The opinion of the court was delivered by: Hon. William J. Martini
Rabbi Shmuley Boteach and Deborah Boteach's (Plaintiffs') New Jersey home abuts against the New Jersey residence of the Libyan ambassador to the United Nations ("Libyan Property"). In the course of renovating the residence, the Defendants (including Socialist People's Libyan Arab Jamahiriya (that is, Libya), Ibrahim Dabbashi (the former ambassador from Libya to the United Nations), and Muammar Abu Minyar Al-Qaddafi ("Colonel Qaddafi," Libya's head of state)) removed trees and a fence lying near the property line between the two properties. Each party asserts ownership to the trees and fence. Plaintiffs brought an eight-count complaint, essentially alleging trespass, against the Defendants. Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), lack of jurisdiction; Rule 12(b)(2), lack of personal jurisdiction; Rule 12(b)(4), insufficient process; and Rule 12(b)(6), failure to state a claim.
For the reasons elaborated below, the Court will GRANT Defendants' Motion to Dismiss.
Plaintiffs alleged that for the prior ten years the Libyan property has been uninhabited and in disrepair. "[T]he Libyan Property was so overgrown with shrubbery that the sidewalk abutting the Libyan Property was unusable by Plaintiffs and other members of the Englewood community." Compl. ¶ 9.
Plaintiffs allege that in removing the trees and fence lying near the property line between the two parties, Defendants trespassed on Plaintiffs' property and caused Plaintiffs injury by destroying what they allege to be their fence and their trees. Plaintiffs brought an eight-count state-court complaint asserting: (1) trespass; (2) public nuisance; (3) intentional invasion and private nuisance; (4) intrusion upon seclusion; (5) negligence; (6) intentional infliction of emotional distress; (7) conversion; and (8) permanent injunction. Defendants removed this action to federal court, filed a motion to dismiss, and asserted a variety of defenses, including lack of process and sovereign immunity.
Federal Rule of Civil Procedure 12(b)(1). "When subject matter jurisdiction is challenged [in a factual attack] under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). Furthermore, the district court may not presume the truthfulness of plaintiff's allegations, but rather must "evaluat[e] for itself the merits of [the] jurisdictional claims." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Finally, a "District Court lacks subject matter jurisdiction when the controversy has become moot." Goodmann v. People's Bank, 209 Fed. Appx. 111, at *1 (3d Cir. Dec. 21, 2006) (TABLE).
Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). "Under these rules [12(b)(4) and 12(b)(5)], the plaintiff bears the burden of establishing that the service of process has been performed in accordance with the requirements of Federal Rule of Civil Procedure 4." McDaniel v. Greyhound Lines, Inc., 2008 WL 2704774, at *4 (W.D.N.C. July 7, 2008); see also Carpenter v. Young, 2004 WL 1858353, at *2 (E.D. Pa. Aug. 3, 2004) (same).
Federal Rule of Civil Procedure 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. at 555).
It is not disputed that Plaintiffs have not effected personal service on Ambassador Dabbashi, nor on Colonel Qaddafi. Moreover, Plaintiffs have made no proffer when they might attempt to effect service of process. In these circumstances, the claims against the two individual defendants must be dismissed. See Fed. R. Civ. P. 12(b)(4-5).
Arguing sovereign immunity, Libya asserts that this Court lacks subject matter jurisdiction and so cannot proceed with this action. Presumptively Libya is immune from suit. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). However, the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq., lists several exceptions to immunity. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494 n.20 (1983) ("Under the ...