Corrie v. Caterpillar, Inc.

• Decision Date: 22 November 2005
• Docket Number: No. C05-5192FDB.,C05-5192FDB.
• Citation: 403 F.Supp.2d 1019
• Parties: Cynthia CORRIE, et al., Plaintiffs, v. CATERPILLAR, INC., a foreign corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

Page 1019

403 F.Supp.2d 1019

Cynthia CORRIE, et al., Plaintiffs, v. CATERPILLAR, INC., a foreign corporation, Defendant.

No. C05-5192FDB.

United States District Court, W.D. Washington.

November 22, 2005.

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Davida Finger, Gwynne L. Skinner, Public Interest Law Group, Seattle, WA, Jennifer M. Green, New York, NY, for Plaintiffs.

David G. Meyer, Joanne E. Caruso, Richard J. Burdge, Jr., Howrey, Los Angeles, CA, James L. Magee, Graham & Dunn, Seattle, WA, Robert G. Abrams, Howrey, Washington, DC, for Defendant.

ORDER GRANTING DEFENDANT CATERPILLAR'S MOTION TO DISMISS

BURGESS, District Judge.

INTRODUCTION

Plaintiffs are the family of Rachel Corrie, who died in the Gaza Strip in 2003, and a number of Palestinians who live in the Gaza Strip and the West Bank. Since the 1967 "Six Day War," Israel has controlled the areas known as the Gaza Strip, the West Bank, the Sinai Peninsula, and the Golan Heights. Plaintiffs allege that they have suffered death, injury, and the loss of home and business as a result of the demolitions by Caterpillar bulldozers used by the Israeli Defense Forces (IDF). Plaintiffs have alleged seven claims against Caterpillar: (1) war crimes (breach of the Geneva Convention); (2) extrajudicial killing (defined in Torture Victim Protection Act); (3) aiding and abetting, conspiring in, or ratifying cruel, inhuman, or degrading treatment or punishment in violation of the law of nations; (4) violations of the Racketeer Influenced and Corrupt Organizations Act (RICO); (5) wrongful death; (6) public nuisance, and (7) negligence.

Plaintiffs seek compensatory and punitive damages, reasonable attorneys fees and costs and injunctive and declaratory relief including an order directing Caterpillar to cease providing equipment and services to the Israeli Defense Forces until the conduct described in the First Amended Complaint ceases.

Caterpillar moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to the political question and act of state doctrines. Caterpillar argues that there is no legal basis for the allegation that Caterpillar can be liable in damages for selling a legal, non-defective product to the government of Israel; the federal statutory claims (RICO, Torture Victim Protection Act) fail for numerous reasons and for failure to exhaust remedies available in Israel; and no violation of international law is stated. Finally, Caterpillar argues that the injunctive relief that Plaintiffs seek is a political goal that is inappropriate to pursue in this lawsuit.

DISCUSSION

First, Second, and Third Claims for Relief

In the First Claim, Plaintiffs allege that the home demolitions and attack on Plaintiffs and decedents constitute "war crimes" in violation of the Fourth Geneva Convention. Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying to the IDF would be used to commit violations of the Geneva Convention. Plaintiffs contend that Caterpillar's acts and omissions violate the law of nations or a treaty of the United States under 28 U.S.C. §§ 1350 and 1331.

In the Second Claim, Plaintiffs allege that the killings of the decedents listed in the First Amended Complaint were deliberate and not authorized by previous judgment from a regularly constituted court and thus constitute "extrajudicial killings" as defined by the Torture Victim Protection Act, Pub.L. No. 102-256, 106 Stat. 73 (1992)(codified at 28 U.S.C. § 1350 (note)); and that the killings also violate the law of nations and, thus, the United States, pursuant to 28 U.S.C. §§ 1331 and 1350. Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying would be used to commit human rights abuses and that the extrajudicial killings were foreseeable. Plaintiffs also allege that Caterpillar gave substantial assistance to the IDF in several ways, thus aiding and abetting, conspiring or ratifying the extrajudicial killings.

