John Doe I v. Exxon Mobil Corp

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOHN DOE I, et al., )
)
Plaintiffs, )
)
v. ) Civil No. 01-1357 (RCL)
)
EXXON MOBIL )
CORPORATION, et al., )
)
Defendants. )
)
)
JOHN DOE VIII, et al., )
)
Plaintiffs, )
)
v. ) Civil No. 07-1022 (RCL)
)
EXXON MOBIL )
CORPORATION, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Today, the Court disposes of a number of pending motions in two separate but closely
related cases, john Doe 1, et al. v. Exxon Mobz``l Corp., et al., Civil No. Ol-l357 ("Doe 1") and
John Doe VIII, et al. v. Exxon Mobil Corp., et al., Civil No. 07-1022 ("Doe VIII"). These cases
arise from injuries allegedly inflicted upon plaintiffs by Indonesian soldiers employed by
defendants to provide security at a natural gas production facility in Indonesia. Plaintiffs have
brought claims arising under Indonesian tort law in both suits and under the Alien Tort Statute in
Doe I. Before the Court are defendants’ motion to dismiss; plaintiffs’ motion for leave to file
surreply in opposition thereto; and the parties’ competing opposed motions to modify or
reconsider the Court’s September 18, 2013 scheduling order.
For the following reasons and after consideration of the parties’ brief``ing, the relevant
facts, and the applicable law, the Court will GRANT IN PART AND DENY IN PART
defendants’ motion to dismiss, GRANT plaintiffs’ motion for leave to file surreply in opposition
to defendants’ motion to dismiss, GRANT IN PART AND DENY IN PART plaintiffs’ motion
to modify the Court’s scheduling order, and DENY the defendants’ motion for reconsideration of
the Court’s scheduling order.
I. BACKGROUND AND PROCEDURAL HISTORY
A. F actual Backgroundl
This litigation arises from events occurring in the Aceh Province of Indonesia in the years
2000, 2001, and 20()4. Plaintiffs, collectively a group of l5 Indonesian citizens from Aceh,
allege various injuries at the hands of Indonesian soldiers hired to provide security services at the
Arun natural gas field in Aceh. Defendants are four related corporations: Exxon Mobil Corp.
("EMC”), Mobil Corp. (“MC"), ExxonMobil Oil Corp. ("EMOC"), and ExxonMobil Oil
Indonesia, Inc. ("EMOI") (collectively, "Exxon"). MC, EMOC, and EMOI are all wholly owned
subsidiaries of EMC. Compl. For Equitable Relief and Damages ‘1{1[ 13-14, 16, Doe VIII, ECF
No. 4 ("Doe VIII Compl.").
The following factual summary assumes the truth of all of plaintiffs’ factual allegations,
as the Court must do when evaluating a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Pursuant to an exclusivity agreement with the Government of Indonesia ("GOI"), Exxon
began developing the Arun natural gas field in the Aceh province of Indonesia in the early
l Because the two complaints are largely identical, the Court will generally cite only the Doe VIII complaint for
purposes of this background section, except where necessary to do otherwise.
2
l970s. Doe V11I Compl. 11 29. During this period, Exxon retained members of the Indonesian
military to provide security at its facilities at Arun. Id. 11 39. These soldiers committed various
unlawful acts against plaintiffs in Aceh, causing injuries to plaintiffs and, in some cases, their
death. See generally First Am. Compl. For Equitable Relief and Damages {Hl 67-77, Doe I, ECF
No. 123-l ("D0e 1 First Am. Compl."); Doe VIII Compl. 111 6()-63. For example, plaintiffs
allege that John Doe I was shot in the wrist by Exxon security personnel, who then threw a hand
grenade at him and "left him for dead." Doe I, First Am. Compl. 1[ 67. He was later killed
during a raid on his village. Id. Jane Doe plaintiffs lI, III, and lV bring wrongful death claims
arising from the murder or disappearance of their husbands, themselves John Doe plaintiffs. Doe
1, First Am. Compl. 111 75-77.
