Gomes v. ANGOP

Decision Date22 August 2012
Docket Number11-CV-0580 (DLI) (JO)
PartiesJOAO CARLOS SALVADOR GOMES, pro se, Plaintiff, v. ANGOP, Angola Press Agency, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

DORA L. IRIZARRY, U.S. District Judge:

On December 29, 2010, pro se1 plaintiff Joao Carlos Salvador Gomes ("Plaintiff") commenced this action against ANGOP, Angola Press Agency ("ANGOP"), the Republic of Angola, owner of ANGOP ("Angola"), Embassy of the Republic of Angola in the United States of America (the "Embassy"), Ministry of Social Communication, Angola ("Ministry of Communication"), Ministry of Finance, Republic of Angola ("Ministry of Finance"), Ministry of External Relations (Foreign Affairs), Angola ("Ministry of Foreign Affairs," together with Ministry of Communication and Ministry of Finance, the "Ministries"), Mr. Jose Eduardo dos Santos, President of the Republic of Angola ("President dos Santos"), Mrs. Josefina Pitra Diakité, Ambassador of the Republic of Angola in the United States of America ("Ambassador Diakité" or the "Ambassador"), Ms. Carolina Cerqueira, Minister of Social Communication of the Republic of Angola ("Cerqueira"), Mr. Carlos Alberto Lopes, Minister of Finance of the Republic of Angola ("Lopes"), Mr. George Chicoty, Minister of External Relations (ForeignAffairs), Angola ("Chicoty," together with Cerqueira and Lopes, the "Ministers"), Mr. Manuel da Conceição, Director of ANGOP ("Conceição") and ANGOP Editorial Staff (collectively, "Defendants"), by filing a Summons with Notice in New York State Supreme Court, Queens County, alleging Defendants defamed and otherwise injured Plaintiff when, on multiple occasions, ANGOP published on its website a photograph of Plaintiff with a caption identifying him as Jose Americo "Bubo" Na Tchuto, Head of the Navy of Guinea-Bissau (the "Na Tchuto Photograph"), who at the time of the publication was allegedly wanted internationally for, inter alia, "drugs trafficking . . . money laundering, attempted murder of a Head-of-state and, desertion[.]" (See Doc. Entry No. 1, Ex. A ("Summons with Notice") at 5.) On February 4, 2011, Defendants properly removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and (d). (See Doc. Entry No. 1, Notice of Removal.)

Defendants now move, inter alia, to dismiss the complaint as to: (1) President dos Santos and Ambassador Diakité under Federal Rule of Civil Procedure 12(b)(2) ("Rule 12(b)(2)"), pursuant to head-of-state and diplomatic immunities; (2) Angola, the Embassy, the Ministries and ANGOP under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"), pursuant to the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1602 et seq.; and (3) the Ministers, Conceição, and ANGOP Editorial Staff, because they have been sued only in their official capacities and they are not the real parties in interest. (See Defs.' Mem of Law in Supp. of Mot. to Dismiss ("Defs.' Mem."), Doc Entry No. 12.) Plaintiff cross-moves, by way of a 505-page memorandum (the "Omnibus Memorandum"), consisting of 103 single-spaced pages of argument and 402 pages of exhibits: (1) opposing Defendants' motion to dismiss the complaint; (2) requesting the Court "Rescind the Notice of Removal" and remand the case back to the Queens County Supreme Court; and (3) seeking an Order lifting the stay of discovery imposed inthis case by U.S. Magistrate Judge James Orenstein. (See Doc. Entry No. 34 ("Pl.'s Omnibus Mem.").) Defendants oppose Plaintiff's cross-motions. For the reasons set forth below, Defendants' motion to dismiss is granted and Plaintiff's motions are denied. Accordingly, the complaint is dismissed in its entirety for lack of personal and subject matter jurisdiction.

I. Factual Allegations2

Plaintiff, originally from the Republic of Guinea-Bissau ("Guinea-Bissau"), is a writer and broadcast journalist based in the United States who has written and spoken extensively about, inter alia, politics and corruption in Guinea-Bissau and Angola. (Pl.'s Omnibus Mem. at 28, 32.) From 1995 to 1996, Plaintiff served as the Spokesman and Head of the Media Division for the United Nations Angola Verification Mission III, the United Nations Mission in charge of mediation of "the Angola Peace Process." (Id. at 32.) Plaintiff alleges the Angolan Government became hostile to him while he served as the Spokesman because he broadcasted television programs in Angola about, inter alia, official corruption and freedom of expression. (Id.) Plaintiff contends that the Angolan Government pressured the United Nations to dismiss Plaintiff from his Spokesman position because of his television broadcasts. (Id.)

