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Odhiambo v. Republic of Kenya

United States District Court, District Circuit

May 30, 2013

REPUBLIC OF KENYA, et al., Defendants.



On March 21, 2012, plaintiff Peter Odhiambo, a refugee from Kenya, brought this suit against defendants - the Republic of Kenya, the Kenya Ministry of Finance, the Kenya Revenue Authority ("KRA"), and the current and former KRA Commissioner Generals, John Njiraini and Michael Waweru, in their official capacities. Compl. [Dkt. # 1] at 1. He amended his complaint on July 9, 2012. Am. Compl. [Dkt. # 13]. Odhiambo alleged two breach of contract claims arising from the KRA's offer to pay a reward in exchange for information about unpaid taxes due to the Republic of Kenya. Am. Compl. ¶¶ 46-55. On March 13, 2013, this Court dismissed the case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds that defendants were entitled to immunity under the Foreign Sovereign Immunity Act ("FSIA"). Order (Mar. 13, 2013) [Dkt. # 20]; see also Odhiambo v. Republic of Kenya, No. 12-0441, 2013 WL 953432, at *1 (D.D.C. Mar. 13, 2013).

On April 10, 2013, Odhiambo filed a Federal Rule of Civil Procedure 59(e) motion asking the Court to alter or amend its judgment so that he could seek leave to file a second amended complaint. Pl.'s Mot. to Alter or Amend J. [Dkt. # 22] at 1. Subsequently, on May 19, 2013, Odhiambo went ahead and filed his motion for leave to file a second amended complaint under Federal Rule of Civil Procedure 15(a)(2). Pl.'s Mot. for Leave to File 2d Am. Compl. [Dkt. # 30]. In the proposed second amended complaint, he consolidates and re-asserts his breach of contract claims as Count I and adds eight new claims (Counts II-IX). See Pl.'s Mem. in Support of Mot. for Leave to File 2d Am. Compl. [Dkt. # 30-1] ("Pl.'s Rule 15(a)(2) Mem.") at 1. The Court will deny both motions because Odhiambo has not met the stringent requirements of Rule 59(e), and his proposed second amended complaint is barred by sovereign immunity. While Odhiambo has added facts and multiplied counts, the gravamen of his complaint remains the same: that the government of Kenya both made and breached a promise to Odhiambo in Kenya.


Federal Rule of Civil Procedure 15(a)(2) provides that "the Court should freely give leave [to amend a pleading] when justice so requires." However, "once a final judgment has been entered, a court cannot permit an amendment unless the plaintiff first satisfies Rule 59(e)'s more stringent standard for setting aside that judgment." Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004) (internal quotation marks omitted).

"Motions under Fed.R.Civ.P. 59(e) are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998). Specifically, "[a] Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Ciralsky, 355 F.3d at 671, quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).

"Rule 59(e)... may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'" Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008), quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) ("In this Circuit, it is well-established that motions for reconsideration, whatever their procedural basis, cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.") (internal quotation marks and citations omitted).


I. Rule 59(e) Motion to Amend or Alter Judgment

Odhiambo alleges that the Court should alter its March 2013 decision "[b]ased upon: the Plaintiff's ability to proffer new evidence that supports new claims; the potential manifest injustice that could result to Plaintiff (on statute of limitation grounds) if he is precluded from bringing those additional claims in any forum; and based, further, on the clear errors of fact and law in applying the FSIA jurisdictional inquiry." Pl.'s Mem. in Support of Mot. to Alter or Amend J. [Dkt. # 22-1] ("Pl.'s Rule 59(e) Mem.") at 27. But Odhiambo has failed to proffer new evidence, to demonstrate that the Court's ruling was legally erroneous, or to show that denying his motion to alter the judgment would result in manifest injustice.

A. The evidence that Odhiambo proffers in his Rule 59(e) motion is not "new"

Odhiambo asserts that the Court should amend its judgment based on "new evidence." Pl.'s Rule 59(e) Mem. at 3-7. Contrary to Odhiambo's characterization, none of the evidence that he presents is "new." Odhiambo attaches three affidavits to his Rule 59(e) motion. The first affidavit - signed by Odhiambo - post-dates the Court's March 2013 decision but it raises no facts previously unknown to him and mostly repeats the information in his first amended complaint. Odhiambo Aff., Ex. A to Pl.'s Rule 59(e) Mot. [Dkt. # 22-2] ("Pl.'s Aff."). The next two affidavits were signed in February and August 2012 - well before the Court issued its March 2013 decision. Kiai Aff., Ex. B to Pl.'s Rule 59(e) Mot. [Dkt. # 22-3]; Opon Aff., Ex. C to Pl.'s Rule 59(e) Mot. [Dkt. # 22-4]. Indeed, the affidavit from David Opon, a friend of Odhiambo, was signed more than a month before Odhiambo filed his original complaint. Opon Aff. at 2. The remaining documents that Odhiambo offers are also not new; they include documentation of payments and correspondence dated well-before the filing of his original complaint. Exs. D and E to Pl.'s Rule 59(e) Mot. [Dkt. # 22-5, 22-6].

