United States District Court, D. Massachusetts
CERNER MIDDLE EAST LIMITED, a Cayman Islands Exempted Company, Plaintiff,
AHMED SAEED MAHMOUD AL-BADIE AL-DHAHERI, Defendant, and ABDULLA AHMED AL-BADIE AL-DHAHERI, Defendant/Reach and Apply Defendant.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor IV, United States District Judge
an action for recognition and enforcement of a foreign
arbitral award. Plaintiff Cerner Middle East Limited has
brought suit against two individuals, Ahmed Saeed Mahmoud
Al-Badie Al-Dhaheri (“Ahmed Dhaheri”) and his
son, Abdulla Ahmed Al-Badie Al-Dhaheri (“Abdulla
Dhaheri”). The complaint alleges that Ahmed Dhaheri
owes Cerner more than $62 million pursuant to an arbitral
award issued by the International Court of Arbitration of the
International Chamber of Commerce (“ICC”). The
complaint further alleges that Ahmed Dhaheri fraudulently
transferred a joint interest in a condominium located at 29
Otis Street in Cambridge, Massachusetts, to his son six
months after the issuance of the award, and that the pair
later transferred the property to a third party for $990,
000. Cerner seeks damages from Ahmed Dhaheri and to reach and
apply the proceeds from the sale of the 29 Otis Street
have moved to dismiss the complaint for lack of personal
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). For the following
reasons, the motion will be denied.
Cerner Middle East Limited is a foreign company organized
under the laws of the Cayman Islands, with a principal place
of business in Kansas City, Missouri. (Compl. ¶ 2).
Defendants Ahmed Dhaheri and his son, Abdulla Dhaheri, are
both residents of Abu Dhabi, United Arab Emirates, and are
U.A.E. citizens. (Id. ¶¶ 3-4; Ahmed
Dhaheri Decl.). Ahmed Dhaheri is one of two members of
iCapital, LLC, which is a U.A.E. limited liability company.
(Ahmed Dhaheri Decl.)
2008, iCapital and Cerner entered into a $94 million contract
concerning the development of a medical information
technology platform in the U.A.E. (Compl. ¶ 5).
According to the complaint, iCapital promptly defaulted on
its payment obligations under that contract. (Id.
December 29, 2012, after a series of amendments to the
contract, iCapital and Cerner entered into a Settlement and
Payment Agreement (“SPA”) and a Fifth Amendment
to the contract. (Id. ¶¶ 19-22; Hadas
Decl., Ex 3; Hadas Decl., Ex. 4). The Fifth Amendment
provided that “in the event of a dispute” the
parties to the contract would submit to a “binding
arbitration under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce.” (Hadas
Decl., Ex. 4 § 9.3). The SPA is governed by Missouri
law, as is the underlying contract. (Id. § 14;
Id., Ex. 2 § 9.14). Cerner and iCapital, but
not Ahmed Dhaheri, are signatories to the SPA and Fifth
Amendment. (Id., Ex. 3-4).
again failed to make payments in accordance with the SPA and
Fifth Amendment. (Compl. ¶¶ 23-24). On August 23,
2013, Cerner filed a request for arbitration with the ICC
against both iCapital and Ahmed Dhaheri. (Id. ¶
30). In November 2014, an arbitration hearing was held in
Paris, France. (Id. ¶¶ 34-35). Neither
iCapital nor Ahmed Dhaheri appeared in that proceeding to
contest Cerner's claims. (Hadas Decl., Ex. 5 ch. 1.2.4).
On July 16, 2015, the arbitral tribunal issued a final award
of more than $62 million in favor of Cerner against iCapital
and Dhaheri, jointly and severally. (Id. ch. 12).
The arbitral tribunal found that a valid arbitration
agreement existed between Cerner and iCapital arising from
both the SPA and the Fifth Amendment, and that it had
jurisdiction over Ahmed Dhaheri on the basis that he was
acting as the alter ego of iCapital with respect to the
relevant transactions. (Id. ch. 12.1, 10.2.54).
Massachusetts Real Property
2007, Ahmed Dhaheri purchased a condominium located at 29
Otis Street, Unit 601, in Cambridge, Massachusetts, for $799,
000. (McGovern Decl., Ex. A). On January 3, 2016, about six
months after the final arbitral award was issued, Ahmed
Dhaheri transferred the property to himself and Abdulla
Dhaheri as joint tenants with a right of survivorship for
nominal consideration. (Id., Ex. B). On July 15,
2016, defendants sold the property to a third party for $990,
000. (Id., Ex. C).
brought this action in Middlesex Superior Court on August 1,
2016. The complaint alleges three claims arising under both
federal and state law. Defendants removed this action
pursuant to 9 U.S.C. § 205, asserting jurisdiction under
9 U.S.C. § 203. Defendants have moved to dismiss the
complaint on the basis of lack of personal jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(2).
defendants have moved to dismiss, they have not yet been
properly served with the complaint in this action.
Defendants, as U.A.E. citizens, must be served in accordance
with U.A.E. civil procedure, which presents multiple
“procedural hurdles.” See Orsi v. Falah,
2012 WL 4469120, at *4 (D. Mass. Sept. 25, 2012), (describing
U.A.E. procedures for effecting service of
process). Plaintiff expects that service of process
may take up to eighteen months to complete. (Pl. Opp. 17).
Standard of Review
bears the burden of establishing that the court has personal
jurisdiction over the defendants. Daynard v. Ness,
Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d
42, 50 (1st Cir. 2002). In considering a motion to dismiss
under Rule 12(b)(2), the court may employ several standards
to assess whether plaintiff has carried that burden: the
“prima facie” standard; the
“preponderance-of-the-evidence” standard; or the
“likelihood” standard. See Id. at 50
n.5; Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 145-46 (1st Cir. 1995). Where, as
here, the court is called to make that assessment without
first holding an evidentiary hearing, the prima
facie standard is applied. See United States v.
Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Under that standard, the court takes plaintiff's
“properly documented evidentiary proffers as true and
construe[s] them in the light most favorable to
[plaintiff's] jurisdictional claim.” A Corp. v.
All American Plumbing, Inc., 812 F.3d 54, 58 (1st Cir.
2016) (citing Phillips v. Prairie Eye Ctr.,
530 F.3d 22, 26 (1st Cir. 2008)). A plaintiff may not
“rely on unsupported allegations in [its]
pleadings.” A Corp., 812 F.3d at 54 (quoting
Platten v. HG Bermuda Exempted Ltd., 437
F.3d 118, 134 (1st Cir.2006) (alteration in original)).
“Rather, [the plaintiff] must put forward
‘evidence of specific facts' to demonstrate that
jurisdiction exists.” Id. (quoting
Foster-Miller, 46 F.3d at 145). Facts offered by the
defendant “become part of the mix only to the extent
that they are uncontradicted.” Astro-Med, Inc. v.
Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009)
(quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st
establish personal jurisdiction, plaintiff must show that the
requirements of the Massachusetts long-arm statute, Mass.
Gen. Laws ch. 223A, § 3, are satisfied, and that the
exercise of jurisdiction is consistent with constitutional
due process. Daynard, 290 F.3d at 52; Intech,
Inc. v. Triple “C” Marine Salvage, Inc., 444
Mass. 122, 125 (2005). Due process requires that a plaintiff
alleging specific personal jurisdiction establish the
existence of three conditions:
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant's forum-state
activities. Second, the defendant's in-state contacts
must represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby invoking
the benefits and protections of that state's laws and
making the defendant's involuntary presence ...