JAMES I. COHN, District Judge.
This consolidated case concerns the Bolivian government's alleged massacre of its own civilians during a period of civil unrest in Bolivia in 2003. Plaintiffs—nine Bolivian residents and citizens—are the relatives of eight Bolivian civilians allegedly deliberately killed by Bolivian soldiers in Bolivia.
Defendants now move to dismiss Plaintiffs' Second Amended Consolidated Complaint ("Complaint") in its entirety. First, Defendants argue that Plaintiffs' ATS claims for "extrajudicial killings" and "crimes against humanity" are barred by the Supreme Court's opinion in Kiobel v. Royal Dutch Petroleum, Co., ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) because all the alleged relevant conduct occurred in Bolivia. Second, Defendants contend that Plaintiffs' TVPA claims for "extrajudicial killings" fail to overcome the Act's exhaustion-of-local-remedies requirement and thus should also be dismissed. Third, Defendants maintain that—even if Plaintiffs' claims survive these initial challenges—the underlying factual allegations fail to state a plausible claim under either the ATS or the TVPA. Fourth and finally, Defendants urge the Court to decline supplemental jurisdiction over Plaintiffs' state-law claims for "wrongful death" because they involve "novel or complex issues" of Bolivian law.
The tale of this case, as Plaintiffs tell it, begins in December 1999 during the so-called "Water War" in Bolivia. Compl. ¶ 29.
Several years later, in June 2002, Defendant Lozada was elected to a second term as President of Bolivia with 22% of the vote.
That is why before taking office Defendants met and discussed "a plan to systematically use unlawful, lethal force against civilians" to quash and deter public opposition to their political agenda. Id. ¶ 30. In 2001, for instance, Defendants met with members of their political party to strategize as to how they could avoid another "Water War." Id. They discussed using "overwhelming force" to quell protests. Id. Defendant Berzaín, for his part, proposed using "highly trained military troops from Beni in the east of Bolivia, who would be willing and able to kill large numbers of civilians." Id. In his estimation, "they would have to kill 2,000 or 3,000 people." Id. Defendant Lozada "explicitly agreed" with him. Id.
After assuming power in August 2002, Defendants continued to strategize with their political and military colleagues about the need to kill civilians to overcome opposition to their plans. Id. ¶ 31; see also ¶¶ 50, 71, 78, 80-81, 83-85, 93, 95, 100-02, 108, 125-26, 130. Defendants also began laying the foundation to implement their strategy. Id. ¶ 35. Defendant Lozada appointed a new Army Commander, who issued a secret "Manual on the Use of Force." Id. ¶¶ 36-37. By its own terms, the Manual was prepared because Bolivia was "in a constant state of convulsion and social conflict and the Army, in order to carry out its constitutionally mandated mission, must be charged with maintaining legally constituted rule of law." Manual on the Use of Force [DE 183-3] at 2.
Defendant Lozada then promulgated a two-page secret "Republic Plan." Compl. ¶ 38. Its mission was to engage the military "in support operations to ensure the stability of the Republic, on orders, in their jurisdiction, in order to guarantee the rule of law and the exercise of constitutional rights." Republic Plan [DE 183-4] at 1. To achieve this mission, the Republic Plan instructed the military to apply "Principles
Several protests began around Bolivia in early 2003. Compl. ¶¶ 42-46. But instead of pursuing peaceful solutions, Defendants deployed the military to defeat the protests with force, resulting in about 40 deaths and over 200 injuries. Id. On February 13, 2003, for instance, military sharpshooters shot and killed a bricklayer working on a roof, as well as the nurse who went to assist him, before shooting a doctor wearing a Red Cross vest who tried to treat them both. Id. ¶ 46. In response to public outrage over the violence, Defendant Berzaín and others resigned from the Cabinet. Id. ¶ 47.
Over the following months, numerous people inside and outside the government warned Defendant Lozada that the use of force against protestors was unlawful and would lead to many deaths. Id. ¶ 48. They urged him to employ non-lethal responses instead; for example, Ricardo Calla, a Bolivian anthropologist, specifically warned Defendant Lozada that he was about to "taint his hands with blood," and that his "trigger happy" associates would lead to a massacre if he continued to give them power. Id. But Defendant Lozada was unmoved. Id. ¶ 50. Instead, Defendants and other government officials once again debated how many Bolivians would have to die to suppress popular movements. Id. Defendant Berzaín surmised that "999 deaths were not enough, but that 1,000 would be sufficient." Id.
In August 2003, Defendant Lozada officially brought Defendant Berzaín back into his Cabinet as the Minister of Defense.
