Linder v. Calero Portocarrero, 88-702-CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Citation747 F. Supp. 1452
Docket NumberNo. 88-702-CIV.,88-702-CIV.
PartiesDavid LINDER, et al., Plaintiffs, v. Adolfo CALERO PORTOCARRERO, et al., Defendants.
Decision Date17 September 1990

Michael D. Ratner, Margaret Ratner, David Cole, Reed Brody, Morton Stavis, Peter Weiss, New York City, Daniel E. Jonas, Miami Beach, Fla., Margaret Winter, New York City, Jules Lobel, Professor of Law, University of Pittsburgh, Pittsburgh, Pa., Theodore M. Lieverman, Haddonfield, N.J., Michael Royce, Portland, Or., for plaintiffs.

Franklin Burt, John Kirkpatrick, Miami, Fla., for defendants.

ORDER OF DISMISSAL

MARCUS, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss, first filed on August 8, 1988. The Court has twice taken extensive argument concerning this difficult motion. This action now arises from a five-count Amended Complaint charging Defendants with (1) wrongful death, (2) battery, (3) intentional infliction of emotional distress, (4) violation of Article 3 of the First Geneva Convention, the Second Geneva Convention and the protocols thereto, customary international law, and other treaties and (5) civil conspiracy, in connection with the death of Benjamin Linder in the midst of civil war in Nicaragua. Because we find that Plaintiffs' claims are non-justiciable due to operation of the political question doctrine and that neither customary international law nor the Geneva Conventions provide a private right of action, Defendants' Motion to Dismiss must be and is GRANTED.

I. BACKGROUND

At the heart of Plaintiffs' Amended Complaint is the claim that the Defendants plotted to kill Benjamin Linder as part of a conspiracy to undermine the Nicaraguan government through attacks on projects related to health care, education, agriculture and economic development. The Plaintiffs have alleged that these attacks were carried out with knowledge that foreign development workers would be present at the project sites. Amended Complaint at Para. 36-37. The actions surrounding the death of Linder are said to have occurred "pursuant to a policy, pattern, and practice of widespread torture, murder and inhuman and degrading treatment directed against civilians and development projects and perpetrated by employees and agents of the Defendants." Amended Complaint at Para. 58.

The Amended Complaint arises out of the death of Mr. Linder on April 28, 1987, in the El Cua region of Nicaragua. A proper understanding of this action requires a thorough review of the events surrounding the death of Linder as alleged in the Amended Complaint.1 Linder was an American mechanical engineer who moved to Nicaragua in August 1983. Amended Complaint at Para. 40. In December 1986, Linder moved to the El Cua region in order to aid the Nicaraguan government in the building of hydroelectric plants. Amended Complaint at Para. 46. On April 28, 1987, between 6:00 and 7:00 a.m., Linder, who was wearing civilian clothing and boots and carrying a rifle, set out with six other men for a site where a dam was being built. Some of Linder's companions were armed and wearing military uniforms. While none of the men were members of the Nicaraguan army, some were members of the civilian self-defense militia. Amended Complaint at Para. 51-52.

At about 8:00 a.m., Linder and the rest of the group arrived at the half-finished dam site. Linder proceeded to put down his rifle and sat down on a log to examine a notebook. All the other men put down their guns as well. Amended Complaint at Para. 53. Shortly after their arrival at the dam site, the group was attacked by a Nicaraguan Democratic Force ("FDN") patrol consisting of at least twelve persons, who had been positioned on high ground above the dam site awaiting the arrival of Linder and other development workers. The FDN patrol launched the attack with grenades and machine gun fire. Linder was immobilized by wounds to his legs and a bullet wound to his left arm. These wounds would not have caused Linder's death. The members of the FDN patrol proceeded to torture Linder by inflicting thirty to forty wounds to his face with a sharp pointed object. Subsequently, Linder was killed by a contra2 who shot him in the temple from a distance of less than two feet. Amended Complaint at Para. 55.

