JAMES L. ROBART, United States District Judge.
This matter comes before the court on four dispositive motions and two discovery motions. Plaintiffs The Institute of Cetacean Research ("the Institute"), Kyodo Senpaku Kaisha, Ltd., and Tomoyuki Ogawa (collectively, "Plaintiffs")
Defendants also filed two discovery motions. The first seeks to compel production from the Plaintiffs. (See MTC (Dkt. # 271); MTC Resp. (Dkt. # 277); MTC Reply (Dkt. # 283).) The second asks the court to confirm that Defendants have unilaterally terminated the confidentiality agreement between the parties. (See MTCT (Dkt. # 272); MTCT Resp. (Dkt. # 280); MTCT Reply (Dkt. # 286).)
Having considered the submissions of the parties, the appropriate portions of the record, and the relevant law, and having heard oral argument on December 15, 2015, the court GRANTS IN PART and DENIES IN PART the various motions, as detailed herein.
Plaintiffs filed this case on December 8, 2011, invoking jurisdiction under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, and seeking to enjoin Defendants' alleged dangerous behavior on the high seas in the Antarctic. (Compl. (Dkt. # 1).) Defendants answered and counterclaimed, seeking to enjoin Plaintiffs and collect damages for Plaintiffs' comparable actions. (Ans. (Dkt. # 94).) Following motions practice and a hearing, this court denied Plaintiffs' motion for a preliminary injunction on March 19, 2012. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 860 F.Supp.2d 1216 (W.D.Wash.2012). After Plaintiffs appealed that order, this court stayed proceedings on February 1, 2013. (Stay (Dkt. # 131).) The Ninth Circuit reversed this court's denial of a preliminary injunction on February 25, 2013, instituting a preliminary injunction "until further order" of the Ninth Circuit. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 708 F.3d 1099, 1106 (9th Cir. 2013). The Ninth Circuit insubstantially amended and superseded that order on May 24, 2013. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean I), 725 F.3d 940 (9th Cir.2013).
This case remained stayed while Plaintiffs brought contempt proceedings in the Ninth Circuit. On December 19, 2014, the Ninth Circuit held SSCS, Mr. Watson, and several non-parties to this suit liable for civil contempt. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean II), 774 F.3d 935, 959 (9th Cir.2014). The Ninth Circuit issued a contemporaneous decision rejecting several peripheral challenges to the injunction. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean III), 588 Fed.Appx. 701 (9th Cir.2014) (unpublished).
On March 31, 2015, this court lifted its stay. (3/31/15 Min. Entry (Dkt. # 243).) Plaintiffs filed the operative first amended complaint on May 1, 2015 (see FAC (Dkt. # 234)), and Defendants answered that complaint and asserted counterclaims on June 30, 2015 (see FAC Ans. (Dkt. # 250); 2ACC). On June 4, 2015, pursuant to the Ninth Circuit's directive in Cetacean II, this court imposed coercive sanctions on the parties that had violated the injunction. (Sanct. Order (Dkt. # 239).) The case then proceeded, and the parties have since filed the motions addressed herein.
This is a case between Antarctic whalers and environmentalists that oppose whaling. The Institute is a Japanese foundation that performs lethal whaling in the Southern Ocean. (See FAC ¶¶ 3, 10.) Kyodo Senpaku, a Japanese corporation, owns the whaling vessels used by the Institute, and Mr. Ogawa is the Master of the Nisshin Mara, the "mother" ship of the Institute's whaling operations. (See id. ¶¶ 4-5.)
In 1982, the International Whaling Commission adopted a moratorium on commercial whaling, which took effect in 1986. (ICJ Ruling (Dkt. # 175-1) ¶ 100; see also 2ACC ¶ 16.) Under Article VIII of the International Convention for the Regulation of Whaling, however, this moratorium does not apply to whale hunting conducted
Mr. Watson founded SSCS and served as its executive director until the Ninth Circuit issued its injunction. (See FAC ¶ 7; FAC Ans. ¶ 7; 2ACC ¶ 6.) SSCS's mission is "to end the destruction of habitat and slaughter of wildlife in the world's oceans." (See 2ACC ¶ 2.) To that end, from 2005 to 2012, SSCS collaborated with foreign Sea Shepherd entities
Defendants' campaigns led to several nautical confrontations between Plaintiffs and Defendants. (See FAC ¶¶ 13-21; 2ACC ¶¶ 35-38.) The parties dispute who was the aggressor in these interactions, but the acts allegedly taken by one or both parties include ship ramming; throwing bottles of butyric acid, grappling hooks, glass bottles of paint, and smoke bombs and other incendiary devices; illegal boarding; targeting with flares, long-range acoustic devices, and water cannons; fouling rudders and propellers; assault; stabbing with bamboo poles; and general unsafe navigation. (See FAC ¶¶ 15, 20; 2ACC ¶¶ 35-38, 41, 43.) Plaintiffs have obtained preliminary injunctive relief against Defendants' acts of piracy and unsafe navigation. See Cetacean I, 725 F.3d at 947. The preliminary injunction bars Defendants from "physically attacking any vessel engaged by Plaintiffs... in the Southern Ocean ... or from navigating in a manner that is likely to endanger the safe operation of any such vessel." Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean Injunction), 702 F.3d 573, 573 (9th Cir. 2012); Cetacean I, 725 F.3d at 947 (ordering that the Ninth Circuit's injunction pending appeal in Cetacean Injunction "remain in effect until further order of" the Ninth Circuit"). Furthermore, Defendants are "[i]n no event" to "approach [P]laintiffs any closer than 500 yards when [D]efendants are navigating on the open sea." Id. In subsequent proceedings, the Ninth Circuit found Plaintiffs in contempt of the injunction, see Cetacean II, 774 F.3d at 959, and this court issued civil contempt sanctions on Plaintiffs (see Sanct. Order).
