Habyarimana v. Kagame
|28 October 2011
|821 F.Supp.2d 1244,80 Fed.R.Serv.3d 1380
|1) Madame HABYARIMANA, in her own capacity an don behalf of the estate of the deceased President of Rwanda, Juvénal Habyarimana; 2) Madame Ntaryamira; in her own capacity and on behalf of the estate of the deceased President of Burundi, Cyprien Ntaryamira; Plaintiffs, v. 1) General Paul KAGAME; 2) James Kabarebe; 3) Faustin Nyamwasa Kayumba; 4) Charles Kayonga; 5) Jackson Nkurunzia, a.k.a. Jack Nziza; 6) Samuel Kanyemera, a.k.a Sam Kaka; 7) Rose Kabuye; 8) Jacob Tumwine; 9) Franck Nziza; and 10) Eric Hakizimana; Defendants.
|U.S. District Court — Western District of Oklahoma
[821 F.Supp.2d 1246]
John P. Zelbst, Zelbst Holmes & Butler, Lawton, OK, for Plaintiffs.
Michael S. Cryan, Pierre R. Prosper, Robert C. O'Brien, Roy Z. Silva, Arent Fox–Los Angeles, Los Angeles, CA, William A. Edmondson, Gable & Gotwals, Oklahoma City, OK, for Defendants.
On April 29, 2010, the plaintiffs filed their complaint alleging a number of federal and state-law claims including wrongful death, crimes against humanity, and torture. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, they had 120 days from that date in which to serve all defendants with a summons and a copy of the complaint. When that time ran without any return of service being filed, and without any other action being taken, the Court ordered the plaintiffs to show cause why their complaint should not be dismissed.
[821 F.Supp.2d 1247]
In their response, the plaintiffs conceded that they had failed to serve all defendants except Mr. Kagame. They argued that they had indeed served Mr. Kagame pursuant to Rule 4(e) of the Federal Rules of Civil Procedure and 12 Okla. Stat. § 2004(C). In its order dated September 2, 2010, the Court found that pursuant to Tenth Circuit authority, it was premature to consider whether service over Mr. Kagame had been effected. By order entered January 26, 2011, the Court gave the plaintiffs additional time to respond to its show cause order and the plaintiffs responded by seeking and obtaining a Clerk's Entry of Default against Mr. Kagame, and by filing the motion for default judgment (docket entry no. 9) which is now before the Court.
Upon learning of the Clerk's Entry of Default, Mr. Kagame appeared for the purpose of opposing the motion for default judgment, moving to strike and set aside the Clerk's Entry of Default (docket entry no. 19), moving to dismiss the complaint or stay the matter pending action by the United States Department of State (docket entry no. 18), and moving to correct the caption to reflect Mr. Kagame's status as the recognized president and current head of state of the Republic of Rwanda (docket entry no. 20). In response, the plaintiffs filed their Motion to Strike Defendant's Pleadings and Memorandum in Opposition to Motion to Dismiss. Pursuant to LCvR 7.1(c), “[a] response to a motion may not also include a motion ... made by the responding party.” Because the response filed by the plaintiffs violates LCvR 7.1(c)'s proscription against incorporating a motion into a response, said motion shall be stricken from the response and regarded as of no legal consequence.1 Although the plaintiffs' response is styled as a response to only Mr. Kagame's motion to dismiss, it appears also to address his motion to set aside the Clerk's Entry of Default. In any case, time for response has passed and the Court renders its ruling based upon the submissions properly before it.
As this litigation is yet in its earliest stages and the parties entertain dramatically divergent accounts of important events, the Court is hesitant to attempt even a broad outline of Rwanda's tragic recent history. According to the complaint, plaintiff Madame Habyarimana is the widow of the deceased president of Rwanda, Juvénal Habyarimana, and plaintiff Madame Ntaryamira is the widow of the deceased president of Burundi, Cyprien Ntaryamira. The plaintiffs sue on their own capacity and on behalf of the estates of their late husbands. They contend that in the early 1990s, Rwandan ethnic Tutsi expatriates formed a guerilla military unit intent on overthrowing the Rwandan government. This unit, the Rwandan Patriotic Army (the “RPA) was led by defendant Paul Kagame, the remaining defendants, according to the plaintiffs, were under his authority. The plaintiffs allege that in early 1994, the defendants planned and executed the assassination of Juvénal Habyarimana and Cyprien Ntaryamira.
It is undisputed that Juvénal Habyarimana and Cyprien Ntaryamira died on April 6, 1994, when the Rwandan Presidential jet airplane in which they were passengers exploded on its approach to
[821 F.Supp.2d 1248]
Kanombe International Airport in Kigali, Rwanda. The plaintiffs allege that upon the direct command of Mr. Kagame, defendants Franck Nziza and Eric Hakizimana fired SAM–16–type surface-to-air missiles at the plane, destroying it in flight. The plaintiffs further allege that the assassination of the Rwandan and Burundian presidents was intended by the defendants to incite Rwanda's Hutu ethnic majority to undertake “bloody reprisals against the Tutsi community” offering “a veneer of legitimacy for [Mr. Kagame's] renewal of hostilities and his seizing of State power in Rwanda by criminally violent means.” See Complaint at ¶¶ 4–9.
Mr. Kagame counters that for the past 16 years, the United Nations and numerous governmental bodies have investigated the cause of the plane crash but have failed to reach a conclusion. He argues that the authoritative report on the matter was issued by an “Independent Committee of Experts,” which concluded that “the plane was shot down from Kanombe Military Barracks by elements of the Rwandan Armed Forces which controlled that zone (and not by the RPF).” See Opening Brief in Support of Motion to Dismiss for Lack of Jurisdiction, Foreign Sovereign Immunity, Lack of Prosecution, and Insufficient Service of Process, or Stay Case; Strike and Set Aside Default; Response in Opposition to Motion for Default Judgment; Amend and Correct Caption; and Request for Judicial Notice Filed by Defendant His Excellency President Paul Kagame (hereafter simply the “Opening Brief”) at p. 6, see also Exhibit 24 to Opening Brief. According to Mr. Kagame, Hutu extremist soldiers are responsible for the plane crash which was instantly seized upon as an excuse for the Hutu majority to perpetrate a genocide against Tutsi and moderate Hutu Rwandans.
The Court first addresses Mr. Kagame's request that the Court take judicial notice of the fact that he is the president and current head of state of the Republic of Rwanda. Mr. Kagame offers a copious collection of articles from established news organizations, encyclopedia entries, and documents published and relied upon by the government of the United States, all reflecting the well-established and commonly-known fact that Mr. Kagame is recognized to be the current president of Rwanda. Included among the materials collected by the defendant is what is sworn to be a true and correct copy of the U.S. State Department Bureau of African Affairs' “Background Note: Rwanda,” published January 3, 2011, which recognizes Paul Kagame to be the duly elected president of Rwanda. See Exhibit 1 to Declaration of Michael S. Cryan, attached as Exhibit E to Opening Brief.
Federal Rule of Evidence 201(b) states: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The defendant's status as the current president of Rwanda is not disputed by the plaintiffs. The Court takes notice that the defendant is recognized to be the current president and head of state of the Republic of Rwanda. The defendant President Paul Kagame's motion to correct the caption of this case should, therefore, be granted.
[821 F.Supp.2d 1249]
2. The plaintiffs have failed to establish that they effectively served President Kagame with process.
As discussed in the Court's January 26, 2011 order, prior to the filing of a motion for default judgment, it is generally improper for a district court to “ sua sponte consider defects in personal jurisdiction on behalf of parties who may choose to waive the defects or subject themselves to the court's jurisdiction ...” Williams v. Life Sav. and Loan, 802 F.2d 1200, 1203 (10th Cir.1986). Thus, the Tenth Circuit Court of Appeals has held that a district court may not dismiss an action sua sponte for lack of personal jurisdiction except when a default judgment is to be entered. Id. At the time the plaintiffs responded to the Court's show cause order, the defendants had neither appeared nor responded to the plaintiffs' complaint. That failure to appear, however, did not amount to a waiver of jurisdictional issues. Id., see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 225 (10th Cir.1979). Once the plaintiffs obtained the Clerk's Entry of Default and moved for default judgment, there arose an affirmative duty on the part of the Court, to investigate its jurisdiction over both the parties and the subject matter. Williams at 1203. “In reviewing its personal jurisdiction, the court does not assert a personal defense of the parties; rather, the court exercises its responsibility to determine that it has the power to enter the default judgment.” Id.
Although the plaintiffs' motion for default judgment triggered the Court's independent obligation to examine its jurisdiction over President Kagame regardless whether he appeared and challenged the plaintiff's purported service of the complaint, President Kagame has now come forward to challenge the Court's...
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