[email protected] [email protected] etc., et al....Nwafor; Hosea Karma; Bassey Abang and Johnson Babatunde Kokomo, Defendants. Civil Action No. 17-cv-01033-ESH Judge DABNEY

Bruce Fein (D.C. Bar #446615)

W. Bruce DelValle (D.C. Bar #1520906; pro hac vice pending)

FEIN & DELVALLE PLLC

300 New Jersey Avenue, N.W., Suite 900

Washington, D.C. 20001

Telephone: (202) 465-8728

Facsimile: (202) 347-0130

[email protected]

[email protected]

Attorneys for Plaintiffs.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

John Doe 1, etc., et al.

Plaintiffs,

v.

Tukur Yusuf Buratai; Lawal Musa Daura;

Ibrahim Attahiru; M.I. Ibrahim; Kasim

Umar Sidi; Issah Maigari Abdullahi;

Solomon Arase; Ibrahim Kpotun Idris;

Okezie Ikpeazu; Willie Obiano; Habila

Hosea; Peter Nwagbara; James Oshim

Nwafor; Hosea Karma; Bassey Abang and

Johnson Babatunde Kokomo,

Defendants.

Civil Action No. 17-cv-01033-ESH

Judge DABNEY L. FRIEDRICH

JURY TRIAL DEMANDED

PLAINTIFFS’

OPPOSITION TO MOTIONS TO DISMISS*

* For the Court’s convenience, this Response is in Opposition to both the Motion to Dismiss and Memo filed by all Defendants, Docket 36, and the additional Motion to Dismiss filed solely by

Defendant Willie Obiano, through co-counsel, Docket 35. Although Docket 36 is potentially

subject to a motion to strike pursuant to Fed. R. Civ. P. 12(g), in part, the Motion to Dismiss will

be addressed in full, given the vituperative internecine warfare as between counsel and co-

counsel for Defendant Obiano. See Docket 37.

Case 1:17-cv-01033-DLF Document 39 Filed 02/05/18 Page 1 of 41

mailto:[email protected]

i

Table of Authorities

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .................................................................................................................... 5

Baker v. Carr,

369 U.S. 186 (1962) .................................................................................................................. 20

Balco Ex Rel. Tapia v. Drummond Co., Inc.,

640 F. 3d 1338 (11th Cir. 2011) ................................................................................................ 28

Barr v. Clinton,

370 F.3d 1196 (D.C.Cir. 2004) ................................................................................................... 6

Belhas v. Ya’Alon,

515 F. 3d 1279 (D.C.Cir. 2008) ................................................................................................ 16

Bell Atlantic Corporation v. Twombly,

550 U.S. 544 (2007) .................................................................................................................... 5

Cabello v. Fernandez-Larios,

402 F. 3d 1148 (11th Cir. 2005) ................................................................................................ 24

Chavez v. Carranza,

559 F. 3d 486 ............................................................................................................................. 24

Chisolm v. Georgia,

2 U.S. 419 (1793) ...................................................................................................................... 32

Chowdhury v. Worldtel Bangladesh Holding, Ltd.,

746 F.3d 42 (2d Cir. 2014) ........................................................................................................ 34

Chuidian v. Philippine Nat'l Bank,

912 F.2d 1095 (9th Cir.1990) .................................................................................................... 15

Doe v. Constant,

354 Fed.Appx. 543 (2d Cir.2009) ............................................................................................. 29

Edwards v. California,

314 U.S. 160 (1941) .................................................................................................................. 31


ii

El-Fadl,

75 F.3d 668 (D.C. Cir. 1996) .................................................................................................... 15

*Enahoro v. Abubakar,

408 F.3d 877 (7th Cir. 2005) ......................................................................................... 13, 15, 27

Filartiga v. Pena-Iralta,

630 F. 2d 876 (2nd Cir. 1980) ........................................................................................... 7, 8, 29

Ford ex rel. Estate of Ford v. Garcia,

289 F. 3d 1283 (11th Cir. 2002) ................................................................................................ 24

Forti v. Suarez-Mason,

672 F. Supp. 1531 (N.D. Cal. 1987) ................................................................................... 22, 24

Giraldo v. Drummond Co.,

808 F.Supp. 2d 247 (D.D.C. 2011) ........................................................................................... 15

*Hilao v. Estate of Ferdinand Marcos,

103 F. 3d 767 (9th Cir. 1996) .................................................................................................... 25

*Hilao v. Estate of Marcos,

25 F. 3d 1467 (9th Cir. 1994) .................................................................................................... 13

Jean v. Dorelien,

431 F. 3d 776 (11th Cir. 2005) .................................................................................................. 27

Kadic v. Karadzic,

70 F.3d 232 (2d Cir. 1999) ...................................................................................... 20, 21, 25, 29

Khadr v. United States,

529 F.3d 1112 (D.C.Cir. 2008) ................................................................................................... 6

*Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) .................................................................................................................. 34

Lewis v. Mutond,

258 F.Supp. 3d 168 (D.D.C. 2017) ..................................................................................... 17, 18

*Mwani v. Bin Laden,

417 F. 3d 1 (D.C.Cir. 2005) ...................................................................................................... 34

Nanko Shipping, USA v. Alcoa, Inc.,

107 F.Supp.3d 174 (D.D.C. 2015) .............................................................................................. 6


iii

Nov. 2001 v. Fame Jeans, Inc.,

525 F.3d 8 (D.C.Cir.2008) .......................................................................................................... 5

Paul v. Avril,

812 F. Supp. 207 (S.D. Fla. 1993)............................................................................................. 14

Rector v. Holy Trinity Church,

143 U.S. 457 (1892) .................................................................................................................. 33

*Samantar v. Yousef,

560 U.S. 305 (2010) ................................................................................................ 15, 16, 19, 21

Settles v. U.S. Parole Comm’n,

429 F.3d 1098 (D.C.Cir.2005) .................................................................................................... 6

Siderman de Blake v. Republic of Argentina,

965 F. 2d 699 (9th Cir. 1992) ............................................................................................... 14

Sikhs for Justice v. Nath,

850 F.Supp.2d 435 (S.D. N.Y. 2012) ........................................................................................ 29

Smith v. Heckler,

820 F. 2d 1093 (9th Cir. 1987) .................................................................................................. 33

Speelman v. United States,

461 F.Supp.2d 71 (D.D.C.2006) ................................................................................................. 6

Spellman v. American Eagle Express, Inc.,

680 F.Supp.2d 188 (D.D.C. 2010) .............................................................................................. 5

Tcherepnin v. Knight,

389 U.S. 332 (1967) .................................................................................................................. 32

Tel–Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C.Cir.1984) .................................................................................................... 34

United States v. Ron Pair Enters.,

489 U.S. 235 (1989) .................................................................................................................. 33

*Warfaa v. Ali,

33 F.Supp.3d 653 (E.D. Va. 2014) ............................................................................................ 20

Winkelman v. Panama City Sch.,

Dis., 550 U.S. 516 (2007).......................................................................................................... 33


iv

Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir.2000) ......................................................................................................... 29

Xuncax v. Gramajo,

886 F. Supp. 162 (D. Mass. 1995) ............................................................................................ 25

In Re Yamashita,

327 U.S. 1 (1946) ...................................................................................................................... 24

*Yousef v. Samantar,

699 F. 3d 763 (4th Cir. 2012) ............................................................................................. passim

Zifotofsky v. Clinton,

566 U.S. 189 (2012) .................................................................................................................. 20

Statutes

18 U.S.C. 2340A ............................................................................................................................. 7

18 U.S.C. §1091 (e) (2) (D) .......................................................................................................... 30

18 U.S.C. §1651 ............................................................................................................................ 29

18 U.S.C. §2340A(b) .................................................................................................................... 30

28 U.S.C. §1330 (b) ...................................................................................................................... 30

*28 U.S.C.A. § 1350 ........................................................................................................... 4, 13, 33

28 U.S.C 1603 (a) ......................................................................................................................... 19

D.C. Code Section 16-2701 .......................................................................................................... 29

Rules

*Fed. R. Civ. P. 4(f)(2)(C)(ii) ................................................................................................. 25, 26

Fed. R. Civ. P. 12(b)(5)........................................................................................................... 25, 27

Federal Rule of Civil Procedure 8(a) .............................................................................................. 5

Federal Rule of Civil Procedure 12(b)(1) ....................................................................................... 6

FRCP. Rule 4(d)(4) ....................................................................................................................... 26


v

Rule 12 of the Federal Rules ......................................................................................................... 11

Rule 12(b)(6) of the Federal Rules of Civil Procedure ............................................................... 4, 5

Other Authorities

1992 U.S.C.C.A.N. 84 .................................................................................................................. 34

1992 U.S.C.C.A.N. at ................................................................................................................... 28

*H.Rept. 102-367, Part ....................................................................................................... 7, 28, 34

Mazin Sidahmed, “How the US war on piracy brought one Somali to a

West Virginia prison,” The Guardian (January 1, 2017) .............................................................. 30

S. 1696 ............................................................................................................................................ 8

*S. REP. NO. 102-249 ......................................................................................... 13, 22, 24, 28, 33