In March of 2014, the International Court of Justice ("ICJ") ruled that JARPA
Plaintiffs intend to recommence whaling in the 2015-16 season with a new special permit under Japan's NEWREP-A program. (FAC ¶ 31, 2ACC ¶ 60.) Defendants have pledged to abide by the preliminary injunction and "do not plan to ever participate again in a Southern Ocean whale-protection campaign." (Not. of Compliance (Dkt. # 248) at 2; 2ACC ¶ 5.) Nonetheless, foreign Sea Shepherd entities have continued their campaigns, allegedly with funding provided by SSCS. (See FAC ¶ 50.3; FAC Ans. ¶ 44.) The parties seek permanent injunctive relief protecting them from each other's allegedly unlawful behavior.
Both parties argue that the other has violated international law against perpetrating and funding piracy and unsafe navigation. (FAC ¶¶ 34-52; 2ACC ¶¶ 69-74, 82-86, 94-100.) These claims and counterclaims rely on substantially the same treaties and agreements to establish a law of nations prohibiting such behavior.
Two of the instant motions seek complete dismissal — Defendants' motion for judgment on the pleadings and Plaintiffs' motion to dismiss. These motions seek dismissal on three general bases: under Rule 12(b)(1), for lack of subject matter jurisdiction; under Rule 12(b)(6), for failure to state a claim; and under Rule 12(c), for failure to state a claim. The court first lays out those legal standards.
A motion to dismiss for lack of subject matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer,
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.2005). The court must accept all well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.2010). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.
The court, however, need not accept as true a legal conclusion presented as a factual allegation. Id. at 678, 129 S.Ct. 1937. Although the pleading standard announced by Federal Rule of Civil Procedure 8 does not require "detailed factual allegations," it demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A pleading that offers only "labels and conclusions or a formulaic recitation of the elements of a cause of action" will not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Id.
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed. See Fed. R. Civ. P. 12(c). A court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009) (citation omitted); see also Yakima Valley Mem'l Hosp. v. Wash. State Dep't of Health, 654 F.3d 919, 925 (9th Cir.2011) (explaining that the court "assume[s] the facts alleged in the complaint are true"). "Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Id.; see Lyon v. Chase
When a Rule 12(c) motion is used as a vehicle for a Rule 12(b)(6) motion after an answer has been filed, or when it is functionally equivalent to a motion to dismiss for failure to state a claim, the same standard applies to both. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.1989); see Seabright Ins. Co. v. Matson Terminals, Inc., 828 F.Supp.2d 1177 (D.Haw.2011) (observing that the motions differ in time of filing but are otherwise functionally identical and require same standard of review). Dismissal for failure to state a claim "is proper if there is a `lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)).
Defendants seek judgment on the pleadings as to all five of Plaintiffs' claims. They argue that Kiobel v. Royal Dutch Petroleum Co., ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), narrowed the ATS's scope and thereby rendered Plaintiffs' claims for freedom of safe navigation and piracy outside of this court's subject matter jurisdiction. (See MJP at 12-18.) In the alternative, Defendants contend that there is no enforceable international norm against endangering safe navigation, and that claim (1) therefore fails on the merits. (See id. at 7-12.) Defendants also dispute whether the Financing Convention supports a private right of action, either on its own or as a manifestation of an enforceable international norm. (See id. at 18-21.) As to Plaintiffs' maritime tort claims, Defendants argue the pleadings are insufficient because they fail to provide important information for purposes of analyzing maritime jurisdiction or choice of law. (See id. at 21-24.) Finally, Defendants and Plaintiffs agree that the court resolved claim (5), which seeks coercive contempt sanctions, in its June 4, 2015, order. (Id. at 24; MJP Resp. at 16; Sanct. Order at 2.)
Because Defendants' Kiobel argument implicates the court's subject matter jurisdiction, the court analyzes that argument first.
Defendants argue that the ATS, as interpreted in Kiobel, places Plaintiffs' claim for freedom of safe navigation outside of this court's subject matter jurisdiction. (MJP at 12-16.) The Supreme Court decided Kiobel on April 17, 2013, shortly after the Ninth Circuit reversed this court's denial of a preliminary injunction. See Cetacean I, 725 F.3d at 940. Plaintiffs do not dispute that Kiobel narrowed federal court jurisdiction under the ATS, but they argue that Cetacean III and prior determinations by this court nonetheless dictate the outcome on the issue. (MJP Resp. at 6-8.) Even if not, Plaintiffs argue that Kiobel does not foreclose subject matter jurisdiction in this court.
"For the sake of efficiency and consistency, a decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." Snow-Erlin v. United States, 470 F.3d 804, 807 (9th Cir.2006) (internal quotations omitted). However, this rule — called the rule of mandate — recognizes
Given this case's timeline, the Ninth Circuit had a meaningful opportunity to address the implications of Kiobel only during the contempt proceedings. There is no mention of Kiobel in Cetacean II; only Cetacean III discusses Kiobel's impact.
Cetacean III, 588 Fed.Appx. at 702
Defendants argue that although "various defendants in the contempt action raised Kiobel," the Ninth Circuit intended to leave its application to this court. (MJP at 14.) In light of the language above, the court disagrees. Although the Ninth Circuit recognized the "inadequate briefing" and rejected the Kiobel argument in summary fashion, its language is unequivocal — the Court considered and rejected Defendants' post-Kiobel jurisdictional argument because piracy on the high seas has historically been within the federal courts' jurisdiction under the ATS. See
The court's own analysis confirms that Cetacean III accurately analyzed the post-Kiobel scope of the ATS. Understanding Kiobel's jurisdictional limitations begins with the substantive limitations on ATS claims imposed in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In Sosa, the Supreme Court determined that the ATS is jurisdictional and does not set forth a "new cause of action for torts in violation of international law." Id. at 713, 124 S.Ct. 2739. This determination could have rendered the ATS "stillborn," which would allow claims only when provided for by "a further statute expressly authorizing adoption of causes of action." Id. The Court instead concluded that the ATS authorizes "federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." Id. at 712-13, 124 S.Ct. 2739.
