UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) IFTIKHAR SAIYED, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0022 (PLF) ) COUNCIL ON AMERICAN-ISLAMIC ) RELATIONS ACTION NETWORK, INC., ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

This matter is before the Court on motions by the defendant to dismiss the

plaintiff’s complaint or, in the alternative, to consolidate this case with a related civil action.

After careful consideration of the parties’ arguments, the relevant legal authorities, and the entire

record in this case and in related cases, the Court will grant the defendant’s motion to dismiss

with regard to the plaintiff’s claim alleging violations of the District of Columbia Consumer

Protection Act, but will deny the defendant’s motion to dismiss the remainder of the plaintiff’s

claims. The Court will grant the defendant’s motion to consolidate this case with a related

matter.1

1 The documents reviewed by the Court in connection with the motions in question include the following: plaintiff’s first amended complaint (“Compl.”); defendant’s motion to dismiss the complaint (“MTD”); plaintiff’s opposition to the motion to dismiss (“Opp.”); defendant’s reply in support of its motion to dismiss (“Reply”); defendant’s motion to consolidate related cases (“Cons. Mot.”); plaintiff’s opposition to defendant’s motion to consolidate; and defendant’s reply in support of the motion to consolidate. I. BACKGROUND

A. Plaintiff’s Claims

According to the plaintiff’s first amended complaint, defendant Council on

American-Islamic Relations Action Network, Inc. (“CAIR”) operates as a public interest law

firm formed to protect the civil liberties of Muslims in the United States. Compl. ¶ 15. CAIR

has a main office in the District of Columbia and a variety of branch offices located throughout

the country. Id. Until recently, one of those branch offices (“CAIR-VA”) was located in

Herndon, Virginia. Id. ¶ 3.

Beginning in 2006, CAIR-VA employed as a staff attorney an individual named

Morris J. Days III. Compl. ¶ 4. Mr. Days was tasked with “provid[ing] legal representation to

Muslims complaining of various civil rights abuses,” id., and CAIR-VA referred to him as its

“resident attorney” in promotional materials. Id. ¶ 17. Mr. Days, however, was not a licensed

attorney, and the plaintiffs contend that CAIR-VA “knew or should have known” that he was not.

Id. ¶ 5. In February of 2008, after receiving complaints about Mr. Days from his clients, CAIR-

VA terminated his employment. Id. ¶¶ 33-35.

Plaintiff Iftikhar Saiyed visited the offices of CAIR-VA on January 8, 2007, and

met with Mr. Days. Compl. ¶ 54-55. Mr. Saiyed told Mr. Days that he believed his employer,

Enterprise Rent-A-Car (“Enterprise”) was discriminating against him on the basis of race. Id.

¶ 54. Claiming that Mr. Saiyed had a strong case, Mr. Days stated that he would file complaints

against Enterprise with the Equal Employment Opportunity Commission and the Virginia Human

Rights Council and in federal court. Id. ¶ 55.

2 In February of 2007, Enterprise terminated Mr. Saiyed’s employment, allegedly

because he had filed discrimination complaints against Enterprise in 2005. Compl. ¶ 56. Mr.

Days claimed that he would pursue a retaliation claim against Enterprise on Mr. Saiyed’s behalf.

Id. In May of 2008, Mr. Saiyed, with Mr. Days’ assistance, filed complaints against Enterprise

with the EEOC and the Human Rights Council. Id. ¶ 61. Mr. Days claimed that these

complaints were duplicates of original complaints that he himself had already filed on Mr.

Saiyed’s behalf a year before. Mr. Days also arranged for Mr. Saiyed to mail a complaint to a

federal court in Virginia. Id. Mr. Saiyed paid Mr. Days approximately $300 in legal fees at or

around that time. Id. ¶ 62.

In July of 2008, Mr. Saiyed learned from a CAIR employee that Mr. Days was not

a licensed attorney and that he had never filed any complaints on Mr. Saiyed’s behalf. Id.

¶ 67. On August 5, 2008, Mr. Saiyed received a letter from the EEOC which informed him that

“his file setting forth a complaint against Enterprise was being closed because [his] complaint

was not timely filed.” Id. ¶ 73. Mr. Saiyed then filed a related complaint in federal court. Id.

¶ 74. That complaint was dismissed as time-barred. Id. ¶ 75.

B. Prior Lawsuit

Mr. Saiyed’s complaint bears a close resemblance to a complaint filed in this

Court on November 18, 2008, by a group of plaintiffs who claimed to have been defrauded by

Mr. Days. See Lopez v. Council on American-Islamic Relations Action Network, Inc., Civil

Action No. 08-1989, Complaint at 1 (D.D.C. Nov. 18, 2009). The complaint in that prior case,

which the Court will call Lopez I, alleged that Mr. Days and CAIR had conspired to hold Mr.

