Lizarbe v. Rondon, Civil No. PJM 07-1809.
| Decision Date | 26 February 2009 |
| Docket Number | Civil No. PJM 07-1809. |
| Citation | 642 F.Supp.2d 473 |
| Parties | Teofila Ochoa LIZARBE, et al., Plaintiffs v. Juan Manuel Rivera RONDON, Defendant. |
| Court | U.S. District Court — District of Maryland |
Wade Bennett Wilson, Mark N. Bravin, Morgan Lewis and Bockius LLP, Washington, DC, Natasha Elisa Fain, San Francisco, CA, for Plaintiffs.
Timothy Francis Maloney, Cary Johnson Hansel, III, Joseph M. Creed, Joseph Greenwald and Laake PA, Greenbelt, MD, for Defendant.
Teofila Ochoa Lizarbe, individually and as representative of the estates of certain of her relatives,1 and Cirila Pulido Baldeon, individually and as representative of the estates of two of her relatives,2 have sued Juan Manuel Rivera Rondon, pursuant to the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, and the Alien Tort Statute (ATS), 28 U.S.C. § 1350. The suit arises out of actions that Rivera Rondon allegedly took while serving in the Peruvian army in 1985 in the Department of Ayacucho in South Central Peru. The suit proceeds in seven counts:
1) Count I (Extrajudicial Killing in Violation of the Torture Victim Protection Act, 28 U.S.C. § 1350);
2) Count II (Torture of Plaintiffs in Violation of the Torture Victim Protection Act, 28 U.S.C. § 1350, and the Alien Tort Statute, 28 U.S.C. § 1350);
3) Count III (Torture of Decedents in Violation of the Torture Victim Protection Act, 28 U.S.C. § 1350, and the Alien Tort Statute, 28 U.S.C. § 1350);
4) Count IV (War Crimes Against Plaintiffs in Violation of the Alien Tort Statute, 28 U.S.C. § 1350);
5) Count V (War Crimes Against Decedents in Violation of the Alien Tort Statute, 28 U.S.C. § 1350);
6) Count VI (Crimes Against Humanity Against Plaintiffs in Violation of the Alien Tort Statute, 28 U.S.C. § 1350); and
7) Count VII (Crimes Against Humanity Against Decedents in Violation of the Alien Tort Statute, 28 U.S.C. § 1350).
Rivera Rondon has filed a Motion to Dismiss, arguing (1) ouster of the Court's jurisdiction by reason of his deportation back to Peru; (2) statute of limitations; (3) immunity from suit under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1602-1611; (4) failure to exhaust remedies available in Peru; (5) non-justiciable political question; (6) applicability of the act of state doctrine; (7) failure to state a cause of action, and (8) lack of standing.
Factual Background and Summary of Arguments
The Complaint makes these allegations:
The towns of Accomarca and Quebrada de Huancayoc are located in the district of Accomarca, situated within the Department of Ayacucho, a mountainous region in south central Peru.
Throughout 1980 to 2000, Peru was in a state of civil war, with Government forces fighting a Maoist rebel group known as Sendero Luminoso ("Shining Path" in English). Some of the fighting was concentrated in the Ayacucho Department. Reportedly, both the Peruvian military and the rebel group committed widespread abuses, massacres, bombings and assassinations during their struggle.
In 1983, the Peruvian Army began targeting the district of Accomarca, claiming that Sendero Luminoso had gained a foothold there. In consequence, the Army raided homes in the district, killing civilians suspected of supporting Sendero Luminoso. In or about August 1985, General Orzo, chief of the Political-Military Command in the region, ordered Lieutenant Medina to convene a meeting to devise an operational plan to "capture and/or destroy terrorist elements in Quebrada de Huancayoc." Rivera Rondon, at the time a Lieutenant in the Army, was present at the meeting where the operation was discussed, where it was decided that his unit, along with a unit commanded by Lieutenant Hurtado, would be deployed to the region.
On or about August 14, 1985, Hurtado's unit positioned itself in the town of Quebrada de Huancayoc and, during the course of the day, despite finding no weapons or traces of Sendero Luminoso, tortured, raped and killed villagers, including several women and children. From their hiding place, Plaintiffs, who were children at the time, witnessed the abuse and murders of their families and other villagers. Thereafter Plaintiffs managed to escape the military forces.
