Mamani v. Berzaín
| Decision Date | 20 May 2014 |
| Docket Number | 08–21063–CIV.,Case Nos. 07–22459–CIV |
| Citation | 21 F.Supp.3d 1353 |
| Parties | Eloy Rojas MAMANI, et al., Plaintiffs, v. José Carlos Sánchez BERZAÍN, Defendant. Eloy Rojas Mamani, et al., Plaintiffs, v. Gonzalo Daniel Sánchez De Lozada Sánchez Bustamante, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Ira Jay Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt, P.A., Miami, FL, Jennifer M. Green, Beth Stephens, New York, NY, Paul L. Hoffman, Schonburn Desimone Seplow Harris & Hoffman LLP, Venice, CA, David Rudovsky, Kairys Rudovsky Messing & Feinberg LLP, Philadelphia, PA, Jeremy F. Bollinger, Michael C. Small, Steven H. Schulman, Akin Gump Strauss Hauer & Feld, Los Angeles, CA, Tyler Richard Giannini, International Human Rights Clinic Of Human Rights Program, Cambridge, MA, for Plaintiffs.
Eliot Pedrosa, Mark Paul Schnapp, Greenberg Traurig, Miami, FL, Greg S. Hillson, Kannon K. Shanmugam, Kristin A. Shapiro, Ana C. Reyes, Kevin M. Downey, Williams & Connolly, LLP, Washington, DC, Alan M. Dershowitz, Cambridge, MA, Glenn E. Goldstein, Greenberg Traurig, Fort Lauderdale, FL, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' JOINT MOTION TO DISMISS
THIS CAUSE is before the Court on Defendants' Joint Motion to Dismiss Plaintiffs' Second Amended Consolidated Complaint [DE 183 in Case No. 07–22459 and DE 167 in Case No. 08–21063] (“Motion”). The Court has carefully reviewed the Motion, Plaintiffs' Response and Defendants' Reply thereto, and is otherwise duly advised in the premises. For the reasons below, Defendants' Motion is granted in part and denied in part.
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.1 The crux of Plaintiffs' claims is that two former high-ranking Bolivian government officials—the former President, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante (“Defendant Lozada”), and the former Minister of Defense, José Carlos Sánchez Berzaín (“Defendant Berzaín”)—masterminded the violent military campaign that led to Plaintiffs' relatives' deaths, all in an effort to quell public opposition to their unpopular political agenda. Plaintiffs thus seek to hold Defendants personally liable for compensatory and punitive damages under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 Note, and state law.
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. ¶ 29.3 At that time, the Bolivian government faced widespread protests against its decision to privatize the water supply in a region of Bolivia. Id. To quash the public opposition, the government used force against the protestors, leading to several deaths and hundreds of injuries. Id. As a result of escalating protests over the violence, the government ultimately abandoned its privatization project. Id.
Several years later, in June 2002, Defendant Lozada was elected to a second term as President of Bolivia with 22% of the vote.4 Id. ¶ 32. He initially appointed Defendant Berzaín as Minister of the Presidency. Id. One of their administration's objectives was to export Bolivia's natural gas to the United States and Mexico through Chile—another widely unpopular idea. Id. ¶¶ 33–34. Both Defendants anticipated that this goal, like the prior administration's attempt to privatize the water supply, would likely trigger widespread public protests. Id. ¶ 34.
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 2.5 To this end, the Manual prescribed, among other things, the circumstances under in the military could use “force” in response to “acts of vandalism, crimes, roadblocks, marches, demonstrations, etc. carried out by subversive criminals.” Id. at 13.
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 of Mass and Shock”6 to, among other things, control civil disturbances, support the national police, and remove roadblocks.7 Id.
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.8 Id. ¶ 55. The next month, farmers, union members, and students began peaceful protests around the country, asserting various demands. Id. ¶ 56. Yet again the government refused to negotiate. Id. Rather, on September 9, 2003, Defendant Berzaín set up a “war room” to direct responses to the growing protests. Id. ¶ 57. Two days later, the Commander in Chief of the Armed Forces declared a “Red Alert” in Bolivia—the equivalent of a state of war in which the military is authorized to shoot and kill “enemy combatants.” Id. ¶ 58. No actual “enemy combatants,” however, were present in Bolivia at that time.9 Id. ¶ 79.
By mid-September, protestors had blocked the road to Sorata, a small town several hours from Bolivia's capital city of La Paz. Id. ¶¶ 58, 62. The roadblock stranded many people, including foreign tourists. Id. ¶ 62. In response, Defendant Berzaín, acting pursuant to Defendant Lozada's orders, directed the military to clear the road and rescue the foreign tourists. Id. ¶ 63. Defendants remained in telephone contact throughout the ensuing military operation. Id. ¶ 65.
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...
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