Republic of Liberia v. Bickford

• Decision Date: 28 July 1992
• Docket Number: No. 91 Civ. 6887 (KC).,91 Civ. 6887 (KC).
• Citation: 787 F. Supp. 397
• Parties: The REPUBLIC OF LIBERIA and the Liberian Mining Corporation, Inc., Plaintiffs, v. Nathaniel J. BICKFORD, Esq. and Lankenau, Kovner & Bickford, a partnership organized under the laws of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

787 F. Supp. 397

The REPUBLIC OF LIBERIA and the Liberian Mining Corporation, Inc., Plaintiffs, v. Nathaniel J. BICKFORD, Esq. and Lankenau, Kovner & Bickford, a partnership organized under the laws of New York, Defendants.

No. 91 Civ. 6887 (KC).

United States District Court, S.D. New York.

March 24, 1992.

As Amended July 28, 1992.

Kathleen Milton, Reichler & Soble, Washington, D.C., and Jeffrey C. Slade, Meister, Leventhal & Slade, New York City, for plaintiffs.

Peter Contino, Rivkin, Radler & Kremer, Uniondale, N.Y., Peter C. Sprung, Asst. U.S. Atty., S.D.N.Y., and Lester S. Hyman, Swidler & Berlin, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

CONBOY, District Judge:

Shortly before the civil war in Liberia that began in December, 1989, plaintiff, the wholly state-owned Liberian Mining Corporation ("LIMINCO"), retained as United States legal counsel defendants Nathaniel J. Bickford and Lankenau, Kovner and Bickford (collectively "Bickford"). Bickford also acted as U.S. counsel to plaintiff, the Government of Liberia, in connection with mining matters at the request of the Minister of Justice of Liberia. In its capacity as counsel to the Liberian Government, Bickford received certain property on behalf of the Republic of Liberia. Plaintiffs allege that such property includes certain monies amounting to $1,681,000 paid to LIMINCO on June 20 and 21, 1990.

In their action against Bickford, plaintiffs move for judgment on Counts I and II on the pleadings, or, in the alternative, partial summary judgment. Count I of plaintiffs' action demands an accounting of certain chattel allegedly in the hands of defendants. Count II of the plaintiffs' action is for the recovery of this chattel.

The plaintiffs are represented in this action by counsel to the Interim Government for National Unity of the Republic of Liberia ("Interim Government"). Claiming to be the legitimate representative of the Republic of Liberia and LIMINCO, the National Patriotic Reconstruction Assembly Government ("NPRAG") moves to intervene in this action.

Bickford moves to stay plaintiffs' action and to dismiss Count III pursuant to Federal Rule of Civil Procedure 12(b)(6). In Count III, plaintiffs seek damages for defendants' alleged conversion of the chattel.

I. FACTS

A. Background

The following account of the political status of Liberia is derived from the statement of interest in this case filed by the United States Government:

In December, 1989, a civil war broke out in Liberia when forces from a group calling itself the National Patriotic Front of Liberia, led by Charles Taylor, invaded Liberia from the Ivory Coast to attack targets in northeastern Liberia. The Armed Forces of Liberia, under the direction of then-President Samuel K. Doe, sent troops to confront the insurgents. Over the next several months, the insurgency spread throughout Liberia.

In August, 1990, Liberian political parties and interest groups held a conference in Banjul, The Gambia, in order to support the implementation of a peace plan proposed by the Economic Community of West African States ("ECOWAS") Standing Mediation Committee. The United States has supported the implementation of the ECOWAS peace plan.

The Interim Government was formed at the Banjul conference, and Amos Sawyer was named as president of the Interim Government. In late August or early September, 1990, the Economic Community of West African States Military Observer Group ("ECOMOG") sent a five-nation West African peace-keeping force to Monrovia.

On September 12, 1990, President Doe was killed and his government collapsed. The Interim Government entered Monrovia in late November, 1990, and in coordination with ECOMOG, began gradually to assert administrative and political control over the ravaged city.

From March 15 to April 20, 1991, an All-Liberia National Conference was held in Virginia, Liberia, pursuant to the ECOWAS peace plan. Liberian political parties, interest groups, and rival factions, as well as observers from the ECOWAS Standing Mediation Committee, United Nations, Organizations of African Unity, diplomatic corps, and international press, attended the conference. Although delegates representing NPRAG walked out of the conference on March 27, 1991, the conference continued to its conclusion on April 20, at which time it reelected Amos Sawyer as president of the Interim Government.

