Moises v. dos Santos et al

Filing 32

MEMORANDUM OPINION. Signed by Judge William M Nickerson on 3/24/2017. (kw2s, Deputy Clerk)(c/m 3.24.17)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

EDUARDO TUSAMBA MOISES
v.
JOSE EDUARDO DOS SANTOS
et al.
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Civil Action No. WMN-15-3609

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MEMORANDUM
Pending before the Court is Plaintiff Eduardo Tusamba
Moises’ Motion for Entry of Default Judgment.

ECF No. 29.

For

the reasons that follow, that motion will be denied and this
case dismissed, without prejudice.
Plaintiff Moises, proceeding pro se, filed this action on
November 25, 2015, on behalf of himself; an educational and
charitable institution in Angola that he once headed - the
Institute Superior Rene Descartes of Angola (ISRDA); ISRDA’s
students; and “families or unprivileged peoples jailed, tortured
or being tortured for the sake of defending universal principles
of morality, fairness, liberty and justice, and other similarly
situated peoples of Angola.”

Plaintiff named as Defendants

Maria Candida Texeira, Angola’s former Minister of Higher
Learning; Jose Eduardo dos Santos, the President of Angola and
the head of the “People's Movement for the Liberation of Angola”
(MPLA); and “other similarly situated dignitary of MPLA and

perpetrators involved in the infliction of atrocities on
plaintiffs.”

The 84-page complaint detailed alleged acts of

torture, discrimination, malicious prosecution, and other
atrocities sanctioned by Defendants, particularly those directed
against the ISRDA.

He brought this action pursuant to the Alien

Tort Claims Act, 28 U.S.C. § 1350 and Torture Victim Protection
Act, Act. Pub. L. No. 102-256. 106 Stat. 73 (1993) (codified at
28 U.S.C. § 1350 note).
Because Plaintiff Moises is not an attorney admitted to the
Bar of this Court, he is not permitted to represent the
interests of any individual other than himself.

The Court

informed him of this rule and granted him extensions of time to
obtain counsel.

Plaintiff subsequently filed an Amended

Complaint brought solely on his own behalf.

On January 15,

2016, the Court issued an Order granting Plaintiff’s motion for
leave to proceed in forma pauperis and granting him 21 days to
complete and return U.S. Marshal service of process forms.
Plaintiff Moises returned the service of process forms
indicating that all of the Defendants should be served at
“Embassy of Republic of Angola, 2100-2108 16th Street, NW,
Washington DC 20009.”

The U.S. Marshal mailed the summonses to

that address, by “Restricted Deliver, Certified Mail.”

The

Certified Mail Receipts were returned on February 10, 2016,
signed by an individual named “Marlene White.”
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On March 8,

2016, Plaintiff Moises filed a “Motion for Entry of Default
Judgment.”

ECF No. 12.

On April 5, 2016, the Court sent a

letter to Plaintiff Moises explaining that he must first file a
motion for entry of default by the Clerk of the Court and that
motion must be granted before he would be permitted to file a
motion for entry of default judgment.

ECF No. 13.

Plaintiff Moises then filed motions for Clerk’s entry of
default against Defendants “Similarly Situated Dignitaries of
the MPLA,” dos Santos, and Texeira.
respectively.

ECF Nos. 14, 15, and 16,

On April 27, 2016, the Court issued an Order

denying those motions.

ECF No. 18.

In that Order, the Court

noted that “[t]here is no evidence that Marlene White is
authorized to accept service on behalf of Defendants.”
2.

Id. at

The Court also explained that there are special rules for

effecting service on a foreign country or individuals in a
foreign country and those rules are complicated.
(citing Fed. R. Civ. P. 4(f) and (j)).

Id. at 3

The Court also granted

Plaintiff Moises an additional twenty-eight days to provide
additional information to effectuate service but warned that the
failure to provide sufficient information to enable service to
be effectuated on Defendants would result in dismissal of this
case without prejudice.

Id.

The Court also advised that,

insofar as Plaintiff intends to serve individuals in a foreign

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country, he may wish to seek advice of counsel or otherwise
contact the United States Department of State.

Id.

Rather than heeding that advice, Plaintiff Moises submitted
a “Memorandum Addressing the Service Process Issue on
Defendants” on May 24, 2016.

ECF No. 19.

Most of that eight-

page Memorandum simply repeats portions of the factual
allegations in the Amended Complaint.