The Sosa Court found that the Congress that enacted the ATS envisioned three paradigmatic violations of the law of nations: "violation of safe conducts, infringement on the rights of ambassadors, and piracy." Id. at 724, 124 S.Ct. 2739. Those causes of action are not static, however, and the primary holding of Sosa is that "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to" safe conduct, rights of ambassadors, and piracy.
Kiobel left intact Sosa's analytical framework to determine whether a cause of action lies, but it altered the jurisdictional analysis under the ATS. 133 S.Ct. at 1663. The plaintiffs in Kiobel alleged that human rights violations in Nigeria violated customary international law. Id. at 1662-63.
Defendants assert that there "is no piracy exception to the rule announced in Kiobel," and that therefore the court does not have jurisdiction over claims (1) and (2) because the claims do not "touch and concern" the United States.
Defendants also attack Plaintiffs' claim for "safe navigation" (see MJP at 7-12) by arguing that "freedom from safe navigation on the high seas" (see FAC ¶¶ 34-39.3) is insufficiently "specific, universal, and obligatory" to qualify as an enforceable international norm, see Sosa, 542 U.S. at 732, 124 S.Ct. 2739. Plaintiffs respond that the Ninth Circuit conclusively determined this question in Cetacean I when it stated: "Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from customary international law and treaties." (See MJP Resp. at 6 (quoting Cetacean I, 725 F.3d at 947).)
Defendants again seek to relitigate an issue that the Ninth Circuit considered and determined. In Cetacean I, the Ninth Circuit analyzed Plaintiffs' likelihood of succeeding on the merits of their safe navigation claim. See Cetacean I, 725 F.3d at 944-45. Defendants recognize this inquiry but contend that it "assumed, without deciding, that [Plaintiffs] had stated a claim for safe navigation," and therefore is not binding. (See MJP Reply at 9.) Nowhere does the Ninth Circuit identify such an assumption, and indeed, such an assumption is incompatible with the Ninth Circuit's analysis of Plaintiffs' likelihood of success on the merits. See Cetacean I, 725 F.3d at 944-45.
Defendants argue that Snow-Erlin supports their argument that the Ninth Circuit left this issue undecided (See MJP Reply at 9.) In Snow-Erlin, the Ninth Circuit expressly "took the claim as alleged on the face of the complaint... in order to decide solely the underlying statute of limitations question," then remanded to the district court. 470 F.3d at 808. On remand, the district court recharacterized one of the plaintiff's claims over the plaintiff's objection that the Ninth Circuit had already decided the issue. See id. at 807. On a second appeal, the Ninth Circuit affirmed this recharacterization because in the first appeal the Ninth Circuit had assumed the claim was proper, and therefore the Night Circuit's first determination was not binding. See id. In Cetacean I, by contrast, the Ninth Circuit made no such assumption.
The Kiobel-based jurisdictional argument analyzed above comprises Defendants' only challenge to Plaintiffs' claim for freedom from piracy. For the reasons stated above, the court concludes that (1) the Ninth Circuit previously determined that Kiobel does not eliminate the court's subject matter jurisdiction, see supra Part III.B.1.a.i.; and (2) even if the Ninth Circuit's laconic determination was not intended to bind this court on remand, Kiobel demonstrates that the presumption against extraterritoriality does not preclude claims for piracy on the high seas, see supra Part III.B.1.a.ii. Accordingly, the court denies Defendants' motion for judgment on the pleadings as to Plaintiffs' claim for freedom from piracy.
Defendants next seek dismissal of Plaintiffs' freedom from terrorism
Financing Convention art. 2 § 1, Annex.
Defendants allegedly provide funds to foreign Sea Shepherd entities with the intent that Sea Shepherd entities commit piracy or endanger safe navigation. (Id. ¶¶ 50.1, 50.3.) Plaintiffs contend these acts contravene a specific, universal, and obligatory international norm, as required to sustain a cause of action under the ATS. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739; Financing Convention art. 2 § 1. As analyzed above, the Ninth Circuit concluded, based upon international norms expressed in the SUA Convention, UNCLOS, and COLREGS, that Plaintiffs' allegations of piracy and endangering safe navigation are sufficient to sustain a private action under the ATS. See supra Part III.B.1.a. (citing Cetacean I, 725 F.3d at 945). The Financing Convention expressly prohibits intentionally or knowingly funding such activities, with specific reference to violations of the SUA Convention. See Financing Convention art. 2 § 1, Annex. This similarity in offenses — funding piracy and unsafe navigation versus perpetrating piracy and unsafe navigation — leads the court to conclude that violation of Article 2, Section 1(a) of the Financing Convention satisfies Sosa's specificity requirement.
On the other hand, the Southern District of Florida has expressly concluded that "the Financing Convention does not establish a universally accepted rule of customary international law" because it has not been ratified by an "overwhelming majority" of states. Chiquita Brands Int'l, Inc. Alien Tort Statute & S'holder Derivative Litig., 792 F.Supp.2d 1301, 1318-19 (S.D.Fla.2011) (citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 256 (2d Cir. 2003)). At the time the Chiquita court evaluated the Financing Convention, only 111 nations — 58 percent of the world — had ratified the treaty. Id. at 1319. The court also reasoned that the "many declarations and reservations, i.e., non-consents and varying interpretations" undermined the Financing Convention's evidentiary value. Id. The court accordingly concluded that financing terrorism is not actionable under the ATS. Id. at 1321; see also Barboza v. Drummond Co., No. 06-61527-CIV, 2007 WL 8025825, at *11-12 (S.D.Fla. July 17, 2007) (concluding that financing terrorism is an insufficient cause of action because terrorism is too vague and internationally disputed to constitute an enforceable customary international law).
