Jean v. DorÉlien

• Decision Date: 01 December 2005
• Docket Number: No. 04-15666.,04-15666.
• Citation: 431 F.3d 776
• Parties: Marie Jeanne JEAN, in her individual capacity, and as parent and legal guardian for minors Vladimy Pierre and Michelda Pierre, Plaintiff-Appellant, Lexiuste Cajuste, Plaintiff-Appellant, v. Carl DORÉLIEN, Defendant-Appellee, Lump Sum Capital, LLC, a Maryland limited liability company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

431 F.3d 776

Marie Jeanne JEAN, in her individual capacity, and as parent and legal guardian for minors Vladimy Pierre and Michelda Pierre, Plaintiff-Appellant Lexiuste Cajuste, Plaintiff-Appellant, v. Carl DORÉLIEN, Defendant-Appellee Lump Sum Capital, LLC, a Maryland limited liability company, Defendant-Appellee.

No. 04-15666.

United States Court of Appeals, Eleventh Circuit.

December 1, 2005.

Dwayne Edward Williams, Holland & Knight, LLP, Miami, FL, Thomas Edward Bishop, Cynthia L. Hain, Stuart F. Williams, Holland & Knight, LLP, Jacksonville, FL, Matthew J. Eisenbrandt, Center for Justice & Accountability, San Francisco, CA, for Appellants.

Kurt R. Klaus, Jr., Coral Gables, FL, Scott M. Behren, Weston, FL, for Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and BARKETT, Circuit Judges, and MILLS^*, District Judge.

BARKETT, Circuit Judge:

Lexiuste Cajuste and Marie Jeanne Jean, both in her individual capacity and as parent and legal guardian for minors Vladimy and Michelda Pierre (collectively "Plaintiffs") appeal the district court's orders dismissing their claims under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note, Pub. L. No. 102-256 (1992), and the Florida Uniform Fraudulent Transfer Act ("FUFTA"), Florida Statutes § 726.101, et seq.

Lexiuste Cajuste alleges in a second amended complaint that Carl Dorélien, a Colonel in the Haitian Armed Forces and Chief of Personnel from 1992 to 1994 was responsible for subjecting him to torture, arbitrary detention, and cruel, inhuman and degrading treatment. Marie Jeanne Jean alleges that Dorélien is responsible for the extrajudicial killing of Michel Pierre, Jean's husband and the father of her children, Vladimy and Michelda. Both Plaintiffs additionally claim Dorélien has attempted to fraudulently transfer his assets, including $3.2 million Dorélien won in the Florida State Lottery, to Lump Sum Capital, LLC ("LSC") to protect those assets from a judgment Plaintiffs have against Dorélien in Haiti.

In three separate orders, the district court granted Dorélien's motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b). On April 6, 2004 the district court dismissed Cajuste's claim for failure to file within the ten-year statute of limitations applicable to the ATCA and TVPA claims.¹ Jean v. Dorélien, No. 03-20161, slip op. at 2 (S.D.Fla. Apr. 6, 2004). On April 21, 2004 the district court dismissed Jean's claims for failure to exhaust her remedies in Haiti.² Jean v. Dorélien, No. 03-20161, slip op. at 4 (S.D.Fla. Apr. 21, 2004).³ On September 28, 2004 the district court dismissed the remaining claims on the grounds that the Plaintiffs did "not object[ ] to dismissal of Defendant Lump Sum as an innocent stakeholder whose further involvement is unnecessary to the prosecution." Jean v. Dorélien, No. 03-20161, slip op. at 3 (S.D.Fla. Sept. 28, 2004). Because the district court erred in each of these decisions, we reverse and remand.

DISCUSSION

We review dismissals pursuant to Rule 12(b) de novo, taking all the material allegations of the complaint as true and liberally construing the complaint in favor of the Plaintiffs. Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1307 (11th Cir.1998). A court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Applying this standard, we consider each of the district court's rulings in turn.

