PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD JOHN CHARLES GALUSTIAN,
a subject of the United Kingdom
and resident of the United Arab
Emirates,
Plaintiff-Appellant, No. 09-1069
v.
LAWRENCE T. PETER,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(2:08-cv-00059-RBS-FBS)
Argued: October 29, 2009
Decided: January 15, 2010
Before TRAXLER, Chief Judge, and GREGORY and
DAVIS, Circuit Judges.
Reversed in part, vacated and remanded by published opinion.
Judge Gregory wrote the opinion, in which Chief Judge Trax-
ler and Judge Davis joined.
COUNSEL
ARGUED: Frank Alwin Edgar, Jr., KAUFMAN &
CANOLES, PC, Newport News, Virginia, for Appellant.
2 GALUSTIAN v. PETER
Christopher Scott Anulewicz, BALCH & BINGHAM, LLP,
Atlanta, Georgia, for Appellee. ON BRIEF: Marc E. Darnell,
KAUFMAN & CANOLES, PC, Newport News, Virginia, for
Appellant. K. Alex Khoury, BALCH & BINGHAM, LLP,
Atlanta, Georgia, for Appellee.
OPINION
GREGORY, Circuit Judge:
On December 12, 2008, the United States District Court for
the Eastern District of Virginia issued an order dismissing
appellant Richard Galustian’s one-count defamation suit
against Lawrence T. Peter for forum non conveniens. The dis-
trict court found that Iraq was an available and adequate
forum for the suit and was overall more convenient. Addition-
ally, the court denied Galustian’s motion to amend his com-
plaint to add further factual allegations against Peter and to
join Colonel Jack Holly as a co-defendant. For the reasons
stated below, we reverse in part and vacate the district court’s
order and remand for further proceedings consistent with this
opinion.
I.
A.
Richard Galustian ("Galustian") is a citizen of Great Britain
and a resident of the United Arab Emirates. He is the owner
and director of ISI International, Ltd. ("ISI"), a commercial
security, aviation, and defense consultancy business incorpo-
rated under the laws of Dubai and the United Arab Emirates.
Lawrence T. Peter ("Peter") is a citizen of the United States
who resides in Virginia Beach, Virginia. He works in Bagh-
dad, Iraq as the director of the Private Security Company
Association of Iraq ("PSCAI"), an industry association that
GALUSTIAN v. PETER 3
keeps member companies apprised of industry developments
and sets standards for the private security sector in Iraq.
On February 1, 2008, Galustian filed a one-count defama-
tion complaint against Peter in the United States District
Court for the Eastern District of Virginia. Venue and personal
jurisdiction were established by Peter’s legal residence in Vir-
ginia Beach. In his complaint, Galustian alleged that Peter
defamed him by sending an email to the members of PSCAI
on February 7, 2007, which attached an arrest warrant for
Galustian purportedly issued by an Iraqi judge. The warrant
for Galustian’s arrest showed it was issued by Judge Muham-
mad Uwaid Al-Thahab and listed Galustian’s personal data.
However, the space for indicating the type of crime and arti-
cle of law for which the warrant was issued was left conspicu-
ously blank. Peter sent the email to all members of the
PSCAI, attaching the original Arabic and English translation
of the warrant, and stating: "Please note the attached docu-
ment received by this office, 6 Feb 07. ISI
(http://www.isiiraq.com) is NOT/NOT a member of the
PSCAI. All the best, Lawrence." Compl. Ex. C.
In his submission to the district court, Peter stated that he
received the warrant from Colonel Jack Holly ("Holly"), then
the Director of Logistics for the U.S. Army Corps of Engi-
neers, and that he forwarded it to the members of the PSCAI
because he believed it was significant that an Iraqi court was
attempting to assert jurisdiction over a private contractor.
Peter stated he inspected the warrant, and it appeared to be
genuine. He submitted to the court that he did not, and does
not now, have any reason to believe otherwise. Holly stated
in his affidavit that he forwarded the warrant to Peter because
he knew Peter worked with a large community of private
security companies in Iraq, and he believed it could signifi-
cantly affect their operations.
