Jane W. v. Thomas

• Decision Date: 15 September 2021
• Docket Number: CIVIL ACTION NO. 18-569
• Citation: 560 F.Supp.3d 855
• Parties: JANE W., in her individual capacity, and in her capacity as the personal representative of the estates of her relatives, James W., Julie W., and Jen W., et al., Plaintiffs, v. Moses W. THOMAS, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

560 F.Supp.3d 855

JANE W., in her individual capacity, and in her capacity as the personal representative of the estates of her relatives, James W., Julie W., and Jen W., et al., Plaintiffs,

v.Moses W. THOMAS, Defendant.

CIVIL ACTION NO. 18-569

United States District Court, E.D. Pennsylvania.

Filed September 15, 2021

Alyssa T. Yamamoto, Catherine Amirfar, Megan Corrarino, Moeun Cha, Elizabeth Nielsen, DeBevoise & Plimpton LLP, New York, NY, Carmen Ka Man Cheung, Nushin Sarkarati, Elzbieta T. Matthews, Center for Justice & Accountability, San Francisco, CA, Katherine Seifert, DeBevoise & Plimpton LLP, Washington, DC, Laurence S. Shtasel, Huaou Yan, Blank Rome Comisky & McCauley LLP, James T. Giles, Pepper Hamilton LLP, Philadelphia, PA, for Plaintiffs Jane W., John X., John Y., John Z.

Nixon Teah Kannah, Philadelphia, PA, for Defendant.

MEMORANDUM

TUCKER, District Judge

I. INTRODUCTION

Plaintiffs are survivors of a brutal attack on a church sanctuary over thirty years ago, during the First Liberian Civil War. Defendant Moses W. Thomas, then a colonel commanding an elite unit of the Liberian military, faces claims under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, and the Alien Tort Statute, 28 U.S.C. § 1350. He is accused of a variety of war crimes and crimes against humanity relating to his command of soldiers who killed approximately 600 civilians at St. Peter's Lutheran Church in Monrovia, Liberia.

In the intervening years, Thomas immigrated to the United States. He resided in a Philadelphia suburb at the time this lawsuit was filed. Before the Court are Plaintiffs’ Motion for Summary Judgment (ECF 29), Defendant's Response in Opposition (ECF 63), and Plaintiffs’ Reply in Support (ECF 64), along with Plaintiffs’ Motion for a Supplemental Protective Order (ECF 59). Upon careful consideration of the Parties’ submissions, and for the reasons outlined below, Plaintiffs’ motions are granted.

Table of Contents

I. INTRODUCTION ...864

Table of Contents ...864

II. PROCEDURAL BACKGROUND ...865

III. FACTUAL BACKGROUND ...866

A. The Liberian Civil Wars in Brief...866

B. Defendant's Role in the Liberian Armed Forces...867

C. Killings of Civilians During the First Civil War...868

D. The Role of the Lutheran Church...869

E. Events on the Night of the Lutheran Church Massacre...869

F. The Immediate Aftermath...870

G. Plaintiffs’ Claimed Harms from the Massacre...871

H. Lack of Accountability for the Massacre...871

IV. LEGAL STANDARD ...872

V. DISCUSSION ...873

A. Defenses to Jurisdiction, as This Court Previously Held, do not Apply...873

1. Statute of Limitations—Tolling Under the TVPA...873

2. Statute of Limitations—Tolling Under the ATS...875

3. Local Remedies Were Inadequate...875

4. The Events at Issue "Touch and Concern" the United States...876

B. Defendant Fails to Cast Doubt on Plaintiffs’ Voluminous Evidentiary Record...877

1. Defendant's Fragmentary Hearsay Claims Fall Under Hearsay Exceptions...877

2. Purported Inconsistencies Between Plaintiffs’ Affidavits do not Negate Evidence of Defendant's Liability...879

C. Defendant's Substantive Liability Under the TVPA...879

1. Defendant Acted Under Color of Law...880

2. Plaintiffs’ Decedents were Subjected to Extrajudicial Killing Under the TVPA...880

3. Plaintiffs were Subjected to Attempted Extrajudicial Killing Under the TVPA...881

4. Plaintiffs were Subjected to Torture Under the TVPA...882

D. Defendant's Substantive Liability Under the ATS...883

1. Defendant is Liable for Cruel, Inhuman, or Degrading Treatment...884

2. Defendant is Liable for War Crimes...884

3. Defendant is Liable for Crimes Against Humanity...886

E. Defendant is Directly Liable Under Both Statutes...889

1. Defendant Directed or Ordered the Massacre...889

2. Defendant is Liable on the Basis of Command Responsibility...890

F. The Additional Protective Order is Granted...891

G. An Evaluation of Damages Will be Conducted Separately...892

VI. CONCLUSION ...892

II. PROCEDURAL BACKGROUND

Four survivors of the July 29, 1990 mass killing at St. Peter's Lutheran Church in Monrovia, Liberia—John Y, John Z, Jane W, and John X—filed this suit against Moses W. Thomas.¹ Compl. (ECF 1). Thomas, who Plaintiffs named as the sole Defendant in their February 12, 2018 Complaint, was a colonel in the Armed Forces of Liberia (AFL) and the commander of the elite Special Anti-Terrorist Unit (SATU). Mot. Summ. J. (ECF 29) 1. Thomas filed a Motion to Dismiss on April 26, 2018, which this Court denied. See Jane W. v. Thomas , 354 F. Supp. 3d 630 (E.D. Pa. 2018). Through the next two years, the case proceeded unremarkably; Plaintiffs sought discovery from Defendant and he initially participated, submitting initial disclosures on January 31, 2019, and amended disclosures on August 7, 2019. Mot. Summ. J. 23.

