Ugwuonye motion to oppose subpoenas - NigerianMuse

Case 8:09-cv-00658-PJM Document 37 Filed 06/09/2009 Page 1 of 10 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MARYLAND 

SOUTHERN DIVISION 

EPHRAIM EMEKA UGWUONYE, 

v. 

Plaintiff, 

Civil Action No. 09-0658 (PJM) 

OLUWOLE ROTIMI, ET AL. 

Defendants. 

NON-PARTY NIGERIA’S MOTION TO QUASH SUBPOENAS 

COMES NOW Ephraim Ugwuonye, Esquire, on behalf of the Government 

of Nigeria, and hereby moves this Honorable Court to quash the subpoenas 

issued by Defendant Aluko to: 

(a) Tracy Watson of Chicago Title Company, 2000 M Street, NW, Suite 

600, Washington, DC 20036; 

(b) Helen Do, Federal Titles & Escrow Company, 5335 Wisconsin 

Avenue, NW, Suite 700, Washington, DC 20015; 

(c) Sue Shaffer, Paragon Title and Escrow Company, 7415 Arlington 

Road, Bethesda, MD 20814, 

(d) Linda Dyett, Paragon Title and Escrow Company, 7415 Arlington 

Road, Bethesda, MD 20814, and 

(e) Kathleen Taylor, Global Title Group, LLC, 3158 Braverton Street, 

Suite 110, Edgewater, MD 21037. 

As grounds for this motion the movant states as follows:


1. On April 17, 2009, Defendant Aluko filed a motion to dismiss under Rule 

12(b), and that motion also challenging the subject matter jurisdiction of 

this Court. 

2. On May 21, 2009, the plaintiff filed a notice of dismissal under Rule 

41(a)(1)(i). 

3. On June 3, 2009, Defendant Aluko served the above-named non-parties 

to this case with subpoenas issued by this court commanding them to 

produce and permit inspection and copying of “all closing and settlement 

documents on the conveyance of the properties” of the Nigerian 

Government between the Nigerian Government and certain persons. 

4. Service of the subpoenas did not comply with the requirement of Rule 

45(b)(1) that a subpoena should not be served by a party in the underlying 

suit. That requirement also precludes the attorney to a party from 

serving the subpoena. All available indications show that the subpoenas 

in issue were served by Mr. Muyiwa Sobo, attorney to a party in this 

case, himself. Without any affidavit of service on record, it cannot be 

verified that Mr. Sobo complied with the applicable rules on the service of 

a subpoena. 

5. The above documents and information with respect to which the 

defendant has requested production and inspection are privileged, 

private or otherwise protected documents which belong to the 

Government of the Federal Republic of Nigeria. 

6. Further, based on the motions filed or pending before this Court, the 

posture of the case of Defendant Aluko is that it has either terminated or 

will be terminated as a matter of law. As a result, it is inconceivable that 

these subpoenas are intended to serve any purpose related to this case. 

7. Even if the case of Aluko has not or is not due to be terminated by this 

Court, given the facts in issue in this case, these documents serve no 

probative value whatsoever. Even if any probative value could be 

articulated, it is outweighed by the propaganda effect upon the Nigerian


Government which such documents could inflict upon the Government of 

Nigeria. 

8. Defendant Aluko’s motive for seeking these documents even after he had 

contended that this court lacks jurisdiction and after plaintiff’s notice of 

dismissal is simply to have in his possession documents he believes 

might embarrass the Government of Nigeria particularly as to the method 

by which they are obtained. 

9. Nigeria is a sovereign nation and deserves special consideration and 

treatment by the courts of the land, regardless of the technical letters of 

the law. 

10. Prior to filing this motion, the undersigned counsel attempted to 

confer with defendant’s counsel concerning these matters. While the 

undersigned counsel was able to speak with Mr. Walter Blair, one of the 

attorneys for the defendant, on the telephone, both sides could not agree 

on anything. 

RELIEF PRAYED FOR 

ON THE BASIS of the foregoing and the Memorandum of law attached, 

The Federal Republic of Nigeria prays this Court to quash the above listed 

subpoenas and to make such other order as the Court may deem fit in the 

circumstance. 

Respectfully submitted, 

By: 

____________/s/______________________ 

Ephraim Ugwuonye: (Bar No. 14956) 

ECU ASSOCIATES, P.C. 

850 Sligo Avenue, Suite 400 

Silver Spring, Maryland 20910 

Phone: (301) 588-9315 

Facsimile: (301) 588-9318 

eu@eculaw.com 

For the Government of Nigeria


CERTIFICATE OF SERVICE 

Movant certifies that service of this document on all relevant parties was 

met by filing same through the ECF. Also, for the purposes of the respondents 

to the Subpoenas, service was effected by mailing this document by first class 

mail to their addresses as written on the Subpoenas this 9 th day of June 2009. 

