1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAHER RHUMA, et al., No. 2:20-cv-02366 JAM AC PS 12 Plaintiffs, 13 v. ORDER TO SHOW CAUSE (DIRECTED TO

DEFENDANT)

14 STATE OF LIBYA, 15 Defendant. 16 17 Plaintiffs are proceeding in this action pro se, and the matter was accordingly referred to 18 the undersigned for pretrial proceedings by E.D. Cal. R. 302(c)(21). A status conference was 19 held on October 27, 2021. Plaintiffs were present at the hearing, but defendant did not appear. 20 ECF No. 16. At the hearing, the court inquired about service and expressed concern about the 21 status of defendant’s appearance. For the reasons explained below, the court will order defendant 22 to show cause why its response to the summons and complaint, ECF No. 5, should not be 23 stricken. A separate Order to Show Cause is issuing to plaintiffs, addressing the adequacy of 24 service. 25 I. PROCEDURAL BACKGROUND 26 This case was filed on December 1, 2020. ECF No. 1. Plaintiffs are attempting to sue the 27 State of Libya under the Foreign Sovereign Immunities Act for events that transpired in Libya 28 decades ago; they seek compensation for the expropriation of a family business by the previous 1 regime, and for the death in custody of a family member. Id. On January 12, 2021, plaintiffs 2 filed a certificate of service. ECF No. 4. The return of service document states that personal 3 service was completed upon defendant at “Ministry of Foreign Affairs and International 4 Cooperation – Ash Shatt St, Tripoli, Libya. Received by Ramzi Mohammed Muktar.” Id. at 2. 5 The document is dated December 24, 2020. Id. The Declaration of Server portion of the return 6 form identifies the services provided as “special arrangements.” Id. 7 On January 29, 2021, the court received an unsigned document from defendant that 8 responded to the summons and was construed and docketed as an answer. ECF No. 5. The 9 document is on letterhead bearing the name Government of National Accord, Ministry of Foreign 10 Affairs, but does not provide the name or title of the individual who prepared and submitted it on 11 behalf of the Government of Libya. The Clerk’s Office identified Modammed [sic] Ammah Al- 12 Shraidi as the contact person for defendant and named him on the docket as a pro se party, 13 presumably because he signed a form that was returned to the court with the response to the 14 summons.1 Mr. Al-Shraidi’s position (if any) with the Libyan Ministry of Foreign Affairs was 15 not specified. 16 The response to the summons and complaint is in the form of a letter to the court and not 17 in the form of an answer. It presents a list of factual and legal “conclusions,” which are 18 represented as the official position of the Libyan government upon review of the complaint and of 19 the government’s internal records. ECF No. 5 at 2-3. It states that Libya waives sovereign 20 immunity, admits all factual allegations of the complaint, acknowledges full liability for all 21 damages alleged in the complaint, and agrees with plaintiffs’ position on interest and adjustment 22 for inflation. Id. It “agrees to the request by the plaintiffs in allowing the Libyan state assets 23 frozen in the United States to be used as a method of compensation.” Id. at 3.2 The document 24 1 This name does not appear on the document that was filed as an answer. The undersigned has 25 been informed by the Clerk’s Office that the name was obtained from an administrative form that 26 was included with the response to the summons but to which the undersigned does not have access. See ECF No. 6. 27 2 At the status conference, plaintiffs were asked why they were pursuing litigation rather than settling directly with defendant if there was complete agreement between the parties as to both 28 (continued…) 1 states: “What occurred in Libya these past decades is something we hope to acknowledge and 2 make amends for and this is one of the steps we want to take in building a better Libya for our 3 people and for the world.” Id. at 2. 