Two facets of Almog distinguish it from Barboza and Chiquita: the specificity of the putative international norm and the evidentiary support for the norm outside of the Financing Convention. As compared to this case, the court finds Almog's facts more analogous and rationale more persuasive. Both Barboza and Chiquita reject arguments that "financing terrorism" violates a universal and obligatory international norm. See Barboza, 2007 WL 8025825, at *11 ("Unlike the plaintiffs in Almog, Plaintiffs here have asserted only claims of terrorism in general, not acts of terrorism as specifically defined in a recognized norm of customary international law."); Chiquita, 792 F.Supp.2d at 1318 ("Almog is ... distinguishable in that the court there did not recognize an ATS claim for terrorism in general Rather, Almog rested its holding on ... suicide bombings and assassinations of civilians. Indeed, the court explained that its holding was ... not based upon a cause of action for `terrorism'
Several reasons distinct from the Financing Convention bolster the conclusion that the international norm against funding piracy and unsafe navigation is universal and obligatory. See Sosa, 542 U.S. at 734, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900)) ("[W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators." (alterations in original)). First, piracy itself is the paradigmatic example of a violation of customary international law. Sosa, 542 U.S. at 724-25, 124 S.Ct. 2739. Although funding piracy is a different offense, the close relation between the two provides some evidence of general acceptance of a norm against funding piracy. See Almog, 471 F.Supp.2d at 280-85 (combining the analysis of an international norm against civilian bombings, as stated in the Bombing Convention, with the analysis of an international norm against financing civilian bombings, as stated in the Financing Convention). Furthermore, the SUA Convention provides for aiding and abetting liability, which bolsters this inference and evidences acceptance of a norm against funding piracy and unsafe navigation. See SUA Convention art. 2 § 2.2 ("Any person also commits an offence if that person ... abets the commission of any of the offences [previously identified]."). Finally, unlike in Barboza and Chiquita, the various countries' reservations and declarations
The court reaches this determination mindful of the Supreme Court's admonition to exercise "judicial caution when considering the kinds of individual claims that might implement" ATS jurisdiction. Sosa, 542 U.S. at 725, 124 S.Ct. 2739. Foreign affairs consequences, in which the judiciary impinges on the legislative and executive branches, are an important reason to
Plaintiffs also allege that Defendants have funded "acts intended to cause death or serious bodily injury to a civilian" with the purpose of compelling the Japanese government to cease authorizing research whaling. (FAC ¶¶ 49.2, 50.2 (citing Financing Convention art. 2 § 1(b)).) Defendants characterize this as a claim for financing terrorism and argue that no specific, universal, and obligatory international norm against terrorism — or financing terrorism — exists. (See MJP at 19-21.) Plaintiffs mount an inapposite opposition, arguing that the court "is not being asked to create a definition of `terrorism'" because the Financing and SUA Conventions do so. (MJP at 11.) This inaccurately describes Section 1(b), however, which in contrast to Section 1(a) does not incorporate the specific "treaties listed in the annex" to the Financing Convention. Compare Financing Convention art. 2 § 1(b) with id. § 1(a).
The court agrees with the numerous federal courts that have concluded, post-Sosa, that there is no enforceable international norm against terrorism. See, e.g., Chiquita, 792 F.Supp.2d at 1316-19; Barboza, 2007 WL 8025825, at *10-11; Krishanthi v. Rajaratnam, No. 09-CV-05395 (DMC-JAD), 2010 WL 3429529, at *10-11, *13 (D.N.J. Aug. 26, 2010). Terrorism defies a narrow definition. See United States v. Yousef, 327 F.3d 56, 106-08 (2d Cir.2003). Furthermore, acceptance of norms against terrorism is disuniform. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 795 (D.C.Cir. 1984) ("While this nation unequivocally condemns all terrorist attacks, that sentiment is not universal. Indeed, the nations of the world are so divisively split on the legitimacy of such aggression as to make it impossible to pinpoint an area of harmony or consensus."). A putative norm against financing terrorism is likewise insufficiently "specific, universal, and obligatory." See Sosa, 542 U.S. at 732-33, 124 S.Ct. 2739. The court therefore dismisses Plaintiffs' claim (3) to the extent it seeks to broadly enjoin financing terrorism.
Defendants also contend that Plaintiffs' maritime tort claims should be dismissed for insufficient pleading. Specifically, Defendants contend that Plaintiffs' pleadings fail to establish maritime jurisdiction and fail to include sufficient facts to analyze the applicable law. (See MJP at 21-25; see also FAC ¶¶ 53-56.) Defendants provide little argument on maritime jurisdiction, except to the extent that the jurisdictional analysis happens to overlap with choice-of-law analysis. (See MJP at 21.) Defendants cite prior language from the court that Plaintiffs' "invocation of admiralty jurisdiction has so far been largely pro forma."
