UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BENJAMIN P. ALLEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-cv-01650 (TSC) ) MARY P. ADDI, et al., ) ) ) Defendants. )

MEMORANDUM OPINION

This matter is before the court on defendant TRT World’s Motion to Dismiss (“MTD”),

ECF No. 49, pursuant to Federal Civil Rules 12(b)(1), 41(b), and D.C. Local Civil Rule 83.23,

and its Memorandum in Support (“MTD Mem.”), ECF No. 49-1. For the reasons explained

below, the court will grant the Motion, dismiss all claims against TRT World without prejudice,

and close this case.

LEGAL STANDARD

Subject Matter Jurisdiction

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited

subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which

Congress grants jurisdiction.’” Bronner v. Duggan,

(D.C. Cir. 2020)

(alterations in original) (quoting Al-Zahrani v. Rodriguez,

(D.C. Cir. 2012));

see Gunn v. Minton,

(2013) (“‘Federal courts are courts of limited 1 jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’”) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)). Federal courts have an

obligation to ensure that they do not exceed the scope of their jurisdiction. See Henderson v.

Shinseki,

(2011). Absent subject matter jurisdiction over a case, a court must

dismiss it. See Arbaugh v. Y & H Corp.,

, 506–07 (2006) (citing Kontrick v. Ryan,

(2004)); Fed. R. Civ. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule 12(b)(1), the plaintiff bears the burden

of proving a court’s subject-matter jurisdiction over the claim at issue. Arpaio v. Obama,

(D.C. Cir. 2015), cert. denied,

(2016); see also Hertz Corp. v. Friend,

, 96–97 (2010); Thomson v. Gaskill,

(1942). When considering

such a motion, a court must accept as true all uncontroverted material factual allegations

contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of

all inferences that can be derived from the facts alleged’ and upon such facts determine

jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011)

(quoting Thomas v. Principi,

(D.C. Cir. 2005); Barr v. Clinton,

(D.C. Cir. 2004)). A court need not accept inferences drawn by the plaintiff,

however, if those inferences are unsupported by facts alleged in the complaint or amount merely

to legal conclusions. See Browning v. Clinton,

(D.C. Cir. 2002).

When reviewing a challenge under Federal Rule 12(b)(1), a court may consider

documents outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330

, 735 n.4 (1947); Haase v. Sessions,

(D.C. Cir. 1987). By

considering documents outside the pleadings a court does not convert the motion into one for

summary judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be

converted into a motion for summary judgment” when documents extraneous to the pleadings

are considered by a court. Haase,

.

Failure to Prosecute

Pursuant to D.C. Local Civil Rule 83.23, “[a] dismissal for failure to prosecute may be

ordered by the Court upon motion by an adverse party, or upon the Court’s own motion.” “A

Rule 41(b) dismissal is proper if, in view of the entire procedural history of the case, the litigant

has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor Co.,

(D.C. Cir. 1985) (per curiam). “A lengthy period of inactivity may . . . be enough

to justify dismissal,” at least when “the plaintiff has been previously warned that [she] must act

with more diligence, or if he has failed to obey the rules or court orders[.]” Smith–Bey v. Cripe,

(D.C. Cir. 1988) (quoting 9 C. Wright & A. Miller, Federal Practice and

Procedure § 2370, at 205–07 (1971); citing Romandette v. Weetabix Co., Inc.,

(2d Cir. 1986); Cherry v. Brown–Frazier–Whitney,

(D.C. Cir. 1976)).

The authority to dismiss suits for failure to prosecute has long been recognized as

“necessary in order to prevent undue delays in the disposition of pending cases and to avoid

congestion” in the courts. Link v. Wabash R.R. Co.,

, 629–30 (1962). Further,

“[t]he court’s authority to dismiss a case for failure to prosecute or failure to follow the court’s

3 orders is not discarded simply because a plaintiff is proceeding pro se.” Allen v. United States,

(D.D.C. 2011). Although a pro se plaintiff is afforded some latitude in

prosecuting her case, “such leeway does not constitute a license for a plaintiff filing pro se to

ignore the Federal Rules of Civil Procedure,” a court’s local rules, or a court’s orders. Moore v.

