Jovic v. L-3 Servs., Inc.

• Decision Date: 24 September 2014
• Docket Number: 10 C 5197
• Citation: 69 F.Supp.3d 750
• Parties: Milena Jovic, Zivka Mijic, Mira Grubor, Bosko Bjegovic, and Dalibor Mrkalj, and all others similarly situated, Plaintiffs, v. L–3 Services, Inc. and Engility Holdings, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

69 F.Supp.3d 750

Milena Jovic, Zivka Mijic, Mira Grubor, Bosko Bjegovic, and Dalibor Mrkalj, and all others similarly situated, Plaintiffs

v.L–3 Services, Inc. and Engility Holdings, Inc., Defendants.

10 C 5197

United States District Court, N.D. Illinois, Eastern Division.

Signed September 24, 2014

Robert James Pavich, Pavich Law Group, Chicago, IL, for Plaintiffs.

James E. Tyrrell, Jr., Joseph E. Hopkins, Lisa Ann T. Ruggiero, Edwards Wildman Palmer, LLP, Morristown, NJ, Paul Thaddeus Fox, Thomas E. Dutton, Greenberg Traurig, LLP, Chicago, IL, Steven Marc Schneebaum, Greenberg Traurig LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, United States District Judge

Plaintiffs Milena Jovic, Zivka Mijic, Mira Grubor, Bosko Bjegovic, and Dalibor Mrkalj, individually and on behalf of others similarly situated, bring this suit against Defendant L–3 Services, Inc. (“L–3”), and Engility Holdings, Inc. (“Engility”) (collectively, “Defendants”).¹ The allegations concern MPRI Inc. (“MPRI”), a U.S. military contractor that has since been subsumed into Engility. Plaintiffs allege that MPRI assisted the Croatian military in designing and carrying out the genocide and forced displacement of ethnic Serbs located in Croatia's Krajina region in August 1995 through a military operation named “Operation Storm.”

In the Third Amended Complaint, Plaintiffs bring ten different counts against Defendants. The first eight counts allege that, in violation of the Geneva Convention and other sources of international law, including customary international law, Defendants were complicit in genocide (Count I), committed genocide (Count II), carried out a forced population transfer (Count III), aided and abetted a forced population transfer (Count IV), aided and abetted the plunder of property (Count V), aided and abetted the wanton destruction of cities, towns, and villages (Count VI), committed crimes against humanity (Count VII), and aided and abetted the commission of crimes against humanity (Count VIII). Counts IX and X allege that, in violation of Illinois and Virginia law and federal common law, MPRI conspired with the Croatian military to commit forced population transfer and destruction of property (Count IX) and conspired to commit unlawful conversion of property (Count X).

Defendants move to dismiss Plaintiffs' Third Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). The events that are portrayed in the Third Amended Complaint are unspeakably tragic and horrific. See, e.g., 3d Am. Compl. ¶¶ 75, 78. Plaintiffs lost homes, property, friends, and family in Operation Storm. See id. ¶ 71. But the Court is constrained in its ability to consider claims over which it lacks jurisdiction or claims that are insufficiently pleaded. Accordingly, for the reasons set forth herein, the Court grants Defendants' motion to dismiss Counts I through VIII for want of subject matter jurisdiction. The Court also grants in part and denies in part Defendants' motion as to Counts IX and X for failure to state a claim upon which relief can be granted.

Facts²

In October 1994, Croatian military leaders resolved to carry out a major military operation to retake Croatia's Krajina region from controlling Serbian forces. 3d Am. Compl. ¶¶ 24, 31. Seeking expertise in planning the operation—ultimately named “Operation Storm”—Croatian leaders traveled to Virginia and met with MPRI, a military contractor run by former United States military and intelligence officers. Id. ¶¶ 32, 37–38. MPRI was known for providing military training, strategic advice, and planning assistance. Id. ¶ 32.

During this meeting, Croatian leaders and MPRI agreed that “MPRI was to train [ ] and modernize ... the Croatian Army into a competent fighting force able to invade the Krajina region and expel the ethnic Serbian population from Croatian territory.” Id. ¶ 37. Plaintiffs allege Croatian leaders told MPRI they wished to “ ‘drive the Serbs out of [the] country.’ ” Id. The parties' formal agreement stated, however, that “MPRI's conduct was limited to providing ‘democracy transition assistance’ by indoctrinating Croatian armed forces with the principles of democratization including civilian control of the military.” Id. ¶ 40. Nevertheless, Plaintiffs allege MPRI “knew, or should have known, that [Operation Storm's] implementation would cause the deaths and/or permanent removal from the Krajina [region] of scores to thousands of innocent Serbian civilians.” Id. ¶ 52. Plaintiffs further allege that “a conspiracy existed between” MPRI and the Croatian government, “the purpose of which was the permanent removal of the Serb population from the Krajina region by force, fear of force, persecution, forced displacement, transfer and deportation, [and] appropriation and destruction of property.” Id. ¶ 62.

