Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AKUBE WUROMONI NDOROMO,
Plaintiff v. Civil Action No. 19-3781 (CKK) WILLIAM BARR, et al. ,
Defendants MEMORANDUM OPINION (August 31, 2020)
Pro se Plaintiff Akube Ndoromo brings this lawsuit against Defendants William Barr and Timothy Shea requesting “restitution of his funds, and damages” totaling $1,048,357,812.17. Compl., ECF No. 1-1. Pro se Plaintiff’s Complaint is challenging to follow; but, as the Court reads the Complaint in conjunction with other filings, Plaintiff appears to state three claims for relief. First, Plaintiff alleges that his assets, including bank accounts, businesses, and other properties, were wrongfully forfeited. Second, Plaintiff contends that Defendants violated the False Claims Act. Third, Plaintiff argues that Defendants violated 12 USC § 1817 by wrongfully taking his property and funds. Defendants have moved for the dismissal of all of Plaintiff’s claims. And, Plaintiff has moved for the recusal of the undersigned Judge. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court will DENY Plaintiff’s Motion for Recusal as Plaintiff has stated no legitimate grounds for the undersigned Judge’s recusal. The Court will further GRANT Defendants’ Motion to Dismiss as Plaintiff has failed to state a plausible claim for which relief may be granted.
I. BACKGROUND
For the purposes of the motion before the Court, the Court accepts as true the well-pled
allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the plaintiff’s
legal conclusions or inferences that are unsupported by the facts alleged.”
Ralls Corp. v. Comm.
on Foreign Inv. in the United States
,
Plaintiff’s allegations appear to stem from the seizure of Plaintiff’s funds and other property which resulted from a guilty verdict in the criminal matter, United States v. James , Case Truth, and Evidence in Black and White Under Oath for Defendant as well as for Plaintiff to Set the Trial (“Pl.’s Res.”), ECF No. 13; and
• Pl. Want to Know the Status of the Case Nothing Received after last Filing of June 01, 2020, Memorandum of Points and Law Attachements for Initial Conference before Trial Process (“Pl.’s Notice”), ECF No. 15.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
No. 6-cr-19-EGS. In 2006, a federal grand jury returned a Superseding Indictment charging Plaintiff with multiple counts of healthcare fraud, false statements, and money laundering. James , Case No. 6-cr-19-EGS, ECF No. 3. The Superseding Indictment included a forfeiture allegation. Id. at 13-15. On March 30, 2007, a jury found Plaintiff guilty of one count of healthcare fraud, 11 counts of false statements related to healthcare matters, and eight counts of money laundering. Id. at ECF No. 37. The jury further returned a Special Verdict, finding that $1,856,812.71 and two vehicles represented property derived from or proceeds traceable to Plaintiff’s criminal acts. Id. at ECF No. 41.
In 2008, Plaintiff was sentenced to 57 months of incarceration and 36 months of supervised release and was ordered to pay $1,856,812.71 in restitution. Id. at ECF No. 117. At sentencing, the judge indicated that the forfeiture of $1,856,812.71 and two vehicles were included as part of Plaintiff’s sentence. Id. at ECF No. 152 at 2. Accordingly, on December 30, 2008, the court issued two final Orders of Forfeiture to that effect. Id. at ECF No. 122 (as to funds), 123 (as to vehicles).
Following the resolution of Plaintiff’s criminal matter, the government continued its pursuit of the forfeiture of Plaintiff’s funds and property in the civil forfeiture matter, United States v. $455,273.72 , Case No. 5-cv-356-EGS. And, in 2011, the court granted the government summary judgment. The court explained that, because Plaintiff’s conviction in his criminal case was based on the same facts as the civil forfeiture matter, Plaintiff’s funds and property were subject to forfeiture as the proceeds of an unlawful activity. $455,273.72 , Case No. 5-cv-356- EGS, ECF No. 73, 12-16.
Since that time, Plaintiff has filed appeals and otherwise attacked the results of his criminal and civil forfeiture matters. On October 10, 2018, Plaintiff filed a lawsuit very similar to the one currently before the Court. Nodormo v. Sessions , 18-cv-2339(CKK). In that suit, Plaintiff argued that his property had been improperly seized, that his guilty verdict in his criminal matter should be overturned, and that the Government violated the False Claims Act. Ndoromo, 18-cv- 2339(CKK), Compl., ECF No. 1. On July 2, 2019, the Court dismissed Plaintiff’s case, finding that Plaintiff had failed to state any claim for which relief could be granted. Plaintiff appealed the Court’s dismissal, and the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal. Ndoromo , 19-5211 (D.C. Cir. Feb. 13, 2020).
