Forti v. Suarez-Mason

Decision Date06 October 1987
Docket NumberNo. C-87-2058 DLJ.,C-87-2058 DLJ.
Citation672 F. Supp. 1531
CourtU.S. District Court — Northern District of California
PartiesAlfredo FORTI and Debora Benchoam, Plaintiffs, v. Carlos Guillermo SUAREZ-MASON, Defendant.

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Kathy J. Bagdonas and Paul T. Friedman of Morrison & Foerster, San Francisco, Cal., and David Cole of the Center for Constitutional Rights of New York, for plaintiffs.

Jack Hill and David Nickerson, San Francisco, Cal., for defendant.

MEMORANDUM DECISION AND ORDER

JENSEN, District Judge.

On July 22, 1987 this Court heard oral argument on defendant's motions to dismiss pursuant to Rule 12(b)(1) & (6) of the Federal Rules of Civil Procedure and for a stay of proceedings. Plaintiffs Alfredo Forti and Debora Benchoam appeared through Kathy J. Bagdonas, Paul T. Friedman, and David Cole. Defendant Carlos Guillermo Suarez-Mason appeared through Jack Hill and David Nickerson.

On the basis of suggestions raised in the parties' moving papers and made at the hearing, the Court requested supplemental briefing on certain choice-of-law issues. Having now considered all of the parties' submissions in support of and opposition to defendant's motions, the Court hereby denies defendant's motion to dismiss and grants a temporary stay. An explanation of the Court's ruling follows.

I. FACTS

This is a civil action brought against a former Argentine general by two Argentine citizens currently residing in the United States. Plaintiffs Forti and Benchoam sue on their own behalf and on behalf of family members, seeking damages from defendant Suarez-Mason for actions which include, inter alia, torture, murder, and prolonged arbitrary detention, allegedly committed by military and police personnel under defendant's authority and control. As will be discussed more fully below, plaintiffs predicate federal jurisdiction on 28 U.S.C. §§ 1350 (the "Alien Tort Statute") and 1331. They claim jurisdiction for their various state-law claims under the doctrine of pendent and ancillary jurisdiction.

A brief recitation of the procedural background and historical context of this action is useful for a complete understanding of the issues raised by defendant's motion to dismiss. The events described and discussed in this opinion are drawn from the allegations of the Complaint and representations in the parties' moving papers. The Court makes no findings of fact with respect to these events.

A. Background

Plaintiffs' action arises out of events alleged to have occurred in the midto late 1970s during Argentina's so-called "dirty war" against suspected subversives.1 In 1975 the activities of terrorists representing the extremes of both ends of the political spectrum induced the constitutional government of President Peron to declare a "state of siege" under Article 23 of the Argentine Constitution.2 President Peron also decreed that the Argentine Armed Forces should assume responsibility for suppressing terrorism. The country was accordingly divided into defense zones, each assigned to an army corps. In each zone the military was authorized to detain suspects and hold them in prison or in military installations pursuant to the terms of the "state of siege." Zone One — which included most of the Province of Buenos Aires and encompassed the national capital — was assigned to the First Army Corps. From January 1976 until January 1979 defendant Suarez-Mason was Commander of the First Army Corps.

On March 24, 1976 the commanding officers of the Armed Forces seized the government from President Peron. The ruling military junta continued the "state of siege" and caused the enactment of legislation providing that civilians accused of crimes of subversion would be judged by military law. See, e.g., Law 21.264. In the period from 1976 to 1979, tens of thousands of persons were detained without charges by the military, and it is estimated that more than 12,000 were "disappeared," never to be seen again. See generally Nunca Mas: The Report of the Argentine National Commission on the Disappeared (1986).

In January 1984 the constitutionally elected government of President Raul Alfonsin assumed power. The Alfonsin government commenced investigations of alleged human rights abuses by the military, and the criminal prosecution of certain former military authorities followed. The government vested the Supreme Council of the Armed Forces with jurisdiction over the prosecution of military commanders. Summoned by the Supreme Council in March 1984, defendant failed to appear and in fact fled the country. In January of 1987 Suarez-Mason was arrested in Foster City, California pursuant to a provisional arrest warrant at the request of the Republic of Argentina. While defendant was in custody awaiting an extradition hearing he was served with the Complaint herein.3

Because of their importance to the issues raised by the dismissal motion, the Court provides a detailed recitation of plaintiffs' allegations.

