to continue work on "these projects." See id.; Compl. ¶ 23.
On July 22, 1994, Ambassador Uwimana wrote a second check for
$55,000 from the Rwandan Government to Mr. Johnson and/or RWG.
See Compl. ¶ 25. The plaintiff claims that Ambassador Uwimana
wrote the check after his diplomatic mission expired, and thus,
that he had no authority to spend Rwanda's funds. See id.
According to the plaintiff, it asked defendants Johnson and
Uwimana several times to return the money. See Compl. ¶ 29. The
defendants refused. See id. The plaintiff wrote a final letter
to the defendants on November 16, 1994, again requesting the
return of the $55,000 check. See Compl. ¶ 33. Again, the
defendants refused to return the money. See Compl. ¶ 34.
Defendant Johnson states that he was never a member of the
Rwanda Working Group. See Def. Johnson's Concise Statement of
Issues ¶ 1. He explains that while he handled the initial payment
of $28,000 by the predecessor government, he did so only "in his
official capacity as attorney [for RWG]." See id. Ex. 7, ¶ 17.
Defendant Johnson maintains that because he was counsel to the
RWG, he cannot be liable for the $28,000. See Def.'s Mot. to
Dismiss ¶ 18.
Defendant Johnson also contends that the memorandum released by
the United States government announcing the official closing of
the Rwandan Embassy did not specifically strip Ambassador Uwimana
of his official authority before July 22, 1994. See Def.'s
Opp'n to Pl.'s Mot. for Partial Summ.J. at 15. The memorandum
reads, in pertinent part, "[a]ll remaining members of the mission
and their family members , . . . including Mrs. Uwimana and
children, must depart the United States no later than August 14,
1994. Thereafter, the United States no longer will regard such
persons as being entitled to the privileges, immunities, and
protections which they now enjoy by virtue of their official
status." See id. at 15. Defendant Johnson states that since the
Ambassador remained an official on July 22, 1994, the $55,000
payment for legal services provided to embassy officials,
including defendant Uwimana, was appropriate. See id. ¶ 37.
Defendant Johnson also notes that even if the plaintiff questions
the $55,000, the claim does not satisfy the $75,000 diversity
jurisdictional requirement of Title 28 U.S.C. § 1332(a). See
Def.'s Mot. to Dismiss ¶ 18.
The plaintiff filed suit in this court on July 7, 1997. As
noted above, only defendant Johnson has filed a motion to
A. Legal Standard
1. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Before a court may decide the merits of a case, the court must
have jurisdiction to hear it. See Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (citing Bell
v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
The standard of review for a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction depends on the purpose of the motion.
See Freiburger v. Emery Air Charter, Inc., 795 F. Supp. 253, 256
(N.D.Ill. 1992). If the motion challenges the sufficiency of the
allegations of subject-matter jurisdiction, as is the case here,
the district court must accept all the complaint's well-pleaded
factual allegations as true and draw all reasonable inferences
from those allegations in the plaintiff's favor. See United
Trans. Union v. Gateway
Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996) (citing
Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993)). The plaintiff
bears the burden of persuasion to establish subject-matter
jurisdiction by a preponderance of the evidence. See Darden v.
United States, 18 Cl.Ct. 855, 859 (Cl.Ct. 1989); Kehr, 926
F.2d at 1409; Boudreau v. United States, 53 F.3d 81, 82 (5th
In testing whether a claim satisfies the minimum dollar amount
for diversity jurisdiction, the sum claimed by the plaintiff
controls if the claim is apparently made in good faith. See St.
Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89,
58 S.Ct. 586, 82 L.Ed. 845 (1938). That is, "[i]t must appear to
a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal." Id.; see also Allen
v. Rehman, 2000 WL 33201275, *1 (D.D.C. 2000) (Urbina, J.).
The amount in controversy includes both actual and punitive
damages. See Kahal v. J.W. Wilson & Assocs., Inc.,
673 F.2d 547, 548 (D.C.Cir. 1982). The district court must scrutinize the
punitive damages claim, however, to ensure that it has at least a
"colorable basis in law and fact." See Kahal, 673 F.2d at 549.
2. Summary Judgment
Summary judgment is appropriate if the court finds that "there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." FED.
R.CIV.P. 56(c). The substantive law on which a claim rests
determines which facts are "material." See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). If a fact bears on an essential element of the legal
claim, then it is material; otherwise, it is not. See id.;
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Only disputes over facts that can establish
an element of the claim, and thus those that might affect its
ultimate resolution, can create a "genuine issue" sufficient to
preclude summary judgment. See Anderson, 477 U.S. at 248, 106
S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
To prevail on a motion for summary judgment, the moving party
must establish that there are no genuine issues of material fact
and that the non-moving party has failed to offer sufficient
evidence to support a valid legal claim. See Anderson, 477 U.S.
at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct.
2548. In ruling on the motion, the court must accept the evidence
of the non-moving party as true and must draw all justifiable
inferences in favor of the non-moving party. See Anderson, 477
U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for
the non-moving party to establish "the mere existence of a
scintilla of evidence in support of the [non-moving party's]
position . . .; there must be evidence on which the jury could
reasonably find for the [non-moving party]." Id. at 252, 106
B. Defendant Johnson's Motion to Dismiss
Defendant Johnson moves to dismiss on the ground that the
plaintiff's claims for the return of $83,000 — the sum of $28,000
paid under one contract and $55,000 paid under a second contract
— plus additional punitive damages fail to satisfy the $75,000
jurisdictional requirement of Title 28 U.S.C. § 1332(a). The
plaintiff counters that this court has diversity jurisdiction
under 28 U.S.C. § 1332(a)(4) because the amount in controversy
exceeds $75,000 and the dispute is between a foreign state and
citizens of different states. Title 28 U.S.C. § 1332(a)(4)
states, in relevant part, "the district courts shall have
of all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is
between . . . a foreign state as plaintiff and citizens of a
State or of different States." 28 U.S.C. § 1332(a)(4).