Galustian alleges in his complaint that the warrant was in
4 GALUSTIAN v. PETER
fact a forgery.1 As background, Galustian states that he had
made an agreement in the past with a private security com-
pany incorporated in Canada, SkyLink Arabia ("Skylink"), to
provide services for them in return for a 10% equity share in
their company. SkyLink failed to deliver the equity interest,
and Galustian and ISI filed suit in a Canadian court in
November 2007 for breach of contract. As a result of his liti-
gation against Skylink, Galustian claims that SkyLink caused
the false warrant to be issued and to be delivered to Peter so
that it would be disseminated widely. He further alleges that
Peter then acted knowingly, recklessly, or negligently in dis-
regard of the fact that the warrant was a forgery when he pub-
lished it via email to the members of the PSCAI. As a result,
Galustian asserts that his reputation for honesty and integrity
has been seriously harmed, and he has lost substantial busi-
ness. He requests $3,000,000 in damages.
B.
In response to Galustian’s complaint, Peter filed a motion
to dismiss the case for forum non conveniens and failure to
state a claim under Virginia or Iraqi law.2 Peter attached
Exhibit A to his motion, an affidavit from George Hermes
Hanna, a member of the Iraq Bar Association who practiced
law in Iraq until November 2005 when he fled to the United
States. Hanna stated that he is familiar with the current civil
code in effect in Iraq, and it provides a cause of action for def-
amation in Articles 204 and 205. Peter also attached a copy
of Coalition Provisional Authority Order Number 17 ("Order
17"). Order 17 was issued by Paul Bremer, the head of the
1
Galustian alleges in his complaint that the British Foreign and Com-
monwealth Office in Iraq investigated the warrant and determined it was
fraudulent.
2
Because the district court dismissed the case on forum non conveniens
grounds, it did not reach the issue of whether Galustian had stated a claim
under Virginia or Iraqi law, and therefore that issue is not on appeal before
this Court.
GALUSTIAN v. PETER 5
Coalition Provisional Authority, during the early days of the
U.S. occupation of Iraq. The order granted immunity from
legal process in Iraq to certain classes of people: the multi-
national force, foreign liaison missions and their personnel,
international consultants, and contractors with respect to acts
performed pursuant to their contracts. Peter stated, as part of
his argument that Iraq was an alternative forum, that he was
not protected by the immunity provisions of Order 17 because
he did not contract with the U.S. government or military.
Galustian did not file a direct response to the motion to dis-
miss; rather he filed a motion to amend his complaint. In his
proposed amended complaint, Galustian added Holly as a co-
defendant, alleging Holly conspired with Peter and SkyLink
to defame him by causing a false warrant for his arrest to be
published. Galustian alleged that Holly conspired with
SkyLink because Holly had obtained a secret equity interest
in the company, an assertion Holly denied in his affidavit sub-
mitted to the court. Finally, in his motion to amend, Galustian
pled that Iraq is not an available alternative forum for his suit
because both Peter and Holly are immune from suit under
Order 17 and Galustian himself can no longer be present in
Iraq because of threats to his life.
The district court conducted a hearing on the motion to dis-
miss on May 15, 2008, and issued its decision on June 18,
2008. Galustian v. Peter, 561 F. Supp. 2d 559 (E.D. Va.
2008). The district judge granted the motion to dismiss for
forum non conveniens on the condition that Peter waive all
immunity under Order 17 and affirmatively submit to the
jurisdiction of the courts of Iraq by waiving any statute of
limitations defense he could have otherwise raised. Id. at 563.
The court held that dismissal was proper because Iraq pro-
vides a remedy for defamation and is available for litigation.
Id. Overall, the court found that all factors heavily favor hold-
ing the case in Iraq. Id. at 564-65. The district court denied
Galustian’s motion to amend, reasoning that because the case
6 GALUSTIAN v. PETER
was dismissed for forum non conveniens, the motion to amend
the complaint was moot. Id. at 562 n.3.