B. Allegations of the Complaint

The Complaint alleges claims for damages based on acts allegedly committed by personnel within the defense zone under General Suarez-Mason's command. According to the Complaint, police and military officials seized plaintiff Alfredo Forti, along with his mother and four brothers, from an airplane at Buenos Aires' Ezeiza International Airport on February 18, 1977. Compl. ¶¶ 3, 10. The entire family was held at the "Pozo de Quilmes" detention center, located in a suburb of Buenos Aires in Buenos Aires Province. Id. ¶¶ 3, 11. No charges were ever filed against the Fortis. After six days the five sons were released, dropped blindfolded on a street in the capital. The mother, Nelida Azucena Sosa de Forti, was not released, and remains "disappeared" to this day, despite efforts on behalf of the Forti family by the Interamerican Commission on Human Rights and several members of the United States Congress. Id. ¶¶ 3, 11-12, 14.

When seizing the six members of the Forti family at Ezeiza Airport, the authorities also allegedly seized all of the family's belongings, which included several thousand dollars in cash. To date, only some personal effects have been returned. Id. ¶ 13.

An Argentine court which adjudicated criminal liability of the nine former junta members has attributed direct responsibility for the February 18, 1977 seizure of the Forti family to the First Army Corps. Id. ¶ 16.

As to plaintiff Debora Benchoam, the Complaint alleges that Benchoam and her brother were abducted from their Buenos Aires bedroom before dawn on July 25, 1977 by military authorities in plain clothes. Id. ¶¶ 4, 17. At the time Benchoam was sixteen years old and her brother, seventeen.

Benchoam was blindfolded and taken first to an unidentified house and later to a police station in Buenos Aires, where she was held incommunicado for a month. Id. ¶ 18. For the first week of detention Benchoam was kept blindfolded with her hands handcuffed behind her back, and was provided neither food nor clothing. A guard attempted to rape her. Id.

On August 28, 1977, allegedly at the direction of defendant Suarez-Mason, Benchoam was transferred to Devoto Prison in Buenos Aires. Here she was imprisoned, without charge, for more than four years. Id. ¶ 19. In 1979 or 1980 plaintiff obtained a writ of habeas corpus, but the writ was reversed on appeal. Finally, as a result of international and domestic appeals, plaintiff was granted the "right of option" and allowed to leave the country. She was released from prison on November 5, 1981 and came to the United States as a refugee. Id. ¶¶ 8, 19.

The military personnel also abducted plaintiff's seventeen-year-old brother on July 25, 1977. Id. ¶¶ 4, 20. The brother's body was returned to the Benchoam family the following day. He had died of internal bleeding from bullet wounds, and his face was "severely disfigured" from blows. Id. ¶ 20.

Additionally, plaintiff's abductors allegedly stole jewelry, cash, and clothing valued at $20,000, none of which has ever been returned. Id. ¶ 21.

Although the individual acts are alleged to have been committed by military and police officials, plaintiffs allege that these actors were all agents, employees, or representatives of defendant acting pursuant to a "policy, pattern and practice" of the First Army Corps under defendant's command. Plaintiffs assert that defendant "held the highest position of authority" in Buenos Aires Province; that defendant was responsible for maintaining the prisons and detention centers there, as well as the conduct of Army officers and agents; and that he "authorized, approved, directed and ratified" the acts complained of. Id. ¶¶ 23-24.

Plaintiff Forti filed a criminal complaint against defendant and others in November 1983, shortly after the election of President Alfonsin. That complaint has not yet been adjudicated as against Suarez-Mason. Id. ¶ 15. Plaintiff Benchoam has apparently not filed criminal charges against defendant.4 Although both plaintiffs retain their Argentine citizenship, both reside currently in Virginia. Id. ¶¶ 7-8. Plaintiffs predicate federal jurisdiction principally on the "Alien Tort Statute," 28 U.S.C. § 1350, and alternatively on federal question jurisdiction, 28 U.S.C. § 1331. Additionally, they assert jurisdiction for their common-law tort claims under principles of pendent and ancillary jurisdiction. Id. ¶ 5.

Based on these above allegations, plaintiffs seek compensatory and punitive damages for violations of customary international law and laws of the United States, Argentina, and California. They press eleven causes of action. Both allege claims for torture; prolonged arbitrary detention without trial; cruel, inhuman and degrading treatment; false imprisonment; assault and battery; intentional infliction of emotional distress; and conversion. Additionally Forti claims damages for "causing the disappearance of individuals," and Benchoam asserts...

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