Estate of Amer Fakhoury v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ESTATE OF AMER FAKHOURY, et al.,

Plaintiffs,

v. Civil Action No. 21-1218 (JDB)

THE ISLAMIC REPUBLIC OF IRAN,

Defendant.

MEMORANDUM OPINION

Plaintiffs brought this action against defendant the Islamic Republic of Iran to recover

damages stemming from the alleged kidnapping, torture, and killing of Amer Fakhoury. Compl.

[ECF No. 1] ¶¶ 82–108. Portions of plaintiffs’ complaint discuss Fakhoury’s detention in

Lebanon; the torture he allegedly suffered at the hands of Hezbollah; and his release, which

plaintiffs claim resulted in the quid-pro-quo release of a Lebanese national held by the U.S. Bureau

of Prisons. E.g., id. ¶¶ 48–55, 62.

The General Directorate of General Security of Lebanon (“GDGS”) filed a motion to

intervene “for the limited purpose of moving to strike the allegations made against it in the

complaint . . . pursuant to” Federal Rule of Civil Procedure 12(f). Proposed Intervenor GDGS’s

Mot. for Limited Intervention & to Strike [ECF No. 7] (“Mot. to Strike Compl.”) at 1. In addition

to opposing GDGS’s motion, Pls.’ Opp’n to Mot. to Strike Compl. [ECF No. 9] (“Opp’n to Mot.

to Strike Compl.”), plaintiffs moved for leave to file a supplemental complaint against the Republic

of Lebanon and GDGS, arguing that, by intervening, Lebanon “consented to the jurisdiction of

this Court,” Mot. by Pls. for Leave to File a Suppl. Compl. Against the Republic of Lebanon &

GDGS [ECF No. 10] (“Mot. to File Suppl. Compl.”) at 2. Finally, after briefing on these two

motions ended, GDGS filed a supplemental memorandum in further support of its motion to strike,

1

GDGS’s Suppl. Mem. of L. in Further Supp. of Mot. to Strike Compl. [ECF No. 16] (“Suppl.

Mem. in Supp. of Mot. to Strike Compl.”), which plaintiffs then moved to strike as an unauthorized

sur-reply, Mot. by Pls. to Strike Unauthorized Sur-Reply Filed by Intervenor GDGS [ECF No. 17]

(“Mot. to Strike Sur-Reply”). For the reasons explained below, the Court will grant only plaintiffs’

motion to strike GDGS’s sur-reply and will deny all other requests.

Background 1

I. Factual Background

Amer Fakhoury was a member of the South Lebanese Army from 1983 to 2000. Compl.

¶ 27. The South Lebanese Army was a Christian faction within the Lebanese Army that opposed

Hezbollah and the Palestine Liberation Organization in Lebanon. Id. ¶ 22. While in the South

Lebanese Army, Fakhoury worked at the Khiam Detention Center for eight years. Id. ¶ 28.

Plaintiffs claim that his position was “purely logistical” and that he was responsible for tasks such

as “supplying food and essentials to . . . the soldiers and prisoners stationed there.” Id.

The South Lebanese Army aligned with and was supported by Israel, Compl. ¶ 23, but

when Israel withdrew from South Lebanon in 2000, members of the South Lebanese Army were

left vulnerable to attacks from Hezbollah, id. ¶ 30. Fakhoury fled to Northern Israel that same

year. Id. ¶ 37. Fakhoury and his family then immigrated to the United States in 2001 and have

lived in the New England area ever since. Id. ¶¶ 40–41.

Plaintiffs allege that since Israel’s withdrawal, Hezbollah has become the controlling force

in Lebanon. Compl. ¶ 36 (describing Hezbollah as “the de-facto dominant authority in Lebanon”).

According to plaintiffs’ complaint, “[a]ll major political decisions in Lebanon, including the

1

The relevant facts are drawn mostly from plaintiffs’ complaint and presumed to be true for present purposes.

As will be discussed later, however, GDGS argues that many of plaintiffs’ allegations “are demonstrably false and

serve no purpose but to tarnish the stellar reputations of GDGS and [head of GDGS, Major General Abbas Ibrahim.]”

Mot. to Strike Compl. at 2.

2

appointment of its president and prime minister, require Hezbollah’s agreement and approval.” Id.

Plaintiffs claim that Hezbollah was able to achieve this level of dominance with substantial help

from Iran. Id. ¶¶ 11, 29, 33, 77–80. Plaintiffs further claim that Hezbollah is under Iran’s control

and that Iran utilizes Hezbollah as an instrument to achieve its goals. Id. ¶¶ 34, 36.

In 2011, the Parliament of Lebanon passed an amnesty act allowing former Lebanese

citizens who had served in the South Lebanese Army to return without fear of prosecution. Compl.

