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Nnaka v. Federal Republic of Nigeria

United States District Court, District of Columbia

February 27, 2017

GODSON M. NNAKA, Plaintiff,
v.
FEDERAL REPUBLIC OF NIGERIA, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D.BATES, United States District Judge

         Godson Nnaka, a U.S. citizen of Nigerian descent, alleges that he was retained in 2004 by the Nigerian government to recover proceeds of alleged Nigerian corruption stashed in the United States and around the world. In 2014, Nnaka and several associates attempted to file claims on Nigeria's behalf in an asset forfeiture proceeding brought by the United States before this Court. But Nigeria soon disclaimed Nnaka and his work, telling the U.S. government by letter that Nnaka and his team did not have the authority to represent Nigeria in that (or any other) asset forfeiture matter. Nnaka has now filed this ten-count complaint against Nigeria and its Attorney General, seeking hundreds of millions of dollars in damages and injunctive relief. Defendants have moved to dismiss, arguing that the Foreign Sovereign Immunities Act shields both defendants from suit, that Nnaka's suit is barred by the political question and act of state doctrines, and that his complaint fails to state a claim upon which relief can be granted. For the reasons explained below, the Court concludes that it has jurisdiction to entertain Nnaka's suit. But because some of his allegations run afoul of the act of state doctrine, while others fail to state a claim upon which relief can be granted, the Court will nonetheless dismiss his complaint in its entirety.

         BACKGROUND

         Nnaka's complaint is founded primarily on two letters from two Nigerian Attorneys General. The first is a 2004 "Letter of Instruction" sent to Nnaka from then-Nigerian Attorney General Akinlolu Olujinmi. That letter provides:

I refer to the recent meeting between your goodself and myself (Nnaka/Olujinmi) regarding funds looted from Nigeria part of which you assured me you have information is lying in some banks in the United States. This letter is to instruct you to proceed in a professional manner to recover the funds on behalf of the country. Please note that Government will only pay for your professional services a percentage as may be agreed of any sums actually recovered by you. In other words, no recovery no payment[.] You are required to keep me fully informed of whatever progress you are making periodically from the moment you embark on the execution of this instruction. As a first step you will need to inform us in which banks the funds have been discovered.

2004 Letter of Instruction [ECF No. 16-3] at 2. According to the complaint, after having received these instructions, Nnaka began his investigation, which took him to Nigeria, England, France, Turkey, Austria, Switzerland, and Angola. Compl. [ECF No. 1] ¶ 19. He also took investigative steps in the United States, engaging several U.S.-based consultants, attorneys, and advisors. Id.

         Nnaka says these efforts paid off when he "discover[ed] about five hundred and fifty million ($550, 000, 000.00) dollars stolen, looted, and stashed outside Nigeria by a former head of the government of the Federal Republic of Nigeria, the late General Sard Abacha." LI ¶ 13. Perhaps not coincidentally, in early 2014 the U.S. government unsealed an asset forfeiture complaint that sought to forfeit "five corporate entities and more than $500 million in other assets involved in an international conspiracy to launder proceeds of corruption in Nigeria during the military regime of General Sard Abacha." U.S. Asset Forfeiture Compl., Case No. 13-1832 (JDB) [ECF No. 1] (D.D.C.); see also Compl. ¶21. Nnaka's complauit is ambiguous concerning the relationship between his alleged discovery and the filing of the United States' asset forfeiture case. His complaint simply mentions the two events in succession. See Compl. ¶¶20, 21. His opposition, on the other hand, suggests that his discovery came first and the United States' case came "later." See PI. 's Opp'n to Mot. to Dismiss [ECF No. 16] at 6-7. Indeed, Nnaka appears to suggest that his discovery may even have prompted the U.S. government's investigation. See Id. at 3-4.

