UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) AGROCOMPLECT, AD, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-165 (RBW) ) REPUBLIC OF IRAQ, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION Agrocomplect AD, the plaintiff in this civil suit, seeks $47,000,000 in compensatory damages from the Republic of Iraq for the allege d breach of a construction contract entered into by the plaintiff and the defendant in the early 1980s (the “Contract”). 1 First Amended Complaint (the “Am. Compl.”) at 11. On November 14, 2007, the Court issued a memorandum opinion resolving a motion to dismiss filed by the defe ndant in which the Court concluded that the defendant’s motion had to be granted and the pl aintiff’s amended complaint “dismissed in its entirety.” Agrocomplect, AD v. Republic of Iraq , 524 F. Supp. 2d 16, 35 (D.D.C. 2007) (Walton, J.) (“ Agrocomplect I ”). Thereafter, the plaintiff filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59 (e), which the Court denied in a memorandum opinion entered on January 25, 2008. Agrocomplect, AD v. Republic of Iraq , 247 F.R.D. 213, 218 (D.D.C. 2008) (Walton, J.). Currently before th e Court is the plainti ff’s separate motion to vacate the judgment against it and for leave to file a second amended complaint pursuant to Federal Rule of Civil Procedure 15(a). Plain tiff[’s] Motion to Vacate Judgment and to Amend

1 The Contract is attached as Exhib it A to the defendant’s motion to dismiss the plaintiff’s first amended complaint.First Amended Complaint[] or, in th e Alternative, for a Statement under Smith v. Pollin [, 194 F.2d 349 (D.C. Cir. 1952),] (the “Pl.’s Mot.”) at 1. 2 After carefully revi ewing the Court’s prior memorandum opinion, the plaintiff’s motion, and all memoranda and exhibits relevant to that motion, 3 the Court concludes for the reasons that fo llow that it must deny the plaintiff’s motion. As an initial matter, 4 the parties disagree over the a pplicable standard of review governing the disposition of the pl aintiff’s motion. The pl aintiff cites Rule 59( e) as the basis for the relief sought in its motion. See Pl.’s Mem. at 1–2 (“Following [the] grant of a motion to dismiss a complaint, a plaintiff may seek to am end its [c]omplaint by filing a Rule 59(e) motion to alter or amend a judgment[] combined with a Rule 15(a) motion reques ting leave of court to amend [its] complaint.”). The defendant argues that Federal Rule of Civil Procedure 60(b) applies rather than Rule 59(e) because the motion was filed more than ten days after the entry of the Court’s order accompanying its initial me morandum opinion and was filed nearly a month after the close of briefing on the plaintiff’s ini tial motion for reconsideration. Def.’s Opp’n at 2–

2 As the caption of the plaintiff’s moti on indicates, the plaintiff also requested that the Court notify the District of Columbia Circuit, where an appeal from this Court’s prior ruling in Agrocomplect I was still pending at the time of the motion’s filing, that this Court woul d vacate its judgment against the plain tiff if the case were remanded to this Court in accordance with the procedures set forth in Smith v. Pollin , 194 F.2d 349 (D.C. Cir. 1952), Pl.’s Mot. at 1. This request is moot in light of the circuit court’ s subsequent order affirming this Court’s judgment. Agrocomplect, AD v. Republic of Iraq , No. 07-7181, 2008 WL 5455695, at *1–2 (D.C. Cir. Nov. 14, 2008).

3 In addition to the Court’s prior memorandum opinions (and the underlying documents considered by the Court in rendering those opinions, see Agrocomplect I , 524 F. Supp. 2d at 17 n.2 (listing those documents considered with respect to the Court’s memorandum opinion regarding the defendant’s motion to dismiss); Agrocomplect II , 247 F.R.D. at 214 n.4 (listing those documents considered with respect to the Court’s memorandum opinion regarding the plaintiff’s initial motion for reconsideration), the Cour t considered the following documents in reaching its decision: (1) the Memorandum of Points and Authorities in Support of Plaintiff[’s] Motion to Amend First Amended Complaint (the “Pl.’s Mem.”), (2) the Memorandum of Poin ts and Authorities in Opposition to Plaintiff’s Motion to Vacate Judgment and to Amend First Amended Complaint[ ] or, in the Alternative, “For a Statement under Smith v. Pollin [, 194 F.2d 349 (D.C. Cir. 1952)]” (the “Def.’s Opp’n”), and (3) the Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s Motion to Vacate Judgment and to Amend First Amended Complaint[] or, in the Alternative, for a Statement under Smith v. Pollin [, 194 F.2d 349 (D.C. Cir. 1952)] (the “Pl.’s Reply”).

