Huynnh v. Massenya et al

Filing 33

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/30/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOllthem Dil'isio/l

,JAMES HUYNH,

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Plaintiff,

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Case No.: G,JII-I-t.162S

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KOOZO MASSENY A, et al.,

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Defendants.

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MEMORANDUM OPINION
PlaintifT James Huynh hrings this action against theGabonese

Republic ("'Gabon") and

three individuals. Kodzo "Michael" Massenya. Charles Mhonke. and Jean LeGrand. I{)r
conversion. fraud. and civil conspiracy. ECF NO.1. Presently pending before the Court is
Plaintifrs Motion for Default Judgment against Defendant Gabon. ECl' No. 32. No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the f{)llowing reasons. the Motion for Delilliit
Judgment is denied.
I.

BACKGROUNO!
Huynh is a Virginia resident and at times relevant to the action. owned approximately

four acres of land in Fairfax. Virginia. ECF No. 1 ~'II. Huynh was working at a Jaguar and
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Land Rover/Range Rover car dealership in Rockville. Maryland in January 20 IO. when he met
Defendant Jean LeGrand.ld'l

10. To the best of Plaintiffs knowledge and belie!: LeGrand is a

resident of Montgomery County. Maryland. Id. ~ 6. LeGrand visited the Jaguar dealership
approximately Iifieen times between January 20 I0 and October 20 IO. purchasing two vehicles

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The background facts are taken from pJaintifrs Complaint. ECF No. I.

during that time. Ill.

~'j 0-11.
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In August2010.lIuynh

also met Defendant Kodzo Massenya

when Massenya visited the dealership. Ill. ~ 12. To the best ofPlaintiIrs

knowledge and belief.

Massenya is a resident of the United Kingdom.!d. ~ 4. Massenya represented himselfas being
weallhy to Huynh and expressed interest in Iluynh's Fairfax land. Ill. ~ 13. Massenya told Iluynh
that he knew someone ti'OlllGabon -the

son of the late President of Gabon. in particular-

who would be interested in purchasing Huynh's land. Id. ~ 14. On or about January 3.2011.
Massenya introduced Iluynh to Defendant Charles Mbonke at the Bethesda Marriott Suites in
Bethesda, Maryland. !d. '115. To the best of Plaintiffs knowledge and belicf: Mbonke is a
resident of Gabon and/or France. !d. '15. Mbonke introduced himself to Huynh as the son of the
late Gabonese President, Omar Bongo Ondimba. !d.

'1 16. According

to Plaintiff: Mbonkc also

stated that he was working on behal I'of the government of the Gabonese Republic and serving as
a Delegate ti'om Gabon to the United Nations. !d. ~~ 17-18. Mbonke allegedly showed Iluynh
what appeared to be a diplomatic passport from the Gabonese Republic in Mbonkc's namc. !d. ~
18. Huynh found Mbonkc to bc "wcll-spoken, well.dressed and politically informcd'" !d. ~ 16.
Huynh again met Defcndants Mbonke and Massenya at the Bethesda Marriott on January
19,20 II. ECF No. I '119. During this meeting, Mbonkc allegedly told Iluynh how money could
be "legally printed" using "specially-produced

white paper" li'om the United States Treasury and

specific chemicals. Ill. '120. Mbonke and Massenya told Iluynh that this special white paper was
transported Irom the U.S. Treasury to the government of Gabon, and that this process was
"officially sanctioned" by both governments. !d.

'i

21. Mbonke said that he had some of this

white paper in his possession, with authorization Irom the Gabonese government to use it. See ill.
~ 22. Mbonke and Massenya allegedly dcmonstrated to Iluynh how they could turn the white
paper into bona tide U.S. currency. Id. '123. Mbonke and Massenya asked Huynh for $800,000,

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which thcy would use to convert the white paper. double his sum of $800.000. and pay Huynh
for his land. See ill. '124. Huynh agreed. and withdrew $800.000 from his bank account on May
16.201 J. Ill. '125. Huynh gave Mbonke and Massenya $500.000 of the funds. and turned over
the remaining $300.000 soon thereatier. Id ~'127-31.
On May 19. 20 II. Iluynh went with Mbonke and Massenya to a residence in Laurel.
Maryland. which ivIassenya represented to be Massenya's uncle's house. ECI' No. I ~ 30.
ivIbonke and ivIassenya told Huynh they were going to turn the white paper into reall11oney. and
instructed him to wait in another room. Id

'133.