In the Third Claim, Plaintiffs allege that the abuses described in the First Amended Complaint constitute cruel, inhuman, or degrading treatment or punishment (CIDTP). Plaintiffs allege that Caterpillar knew or should have known that the bulldozers it was supplying to Israel were being used to commit CIDTP, thus Caterpillar aided and abetted, conspired in, or ratified this CIDTP. Defendants contend that Caterpillar's acts and omissions violate the law of nations, and thus the United States pursuant to 28 U.S.C. §§ 1331 and 1350.

Caterpillar argues that it is not liable for the Israeli government's alleged conduct, because Caterpillar did not control the Israeli Defense Forces; there is no federal tort for "doing business" with a country that allegedly violates international law; there is no universally recognized norm of international law that is sufficiently definite to satisfy the requirements of Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004); Caterpillar was not a "state actor"; and no provision of federal law allows the Corrie plaintiffs to sue for violations of international law.

Caterpillar also argues that Plaintiffs' allegations of "extrajudicial killing" under the Torture Victim Protection Act (TVPA) fail to state a claim because Plaintiffs have not exhausted their remedies in Israel; Caterpillar did not act under "color of law" of a "foreign nation"; Caterpillar did not participate in any alleged killings nor aid and abet the Israeli soldiers involved in the incident simply by selling bulldozers; and the TVPA does not apply to corporations.

Analysis and Conclusion re First, Second, and Third Claims

Title 28 U.S.C. § 1350, entitled "Alien's action for tort," provides as follows:

The district courts shall have 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.

The Torture Victim Protection Act is set forth in the Historical and Statutory Notes section to Section 1350. The relevant section provides:

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

(1) 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.

Plaintiffs fail to state a claim in their First, Second, and Third claims for relief because Plaintiffs do not allege that Caterpillar participated in or directed any of the IDF's challenged conduct. Selling products to a foreign government does not make the seller a participant in that government's alleged international law violations. In In re South African Apartheid Litig., 346 F.Supp.2d 538 (S.D.N.Y.2004)(hereafter "Apartheid Litigation"), the plaintiffs alleged that various United States corporations violated international law by doing business with the apartheid regime in South Africa. The court rejected the claim concluding that "[t]he apartheid regime, and not defendants, engaged in the behavior that is the subject of [the alleged violations]." Id. at 552 n. 16.

In Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Court considered the types of claims a plaintiff may assert under the Alien Tort Statute, 28 U.S.C. § 1350, which provides federal jurisdiction "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The Court directed federal courts to exercise "great caution" in adapting the law of nations to private rights, Sosa, 542 U.S. at 728, 124 S.Ct. at 2764, and articulated several reasons for such caution, including possible "collateral consequences" to the foreign relations of the United States flowing from private allegations of a foreign government's violations of the law of nations and also the lack of a "congressional mandate to seek out and define new and debatable violations of the law of nations...." Id. at 728, 124 S.Ct. at 2763. The Court concluded: "Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." that is, violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 725, 124 S.Ct. at 2761. Apartheid Litigation is on point: the plaintiffs alleged that defendants "supplied resources, such as technology, money and oil" that the South African government used to further its policies of oppression and persecution. For example, the allegations were that demonstrators were shot from automobiles equipped with Daimler-Benz engines, individuals were tracked using IBM computers, and the military kept machines in order using oil supplied by Shell. Plaintiffs claims were dismissed, and in doing so, the Court considered the "collateral consequences" of recognizing "a new international law violation." The Court recognized that the consequences from a lack of caution "could have significant, if not disastrous effects on international commerce." Id. 346 F.Supp.2d at 554. Moreover, there is the danger recognized by Sosa of "impinging on the discretion of the Legislative and Executive branches in managing foreign affairs." Id. 542 U.S. at 728, 124 S.Ct. at 2763.

Plaintiffs allege that the alleged killings violate the law of nations, and thus, the law of the United States and international multilateral treaties and international instruments, as well. The Torture Victims Protection Act (TVPA) provides the exclusive remedy for plaintiffs who allege extrajudicial killing under color of foreign law. Enahoro v. Abubakar, 408 F.3d 877 (7th Cir.2005). Plaintiffs contend that this case was wrongly decided, but they rely on cases decided prior to Sosa....