UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________ ) D&S CONSULTING, INC. (DSCI), ) ) Plaintiff, ) ) v. ) Civil Action No. 17-0787 (EGS) ) KINGDOM OF SAUDI ARABIA, ) ) Defendant. ) _______________________________)

MEMORANDUM OPINION

On April 11, 2017, plaintiff D&S Consulting, Inc., (“DSCI”)

filed a complaint in the Superior Court of the District of

Columbia against defendant the Kingdom of Saudi Arabia (“KSA”)

for, inter alia, breach of contract and unjust enrichment. KSA

timely removed the action to this Court. Pending before the

Court is KSA’s motion to dismiss the complaint on the ground of

forum non conveniens. Upon careful consideration of KSA’s

motion, the response and reply thereto, the applicable law, and

for the reasons set forth below, the Court GRANTS KSA’s motion

to dismiss. I. Background

This case arises out of a contractual dispute between DSCI

and KSA. DSCI and KSA entered into a contract that provided for

performance between August 2013 and April 2015. Compl., ECF No.

1-1 ¶ 4. The contract was entered into in Saudi Arabia. Id. ¶ 3.

DSCI performed under the contract and KSA paid DSCI on a monthly

basis. Id. ¶ 4. At the same time DSCI was performing under its

contract with KSA, DSCI was awarded another contract, the

details of which are not relevant to this case. Id. ¶ 5.

DSCI breached the other contract and was terminated for

failure to timely post a bond required by that contract. Id.

Because of that termination, DSCI became insolvent and

surrendered control of its assets to Bank of America, its

secured creditor. Id. ¶ 6. Bank of America appointed a

restructuring officer to wrap up DSCI’s affairs and resolve its

outstanding debts and receivables. Id. In reviewing its

outstanding debts, DSCI discovered two invoices for work

completed on the KSA contract that had not been previously

invoiced or collected. Id. ¶ 7. Accordingly, DSCI submitted

invoices for this work, but KSA has refused to pay. Id. ¶ 8, 9.

DSCI filed suit against KSA to, inter alia, recoup the funds it

alleges KSA owed to it.

2 Several provisions of the contract 1 between DSCI and KSA are

relevant to this motion to dismiss. The contract provides that

“its interpretation, performance and enforcement shall be

governed and construed by and in accordance with the applicable

laws of the Kingdom of Saudi Arabia.” Mot. to Dismiss, Attach.,

ECF No. 10-1 at 25. 2 Additionally, “Arabic language shall be the

approved language in interpreting and executing [the] contract.”

Id. at 45. Although the parties were permitted to use a “foreign

language in writing the contract . . . [i]n cases of discrepancy

between the Arabic text and the foreign language’s text, the

Arabic text shall supersede.” Id. The contract also provides

that “[t]he consultant and its employees shall commit to all

regulation, laws and customs prevailing in [Saudi Arabia]

1 DSCI referred to this contract, but did not attach the contract to its Complaint. See generally Compl., ECF No. 1-1. KSA filed both a redacted, ECF No. 10-1, and an unredacted, ECF No. 19-1, version of the contract. The unredacted version was filed under seal. Because the provisions at issue are not redacted, the Court cites to the redacted version of the contract. ECF No. 10- 1. The contract was referenced in DSCI’s complaint and DSCI’s breach of contract claim necessarily relies upon the language of the contract; therefore, the Court considers the contract without converting the motion to dismiss to one for summary judgment. See Marshall v. Honeywell Tech. Solutions, Inc.,

(D.D.C. 2008) (“[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.”) (citation and internal quotation marks omitted).

2 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 3 including labor law, residence and other related laws.”

.

The contract designates Saudi Arabia as the place where the

contract was to be performed.

. The contract

required DSCI to keep all “books and all accounts and documents

related to this cont[r]act locally in Arabic . . . certified by

a chartered accountant licensed to work in [Saudi Arabia].” Id.

at 46. Saudi Arabian currency was the form of payment under the

contract. Id. at 23. Finally, the forum-selection clause

provides that “[t]he grievance council shall be assigned for

settlement of any disputes or claims arising from the execution

of this cont[r]act, or related to this contract, or resulting

from its dissolution.” Id. at 46. Although not defined in the

contract, the “grievance council” refers to the Board of

Grievances in Saudi Arabia, an administrative court, which has

jurisdiction over government contract claims brought against the

Kingdom of Saudi Arabia. Mot. to Dismiss, ECF No. 10 at 13.

On September 20, 2017, KSA moved to dismiss DSCI’s

complaint on the ground of forum non conveniens. DSCI filed its

opposition on November 13, 2017, and KSA filed its reply on

December 13, 2017. KSA's motion to dismiss is now ripe for

consideration by the Court.

