- Published on Monday, 17 September 2012 16:03
- Written by Elombah.com
A US court has ordered that application for default judgement be entered against Nigerian Ambassador to the United States, Mr Adebowale Adefuye, and the Chairman of the Economic Crimes and Financial Crimes Commission, EFCC, Mr Ibrahim Lamorde. Adefuye and Lamorde were slammed with a $75 million suit by US based Nigerian
lawyer, Ephraim Emeka Ugwuonye, who is the plaintiff.
On Monday, 17 September 2012, the United States District Court for the District of Columbia ruled as follows:
"ORDER. As set forth more fully herein, to the extent Ugwuonye believes that Adefuye and Lamorde are in default, by no later than October 10, 2012, he shall file an application for entry of default and default judgment. Any such application must, inter alia, provide an adequate 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. Further, the Clerk of the Court shall mail a copy of this Order to Ugwuonye at his address of record. Signed by Judge Colleen Kollar-Kotelly on September 17, 2012. (lcckk3)
1:12-cv-00908-CKK Notice has been electronically mailed to: Ephraim Chukwuemeka".
The action arose from a Complaint by the plaintiff against Ambassador Adebowale Ibidapo Adefuye, Ibrahim Lamorde, Farida Waziri, Ahmad Abdurrahman, Abdul Suleiman, Olufemi Babafemi, Festus Keyamo, and T. Michael Guiffre (jointly referred to as the Defendants), seeking damages for assault, crimes against humanity, violations of civil and human rights, torture, illegal rendition, abuse of court process and conspiracy, committed by the Defendants and their agents; and also acting in concert with, aiding, abetting, facilitating, soliciting, directing, orchestrating and conspiring with the Economic and Financial Crimes Commission (EFCC) of the Federal Republic of Nigeria, the State Security Service (SSS) of Nigeria, and their collaborators in those atrocities; in violation of the Law of Nations, international law, the laws of the Federal Republic of Nigeria, the laws of the United States of America and of individual states, including but not limited to the District of Columbia, and the natural laws of man.
In another court case, the Nigerian Embassy has responded to Emeka Ugwuonye's Opposition To Default Judgment in a different case.
This is contained in a court document posted on a Nigerian forum by one Afis Odidere posted below:
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EMBASSY OF THE FEDERAL
REPUBLIC OF NIGERIA
EPHRAIM EMEKA UGWUONYE, et al.
Civil Action No. 1:10-cv-01929 (BJR)
PLAINTIFF’S OPPOSITION TO DEFENDANT UGWUONYE’S APPLICATION FOR LEAVE TO FILE HIS OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS ECU ASSOCIATES, P.C. AND ECULAW LAW GROUP OUT OF TIME
Plaintiff Embassy of the Federal Republic of Nigeria (“Embassy”), through counsel, pursuant to Fed. R. Civ. P. 6(b)(1)(B) and LCvR 7(b) hereby submits its opposition to Defendant Ugwuonye’s (“Ugwuonye”) application for leave to file an opposition to the Embassy’s cross motion for default judgment out of time (the “Application”), and in opposition thereto avers as follows:
I. A POST-DEADLINE EXTENSION OF TIME REQUIRES A SHOWING OF EXCUSABLE NEGLECT
As described in the Embassy’s Notice of Defendants’ Non-Opposition to Plaintiff’s Cross-Motion for Default Judgment Against Defendants ECU Associates, P.C. and ECU Law Group (Dkt. No. 80), the Embassy filed an Opposition to Mr. Ugwuonye’s untimely Motion to Dismiss and its Cross-Motion for Default Judgment (the “Cross-Motion”) on August 13, 2012.
Mr. Ugwuonye’s opposition to the Cross-Motion, if any, was due on August 30, 2012. Mr. Ugwuonye did not oppose the Embassy’s Cross Motion.
If at any time prior to August 30, 2012, Mr. Ugwuonye had moved for an extension of time to file an opposition to the Cross-Motion, the Court could have granted an extension upon a Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 1 of 92 showing of good cause. Fed. R. Civ. P. 6(b)(1)(A). Because Mr. Ugwuonye now seeks an enlargement of time after the original deadline has passed, he must show not only “good cause”
for the enlargement, Fed. R. Civ. P. 6(b)(1), but also “excusable neglect” for failing to comply with the deadline as determined by the Local Rules of this Court. Fed. R. Civ. P. 6(b)(1)(B).
