{UAH} Clarification: UPDATE on Lawsuit: UNAA's Response

though in Sept, 2015, UNAA leaders released a list on members showing that the combined total number of members for 2014 and 2015 was less than 300, you will be surprised to notice that in paragraph 6 of the "statement of facts", UNAA leaders repeat their naked lie that in 2014, UNAA had 1,359 members!!!!

 

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From: Joseph Musoke <joseph.musoke@ymail.com>
To: yahoogroups <unaanet@yahoogroups.com>; Ugandans-at-heart <ugandans-at-heart@googlegroups.com>
Sent: Monday, October 19, 2015 3:58 PM
Subject: UPDATE on Lawsuit: UNAA's Response

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We filed a motion to add newly released information that showed the exact number of members as released by the EC in September, 2015. But today,  UNAA leaders have filed a response opposing our motion.  They correctly state that it is late (the deadline for filing motions under rule 12 expired on July 9, 2015).   Nevertheless, it is our hope that the court will allow our motion because we did not have exact numbers at the time we filed the Petition. i.e we filed on Marcg 26, 2015 but UNAA released the information in Sept, 2015.

Below, is the memo from UNAA.  Most of their memo is devoted to opposing our request to add more petitioners.  Please ignore that part because the court ruled on the matter of the additional names and allowed us to add them in August!  So I am not sure why UNAA leaders are now spending time and money fighting that part since we do not raise it again our current motion (80% of their memo below is talking about adding names, which is totally irrelevant because they lost that battle when that matter was ruled on in August)...remember that that is the part that Brian said that the court granted our amendment as a routine...so I don't understand why they are trying to fight it again!

MEMORANDUM IN OPPOSITION TO PETITIONERS' VERIFIED MOTION TO AMEND PETITION

Introduction

Respondents submit this Memorandum in Opposition to Petitioners' Verified Motion to Amend Petition. Respondents posit that the amendment is baseless and essentially a sham attempting to salvage clearly baseless claims without consent of the purported plaintiffs sought to be added. Further, permitting amendment at this late stage would not serve the interests of judicial economy as all deadlines for service, responses to complaints, motions under MRCP 12,15,19, and 20 have all passed.

Issues Presented

1. Whether Petitioners can amend petition to add multiple new co-plaintiffs without the of any of those new parties, where Petitioner admits that the new parties' addresses are unknown, and where most of those parties live outside the country.

     2. Whether amendment is appropriate or even allowed given the scheduling order in effect.

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STATEMENT OF FACTS

The Ugandan North American Association, Inc. ("UNAA") comprises the largest formal

association of Ugandans in the Diaspora. Respondents' Counterclaims ("Counterclaims,,),4. A nonprofit organization organized under the General Laws of Massachusetts, the UNA.A operates to promote the social, cultural, and economic advancement of the Ugandan Community by bringing together Ugandans presently living in North America, creating a platform through which they can network, share and experience ugandan culture. Id. at !f!f 5, 6.

In response to financial hardship incurred by the UNAA under prior leadership's

mismanagement, twenty-six year old Brian Wesinga, named as Respondent here, committed to improve the organization by reforming its leadership. Id. at 8. After campaigning under the slogan "Good Judgment for Change," UINAA's members elected Kwesiga to serve as president. Id. at 9-10. Both Andrew Abe and Joseph Musoke, named here as Petitioners, lost in that same election; Musoke, in fact, came in last place, earning only 31 votes to Kwesiga,s 130. Counterclaims,tilJ l0-1 l.

Following his embarrassing defeat, Musoke became bitter and vindictive, publishing

opinion articles publicly criticizing the UNAA and its constitution and hurling unsubstantiated accusations at the UNAA leaders that had defeated him. Id.12-14. In one of those articles, Musoke argued that no one outside of the United States should be admitted to membership, despite his reliance on those very members to substantiate his claims in the present action. Id. at fl 15. Abe has by all appearances blindly accepted each of Musoke's derisive critiques of UNAA, having likewise become a UNAA dissenter upon the date of his electoral defeat. ld,. at 26.