Robbins,

(D.D.C. 2014) (internal quotation marks omitted) (citing Jarrell

v. Tisch,

(D.D.C. 1987)).

DISCUSSION

First, the court agrees that it lacks subject matter jurisdiction. See MTD Mem. at 12–16.

Plaintiff Benjamin P. Allen, proceeding pro se and in forma pauperis, purports to bring this

defamation action based on diversity jurisdiction. See Compl., ECF No. 1, at 1. A district court

may exercise diversity jurisdiction in a case involving an amount in controversy that exceeds

$75,000, involving parties of diverse citizenship.

(a). Relevant here, parties

enjoy diverse citizenship when they are “citizens of different States,” or “citizens of a State and

citizens or subjects of a foreign state,” or “citizens of different States and in which citizens or

subjects of a foreign state are additional parties.”

(a)(1)–(a)(3).

While initially screening this matter, see

(e), another court in this

District found that the citizenship of the parties was unclear, and questioned whether the court

had subject matter jurisdiction over the case. See Show Cause Order, ECF No. 3. That court

ordered Allen to show cause why the case should not be dismissed outright for want of subject

matter jurisdiction. See

On August 27, 2022, Allen filed a Response (“RSC”), ECF No. 8, to

4 the Order to Show Cause, and, having reviewed the response, another screening court found that

while the citizenship of the parties was “still unclear,” because the case was at an “early pleading

stage,” the court must “take Allen’s supplemental assertions” regarding subject matter

jurisdiction “at face value[,]” and it therefore discharged the Show Cause Order, see Order, ECF

No. 8, at 2. Shortly thereafter, this matter was assigned to this court.

Per his own attestations, Allen is a United States citizen who, sometime in 2018 and well

before he filed this case, left the United States and moved to Turkey, for fear of retribution by his

estranged wife. He has resided in Turkey with extended family members, for the entire duration

of this case. See RSC ¶ 4; Compl. ¶¶ 1, 7, 12–16; see also Declaration of Defense Counsel, Efe

Poturoglu, Esq. (“Poturoglu Decl.”), ECF No. 49-3 ¶ 12; Reply Exhibits, ECF No. 45-1 (Emails

b/t Allen & Defense Counsel), at 2; Ct. Docket at address of record.

Although Allen is a United States citizen, he was not domiciled in any U.S. state at the

time he filed the Complaint, therefore he cannot be considered “citizen of a State” for purposes

of diversity jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain,

, 828–30

(1989). The Supreme Court has mandated that “[i]n order to be a citizen of a State within the

meaning of the diversity statute, a natural person must both be a citizen of the United States and

be domiciled within the State.”

(emphasis added) (citing Robertson v. Cease,

, 648–49 (1878); Brown v. Keene,

(1834)); see CostCommand, LLC v. WH

Adm'rs, Inc.,

(D.C. Cir. 2016) (same). As in Newman-Green,

,

“[t]he problem in this case is that [Allen], although a United States citizen, has no domicile in

5 any State.” That renders him “stateless” for purposes of § 1332(a), destroying diversity under

any applicable subsection of the statute. See id. at 828–29; see also Janvey v. Proskauer,

, at 5–6 (D.D.C. 2014) (finding that the court lacked subject matter jurisdiction

because “[a]n American citizen domiciled abroad, while being a citizen of the United States is,

of course, not domiciled in a particular state, and therefore such person is stateless for purposes

of diversity jurisdiction[,]” and that a stateless party destroys complete diversity) (internal

quotation marks omitted) (quoting Swiger v. Allegheny Energy, Inc.,

, 183–184 (3rd

Cir. 2008); Newman-Green,

); Core VCT Plc v. Hensley,

(D.D.C. 2014) (holding that a “United States citizen who has no domicile in any State . . . is

stateless and cannot sue or be sued in federal court on the basis of diversity.”) (internal quotation

marks omitted) (quoting Newman-Green,

; citing Cresswell v. Sullivan &

Cromwell,

(2d Cir. 1990) (“Though we are unclear as to Congress’s rationale for

not granting United States citizens domiciled abroad rights parallel to those it accords to foreign

nationals, the language of § 1332(a) is specific and requires the conclusion that a suit by or

against United States citizens domiciled abroad may not be premised on diversity.”)); Jankovic v.