Defendants also contend that Plaintiffs' "vague [maritime] claim fails to plead facts necessary ... to engage in the choice-of-law analysis that would be required for the identification and adjudication of any maritime common-law tort claim." (MJP at 21.) The Lauritzen factors provide guideposts for a court performing choice-of-law analysis on a maritime common law claim. See Lauritzen v. Larsen, 345 U.S. 571, 583-93, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). The factors are: (1) place of the wrongful act; (2) law of the flag, i.e., nationality of the vessels; (3) allegiance or domicile of the injured; (4) allegiance of the defendant shipowner; (5) place of contract; (6) inaccessibility of foreign forum; and (7) law of the forum. Id. This list is non-exhaustive, and the Supreme Court has added to it the shipowner's base of operations. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). Moreover, not all factors merit equal consideration. See, e.g., Lauritzen, 345 U.S. at 584-85, 73 S.Ct. 921 (explaining the "cardinal importance" of the law of the flag, which is dispositive as to the applicable law unless "some heavy counterweight" overcomes it). Defendants contend that because Plaintiffs' amended complaint "includes no reference to the flags flown by any of the vessels in the alleged events" — a "cardinal" factor in performing choice of law analysis — it is "impossible to determine from the face of the Complaint what body of substantive law should apply to the [maritime tort] claims ... which alone is sufficient to" entitle Defendants to judgment on the pleadings.
However, Defendants make no showing that applying any potentially applicable law would entitle Defendants to dismissal. Indeed, the only argument Defendants make regarding foreign law is that if the court were to apply Australian law, "it would need to consider the fact that the Institute has been enjoined by an Australian court from whaling in the Australian Whale Sanctuary, and has been flouting this injunction since 2008." (See MJP at 24.) Although Defendants repeatedly insist that Australian law would require the court to "consider" this injunction, they never articulate what the impact of doing so would be — even after Plaintiffs pointed out this omission in their opposition. (Compare MJP Resp. at 15-16 & n.16 with MJP Reply at 12.)
Choice of law will be an important aspect of this case, but Defendants have failed to demonstrate that it is outcome-determinative. Accordingly, the court denies Defendants' motion for judgment on the pleadings as to Plaintiffs' maritime tort claims.
On June 4, 2015, the court issued an order granting in part and denying in part Plaintiffs' requests for remedial contempt sanctions. (See Sanct. Order at 2.) Both sides agree that this resolved the issues
The court GRANTS IN PART and DENIES IN PART Defendants' motion for judgment on the pleadings. The court grants the motion and DISMISSES WITHOUT PREJUDICE Plaintiffs' ATS claims for funding terrorism, see supra Part III.B.3.b., and Plaintiffs' claim seeking coercive contempt sanctions, see supra Part III.B.5. The court denies the motion in all other respects.
Neither side has addressed whether Plaintiffs should be granted leave to amend their claims, and such leave is to be freely given. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.1999). However, Plaintiffs agree that claim (5) is moot, and amended allegations cannot save claim (3) insofar as it seeks to enjoin financing terrorism because such claims are not cognizable as a matter of law. See supra Parts III.B.3.b., IILB.5. The court therefore concludes that amendment would be futile and declines to grant leave to amend. See Bowles, 198 F.3d at 758 (permitting denial of leave to amend where amendment would be futile).
Defendants assert six counterclaims
Plaintiffs argue Defendants lack Article III standing
"To establish Article III standing, an injury must be `concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting
In environmental cases, injury "is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that interest is impaired by a defendant's conduct." Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir.2000) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 182-83, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). "While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere aesthetic interests of the plaintiff, that will suffice." See Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing Sierra Club v. Morton, 405 U.S. 727, 734-36, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). An organization can have standing to sue on behalf of its members, but only if "it or its members would be affected in any of their activities or pastimes." Sierra Club, 405 U.S. at 735, 92 S.Ct. 1361.
As the parties invoking jurisdiction over their counterclaims, Defendants bear the burden of establishing standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
As a threshold matter, Plaintiffs argue that SSCS has not alleged that it has "members," and thus SSCS does not have standing under Sierra Club. (See MTD at 7-9.) An association "has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit" Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Plaintiffs argue that SSCS fails to "allege that it is an organization with members (because it is not)." (MTD at 7.) SSCS responds that its employees and volunteers are "members" in the relevant sense, and that by planning future whale-watching trips to the Southern Ocean, SSCS's employees and volunteers satisfy element (a). (See MTD Resp. at 9.)
The law is not so formalistic as to preclude employees and volunteers from counting as members for purposes of associational standing. See Hunt, 432 U.S. at 345, 97 S.Ct. 2434 ("[W]hile the apple growers and dealers are not `members' of the Commission in the traditional trade association sense, they posses all of the indicia of membership in an organization."). The "indicia of membership" identified in Hunt are that the putative members "alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit,
SSCS makes clear that its mission is "to end the destruction of habitat and slaughter of wildlife in the world's oceans" (2ACC ¶ 2), and that its employees — most of whom are volunteers — buy into and impact that mission (see, e.g., id. ¶ 32). The footage submitted as an attachment to Defendants' counterclaims makes clear the commitment that SSCS's members have to its cause. (See 2ACC ¶ 19, Ex. 2 (Dkt. #250-2) (DVD on file with the court).) Thus, although SSCS makes minimal allegations about its financial contributions or managerial structure, the court finds that Defendants plead sufficient facts to allow the court to reasonably infer that "the organization is sufficiently identified with and subject to the influence of those it seeks to represent as to have a personal stake in the outcome of the controversy." Mink, 322 F.3d at 1111. The court therefore rejects Plaintiffs' argument that SSCS lacks standing to assert counterclaims on behalf of its employees and volunteers.
Plaintiffs contend Defendants have failed to allege imminent injury and thus lack standing to seek injunctive relief.