Page 1 of 35

COMES NOW Plaintiffs John Doe 1, John Doe 2, Jane Doe 3, John Doe 4, John Doe

5, John Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, and John Doe 10, who by and through

undersigned counsel file this Response in Opposition to the Motion to Dismiss of Defendants

(Docket 36): Tukur Yusuf Buratai (“Buratai”); Lawal Musa Daura (“Daura”); Ibrahim

Attahiru (“Attahiru”); M.I. Ibrahim (“Ibrahim”); Kasim Umar Sidi (“Sidi”); Issah Maigari

Abdullahi (“Abdullahi”); Solomon Arase (“Arase”); Ibrahim Kpotun Idris (“Idris”); Okezie

Ikpeazu (“Ikpeazu”); Willie Obiano (“Obiano”); Habila Hosea (“Hosea”); Peter Nwagbara

(“Nwagbara”); James Oshim Nwafor (“Nwafor”); Hosea Karma (“Karma”); Bassey Abang

(“Abang”); and, Johnson Babatunde Kokomo (“Kokomo”), hereinafter “Defendants”, and the

additional Motion to Dismiss filed by Defendant Obiano (Docket 35). In support hereof, Plaintiffs

shows the Court as follows:

I. STATEMENT

This Torture Victim Protection Act (TVPA) lawsuit against sixteen (16) individuals arises

from nine (9) extrajudicial killings and ten acts of 10 torture under color of Nigerian law of the

nine (9) representatives or wrongful death claimants of the deceased, Does 1-9, and the lone

survivor of torture, Doe 10. All Plaintiffs are Igbos and Biafrans. The decedents were members or

supporters of the Indigenous People of Biafra (IPOB). The group is dedicated to Martin Luther

King-like peaceful protests to restructure Nigeria. The objective is to end the chronic oppression

and genocidal persecution of predominantly Christian Biafrans, who reside primarily in the South-

Southeast Nigeria by the Muslim Hausa-Fulani who reside primarily in the Northern States and

have controlled the military since Nigeria’s independence in 1960. (Complaint, para. 44). Since

the filing of this TVPA lawsuit, and upon information and belief in response to this action, the


Page 2 of 35

Government of Nigeria has outlawed IPOB as a terrorist organization without notice or an

opportunity to be heard. Neither the United States nor any other country or international

organization has concurred in that terrorist characterization.

In 1960, Great Britain granted independence to its colonial possession, Nigeria. It handed

power to Nigerian officials whom it believed would do its bidding financially or otherwise. No

effort was made within Nigeria to enable its ethnically and tribally varied peoples, including Igbos

and Biafrans, to determine their political destinies. Biafrans, IPOB members and Igbos in general

are predominantly Judeo-Christian. Although a majority in the five (5) states of “Igboland” or

Biafra, which include Abia State and Anambra State – the site of the massacres at issue in this case

- Igbos are a numerical minority in Nigeria as a whole. They have been systematically oppressed

and brutalized by the predominantly Muslim Hausa-Fulani, who have dominated the Nigerian

military and police forces for more than 50 years since Nigerian independence. Throughout the

latter part of the 20th century and the entirety of the 21st century Biafrans and Igbos have been

chronically persecuted, massacred, and targeted for genocide in Nigeria. It is the chilling

extrajudicial killings and torture under color of Nigerian law on a genocidal scale that gave birth

to this litigation.

The right to peaceful assembly and association, as well as the right of freedom of

expression, is protected under the Nigerian constitution, the Universal Declaration of Human

Rights, and sister human rights conventions. Lethal military or police force to suppress freedom

of assembly, speech, or association—except in self-defense or defense of others under attack—is

illegal under Nigerian law.

The TVPA claims derive from Defendants’ complicity or command responsibility for

extrajudicial killings or torture in three incidents: a peaceful gathering of IPOB supporters or


Page 3 of 35

members in the St. Edmonds Catholic Church, Onitsha, Anambra State, May 29-30, 2016, to

celebrate Biafran Patriots Day (hereinafter “May 29-30 Incident”) (Complaint, para. 47-49); a

peaceful gathering of Igbos and IPOB supporters at the National High School on Port Harcourt

Road in Aba, Abia State on February 9, 2016, to protest, among other things, the continued

imprisonment of IPOB leader Nnamdi Kanu (hereinafter “February 9 incident”) (Complaint, para.

54-58, 153); and, a peaceful gathering at the National High School in Aba, Abia State on January

18, 2016, also to protest the continued imprisonment of IPOB-Biafran leader Nnamdi Kanu

(hereinafter “January 18 incident”) (Complaint, para. 188). Mr. Kanu has been missing since mid-

September 2017 after his home was attacked with military force by Nigerian military, police, and

militia security forces. Mr. Kanu’s whereabouts remains unknown as of this submission.

The Complaint alleges in Counts I-VI, TVPA claims for extrajudicial killings or torture

under color of Nigerian law stemming from the May 29-May 30 incident; in Counts VII-IX, TVPA

claims for extrajudicial killings or torture under color of Nigerian law stemming from the February

9 incident; and, in Count X, a TVPA claim for torture stemming from the January 18 incident.

Plaintiffs reasonably fear death if they were to seek judicial relief in Nigeria for

extrajudicial killings or torture. Nigeria’s judiciary is politically compromised and incapable of

providing relief against Defendants for their crimes against all mankind. (Complaint paras. 71-72).

Indeed, the Government of Nigeria since its birth 58 years ago has never prosecuted a single

member of its military, police, or militia security forces for a human rights crime against a Biafran,

including extrajudicial killing or torture. Similarly, the Third Reich never prosecuted a single

member of the Gestapo for an extrajudicial killing or torture of a Jew.

Plaintiffs also allege Defendants’ extrajudicial killings or torture violated Nigerian law.

(Complaint, para. 64). Each Defendant is an individual person sued in his individual capacity.


Page 4 of 35

(Complaint, para. 42). The allegations in the Complaint are clear that at all times relevant to this

action, each Defendant was in non-federal policy but powerful position of military, police militia

and administrative authority over the Plaintiffs and each is being sued in his individual capacity

alone. (Complaint para. 73-74). Each of the acts alleged in the Complaint, which must be taken

as true for the purposes of the Motions to Dismiss, comprise violations of universally agreed

upon norms of customary international law, and thus are not deemed official for purposes of the

act of state doctrine. Defendants’ criminal acts, which are universally illegal, do not present a

sensitive foreign policy issue. (Id.) The Complaint plainly alleges that all of the genocidal,

murderous, and depraved acts by Defendants, acting in their individual capacities, and those in

their command or control, were committed in violation of the law of nations and treaties of the

United States and are universally condemned as being odious to human rights and dignity under

28 U.S.C.A. § 1350 and the TVPA. (Id.)

The clear policies of the United States to protect human rights abroad that is codified in the

TVPA and 28 U.S.C.A. § 1350 are manifested and furthered by this action. (Id.).

Despite an overture by the Government of Nigeria, the United States Department of State

has refrained from suggesting any Defendant is immune from Plaintiffs’ TVPA claims under

federal common law or otherwise. Neither has the State Department suggested that any Defendant

is a “head of state” in Nigeria. Any argument to the contrary should be disregarded.

ARGUMENT

A. STANDARD OF REVIEW.

In entertaining a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, the Court must assess the plausibility of the Plaintiff’s claims

based on experience, the considered views of leading commentators, common sense, or otherwise.


Page 5 of 35

Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 566 (2007). The facts alleged in the

Complaint by the non-moving party must be accepted as true, and all reasonable inferences must

be drawn in Plaintiffs’ favor. A motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly

stated a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). A

complaint must be sufficient “to give a defendant fair notice of what the ... claim is and the grounds

upon which it rests.” Twombly, 550 U.S. at 555. (internal citations omitted). Although a complaint

does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. The facts alleged, “must be enough to raise a right

to relief above the speculative level.” Id. Rule 8(a) requires an actual showing and not just a blanket

assertion of a right to relief. Id., at 555, n. 3. “[A] complaint needs some information about the

circumstances giving rise to the claims.” Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525

F.3d 8, 16 n. 4 (D.C.Cir.2008) (emphasis in original).

However, a court must treat the complaint’s factual allegations as true, “even if doubtful

in fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth

in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “While legal

conclusions can provide the framework of a complaint, they must be supported by factual

allegations. When there are well-pleaded factual allegations, a court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.” Id., at 678;

Spellman v. American Eagle Express, Inc., 680 F.Supp.2d 188, 190 (D.D.C. 2010).


Page 6 of 35

Plaintiffs have stated a claim for relief under each Count of the Complaint and the Motions

to Dismiss should be denied.

Conversely, a motion to dismiss based on lack of standing to sue as a legal entity is

governed by Federal Rule of Civil Procedure 12(b)(1). When reviewing a motion to dismiss for

lack of standing/jurisdiction, a court must review the complaint liberally, granting the plaintiff the

benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196,

1199 (D.C.Cir. 2004); Nanko Shipping, USA v. Alcoa, Inc., 107 F.Supp.3d 174, 178 (D.D.C. 2015).

However, “the court need not accept factual inferences drawn by plaintiffs if those inferences are

not supported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal

conclusions.” Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C.2006). To determine

whether it has jurisdiction over a claim, the court may consider materials outside the pleadings.

Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C.Cir.2005); Nanko Shipping, 107

F.Supp.3d at 179. The burden of demonstrating that such jurisdiction exists must be borne by the

party claiming subject matter jurisdiction. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.

2008). Plaintiffs have adequately pled and demonstrated standing for each Count of the Complaint

and the Motions to Dismiss should be denied.

B. LEGAL AND FACTUAL LANDSCAPE

Torture or extrajudicial killings are crimes against humanity. No circumstances justify or

mitigate them. They are universal crimes against all mankind. No government can confer

authority on any official to perpetrate them. Defendants do not contend that Nigerian law makes

extrajudicial killings or torture under color of Nigerian law legal.

The crimes violate the Convention Against Torture (CAT) to which the United States and

Nigeria are signatories; the Rome Statute of the International Criminal Court (Article 7 (1) (f)


Page 7 of 35

characterizing torture as a crime against humanity), Article V of the Universal Declaration of

Human Rights, Article 7 of the International Covenant on Civil and Political Rights, and, the

federal criminal code, 18 U.S. C. 2340A. The United States Court of Appeals for the Second

Circuit explained in Filartiga v. Pena-Iralta, 630 F. 2d 876, 890 (2nd Cir. 1980):

“Among the rights universally proclaimed by all nations…is the right to be free of physical

torture. Indeed, for purposes of civil liability, the torturer has become like the pirate and

slave trader before him hostis humani generis, an enemy of all mankind.”

The TVPA fulfills in part the enforcement obligations of the United States under the CAT.

The TVPA companion House Report elaborated:

“[T]his Convention [CAT] obligates state parties to adopt measures to ensure that

torturers are held legally accountable for their acts.

One such obligation is to provide means of civil redress to victims of torture.

Judicial protections against flagrant human rights violations are often least effective

in those countries where such abuses are most prevalent. A state that practices

torture and summary execution is not one that adheres to the rule of law. The

general collapses of democratic institutions characteristic of countries scourged by

massive violations of fundamental rights rarely leaves the judiciary intact. The

Torture Victim Protection Act…would respond to this situation.” H.Rept. 102-367,

Part 1, 102nd Cong., 1st Sess. p.3.

Seeking a remedy for the extrajudicial torture and killing of Plaintiffs or the decedents they

represent in Nigeria would be futile because the Nigerian judicial system has been politically

compromised by Defendants and their political agents against IPOB/Igbo claimants, such that

Defendants will not and have not been brought to justice. Moreover, as the Complaint alleges, any

efforts to obtain redress in Nigeria would be futile and Plaintiffs would in fact risk certain death at

the hands of the Government of Nigeria or Defendants exercising command responsibility if they

sought a remedy in Nigeria for the extrajudicial killings and tortures at issue in this case.

(Complaint, page 1; and paras: 75, 88-89, 101-102, 114-115, 125-126, 136-137, 148-149, 159-


Page 8 of 35

160, 171-172, 181-182, and 194-195. These circumstances demonstrate there are no adequate

and available remedies for these Plaintiffs to exhaust in Nigeria.

The TVPA endows individuals or their legal representatives with a civil damages remedy

in Article III courts for the universal crimes of torture or extrajudicial killings perpetrated by

individuals under color of foreign law wherever they occur. A crime against mankind

constructively occurs everywhere in the world; and, every jurisdiction possesses authority to

prosecute or otherwise create a remedy for the violation. Like pirates, every torturer or murderer

acting under color of foreign law is on constructive notice that they may be held accountable for

their crimes against all mankind in any jurisdiction that asserts itself.

The TVPA was enacted because of the epidemic of government sponsored or condoned

torture or extrajudicial killings around the globe. The House Report, 102-367, Part 1, 102nd

Cong., 1st Sess. p.3-4, explained:

“[U]niversal principles [criminalizing torture or extrajudicial killings] provide scant

comfort…to the many thousands of victims of torture and summary executions around the

world. Despite universal condemnation of these abuses, many of the world’s governments

still engage in or tolerate torture of their citizens, and state authorities have killed hundreds

of thousands of people in recent years. (See ‘Amnesty International, Political Killings by

Governments 5’ (1983)). Too often, international standards forbidding torture and

summary executions are honored in the breach.” Id. See also., Testimony of Amnesty

International USA on The Torture Victim Protection Act, S. 1696, Presented to the

Subcommittee on Immigration and Refugee Affairs of the Senate Judiciary Committee,

June 22, 1990.

President George H. W. Bush’s March 12, 1992, signing statement acknowledged the

TVPA’s potential to ruffle feathers abroad and invite litigation in Article III courts by aliens

against aliens. But the President concluded that preventing enemies of all mankind from evading

justice was worth the risk:

“There is…a danger that U.S. courts may become embroiled in difficult and

sensitive disputes in other countries…The expansion of litigation by aliens against


Page 9 of 35

aliens is a matter that must be approached with prudence and restraint…These

potential dangers, however, do not concern the fundamental goals that this

legislation seeks to advance…[W]e must maintain and strengthen our commitment

to ensuring human rights are respected everywhere.”

The 2016 United States State Department Human Rights Report on Nigeria supports

Plaintiffs’ TVPA claims of extrajudicial killings or torture. The Report found:

“There were numerous reports the government or its agents committed numerous

arbitrary and unlawful killings. The national police, army, and other security

services used lethal and excessive force to disperse protesters and apprehend

criminals and suspects and committed other extrajudicial killings. Authorities

generally did not hold police, military, or other security force personnel accountable

for the use of excessive or deadly force or for the deaths of persons in custody. State

and federal panels of inquiry investigating suspicious deaths did not make their

findings public. The use by security services of excessive force, including live

ammunition, to deal with protesters and disperse demonstrators resulted in

numerous killings. On February 9, police and military personnel reportedly used

live ammunition to disperse protesting members or supporters of the separatist

Indigenous People of Biafra (IPOB) movement at a school in Aba, Abia State,

killing at least nine. In June Amnesty International (AI) published the findings of

an investigation, concluding that on May 29-30, police and military personnel in

Onitsha, Anambra State, killed at least 17 IPOB members or supporters ahead of

a planned political demonstration. According to a September AI report, since

August 2015 security forces killed at least 150 IPOB members or supporters and

arbitrarily arrested hundreds. As of December, the government had not

investigated these incidents.” (Italics supplied).

Regarding torture under color of Nigerian law, the 2016 State Department Report also

elaborated:

The constitution and law prohibit torture and other cruel, inhuman, or degrading

treatment…[P]olice often used torture to extract confessions later used to try

suspects. Police also repeatedly mistreated civilians to extort money. In September

Amnesty International reported police officers in the Special Antirobbery Squad

(SARS) regularly tortured detainees in custody as a means of extracting confessions

and bribes.”

Current Nigerian President Buhari, a former military dictator who previously overthrew

the duly elected leader of Nigeria in a bloody 1983 military coup d’état and served until 1985

when a military coup terminated his dictatorship, has voiced implacable opposition to IPOB. In


Page 10 of 35

May 2016, the former military dictator thundered: “We will not let that [division of Nigeria]

happen. For Nigeria to divide now, it is better for all of us to jump into the sea and get drowned.”

An authoritative 2016 Amnesty International Report attached hereto as Exhibit “1”,

entitled “Nigeria: ‘Bullets Were Raining Everywhere, Deadly Repression of Pro-Biafra Activists,”

further substantiates Plaintiffs’ TVPA claims. In compiling the Report, Amnesty International

interviewed 193 people and analyzed 87 videos and 122 photographs showing Igbo/IPOB

assemblies, members of the security forces committing human rights violations and victims of

these violations. On September 30, 2016, Amnesty International wrote to the Nigerian authorities

including the military, police, and officials of the State Security Service to share the findings.

Responses were received from the Federal Minister of Justice and Attorney General and Inspector

General of Police but neither answered the questions raised in the letter. Regarding the May 29-

30 incident at issue in this action, Amnesty International found:

“By far the largest number of pro-Biafra activists were killed on 30 May 2016,

Biafra Remembrance Day, during events to mark the 49th anniversary of the

declaration of the Republic of Biafra, when an estimated 1,000-plus IPOB members

and supporters gathered for a rally in Onitsha, Anambra state. The night before the

rally, a joint security task force raided homes and a church where IPOB members

were sleeping.

On Remembrance Day itself, the security forces shot people in several locations,

predominantly in Nkpor, the venue for the gathering, and in Asaba. Amnesty

International has not been able to verify the exact number of extrajudicial

executions but estimates that at least 60 people were killed and 70 injured in these

two days. The real number is likely to be higher.”

Regarding the February 9 incident at issue in this action, Amnesty International found:

“The shooting on 9 February 2016 at Aba National High School, which bystanders

and pro-Biafran activists filmed from beginning till end, shows total disrespect for

human rights on the part of the Nigerian military. The video footage, reviewed and

verified by Amnesty International, shows that soldiers ran into the field and

surrounded the pro-Biafra activists, who were unarmed and not violent…The

military fired live ammunition…A 35-year-old trader told Amnesty International:


Page 11 of 35

‘As the IPOB coordinators were addressing us, the army surrounded us. The

commander of the army came out and ordered the coordinators to come out and

they were taken away…[W]e were praying. The soldiers did not leave the scene

but were spreading out and encircling us. They were shooting live bullets.’