After the decision was rendered, Galustian filed a motion
to amend the court’s order on the basis that Order 17 does not
allow for individual waiver, but mandates an express waiver
from the sending state. The court agreed with this logic and
modified its order to require that Peter provide "a waiver of
immunity from Iraqi legal process by the United States on the
defendant’s behalf, in accordance with § 5 of Order 17."
Galustian v. Peter, 570 F. Supp. 2d 836, 839 (E.D. Va. 2008).
Indeed, if Peter did not provide the waiver, he "has not carried
his burden of showing that Iraq is an adequate alternative
forum." Id. at 838 n.4.
In response to the judge’s requirement, Peter submitted a
formal request to the State Department for a waiver of his
Order 17 immunity on September 17, 2008. The State Depart-
ment responded on October 29, 2008, declining to prospec-
tively waive Peter’s immunity but stating that, in its opinion,
a waiver would not be necessary because, based on the infor-
mation provided, Peter was not entitled to immunity.3
The district court dismissed Galustian’s action for forum
non conveniens in a final order on December 12, 2008. Galus-
tian v. Peter, 590 F. Supp. 2d 804 (2008). The court found
that the "best available evidence" of whether Order 17 applies
to Peter was the State Department’s letter and its conclusion
that he is not immune. Id. at 807. This timely appeal followed.
II.
Galustian presents two issues upon appeal: whether the dis-
trict court erred in denying his motion to amend his com-
plaint, and whether the district court erred in dismissing his
3
The Department did reserve the right to reconsider its decision if it
became aware of any additional facts.
GALUSTIAN v. PETER 7
complaint for forum non conveniens. We reverse the court’s
decision on the first question alone, and remand this matter
with guidance to the district court on the forum non conve-
niens issue.
A.
This Court reviews a district court’s denial of a plaintiff’s
motion to amend for abuse of discretion. Edwards v. City of
Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (citing Health-
South Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005,
1010 (4th Cir. 1996)). It is this Circuit’s policy to liberally
allow amendment in keeping with the spirit of Federal Rule
of Civil Procedure 15(a). See Coral v. Gonse, 330 F.2d 997,
998 (4th Cir. 1964). In this case, Galustian sought leave from
the district court to amend his complaint. The court denied
that motion because "in light of the court’s determination that
Virginia is an inconvenient forum to hear this case . . . and
because it does not change the forum non conveniens analysis
as applied to the defendant, the court finds the plaintiff’s
motion for leave to amend his complaint . . . MOOT." Galus-
tian, 561 F. Supp. 2d at 562 n.3. Importantly, however, a
plaintiff has an absolute right to amend his complaint once
before a responsive pleading has been filed and need not seek
leave of court to do so.4 Fed. R. Civ. P. 15(a) (2008). There-
fore, we hold the district court abused its discretion in deny-
ing Galustian’s motion to amend his complaint because he
had not yet amended as of right and the defendant had not
filed a responsive pleading.
4
As of December 1, 2009, Federal Rule of Civil Procedure 15(a) was
amended to allow amendment as a matter of course to a pleading "(A) 21
days after serving it, or (B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e) or (f), whichever is
earlier." As such, our reasoning in Section II.A of this opinion corresponds
only to the version of Rule 15(a) in effect at the time of Galustian’s
motion to amend, March 2008.
