Kiobel v. Royal Dutch Petroleum Co., 02CIV7618KMWHBP.

• Citation: 456 F.Supp.2d 457
• Decision Date: 29 September 2006
• Docket Number: No. 02CIV7618KMWHBP.,02CIV7618KMWHBP.
• Parties: Esther KIOBEL, et al., Plaintiffs, v. ROYAL DUTCH PETROLEUM COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

456 F.Supp.2d 457

Esther KIOBEL, et al., Plaintiffs, v. ROYAL DUTCH PETROLEUM COMPANY, et al., Defendants.

No. 02CIV7618KMWHBP.

United States District Court, S.D. New York.

September 29, 2006.

COPYRIGHT MATERIAL OMITTED

Carey R. D'Avino, Keino R. Robinson, Stephen A. Whinston, Berger & Montague, P.C., Philadelphia, PA, for Plaintiffs.

Michael T. Reynolds, Rory O. Millson, Thomas G. Rafferty, Cravath, Swaine & Moore LLP, New York, NY, for Defendants.

ORDER

KIMBA M. WOOD, District Judge.

Nigerian Plaintiffs bring a putative class action pursuant to the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, against oil company Defendants. On March 18, 2003, Defendants moved to dismiss the Complaint ("First Motion to Dismiss") on the grounds that Plaintiffs' claims (1) are barred by the act of state doctrine; (2) are barred by the doctrine of international comity; and (3) fail to state claims on which relief can be granted. On March 11, 2004, Magistrate Judge Henry B. Pitman issued a Report and Recommendation ("March 11 Report"), recommending that the First Motion to Dismiss be denied in all respects. Defendants timely objected,

On May 17, 2004, Plaintiffs filed an amended complaint ("Amended Complaint"). Defendants thereafter filed a motion to strike the Amended Complaint or, in the alternative, to dismiss it ("Second Motion to Dismiss"). In the Second Motion to Dismiss, Defendants re-assert arguments raised in the First Motion to Dismiss and also argue that the Amended Complaint fails to state a claim, relying on an intervening Supreme Court decision, Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

Magistrate Judge Pitman, by Report and Recommendation dated August 15, 2005 ("August 15 Report"), recommended that the Second Motion to Dismiss be denied in all respects. Magistrate Judge Pitman relied on his earlier analysis of the arguments raised in the First Motion to Dismiss and declined to consider Defendants' arguments under Sosa. He did so because, in his view, Defendants' Sosa-related arguments were (1) raised for the first time in their reply brief and thus procedurally defective; and (2) raised "in a perfunctory manner that is of little assistance to the court." Defendants timely objected.

This Court then denied Defendants' motion to strike the Amended Complaint and decided to consider Defendants' Sosa-related arguments in support of their assertion that Plaintiffs fail to state a claim. The Court invited the parties to submit supplemental briefing.

Familiarity with the March 11 and August 15 Reports, as well as this Court's prior orders, is assumed. The Court analyzes both Reports and the reasoning contained therein, along with the supplemental briefing submitted by the parties. Most of Defendants' objections are reiterations of arguments already made to, and carefully considered by, Magistrate Judge Pitman. The Court must, however, consider Defendants' objections de novo. See Fed.R.Civ.P. 72(b). Having reviewed Defendants' objections to Magistrate Judge Pitman's recommendation that this action is not barred by the act of state doctrine or the doctrine of international comity, the Court is persuaded that those objections are without merit. The Court thus adopts in full those portions of Magistrate Judge Pitman's recommendations, analysis for which is laid out in pages 12-27 of the March 11 Report.

There remain, then, the most important objections raised by Defendants: that the March 11 Report errs in recommending that Plaintiffs' claims not be dismissed for failure to state a claim, and that the August 15 Report fails to consider the Supreme Court's opinion in Sosa, which was issued after the March 11 Report, and, Defendants argue, markedly changed the landscape of the law of ATS claims. Defendants urge that in light of Sosa, none of Plaintiffs' claims is viable.

Filartiga v. Pena-Irala

Prior to the Supreme Court's decision in Sosa, the controlling authority in this Circuit regarding the viability of claims under the ATS was Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). In Filartiga, the Second Circuit was asked to consider whether the ATS provides federal court jurisdiction for a Paraguayan citizen's torture claim against a former Paraguayan government official. The Second Circuit construed the ATS, "not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law." 630 F.2d at 887. The court therefore focused on whether "an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations." Id. at 880. The court ultimately held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights." Id. at 878.

In Filartiga, the court relied upon two Supreme Court decisions that articulated the appropriate sources of international law: United States v. Smith, 5 Wheat. 153, 18 U.S. 153, 5 L.Ed. 57 (1820) and The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900). Smith held that the law of nations may be ascertained by consulting (1) "the works of jurists, writing professedly on public law;" (2) "the general usage and practice of nations;" or (3) "judicial decisions recognizing and enforcing that law." 630 F.2d at 880 (quoting Smith, 18 U.S. at 160-61, 5 Wheat. 153). Habana held that "where 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." Id. at 880-81 (quoting Habana, 175 U.S. at 700, 20 S.Ct. 290). The Filartiga court also read the Habana decision as having held that "[c]ourts must interpret international law not as it was in 1789, [when the ATS was enacted,] but as it has evolved and exists among the nations of the world today." Id. at 881.

The Second Circuit emphasized in Filartiga that there is a high bar for holding that a rule occupies the status of wellsettled international law such that a district court may exercise jurisdiction under the ATS. See id. ("The requirement that a rule command the `general assent of civilized nations' to become binding upon them all is a stringent one."). "It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute." Id. at 888.¹

The Filartiga court relied on several sources, including United Nations declarations, international treaties, and national constitutions, in concluding that torture by a state official is prohibited by the law of nations.² Id. at 881-84. The court did not specify whether any of these sources standing alone is sufficient to establish the existence of well-settled inter national law. See id. at 884 ("Having examined the sources from which customary international law is derived the usage of nations, judicial opinions and the work of jurists we conclude that official torture is now prohibited by the law of nations.").

Sosa v. Alvarez-Machain

The legal questions at issue in Filartiga were addressed by the Supreme Court twenty-four years later in Sosa. In Sosa, Humberto Alvarez-Machain ("Alvarez"), a Mexican physician, had brought suit against a Mexican citizen for arbitrary detention—an alleged violation of the law of nations—under the ATS. Alvarez had been detained for less than one day, but he argued that even that short a detention was actionable as "officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances." 542 U.S. at 736, 124 S.Ct. 2739. The Sosa Court rejected that argument, and held that "a single detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." Id. at 738, 124 S.Ct. 2739.

The Sosa court explicitly declined to adopt specific criteria for determining when a court has jurisdiction over a claim pursuant to the ATS. See id. at 731, 124 S.Ct. 2739 ("[w]hatever the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350 . . . "). The Court did, however, state some of the criteria for rejecting such a claim: "the federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted." Id. The Court recognized how difficult it is to gauge whether a norm has sufficiently definite content and acceptance among civilized nations: "although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone's three common law offenses."³ Id. at 737, 124 S.Ct. 2739. The Court then states, confusingly, that whether a norm is sufficiently definite turns in part on the practical consequences of allowing suit based upon a breach of that norm:⁴ "the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." Id. at 732-33, 124 S.Ct. 2739.

The Court cited approvingly Habana's articulation of the appropriate sources of international law (as had the Second Circuit in Filartiga), and characterized these sources as ones...