Another 50-year-old eyewitness said: ‘I saw the army people shooting IPOB people

with their guns. They killed eight, which they took in their Hilux, they carried them

in their Hilux and sat on top of them.’

The video evidence shows that this was not a law enforcement operation aimed at

controlling the assembled crowd. Instead it was a military operation intended to

kill and injure.

On 13 February, 13 corpses were discovered in a pit along the Aba-Port Harcourt

expressway. According to local human rights defenders these were men who were

taken away by the military on 9 February. Two weeks later the bodies were burned.

Despite the strong evidence of these extrajudicial executions in Aba, including

video footage of the actual killings, there was no investigation into the incident and

no military personnel were prosecuted.

The total lack of accountability is evident in all the cases documented by Amnesty

International.”

Again, the United States State Department relied upon the findings and report of Amnesty

International regarding the matters at issue in this action. That these genocidal massacres and

inhumane acts of torture occurred as alleged cannot be seriously doubted and dismissal of this

action cannot lie on the grounds of Rule 12(b)(6).

C. DEFENDANTS’ MOTIONS TO DISMISS

All Defendants moved to dismiss the Complaint under Rule 12 of the Federal Rules of

Procedure in a motion filed by Anthony O. Egbase of A.O.E. Law & Associates, APC on

November 30, 2017, with an attached supporting Memorandum of Law (hereinafter “Docket 36-

1”). Defendant Willie Obiano filed a separate Motion to Dismiss with an incorporated supporting

Memorandum of Law on November 29, 2017 ostensibly represented by Jude C. Iweanoge of The

Iweanoges’ Firm, PC. (hereinafter “Docket 35”). The two law firms are disputing which represents


Page 12 of 35

Defendant Obiano and The Iweanoges firm has on December 1, 2017, filed a Motion with the

Court seeking to “strike” the Egbase Firm, Docket 37. Undersigned counsel for Plaintiffs takes no

position regarding this rather bizarre dispute as between opposing counsel, save to strenuously

object to any effort to simply undo prior stipulations on behalf of Defendant Obiano, or any

Defendant for that matter, long after the quid pro quo for said stipulations has been realized and

the negotiated benefit received by Defendant Obiano. Accordingly, Plaintiffs will respond to both

motions to in this single Memorandum in Opposition.

Mr. Egbase argues in favor of dismissal based on foreign official immunity, the political

question doctrine, the act of state doctrine, failure to state a claim, and lack of personal jurisdiction.

Mr. Iweanoges argues in favor of dismissal based on alleged defective service, failure to exhaust

Nigerian remedies, lack of standing or capacity to sue, and failure to state a claim of aiding or

abetting or conspiracy.

D. THE FOREIGN-OFFICIAL IMMUNITY DOCTRINE DOES NOT DEPRIVE THIS

COURT OF SUBJECT-MATTER JURISDICTION.

The foreign policy of the United States, as authoritatively established by Congress in the

Alien Tort Claims Act and the Torture Victims Protection Act is to deter and to sanction through

private civil lawsuits for damages in the United States torture and extrajudicial killings—both

crimes against humanity—perpetrated by any individual under color of foreign law. The foreign

policy of the United States envisions that defendants in TVPA actions will have acted under the

aegis or support of foreign government authority in exercising command responsibilities.

The Complaint alleges that each of the Defendants in this TVPA action are sued in their

individual capacities alone. (Complaint para. 73-74, 203). The Complaint also alleges that all

Defendants occupy non-policy but powerful positions of military, police, and militia authority.


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(Complaint para. 73). Defendants’ alleged acts violated universally applicable jus cogens norms

of customary international law. The acts are not deemed official for purposes of the act of state

doctrine because no nation has power to exempt itself from jus cogens norms of customary

international law. Torture and extrajudicial killing under color of foreign law do not present a

sensitive foreign policy issue, particularly since all such genocidal, murderous and depraved acts

by Defendants, and those under their command or control alleged herein were committed in

violation of the law of nations and treaties of the United States and are universally condemned as

being odious to human rights and dignity under 28 U.S.C.A. § 1350. The clear policy of the United

States to protect human rights abroad, codified in the TVPA and 28 U.S.C.A. § 1350, are furthered

by this action.

Each Defendant is sued for extrajudicial killings or torture as an individual in his individual

capacity. None can claim foreign official immunity under federal common law or otherwise.

Torture violates both the CAT and Nigerian domestic law. Acts in violation of international and

domestic law fall outside the scope of “official acts.” See, e.g., Enahoro v. Abubakar, 408 F.3d

877, 893 (7th Cir. 2005) , cert. denied, 546 U.S. 1175 (2006) (“officials receive no immunity for

acts that violate international jus cogens human rights norms (which by definition are not legally

authorized acts.”); Hilao v. Estate of Marcos, 25 F. 3d 1467, 1472 (9th Cir. 1994) (“acts of torture,

execution, and disappearance were clearly outside [Marcos’] authority as President.”); see also

Torture Victim Protection Act of 1991, S. REP. NO. 102-249 at 8 (1991) (“[B]ecause no state

officially condones torture or extrajudicial killings, few such acts, if any, fall under the rubric of

‘official actions’ taken in the course of an official’s duties.”). Thus, the United States Court of

Appeals for the Fourth Circuit specifically held in Yousef v. Samantar, 699 F. 3d 763, 778 (4th Cir.


Page 14 of 35

2012), that the TVPA does not recognize foreign official immunity under federal common law for

torture, extrajudicial killings, or other conduct in violation of international and domestic law:

Because this [TVPA] case involves acts that violated jus cogens norms, including

torture, extrajudicial killings and prolonged arbitrary imprisonment of politically

and ethnically disfavored groups, we conclude that Samantar is not entitled to

conduct-based official immunity under common law.

The, Court further reasoned, 699 F. 3d at 775-776:

Unlike private acts that do not come within the scope of foreign official immunity,

jus cogens violations may well be committed under color of law and, in that sense,

constitute acts performed in the course of the foreign official’s employment by the

Sovereign. However, as a matter of international and domestic law, jus cogens

violations are, by definition, acts that are not officially authorized by the Sovereign.

See, e.g., Siderman de Blake [v. Republic of Argentina], 965 F. 2d [699,] 718 [9th

Cir. 1992] (“International law does not recognize an act that violates jus cogens as

a sovereign act."); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993) ("[A]cts ...

[of torture, cruel, inhuman and degrading treatment, and arbitrary detention in

violation of customary international law] hardly qualify as official public acts.").

(footnote omitted).

Finally, the Fourth Circuit concluded at 699 F. 3d at 777:

We conclude that, under international and domestic law, officials from other countries are

not entitled to foreign official immunity for jus cogens violations, even if the acts were

performed in the defendant’s official capacity.

Paragraphs 2 and 3 of section 2 of the CAT, ratified by both the United States and Nigeria,

categorically condemn torture:

“2. No exceptional circumstances whatsoever, whether a state of war or a threat of

war, internal political instability or any other public emergency, may be invoked as

a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a

justification of torture.

Suppose the TVPA had been enacted in World War II. Defendants take the morally

reprehensible and legally untenable position that guards at extermination camps like Auschwitz or

Bergen-Belson who followed orders in the manner Adolf Eichmann would enjoy an official


Page 15 of 35

immunity defense for their genocidal extrajudicial murders ordered by Adolf Hitler or Herman

Goering! Egbase advances an Eichmann-esque “following orders” immunity defense on behalf

of all Defendants. Docket 36-1, p. 11. Defendants argue they were simply following orders in

doing what the Complaint alleges they did, i.e., order or condone the extrajudicial killings or

torture of Plaintiffs in a Nigerian government genocidal campaign against Biafrans.

Defendants argument for immunity based upon the Foreign Sovereign Immunities Act is

misplaced. The argument relies primarily on the decisions in El-Fadl, 75 F.3d 668, 671 (D.C. Cir.

1996) (sic) and Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095 (9th Cir.1990)1. See Docket 35,

p.8. But the holdings and rationales of those twin decisions were rejected by the Supreme Court in

Samantar v. Yousef, 560 U.S. 305 (2010), and are no longer good law.

Defendants’ reliance on Giraldo v. Drummond Co., 808 F.Supp. 2d 247 (D.D.C. 2011) is

equally misplaced. Docket 36-1, p. 12. There, a deposition of a non-party former head of state,

Alvaro Uribe of Colombia, was sought to obtain testimony allegedly relevant to a pending TVPA

and Alien Tort Statute Suit. The United States filed a Statement of Interest suggesting that Uribe

was immune from testifying about information concerning actions taken in his official capacity as

a government official or received in his official capacity as a government official. The District

Court denied Plaintiff’s motion to compel. It reasoned that “Plaintiffs fail to cite any case that

hold allegations of violations of jus cogens norms will defeat foreign official immunity.” Here,

1 Defendant Obiano’s reliance on the Chuidan decision is puzzling and indicative of the lack of

merit in Defendants’ arguments on the question of immunity, as that Court expressly held that

“[s]overeign immunity ... will not shield an official who acts beyond the scope of his authority,”

Chuidian, 912 F.2d at 1106. It follows that “officials receive no immunity for acts that violate

international jus cogens human rights norms (which by definition are not legally authorized

acts).” Abubakar, 408 F.3d at 893) (affirming no immunity in case involving Nigerian General

and former head of state)(J. Cudahy concurrence in relevant part and result).