A finding of excusable neglect is an “equitable determination” based on four factors:
 the danger of prejudice to the [non-moving party],
 the length of the delay and its potential impact on judicial proceedings,
 the reason for the delay, including whether it was within reasonable control of the movant, and
 whether the movant acted in good faith.
In re Douglas, No. 10-cv-492 (JDB), 2012 U.S. Dist. LEXIS 86604 at *3 (D.D.C. June 22,
2012); see also Smith v. District of Columbia, 430 F.3d 450, 456 n.5 (D.C. Cir. 2005) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 388 (1993)). In making the requisite showing, the party seeking the post-deadline enlargement of time must file a motion explaining the excusable neglect with “a high degree of formality and precision[.]”
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 897 (1990); Smith v. Dist. of Columbia, 430 F.3d 450, 457 (D.C. Cir. 2007) (holding that it is an abuse of discretion to consider an untimely filing in the absence of a motion to enlarge demonstrating excusable neglect).
II. MR. UGWUONYE’S APPLICATION FOR LEAVE TO FILE OUT OF TIME FAILS TO DEMONSTRATE EXCUSABLE NEGLECT
Given the procedural history of this case and a separate case brought by Mr. Ugwuonye, and his asserted justifications to file out of time, Mr. Ugwuonye has failed to demonstrate excusable neglect. Therefore, the Court should deny his request to file an opposition to the Embassy’s Cross-Motion out of time.1
1 Even if the Court were inclined to accept the Opposition, its arguments are without merit. Mr.Ugwuonye argues that a forfeited corporation cannot be sued under Maryland law. As Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 2 of 93
Of the four factors that the Court should consider to determine whether Mr. Ugwuonye has demonstrated excusable neglect, the Embassy first will address the third factor, or the “fault” factor, because it is “perhaps the most important single factor.” Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 14-15 (D.D.C. 2003); see also Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003) (fault is the “key factor” in excusable neglect analysis). Even where the other three factors weigh in favor of the party seeking to file out of time, the fault factor, alone, can be dispositive.
Institute for Policy Studies v. CIA, 246 F.R.D. 380, 383 (D.D.C. 2007).
A. Mr. Ugwuonye’s Reason for the Delay Does Not Support a Finding of Excusable Neglect To determine whether a party has demonstrated excusable neglect justifying extending a deadline after it has passed, Fed. R. Civ. P. 6(b)(1)(B), the Court must consider whether the moving party is at fault for the delay. Institute for Policy Studies v. CIA, 246 F.R.D. at 383.
Mr. Ugwuonye states that he seeks to file an opposition out of time because of “heavy time pressure as he participates in trials and preparation for trials in the criminal cases files [sic] against him in established in the Cross-Motion (Dkt. No. 77 at 5), a director of a forfeited corporation can be sued as a trustee of the corporation’s assets in the name of the corporation. See Clevenger v. Baltimore American Mortgage Corp., 2010 U.S. Dist. LEXIS 115849 (D.Md. Oct. 29, 2010)
(citing Md. Code, Corps. & Ass’ns, § 3-515(c)(3) and Mintec Corp. v. Miton, 392 B.R. 180, 185 (D. Md. 2008)). Additionally, this means that Mr. Ugwuonye is a party to this action in two distinct capacities: individually and as a trustee of a forfeited corporation.
While he may proceed pro se in his individual capacity, he must be represented by counsel in his capacity as trustee of a forfeited corporation. Delta Sigma Theta Sorority, Inc. v. Lamith Designs, Inc., 275 F.R.D. 20, 26 (D.D.C. 2011) (“a corporation may not appear pro se”); United States v. Mraz, 274 F. Supp.
2d 750, 755 (D. Md. 2003) (“A trustee appearing in a solely representative capacity requires a lawyer in federal court.”) (internal quotations omitted); Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (trustee pro se has no right to represent trust); United States v. Mentzer, No. 09-cv-2065, 2012 U.S. Dist. LEXIS 42139 (E.D. Pa. March 22, 2012) (trustee must proceed through counsel); Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993) (“the rationale for that rule applies equally to all artificial entities”). Because Mr. Ugwuonye is not represented by an attorney as trustee of a forfeited corporation, he cannot submit an opposition on its behalf. Moreover, Mr. Ugwuonye is suspended from practicing law in Washington, D.C., and he cannot act as an attorney for one defendant when he himself is a defendant in his individual capacity.
Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 3 of 94
Nigeria.” Application at 1. It is well established that this excuse is insufficient to support a finding of excusable neglect. Institute for Policy Studies, 246 F.R.D. at 383 (press of other business falls “far short of a showing of excusable neglect”); Moore v. District of Columbia, No. 05-2020 (D.D.C. filed Feb. 15, 2007) (same). “Plaintiffs’ proffered explanation for the untimely filing — mistake resulting from a heavy case load — has been found in this circuit to be an insufficient basis for excusable neglect[.]” D.A. v. District of Columbia, No. 07-cv-1084, 2007 U.S. Dist. LEXIS 90640 at *10 (D.D.C. Dec. 6, 2007) (citing Citizens’ Protective League v. Clark, 85 U.S. App. D.C. 282, 178 F.2d 703, 704 (D.C. Cir. 1949); Maghan v. Young, 80 U.S. App. D.C. 395, 154 F.2d 13, 13 (D.C. Cir. 1946)).
While Mr. Ugwuonye’s asserted excuse for the late filing cannot constitute excusable neglect under the precedent of this Court in any event, it also lacks credibility. On August 30, 2012 – the same day that Mr. Ugwuonye’s opposition to the Cross-Motion was due – Mr. Ugwuonye filed a motion for an extension of time to file a status report in another matter pending before this Court. In Ugwuonye v. Adefuye, No. 12-908 (CKK) (D.D.C. 2012), Mr. Ugwuonye was required to file a status report by August 30, 2012. Rather than file the status report, he filed a motion for extension of time to file a status report, a copy of which is attached hereto as Exhibit 1.
The fact that Mr. Ugwuonye was able to, and did, file a motion for an extension of time in one case pending before this Court establishes that, at a minimum, he could have (but chose not to) file a motion for extension of time to oppose the Cross-Motion.
Therefore, Mr. Ugwuonye has no excuse for disregarding the Court’s deadline to oppose the Cross-Motion.
Furthermore, in the motion for extension of time that Mr. Ugwuonye did choose to file, he cited the following reasons for needing an extension of time:
Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 4 of 95
• “Unusually demanding pressure from other docket commitments in both this Court and the Maryland District”
• “[T]he pressures of getting his two teenage children back to school in the last week of August.”
Exhibit 1 at 1. Mr. Ugwuonye’s justification for needing an extension of time in his separate lawsuit before the Court vary from the excuses he now makes for failing to file an opposition to the Cross-Motion. Therefore, the Court should view Mr. Ugwuonye’s current excuses with skepticism.
B. Mr. Ugwuonye Has Acted in Bad Faith
The fourth factor in the excusable-neglect analysis is good faith. In re Douglas, No. 10- cv-492 (JDB), 2012 U.S. Dist. LEXIS 86604 at *3 (D.D.C. June 22, 2012). Here, the proceedings to date in this action do not evidence good faith. To the contrary, they evidence Mr.Ugwuonye’s consistent disregard for the Rules and Orders of this Court, particularly with respect to the Court’s deadlines. Rather than file papers in a timely manner, Mr. Ugwuonye’s past practices in this action show that he meets only the deadlines he arbitrarily sets for himself. The Embassy submits the following examples for the Court’s consideration.
First, on April 4, 2012, the Court ordered the parties to submit a Joint Status addressing a number of questions regarding the status of the proceeding. The Court ordered that the Joint Status Report be filed within fourteen days of the order, i.e., on April 18, 2012. While Mr. Ugwuonye, through his former counsel, joined the status report the parties filed on April 18, 2012, Mr. Ugwuonye also chose to unilaterally, and without leave of Court, file a separate status report and an amended status report on April 26, 2012.