Defendants allege plans comparable to those at issue in Lujan. As a threshold matter, it is minimally relevant that Defendants' members allegedly "routinely traveled to the Southern Ocean to observe the whales" and "have suffered severe emotional distress when observing [the Institute's] violent slaughter of the whales." (2ACC ¶ 63.) It "proves nothing" that a claimant seeking injunctive relief "had visited" the relevant areas in the past. Lujan, 504 U.S. at 564, 112 S.Ct. 2130. Furthermore, Defendants aver that they "do not plan to ever participate again in a Southern Ocean whale-protection campaign." (2ACC ¶ 5.) Defendants' do intend, however, to "return to the Southern Ocean to observe and enjoy the whales, while participating in future campaigns not directly related to whale-protection" (id. ¶ 63), but this declaration states only "some day" intentions that are no more concrete than those in Lujan, see 504 U.S. at 563-64, 112 S.Ct. 2130. On the other hand, Defendants clarify that their "planned campaigns over the next three years" will "monitor, research, and protect the vital krill population" in the Southern Ocean. (2ACC ¶ 63.) It is reasonable to infer that these "planned campaigns" will occur with regularity over the next three years (see 2ACC ¶ 63) — like Defendants' prior anti-whaling campaigns — and not "sometime in the next three years" as Plaintiffs infer (see MTD at 10). Defendants therefore provide a more concrete plan to return to the area than that was at issue in Lujan. (Id. ¶ 63.) It is reasonable to infer that Defendants' planned, imminent travels to the Southern Ocean will seek out minke whales, and that by diminishing their overall population Plaintiffs would cause aesthetic injury to Defendants. See Lujan, 504 U.S. at 566-67, 112 S.Ct. 2130 ("It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist." (citing Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 231 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986))).
The court also rejects Plaintiffs' argument that Mr. Watson has not alleged causation as to counterclaims (1) and (3). (See MTD at 11-12.) Defendants' counterclaims, construed in Defendants' favor, allege
Further factual development may demonstrate that Defendants' alleged aesthetic injury or causation are too speculative or abstract to be cognizable. Of particular concern is the immense size of the Southern Ocean in comparison to the 333 minke whales that the Japanese government authorized the Institute to kill annually under NEWREP-A. (See 2ACC ¶ 28; see also MTD at 12.) However, in this facial challenge to standing at the motion to dismiss stage, the court takes Defendants' allegations as true and construes those allegations in Defendants' favor. See African Am. Contractors, 96 F.3d at 1207. Accordingly, the court concludes Defendants have sufficiently demonstrated imminent injury and causation as to counterclaims (1) and (3).
On the other hand, Defendants have not demonstrated a likelihood of future injury for counterclaims (2) and (4), which seek to enjoin future piracy and unsafe navigation by Plaintiffs.
First of all, counterclaims (2) and (4) seek injunctive relief as to Sea Shepherd vessels, and not SSCS vessels. (See 2ACC ¶¶ 74, 86.) As Defendants make clear, these are "independent entities." (See 2ACC ¶ 3.) Sea Shepherd is not a party to this suit, and Defendants have provided no reason SSCS would have standing to sue for actions taken against Sea Shepherd vessels. Plaintiffs' motion to dismiss identifies this issue (see MTD at 3, 12-13), and Defendants address it in their response with reference to the equitable principles
Moreover, the court cannot reasonably infer from Defendants' allegations that Plaintiffs have ever sought out Defendants on the high seas to commit acts of piracy or unsafe navigation. Indeed, Defendants repeatedly make clear that Defendants initiated proximity, not Plaintiffs. (See 2ACC ¶¶ 1 ("[Plaintiffs] have a history of protecting their illegal operations with violent and dangerous attacks on those who seek to monitor and impede them."), 32 ("Manned by an international crew consisting largely of volunteers, Sea Shepherd vessels attempted to locate and follow [the Institute]'s fleet, and impede its illegal whale hunt."), 35 ("Sea Shepherd vessels have used various tactics over the years to impede [the Institute]'s illegal killing of whales, the most successful of which has been to follow the NISSHIN MARU, in order to prevent the transfer of whales from the harpoon ships to the NISSHIN MARU for commercial processing. In the past, Sea Shepherd has approached the ICR ships and attempted to throw onto their decks bottles of butyric acid.") (emphases added).) Although Defendants make plausible allegations that Plaintiffs attacked Defendants, Defendants' pleadings indicate those attacks were "[i]n response to efforts by SSCS and other Sea Shepherd entities to expose and impede [Defendants'] illegal whaling." (Id. ¶ 38.) The types of damage Defendants allege — endangering safe navigation (id. ¶ 40, 43, 46, 52), firing long-range acoustic devices and water cannons (id. ¶¶ 41, 46), ramming (id. ¶¶ 42, 46, 49), throwing items like grappling hooks and stun grenades (id. ¶¶ 49-50), stabbing (id. ¶¶ 49-50), and fouling rudders and propellers (id. ¶¶ 49, 51-52) — require proximity.
Defendants' only alleged future intentions in the vast Southern Ocean are krill campaigns. (See id. at 37.) During those campaigns, Defendants intend to observe the native whales and "monitor, research, and protect against the depletion of the krill population" — none of which indicates any propensity or reason to approach Plaintiffs' ships.
In a related vein, Defendants fail to allege imminent injury, and thus lack standing for counterclaim (6). (See 2ACC ¶¶ 94-100 (leveling claims against the Institute and Kyodo Senpaku for violating the Financing Convention).) Counterclaim (6) seeks injunctive relief against the Institute and Kyodo Senpaku for raising money to "perform acts of violence against persons aboard Sea Shepherd vessels." (Id. ¶ 98.) Sea Shepherd is distinct from SSCS, and is not a party to this case. (Id. ¶ 3.) Moreover, as the court concludes above, Defendants have not demonstrated imminent injury from the Plaintiffs' piracy or unsafe navigation. By extension, they have not demonstrated imminent injury from the Institute and Kyodo Senpaku funding such activities. For these reasons, the court concludes Defendants lack standing to assert counterclaim (6).
