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Birara v. Kelel

United States District Court, D. Maryland

July 15, 2019

AKLOG BIRARA, Plaintiff,
MESSELE KELEL and JOHN DOES 1-10, Defendants.


         Plaintiff Dr. Aklog Birara has filed a civil action against Defendants Messele Kelel and 10 unnamed John Doe Defendants ("Doe Defendants") alleging that Defendants defamed him in emails sent to prominent members of the Ethiopian community in the United States. Birara asserts common law tort claims against Defendants. Presently pending before the Court is Kelelss Motion to Dismiss. Upon review of the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.


         Birara, a resident of Maryland who is originally from Ethiopia, is an active participant in the Ethiopian immigrant community in Maryland and the United States. According to Birara, tens of thousands of Ethiopian immigrants live in Maryland. Birara, who recently completed a 30-year career at the World Bank, mentors young Africans, advocates for the rights of Ethiopians, and participates in the work of a multiple Ethiopia-focused organization,, including Ethiopian Dialogue Forum ("EDF"), a think-tank based in Maryland.

         Birara immigrated to the United States from Ethiopia in 1977 after the military junta Derg and the dictator Mengistu Haile Mariam came to power. In his Amended Complaint, Birara describes the Mengistu and Derg regimess violence, genocide, and brutality and how those actions, and war and famine, affected Ethiopians. He also describes the relationship and military conflict between Ethiopia and Eritrea, which separated from Ethiopia and became a separate nation after Mengistu fell from power. The relationship between the two countries is still tense, and the current Ethiopian government claims that a group named "Ginbot 7," which opposes it, is a terrorist organization funded and sponsored by Eritrea. According to Birara, any accusation that a member of the Ethiopian community was associated with Derg, the "Red Terror" campaign perpetrated by Mengistu, or Mengistuss Workers Party of Ethiopia will subject that person to "ostracism, condemnaiion, opprobrium, and suspicion" from others in the community and could also carry legal consequences for the person in Ethiopia and the United States, including immigration difficulties and criminal prosecution. Am. Compl. ¶ 11, ECF No. 20.

         Birara alleges that between September 30 and October 15, 2017, Defendants, and specifically Kelel, sent emails to several dozen prominent members of the Ethiopian community in the United States stating that Birara had been a member of the Derg junta and the Workers Party of Ethiopia, was involved in the Red Terror, was associated with another group whose members were prominent in the Workers Party of Ethiopia, had declared loyalty to Eritrea, and was a member of Ginbot 7. Each of these statements, Birara asserts, is false.

         On November 2, 2017, Birara filed his Complaint in this Court in which he asserts claims of defamation (Count 1), false light (Count 2), negligence and gross negligence (Count 3), and tortious interference with prospective economic advantage (Count 4). He further alleges that Defendants are liable for aiding and abetting others in the wrongful conduct and seeks compensatory and punitive damages, declaratory and injunctive relief, interest, attorney's fees, and costs.


         After Birara filed an Amended Complaint, Kelel, who is self-represented and resides in Texas, filed a submission entitled "Defendant's Special Exceptions and Objections to First Plaintiff s Amended Complaint," the form of which appears to be a pleading under the Texas Rules of Civil Procedure. See Tex. R. Civ. Pro. 85, 91. In substance, Kelel requests dismissal of Birara's Amended Complaint on various grounds and asks that the Court rule on these arguments before he files an answer. Where Kelel's filing seeks the kind of relief usually sought in a motion under Federal Rule of Civil Procedure 12, the Court will construe Kelel's filing as a Motion to Dismiss under Rule 12.

         Specifically, Kelel seeks dismissal of all counts of the Amended Complaint based on lack of jurisdiction, improper venue, and failure to state a claim. He also argues for dismissal on the basis that the Doe Defendants are necessary parties who must be joined under Federal Rule of Civil Procedure 19 and that Birara has failed to prosecute his claims by not identifying the Doe Defendants in a timely manner.

         I. Subject Matter Jurisdiction

         Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Because questions of subject matter jurisdiction concern the court's power to hear the case, they must be resolved before the court can turn to the sufficiency or merits of a claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) ("The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible without exception." (citation omitted)).

         Birara asserts that the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. Under that provision, the Court has subject matter jurisdiction where the parties are citizens of different states and the amount in controversy exceeds $75, 000. Id. The Amended Complaint states that Birara is a citizen of Maryland and Kelel is a citizen of Texas. Birara seeks more than $1 million in damages. Although diversity jurisdiction would appear to be established based on these allegations, Birara also names the Doe Defendants as parties. In diversity suits in federal court, a plaintiff is not permitted to name unknown defendants as "John Doe" defendants "because the existence of diversity jurisdiction cannot be determined without knowledge of every defendant's place of citizenship." Howell ex rel. Goerdt v. Tribune Entm't Co., 106 F.3d 215, 218 (7th Cir. 1997). One exception to this rule is when the defendants are nominal parties serving only as placeholdess for individuals who may later be found to be liable. See id; Moore v. Gen. Motors Pension Plans, 91 F.3d 848, 850 (7th Cir. 1996). If a Doe defendant prevents the court from exercising jurisdiction, the court may dismiss that defendant under Federal Rule of Civil Procedure 21 so long as the Doe defendant is not necessary to resolve the plaintiffs claims. Newman-Geeen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989); see Howell, 106 F.3d at 218.

         Since the Court does not know the citizenship of the Doe Defendants and, as the Amended Complaint suggests, it is conceivable that the Doe Defendants, as members of the Ethiopian diaspora in the United States, reside in Maryland, the presence of the Doe Defendants precludes the Court from exercising diversity jurisdiction. See Howell, 106F.3dat218. The Doe Defendants are not nominal, because Birara has alleged that they are not placeholder defendants, but are specific participants, with unknown names, who joined in circulating the false emails. See Moore, 91 F.3d at 850. As discussed below, there has been no showing that the Doe Defendants are necessary parties to resolve Birara's claims. See infra part V. The Court will therefore dismiss the Doe Defendants and retain jurisdiction over Birara's claims. See Newman-Green, Inc., 490 U.S. at 832.

         II. ...

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