Bowoto v. Chevton Corp., No. C 99-02506 SI.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Susan Illston
• Citation: 557 F.Supp.2d 1080
• Parties: Larry BOWOTO, et al., Plaintiffs, v. CHEVRON CORPORATION, et al., Defendants.
• Docket Number: No. C 99-02506 SI.
• Decision Date: 30 May 2008

557 F.Supp.2d 1080 Larry BOWOTO, et al., Plaintiffs,
v.
CHEVRON CORPORATION, et al., Defendants. No. C 99-02506 SI. United States District Court, N.D. California. May 30, 2008.

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Caroline Nason Mitchell, Robert Allan Mittelstaedt, Adam Richard Sand, Esq., David L. Wallach, Elaine Wallace, Katherine Salo Ritchey, Lara T. Kollios, Noel Rodriguez, Jones Day, Eric Danoff, Emard Danoff Port Tamulski & Paetzold LLP, Jordan Cunningham, Martha A. Boersch, Attorneys at Law, San Francisco, CA, David M. Bays, Huston, TX, Joseph P. Shereda, Chicago, IL, Lucas W. Andrews, Atlanta, GA, Noel J. Francisco, Washington, DC, for Defendants.

Robert Allan Mittelstaedt, Jones Day, Michael Steven Sorgen, Law Offices of Michael Sorgen, Cindy Ann Cohn, Electronic Frontier Foundation, Elizabeth C. Guarnieri, Green Welling LLP, Richard Roy Wiebe, Law Office of Richard R. Wiebe, San Francisco, CA, Anne Kendrick Richardson, Lauren Teukolsky, Barbara Enloe Hadsell, Hadsell Stormer Keeny Richardson & Renick, LLP, Bert Voorhees, Traber & Voorhees, Patrick Mark Dunlevy, Law Office of Hadsell & Stormer, Inc., Pasadena, CA, Jennifer M. Green, New York, NY, Jose Luis Fuentes, Siegel & Yee, Oakland, CA, Judith Brown Chomsky, Law Offices of Judith Brown Chomsky, Elkins Park, PA, Marco Simons, Richard Lawrence Herz, Earthrights International, Washington, DC, Paul Lindsey Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, Robert Dexter Newman, Jr., Los Angeles, CA, for Plaintiffs.

ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE REMAINING FEDERAL LAW CLAIMS

SUSAN ILLSTON, District Judge.

On March 21, 2008, the Court heard argument on defendants' motion for summary judgment on plaintiffs' remaining federal law claims under the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"). Having considered the arguments of counsel and the papers submitted, and for good

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cause shown, the Court hereby GRANTS IN PART and DENIES IN PART defendants' motion.

BACKGROUND

Plaintiffs filed this suit in 1999, seeking to recover for a series of brutal attacks that plaintiffs allege occurred in Nigeria in mid-1998 and early 1999. Plaintiffs alleged violent attacks at the Chevron Parabe oil platform in May 1998 and at the villages of Opia and Ikenyan in January 1999. The parties vigorously dispute most of the facts of this case; the Court described the parties' versions of the relevant facts in great detail in its August 13, 2007 Order (Docket No. 1640), which addressed defendants' motion for summary judgment on plaintiffs' claims 10 through 17. Plaintiffs' council have recently filed voluntary dismissals of the claims related to the January 1999 attacks at Opia and Ikenyan, leaving only the Parabe oil platform incident at issue. The Court briefly summarizes the facts related to the Parabe incident here.