4 The letter proceeds to address the “questions that need to be answered,” which are the 5 enumerated matters to be addressed in an initial scheduling conference statement. Id. at 4-5. As 6 to service, the document states that “Service of Process was served through a special agreement 7 between the State of Libya and the Plaintiffs; Taher Rhuma, Khadija Kanoun, and Mohamad 8 Laham. The service of the documents was delivered to the Foreign Affairs Office located in Ash 9 Shatt ST, Tripoli, Libya.” Id. at 4. The letter goes on to state, among other things, that the State 10 of Libya will not request any motions or special proceedings in this case. 11 Following the docketing of this letter as an “answer,” a court order mailed to defendant at 12 the address provided for service was returned as undeliverable, and the time for defendant to 13 submit a notice of change of address has expired. See Docket entry dated August 25, 2021.3 14 II. THE “ANSWER” IS IMPROPER ON ITS FACE 15 The court has reason to doubt the legitimacy of the answer filed purportedly on behalf of 16 the State of Libya. It appears that this “answer” should be stricken. First, the document is not 17 signed. Federal Rule of Civil Procedure 11(a) requires that “[e]very pleading, written motion, 18 and other paper must be signed by at least one attorney of record in the attorney’s name—or by a 19 party personally if the party is unrepresented. The paper must state the signer’s address, e-mail 20 address, and telephone number.” The Local Rules of this district also require all pleadings and 21 non-evidentiary documents to be “signed by the individual attorney for the party presenting them, 22 or by the party involved if that party is appearing in propria persona.” Local Rule 131(b). The 23 document filed at ECF No. 5 contains no signature or other required identifying information. 24 liability and the measure of damages. Plaintiff Mr. Rhuma stated that federal court intervention 25 was needed to access Libyan funds frozen in the United States for payment of the agreed upon 26 compensation. 3 Pursuant to Local Rule 182(f), service of documents at an address previously provided by a 27 party, which has not been updated, is fully effective. Accordingly, defendant is deemed to be aware of all documents filed in this case, and therefore is obligated to respond to this order. 28 Defendant also remains obligated to file an updated or more comprehensive mailing address. 1 Second, the document gives no indication of having been prepared and filed by an attorney 2 licensed to practice in this district. Only private individuals such as the plaintiffs may appear on 3 their own behalf without a lawyer. C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th 4 Cir. 1987). A foreign state, like any other entity defendant, must be represented by counsel who 5 is licensed to practice in the forum. See Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory 6 Council, 506 U.S. 194, 201-202 (1993) (entities may appear in federal courts only through 7 licensed counsel). The form of defendant’s response suggests that it was not prepared and 8 submitted by counsel: the document is unsigned, does not identify any law firm or licensed 9 attorney, and is not formatted as a pleading. The substance of the document reflects lack of 10 familiarity with federal civil procedure: the document combines material that belongs in an 11 answer with that which belongs in a Scheduling Conference Statement, and it admits liability and 12 damages without proposing a litigation schedule that reflects understanding of how to achieve a 13 stipulated judgment or seek the unfreezing of foreign assets held in the United States (purportedly 14 the goal of both parties). 15 For these reasons, defendant will be ordered to show cause why the “answer” should not 16 be stricken as filed in violation of the Federal Rules of Civil Procedure and the Local Rules of the 17 Eastern District of California. 18 But the court’s concerns do not end here. Other observations cast further doubt on the 19 propriety of the answer, and also raise the more fundamental question whether defendant has 20 properly appeared in this case. Specifically, the response to the complaint gives no indication that 21 it was submitted by a Libyan official designated to appear on behalf of the State of Libya in 22 international litigation. It is the court’s understanding that when a foreign state is served with a 23 complaint under the Foreign Sovereign Immunities Act, that complaint is generally transmitted by 24 the receiving entity (here, according to the record, the Ministry of Foreign Affairs) to the 25 governmental entity formally designated to appear in litigation on behalf of the government 26 (typically the Department or Ministry of Justice), which then retains counsel to represent it in the 27 forum country. In other litigation against Libya in the courts of the United States, this process has 28 resulted in defendant being represented by American counsel (that is, counsel licensed in the 1 United States and admitted to practice in the federal courts) retained by the Libyan government. 