¶ 42. After becoming a naturalized U.S. citizen in 2019, Fakhoury began exploring the possibility

of returning to Lebanon for a visit. Id. ¶ 43. He received assurances from the U.S. Department of

State and the Lebanese government that he could visit Lebanon safely. Id. ¶ 44. He arrived in

Beirut on September 4, 2019 with his wife and two of his daughters. Id. ¶ 45.

But when Fakhoury reached passport control at Beirut International Airport, a security

official informed him that the official needed to hold onto his U.S. passport for a security check

and that Fakhoury could retrieve the document a week later. Comp. ¶ 46. On September 11, 2019,

al-Akhbar, a Hezbollah controlled newspaper, published a front-page story accusing Fakhoury of

playing a role in the torture of inmates at the Khiam detention center, labeling him the “Butcher of

Khiam,” and demanding his prosecution. Id. ¶ 47 (denying these accusations). After this article’s

publication, there were violent Hezbollah demonstrations throughout Beirut, including outside

various government agencies. Id.

Fakhoury travelled to the Beirut offices of GDGS on September 12, 2019 to retrieve his

passport. Compl. ¶ 48. He was arrested, id., and “subjected to psychological and physical torture,”

id. ¶ 49. Fakhoury claims that he was forced to watch as security personnel beat prisoners (some

as young as 14), was beaten himself several times (by “as many as ten men” on one occasion), was

threatened with execution unless he signed a declaration of guilt, and was threatened with being

3

held hostage in Iran. Id. ¶¶ 49–53; see also id. ¶ 56 (“The beatings he endured resulted in fractured

ribs; Amer Fakhoury complained of crippling abdominal pains throughout his incarceration, . . .

[but] he never received medical attention of any kind.”). Fakhoury was held in a military prison

for three months before being moved to a military hospital. Id. ¶¶ 56, 58. A doctor diagnosed him

with stage four lymphoma, and “[h]is condition was accelerated by Epstein-Barr Virus that

[Fakhoury] contracted as a result of the relentless beatings and unsanitary conditions he was

subjected to during his captivity.” Id. ¶ 58.

In March 2020, Fakhoury was transferred from the military hospital to the U.S. Embassy

in Beirut. Compl. ¶ 60. The Lebanese Supreme Court then announced that it was dismissing the

charges against him. Id. ¶ 61. Fakhoury returned to the United States on March 19. See id. ¶ 60.

In June 2020, the United States released Kassim Tajideen, a Lebanese national held by the U.S.

Bureau of Prisons for his role in financing Hezbollah terror operations. Compl. ¶ 62. Plaintiffs

allege that this release completed the quid-pro-quo exchange that secured Fakhoury’s freedom. Id.

¶¶ 59, 62.

“Fakhoury returned to the United States a broken man.” Compl. ¶ 63. He suffered from

Post-Traumatic Stress Disorder, and his cancer was exacerbated by an autoimmune disease. Id.

He died in August 2020. Id. ¶ 64.

II. Procedural History

Plaintiffs filed suit against Iran in May 2021. See Compl. at 28. In November 2021, GDGS

moved to intervene for the sole purpose of striking allegations in plaintiffs’ complaint. Mot. to

Strike Compl. at 1, 11. GDGS asks the Court to strike the allegations at paragraphs 48 through 55

and paragraph 62. Id. These paragraphs discuss Fakhoury’s detention in Lebanon and plaintiffs’

claim that the U.S. released Tajideen to complete a quid-pro-quo exchange for Fakhoury.

4

Compl. ¶¶ 48–55, 62. GDGS claims that these allegations should be struck because they are

“categorically false,” “have nothing to do with whether Iran violated” the Foreign Sovereign

Immunities Act (“FSIA”), and are insufficient to demonstrate that GDGS violated the FSIA. Mot.

to Strike Compl. at 2, 5–11.

Plaintiffs filed their opposition to GDGS’s motion in December 2021. Opp’n to Mot. to

Strike Compl. at 12. While plaintiffs argued that there was no basis to strike any allegations in the

complaint, Opp’n to Mot. to Strike Compl. at 4–11, they “welcome[d]” GDGS and Lebanon to the

case and did not oppose GDGS’s motion to intervene, id. at 2. Indeed, plaintiffs moved for leave

to file a supplemental complaint against Lebanon and GDGS on the same day. Mot. to File Suppl.

Compl. at 3.

GDGS filed its reply in further support of its motion to strike on January 26, 2022. GDGS’s

Reply Mem. of L. in Further Supp. of Mot. to Strike Compl. [ECF No. 14] (“Reply in Supp. of

Mot. to Strike Compl.”) at 11. In its reply, GDGS argued that the Court need not decide whether

GDGS should be permitted to intervene because the “Court may strike immaterial and unrelated

allegations in a complaint on its own accord under Rule 12(f).” Id. at 2. GDGS also reiterated its

argument that the complaint’s allegations about Fakhoury’s detention in Lebanon are irrelevant to

plaintiffs’ claims against Iran. Id. at 8–11.