Int’l Crisis Grp., No. 04-01198,

, at *5 (D.D.C. Aug. 23, 2005) (same).

A person's “[d]omicile is determined by two factors: physical presence in a state, and

intent to remain there for an unspecified or indefinite period of time.” Prakash v. Am. Univ.,

(D.C. Cir. 1984). And “for purposes of diversity jurisdiction, courts apply a

presumption of continuing domicile, so that domicile in one place remains until domicile in a

6 new place is established.” Core VCT,

(citing Desmare v. United States,

(1876); Techno-TM, LLC v. Fireaway, Inc.,

(S.D.N.Y.

2013)). Here, Allen has neither represented nor presented any other evidence that, at the time he

filed suit, he was domiciled in Ohio or in any other U.S. state. To the contrary, he concedes he

was domiciled in Turkey when he filed this case, and he remains there, over three years later.

The court also notes that Allen has not represented that he is a dual citizen of Turkey, but

even if he is, it would not assist in establishing diversity jurisdiction. TRT World has attested

that it “is an international news channel of, and operated by, Türkiye Radyo Televizyon Kurumu

(hereinafter “TRT”), which is a public entity organized under the laws of the Republic of

Turkiye.” MTD Mem. at 15 (citing Declaration of Hakan Corpur, Washington Bureau Chief of

TRT World (“Corpur Decl.”), ECF No. 49-2, ¶ 2); see also Answer (“Ansr.”), ECF No. 22, ¶ 3.

“TRT World is the national public broadcaster of Türkiye, and its “primary place of business is

in Istanbul, Türkiye.” MTD Mem. at 15 (quoting Corpur Decl. ¶¶ 2, 4); see Ansr. ¶ 3. While

“TRT World has a broadcast studio in Washington, D.C.” it is “registered as a foreign non-profit

corporation under the name ‘Turkish Radio-Television Corporation (The).’” MTD Mem. at 15

(quoting Corpur Decl. ¶ 3); see Ansr. ¶ 3.

A corporation's citizenship, for diversity jurisdiction purposes, is determined by its state

of incorporation and its principal place of business. See

(c)(1); see also Hertz

Corp., 559 U.S. at 80–81. On the record before it, the court concludes that TRT World is a

citizen of Turkey for purposes of diversity jurisdiction. Therefore, even assuming arguendo

7 Allen is also a Turkish citizen, any diversity jurisdiction would be defeated, because TRT World

is also a Turkish citizen, and “[f]or jurisdiction to exist under

, there must be

complete diversity between the parties, which is to say that the plaintiff may not be a citizen of

the same state as any defendant.” Bush v. Butler,

(D.D.C. 2007) (citing

Owen Equip. & Erection Co. v. Kroger,

, 373–74 (1978)).

Second, the court agrees that the circumstances of this case also warrant dismissal for

failure to prosecute. See MTD Mem. at 7–12. Allen has engaged in persistent dilatory behavior,

and, despite repeated warnings, he has continually disregarded the court’s orders and the

applicable Federal and Local Rules of Civil Procedure.

At the outset of the case, the court issued an Order, ECF No. 15, advising the pro se

parties, including Allen, of their obligation to follow the Federal and Local Civil Rules and the

orders of this court, and it cautioned those parties that failure to comply could result in sanctions.

Just two months later, on March 4, 2021, the court was compelled to again remind Allen of this

same obligation, because he had flagrantly violated D.C. Local Civil Rule 5.4(f), in filing a

Response, ECF No. 24 [SEALED], that included unredacted exhibits containing former

defendant Mary P. Addi’s private and sensitive information. See Minute Order (entered 3/4/21).