During the same period of time that Musoke was waging war with UNAA's leadership in the press, another group coincidentally happened to forrn under the moniker UNAACauses, a name

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eerily similar-in fact nearly identical-to UNAA's. Id. at 18. By even greater coincidence,

UNAACauses just so happened to hold a national conference on the same day and in the same city as UNAA's 2014 National Convention, creating confusion that lowered attendance at UNAA's event and resulted in the organization's inability to obtain a quorum for its Annual Member Meeting. Id. at 20-21. As a general matter, the conflict created by the analogous titles of these two organizations has effectively diverted funds and membership away from UNAA. Counterclaims, at 19. Upon information and belief Musoke is intimately involved with the organization and operation of UNAACauses and is reported to serve as its general counsel. Id. at.22..

In addition, at UNAA's Annual Meeting scheduled in 2Ol4,certain board members aligned with Musoke timely resigned to block the ability of leadership to carry forward. Respondents' Rule 12 Motion and Answer ("Answer"), fl 19. This strategic manipulation, in conjunction with the UNAACauses confusion described supra,resulted in UNAA's failure to obtain a quorum, meaning that the Annual Meeting could not go. forward. Id. Following this event, UNAA conducted a Special Meeting, at which Petitioners failed to make themselves present. Id. The 2015 Annual Meeting is slated to occur at UNAA's Nationat Convention this summer.l

Petitioners purport to have brought the current suit in an effort to obtain access to UNAA's books and records, yet they have repeatedly failed to file proper requests for those documents. Respondents' Rule 12 Motion and Answer (*Answer"),at 17. Instead, they proceeded to interfere with specific contracts and contacts in an effort to undermine business transactions carried out in the operation of UNAA. Id. In particular, Petitioners were opposed to the hotel selected as the site of the Annual UNAA Convnetion.. Id.

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Despite Petitioners' failure to request documents through the appropriate channels, Respondents have, on multiple occasions, made the records and books available. Id. at 17, 18. Petitioners have consistently refused to review the documents. Id. at 22; Counterclaims. at 17. Furthernore, UNAA makes all financial a1d tax information readily available to the general public on its website, www.unaa.org.

On November 4,2014, Petitioners, together with eleven other people-five of which were UNAA members-sent a petition demanding a special meeting be held within forty-five days. At the time of that Petition UNAA's records reflect membership totaling 1,395 people, with a small number of those members ineligible to vote due to age restrictions. Notably, by Petitioner's own estimate, UNAA had 2,000 members, even more than the organizational documents reflect in reality. Petition for Authority to Call a Special Meeting of Ugandan North American Association. Inc. ("Petition"),15.

While the initial Petition in this matter was filed on behalf of Musoke and Abe alone, Petitioners through their last motion sought add fifteen co-plaintiffs, only eight of whom are members and four of whom appear to be Musoke's family. Now Musoke wishes to amend the Petition with unauthenticated information he claims to have obtained regarding membership. Notably, Musoke did not obtain any of this information in discovery or by deposition. Rather, he continues to communicate with Respondents directly under the guise of posting "updates" about the case.

DISCUSSION

1. Petitioners Cannot Unilaterallv Add New Plaintiffs to the Suit bv Amendment where those Parties Have Not Signed The Amended Petition

Petitioners' attempt to add additional plaintiffs is a sham motion aimed at salvaging its facially baseless claims. Pursuant to Mass. R. Civ. P. 15, a party attempting to amend its pleading after a responsive pleading has been served may do so "only by leave of court ... and leave shall be freely given when justice so requires." (Emphasis added). A trial court "is bound to exercise its sound discretion in determining whether there is good reason to deny motion to amend to add new party;' Christopher v. Duffy (1990) 28 Mass.App.Ct. 780, 783. In

determining whether amendment of parties should be allowed, a court considers (1) whether an honest mistake was made in selecting the proper party (2) whether joinder of the real party in interest was requested in a reasonable time after discovery of the error; (3) whether joinder is necessary to avoid injustice; and (a) whether the non-movant will suffer prejudice due to the amendment. Berman v. Linnsne (2001) 748 N.E.2d 466, 470. While courts are tolerant of amended pleadings seeking to add additional parties, "the pending case sought to be amended must be one that could result in a recovery against the original defendant." Ramirez v. Grahsm (2005) 834 N.E.2d 754, 759 on remand 2005 WL 62A8896.