Plaintiffs allege that these acts were all committed in the scope of the soldiers’
employment as security personnel. Doe VIII Compl. 11 43. They also set forth in their
complaints that Exxon had the ability to control the actions of these soldiers by such methods as
conditioning payment on provision of specific security services, making decisions about
placement of bases, engaging in strategic mission planning, and deciding on deployment zones.
ld. 11 47. Plaintiffs further assert that Exxon provided material support to the security personnel
by, for example, constructing facilities, providing funding for weapons, providing supplies and
equipment, and paying for the services of consultants in training and equipping the personnel.
Id.
B. ProceduralHistory
The first group of ll plaintiffs filed suit in 2001. Doe 1 initially alleged the following
causes of action: (a) claims arising under the Alien Tort Statute ("ATS") for murder, genocide,
torture, kidnapping, and crimes against humanity; (b) claims arising under the Torture Victim
Protection Act ("TVPA") for torture and extrajudicial killing; (c) a claim for Violence Against
Women; and (d) various non-federal tort claims. Compl. For Equitable Relief and Damages 1]1]
63-126, Doe 1, ECF No. 3 ("Doe 1 Original Compl.").
The defendants moved to dismiss and Judge Oberdorfer, then presiding over Doe 1,
granted in part and denied in part. Doe 1 v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 21-22
(D.D.C. 2005). The court dismissed plaintiffs’ federal statutory claims, both those arising under
the ATS and the TVPA. Id. at 24-28. The court also dismissed the claim for Violence Against
Women. 1d. at 28. Plaintiffs’ state law claims were allowed to proceed, except as to then-
defendant PT Arun LNG Co., a company that was majority owned by Pertamina, a GOI-owned
oil and gas company. Id. (concluding that "[a]djudicating the liability of an entity owned by the
Indonesian government would create a significant risk of interfering in Indonesian affairs and
thus U.S. foreign policy concems"). The court subsequently determined that D.C. and Delaware
law applied to plaintiffs’ non~federal tort claims. Doe 1 v. Exxon Mobil Corp., 573 F. Supp. 2d
16, 22 (D.D.C. 2008).
In June 2007, a different set of anonymous plaintiffs filed suit in this Court, alleging only
non-federal claims. See Doe VIII Compl. 1111 70-110. Doe 1 was reassigned here shortly
thereafter. Doe VIII v. Exxon Mobil Corp., 658 F. Supp. 2d 131, 132 (D.D.C. 2009), aff d in
part, rev ’a' in part, 654 F.3d ll (D.C. Cir. 20ll), vacated in part, 527 F. App’x 7 (D.C. Cir.
2013). The Court dismissed both suits, concluding that plaintiffs, as non-resident aliens, lacked
standing to sue in United States courts. Id. at 135; Order, Sept. 30, 2009, Doe 1, ECF No. 4l2.
ln light of this threshold determination, the Court declined to reach any of the defendants’ other
asserted grounds for dismissal. Doe VIII, 658 F. Supp. 2d at 133.
The Court of Appeals subsequently reversed in part and affirmed in part. While
affirming dismissal of the TVPA claim, the Court held that the Doe 1 plaintiffs’ ATS claims
could proceed on an aiding and abetting theory of liability. Doe V111 v. Exxon Mobil Corp., 654
F.3d ll, 15 (D.C. Cir. 201 l), vacated in part, 527 F. App’x 7 (D.C. Cir. 2013). As to the non-
federal claims, it reversed this Court, holding that plaintiffs had standing and that their claims
were governed by Indonesian law. 1d. at l5, 70. lt also expressly remanded the question of
whether EMOl’s presence defeated diversity jurisdiction and whether EMOI could be dismissed
to preserve jurisdiction in Doe V111. 1d. at 7l.
