Yousuf v. Samantar (In re Samantar)
| Decision Date | 22 September 2015 |
| Docket Number | Case No. 12–11085–BFK,Adversary Proceeding No. 12–01356–BFK |
| Citation | 537 B.R. 250 |
| Court | U.S. Bankruptcy Court — Eastern District of Virginia |
| Parties | In re: Mohamed Ali Samantar, Debtor. Bashe Abdi Yousuf, et al., Plaintiffs, v. Mohamed Ali Samantar, Defendant. |
J. Robertson Clarke, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Plaintiffs.
Christopher S. Moffitt, Alexandria, VA, for Defendant.
Joseph A. Guzinski, Sean C. Day, Office of the United States Trustee, Alexandria, VA, for U.S. Trustee.
The Plaintiffs in this action seek a declaration of non-dischargeability based upon a judgment entered by the U.S. District Court for the Eastern District of Virginia finding the Defendant liable for torture, indiscriminate killings and human rights abuses. Docket No. 1 (Complaint). The Plaintiffs are all former residents of Somalia, or in one case, the representative of decedents' estates for former residents of Somalia. Id . The Defendant, Mohamed Ali Samantar, served as the First Vice President and Minister of Defense for Somalia from 1980 to 1986, and as the Prime Minister from 1987 to 1990. Id . For the reasons stated below, the Court finds that the District Court's judgment is entitled to collateral estoppel. The Court will declare the District Court judgment to be non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
The Court finds that the following facts are not genuinely in dispute.
1. Plaintiffs Bashe Abdi Yousuf, Buralle Salah Mohamoud, and Ahmed Jama Gulaid are former residents of Somalia. Plaintiff Aziz Mohamed Deria is the personal representative of the estates of Mohamed Deria Ali, Mustafa Mohamed Deria, Abdullahi Salah Mohamoud and Cawil Salah Mohamoud, who were also residents of Somalia.
2. Defendant Mohamed Ali Samantar served as the First Vice President and Minister of Defense for Somalia from 1980 to 1986, and as the Prime Minister from 1987 to 1990.
3. The Plaintiffs and the decedents all are or were members of the Isaaq clan in Somalia. The Issaq clan, some of whom were affiliated with a resistance organization known as the Somali National Movement (“SNM”), was targeted by the government of Major General Siad Barre. As found by District Judge Brinkema in her Opinion (discussed below), the Barre regime “tried to suppress the SNM through a violent military campaign, which included indiscriminate attacks on areas populated by Isaaq clan members, and it ‘intentionally disregarded the distinction between civilians and SNM fighters.’ ” District Court Opinion (hereinafter, “Dist.Ct.Op.”), at p. 7 (quoting the Plaintiffs' Second Amended Complaint).1
4. On November 10, 2004, the Plaintiffs brought an action against the Defendant in the U.S. District Court for the Eastern District of Virginia. Civil Action No. 1:04–cv–01360–LMB–JFA. The Plaintiffs' Second Amended Complaint asserted claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and Alien Torture Victim Protection Act (“TVPA”), Pub.L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). Dist. Ct. Op., p. 2.
5. The Defendant initially defended the action on the ground that he was entitled to immunity under the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C. § 1604. The District Court granted the Defendant's motion for summary judgment based on FSIA immunity. The Fourth Circuit reversed, and the Supreme Court granted certiorari. Yousuf v. Samantar, 552 F.3d 371 (4th Cir.2009), aff'd Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010).
6. In 2010, the Supreme Court affirmed the Fourth Circuit's opinion, holding 9–0 that the Defendant as an individual was not entitled to FSIA immunity. Samantar v. Yousuf, 560 U.S. 305, 325, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). The case was remanded to the District Court for further proceedings.
7. On remand, the Defendant asserted that he was entitled to common law immunity. The District Court rejected this defense on February 15, 2011. Yousuf v. Samantar, No. 1:04–cv–1360–LMB–JFA, 2011 WL 7445583, at *1 (E.D.Va. Feb. 15, 2011).
