused showing’ that the inclusion in the contract
of the forum selection clause itself was ‘the product of fraud or
coercion.’” Atlas Glass & Mirror, 997 F.3d at 376 (emphasis added)
(quoting Huffington v. T.C. Grp., LLC, 637 F.3d 18, 24 (1st Cir.
2011)). CDM fails to argue that the clause itself, as opposed to
the entire contract, was procured by fraud. Overreaching “refer[s]
to one party’s unfair exploitation of its overwhelming bargaining

power or influence over the other party.” Rivera, 575 F.3d at 21.
There is also no evidence that the forum selection clause was
induced by overreaching.
As to enforcement being unreasonable and unjust, CDM argues
that enforcing the clause would undermine goals of predictability
and certainty because the clause is ambiguous as to where disputes
are to be adjudicated. But this is just rehashing its argument
that the forum selection clause is permissive. CDM also argues
that requiring it to return to KSA is unreasonable and unjust
because “CDM once again would be foreclosed from pursuing a jury
trial, cross-examining Atasi, and obtaining discovery essential to
its right of offset.” Dkt. 50 at 28. As stated earlier, this
argument is also unavailing; many foreign countries rely on trial

procedures drastically different from the U.S. system, but this
does not make trial in those countries unjust. See Restatement
(Fourth) of Foreign Rel. L. § 483 cmt. c (“[T]he absence of
attorney cross-examination of witnesses or a foreign court’s
primary reliance on written depositions, rather than oral
testimony, does not by itself constitute a fundamentally unfair
approach to the presentation of evidence.”).
As to difficulty and inconvenience, CDM argues that key
witnesses live and work in Massachusetts and throughout the United
States, that all records are maintained in Massachusetts, that it
is questionable whether a KSA tribunal could have personal

jurisdiction over Atasi, and that the proceedings would be
conducted in Arabic with respect to the claims involving the KSA
contract. This fails to meet the “heavy burden of proof.” In re
Mercurio, 402 F.3d 62, 66 (1st Cir. 2005) (quoting Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)). Were this enough,
“forum selection clauses would almost never be enforceable, for
inconvenience to at least one of the parties is an almost foregone
conclusion when dealing with a provision that requires litigating
away from one’s home turf.” In re Mercurio, 402 F.3d at 66; see
also Royal Bed & Spring Co., Inc. v. Famossul Industria e Comercio
de Moveis Ltda, 906 F.2d 45, 49 (1st Cir. 1990) (“[A] showing of
inconvenience as to a foreign forum would not be enough to hold a
forum-selection clause unenforceable, especially if that

inconvenience was known or contemplated by the parties at the time
of their agreement.”). And the concern about personal jurisdiction
can be disposed of because Atasi has agreed to “consent to the
personal jurisdiction of the KSA courts for any claims which are
refiled by CDM Smith in Saudi Arabia.” Dkt. 41 at 18; see also
Imamura v. Gen. Elec. Co., 957 F.3d 98, 108 (1st Cir. 2020) (“A
defendant’s ‘concession’ as to amenability to service of process
in the alternative forum is generally sufficient.”).
As to the argument that enforcement would contravene
Massachusetts public policy, CDM argues that this Court has “a
keen interest in preventing Atasi and others like him from gaming

other Massachusetts employers who currently or are planning to do
business in the KSA.” Dkt. 50 at 31. But it cannot be said to
contravene any policy of the Commonwealth to enforce a contractual
provision not procured through fraud. See Cambridge Biotech Corp
v. Pasteur Sanofi Diagnostics, 740 N.E. 2d 195, 201 (Mass. 2000)
(agreeing that a fair and reasonable forum selection clause “in a
freely negotiated international commercial transaction” should be
enforced).
CDM also argues again that KSA evidentiary laws are
discriminatory in contravention of Massachusetts public policy,
citing Petersen v. Boeing Co., 108 F. Supp. 3d 726 (D. Ariz. 2015).
But the Petersen court noted that its conclusion that a KSA forum

