United States District Court, D. Maryland
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.
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.
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.
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.
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.
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.
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.
Subject Matter Jurisdiction
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)).
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.
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.