                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



INTERNATIONAL CREATIVE TALENT
AGENCY, LLC,

        Plaintiff,
               v.                                          Civil Action No. 11-1469 (JEB)
TURKISH REPUBLIC OF NORTHERN
CYPRUS, et al.,

        Defendants.


                                  MEMORANDUM OPINION

        Turkey and Greece have long engaged in a dispute about the governance of the

northeastern part of the island of Cyprus. Against this international backdrop, Plaintiff

International Creative Talent Agency, LLC (ICTA) brings an action that reads more like a

political manifesto than a contract suit. The Complaint decries the Turkish Republic of Northern

Cyprus (TRNC), which “exists only on the strength of occupation by Turkish military forces,”

who “illegally invaded the Republic of Cyprus and forcibly displaced approximately 200,000

Greek Cypriots.” Compl., ¶¶ 1, 36. The suit itself names as defendants the TRNC, a hotel, and

its parent company, and the basis of the action relates to a contract for a concert performance on

Cyprus. Proof of service has only been filed as to Defendant TRNC, which has now moved to

dismiss on a number of grounds, including lack of federal subject-matter jurisdiction. As the

Court agrees that Plaintiff has not sufficiently alleged such jurisdiction, it will grant the Motion

and dismiss the case without prejudice against the TRNC.

   I.      Background



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       The gravamen of the Complaint, which must be presumed true at this stage, is that

Defendants “have colluded wrongfully to procure by deception the services of the [i]nternational

artist Julio Iglesias, to perform in an area in which it is illegal to do so under United States and

international law” – namely, in the TRNC, which is “not a recognized state [and] exists only on

the strength of occupation by Turkish military forces.” Compl. at 2. ICTA is an international

talent agency headquartered in the United States. Id., ¶ 4. Defendant Voyager is “an illegal

foreign company operating as a hotel and casino” on Cyprus, the “rightful owner” having been

“forcibly displaced . . . during the Turkish invasion of Cyprus in 1974.” Id., ¶ 5. Defendant Net

Holdings is “the parent company and sole owner of Voyager.” Id., ¶ 6.

       On or about August 8, 2010, Voyager contracted with ICTA for its client, Julio Igleisas,

to perform at a concert in the part of Cyprus under TRNC control. Id. at ¶¶ 10-11. Voyager

“intentionally concealed the fact” that the performance would violate the laws of the Republic of

Cyprus, which, among other nations, does not recognize the TRNC. Id., ¶¶ 13-14. Informed of

the issue, Iglesias decided not to perform. Id., ¶¶ 24, 29. Plaintiff claims that Defendants falsely

represented the lawfulness of their actions, thus misleading it into the contract, which Plaintiff

requests be declared “illegal and void ab initio.” Id., ¶ 25. Plaintiff further alleges that the

TRNC and Voyager’s “deceptive trade practices lure United States citizens to its illegal

operations, making them unknowing violators of the law and causing an intentional trespassing

on the lands of another.” Id., ¶ 51.

       Plaintiff brings claims for common-law fraud, civil conspiracy, breach of contract,

“detrimental reliance,” intentional and negligent misrepresentation, “constructive fraud,”

“concealment or non-disclosure,” “aiding and abetting,” violation of the Lanham Act, intentional

interference with prospective business advantage, and false-light invasion of privacy. Id., ¶¶ 55-



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105. No proof of service has yet to be filed for either Voyager or Net Holdings. TRNC has now

submitted a lengthy Motion to Dismiss.

    II.       Legal Standard

           To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), Plaintiff bears the burden

of proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior,

231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police

v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in

resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in

original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction.” Jerome Stevens Pharmaceuticals, Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir.

2005); see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005)

(“given the present posture of this case — a dismissal under Rule 12(b)(1) on ripeness grounds

— the court may consider materials outside the pleadings”); Herbert v. Nat’l Academy of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

    III.      Analysis

           The TRNC points out numerous defects with the causes of action in Plaintiff’s

Complaint, as well as asserting that the Court lacks subject-matter jurisdiction over the entire

case. “Subject matter jurisdiction ‘is, of necessity, the first issue for an Article III court,’ for



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‘[t]he federal courts are courts of limited jurisdiction, and they lack the power to presume the

existence of jurisdiction in order to dispose of a case on any other grounds.’” Loughlin v. United

States, 393 F.3d 155, 170 (D.C. Cir. 2004) (quoting Tuck v. Pan Am. Health Org., 668 F.2d 546,

549 (D.C. Cir. 1981)); see also Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000)

(“The court cannot address any issue if it lacks subject matter jurisdiction . . . .”). The Court,

therefore, will address this ground for dismissal first. Because it concludes that no subject-

matter jurisdiction exists here and because the exercise of supplemental jurisdiction over the

common-law claims would be improper, it will dismiss the Complaint without prejudice.

        The Court will first discuss the three alleged bases of subject-matter jurisdiction and then

turn to the question of supplemental jurisdiction.

    A. 28 U.S.C. § 1330(a)

        The first basis upon which Plaintiff grounds its assertion of subject-matter jurisdiction is

28 U.S.C. § 1330(a). See Compl., ¶ 1. This provision grants federal district courts “original

jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign

state,” where the foreign state is not entitled to sovereign immunity. If Plaintiff’s principal

argument is that the TRNC is not a recognized foreign state, this seems like a curious basis for

jurisdiction. And, indeed, Plaintiff abjures reliance on that statute in its Opposition, although it

is unclear whether it is admitting its mistake or wrongly accusing the TRNC of the error. See

Opp. at 8 (“The Defendant points out that diversity and federal question jurisdiction was alleged

in the civil cover sheet submitted by Plaintiff but has mistakenly included 28 USC 1330 as a

basis for subject matter jurisdiction when in fact it was only based [on] diversity and federal

question (28 USC 13331 and 1332.)”). In any event, given this concession, the Court will not

consider this basis for jurisdiction.



