Turedi v. Coca Cola Co.

• Decision Date: 02 November 2006
• Docket Number: No. 05 Civ. 9635.,05 Civ. 9635.
• Citation: 460 F.Supp.2d 507
• Parties: Erol TUREDI et al., Plaintiffs, v. The COCA COLA COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

460 F.Supp.2d 507

Erol TUREDI et al., Plaintiffs, v. The COCA COLA COMPANY, et al., Defendants.

No. 05 Civ. 9635.

United States District Court, S.D. New York.

November 2, 2006.

Ivan D. Smith, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, for Plaintiffs.

Anne E. Cohen, James E. Johnson, Debevoise & Plimpton, LLP, Faith E. Gay, Isaac Nesser, Partha Pratim Chattoraj, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, NY, for Defendants.

DECISION AND ORDER

MARRERO, United States District Judge.

Plaintiffs (collectively "Plaintiffs"), all citizens of Turkey, brought this action asserting claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TVPA"), 28 U.S.C § 1350 note, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and New York common law and statutory causes of action. Defendants include the Coca-Cola Company ("Coca Cola"), Coca-Cola Export Corporation ("CCEC"), Coca-Cola Icecek, A.S. ("CCI"), and several corporate Does (collectively "Defendants"). The injuries Plaintiffs assert arose from an alleged violent attack on them by Turkish police during a labor dispute in Istanbul, Turkey between Plaintiffs and CCI, an entity that had employed some of the Plaintiffs and that they claim is controlled by or an agent of Coca Cola and CCEC. Defendants move to dismiss the complaint on the grounds of forum non conveniens, international comity, the act of state doctrine, absence of subject matter jurisdiction, and failure to state any claim on which relief may be granted. CCI additionally contests the Court's personal jurisdiction over CCI. For the reasons stated below, Defendants' motions to dismiss the complaint on forum non conveniens grounds are GRANTED.

I. FACTS¹

Plaintiffs include trade union members once employed by CCI, a Coca Cola bottling and distributing joint venture with its principal place of business in Istanbul, as drivers and other transport workers to deliver Coca Cola products in Istanbul and neighboring areas. According to the complaint, prior to 2000, delivery workers of CCI were organized in a union and their relationship was governed by a collective bargaining agreement with the company. In 2000 the workers were forced to resign from the union. Allegedly to punish workers who had unionized and discourage others, CCI, acting under the direction and control of Coca Cola and CCEC in the United States, assigned workers at two CCI facilities in Istanbul, Dudullu and Yenibosna, to a contractor, Nakliyat ye Ticaret Ltd. ("Trakya"). However, the workers continued to function in every way as they previously had operated while delivering Coca Cola products as CCI employees, including use of the same trucks and uniforms, and reporting to the same facilities and supervisors. On this basis, Plaintiffs contend that Trakya was nothing more than a paper shell or agent of CCI and its joint venture partners, including Coca Cola and CCEC.

The workers at Dudullu and Yenibosna continued their efforts to organize from 2002, and by May 2005 about 90 percent of the total of 110 workers at the plants had formally expressed desire to join a union of transport workers (the "Union") affiliated with DISK, a progressive trade union federation of Turkish workers. On May 12, 2005, the union filed papers with the Turkish Ministry of Labor seeking formal recognition. A week later five employees at Dudullu identified as the leaders of the union organization effort were fired, allegedly for poor performance. This action was followed by the termination of fifty more union workers at Dudullu and fifty at Yenibosna. The workers staged a protest in front of the plants by erecting cardboard shelters and were evicted from the sites by Turkish police, allegedly on orders from CCI. Plaintiffs claim that, to prevent them from entering the property again, CCI then purchased the private lot in front of the Dudullu facility where the protest had occurred.

After the terminations of the 105 Union workers, a group of them and Union representatives met with CCI officials, some of whom also held regional positions with Coca Cola. They were allegedly told that Coca Cola was concerned that if the employees at Dudullu and Yenibosna were allowed to unionize, workers at other Coca Cola plants in Turkey would demand to do so as well.