MPRI engaged in various activities to train and prepare Croatia's military to take back the Krajina region from Serbian forces. Id. ¶ 41. Among these, MPRI dispatched a fourteen-member “advisory” team to Croatia to work with the military, and MPRI stationed senior leaders in Croatia to “enhanc[e] the morale of Croatian soldiers.” Id. ¶¶ 41, 112. MPRI's “management, control, facilitation[,] and provision of assistance” concerning Operation Storm took place at MPRI's Virginia headquarters as well as in Croatia. Id. ¶ 43. Leading up to Operation Storm, MPRI personnel met with Croatian leadership ten times in Croatia and on a nearby island.Id. ¶ 55. Finally, on August 4, 1995, Croatian armed forces began Operation Storm.³ Id. ¶ 57.

Plaintiffs assert that “Operation Storm resulted in the largest act of ethnic cleansing in Europe since World War II,” and “thousands of innocent civilians were attacked, injured[,] and killed.” Id. ¶ 108. Additionally, the operation expelled thousands of Serbian refugees from Krajina. Id. ¶ 109. During Operation Storm, Plaintiffs fled the Krajina region along with other refugees, leaving their homes and livelihood behind. Id. ¶¶ 76–77, 87, 90, 98–99, 103, 105. Specifically, Plaintiffs Jovic, Mijic, and Grubor lost real or personal property, or no longer have use of real or personal property, as a result of Operation Storm. See id. ¶¶ 76, 80, 92.

On August 17, 2010, Plaintiffs commenced this action before Judge Rubén Castillo of the Northern District of Illinois. On December 1, 2011, Judge Castillo suspended consideration of the matter until the Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 132 S.Ct. 472, 181 L.Ed.2d 292 (2011) (granting certiorari). Then, on June 6, 2012, the case was reassigned to this Court, following which the Supreme Court issued its decision in Kiobel . ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). Plaintiffs filed their Third Amended Complaint, and Defendants moved to dismiss.

Legal Standard

Defendants move to dismiss Counts I through VIII for lack of subject matter jurisdiction under Rule 12(b)(1). They also challenge the viability of Counts IX and X under Rule 12(b)(6).

Under Rule 12(b)(1), a defendant may move to dismiss claims over which a federal court lacks subject matter jurisdiction. Subject matter jurisdiction, the “power to decide,” must be conferred upon a federal court. Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir.1995) (internal citations omitted); SRT Enters., Inc. v. Direct Energy Bus., LLC, No. 11 C 4933, 2011 WL 6379303, at *3 (N.D.Ill. Dec. 20, 2011) (internal citations omitted). In cases such as this, where a defendant has mounted a facial challenge to jurisdiction, the court need only look to the complaint to see if the plaintiff has sufficiently alleged a basis for subject matter jurisdiction. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir.2009) (internal citations omitted). In doing so, the court takes the allegations in the complaint as true, viewing all facts and drawing all reasonably drawn inferences in favor of the plaintiff. Patel, 383 F.3d at 572. The party seeking to invoke subject matter jurisdiction bears the burden of establishing it. See Apex Digital, 572 F.3d at 445.

Defendants' motion for failure to state a claim under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 457 (7th Cir.2007). Under Rule 8(a)'s notice pleading standards, “a plaintiff's complaint need only provide a short and plain statement” of a claim entitling the pleader to relief, “sufficient to provide the defendant with fair notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008) (internal quotations omitted). The complaint must, however, allege “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility requires that a complaint include “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Id. When deciding a Rule 12(b)(6) motion, the court construes the complaint “in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [plaintiff's] favor.” Reynolds, 623 F.3d at 1146.

Analysis

Plaintiffs' Third Amended Complaint includes ten different counts. Counts I through VIII allege various violations of international law over which Plaintiffs assert the Court has subject matter jurisdiction under the Alien Tort Statute (“ATS”), codified in 28 U.S.C. § 1350 (2012), or under federal question jurisdiction pursuant to 28 U.S.C. § 1331 (2012) (“Section 1331 ”). 3d Am. Compl. ¶¶ 138–41, 143–44.⁴ Furthermore, although Plaintiffs have not invoked jurisdiction under the Class Action Fairness Act, 28...