Throughout 1991, the Interim Government represented Liberia at meetings of ECOWAS, the Organization of National Unity, and the United Nations. President Sawyer travelled to the United States in September and October of 1991, where he was received by the Acting Secretary of State in Washington and, as Liberia's Head of State, delivered an address to the United Nations' General Assembly in New York.

The Court notes that throughout 1991 in at least three lawsuits, the United States has filed statements of interest pursuant to 28 U.S.C. § 517 stating that it was consistent with the foreign policy of the United States for the Interim Government to present claims and defenses on behalf of the Government of Liberia in those disputes. Plaintiffs' Exhibits A, B, and G. The Court also notes that on November 24, 1986, Her Excellency Eugenia A. Wordsworth-Stevenson presented her credentials to the President of the United States, and that, according to counsel, she has continued to be accredited as the Ambassador of the Republic of Liberia to the United States. Plaintiffs' Exhibit C.

B. Defendants' Account of the Transfer of Funds from the Government of Liberia to Defendant

Bickford asserts without affidavit or exhibit that in June, 1990, then-Liberian Minister of Finance Emanuel Shaw II, gave the money in dispute to Bickford for safekeeping until a new Liberian government was established. In Shaw's letter to Bickford, Shaw purportedly asserted that he retained authority over the disputed funds at least until a new Liberian government received the formal recognition of the governments of certain enumerated countries.

C. The Written Exchanges Between the Parties to this Action

On February 22, 1991, Interim Government Minister of Finance S. Byron Tarr wrote a letter to Bickford, in which Tarr stated that LIMINCO expressly disavowed any prior authorization that Bickford may have received to act on behalf of LIMINCO or to dispose of any funds or assets belonging to LIMINCO or the Liberian Government. Tarr also wrote that Bickford was not authorized to transfer or dispose of the $1,681,000 held by Bickford, and that LIMINCO and the Liberian Government would hold Bickford responsible for unauthorized disposition of the money. Tarr also indicated that the Interim Government's attorneys were members of the firm of Reichler & Soble. Defendants' Exhibit E.

On February 25, 1991, Bickford wrote to Tarr to explain Bickford's inability to make the final determination as to the claims of any of the contestants for legitimacy as the government of the Republic of Liberia. Bickford stated that the decision as to which government was entitled to the funds "must be made by others...." Defendants' Exhibit F.

On May 24, 1991, Tarr wrote Bickford to renew Tarr's request for an accounting and freezing of the money controlled by Bickford. Tarr also added requests for access to records on Bickford's dealings on behalf of the Republic of Liberia. Tarr attached to the letter a statement of the interest of the United States pursuant to 28 U.S.C. § 517 with respect to an unrelated matter in a federal district court in New Jersey, in which matter the Government of Liberia was a party. The statement of interest said, among other things,

in the present case, it would be consistent with the foreign policy interests of the United States for this Court to confer standing upon the Interim Government to present claims and defenses for the defendant the Republic of Liberia for the purposes of resolving the instant action. Defendants' Exhibit G.

On October 15, 1991, the Republic of Liberia and LIMINCO filed the instant action. On November 20, 1991, the Court held a pre-motion conference at which all the parties to the instant action, as well as counsel to the NPRAG, were present. At the pre-motion conference, counsel for NPRAG stated that he disagreed with plaintiffs' argument that the Interim Government was the appropriate representative in the instant action by virtue of the U.S. Department of State's earlier statements of interest in the above-mentioned New Jersey action and other actions in which the Republic of Liberia was a party. Counsel for NPRAG argued that those actions did not involve Liberia's recovery of assets and, therefore, differed from the instant action. Transcript of November 20, 1991 pre-motion conference, attached to letter of the Court to the Honorable Edwin D. Williamson Dated December 31, 1991, at 21.

On December 31, at the parties' request, the Court sent a letter to the Honorable Edwin D. Williamson, the legal advisor of the United States Department of State. The letter requested the Department of State to "submit a statement to this Court setting forth its views on the standing issues raised by the enclosed transcript" of the pre-motion conference held on November 20, 1991. The Court sent copies of the letter to counsel.

On January 24, 1992, the United States filed a statement of interest in this action. The statement was virtually identical to the above-referenced statement filed in the action in the district court in New Jersey in 1991; the United States endorsed the Interim Government's standing in the instant action and made no mention of NPRAG's potential standing.

II. DISCUSSION

A. Plaintiffs' Motion for Partial Summary Judgment, NPRAG's Motion to Intervene, and Bickford's Motion for Stay of the Action

It is well established that "who is the sovereign, de jure, or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive...