Smith v. Ghana Commercial Bank, Ltd. et al

Filing 78

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Plaintiff Theo Smith's objections (Doc. No. 75 ) to Magistrate Judge Jeffrey J. Keyes's June 18, 2012 Report and Recommendation are OVERRULED. 2. Magistrate Judge Jeffrey J. Keyes's June 18 , 2012 Report and Recommendation (Doc. No. 74 ) is ADOPTED. 3. Defendants' Motion to Dismiss (Doc. No. 41 ) is GRANTED IN PART and DENIED IN PART as follows: a. The motion is GRANTED to the extent it seeks dismissal for lack of subject matter jurisdiction on the claims against the Republic of Ghana, President John A. Mills, and Ghanas Attorney General; b. The motion is GRANTED to the extent it seeks dismissal for lack of personal jurisdiction on the claims against Ghana Commercial Bank; c . The motion is GRANTED to the extent it requests that Plaintiff be enjoined from filing any future case against the Republic of Ghana, any of its government officials, and Ghana Commercial Bank relating to the subject matter of this suit without fir st obtaining leave of court to do so; and d. The motion is DENIED to the extent it requests that Plaintiff be ordered to show cause why he should not be sanctioned further. 4. Plaintiff's Motion for Entry of Default and Default Judgment (Doc. No . 16 ) is DENIED AS MOOT. 5. Plaintiff's Motion for Summary Judgment (Doc. No. 32 ) is DENIED AS MOOT.6. Plaintiff's Motion [for] Leave to Amend a Clerical Error (Doc. No. 64 ) is DENIED AS MOOT. 7. This action is DISMISSED WITHOUT PREJUDICE.(Written Opinion). Signed by Judge Donovan W. Frank on 7/17/2012. (BJS) cc: Theo Smith/both addresses. Modified on 7/18/2012 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Theo Smith,

Civil No. 10-4655 (DWF/JJK)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Ghana Commercial Bank, Ltd.,
Attorney General/Government of
Ghana, and John A. Mills,
Defendants.

This matter is before the Court upon Plaintiff Theo Smith’s (“Plaintiff”) objections
(Doc. No. 75) to Magistrate Judge Jeffrey J. Keyes’s June 18, 2012 Report and
Recommendation (Doc. No. 74) insofar as it recommends that: (1) Defendants’ Motion
to Dismiss be granted in part as follows: (a) the motion be granted to the extent it seeks
dismissal for lack of subject matter jurisdiction on the claims against the Republic of
Ghana, President John A. Mills, and Ghana’s Attorney General; (b) the motion be granted
to the extent it seeks dismissal for lack of personal jurisdiction on the claims against
Ghana Commercial Bank; and (c) the motion be granted to the extent it requests that
Plaintiff be enjoined from filing any future case against the Republic of Ghana, any of its
government officials, and Ghana Commercial Bank relating to the subject matter of this
suit without first obtaining leave of court to do so; (2) Plaintiff’s Motion for Entry of
Default and Default Judgment be denied as moot; and (3) Plaintiff’s Motion for Summary

Judgment be denied as moot. Defendants filed a response to Plaintiff’s objections on
July 16, 2012. (Doc. No. 76.)
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of the parties, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled matter is clearly and
precisely set forth in the Report and Recommendation and is incorporated by reference
for purposes of Plaintiff’s objections.
Having carefully reviewed the record, the Court concludes that Plaintiff’s
objections offer no basis for departure from the Report and Recommendation. Plaintiff
appears to contend that Magistrate Judge Keyes erroneously determined that this Court
lacks subject matter jurisdiction over Defendants Republic of Ghana, President John A.
Mills, and Ghana’s Attorney General on the basis of foreign sovereign and common law
immunity and lacks personal jurisdiction over Defendant Ghana Commercial Bank. (See
Doc. No. 75 at 3-8.) Plaintiff, however, has failed to establish that any exception to the
Republic of Ghana’s immunity from suit applies pursuant to the Foreign Sovereign
Immunities Act (“FSIA”). See 28 U.S.C. § 1605. He has also failed to overcome the
Court’s determination that Defendants President John A. Mills and Ghana’s Attorney
General are entitled to common law immunity as foreign officials. See Samantar v.
Yousuf, 130 S. Ct. 2278, 2292 (2010) (acknowledging that “[e]ven if a suit is not
governed by the [FSIA], it may still be barred by foreign sovereign immunity under the
common law” and that “it may be the case that some actions against an official in his
official capacity should be treated as actions against the foreign state itself, as the state is
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the real party in interest”). The Court further concludes, as did Magistrate Judge Keyes,
that Plaintiff has failed to allege facts sufficient to establish personal jurisdiction over
Defendant Ghana Commercial Bank in this case. See Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070, 1072-74 (8th Cir. 2004). Plaintiff’s complaint is thus rightfully
dismissed. Consequently, the Court grants in part Defendants’ motion to dismiss and
denies the remaining motions as moot.
Based upon the de novo review of the record and all of the arguments and
submissions of the parties, and the Court being otherwise duly advised in the premises,
the Court hereby enters the following:
ORDER
1.

Plaintiff Theo Smith’s objections (Doc. No. [75]) to Magistrate Judge

Jeffrey J. Keyes’s June 18, 2012 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Jeffrey J. Keyes’s June 18, 2012 Report and

Recommendation (Doc. No. [74]) is ADOPTED.
3.

Defendants’ Motion to Dismiss (Doc. No. [41]) is GRANTED IN PART

and DENIED IN PART as follows:
a.

The motion is GRANTED to the extent it seeks dismissal for

lack of subject matter jurisdiction on the claims against the Republic of
Ghana, President John A. Mills, and Ghana’s Attorney General;
b.

The motion is GRANTED to the extent it seeks dismissal for

lack of personal jurisdiction on the claims against Ghana Commercial
Bank;
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c.

The motion is GRANTED to the extent it requests that

Plaintiff be enjoined from filing any future case against the Republic of
Ghana, any of its government officials, and Ghana Commercial Bank
relating to the subject matter of this suit without first obtaining leave of
court to do so; and
d.

The motion is DENIED to the extent it requests that Plaintiff

be ordered to show cause why he should not be sanctioned further.
4.

Plaintiff’s Motion for Entry of Default and Default Judgment (Doc.

No. [16]) is DENIED AS MOOT.
5.

Plaintiff’s Motion for Summary Judgment (Doc. No. [32]) is DENIED AS

MOOT.
6.

Plaintiff’s Motion [for] Leave to Amend a Clerical Error (Doc. No. [64]) is

DENIED AS MOOT.
7.

This action is DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 17, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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