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Joao Carlos Salvador Gomes, Pro Se v. Angop

August 22, 2012

JOAO CARLOS SALVADOR GOMES, PRO SE, PLAINTIFF,
v.
ANGOP, ANGOLA PRESS AGENCY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

OPINION AND ORDER

On December 29, 2010, pro se*fn1 plaintiff Joao Carlos Salvador Gomes ("Plaintiff") commenced this action against ANGOP, Angola Press Agency ("ANGOP"), the Republic of Angola, owner of ANGOP ("Angola"), Embassy of the Republic of Angola in the United States of America (the "Embassy"), Ministry of Social Communication, Angola ("Ministry of Communication"), Ministry of Finance, Republic of Angola ("Ministry of Finance"), Ministry of External Relations (Foreign Affairs), Angola ("Ministry of Foreign Affairs," together with Ministry of Communication and Ministry of Finance, the "Ministries"), Mr. Jose Eduardo dos Santos, President of the Republic of Angola ("President dos Santos"), Mrs. Josefina Pitra Diakite, Ambassador of the Republic of Angola in the United States of America ("Ambassador Diakite" or the "Ambassador"), Ms. Carolina Cerqueira, Minister of Social Communication of the Republic of Angola ("Cerqueira"), Mr. Carlos Alberto Lopes, Minister of Finance of the Republic of Angola ("Lopes"), Mr. George Chicoty, Minister of External Relations (Foreign Affairs), Angola ("Chicoty," together with Cerqueira and Lopes, the "Ministers"), Mr. Manuel da Conceicao, Director of ANGOP ("Conceicao") and ANGOP Editorial Staff (collectively, "Defendants"), by filing a Summons with Notice in New York State Supreme Court, Queens County, alleging Defendants defamed and otherwise injured Plaintiff when, on multiple occasions, ANGOP published on its website a photograph of Plaintiff with a caption identifying him as Jose Americo "Bubo" Na Tchuto, Head of the Navy of Guinea-Bissau (the "Na Tchuto Photograph"), who at the time of the publication was allegedly wanted internationally for, inter alia, "drugs trafficking . . . money laundering, attempted murder of a Head-of-state and, desertion[.]" (See Doc. Entry No. 1, Ex. A ("Summons with Notice") at 5.) On February 4, 2011, Defendants properly removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and (d). (See Doc. Entry No. 1, Notice of Removal.)

Defendants now move, inter alia, to dismiss the complaint as to: (1) President dos Santos and Ambassador Diakite under Federal Rule of Civil Procedure 12(b)(2) ("Rule 12(b)(2)"), pursuant to head-of-state and diplomatic immunities; (2) Angola, the Embassy, the Ministries and ANGOP under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"), pursuant to the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1602 et seq.; and (3) the Ministers, Conceicao, and ANGOP Editorial Staff, because they have been sued only in their official capacities and they are not the real parties in interest. (See Defs.' Mem of Law in Supp. of Mot. to Dismiss ("Defs.' Mem."),Doc Entry No. 12.) Plaintiff cross-moves, by way of a 505- page memorandum (the "Omnibus Memorandum"), consisting of 103 single-spaced pages of argument and 402 pages of exhibits: (1) opposing Defendants' motion to dismiss the complaint; (2) requesting the Court "Rescind the Notice of Removal" and remand the case back to the Queens County Supreme Court; and (3) seeking an Order lifting the stay of discovery imposed in this case by U.S. Magistrate Judge James Orenstein. (See Doc. Entry No. 34 ("Pl.'s Omnibus Mem.").) Defendants oppose Plaintiff's cross-motions. For the reasons set forth below, Defendants' motion to dismiss is granted and Plaintiff's motions are denied. Accordingly, the complaint is dismissed in its entirety for lack of personal and subject matter jurisdiction.

BACKGROUND

I.Factual Allegations*fn2

Plaintiff, originally from the Republic of Guinea-Bissau ("Guinea-Bissau"), is a writer and broadcast journalist based in the United States who has written and spoken extensively about, inter alia, politics and corruption in Guinea-Bissau and Angola. (Pl.'s Omnibus Mem. at 28, 32.) From 1995 to 1996, Plaintiff served as the Spokesman and Head of the Media Division for the United Nations Angola Verification Mission III, the United Nations Mission in charge of mediation of "the Angola Peace Process." (Id. at 32.) Plaintiff alleges the Angolan Government became hostile to him while he served as the Spokesman because he broadcasted television programs in Angola about, inter alia, official corruption and freedom of expression. (Id.) Plaintiff contends that the Angolan Government pressured the United Nations to dismiss Plaintiff from his Spokesman position because of his television broadcasts. (Id.)