The Court of Appeals then, sua sponte, stayed proceedings while the Supreme Court
considered the cases of Kiobel v. R0yal Dutch Petro[eum C0. and Mohamad v. Rajoub. Doe V111
v. Exxon Mobil Corp., USCA Case No. 09-7l25, Order, Nov. 14, 20ll, ECF No. 1341654. lt
subsequently vacated its order as to the ATS claims, remanding the issue to this court for
consideration of the ATS claims in light of the Supreme Court’s holding in Kiobel and the
lnternational Criminal Tribunal for the Forrner Yugoslavia’s holding in Prosecutor v. Peri§ié.
Doe V111 v. Exxon Mobil Corp., 527 F. App’x 7 (D.C. Cir. 2013). The court also affirmed
dismissal of the TVPA claims and reversed dismissal of the non-federal claims, expressly
preserving Parts IV and VI of its prior opinion. 1d.
II. PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY
Before ruling on Exxon’s motion to dismiss, the Court must determine whether to grant
leave to plaintiffs to file a surreply in opposition to it. As a general rule, surreplies are
disfavored. Kifafz`` v. Hilt0n Hotels Retirement Plan, 736 F. Supp. 2d 64, 69 (D.D.C. 20l0).
Nonetheless, leave to file is "routinely" granted "when a party is unable to contest matters
presented to the court for the first time in the last scheduled pleading." Ben-K0tel v. Howard
Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (internal quotation marks omitted). The decision to
grant or deny leave is "committed to the sound discretion of the Court.” Lu v. Lezell, ---F. Supp.
2d---, Civil Action No. 11-1815 (JEB), 2014 WL 2199314, at *2 (D.D.C. May 27, 2014). A
district court should consider "whether the movant’s reply in fact raises arguments or issues for
the first time, whether the nonmovant’s proposed surreply would be helpful to the resolution of
the pending motion, and whether the movant would be unduly prejudiced were leave to be
granted." Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 20l2).
The Court is persuaded that plaintiffs should be granted leave to file their surreply. First,
plaintiffs seek to respond to an additional expert declaration regarding Indonesian law submitted
as part of Exxon’s reply. Pl.’s Reply in Support of Pl.’s Mot. For Leave to File Surreply l-4,
Doe 1, ECF No. 453, Doe VIII, ECF No. 81. This Court has previously granted leave to file a
surreply when the opposing party’s reply brief included a supplemental declaration. Flanagan v.
Wyndham Int’l Inc., 231 F.R.D. 98, 101 (D.D.C. 2005) ("Were this Court to deny the Wyndham
Defendants leave to file a sur-reply, the Wyndham Defendants would be unable to contest
matters presented to the court for the first time in the form of S.G.’s supplemental declaration.");
Wu/zz v. Jslamzc Republzc @_/lmn, No. 0s-cv-1460 (RCL), 2010 wL 4135913, at *2 (D.D.C. oct
20, 2010) (granting leave to file surreply to respond to additional expert declaration on foreign
law that expanded on prior declaration). Similarly, plaintiffs should be granted leave to file so
they may respond to the additional cases raised in defense expert Winarta’s second supplemental
declaration.
Second, Exxon argues for the first time in its reply brief that because plaintiffs have
allegedly conceded they cannot identify their attackers, their claims must be dismissed for failure
to plausibly state a claim. Def.’s Reply in Support of Def.’s Mot. To Dismiss 16-18, Doe 1, ECF
No. 444, Doe VIII, ECF No. 74. While Exxon mentioned this contention in the background
section of its opening brief, it did not marshal the point as support for the failure to plausibly
state a claim until the reply. See Def.’s Mot. to Dismiss 8, Doe 1, ECF No. 426, Doe VIII, ECF
No. 61. Therefore, plaintiffs should be permitted to respond to this argument by surreply.
Finally, Exxon has not stated that consideration of plaintiffs’ surreply would be
prejudicial to them. Absence of prejudice is another factor in favor of granting leave to file a
surreply. See, e.g., Lopez v. Council on Arnerican-Islarnic Relations Action Network, Inc., 657 F.