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Plaintiffs have satisfied the District Court’s concern by citing the Fourth Circuit’s decision in

Yousef v. Samantar, 699 F. 3d 763, (decided one year after Giraldo), which holds that allegations

of violations of jus cogens norms defeat foreign official immunity under the TVPA or otherwise.

Yousef v. Samantar is good law and controls on this issue, having been affirmed by the Supreme

Court. Samantar v. Yousuf, 560 U.S. 305 (2010). Defendants conspicuously fail to address that

controlling precedent. Moreover, in contrast to Giraldo, here the United States has pointedly

refrained from filing a Statement of Interest despite aggressive lobbying for same by Defendants

and the Government of Nigeria. Additionally, Giraldo concerned a non-party deponent who had

not been sued for torture or extrajudicial killing under the TVPA or ATS. Here, every Defendant

has been sued personally under the TVPA for such jus cogens violations.

Defendants’ reliance on Belhas v. Ya’Alon, 515 F. 3d 1279 (D.C.Cir. 2008) is also

unconvincing. Docket 36-1, p. 12. In that case, the Court of Appeals wrongly treated the suit

against an individual Defendant for acts in his official capacity as a general in the Israeli Defense

Forces as a suit against Israel under the Foreign Sovereign Immunities Act (FSIA). It concluded

that there was no jus cogens exception for suits against foreign sovereigns under FSIA, and

affirmed dismissal of the suit. But Samantar v. Yousef, 560 U.S. at 319, holds that suits against

foreign individuals for actions taken in their foreign official capacities are not suits against a

foreign sovereign governed by the FSIA. Belhas thus pivoted on an erroneous understanding of

the law. The Belhas Court did not address the TVPA issue confronted head on by the Fourth Circuit

in Yousef v. Samantar, 699 F. 3d 763 namely, whether a jus cogens violation defeats a foreign

official immunity defense in TVPA suits based on extrajudicial killing or torture. In the latter case,

the Fourth Circuit distinguished Belhas on the ground that the latter interpreted immunity under

the FSIA, not the TVPA.


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In addition, Belhas implicated acts allegedly taken by the military (IDF) of the state of

Israel in the conduct of hostile operations in a foreign country, i.e., Lebanon. In contrast, here

Plaintiffs are challenging genocidal torture and extrajudicial killings perpetrated by Defendants

not in wartime, not outside their own country, and corroborated by meticulous factual findings of

Amnesty International and the human rights report of the United States Department of State. The

IDF’s reputation for lawful behavior sharply contrasts with Nigeria’s security forces, which have

acquired notoriety for torture or extrajudicial killing, as recognized by the United States State

Department and Amnesty International, among others. To repeat, the Government of Nigeria has

never prosecuted even one member of its security personnel or their superiors for human rights

crimes against Biafrans in 58 years notwithstanding mountainous incriminating evidence.

It speaks volumes that Defendants do not contend the Government of Nigeria is seriously

investigating the crimes against humanity alleged in the Complaint.’ Instead, Defendants’ counsels

each offer transparently concocted justifications for the torture and genocidal murders at issue sub

judice that are directly at odds with the findings of the United States State Department and

Amnesty International and otherwise inherently incredible. The TVPA was enacted precisely

because Nigeria and similar lawless nations practice or condone torture or extrajudicial killing. To

reiterate the House Report quoted at p.9:

“[U]niversal principles [criminalizing torture or extrajudicial killings] provide scant

comfort…to the many thousands of victims of torture and summary executions around the

world. Despite universal condemnation of these abuses, many of the world’s governments

still engage in or tolerate torture of their citizens, and state authorities have killed hundreds

of thousands of people in recent years. (See ‘Amnesty International, Political Killings by

Governments 5’ (1983)). Too often, international standards forbidding torture and

summary executions are honored in the breach.”.


Page 18 of 35

The District Court’s decision in Lewis v. Mutond, 258 F.Supp. 3d 168 (D.D.C. 2017) is

distinguishable from this case pivoting on Defendants’ violations of jus cogens norms universally

illegal, not on violations of a foreign nation’s constitution. In Mutond, the TVPA Plaintiff brought

suit for unlawful detention and torture against the General Administrator of the National

Intelligence Agency of the Democratic Republic of the Congo (DRC) and the DRC Minister of

Justice. The District Court held the Defendants were entitled to federal common law official

immunity because the Plaintiff alleged their wrongdoing violated the DRC constitution, whose

resolution would require enforcing a rule of law against the DRC. Id., 258 F.Supp. 3d at 174.

The District Court also stated that federal common law immunity would also extend to

foreign officials for acts that violated international principles of jus cogens. Id. Plaintiffs submit

the District Court cleared erred in that statement for at least three reasons. Firstly, it declined to

take issue with any of the reasoning of the Fourth Circuit in Yousef v. Samantar, 699 F.3d 763,

which reached a contrary conclusion. Secondly, it wrongly assumed that the text and purpose of

the TVPA does not convey a plain congressional intent that federal courts assume jurisdiction over

the epidemic of torture or extrajudicial killing under color of foreign law that were making a

mockery of human rights. Indeed, as elaborated above, it was precisely that epidemic that fueled

congressional support for the TVPA. Finally, the Mutond Court failed to consider that the TVPA

would shrivel into nothingness and the protracted congressional labors that brought it into being

would have been in vain if notwithstanding the statute, foreign individuals guilty of torture or

extrajudicial killing under color of foreign law (e.g., foreign officials) enjoy official common law

immunity from a TVPA suit. Virtually every TVPA defendant commits torture or an extrajudicial

killing in the course of his or her official duties and with the support of his or her foreign

government. If that were not the case, the TVPA defendant would be prosecuted by the foreign


Page 19 of 35

government’s domestic courts and no TVPA action would lie because of the statutory requirement

that a plaintiff exhaust adequate and available domestic remedies. The District Court’s decision

in Mutond wrongly imputes to Congress an obtuse intent to make the TVPA an edentulous human

rights ornament by shielding all realistically imaginable TVPA defendants from suit through

common law immunity. This Court should not echo, follow, or endorse the clear error of Mutond.

In sum, Defendants’ the Motion to Dismiss based on foreign official immunity defenses

should be denied.

E. HEAD OF STATE IMMUNITY DOES NOT DEPRIVE THIS COURT OF

SUBJECT-MATTER JURISDICTION.

Defendants Ikpeazu and Obiano argue as state governors of Abia State and Anambra State

respectively, they are entitled to head of state immunity. Docket 36-1, p. 10. Tellingly, neither

claims to be heads of state of the Republic of Nigeria, nor could they. Neither presents an affidavit

or evidence to that effect. Nor do they claim recognition as heads of state by the United States or

any other government or international body. They note that the FSIA specifically defines a foreign

state as including a political subdivision of the state in 28 U.S.C 1603 (a). They then leap to the

conclusion that the common law treats the heads of political subdivisions as head of state for

purposes of immunity. That is a non-sequitur. The Supreme Court instructed in Samantar v.

Yousef, 560 U.S. at 319-21, that FSIA statutory immunities are distinct from common law

immunities and should not be conflated. The head of state in Nigeria is President Buhari, not 36

state governors.

C. THE POLITICAL QUESTION DOCTRINE DOES NOT DEPRIVE THIS COURT

OF JURISDICTION.

Defendants argue that the issue of whether they engaged in genocidal extrajudicial killings

or torture of Biafrans under color of Nigerian law in violation of the TVPA and jus cogens norms


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of customary international law raises a non-justiciable political question. Docket 36-1 15-17. The

argument is frivolous. A determination of whether an individual has committed a TVPA violation

is a judicial, rather than an executive function, contrary to Defendants. Id., p. 16. The Supreme

Court taught in Zifotofsky v. Clinton, 566 U.S. 189, 196 (2012), that judicial vindication of a

statutory right does not “supplant a foreign policy decision of the political branches with the courts’

own unmoored determination of what United States policy…should be…This is a familiar judicial

exercise.” Zifotofsky held that a judicial determination of whether a child born in Jerusalem had a

statutory right to have his place of birth listed as “Israel” in his passport did not present a non-

justiciable political question despite potential foreign policy ramifications. Id., 566 U.S. at 201.

Relying on Baker v. Carr, 369 U.S. 186 (1962), a malapportionment case, Defendants next

contend that there is a textually demonstrable constitutional commitment to the Executive Branch

to resolve TVPA claims. Defendants fail to reference even one word of the Constitution’s text to

support their fanciful argument. Their argument is nothing more than an atextual ipse dixit.

Docket 36-1, p. 16.

Defendants also argue that there are no judicially manageable standards for deciding TVPA

claims. Id. That argument is equally absurd. Extrajudicial killings and torture are specifically

defined in the TVPA. No court has ever been baffled in applying these terms in adjudicating

TVPA claims. They have been staples of litigation for centuries. That is why Defendants are

unable to cite a single case dismissing a TVPA suit based on a lack of judicial guidance or authority

as to the meaning of torture or extrajudicial killing. Indeed, there is no question but that “the

resolution of claims brought under the TVPA has been constitutionally committed to the

Judiciary.” Warfaa v. Ali, 33 F.Supp.3d 653, 660 (E.D. Va. 2014), citing Kadic v. Karadzic, 70

F.3d 232, 249-50 (2d Cir. 1999).