By mid-September, protestors had blocked the road to Sorata, a small town
Early on the morning of September 20, a military convoy heading to the roadblock in Sorata entered the town of Warisata. Id. ¶ 66. While there, soldiers shot and beat villagers even though no one was shooting at the soldiers. Id. The convoy then continued on to Sorata, arriving at the roadblock around the same time as a helicopter carrying Defendant Berzaín. Id. ¶ 67. As a crowd gathered, Defendant Berzaín shouted, "Get those Indians off the roads or I'm going to put a bullet in them." Id. After loading the tourists onto buses, the convoy then headed back to Warisata, shooting at and killing several civilians as they ran for safety. Id. ¶ 69. Around 3:00 p.m., a second military contingent entered Warisata and began shooting in all directions. Id. ¶ 70. Two policemen were injured, and one soldier was killed. Id.
Around 4:00 p.m., Defendants ordered the military "to take Warisata." Id. ¶ 71. Defendant Lozada signed a written order dictated by Defendant Berzaín, directing the military to use "necessary force" to restore order "[i]n light of the grave aggression by a guerilla group against the forces of public order in Warisata." Id. ¶ 72. Defendants knew at that time, however, that their claim of an insurgency was false. Id. ¶ 79.
Multiple Special Forces units participated in "taking" Warisata that afternoon, including units that Defendant Lozada had under his direct command. Id. ¶ 74. Soldiers were ordered to use lethal munitions and to shoot "at anything that moved." Id. ¶ 73. When eight-year-old Marlene Nancy Rojas Ramos moved to look out a window in her home, far from the site of any protests, a sharpshooter fatally shot her from a distance of about 75 yards. Id. ¶ 75. No other bullets hit the house either before or after the shooting. Id.
At a Cabinet meeting that evening—and after hearing a report on that day's military operations—Defendant Lozada took full responsibility for the violence. Id. ¶ 80. Vice-President Carlos Mesa, for his part, criticized the civilian deaths and urged Defendants to negotiate with the protestors instead of using force. Id. ¶ 81. But Defendants refused. Id. Instead, during a meeting the following day, they agreed to falsely blame the violence on "subversives." Id. ¶ 83. They also agreed that the military would take additional actions against "subversion" to obtain "military control" over certain areas in Bolivia. Id. Defendant Berzaín said that he would take full responsibility for the operations. Id.
Triggered in part by the violence in Warisata, more protests began around the country. Id. ¶¶ 86, 89. The protestors demanded an end to both the violence and the government's plan to export Bolivia's natural gas. Id. ¶ 86. But the government instead responded by deploying more troops. Id. ¶¶ 89, 91-92. In early October 2003, government officials and community leaders pleaded with Defendant Lozada to resolve the escalating protests peacefully. Id. ¶ 90. Yet again he refused. Id. Instead, he instructed Defendant Berzaín not to "lower his arms" against the protesters, assuring him he had full presidential support. Id. ¶ 93. So when the governor of La Paz later negotiated a truce with the protesters, Defendant Lozada became livid, rejected the truce, and refused to cease
On October 11, 2003, several religious leaders met with Defendant Lozada and volunteered to act as peacemakers. Id. ¶ 102. Defendant Lozada's message for the protesters was: "if they want dialogue for gas, they'll have dialogue, but if they want war for the gas, they'll have war, and we will shoot all the violent people in El Alto." Id. Continuing to rely on a knowingly false justification that Bolivia was rife with insurgents, Defendant Lozada then issued two directives authorizing the military to combat "subversion" in El Alto and La Paz. Id. ¶ 108.
In accordance with those directives, the military conducted operations in El Alto on October 12, 2003, during which officers ordered soldiers to shoot civilians. Id. ¶¶ 104-11. Soldiers thus marched through residential neighborhoods, firing at people without warning. Id. ¶ 111. Thirty individuals died that day, including four of Plaintiffs' relatives even though none were involved in any demonstration or posed any threat. Id. ¶ 104.
On one side of the city, far from any protests, thirty-nine-year-old and pregnant Teodosia Morales Mamani was visiting her sister's home. Id. ¶ 112. Several family members looked out the window inside the home and saw soldiers marching down the street, yelling at people looking out of their windows: "What are you looking at? I'll kill you!" and "Shoot them, damn it!" Id. Morales was sitting next to that window when a soldier fired at the apartment. Id. ¶ 113. The bullet hit Morales in the abdomen, killing her and her unborn child. Id. A soldier also fatally shot nineteen-year-old Roxana Apaza Cutipa while she was on the roof of her house, far from any protests. Id. ¶ 115. Another soldier fatally shot fifty-nine-year-old Marcelino Carvajal Lucero from a distance of 19 yards as he went to close a window in his house. Id. ¶ 116. Across the city near the gas plant, a soldier fatally shot Lucio Santos Gandarillas Ayala as he ran for cover. Id. ¶ 120.
Later that day, Vice President Carlos Mesa told Defendant Lozada, "These deaths are going to bury you." Id. ¶ 125. Defendant Lozada replied, "I'm too old to change." Id. That evening, Defendant Berzaín told military leaders that they were bound to obey orders from Defendant Lozada, who was responsible for the military's actions. Id. ¶ 126.