Plaintiff further alleges that, as a continuation of the hostilities, on January 6, 2010, Defendants began publishing the Na Tchuto Photograph. (Id. at 28.) According to Plaintiff, Jose Americo "Bubo" Na Tchuto, Head of the Navy of Guinea-Bissau ("Na Tchuto") is an alleged international drug trafficker, international money launderer and arms trafficker and also is suspected of dealings with terrorist organizations. (Id.) On January 7, 2010, Plaintiff allegedly contacted ANGOP through its website and asked ANGOP to cease publication of the Na Tchuto Photograph. (Id. at 29.) Nonetheless, ANGOP allegedly continued publishing different articles about Na Tchuto while using the same photograph identifying Plaintiff as Na Tchuto up until at least April 1, 2010. (Id.) Plaintiff alleges Defendants published the Na Tchuto Photograph as a means to attack him because of his media legacy in Angola. (Id. at 30, 88.) Specifically, Plaintiff alleges Defendants have invested $500 million in bauxite mines in Guinea-Bissau, and that the multiple publications of the Na Tchuto Photograph were pre-emptive attacks meant to silence Plaintiff because of his role as a media professional and his known criticism of official corruption. (Id. at 44, 65, 74, 88.) Plaintiff further asserts that Defendants, in order to secure their investment in Guinea-Bissau, needed Na Tchuto's cooperation, as such, the publications of the Na Tchuto Photograph also were meant to gain Na Tchuto's cooperation by allegedly providing Na Tchuto with an alternative photographic identification, thereby allowing Na Tchuto to move around unrecognized by authorities. (Id. at 53, 69, 85.)

Plaintiff alleges that, on June 10, 2010, at a dinner party, he informed Ambassador Diakite of the Na Tchuto Photograph. (Id. at 31.) According to Plaintiff, Ambassador Diakite told him: "If the site in question is that of ANGOP, the government of the Republic of Angola will assume its responsibilities." (Id.) Plaintiff additionally asserts that Ambassador Diakite informed Plaintiff that the publications of the Na Tchuto Photograph may have been the action of an individual inside ANGOP who has a personal vendetta against Plaintiff. (Id.) Moreover, Plaintiff alleges that during a phone conversation with Ambassador Diakite on June 11, 2010, she blamed the publications on "pirates." (Id.)

II.Initiation of the State Action and Removal to Federal Court

On December 29, 2010, Plaintiff initiated this action against Defendants by filing a Summons with Notice in the Queens County Supreme Court. Plaintiff attempted to serve Defendants by sending a copy of the Summons with Notice to the Embassy via Federal Express ("FedEx"). (See Doc. Entry No. 1, Ex. B.) In the Summons with Notice, Plaintiff alleges: defamation (libel); violation of right to privacy; harassment; negligence; threat to personal safety and life, through the unauthorized and multiple publication -- by ANGOP (Angola Press Agency, the official news agency of the government of Angola) -- of plaintiff's photographs and, false words, carried out with reckless disregard for its truth or actual malice on the internet, for commercial purposes (causing special damages).

(Summons with Notice at 5.) Plaintiff further alleges Defendants' multiple publications of the Na Tchuto Photograph placed Plaintiff "right in the middle of an extremely dangerous web of international intrigue and manhunt." (Id. at 6.) Plaintiff seeks $211 million from Defendants as compensation for "the actual and potential damages" caused by the publications of the Na Tchuto Photograph. (Id. at 6-7; Pl.'s Omnibus Mem. at 48.)

On February 4, 2011, Defendants filed a Notice of Removal, removing the action to this Court, pursuant to 28 U.S.C §§ 1441 (a) and (d). (See Doc. Entry No. 1.) On the same date, Defendants mailed a copy of the Notice of Removal to the Clerk of the Queens County Supreme Court ("Queens County Clerk") and to Plaintiff. (See June 23, 2011 Affirmation of Marjorie E. Berman ("Berman June Affirmation") ¶¶ 4, 5, annexed as Attachment A to Defs.' Opp'n to Pl.'s Mot. to Rescind Notice of Removal and for Remand to the State Court ("Defs.' Remand Opp'n"), Doc. Entry No. 26; see also Exs. B and C attached to Berman June Affirmation.) The Queens County Clerk filed the Notice of Removal on February 7, 2011. (Berman June Affirmation, Ex. B.) On February 14, 2011, the magistrate judge sent the parties a Scheduling Order that set an initial conference for March 17, 2011, and encouraged the parties to discuss possible settlement terms before the conference date. (See Doc. Entry No. 2.)

III.Proceedings Before the Magistrate Judge

During the March 17, 2011 Scheduling Conference, Defendants asserted that if a settlement could not be reached they would likely move to dismiss the complaint, in part, because Plaintiff allegedly failed to effect proper service on Defendants pursuant to the FSIA. (See Scheduling Conference Transcript dated March 17, 2011 ("Sched. Tr.") at 4-7, 21, Doc. Entry No. 29.) The magistrate judge questioned whether Defendants could remove the case if Defendants asserted they never were properly served in the first instance. (Id. at 5.) The magistrate judge therefore directed Defendants to submit a letter to the Court providing authority that a removal is proper before service has been effected. (Id.)

