Doe v. Buratai, Civil Action No. 17-1033 (DLF)

318 F.Supp.3d 218

DOE 1, et al., Plaintiffs,

v.Tukur Yusuf BURATAI, et al., Defendants.

Civil Action No. 17-1033 (DLF)

United States District Court, District of Columbia.

Signed July 19, 2018

Bruce Fein, Fein & Devalle PLLC, Washington, DC, for Plaintiffs.

Anthony O. Egbase, A.O.E. Law & Associates, Los Angeles, CA, Jude Chinedu Iweanoge, The Iweanoges' Firm, P.C., Washington, DC, Charles U. Enweonwu, Pro Hac Vice, Chukwuma K. Uwechia, Pro Hac Vice, Uwechia & Enweonwu, Brooklyn, NY, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District JudgeThe plaintiffs in this case are Nigerian nationals who allege that the defendants—officials in the Nigerian government, military, and police—brutally tortured and killed peaceful protesters. Before the Court are the defendants' Motions to Dismiss. Dkt. 35; Dkt. 36. Because the Court lacks personal jurisdiction over the defendants and lacks subject-matter jurisdiction over the action, the Court must grant the motions and dismiss this action.

I. BACKGROUND

This suit arises from a long-running intra-Nigerian conflict between the Nigerian government and Biafrans, who are people of predominantly Igbo ethnicity and Christian religion who have sought secession from Nigeria for decades. See Compl. ¶¶ 44–47, Dkt. 1. Biafra declared independence in 1967, resulting in the Nigerian Civil War, but Biafra was reintegrated into Nigeria in 1970. See Dkt. 39-1 at 6, 11. The independence movement persisted, however, as did clamp-down efforts by the Nigerian government and its military, which is dominated by Nigerians of Hausa-Fulani ethnicity and Muslim religion. See Compl. ¶¶ 45–46.

On January 18, 2016, a pro-Biafran organization, the Indigenous People of Biafra, held a protest at the National High School in Aba, Abia State, Nigeria. Id. ¶¶ 22, 179. Nigerian military and police forces allegedly "fired into the private observation and peaceful protest." Id. ¶ 179. On February 9, 2016, the Indigenous People of Biafra organized another gathering at the National High School. Id. ¶¶ 57–58. When the participants gathered for morning prayers, Nigerian military and police forces allegedly "stormed the high school campus, scaled the fences, and began to indiscriminately shoot the assemblage." Id. ¶¶ 56–60. According to the complaint, more than thirty members of the Indigenous People of Biafra were fatally or critically wounded ; many more were arrested and tortured. Id. ¶ 60.

On May 29, 2016, hundreds of pro-Biafran Igbo Nigerians travelled to Onitsha, Anambra State, Nigeria. Id. ¶ 51. They planned to participate the next day in Biafran Patriots Day events, planned by the Indigenous People of Biafra to commemorate Biafra's 1967 declaration of independence. See id. ¶ 49. That night, Nigerian military and police forces allegedly attacked Igbo Nigerians sleeping in St. Edmund's Catholic Church. Id. ¶ 51–52. Using tear gas and live ammunition, the attackers "kill[ed] and injur[ed] many as they slept." Id. On May 30, the military and police forces allegedly "returned to slaughter more ethnic Igbos." Id. ¶ 53.

The ten plaintiffs sued on the following Biafran Patriots Day—May 30, 2017, id. at 53, and the Court permitted them to proceed anonymously to avoid retaliation, see Dkt. 4. The plaintiffs are Nigerian nationals. See Compl. ¶ 1. Four plaintiffs (John Does 6 through 9) are legal representatives of alleged victims of extrajudicial killings caused by the attacks in Abia State on January 18 and February 9, 2016. Id. ¶¶ 142–86. Five plaintiffs (John Does 1 through 5) are legal representatives of alleged victims of extrajudicial killings caused by the attacks in Anambra State on May 29-30, 2016, id. ¶¶ 79–141, and one plaintiff (John Doe 10) was allegedly tortured himself after being detained during those attacks, id. ¶¶ 187–99. The plaintiffs assert claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victims Protection Act of 1991, which provides a civil cause of action to victims of torture and extrajudicial killings:

Sec. 2. Establishment of Civil Action.

(a) Liability.—An individual who, under actual or apparent authority, or color of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.