Nearly two weeks later, on February 8, 2022, GDGS filed a supplemental memorandum in

further support of its motion to strike plaintiffs’ complaint. Suppl. Mem. in Supp. of Mot. to Strike

Compl. at 6. This supplemental memorandum notifies the Court that on February 3, 2022, Guila

Fakhoury—a plaintiff in this case and one of Amer Fakhoury’s daughters—posted a tweet

claiming that GDGS kidnapped, tortured, and killed Fakhoury under direct orders from Hezbollah

and Iran. Id. at 2. The supplemental memorandum also contains several exhibits with information

5

relevant to Fakhoury’s detention and prosecution as well as a declaration from the Head of the

Intelligence Office at GDGS generally denying plaintiffs’ narrative. See Decl. of Brigadier

General Youssef Medawar of GDGS [ECF No. 16-1] ¶¶ 4, 6 (describing Fakhoury as “a Lebanese

expatriate and convicted felon who has been the subject of legal, judicial, and security prosecutions

in Lebanon” and denying plaintiffs’ allegations). Plaintiffs responded to GDGS’s supplemental

memorandum and attached exhibits with their own motion to strike. Mot. to Strike Sur-Reply at

1. GDGS did not file any opposition to plaintiffs’ motion.

Analysis

There are three motions now before the Court: GDGS’s motion to intervene and to strike

portions of plaintiffs’ complaint, plaintiffs’ motion for leave to file a supplemental complaint

against Lebanon and GDGS, and plaintiffs’ motion to strike GDGS’s supplemental memorandum

and exhibits as an unauthorized sur-reply. The Court will address these three motions in reverse

order. For the reasons that follow, the Court will grant plaintiffs’ motion to strike but deny both

plaintiffs’ motion to file a supplemental complaint and GDGS’s motion to intervene and to strike.

I. Plaintiffs’ Motion to Strike

Rule 7 of the Local Rules for the U.S. District Court for the District of Columbia does not

entitle parties to file sur-replies, Akers v. Liberty Mut. Grp., 744 F. Supp. 2d 92, 94 n.1 (D.D.C.

2010); see L. Civ. Rule 7(a), (b), (d) (referring to motions, oppositions, and replies), and parties

generally may not file sur-replies without first obtaining a court’s permission, see Robinson v.

Ergo Sols., LLC, 10 F. Supp. 3d 157, 163 n.1 (D.D.C. 2014) (“[I]t is standard practice for a party

seeking to file a surreply to move the court for leave to file such a surreply.” (citation omitted));

Williams v. Ct. Servs. & Offender Supervision Agency, Civ. A. No. 08-cv-1538 (RCL-AK), 2014

WL 12788954, at *5 (D.D.C. Mar. 6, 2014). “[S]urreplies are generally disfavored . . . , and the

6

determination of whether to grant or deny leave [to file one] is entrusted to the sound discretion of

the district court.” Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 62 (D.D.C. 2011) (internal

citation omitted).

There are several reasons why plaintiffs’ motion to strike GDGS’s supplemental

memorandum should be granted. As an initial matter, GDGS never filed an opposition to

plaintiffs’ motion, which the Court takes as a concession of the motion’s validity. See L. Civ.

Rule 7(b) (“If [a memorandum in opposition] is not filed within [14 days of service of a motion,]

the Court may treat the motion as conceded.”); Alvarado v. Rainbow Inn, Inc., 312 F.R.D. 23, 31

(D.D.C. 2015) (“[T]he Court will treat the motion as conceded because [defendant] failed to file a

timely response.”). GDGS similarly failed to obtain the Court’s permission before filing its sur-

reply in violation of the Local Rules and standard practice. See Robinson, 10 F. Supp. 3d at 163

n.1; Akers, 744 F. Supp. 2d at 94 n.1.

In addition to these technical defects, GDGS’s supplemental memorandum is also improper

because GDGS filed the memorandum after already filing both its motion and a reply. See

generally Mot. to Strike Compl.; Reply in Supp. of Mot. to Strike Compl. “A surreply may be

filed . . . only to address new matters raised in a reply, to which a party would otherwise be unable

to respond.” U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270,

276 (D.D.C. 2002). “That is to say, the point of a surreply is to allow a party to respond to an

opponent’s new facts and arguments—not to unearth facts and arguments never before raised.”

González–Vera v. Townley, 83 F. Supp. 3d 306, 315 (D.D.C. 2015). GDGS’s supplemental

memorandum contains several new exhibits and a new declaration in support of its original motion.

Permitting GDGS to file these documents after already having the opportunity to file a

7

memorandum in support of its motion and a reply would be patently unfair to plaintiffs. 2 The

Court accordingly will grant plaintiffs’ motion to strike GDGS’s supplemental memorandum and

its associated exhibits.

II. Plaintiffs’ Motion for Leave to File a Supplemental Complaint

Pursuant to Federal Rule of Civil Procedure 15(d), a court “may, on just terms, permit a

party to serve a supplemental pleading.” “The decision whether to grant leave to amend or

supplement a complaint is within the discretion of the district court, but leave ‘should be freely

given unless there is a good reason, such as futility, to the contrary.’” Wildearth Guardians v.

Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008) (quoting Willoughby v. Potomac Elec. Power

Co., 100 F.3d 999, 1003 (D.C. Cir. 1996)). “[A] court may deny a motion to file a supplemental

complaint as futile ‘if the proposed claim[s] would not survive a motion to dismiss.’” BEG Invs.,

LLC v. Alberti, 85 F. Supp. 3d 13, 24 (D.D.C. 2015) (second alteration in original) (quoting

Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012)).

“[F]oreign states are generally ‘immune from’ the jurisdiction of American courts . . . .”

Cabrera v. Islamic Republic of Iran, Civ. A. Nos. 19-3835, 18-2065 (JDB), 2022 WL 2817730, at

*33 (D.D.C. July 19, 2022) (quoting 28 U.S.C. § 1604). The FSIA “defines the term ‘foreign

state’ expansively.” GSS Grp. Ltd. v. Republic of Liber., 31 F. Supp. 3d 50, 57 (D.D.C. 2014)

(citations omitted). A foreign state “includes an agency or instrumentality of a foreign state,” 28

U.S.C. § 1603(a), and an “agency or instrumentality of a foreign state” includes any entity “which

2

Although this fact is not critical to the Court’s analysis, the Court also notes that most of the materials

GDGS included as exhibits to its supplemental memorandum could have been filed as exhibits to GDGS’s original

motion. This critique does not apply to GDGS’s information about Guila Fakhoury’s February 2022 tweet stating that

GDGS “kidnapped, tortured and killed” Amer Fakhoury “under direct orders from Hezbollah and #Iran,” Suppl. Mem.

in Supp. of Mot. to Strike Compl. at 2, but these allegations are essentially the same as ones already in the complaint,

see Compl. ¶ 36 (“Today, Hezbollah, under Iran’s control, is understood to be the de-facto dominant authority in

Lebanon . . . .”), ¶ 53 (alleging that Hezbollah controls the security services and judiciary in Lebanon), ¶ 82

(“Defendant Iran, through . . . Hezbollah . . . intentionally ordered, directed, and caused the torture and subsequent

death of Amer Fakhoury.”).

8

is a separate legal person, corporate or otherwise,” “which is an organ of a foreign state or political

subdivision thereof,” and “which is neither a citizen of a State of the United States . . . nor created

under the laws of any third country,” id. § 1603(b). The parties have not disputed that GDGS,

which described itself in this litigation as “an apolitical, executive agency in Lebanon, whose role

and functions are akin to the U.S. Department of Homeland Security,” Mot. to Strike Compl. at 1,

qualifies as an “agency or instrumentality” of Lebanon that is presumptively entitled to sovereign

immunity under the FSIA.

The FSIA “provides exceptions to [sovereign] immunity in ‘sections 1605 to 1607’ of Title

28.” Cabrera, 2022 WL 2817730, at *33. One such exception is the anti-terrorism exception

outlined at 28 U.S.C. § 1605A. This exception, which plaintiffs have invoked to claim that this

Court has subject-matter jurisdiction to adjudicate their claims against Iran, Compl. ¶ 2, applies

only when the “foreign state was designated as a state sponsor of terrorism at the time [the alleged

wrongs] occurred, or was so designated as a result of such [wrongs],” 28 U.S.C.

§ 1605A(a)(2)(A)(i)(I). Both parties agree that, because neither GSDS nor Lebanon has been

designated as a state sponsor of terrorism, the anti-terrorism exception in § 1605A does not apply.

GDGS’ Mem. of L. in Opp’n to Mot. to File Suppl. Compl. [ECF No. 13] (“Opp’n to Mot. to File

Suppl. Compl.”) at 3; Reply in Further Supp. of Mot. for Leave to File Suppl. Compl. [ECF No.

15] (“Reply in Supp. of Mot. for Leave to File Suppl. Compl.”) at 2.

Instead, plaintiffs claim that one of the FSIA’s more general exceptions to sovereign

immunity applies. See Reply in Supp. of Mot. for Leave to File Suppl. Compl. at 2. Under 28

U.S.C. § 1605(a)(1), “[a] foreign state shall not be immune from the jurisdiction of courts of the

United States . . . [if] the foreign state has waived its immunity either explicitly or by implication.”

According to plaintiffs, Lebanon triggered this exception through its “voluntary appearance in this

9

action, its request to intervene, and its application for affirmative relief adjudicating merits issues

in this case.” Opp’n to Mot. to Strike Compl. at 3. 3

GDGS’s motion to intervene “for the limited purpose of moving to strike the allegations

made against it in the complaint” does not contain any explicit waiver of sovereign immunity.

Mot. to Strike Compl. at 1. Hence, § 1605(a)(1)’s exception applies only if GDGS’s motion

constituted a waiver of sovereign immunity “by implication.” “The FSIA does not specifically

define what will constitute a waiver ‘by implication,’ but [this] circuit has ‘followed the virtually

unanimous precedent construing the implied waiver provision narrowly.’” Khochinsky v.