4 For purposes of brevity, the Court will refrain from recapitulating the factual and procedural background of this case. A full accounting of these details is set forth in Agrocomplect I

. See Agrocomplect I , 524 F. Supp. 2d 16, 17– 20 (setting forth the factual and procedural background of this case).

23; see also Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.” ); Fed. R. Civ. P. 54(a) (defining the term “judgment” to encompass “any order from which an appeal lies”). The plai ntiff counters that its

motion falls under the rubric of Rule 59(e) because its ini tial motion for reconsideration suspended the finality of the Court’s order di smissing the plaintiff’s complaint for lack of subject-matter jurisdiction. Pl.’s Reply at 5. The plaintiff appears to have the better of this argument. “[A] timely filed Rule 59(e) motion suspends the finality of a judgment not just at the appellate level, but at the district court

level as well.” Int’l Ctr. for Tech. Assessment v. Leavitt , 468 F. Supp. 2d 200, 206 (D.D.C. 2007). Thus, the plaintiff was always free to s eek relief under Rule 59(e) until ten days had elapsed following a ruling on the merits of its in itial motion for reconsideration. The Court did not issue such a ruling until January 25, 2008—the day after the plaintiff filed its second motion for reconsideration. The plaintiff’s request for relief under Rule 59( e) is therefore timely, and its

motion must be construed as a motion to alter or amend the Court’s judgment under that rule as a

consequence. In any event, reviewing the plaintiff’s mo tion under the standards appurtenant to a Rule 59(e) motion hardly constitutes an act of charity to wards the plaintiff. “As this Court has noted in the past, motions for reconsideration under Ru le 59(e) are disfavored and should be granted only under extraordinary circumstances.” N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border

Protection Bureau , 618 F. Supp. 2d 75, 76 (D.D.C. 2009) (Walt on, J.). Indeed, a motion of this sort “need not be granted unle ss the [Court] finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent

3manifest injustice.” Messina v. Krakower , 439 F.3d 755, 758 (D.C. Cir. 2006) (internal citation and quotation marks omitted). The plaintiff does not explicitly contend that th ere has been a “change of controlling law” since the Court denied its motion for attorney’s fees , that there is any “new evidence” that merits the Court’s attention, that the Court “clear[ly] err[ed ]” in granting the defendant’s motion to dismiss, or that some form of “manifest inju stice” will result from the Court’s order. Id . Instead, it argues that its request for leav e to file an amended complaint should be granted because its proposed second amended complaint is not futile , Pl.’s Mem. at 5–7; Pl.’s Reply at 10–13, and has been tendered in good faith and without und ue delay, Pl.’s Mem. at 7–11; Pl.’s Reply at 7– 10. But while “[Federal Rule of Civil Procedure] 15(a) provides that leave to amend ‘shall be freely given when justice so requires,’ . . . once a final judgment has been entered, a court cannot permit an amendment unless the plaintiff first satis fies Rule 59(e)’s more stringent standard for setting aside that judgment.” Ciralsky v. CIA , 355 F.3d 661, 673 (D.C. Cir. 2004) (further internal citation and quotation marks omitted). Wh ether the plaintiff satisfies the comparatively lenient requirements for filing an amended pleading under Rule 15(a) is therefore irrelevant to the threshold question of whether the motion for leave to file an ame nded pleading should be

considered in the first instance. The plaintiff’s submission is inadequate with respect to this threshold inquiry. While the plaintiff has submitted declarations from Blecho Belchev, “Finance Minister to [Bulgaria] from 1976–1990,” Pl.’s Mem., Ex. 2B (Declaration of Blecho Belchev, Jan. 21, 2008 (the “Belchev Decl.”)) ¶ 2, and Hristo Dimitrov Latchev, “t he Executive Director of Bulgartabac Holding, AD . . . since [December 22, 2005],” id. , Ex. 2C (Declaration of Hristo Dimitrov Latchev, undated (the “Hristo Latchev”)) ¶ 2, that ap parently post-date the Court’s decision in