Defendant Johnson argues that because he was counsel for the
RWG and not a RWG member, he cannot be held liable for the
$28,000. Because defendant Johnson states that on July 21, 1994,
he received a $55,000 payment from defendant Uwimana to provide
legal services independent of the RWG, he contends that the
amount in controversy is only $55,000. Thus, he argues that the
plaintiff has failed to satisfy the jurisdictional requirement of
28 U.S.C. § 1332(a).
In light of the factual discrepancies in the record, the court
disagrees. The record shows that the plaintiff could reasonably
believe that defendant Johnson acted not as counsel to the RWG,
but as a member. Defendant Johnson handled both contracts central
to the present issue. See Compl. ¶¶ 17, 22. The first contract,
dated July 8, 1994, detailed the lobbying agreement between the
RWG and the predecessor government. See Compl. ¶ 17, Ex. G. The
second contract, dated July 21, 1994, discussed the efforts
already made by the RWG on behalf of the predecessor government.
See Compl. ¶ 22. The July 21st letter also discussed asylum
plans for the Ambassador and two other embassy officials and
their families in light of "potentially life-threatening"
conditions in Rwanda. See Compl. ¶ 24, Ex. H at 2. The record
shows that defendant Johnson managed both communications and
accepted payments for both contracts. See Compl. ¶¶ 20, 25.
Additionally, both checks were made out to "The Robert W. Johnson
II Trust Fund." See id. Accordingly, a key question remains,
namely, whether defendant Johnson was acting as a member of the
RWG or as counsel to the RWG during the making of the contracts.
At this point, the court cannot determine precisely what role
defendant Johnson played during either contract. Thus, taking the
plaintiff's well-pleaded allegations as true for the purposes of
this motion, the court concludes that the plaintiff has properly
alleged that it could recover the $83,000 from defendant Johnson.
Accordingly, the court denies defendant Johnson's motion to
C. The Plaintiff's Motion for Summary Judgment
For its part, the plaintiff moves for summary judgment on the
ground that no genuine issue of material fact exists regarding
defendant Johnson's activities in accepting $83,000 from the
predecessor government. The plaintiff states that when
considering evidence in the record, no disputed facts exist
regarding defendant Johnson's actions with respect to the two
contracts. See Pl.'s Mot. for Partial Summ.J. at 25. Summary
judgment, however, is appropriate only when no genuine issue of
material fact remains. See FED. R.Civ.P. 56(c). Because facts
that "bear on an essential element of the legal claim" are
material, and disputes over these facts might affect the case's
ultimate resolution, those "`genuine issues' sufficient[ly]
preclude summary judgment." See Anderson, 477 U.S. at 248, 106
S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In this
case, the court holds that genuine issues of material fact remain
so as to preclude granting summary judgment.
The plaintiff argues that defendant Johnson's activities
surrounding the two separate contracts establish his connection
and liability for the $83,000. See Pl.'s Mot. for Partial
Summ.J. at 2. The plaintiff further asserts that no genuine
issues of fact exist because both contracts clearly
detail services that were never performed, and defendant Johnson
accepted and endorsed both payments by the predecessor
government. See id. at 5, 10. Moreover, the plaintiff contends
that defendant Johnson did not provide any of the services agreed
to in the July 8th Memorandum, and accepted funds from Ambassador
Uwimana (on behalf of the predecessor government) even though
defendant Johnson knew that the predecessor government had
fallen. See id. The plaintiff also proffers depositions of the
other RWG members and defendant Uwimana to support its motion.
See Compl., Ex. 1 at 4-5.
The court concludes that summary judgment is not appropriate in
this case because material factual discrepancies exist. See
Def. Johnson's Opp'n to Pl.'s Mot. for Summ.J., Exs. 1, 2, 3, 4;
Pl.'s Mot. for Summ.J., Exs. 1, 4, 5, 7. The defendants'
depositions paint different pictures of the creation role, and
management of the RWG. See Def. Johnson's Opp'n to Pl.'s Mot.
for Partial Summ.J., Exs. 1, 2, 3, 4; Pl.'s Mot. for Partial
Summ.J., Exs. 1, 4, 5, 7. The facts in dispute — particularly the
nature of the arrangement between defendant Uwimana, defendant
Johnson, and the RWG — will affect an element of the claim that
will help determine the ultimate resolution of this matter. See
Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S.
at 322, 106 S.Ct. 2548. Accordingly, the court will deny the
plaintiff's motion for partial summary judgment.
For all these reasons, the court denies defendant Johnson's
motion to dismiss and denies the plaintiff's motion for summary
judgment. An Order directing the parties in a fashion consistent
with this Memorandum Opinion is separately and contemporaneously
issued this 19 day of March, 2001.
DENYING DEFENDANT JOHNSON'S MOTION TO DISMISS; DENYING THE
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
For the reasons stated in this court's Memorandum Opinion
separately and contemporaneously executed and issued this 19th
day of March, 2001, it is hereby
ORDERED that defendant Johnson's motion to dismiss is
DENIED; and it is
FURTHER ORDERED that the plaintiff's motion for partial
summary judgment is DENIED; and it is
ORDERED that a status hearing is hereby set for May 9, 2001
at 9:30 a.m.