UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ASHRAF M. MASOUD, 

 

Plaintiff, 

v. 

MOHAMMAD SULIMAN, et al., 

 

 Defendants. 

 

 

Civil Action No. 10-0994 (BAH) 

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.