Opinion
94 Civ. 0655 (TPG)
November 17, 2003
Opinion
This is an action by plaintiff United Bank of Africa ("UBA") against its former employee, defendant Adegboyega Coker, to recover under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (c), and on related common law claims. UBA is a corporate banking institution organized and existing under the laws of the Republic of Nigeria. Its principal place of business is in Lagos, Nigeria, and it operates a branch in New York City. Coker was employed by UBA between 1977 and 1992 in Nigeria and New York.
The complaint alleges, in sum, that while serving as branch manager in UBA's New York City branch, Coker facilitated and personally profited from numerous loans to entities that were not credit worthy. Coker has counterclaimed alleging that UBA damaged him through libelous communications regarding his tenure at UBA, wrongfully discharged him, breached his employment contract, and caused his false imprisonment by Nigerian security forces.
Now before the Court is UBA's motion seeking summary judgment dismissing Coker's counterclaims. The motion is granted.
FACTS
The following undisputed facts are taken from the complaint, the answer, and affidavits submitted on the motion.
Coker was hired in 1977 to work in UBA's office in Lagos, Nigeria. In 1986, UBA's Board of Directors in Nigeria appointed Coker as General Manager of UBA's New York branch office in Manhattan. The appointment was confirmed by the Board of Directors in Nigeria. Coker served in this capacity until his resignation in 1992.
In the role of branch manager, Coker had authority to unilaterally approve some loans, and was required to seek authorization from UBA's Board of Directors for approval of other loans that exceeded his unilateral approval authority. In October 1991, a Special Report filed with UBA's head office regarding an internal audit of UBA's New York branch documented a number of questionable practices by Coker at the branch. Those practices included authorizing loan disbursements that exceeded his approval authority, and misrepresenting to UBA's Board the financial status of certain loan applicants in the course of securing Board approval where that was required. The report cited "failed transactions" and "files . . . showing signs of distress" as a result of Coker's practices.
During the fourth quarter of 1991, an outside independent audit of UBA's New York branch was conducted at the request of UBA's Board of Directors. The audit revealed irregularities in loan portfolios and a high number of nonperforming loans. Subsequently, in November 1991, Coker received a letter of warning from UBA, advising him that the head office objected to the quality of New York's loan portfolios and Coker's loan approval practices. The letter suspended Coker's discretionary lending powers, and requesting that he return to the head office in Lagos. Shortly after the issuance of the letter UBA's Board of Directors resolved at a meeting that Coker should be recalled from his post as soon as inspection of the New York branch was completed and a successor to Coker could be dispatched.
Coker did not return to Nigeria, and instead tendered his resignation to UBA on January 13, 1992. The resignation was effective March 31, 1992, after the expiration of Coker's remaining vacation days.
In April 1992 the UBA Board of Directors considered Coker's resignation and voted to defer action on it pending completion of ongoing investigations regarding the New York branch. These investigations culminated in a report prepared by the Special Disciplinary Committee on New York Branch Problems. The report detailed an investigation that included interviews and review of documentary evidence, and set forth a host of problems relating to specific loan approvals and disbursements, as well as general management lapses. The report concluded that "the responsibility for the lapses, omissions and commissions ascertained in the management of the New York branch, should be attributable to the style of management, unprofessional conduct and gross negligence of Mr. Ade Coker."
On June 17, 1992, the UBA Board met to consider the Special Disciplinary Committee's report, and adopted the Committee's recommendation that Coker should be dismissed from service effective March 31, 1992, "for poor style of management, unprofessional conduct, and gross negligence in handling banking transactions of the branch."
On February 8, 1993, the Deputy Chief Inspector for UBA forwarded the following letter to the Central Bank of Nigeria and the United States Comptroller of the Currency:
As a result of some malpractices, ultra vires lendings, and poor administrative controls [Mr. Ade Coker] was dismissed from the services of the Bank with effect from 31st March, 1992. Mr. Ade Coker is therefore, no longer a bona fide member of UBA staff and we consider it prudent that his unethical behavior whilst in the employment of the Bank should be brought to your attention.