Also during the Scheduling Conference, Plaintiff stated he never received the Notice of Removal from Defendants by mail and that he obtained a copy of the Notice of Removal on March 16, 2011, the day before the conference, from the Clerk's Office in this Court. (Id. at 7-10, 26-28, 39.) Plaintiff acknowledged that he received the Scheduling Order and that he was aware of the March 17, 2011 Scheduling Conference. (Id. at 8-9.) Moreover, pursuant to the Order, the parties discussed possible settlement terms on two occasions prior to the Settlement Conference. (Id.; see also June 23, 2011 Affirmation of Andrew Z. Schwartz ("Schwartz Affirmation") ¶¶ 3-6, annexed as Attachment B to Defs.' Remand Opp'n.)

Defendants represented that to the best of their knowledge they sent the Notice of Removal to Plaintiff, and that while they could not account for why it was not received, Defendants were in possession of an Affidavit of Service in their office file. (Id. at 8-9.) The magistrate judge directed Defendants to file the Affidavit of Service on the Court's CM/ECF System and to provide a copy to Plaintiff. (Id. at 40.) On March 18, 2011, pursuant to the magistrate judge's Order, Defendants filed a copy of their Affidavit of Service. (Doc. Entry No. 7.) Defendants now acknowledge that they made a typographical error in Plaintiff's address on the Affidavit of Service. Defendants suggest this explains why Plaintiff never received the Notice of Removal in the mail. (See Berman June Affirmation ¶ 10,Ex. C.) On the same date, Defendants e-mailed the Affidavit of Service to Plaintiff. (Id. ¶ 12, Ex. E; see also Sept. 16, 2011 Affirmation of Marjorie E. Berman ("Berman Sept. Affirmation") ¶ 3, annexed as Ex. 1 to Defs.' Reply in Supp. of their Mot. to Dismiss ("Defs.' Rep. Mem."), Doc. Entry No. 38.) Plaintiff asserts he never received that e-mail. (Pl.'s Omnibus Mem. at 14.)

On April 28, 2011, after reviewing submissions from both parties, the magistrate judge concluded that Defendants' removal was proper. (See ECF Order dated April 28, 2011.) On May 5, 2011, Defendants moved to stay discovery pending the outcome of their motion to dismiss. (See Doc. Entry No. 17.) On May 18, 2011, the magistrate judge granted Defendants' motion to stay discovery pending the resolution of the Defendants' motion to dismiss the complaint. (See Doc. Entry. No. 21.)

DISCUSSION

I.Motion to Rescind the Notice of Removal

Plaintiff seeks remand on the ground that Defendants failed to complete the removal process, pursuant to 28 U.S.C. § 1446 because they did not serve Plaintiff with a written Notice of Removal or with Proof of Service and, thus did not comply with the thirty-day deadline in which to complete the removal process.*fn3 (See Pl.'s Affirmation in Supp. of the Mot. to Rescind ("Pl.'s Mot. to Rescind") ¶¶ 1, 7, Doc. Entry No. 23; see also Pl.'s Omnibus Mem. at 9, 16.)

Plaintiff's motion to remand is denied.

As an initial matter, Plaintiff's assertion that he received no documentation regarding the removal is belied by the record. Plaintiff himself acknowledged that he obtained a copy of the Notice of Removal from this Court's Clerk's Office on March 16, 2011. (Sched. Tr. at 7-10, 26-28, 39.) Plaintiff also acknowledged that he learned the matter was removed to this Court from the Scheduling Order sent by the magistrate judge on February 14, 2011, notifying him that a Scheduling Conference would be held on March 17, 2011. (Sched. Tr. at 9 ("I received the court papers, the notice from the Court.").) Moreover, on March 18, 2011, pursuant to the magistrate judge's instructions, Defendants electronically filed a copy of their proof of service and e-mailed a copy to Plaintiff directly. (Doc. Entry No. 7; see also Berman Sept. Affirmation ¶ 3, Ex. 1.) As such, the issue here is not, as Plaintiff contends, whether he received notification of the removal at all. Rather, the issue is whether the notification Plaintiff received satisfies 28 U.S.C. § 1446, the statute governing the procedure for removal of civil actions.

Pursuant to 28 U.S.C. § 1446(b), a defendant must file, "through service or otherwise," a notice of removal in the district court within thirty days of receipt of the initial pleading. FedEx delivery confirmation shows Defendants received Plaintiff's purported service at the Embassy on January 5, 2011. (See Pl.'s Omnibus Mem., Ex. H.) Defendants filed the Notice of Removal in this Court on February 4, 2011, thirty days after they received Plaintiff's purported service, in compliance with 28 U.S.C. § 1446(b). (See Doc. Entry No. 1, Notice of Removal.)

