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 Traxler and Judge Davis joined.

COUNSEL

ARGUED: Frank Alwin Edgar, Jr., KAUFMAN &

CANOLES, PC, Newport News, Virginia, for Appellant.
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 district court found that Iraq was an available and adequate

forum for the suit and was overall more convenient. Additionally, the court denied Galustian’s motion to amend his complaint 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 incorporated 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 Baghdad, Iraq as the director of the Private Security Company

Association of Iraq ("PSCAI"), an industry association that

2 GALUSTIAN v. PETER
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 defamation 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 Virginia 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 Muhammad Uwaid Al-Thahab and listed Galustian’s personal data.

However, the space for indicating the type of crime and article of law for which the warrant was issued was left conspicuously 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 document 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 Engineers, 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 significantly affect their operations.

Galustian alleges in his complaint that the warrant was in

GALUSTIAN v. PETER 3
fact a forgery.1

 As background, Galustian states that he had

made an agreement in the past with a private security company 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 litigation 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 disregard of the fact that the warrant was a forgery when he published 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 business. 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 defamation 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

1Galustian alleges in his complaint that the British Foreign and Commonwealth Office in Iraq investigated the warrant and determined it was

fraudulent. 

2Because 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. 

4 GALUSTIAN v. PETER
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 multinational 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 dismiss; rather he filed a motion to amend his complaint. In his

proposed amended complaint, Galustian added Holly as a codefendant, 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 submitted 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 dismiss 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 provides a remedy for defamation and is available for litigation.

Id. Overall, the court found that all factors heavily favor holding the case in Iraq. Id. at 564-65. The district court denied

Galustian’s motion to amend, reasoning that because the case

GALUSTIAN v. PETER 5
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 Department responded on October 29, 2008, declining to prospectively waive Peter’s immunity but stating that, in its opinion,

a waiver would not be necessary because, based on the information 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. Galustian 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 district court erred in denying his motion to amend his complaint, and whether the district court erred in dismissing his

3The Department did reserve the right to reconsider its decision if it

became aware of any additional facts. 

6 GALUSTIAN v. PETER
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 conveniens 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 HealthSouth 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." Galustian, 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). Therefore, we hold the district court abused its discretion in denying 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.

4As 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. 

GALUSTIAN v. PETER 7
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. However, 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. Therefore, the district court abused its discretion in preventing

8 GALUSTIAN v. PETER
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 dismissing the case for forum non conveniens as to Peter. Because

Holly was rightfully added as a defendant, the forum non conveniens 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. Gilbert, 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 Jor5Both 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. 

GALUSTIAN v. PETER 9
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 conveniens 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 (quoting 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 parties or the court, Mr. Hanna’s affidavits fell short of showing

6Citation 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.

10 GALUSTIAN v. PETER
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 affidavit should the issue of forum non conveniens arise again.

Beyond the question of availability of the forum, the district 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

7The private factors that a court must consider are the: 

[R]elative ease of access to sources of proof; availability of compulsory process . . . and the cost of obtaining attendance of willing[ ] witnesses; possibility of view of premises . . . ; and all

other practical problems that make trial of a case easy, expeditious and inexpensive. 

Gilbert, 330 U.S. at 508. The public interests are the: 

[A]dministrative difficulties [which] follow for courts when litigation 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 controversies 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. 

GALUSTIAN v. PETER 11
home country, the court need give little deference to the plaintiff’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 judgment of the district court and remands the case for proceedings consistent with this opinion.

REVERSED IN PART, 

VACATED AND REMANDED

12 GALUSTIAN v. PETER