A motion to amend pleadings to add plaintiffs is distinctive, in that new parties consent to be joined.  See Rafferty v. Sancta Maria Hospital,367 N.E.2d 856, S5g (1977). While no requirement demands that consent be formally and explicitly stated, "[e]xpress consent is easy to see. Detection of implied consent is often more difficult. Because of the nexus between consent and a proceeding's fundamental fairness, careful examination of the entire record is required." Jensen v. Daniels,786 N.E.2d 1225, 1230-31 (2003). ln General Electric Mortgage insurance, Co. v. Shiao, the court rejected joinder of a new party by amended pleading because the record

suggested neither express nor implied consent of that party. 67 Mass. App. Ct. 1105 at *3.

See also Hamed v. Fadili, 556 N.E.2d 1020 (finding no implied consent in record and thus rejecting amendment).

At the very least, where consent is not obtained, notice must be given to parties added. The court in Srebnick v. Lo-Law Transit Management, Inc. outlined the preferred procedure for notice to additional parties, in which the movant should give the proposed new party notice of the motion to amend so that the new party would have the opportunity to file an opposition and request a hearing...otherwise] the issue of the propriety of the allowance ...[should be] raised promptly before a judge and, in any event, before trial.- 557 N.E.2d 81, 86 (1990). In another case decided by the same court that year, amendment was permitted because the non-movant had notice of the amendment, gave testimony, and made no objection based on lack of relevancy. Boorstein v. Boston, 28 Mass.App.Ct. 313, 318-320 (1990).

Finally, pursuant to Mass. R. Civ. P. 11, every pleading, motion, or other paper must be signed by an attorney, verifying that he is the attorney of record for the parties and that all statements and arguments averred therein are true to the best of his knowledge. Thereafter, each

pleading is considered by the court "according to its substance, and not merely according to its name." Tierney v. Tierney, (1955) 125 N.E.2d 413,415.

Petitioners move to add fifteen additional plaintiffs, yet the record shows no indication that these parties desire, or even consent, to be joined. The only signature on the amended petition is that of Musoke, the attorney of record in the initial Petition. No new plaintiffs have signed the Proposed Amended Petition, nor have they contributed new information, documentation, or any other effort in support of the present action. Nothing suggests that these parties are committed to participate in this litigation. Rather, the Motion to Amend is simply a self-serving "Hail Mary" pass by which Musoke attempts to dodge the unavoidable conclusion put forth in Respondents'

Answer: that two querulous parties alone cannot bring suit against an orgarization made up of over thirteen hundred people. The addition of the new plaintiffs- three of which appear to be related to Joseph Musoke, and only eight of which are shown to be members of UNAA-should

be viewed as nothing more than a futile attempt by Petitioners to reach the membership required to bring the claims they assert.

Not only is there a total dearth of evidence in the record suggesting that parties knowingly consent to be added as plaintiffs, Petitioners have also failed to provide any notice to parties of their intent to join them herein. Upon Petitioners' own admission, they have no knowledge of the

addresses of the potential plaintiffs and instead rely entirely on Respondents' member rolls to determine how to contact those parties.2 Presumably, plaintiffs communicating affirmative consent to be joined would be able to provide this information to Petitioners. This total lack of knowledge of even the most basic personal information of the new parties belies the obvious conclusion that Petitioners add plaintiffs without their voluntary consent.

But the inability to provide addresses presents a bigger problem of which the Court must take note. Where proposed plaintiffs' addresses are unknown, they could not possibly have been given notice reasonably designed to alert them to ttre suit, creating a serious due process problem.

Notice is particularly important in that Petitioners, by adding these new parties, subject them to potential liability for the malicious prosecution and intentional interference counterclaims brought by Respondents.

By bringing the Motion to Amend. Petitioners attempt not only to game the system to suit their own whims, but also to infringe on the rights of a whole class of potentially unwitting plaintiffs.