4Agrocomplect I and its accompanying dismissal order, th e substance of these declarations are identical to the substance of a separate declaration submitted by Slav Stoychev Slavov, who “ha[s] worked for [the plaintiff] since 1980,” id. , Ex. 2A (Declaration of Slav Stoychev Slavov, Jan. 21, 2008 (the “Slavov Decl.”) ¶ 2; compare Belchev Decl. ¶¶ 3–9 (alle ging that because the Bulgarian Foreign Trade Bank was the only Bulg arian entity authorized to handle foreign currency transactions, it acted as a financial in termediary between all Bulgarian companies and the defendant without extinguishing those comp anies’ contractual ri ghts, and ceased making payments to those companies when the defe ndant failed to make payment into accounts established in New York City), and Latchev Decl. ¶¶ 4–7 (making these same allegations with respect to Bulgartabac Holding, AD), with Slavov Decl. ¶¶ 6–11 (maki ng these same allegations with respect to the plaintiff). Thus, to the extent the declarations prepared by Belchev and Latchev can be considered “new evidence,” they are immaterial because they merely corroborate Slavov’s statements, which were available to the plaintiff when it filed it s original and amended complaints, and the plaintiff’s amended complaint was dismissed for failure to allege facts establishing the Court’s subject-matter jurisdictio n, not for failure to demonstrate subject-matter jurisdiction by a prepondera nce of the evidence. See Agrocomplect I , 524 F. Supp. 2d at 23 (explaining that the Court would assess the merits of the defendant’s motion to dismiss “under the standards applicable to a ‘faci al’ challenge under Rule 12(b)(1)”), 5

5 Broadly speaking, there are two types of Rule 12(b)(1) mo tions. “A facial challenge attacks the factual allegations of the complaint that are contained on the face of the co mplaint, while a factual challenge is addressed to the underlying facts contained in the complaint.” Al-Owhali v. Ashcroft , 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal citation and quotation marks omitted). On the other hand, “[w]here a defendant makes a facial challenge, “the [C]ourt must accept as true the a llegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party,” Erby v. United States , 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (internal citation and quotation marks omitted), just as it would on a motion to dismiss under Rule 12(b)(6), see Price v. Socialist People’s Libyan Arab Jamahiriya , 294 F.3d 82, 93 (D.C. Cir. 2002) (noting that the standard for facial challenge to subject-matter jurisdiction “is similar to that of Rule 12(b)(6)”). On the other hand, where a factual challenge is made, the Court “may consider materials outside the pleadings” to determine whether it has (continued . . . )

5Given this lack of newly available eviden ce of material consequence, and given the absence of any challenge to the merits of the Court’s ruling in Agrocomplect I and the subsequent affirmation of that ruling by the District of Columb ia Circuit, the only remaining possible basis for relief for the plaintiff under Ru le 59(e) would be the “manifest injustice” prong of the standard governing such motions. Yet, as the circ uit court noted in Ciralsky , “manifest injustice does not exist where, as here, a pa rty could have easily avoided the outcome, but

instead elected not to act until after a final order had been entered.” Ciralsky , 355 F.3d at 673. The plaintiff contends that it delayed seeking leave to f ile a second amended complaint because it “sought corroboration of [its own] personnel’s version of events from a source . . . with unchallengeable personal knowledge[] and independe nce,” Pl.’s Reply at 8, and that, “[f]aced with a statute of limitations defense, [it] properly limited its allegations in earlier pleadings to the facts in wh ich it had a good faith belief,” id. at 9. But Federal Rule of Civil Procedure 11 does not require a plaintiff to allege facts about which the plaintiff has “unchallengeable personal knowledge” or that is “corrobo rat[ed]” by someone with “independence,” id. at 8—rather, it requires only that factual allegations “have evidentiary support or, if specifically so identified, will lik ely have evidentiary support after a reasonable opportunity for further investiga tion or discovery,” Fed. R. Civ. P. 11(b)(3). Therefore, the plaintiff could potentially have “avoided the out come” of the defendant’s motion to dismiss, Ciralsky , 355 F.3d at 673, by filing an amended compla int reflecting the substance of Slavov’s declaration without having procured corroborating evidence from Belchev and Latchev first.

subject-matter jurisdiction over the challenged case or claims, Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal citation and quotation marks omitted), and “the plaintiff bears the burden of establishing the factual predicates of juri sdiction by a preponderance of the evidence,” Erby , 424 F. Supp. 2d at 182 (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992)) (other internal citations and quotation marks omitted).