Supp. 2d 104, 108 (D.D.C. 2009); Kifafi, 736 F. Supp. 2d at 69.
For these reasons, the plaintiffs’ motion for leave to file a surreply is granted and that
document will be considered by the Court in deciding Exxon’s motion to dismiss.
III. DEFENDANTS’ MOTION TO DISMISS
A. Standard of Review
Exxon seeks dismissal for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure l2(b)(l) and for failure to state a claim under Rule l2(b)(6). In Doe 1, with regard to
the latter ground for dismissal, Exxon alternatively seeks judgment on the pleadings pursuant to
Rule l2(c).
1. Rule 12(b)(1)_Lack of subject matter jurisdiction
A motion to dismiss for lack of subject matter jurisdiction shall be granted if a plaintiff
fails to demonstrate that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.
Cir. 2008). Plaintiff must establish jurisdiction by a preponderance of the evidence. Bradshaw
v. Ojjice ofthe Architect ofthe Capitol, 856 F. Supp. 2d 126, 134 (D.D.C. 2012).
In evaluating its jurisdiction, a court "may consider materials outside the pleadings."
Settles v. U.S. Parole Cornm ’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). The court should construe
the complaint liberally in plaintiffs’ favor and accept all factual allegations as true. Speelman v.
United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.
Cir. 2004). Nonetheless, the court "need not accept inferences drawn by the plaintiffs if those
inferences are unsupported by facts alleged in the complaint; nor must the Court accept
plaintiffs’ legal conclusions." Speelrnan, 461 F. Supp. 2d at 73.
2. Rule l2(b)(6)_Failure to state a claim
A motion to dismiss for failure to state a claim under Rule l2(b)(6) "tests the legal
sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To meet
Rule 8’s requirement of a "short and plain statement of the claim showing that the pleader is
entitled to relief," a complaint must "state a claim to relief that is plausible on its face." Iqbal,
556 U.S. at 677-78 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
means that the plaintiff must plead sufficient factual content that allows a court to draw a
"reasonable inference" of liability. 1d. at 678. While the plaintiff must demonstrate "more than
a sheer possibility that a defendant has acted unlawfully," he need not show a probability that
such unlawful conduct occurred. 1d.
ln making this determination, a court "may consider the facts alleged in the complaint,
the documents attached to the complaint as exhibits or incorporated by reference, and matters
about which the court may take judicial notice." Cole v. Boei°ng Co., 845 F. Supp. 2d 277, 283
(D.D.C. 2012) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)). A
Court must accept as true all factual allegations in the complaint. 1qbal, 556 U.S. at 678. This
includes those which may be "doubtful in fact." Twombly, 550 U.S. at 555. On the other hand,
the Court need not accord the same deference to legal conclusions stated in the complaint. Iqbal,
556 U.S. at 678.
3. Rule l2(c)-Judgment on the pleadings
A motion pursuant to Rule l2(c) seeks judgment on the pleadings after the pleadings are
closed "but early enough not to delay trial." Fed. R. Civ. P. l2(c). The motion is "functionally
equivalent to a Rule l2(b)(6) motion." Rollins v. Wackenhut Servs., 1nc., 703 F.3d l22, 130
(D.C. Cir. 2012). Thus, the same Twombly-Iqba/ pleading standard outlined above applies to a
court’s evaluation of a Rule l2(c) motion. Yancey v. District of Columbia, 991 F. Supp. 2d 171,
175 (D.D.C. 2013).2 The court may apply the same standard of review to Exxon’s challenges to
the sufficiency of the complaints in both Doe 1 and Doe V1II.
B. Legal Standard and Application
1. Threshold prudential and justiciability doctrines
Exxon raises a number of threshold challenges to these proceedings based on various
prudential and justiciability doctrines.
a. Act of state doctrine
Exxon argues that this Court may not adjudicate plaintiffs’ claims because this would
require the Court to declare invalid an official act of the GOl. See Def’s Mot. to Dismiss 33-35.
