I v. Lao People's Democratic Republic

• Decision Date: 17 May 2016
• Docket Number: No. 2:15-cv-2349 TLN AC,2:15-cv-2349 TLN AC
• Court: U.S. District Court — Eastern District of California
• Parties: HMONG I, a fictitious name, on behalf of herself and as representative of members of a class of similarly situated claimants, Plaintiff, v. LAO PEOPLE'S DEMOCRATIC REPUBLIC; et al., Defendants.

HMONG I, a fictitious name, on behalf of herself andas representative of members of a class of similarly situated claimants, Plaintiff, v. LAO PEOPLE'S DEMOCRATIC REPUBLIC; et al., Defendants.

No. 2:15-cv-2349 TLN AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 17, 2016

ORDER AND AMENDED FINDINGS AND RECOMMENDATIONS

Plaintiff has moved for entry of default judgments. ECF Nos. 7, 11, 19, 22. This matter was accordingly referred to the undersigned by E.D. Cal. R. ("Local Rule") 302(c)(19). On March 14, 2016, the undersigned issued Findings and Recommendations. ECF No. 30. Plaintiff filed objections pointing out that the Findings incorrectly stated that plaintiff had not responded to the Suggestion of Immunity filed by the United States. ECF No. 32. In fact, plaintiff had responded to the Suggestion of Immunity. See ECF No. 24. Accordingly, the Order and Findings and Recommendations of March 14, 2016, will be vacated.

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//// For the reasons that follow, the undersigned will recommend that no default judgments be entered, and that the district court issue an Order to Show Cause why this lawsuit should not be dismissed.¹

I. BACKGROUND / COMPLAINT

This lawsuit was filed by "Hmong I," alleged to be a fictitiously named real person. Complaint ¶ 6. Hmong I "resides in an unspecified location in Southeast Asia." Id. ¶ 21. Plaintiff's husband was killed as part of "the official campaign in Laos to terminate Hmong people." Id. ¶¶ 19, 55. She sues under the Alien Tort Statute (the "Act" or "ATS"), 28 U.S.C. § 1350, for the wrongful death of her husband, and seeks an injunction to, among other things, "allow the Hmong people to reside in Laos in peace." Id. ¶¶ 70, 78.

Although plaintiff alleges that she sues "on behalf of herself and as representative of members of a class of similarly situated claimants," she has not moved to certify a class, which would be required if this action were to proceed as a class action. See Fed. R. Civ. P. ("Rule") 23 (parties may sue as "representative parties" of a class only if the requirements of Rule 23(a)(1)-(4) are satisfied).² At oral argument, counsel for plaintiff acknowledged that plaintiff had not moved for class certification and moreover, that plaintiff was proceeding at this point only on behalf of herself, Hmong I. Counsel asserted that plaintiff would consider the Rule 23 issues after the motion for default judgment had been resolved with regard to Hmong I. Accordingly, the undersigned does not here consider any issues regarding class representation or Rule 23. Such matters, in any event, have not been referred to the magistrate judge.

Plaintiff sues the country of Laos, its sitting President and Prime Minister, the Ministers of Defense, Justice and Public Security, and "General Bounchanh." Complaint ¶¶ 24-35. Thecomplaint alleges that defendants engaged in a campaign of atrocities (including murder, torture, rape, maiming and poisoning and destroying "the jungle/their environment") against a group of Hmong people in Laos, after the Vietnam War. Complaint ¶¶ 3, 56. This campaign was intended to achieve the extermination of those among the Hmong people who had joined, or who had some connection with, the "Secret Army." Complaint ¶¶ 4, 35, 56, 58, 59, 64. The Secret Army is alleged to be a group of Hmong whom the "USA/CIA" recruited, during the Vietnam War from 1960-75, to fight the Pathet Lao and the Vietcong in Laos and Vietnam, and "to rescue US soldiers that were in the Laotian/Vietnam border area." Complaint ¶¶ 57-59.

The complaint alleges that defendants' conduct was undertaken in violation of "international law," and in violation of following treaties: the 1962 Geneva Convention; the 1966 International Covenant on Civil and Political Rights; and the 1973 Vientiane Ceasefire Agreement. Complaint ¶¶ 15, 16, 39, 45-47, 48, 49; see also Complaint ¶ 78 (requesting injunction requiring defendants to abide by the cited treaties). The complaint also alleges that defendants' conduct violated various Laotian laws ("Decree[s] of the President of the Lao People's Democratic Republic on the Promulgation of the Penal Law"). See Complaint ¶¶ 51-54.