4 II. Legal Standard

Whether to dismiss a case on the ground of forum non

conveniens “is committed to the sound discretion of the trial

court.” Piper Aircraft Co. v. Reyno,

(1981).

Because the doctrine applies in federal courts “only in cases

where the alternative forum is abroad,” the appropriate remedy

is dismissal rather than transfer. Sinochem Int'l Co. Ltd. v.

Malaysia Int'l Shipping Corp.,

(2007)

(citation and internal quotation marks omitted); see also Atl.

Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex.,

, 66 n.8 (2013) (“Unlike a § 1404(a) motion [to

transfer], a successful motion under forum non conveniens

requires dismissal of the case.”) (citation omitted).

When considering a motion to dismiss on the ground of forum

non conveniens, the Court ordinarily must first determine

whether the proposed alternative forum is adequate. Friends for

all Children, Inc. v. Lockheed Aircraft Corp.,

(D.C. Cir. 1983) (citing Piper Aircraft Co.,

n.22). If there is an adequate alternative forum, the Court then

“must balance the private interests of the litigants in keeping

the case in the District of Columbia or dismissing it in favor

of the foreign court, and the interests of the public and the

courts of this district in keeping the case here.” Irwin v.

5 World Wide Fund, Inc.,

, 32–33 (D.D.C. 2006)

(citing Gulf Oil Corp. v. Gilbert,

, 508–09 (1947)).

That calculus of factors changes, however, when the parties

have agreed to a mandatory forum-selection clause because a

forum-selection clause “represents the parties’ agreement as to

the most proper forum.” Atl. Marine Constr.,

(citation omitted). When a contract contains a valid forum-

selection clause, the parties’ agreement regarding the proper

forum for resolving disputes should be “given controlling weight

in all but the most exceptional cases.”

(citation and

internal quotation marks omitted).

The Supreme Court has articulated a two-step analysis for

addressing a defendant's forum non conveniens motion based on a

forum-selection clause. See

at 63–64. The first question is

validity of the forum-selection clause. See

at 63 & n.5.

Forum-selection clauses are presumptively valid and enforceable

unless the party opposing enforcement meets a heavy burden of

proof of showing that the clause is “the product of fraud or

that its enforcement would contravene a strong public policy of

the forum in which suit is brought.” Marra v. Papandreou,

(D.C. Cir. 2000) (internal citation omitted).

If the forum-selection clause is valid, the second step of

the analysis is to consider whether public interest factors

6 “overwhelmingly disfavor” dismissal. 3 Atl. Marine Constr.,

. Such factors include: “(1) administrative

difficulties caused by foreign litigation congesting local court

dockets; (2) local interest in having localized controversies

decided at home; (3) imposing jury duty on residents of a

jurisdiction having little relation to the case; and (4)

avoiding unnecessary problems in choice-of-law and the

application of foreign law.” Irwin,

(citing Gilbert, 330 U.S. at 508–09). Public interest factors,

however, will rarely defeat a forum non conveniens motion

predicated on a valid forum-selection clause because “[i]n all

but the most unusual cases, . . . the interest of justice is

served by holding parties to their bargain.” Atl. Marine

Constr.,

(internal quotation marks omitted). The

Court addresses each issue in turn.

3 DSCI’s arguments focus on the difficulties in litigating this case in Saudi Arabia. See, e.g., Pl.’s Supp. Opp’n, ECF No. 15. This Court, however, may not take into account these private interest factors when there is a valid forum-selection clause. Atl. Marine Constr.,

(a party waives the right to challenge a contractually agreed upon forum as inconvenient because any inconvenience “was clearly foreseeable at the time of contracting.”) (citation and internal quotation marks omitted). 7 III. Discussion

A. The forum-selection clause is mandatory

In opposing the motion to dismiss, DSCI does not contend

that the forum-selection clause is invalid or unenforceable, but

rather argues that: (1) the forum-selection clause is

permissive and therefore it is not prohibited from bringing its

claims in this Court; and (2) the Board of Grievances is not an

adequate forum to resolve this dispute. Pl.’s Opp’n, ECF No. 13

at 1–5.

As stated above, the forum-selection clause provides:

“[t]he grievance council shall be assigned for settlement of any

disputes or claims arising from the execution of this

cont[r]act, or related to this contract, or resulting from its

dissolution.” Mot. to Dismiss, Attach., ECF No. 10-1 at 46. DSCI

argues that the provision is permissive, rather than mandatory,

because it does not contain language that excludes all other

forums. Pl.’s Opp’n, ECF No. 13 at 1–3. For this proposition,

DSCI relies on Stone & Webster, Inc. v. Georgia Power Co.,

(D.C. Cir. 2015). In Stone, the Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) affirmed the

district court’s dismissal of a suit in favor of a complaint

filed in the federal district court for the Southern District of

Georgia.

