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
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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.
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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
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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”),
18 U.S.C. § 1962(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.” 18 U.S.C. § 1962(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, 657 F. Supp. 2d 104, 111 (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 id. at 108.
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, 657 F. Supp. 2d at 114-15. He ruled that the plaintiffs’ allegations did not
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“indicate that the RICO Defendants had engaged in a ‘pattern of racketeering activity’” or formed
a conspiracy, id., 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. Id. at 111-12.
Plaintiffs’ RICO claim therefore was dismissed. See id. at 116. In the absence of the RICO
claim, the asserted basis for federal question jurisdiction no longer existed. Id. at 115-16.
Lacking jurisdiction over the plaintiffs’ case, Judge Urbina also dismissed the plaintiffs’ state
law claims. Id. That ruling was affirmed on appeal. See Lopez I, No. 09-7129, 2010 WL
2689367 (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 28 U.S.C. § 1332, 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 D.C. Code § 28-3901 and Va. Code § 59.1-204 — all state law causes of action.
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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 28
U.S.C. § 1332.
Under 28 U.S.C. § 1332, 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. . . .” 28 U.S.C. § 1332(a). When the court considers whether a claim meets the
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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., 303 U.S. 283, 288
(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.” Id. at 289. 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, 994 F.2d 13, 17 (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.
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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., 166 F.3d 59, 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., 303 U.S. at 289)).
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., 508 S.E.2d 601, 604 (Va. 1999); see also Nwachukwu v. Karl,
223 F. Supp. 2d 60, 68 (D.D.C. 2002) (finding that plaintiff had alleged facts sufficient to
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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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