We have been unable to establish any contact with him to attend to some pending inquiries with regards to his conduct when performing the duties of General Manager of our New York Branch.
At some point Coker returned to Nigeria, where he now resides. In July 1993, Coker filed a civil action against UBA in the High Court of Lagos State, Lagos Judicial Division. Coker's complaint alleged that UBA published defamatory statements regarding him in the February 1993 Deputy Chief Inspector letter, and that: Coker suffered damage to his reputation and career in Nigeria and the United States as a result of such publication. Coker also alleged that UBA wrongfully dismissed him without cause in violation of his employment contract, and that UBA failed to pay Coker certain "entitlements," including salary, allowances, and relocation costs, to which Coker was contractually entitled. According to the affidavit of Rotimi Jacobs, one of Coker's attorneys in Nigeria, this action has been "adjourned indefinitely" since 1995.
On February 2, 1994, UBA filed the present action in the federal court in New York, asserting causes of action under RICO, for fraud, breach of contract, and breach of fiduciary duty. Subsequently, on July 1, 1994, Coker obtained an injunction in the Nigerian court against prosecution of the suit in the United States while Coker's Nigerian action was pending. That injunction was overturned on appeal in February 1996. On August 8, 1997, Coker filed his answer and counterclaims in the U.S. action. The answer and counterclaims were amended on March 19, 1998.
In November 1999, Coker filed a second suit in Nigeria in the Ikeja High Court, naming UBA and the Nigerian Deposit Insurance Company as defendants in connection with another alleged libel arising from Coker's termination. That action is still pending.
DISCUSSION
On each of Coker's counterclaims, UBA presents arguments for summary judgment both on the merits, as well as on judicial deference, forum non conveniens, or act of state grounds. Specifically, both judicial deference and forum non conveniens are raised as to Coker's libel counterclaim, while judicial deference alone is raised as to the wrongful discharge and breach of contract counterclaims, and forum non conveniens and act of state are raised as grounds for dismissal of the false imprisonment claim. Having concluded that judicial deference or forum non conveniens justifies dismissal of each of Coker's claims, the Court will not address UBA's other arguments.
I. The Libel Counterclaim
Coker's first counterclaim alleges that UBA libeled Coker by transmitting the Deputy Inspector's February 1993 letter to the Central Bank of Nigeria and the United States Comptroller of Currency. UBA argues that this claim should be dismissed in deference to the closely related pending Nigerian suit or on the basis of forum non conveniens. Coker objects to dismissal on either of these grounds, arguing in sum that he is entitled to litigate his counterclaims in the New York forum chosen by UBA for its action.
A. Deference to the Pending Nigerian Action
It has been recognized that principals of judicial efficiency and international comity give courts the "inherent power" to stay or dismiss actions that are duplicative of pending foreign suits. See Dragon Capital Partners L.P. v. Merrill Lynch Capital Services, Inc., 949 F. Supp. 1123, 1127 (S.D.N.Y. 1997); In re Houbigant, Inc., 914 F. Supp. 997, 1003 (S.D.N.Y. 1996). Factors weighed by courts to determine whether deference to a foreign proceeding is appropriate include the similarity of parties and issues involved, promotion of judicial efficiency, adequacy of relief available in the alternative forum, considerations of fairness to all parties and possible prejudice to any of them, and the sequence of commencement of the actions. Caspian Investments, Ltd. v. Vicom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y. 1991).
Here, Coker's Nigerian libel claim and his New York libel counterclaim are essentially the same, with the same parties (Coker and UBA) and arising from the same set of facts. As to the sequence, Coker filed his Nigerian libel claim in 1993, four years before the filing of the New York counterclaim.
Courts considering the question of deference have traditionally accorded great weight to the first suit filed. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976); Ronar, Inc. v. Wallace, 649 F. Supp. 310, 318 (S.D.N.Y. 1986).
Interests of judicial efficiency also weigh in favor of deferring to the Nigerian action. Coker's most recent discovery plain for his New York counterclaims includes taking depositions of eight witnesses, all of whom apparently are in Nigeria. This plan directly contradicts Coker's assertion that his counterclaims are "ready for trial" in New York, and that requiring him to "restart" in Nigeria would be both inefficient and prejudicial.
