Nigerians in Diaspora Organization Americas v. Key ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NIGERIANS IN DIASPORA
ORGANIZATION AMERICAS,
Plaintiff,
Civil Action No. 19-3015 (RDM)
v.
PATIENCE NDIDI KEY et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Patience Ndidi Key’s motion to dismiss
Plaintiff’s amended complaint. Dkt. 84. Plaintiff Nigerians in Diaspora Organization Americas
(“NIDOA”) is a nonprofit organization that advocates for the interests of Nigerians in the
Western Hemisphere. On October 9, 2019, Plaintiff brought this action against Key, the former
chair of the Board of Directors for NIDOA’s U.S.-based affiliate, Nigerians in Diaspora
Organization Americas, USA (“NIDOA-USA”). See Dkt. 1 (Compl.); Dkt. 72 at 6. The
complaint alleged that Key had failed to cede control of the Board to newly elected officers when
her term expired, that she “registered a competing and infringing NIDO organization in the
District of Columbia,” Dkt. 1 at 3 (Compl. ¶ 8), and that she was engaging in trademark
infringement and false advertising by continuing to act on behalf of NIDOA-USA without
authorization, Dkt. 1 at 7 (Compl. ¶¶ 25–43).
Ten months after filing the complaint, Plaintiff moved for a preliminary injunction. Dkt.
39. Two days prior, an attorney named Hope Umana, who represents Key in this action, filed a
motion to intervene on behalf of an entity purporting to be NIDOA-USA. Dkt. 36. Plaintiff
opposed that motion, Dkt. 38 at 1, but the entity purporting to be NIDOA-USA withdrew its
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motion to intervene before the Court ruled on the motion, Dkt. 70. While both the motion for
preliminary injunction and the motion to intervene were pending, Key stepped down from her
role as chair of the separate NIDOA-USA’s Board of Directors and ceased acting on the
organization’s behalf. See Dkt. 72 at 16, 18–19. The Court, accordingly, denied Plaintiff’s
motion for preliminary injunction as moot, holding that Key was “no longer in a position in
which there [was] a discernible prospect that she [would] infringe on Plaintiff’s trademarks” and
rejecting Plaintiff’s contention that the Court could enjoin the activities of other purported
NIDOA-USA Board members when they were not named parties to the suit. Id. at 21–23. On
May 12, 2021, Plaintiff filed an amended complaint in which it now asserts claims against the
“competing and infringing NIDO organization in the District of Columbia,” which it refers to as
“NIDOA USA, Inc.” Dkt. 81 at 2–4 (Am. Compl. ¶¶ 3–13). Thus, having opposed NIDOA-
USA’s motion to intervene, Plaintiff subsequently amended its complaint to add that entity as a
party.
Because Plaintiff added NIDOA USA, Inc. as a party on May 12, 2021, it was required to
serve a summons and a copy of the amended complaint on that organization by August 10, 2021,
or to show good cause for its failure to do so. See Fed. R. Civ. P. 4(m). On June 18, 2021, the
Court entered a minute order explaining that Plaintiff had not yet filed proof of service and
directing Plaintiff to file a status report “updating the Court on its effort to effect service on
[NIDOA USA, Inc.].” Min. Order (June 18, 2021). On July 7, 2021, Plaintiff’s counsel filed a
“Certificate of Service” stating that he had “caused one copy each of the Amended Plaintiff’s
Complaint for Trademark Infringement, False Advertisement, Declaratory Judgment and
Injunctive Relief, to be served by first class return receipt mail on Hope Umana, Esquire, counsel
for the Defendant NIDOA USA, Inc[.]” at Mr. Umana’s work address in Silver Spring,
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Maryland. Dkt. 82 at 1–2. The certificate included as an attachment a printout of a U.S. Postal
Service tracking page stating that an “item” was “delivered to an individual” at an address in
Silver Spring, on June 26, 2021, Dkt. 82-1 at 1, and photocopies of a U.S. Postal Service
Certified Mail Receipt that lists Mr. Umana’s name and office address, id. at 2.
Adding to the confusion, Mr. Umana has now filed a motion to dismiss on behalf of Key,
but not NIDOA USA, Inc. Dkt. 84. Although the motion is not a model of clarity, it appears to
argue that the claims against Key should be dismissed because Plaintiff failed to effect service on
NIDOA USA, Inc. Dkt. 84 at 2. Acknowledging that Plaintiff “mailed documents to defendant
Key’s counsel,” Key argues that the mailing did not constitute effective service on NIDOA USA,
Inc. Id. With no further explanation, Key then requests that the Court “dismiss the plaintiff’s
amended complaint.” Id. at 3.
