The opinion of the court was delivered by: Urbina, District Judge.
DENYING DEFENDANT JOHNSON'S MOTION TO DISMISS; DENYING THE
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter comes before the court on defendant Robert W.
Johnson II's motion to dismiss for lack of subject-matter
jurisdiction under Federal Rules of Civil Procedure 12(b)(1) and
12(h), and the plaintiff's motion for partial summary judgment.
The current Government of Rwanda ("the plaintiff") brings this
action against the Rwanda Working Group ("RWG"), an association
allegedly hired to perform lobbying services by the government
that ruled Rwanda from April to July 1994 ("the predecessor
government"), Robert W. Johnson II ("defendant Johnson" or "Mr.
Johnson"), an attorney for the predecessor government and an
alleged member of the RWG, and Aloys Uwimana ("defendant Uwimana"
or "Ambassador Uwimana"), the predecessor government's ambassador
to the United States (collectively, "the defendants").
The plaintiff asserts two claims against defendant Johnson and
the RWG, one for "conversion, accounting and constructive trust,"
and the other for breach of fiduciary duty and constructive
trust. See Compl. ¶¶ 56-65. Both claims seek the return of
$83,000 (the sum of $28,000 paid by the predecessor government to
Johnson and/or the RWG under one contract and $55,000 paid to
Johnson and/or the RWG under a second contract) plus punitive
damages.*fn1 The plaintiff maintains that this court has
diversity jurisdiction because the plaintiff is a foreign state,
the defendants are citizens of different states, and the amount
in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(4).
In 1994, massive upheaval engulfed the country of Rwanda. On
April 6, 1994, when Rwandan president Juvenal Habyarimana died in
a plane crash after 21 years in power, simmering political unrest
erupted into civil war. See Def.'s Opp'n to Pl.'s Mot. for
Partial Summ.J., Ex. 6 (citing 1995 DEP'T ST. COUNTRY REPORTS ON
HUMAN RIGHTS PRACTICES FOR 1994, Rwanda Section). Ethnic tension
between the Hutu (85 percent of the population) and the Tutsi (14
percent of the population) escalated when Hutu extremists
massacred hundreds of thousands of people, most of whom were
Tutsi. See id. The Rwandan Patriotic Front, the current
government, which is comprised largely of Tutsi's, halted the
killings with a military offensive that overtook the
self-proclaimed Hutu leadership in July 1994. See id. The
ascension of the Rwandan Patriotic Front led to a massive flight
of Hutu civilians out of Rwanda for fear of Tutsi reprisal. See
In early to mid-1994, Defendant Aloys Uwimana was the Rwandan
ambassador to the United States for the predecessor government of
Rwanda. See Compl. ¶ 7. The predecessor government ruled Rwanda
from April 8, 1994 until July 4, 1994. See Pl.'s Mot. for
Partial Summ.J. at 2.; Compl. ¶ 8. On July 4, 1994, the plaintiff
— the current Government of Rwanda — replaced the predecessor
government. See Compl. ¶ 8. The plaintiff was officially sworn
in on July 19, 1994. See id.
Ambassador Uwimana retained defendants Robert W. Johnson II and
the RWG to perform lobbying services for the predecessor
government to improve the Rwandan government's image in the
United States. See Compl. ¶ 17. A Memorandum of Understanding
executed on July 8, 1994 ("July 8th Memorandum") between the RWG
and Ambassador Uwimana on behalf of the predecessor government
provided the details of the lobbying agreement. See id.
Ambassador Uwimana paid defendants Johnson and/or RWG an initial
payment of $28,000 for the lobbying services on July 13, 1994.
See Compl. ¶¶ 18, 20.
After the current government of Rwanda replaced the predecessor
government on July 4, 1994, the U.S. Department of State ordered
the Rwandan Embassy closed on July 15, 1994. See Compl. ¶ 21.
The Department of State also ordered Ambassador Uwimana to
relinquish his credentials no later than July 22, 1994 and to
leave the United States. See id.
On July 21, 1994, Mr. Johnson wrote a progress letter to
Ambassador Uwimana regarding the contracted lobbying activities.
See Compl. ¶ 22. Mr. Johnson also detailed "On-going/New
Projects." See Compl.Ex. H at 2. The projects discussed
included work being done to help the Ambassador and other embassy
officials with asylum requests to remain in the United States
since "the conditions in Rwanda are potentially
life-threatening." See id. In the July 21st letter, Mr. Johnson
referred to "the transition" of the Rwandan government and stated
that "the Embassy needs to provide a check payable to my trust
account in the amount of $55,000 tomorrow"
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. ¶ ...