United States District Court, District of Columbia
GODSON M. NNAKA, Plaintiff,
FEDERAL REPUBLIC OF NIGERIA, et al., Defendants.
D.BATES, United States District Judge
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.
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.
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.
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.
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
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).
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.").
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.
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[.]").
basis for the Court's jurisdiction, Nnaka attempts to fit
his suit within the FSIA's commercial activity and
non-commercial tort exceptions. 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
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).
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 ...