The act of state doctrine "requires American courts to presume the validity of an official
act of a foreign sovereign performed within its own territory." Republic ofAustria v. Altmann,
541 U.S. 677, 713 (2004) (intemal quotation marks omitted). The doctrine must be considered
when "the relief sought or the defense interposed would [require] a court in the United States to
declare invalid the official act of a foreign sovereign performed within its own territory."
McKesson Corp. v. ]slamic Republic of Iran, 672 F.3d l066, 1073 (D.C. Cir. 2012) (quoting
2 While the parties dispute whether Exxon’s motion to dismiss in Doe 1 would be better characterized as a Rule
l2(b)(6) or a Rule l2(c) motion, the Court need not decide the issue because of the functionally identical standards
of review for each. See Def.’s Mot. to Dismiss 14 n.l2; Pl.’s Resp. in Opp’n To Def.’s Mot. to Dismiss 11, Doe 1,
ECF No. 434, Doe VIII, ECF No. 69. .
VV.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 405 (1990)). lt provides a "rule
of decision" requiring a court to deem legal the official act of a foreign sovereign when the
legality of that act is at issue in a case. W.S. Kirkpatrick & Co., 493 U.S. at 406. On the other
hand, the act of state doctrine is not an "exception for cases and controversies that may
embarrass foreign governments." 1d. at 409. The burden of proving that an act of state occurred
lies with the party asserting the defense. Agudas Chasidei Chabad of U.S. v. Russian Fed ’n, 528
F.3d 934, 951 (D.C. Cir. 2008).
The type of official act that implicates the act of state doctrine is that which is "by nature
distinctly sovereign, i.e., conduct that cannot be undertaken by a private individual or entity."
McKesson, 672 F.3d at 1073. An illustrative list of such public acts includes "pass[ing] a law,
issu[ing] an edict or decree, or engag[ing] in formal govemmental action taking [plaintiff’s]
property." 1d. at 1074. In the context of military operations, the Supreme Court has invoked the
act of state doctrine in cases where challenged actions by foreign militaries were taken pursuant
to official orders. See Oetjen v. Cent. Leather Co., 246 U.S. 297, 300-01, 303-04 (1918)
(stating that the actions of a "duly commissioned military commander" were "not subject to re-
examination and modification by the courts of this country" in a suit to declare the commander’s
seizure of plaintiff``s property invalid); Underhill v_ Hernandez, 168 U.S. 250, 25l, 253-54
(1897) (holding suit for damages arising from plaintiff’s military detention not subject to
adjudication because the acts were those of a military commander representing a foreign
government and were, therefore, acts of the govemment itself).
No such sovereign public act is at issue in this suit. Plaintiffs do not allege that Exxon’s
security forces, while admittedly soldiers in the Indonesian military, injured them pursuant to
official policies of the GO1 or orders from military commanders. Indeed, this fact about
10
plaintiffs’ allegations is the key point distinguishing these cases from those upon which Exxon
bases its argument. See Oetjen, 246 U.S. at 303-04 (declining to declare invalid an officially
ordered seizure of property). Exxon has made no showing that plaintiffs were injured pursuant
to official military orders as required by the act of state doctrine. Because Exxon possesses the
burden of proof as the party invoking the defense, this failure to so demonstrate is fatal to their
invocation of the doctrine. See Chabad, 528 F.3d at 951.
Furthermore, and in the altemative to the reasoning in the preceding paragraph, the
validity of the Indonesian soldiers’ conduct as a matter of Indonesian law is not at issue in this
case, thus providing an independent basis for the inapplicability of the act of state doctrine.