Even if Plaintiff failed properly to serve NIDOA USA, Inc., the Court fails to see why
that misstep warrants dismissal of Plaintiff’s claims against Key, who was properly served two
years ago. See Dkt. 5 at 1. To be sure, the Court previously held that one of Plaintiff’s requests
for relief against Key—its request for preliminary injunctive relief—was moot because Key
stepped down from the separate NIDOA-USA organization’s Board of Directors in December
2020. Dkt. 72 at 23. But, in so holding, the Court explicitly “reserv[ed] judgment” as to
Plaintiff’s other requests for relief against Key. Id. Plaintiff’s amended complaint restates those
requests for relief against Key, Dkt. 80 at 11-12 (Am. Compl.), and she offers no basis for
dismissing the remaining claims against her in her motion to dismiss. The Court will,
accordingly, DENY that motion.
That said, Key is correct that Plaintiff has failed properly to serve NIDOA USA, Inc.
Federal Rule of Civil Procedure 4 requires that a plaintiff serve each defendant with a summons
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and a copy of the complaint. See Fed. R. Civ. P. 4(c). To date, Plaintiff has not requested the
issuance of a summons as to NIDOA USA, Inc. Nor does the docket indicate that any such
summons has issued. Rule 4 allows for waiving service of process, see Fed. R. Civ. P. 4(d), but
nothing in the existing record indicates that Plaintiff sought or obtained such a waiver here.
Similarly, a party may waive the defense of insufficient service of process by failing to raise it in
its first responsive pleading or in a pre-pleading motion. See Fed. R. Civ. P. 12(h). But NIDOA
USA, Inc. has not filed a responsive pleading or pre-pleading motion. To be sure, Mr. Umana
entered an appearance on behalf of NIDOA USA, Inc. on August 24, 2020. Dkt. 40. “Federal
courts have firmly established,” however, “that a court appearance alone can never waive an
otherwise valid [insufficient service of process] defense.” Candido v. District of Columbia, 242
F.R.D. 151, 162 (D.D.C. 2007). Mr. Umana also filed a motion to intervene on behalf of NDIO
USA, Inc., but given that Plaintiff opposed the motion and that it was ultimately withdrawn—all
before Plaintiff raised any claims against NDIO USA, Inc. in its amended complaint—the Court
will not construe that motion as a “pre-pleading motion” that would waive NDIO USA, Inc.’s
insufficient service of process defense.
It is also far from clear that Mr. Umana is currently “an officer, a managing or general
agent, or any other agent authorized by appointment or by law to receive service of process,” as
is required under the federal rule for effecting service on a corporation. Fed. R. Civ. P. 4(h).
And, even though Mr. Umana entered an appearance and moved to intervene “on behalf of
[NIDOA], USA,” see Dkt. 35; Dkt. 36, those facts alone do not show that Mr. Umana was
authorized to accept service as the entity’s agent. See United States v. Ziegler Bolt & Parts Co.,
111 F.3d 878, 881 (Fed. Cir. 1997) (“Even where an attorney exercises broad powers to
represent a client in litigation, these powers of representation alone do not create a specific
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authority to receive service.”); 4A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1097 (4th ed.) (“[T]he defendant’s attorney probably will not be deemed an
agent appointed to receive process absent a factual basis for believing that an appointment of that
type has taken place.”). The Court therefore concludes that Plaintiff has not satisfied Rule 4’s
requirements for serving NIDOA USA, Inc. or providing proof of service (or waiver) to the
Court.
Given Plaintiff’s failure to effect service or to demonstrate that service was waived, the
Court hereby ORDERS Plaintiff to show cause, on or before November 30, 2021, why the
claims against NIDOA USA, Inc. should not be dismissed pursuant to Federal Rule 4(m). That
rule states:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Because the Court directed Plaintiff to effect service and to file the
necessary proof in its June minute order, Plaintiff was on notice that compliance with Rule 4 was
required by August 10, 2021. Several weeks before that deadline came to pass, moreover, Key
filed her motion to dismiss in which she argued that Plaintiff had failed properly to serve NIDOA
USA, Inc. But, despite these warnings, Plaintiff took no subsequent action to remedy any
potential defects in service. Indeed, Plaintiff did not even contest Key’s argument in its response
to her motion. See Dkt. 85. The Court will not permit this case, which is more than two years
old, to drag on for additional months or years on account of a failure to comply with the Federal
Rules of Civil Procedure. Now that six months have passed since Plaintiff filed its amended
complaint, Plaintiff must show good cause for its failure to serve NIDOA USA, Inc., or else the
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Court will dismiss the claims against that defendant without prejudice. See Morrissey v.
Mayorkas, --- F.4th ---, 2021 WL 5183277, at *5 (D.C. Cir. 2021) (holding that the district court
did not abuse its discretion by “dismissing [the plaintiff’s] complaint when the time for
effectuating service had passed”).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant Key’s motion to
dismiss, Dkt. 84, is DENIED. It is further ORDERED that Plaintiff shall show cause on or
before November 30, 2021, as to why the Court should not dismiss the claims brought against
NIDOA USA, Inc. in the amended complaint under Federal Rule of Civil Procedure 4(m).
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
Date: November 17, 2021
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