Beanal v. Freeport-McMoRAN, Inc., Civil Action No. 96-1474.

• Citation: 969 F.Supp. 362
• Decision Date: 10 April 1997
• Docket Number: Civil Action No. 96-1474.
• Parties: Tom BEANAL, on behalf of himself and all others similarly situated v. FREEPORT-McMoRAN, INC., and Freeport-McMoRan Copper and Gold, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

Page 362

969 F.Supp. 362

Tom BEANAL, on behalf of himself and all others similarly situated v. FREEPORT-McMoRAN, INC., and Freeport-McMoRan Copper and Gold, Inc.

Civil Action No. 96-1474.

United States District Court, E.D. Louisiana.

April 10, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Martin E. Regan, Jr., Regan, Manasseh & Boshea, Oscar Augusto Araujo, Araujo & Associates, LLP, New Orleans, LA, for plaintiffs.

John Charles Reynolds, John Jerome Weigel, R. Patrick Vance, M. Richard Schroeder, Andrew Russell Lee, Mary L. Hassinger, Alida C. Hainkel, Jones, Walker, Waechter, Poitevant, Carrere & Denegre, John S. Keller, New Orleans, LA, for defendants.

DUVAL, District Judge.

Before the court is a motion to dismiss Plaintiff Tom Beanal's ("Beanal") claims against Freeport-McMoRan, Inc. and Freeport-McMoRan Copper & Gold, Inc. (collectively "Freeport"), which motion was heard with oral argument on October 23, 1996. Having reviewed the pleadings, the memoranda, and the applicable law, the court finds as follows for the reasons set forth below: (1) Plaintiff has standing to bring claims on his own behalf for cultural genocide of the Amungme tribe, certain human rights violations, and environmental claims, but lacks standing to bring claims on behalf of others for summary execution and disappearances; (2) Plaintiff has failed to state a claim for genocide in violation of the law of nations, pursuant to the Alien Tort Statute; (3) Plaintiff has failed to allege state action as required under the Alien Tort Statute because he failed to allege that Freeport acted under color of Indonesian law; (4) The Torture Victim Protection Act does not supersede or impliedly repeal the causes of action under the Alien Tort Statute for torture and extrajudicial killing committed in violation of the law of nations; (5) The Torture Victim Protection Act does not apply to corporations; and (6) Plaintiff has failed to state a claim for an environmental tort in violation of the law of nations.

The Parties

Plaintiff Tom Beanal ("Beanal") is a resident of Tamika, Irian Jaya within the Republic of Indonesia. He is a leader of the Amungme Tribal Counsel of Lambaga Adat Suku Amungme (LEMASA). He filed suit against Freeport on April 29, 1996, individually and on behalf of all other similarly situated. Plaintiff filed his first amended complaint on May 16, 1996. Since no class has been certified, Beanal is the lone plaintiff at this stage.

Defendants Freeport-McMoRan, Inc. and Freeport-McMoRan Copper & Gold, Inc. are Delaware corporations headquartered in New Orleans, Louisiana. Freeport owns an Indonesia-based subsidiary named P.T. Freeport Indonesia ("PT-FI").

Freeport operates the "Grasberg Mine," an open pit copper, gold and silver mine situated in the Jayawijaya Mountain in Irian Jaya, Indonesia. The mine allegedly encompasses approximately 26,400 square kilometers.

The Complaint

Beanal's first amended complaint alleges that Freeport has committed environmental torts, human rights abuses, and cultural genocide. Beanal states that the court has jurisdiction over this case based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332 ("§ 1332"), the Alien Tort Statute, 28 U.S.C. § 1350 ("§ 1350"), and the Torture Victim Protection Act of 1991, sec. 1, et seq., 28 U.S.C. § 1350 note. Freeport's motion to dismiss focuses solely on the latter basis for jurisdiction under § 1350, and does not mention Plaintiff's diversity based claims. Accordingly, the court does not address those claims for damages and specific relief, if any, based on diversity jurisdiction. Since the prerequisites for diversity jurisdiction appear to have been satisfied and are not contested, this court has subject matter jurisdiction so long as Plaintiff can state at least one claim for relief. The court could exercise supplemental jurisdiction over other claims against Freeport. 28 U.S.C. § 1367.