. The forum-selection clause in that case

stated: “[The parties] agree to the non-exclusive jurisdiction

8 of the United States District Court for the District of Columbia

for any legal proceedings.”

at 615–16. Accordingly, the D.C.

Circuit found no error in the district court’s finding that the

forum-selection clause was permissive or in the district court’s

dismissal of the District of Columbia action.

The forum-selection clause in DSCI’s contract with KSA,

however, is distinguishable from the provision at issue in

Stone. Specifically, the provision in Stone explicitly stated

that the United States District Court for the District of

Columbia would be the “non-exclusive jurisdiction” for any

disputes. Stone, 779 F.3d at 615–16. In contrast, the forum-

selection clause here provides that the “grievance council shall

be assigned for settlement of any disputes or claims arising

from the execution of this [contract].” Mot. to Dismiss,

Attach., ECF No. 10-1 at 46. (emphasis added). In Stone, the

parties made it clear that the District of Columbia was one, but

not the only, option. Stone,

. Here, there is

no comparable language in the forum-selection clause to support

DSCI’s claim that the Board of Grievances would have non-

exclusive jurisdiction over contract-related claims.

DSCI’s argument that the forum-selection clause in the

contract is permissible because it does not explicitly exclude

other forums also fails because there is no such requirement in

this Circuit. In Marra v. Papandreou, the D.C. Circuit

9 characterized as mandatory a nearly identical forum-selection

clause and dismissed the case in favor of adjudication in

Greece.

, 1120–21 (D.C. Cir. 2000). The clause at

issue in Marra stated, any “dispute or disagreement . . .

arising from the application of this license, the interpretation

or performance of its terms . . . and in general any matter that

may occur concerning a license, shall be settled by the Greek

courts.”

Notably, the D.C. Circuit did not require that the

contractual language designate Greece as the exclusive forum.

; see also Glycobiosciences, Inc. v. Innocutis

Holdings, LLC,

(D.D.C 2016) (rejecting

the argument that a forum-selection clause should contain magic

words like “exclusive,” “solely,” or “only” for the clause to be

mandatory). The D.C. Circuit concluded that because of the broad

language in the clause, it was clear that the clause required

the plaintiff to file her suit in Greece. Marra,

. The same result follows in this case since the forum-

selection clause is just as broad as the clause at issue in

Marra. See Mot. to Dismiss, Attach., ECF No. 10-1 at 46.

(stating the grievance council shall be assigned “any disputes

or claims” arising from, related to, or resulting from, the

execution or dissolution of the contract).

DSCI’s argument that a forum-selection clause is permissive

because it only says that disputes “shall be assigned” to the

10 grievance council without designating the council as the sole

forum is undermined, if not totally foreclosed, by Supreme Court

precedent. See M/S Breman v. Zapata Off-Shore Co.,

(1972). In Breman, the Supreme Court held that a forum-selection

clause which stated “[any] dispute arising must be treated

before the London Court of Justice” was “clearly mandatory and

all-encompassing.”

. The same holds true in this case:

because the forum-selection clause is broad and “all-

encompassing,” and clearly assigns the grievance council as the

settler of “any disputes or claims arising from the execution of

[the contract],” it is clearly mandatory. DSCI’s arguments to

the contrary are unpersuasive. 4

4 Although the parties address whether the Board of Grievances is an adequate forum, the Court need not reach this issue because the forum-selection clause is mandatory. See Atl. Marine Constr.,

. (“As a consequence [of a mandatory forum-selection clause], a district court may consider arguments about public-interest factors only.”) (emphasis added). In Atlantic Marine Construction, the Supreme Court analyzed a forum-selection clause in the context of a motion to transfer, however, the Court made it clear that “the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to . . . foreign forums.”

at 66 n.8; see also Billard v. Angrick,

(D.D.C. 2016) (Howell, C.J.) (explaining forum non conveniens analysis based on forum-selection clause). The Court notes that if it could reach the issue, the Court would find that the Board would meet the adequacy standard. Saudi Arabia is an adequate alternative forum because DSCI and Saudi Arabia are amenable to process and clearly within the

11 B. The public interest factors favor dismissal

Once a court determines a forum-selection clause is valid

and enforceable, the second step in the inquiry is to determine

whether the public interest factors warrant dismissal. Atl.

Marine Constr.,

. The public interest factors

considered in a forum non conveniens analysis include: “(1)

administrative difficulties caused by foreign litigation

congesting local court dockets; (2) local interest in having

localized controversies decided at home; (3) imposing jury duty

on residents of a jurisdiction having little relation to the

case; and (4) avoiding unnecessary problems in choice-of-law and

the application of foreign law.” Irwin v. World Wide Fund, Inc.,

(D.D.C. 2006) (citing Gulf Oil Corp. v.