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    B. Diversity Jurisdiction

        Plaintiff does clearly rely on diversity jurisdiction under 28 U.S.C. § 1332(a)(2). See

Compl. ¶ 1. This section grants federal jurisdiction to actions “where the matter in controversy

exceeds the sum or value of $75,000 . . . and is between . . . citizens of a State and citizens or

subjects of a foreign state.” As the TRNC correctly points out, the Complaint fails to allege that

a sum over $75,000 is in controversy. See Mot. at 9-10. Plaintiff makes no argument to the

contrary, nor could it. “[T]he party asserting diversity jurisdiction in federal court has the burden

of establishing the existence of the jurisdictional amount in controversy.” Lupo v. Human

Affairs Int’l, Inc., 28 F.3d 269, 273 (2d Cir. 1994); see also Reule v. H.O. Seiffert Co., 430 Fed.

Appx. 584, 584 (9th Cir. 2011) (“The district court properly dismissed Reule's state law claims

for lack of diversity jurisdiction because she failed to allege facts establishing that the amount in

controversy exceeded $75,000.”) (citations omitted). This basis for federal subject-matter

jurisdiction, therefore, is as unavailing as the prior one.

    C. Lanham Act

        The remaining possible basis for jurisdiction, therefore, lies with 28 U.S.C. § 1331,

which addresses federal-question jurisdiction and was also cited by Plaintiff. See Compl., ¶ 1.

Yet, the lone federal claim Plaintiff asserts is one under the Lanham Act, 15 U.S.C. § 1125(a).

Id., ¶¶ 93-97. Defendant argues in its Motion that such a claim is so obviously deficient that it

cannot establish subject-matter jurisdiction. See Mot. at 7-8. Alternatively, the Court could

consider it under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be

granted, a ground also urged by the TRNC. Id. at 35-37.

        The Court need not decide which is the more appropriate standard because Plaintiff has

clearly conceded its Lanham Act claim. It says absolutely nothing in its Opposition about such a



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claim, which it has apparently abandoned at this point. See Abuhouran v. U.S. State Dept., 2012

WL 473241, at *2 (D.D.C. 2012) (“An argument in a dispositive motion that the opponent fails

to address in an opposition may be deemed conceded.”) (citations and internal quotations

omitted). The Court, therefore, deems the issue conceded. There remains, accordingly, no basis

for subject-matter jurisdiction here.

    D. Supplemental Jurisdiction

        District courts are given supplemental (formerly, pendent) jurisdiction over state claims

that “form part of the same case or controversy” as federal claims over which they have original

jurisdiction. 28 U.S.C. § 1367(a). By the same token, they “may decline to exercise

supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction.” § 1367(c)(3). The decision of whether to exercise

supplemental jurisdiction where a court has dismissed all federal claims is left to the court’s

discretion as “pendent jurisdiction is a doctrine of discretion, not a plaintiff's right.” United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), quoted in Shekoyan v. Sibley Intern., 409

F.3d 414, 423 (D.C. Cir. 2005). When deciding whether to exercise supplemental jurisdiction

over state claims, federal courts should consider “judicial economy, convenience and fairness to

litigants.” Id. Nonetheless, “in the usual case in which all federal-law claims are eliminated

before trial, the balance of factors to be considered under the pendent jurisdiction doctrine —

judicial economy, convenience, fairness, and comity — will point toward declining to exercise

jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S.

343, 350 n.7 (1988); see Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260,

1267 (D.C. Cir. 1995) (finding the discretion set out in Carnegie-Mellon Univ. “unaffected by

the subsequent enactment of 28 U.S.C. § 1367(d), in the Judicial Improvements Act of 1990”).



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         Here the factors clearly weigh against a retention of the case. This Court has handled

little in the case beyond the current Motion to Dismiss and has not dealt at all with the pendent

state claims. Compare Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir.

2010) (finding that district court appropriately retained pendent jurisdiction over state claims

where it had “invested time and resources” in the case). Finally, Plaintiff will not be prejudiced

because 28 U.S.C. 1367(d) provides for a tolling of the statute of limitations during the period

the case was here and for at least 30 days thereafter. See Shekoyan, 409 F.3d at 419 (finding that

because of this tolling, dismissal of the pendent state claims “will not adversely impact plaintiff's

ability to pursue his District of Columbia claims in the local court system.”) (internal citation

omitted).

         The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining

common-law claims, which it may file in the appropriate state or local forum. Should Plaintiff

do so, or attempt to return here, the Court would caution that a number of the claims are

obviously infirm – e.g., there is no independent action for “aiding and abetting”; Plaintiff’s

contract claims against the TRNC are puzzling given that Iglesias, not Defendants, terminated

the contract, which the TRNC was not even a party to; and there is no publicity allegation to

support a claim for false-light invasion of privacy. These should be removed or amended in the

event Plaintiff proceeds anew.

   IV.      Conclusion

         The Court will, therefore, issue a contemporaneous Order that grants the Motion and

dismisses the case against the TRNC without prejudice.




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                           /s/ James E. Boasberg
                           JAMES E. BOASBERG
                           United States District Judge
Date: April 24, 2012




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