Pub. L. No. 102–256, § 2(a), 106 Stat 73, 73 (Mar. 12, 1992) (codified as a note to 28 U.S.C. § 1350 ).¹

As defendants, the complaint names sixteen members of the Nigerian government, military, and police who allegedly "conspired and agreed that killings of Biafran civilians were necessary to quash political opposition ... and to terrorize the population." Compl. ¶ 63. Accordingly, they planned, directed, and executed the attacks against Igbo Nigerians; the Nigerian military and police forces who perpetrated the torture and extrajudicial killings "act[ed] under the command of, in conspiracy with, and/or as the agent of one or more of the Defendants." Id. ¶ 65. In particular, the defendants are:

• Lieutenant General Tukur Yusuf Buratai – Chief of Staff of the Nigerian Army, Compl. ¶¶ 12–13;

• Lawal Musa Daura – Director General of the Nigerian State Security Service, id. ¶¶ 14–15;

• Major General Ibrahim Attahiru – Commander of the 82nd Division of the Nigerian Army, id. ¶¶ 16–18;• Major M.I. Ibrahim – Commander of the Nigerian Military Police in Onitsha and Abia State, Nigeria, id. ¶¶ 19–21;²

• Lieutenant Colonel Kasim Umar Sidi – Commander of the 144th Battalion of the Nigerian Army, id. ¶¶ 22–24;

• Colonel Issah Maigari Abdullahi – Commander of the 302 Artillery Regime of the Nigerian Army and the Onitsha Military Cantonment in Anambra State, Nigeria, id. ¶¶ 25–30;

• Solomon Arase – Inspector General of the Nigerian Police Force (until his retirement on June 21, 2016), id. ¶¶ 31–32;

• Ibrahim Kpotun Idris – current Inspector General of the Nigerian Police Force (Arase's successor), id. ¶¶ 33–34;

• Okezie Victor Ikpeazu – Governor of Abia State, Nigeria, id. ¶ 35;

• Willie Obiano – Governor of Anambra State, Nigeria, id. ¶ 36;

• Habila Hosea – Commissioner of the Nigerian Police Command for Abia State, Nigeria during the alleged attacks (now the Deputy Inspector General of the Nigerian Police Force), id. ¶ 37;³

• Peter Nwagbara – Assistant Commissioner of the Nigerian Police Command for Abia State, Nigeria, id. ¶ 38;

• James Oshim Nwafor – Chief Superintendent of Police and Officer-in-Charge of the Special Anti-Robbery Squad of the Nigerian Police Command for Anambra State, Nigeria, id. ¶ 39;

• Hassan Karma – Commissioner of the Nigerian Police Command for Anambra State, Nigeria, id. ¶ 40;

• Bassey Abang – Chief Superintendent of Police and Officer-in-Charge of the Special Anti-Robbery Squad for Anambra State, Nigeria, id. ¶ 41;

• Johnson Babatunde Kokomo – Deputy Commissioner of Police in charge of operations in Anambra State, Nigeria, id. ¶ 42.

In approximately August 2017, the Nigerian government—acting through its embassy in the United States—transmitted a diplomatic note to the U.S. Department of State requesting a suggestion of immunity for the defendants. See Manu Decl. ¶¶ 3–5, Dkt. 36-2; see also Dkt. 41-1 at 7–10. According to the request, "the Nigerian Government categorically disputes the Plaintiffs' claims and their characterization of the facts and further denies that the Defendants committed any wrongdoing or violated Nigerian, United States, or international law," and the defendants "are current or former government officials [who] are being sued with respect to their authorized official actions, not their unauthorized personal actions." Manu Decl. ¶ 6. The request further states:

The lawsuit appears to challenge actions taken by officials of the Nigerian Government to defend Nigeria's unity, preserve internal security, maintain law, order and public safety, and preserve its territorial integrity. Those acts are attributable to the Government of Nigeria and were therefore performed in an official capacity.

By expressly challenging Defendants' exercise of their official powers as head and officers of the Nigerian Army, heads and officers of the Nigerian Police Force, head of the Department of State Security Services and Executive State Governors, respectively, Plaintiffs' claims challenge Defendants' exercise of their official powers as officials of the Government of Nigeria. Moreover, the acts for which Defendants are sued are acts that could only be carried out in exercise of the powers of their respective offices.

The Nigerian Government attaches importance to obtaining prompt dismissal of the proceedings against its current and former officials in view of the significant foreign policy implications of such an action. This is [in] view of the fact that the action appears to be a politically-motivated effort to evoke and abuse the judicial processes of the United States to achieve political ends antagonistic to the unity and integrity of the Federal Republic of Nigeria.

Id. Accordingly, "the Government of Nigeria respectfully request[ed] that the United States Government promptly submit a suggestion of immunity in the Doe v. Buratai action." Id.

On September 2, 2017, Anthony O. Egbase—purportedly on behalf of all defendants—waived service, thus triggering a 90-day deadline by which the defendants were required to respond to the complaint. Dkt. 31; see also Fed. R. Civ. P. 4(d)(3) ; Dkt. 27 (Egbase notice of appearance). Two weeks before the response was due, however, Jude C. Iweanoge entered an appearance on behalf of one defendant, Willie Obiano. Dkt. 32. According to Obiano, Egbase was retained by the Attorney General of the Federal Republic of Nigeria to represent all of the defendants, but Obiano did not know about or authorize Egbase's appearance for Obiano or the waiver of service filed by...