         Regardless of the precise chronology, Nnaka alleges that he quickly assembled a team of attorneys-comprised of Jude Ezeala, Charles Lion Agwumezie, and Kenneth Nnaka-to file the "necessary legal documents" in the asset forfeiture matter and thereby obtain "the safe return and repatriation of the discovered looted funds." See Compl. ¶¶ 19(1), 23. Once those filings had been made, Nnaka traveled to Nigeria to seek a meeting with then-Attorney General Mohammed Adoke about how best to protect Nigeria's interest in the litigation. Id.¶¶24, 25. But, Nnaka alleges, Adoke was more interested in enriching himself than in protecting Nigeria's interests. According to Nnaka, Adoke's proxies proposed a quid pro quo: Adoke would verify the claims that Nnaka's team had filed on Nigeria's behalf, but only if Nnaka would agree to share his attorney's fees. Id.¶ 117. When Nnaka refused to share his fees, Adoke refused to timely verify the claims. See Id. ¶¶ 27-29.

         Moreover, in May 2014 Adoke sent the second letter at the heart of this case. That letter, addressed to the "Asset Forfeiture Money Laundering Section" of the U.S Department of Justice Criminal Division, provides as follows:

I hereby state that the following individuals are not authorized to represent Nigeria in your civil forfeiture action ... or in any other effort to recover the proceeds of Nigerian corruption in the United States of America: Jude Chukwuma Ezeala, Kenneth A. Nnaka, Godson Nnaka, Charles Lion Agwumezie.

May 2014 Letter to DOJ [ECF No. 16-3] at 7; see Compl. ¶ 25. The U.S. government then filed Adoke's letter with this Court in the asset forfeiture matter. See Compl. ¶28. On the U.S. government's motion, the claims submitted by Nnaka and his team were struck from the record and, later, default judgment was entered for the United States as to some of the defendant assets. Id; see also Oct. 28, 2016, Mem. Op. & Order, Case No. 13-1832 (JDB) [ECF No. 137] at 2-5 (D.D.C.) (providing background on the asset forfeiture case and Nnaka's attempted participation in it); see also United States v. All Assets Held, Case No. 16-5283 (D.C. Cir. filed Sept. 30, 2016) (encompassing Nnaka's appeals of several orders in the asset forfeiture case).

         After Adoke left office, Nnaka sought redress from the new (and current) Nigerian Attorney General, Abubakar Malami. Initially, Malami was receptive, allegedly offering to resolve Nnaka's dispute so long as Nnaka did not file a lawsuit. Compl. ¶ 52. He also allegedly promised to verify the claims filed by Nnaka'steam and make clear to the United States that Nnaka had authority to represent Nigeria, the May 2014 letter notwithstanding. Id. But it was not to be. Nnaka alleges that, like his predecessor, Malami demanded a bribe in exchange for verifying the claims and reinstating Nnaka's authority. Id. ¶ 53. Nnaka again refused to pay and, as a result, Malami appointed a new attorney to represent Nigeria's interests, both in the asset forfeiture proceeding and in this case. Id. ¶ 54. Nnaka believes that, in attempting to thwart his efforts at recovery, both Adoke and Malami have been trying to enrich themselves and are working as secret agents of Abubakar Atiku Bagudu, a figure who is important to the U.S. government's complaint in the asset forfeiture matter. See Compl. ¶¶34, 40, 55; see also U.S. Asset Forfeiture Compl. ¶ 1 (alleging that: "General Abacha, his son Mohammed Sard Abacha, their associate Abubakar Atiku Bagudu, and others embezzled, misappropriated, defrauded, and extorted hundreds of millions of dollars from the government of Nigeria and others.").

         Out of other options, Nnaka has brought this action directly against Nigeria and its Attorney General, Abubakar Malami, in his official capacity. Compl. ¶¶ 1, 7-8. His complaint has ten counts. The first nine are for unjust enrichment, quantum meruit, misrepresentation, libel, breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, wrongful discharge, and abuse of process. Id. ¶ 1. Most counts seek damages of $220 million, which is 40% of the benefit that Nnaka believes he has conferred upon Nigeria. See, e.g., id ¶ 69. His count for misrepresentation seeks double that amount, and his claim for breach of the implied covenant of good faith and fair dealing seeks double or triple it. Id.¶¶ 90, 94. His claim for libel seeks an additional $100 million in damages. Id. ¶98. And, last but not least, Nnaka's tenth count seeks an order appointing Nnaka and his attorney as private attorneys general for Nigeria and investing them with responsibility for the repatriation of stolen assets. See id ¶¶ 128-44. Nigeria and Malami have moved to dismiss. See Defs.' Mot. to Dismiss [ECF No. 13]. They contend: first, that they are immune from suit under the Foreign Sovereign Immunities Act; second, that Nnaka's claims are barred by the political question doctrine; third, that the claims are barred by the act of state doctrine; and finally, that his complaint fails to state a claim upon which relief can be granted. The Court will address these arguments in turn.