Eventually. ivIbonke and ivIassenya told Iluynh

that the white paper had a undesirable pinkish tint on it. and that they would need additional
chemicals to get rid of the tint. Id

'134.

Iluynh did not actually see any of the money during this

time. Ill. ~ 35. ivIbonke and ivIassenya told Huynh that they would allow him to hold onto his
money and the white paper money for thc time being. Ill.

'i 35. Massenya

and Iluynh went to

purchase two safes Ii'om a Staples supply store. which Massenya and Mbonke said they would
use to store the money. Ill.

'137.

Massenya and ivIbonke told Iluynh that Huynh could keep the

safe and the money while Mbonke traveled to Paris to retrieve the necessary chemicals. and
Mbonke would hold onto the combination and the keys. Id ~~38--40.
Massenya and Mbonke told Huynh that the chemicals would cost an additional $250.000.
of which Mbonke and ivIassenya would pay $170.000. ECF No. I '142--43. and Huynh would
need to pay the remaining $80.000. Id ~ 44. Huynh agreed to take out the cash. See ill. '149.
According to Plaintiff: Mbonke then arranged a meeting between ivIassenya. Huynh. and an
"agent from a Canadian chemical company:' Ill. ,; 45. On July 10.20 II. Massenya and Iluynh
went to Reagan National Airport in Crystal City. Virginia to meet the agent. Ill. ~ 46. Massenya
went inside the airport to get the "Canadian chemical agent:' and brought him back out to the car

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where Huynh was waiting. lei. 148. Massenya. Huynh. and the agent discussed the cost ol"the
chcmicals I"orapproximately ten minutes. and Huynh then transl"erred his $80.000 into the
agent's backpack. Id '149. PlaintifT Huynh believes the identity of the Canadian chemical agent
to actually be Defendant LeGrand. who had visited the Jaguar dealership the year prior. Id ~ 50.
Several days later. Mbonke called Huynh and said that the chemical company had
received part of the funds ftlr the chemicals. and that Mbonke would return from Paris and drive
to Canada with the rest of the funds. ECF No. 1 ~ 51. However. on July 16.2011. Mbonke called
again and told Huynh that while Mbonke was driving from the United States to Canada. he was
pulled over for speeding. Id ~ 52. Mbonke said that he was detained for 48 hours. that U.S.
Customs had confiscated all the money and chemicals. and that Mbonke had been sent back to
France. forbidden from returning to the United States filr at least six months. Id '152. Mbonke
asked Huynh to inform Massenya of what had happened. lei. '153. Huynh met with Massenya
one more time on July 20. 2011. lei. ~ 54. While Mbonke and Massenya have allegedly
maintained telephone contact with Huynh. Huynh has never seen them again. Id ~ 56.
Huynh filed the instant Complaint on May 19.2014 against the Gabonese Republic.
Kodzo Massenya. Charles Mbonke. and Jean LeGrand. alleging conversion. Iraud. and civil
conspiracy. ECF NO.1. Defendant Massenya. the only Defendant upon whom service was
effectuated. was served on September 9. 2014. ECF No. 10. None of the Defendants has entered
an appearance in this matter. Plaintiff moved for default judgment against Defendant Massenya
on January 12.2015. but the Court denied the Motion pursuant to Fed. R. Ci\'. P. 54(b). which
governs judgment against multiple defendants. ECF No. 18. The Court found that there was "just
reason for delay" lor the entry 01" default against one Defendant. until the other Defendants were

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served and the matter adjudicated as to all Defendants./d.

at 2.2 PlaintitTallegedly continucd his

efforts to serve the remaining Defendants. but as of June 2. 2016. sUll1mons were still unexecuted
as to .lean LeGrand and Charles Mbonke.
1I0wever. on September I. 2016. Plaintiff filed a Proof of Service stating that the U.S.
Embassy in Libreville. Gabon. had transmitted the summons. complaint. notice of suit. and
translations to the Ministry of Foreign Affairs of the Gabonese Republic on August 23. 2016.
Eel' No. 29 at 1: ECF No. 29-1 at 4. Following want of answer or other defense. the Clerk of the
Court entered default upon Plaintiffs motion on January 26. 2017. ECF No. 30: ECF No. 31.
Plaintiff has now moved for default judgment against the Gabonese Republic. ECF No. 32.
Because the Court finds that Plaintiff has not demonstrated proper subject matter jurisdiction
under the Foreign Sovereign Immunities Act (FSIA). nor established his right to relief by
evidence satisfactory to the Court. his motion tor default judgment against Gahon will be denied.
II.