2 See, e.g., Janvey v. Libyan Investment Authority, Case No. 3:11-cv-1177 N BG (N.D. Tex. 3 2011).4 The present Libyan government also well understands how to properly appear in the 4 United States Courts to affirmatively represent its own interests. See State of Libya v. Strabag 5 SE, Case No. 1:20-cv-2600 DLF (D.D.C. 2020)5; Libya v. Miski, Case No. 1:06-cv-2046 RBW 6 (D.D.C. 2006)6; Ex Parte Application of Libyan Asset Recovery and Management Office to 7 Conduct Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. 1782, 1:21-mc-00852 8 JGK BCM (S.D.N.Y. 2021)7; see also Brief for Government of National Accord, State of Libya 9 as Amicus Curiae Supporting Petitioner, Republic of Sudan v. Harrison, 139 S. Ct. 1048 (2017) 10 (No. 16-1094). Defendant’s patently defective appearance here contrasts with this record of 11 demonstrated sophistication in U.S. federal court litigation. 12 The problem in this case is not just that defendant’s appearance and answer must be 13 accomplished through counsel, but also that such counsel must be acting at the direction of the 14 particular Libyan governmental entity that is officially designated to represent the State of Libya 15 4 The undersigned takes judicial notice of the docket in this case, which indicates that the Libyan 16 Investment Authority, a Libyan State entity, was represented by a law firm based in Dallas. The previous Libyan regime was sued repeatedly in our federal courts, and regularly retained counsel 17 to represent the designated State authority as defendant. See La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahiriya, Case No. 1:05-cv-01932 RCL (D.D.C. 2005); Pflug v. 18 Socialist People’s Libyan Arab Jamahirya, Case No. 1:08-cv-00505-JMF (D.D.C. 2008); Certain 19 Underwriters at Lloyds London v. Great Socialist People’s Libyan Arab Jamahiriya, Case No. 1:08-cv-00504 (D.D.C. 2008); Est. of Buonocore v. Great Socialist People’s Libyan Arab 20 Jamahiriya, Case No. 1:08-cv-00529-JMF (D.D.C. 2008). The current government no doubt also has lawyers in its Ministry of Justice, if not in its Ministry of Foreign Affairs, who understand 21 how to respond to service of process from an American court. 5 The undersigned takes judicial notice of the docket in this case, which indicates that the State of 22 Libya was represented by a law firm based in Washington D.C. In this case, Libya petitioned to 23 vacate an arbitration award. 6 This trademark infringement case was filed by the previous regime, but the new government 24 was substituted when it came to power. See id., ECF No. 131 (Memorandum Opinion filed Sept. 6, 2012), p. 1 at n.1; see also ECF No. 125 (plaintiff’s motion to substitute party to reflect new 25 names of Libyan Government Plaintiffs). The undersigned takes judicial notice of the docket in 26 this case, which indicates that Libya was represented by a law firm based in Washington D.C. 7 The undersigned takes judicial notice of the docket in this case, which indicates that the State of 27 Libya was represented by a law firm based in New York City. This miscellaneous case was brought by the Libyan Asset Recovery and Management Office of the Government of National 28 Unity, which is responsible for recovery of assets misappropriated by the previous regime. 1 | in international litigation. There has been no showing here that the Ministry of Foreign Affairs or 2 || any of its officials are authorized to appear on behalf of Libya in the courts of United States, 3 || which is an entirely different question than whether the Ministry of Foreign Affairs is authorized 4 || toreceive service. The fact that a response to the complaint was submitted which appears to have 5 || been prepared by a layperson strongly suggests that the usual protocol has not been followed; it 6 || also raises the question whether the response was submitted by an official who has the authority 7 || to appear in this court on behalf of the Libyan government. This case cannot proceed without the 8 || appearance through counsel of the Libyan designated entity. Accordingly, defendant will also be 9 || ordered to show cause why its appearance in this action is proper. 10 Il. ORDER TO SHOW CAUSE 1] In accordance with the above, IT IS HEREBY ORDERED that defendant must show 12 || cause in writing within 60 days of this order (1) why the answer in this case should not be 13 || stricken for the reasons stated above, and (2) why its appearance in this case is proper. 14 || Defendant’s response must include a showing that the individual or entity responsible for 15 || submission of the letter dated December 28, 2020, ECF No. 5, is the official or entity designated 16 || by law to appear on behalf of the State of Libya in international litigation. 17 IT IS SO ORDERED. 18 | DATED: December 20, 2021 19 Attu —Clone_

ALLISON CLAIRE

20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28