On October 13, 2003, the military conducted operations in an area south of La Paz to prevent protestors from entering the capital. Id. ¶ 131. Soldiers were ordered to "shoot at any head that you see." Id. ¶ 136. They did as ordered but eventually ran out of ammunition. Id. ¶ 137. Defendant Berzaín then flew into the area in a helicopter, ordering soldiers in the helicopter to shoot at people below on the ground. Id. The helicopter circled the area twice, firing at civilians. Id. It then landed to offload ammunition for the soldiers. Id. The soldiers then resumed shooting with renewed intensity. Id. At some point that morning, one soldier was killed by a sharpshooter. Id. ¶ 135.
Soldiers were then ordered to chase unarmed civilians into the hills with gunfire. Id. ¶ 138. They killed seven civilians over the next several hours, including three of Plaintiffs' relatives. Id. A soldier fatally shot Jacinto Bernabé Roque as he tried to hide in the hills. Id. ¶ 140. Similarly, Arturo Mamani Mamani was also in the hills when a soldier fatally shot him. Id. ¶ 141. Later that afternoon, as the convoy moved through a nearby village, the soldiers
During the military operations in September and October 2003, Bolivian soldiers killed 58 people, including women and children, and injured over 400 others. Id. ¶ 6. In light of the mounting civilian death toll, various government officials, including Vice President Carlos Mesa, denounced Defendants' policies. Id. ¶¶ 146-47. Vice President Carlos Mesa stated that he could not return to the government because "the defense of ethical principles, a moral vision, and a basic concept of the defense of life, prevent me from returning to be part of the current government of the nation." Id. ¶ 159. The mayor of La Paz, for his part, said that "a death machine has been installed in the government, and only the resignation of the head of state can stop it." Id. ¶ 149. But Defendant Lozada appeared on television and said that he would not resign; instead, he falsely claimed that Bolivia was "threatened by a massive subversive project, organized and financed by foreign sources in order to destroy Bolivian democracy." Id. ¶ 148.
On October 15, 2003, Defendant Berzaín commended the military for strictly following Defendants' orders. Id. ¶ 156. Two days later, however, the United States Embassy withdrew its support for Defendant Lozada and his government. Id. ¶ 164. He resigned later that day. Id. Both Defendants then fled to the United States, where they currently reside.
Plaintiffs initially sued Defendant Berzaín in this District but sued Defendant Lozada in the District of Maryland. The District of Maryland subsequently transferred its case to this Court, which consolidated the two cases for pretrial purposes. Plaintiffs then filed a seven-count consolidated complaint against Defendants for (1) extrajudicial killings under the TVPA and ATS; (2) crimes against humanity and (3) violation of the rights to life, liberty and security of person and freedom of assembly and association under the ATS; and (4) wrongful death, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, and (7) negligence under state law. See DE 77. Defendants moved to dismiss. See DE 81.
This Court—per then-District Judge Adalberto Jordan—issued two separate orders on Defendants' motion. In the first order, the Court dismissed without prejudice Plaintiffs' TVPA claims for failure to exhaust "adequate and available" remedies in Bolivia. See DE 124. In the second order, the Court rejected Defendants' jurisdictional challenges under the political question doctrine, the act-of-state doctrine, and head-of-state immunity. See DE 135.
As relevant here, Defendants were then granted leave to pursue an interlocutory appeal of the legal sufficiency of Plaintiffs' ATS claims. This Court stayed these proceedings pending the outcome. In the end, the Eleventh Circuit reversed and remanded with instructions to dismiss, holding that Plaintiffs had not alleged facts sufficient to state a plausible claim under the ATS. See Mamani v. Berzaín, 654 F.3d 1148 (11th Cir.2011).
On remand, this Court stayed further proceedings pending the Supreme Court's opinion in Kiobel v. Royal Dutch Petroleum, Co., ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). After Kiobel was decided on April 17, 2013, the Court lifted the stay and granted Plaintiffs leave to amend. Plaintiffs then filed the four-count Complaint that is presently before the Court, asserting claims for extrajudicial killings under the ATS (Count I) and the TVPA (Count II), crimes against humanity under the ATS (Count III), and wrongful death (Count IV) under state law. Defendants now challenge the Complaint on both jurisdictional and substantive grounds under Federal Rules of Civil Procedure 12(b)(1) and (b)(6).