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Defendants imaginatively maintain that this Court could not adjudicate Plaintiffs’ TVPA

claims without an “initial policy decision determination” regarding whether and how this country’s

government will view and support Nigeria’s efforts to protect its territorial integrity from the threat

of secession. Id. To the contrary, both Congress and the President in enacting and signing the

TVPA have made the policy decision that the legal representatives or heirs of the victims of the

universal crimes of extrajudicial killing or torture under color of foreign law deserve an

opportunity to obtain redress in United States courts. It is rudimentary that Article III courts make

no policy decisions of their own in entertaining TVPA claims. Additionally, in this very case,

despite the desperate pleas of the Nigerian government, the Executive Branch has pointedly

refrained from interposing any objection to the adjudication of Plaintiffs’ TVPA claims.

Defendants hysterically insist that such adjudication would threaten Nigeria with

balkanization. Docket 36-1, p. 16. If that is true, it testifies to the illegitimacy of the Government

of Nigeria and its genocide of Biafrans. The Republic of Nigeria has no right to lasso this Court

into helping it maintain its grip on power through the disregard of United States and international

law.

In sum, Defendants’ political question defense should be rejected and the Motion to

Dismiss denied.

D. THE ACT OF STATE DOCTRINE DOES NOT DEPRIVE THIS COURT OF

SUBJECT-MATTER JURISDICTION.

Defendants bizarrely maintain that the act of state doctrine protects them from adjudication by

this Court of their complicity in the extrajudicial killings and torture of Plaintiffs in violation of

international and domestic law. Nigeria is a signatory to the CAT, which categorically prohibits

torture. Defendants do not argue that Nigerian laws authorize torture or extrajudicial killing under


Page 22 of 35

color of Nigerian law. Defendants sued in their individual capacities do not represent the

sovereign. Samantar v. Yousef, supra. Adjudicating Plaintiffs’ TVPA claims does not call into

question the legality of any sovereign act of the Nigerian government.

Indeed, no government possesses the power to legalize universal crimes like torture or

extrajudicial killing under color of law. Thus, the Senate Report on the TVPA related: “[T]he

committee does not intend the ‘act of state’ doctrine to provide a shield for former officials…Since

the doctrine applies only to ‘public’ acts, and no state commits torture as a matter of public policy,

this doctrine cannot shield former officials from liability under this legislation.” S.Rep. No. 249,

102nd Cong., 1st Sess., at section IV (D) (1991). See also Forti v. Suarez-Mason, 672 F. Supp.

1531, 1546 (N.D. Cal. 1987) (“[S]ince violations of the law of nations virtually all involve acts

practiced, encouraged or condoned by states, defendant’s [act of state] argument would in effect

preclude litigation under [the ATS} for ‘torts…committed in violation of the law of nations.”

E. DISMISSAL FOR FAILURE TO STATE A CLAIM IS NOT WARRANTED.

Defendants maintain that Plaintiffs fail to allege “extrajudicial killings” by omitting any

allegations that would justify the conclusion that they were “deliberate.” Docket 36-1 20. The

TVPA’s definition requires that the killing be “deliberated.” Section 3 (a). Count I of the

Complaint alleges that during the late hours of May 29, 2016 or early hours of May 30, 2016, the

victim of Defendants’ extrajudicial killing was severely injured in an attack on the St. Edmunds

Catholic Church along Umoji Road at Nkpor in Anambra State by the Special Anti-Robbery Squad

(SARS), a police unit notorious for torturing its victims with impunity; that the victim died of the

injuries on June 5, 2016, in the Living World Hospital, Aba, Abia State; that the motivation for

the Defendants’ extrajudicial killing was the victim’s support for IPOB and his plan to celebrate

peacefully the Biafra/Igbo Heroes Day Anniversary and to retaliate because of his ethnicity and


Page 23 of 35

political views; and, that the legal representative or wrongful death claimant of the victim of the

extrajudicial killing would risk certain death by Defendants if a remedy for the murder was sought

in Nigeria. Defendants preposterously argue that these allegations would not justify the inference

that the they were implicated in a killing that was deliberate and undertaken with studied

consideration and purpose. Docket 36-1 20. But it is self-evident that to kill because of the

victim’s ethnicity or political views implies deliberation and purpose. Moreover, the authoritative

2016 Amnesty International Report, attached hereto as Exhibit “1”, elaborates:

“By far the largest number of pro-Biafra activists were killed on 30 May 2016,

Biafra Remembrance Day, during events to mark the 49th anniversary of the

declaration of the Republic of Biafra, when an estimated 1,000-plus IPOB members

and supporters gathered for a rally in Onitsha, Anambra state. The night before the

rally, a joint security task force raided homes and a church where IPOB members

were sleeping.

On Remembrance Day itself, the security forces shot people in several locations,

predominantly in Nkpor, the venue for the gathering, and in Asaba. Amnesty

International has not been able to verify the exact number of extrajudicial

executions but estimates that at least 60 people were killed and 70 injured in these

two days. The real number is likely to be higher.”

Plaintiffs’ remaining TVPA counts for extrajudicial killings are based on allegations of

motivation, deliberation, or purpose that are identical to the allegations in Count I in all material

respects. For the reasons advanced as to that Count, the remaining counts based on extrajudicial

killings adequately allege deliberation. And as to the extrajudicial killing counts related to the

February 9 incident, it is worth repeating the authoritative finding of the 2016 Amnesty

International Report:

“The shooting on 9 February 2016 at Aba National High School, which bystanders

and pro-Biafran activists filmed from beginning till end, shows total disrespect for

human rights on the part of the Nigerian military. The video footage, reviewed and

verified by Amnesty International, shows that soldiers ran into the field and

surrounded the pro-Biafra activists, who were unarmed and not violent…The

military fired live ammunition…A 35-year-old trader told Amnesty International:


Page 24 of 35

‘As the IPOB coordinators were addressing us, the army surrounded us. The

commander of the army came out and ordered the coordinators to come out and

they were taken away…[W]e were praying. The soldiers did not leave the scene

but were spreading out and encircling us. They were shooting live bullets.’

Another 50-year-old eyewitness said: ‘I saw the army people shooting IPOB

people with their guns. They killed eight, which they took in their Hilux, they

carried them in their Hilux and sat on top of them.’

Defendants also frivolously assert a failure of the Complaint to allege their legally

cognizable responsibility for the alleged torture or extrajudicial killings. Defendant Obiano filing

separately makes the same argument. Docket 35, p. 28-32. Contrary to these representations,

Plaintiffs allege throughout the Complaint that Defendants are liable under a theory of command

responsibility. (Complaint, paras. 12, 14, 16, 19, 22, 24, 28, 30, 32, 33, 35-42, 63, 81-82, 94-96,

108-109, 118-119, 130, 141-143, 153-155, 165-167, 176-178, and 188-190). The TVPA

authorizes suits “against persons who ordered, abetted, or assisted in the torture.” S. Rep. No. 249,

102nd Cong., 1st Sess., at section IV (E) (1991). The Report elaborates that “anyone with higher

authority who authorized, tolerated, or knowingly ignored” the commission of torture or

extrajudicial killing “is liable for them.” Id.

Accordingly, courts have held that the TVPA unequivocally extends to forms of

responsibility such as ordering, aiding and abetting, command responsibility, and conspiracy. See

Chavez v. Carranza, 559 F. 3d 486, 498_99 (6th Cir.), cert. denied, 558 U.S, 822 (2009); Cabello

v. Fernandez-Larios, 402 F. 3d 1148, 1157-58 (11th Cir. 2005); Ford ex rel. Estate of Ford v.

Garcia, 289 F. 3d 1283, 1286 (11th Cir. 2002). Conclusively on this question, the United States

Supreme Court affirmed in Mohammed v. Palestinian Authority, 566 U.S. 449, 458 (2012): “[T]he

TVPA contemplates liability against officers who do not personally execute the torture or


Page 25 of 35

extrajudicial killing.” Thusly, command responsibility is actionable under the TVPA and

Defendants’ arguments otherwise fail.

The command responsibility doctrine has existed from the inception of military

institutions. See e.g., In re Yamashita, 327 U.S. 1 (1946). The command responsibility doctrine

was utilized most prominently during the Nuremberg and Tokyo proceedings following World

War II to convict top Nazi and Japanese defendants. Since then, the doctrine has been employed

in several ATCA and TVPA cases (including the cases against ex-President Ferdinand Marcos of

the Philippines (Hilao v. Estate of Ferdinand Marcos, 103 F. 3d 767 (9th Cir. 1996); the self-

proclaimed president of Republika Srpska, Radovan Karadˇzic´ (Kadic v. Karadzic, 70 F. 3d 232

(2nd Cir. 1995), cert. den., 518 U.S. 1005 (1996)); and Héctor Gramajo, a former Minister of

Defense of Guatemala, (Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). It, also served as

the basis for prosecutions before the International Criminal Tribunals for Yugoslavia (ICTY) and

for Rwanda (ICTR). Long a doctrine of customary international law, command responsibility has

in modern times been codified at Articles 86 and 87 in Protocol I to the four 1949 Geneva

Conventions, Articles 7(3) and 6(3) of the statutes of the two war crimes tribunals, and Article 28

of the statute of the International Criminal Court.