Rivera Rondon's unit was stationed a short distance from that of Hurtado. During the carnage, Rivera Rondon's unit allegedly fired shots, burned houses, and blocked a possible escape route for the villagers. Though the abuse continued for many hours and though Rivera Rondon's unit possessed a radio, he never contacted his superiors about the abuses in progress and after the events, along with Hurtado, filed reports which failed to mention any torture or murder of civilians.
Toward the end of 1985, the Peruvian Senate interviewed eyewitnesses and reached the conclusion that 69 civilians had been killed in what became known as the "Accomarca Massacre." The Peruvian Supreme Court eventually delegated the case to the military as opposed to civil justice system, which subsequently dismissed all charges against military personnel, including Rivera Rondon, who was later promoted by the Army.
In 1995, the Government of Peruvian President Alberto Fujimori passed a law granting amnesty to all members of the military, Rivera Rondon and Hurtado included, for police actions taken as part of fighting terrorists, making the amnesty retroactive to 1980. At the same time, widespread killings by Army forces continued throughout the country during Fujimori's presidency. In 2000, however, the Fujimori Government was replaced and the amnesty law repealed. In 2005, Peruvian prosecutors filed criminal charges against Rivera Rondon, Hurtado, and others for their involvement in the Accomarca Massacre. However, because from 1992 or 1993 until August 2008, Rivera Rondon was absent from Peru, the criminal case against him in Peru could not go forward.
As of the date the suit was filed in this Court, Rivera Rondon was residing in Montgomery County, Maryland, where he was served with process. He was eventually detained by U.S. immigration authorities and in August 2008 deported to Peru where, the Court understands, he remains in custody.
In considering a motion to dismiss, the court must accept the material facts alleged in the complaint as true. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). Generally speaking, the issue posed by the motion is whether the facts alleged, taken as true and without reference to facts beyond those alleged, state a cognizable cause of action. However, to the extent that the motion challenges subject matter jurisdiction pursuant to Rule 12(b)(1), evidence outside the four corners of the complaint may be considered without turning the motion into one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir.2004). Similarly, to the extent that the motion is based on claims of foreign sovereign immunity, "the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case . . ." Id. (internal citations and quotations omitted).
Whether the Court Lost Jurisdiction Over Rivera Rondon Following His Deportation
Rivera Rondon first suggests that the Court lost jurisdiction over the case when U.S. immigration authorities deported him to Peru on August 15, 2008. He argues that no statute gives a U.S. court jurisdiction over a foreign national who is in his home country for actions taken in that country under the circumstances of a case such as this. He further points out that the TVPA provides that "[a] court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." 28 U.S.C. § 1350(2)(b). Because administrative remedies in Peru have presumably become available, says Rivera Rondon, the case should be dismissed pursuant to this provision.
Plaintiffs argue that Rivera Rondon was duly served with process in Montgomery County, Maryland, at a time when he was a permanent resident alien residing there and where, they note, he owned real property. That, they say, sufficed to establish the Court's personal jurisdiction over him. See, e.g., Cape v. von Maur, 932 F.Supp. 124, 126-27 (D.Md.1996). They argue that jurisdiction is not lost by a party's involuntary departure from the United States, citing United States v. Campos-Serrano, 404 U.S. 293, 295 n. 2, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971), superseded by statute on other grounds, 18 U.S.C. § 1546. See also Filartiga v. Pena-Irala, 577 F.Supp. 860, 865 (E.D.N.Y.1984), after remand, 630 F.2d 876, 879-80 (2d Cir.1980) ().
The Court agrees with the authorities cited by Plaintiffs. It did not lose jurisdiction over Rivera Rondon when he was deported. More will be said on the matter of exhaustion of domestic remedies in Part VII of this Opinion.
Whether the Claims Are Barred by the Statute of Limitations
Rivera Rondon next claims that the statutes of limitations under the TVPA and ATS bar Plaintiffs' claims and that equitable tolling of the statutes is unwarranted.
Subject to equitable tolling, the TVPA allows ten years from the time the underlying events occurred for a plaintiff to bring claims and, by analogy, a similar period of limitations has been applied to ATS cases. See, e.g., Doe v. Islamic Salvation Front, 257 F.Supp.2d 115, 119 (D.D.C.2003). Rivera Rondon argues that since the actions giving rise to Plaintiffs' claims occurred in 1985 and the present lawsuit was instituted in 2007, it surpasses limitations under both Acts by 12 years.
Plaintiffs, who have the burden of proof on the issue,3 contend that equitable tolling should apply.
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