On November 18, 2019, Plaintiff filed in the Superior Court of the District of Columbia this lawsuit, bringing substantially the same claims as his prior lawsuit. ECF No. 1-1. Plaintiff’s case was then removed to the United States District Court for the District of Columbia before Judge Amy Berman Jackson. ECF No. 1. On April 10, 2020, Defendants filed a notice of related case, and this case was ultimately reassigned to the undersigned Judge who had presided over Plaintiff’s prior case, Nodormo v. Sessions , 18-cv-2339(CKK). Currently pending before the Court are Defendants’ Motion to Dismiss and Plaintiff’s Motion to Recuse.
II. LEGAL STANDARD
Defendants move to dismiss Plaintiff’s Complaint on multiple grounds. However, as the
Court finds that dismissal is proper for failure to state a claim, the Court shall concentrate on the
standard for dismissal set out in Federal Rule of Civil Procedure 12(b)(6).
[2]
According to Rule
12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if
it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal
, 556
U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly
,
III. DISCUSSION
The Court shall begin by explaining why recusal is inappropriate in these circumstances. The Court will next explain why dismissal is appropriate as Plaintiff has failed to state a claim for which relief may be granted.
A. Recusal
In his Motion, Plaintiff argues that the undersigned Judge should be recused because this Judge previously dismissed Plaintiff’s claims in Nodormo v. Sessions , 18-cv-2339(CKK). Plaintiff also argues that the Court “can’t be a Judge and a witness at this same time period.” ECF No. 9.
Pursuant to 28 USC § 455(a), “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably
be questioned.” 28 USC § 455(a). In assessing section 455(a) motions for recusal, the D.C.
Circuit applies an “objective” standard: “Recusal is required when ‘a reasonable and informed
observer would question the judge's impartiality.’” S
.E.C. v. Loving Spirit Found., Inc
., 392 F.3d
486, 493 (D.C. Cir. 2004) (quoting
United States v. Microsoft Corp
.,
Similarly, under 28 USC § 455(b), a judge shall disqualify herself “[w]here [s]he has a
personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding.” 28 USC § 455(b)(1). A party moving for recusal pursuant to
Section 455(b) must likewise demonstrate “actual bias or prejudice based upon an extrajudicial
source.”
Middlebrooks
,
Here, Plaintiff’s request for recusal appears largely based on the undersigned Judge’s
rulings in another, similar action brought by Plaintiff,
Nodormo v. Sessions
, 18-cv-2339(CKK).
However, “judicial rulings are almost never grounds for a claim of bias or impartiality.”
Ramos v.
U.S. Dep't of Justice
,
The Court next addresses Plaintiff’s argument that the undersigned Judge should recuse
because a judge cannot also serve as a witness. The Court agrees that a judge cannot serve as a
witness in a case over which that judge is presiding. However, besides dismissing previous,
similar claims, the undersigned Judge has no connection to Plaintiff’s claims in this lawsuit. Any
personal knowledge of Plaintiff’s claims has been acquired solely from the discharge of official
judicial duties in the prior litigation. And, “[k]nowledge gained from the judge's discharge of his
judicial function is not a ground for disqualification under 28 U.S.C. § 455(b)(1).”
Omega Eng'g,
Inc. v. Omega, S.A
.,
Based on the foregoing, the Court finds that Plaintiff has failed to present any legitimate grounds for recusal. As such, the Court DENIES Plaintiff’s Motion to Recuse and will proceed to Defendants’ Motion to Dismiss.
B. Dismissal
Plaintiff primarily brings three claims in his Complaint. First, Plaintiff alleges that his assets, including bank accounts, businesses, and other properties, were wrongfully forfeited. Second, Plaintiff contends that the government violated the False Claims Act. Third, Plaintiff claims that Defendants’ wrongful taking of his funds violated 12 USC § 1817 and resulted in bank penalties. Defendants have moved for the dismissal of all of Plaintiff’s claims. The Court concludes that Plaintiff has failed to state a claim for which relief may be granted.
