Aeons Centro De Administracao De Empresas LTD v. Central Bank of Nigeria

Filing 6

REPORT AND RECOMMENDATION re 1 Complaint against CENTRAL BANK OF NIGERIA, filed by Aeons Centro De Administracao De Empresas LTD. Objections to R&R due by 2/10/2012 Signed by Magistrate Judge Paul W. Grimm on 1/24/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

AEONS CENTRO DE
ADMINISTRACAO DE
EMPRESAS, LTD.,

:
:

Plaintiff,

:
CIVIL NO.: BEL-11-3447
:

v.
:
CENTRAL BANK OF NIGERIA,
:
Defendant.
…o0o…
REPORT AND RECOMMENDATION
This Report and Recommendation addresses the Complaint for Confessed Judgment that
Plaintiff Aeons Centro de Administracao de Empresas, Ltd. (“Aeons”) filed against Defendant
Central Bank of Nigeria (“Central Bank”), ECF No. 1, and the supplemental filing that Aeons
submitted, ECF No. 5.1 For the reasons stated herein, I recommend that the Clerk of the Court
enter the confessed judgment.
Local Rule 108.1.a requires that a plaintiff that seeks entry of a confessed judgment file a
complaint, accompanied by:
1. the written instrument that
(a) authorizes the confessed judgment; and
(b) entitles the plaintiff to a claim for liquidated damages;
2. an affidavit of the plaintiff or someone on behalf of the plaintiff, stating:

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On December 2, 2011, in accordance with 28 U.S.C. § 636 and Local Rules 301 and 302, Judge
Legg referred this case to me to review Plaintiff’s Complaint for Confessed Judgment. ECF No.
3.

(a) the circumstances under which the defendant executed the written
instrument;
(b) the age and education of the defendant, if known;
(c) the amount due under the written instrument; and
(d) the defendant’s post office address (including the street address if
needed to effect mail delivery).
Upon review of these documents, the Court may direct the entry of judgment upon a
finding that they prima facie establish:
1. the defendant’s voluntary, knowing, and intelligent waiver of:
(a) the right to notice; and
(b) a prejudgment hearing on the merits of the plaintiff’s liquidated
damages claim; and
2. the plaintiff’s meritorious claim for liquidated damages against the defendant.
Loc. R. 108.1.b.
Here, Plaintiff attached to its Complaint a document titled Payment Guarantee and
Settlement Agreement (“Guarantee” or “Guar.”), ECF No. 1-1, which is a “written instrument
authorizing the confessed judgment and entitling Plaintiff to a claim for liquidated damages.”
See Loc. R. 108.1.a. Plaintiff also attached the Affidavit of Owen Rice, Plaintiff’s Attorney-inFact. Rice Aff. ¶ 3, ECF No. 1-5. The Affidavit describes in detail the circumstances under
which Defendant executed the Guarantee. Rice Aff. ¶¶ 5-12. Although the Affidavit does not
state the ages of Defendant’s representatives, it states that “competent experienced bankers and
lawyers” represented Defendant throughout the negotiation and execution of the Payment
Guarantee and Settlement Agreement. Id. ¶ 4. Further, it states the education of Defendant’s
representatives, noting that three had Ph.D.s in economics, one had been an attorney since 1979,
and one appeared to have been an attorney for more than twenty years. Id. at 2-5, nn. 1, 4-7.
2

Also, the Affidavit notes that the representatives have held positions in the Nigerian government
such as Minister of Finance, Minister of National Planning, Attorney General, Minister of
Justice, and Chief Economic Adviser to the President, and positions in banking such as Vice
President and Corporate Secretary, Executive Director, Chief Executive Officer, Head of
Corporate and International Banking, and Deputy Governor. Id. Their education and experience
suggests that none of the representatives is younger than forty years old. The Affidavit states
that, as of November 19, 2011, $181,817,894.74 is due under the written instrument, and it
explains how the amount was calculated under the Guarantee. Rice Aff. ¶¶ 9-10 & Ex. 6, ECF
No. 1-11. Additionally, the Affidavit provides Defendant’s post office address. Rice Aff. ¶ 32.
Thus, the Complaint and accompanying documents substantively meet the requirements of Local
Rule 108.1.a.
The Payment Guarantee and Settlement Agreement does not state verbatim that
Defendant voluntarily, knowingly, and intelligently waived its right to notice and a prejudgment
hearing. Nonetheless, Defendant’s highly educated and experienced representatives, two of
whom were attorneys, negotiated and signed the Guarantee, which states:
The GUARANTOR [Defendant] further expressly agrees that the United States
District Court in and for Maryland may enter a Judgment by Confession upon the
filing of a complaint, the “legalized” original or a photocopy of this PAYMENT
GUARANTEE AND SETTLEMENT AGREEMENT (as amended) and an
affidavit specifying the Amount due, and the address specified below in Notices
to GOVERNMENT and to GUARANTOR.
Guar. 2. To experienced counsel, this paragraph would make clear that the Court would enter
the confessed judgment without prior notice to Defendant.

Moreover, in the Guarantee,

Defendant waived “notice of any default or nonperformance of GOVERNMENT” and “all
defenses, offsets and counterclaims which [Defendant] may at any time have to any claim of
AEONS against the GOVERNMENT.” Id. Thus, having reviewed the Complaint, Affidavit,
3

Exhibits, and Aeons’s supplemental filing, I find that these documents make a prima facie
showing that Defendant, through its representatives, voluntarily, knowingly, and intelligently
waived its right to notice and a prejudgment hearing, and that Plaintiff’s claim for liquidated
damages against Defendant is meritorious. See Loc. R. 108.1.b. Therefore, I recommend that
the Court direct the Clerk to enter the confessed judgment and to ensure that notice of this entry
is provided to Defendant at Plot 33, Abubakar Tafawa Balewa Way, Central Business District,
Cadastral Zone, Abuja, Federal Capital Territory, Nigeria, pursuant to Local Rule 108.1.c.
The parties have fourteen (14) days in which to file objections to this Report and
Recommendation pursuant to Fed. R. Civ. P. 72(b) and Local Rule 301.5.b.

Dated: January 24, 2012

/s/
Paul W. Grimm
United States Magistrate Judge

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