Chang v. Republic of S. Sudan

• Decision Date: 03 March 2023
• Docket Number: Civil Action 21-1821 (RC)
• Parties: NATALIE CHANG, et al., Plaintiffs, v. REPUBLIC OF SOUTH SUDAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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NATALIE CHANG, et al., Plaintiffs,
v.
REPUBLIC OF SOUTH SUDAN, et al., Defendants.

Civil Action No. 21-1821 (RC)

United States District Court, District of Columbia

March 3, 2023

Re Document No.: 25

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO DISMISS

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Natalie Chang, Irene Scott, Jeana Graham, Jane Doe, Gian Libot, and Mary Roe (collectively, “Plaintiffs”)^[1] bring suit against Defendants the Republic of South Sudan and the South Sudan Ministry of Defence and Veteran Affairs (together, “South Sudan” or “Defendants”) for injuries suffered due to a horrific attack perpetrated by South Sudanese armed forces in July 2016. Defendants have filed a motion to dismiss Plaintiffs' complaint for lack of subject matter and personal jurisdiction, contending that South Sudan and its political subdivisions are immune to suit in the United States under the Foreign Sovereign Immunities Act (“FSIA”). For the reasons detailed below, the Court grants Defendants' motion to dismiss.

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II. BACKGROUND

A. Factual Background^[2]

On July 11, 2016, members of South Sudan's armed forces, including soldiers of the Sudan People's Liberation Army (“SPLA”), perpetrated a horrific assault on U.S. and international aid workers at a humanitarian aid compound in South Sudan called the Terrain Hotel. Compl. ¶ 1, ECF No. 1. At the time of the attack, Plaintiffs were employees of Internews, an American non-governmental organization based at the Terrain Hotel that ran international development programs in support of an independent media in South Sudan. Id. ¶ 2. Over the course of nearly five hours, Plaintiffs were terrorized and physically assaulted by the attackers. Id. ¶¶ 4-5. Natalie Chang, Irene Scott, Jeana Graham, Jane Doe, and Mary Roe were subjected to rape and other forms of sexual violence, in addition to being beaten and psychologically traumatized. Id. ¶¶ 4, 49-92. One of their colleagues, John Gatluak, was executed. Id. ¶ 4. Gian Libot, who was struck with the butt of a rifle by a soldier, witnessed Jane Doe's assault and John Gatluak's execution. Id. ¶¶ 4, 98-103. Although South Sudan evacuated Chang, Graham, Doe, and Libot from the compound several hours after the attack began, Scott, Roe, and others were left behind and not evacuated until the following morning. Id. ¶¶ 5, 107.

Both South Sudan's Investigation Committee and the United Nations' Independent Special Investigation concluded that government soldiers had committed the attack. Id. ¶¶ 10812. Further, an SPLA General Court Martial convicted ten “SPLA personnel” of-among other

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charges-murder, rape, and assault for the attack. Id. ¶¶ 7, 115. The court martial then found the South Sudan Ministry of Defence and Veterans Affairs civilly liable for the attack. Id. ¶¶ 3, 116. Though it awarded the owners of the Terrain Hotel $2.25 million in damages for the property damage and lost earnings, it awarded five of the victims of sexual assault and rape- including Chang, Scott, and Graham-only $4,000 each. Id. ¶¶ 117, 127. Plaintiffs have sought to appeal the damages portion of the judgment, but the Supreme Court of South Sudan has yet to hear the appeal because the case file has gone missing. Id. ¶¶ 119-20. Despite years of negotiation with the Government of South Sudan, and though South Sudan has paid the damages owed to the Terrain Hotel owners, South Sudan has not paid Plaintiffs any compensation. Id. ¶¶ 121-27.

B. Procedural Background

Plaintiffs now seek to bring suit against Defendants in this Court and raise claims of assault, battery, intentional infliction of emotional distress, and negligent retention, training, and supervision. Id. ¶¶ 142-53, 159-62, 164-68. Chang, Scott, Graham, Doe, and Roe each seek $15 million for pain and suffering and $8 million in economic damages and lost earnings, or a greater amount to be proved at trial. Id. ¶¶ 170-74. Libot seeks $5 million for pain and suffering and $3 million in economic damages and lost earnings, or a greater amount to be proved at trial. Id. ¶ 175.

Plaintiffs claim that South Sudan has waived its sovereign immunity to suit under the FSIA. Id. ¶ 12. Specifically, according to Plaintiffs, Plaintiffs on March 22, 2021 sent a demand letter and draft complaint to Counsel Biong Pieng Kuol, Advocate General of South Sudan in the Ministry of Justice and “the chief negotiator for South Sudan in this case,” via WhatsApp. Id. ¶ 128; Pls.' Opp'n to Defs.' Mot. to Dismiss (“Pls.' Opp'n”) at 5, ECF No. 27. Counsel Kuol then

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responded, “Okay, well received.” Compl. ¶ 128. On April 6, 2021, Counsel Kuol “informed Plaintiffs' local counsel in South Sudan that the Plaintiffs should bring their claims so that the case can be resolved.” Id. ¶ 11. Then, on June 26, 2021, “the Legal Adviser to Salva Kiir, the President of South Sudan, reiterated to Plaintiffs' local counsel that Plaintiffs should bring their claims.” Id. On July 8, 2021, counsel for Plaintiffs sent copies of the Complaint and exhibits to Counsel Kuol via WhatsApp, stating:

I look forward to continuing our dialogue so that we can reach a just and speedy resolution to this matter. Please confirm if you agree to service of documents, process, and correspondence via email. This has been a convenient means of communication for all parties so far, and we hope that it can continue

Pls.' Opp'n at 6 (citation omitted). Counsel Kuol then responded, “Okay. The Minister will find out the matter because we have letters of request to the money with the Presidential Affairs Minister.” Id. at 7 (citation omitted). On August 23, 2021, Plaintiffs purportedly served process on Counsel Kuol by email and provided a copy on WhatsApp. Id. Counsel Kuol replied, “Okay. Let me print out the documents and share it with the Minister.” Id. (citation omitted).

Plaintiffs filed their Complaint in the instant matter on July 8, 2021. Compl. at 1. On November 5, 2021, following Defendants' failure to file an Answer or other response to Plaintiffs' Complaint, the Clerk of Court placed an entry of default on the docket. Defs.' Mot. to Set Aside Default at 1, ECF No. 22. Upon consideration of Defendants' unopposed motion to set aside the default, the Court vacated the entry of default and ordered Defendants to respond to Plaintiffs' Complaint by March 28, 2022. Minute Order of Jan. 27, 2022. Defendants did not timely respond to Plaintiffs' Complaint as directed, and...