Republic of Pol., 1 F.4th 1, 8 (D.C. Cir. 2021) (quoting Creighton Ltd. v. Gov’t of Qatar, 181 F.3d

118, 122 (D.C. Cir. 1999)). Inherent in the exception at 28 U.S.C. § 1605(a)(1) “is the requirement

that the foreign state have intended to waive its sovereign immunity,” id. (quoting Creighton Ltd.,

181 F. 3d at 122), and “courts rarely find that a nation has waived its sovereign immunity . . .

without strong evidence that this is what the foreign state intended,” id. (alteration in original)

(quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C. Cir.

1990)).

The D.C. Circuit has recognized only three circumstances that constitute an implied waiver

of sovereign immunity: “(1) executing a contract containing a choice-of-law clause designating

the laws of the United States as applicable; (2) filing a responsive pleading without asserting

sovereign immunity; or (3) agreeing to submit a dispute to arbitration in the United States.”

Ivanenko v. Yanukovich, 995 F.3d 232, 239 (D.C. Cir. 2021); accord Khochinsky, 1 F.4th at 8–9.

“[C]ourts have been reluctant to stray beyond these examples when considering claims that a

3

Plaintiffs also claim that GDGS’s intervention means that the Court has personal jurisdiction over GDGS

and Lebanon, Opp’n to Mot. to Strike Compl. at 3, but the Court need not consider that claim because it concludes it

lacks subject-matter jurisdiction.

10

nation has implicitly waived its defense of sovereign immunity.” Khochinsky,1 F.4th at 9 (quoting

World Wide Mins., Ltd. v. Republic of Kaz., 296 F.3d 1154, 1161 n.11 (D.C. Cir. 2002)).

None of these examples apply here. There is no relevant choice-of-law contract or

arbitration agreement. And while GDGS moved to intervene in the hopes of having the Court

strike allegations from the complaint, “pre-trial motions attacking the pleadings or seeking relief

as to collateral matters are not responsive pleadings.” Duda v. Bd. of Educ. of Franklin Park Pub.

Sch. Dist. No. 84, 133 F.3d 1054, 1057 n.2 (7th Cir. 1998) (citation omitted).

Two other considerations support the Court’s conclusion that plaintiffs’ motion should be

denied. First, some courts have permitted sovereigns to intervene in cases for limited purposes

while maintaining their sovereign immunity. E.g., MGM Glob. Resorts Dev., LLC v. U.S. Dep’t

of the Interior, Civ. A. No. 19-2377 (RC), 2020 WL 5545496, at *5–6 (D.D.C. Sept. 16, 2020)

(rejecting an “‘all or nothing’ approach to intervention”); Lac Du Flambeau Band of Lake Superior

Chippewa Indians v. Norton, 327 F. Supp. 2d 995, 1000 (W.D. Wis. 2004) (“[E]ntities [with

sovereign immunity] may intervene for a limited purpose such as moving to dismiss the lawsuit

for failure to join an indispensable party without waiving their sovereign immunity.”), aff’d, 422

F.3d 490 (7th Cir. 2005). While there is disagreement about the legitimacy of this practice, see

MGM Glob. Resorts, 2020 WL 5545496, at *5–6 (discussing disagreement); Jota v. Texaco, Inc.,

157 F.3d 153, 163 (2d Cir. 1998) (“The Court had explicitly advised Ecuador that its unqualified

participation in the litigation would be required to enable it to intervene, and Ecuador elected not

to fully relinquish its sovereign immunity.”), the debate’s very existence undermines any

suggestion that GDGS’s motion constituted “strong evidence” of its intent to waive sovereign

immunity, Khochinsky, 1 F.4th at 8 (citation omitted). Second, GDGS’s motion makes clear that

GDGS sought “limited intervention,” Mot. to Strike Compl. at 3–4, for a “limited purpose,” id. at

11

1. Although the motion does not explicitly invoke GDGS’s sovereign immunity, its precise and

controlled language bolsters the Court’s conclusion that GDGS did not intend for the motion to

waive its sovereign immunity.

In sum, a motion to intervene for a limited purpose does not fall within any of the three

circumstances the D.C. Circuit has recognized to constitute implied waivers of sovereign

immunity, and there is insufficient evidence for the Court to conclude that GDGS intended to

waive its sovereign immunity as required for the exception at 28 U.S.C. § 1605(a)(1) to apply.

Hence, the Court would lack subject-matter jurisdiction to adjudicate plaintiffs’ claims against

GDGS and Lebanon, and these claims would not survive a motion to dismiss. Cf. Fed. R. Civ. P.

12(b)(1), (h)(3). The Court consequently will deny plaintiffs’ motion for leave to file a

supplemental complaint as futile. 4

III. GDGS’s Motion to Intervene and to Strike

GDGS’s first motion contains two requests. See Mot. to Strike Compl. at 1. The first

request is for permission to intervene in this case pursuant to Federal Rule of Civil Procedure 24.

