“ As an initial matter, the evidence Ugwuonye offers in support of his motion is devoid of any meaningful factual content to support a finding that Abumchi is authorized to accept service on behalf of Adefuye and Lamorde within the meaning of Rule 4(e)(2)(C). Moreover, even putting aside the issue of proper service of process, the Court must nonetheless deny Ugwuonye’s motion for default judgment because he has failed to establish that this Court has personal jurisdiction over Adefuye and Lamorde..” 1 > > > > ________________________________________________________________________________ > > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 1 of 10 > > > UNITED STATES DISTRICT COURT > FOR THE DISTRICT OF COLUMBIA > > EPHRAIM EMEKA UGWUONYE, > Plaintiff, > > v. > > ADEBOWALE IBIDAPO ADEFUYE, et al., > Defendants. > > Civil Action No. 12-00908 (CKK) > > MEMORANDUM OPINION AND ORDER > (November 27, 2012) > > Plaintiff Ephraim Emeka Ugwuonye (“Ugwuonye”)1 commenced this action on June 5, 2012, against the current Nigerian Ambassador to the United States and seven other defendants, whom Ugwuonye alleges are high-ranking government officials and officers of the Nigerian Economic and Financial Crimes Commission (“EFCC”). 2 Ugwuonye asserts claims of torture, assault and battery, and human rights violations against each defendant pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350 and the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 note. See Compl., ECF No. [1] at ¶¶ 3-25, 71-79. Presently pending before the Court is > > > ------------Footnotes > > 1 Ugwuonye is a self-described attorney and graduate of Harvard Law School. See Compl., ECF No. [1], ¶¶ 2, 38-40. As such, he is presumed to have knowledge of the legal system and is not entitled to the same level of solicitude typically afforded litigants proceeding without legal representation. See Curran v. Holder, 626 F. Supp. 2d 30, 33 (D.D.C. 2009); Baird v. Snowbarger, 744 F. Supp. 2d 279, 286 (D.D.C. 2010), aff’d in part and vacated in part sub nom. Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011). This remains true even though, according to public records, Ugwuonye’s membership with the District of the Columbia Bar has been suspended. See District of Columbia Bar, Find a Member, at dcbar.org/find_a_member/index.cfm (last visited November 25, 2012); see also In re Ugwuonye, 959 A.2d 732 (D.C. 2008) (per curiam). > > 2 Plaintiff has since voluntarily dismissed his claims against one defendant—T. Michael Guiffre. See Notice of Voluntary Dismissal in Relation to T. Michael Guiffre, ECF No. [2]. > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 2 of 10 > > > Ugwuonye’s [16] Motion for Entry of Default Judgment, which seeks entry of default and default judgment against two defendants whom Ugwuonye asserts have been properly served with the summons and complaint. The Court is also in receipt of Ugwuonye’s [20] Status Report Regarding Service of Process, in which Ugwuonye describes the challenges he has allegedly encountered in his attempts to serve process upon the remaining defendants in this action and requests the Court to authorize service pursuant to Federal Rule of Civil Procedure 4(f)(2)(C)(ii), or alternatively, Federal Rule of Civil Procedure 4(f)(3). For the foregoing reasons, Ugwuonye’s [16] Motion for Entry of Default Judgment shall be DENIED. Further, to the extent Ugwuonye wishes to effectuate service on any one or more defendants in this action pursuant to 4(f)(2)(C)(ii) or 4(f)(3), he must file an appropriate motion that clearly sets forth the specific factual and legal bases for such relief. > > I. MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT AGAINST ADEFUYE AND LAMORDE > > Ugwuonye contends that he has already served two of the defendants in the United States —the current Nigerian Ambassador to the United States, Adebowale Ibidapo Adefuye (“Adefuye”), and Ibrahim Lamorde (“Lamorde”), whom Ugwuonye alleges is the current Chairman of the EFCC, see Compl. ¶11. Earlier in this action, Ugwuonye filed putative proof of service asserting that he caused a process server to personally deliver copies of the summons and complaint on Adefuye and Lamorde’s alleged “authorized agent” at their “usual place of business” in the United States. See Affs. of