Allen was again warned that continued failure to comply could result in sanctions, including

dismissal of this case. See

He was again issued this same warning by Minute Order on

March 11, 2021.

8 On March 15, 2021, Allen filed his First Motion to Stay Proceedings, ECF No. 27. On

April 5, 2021, the court entered a Minute Order granting that Motion in part and staying the case

against TRT World for six months, but it also noted that Allen had failed to comply with D.C.

Local Civil Rule 7(m). Consequently, Allen was cautioned, now for at least the fourth time,

about potential sanctions, including dismissal, arising from his continued failures to comply. See

On September 22, 2021, the court entered a Memorandum Opinion, ECF No. 29, and

Order, ECF No. 30, granting Addi’s Motion to Dismiss, ECF No. 14, and dismissing the claims

against her without prejudice pursuant to Federal Rule 12(b)(2).

On September 30, 2021, Allen filed a Second Motion to Stay, ECF No. 31, asking the

court to toll certain deadlines and to stay the case against TRT World, but Allen again failed to

comply with D.C. Local Civil Rule 7(m). See Minute Order (entered 10/6/21). Consequently, he

was directed to refile the Second Motion to Stay, with an accompanying Rule 7(m) certification.

See

He was again reminded of his obligation to follow the court’s Rules and orders, and

about the potential repercussions of his continued failure to comply, including possible dismissal.

See

On November 8, 2021, Allen refiled his Second Motion to Stay, ECF No. 32 [SEALED],

which was ultimately sealed because it contained yet more irrelevant and defamatory statements

about Addi. See Order, ECF No. 37. Allen was again reprimanded, for at least the sixth time,

9 for his failures to follow the court’s orders and Rules, and he was again cautioned about the

possibility of future sanctions, including dismissal. See id. at 12.

On January 12, 2022, after considering TRT World’s Opposition, ECF No. 38, Allen’s

Second Motion to Stay was denied, see Order, ECF No. 39. The court also ordered TRT World

and Allen to meet and confer, and it directed TRT World to, by February 9, 2022, file a joint

report of the parties’ planning meeting. See id. (citing Fed. R. Civ. P. 26(f); D.C. LCvR 16.3).

Id. The parties were warned that separate Rule 26 reports would be stricken. Id. Despite this

warning, and predominantly due to Allen’s continued failures to cooperate, see Order (“Ord.”),

ECF No. 47, at 1–2 (explaining same), the parties filed separate Meet and Confer Statements, see

ECF Nos. 40, 42. During that time, Allen also filed a flurry of other frivolous Motions and

submissions. See, e.g., Response, ECF No. 41; Motion for Temporary Order, ECF No. 43;

Motion to Remove or Cancel, ECF No. 44; Objections (“Objs.”), ECF No. 46; see also Ord. at

4–5 (denying Allen’s Motions).

On June 9, 2022, the court entered an Order, inter alia, reluctantly accepting the separate

Meet and Confer Statements in the interest of judicial economy. See Ord. at 2. The court also

recounted this matter’s frustrating procedural history, characterized by “continued delays and

unnecessary disputes, many of which were caused by Plaintiff.” See id. And it again reminded

Allen that his pro se status was not a license to ignore either the court’s Rules or its directives,

and he was strongly cautioned regarding his continued circumvention of the court’s procedures,

10 lack of civility, and refusals to cooperate. Id. at 3–4, 6. For at least the seventh time, Allen was

advised of potential resulting sanctions, including future dismissal.

The court then entered a Scheduling Order, ECF No. 48, on June 13, 2022. The

Scheduling Order also apprised the parties, including Allen, of their duty to adhere to the

deadlines and procedures set forth therein. See id. at 1. Discovery closed on December 22, 2022,

see id., and on January 21, 2023, TRT filed the pending Motion to Dismiss. On January 23,

2023, the court entered an Order, ECF No. 50, advising Allen to, in accordance with the court's

existing briefing schedule, respond to TRT World’s Motion to Dismiss by February 22, 2023, or

risk the court ruling on the Motion without the benefit of his position, see id. at 1–2 (citing Fox v.