8. The Defendant appealed the District Judge's common law immunity decision to the Fourth Circuit Court of Appeals. On November 2, 2012, the Fourth Circuit affirmed the District Court, holding that under a jus cogens theory of international law the Defendant was not entitled to immunity. Yousuf v. Samantar, 699 F.3d 763, 777 (4th Cir.2012).2
9. The Defendant petitioned for a writ of certiorari with the Supreme Court. The Supreme Court denied the petition for a writ of certiorari on January 13, 2014. Samantar v. Yousuf, ––– U.S. ––––, 134 S.Ct. 897, 187 L.Ed.2d 833 (2014).
10. In the meantime, while the Defendant's common law immunity claim was making its way to the Supreme Court, the case was scheduled for a trial in the District Court on February 21, 2012. This was a Tuesday, the day after President's Day, a federal holiday during which the federal courts were closed. On Sunday, February 19, 2012, the Defendant filed a voluntary bankruptcy petition under Chapter 7 with this Court. Case No. 12–11085–BFK, Docket No. 1.
11. The Plaintiffs filed an emergency motion for relief from the automatic stay in order to proceed with the trial in the District Court. Id . at Docket No. 4. The Court granted the Motion, finding that there was cause under Section 362(d)(1) of the Bankruptcy Code for immediate relief from the automatic stay so that the trial could proceed in the District Court. Id . at Docket No. 12. The Plaintiffs acknowledged that they would not be entitled to execute on any judgment that might be rendered by the District Court, without further relief from the automatic stay from this Court.
12. The case went to trial on February 23, 2012. Dist. Ct. Op. at pp. 4–5. On the morning of the trial, the Defendant appeared with counsel and advised the District Court that he would default and not defend the case on the merits. Id ., at p. 5. After inquiring whether the Defendant understood the consequences of his action (he did and so advised the Court), the District Judge held the Defendant in default. Id . The Court proceeded to hear evidence of the Plaintiffs' damages without a jury (though, much of the evidence adduced supported a finding of liability as well as damages). Id ., at pp. 5–6.
13. After hearing the evidence from the Plaintiffs, the Court took the matter under advisement. On August 28, 2012, the Court issued its Memorandum Opinion and Order. The District Court's Opinion held the Defendant to be in default and awarded a judgment in the amount of $21 million, consisting of $1 million in compensatory damages and $2 million in punitive damages for each of the three individual Plaintiffs and for the four represented estates. Case No. 1:04–cv–1360, Docket No. 366. The Court entered this judgment in a separate judgment Order. Id ., at Docket No.367.
The District Court made numerous findings of fact in its Opinion. Notably, for purposes of this decision, the District Court found:
15. The Plaintiffs presented three theories of secondary liability: command responsibility, aiding and abetting liability, and joint criminal enterprise liability. Id ., at p. 25. For command responsibility, three elements were required to be proved: (1) a superior-subordinate relationship between the military commander and persons who committed the abuses; (2) the defendant knew or should have known, in light of circumstances at the time, that the subordinates had committed, were committing or were about to commit human rights abuses; and (3) the defendant failed to take all reasonable and necessary measures to prevent human rights abuses and punish the abusers. Id., at p. 26, citing Chavez v. Carranza, 559 F.3d 486, 499 (6th Cir.2009).3
16. For aiding and abetting liability, the Plaintiffs were required to prove: (1) that the Defendant provided practical assistance to the principal which had a substantial effect on the perpetration of the crime; and (2) that the Defendant did so with the purpose of facilitating commission of that crime. Dist. Ct. Op., p. 27, citing Aziz v. Alcolac, Inc., 658 F.3d 388, 396 (4th Cir.2011).
17. The District Court found liability based on the first two theories, command responsibility and aiding and abetting. Dist. Ct. Op., p. 31–32. It found it unnecessary to address joint criminal liability. Id ., at p. 32, fn. 11.
18. The Defendant appealed to the Fourth Circuit, which affirmed the District Court...
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