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Chichakli v. United States

United States District Court, N.D. Texas, Dallas Division

December 18, 2019

RICHARD A. CHICHAKLI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE

         Defendant United States of America (the “United States” or the “Government”) has filed a Motion to Dismiss (ECF No. 14) this pro se civil action brought by Plaintiff Richard Chichakli. For the reasons stated, the District Court should GRANT the Motion to Dismiss and DISMISS all of Plaintiff's claims and causes of action against the United States for lack of subject matter jurisdiction. Additionally, the District Court should DISMISS all of Plaintiff's claims and causes of action against the remaining defendants under Federal Rules of Civil Procedure 4(m) and 41(b) for failure to properly serve those defendants.

         Background

         In 2004, President Bush issued an executive order under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., blocking certain individuals' property. Exec. Order No. 13348, 69 Fed. Reg. 44, 885 (July 22, 2004). The following year, the Office of Foreign Assets Control (“OFAC”) blocked Plaintiff's property under President Bush's executive order because Plaintiff was acting in the United States on behalf of an international arms dealer. Pl.'s App. 61 (ECF No. 3-1); Compl. 14-15, ¶ 26 (ECF No. 3). After his property was blocked, Plaintiff initiated three separate lawsuits regarding the merits of the blocking of his property. None ultimately resulted favorably for Plaintiff. Chichakli v. Szubin, 2007 WL 9711515, at *5 (N.D. Tex. June 4, 2007), aff'd in part, vacated in part, 546 F.3d 315 (5th Cir. 2008); Chichakli v. Obama, 2014 WL 6755680, at *2 (D.D.C. Nov. 25, 2014), aff'd in part, vacated in part, 617 Fed.Appx. 3 (D.C. Cir. 2015); Chichakli v. Trump, 242 F.Supp.3d 45, 57 (D.D.C. 2017) (addressing on remand holding vacated by D.C. Circuit in Chichakli v. Obama, and denying Plaintiff's relief sought), aff'd, 714 Fed.Appx. 1 (D.C. Cir. 2017); Chichakli v. Kerry, 203 F.Supp.3d 48, 58 (D.D.C. 2016), aff'd sub nom., Chichakli v. Tillerson, 882 F.3d 229 (D.C. Cir. 2018). Moreover, Plaintiff was charged criminally and convicted of three counts of conspiracy to violate the political economic sanction imposed on him. United States v. Chichakli, 2014 WL 5369424, at *6 (S.D.N.Y. Oct. 16, 2014).

         In 2015, President Obama issued an executive order terminating President Bush's prior order. Exec. Order No. 13710, 80 Fed. Reg. 71, 679 (Nov. 12, 2015). As a result, Plaintiff's assets were unblocked, but Plaintiff did not regain possession of his assets until 2017 when he was released from prison on his conspiracy convictions. See Compl. 16, 18, ¶¶ 30, 37. Plaintiff then brought a fourth lawsuit, this time alleging that the government failed to return his property timely and that not all his property was returned to him. Chichakli v. United States, 141 Fed.Cl. 633, 635 (2019). The Court of Federal Claims dismissed the action for lack of jurisdiction and failure to state a claim. Id. at 641. Shortly following the dismissal of his fourth lawsuit, Plaintiff brought the instant lawsuit in this Court. Plaintiff asserts three claims: (1) “theft and plundering of plaintiff's asset” (Compl. 24-26, ¶¶ 53-57); (2) “removal of economic value from plaintiff's asset” (id. at 26-27, ¶¶ 58-60); and (3) “illegal taking and seizure of plaintiff's asset . . . for one and one-half year after the removal of sanctions” (id. at 27-32, ¶¶ 61-70). By the instant lawsuit, Plaintiff appears to complain of the same conduct that he objected to in his fourth lawsuit: that the United States did not completely and timely return his property. The Government timely filed the instant Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1). It has since been fully briefed and is ripe for determination.

         Preliminary Matters

         By his February 14, 2019 complaint, Plaintiff appears to have sued the following: (1) the United States; (2) OFAC; (3) the United States Department of Justice, including the Federal Bureau of Investigation; (4) the Drug Enforcement Agency; (5) the United States Attorney for the Southern District of New York; (6) URS Corps, Federal Service Division of Riverside California; (7) Theresa Newman; (8) Michael Dondarksi, the Assistant Director of Enforcement for OFAC; (9) the Justice Management Division; and (10) the Federal Tort Claims Act Section, Tort Branch of the United States Department of Justice. Id. at 6, ¶ 2. However, summons in this case has only been returned properly executed as to the United States Attorney for the Northern District of Texas (ECF No. 12). Plaintiff submitted a document he styled “Certificate of Service, ” which comprises proof of service documents as to some of the other named defendants, but Plaintiff himself signed each of the proof of service documents as the process server. Certificate of Service 3, 5, 7, 9, 11 (ECF No. 6).

         Rule 4 provides that “[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c)(1). After effecting service, the plaintiff must file proof of service with the Court. Fed.R.Civ.P. 4(1). If the plaintiff fails to serve a defendant “within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant, ” unless the plaintiff shows both (1) good cause for his failure to timely and properly effect service and (2) good cause for the Court to extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m); see also Lewis v. Sec'y of Pub. Safety & Corr., 870 F.3d 365, 369 (5th Cir. 2017) (“Rule 4(m) requires dismissal if a defendant is not served within 90 days after the complaint is filed, unless the plaintiff shows good cause for the failure.”); see also Fed. R. Civ. P. 41(b) (providing for dismissal, with or without prejudice, for failure to prosecute and obey court orders). A plaintiff cannot serve the defendants in a case himself. See Fed. R. Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a party may serve a summons and complaint.”) (emphasis added).

         Only the United States has been properly served in this case. See Fed. R. Civ. P. 4(i)(1)(A)(i) (providing that to serve the United States, a party may deliver a copy of the summons and complaint to the United States attorney for the district where the action is brought). To the extent the other agencies and individuals named as defendants in Plaintiff's complaint are proper defendants in this action, [1]the District Court should DISMISS this case against them for failure to properly effect service on them.

         Legal Standard

         A motion to dismiss under Rule 12(b)(1) challenges a federal court's subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quotation marks and citation omitted). The Court “must presume that a suit lies outside [its] limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citations omitted). The party asserting jurisdiction must allege the jurisdictional basis “affirmatively and distinctly”; it cannot be “established argumentatively or by mere inference.” Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 (5th Cir. 1983) (citations omitted).

         The Fifth Circuit recognizes two types of challenges to a federal court's subject-matter jurisdiction-“facial” attacks, which are based solely on the pleadings, and “factual” attacks, which are based on affidavits, testimony, and other evidentiary material. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); see also Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (“Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”) (citation omitted)). Whether the attack is facial or factual, however, the plaintiff seeking a federal forum “constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161 (citation omitted).

         When a defendant files a Rule 12(b)(1) motion to dismiss without evidentiary materials supporting it, the attack is facial, and the Court need only consider the sufficiency of the allegations in the plaintiff's complaint. Paterson, 644 F.2d at 523. Here, the United States filed the Motion to Dismiss unaccompanied by exhibits or ...


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