Pursuant to 28 U.S.C. § 1446(d), "[p]romptly" after filing the notice of removal in district court, a defendant "shall [1] give written notice thereof to all adverse parties and shall [2] file a copy of the notice with the clerk of such State court[.]" Here, Defendants complied with this requirement when they mailed a copy of the Notice of Removal to the Queens County Clerk on February 4, 2011. The Queens County Clerk entered the Notice of Removal on the state court docket on February 7, 2011, three days after the Notice of Removal was filed in this Court. (Berman June Affirmation, Ex. B.)

Apparently, Plaintiff contends that Defendants failed, in part, to adhere to 28 U.S.C. § 1446(d) because they did not serve him promptly with written Notice of the Removal. Plaintiff's assertion is without merit. While 28 U.S.C. § 1446 requires the removing party to "promptly" give its adversary "written notice" that a notice of removal has been filed, it "does not require that the removing party deliver an actual copy of the notice of removal to its adversary." Park v. McGowan, 2011 WL 4963759, at *4 n.3 (E.D.N.Y. Oct. 19, 2011). Moreover, 28 U.S.C. § 1446(d) itself does not define the term "promptly." Courts in this Circuit have construed promptness to depend upon the circumstances of an individual case and have held that constructive notice may be sufficient to satisfy the demands of the statute. See, e.g., Ynoa v. Kutner, 2011 WL 1796320, at *2 (S.D.N.Y. May 5, 2011) (collecting cases) ("[S]everal courts [in this Circuit] have held that delays of more than a month in either filing the notice of removal with the state court or providing plaintiffs with written notice do not necessarily require remand."); McCall v. Greyhound Lines, Inc., 1998 WL 865626, at *2 (S.D.N.Y. Dec. 11, 1998) ("It is clear that constructive notice may be sufficient notice for the purposes of the statute." (citation omitted)). Further, where there has been some delay between when a defendant files a notice of removal and when a defendant provides a plaintiff with written notice that the removal has been filed, but where the plaintiff has not been prejudiced by the delay, remand is not required. See Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246, 248 (S.D.N.Y. 2000) ("[W]here, as here, the [month-long] delay was relatively short and no action was taken by the state court between the time of actual removal and the time of the requisite notice, the alleged defect is harmless and, not being jurisdictional, creates no basis for remand.").

Here, there is no dispute that Defendants listed Plaintiff's address incorrectly on the Affidavit of Service, and, accordingly, that they probably served the Notice of Removal on the wrong address.*fn4 But there is nothing to suggest this typographical error was made in bad faith. Moreover, as Plaintiff concedes, he was notified of the removal by way of the magistrate judge's February 14, 2011 Scheduling Order, which is dated only ten days after the Notice of Removal was filed. Accordingly, the Court finds taht Plaintiff's receipt of the magistrate judge's Scheduling Order within days after the Notice of Removal was filed, constitutes constructive notice that the instant matter was removed to this Court, in satisfaction of the promptness requirement of 28 U.S.C. § 1446(d). See Greyhound Lines, Inc., 1998 WL 865626, at *2 (finding that plaintiff received constructive notice of removal shortly after the notice was filed when she received an order from the federal court directing the parties to appear for an initial conference).

Plaintiff nonetheless asserts Defendants' "failure to serve process, in a timely fashion, undoubtedly affected the Plaintiff's ability to conduct research, fully understand what was involved, and, adequately prepare himself, ahead of the pre-trial conference of March 17, 2011. As a result, the Plaintiff's right to due process was seriously affected." (Pl.'s Omnibus Mem. at 11.) While the Court is sympathetic to Plaintiff's frustration at Defendants conceded error in mailing the written Notice of Removal to an incorrect address, Plaintiff was not prejudiced by mailing error because: (1) he received constructive notice of the removal a short time after it was filed; (2) no action occurred in the State court subsequent to the filing of the Notice of Removal with this Court; and (3) Plaintiff received a copy of the Notice or Removal prior to the first Scheduling Conference. Moreover, nothing dispositive occurred during the Scheduling Conference. The parties merely discussed possible settlement terms and agreed on the briefing schedule for motions. These administrative acts did not affect Plaintiff's due process rights.

Plaintiff also contends that Defendants' "failure to serve process was a calculated, deliberate and intentional strategy designed to take advantage of the Plaintiff's clearly stated willingness to settle the case and; [sic] of his lack of knowledge of the system and, ignorance of the procedures, which the defendants are well aware of." (Id. at 15.) The Court disagrees. There is no evidence in the record to support Plaintiff's allegations.

The Court finds Defendants' removal was proper. Accordingly, Plaintiff's motion to remand the ...


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