ANAL YSIS
A. .Jurisdiction

under FSIA

The Court must determine thc cxistence of subject matter jurisdiction bcfore proceeding
to the merits ofa claim. See Jones ". Am. roslal Workers Union. 192 F.3d 417. 422 (4th Cir.
1999). The Foreign Sovereign Immunities Act. 28 U.S.c. ~ 1602 el seq .. codified in part at 28
U.S.c. ~ 1330 provides that:
The district courts shall have original jurisdiction without regard to
amount in controversy of any nonjury civil action against a foreign
state as defined in section 1603(a) of this title as to any claim for
relief in personam with respect to which the foreign state is not
entitled to immunity either under sections 1605-1607 of this title or
under any appl icable international agreement.

Pin cites to documents tiled
by that system,

!

011

the Court"s electronic filing system (CM/ECF)

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refer to the page numbers generated

28 U.S.c.

* 1330(a). 28 U.S.c. * 1605 sets forth the general exceptions to the jurisdictional

immunity of a foreign state. Section 1605(a)(5), the only exception upon which Plainti 1'1'
relies.
see ECF NO.1 '\2. provides in relevant part that:

(5) A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any casc
in which
money damages arc sought against a forcign state for
damage
to or loss of property. occurring in the United States and caused by
the tortious act or omission of that foreign state or of any oflicial
or employee of that foreign state while acting within the scope of
his oflice or employment: except this paragraph shall not apply to•.
(A) any claim based upon the exercise or performance or the
failure to exercise or perform a discretionary function
regardless of whether the discretion be abused. or
(E) any elaim arising out of, . ,misrepresentation [or] deceit. , .
28 U.S.c.

* 1605(a)(5). This exception has been called the "non.discretionary

see Rohinson \'. Gm"f ork/alaysia.

torts" exception.

269 F.3d 133. 139 (2d Cir. 2001). or the ..tortious act"

exemption. see }'Olllllillg ./in \'. Milli.\'II)' ojSfafe Sec.. 475 F. Supp. 2d 54. 63 (D.D.C. 2007).
Once a defendant has made a prima facie showing that it is a foreign state. or it is evident
from the pleadings that the defendant is a foreign state. see Ahdulla \'. Emhassy (!lIraq af
Washingltll7. DC. No. CIv.A.

12-2590.2013 WL 4787225. at *2 (E.D, Pa, Sept. 9. 2013). ajrd.

598 F, App'x 824 (3d Cir. 2015). plaintiff bears the burden ofoflering evidence that an
exception to fi.)reign sovereign immunity applies. See Velasco \'. Go\"f Or Indonesia. 370 F.3d
392.397 (4th Cir. 2004): Gerding \'. Repuhlic (JrFraJlce. 943 F.2d 521. 525 (4th Cir. 1991)
(noting that "burden of going fi.mvard would shift to the plaintiff to produce evidence
establishing that the foreign state is not entitled to immlll1ity"): 1'radhaJl )'. AI ..)ahah. 299 F.
Supp. 2d 493. 497 (0.' Md. 2004) (summarizing cases). "In assessing whether the plaintiff has
sufliciently alleged or proffered evidence to support jurisdiction under the FSIA. a district court
must review the allegations in the complaint. land] the undisputed facts. ifany .. :' Rohimoll \'.

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G{)\"/

of'Moloysio.

269 fo.3d 133. 141 (2d Cir. 2001). Before applying the tortious act exception .

..thc court must lirst determine whether the alleged acts constitute tortious acts and second.
whether the defcndant actors committed those tortious acts while acting within the scope ofthcir
employment,"

YOlllning ./in \', Minis/J)' oj'Sla/e Sec,. 475 F. Supp. 2d 54. 63 (D.D,C. 2007),

The Gaboncse Republic is a foreign state within the meaning of

* 1603(a). Thus. the

burdcn shins to PlaintifTto ofter evidence demonstrating that an exception to the FSIA applies.
As for PlaintiJrs fraud claim. fraud by definition requires misrepresentation or deceit. see Lone
l',

Vni/ed S/o/es. 286 F.3d 723. 731 (4th Cir. 2002). Doe \', U.S, ex rei. U.s. Dep'/ ofHeollh

&

Hl/l11onSerl's .. No. CIV.A. TDC-14-1441. 2015 WL 1461236. at *4 (D. Md. Mar. 27. 2015).
o{rdslih

/10111 Doe
..

l'.