6Moreover, because the Court dismissed the pl aintiff’s amended complaint for lack of subject-matter jurisdiction based upon the face of the plaintiff’s complaint and the documents incorporated by reference therein, its dismissal was without prejudice to the filing of a new complaint in a new civil lawsuit assuming that the allegations in the second lawsuit are sufficiently different from the allegations in it s dismissed complaint to avoid falling within the ambit of the Court’s ruling in Agrocomplect I , see Kasap v. Folger Nolan Fleming & Douglas,

Inc. , 166 F.3d 1243, 1248 (D.C. Cir. 1999) (“[D]ismissals for lack of jurisdiction are not

decisions on the merits and therefore have no res judicata effect on subsequent attempts to bring suit in a court of comp etent jurisdiction.”); Hernandez v. Conriv Realty Assocs. , 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a cour t lacks subject[-]matter jurisd iction, it also lacks the power to dismiss with prejudice.”). A lternatively, if the plaintiff’s alle gations in its amended complaint in this case and any subsequently filed complaint are shown not to be materially different with respect to the issue of subject-matter juri sdiction, then the Court woul d be forced to deny the plaintiff’s request for leave to f ile a second amended complaint in th is case as futile under the socalled “mandate rule” in light of the District of Columbia Circ uit’s affirmance of the Court’s ruling in Agrocomplect I , see Indep. Petroleum Ass’n of Am. v. Babbitt , 235 F.3d 588, 597 (D.C. Cir. 2001) (“The mandate rule is a ‘more pow erful version’ of the law-if-the-case doctrine, which prevents courts from recons idering issues that have alr eady been decided in the same case.” (internal citation a nd quotation marks omitted)), 6 just as another court (or member of this Court) would have to dismiss the same complain t under the doctrine of issu e preclusion if it were

6 As the Supreme Court explained in Foman v. Davis , 371 U.S. 178 (1962), leave to amend a pleading should “be freely given” except “[i]n the absence of any apparent . . . reason,” such as “futility of [the] amendment,” id. at 182. Where the reason for denying leave to amend is futility, the district court must find that “the proposed pleading would not survive a motion to dismiss.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. , 366 F.3d 930, 945 (D.C. Cir. 2004).

7filed in a separate lawsuit, see Kasap , 166 F.3d at 1248 (explaining that while the doctrine of res judicata may not preclude the initiation of a separate lawsuit where a complaint is dismissed for lack of jurisdiction, “under principles of issue preclusion, even a case dismissed without prejudice has preclusive effect on the jurisdictiona l issue litigated” (emphasis in original)). Thus, the only real difference between permitting the plaintiff to file an amended complaint in this case and forcing it to initiate a separate lawsuit is that the period of time between the filing of its initial complaint and the initial complain t in a second lawsuit would not be tolled for statute of limitations purposes. See Ciralsky , 355 F.3d at 672 (“When a complaint is timely filed, the statute of limitations is tolle d, and subsequent amendments to the complaint are also regarded as timely.”). And to the ex tent the plaintiff lacked the basic “evidentiary support” necessary to file a meritorious complaint, Fed. R. Civ. P. 11(b)(3), and chose to file a defective complaint in compliance with Rule 11 a nyway just to avoid the reach of an otherwise applicable statute of limitations, it would, if anything, be manife stly unjust to the defendant to afford the plaintiff relief from the Court’s judgment now that it is finally prepared to fully pursue its claims in good faith. Under these circumstances, there is no manifest injustice in requiring the plaintiff to file a separate lawsuit subject to the same statute of limitations that it attempted to avoid by filing its “limited” complaint in January of 2007. Further, the plaintiff cannot satisfy any of the other conditions for reconsideration under Rule 59(e). The Court will therefor e deny the plaintiff’s

motion for reconsideration and w ill deny its related request for l eave to file a second amended complaint as moot as a consequence.

8SO ORDERED this 18th day of September, 2009. 7

REGGIE B. WALTON United States District Judge

7 An order will be entered contemporaneously with this memorandum opinion (1) denying the plaintiff’s motion for reconsideration and (2) denying as moot the plaintiff’s re quest for leave to file an amended complaint and request for the issuance of a notice to the District of Columbia Circuit that this Court would vacate its judgment against the plaintiff if the case were remanded to this Court.

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