Defendants’ motion to dismiss for failure to state a claim should be denied.

F. THE RULE 12(b)(5) MOTION TO DISMISS FOR FAILURE TO PROPERLY

SERVE DEFENDANT OBIANO MUST BE DENIED.

Purporting to represent Defendant Obiano alone, attorney Jude C. Iweanoge argues in

Obiano’s additional Motion to Dismiss, Docket 35, for dismissal based upon Fed. R. Civ. P.

12(b)(5), failure to serve process.


Page 26 of 35

Disregarding Defendant’s collection of local law irrelevancies, the law of the Republic of

Nigeria does not clearly prohibit service pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii), Defendant

Obiano’s argument for dismissal pursuant to Fed. R. Civ. P. 12(b)(5) for lack of service strains

credulity and borders upon sanctionable misconduct.

The record in this case is clear that on July 17, 2017, Defendant Obiano was served

pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii) and this Court’s prior Certificate of Mailing dated July 7,

2017 (Docket 25). See Docket 28, Exhibit “I”. Defendant Obiano’s unsubstantiated allegations

that the service upon him was not accepted by a person duly authorized is not supported by an

affidavit or other evidentiary proof beyond the mere argument of counsel. The allegations should

be dismissed as of no moment. Defendant Obiano, through his counsel at the time, now co-counsel,

waived and stipulated to proper service of process on September 1, 2017. See Docket 31. This

stipulation and waiver was in consideration of Plaintiffs’ agreement to grant an exceptionally long

period of time for Defendants to answer or file a responsive motion, in excess of 100 days, in lieu

of entry of a default and default judgment.

The September 1, 2017, stipulation for waiver of service, Docket 41, specified that the date

that all Defendants would be required to answer or respond would be extended to December 1,

2017. Attorney Iweanoge filed his Notice of Appearance on behalf of Defendant Obiano on

November 16, 2017, Docket 32 – a mere 2 weeks before the response to the Complaint was due,

but over 120 days after Obiano was served and 76 days after Obiano’s waiver of service. As such,

despite his co-counsel’s attempted last-minute heroics, there can be no question but that Obiano

obtained the benefit of the bargained for consideration of the extension of time and now seeks to

renege on his waiver and stipulation merely because he purportedly has new counsel. This cannot

be countenanced. Obiano seeks to keep the benefit of his bargain but withdraw his consideration.


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In summary, the Federal Rules of Civil Procedure are conclusive on this issue. The local

rules of a Nigerian political subdivision do not and cannot supplant the FRCP. Rule 4(d)(4) is

conclusive, stating in whole:

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service

is not required and these rules apply as if a summons and complaint had been served

at the time of filing the waiver.

Defendant Obiano’s Fed. R. Civ. P. 12(b)(5) motion to dismiss must be denied.

G. THE MOTION TO DISMISS BASED UPON FAILURE TO EXHAUST

ADEQUATE AND AVAILABLE REMEDIES IN NIGERIA SHOULD BE DENIED.

Again, purporting to represent Defendant Obiano alone, attorney Jude C. Iweanoge argues

for dismissal against Obiano based upon the assertion that Plaintiffs failed to exhaust adequate and

available remedies in Nigeria. Docket 35, p. 23. Mr. Iweanoge acknowledges that Defendant

Obiano bears an initial burden of demonstrating that domestic remedies exist that the claimant did

not use. Id., p. 23-24. Enahoro v. Abubakar, 408 F.3d at 886. Defendant Obiano’s burden of proof

is “substantial.” Doubts are to be resolved in favor of the Plaintiff; moreover, the Plaintiff need

not pursue a local remedy if such pursuit would be futile or would subject the Plaintiff to a risk of

reprisal. Jean v. Dorelien, 431 F. 3d 776, 781-83 (11th Cir. 2005). This Court has previously

found a risk of reprisal if Plaintiffs sought relief in Nigeria, i.e., that “genuine and reasonable

personal fears of retribution and physical harm against the named Plaintiffs, their families, and

relatives” exist, along with “potential risk of retaliatory physical or mental harm to the Plaintiffs

and to innocent non-party family members and friends”, and, “likelihood of negative repercussions

would potentially be visited on minor children of Plaintiffs and their relatives”. Defendant

Obiano’s Motion to Dismiss, Docket 35, for an alleged failure to exhaust domestic remedies is the

very definition of frivolous.


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Defendant Obiano also fatally fails to identify a single case in 58 years in which the

Nigerian judiciary awarded redress to a Biafran tortured, extrajudicially killed, or otherwise been

a victim of a human rights crime by Nigerian security forces. Docket 35, p. 24-25. Obiano does

not dispute that Plaintiffs would risk reprisal killings if their identities were known to Nigerian

authorities, including Defendants. Accordingly, Obiano’s failure-to-exhaust local remedies

defense should be rejected and his Motion to Dismiss denied.

H. THE LEGAL REPRESENTATIVES/WRONGFUL DEATH CLAIMANTS HAVE

STANDING TO BRING THIS ACTION.

Defendant Obiano next challenges the standing of Plaintiffs Does 1 – 9, to assert their

TVPA claims. Docket 35, p. 25. The extrajudicial killing Plaintiffs are all either spouses or

brothers of the decedents as alleged in the Complaint filed under seal with this Court to protect

Plaintiffs from reprisal killings.

Under the TVPA, two categories of Plaintiffs may sue for extrajudicial killings: a “legal

representative” of the victim; and, “any person who may be a claimant in an action for wrongful

death.” The Court of Appeals elaborated in Balco Ex Rel. Tapia v. Drummond Co., Inc., 640 F.

3d 1338, 1347 (11th Cir. 2011): “[T]he TVPA expressly creates a separate cause of action for the

wrongful death claimant through which ‘any person’ fitting that description can sue for TVPA

damages.” The Court added: “[T]he focus of the TVPA is thus the torturer and the extrajudicial

killer, and the statute’s intent is to deter their tortious conduct. This purpose is better served by

allowing more than one affected plaintiff to bring separate lawsuits.” Id., see also S. Rep. 102-249,

at 7 (“The legislation permits suit by the victim or the victim’s legal representative or a beneficiary

in a wrongful death action.”). The Court further declared that “state law should govern the

determination of whether a plaintiff is a claimant in an action for wrongful death and, where state


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law would provide no remedy a court may apply the foreign law that would recognize the

plaintiff’s claim.” Balco Ex Rel. Tapia v. Drummond Co., Inc., 640 F. 3d at 1349, quoting

H.R.Rep. No. 102–367(I), at 4, 1992 U.S.C.C.A.N. at 87 (1991).

In this case, the applicable state law is D.C. Code Section 16-2701, which, among other

things, delineates wrongful death claimants to include spouses or siblings. The Complaint filed

under seal alleges that every TVPA Plaintiff for an extrajudicial killing qualifies as a proper TVPA

Plaintiff as a spouse or sibling of the victims. The Motion to Dismiss, Docket 35, must be denied.

I. THIS COURT HAS PERSONAL JURISDICTION OVER THE TVPA

DEFENDANTS FOR VIOLATING INTERNATIONAL JUS COGENS NORMS

THAT ARE UNIVERSALLY ILLEGAL

All Defendants and Defendant Obiano separately challenge personal jurisdiction over

them. Docket 36, p. 13-15; Docket 35 p. 32-35. The argument is a red herring and easily disposed

of by this Court.

It is well established law that proper service of a summons and complaint is sufficient to

vest the Court with personal jurisdiction over the defendant as to claims of the violation of certain

universally accepted norms of international human rights law under the TVPA and ATCA. See

Doe v. Constant, 354 Fed.Appx. 543, 546 (2d Cir.2009); Wiwa v. Royal Dutch Petroleum Co., 226

F.3d 88, 104 (2d Cir.2000); Kadic, 70 F.3d at 246–48; Filartiga v. Pena–Irala, 630 F.2d 876, 884–

86 (2d Cir.1980); Sikhs for Justice v. Nath, 850 F.Supp.2d 435, 442 (S.D. N.Y. 2012). As such,

given that service is inarguably proper, indeed stipulated in this case, the question of personal

jurisdiction evaporates, as do most if not all of Defendants’ ill-conceived and speciously reasoned

arguments, into the thin air of make-weight and boilerplate arguments.

The reason behind this rule is simple and comports with common sense. Like pirates, every

torturer or murderer acting under color of foreign law is on constructive notice that they may be


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held accountable for their crimes against all mankind in any jurisdiction that asserts itself. Scores

of Somalis have been convicted in Article III courts under 18 U.S.C. §1651 for acts of piracy

outside the jurisdiction of the United States and without the minimum contacts ordinarily required

for the exercise of personal jurisdiction. “How the US war on piracy brought one Somali to a

West Virginia prison,” The Guardian (January 1, 2017). The son of former Liberian President

Charles Taylor was prosecuted in the United States for torture committed in Liberia. See 18 U.S.C.

§2340A(b); United States v. Belfast II, (11 Cir. 2010). Genocide committed by aliens abroad can

be prosecuted in the United States. 18 U.S.C. §1091 (e) (2) (D).