Service, ECF No. [5-1]. Because “it [was] not entirely clear to the Court on [which] method of service [Ugwuonye sought] to rely,” the Court “require[d] [Ugwuonye] to file a notice with the Court (1) identifying the method of service upon which he relies and (2) explaining why his attempted service upon Adefuye and Lamorde is effective, with citation to appropriate authority.” Order (Aug. 13, 2012), ECF No. [6] at 2. On > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 3 of 10 > > > September 7, 2012, Ugwuonye filed a notice responding to the Court’s directives. See Sept. 7, 2012 Notice, ECF No. [9]. > > Upon receipt of Ugwuonye’s September 7, 2012 notice, the Court issued an Order finding, in relevant part: > > From Ugwuonye’s notice, it is now [clear] that he relies exclusively on the provision authorizing service by “delivering a copy of [the summons and complaint] to an agent authorized by appointment or by law to receive service of process.” FED. R. CIV. P. 4(e)(2)(C). Specifically, Ugwuonye contends that Adefuye and Lamorde were properly served when his process server delivered a copy to Mohammed Abumchi, as Adefuye and Lamorde’s alleged “authorized agent.” See Sept. 7, 2012 Notice at 2-4. Plaintiff does not rely on any other method of service authorized under the Federal Rules of Civil Procedure or the service provisions of the Foreign Sovereign Immunities Act. See Aug. 13, 2012 Order at 3 n.3 (“To the extent Plaintiff intends to rely on the service provisions of the Foreign Sovereign Immunities Act for any Defendant, he must so indicate and explain how the Act applies in this case.”). > > Order (Sept. 17, 2012), ECF No. [11], 2-3. The Court’s September 17, 2012 Order further noted that, while the Court appreciated the clarification regarding the method of service on which Ugwuonye relies, it had no occasion to issue a “ruling” on whether such method was valid. Id. Rather, the Court ordered that to the extent Ugwuonye believes that Adefuye and Lamorde are in default, he must file an application for entry of default and default judgment by October 10, 2012. Id. (citing FED. R. CIV. P. 55(a)-(b)). The Court further directed Ugwuonye that, as part of that application, he “must, inter alia, provide a sufficient evidentiary and legal basis for the Court to conclude that he has properly served Adefuye and Lamorde pursuant to Federal Rule of Civil Procedure 4(e)(2)(C) and that the Court has personal jurisdiction over Adefuye and Lamorde.” Id. (citing Mwani v. bin Laden, 417 F.3d 1, 6 (“[E]ntry of a default judgment is not automatic, and [] a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.”); Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 4 of 10 > > 838, 843 (8th Cir. 1993) (“If a defendant is improperly served, a federal court lacks [personal] jurisdiction of the defendant.”)). > On November 6, 2012, Ugwuonye filed a motion nunc pro tunc for entry of default judgment against Adefuye and Lamorde. 3 Mot. for Entry of Default J. Against Def. Adebowale Adefuye and Def. Ibrahim Lamorde (“Pl.’s Mot.”), ECF No. [16]. Therein, Ugwuonye again contends that he properly served Adefuye and Lamorde pursuant to Federal Rule of Civil Procedure 4(e)(2)(C) by causing a process server to serve process on Mohammad Abumchi (“Abumchi”), who Ugwuonye alleges is an “employee of the Embassy of Nigeria working in the capacity of the Assistant to the Ambassador,” when Abumchi, Adefuye, and Lamorde were all located at the United States Institute of Peace, 2301 Constitution Avenue, NW, Washington, DC 20037, representing Nigeria in connection with a bilateral commission between Nigeria and the United States. Id. at 2-3. > > Federal Rule 4(e)(2)(C) provides for service on an individual by delivery of a copy of the summons and complaint to an agent of the defendant in a judicial district of the United States. Importantly, the agent must be “authorized by appointment or by law to receive service of process.” FED. R. CIV. P. 4(e)(2)(C) (emphasis added). See also U.S. v. Ziegler Bolt and Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997) (“[T]he mere appointment of an agent, even with broad authority, is not enough; it must be shown that the agent had specific authority, express or implied for the receipt of service of process.”) (citation omitted). Accordingly, the mere fact that > > ----------Footnote > > 3 Although the instant motion was originally due to be filed by October 10, 2012, Ugwuonye filed and was granted two requests for extension of time, see Order (Oct. 11, 2012), ECF No. [13]; Min. Order (Oct. 26, 2012), and subsequently filed a Status Report describing certain legal proceedings in Nigeria which Ugwuonye alleges delayed his ability to file the motion. As Ugwuonye was diligent in his efforts to update the Court on the alleged reasons for this delay, the Court shall deem the motion to be timely filed. > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 5 of 10 > > a person acts as agent for the defendant for some purposes does not necessarily mean that the person has authority to receive the summons and complaint. > > In this case, Ugwuonye argues that Abumchi qualifies as an “agent authorized by appointment or by law to receive process” because he, as the “right-hand man” and assistant to Adefuye, “regularly received legal documents on behalf of the Nigerian Ambassadors and senior officials of the Government that are guests of the Embassy or the Ambassador.” Id. at 3-6. Because the Court finds Ugwuonye’s argument both legally and factually deficient, it shall decline to adopt such a broad definition of authorized agent in this case. > > As an initial matter, the evidence Ugwuonye offers in support of his motion is devoid of any meaningful factual content to support a finding that Abumchi is authorized to accept service on behalf of Adefuye and Lamorde within the meaning of Rule 4(e)(2)(C). Mostly, Ugwuonye relies upon his own declaration, in which he states, inter alia, that based upon his own experience providing legal representation to the Embassy of Nigeria, he knows that Abumchi has served as “trusted aide” to all sitting Ambassadors and that whenever “any person tries to deliver any object or document to the Ambassador, it is Abumchi that receives it”; that Adefuye’s predecessors had “directed [Ugwuonye] to “deliver important legal documents meant for the Embassy or the Ambassador to Abumchi who, in all occasions, in turn, delivered such legal documents to the Ambassador in question”; and that since 2010, when Adefuye became Ambassador, Abumchi “has maintained his position and rendered the same services to Adefuye as he has rendered to other Nigerian Ambassadors to Washington.” See Pl.’s Decl., ECF No. [16-3]. In addition to his own declaration, Ugwuonye has submitted two affidavits of service by the process server (one of which states that service of the summons and complaint were delivered to Abumchi “who identified himself as the Assistant of the Ambassador of Nigeria to the United > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 6 of 10 > > States”), see ECF Nos. [16-1] & [16-2], and three photographs (which Ugwuonye alleges, without any additional context or support, depict Abumchi while at work for a former Nigerian Ambassador to Washington and that in one of the photographs, Abumchi, who appears with a sheet of paper folded in his hand, “can be seen holding a document he had just received for the Ambassador”). See First Supp. to Mot. for Entry of Default J., ECF. No. [17]; Second Supp. to Mot. for Entry of Default J., ECF No. [18]; Third Supp. to Mot. for Entry of Default J., ECF No. [19]; Pl.’s Mot. at 1 n.1 & 15. > > These conclusory assertions of a “trusted” relationship and an observed informal practice of Abumchi’s accepting of all “object[s] or document[s]” on behalf of all sitting ambassadors in recent years are simply insufficient to show that Abumchi was specifically appointed to receive legal process for Adefuye or any other government official. The fact that, as alleged by the process server in his affidavits, Abumchi identified himself as Adefuye’s assistant is likewise insufficient to establish the required agency relationship. Abumchi did not hold himself out as having the specific authority to accept service of process. More to the point, courts have consistently found that claims by an agent of having authority to receive process are not enough to bind a defendant to the court’s jurisdiction; rather, a plaintiff must offer evidence that the defendant intended to confer that authority upon the agent in order to meet the requirements of Rule 4(e)(2)(C). See, e.g., Fenwick v. U.S., 691 F. Supp. 2d 108, 113 (D.D.C. 2010). Finally, Ugwuonye has provided no explanation for the proposition that Abumchi’s purported status as employee of the Nigerian Embassy and assistant to Adefuye confers upon Abumchi the authority to accept service of process for Adefuye, or any other government > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 7 of 10 > > official, who, as here, is sued in a personal capacity, as opposed to in an official capacity as a representative of the Embassy. > 4 > > Moreover, even putting aside the issue of proper service of process, the Court must nonetheless deny Ugwuonye’s motion for default judgment because he has failed to establish that this Court has personal jurisdiction over Adefuye and Lamorde. As the D.C. Circuit has made clear, “entry of a default judgment is not automatic, and [ ] a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). Importantly, “service of process does not alone establish personal jurisdiction.” Id. Rather, “before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant. There also must be authorization for service of summons on the defendant and a constitutionally sufficient relationship between the defendant and the forum.” (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 103-04 (1987)). See also id. at 7 (“[A]lthough the plaintiff[ ] retain[s] the burden of proving personal jurisdiction, [he] can satisfy that burden with a prima facie showing … [T]o establish a prima facie case, [a] plaintiff[ ] [is] not limited to evidence that meets the standards of admissibility required by the district court. Rather, [he] may rest [his] argument on [his] > > -----Footnote > > 4 Ugwuonye’s complaint is far from a model of clarity and does not clarify whether Ugwuonye is suing the defendants in this action in their individual capacities, official capacities, or both. However, in light of Ugwuonye’s reliance on Federal Rule of Civil Procedure 4(e), which addresses service on an individual defendant within a judicial district of the United States, as well as the fact that he has not attempted to serve process on any of the defendants in accordance with the specific requirements for serving foreign state defendants under the Foreign Sovereign Immunities Act, see 28 U.S.C. § 1608, the Court understands Ugwuonye to have brought his claims against all defendants in this action in their personal capacities. See also Order (Sept. 17, 2012), ECF No. [11], 2-3 (“[I]t is now [clear] that [Ugwuonye] relies exclusively on [Rule 4(e)(2)(C)]…Plaintiff does not rely on any other method of service authorized under the Federal Rules of Civil Procedure or the service provisions of the Foreign Sovereign Immunities Act (citing Aug. 13, 2012 Order at 3 n.3 (“To the extent Plaintiff intends to rely on the service provisions of the Foreign Sovereign Immunities Act for any Defendant, he must so indicate and explain how the Act applies in this case.”)). > > ---------------------------------------------------------------------------------------------------------------------------------------------- > > > Case 1:12-cv-00908-CKK Document 21 Filed 11/27/12 Page 8 of 10 > > pleadings, bolstered by such affidavits and other written materials as [he] can otherwise obtain.”) (citations and quotations omitted). > > Here, despite the fact that the Court specifically instructed Ugwuonye to provide a sufficient evidentiary and legal basis upon which the Court could conclude not only that he has properly served Adefuye and Lamorde, but also that that the Court has personal jurisdiction over Adefuye and Lamorde, Ugwuonye failed entirely to brief the issue of personal jurisdiction. Accordingly, even if the Court had found Ugwuonye’s attempted service on the defendants to be proper – which it does not – Ugwuonye’s motion for default judgment would in any event fail due to his failure to demonstrate that Adefuye and Lamorde possess sufficient contacts with the instant forum so as to justify the exercise of personal jurisdiction consistent with the requirements of due process. See, e.g., id. at 11-12; S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 117-118.
Posted on: Sun, 06 Oct 2013 18:55:57 +0000
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