Gilbert,

, 508–09 (1947)). Public interest factors,

however, will rarely defeat a forum non conveniens motion

predicated on a valid forum-selection clause because “[i]n all

but the most unusual cases, . . . the interest of justice is

served by holding parties to their bargain.” Atl. Marine

Constr.,

. (internal quotation marks omitted).

DSCI fails to address any of the public interest factors,

see generally Pl.’s Opp’n, ECF No. 13 at 1–5, let alone meet the

Grievance Board’s jurisdiction. See Irwin,

(explaining test for adequate alternative forum).

12 heavy burden of “showing that public-interest factors

overwhelmingly disfavor” dismissal in this case. Atl. Marine

Constr.,

. KSA, on the other hand, argues that

each factor favors dismissal. KSA argues that litigating the

suit in the District of Columbia would cause substantial

administrative difficulties because: (1) the vast majority of

the witnesses are in Saudi Arabia; (2) the documents are in

Arabic and kept in Saudi Arabia; and (3) Saudi Arabian law

governs the contract. Mot. to Dismiss, ECF No. 10 at 21–23.

Furthermore, according to KSA, Saudi Arabia has the predominant

interest in litigating this dispute in its local court whereas,

DSCI, a New Jersey corporation, has no connection to the

District of Columbia forum.

Finally, KSA argues that

applying Saudi Arabian law would significantly burden the Court,

which would need to apply the law of a fundamentally different

legal system, receive extensive translation of documents and

witness testimony from a foreign language, and would need to

take evidence from experts about the meaning and application of

the foreign law.

Because DSCI has failed to address the public interest

factors, it has failed to meet its burden of showing that the

factors “overwhelmingly disfavor dismissal.” See Atl. Marine

Constr.,

; see also Billard v. Angrick,

(D.D.C. 2016) (“[P]laintiff’s silence on the

13 public interest factors is patently insufficient to satisfy

[the] burden of showing that, on balance, the public interest

factors ‘overwhelmingly disfavor’ dismissal.”) (emphasis in

original) (citing Atl. Marine Const.,

). DSCI has

failed to meet its burden to show that this is the “unusual

case” in which the forum-selection clause should not control.

See Atl. Marine Constr.,

. Accordingly, this case

is dismissed pursuant to the doctrine of forum non conveniens.

IV. The Court Need Not Reach the Issue of Subject-Matter

Jurisdiction

KSA, in a footnote, states that should this motion be

denied, it anticipates filing a motion to dismiss for lack of

subject-matter jurisdiction. Mot. to Dismiss, ECF No. 10 at 9

n.1. Although a federal court usually first addresses whether it

has subject-matter jurisdiction, there are circumstances in

which a district court appropriately first addresses a

dispositive non-merits inquiry. Ruhrgas AG v. Marathon Oil Co.,

, 584–85 (1999). One such circumstance is when a

court decides the case on “a non-merits ground for dismissal”

such as forum non conveniens. Sinochem Int’l. Co. Ltd. v.

Malaysia Int’l. Shipping Corp.,

(2007). “A

district court therefore may dispose of an action by a forum non

conveniens dismissal, bypassing questions of subject-matter and

14 personal jurisdiction, when considerations of convenience,

fairness, and judicial economy so warrant.”

KSA has urged the Court to consider the issue of forum non

conveniens first, given that that this issue could dispose of

the case. Def.’s Reply, ECF No. 14 at 6–7. For the reasons

explained above, the Court agrees. Although there are questions

about whether the Court has subject-matter jurisdiction over

this action under the Foreign Sovereign Immunities Act,

, the Court has first considered defendant's forum

non conveniens issue following the principle that “there is no

unyielding jurisdictional hierarchy.” Second Amendment

Foundation v. U.S. Conference of Mayors,

(D.C.

Cir. 2001) (quoting Ruhrgas,

). The Court's

conclusion that the case should be dismissed under the doctrine

of forum non conveniens moots defendant's suggestion that the

Court also lacks subject-matter jurisdiction, and the Court need

not reach the latter issue. See Roz Trading Ltd. v. Zeromax

Group, Inc.,

, 389–90 (D.D.C. 2007) (stating

dismissal on personal jurisdiction grounds mooted defendant’s

argument regarding subject-matter jurisdiction).

V. CONCLUSION

For the foregoing reasons, KSA's motion to dismiss is

GRANTED. An appropriate Order accompanies this Memorandum

Opinion.

15 SO ORDERED. Signed: Emmet G. Sullivan United States District Judge August 21, 2018

16