De Sousa v. Embassy of the Republic of Angola, Civil Action No. 16–367 (BAH)

• Decision Date: 27 July 2017
• Docket Number: Civil Action No. 16–367 (BAH)
• Parties: Luis DE SOUSA, Plaintiff, v. EMBASSY OF the REPUBLIC OF ANGOLA, Defendant.
• Court: U.S. District Court — District of Columbia

267 F.Supp.3d 163

Luis DE SOUSA, Plaintiff,

v.EMBASSY OF the REPUBLIC OF ANGOLA, Defendant.

Civil Action No. 16–367 (BAH)

United States District Court, District of Columbia.

Signed July 27, 2017

Luis de Sousa, Winchester, VA, pro se.

Janis Herring Brennan, Lawrence Hedrick Martin, Foley Hoag, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Luis de Sousa, who is proceeding pro se, filed this action seeking $360,000,000.00 in damages from the defendant, the Embassy of the Republic of Angola, for breach of contract, defamation, and intentional infliction of emotional distress. See Pl.'s Proposed Third Amended Complaint ("Prop. Third. Am. Compl.") ¶¶ 44–47, 63, ECF No. 53–1. After the Court's resolution of nine initial motions, see De Sousa v. Embassy of Angl. , 229 F.Supp.3d 23 (D.D.C. 2017), the defendant has filed the pending Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim, Def.'s Mot. Dismiss ("Def.'s Mot."), ECF No. 49; Def.'s Mem. Supp. Mot. Dismiss ("Def.'s Mem."), ECF No. 49–1, and in response, the plaintiff seeks a third amendment to his complaint, Pl.'s Third Mot. Amd. Compl. ("Pl.'s Mot. Amd."), ECF No. 53; see also Pl.'s Reply Supp. Mot. Amend ("Pl.'s Reply"), ECF No. 55. For the reasons set forth below, the defendant's motion to dismiss is granted and the plaintiff's motion is denied as futile.

I. BACKGROUND

Summarized below are the factual allegations made in the Proposed Third Amended Complaint, which is difficult to understand in places but nonetheless assumed to be true for the purpose of resolving the pending motions.¹

In July 2015, the plaintiff began performing and supervising construction work on the Embassy of Angola at the request of the Ambassador, whose children had been friends with the plaintiff "from a young age." Prop. Third Amd. Compl. ¶¶ 11–14, 38. When submitting invoices, some of which were billed by "[the plaintiff's] business, Luenda Group LLC," the plaintiff artificially inflated his costs to receive a "commission," which commission ultimately totaled $14,000. Id. ¶¶ 12, 17–18. The Ambassador approved the commission payments, but "no one was suppose[d] to know" about the commissions or the details of the invoices. Id. ¶ 12–13.

After a number of "strange and complicated transaction[s]" among the plaintiff's business Luenda Group LLC, the defendant, and a subcontractor, id. ¶¶ 13–18, the Ambassador ended the arrangement and asked the plaintiff to repay his "commission" because the Ambassador "did not want the employees at the embassy to think that he doing something unethical," id. ¶ 21–22. This request strained the plaintiff's finances and the parties' relationship, which was then further damaged when the Ambassador's daughter "Mrs. Guerreiro," who was an Embassy employee, refused to give the plaintiff a signed contract for the work he had been doing because he had been "stealing" from the Embassy. Id. ¶¶ 24–25. The relationship reached a total breakdown in late September 2015, when Mrs. Guerreiro's husband, whom the parties do not dispute was not an Embassy employee, "pushed and verbally attacked [the plaintiff's] wife and ma[de] death threats toward [the plaintiff]" at a social event because the plaintiff "hadn't answered [his] phone," when "Mr. Guerreiro" had called him earlier. Id. ¶ 29.²

The plaintiff continued to seek payment for his work after the pushing and verbal altercation incident, but the Ambassador, the Guerreiros, and the Ambassador's other daughter, "Ms. Claudia," who was also an Embassy employee, began a "very brutal campaign" involving "intimidation and threats" against the plaintiff causing him "extensive emotional distress," and "defamation" that injured the plaintiff's professional reputation. Id. ¶¶ 26–29, 30, 37–39. This campaign apparently began a few weeks after the incident, when, at a meeting with the plaintiff, Mrs. Guerreiro and "the financier of the Embassy" called him "derogatory names," "threatened" him, and berated him for "overcharging the Embassy." Id. ¶ 26. The plaintiff, upset by the meeting as well as his ongoing difficulties getting paid, went to the Ambassador, who turned him away and told him that any financial dispute was between him and the subcontractor. Id. ¶ 27.1.³ Frustrated with the situation, the plaintiff somehow "blocked ... any contact" with the Embassy. Id.