8 GALUSTIAN v. PETER
In this case, Peter had not yet filed a responsive pleading,
as a motion to dismiss is not considered responsive. Domino
Sugar Corp. v. Sugar Workers Local 392, 10 F.3d 1064, 1068
n.1 (4th Cir. 1993) (citing United States v. Newbury Mfg. Co.,
123 F.2d 453 (1st Cir. 1941)). Galustian then had a right to
amend his complaint, with or without leave of the court to do
so. Peter contends that parties do not have an absolute right
to amend their pleadings when the amendment seeks to add
a party. According to Peter, such an amendment should be
governed not by Rule 15, but by Rule 21, which addresses the
joinder and misjoinder of parties. See Fed. R. Civ. P. 21
(2008). While some courts have concluded that Rule 15(a)
does not apply to amendments seeking to add parties, see,
e.g., Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d
732, 736 (7th Cir. 1986), most courts, including this one, have
concluded otherwise. See Mayes v. Rapoport, 198 F.3d 457,
462 n.11 (4th Cir. 1999) ("[A]fter the case had been
removed[,] Mayes filed her amended complaint naming Key
as a defendant. Since the Rapoports had not answered
Mayes’s complaint, Mayes was not required, under Rule
15(a), to seek leave of court for amendment."); see also
United States ex rel. Precision Co. v. Koch Indus., Inc., 31
F.3d 1015, 1018-19 (10th Cir. 1994); Washington v. New
York City Bd. of Estimate, 709 F.2d 792, 795 (2d Cir. 1983);
McLellan v. Mississippi Power & Light Co., 526 F.2d 870,
872-73 (5th Cir. 1976), vacated in part on other grounds, 545
F.2d 919 (5th Cir. 1977) (en banc). Peter’s assertion that
Galustian was not entitled under Rule 15(a) to amend his
complaint is therefore without merit.
Peter further argues that amendment should have been
denied because it was futile; the statute of limitations had run
for a claim against Holly and Galustian offered no further
information as to why Iraq was not an available forum. How-
ever, the doctrine of futility only applies when the plaintiff
seeks leave of court to amend and does not have a right to
amend. The plaintiff’s right to amend once is absolute. There-
fore, the district court abused its discretion in preventing
GALUSTIAN v. PETER 9
Galustian’s amendment as of right, and we reverse the district
court on that ground.
B.
We must therefore vacate the district court’s order dismiss-
ing the case for forum non conveniens as to Peter. Because
Holly was rightfully added as a defendant, the forum non con-
veniens ruling was premature. For a case to be dismissed for
forum non conveniens, the alternate forum must be available
as to all defendants. Alpine View Co. v. Atlas Copco AB, 205
F.3d 208, 221 (5th Cir. 2000). Here, where Holly had not
moved for forum non conveniens dismissal and no evidence
was proffered regarding the availability of the forum as to
Holly, dismissal for forum non conveniens was premature.5
We therefore express no opinion as to the substance of the
forum non conveniens issue, but do offer some guidance to
the district court upon remand.
We review the decision of the district court on forum non
conveniens for abuse of discretion, Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981) (citing Gulf Oil Corp. v. Gil-
bert, 330 U.S. 501, 511-12 (1947)), disturbing its decision
only when "it fail[ed] to consider a material factor or clearly
err[ed] in evaluating the factors before it, or [did] not hold the
defendants to their burden of persuasion on all elements of the
forum non conveniens analysis," El-Fadl v. Cent. Bank of Jor-
5
Both parties seem to agree that the question of Holly’s unavailability
in the courts of Iraq due to immunity is an open question. As a member
of the U.S. Government’s mission in Iraq, Holly is certainly immune from
process there under the plain language of Order 17 and the current Status
of Forces Agreement between the United States and Iraq. Yet, it is unclear
from the affidavits and complaint whether Holly is currently employed by
the U.S. military or whether he has retired. Yet, even if he has retired from
duty in Iraq, it is unknown whether he would continue to have immunity
for his past acts or whether he may now be subject to jurisdiction. These
unsettled questions merely serve to confirm that the dismissal of the suit
was premature.
10 GALUSTIAN v. PETER
dan, 75 F.3d 668, 677 (D.C. Cir. 1996) (internal citation and
quotation marks omitted) (citation omitted).
When moving to dismiss an action on forum non conve-
niens grounds, the defendant has the burden of proof to show
the existence of an alternate, adequate, and available forum.