Id. at 1, 3–4. Assuming it receives permission to intervene, GDGS intends to request that the Court

strike paragraphs 48 through 55 and 62 of the complaint pursuant to Federal Rule of Civil

Procedure 12(f). Id. at 1, 5–11. But Rule 12(f)(1) explicitly permits a court to strike allegations

sua sponte, Jenkins v. City of Las Vegas, 333 F.R.D. 544, 548 (D.N.M. 2019), and GDGS has

accordingly stated that “the Court need not determine GDGS’ status as an intervenor to decide the

motion to strike under Rule 12(f),” Reply in Supp. of Mot. to Strike Compl. at 2. The Court agrees

and will not decide whether GDGS should be granted permission to intervene under Rule 24.

4

Because the Court concludes that GDGS’s motion did not waive its sovereign immunity, the Court need

not and does not decide whether any waiver of sovereign immunity by GDGS would apply to Lebanon. But see Mot.

to File Suppl. Compl. at 1–2 (arguing that GDGS’s motion waived both GDGS’s and Lebanon’s sovereign immunity).

12

Rule 12(f) provides that a court “may strike from a pleading . . . any redundant, immaterial,

impertinent, or scandalous matter.” “A court has broad discretion in ruling on a motion to strike,”

Uzlyan v. Solis, 706 F. Supp. 2d 44, 51 (D.D.C. 2010), and “motions to strike are particularly

‘disfavored’ by the federal courts,” Campaign Legal Ctr. v. Iowa Values, 573 F. Supp. 3d 243, 252

(D.D.C. 2021) (quoting Wiggins v. Philip Morris, Inc., 853 F. Supp. 457, 457 (D.D.C. 1994)); see

also United States v. Three Sums Totaling $612,168.23 in Seized U.S. Currency, Civ. A. No. 19-

130 (RBW), 2021 WL 2255310, at *4 (D.D.C. June 3, 2021) (“[A]bsent a ‘strong reason for so

doing,’ courts will generally ‘not tamper with pleadings.’” (citation omitted)). “In considering a

motion to strike, courts will draw all reasonable inferences in the pleader’s favor and resolve all

doubts in favor of denial of the motion to strike.” Crawford v. Barr, Civ. A. No. 17-798 (JEB),

2019 WL 6525652, at *4 (D.D.C. Dec. 4, 2019) (quoting Moore v. United States, 318 F. Supp. 3d

188, 190–91 (D.D.C. 2018)). “Only if the allegations in a complaint are both irrelevant and

prejudicial . . . will a motion to strike be granted.” Campaign Legal Ctr., 573 F. Supp. 3d at 252.

Allegations are irrelevant in the motion-to-strike context when “‘it is clear that the

allegations in question can have no possible bearing on the subject matter of the litigation’ or . . .

‘it can be shown that no evidence in support of the allegation would be admissible.’” Jackson v.

Starbucks Corp., Civ. A. No. 19-1487, 2020 WL 3791873, at *4 (D.D.C. July 7, 2020) (quoting

Cobell v. Norton, 224 F.R.D 1, 2–3 (D.D.C. 2004)). An allegation is prejudicial or “scandalous”

when it “unnecessarily reflects on the moral character of an individual or states anything in

repulsive language that detracts from the dignity of the court.” Uzlyan, 706 F. Supp. 2d at 58

(quoting Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003)); accord Allen v. Addi, Civ. A. No.

20-cv-01650 (TSC), 2021 WL 5911175, at *4 (D.D.C. Nov. 23, 2021) (explaining that for a

13

statement to be stricken as scandalous, it must contain unnecessary allegations that reflect on an

entity’s moral character and must lack evidentiary support).

Broadly speaking, GDGS makes three arguments in support of striking the allegations in

paragraphs 48 through 55 and 62 of the complaint. Most significantly, GDGS argues that

plaintiffs’ allegations about Fakhoury’s detention in Lebanon are irrelevant to plaintiffs’ claims

against Iran. Mot. to Strike Compl. at 11 (“[N]one of [plaintiffs’] statements have any bearing on

the merits of the case in general. Plaintiffs’ attacks on GDGS cannot and do not advance their

claims against the Defendant Iran . . . .”). But this argument is premised on the faulty assumption

that plaintiffs “do not allege any connection between GDGS and Hezbollah.” Id.; see also id.