Days out to the public as a licensed attorney and then conceal from his “clients” the fact that he

3 was not actually qualified to represent them. The complaint, which was filed by the same

counsel who represents Mr. Saiyed, named as defendants CAIR, Morris Days, numerous

CAIR/CAIR-VA employees, and an assortment of individuals and companies alleged to be

connected to CAIR in some capacity. Many of the same facts alleged in Mr. Saiyed’s complaint

were also set forth in the Lopez I complaint, often in exactly the same language. Compare, e.g.,

Compl. ¶¶ 2-8, with Lopez I, Civil Action No. 08-1989, Complaint ¶¶ 2-6 (D.D.C. Nov. 18,

2009).

Unlike Mr. Saiyed’s complaint, the Lopez I complaint framed the facts it alleged

as the basis for a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

(d), which deems unlawful, among other things, the formation of a conspiracy

“to participate . . . in the conduct of [an] enterprise’s affairs through a pattern of racketeering

activity.”

(c)-(d). According to the Lopez I plaintiffs, Morris Days and CAIR

violated RICO by conspiring to defraud Mr. Days’ clients and then to conceal that fraud. See

Lopez I,

(D.D.C. 2009). The plaintiffs also alleged that the defendants

were liable for violations of the consumer protection statutes of Virginia and the District of

Columbia and for common law fraud, breach of fiduciary duty, infliction of emotional distress,

conversion, and unjust enrichment. See

.

The Lopez I plaintiffs claimed that a federal court could exercise subject matter

jurisdiction over their complaint because it alleged a RICO violation and thus presented a

question of federal law. See Lopez I, Civil Action No. 08-1989, Complaint ¶ 9 (D.D.C. Nov. 18,

2008). Judge Urbina, however, determined that the complaint failed to state a viable claim under

RICO. See Lopez I,

. He ruled that the plaintiffs’ allegations did not

4 “indicate that the RICO Defendants had engaged in a ‘pattern of racketeering activity’” or formed

a conspiracy,

and that the plaintiffs lacked standing to bring a RICO claim because, while

they alleged that they had been injured by Days, they had failed to adduce facts from which it

could be inferred that they had been injured by any joint action of Days and CAIR.

.

Plaintiffs’ RICO claim therefore was dismissed. See

. In the absence of the RICO

claim, the asserted basis for federal question jurisdiction no longer existed.

.

Lacking jurisdiction over the plaintiffs’ case, Judge Urbina also dismissed the plaintiffs’ state

law claims.

That ruling was affirmed on appeal. See Lopez I, No. 09-7129,

(D.C. Cir. June 8, 2010).

On January 6, 2010, the Lopez I plaintiffs initiated a new round of litigation by

filing an amended version of their previously dismissed complaint. See Lopez v. Council on

American-Islamic Relations Action Network, Inc., Civil Action No. 10-0023, Complaint (D.D.C.

Jan. 6, 2010) (“Lopez II”). On the same day, Mr. Saiyed filed his own complaint, which was

closely related to that of the Lopez II plaintiffs. On January 13, 2010, Mr. Saiyed filed an

amended complaint. The first fifty-three paragraphs of that complaint are largely identical to

those of the Lopez II complaint. Both complaints allege many of the same facts that were

presented in Lopez I. Unlike the complaint in Lopez I, however, they name a single defendant,

CAIR, and invoke the Court’s jurisdiction pursuant to

, alleging that the parties

are diverse and that the amount in controversy is greater than $75,000. See Compl. ¶ 10. No

references to RICO appear in either the Lopez II or the Saiyed complaint, both of which assert

claims for fraud, breach of fiduciary duty, intentional infliction of emotional distress, and

violations of

and Va. Code § 59.1-204 — all state law causes of action.

5 On February 24, 2010, CAIR moved to consolidate the instant case with Lopez II

and to reassign both cases to Judge Urbina for adjudication, since Judge Urbina presided over

Lopez I. See Cons. Mot. at 1. The next day, CAIR filed the pending motion to dismiss the

plaintiffs’ complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and Rule

12(b)(7) of the Federal Rules of Civil Procedure. See MTD at 2-3. In the alternative, CAIR

seeks the dismissal of each count of the complaint for failure to state a claim pursuant to Rule

12(b)(6) of the Federal Rules.

II. DEFENDANT’S MOTION TO DISMISS

For the reasons set forth in the Court’s Opinion issued this same day in Lopez v.

Council on American-Islamic Relations Action Network, Inc., Civil Action No. 10-0023, the

Court will dismiss Mr. Saiyed’s claim under the District of Columbia Consumer Protection Act

but otherwise will deny CAIR’s motion to dismiss the plaintiff’s claim pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Again for the reasons set forth in the Lopez II Opinion,

the Court also will deny the defendant’s motion to dismiss the complaint pursuant to

Rule 12(b)(7) and Rule 19(b) of the Federal Rules for failure to join an indispensable party. All

that remains of CAIR’s motion to dismiss, then, is its argument that the plaintiff’s complaint

should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal

Rules because Mr. Saiyed’s claims fail to meet the amount-in-controversy requirement of

.