By: 

____________/s/______________________ 





Phone: (301) 588-9315 

Facsimile: (301) 588-9318 

eu@eculaw.com


UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MARYLAND 

SOUTHERN DIVISION 

EPHRAIM EMEKA UGWUONYE, 

v. 

Plaintiff, 

Civil Action No. 09-0658 (PJM) 

OLUWOLE ROTIMI, ET AL. 

Defendants. 

MEMORANDUM IN SUPPORT OF MOTION TO QUASH 

COMES NOW Ephraim Ugwuonye, Esquire, on behalf of the Government 

of Nigeria, and hereby files this Memorandum in support of motion to quash 

the subpoenas issued by Defendant Aluko to: 

(a) Tracy Watson of Chicago Title Company, 2000 M Street, NW, Suite 

600, Washington, DC 20036; 

(b) Helen Do, Federal Titles & Escrow Company, 5335 Wisconsin 

Avenue, NW, Suite 700, Washington, DC 20015; 

(c) Sue Shaffer, Paragon Title and Escrow Company, 7415 Arlington 

Road, Bethesda, MD 20814, 

(d) Linda Dyett, Paragon Title and Escrow Company, 7415 Arlington 

Road, Bethesda, MD 20814, and 

(e) Kathleen Taylor, Global Title Group, LLC, 3158 Braverton Street, 

Suite 110, Edgewater, MD 21037. 

The movant further states as follows:


1. “[T]he right to discovery is not unlimited, and does have ‘ultimate and 

necessary boundaries’.” Allen v. Howmedica Leibinger, GmhH, 190 F.R.D. 

518 (W.D. Tenn. Nov. 22,1999), citing Hickman v. Taylor, 329 U.S. 495, 

497 (1947). And in that regard, “[t]he trial court has the right to control 

the discovery schedule...” Hina v. Anchor Glass Container Corp., 2008 

U.S. Dist. LEXIS 41577 (S.D. Ohio May 22, 2008), referencing Kennedy v. 

Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986). Moreover, the power to 

quash a subpoena lies with the issuing court. See Fed. R. Civ. P. 

45(c)(3)(A). See also Tiberia v. CIGNA Ins. Co., 40 F.3d 110 (5 th Cir. 1995). 

Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure provides that a 

Court must quash a subpoena if it: “(iii) requires disclosure of privileged 

or other protected matter and no exception or waiver applies…” 

2. Here, Defendant Aluko seeks to obtain or inspect documents which are 

private and privileged to the Government of Nigeria, relating to 

confidential transactions between the Government of Nigeria and third 

parties. 

3. At the time that the defendant sought these documents, the posture of 

the case shows clearly that the case is either terminated or is due to be 

terminated as a matter of law. In Columbia Insurance Co. v. SEESCANDY, 

Inc., 185 F.R.D. 573, 578-80 (N.D. Cal 1999), the court required a showing 

that the Complaint would survive a motion to dismiss before it could 

authorize a subpoena on a non-party. In the present case, the case of 

Aluko is to be dismissed as moot, both parties having agreed that the 

case be dismissed and it appearing that the court lacks subject matter 

jurisdiction. Even if none of the foregoing counts, the record of this case 

will show that the plaintiff filed a notice of dismissal under Rule 

41(a)(1)(i) as far back as May 21, 2009.


4. Seeking these documents at this time betrays an ulterior motive on the 

part of the defendant, as such documents, at the time they were sought, 

would clearly not serve any purpose in the litigation in question. See the 

case of Keyes v. Bowen, Obama, et.al., Superior Court of the State of 

California, County of Sacramento, March 26, 2009 1 . 

5. These documents are protected because they are not otherwise available 

to the public and the only way the defendant could obtain them is to 

operate under the color of law. 

6. There is no fact in issue which the documents can prove or disprove. 

Defendant Aluko stated in his pleading that he did not defame plaintiff 

but was only participating in a public discourse. If so, what do the 

documents in question have to prove then If Aluko had filed an answer 

to the Complaint and asserted the defense of truth, then it could be 

conceivable to argue that he is looking at these documents for the 

purpose of establishing the defense of truth. In Keyes v. Bowen, Obama, 

et.al., Respondents President Barack Obama, Vice President Joe Biden, 

and others moved for an order quashing the subpoena by petitioners 

directed to third party, Occidental College, demanding access to 

President Barack Obama’s “academic and housing records.” In that case, 

the respondents contended that the subpoena sought information that 

was neither relevant to this lawsuit nor was reasonably calculated to lead 

to the discovery of admissible evidence. The court agreed and quashed 

the subpoena. The case of Aluko deserves the same treatment. Aluko’s 

subpoenas are a pretext to gain access to private documents pertaining 

to the affairs of the Nigerian Government for no other purpose than 

1 Though this is a decision by a state court, the legal principles in issue are identical and consistent with the theory 

that the Court exercising its inherent power to run the court would manage discover in the case before it. This case 

should serve as a persuasive authority for this Court.