Vni/edS/o/es.

610 F. App'x 291 (4th Cir. 2015) (noting that frmld claims

are unavailable against the government under Federal Tort Claims Act because Irmld is grounded
in the tort of misrepresentation).
FSIA. see 28 U.s.c.

and is thereforc not a part of the tortious act exception under thc

* 1605(a)(5)(I3).

Regarding Plaintitr s claims of conversion and civil conspiracy. Plaintiff fails to provide
any evidence whatsoever. save his own bare asscrtions. that Defendant Mbonke was an official
or employee of Gabon and was acting in the scope of his employmcnt at the time of the allegcd
torts. Plaintiff allcges in the Complaint that when he met Charles Mbonke. Mbonke claimed to
be working on behalfofthe
ECF No. I 'i,jI7-18.

Gaboncse Republic and showed Plaintiff his diplomatie passp0l1.

Plaintiff also cl~ims that Mbonke told him that the money eonversion

process was "officially sanctioned by both governments," Ill. ~ 21. Even taking these allegations
as true. I'lainti ITdoes not allege that what appcars to be a private business deal between
Dcfcndant Mbonke and I'laintilTwas in fact conducted in the scope ofMbonkc's

employment as

a "Delegate Irom Gabon to the United Nations," ECF No. 1 ~ 14. The single affidavit submitted

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in support ofl'laintiffs

Motion lor Delimit Judgment further fails to support jurisdiction. and

merely discusses that waiver of sovereign immunity does not apply. ECF No. 32 at 4-5. This.
without more. is insufficient to allege a ..tortious act or omission" caused by Gabon or an official
or employee of Gabon acting within the scope of his employment required to sustain jurisdiction
under the FSIA. See Rohillsoll \'. Cm.'t o(Malal'sia.
.
.

269 F.3d 133. 144--46 (2d Cir. 20(1)

(finding that allegations in the complaint not sufficient to establish non-discretionary tort
exception under FS[A): Jill \'. Millis/I)' (!f'S/a/e Sec .. 557 F. Supp. 2d 13I. 140 (D.D.C. 20(8)
(finding that plaintiffs had nliled to substantiate that commercial activity exception applied).
B. Default .Judgment against Foreign States
Even if the allegations could be read to establish the tortious act exception to foreign
sovereign immunity. I'laintilThas not cleared the hurdle tor default judgment against a foreign
state as set lorth at 28 U.S.c. ~ 1608(e):
No judgment by delilllit shall be entered by a court of the United
States ... against a f(lreign state. a political subdivision thereot: or
an agency or instrumentality of a loreign state. unless the claimant
establishes his claim or right to relief by evidence satistactory to
the court.
28 U.S.c. ~ 1608(e). To satisfy this requirement.l'laintilTmust

"provide satislactory evidence as

to each element of the claim upon which relief is sought," A hdulla \'. EII/has.l}' oj'lraq a/
Washillg/oll.

DC. No. C[V.A. 12-2590.2013

WL 4787225. at *7 (E.D. Pa. Sept. 9. 2013). ,,{rd.

598 F. App'x 824 (3d Cir. 2015) (citing COli/pallia 111Ierall/ericwIlI Export-III/pori.
COli/pallia DOlllillicalla de Al'iacioll.

omitted): see also Ol'eissi

1'.

S.A. \'.

