TJGEM LLC v. Republic of Ghana

26 F.Supp.3d 1

TJGEM LLC, Plaintiff

v.Republic of Ghana, et al., Defendants.

Civil Action No. 13–382 BAH

United States District Court, District of Columbia.

December 31, 2013

Michael Lasley, Lasley & Associates, Washington, DC, for Plaintiff.

Creighton R. Magid, Dorsey & Whitney LLP, Harvey A. Levin, Thompson Coburn, LLP, Ronan J. McHugh, Bailey Law, P.C., Washington, DC, Juan C. Basombrio, Dorsey & Whitney LLP, Costa Mesa, CA, Steven D. Hedges, Conti International, LLC, Edison, NJ, David P. Niemeier, Richard E. Greenberg, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Robert J. Cynkar, Great Falls, VA, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff in this matter, TJGEM LLC, was not awarded an anticipated $595,000,000 no-bid contract to reconstruct the sewer system in Accra, the capital city of the Republic of Ghana (“Ghana”). See Pl.'s First Am. Compl. (“FAC”) ¶ 258. After the contract was awarded to a competing company, the plaintiff brought the instant suit against Ghana, the Accra Metropolitan Assembly (the “AMA”), and two Ghanaian government officials, Kwabena Duffuor and Alfred O. Vanderpuije (collectively, the “Ghana Defendants”); the firm that obtained the contract, Conti Group (“Defendant Conti”); the subcontractor for the sewer project, Kwame Building Group and two of its employees, Anthony T. Thompson and Craig Lucas (collectively, the “KBG Defendants”); and three brothers, Gideon, Mark, and Jonathan Adjetey (collectively, the “Adjetey Defendants”), who were founding members of TJGEM.¹ See FAC Part I.B ¶¶ 1–9.

Pending before the Court are eight motions related to three groups of defendants: the Defendant Conti's Motion to Dismiss (“Conti MTD”), ECF No. 40 and the plaintiff's Motion to Strike Defendant Conti's Motion to Dismiss, ECF No. 42; the Ghana Defendants' Motion to Dismiss (“Ghana Defs.' MTD”), ECF No. 51, and the plaintiff's Motion to Strike the Declarations filed with the Ghana Defs.' MTD, ECF No. 62; the plaintiff's Amended Motion to Stay, ECF No. 83; the KBG Defendants' Motion to Dismiss (“KBG Defs.' MTD”), ECF No. 53, and Motion to Join the Other Defendants' Oppositions to the plaintiff's Motion for Stay, ECF No. 92; and the plaintiff's Motion for Sanctions Against Defendant Vanderpuije, his defense counsel, Creighton R. Magid and Juan C. Basombrio, and Dorsey & Whitney, Defendant Vanderpuije's defense counsel's law firm (“Pl.'s Sanctions Mot.”), ECF No. 89. As explained below, the Court grants the Ghana Defendants' Motion to Dismiss, denies the plaintiff's Motion to Strike the Ghana Defendants' declarations and, consequently, dismisses this action in its entirety, rendering all but one of the remaining motions moot. That remaining motion, the plaintiff's Motion for Sanctions, is denied.

I. BACKGROUND

The plaintiff's FAC is a 216 page, rambling document containing numerous allegations of corruption and bribery in Ghana accompanied by 479 pages of exhibits, that, at the very least, tests the limits of Federal Rule of Civil Procedure 8(a)(2)'s requirement that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” See FAC; Pl.'s Errata, Exhibit List with Exhibits to FAC (“Pl.'s Exhibits”), ECF No. 31, generally. In order to address the Ghana Defendants' jurisdictional argument, which dooms the plaintiff's claims, a brief recitation of the pertinent facts from the FAC is necessary.

In 2010, Defendants Vanderpuije and Gideon Adjetey (“Gideon”), who were longtime friends, discussed “potential infrastructure development projects” in Ghana “that might be awarded to a company with whom Gideon might be affiliated or hold an interest.” FAC ¶¶ 5; 11.² Defendant Vanderpuije is the Metropolitan Chief Executive of the Accra Metropolitan District, a position akin to an appointed Mayor in the United States. Id. ¶ 4; Pl's Mem. Opp'n Ghana Defs.' MTD (“Pl's Opp'n”) at 14, ECF No. 63. Following the visit, Gideon contacted Elbert Walton (“Walton”), an attorney in St. Louis, Missouri, with a proposal to form a partnership to pursue such infrastructure projects. FAC ¶ 15. Walton suggested involving another partner, Anthony Weaver (“Weaver”), and Gideon assented. Id. ¶¶ 17–19. In January 2011, Walton and Weaver “organized a limited liability company, TJGEM, LLC in the state of Missouri as an infrastructure development company.” Id. ¶ 40. The three Adjetey Defendants, Gideon, Mark, and Jonathan, were to “make both a financial investment in the company and sign the operating agreement as members of the company and to jointly manage the company with Walton and Weaver.” Id. ¶ 42.

