                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


ASHRAF M. MASOUD,

                       Plaintiff,

                       v.                          Civil Action No. 10-0994 (BAH)

MOHAMMAD SULIMAN, et al.,

                       Defendants.


                                    MEMORANDUM OPINION

        This case involves a scrap metal deal gone wrong. The plaintiff, Ashraf M. Masoud,

brought this suit against the defendants – Mohammad Suliman and his Azerbaijani company,

Dar-Al Tanmiyah – alleging claims of breach of contract, fraud, misrepresentation, and unjust

enrichment stemming from their scrap metal business dealings. The defendants failed to respond

to the Complaint in a timely fashion and the Clerk of the Court entered default against the

defendants. The defendants have now appeared in this case and have moved to vacate entry of

default and to dismiss the Complaint. The Court, however, must dismiss this Complaint sua

sponte for lack of subject matter jurisdiction.

   I.       BACKGROUND

        Plaintiff Masoud, a resident of Virginia, alleges that, in December 2006, defendant

Suliman, who is also a resident of Virginia, approached him with a business proposition. See

Compl. ¶ 1, 2, 5. Defendant Suliman allegedly told the plaintiff that he had a “willing and

ready” buyer of large amounts of scrap metal. See id ¶ 9. The defendant allegedly stated that if

the plaintiff invested $372,000 in the defendant’s Azerbaijani company, Dar-Al Tanmiyah, they

would use that investment to buy scrap metal and resell it to the willing buyer at a profit. See id.
¶ 5. There was just one problem, according to the plaintiff: The whole deal was a fraud

concocted by the defendants. See id. ¶¶ 13, 15.

         In furtherance of this fraud, the plaintiff alleges that Suliman brought him to the

Azerbaijani embassy and showed him what appeared to be a certificate of good standing from

the government of Azerbaijan. See id. ¶¶ 7-8. Suliman also purportedly set up phone calls with

phony buyers to give the plaintiff the impression that he would see a healthy return on any

investment in the defendant’s company. See id. ¶ 7. Relying on these alleged

misrepresentations, the plaintiff provided the defendants with $372,000 for the purpose of

purchasing scrap metal to resell at a profit. Instead of purchasing the scrap metal, as was

discussed, the plaintiff alleges that the defendant kept the money with no intention of repaying

him. See id. ¶ 9.

         Based on these allegations, the plaintiff filed a Complaint in this Court on June 15, 2010

asserting four claims: breach of contract, fraud, misrepresentation, and unjust enrichment. Id. ¶¶

19-38. The defendants failed to respond to the Complaint in a timely manner and, on June 30,

2011, the Clerk of the Court entered default against the defendants. On August 18, 2011, the

defendants filed a motion requesting that the Court set aside the default and dismiss all claims

against them. The defendants’ motion to vacate default and to dismiss the Complaint is presently

before the Court. Upon examination of the record, however, the Court finds that it does not have

subject matter jurisdiction over the plaintiff’s claims and therefore must dismiss this case.

   II.      STANDARD OF REVIEW

         While neither party presents the issue, a court must dismiss a case when it lacks subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”); see also Jerez v. Republic of
Cuba, 777 F. Supp. 2d 6, 15 (D.D.C. 2011) (“[S]ubject matter jurisdiction may be raised at any

time, even by the court sua sponte.”); McManus v. District of Columbia, 530 F. Supp. 2d 46, 62

(D.D.C. 2007). “Plaintiff bears the burden of proving subject matter jurisdiction by a

preponderance of the evidence.” Am. Farm Bureau v. U.S. EPA, 121 F. Supp. 2d 84, 90 (D.D.C.