The alleged attack occurred on May 28, 1998, at a Chevron Nigeria Ltd. ("CNL") offshore drilling facility known as the "Parabe platform," which consisted of an oil-drilling platform and an attached construction barge. According to plaintiffs, on May 25, 1998, more than 100 representatives from a community near the Parabe platform, including plaintiffs Larry Bowoto and Bassey Jeje, and decedents Bola Oyinbo and Arolika Irowarinun, traveled to the barge. These individuals occupied the platform and barge until May 28, 1998. According to defendants, after three days of occupation, CNL decided to seek assistance from the Nigerian Government Security Forces ("GSF"). On May 27, 1998, CNL asked the head of the GSF in Delta State, Captain Ita, to intervene. On the evening of May 27, according to defendants, Captain Ita sent Lieutenant Sadiq to meet with CNL. The following day, Lieutenant Sadiq and his soldiers flew to the barge and platform in CNL helicopters, to oust the protestors. Plaintiffs allege that Irowarinun was killed, and Jeje and Bowoto were shot, when this occurred. Plaintiffs also allege that Oyinbo was taken into custody by the GSF and tortured in the days following the event. Oyinbo died three years later in Lagos, Nigeria.

The instant lawsuit alleges that Chevron, acting through CNL, its Nigerian subsidiary, paid the Nigerian military to carry out the attacks on Parabe. In response to prior motions, this Court dismissed plaintiffs' RICO, Torture Victim Protection Act, and Crimes Against Humanity claims. Defendants now bring a motion for summary judgment on plaintiffs' remaining federal law claims brought under the ATS: summary execution (1st claim), torture (4th claim), cruel, inhuman, or degrading treatment (6th claim), deprivation of the rights to life, liberty and security of person and peaceful assembly and association (7th claim), and consistent pattern of gross violations of human rights (8th claim). See Ninth Amended Complaint at 27-33.

LEGAL STANDARD

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party

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must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See T.W. Elec. Service, Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. See Fed. R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

DISCUSSION

Defendants' motion for summary judgment relies on a number of general arguments contesting the application of the ATS to plaintiffs' remaining federal claims. First, defendants argue that plaintiffs' claims cannot be brought under the ATS— a federal statute that permits jurisdiction over certain common law claims derived from the law of nations—because they are preempted by subsequently-enacted statutory causes of action. Second, defendants contend that a Death on the High Seas Act ("DOHSA") claim is the only proper cause of action for plaintiffs' claim of summary execution. Third, defendants argue that federal common law, derived from the law of nations, has no extraterritorial application. The fourth argument asserts, in the alternative, that the alleged norms are not actionable under the ATS because they do not meet the criteria for common law claims derived from the law of nations as described in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Finally, defendants raise other potential bars to plaintiffs' claims involving exhaustion of local remedies, choice of law, and the statute of limitations.

I. Whether the Torture Victim Protection Act and DOHSA supplant the ATS

The ATS, enacted in 1789, provides district courts with "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. The ATS does not create a substantive cause of action but instead provides jurisdiction for a "narrow set of common law actions derived from the law of nations." Sosa, 542 U.S. at 721, 124 S.Ct. 2739. Starting from the premise that plaintiffs' ATS claims arise out of federal common law, defendants assert that Congress has subsequently enacted legislation that occupies the field and supplants the federal common law. Defendants argue that the Torture Victim Protection Act ("TVPA"), enacted in 1992, occupies the field for summary execution and torture and therefore plaintiffs' federal common law claims for these actions should fall under the TVPA and not the ATS. In addition, defendants argue that DOHSA occupies the field for deaths occurring on the high seas and therefore the death of Arolika Irowarinun on the Parabe platform is actionable under DOHSA and not the ATS.

A. Application of the TVPA to plaintiffs' summary execution claim

Defendants contend that plaintiffs' cause of action for torture and summary

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execution¹ can only be brought under the TVPA, not the ATS. Because this Court previously ruled that the TVPA does not apply to corporations, August 22, 2006 Order at 2 (Docket No. 1202), defendants assert that plaintiffs' claims for torture and summary execution should be dismissed. The Court disagrees.

Section 2 of the TVPA provides the following cause of action:

(a) An individual who, under actual or apparent authority, or color of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.

28 U.S.C. § 1350, note § 2(a). Defendants, relying on the Seventh Circuit ruling in Enahoro v. Abubakar, 408 F.3d 877, 885-86 (7th Cir.2005), argue...