Defendants move to dismiss Plaintiffs' TVPA claims for failure to exhaust local remedies. The Court reviews this aspect of Defendants' Motion as a jurisdictional challenge under Rule 12(b)(1). See Mohammed v. Rumsfeld, 649 F.3d 762, 775 (D.C.Cir.2011) ("[W]e view the failure to exhaust administrative remedies as jurisdictional."); see also Escarria-Montano v. U.S., 797 F.Supp.2d 21, 22 (D.D.C.2011) (granting motion to dismiss TVPA claims for failure to exhaust local remedies under Rule 12(b)(1)). Jurisdictional challenges may be either "facial" or "factual." Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.2009) (citation omitted). A "facial" challenge is "based solely on the allegations in the complaint." Id. A "factual" challenge, on the other hand, permits courts to "consider extrinsic evidence." Id. In doing so, courts are "free to weigh the facts and [are] not constrained to view them in light most favorable to [the plaintiff]." Id.
Additionally, Defendants also move to dismiss Plaintiffs' ATS claims for lack of subject-matter jurisdiction. In reviewing this aspect of Defendants' Motion, the Court merges "Rule 12(b)(1) scrutiny with that of Rule 12(b)(6)" to determine whether Plaintiffs have stated a plausible claim. Best Med. Belgium, Inc. v. Kingdom of Belgium, 913 F.Supp.2d 230, 236 (E.D.Va. 2012). If Plaintiffs fail to state a plausible claim under the ATS, then the Court lacks subject-matter jurisdiction. Id.; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1269 (11th Cir.2009) (affirming dismissal of ATS claims for lack of subject-matter jurisdiction because plaintiffs failed to state plausible claim), abrogated on other grounds by Mohamad v. Palestinian Auth., ___ U.S. ___, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).
To state a plausible claim for relief, Plaintiffs' Complaint must contain sufficient
The First Congress enacted the ATS as part of the Judiciary Act of 1789. The ATS vests "original jurisdiction" in federal district courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Here, Plaintiffs claim that Defendants violated the law of nations by orchestrating extrajudicial killings and crimes against humanity as part of a violent military campaign designed to quell public opposition to their political agenda in Bolivia. Defendants, however, argue that the Court lacks subject-matter jurisdiction over Plaintiffs' ATS claims under the Supreme Court's opinion in Kiobel v. Royal Dutch Petroleum Co., ___ U.S. ___, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), because all the relevant conduct occurred in Bolivia. After careful consideration, the Court agrees with Defendants.
In Kiobel, a group of Nigerians residing in the United States brought ATS claims against foreign corporations for allegedly aiding and abetting the Nigerian government in violating the law of nations in Nigeria. 133 S.Ct. at 1662-63. At issue was "whether and under what circumstances courts may recognize a cause of action under the [ATS], for violations of the law of nations occurring within the territory of a sovereign other than the United States." Id. at 1662. After examining the historical and jurisprudential context of the statute, the Supreme Court held that "the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption."
Following Kiobel, courts have consistently rejected ATS claims where all the relevant conduct occurred abroad. See Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 750-51, 762-63, 187 L.Ed.2d 624 (2014) (explaining that ATS claims based on conduct "occurring entirely outside the United States" were rendered "infirm" by Kiobel); see also Balintulo v. Daimler AG, 727 F.3d 174, 189 (2d Cir. 2013) (interpreting Kiobel as "bright-line" barring ATS claims based on entirely extraterritorial conduct); Ben-Haim v. Neeman, 543 Fed.Appx. 152, 155 (3d Cir.2013) (affirming dismissal of ATS claims because alleged tortious conduct "took place in Israel") (per curiam); Kaplan v. Cent. Bank of Islamic Republic of Iran, 961 F.Supp.2d 185, 205 (D.D.C.2013) (barring ATS claims based on "actions that took place in Israel and Lebanon"); Mohammadi v. Islamic Republic of Iran, 947 F.Supp.2d 48, 71 (D.D.C.2013) (dismissing ATS claims where alleged tortious conduct "occurred entirely within the sovereign territory of Iran"); Chen Gang v. Zhao Zhizhen, No. 04-cv-1146-RNC, 2013 WL 5313411, at *3 (D.Conn. Sept. 20, 2013) (dismissing ATS case as "paradigmatic `foreign cubed' case" involving "foreign defendant, foreign plaintiff, and exclusively foreign conduct," because parties were present in China and all relevant conduct occurred in China); Tymoshenko v. Firtash, No. 11-cv-2794 (KMW), 2013 WL 4564646, at *4 (S.D.N.Y. Aug. 28, 2013) (dismissing ATS claims as "impermissibly extraterritorial" where plaintiffs were foreigners, defendant was foreign corporation, and alleged tortious conduct occurred on foreign soil); Muntslag v. Beerens, No. 12-cv-07168 (TPG), 2013 WL 4519669, at *3 (S.D.N.Y. Aug. 26, 2013) ("Simply put, the conduct plaintiff alleges clearly occurred overseas and it is therefore not covered by the ATS."); Adhikari v. Daoud & Partners, No. 09-cv-1237, 2013 WL 4511354, at *7 (S.D.Tex. Aug. 23, 2013) ("Since all relevant conduct by [the defendants] occurred outside of the United States, summary judgment on Plaintiffs' ATS claim must be granted for [the defendants]."); Hua Chen v. Honghui Shi, No. 09-cv-8920 (RJS), 2013 WL 3963735, at *7 (S.D.N.Y. Aug. 1, 2013) (dismissing ATS claims brought by members of Falun Gong movement residing in United States against Chinese government official because "all of the abuses took place in China").