(stating GDGS has “no association with Defendant Iran, and an even further dissociation with

conduct or activities of the designated terrorist organizations referred to in the Complaint”). In

fact, several paragraphs of the complaint allege such connections between Iran, Hezbollah, and

GDGS/Lebanon as a whole. 5 Some of these allegations are the ones GDGS wishes to strike from

the complaint, e.g., Compl. ¶¶ 53, 62, but others are not, e.g., id. ¶¶ 34, 36, 59. Regardless, none

of these allegations is irrelevant to plaintiffs’ claims. Plaintiffs’ theory of liability is that Iran

controls Hezbollah, Hezbollah controls Lebanon, and Lebanese agencies and officials—under the

direction of Hezbollah and Iran—kidnapped, tortured, and killed Fakhoury. Id. ¶¶ 34, 36, 59, 62,

82–84, 89. Far from having “no possible bearing on the subject matter of the litigation,” Jackson,

5

E.g., Compl. ¶ 34 (“Iran continues today to utilize Hezbollah as a military and terrorist force to influence

regional politics . . . . All aspects of Hezbollah’s programs and activities are coordinated and approved by

Tehran.”), ¶ 36 (“Today, Hezbollah, under Iran’s control, is understood to be the de-facto dominant authority in

Lebanon whose policies and goals usurp those advanced by its democratically elected officials. . . . The Lebanon of

today cannot be considered an independent nation . . . .”), ¶ 53 (referring to “Hezbollah-controlled security services

and judiciary”), ¶ 59 (stating Hezbollah “used” the head of GDGS to negotiate Fakhoury’s release as part of a prisoner

swap), ¶ 62 (“Hezbollah, which has a ‘wing’ in the intelligence service, was involved in all aspects of the unlawful

incarceration of Amer Fakhoury, as well as the quid-pro-quo prisoner exchange that secured Amer Fakhoury’s

release.”), ¶¶ 71–73, 77–80 (describing Iran’s provision of support to Hezbollah and Iran’s use of Hezbollah as a

proxy).

14

2020 WL 3791873, at *4 (citation omitted), the allegations about Fakhoury’s detention in Lebanon

that GDGS wishes to strike are central to this lawsuit.

GDGS also argues that many of plaintiffs’ allegations are untrue. Mot. to Strike Compl. at

2, 8, 11. In particular, GDGS focuses on plaintiffs’ allegation that Fakhoury was detained in order

to negotiate a quid-pro-quo prisoner exchange for Tajideen. Id. at 8; Reply in Supp. of Mot. to

Strike Compl. at 10–11. GDGS states that Tajideen’s attorneys and the U.S. State Department

have publicly denounced the claim that Tajideen was released in exchange for Fakhoury, Mot. to

Strike Compl. at 8, and it points out that a judge in this District granted Tajideen’s compassionate

release motion, Reply in Supp. of Mot. to Strike Compl. at 10–11; see also Order at 1, United

States v. Tajideen, Crim. A. No. 17-46-1 (RBW) (D.D.C. May 28, 2020), ECF No. 264. These

claims certainly undermine plaintiffs’ allegations about Tajideen. But, as plaintiffs argue, even if

Tajideen’s release was coincidental, “that does not mean that the detention of [Fakhoury] was not

perpetrated in the first place for the purpose of securing Tajideen’s [or another prisoner’s] release.”

Opp’n to Mot. to Strike Compl. at 8–9; see also Simpson v. Socialist People’s Libyan Arab

Jamahiriya, 470 F.3d 356, 357 (D.C. Cir. 2006) (“[T]he FSIA definition of hostage taking . . .

focuses on the state of mind of the hostage taker, [so] a plaintiff need not show that the hostage

taker communicated a demand reflecting the hostage taker’s intended purpose to a third party.”);

Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 78–79 (D.D.C. 2018) (explaining that the

FSIA does not require a plaintiff to show that a captor succeeded in compelling a third party to act

or abstain from acting in order to establish a successful hostage-taking claim). GDGS’s arguments

15

about the true reason for Tajideen’s release thus are not fatal to plaintiffs’ claims, 6 and GDGS’s

more general denials of plaintiffs’ allegations about Hezbollah’s influence in Lebanon do not

convince the Court to strike portions of plaintiffs’ complaint.

GDGS’s final broad argument is that, even if plaintiffs’ allegations are accepted as true,

“the alleged conduct by GDGS could not rise to the level of actionable conduct under the FSIA.”

Mot. to Strike Compl. at 5. GDGS argues that Fakhoury’s detention does not fit within the hostage-

taking claims permitted under the FSIA because “he was lawfully detained for investigatory

purposes and ultimately handed off to another agency.” Id. at 6. GDGS similarly argues that the

abuses Fakhoury allegedly suffered at the hands of GDGS were not severe enough to constitute

torture, id. at 9–10, and that GDGS did not deliberately kill Fakhoury “by any stretch of the

imagination,” id. at 10. There are two fatal problems with this argument, however. First, despite

GDGS’s argument that plaintiffs’ claims fail “even if any or all of Plaintiffs’ allegations about

GDGS were accurate,” id. at 11, GDGS’s arguments about the legitimacy of Fakhoury’s detention

contradict plaintiffs’ complaint, see Compl. ¶¶ 47–48, 62 (“Hezbollah . . . was involved in all

6

The Court is similarly not swayed by GDGS’s argument that because “Hezbollah condemned Amer’s

release,” Compl. ¶ 61, it “makes no logical sense” that Hezbollah would have taken Fakhoury as a hostage, Mot. to

Strike Compl. at 7–8. The Court cannot rule out the possibility that Hezbollah’s public condemnation obscured its

true role in negotiating Fakhoury’s release, see Opp’n to Mot. to Strike Compl. at 8 (stating prisoner exchanges are

“typically done quietly and behind the scenes, and with plausible deniability in the official record”), and even if

Hezbollah’s condemnation was sincere, that does not preclude the possibility that Hezbollah detained Fakhoury with

the intention of compelling a third party to take or abstain from taking some action.

