Roe v. Unocal Corp.

• Decision Date: 10 August 1999
• Docket Number: No. CV 96-6112 RAP (BQRx).,CV 96-6112 RAP (BQRx).
• Citation: 70 F.Supp.2d 1073
• Parties: John ROE III, et al., Plaintiffs, v. UNOCAL CORPORATION and Union Oil Company of California, Defendants.
• Court: U.S. District Court — Central District of California

Page 1073

70 F.Supp.2d 1073

John ROE III, et al., Plaintiffs, v. UNOCAL CORPORATION and Union Oil Company of California, Defendants.

No. CV 96-6112 RAP (BQRx).

United States District Court, C.D. California.

August 10, 1999.

Terry Collingsworth, International Labor Rights Fund, Washington, D.C., Peter A. Schey, Carlos R. Holguin, Center for Human Rights & Constitutional Law, Los Angeles, CA, Cristobal Bonifaz, John C. Bonifax, Law Offices of Christobal Bonifaz, Amherst, MA, Joseph C. Kohn, Martin J. D'Urso, Kohn, Swift & Graf, P.C., Philadelphia, PA, Christopher E. Krafchak, Steven Rehaut, Gilbert & Sackman, Los Angeles, CA, for plaintiffs.

Edwin V. Woodsome, Jr., D. Barclay Edmundson, Ann E. Grant, Howrey & Simon, Los Angeles, CA, Kristin Linsley Myles, Daniel P. Collins, Douglas A. Axel, Munger, Tolles & Olson, LLP, Los Angeles, CA, for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF JOHN ROE IX

PAEZ, District Judge.

I. Introduction

Pending before the Court is defendant Unocal Corporation's ("Unocal") motion to dismiss plaintiff John Roe IX with prejudice. Plaintiff Roe IX asserts six causes of action: (1) Alien Tort Claims Act, 28 U.S.C. § 1350; (2) civil conspiracy; (3) joint venture liability; (4) implied partnership liability; (5) negligence; and (6) negligent infliction of emotional distress. Defendant Unocal claims that plaintiff Roe IX's claims in the Third Amended Complaint are barred by the act of state doctrine. In the alternative, Unocal seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In response, plaintiff asks the Court to convert the motion to a summary judgment motion and subsequently deny it because triable issues of fact exist. Upon consideration of all written and oral argument, the Court hereby GRANTS defendant's motion to dismiss plaintiff John Roe IX with prejudice for the reasons set forth below.

II. Factual Background

The Court has previously described the factual allegations of plaintiffs' complaint. See National Coalition Gov't of Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D.Cal.1997). Rather than reiterate a summary of the case, the Court presumes familiarity with the basic facts and discusses below only those facts relevant to the Court's determination of the motion to dismiss.

Plaintiff John Roe IX voluntarily joined the Burmese military in 1992. See Third Amended Complaint ("TAC"), ¶ 57. He was eventually assigned to SLORC battalion 282. See TAC, ¶ 57. He alleges that the battalion was formed to provide security for Unocal's pipeline. Id. While acting as a soldier in the army, John Roe IX allegedly witnessed acts of brutality carried out by officers and soldiers on villagers. Id. Roe IX also asserts that his battalion received food from Unocal and Total in exchange for providing security for the pipeline. Id.

In 1997, his commanding officer ordered Roe IX to perform construction work in connection with the pipeline project. See TAC, ¶ 58. Specifically, Roe IX and 200 other soldiers were ordered to dig a drainage trench to divert water from the pipeline. Id. After three months of digging the trench without pay, Roe IX left the army and fled to Thailand. Id.

III. Discussion

A. Standard for Rule 12(b)(6)

A motion to dismiss premised on the act of state doctrine is treated as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 707 (9th Cir.1992). A motion to dismiss under 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Accordingly, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994). The court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988). In fact, even if a document is neither submitted with the complaint nor explicitly referred to in the complaint, the district court may consider the document in ruling on a motion to dismiss so long as the complaint necessarily relies on the document and the document's authenticity is not contested. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998).

Dismissal under Rule 12(b)(6) may be based either on the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). The issue on a motion to dismiss for failure to state a claim is not whether the claimant will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). When evaluating a Rule 12(b)(6) motion, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994). The court is not required, however, to accept "conclusory legal allegations cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg, 18 F.3d at 754-55.

Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). The notice pleading standard set forth in Rule 8 establishes "a powerful presumption against rejecting pleadings for failure to state a claim." Gilligan, 108 F.3d at 248 (citations omitted). Consequently, a court may not dismiss a complaint 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In keeping with this liberal pleading standard, the district court should grant the plaintiff leave to amend if the complaint can possibly be cured by the inclusion of additional factual allegations. Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995). A plaintiff does not waive claims dismissed without leave to amend by failing to reallege them in an amended complaint. Parrino, 146 F.3d at 704.

B. Act of State Doctrine¹

The act of state doctrine precludes a court of the United States from considering a plaintiff's claims where either the claims or the defenses asserted would require the court to determine that a foreign sovereign's official acts performed in its own territory were invalid. W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp. Int'l, 493 U.S. 400, 405, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990). Unocal argues, in asserting the applicability of the doctrine, that by adjudicating plaintiff Roe IX's claims, this Court will necessarily pass judgment on the validity of SLORC's official military acts. In response, plaintiff contends that it is an issue of fact whether his commanding officer was acting under official authority. Thus, plaintiff maintains that defendant has not met its burden of proof.

The Supreme Court's treatment of the act of state doctrine has shifted over time. Kirkpatrick, 493 U.S. at 404, 110 S.Ct. 701. The classic statement of the doctrine rested on notions of international comity,² but more recent formulations focus on the principle of separation of powers. Id. Taken as a whole, the act of state doctrine:

expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere.

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). In other words, the act of state doctrine embodies the purely prudential concern that judicial inquiry into the validity of a foreign nation's sovereign acts may interfere with Executive and Congressional foreign policy efforts. Siderman de Blake, 965 F.2d at 717; see also Republic of the Philippines v. Marcos, 862 F.2d 1355, 1360 (9th Cir.1988) (citing Sabbatino, 376 U.S. at 427-28, 84 S.Ct. 923); International Ass'n of Machinists and Aerospace Workers v. OPEC, 649 F.2d 1354, 1360 (9th Cir.1981).

Because the goal of the act of state doctrine is to protect the interests of the United States and of the international community, the doctrine is not applied at every opportunity. Instead, as the Supreme Court recently put it:

Courts in the United States have the power, and ordinarily the obligation, to decide the cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid.

Kirkpatrick, 493 U.S. at 405, 110 S.Ct. 701. In short, the act of state doctrine may only be invoked to bar adjudication of a plaintiff's claims when the nature of the claims or defenses will require the court to declare invalid a foreign sovereign's official acts, in other words, when "the outcome of the case turns upon [] the effect of official action by a foreign sovereign." Id. at 406, 110 S.Ct. 701.

The Supreme Court has made it clear that the act of state doctrine is not "an inflexible and all-encompassing rule." Sabbatino, 376 U.S. at 428, 84 S.Ct. 923. Rather than formalistically applying the doctrine whenever it is technically available, "a sort of balancing approach" can be used to determine whether the...