In his reply memorandum, Odhiambo also points to "additional new evidence" to support his motion for reconsideration.[1] Pl.'s Reply in Support of Mot. to Alter or Amend J. [Dkt. # 29] ("Pl.'s Reply") at 2. This "new evidence" relates to a statement contained in defendants' original motion to dismiss that under the reward contract, whistleblowers could receive a maximum of 2.1 million Kenyan shillings. Id. at 2-3. Odhiambo alleges that this information is "new" because it was not available to him prior to the filing of his first amended complaint. Id. at 3 n.1.

This allegation is directly contradicted by Odhiambo's proposed second amended complaint, which alleges that he was informed about the cap on the reward in July 2006 by KRA Commissioner Nduati. See Proposed 2d Am. Compl., Ex. A to Pl.'s Reply [Dkt. # 29-1] & Ex. A to Pl.'s Rule 15(a)(2) Mot. [Dkt. # 30-2] ¶¶ 43-44.[2]

Even if Odhiambo did learn about the reward ceiling for the first time when he received defendants' motion to dismiss, the test for Rule 59(e) is not whether the evidence was available before the filing of plaintiff's amended complaint but whether it was available "prior to the entry of judgment.'" Exxon Shipping, 554 U.S. at 486 n.5. Under that standard, this evidence is not new because defendants' motion was filed almost eight months before the Court's decision, and Odhiambo had ample opportunity to address it in his opposition to the motion to dismiss.

B. The additional evidence that Odhiambo proffers does not support amending the prior judgment

Moreover, the evidence proffered in Odhiambo's Rule 59(e) pleadings does not alter the Court's decision that Odhiambo's case did not fall within any of the three clauses of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2). See Odhiambo, 2013 WL 953432, at *5-14. In his affidavit, Odhiambo alleges that the KRA paid him in September 2006 while he was in Tanzania, and again in January 2009 while he was in the United States. Pl.'s Aff. ¶¶ 24-25, 33. According to Odhiambo, these payments "evidenc[ed] both an implied modification of the contract that took place in this country, as well as an intent to make reward payments to Plaintiff here, which alone satisfied" all three clauses of the commercial activity exception. Pl.'s Rule 59(e) Mem. at 23-24; see also id. at 21, 25.

Odhiambo's affidavit indicates the exact opposite. It shows that although the KRA officials knew that Odhiambo was no longer in Kenya, they wrote the checks for both of these payments out to Odhiambo in Kenyan Shillings in Kenya. Pl.'s Aff. ¶¶ 24-25, 33. Since Odhiambo was no longer in Kenya, he had to rely on a Mr. Weru - a former colleague who had agreed to serve as an intermediary between Odhiambo and the KRA - to pick up the checks in Kenya and forward him the money. Id. Therefore, this additional information supports the Court's conclusion that there is no evidence that defendants implicitly modified the contract to make the reward payable in the United States. See Odhiambo, 2013 WL 953432, at *13-14.

In an attempt to avoid this conclusion, Odhiambo argues that Mr. Weru's actions can be attributed to Kenya for jurisdictional purposes because he was an agent of Kenya. Pl.'s Reply at 16-18. To establish an agency relationship, the plaintiff must demonstrate three elements: "(1) the principal must manifest a desire for the agent to act on the principal's behalf; (2) the agent must consent to act on the principal's behalf; and (3) the principal must have the right to exercise control over the agent with respect to matters entrusted to the agent." Kaiser Grp. Int'l, Inc. v. World Bank, 420 Fed.App'x. 2, 2 (D.C. Cir. 2011), citing Transamerica Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 848-49 (D.C. Cir. 2000). Odhiambo argues that Mr. Weru was an agent of Kenya because the KRA recommended that he serve as an intermediary between the KRA and Odhiambo to protect Odhiambo's identity. Pl.'s Reply at 16-17; Pl.'s Aff. ¶ 7. This argument does not meet the standard for an agency relationship because it does not allege that the KRA manifested a desire for Mr. Weru to act on its behalf, that Mr. Weru consented to act on the KRA's behalf, or that the KRA had the right to exercise control over Mr. Weru with respect to the relationship with Odhiambo.

Rather, according to Odhiambo's own affidavit, Mr. Weru was simply a conduit between the two parties: he passed along tax information from Odhiambo to the KRA and delivered the KRA's checks to Odhiambo. Pl.'s Aff. ¶ 7. Additionally, Odhiambo's references to Mr. Weru as "my intermediary" and "Plaintiff's intermediary" suggest that in fact, Mr. Weru was acting on Odhiambo's behalf, to ensure that Odhiambo received his reward payments, and not as an agent of Kenya. See Pl.'s Aff. ¶ 25; see also Proposed 2d Am. Compl. ¶ 68. Therefore, Odhiambo's argument that the Court should re-open these proceedings based on new evidence fails because the evidence he proffers is not new and the evidence does not cure the jurisdictional issues addressed in Court's March 2013 decision.[3] Natural Res. Def. Council, Inc. v. EPA, 705 ...

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