Moreover, Coker is wrong in arguing that prosecution of his counterclaim has proceeded apace while the Nigerian action has been dormant. Coker's counterclaim appears to be no further developed than the original claim still pending in Nigeria.
The relevant factors thus strongly militate in favor of deference to the Nigerian action. Further, given the identical nature of Coker's Nigerian libel claim and the apparent ability of that forum to accord full relief, it would serve no purpose to stay the instant action rather than simply dismissing it. See Caspian Investments, 770 F. Supp. at 885. Therefore, Coker's libel counterclaim is dismissed on the ground of judicial deference.
B. Forum Non Conveniens
The doctrine of forum non conveniens allows a court, in its discretion, to dismiss an action, otherwise properly brought, on the ground that litigating in another forum would better serve the convenience of the parties and the interests of justice. See Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998); Dragon Capital Partners, 949 F. Supp. at 1130.
To determine whether forum non conveniens dismissal is appropriate, courts generally determine first whether the alternative forum is adequate. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22 (1981). After determining that the alternative forum is adequate, courts go on to assess whether private and public interests weigh strongly in favor of dismissal. Private interests considered by the courts generally are factors that relate to the relative difficulty and cost to the parties of pursuing and trying the case in one forum or the other. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Public interests include court congestion and local interest in the resolution of localized controversies. Id. at 508-09.
As to the threshold inquiry, there is no question that the Nigerian forum is adequate to litigate the subject matter of the libel counterclaim. Coker himself has sued UBA in Nigeria in two closely related pending actions and has raised no substantial contention that the Nigerian courts are unable to effectuate a just resolution of those claims.
Furthermore, for many of the reasons set forth with respect to the deference issue, the balance of private and public interests weighs strongly in favor of dismissal. It appears from Coker's allegations as well as from his proposed list of depositions that most, if not all, of the proof germane to Coker's libel counterclaim is in Nigeria.
Finally, there are other difficulties, particularly for UBA, that would be imposed by trying the counterclaim in this forum while an identical suit is pending in Nigeria, including duplicative proceedings and the risk of inconsistent judgments.
It is generally true that where a forum non conveniens issue is raised, the plaintiff's choice of forum is entitled to deference.Gilbert, 330 U.S. at 508. But here, there is no real reason for such deference in view of the pending libel claim in Coker's earlier filed Nigerian action, and Coker's presence in and ties to the Nigerian forum.See Iragorri v. United Technologies Corp., 274 F.3d 65, 72 (2d Cir. 2001); Murray v. British Broadcasting Corp., 81 F.3d 287, 290 (2d Cir. 2000).
With respect to the public interests at stake, it is difficult: to see that the consideration of such interests tips the scale toward one forum or the other. Thus the private interest factors are dispositive, and they weigh heavily against New York as a forum. Therefore the libel counterclaim is dismissed on forum non conveniens grounds as well as on the ground of judicial deference.
II. The Wrongful Discharge Counterclaim
Coker's second counterclaim alleges wrongful discharge by UBA. Although UBA chose originally to argue for dismissal of this counterclaim on the merits, it points out in subsequent submissions to the Court that judicial deference militates in favor of dismissal here as much as with Coker's libel counterclaim.
Coker's pending action in Nigeria alleges that UBA wrongfully dismissed him without cause in violation of his employment contract. This claim is indistinguishable from Coker's wrongful discharge counterclaim, which alleges simply that UBA "wrongfully discharged the defendant from his employment." Therefore, for the reasons discussed with regard to Coker's libel counterclaim, this counterclaim should be dismissed in deference to the ongoing civil action in Nigerian courts.
III. The Breach of Employment Contract Counterclaim
Coker's third counterclaim alleges that UBA breached his employment contract by failing to pay outstanding salary, leave allowance, U.S. taxes, repatriation costs, and other contractual allowances allegedly owed to Coker. UBA argues that this counterclaim, like Coker's libel counterclaim, should be dismissed in deference to Coker's pending Nigerian civil action.