Although Defendants have demonstrated standing to bring their counterclaim for whaling, the court concludes the ATS does not confer subject matter jurisdiction over that claim. The court "presume[s]
The court disagrees. For reasons explained above, a piracy claim under the ATS is different than one for other international norms. See supra Part III.B.1.a.ii. Even assuming "[w]haling for commercial purposes, and the killing of endangered species"
The court now turns to Plaintiffs' arguments that counterclaims (3) and (5) fail to state a claim for relief.
Defendants' third counterclaim attempts to characterize Plaintiffs' whaling as piracy, and thus to shoehorn whaling into an enforceable international norm. (See 2ACC ¶¶ 75-81.) The court is unpersuaded by this creative effort. As a threshold matter, by characterizing Plaintiffs' whaling as "piracy," Defendants avoid the threshold jurisdictional barrier which led the court to dismiss counterclaim (1). See supra Part IV.B.2. However, the court concludes Defendants' whaling allegations do not constitute piracy.
Defendants argue that Plaintiffs' whaling constitutes "acts of `violence, detention [and] depredation' in furtherance of `private ends.'" (Id. ¶ 80 (quoting Cetacean I, 725 F.3d at 943).) Even assuming this is true, Defendants' definition omits the requirement that such acts be committed "against another ship or aircraft, or against persons or property on board such ship or aircraft." UNCLOS art. 101; see
Plaintiffs argue that counterclaim (5), which seeks damages for Defendants' negligent or intentional destruction of property (see 2ACC ¶¶ 87-93), should be dismissed to the extent it refers to Sea Shepherd — and not SSCS — vessels (see MTD at 5-6).
Defendants respond by citing Plaintiffs' amended complaint, which alleges both that the Bob Barker was an "SSCS vessel" during the 2009-2010 whaling season (Am. Compl. 115.3), and that SSCS subsequently granted the Bob Barker to foreign Sea Shepherd entities (see, e.g., id. ¶ 27). Defendants also contend that their answer admits ownership of the Bob Barker by stating that "it had `employed' the Bob Barker in the Southern Ocean as late as the 2011-2012 season." (MTD Resp. at 25 (quoting FAC Ans. 120).) However, merely "employ[ing]" the ship during the relevant period does not entail a proprietary interest. Moreover, the court does not consider the complaint or answer thereto in a motion to dismiss counterclaims — only the "counter complaint, any exhibits thereto, and matters which may be judicially noticed." See Aagard v. Palomar Builders, Inc., 344 F.Supp.2d 1211, 1214 (E.D.Cal. 2004). Whereas Defendants may be correct that counterclaim (5) "could easily be amended to specifically allege that the SSCS had a proprietary interest in the Bob Barker in 2010," that allegation is not currently among the pleadings the court may consider. (MTD Resp. at 25.) Accordingly,
Additionally, Plaintiffs argue that Mr. Komura should be dismissed as a party because he has never been served. (See MTD at 6.) Defendants make no representation that they have made any effort to serve Mr. Komura in the almost four years that have passed since his summons issued. (See MTD Resp. at 23 n. 11; Summons (Dkt. #99).) Instead, they argue that they have "no time limit for effecting service on [Mr.] Komura" because he is located in a foreign country. (MTD Resp. at 23 n.l 1); see also Fed. R. Civ. P. 4(m) (exempting "service in a foreign country" from the 120-day deadline); Lucas v. Natoli, 936 F.2d 432, 432 (9th Cir.1991). The Ninth Circuit reads Rule 4(m) to completely exempt foreign defendants from the 120-day service deadline. See Lucas, 936 F.2d at 432; cf. Lozano v. Bosdet, 693 F.3d 485, 488-89 (5th Cir.2012) (reading Lucas to conclude that "when the defendants are foreign, an unlimited window-of-opportunity for service ... exists," and rejecting that interpretation in favor of a "flexible due diligence" standard). However, this does not preclude the court from "setting a reasonable time limit for service in a foreign country to properly manage a civil case." Baja Devs. LLC v. TSD Loreto Partners, NO. CV-09-756-PHX-LOA, 2009 WL 2762050, at *1 (D.Ariz. Aug. 26, 2009); see also Logtale, Ltd. v. IKOR, Inc., No. C 11-5452 CW, 2013 WL 4427254, at *7 (N.D.Cal. Aug. 14, 2013) (analyzing whether a party's failure to serve a foreign defendant over an eleven month period was "deliberate" and whether opposing parties were prejudiced by the delay).
Because Rule 4(m) does not set a deadline for service in a foreign country, and the court has not previously set a deadline for service, the court will not dismiss Mr. Komura at this time. See Lucas, 936 F.2d at 432. However, Defendants' apparent failure to make any efforts at service troubles the court, which will not allow an unlimited time for service. See Baja Devs., 2009 WL 2762050, at *1-2 (noting that "Plaintiff has offered to provide specifics of its service attempts"); Nylok Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir.2005) ("[T]he amount of time allowed for foreign service is not unlimited."). The court therefore DIRECTS Defendants to effect service on Mr. Komura by April 30, 2016. If Defendants cannot do so, they are to file a status report detailing their efforts to serve Mr. Komura, at which point the court may revisit whether dismissal is appropriate for failure to serve.
The court GRANTS IN PART and DENIES IN PART Plaintiffs' motion to dismiss. The court DISMISSES WITHOUT PREJUDICE counterclaims (2), (4), and (6) for lack of standing, DISMISSES WITHOUT PREJUDICE counterclaim (1) for lack of subject matter jurisdiction, DISMISSES WITHOUT PREJUDICE counterclaim (3) for failure to state a claim, and DISMISSES WITHOUT PREJUDICE those aspects of counterclaim (5) that seek redress for damages to any individual or vessel other than the Ady Gil, for failure to state a claim.