A few courts, on the other hand, have sustained ATS claims as "touching and concerning" the United States with "sufficient force" to displace the Kiobel presumption, but only in cases where at least some—if not a substantial portion—of the
Unlike those cases, however, none of the alleged tortious conduct in this case occurred in this country. Indeed, all the relevant conduct took place thousands of miles away in Bolivia. According to the Complaint, Defendants were citizens and residents of Bolivia at the time that they allegedly planned and executed the violent military campaign that led to the shooting deaths of Plaintiffs' relatives in Bolivia. Nowhere do Plaintiffs allege—let alone suggest—that any part of the campaign was planned or executed in the United States, much less directed at the United States, its employees, or its citizens. The circumstances of this case, therefore, are nothing like the circumstances in Lively, Mwani, Du Daobin, and Krishanti that the courts deemed sufficient to displace the presumption against extraterritoriality. In fact, it was not until after all the alleged tortious conduct occurred—when Defendants fled to the United States—that this case could even first be said to "touch" or "concern" our nation.
Even so, Plaintiffs insist that the purportedly "unique" circumstances of this case are sufficient to displace the Kiobel presumption—namely, "a suit against U.S. permanent residents, who cannot face trial elsewhere, where the foreign state has supported litigation in the United States."
Many courts have found in the wake of Kiobel that a defendant's presence or residence in the United States at the time of the litigation—whether as a corporate entity or natural person—does not displace
The same is true here. Although Defendants reside in the United States and the Bolivian government supports this litigation (an unsurprising fact given that the current administration is led by Defendant Lozada's longtime political opponent), Plaintiffs have not alleged that any relevant conduct took place in the United States. Rather, like Balintulo and the bevy of post-Kiobel cases cited above, all the relevant conduct underlying Plaintiffs' ATS claims occurred on foreign soil. The Court, therefore, lacks subject-matter jurisdiction over them.
Defendants next challenge Plaintiffs' claims for extrajudicial killings under the TVPA. Congress enacted the TVPA in 1992 in response to our nation's obligations under the United Nations' Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. See S. Rep. 102-249, at 3 (1991). According to the Senate Report to the TVPA, those obligations included adopting measures to ensure that "torturers and death squads . . . no longer have a safe haven in the United States" and instead "are held legally accountable for their acts." Id.; see also 134 Cong. Rec. H9692-02, 1988 WL 177020 (Oct. 5, 1988) (remarks of Rep. Rodino) (The TVPA will "send a message" to government officials worldwide "that coming to the United States will not provide them with an escape from civil accountability for their violations of the international law of human rights. . . . [N]o matter where the official torturer runs, he can not hide.").
To this end, § 2(a) of the TVPA creates a federal cause of action against anyone who, under authority or color of law of any foreign nation, subjects an individual to torture or extrajudicial killing. 28 U.S.C. § 1350 Note, § 2(a). Section 2(b), for its part, establishes an affirmative defense of "exhaustion of remedies." Id. § 2(b); see also Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir.2005) (exhaustion requirement is "affirmative defense"). Specifically, § 2(b) provides that "[a] court shall decline to hear a [TVPA] claim . . . if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." § 1350 Note, § 2(b). The burden of proving an exhaustion-of-local-remedies defense is on the defendant, and it is a "substantial" one.
Before discussing the merits of Defendants' first argument, a little history is necessary. In 2009, this Court—per Judge Jordan—dismissed Plaintiffs' TVPA claims without prejudice for failure to exhaust "adequate and available" remedies in Bolivia. Rojas Mamani v. Sánchez Berzaín, 636 F.Supp.2d 1326, 1332 (S.D.Fla. 2009). At that time, Plaintiffs had already received B$60,000 (Bolivianos) from the Bolivian government for "humanitarian assistance compensation" and "emergency and funeral expenses" under the 2003 Humanitarian Assistance Agreement.