In the morning of July 20, 2005 workers from both plants, some joined by family members, assembled outside the Dudullu facility to peacefully demonstrate against the terminations and demand reinstatement to their jobs. While Union representatives were meeting with CCI officials, members of Cevik Kuvvet, a special branch of the Turkish police, who Plaintiffs allege "use violence on workers and union members with impunity" (compl. ¶ 40), had been monitoring the protest. Allegedly with the knowledge and at the direction of CCI managers, who in turn were acting on behalf of Coca Cola and CCEC, the police attacked the demonstrators with gas and clubs to evict them from the CCI property they were occupying. At around 8:00 p.m. Plaintiffs were hauled away in police vans, thereafter suffering additional attacks while in police custody. They remained in jail until released on the following day, July 21, 2005, at between 5:00 and 5:30 a.m.

On these facts, Plaintiffs contend that this case "involves the systematic intimidation and torture of trade unionists and their families in Istanbul, Turkey" (id ¶ 3), and that Defendants arranged for the Cevik Kuvvet to assault and arrest Plaintiffs "for the purpose of coercing and intimidating the union members into abandoning their effort to form a union at the Coke facilities, and to terrorize the workers into accepting their mass terminations without further protest" (id. ¶ 18).

Plaintiffs assert that Coca Cola, through CCEC, owns 40 percent of the CCI joint venture and that, through placements of board members under its Bottler's Agreement, the company has exercised a "particularly high level of control and supervision over CCI." (Id. ¶ 91.) By means of its Bottler's Agreement with joint venturers and licensees such as CCI, Coca Cola and CCEC impose standards governing product quality, marketing, bottling and materials used in production. For these purposes they possess the right to inspect products, plants and other aspects of production. Pointing to this authority and forms of external controls, Plaintiffs allege that CCI "does not have any independent authority to make or implement decisions regarding its business practices or direction, but is the agent, alter-ego and/or instrumentality of Coke and the CCI coventurers." (Id. ¶ 100). Plaintiffs contend that Coca Cola and CCEC are jointly liable to Plaintiffs for the injuries they suffered through the acts of CCI. Specifically, Plaintiffs argue that Coca Cola can control whether its bottlers abide by international human rights conventions and national laws, and can enforce compliance by withdrawing its agreements governing the commercial use of Coca Cola's name and products from any bottlers that engage in violence against organized labor. According to Plaintiffs, consistent with these policies, Coca Cola makes representations to consumers, in order to induce them to purchase Coca Cola products, that Coca Cola requires entities associated with its system to abide by the laws and regulations of the country in which they operate. Despite these policies, Plaintiffs further maintain, Coca Cola and CCEC have taken no action to punish any of the CCI managers implicated in the violence committed against Plaintiffs.

After their release the Union-member Plaintiffs continued their peaceful protest outside their former workplaces. Eventually, CCI presented them an offer purportedly on behalf of Trakya, providing for back pay without reinstatement. The workers accepted this arrangement, so as to resolve their "local labor dispute," but asserting in the complaint that the settlement was intended only "to cover the local labor dispute, not the violence by the Cevik Kuvvet." (Id. ¶ 90.)

II. JURISDICTION

Plaintiffs invoke the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331; the ATS and the TVPA with regard to their claims alleging violations of international human rights law; RICO as to Defendants' alleged racketeering activity; and supplemental jurisdiction in respect of various New York statutory and common law causes of action, including assault, battery, negligence, intentional and negligent infliction of emotional distress, false imprisonment, fraudulent misrepresentation, injurious falsehood, unjust enrichment, and deceptive practices.

Defendants assert several grounds in support of their motions to dismiss: forum non conveniens; international comity; the act of state doctrine; failure to establish subject matter jurisdiction or to state a claim for relief under the ATS, TVPA or RICO. CCI additionally challenges the Court's personal jurisdiction over CCI.

As a preliminary matter, the Court considers whether it must address the jurisdictional objections raised by Defendants' motions before reviewing their grounds to dismiss under the doctrine of forum non conveniens. This question presents two issues that, with conflicting results, have arisen with some frequency in this context. First is whether a dismissal warranted by forum non conveniens constitutes a merits-based decision and therefore, consistent with the bounds of Article III of the federal Constitution, the doctrine cannot be applied without a prior adjudication of the court's subject matter jurisdiction. The second issue is whether, even if the rule implicates no determination on the merits of dispute, the Court nonetheless must address the forum question sequentially after confirming that it possesses jurisdiction over the subject matter and over the parties. A substantial Circuit Court split now exists concerning these questions.

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