A. Dismissal of Cajuste's Claims pursuant to the Statute of Limitations

Under the TVPA and the ATCA, Plaintiffs have ten years from the date the cause of action arose to bring suit for torture, extrajudicial killing and other torts committed in violation of the law of nations or a treaty of the United States. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154-55 (11th Cir.2005) (citation omitted); see also Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir.2002) (holding ten-year statute of limitations applies to the TVPA and ATCA); Doe v Islamic Salvation Front, 257 F.Supp.2d 115, 119 (D.D.C.2003) (same); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887, at *18-19 (S.D.N.Y. Feb. 28, 2002) (same). However, this statute of limitations is subject to the doctrine of equitable tolling. Cabello, 402 F.3d at 1154; see also Papa, 281 F.3d at 1012-13; Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir.1996).

The detention, beating and torture giving rise to Cajuste's claims occurred between April and June 1993. As the district court noted, Cajuste first filed his TVPA and ATCA claims on October 23, 2003, over ten years after the cause of action arose. Thus, the question before the district court was whether equitable tolling would permit Cajuste's claim. The district court ruled that it would not and dismissed Cajuste's complaint saying only that "equitable tolling should not be applied in this case." Jean, No. 03-20161, slip op. at 2 (S.D.Fla. Apr. 6, 2004). Because equitable tolling is clearly legally applicable to the claims, the question on appeal is whether "it appears beyond doubt that [Cajuste] can prove no set of facts in support of his claim" that the statute of limitations should be equitably tolled. Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir.1998).

Initially, we note that Cajuste has adequately stated a cause of action under the TVPA and ATCA. He alleges that because he was outspoken about the military regime which seized power during a 1991 coup, he was taken by police in April of 1993 to the police station and physically beaten with brass knuckles and fists on his back, abdomen, arms and face. As a result, he lost consciousness and remained in a cell without medical treatment, a toilet or room to move, and with little food or water for three days. After a United Nations official demanded Cajuste be removed from prison, he was moved to a military hospital, where he remained until approximately June 1, 1993.

Cajuste further alleges that from 1991 to 1994 the defendant Dorélien was a Colonel in the Haitian military and was Chief of Personnel or Assistant Chief of Staff in 1992, a position that made him responsible for military personnel, including the management, supervision, discipline and administration of military justice. As alleged in the second amended complaint, Dorélien remained in power, holding that position until September 1994, when the military regime was removed under threat from the United States. Dorélien, Cajuste claims, arrived in the United States sometime after he fled Haiti in September 1994.⁴ Thus, Cajuste claims that because Dorélien was in power until 1994 as well as not physically present in the United States, the statute of limitations must be tolled until at least 1994. We agree.

"Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)); Cabello, 402 F.3d at 1154-55; Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998).

First, pursuant to the TVPA, the statute of limitations must be tolled at least until Dorélien entered the United States and personal jurisdiction could be obtained over him. See S.Rep. No. 102-249, at 7 (stating that "only defendants over which a court in the United States has personal jurisdiction may be sued"). In considering the TVPA, the Senate Report stated:

The statute of limitations should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available.

S.Rep. No. 102-249, at 11 (1991); see also Hilao, 103 F.3d at 773 ("The Senate Report on the TVPA states that the ten-year statute is subject to equitable tolling, including for periods in which the defendant is absent from the jurisdiction. . . .").

Second, Cajuste has alleged sufficient facts to equitably toll the statute of limitations until Dorélien was removed from power. Cajuste claims: i) the "military regime was characterized by widespread state sponsored human rights violations, including abuses committed by the Haitian Armed Forces," resulting in the death of thousands of Haitians; ii) that he and the union organizations he worked with were "targets of human rights abuses committed by the Haitian Armed Forces"; iii) that he was "well known throughout Haiti for his unionist activities" advocating against the military regime and that the military forces, under Dorélien's control would sack cities and attack civilians it believed were not supporting the military regime; iv) that during this time, he, his mother, daughter, two brothers and a sister were living in Haiti under the military regime; v) that this campaign of repression and the threat of retaliation continued throughout the period of military rule and the regime did not lose its grip over Haiti until September 1994; and vi) that it was not until October 1994 that the democratically elected government regained power.

We find these allegations sufficient to support a claim of equitable tolling. Congress acknowledged that plaintiffs face unique impediments such as reprisals from death squads and immunity of high-ranking government officials in bringing human rights litigation. Litigation will often not be possible until there has been a regime change in the plaintiff's country of origin, after which the plaintiff can investigate and compile evidence without fear of reprisals against...