Because Plaintiffs have since exhausted their remedies under Law No. 3955, that question is now ripe before the Court. To answer it, the Court looks to the TVPA's text and its legislative history, as well as general principles of international and United States law. See Barrueto v. Larios, 291 F.Supp.2d 1360, 1365-66 (S.D.Fla. 2003) (stating that the exhaustion requirement "`should be informed by general principles of international law'" as well as "`common-law principles of exhaustion as applied by courts in the United States'" (quoting S.Rep. No. 102-249, at 9-10 (1991))). Turning first to the TVPA's text, § 2(a) creates specific individual liability for damages; to be clear, it provides that "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects someone "to extrajudicial killing shall, in a civil action, be liable for damages." § 1350 Note, § 2(a) (emphases added). The goal of the statute on its face, then, is to redress specific individuals' wrongdoings by ensuring that their actions have legal consequences—to wit, that they literally "pay the price" for their wrongs. This reading of the statute, moreover, comports with the congressional intent behind the TVPA of ensuring that human rights violators do not have a "safe haven" in this country and instead "are held legally accountable for their acts." S. Rep. 102-249, at 3 (1991); see also W. Castro, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 Rutgers L.J. 635, 660 (Spring 2006) ("The principle of exhaustion might be interpreted as barring a remedy rather than requiring exhaustion, but such an interpretation would be a flat contradiction of the statutory language and the sparse legislative history in the Senate."). Construing § 2(b) against this backdrop, the Court concludes that the exhaustion-of-local-remedies requirement does not have any preclusive effect under the circumstances of this case; rather, it is merely a procedural hurdle that Plaintiffs must clear before seeking relief under the TVPA.
Customary international law also compels this conclusion. The international exhaustion-of-local-remedies rule prescribes that before resorting to an international court, "the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system." Interhandel (Switzerland v. United States), 1959 I.C.J. 6, 27 (March 1959). Here, however, it does not appear that Bolivia will have the opportunity to specifically redress Defendants' alleged human rights violations within its own judicial system
In addition to customary international law, general principles of United States law also compel the conclusion that Plaintiffs' prior recoveries from the Bolivian government do not preclude their TVPA claims against Defendants. For instance, the traditional concept of exhausting remedies typically does not preclude judicial relief, but rather postpones it until the prescribed alternative remedy has been exhausted. See, e.g., Woodford v. Ngo, 548 U.S. 81, 88-89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) ("The doctrine [of exhaustion of administrative remedies] provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.") (citations and internal quotation marks omitted); Castro supra, at 660 ("A citation in the Senate Report indicates that the TVPA's exhaustion requirement is intended to be analogous to the traditional concept of exhausting administrative remedies, which of course does not result in a complete bar.") (footnote omitted). Furthermore, under the "collateral-source rule," any compensation that a plaintiff receives for his or her loss from a collateral source is not credited against the defendant's liability for damages resulting from his wrongful act. Restatement (Second) of Torts § 920A(2) (1979); see, e.g., Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 381 (5th Cir.2012) ("`The collateral-source rule. . . bars a tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.'") (citation omitted); Westchester Specialty Ins. Servs., Inc. v. U.S. Fire Ins. Co., 119 F.3d 1505, 1513 n. 13 (11th Cir.1997) ("In tort cases, Georgia's collateral source rule prevents the reduction of a party's liability by payments or benefits that the injured party received from collateral sources."); Robert E. Owen & Assocs., Inc. v. Gyongyosi, 433 So.2d 1023, 1025 (Fla. 4th DCA 1983) ("The law appears well settled in Florida that a tortfeasor may not avail himself of payments from collateral sources such as . . . social legislation benefits.") (citations omitted). This rule ensures not only that victims are compensated for their losses, but also that wrongdoers are held accountable for their harmful actions. See 74 Am.Jur.2d Torts § 2 (2014) (American tort compensation system serves to shift the loss to responsible parties and deter wrongful conduct). Applying this principle here, it would be absurd to conclude that Defendants could avoid liability for their alleged wrongs merely because the Bolivian government saw fit to render some humanitarian assistance to Plaintiffs. To do so would, in effect, inappropriately shift the benefit of the Bolivian government's payments from Plaintiffs to Defendants. See Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 83 (3d Cir. 1983) ("There is no reason why the benefit [from a collateral source] should be shifted to the defendant, thereby depriving the plaintiff of the advantage it confers.") (citation
In sum, because the TVPA was enacted to ensure that human rights violators do not have a "safe haven" in our country and instead "are held legally accountable," S. Rep. 102-249, at 3 (1991), and because principles of both international and United States law compel the conclusion that Plaintiffs' claims are not barred in this instance, the Court concludes that Plaintiffs' prior recoveries from the Bolivian government—even if arguably "adequate" compensation for their losses—do not preclude them from seeking to hold Defendants liable under the TVPA.
Defendants next contend that Plaintiffs' TVPA claims should be dismissed because Plaintiffs purportedly have other "adequate and available" remedies in Bolivia that they have not yet exhausted. Specifically, Defendants contend that Plaintiffs may pursue civil lawsuits in Bolivia against seven of Defendants' subordinates convicted in Bolivia in 2011 of the "crime of genocide through mass killings" in connection with the tragic events in 2003. Compl. ¶¶ 166-70. As the Court previously observed, because these individuals have been criminally convicted, they are now amenable to civil suit in Bolivia.