Things changed, however, when Defendant failed to respond to Plaintiffs’ first set of document requests and interrogatories, served on October 11, 2019. Pls’. Letter re: Ext. Disc., May 6, 2020 (ECF 49). On February 7, 2020, Plaintiffs served their First Set of Requests for Admission, which were due by March 9, 2020; Defendant did not respond, object, or request an extension by the deadline. Id. Plaintiffs requested extensions of the discovery deadlines on May 6 and September 29, 2020 due to the COVID-19 pandemic, which were both granted. Mot. Summ. J. 23.

At some point in late 2019, Defendant not only ceased to participate but fled the United States to Liberia. Once there, he purportedly used his local contacts to intimidate individuals suspected of being Plaintiffs or witnesses in this action. Pl.’s Mot. Suppl. Prot. Or. (ECF 59-1) 4-5.² Plaintiffs contend these threats are especially potent because several of the soldiers once under Defendant's command have ascended through the ranks of Liberia's security forces. These developments prompted the withdrawal of one potential witness from this case. Id.

Plaintiffs filed their Motion for Summary Judgment alongside the Motion for Supplemental Protective Order on March 16, 2021. The victims seek summary judgment on all claims except for counts five, seven, eight, ten, eleven, and thirteen, which will be dismissed without prejudice.

III. FACTUAL BACKGROUND

Before this opinion addresses Defendant Moses W. Thomas’ liability for any of the actions he is accused of directing, we must contextualize the Lutheran Church Massacre. This section will give a basic description of: (1) what led to the internal conflicts in Liberia; (2) Defendant's role in the Liberian military and the particular place of the SATU within the armed forces; (3) why the Lutheran Church and similar locations were targeted; and (4) how Plaintiffs have dealt with the aftermath of the attacks. This section draws primarily from Plaintiffs’ Motion for Summary Judgment and Statement of Stipulated Material Facts (ECF 60-4).³ Both documents, in turn, draw on the extensive factual record assembled in the exhibits filed in this matter at ECFs 60 and 61. With some exceptions that will be addressed in Section V.B, this record is undisputed by Defendant.

A. The Liberian Civil Wars in Brief

In 1980, about a decade before Liberia's First Civil War, Samuel Doe and Thomas Quiwonkpa led a successful coup against then-president William Tolbert, assassinating him and publicly executing thirteen members of his cabinet. SMF ¶ 4; MSJ 3. As a result, Doe became Liberia's head of state, replacing the previous government with a military junta. SMF ¶ 4; MSJ 3. On December 24, 1989, the National Patriotic Front of Liberia (NPFL), a rebel group, invaded a military outpost of the Armed Forces of Liberia (AFL), the country's military. Id. at ¶ 5. This started the first of two civil wars that would collectively last—with a roughly two-year reprieve in the late 90s—until 2003. Id.

The civil wars stemmed from ethnic tensions that date back to Liberia's founding. The country's politics were controlled from the 1820s to the 1980 coup by "Americo-Liberians", formerly enslaved Black Americans who colonized the country and dominated indigenous ethnic groups.⁴ Pls.’ Expert Report of Amb. Dennis Jett (ECF 61-9) 6.⁵ The coup, led by Doe (a member of the Krahn ethnic group) was significant because it marked the first government led by indigenous Liberians in the nation's history. Id. at 7. While Doe's government was initially welcomed by the broad base of native Liberians, years of military and police abuse and harassment, restrictions on civil liberties, and tactics stoking ethnic division eventually evaporated that goodwill. Id. at 6-8. Doe's government favored members of his own Krahn group, to the exclusion of two other major indigenous Liberian ethnic groups, the Manos and Gios. Id. at 8.

The First Civil War began when Charles Taylor, an Americo-Liberian, assembled the NPFL, which also had the backing of some Gios. MSJ 3. NPFL forces attacked the AFL in Nimba County, a hotbed of opposition to Doe's regime. Jett Rpt. 8; MSJ 3. In response, Doe sent AFL forces into the area to fight the NPFL and attack Manos and Gios, assuming that members of either ethnic group were working with or sympathetic to the rebels. MSJ 3-4. The AFL also killed civilians in Monrovia, frequently based on mere suspicion of being ethnically Mano or Gio. Id. at 4.

The First Civil War, which lasted from 1989 to 1997, resulted in Charles Taylor becoming president of Liberia. SMF ¶ 5. The war left 200,000 civilians dead, prompted 750,000 people to flee the country, and internally displaced another 1.2 million. MSJ 4.

The Second Civil War began in 1999, when opposition groups invaded Liberia from Guinea. Id. Another four years of conflict would result in Taylor's resignation and the combatants signing the Accra Comprehensive Peace Agreement in August 2003, ending the war. Id. This was followed by a two-year transitional government and, in November 2005, the election of Ellen Johnson Sirleaf as president in the country's first democratic election. Id.

B. Defendant's Role in the Liberian Armed Forces

While all of this...