16

aspects of the unlawful incarceration of Amer Fakhoury . . . .”). The Court will not resolve factual

disputes in favor of striking plaintiffs’ allegations. 7 See Crawford, 2019 WL 6525652, at *4.

Second, GDGS’s arguments about the legal sufficiency of the claims against GDGS ignore

the fact that GDGS is not a defendant in this case. Plaintiffs do not need to prove that GDGS is

liable under the FSIA in order to prove that Iran is. GDGS’s singular focus on the allegations

involving it also obscures the fact that plaintiffs have alleged that Iran is responsible for all the

harms Fakhoury allegedly suffered. Compare Mot. to Strike Compl. at 10 (“Whether or not Mr.

Fakhoury’s subsequent treatment when he was no longer in GDGS’s custody amount[s] to

sufficient allegations are of no moment, given the allegations as to his time with GDGS, standing

alone, are insufficient under the FSIA . . . .”), with Compl. ¶¶ 62, 82–85 (blaming Iran and

Hezbollah for the harms Fakhoury suffered). Even if it is true that Fakhoury was in GDGS’s

custody for “less than a single day,” Reply in Supp. of Mot. to Strike Compl. at 8, his limited

detention by GDGS still forms a part of plaintiffs’ overarching and consolidated claim against

Iran. Hence, these allegations are not irrelevant, and the Court will not segment the complaint into

discrete allegations against separate Lebanese entities when the only defendant in this case is Iran.

Plaintiffs’ allegations about Fakhoury’s detention and the ties between Iran, Hezbollah,

and Lebanon have obviously offended GDGS. But these claims are not irrelevant to plaintiffs’

7

In its reply, GDGS cursorily states that plaintiffs’ complaint describes GDGS activities that are “immune

from this Court’s inquiry pursuant to the act-of-state doctrine.” Reply in Supp. of Mot. to Strike. Compl. at 10. “The

act of state doctrine ‘precludes the courts of this country from inquiring into the validity of the public acts a recognized

foreign sovereign power committed within its own territory.’” World Wide Mins., 296 F.3d at 1164 (citation omitted).

The Court will not consider this argument at this time for two reasons. First, GDGS made the argument for the first

time in its reply. “Considering an argument advanced for the first time in a reply brief . . . is not only unfair . . . , but

also entails the risk of an improvident or ill-advised opinion on the legal issues tendered. McBride v. Merrel Dow &

Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal citation omitted). Second, whether the act-of-state

doctrine precludes this Court from deciding the legitimacy of Fakhoury’s detention in Lebanon is not an appropriate

issue for the Court to decide when considering a motion to strike. The Court’s task is to determine whether plaintiffs’

allegations are irrelevant and prejudicial, Campaign Legal Ctr., 573 F. Supp. 3d at 252, not whether the allegations

are precluded on the merits, cf. Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 52 n.9 (D.D.C. 2010) (“[T]he

act-of-state doctrine grows out of separation-of-powers concerns [and] ‘provides foreign states with a substantive

defense on the merits.’” (quoting Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004))).

17

litigation against Iran—they lie at the heart of plaintiffs’ complaint. And because plaintiffs’

allegations are central to this lawsuit and are not framed using needlessly inflammatory language,

they do not “unnecessarily reflect on the moral character” of GDGS or Lebanon as would be

required for them to be considered “scandalous.” Allen, 2021 WL 5911175, at *4 (citation

omitted) (cleaned up); see also Uzlyan, 706 F. Supp. 2d at 58 (“In the absence of pejorative

adjectives characterizing the facts alleged or other colorful language, the fact that a plaintiff’s

allegations may cast [an entity] in a ‘derogatory light’ is insufficient to warrant the striking of

allegations from a complaint.”). While the Court appreciates that GDGS believes—and the Court

may one day conclude—that most of plaintiffs’ allegations are false, that does not mean that the

allegations should be struck at this time under Rule 12(f). See Crawford, 2019 WL 6525652, at

*4.

Conclusion

For the foregoing reasons, the Court will deny GDGS’s motion to intervene and to strike,

deny plaintiffs’ motion to file a supplemental complaint, and grant plaintiffs’ motion to strike

GDGS’s supplemental memorandum. A separate Order will issue on this date.

/s/

JOHN D. BATES

United States District Judge

Dated: August 15, 2022

18