After some time, the plaintiff was contacted by the Ambassador, who "apologize[d]" to the plaintiff, promising him a "newer, bigger contract" to make up for cancelling the "commission," and the plaintiff agreed to do more work on the Embassy. Id. ¶ 27.2. This improved relationship apparently did not last. The plaintiff returned to the Embassy in January 2016 to begin his work, and on January 11, 2016, had a meeting with Ms. Claudia and her husband, who threatened him for trying to get a signed contract and "allud[ed] to his death." Id. ¶ 28. Despite this conduct, the meeting ended with the two Embassy employees promising to help the plaintiff get a signed contract. Id. ¶ 28. The stress of these events caused the plaintiff health issues and "a loss of business investment" because of his tarnished reputation. Id. ¶¶ 40, 47, 50. At some unspecified time during these events, the Ambassador "one time ... threatened [the plaintiff] with death." Id. ¶ 30.

In February 2016, the plaintiff filed suit in this Court, seeking $360,000,000.00 for breach of "verbal contract" and related injury, id. ¶ 46, "emotional distress," id. ¶¶ 44, 51, 57, and "defamation," id. ¶¶ 42, 60. Three weeks later, Mr. Guerreiro flew to Angola and allegedly threatened the plaintiff's brother with "serious consequences" if the plaintiff did not drop the case, and "a few weeks later," the plaintiff's brother-in-law lost his government job. Id. ¶ 39. At this point, the plaintiff "began to take" the conduct of the Embassy employees "seriously." Pl.'s Reply at 12.

Mr. Guerreiro's trip prompted the plaintiff to amend his complaint, to include information about what had happened to his brother-in-law in Angola and to provide greater detail about his previously-raised allegations. See Order, dated May 27, 2016 (granting plaintiff's motion to amend complaint "as a matter of course"). After resolving a series of motions from both parties, including two defense motions to quash for insufficient service of process, plaintiff's motion for leave to amend the complaint, and five motions by the plaintiff to attach embassy property, see De Sousa , 229 F.Supp.3d 23, the defendant filed the instant motion to dismiss on grounds that the plaintiff's suit was barred because he failed to comply with local business registration requirements and because he failed to allege sufficient facts to support his tort claims. Def.'s Mem. at 3–15; see also Def.'s Opp'n Pl.'s Mot. Amd. ("Def.'s Opp'n") at 4–11, ECF No. 54. The Court then advised the plaintiff of the consequences of failure to respond to a dispositive motion or to dispute facts asserted by the movant, as required by Fox v. Strickland , 837 F.2d 507, 509 (D.C. Cir. 1988) and Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992). See Order, dated January 25, 2017. In response to the motion to dismiss, the plaintiff filed what appears to be both an opposition to the motion to dismiss and a motion for leave to amend the complaint for a third time. See generally Pl.'s Mot. Amd. Both motions are now ripe for review.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

" ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ " Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Indeed, federal courts are "forbidden ... from acting beyond our authority," NetworkIP, LLC v. FCC , 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have "an affirmative obligation ‘to consider whether the constitutional and statutory authority exist ... to hear each dispute.’ " James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quotation omitted).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing the court's jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). When considering a motion under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and "construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged and upon such facts determine jurisdictional questions." Am. Nat'l Ins. Co. , 642 F.3d at 1139 (internal quotation marks and citations omitted). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject-matter jurisdiction, the court may look beyond the complaint to "undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992).

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss , ––– U.S. ––––, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) )). A claim is facially plausible when the plaintiff pleads factual...