Second, on September 20, 2011, in response to Mr. Ugwuonye’s Counterclaim, the Embassy filed a Motion to Dismiss. Dkt. No. 43 (the “Motion to Dismiss Counterclaim”). Mr. Ugwuonye’s response was due on October 17, 2011. However, during the entire six months that Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 5 of 96
the Motion was pending, Mr. Ugwuonye never opposed it. On April 19, 2012, the Court treated the Motion to Dismiss as unopposed and granted it. See April 19, 2012 Minute Order. Mr. Ugwuonye’s failure to oppose the Motion to Dismiss Counterclaim was, simply, without justification. When Mr. Ugwuonye moved for reconsideration of the Order granting the Embassy’s Motion to Dismiss, he cited as an excuse that he had “lost track of the docket of this case[.]” See Motion for Reconsideration (Dkt. No. 60) at 2-3; Ning Ye v. Holder, 644 F.Supp.2d 112, 116 (D.D.C. 2009) (noting that “plaintiff is a practicing attorney so there is no reason to
afford him the latitude ordinarily accorded to the typical pro se plaintiff”); Klayman v. Barmak, 2009 WL 4722803, at *1 (D.D.C. Dec. 4, 2009) (explaining that pro se plaintiff, an experienced attorney, could not claim to have lacked fair notice of the consequences of failing to respond to a motion for summary judgment; granting opposing party’s motion).
Third, at the June 26, 2012 hearing on Mr. Ugwuonye’s Motion for Reconsideration, the Court granted the motion and afforded him until July 10, 2012 to oppose the Embassy’s Motion to Dismiss. July 10, 2012 came and went without any filings in this action. Only the next day, on July 11, 2012, did Mr. Ugwuonye file an opposition to Plaintiff’s Motion to Dismiss.
Finally, during the same June 26, 2012 hearing, the Court afforded Mr. Ugwuonye the opportunity to file a Motion to Dismiss ECU Law Group and ECU Associates by July 10, 2012.
Again, this deadline came and went without any filing. More than two weeks after the Courtordered deadline had elapsed, Mr. Ugwuonye filed a Motion to Dismiss or in the Alternative, for Summary Judgment with regard to Defendants ECU Associates, P.C. and ECU Law Group on July 27, 2012 (“Motion to Dismiss”). See Dkt. No. 76. The Motion to Dismiss was filed in violation of the Court’s Order, and without seeking an extension of time or leave of the Court to file out of time.
Case 1:10-cv-01929-BJR Document 82 Filed 09/14/12 Page 6 of 97
On August 13, 2012, the Embassy opposed Mr. Ugwuonye’s untimely Motion to Dismiss and cross-moved for default judgment against the defendants ECU Associates, P.C. and ECU Law Group. The opposition to the Embassy’s Cross Motion was due on August 30, 2012.
Consistent with his established record in this case, Mr. Ugwuonye let the deadline for filing an opposition come and go.
Mr. Ugwuonye’s actions throughout the prosecution of this case indicate that his failure to timely file an opposition was not in good faith. This factor weighs against granting leave to file an opposition out of time.
C. The Remaining Factors Do Not Weigh in Favor of Granting the Application or are at Best Neutral The remaining factors in the excusable-neglect analysis are the danger of prejudice to the Embassy and the length of the delay and its potential impact on judicial proceedings.
In re Douglas, No. 10-cv-492 (JDB), 2012 U.S. Dist. LEXIS 86604 at *3 (D.D.C. June 22, 2012). Of course, by accepting the opposition, the Embassy would be prejudiced to the extent that its Cross-Motion is opposed. Mr. Ugwuonye’s delay in filing is approximately two weeks, which is unlikely to have a significant impact on these proceedings.
While the final two factors may not weigh strongly in favor of denying Mr. Ugwuonye’s Application, they are outweighed by the fault and good-faith factors. The Institute for Policy Studies case is informative in this regard. There, the motion to file out of time was a consent motion, making clear that there was no prejudice whatsoever, and the delay was the same, approximately two weeks. In addition, the Court found that “there is no reason to believe that defendant acted in bad faith.”
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Institute for Policy Studies, 246 F.R.D. at 383. Based on the importance of the fault factor alone, however, this Court rejected the late filing, finding that the fault factor made any neglect inexcusable. Id. The Court has an even stronger basis for rejecting Mr. Ugwuonye’s Application than was present in Institute for Policy Studies.
For the aforementioned reasons, the Embassy respectfully requests that the Court deny Defendant Ugwuonye’s Application for Leave to File His Opposition to Plaintiff’s Cross-Motion for Default Judgment Against Defendants ECU Associates, P.C. and ECULAW Law Group Out of Time.