88 F.3d 948. 951 (II th Cir. 1996») (internal alterations

Islall/ic Repuhlic oj'lrall. 573 F.3d 835. 838 (D.C. Cir. 2009)

(observing that a plaintiff is not automatically entitled to judgment when a foreign state defaults.
and that court must be satisfied that plaintilThas established right to relict). Plaintill'does not
bear the "burden of producing the full range of evidence that would be available to them if the
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opposing party had participated in discovery:' but rather, the Court may bc satislicd with a
"quantum and quality of cvidenec , , . less than that normally required." Ohnl1'llp \'. Makilla, No.
CIV. 76-742, 1993 WL 315636, at *4 (E.D. Pa. Aug. 18, 1993).
Ilere, PlaintifTrelies on the allcgations of his Complaint. as well as one affidavit Irom his
attorney attached to the Motion tiJr Default Judgment. Applying Maryland law, scc lVilliallls \'.
ROlllal'/1I S.A.. 116 F. Supp. 3d 631. 637 n.2 (D, Md. 2015) (noting that courts have held that

once a foreign state is properly sued under FSIA, the forum slate's choice-ot~law rules apply),
"[cjonversion is an intentional tort. consisting of two clements, a physical act combined with a
certain state of mind. The physical act can be summarized as 'any distinct act of ownership or
dominion exerted by one person over the personal property of another in denial of his right or
inconsistent with it,''' J)arcars MOWrs orSill'cr Sprillg Illc. \'. /Jor:::.l'III,379 Md. 249, 261 (2004)
(citations omitted). The requisite state of mind is "an intent to exercise a dominion or control
over the goods which is in fact inconsistent with the plaintiffs rights," Id. at 262,
In support of the claim of conversion, PlaintifT alleges that "Defendant Gabon did aid and
assist in the commission of Defendant Mbonke's exercise of dominion and control over the
$880,000 rightfully belonging to Plaintiff by providing the white-paper to Defendant Mbonke
and by authorizing Defendant Mbonke to act on its behalC ECF No. I '\61.) However, Plaintiff
has provided no evidence fi'om which the Court could conclude that Gabon actually provided the
"white paper" to Defendants, or had any role in these transactions whatsoever. Plaintiff has also
n\iled to submit any evidence demonstrating that Defendant Mbonke was acting as "an agent" of
Gabon, beyond his claim that Mbonke showed Huynh a diplomatic passport and told Huynh,
j~llsely, that the Gabonese government had sanctioned the conversion of white paper into real

The allidavit submitted by Christopher L. Markham. Plaintiffs attomcy. docs not address the conversion claim.
nor docs it address any of Ptaintilrs other claims. ECF No. 32.

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currency. See ECF No. I

~'118.21. Thus.

in effect. the only "evidencc" ofGabon's

involvcmcnt

is that which was offered to PlaintifTby those allcgcd to havc committed an elaboratc fraud.
Morcovcr. "[mJcrc conclusory allcgations ofpossiblc sccond-dcgrcc intlucncc" and
"unsubstantiated suspicions" arc insurtieicnt to satisfy thc Court that PlaintifTis cntitlcd to relicf.
See .lin \'. Minis!J)' ofS1ale Sec .. 557 r. Supp. 2d 131. 144-45 (D.D.C. 2008) (finding that
plaintiffs evidencc in rSIA case did not satisfactorily cstablish contractual intcrfcrcncc. and
thcrcforc dcnying motion for dcfault judgmcnt).
PlaintifThas also alleged that Defendant Mbonkc aetcd as an "agcnt of Gabon: . in

'i~
66.67.

support of the othcr claims of fraud and civil conspiracy. It!.

75. lIowevcr. since thc

other tort claims have lailed. civil conspiracy. which merely allcgcs an agrcement betwccn two
or more persons to commit the tortious acts. must also fail. See Fischer \".Longest. 99 Md. App.
368. 382 (1994) (artirming dismissal of conversion and conspiracy claims): Alexander &
Alexander Inc. \'. B. Dixon E\'lInder & A,Hocs.. Inc.. 336 Md. 635. 645 (1994) (explaining that
conspiracy "is not a separate tort capable of independcntly sustaining an award of damages in thc
absence of other tortious injury to the plaintiffs"). In sum. PlaintifThas not established his right
to relief by evidence satisfactory to thc Court. and for that additional reason. his motion for
default judgment against the Gabonese Republic will be denied.
III.

CONCLUSION

For the foregoing reasons. Plaintiffs Motion for Default Judgmcnt. lOCI'No. 32. is
denied. Ilowcvcr. Plaintiff will be permitted to tile a renewed Motion ft)r Dclault Judgmcnt
related to Dclcndanl Massenya. A scparate Order shall issuc.

Date: Mav

4/L-

"'IJ . 2017

GEORGE J.'Hf\ZEL
United States District Judgc
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