The Court begins by addressing Plaintiff’s preliminary, procedural argument. Plaintiff argues that “defendant never responded to Judge Amy Berman Jackson’s orders of April 10, 2020, to Plaintiff’s motions.” ECF No. 9, 1. The docket shows no order from Judge Berman Jackson on April 10, 2020. Instead, the Court assumes that Plaintiff refers to her March 17, 2020 minute order stating that “Defendants must file a responsive pleading to plaintiff’s complaint by April 10, 2020.” Mar. 17, 2020 Minute Order. Plaintiff appears to argue that, because an answer has not yet been filed, Defendants are in violation of a court Order. However, Plaintiff fails to recognize that Defendants did respond to his Complaint by filing a Motion to Dismiss on April 10, 2020. ECF No. 6. Under Federal Rule of Civil Procedure 12, if a defendant files a motion to dismiss, an answer to the complaint is not required until 14 days after notice of the court’s action, if the court denies or otherwise postpones resolution of the motion. Fed. R. Civ. P. 12(a)(4)(A). As Defendants have filed a Motion to Dismiss, they have complied with the Court’s order and any Answer to Plaintiff’s Complaint is not yet due.
Plaintiff also appears to argue that he is entitled to an “initial conference for presentation of the facts, truth and evidence in black and white under oath for Defendant as well for Plaintiff to set the trial.” ECF No. 13, 1. A Court is not required to conduct a hearing or initial conference when there is a pending motion to dismiss. Pursuant to Federal Rule of Procedure 16, a court may schedule a pretrial conference for purposes such as expediting an action, case management, discouraging waste, improving preparation, and facilitating settlement. Fed. R. Civ. P. 16(a). Here, the Court finds that none of these purposes would be served by a pretrial conference. Similarly, under the local rules, it is in the Court’s discretion whether or not to hold an oral hearing to resolve a motion. LCvR 7(f). And, again, the Court finds that holding an oral hearing would not assist in resolving the merits of the parties’ motions. In this case, the legal issues are clear, and holding a hearing would not assist the Court’s resolution.
Finally, Plaintiff is not entitled to a trial on the merits of his claims until the parties have proceeded past the dispositive motions and discovery stages. As such, at this time, Plaintiff is not entitled to a trial given the current phase of litigation.
1. Forfeiture Challenges
The Court next moves to Plaintiff’s claim that his assets, including bank accounts, businesses, and other properties, were wrongfully forfeited. The court finds that this claim should be dismissed for at least two reasons. First, this claim is barred by issue and claim preclusion. Second, Plaintiff cannot collaterally attack forfeiture orders through a civil complaint in this Court.
Generally, a plaintiff is expected to “present in one suit all the claims for relief that he
may have arising out of the same transaction or occurrence.”
U.S. Indus., Inc. v. Blake Const.
Co., Inc
.,
In his prior lawsuit, Plaintiff brought claims that the government improperly seized his funds and property as a result of forfeiture orders in James , Case No. 6-cr-19-EGS and the grant of summary judgment in $455,273.72 , Case No. 5-cv-356-EGS. Plaintiff again raises this same claim in the current lawsuit. However, that issue was necessarily determine when the Court dismissed Plaintiff’s case in its July 2, 2019 Order. Nodoromo , 18-2339(CKK), ECF Nos. 13, 14. Additionally, the D.C. Circuit affirmed the dismissal of Plaintiff’s case. Id . at ECF No. 17. Plaintiff presents no reason that he should not be bound by that prior judgment.
In the current lawsuit, Plaintiff does bring a claim that he did not raise previously. He
argues that Defendants violated 12 U.S.C. § 1817 by robbing him and that he is entitled to a bank
penalty. However, this legal theory of liability is still based on the same previously-challenged
forfeitures and could have been raised previously.
See Lewis v. Drug Enforcement Admin
., 777 F.
Supp. 2d 151, 163 (D.D.C. 2011),
aff’d
, No. 11-5152,
Accordingly, Plaintiff’s claims challenging his forfeitures should be dismissed on the grounds of claim and issue preclusion.
However, even if these claims were not barred, they would still fail. Plaintiff cannot
collaterally attack another court’s grant of forfeiture through a civil complaint in this Court.
See
37 Associates, Trustee for the 37 Forrester Street, SW Trust v. REO Const. Consultants, Inc
., 409
F. supp. 2d 10, 14 (D.D.C. 2006) (explaining that an in rem forfeiture “is not subject to collateral
attack in any other court”);
Roberts v. United States
,
Moreover, the Court notes that Plaintiff’s attacks on the forfeiture of his funds and
property are specious. As the D.C. Circuit noted when summarily affirming the district court’s
forfeiture order over Plaintiff’s property, “[Plaintiff’s] underlying criminal convictions
collaterally estop him from arguing that he did not commit the offenses and that his funds and
vehicles lacked the requisite nexus to those offenses.”