One claim in Coker's Nigerian suit against UBA alleges that UBA failed to pay Coker certain "entitlements," including salary, allowances, and relocation costs, to which Coker was contractually entitled. It is identical to Coker's breach of contract: counterclaim in the instant action.
The reasons set forth in the discussion of deference as to the libel and wrongful discharge counterclaims apply equally here. Therefore, Coker's breach of employment contract counterclaim is dismissed on the ground of judicial deference.
IV. The False Imprisonment Counterclaim
Coker's fourth counterclaim alleges that in the fall of 1996 UBA approached the Nigerian State Security Service and caused Coker to be arrested while he was traveling through the Lagos Airport. Coker states that the "arrest, detention and imprisonment of [Coker] . . . were unlawful and without justification," and that UBA's act of approaching Nigerian security forces was "willful, wanton and without reasonable excuse." As a result of his arrest, Coker alleges that "[d]uring a period of several hours" he was "subjected to severe physical discomfort and mental anguish."
UBA argues that Coker's false imprisonment counterclaim should be dismissed on the ground of forum non conveniens.
Coker attempts to argue in opposition to summary judgment that this counterclaim comes within the ambit of the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, or the Torture Victims Prevention Act ("TVPA"), 28 U.S.C. § 1350. Relying on the Second Circuit's decision in Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 (2d Cir. 2000), Coker argues that because ATCA and the TVPA express an intention to create a U.S. forum for plaintiffs to bring claims of violations of rights under international law, ordinary doctrines of abstention may often be inapposite.
Coker's amended counterclaim, as pleaded, does not invoke ATCA or the TVPA. These statutes are mentioned only in briefing the motion. But assuming that the argument under the statutes is properly raised, and further assuming, arguendo, that Coker's allegations could come within the ambit of these statutes, the balance of factors would still militate in favor of dismissal of the false imprisonment claim on forum non conveniens grounds. See Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002).
As an initial matter, Nigeria is an adequate forum for the wrongful imprisonment counterclaim. Not only are Coker's previously filed actions still pending, but it is also clear that Nigeria has a cause of action for wrongful imprisonment. Coker presents no reason why a wrongful imprisonment claim could not be added to his own pending Nigerian actions, or filed anew in a Nigerian court. It should be noted that, according to submissions by UBA, the Nigerian statute of limitations for wrongful imprisonment may have run in 2002 while the instant motion was pending. This does not present a barrier to dismissal to the extent that UBA is prepared to waive a statute of limitations defense to an expeditiously filed Nigerian action.
The private and public interests at stake also balance heavily in favor of dismissal. All of the events underlying Coker's counterclaim took place in Nigeria, suggesting strongly that any evidence or testimony Coker may contemplate bringing before the Court is located in Nigeria. Additionally, it is manifestly clear that the Nigerian forum has a stronger local interest in hearing the counterclaim. Coker alleges misconduct on the part of not only UBA, a Nigerian corporation, but also by the Nigerian State Security Service, an arm of the Nigerian State.
Finally, even assuming that Coker's counterclaim may be cognizable under ATCA or the TVPA, UBA has met its burden of showing that the balance of factors tips in favor of dismissal. The Wiwa court discussed several unique difficulties that might result to ATCA and TVPA plaintiffs from a dismissal of their claims on forum non conveniens grounds. The plaintiff is often not present in the alternative forum and cannot safely return there. Courts in the alternative forum may be inhospitable to the claims. Plaintiffs and defendants may not be protected or governed by the domestic law of the alternative forum. Wiwa, 226 F.3d at 106. For the reasons discussed above, Coker has not made a showing that any of these factors apply in the present case. In any event, as noted above, Coker's counterclaim does not plead the ATCA or the TVPA as a basis for his false imprisonment action.
Therefore, Coker's false imprisonment counterclaim is dismissed on the ground of forum non conveniens, on the condition that: UBA waive any statute of limitations defense to a false imprisonment claim in Nigerian court.
CONCLUSION
For the foregoing reasons, UBA's motion to dismiss Coker's four counterclaims is granted.
SO ORDERED.