was inadequate does not “render the Saudi Labor Courts inadequate
for every dispute” because “[n]ot every claim in Saudi courts rests
on testimonial evidence or lacks male, Muslim witnesses from whom
to procure such evidence.” Id. at 732. Many courts have held that
the KSA provides an adequate forum for employment disputes. See
Alayan v. Permanent Mission of Saudi Arabia to the United States,
no.18-cv-10068, 2021 WL 1964078, at *2 (S.D.N.Y. May 17, 2021)
(“The Court is unable to find Saudi Arabia to be an inadequate
forum for these claims [over severance payments].”); Kamel v. Hill-
Rom Co., Inc., 108 F.3d 799, 803 (7th Cir. 1997) (“Kamel does have
a potential avenue for redress in Saudi Arabia in his breach of

contract action.”); Forsythe v. Saudi Arabian Airlines Corp., 885
F.2d 285, 290 (5th Cir. 1989) (“There is no indication that a Saudi
Arabian forum would treat Forsythe unfairly or deprive him of all
remedies [for wrongful discharge].”). CDM has not demonstrated
that in the context of an employment dispute based on a written
employment contract that it would be discriminated against such
that it could be afforded no relief whatsoever or that the KSA has
substantive law “that is both different and basically unjust.”
Ahmed v. Boeing Co., 720 F.2d 224, 226 (1st Cir. 1983) (Breyer,
J.) (finding Saudi Arabia an adequate alternative forum).
Enforcement would not be contrary to public policy.
In sum, dismissal is appropriate under forum non conveniens,
based on the forum selection clause. CDM has not argued that public

interest factors weigh against dismissal, outside of the arguments
this Court has rejected as to enforceability of the forum selection
clause. This is not the exceptional case where the clause should
not be given controlling weight. See Atl. Marine Constr. Co., Inc.,
571 U.S. at 64 (“Because those [public-interest] factors will
rarely defeat a transfer motion, the practical result is that
forum-selection clauses should control except in unusual cases.”).
C. Failure to State a Claim
Defendant moves to dismiss Counts III, IV, V, VI and VIII for
failure to state a claim. However, all these claims are either
barred by the KSA judgment or fall within the forum selection

clause. Count III alleges that Atasi breached his duty of loyalty
and against self-dealing “by lying to the KSA Committee and falsely
stating in his factual submissions that CDM was required, but
refused, to pay him double for the same work.” Dkt. 24, ¶ 69. Count
VI similarly alleges Atasi breached the implied covenant of good
faith and fair dealing “by lying to the KSA Committee and
misrepresenting to the Committee that the Instrument was intended
to pay him twice for the same work.” Id., ¶ 87. Count IV alleges
that the funds Atasi received in the KSA litigation “represent a
constructive trust, arising by operation of law,” and that his
refusal to return the funds is a breach of the constructive trust.
Dkt. 24, ¶ 75. Count V alleges that Atasi wrongfully converted
CDM’s money by taking the funds awarded in the KSA litigation.

Count VIII alleges that Atasi committed fraud on the (KSA) court,
arguing his “use of the KSA Instrument as a means in which to
improperly double his salary, coupled with his lies to the KSA
Committee [was] an unconscionable scheme calculated to interfere
with the Committee’s ability to impartially adjudicate CDM’s
employment obligations.” Dkt. 24, ¶ 98. These claims are dismissed
without prejudice to refiling in the KSA.
CDM argues that some of these counts are not barred by res
judicata or the forum selection clause, stating that “[b]y focusing
on his post-termination conduct, Atasi ignores the laundry list of
responsibilities that he breached when he was employed by the

company.” Dkt. 50 at 34. As to Counts III and VI, it alleges in
its brief that Atasi breached his duty of loyalty and against fair
dealing and the covenant of good faith and fair dealing by
preparing the KSA contract while intending “to use the document’s
purposeful ambiguity as means in which to leverage a double
salary,” and by failing to inform CDM of his belief that he was
owed a second salary until after his employment was terminated.
Id. However, the complaint only pleads breaches through post-
termination activity, so these arguments fail to support the
claims. Counts III, IV, V, VI and VIII are dismissed without
prejudice.
ORDER
For the reasons stated above, Plaintiff’s Motion to Strike

Defendant’s Expert Affidavits (Dkt. 51) is ALLOWED IN PART and
DENIED IN PART. Defendant’s Motion to Dismiss (Dkt. 40) is ALLOWED
IN PART without prejudice as to Counts III, IV, V, VI, and VIII
under the doctrines of collateral estoppel and forum non conveniens
and DENIED IN PART as to Counts I, II, and VII.

SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200164. Public record. Not legal advice.