United States v. $455,273.72
, Case No. 11-
5327 (D.C. Cir), March 7, 2012 Order, 1 (citing
Emich Motors Corp. v. General Motors Corp
.,
2. False Claims Act
While it is unclear, Plaintiff appears to raise a False Claims Act claim in his response. ECF No. 13, 39, 30. Plaintiff also previously raised a False Claims Act claim in his previous lawsuit. Nodoromo , 18-2339(CKK), ECF No. 1. As this claim was dismissed in his previous lawsuit, Plaintiff is barred from relitigating it now.
As before, Plaintiff appears to misunderstand the nature of the False Claims Act, 31 U.S.C. § 3729. The purpose of the False Claims Act “is to prevent the commission of fraud against the federal government and to provide for the restitution of money that was taken from the federal government by fraudulent means.” United States v. Satory Global, Inc ., 946 F. Supp. 2d 69, 80 (D.D.C. 2013) (internal quotation marks omitted). Because the False Claims Act is meant to ensure that funds are not falsely taken from the government, the Court concludes that Plaintiff cannot use the Act to allege that the government has falsely taken funds from him. Plaintiff cites no case in which a court has allowed the False Claims Act to be used in this way. See Ndoromo v. Barr , Case No. 19-5211 (D.C. Cir.), Feb. 3, 2020 Order, 2 (affirming dismissal of Plaintiff’s prior False Claims Act claim). Accordingly, the Court concludes that Plaintiff’s allegations under the False Claims Act do not state a plausible claim for relief.
3. 12 USC § 1817
Finally, in his Complaint, Plaintiff cites 12 USC § 1817. Plaintiff argues that Defendants violated the provision stating that “[n]o Person, acting directly or indirectly or through or in concert with one or more other persons, shall acquire control of any insured depository institute through a purchase, assignment, transfer, pledge, other disposition of voting sock of insured depository institution unless the appropriate Federal Banking Agency has been given sixty days prior written notice of such proposed acquisition and within that time period.” ECF No. 1-1, 8. Plaintiff further argues that, based on this violation though the forfeiture of his bank accounts, Defendants owe him a civil penalty of not more than $25,000 for every day of the violation. Id .
This claim fails for multiple reasons. First, the Court has already explained that, as this claim is tied to the challenged forfeitures, it is barred by issue preclusion. See Supra Sec. III.A. Second, Plaintiff uses his claim under 12 USC § 1817 to collaterally attack the validity of the forfeiture orders. Plaintiff cannot collaterally attack the forfeiture orders in this manner. Id . Third, Plaintiff has provided no case in which this statute was used against the Government when the Government’s taking of funds was approved by court order. And, Plaintiff has failed to provide any factual allegations as to how Defendants violated this statute. Finally, there does not appear to have been a waiver of sovereign immunity as to the statute.
For these reasons, the Court finds that Plaintiff has failed to state a claim for the violation of 12 USC § 1817.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s [9] Motion for Recusal and GRANTS Defendants’ [6] Motion to Dismiss. Plaintiff has failed to state a legitimate reason for the undersigned Judge’s recusal. And, reading Plaintiff’s Complaint and other filings in the light most favorable to him, Plaintiff has failed to allege any facts which state a plausible claim for relief. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY United States District Judge
Notes
[1] The Court’s consideration has focused on the following documents: • Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’ Mot.”), ECF No. 6; • Pl.’s Mot. for Rcusal of Judge Colleen Kollar-Kotelly and Defendant Never Respondent to April 10, 2020 Order by Judge Amy Berman Jackson’s (“Pl.’s Mot.”), ECF No. 9; • Defs.’ Res. to Pl.’s Mot. for Recusal (“Defs.’ Res.”), ECF No. 12; • Pl.’s Responding to Judge’s Order of April 28, 2020, Def. Continues to File Liars and False Misleading the Court and Failed to Respond to Order of April 10, 2020, also Failed to Answer the Complaint What is Missing is Initial Conference for Presentation of Facts,
[2] Defendants also move for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that portions of the Complaint are patently insubstantial, and 12(b)(5) for insufficient service of process.