Strickland,

(D.C. Cir. 1988)). In accordance with its procedure as to all docketed

entries in this case, the court directed the Clerk to serve Allen with a copy of this Order by both

mail at his address of record, and to his email address of record. 1 See id. at 2; Docket Entries.

Despite this additional consideration, and the convenience afforded him, Allen has failed to file

any response to TRT World’s Motion to Dismiss, and his deadline elapsed five months ago.

Allen has also failed to meet a single discovery deadline, including production of his

initial Rule 26(a)(1) disclosures or of his expert designation. See MTD Mem. at 8–10; Poturoglu

Decl. at ¶¶ 2–11; see also MTD Ex. 3 (Emails from defense counsel to Allen). Indeed, he has

failed to participate in discovery altogether, despite multiple communications and attempts by

1 Neither this Order, nor any other mail, has been returned to the court as undeliverable to Allen. 11 defense counsel to “engage Plaintiff and move this case forward.” MTD Mem. at 8; Poturoglu

Decl. at ¶¶ 2–11; see also MTD Ex. 3. In fact, he has not participated in this case, in any way, in

over 17 months. See Objs. (filed 2/16/22) (representing Allen’s last submission in this case);

Poturoglu Decl. ¶¶ 12–15 (attesting that defense counsel had not heard from Allen since

February 8, 2022).

Given Allen’s repeated failures to comply with the court’s orders and Rules, including

the court’s countless warnings to Allen regarding the potential implications of same, and his

“lengthy period of inactivity,” Smith–Bey,

, dismissal for failure to prosecute is

appropriate. Put simply, Allen has “not manifested reasonable diligence in pursuing” this matter,

see Bomate,

, and because he has done nothing to suggest that he intends to

prosecute his claims, they must be dismissed.

TRT World seeks dismissal with prejudice based on Allen’s failure to prosecute. See

MTD Mem. at 7–9, 12. Pursuant to D.C. Local Rule 83.23, such a dismissal “should be made

without prejudice unless the delay in prosecution impairs the opposing party’s interests.” Wingo

v. WMATA, No. 19-cv-3507,

, at *2 (D.D.C. Mar. 16, 2023) (citing D.C.

LCvR 83.23). Here, the court is mindful of both Allen’s pro se status, see

and of the fact that

the sanctions employed must be proportionate to the misconduct, and that less drastic sanctions

other than outright dismissal must be considered, see Bonds v. District of Columbia,

(D.C. Cir. 1996), cert. denied,

(1997). For that reason, and as noted, the

court provided Allen with multiple warnings, and he was provided with ample opportunity to

12 respond to TRT World’s arguments in support of dismissal. TRT World broadly asserts that it

has been burdened by the pendency of this matter, and that both it and the court deserve to be

spared from “expend[ing] further resources” on this matter, see MTD Mem. at 12, and the court

does not disagree. But, while this argument generally supports dismissal, it does not speak

directly to why the dismissal should be made with prejudice. Therefore, without more, and given

Allen’s pro se status, the court “sees no reason to depart from” the “default rule,” of dismissing

this matter without prejudice. 2 See Wingo,

, at *2.

CONCLUSION

For all of the foregoing reasons, TRT World’s Motion to Dismiss is granted and the case

against it is dismissed without prejudice. An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Date: July 21, 2023 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

2 In addition, and as discussed, the court dismisses this case for lack of subject matter jurisdiction, and such a dismissal must be without prejudice to a subsequent action raising the same or similar underlying facts if different grounds for jurisdiction are claimed. See Fed. R. Civ. P. Rule 41(b); see also Allen v. Brown,

(D.D.C. 2018) (finding that a “dismissal for lack of subject matter jurisdiction is not a ‘judgment on the merits.’”) (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 2713, p. 239 (3d ed. 1998) (“If the court has no jurisdiction, it has no power to enter a judgment on the merits.”); Restatement (Second) of Judgments § 11, p. 108 (1980) (“A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.”)). 13