The court reviews the claims made pursuant to § 1350 to determine if a cause of action exists.¹ The current view of § 1350 is that it grants a federal cause of action as well as a federal forum in which to assert the claim. Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D.Mass.1995) (citations omitted). The Fifth Circuit has acknowledged the generally held view that section 1350 is appropriately used by individuals asserting claims for violation of the international law of human rights. De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1396, n. 16 (5th Cir.1985). Freeport appropriately moved to dismiss for failure to state a cause of action, under Rule 12(b)(6) of the Federal Rules of Procedure, rather than for lack of subject matter jurisdiction, under Rule 12(b)(1). Fed. R. Civ. Proc. 12(b)(1) and (6).

Summary of Freeport's Bases for Dismissal

Freeport asserts numerous reasons for the court to dismiss the claims for human rights violations and the environmental claims. First, Freeport argues that Beanal lacks standing to bring human rights claims in his own behalf or on behalf of others. As to the human rights claims asserted pursuant to the Alien Tort Statute, Freeport argues: (1) The Alien Tort Statute does not provide a private right of action; (2) Freeport is not a state actor; and (3) The TVPA supersedes the Alien Tort Statute for claims of torture and extrajudicial killings. As to the human rights violations asserted under the Torture Victim Protection Act ("TVPA"), Freeport argues that Beanal has failed to state a claim because: (1) The TVPA does not apply to corporations; (2) Beanal has not alleged that Freeport acted under color of foreign law; (3) Beanal failed to exhaust local remedies.

Freeport asserts five bases for dismissal of claims for international environmental torts brought under § 1350: (1) Beanal lacks standing to bring the environmental claims; (2) Beanal has failed to state a claim because environmental practices do not violate the law of nations; (3) The act of state doctrine bars Beanal's claims; (4) The local action doctrine mandates dismissal; and (5) The claims should be dismissed for failure to join an indispensable party, namely, the Republic of Indonesia.

The court discusses each issue in turn.

Standard for Motion to Dismiss

Freeport filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The court confirmed by Minute Entry that it would not consider any matters outside the pleadings in deciding this motion. Minute Entry of Oct. 17, 1996, Record, Doc. No. 95. Further, the plaintiff cannot amend his complaint by briefs submitted in opposition to the motion to dismiss. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984) cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985); Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.1995). Beanal's opposition memorandum presented summaries of the allegations which varied slightly from those contained in his amended complaint which the court disregards.

In deciding a Rule 12(b)(6) motion, the court must accept all material allegations of the complaint as true and construe them in favor of the non-moving party. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The court may only grant dismissal if it appears beyond doubt that the plaintiff can prove no facts in support of his claim which would entitle him to relief. Id., citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The court is not required to "conjure up unpled allegations" to save a complaint. Systems Contractors Corporation v. Orleans Parish School Board, et al., 1996 WL 547414, *1, (E.D.La. Sept. 24, 1996), citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988).

The court may treat a Rule 12(b)(6) dismissal motion as a motion for a more definite statement, even if the motion is not so styled. See Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1378, at 634 (1991); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541 (D.C.Cal.1987), reconsidered on other grounds, 694 F.Supp. 707 (N.D.Cal.1988). This would be appropriate, for example, in order for Plaintiff to state specific facts on which he bases his individual allegations of human rights violations. Forti, 672 F.Supp. at 1541. This way, the court can remain true to the notice pleading permitted under the federal rules and at the same time accurately assess the facts pled.

A. STANDING

Beanal stands as the lone plaintiff in this case since no class has been certified. Uniform Louisiana Local Rule 1.12B provides that a plaintiff must move for class certification within 90 days after filing a complaint, unless the period is extended for good cause by motion. Plaintiff Beanal filed this action on April 29, 1996 and moved for an extension of time within which to seek class certification on August 1, 1996, approximately four days after the ninety-day period had lapsed. Plaintiff's motion for more time was denied on August 6, 1996 and he did not seek reconsideration of said denial. Record, Doc. No. 56.

Beanal has standing to assert claims on his own behalf. Beanal does not purport to be an organizational representative. Beanal identifies himself as "a leader of the Amungme Tribal Council Lembaga Musyawarah Adat Suku Amungme (`LEMASA')," but does not appear to be suing on behalf of "LEMASA" since he sued "individually and on behalf of all other similarly situated class members (Indigenous People of Irian Jaya)." Unlike Beanal, LEMASA is not listed as a party and the complaint does not indicate that LEMASA is bringing suit.

Furthermore, Beanal has not alleged facts which would entitle him to bring claims on behalf of a third party. Typically, there are three instances in which third party standing is permissible: (1) where individuals can represent the interests of parties who are unlikely to be able to represent their own interests; (2) where there is a close...