Under

, this Court has subject matter jurisdiction over a case not

presenting a federal question only if “the matter in controversy exceeds the sum or value of

$75,000. . . .”

(a). When the court considers whether a claim meets the

6 amount-in-controversy requirement, “the sum claimed by the plaintiff controls if the claim is

apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co.,

(1938) (footnotes omitted). “[I]f, from the face of the pleadings, it is apparent, to a legal

certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is

satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that

his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be

dismissed.”

. In short, “the Supreme Court’s yardstick demands that courts be very

confident that a party cannot recover the jurisdictional amount before dismissing the case for

want of jurisdiction.” Rosenboro v. Kim,

(D.C. Cir. 1993).

Mr. Saiyed seeks damages in this matter as follows: “consequential monetary

damages, including . . . $300 paid to CAIR for legal costs, at least $600 for travel expenses

incurred during [p]laintiff’s meetings with Days, and damages relating to [p]laintiff’s claims

against Enterprise.” Compl. ¶ 79. Mr. Saiyed has not made any attempt to quantify the damages

related to his allegedly mishandled discrimination claims. In addition, the plaintiff seeks

damages “not yet quanitifed but no less than $75,001” for “severe emotional, mental, and

physical distress . . . including anxiety, lack of appetite, inability to sleep, relationship problems

with his friends and family, inability to sustain employment resulting from his anxiety, and other

manifestations.” Id. ¶ 80. He also seeks punitive damages for “egregious and intentional and/or

reckless conduct.” Id. ¶ 115. Even if the Court excludes from consideration damages related to

Mr. Saiyed’s allegedly mishandled discrimination claims, which Mr. Saiyed has not made any

attempt to quantify, CAIR has not shown to a legal certainty that the plaintiff cannot recover the

jurisdictional minimum.

7 While the Court has serious doubts as to whether the plaintiff will ever be able to

prove damages of more than $75,000, based on the facts before it the Court cannot conclude that

it is “legally certain” that Mr. Saiyed’s claims for damages do not meet the jurisdictional

minimum. Although these facts do suggest that Mr. Saiyed may ultimately prove unable to

document his alleged physical and emotional distress, they do not demonstrate with the requisite

degree of certainty that the plaintiff’s claim is for less than $75,000. Evidence that the plaintiff

has drafted his complaint with an eye toward the amount-in-controversy requirement does not, by

itself, demonstrate the legal deficiency of his claim for damages or that he has acted in bad faith.

See 14AA CHARLES ALAN WRIGHT , ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3702 (3d ed. 2009) (“Even if the plaintiff apparently has amended

the complaint to obtain federal jurisdiction, unless it appears to a legal certainty that the plaintiff

cannot recover the jurisdictional amount, the action presumably will not be dismissed.”); Wolde-

Meskel v. Vocational Instruction Project Community Service, Inc.,

, 63 (2d Cir.

1999) (“[T]o demonstrate a filing in bad faith, ‘it must appear to a legal certainty that the claim is

really for less than the jurisdictional amount.’” (citing St. Paul Mercury Indem. Co. v. Red Cab

Co.,

)).

In addition to the allegations in support of his claim for intentional infliction of

emotional distress, Mr. Saiyed has alleged sufficient facts to possibly permit the inference that

Mr. Days acted with “actual malice, or such recklessness or negligence as to evince a conscious

disregard of the rights of another” — making punitive damages theoretically available. Simbeck,

Inc. v. Dodd Sisk Whitlock Corp.,

(Va. 1999); see also Nwachukwu v. Karl,

(D.D.C. 2002) (finding that plaintiff had alleged facts sufficient to

8 support a claim for punitive damages where he asserted, among other things, that the defendant

attorney “willfully disregarded the rights of his client, the plaintiff, in providing the plaintiff with

legal representation”). In combination, these claims for unliquidated damages related to

emotional distress and for punitive damages could permit Mr. Saiyed to recover an amount in

excess of $75,000. A defense motion for summary judgment on this basis, however, may be

appropriate after some discovery.

III. CONCLUSION

CAIR has requested that this case be consolidated with Lopez II, Civil Action

No. 10-0022. See Cons. Mot. at 1. Because the Court finds that the two cases share “common

question[s] of law or fact,” they will be consolidated. FED . R. CIV . P. 42(a). Furthermore, for the

reasons provided above, the Court will grant in part and deny in part CAIR’s motion to dismiss

the plaintiff’s complaint. An Order consistent with this Memorandum Opinion shall be issued

this same day.

SO ORDERED.

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: September 30, 2010

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