Over the next fourteen months, from January, 2011 through March, 2012, the plaintiff pursued a contract with the Ghanaian government to reconstruct the Accra sewer system, working closely with Defendant Vanderpuije. See id. ¶¶ 44–258. As part of these negotiations, the plaintiff's members and agents flew to Ghana on multiple occasions. See id. ¶¶ 44; 77; 168. During the negotiations, the plaintiff concedes it learned that “only the central government could contract for and finance the Accra sewer system project” and “under Ghana's constitution and statutes, the central government borrows funds and the central government by and through its cabinet level members enter [sic] into such contracts, subject to the approval of financing by parliament.” Id. ¶ 148; see also Pl's Opp'n at 10, (acknowledging Defendant Vanderpuije “misrepresented the AMA's authority in that the AMA did not have the power to enter into the sewer reconstruction contract and thus no contract was adopted by the AMA”).

Despite this concession, the plaintiff alleges that it was induced into providing Defendant Vanderpuije with contracts and a business plan that it characterizes as “trade secrets” based on Defendant Vanderpuije's assurances that “TJGEM would be granted a contract as the developer for the construction or reconstruction of the sewer system of Accra.” See FAC ¶¶ 98–102. The plaintiff notes that it provided the documents it classifies as “trade secrets” voluntarily to, inter alia, (1) Defendant Vanderpuije, id. ¶ 79; (2) “his staff of engineers, city manager, and city attorney[,]” id. ¶ 80; (3) the subcontractor retained for the project, Defendant KBG, see id. ¶ 89; (4) United States embassy personnel in Ghana, id. ¶ 164; (5) Ghana's Minister of Finance, Defendant Duffuor, id. ¶ 233; and (6) the commercial officer in the Ghanaian Embassy in Washington, D.C., id. ¶ 241. The plaintiff concedes that it did not submit a confidentiality agreement to Defendant Vanderpuije “in reliance on [Defendant] Gideon's representations as to the good faith and fairness of [Defendant Vanderpuije] and the need under Ghanaian custom to show trust in [Defendant Vanderpuije.]” Id. ¶ 86. The plaintiff does not plead that it ever asked anyone associated with the project to sign a confidentiality agreement. See id., generally. A similar failure to obtain a signed confidentiality agreement with Defendant Vanderpuije scuttled an earlier attempt to work with “a New York based company, KPP,” during the formation of TJGEM, see id. ¶¶ 30–35, and a loan broker the plaintiff discussed doing business with in Ghana, id. ¶ 110.

In pursuing the project, the plaintiff met with several Ghana government officials and sought financing from the Export–Import Bank of the United States for Ghana to fund the reconstruction. See id. ¶¶ 170–79; 201. The plaintiff alleges it was able to secure a loan from the Export–Import Bank for Ghana in the amount “of $587,937,500 to finance the sewer project upon Ghana entering into a contract with TJGEM as developer of the project and [Defendant] KBG as subcontractor to TJGEM on the project.” Id. ¶¶ 206; 223.

The plaintiff alleges that after it refused several requests for a bribe from Defendant Vanderpuije, see id. ¶¶ 114; 120; 129; 140; 191; 245–47, the Ghana Defendants sought and obtained a $10 million bribe from Defendant Conti to award the contract for the sewer project to Defendant Conti, id. ¶ 257. The plaintiff alleges that, based in part on the work the plaintiff had done, the Ghana Defendants awarded the project to Defendant Conti and signed a memorandum of understanding to that effect on March 9, 2012. Id. ¶ 258. Defendant Vanderpuije was a signatory on the contract between Defendant Ghana and Defendant Conti. Pl.'s Opp'n at 14. The plaintiff alleges that this amounted to a failure to follow Ghanaian law in procurement of government contracts and was only possible because of the alleged bribe. See id. ¶¶ 281–90.³

The plaintiff filed the instant suit on March 22, 2013, see Compl., ECF No. 1, and amended its complaint on July 24, 2013, see FAC. The FAC asserts seven claims for relief: (1) “Misappropriation and Conversion of Trade Secrets” against all defendants; (2) Tortious Interference with a Business Relationship against the Adjetey Defendants; (3) Tortious Interference with a Business Relationship against the KBG Defendants; (4) Tortious Interference with a Business Relationship against Defendant Conti; (5) RICO and Hobbs Act Violations against all defendants; (6) common law fraud against Defendant Vanderpuije and Defendant Duffuor; and (7) conspiracy to defraud against all defendants. See id. Part V ¶¶ 292–603. The plaintiff seeks from all defendants approximately $425 million in compensatory and punitive damages. See id. Part VI ¶¶ 1–9.

On the misappropriation claim, the plaintiff included in its list of exhibits attached to the pleading and filed on the public docket in this case, the documents it alleges to be the “trade secret” documents. See id. ¶ 301 (referencing Exhibits 1 and 9). The Ghana Defendants, Defendant Conti, and the KBG Defendants have moved to dismiss this action on numerous grounds. See Ghana Defs.' MTD; Conti MTD; KBG MTD, generally. The plaintiff's Motion for Sanctions against Defendant Vanderpuije and his attorneys is based upon exhibits...