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Eric Abakporo v. Sahara Reporters

September 26, 2011


The opinion of the court was delivered by: Dearie, District Judge.


Plaintiff Eric Abakporo, proceeding pro se, bases claims under New York law for libel, invasion of privacy and intentional and negligent infliction of emotional distress on a pair of news articles published in 2010 by defendant Omoyele Sowore via journalism outfit Sahara Reporters (collectively, "defendant"). The articles report on a petition (the "Petition") by a group of Nigerian citizens, calling itself the Patriots and leveling allegations of corruption within the official ranks of the Permanent Mission of Nigeria to the United Nations (the "Nigerian Mission"). The first of the articles summarizes the Petition's contents, some of which refer to plaintiff, and cites to an unrelated 2008 New York Daily News report linking plaintiff to a real estate scam in Harlem. The second article describes the Nigerian Mission's reaction to the first article and includes a photo of plaintiff that was published alongside the 2008 Daily News story.

Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. As explained below, defendant's motion is granted with respect to all but plaintiff's claim for libel, as it relates to statements that may plausibly be read to connect plaintiff to alleged fraud occurring within the Nigerian Mission.


In evaluating defendant's motion, the Court "constru[es] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). "For purposes of this rule, the complaint is deemed to include any written instrument attached to it as an exhibit, or any statements or documents incorporated in it by reference." Id. at 152 (internal quotation marks omitted). In this case, such documents include the Petition and the allegedly defamatory news articles. At the Rule 12(b)(6) stage, moreover, the Court may take judicial notice of prior state court proceedings. See, e.g., Blue Tree Hotel Inv. (Can.), Ltd. v. Starwood Hotels & Resorts, 369 F.3d 212, 217 (2d Cir. 2004).

The parties

Plaintiff Eric Abakporo, a native of Nigeria, is a real estate lawyer with an office in Brooklyn and a part-time pastor of the Pentecostal Deeper Life Bible Church in Jamaica, Queens. By his own admission, plaintiff "offer[s] free legal services to the Nigerian community" and "volunteers to provide legal service and guidance to the Nigerian mission." (Pl. Aff., dkt. #14, ¶¶ 10, 19.)

Defendant Omoyele Sowore is a Nigerian-born journalist who was granted political asylum in the United States for his opposition to military rule in Nigeria. Currently residing in New Jersey, defendant operates a New-Jersey-based online news site, Sahara Reporters, accessible at Sahara Reporters publishes original articles and commentary regarding current events around the world, with an emphasis on happenings in and affecting Nigeria, including reports of corruption by Nigerian officials.

The Daily News article

Although plaintiff's claims narrowly concern a pair of online postings in 2010 by Sahara Reporters, the chronicle begins with an article published in the New York Daily News on March 30, 2008 (the "Daily News article"), entitled "'Pals scam 78-year-old Harlem woman out of $15M fortune." (Balin Decl., dkt. #12-5, Ex. G.) The Daily News article describes how plaintiff and "his partner in real estate," Ms. Latanya Pierce, garnered a block-long parcel of real estate on St. Nicholas Avenue in Harlem from an elderly widow, Ms. Ina MacArthur, for well below market value. According to the article, after learning that MacArthur intended to sell the property, plaintiff befriended her and helped her with her chores and medical needs. Plaintiff and Pierce soon consummated the below-market sale through "a series of complex transactions" in which plaintiff's corporation agreed to purchase the property from MacArthur before assigning the contract to an entity co-owned by Pierce and plaintiff's wife. (Id. at 2.)

At the time of the article's publication, MacArthur had received only $20,000 of the proposed $3.1 million in net proceeds. Although she expected the remainder to be paid in cash at the closing, MacArthur accepted an eleventh-hour, unrecorded purchase-money mortgage for the difference. Plaintiff, as quoted in the Daily News article, termed the transaction a "loan."*fn1

(Id. at 7.) A $500,000 certified check furnished by Pierce at the closing, but never transferred or deposited, reportedly was a forgery. In a brief follow-up article, the Daily News reported that the Manhattan District Attorney was investigating the matter. No criminal charges were filed.