Plaintiff further alleges that, as a continuation of the hostilities, on January 6, 2010, Defendants began publishing the Na Tchuto Photograph. (Id. at 28.) According to Plaintiff, Jose Americo "Bubo" Na Tchuto, Head of the Navy of Guinea-Bissau ("Na Tchuto") is an alleged international drug trafficker, international money launderer and arms trafficker and also is suspected of dealings with terrorist organizations. (Id.) On January 7, 2010, Plaintiff allegedly contacted ANGOP through its website and asked ANGOP to cease publication of the Na TchutoPhotograph. (Id. at 29.) Nonetheless, ANGOP allegedly continued publishing different articles about Na Tchuto while using the same photograph identifying Plaintiff as Na Tchuto up until at least April 1, 2010. (Id.) Plaintiff alleges Defendants published the Na Tchuto Photograph as a means to attack him because of his media legacy in Angola. (Id. at 30, 88.) Specifically, Plaintiff alleges Defendants have invested $500 million in bauxite mines in Guinea-Bissau, and that the multiple publications of the Na Tchuto Photograph were pre-emptive attacks meant to silence Plaintiff because of his role as a media professional and his known criticism of official corruption. (Id. at 44, 65, 74, 88.) Plaintiff further asserts that Defendants, in order to secure their investment in Guinea-Bissau, needed Na Tchuto's cooperation, as such, the publications of the Na Tchuto Photograph also were meant to gain Na Tchuto's cooperation by allegedly providing Na Tchuto with an alternative photographic identification, thereby allowing Na Tchuto to move around unrecognized by authorities. (Id. at 53, 69, 85.)

Plaintiff alleges that, on June 10, 2010, at a dinner party, he informed Ambassador Diakité of the Na Tchuto Photograph. (Id. at 31.) According to Plaintiff, Ambassador Diakité told him: "If the site in question is that of ANGOP, the government of the Republic of Angola will assume its responsibilities." (Id.) Plaintiff additionally asserts that Ambassador Diakité informed Plaintiff that the publications of the Na Tchuto Photograph may have been the action of an individual inside ANGOP who has a personal vendetta against Plaintiff. (Id.) Moreover, Plaintiff alleges that during a phone conversation with Ambassador Diakité on June 11, 2010, she blamed the publications on "pirates." (Id.)

II. Initiation of the State Action and Removal to Federal Court

On December 29, 2010, Plaintiff initiated this action against Defendants by filing a Summons with Notice in the Queens County Supreme Court. Plaintiff attempted to serveDefendants by sending a copy of the Summons with Notice to the Embassy via Federal Express ("FedEx"). (See Doc. Entry No. 1, Ex. B.) In the Summons with Notice, Plaintiff alleges:

defamation (libel); violation of right to privacy; harassment; negligence; threat to personal safety and life, through the unauthorized and multiple publication - by ANGOP (Angola Press Agency, the official news agency of the government of Angola) -of plaintiff's photographs and, false words, carried out with reckless disregard for its truth or actual malice on the internet, for commercial purposes (causing special damages).

(Summons with Notice at 5.) Plaintiff further alleges Defendants' multiple publications of the Na Tchuto Photograph placed Plaintiff "right in the middle of an extremely dangerous web of international intrigue and manhunt." (Id. at 6.) Plaintiff seeks $211 million from Defendants as compensation for "the actual and potential damages" caused by the publications of the Na Tchuto Photograph. (Id. at 6-7; Pl.'s Omnibus Mem. at 48.)

On February 4, 2011, Defendants filed a Notice of Removal, removing the action to this Court, pursuant to 28 U.S.C §§ 1441 (a) and (d). (See Doc. Entry No. 1.) On the same date, Defendants mailed a copy of the Notice of Removal to the Clerk of the Queens County Supreme Court ("Queens County Clerk") and to Plaintiff. (See June 23, 2011 Affirmation of Marjorie E. Berman ("Berman June Affirmation") ¶¶ 4, 5, annexed as Attachment A to Defs.' Opp'n to Pl.'s Mot. to Rescind Notice of Removal and for Remand to the State Court ("Defs.' Remand Opp'n"), Doc. Entry No. 26; see also Exs. B and C attached to Berman June Affirmation.) The Queens County Clerk filed the Notice of Removal on February 7, 2011. (Berman June Affirmation, Ex. B.) On February 14, 2011, the magistrate judge sent the parties a Scheduling Order that set an initial conference for March 17, 2011, and encouraged the parties to discuss possible settlement terms before the conference date. (See Doc. Entry No. 2.)

III. Proceedings Before the Magistrate Judge

During the March 17, 2011 Scheduling Conference, Defendants asserted that if a settlement could not be reached they would likely move to dismiss the complaint, in part, because Plaintiff allegedly failed to effect proper service on Defendants pursuant to the FSIA. (See Scheduling Conference Transcript dated March 17, 2011 ("Sched. Tr.") at 4-7, 21, Doc. Entry No. 29.) The magistrate judge questioned whether Defendants could remove the case if Defendants asserted they never were properly served in the first instance. (Id. at 5.) The magistrate judge therefore directed Defendants to submit a letter to the Court providing authority that a removal is proper...

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