         LEGAL STANDARDS

         Both Nigeria and Malami argue that the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., provides them with immunity from Nnaka's suit. As a foreign sovereign, Nigeria is plainly eligible to make a claim for immunity under the FSIA, which "provides the sole basis for obtaining jurisdiction over a foreign sovereign in the United States." Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992) (internal quotation marks omitted). "Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see also 28 U.S.C. § 1604. For Malami, however, the question of immunity is more complicated. Because FSIA's definition of a foreign state does not extend to the state's individual officers, Malami's immunity claim is not covered by the FSIA. See Samantar v. Yousuf 560 U.S. 305, 314-15, 325-26 (2010); see also 28 U.S.C. § 1603(a), (b). To establish immunity from suit, individual officers must generally show that they are entitled to share in their state's immunity. See Yousuf v. Samantar, 699 F.3d 763, 769 (4th Cir. 2012) (noting that "all forms of individual immunity derive from the state"); see also id at 774 ("[C]onduct-based immunity for a foreign official derives from the immunity of the State[.]").

         As a basis for the Court's jurisdiction, Nnaka attempts to fit his suit within the FSIA's commercial activity and non-commercial tort exceptions.[1] See Compl. ¶¶3-4 (citing 28 U.S.C. § 1605(a)(2), (5)). Because defendants '"challenge[] only the legal sufficiency of [Nnaka's] jurisdictional allegations, '" the Court must '"take [those] factual allegations as true and determine whether they bring the case within' either of those two exceptions." De Csepel v. Republic of Hungary, 714 F.3d 591, 597 (D.C. Cir. 2013) (quoting Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)); see also Defs.' Mot. to Dismiss at 10 (accepting Nnaka's allegations as true for purposes of analysis); Defs.' Reply [ECF No. 18] at 6 (stating that defendants' Rule 12(b) motion to dismiss "relies exclusively on [Nnaka's] own complaint" and should be decided "without requiring discovery"). When the jurisdictional inquiry overlaps with the merits of a plaintiff s claim, the plaintiff need not prove a winning claim on the merits merely to establish jurisdiction. Simon v. Republic of Hungary, 812 F.3d 127, 141 (D.C. Cir. 2016). "Rather, the plaintiff need only show that its claim is 'non-frivolous' at the jurisdictional stage, and then must definitely prove its claim in order to prevail at the merits stage." Id. (citing Bell v. Hood, 327 U.S. 678, 682 (1946)).

         In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must presume the truth of a complaint's factual allegations, though it is "not bound to accept as true a legal conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). The court then asks whether the facts alleged suffice "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). On a motion to dismiss, the court considers "facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Mpoy v. Rhee, 758 F.3d 285, 291 n. 1 (D.C. Cir. 2014) (internal quotation marks omitted).

         The parties here agree that the Court should consider the 2004 and 2014 letters discussed above, which Nnaka has submitted as attachments to his opposition. Defendants further move that the Court take judicial notice of records in the related asset forfeiture case, and of two orders disbarring Nnaka from the practice of law in Maryland and the District of Columbia. See Defs.' Mot. to Take Judicial Notice [ECF No. 14]. Nnaka opposes both those requests. See Pl's Opp'n to Mot. to Take Judicial Notice [ECF No. 15]. Under Federal Rule of Evidence 201(b), a court may generally take judicial notice of court records in related proceedings. Fain v. Islamic Republic of Iran,856 F.Supp.2d 109, 115 (D.D.C. 2012) (citing Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C. Cir. 1938)); see also Fletcher v. Evening Star Newspaper Co., 133 F.2d 395, 395 (D.C. Cir. 1942) (per curiam). The Court sees little issue with taking judicial notice of the procedural dimensions of the related asset forfeiture case-not least because ...


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