II. DEFAULT JUDGMENT STANDARDS

A motion for entry of a default judgment involves "the two-step process" set out by Rule 55. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (citing 6 Moore's Federal Practice ¶ 55.02[3], at 55-8). The first step is for plaintiff to ask the Clerk of the Court to enter a default. Rule 55(a). The Clerk must enter the default if plaintiff makes a showing "by affidavit or otherwise," that the "party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Id. For reasons that plaintiff failed to explain in her motion or at oral argument, she never took this first step.

Skipping instead to the second step, plaintiff now moves the court for the entry of a default judgment under Rule 55(b)(2). However, even if plaintiff had taken the first step and obtained entry of a default, that would not automatically entitle her to a court-ordered default judgment, since the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

In making this determination, the court may consider the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72.

III. ANALYSIS

An analysis of the Eitel factors, as set forth below, shows that plaintiff is not entitled to a default judgment. The undersigned accordingly does not address the issues involved in determining whether plaintiff has achieved proper service on the sovereign nation of Laos, its sitting head of state, its sitting head of government, several of its sitting government ministers, and a general. See 28 U.S.C. § 1608(a) (specifying manner of service upon a foreign state); cf. Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 748 (7th Cir. 2007) ("In fact, service through an embassy is expressly banned both by an international treaty to which the United States is a party and by U.S. statutory law. The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, prohibits service on a diplomatic officer."), cert. denied, 552 U.S. 1231 (2008).

As further discussed below, the undersigned finds that this case is not within the jurisdiction of the district court. Thus, even if service has been properly effected, no default judgment could be entered. Moreover, if service was not properly effected, it would be futile for plaintiff to attempt proper service of a complaint that is not within the jurisdiction of this court. For the same reason, the undersigned does not recommend ordering plaintiff to engage in the futile act of obtaining an entry of default from the Clerk of the Court.

A. Prejudice, Material Disputes, Excusable Neglect

Plaintiff has not mentioned or addressed any of the Eitel factors in requesting a default judgment. Accordingly, the undersigned cannot determine whether plaintiff would be prejudiced if the court declines to enter a default judgment. Moreover, since the defendants have not appeared, the undersigned cannot determine whether they would dispute material facts of thecomplaint, nor whether their failure to appear is the result of excusable neglect (even assuming they had been properly served).

B. Amount in Controversy and the Policy Favoring Decisions on the Merits

Plaintiff seeks a judgment "in excess of $5 million." Complaint ¶ 69. This large amount tends to disfavor a default judgment. See Eitel, 782 at 1472 ("because Eitel was seeking almost $3 million in damages from McCool and because the parties disputed material facts in the pleadings, we cannot say that the district court abused its discretion in denying the default judgment").

As for the policy favoring decisions on the merits, the analysis starts with "the general rule that default judgments are ordinarily disfavored," and that "[c]ases should be decided upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. That rule is particularly weighty here, where default judgments are sought against a foreign nation, its sitting head of state, its sitting head of government, and several of its government ministers. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 (D.C. Cir. 1987) (Ginsburg, Cir. Judge) ("[i]ntolerant adherence to default judgments against foreign states could adversely affect this nation's relations with other nations").

C. The Merits and Sufficiency of the Complaint

Examination of the second and third Eitel factors - the merits of plaintiff's claims and the sufficiency of the complaint - establish that no default judgment is warranted here. Where the complaint lacks merit, it is well within the court's discretion to deny a default judgment on that ground alone. Aldabe, 616 F.2d at 1092-93 ("[g]iven the lack of merit in appellant's substantive claims, we cannot say that the district court abused its discretion in declining to enter a default judgment"). In this case, to say that the complaint "lacks merit" is not to say that plaintiff's allegations of atrocities are untrue or unsubstantiated, it is to say that those allegations do not appear to confer jurisdiction on this court or entitle plaintiff to obtain the relief she seeks by way of litigation.

In her motion, arguments at hearing, and post-hearing submissions, plaintiff seeks to present evidence of the alleged treaty violations and human rights abuses committed againstmembers of the putative class....