Neither party has addressed whether Defendants should have leave to amend their counterclaims, and such leave is to be freely given. Bowles, 198 F.3d at 757. The court therefore GRANTS Defendants thirty (30) days from the filing of this order to amend their counterclaims to remedy the deficiencies identified herein. If Defendants opt to amend their counterclaims, they should be clear what past and future
Plaintiffs seek partial summary judgment on counterclaim (5). Plaintiffs first moved for partial summary judgment on April 9, 2015, seeking to dismiss part of counterclaim (5) on statute-of-limitations grounds. (See generally 4/9/15 MPS J.) On July 16, 2015, Plaintiffs moved for partial summary judgment on the entirety of counterclaim (5), incorporating by reference their April motion for partial summary judgment. (See 7/16/15 MPS J.)
The court has dismissed the portions of counterclaim (5) that seek damages for attacks on Sea Shepherd vessels, as opposed to SSCS vessels. See supra Part IV.B.3.b. Part of Plaintiffs' motions for partial summary judgment are therefore moot. Moreover, the Western District of Washington's local rules prohibit filing "contemporaneous dispositive motions, each one directed toward a discrete issue or claim" without leave of the court. Local Rules W.D. Wash. LCR 7(e)(3). This rule seeks to avoid the inefficiencies caused by duplicative dispositive motions and circumvention of the court's page limits. In light of the court's ruling herein, which moots part of the motion, and because of the circuitous internal references in the relevant motions, the court finds it inefficient to consider them at this juncture. Accordingly, the court DENIES both motions for partial summary judgment WITHOUT PREJUDICE to reraising the issues that remain in light of this order.
Defendants move to compel Plaintiffs to respond to Defendants' third interrogatories and produce documents responsive to Defendants' third requests for production ("RFPs"). (See MTC at 1.) Plaintiffs broadly object to this discovery, in part on the grounds that Defendants' defenses and counterclaims lack merit, and thus the information is irrelevant (See MTC Resp. at 4-13.) This order clarifies which of Plaintiffs' and Defendants' claims and counterclaims can move forward, removing the hypothetical element from counsel's arguments as to relevance. Accordingly, the court finds moot or inapposite many of the arguments and defenses propounded in the relevant briefing. The court therefore DENIES the motion WITHOUT PREJUDICE to reraising any disputes that the parties cannot resolve at a meet and confer held in light of this order.
On July 13, 2015, Defendants provided notice to Plaintiffs of their intent to terminate the confidentiality agreement that the parties entered into in July 2012. (See MTCT at 1; see also 9/14/15 Neupert Decl. re MTCT (Dkt. #281) ¶ 2, Ex. 1 ("Confidentiality Agreement").) Plaintiffs take the position that Defendants cannot unilaterally terminate the confidentiality agreement. (See MTCT Resp. at 2.)
The agreement at issue was never entered as a court order. (See generally Dkt.). Judge Jones, who presided over the case when the parties reached the agreement, does not enter confidentiality agreements as orders of the court. (See 9/14/15 Neupert Decl. re MTCT ¶ 4, Ex. 2 ("Jones Rules") at 1.) Judge Jones' policy is to "enforce the parties' agreement regarding confidentiality of documents as it would
Pursuant to Judge Jones' rules, the court understands the agreement as a simple contract and interprets it accordingly. (Id.) In opposition to the motion, Plaintiffs make a series of arguments that indicate not that the contract is interminable, but that the contract applies indefinitely to documents produced while the contract was in effect. (See, e.g., MTCT Resp. at 5 ("[T]he intent that the Agreement is not subject to unilateral termination is demonstrated by the fact that the terms `survive the final termination of this proceeding,' indicating that the parties intended the agreement to run either in perpetuity or, at a minimum, until some point after the conclusion of litigation.").) But Defendants concur that "discovery produced while the [agreement] was in force will continue to be treated according to its terms." (MTCT at 4.)
Concerning whether the agreement is terminable as applied to future discovery, Plaintiffs only point out that it is "silent on the subject of termination," and argue that if it had been a court order, it would not have been terminable at will. (Id.) These arguments miss the point. The agreement is a private contract without a termination clause. (See generally Confidentiality Agreement.) With reasonable notice, a "contract for continuing performance" that fails to "specify the intended duration" is "terminable-at-will by either party after a reasonable time." See Cascade Auto Glass, Inc. v. Progressive Cas. Ins. Co., 135 Wn.App. 760, 145 P.3d 1253, 1256 (2006) (citing Robbins v. Seattle Peerless Motor Co., 148 Wn. 197, 268 P. 594, 594 (1928)). There is no termination clause in the agreement, and Plaintiffs do not dispute that Defendants provided Plaintiffs with reasonable notice. (See generally MTCT Resp.) Accordingly, the court concludes that the contract is terminated. The court will, however, enforce the agreement as to previously produced documents, insofar as the agreement comports with the Local Rules.
The court GRANTS Defendants' motion to confirm the termination of the confidentiality agreement. At oral argument, the parties indicated a willingness to seek common ground on a stipulated protective order. If they fail in that endeavor, the court will consider the parties' positions and craft an appropriate protective order on its own.
The court GRANTS IN PART and DENIES IN PART Defendants' motion for judgment on the pleadings (Dkt. #260), GRANTS IN PART and DENIES IN PART Plaintiffs' motion to dismiss (Dkt. #255), DENIES Plaintiffs' motions for partial summary judgment on Defendants' fifth counterclaim (Dkt. ##228, 257), DENIES Defendants' motion to compel (Dkt. #271), and GRANTS Defendants' motion to confirm termination of the confidentiality agreement (Dkt. #272).
Financing Convention Annex.