Attempting to meet their "substantial" burden of proving the availability of additional adequate remedies in Bolivia, see Jean, 431 F.3d at 781, Defendants point to various media reports purportedly showing that "at least some of those injured and the legal representatives of at least some of the injured have filed a civil action" in Bolivia. Motion at 28 (emphases added). As an initial matter, the Court doubts that media reports, standing alone, are sufficient to satisfy Defendants' substantial burden. But even if mere media reports were sufficient, none indicate which of the nine Plaintiffs, if any, have the right to pursue civil actions against the seven subordinates. Nor do the media reports indicate whether such civil suits could result in enforceable judgments against anyone— much less these Defendants. The Court thus doubts whether such civil actions are, in fact, additional "adequate and available" remedies in Bolivia. Resolving this doubt in Plaintiffs' favor, the Court declines Defendants' invitation to once again dismiss Plaintiffs' TVPA claims for failure to exhaust additional remedies in Bolivia. See Enahoro v. Abubakar, 408 F.3d 877, 892 (7th Cir.2005) (Cudahy, J., dissenting) ("[T]o the extent that there is any doubt. . ., both Congress and international tribunals have mandated that . . . doubts [about exhaustion of remedies are to] be resolved in favor of the plaintiffs."); cf. In re Wal-Mart Wage & Hour Emp't Practices Litig., 490 F.Supp.2d 1091, 1119 (D.Nev. 2007) (stating that doubts about whether legal remedy is adequate "should be resolved in favor of the equitable jurisdiction") (citation and internal quotation marks omitted).
Having determined that the TVPA's exhaustion-of-local-remedies requirement does not impede Plaintiffs' TVPA claims for extrajudicial killings, the Court now turns to Defendants' contention that the claims are legally insufficient. The TVPA defines an "extrajudicial killing" as "a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 28 U.S.C. § 1350 Note, § 3(a).
Defendants contend that Plaintiffs' new formulation of their claims fares no better. They argue that the Complaint does not cure any of the pleading defects identified by the Eleventh Circuit and thus still fails to state plausible claims for extrajudicial killings. Plaintiffs, obviously, disagree. To resolve this debate and determine whether Plaintiffs' claims are legally sufficient, the Court follows the Eleventh Circuit's two-step approach in Mamani: (1) do the non-conclusory factual allegations in the Complaint plausibly suggest that Plaintiffs' relatives' deaths were extrajudicial killings; and (2) if so, do they also plausibly suggest that Defendants are secondarily liable for the killings?
To begin, Plaintiffs allege that eight-year-old Marlene Nancy Rojas Ramos was killed on September 20, 2003, during military operations in Warisata. According to Plaintiffs, Defendants ordered the military "to take Warisata" as part of their campaign to quell public opposition to their political agenda. Plaintiffs allege that soldiers were ordered to shoot "at anything that moved."
The same goes for the deaths of Roxana Apaza Cutipa, Marcelino Carvajal Lucero, Santos Gandarillas Ayala, and Teodosia Morales Mamani—four of Plaintiffs' family members killed on October 12, 2003, during
The same is true of the deaths of Jacinto Bernabé Roque, Arturo Mamani Mamani, and Raúl Ramón Huanca Márquez—three of Plaintiffs' relatives killed on October 13, 2003, during military operations near La Paz. According to the Complaint, soldiers were ordered to "shoot at any head that you see." Plaintiffs allege that soldiers chased unarmed civilians into the surrounding hillside with gunfire. Specifically, Plaintiffs allege that sixty-one-year-old Jacinto Bernabé Roque was trying to hide in the hills when a soldier fatally shot him. Plaintiffs similarly allege that forty-two-year-old Arturo Mamani Mamani was also in the hills when a soldier fatally shot him. Later that same day, as the military moved through a nearby village, Plaintiffs further allege that a soldier fatally shot Raúl Ramón Huanca Márquez as he tried to take cover behind a building. Viewing these allegations and the Complaint as a whole in the light most favorable to Plaintiffs, the Court finds that they plausibly suggest that these killings were also deliberate.
Having concluded that the Complaint plausibly suggests that Plaintiffs' relatives' deaths were extrajudicial killings, the Court next considers whether it also plausibly suggests that Defendants are secondarily liable for the killings under the doctrine of "command responsibility."
To establish the "superior-subordinate relationship" element, Plaintiffs must allege facts plausibly suggesting that Defendants had "effective control" over the Bolivian soldiers who killed Plaintiffs' relatives. Ford, 289 F.3d at 1290. This concept of "effective control" includes "a material ability to prevent or punish criminal conduct," regardless of how that control is exercised. Id. (citation and internal quotation marks omitted). Effective control, for instance, may be "de facto or de jure." Id. at 1291 (citation omitted). Where a commander has "de jure authority" over the perpetrators of the underlying crime, such authority is "prima facie evidence of effective control." Id. (citation omitted).
