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Embassy of Federal Republic of Nigeria v. Ugwuonye

United States District Court, District of Columbia

November 2, 2012

EMBASSY OF the FEDERAL REPUBLIC OF NIGERIA, Plaintiff,
v.
Ephraim Emeka UGWUONYE, et al., Defendants.

Page 93

Thomas Michael Guiffre, Patton Boggs LLP, Washington, DC, for Plaintiff.

Ephraim Chukwuemeka Ugwuonye, ECU Associates, P.C., Silver Spring, MD, Harvey B. Cohen, John E. Prominski, Jr., Miles & Stockbridge, PC, McLean, VA, for Defendants.

MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT, MOTION FOR LEAVE TO FILE, MOTION TO STRIKE, AND MOTION FOR DEFAULT JUDGMENT

BARBARA J. ROTHSTEIN, District Judge.

This matter is before the Court on a motion for summary judgment [1] by Defendant Ephraim Emeka Ugwuonye. See Dkt. # 76 (hereinafter " Def.'s Mot." ). Defendant Ugwuonye moves the Court to hold that two other Defendants in this action, ECU Associates, P.C.[2] and ECU Law Group, [3] lack the capacity to be sued pursuant to Federal Rule of Civil Procedure 17(b). Plaintiff, the Embassy of the Federal Republic of Nigeria (" the Embassy" ), cross-moves for a default judgment against the same two Defendants, alleging

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that they are capable of being sued and have failed to defend in this action. See Dkt. # 77 (hereinafter " Pltf.'s Mot." ). [4] Ugwuonye's motion for summary judgment is denied, while the Court will deny in part and defer ruling in part on the Embassy's motion for default judgment.

I. BACKGROUND

This is a lawsuit concerning money allegedly owed to the Embassy by Defendant Ugwuonye. Ugwuonye acted as legal counsel for the Embassy in several real estate transactions and, in November 2007, obtained a property tax refund from the Internal Revenue Service (" IRS" ) for the Embassy in the amount of $1.55 million. The Embassy alleges that Ugwuonye never delivered the funds. Am. Compl. (Dkt. # 33) ¶ 1. In addition to Defendant Ugwuonye, the Embassy names as Defendants Bruce Fein, ECU Law Group, and ECU Associates, P.C. Id. ¶¶ 4-6. The Embassy alleges that Defendants Ugwuonye and Fein were partners in ECU Law Group, an alleged law partnership, and ECU Associates, P.C., a Maryland professional corporation. Id. ¶¶ 5-7.

On November 9, 2010, the Embassy filed its first Complaint in this action. See Dkt. # 1. The Complaint was served upon Defendant Ugwuonye in his personal capacity (Dkt. # 2), as a partner in ECU Law Group (Dkt. # 4), and as a " partner" [ sic ] in ECU Associates, P.C. (Dkt. # 5). On January 6, 2011, Donald M. Temple filed a Notice of Appearance (Dkt. # 12) on behalf of " Emeka Ephraim Ugwuonye, et al. " The following day, Attorney Temple filed an Errata (Dkt. # 14) clarifying that he was representing Ugwuonye, " ECU Law Group, and ECU Associates, P.C." On January 31, 2011, Defendants Ugwuonye, ECU Associates, and ECU Law Group filed a motion to dismiss (Dkt. # 18). Judge Kennedy denied that motion as moot on July 15, 2011, in light of the Amended Complaint filed by the Embassy. Minute Order of July 15, 2011. On August 29, 2011, Defendants filed a motion for leave to file an Answer and Counterclaim out of time (Dkt. # 40) in response to the Embassy's Amended Complaint; that motion was granted on October 6, 2011. Minute Order of Oct. 6, 2011. The Answer and Counterclaim were designated as being " By Defendants Ephraim Emeka Ugwuonye and ECU Associates, P.C." Answer (Dkt. # 44) at 1. ECU Law Group was not listed as a Defendant or Counter-Plaintiff on the Answer and Counterclaim.

On October 8, 2011, Donald M. Temple filed a consent motion to withdraw as attorney. See Dkt. # 45.[5] Since that time, Defendant Ugwuonye has appeared pro se. ECU Law Group has not filed any documents in this case since the January 31, 2011 motion to dismiss; ECU Associates, P.C. has not filed any documents since the Answer and Counterclaim filed on October 6, 2011. This case was reassigned to the undersigned judge on April 3, 2012.

On June 25, 2012, counsel for the Plaintiff, counsel for Defendant Bruce Fein, and Defendant Ugwuonye ( pro se ) appeared before this Court for a Status Hearing. See Tr. 2:7-12 (Dkt. # 94). Defendant Ugwuonye stated that he was appearing " for the ECU entities as well," but indicated that his law firm, ECU Associates, had

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closed, and that ECU Law Group was " not really an entity at all." Tr. 2:12-24. Both Defendant Ugwuonye and counsel for Defendant Fein denied that Ugwuonye and Fein were ever in any kind of partnership with one another. Tr. 8:17-9:6. The Court granted Defendant Ugwuonye leave to file a motion to dismiss ECU Associates and ECU Law Group, and indicated that the Embassy could file a cross-motion for default judgment in response. See Order of June 26, 2012 (Dkt. # 70). Those motions are the subject of this Memorandum Opinion.

II. LEGAL STANDARD

A. Motion for Summary Judgment under Rule 56

Under Rule 56, summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The mere existence of a factual dispute will not preclude summary judgment. Only factual disputes that may determine the outcome of a suit may effectively preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be a genuine fact, the assertion must be supported by sufficiently admissible evidence and cannot be based on conclusory allegations, denials or opinions. Crenshaw v. Georgetown University, 23 F.Supp.2d 11 (D.D.C.1998).

B. Motion for Default Judgment under Rule 55

Obtaining a default judgment under Federal Rule of Civil Procedure 55 is a two-step process. First, a plaintiff should request that the Clerk of the Court enter a default against the party who has " failed to plead or otherwise defend" against an action. Fed.R.Civ.P. 55(a).[6] Once default has been entered, the plaintiff may move for default judgment. Fed.R.Civ.P. 55(b).[7]

While default establishes the defaulting party's liability for the well-pleaded allegations of the complaint, it does not establish liability for the amount of damage claimed by the plaintiff. Flynn v. Old World Plaster, LLC, 741 F.Supp.2d 268, 269-70 (D.D.C.2010). The court will make an independent determination of the sum to be awarded. Id.

" Because courts strongly favor resolution of disputes on their merits ... modern courts do not favor default judgments." Id. (internal citations omitted). However, when a party is essentially unresponsive and brings the adversary process to a halt, " the diligent party must be protected lest he be ...


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