2000); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). It is well established

that, in assessing subject matter jurisdiction, a court must construe the allegations in the

Complaint liberally but “need not accept factual inferences drawn by plaintiffs if those

inferences are not supported by facts alleged in the complaint, nor must the Court accept

plaintiffs' legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006);

see also Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.1986), vacated on other grounds,

482 U.S. 64 (1987). The Court must be assured that it is acting within the scope of its

jurisdictional authority and therefore must give the plaintiffs' factual allegations closer scrutiny

in assessing subject matter jurisdiction than would be required for a Rule 12(b)(6) motion for

failure to state a claim. See Westberg v. FDIC, 759 F. Supp. 2d 38, 41 n. 1 (D.D.C. 2011) (citing

Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)); Dubois v. Wash. Mut. Bank,

2010 U.S. Dist. LEXIS 91855, at *5 (D.D.C. Sept. 2, 2010) (citing Grand Lodge of Fraternal

Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13-14 (D.D.C. 2001)); Hoffman v. District of

Columbia, 643 F. Supp. 2d 132, 135 (D.D.C. 2009). In evaluating subject matter jurisdiction, the

Court, when necessary, may look outside the Complaint to “undisputed facts evidenced in the

record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed

facts.” Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir.1992) (citing Williamson v.

Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Alliance for Democracy v. FEC, 362

F.Supp.2d 138, 142 (D.D.C. 2005) (“[I]n deciding a Rule 12(b)(1) motion, it is well established
in this Circuit that a court is not limited to the allegations in the complaint, but may also consider

material outside of the pleadings. . .”).

    III.      DISCUSSION

           The Complaint in this case does not provide a basis for subject matter jurisdiction in this

Court. The Complaint purports to invoke federal question jurisdiction by generally referencing

fourteen separate federal criminal statutes. See Compl. ¶ 4 (“[T]he case arises from a violation

of federal law or question [sic], and pendent state law claims.”); id. (citing federal criminal

statutes, including 18 U.S.C § 659 (theft from interstate carrier), 18 U.S.C § 1832 (theft of trade

secrets), 18 U.S.C. § 641 (theft of federal property), and 18 U.S.C. § 1001 (false statements on a

matter within the jurisdiction of a branch of the federal government)). These criminal statutes,

however, do not and cannot provide the basis for the plaintiff’s civil causes of action. See

Leggett v. Powers, No. 09-558, 2009 WL 4032664, at *1 (D.D.C. Nov. 20, 2009) (“Plaintiff’s

harassment claim against [the defendant] does not present a federal question under [28 U.S.C.] §

1331, and he cannot bring a private right of action based on defendant’s alleged criminal

behavior.”); Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F. Supp.

2d 17, 23 (D.D.C. 2003) (finding that “plaintiff is precluded from asserting any claims pursuant

to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they do not convey a private right of

action.”).

           Furthermore, the Complaint’s four enumerated counts do not purport to invoke any

federal statutes. Rather, the Complaint on its face has asserted four common law claims for

breach of contract, fraud, misrepresentation, and unjust enrichment. See Compl. ¶¶ 19-38. None

of these causes of action purport to present a claim for relief under federal law. Accordingly, the

plaintiff’s invocation of federal question jurisdiction pursuant to 28 U.S.C. § 1331 is misplaced.
          Finally, the Complaint does not invoke federal jurisdiction based on diversity of

citizenship. To the contrary, the Complaint alleges that both the plaintiff and defendant Suliman

are residents of the Commonwealth of Virginia. See id. ¶¶ 1-2. Accordingly, diversity

jurisdiction pursuant to 28 U.S.C § 1332 is also lacking.

          The plaintiff bears the burden of demonstrating subject matter jurisdiction, Am. Farm

Bureau, 121 F. Supp.2d at 90, and has not done so. Since this Court is without subject matter

jurisdiction to consider the claims alleged in this case, the Court must dismiss this action.

    IV.      CONCLUSION

          For the reasons stated above, this action is dismissed for lack of subject matter

jurisdiction and the defendants’ pending motion is denied as moot.1 An Order consistent with

this Memorandum Opinion will be entered.


DATED: October 6, 2011                                                    /s/ Beryl A. Howell
                                                                          BERYL A. HOWELL
                                                                          United States District Judge




1
 The apparent basis for the defendants’ handwritten motion to dismiss was that the claims underlying this action
have already been adjudicated in a lawsuit in state court in Virginia. See Defs.’ Mot. to Dismiss and to Set Aside
Default. The plaintiff appears to concede that fact, but still argues that this Court should not vacate the default and
should deny the motion to dismiss. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss and to Set Aside Default. The Court
does not reach these issues given the evident lack of subject matter jurisdiction.