The Plaintiffs have filed this suit as a class action pursuant to Rule 23.2 of the Federal Rules of Civil Procedure. Amended Complaint at Para. 21. The Defendants consist of three organizations, the Nicaraguan Democratic Force ("FDN"), the United Nicaraguan Opposition ("UNO") and the Nicaraguan Resistance ("RN"), as well as four individuals, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia and Indaleco Rodriguez Alaniz. The FDN and UNO, two contra organizations, merged into the RN on or about May 8, 1989. Amended Complaint at Para. 19. The Amended Complaint avers that the four individual Defendants are leaders of the contra organizations. Amended Complaint at Para. 13-16.

The Amended Complaint alleges, among other things, that Defendant Bermudez directed the FDN patrol to murder Linder with knowledge that Linder was a development worker and a United States citizen. Amended Complaint at Para. 2a, 54. It is averred that Defendants Calero, Sanchez and Rodriguez approved the attack and murder. Amended Complaint at Para 54. Moreover, the Plaintiffs further contend that upon being told of the attack on Linder, Defendant Bermudez congratulated the leader of the patrol and gave him a monetary reward. Amended Complaint at Para 55a.

Some activities in furtherance of the alleged terrorism are said to have taken place in the Southern District of Florida. Specifically, it is alleged that the FDN directorate and the civil-military command held regular meetings in the Southern District of Florida. Amended Complaint at Para. 29. It is further asserted that the individual Defendants and the FDN operated military training camps in the Southern District of Florida for the purpose of training terrorists to participate in attacks within Nicaragua. Training allegedly included instruction in attacking non-military targets such as health clinics, schools, peasant cooperatives, agricultural and construction machinery and development projects. The training camps are alleged to have been in operation from 1983 until after the attack on Linder. Amended Complaint at Para. 31. Furthermore, the Plaintiffs claim that the Defendants used funds deposited in banks within the Southern District of Florida to buy weapons within the district. The Plaintiffs also allege that the Defendants hired a Miami public relations firm and maintained offices within the Southern District of Florida. Amended Complaint at Para. 30.

The Plaintiffs premise their claims of liability upon the contention that the torture and murder of Linder were carried out by the FDN, UNO and its employees acting within the scope of their employment. Defendants Calero, Bermudez, Sanchez and Rodriguez are said to be responsible for acts of terrorism committed by their employees. Moreover, the Defendants Calero, Bermudez, Sanchez and Rodriguez and the FDN and UNO are alleged to have authorized, approved, directed and ratified the torture and execution of Benjamin Linder. In the alternative, the claim is made that the Defendants knew or should have known that members of the FDN tortured and executed wounded persons. Despite this knowledge, the Defendants allegedly failed to take steps to stop such practices.

In support of their Motion to Dismiss, Defendants raise several arguments: first, that the Court lacks subject matter jurisdiction over this action because the claims represent non-justiciable political questions; second, that the action should be dismissed under the Act of State Doctrine; third, that the Plaintiffs have failed to state a claim under customary international law; and, finally, that the Geneva Conventions do not provide a private right of action for the Defendants.3

The obvious purpose of a motion to dismiss is to test the facial sufficiency of the statement of claim for relief. And it is read along with Rule 8(a) of the Federal Rules of Civil Procedure which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." This motion is not designed to strike inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity. Thus the examination of a 12(b)(6) motion is primarily limited to the face of the complaint and attachments thereto. See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1356 (1990). Moreover, for the purposes of the motion to dismiss, the complaint must be construed in a light most favorable to the plaintiff and the allegations taken as true. We hasten to add that this motion is viewed with disfavor and rarely granted. See e.g., Madison v. Purdy, 410 F.2d 99, 100 (5th Cir.1969); International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir.1968) ("Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.") Only a generalized statement of facts is necessary to comply with the liberal federal rules of pleading. A classic formulation of the test often applied to determine the sufficiency of the complaint was set out by the Supreme Court in Conley v. Gibson:

In appraising the sufficiency of the complaint we follow ... the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).

We add that a complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies on since the court must determine if the allegations provide for relief on any possible theory. Robertson v. Johnston...

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