In this case, Plaintiffs allege that Defendants were the President and Minister of Defense of Bolivia at the time of Plaintiffs' relatives' deaths. As the President and Minister of Defense, Defendants were the highest commanders of the Bolivian military. As the highest commanders of the Bolivian military, Defendants had ultimate authority over the military, including the Bolivian soldiers who killed Plaintiffs' relatives. At the motion-to-dismiss stage, these allegations plausibly suggest that Defendants had, at a minimum, de jure authority over the soldiers who fired the fatal shots. Because de jure authority is prima facie evidence of "effective control," it is sufficient to establish the requisite "superior-subordinate relationship." See id.; cf. Doe v. Qi, 349 F.Supp.2d 1258, 1331-32 (N.D.Cal.2004) (superior-subordinate relationship was established where one defendant had supervisory authority over perpetrators, and another defendant "played a major policy-making and supervisory role in the policies and practices that were carried out") (internal quotation marks omitted); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1537-38 (N.D.Cal.1987) (concluding that military general could be held liable for his subordinates' brutal actions because he "held the highest position of authority" and "authorized, approved, directed and ratified" the brutality) (citations and internal quotation marks omitted), superseded by statute on other grounds as stated in Papa v. United States, 281 F.3d 1004 (9th Cir.2002).
To establish the knowledge element of command responsibility, Plaintiffs must allege facts plausibly suggesting that Defendants "knew or should have known, owing to the circumstances at the time," that their soldiers "had committed, were committing, or planned to commit" extrajudicial killings. Ford, 289 F.3d at 1288. Here, the gist of Plaintiffs' allegations is that—even before taking office— Defendants met and discussed a plan to use lethal force to quell public opposition to their political agenda.
These allegations, viewed in the light most favorable to Plaintiffs, are sufficient to plausibly suggest that Defendants knew or should have known, owing to the circumstances at the time, that their soldiers were committing extrajudicial killings. See, e.g., Lizarbe v. Rondon, 642 F.Supp.2d 473, 491 (D.Md.2009) (defendant had requisite knowledge of his troops' alleged atrocities where he attended meeting about operations, oversaw firing on villagers and burning of homes,
To establish the failure-to-act element of command responsibility, Plaintiffs must allege facts plausibly suggesting that Defendants "failed to prevent" the extrajudicial killings or "failed to punish" the soldiers afterwards. Ford, 289 F.3d at 1288. According to the Complaint, not only did Defendants direct the violent military campaign that led to Plaintiffs' relatives' deaths, but they also repeatedly ignored pleas to find peaceful solutions to the protests in the face of a mounting civilian death toll. Instead of investigating or punishing the death of the eight-year-old girl in Warisata, for example, Defendants praised the military for its operations and accepted full responsibility for the resulting violence. They then authorized further military operations in El Alto and south of La Paz, resulting in even more civilian deaths. Viewing these allegations and the Complaint as a whole in Plaintiffs' favor, they are sufficient to plausibly suggest that, at a minimum, Defendants failed to prevent Plaintiffs' relatives' deaths. See Qi, 349 F.Supp.2d at 1333-34 (defendants failed to prevent alleged abuses where they "actively encouraged and incited the repression").
At bottom, because the Complaint's factual allegations plausibly suggest that Plaintiffs' relatives' deaths were extrajudicial killings for which Defendants are secondarily liable under the doctrine of command responsibility, the Court finds that Plaintiffs have stated claims under the TVPA. Cf. Arce v. Garcia, 434 F.3d 1254, 1259 (11th Cir.2006) (affirming judgment holding Minister of Defense and Director General of El Salvador National Guard liable for torture committed by their soldiers under the command responsibility doctrine); Paul v. Avril, 901 F.Supp. 330, 335 (S.D.Fla.1994) (finding military ruler personally liable for "systematic pattern of egregious human rights abuses" carried out "under his instructions, authority, and control").
Finally, the Court must decide whether to exercise supplemental jurisdiction over Plaintiffs' state-law claims for wrongful death. See 28 U.S.C. § 1367(a). At this juncture, Plaintiffs insist that their state-law claims "arise under Bolivian law" because "this Court has already determined that the claims are governed by Bolivian law." Response at 50. In response, Defendants argue that assuming Bolivian law applies, Plaintiffs' wrongful death claims raise numerous "novel or complex" issues of foreign law and thus the Court should decline to exercise supplemental jurisdiction. Reply at 25. An example of a "novel or complex" issue, in Defendants' view, is "whether government officials responding to a civil uprising may be held liable for actions of an individual member of the military" under Bolivian law. Id. Beyond these bare assertions, however, Defendants do not cite (and the Court is unaware of) any record evidence supporting Defendants' contention that applying Bolivian law to Plaintiffs' state-law claims would involve "novel or complex"
For the foregoing reasons, it is hereby
It is hereby further
Id. (citation and internal quotation marks omitted).
S. Rep. 102-249, at 9 (1991) (footnotes omitted).
