Superior Fibre Prods., Inc. v. U.S. Dep't of the Treasury

• Decision Date: 13 January 2016
• Docket Number: Civil Action No. 15-0821 (ESH)
• Parties: Superior Fibre Products, Inc., et al., Plaintiffs, v. United States Department of the Treasury, et al., Defendants.
• Court: U.S. District Court — District of Columbia

156 F.Supp.3d 54

Superior Fibre Products, Inc., et al., Plaintiffs,

v.United States Department of the Treasury, et al., Defendants.

Civil Action No. 15-0821 (ESH)

United States District Court, District of Columbia.

Signed January 13, 2016

George Alex Lambert, Law Offices G.A. Lambert and Associates, Washington, DC, for Plaintiffs.

Marian L. Borum, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE

, United States District Judge

Plaintiffs Superior Fibre Products, Inc. (New York) (“Superior Fibre-New York”), Superior Fibre Products, Inc. (Ontario, Canada) (“Superior Fibre-Canada”), and Gregory Gordon Bertram bring this action against the United States Department of the Treasury (“Treasury Department”), Lee Myung Hee Ambrocio (“Ambrocio”), a “purported employee of the Treasury Department,” and John Does 1-10 (“Doe defendants”), unknown persons “who may be involved, either as employees within the Treasury Department or the agents outside of it.” They claim they are entitled to replacement of an allegedly lost “Treasury instrument” and damages for misrepresentation due to actions allegedly taken by Ambrocio and/or the Doe defendants. Before the Court are (1) defendants' motion to dismiss or, in the alternative, for summary judgment (see Defs.' Mot. to Dismiss or, in the Alternative, for Summary Judgment, Oct. 1, 2015 [ECF No. 17] (“Defs.' Mot.”)); and (2) plaintiffs' cross-motion for leave to serve Ambrocio by publication (see Pls.' Mot. for Leave to Serve Defendant Ambrocio by Publication, Oct. 30, 2015 [ECF No. 23] (“Pl.'s Mot.”). For the reasons stated herein, defendants' motion to dismiss or for summary judgment will be granted, and plaintiffs' motion to serve Ambrocio by publication will be denied. In addition, any other individual capacity claims against Ambrocio and the Doe defendants will be dismissed without prejudice for insufficient service of process.

BACKGROUND

The facts, as alleged in the complaint, are as follows. Superior Fibre-Canada is a family-owned Canadian corporation that manufactures and markets metallic products used for building construction and other purposes. (Compl. ¶ 11.) Bertram is the owner and sole shareholder of Superior Fibre-Canada, which in turn owns Superior Fibre-New York. In 1981, Bertram met Melville H. Leck, and they “became partners in various ventures.” (Compl. ¶ 12.) As “collateral” for some of these ventures, they used a “Treasury instrument” bearing the number “121.6652897170235,” which Leck had acquired in 1981 for $10,000. (Compl. ¶¶13-14.)

Leck died in September 2007. (Compl. ¶ 17.) Upon Leck's death, the entitlement to the Treasury instrument “passed” to Bertram, “outside of [Leck's] estate,” and Bertram became “entitled to its redemption.”¹ (Compl. ¶ 17.) According to the complaint, Bertram spoke to Leck's son (Harold Leck) at Leck's funeral, and he “confirmed knowing of Bertram's entitlement to the Treasury instrument.” (Compl. ¶ 17.) Leck's papers were stored at his son's home, but those records were destroyed by a flood in 2009. (Compl. ¶¶ 18-19.)

The complaint alleges that since 2009 Bertram has undertaken “various efforts to reinstate” the Treasury instrument, but that “he has been unsuccessful.” (Compl. ¶ 20.) One such effort involved “several nationals of Nigeria,” who communicated with Bertram “via Internet,” “alleged that they were in privity with the Treasury Department,” and “offered their services in recovery of the Treasury instrument.” (Compl. ¶ 21.) These individuals provided Bertram with electronic copies of letters addressed to the United Bank for Africa (Nigeria), “cc'd” to Bertram, and signed by “Lee Myung Hee Ambrocio” on what appeared to be Treasury Department letterhead, along with a copy of what was represented to be Ambrocio's Treasury Department identification card. (Compl. ¶¶ 21-24, 26.) These letters proposed that there be a meeting in Washington, D.C. with the Nigerians, Bertram and officials from the Treasury Department to address Bertram's claim to the allegedly lost Treasury instrument. (Compl. ¶¶ 21-24.) “Against the background of such letters, the United Bank of Africa sought advance payments from Bertram and others, purportedly as the facilitating party of agents for purposes of arranging for the negotiations with the officers of the Treasury Department in Washington, D.C. and for the ultimate recovery of the assets associated with the ... Treasury instrument.” (Compl. ¶ 25.) The complaint does not specify the amount of any payments that were made.