Id. at 1-6.

After

reciting those allegations, Plaintiff argues that “[t]he receipt
was signed by an accredited and authorized personnel of
Diplomatic Mission of Republic of Angola,” but he also
acknowledges that “[a]fter deep investigation, evidence has
shown that there exist[s] no Marlene White working or who had
ever worked in the Diplomatic Mission of the Republic of
Angola.”

Id. at 7.

Plaintiff then asserted in the final

paragraph of his Memorandum that there are three individuals at
the Angolan Embassy “who are accredited to accept service on
behalf of Defendants,” including the Ambassador of Angola.
at 8.

Id.

Plaintiff, however, provided no authority for that bald

assertion.
On June 6, 2016, Plaintiff filed a Second Amended
Complaint.

ECF No. 22.

The caption of this document

reintroduced the additional Plaintiffs that the Court had
instructed must be removed.

The caption also omitted Texeira as

a Defendant although the allegations concerning her remained in
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the body of the Second Amended Complaint.

Of significance to

the pending motion, the caption also indicated that the Second
Amended Complaint should be served: “C/o Mr. Agostinho Tavares
da Silva Neto (Ambassador of the [R]epublic of Angola to the
US), Embassy of Republic of Angola, 2100-2108 16th Street, NW,
Washington, DC 20009.”

Plaintiff then completed U.S. Marshal

service of process forms indicating that the summonses should be
served on the Ambassador at the Angolan Embassy and the
summonses were so issued.

On June 8, 2016, Plaintiff submitted

a return of service on for Defendant Texeira,1 and on July 18,
2016, filed motions for Clerk’s entry of default against both
Texeira and dos Santos.

ECF Nos. 25 and 26.

The Clerk of the

Court entered defaults against both Texeira and dos Santos on
August 11, 2016.

ECF Nos. 27 and 28.

Plaintiff then filed the

pending motion for entry of default judgment.
The Court concludes that Defendants were never properly
served and, thus, the motion for entry of default judgment must
be denied and the defaults vacated.

As an initial observation,

it is not clear whether Plaintiff is attempting to bring an
action against Defendants in their individual or in their
official capacities.

If they are being sued in their individual

1

Plaintiff did not file the return of service for Defendant dos
Santos until October 11, 2016. Both returns of service attached
unsigned certified mail receipts but also attached Postal
Service tracking printouts indicating the summonses were
delivered on June 16, 2016.
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capacities, service should have been effected under one of the
rules to which the Court previously directed Plaintiff, Rule
4(f) of the Federal Rules of Civil Procedure - “Serving an
Individual in a Foreign Country.”

If Plaintiff’s intent was to

sue them in their official capacities, this suit would be a suit
against the country of Angola and/or one of its subdivisions and
service would be effected under the other Rule to which the
Court directed Plaintiff, Rule 4(j) which provides that “[a]
foreign state or its political subdivision, agency or
instrumentality must be served in accordance with 28 U.S.C. §
1608.”

Plaintiff did not attempt to follow either of these

rules.
Instead, Plaintiff attempted to serve Defendants “c/o” the
Angola Ambassador based on his unsubstantiated assertion that
the Ambassador “is officially authorized to receive service on
behalf of Defendants.”

ECF No. 25 at 3.

That assertion is not

only unsubstantiated, it is also wholly inconsistent with a
basic tenet of international law.

Under the Vienna Convention

on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, “[t]he
premises of the mission shall be inviolable,” and that “[a]
diplomatic agent shall ... enjoy immunity from [the host
state's] civil and administrative jurisdiction.”
Convention, arts. 22, 31.

Vienna

“[T]hese provisions preclude service

of process on an embassy or diplomat as an agent of a foreign
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government, as there would be a breach of diplomatic immunity if
an envoy were subjected to compulsory process.”

Harrison v.

Republic of Sudan, 838 F.3d 86, 93 (2nd Cir. 2016).
The Court by no means intends to minimize the seriousness
of the allegations raised by Plaintiff.

In order to

meaningfully vindicate the rights alleged to have been violated,
however, Plaintiff must follow established rules of law and
procedure.

The Court will dismiss this action but will grant

Plaintiff 30 days in which to submit a motion for leave to file
an amended pleading.

That motion, if filed, will only be

granted if Plaintiff demonstrates his intention and ability to
properly serve Defendants.
A separate Order will follow.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED:

March 24, 2017

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