Moreover, Petitioners do not present a case warranting amendment on the basic considerations outlined in Berman, supra.  Petitioners made no mistake in determining the initial parties to include in their Petition, as they would like the Court to believe. This litigation

was, from inception, conceived of and orchestrated by Musoke, with Abe joining as his loyal disciple. Musoke's role in driving this action is evidenced by the inclusion of four members of his own family to bolster the number of proposed plaintiffs, some of whom are not even included as members.

Second, and for these same reasons, joinder is not necessary to avoid injustice. Joinder only prolongs litigation that is destined to fail on its face; Petitioners knew that they did not have enough of a majority to request a special meeting as two men----or fifteen-long before bringing this action.

Instead they have pursued their claims in the most onerous manner possible as a means to harass Respondents and cause damage to the reputation of community leaders and the UNAA.

Additionally, permitting joinder could prejudice non-moving Respondents in some small way, as it stands to prolong and complicate litigation and thus increase the costs and stresses that come therewith. However, since Petitioners' claims remain baseless even with additional plaintiffs,

Respondents' stand to lose far less than the parties that the Motion to Amend seeks to add. The harassment went so far that, in email correspondence voluntarily submitted by Petitioners, UNAA's Executive Secretary Aisha Ogwang had to explicitly request that Musoke desist in contacting her spouse on matters related to the document request. Emails attached to Petition as Exhibit F.

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As a final matter, Ramirez makes clear that the broad tolerance for amendment ceases to exist when recovery could not be achieved against the original defendant. In the present case, for reasons explored more fully infra, there is simply no justiciable claim for which Respondents can be held liable. As such, amending suit is futile, and so a waste of the time, money, and professional resources of both this Court, the UNAA, and each of its leaders.

II. Petitioners' Motion is Untimelv.

Petitioners' seek to add allegations regarding the alleged failure to produce books and records in New Orleans in September of 2015. There are several problems with this. First, Mr. Musoke never made a request upon undersigned and given that he is acting as counsel for some

unknown number of persons, he would have been prohibited from direct communication with Respondents. Moreover, amendment is banned. At the outset of his motion, Mr. Musoke acknowledges that he seeks to amend under Rule 15. Unfortunately, there is a scheduling order in place mandating that all motions under MRCP Rule 15 must be served no later than July 9,2015; filed no later than August 10,2015 and heard no later than September 9,2015. This matter is moving very quickly toward trial. To permit amendments essentially adding new parties and./or new claims would do a substantial injustice to the Respondents.

Mr. Musoke has already needlessly run up costs on this litigation based on misrepresentations. He should not also be pennitted to contravene this Court's Tracking Order.

III. The Motion is Not Properly Verified.

Mr. Musoke has placed himself in a bit of a quandary. He is a securities lawyer in

California and a named plaintiff herein. He was not licensed in the State of Massachusetts, but

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recently filed a Motion for Admission, which was apparently granted. Mr. Musoke

then solicited countless clients to join in his matter, representing them through his pro hac vice

admission. Of course, Massachusetts Rules of Professional Conduct Rule 3.7 prevents a lawyer

from acting as a witness. Moreover, Mr. Musoke consistently sends "updates" on

the lawsuit to the UNAA, a clear violation of MRPC Rule 4.2. In other words, the verification

should be wholly discarded by this Honorable Court.

Conclusion

Petitioners ask this Honorable Court to allow a late-requested amendment of his Complaint.

As demonstrated above, this simply is inappropriate. Even if the content of the amendments were

appropriate - which they are not, the serving and eventual filing of the request to amend will

be untimely as ordered by this Court. Accordingly, Petitioners' Motion to Amend should be denied with prejudice and at their sole cost.

Respectfully submitted,

Aisha Brian Kwesiga, Ogwang, Monday Rebecca Atigo, Namwase, Jude Sempungu, Timothy Gaburunryi, Irene Kasujja, and Ugandan North American Association, Inc.

By Counsel

M. Hair, Esq. BBO #675825

Varadi, Hair & Checki, LLC

650 Poydras St., Ste. 1550 New Orleans,

LA 70130 (s04) 684-s204 hair@vhclaw.com

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