The Daily News action

Plaintiff promptly sued the Daily News for invasion of privacy and libel (the "Daily News action"). By opinion dated November 18, 2008, pinning the complaint on the spectrum "somewhere between a narrative defense of plaintiff's actions and an angry rant," the New York Supreme Court (Justice Martin M. Solomon) dismissed the case. (Balin Decl., Ex. H, at 2.) Justice Solomon noted that the Daily News article "contains few references to the plaintiff and none that could be considered clearly defamatory," and he concluded "that the bulk of th[e] article, at least to the extent that it is unflattering, are various opinions of quoted individuals or the authors." (Id.) Furthermore, because "the statements regarding plaintiff in the story are essentially true or non-actionable opinions," plaintiff had no right to recovery "even if in totality the article paints plaintiff in an unfavorable false light." (Id. at 4.) Plaintiff did not appeal.

The Petition

The articles at issue by Sahara Reporters focus largely on the Petition, dated March 18, 2010, addressed to Acting President Goodluck Jonathan and undersigned by Gamadika Liposam on behalf of a Nigerian citizen group labeling itself the "Patriots."*fn2 (See Balin Decl., Ex. B, at 5.) Employing a healthy dose of vitriol, the Petition accuses the Nigerian Ambassador to the United Nations, Joy Ogwu, of overseeing the misappropriation of public funds via the routine and often secretive approval of unauthorized expenditures relating to the Nigerian Mission. The Petition's authors request that the Nigerian authorities assign a "team of unbiased investigators" to research their claims "as a matter of absolute urgency." (Id. at 4.)

By way of example, the Petition lists several contracts for renovation of the Nigeria House that its authors allege are inflated or were awarded in a procedurally improper fashion.

Two of these contracts concern renovation of the Nigeria House's interior. The Petition asserts that a recently repaired two-bedroom apartment was awarded "another refurbishing contract" in the amount of $386,907.53, and that "a few cubicles" used for office work "were renovated" at a cost of $288,797.97. (Id. at 3.) Attached to the Petition is a copy of a ledger reflecting payments in these amounts, made during mid-December 2009, to "St. Cyprian Properties Inc." (Id. Ex. 5.)

A number of exhibits connect plaintiff to St. Cyprian Properties, which the Petition labels Ambassador "Ogwu's front for fraud." (Id. at 3.) Of note, the Petition cites to a "renovation contract in the Mission costing US$203,156.59 awarded to Corporate Design Collaborative Inc. ["CDCI"] through . . . St. Cyprian Properties." (Id.) Attached is an undated letter from CDCI to the Nigerian Mission: "We were not able to send this letter to Eric Abakporo because he has not provided to us an address for his company; St. Cyprian Properties, Inc., and his email box . . . is full and will not accept emails." (Id. Ex. 6.) Also attached is a March 11, 2010, letter from CDCI threatening to stop work unless paid in full, and stating that the company would "only continue work on this project in accordance with the signed contract and the verbal instructions given to us by Eric Abakporo." (Id. Ex. 7.) A copy of the second letter is addressed to "Eric Abakporo St. Cyprian Properties, Inc." (Id.)

The Petition is copied to the Chairman of Nigeria's Economic and Financial Crimes Commission ("EFCC").*fn3 The duties of the EFCC include "the examination and investigation of all reported cases of economic and financial crimes." EFCC Establishment Act (2004), § 6(h).

The EFCC "has power to cause investigations to be conducted as to whether any person . . . has committed any [such] offence." Id. ยง 7(1)(a). According to its website, "[t]he most common way of accepting cases by EFCC is through a petition written by an individual or organization." (Balin Decl., Ex. C, at 2.) The EFCC's web site continues: "The petition will be evaluated and if the case falls within the ...

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