Each time the date of a meeting approached, it was postponed (Compl. ¶ 24), and plaintiffs now believe that “there is a likelihood that those letters were not legitimate.” (Compl. ¶ 40.) Nonetheless, the complaint alleges that “[e]ven if the six letters and the I.D. were unauthorized, it is doubtful that all that documentation were created without any connection to the Treasury Department and its insiders.” (Compl. ¶ 43.)

To date, plaintiffs “have been unable to receive a duplicate of the ... Treasury instrument ... and have been consequently not in a position to redeem it.” (Comp. ¶ 29.)

Based on the above allegations, plaintiffs filed the pending action on June 3, 2015. Their complaint includes three claims. Count I asks the Court to order the Treasury Department to “issue a duplicate” of the allegedly lost or destroyed Treasury instrument. Count II seeks a declaratory judgment that plaintiffs are the “lawful owners” of the lost Treasury instrument. Count III seeks damages for misrepresentation, against “at least” Ambrocio, on the ground that plaintiffs were induced by the letters from Ambrocio and the copy of his Treasury Department ID to make payments to the United Bank of Africa in exchange for their unfulfilled promise to help plaintiffs recover the allegedly lost Treasury instrument.

Defendants have filed a motion to dismiss or for summary judgment, on behalf of the Treasury Department and also on behalf of Ambrocio and the Doe defendants “to the extent plaintiffs allege that any of those individuals are federal officials, employees, or agents” acting in their “official capacities,” which contends that the complaint should be dismissed for lack of subject matter jurisdiction, improper service of process, and failure to state a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(1), (5) & (6)

, or, in the alternative, that defendants are entitled to summary judgment. That motion also points out that to the extent Ambrocio and the Doe defendants are being sued in their individual capacities, neither has been served in accordance with Federal Rule of Civil Procedure 4(e) and that the time to effect service under Federal Rule of Civil Procedure 4(m)

has expired. Plaintiffs have filed an opposition to defendants' motion and a motion for leave to serve Ambrocio by publication. Both motions are now ripe.

DISCUSSION

I. COUNT I: “REINSTATEMENT OF LOST COMMERCIAL PAPER”

Count I of the complaint is labeled as a claim for “reinstatement of lost commercial paper.” It is brought against the Treasury Department, and it seeks an order from the Court directing the Treasury Department to issue plaintiffs a duplicate of the allegedly lost or destroyed Treasury instrument. Count I fails to state a claim upon which relief can be granted.² See Fed. R. Civ. P. 12(b)(6)

. In the alternative, the Treasury Department is entitled to summary judgment. See Fed. R. Civ. P. 56.

1. Failure to State a Claim

The Court will consider first whether Count I states a claim upon which relief can be granted.

In order to state a claim against a federal agency, a plaintiff must have a viable “cause of action”—a basis for “invok[ing] the power of the court to redress the violations of law that [plaintiff] claims the [federal agency] has committed.” See Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 188 (D.C.Cir.2006)

; see

Holistic Candlers & Consumers Ass'n v. Food & Drug Admin. , 664 F.3d 940, 943 (D.C.Cir.2012) (plaintiffs “cannot satisfy another requirement for maintaining this suit: a cause of action”). The recognized routes for obtaining equitable review of an agency action are: (1) under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 -706, which “ ‘suppl [ies] a generic cause of action in favor of persons aggrieved by agency action,’ ” Trudeau , 456 F.3d at 188 (quoting Md. Dep't of Human Res. v. Dep't of Health & Human Servs. , 763 F.2d 1441, 1445 n. 1 (D.C.Cir.1985) ); (2) under another federal statute that specifically provides for judicial review, see, e.g. , 7 U.S.C. § 136a–1(m) (authorizing judicial review under Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)); (3) under the United States Constitution, see

Trudeau, 456 F.3d at 190 (“the court's power to enjoin unconstitutional acts by the government ... is inherent in the Constitution itself”); or (4) under the narrow doctrine of “non-statutory review” which allows judicial review “to determine whether the agency has acted ‘ultra vires'—that is, whether it has ‘exceeded its statutory authority.’ ” Mittleman v. Postal Regulatory Comm'n , 757 F.3d 300, 307 (D.C.Cir.2014) (quoting Aid Ass'n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C.Cir.2003) ); Trudeau, 456 F.3d at 190 (“ ‘judicial review is available when an agency acts ultra vires, ’ even if a statutory cause of action is lacking.”).

Absent a viable cause of action, a court must dismiss for failure to state a claim. See Trudeau, 456 F.3d at 188

. Here, plaintiffs do not expressly identify a cause of action that would allow them to bring their claim for “reinstatement of lost commercial paper,” and it is clear from the allegations of the complaint that none of the recognized routes for challenging agency action (or inaction) are applicable. Plaintiffs do not allege a “final agency action,” as would be required to obtain review under the APA. They do not identify any other statute that authorizes judicial review of an alleged...