Congress has decreed personal jurisdiction over foreign sovereigns for acts that fall within

the exceptions to sovereign immunity established by the Foreign Sovereign Immunities Act where

proper service has been made. 28 U.S.C. §1330 (b). The Courts have similarly declared the same

for TVPA cases.

Congress assumed that in enacting the TVPA personal jurisdiction would lie over

Defendants if proper service had been made for the twin crimes against all of mankind in violation

of jus cogens norms of international law that had reached epidemic levels: torture and extrajudicial

killings. For purposes of jurisdiction, Congress assumed the crimes against mankind would be

treated like the sister crime of piracy which can be prosecuted in every jurisdiction in the world.

As the Court of Appeals noted in Yousef v. Samantar, 699 F. 3d 763 (4th Cir. 2012), the doctrine

of universal jurisdiction for crimes against all mankind has been extended to civil suits. It is not

limited to criminal prosecutions only.

Congress was prompted to enact the TVPA in response to the global epidemic of torture or

extrajudicial killings under color of foreign law. Precise numbers are unavailable because

governments routinely conceal their complicity in crimes against humanity. Congress recognized


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that governments complicit in such crimes were poor candidates for offering relief to the victims,

their legal representatives, or their family members. The TVPA thus created Article III forums in

the United States to fill the legal vacuum. The goal is twofold: to provide judicial redress for the

victims or their surrogates; and, to insure torturers and perpetrators of extrajudicial killings do not

evade justice.

Congress knew that virtually all the potential plaintiffs and defendants in TVPA litigation

would be aliens. A TVPA claim requires that the two covered crimes against humanity—torture

or extrajudicial killing—be perpetrated under color of foreign law, i.e., be committed by a foreign

official. And in virtually every case under the TVPA, the crimes against all mankind will have

been committed in a foreign country and against its citizens. Nigeria’s population, for example,

approximates 186 million. The number of American residing there approximates 30,000, or a

miniscule percent of Nigeria’s population.

If the so-called “minimum contacts” standard for personal jurisdiction in ordinary cases

expounded in International Shoe and its progeny were required under the TVPA for the universal

crimes of torture or extrajudicial killing, the statute will be no more than “a promise to the ear to

be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will.” Edwards v.

California, 314 U.S. 160, 186 (1941) (Jackson, J. concurring). By definition, TVPA claims arise

in foreign countries against a foreign official acting under color of foreign law irrespective of any

connection to the United States beyond the commission of a crime against all of mankind which

affects every jurisdiction on the globe. If additional minimum purposeful contacts with the United

States is required for the exercise of personal jurisdiction over the defendant, the result would be

absurd, as if Congress committed infanticide against its own child. The TVPA would be reduced

to a shell, and its enforcement dependent on the serendipity of a foreign official implicated in a


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crime against humanity traveling, residing, or otherwise purposely availing himself of the

protection of the United States. But serendipity will not materially deter torture or extrajudicial

killings under color of foreign law, which was the whole purpose of enacting the TVPA.

The exercise of personal jurisdiction over properly served TVPA defendants because of

their responsibility for crimes against all mankind has not and will not spawn a flood of litigation.

The overwhelming majority of TVPA victims will not sue because of a lack of knowledge,

financial or other resources, or fear of lethal foreign government retribution. Moreover, the United

States may file a suggestion of immunity if a TVPA lawsuit would threaten our international

relations. Head of state and diplomatic immunity were undisturbed by the TVPA. Finally,

Congress can always accept President H.W. Bush’s entreaty to amend the TVPA if it concludes

TVPA litigation between aliens is clogging the dockets of Article III courts.

In signing the TVPA, President Bush instructed that despite its potential for mischief, “In

this new era, in which countries throughout the world are turning to democratic institutions and

the rule of law, we must maintain and strengthen our commitment to ensuring that human rights

are respected everywhere. [italics added]. Honoring that lofty purpose requires the exercise of

personal jurisdiction by Article III courts over all properly served TVPA defendants guilty of the

universal crimes of torture or extrajudicial killing under color of foreign law. It would stain justice

to do otherwise. Such TVPA defendants can no more argue unfairness or unreasonableness than

can pirates who operated in the Gulf of Aden and were prosecuted and convicted in Article III

courts for the crime of piracy with no “minimum contacts” with the United States. Individuals

who commit crimes against all of mankind should expect to be held accountable in any jurisdiction

where mankind is present.


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It is axiomatic that remedial statutes such as the TVPA are to be liberally

construed. Chisolm v. Georgia, 2 U.S. 419, 475 (1793) (Jay, C.J.); Tcherepnin v. Knight, 389 U.S.

332, 336 (1967). Any ambiguities should be resolved in favor of the persons for whose benefit

the statute was enacted. Smith v. Heckler, 820 F. 2d 1093, 1095 (9th Cir. 1987).

The Absurd Results Doctrine also teaches that if the plain meaning of statutory text would

yield absurd results, it should yield to an interpretation that comports with the demonstrable intent

of the drafters. United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989); Winkelman v. Panama

City Sch. Dis., 550 U.S. 516, 531 (2007); Rector v. Holy Trinity Church, 143 U.S. 457, 461 (1892).

The TVPA Defendants sub judice are indistinguishable from pirates that can be prosecuted

in any jurisdiction that wishes to assert itself. Pirates would otherwise evade justice because no

jurisdiction enjoys sovereignty on the high seas. Similarly, the Defendants would evade justice if

they are not suable in Article III courts because in such cases the only alternative sovereignty with

jurisdiction over the torture or extrajudicial killing under color of foreign law has been shown to

be incapable of providing redress as a condition to suing in the United States. See Section 2 (b)

of TVPA. In other words, it’s either justice in Article III courts or nothing for TVPA Plaintiffs.

Finally, a subtext to Defendants’ Motions to Dismiss in general and as relates to in

personam jurisdiction in particular is the errant notion that this Court’s jurisdiction does not extend

to genocidal acts of murder and torture of Nigerians, by Nigerians in Nigeria. This position is

specious. It is beyond cavil that the TVPA has extraterritorial application. The text of the TVPA

makes it crystal clear that Congress created civil liability in the TVPA for torture and extrajudicial

killing carried out by an individual with “actual or apparent authority, or color of law, of any

foreign nation.” TVPA§ 2(a), 28 U.S.C.A. § 1350 (emphasis supplied).

There can be no reasoned or reasonable argument but that the TVPA was created to address


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primarily conduct occurring in the territory of foreign sovereigns. The legislative history of the

TVPA unambiguously supports that conclusion. See S.Rep. No. 102–249, p. 3–4 (1991) (“A state

that practices torture and summary execution is not one that adheres to the rule of law.

Consequently, the Torture Victim Protection Act (TVPA) is designed to respond to this situation

by providing a civil cause of action in U.S. courts for torture committed abroad.”) (emphasis

added). The House of Representatives thunderously echoed this sentiment. H.R.Rep. No. 102–

367, pt. 1, p. 4 (1991), 1992 U.S.C.C.A.N. 84. The House expressly addressed Judge Bork’s

skepticism in Tel–Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984), as to whether

“victims of torture committed in foreign nations” could bring a cause of action under the ATS

absent an explicit grant of a cause of action and specifically stated that the “TVPA would provide

such a grant”.

The extraterritorial reach of the TVPA is beyond doubt or argument. Chowdhury v.

Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 51 (2d Cir. 2014). See Kiobel v. Royal Dutch

Petroleum Co., 569 U.S. 108, 126 (2013) (The TVPA addresses “human rights abuses committed

abroad.” Justice Kennedy, concurring).Therefore, the case law and clear statutory language

compels the conclusion that personal jurisdiction in TVPA cases does not require any physical

contacts with the United States or specific purpose to impact the United States by Defendants. Cf.

Mwani v. Bin Laden, 417 F. 3d 1, 12 (D.C.Cir. 2005).

Both Motions to Dismiss based on an absence of personal jurisdiction should be denied.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss, Docket 36-1 and

Defendant Obiano’s Motion to Dismiss, Docket 35 should be denied, and this case be permitted to


Page 35 of 35

proceed to judgment.

Respectfully submitted his 5th day of February 2018.

s/ Bruce Fein .

Bruce Fein, Esquire

W. Bruce DelValle, Esquire

D.C. Bar No: 1520906,Pro Hac Vice Pending

Fein & DelValle PLLC

300 New Jersey Avenue NW, Suite 900

Washington, D.C. 20001

(office) 202-465-8727

Email: [email protected]

[email protected]

Counsel for Plaintiffs.

CERTIFICATE OF SERVICE

I hereby certify that on February 5, 2018, I electronically filed the foregoing Response in

Opposition to Motions to Dismiss, Docket Nos. 35 and 36, with the Clerk of the United States

District Court for the District of Columbia by using the CM/ECF system, which will serve all

registered CM/ECF users.

/s/ Bruce Fein .

Bruce Fein

Bar No: 446615


mailto:[email protected]

Documents

[email protected] [email protected] etc., et al....Nwafor; Hosea Karma; Bassey Abang and Johnson Babatunde Kokomo, Defendants. Civil Action No. 17-cv-01033-ESH Judge DABNEY