Aluko’s political or activist purposes, having admitted in his pleadings 

that he is significantly involved in political activities in Nigeria. 

7. It is actually not about the contents of the documents in question, but 

rather the method by which they are procured. It is a matter of serious 

ramifications that documents belonging to the Nigerian Government are 

procured by an individual who does not have any legitimate purpose in 

obtaining them, and through the court of a foreign nation. 

8. The international system recognizes the principles of comity among 

nations, under which countries accord reasonable respect and 

accommodation to sister countries regardless of the technicalities of their 

domestic laws. The strength of this practice can be demonstrated by 

posing the hypothetical question: How would it sound that a Nigerian 

High Court issued a subpoena commanding the release or disclosure of 

private documents of the United States or the United States Embassy in 

Lagos, Nigeria This is almost unthinkable. At least even if that were to 

happen, it is a matter the court must have weighed heavily on the scale 

of logic, reason, substantive justice and mutual respect of nations. This 

Court should avoid reaching lightly this question which bears significant 

implications for international law and foreign relations of the United 

States. 

9. The Nigerian Government is not a party to this case, and there is neither 

a waiver nor an exception under the rules to justify these subpoenas. 

10. This Court has the discretion to quash these subpoenas and must 

exercise it in favor of quashing. Tiberia v. CIGNA Ins. Co. In all matters in 

which the discretion of this Court is called into play, the Court must 

balance the equities at stake, review the conducts of the parties before it, 

and then reach a decision that best advances the cause of justice without


unduly burdening commonsense or creating precedents for unintended, 

but clearly foreseeable, future events. 

11. Also, this motion calls into question once again the motives and 

good faith of both the defendant and his counsel, Mr. Mark Sobo (a/k/a 

Muyiwa Sobo). On May 25, 2009, Mr. Sobo filed a motion for attorney’s 

fees in this case, arguing in effect that this case is frivolous and that the 

defendant had incurred costs defending a case that should never have 

been filed. Yet, nine (9) days after his motion, the same defendant and 

his counsel issued subpoenas to five non-party corporate entities seeking 

to inspect and copy documents and proposing five (5) different days to 

visit the various locations for the purpose of inspecting and copying the 

documents. Assuming that Mr. Sobo had complied with the rules of 

procedure, he would have had to incur the cost of serving five (5) 

subpoenas on four (4) entities located in four (4) different offices in three 

cities. Paid at his usual hourly rate of $250.00, attorney time dedicated 

to these subpoenas could be more than the entire time spent on this case 

up to the time Mr. Sobo filed his motion for attorney’s fees. Something in 

the defendant’s statements to this Court simply does not add up, and the 

Court must take notice thereof. 

12. This whole bizarre drama over subpoenas puts the lie squarely on 

defendant’s claim for attorney’s fee as well as his claim that this is a 

frivolous case. It is all a wanton abuse of the court process and it 

demonstrates the characteristic sense of impunity. Apparently, Mr. Sobo 

personally served the subpoenas contrary to law and the standards of 

the legal profession. The court must take judiciary notice of the 

contradictions in the defendant’s pleadings and statements taken as a 

whole on the one hand, and the actions of the defendant and his counsel 

on the other hand. It is also noteworthy that in the defendant’s miscaptioned 

reply to the plaintiff’s response to his motion for sanctions, the


defendant failed to rebut any of the factual claims and legal arguments 

advanced by plaintiff. Instead, the defendant was dissipating his time 

trying to subpoena documents that are not relevant to the case, but 

which could be a treasure trove to his propaganda machine against the 

Government of Nigeria and his smear campaign against the plaintiff. 

CONCLUSION 

On the basis of the foregoing, the non-party movant prays this 

Honorable Court to quash party-defendant’s subpoenas on all the above 

grounds, and make such other orders as the court may deem fit. 

By: 

____________/s/______________________ 





Phone: (301) 588-9315 

Facsimile: (301) 588-9318 

eu@eculaw.com 

For the Government of Nigeria 

CERTIFICATE OF SERVICE 

Movant certifies that service of this document on all relevant parties was 

met by filing same through the ECF. Also, for the purposes of the respondents 

to the Subpoenas, service was effected by mailing this document by first class 

mail to their addresses as on the Subpoenas this 9 th day of June 2009. 

By: 

____________/s/______________________ 


ECU ASSOCIATES, P.C.

Ugwuonye motion to oppose subpoenas - NigerianMuse

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