Kontoulas v. A.H. Robins Co., Inc., 745 F.2d 312, 316 (4th
Cir. 1984). Thus, the defendant has the burden to "provide
enough information to the District Court" to demonstrate that
the alternative forum is both available and adequate. Piper
Aircraft, 454 U.S. at 258. "Ordinarily, [the availability]
requirement will be satisfied when the defendant is ‘amenable
to process’ in the [foreign] jurisdiction." Id. at 254 n.22 (quot-
ing Gilbert, 330 U.S. at 506-07). However, in certain cases
the alternate forum is unavailable "where the remedy offered
by the other forum is clearly unsatisfactory" or when the other
forum does not provide for a cause of action for the plaintiff’s
alleged injury. El-Fadl, 75 F.3d at 677 (citing Piper Aircraft,
454 U.S. at 254 n.22) (internal quotation marks omitted). As
to the second factor, a forum is considered adequate when
"(1) all parties can come within that forum’s jurisdiction, and
(2) the parties will not be deprived of all remedies or treated
unfairly, even though they may not enjoy all the same benefits
as they might receive in an American court." Fidelity Bank
PLC v. N. Fox Shipping N.V., 242 Fed. App’x 84, 90 (4th Cir.
2007) (citing Mercier v. Sheraton Int’l Inc., 935 F.2d 419,
424 (1st Cir. 1991)) (internal quotation marks omitted).6
To carry his burden to show that Iraq was an available
alternative forum, Peter introduced an affidavit from George
Hanna, an expert on the law of Iraq. While this Court does not
require an exhaustive comparative law analysis from the par-
ties or the court, Mr. Hanna’s affidavits fell short of showing
6
Citation to unpublished decisions is disfavored in our circuit. Loc. R.
32.1. However, much of our jurisprudence on the question of forum non
conveniens has been in unpublished opinions. Thus, we reference those
opinions as examples of the way we have approached the issue in the past.
GALUSTIAN v. PETER 11
the availability of a defamation remedy, especially in the case
where serious questions arise as to whether a British citizen
can bring suit in an Iraqi court. In this Court’s review of the
articles of the Iraqi Civil Code cited by Mr. Hanna, it does not
appear certain that defamation as such is contemplated by the
civil code as a cause of action. Rather, the sections cited by
Mr. Hanna appear to provide for damages for reputational
harms occurring as part of another injury. This Court does not
question Mr. Hanna’s credentials as an expert on the law of
Iraq, but the showing in his affidavit is not sufficiently clear
to carry the defendant’s burden to show that the alternative
forum offers a remedy for the plaintiff’s claim. It is certainly
possible, however, for Peter to submit a supplemented affida-
vit should the issue of forum non conveniens arise again.
Beyond the question of availability of the forum, the dis-
trict court’s consideration of the public and private factors
enumerated in Gilbert should have given closer scrutiny to the
location of the defendant’s residence.7 It is true that in cases
where the plaintiff has not chosen to bring the case in his
7
The private factors that a court must consider are the:
[R]elative ease of access to sources of proof; availability of com-
pulsory process . . . and the cost of obtaining attendance of will-
ing[ ] witnesses; possibility of view of premises . . . ; and all
other practical problems that make trial of a case easy, expedi-
tious and inexpensive.
Gilbert, 330 U.S. at 508. The public interests are the:
[A]dministrative difficulties [which] follow for courts when liti-
gation is piled up in congested centers instead of being handled
at its origin . . . [j]ury duty [that] is a burden that ought not be
imposed upon people of a community which has no relation to
the litigation . . . [the] local interest in having localized controver-
sies decided at home . . . [and the] appropriateness, too, in having
the trial of a diversity case in a forum that is at home with the
state law that must govern the case, rather than having a court in
some other forum untangle problems in conflict of law, and in
law foreign to itself.
Id. at 508-09.
12 GALUSTIAN v. PETER
home country, the court need give little deference to the plain-
tiff’s choice of forum. Piper Aircraft, 454 U.S. at 255-56.
This lack of deference is muted, however, when the defendant
is a resident and citizen of the forum he seeks to have
declared inconvenient for litigation, as Peter is here. While we
do not suggest that Peter’s place of residence is dispositive,
the district court should have examined this fact more closely
in its forum non conveniens analysis when "the central focus
of the forum non conveniens inquiry is convenience." Piper
Aircraft, 454 U.S. at 249.
III.
This Court therefore reverses in part and vacates the judg-
ment of the district court and remands the case for proceed-
ings consistent with this opinion.
REVERSED IN PART,
VACATED AND REMANDED