Plaintiffs’ claims only seek to "obtain damages from private parties who procured" the soldiers’
conduct. VV.S. Kz``rkpatrick & Co., 493 U.S. at 407. lt is not sufficient under the act of state
doctrine that a court’s factual findings would "impugn" the foreign state’s actions; the claims
must call for the invalidation of those actions. See id. at 408 (holding the act of state doctrine not
to apply in a suit that may have involved a judicial determination that foreign officials had
engaged in bribery).
b, Forum non conveniens challenge to the Indonesian law claims
Exxon challenges maintenance of plaintiffs’ claims in this Court on the ground that this is
a forum non conveniens. Def.’s Mot. to Dismiss 43-44.
The existence of an available alternative forum is the first question that must be answered
when making a forum non conveniens inquiry. Pz``per Aircraft Co, v. Reyno, 454 U.S. 235, 254
n.22 (l 981). 'l``o satisfy this requirement, in general, a defendant must be "amenable to process in
the other jurisdiction." 1d. (internal quotation marks omitted). lt is the defendant’s burden to
prove the existence of an available and adequate altemative forum. El-Fadl v. Cent. Bank of
ll
.]ordan, 75 F.3d 668, 677 (D.C. Cir. 1996), abrogated on other grounds, Sa)nantar v. Yousuf
560 U.s. 305 (2010).
Exxon’s argument that Indonesia is available as an altemative forum because EMOl
alone is amenable to service there is incorrect. Def.’s Mot. to Dismiss 44. An altemative forum
is only available if "the entire case and all parties can come within the jurisdiction of that
forum." Rundquist v. Vapiano SE, 798 F. Supp. 2d 102, 133 (D.D.C. 2011) (quoting Saqui v.
Pride Cent. Am., LLC, 595 F.3d 206, 2l1-12 (5th Cir. 2010)); see also Lans v. Adduci Mastriani
& Schaumberg L.L.P., 786 F. Supp. 2d 240, 290-91 (D.D.C. 2011) (citing cases illustrative of a
"wide-ranging consensus among the various Circuits that a dismissal based on forum non
conveniens requires that the altemate forum have jurisdiction over all of the moving party’s co-
defendants").
All of the defendants must be amenable to process in Indonesia in order for it to serve as
an available altemative forum. The U.S. based Exxon defendants specifically deny that they are
amenable to process there. Def.’s Mot. to Dismiss 44. Because Exxon has failed to prove that
Indonesia is an available forum for all defendants, as is its burden, the Court cannot dismiss this
suit on the ground of forum non conveniens The Court declines to consider whether Indonesia is
an adequate forum or if the public and private interest factors weigh in favor of dismissal on the
basis of forum non conveniens because Exxon has failed to prove lndonesia’s availability.
c. Failure to exhaust local remedies for violations of international law
Exxon also objects to continuation of these suits on the ground that plaintiffs were
obligated to exhaust remedies available to them in Indonesia before suing in the United States.
Def.’s Mot. to Dismiss 27-29.
12
Support for some form of exhaustion requirement for claims arising under the ATS has
grown in recent years. This has occurred in large part due to the Supreme Court’s statement in
Sosa v, Alvarez-Machain, 542 U.S. 692 (2004) that it would consider a domestic exhaustion
requirement "in an appropriate case" arising under the ATS. 1d. at 733 n.2l. The Court’s
remark came in response to a European Commission amicus brief that suggested it was a rule of
intemational law that plaintiffs exhaust domestic remedies before suit could be brought in
foreign courts for violations of customary intemational law. 1d.
Building off of the Supreme Court’s dictum in Sosa and the rule of intemational law
referred to in the European Commission’s brief, some courts of appeals have begun to recognize
that plaintiffs may be required to exhaust domestic remedies before bringing claims for
violations of intemational law under the ATS.?’ See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 829-
30 (9th Cir. 2008) (en banc plurality op.); Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 679-
81 (7th Cir. 2012). An essential element of this exhaustion requirement is that there be effective,
non-futile remedies available in the alternative, local forum. Sarei, 550 F.3d at 830. lt is the
defendant’s burden to "plead and justify an exhaustion requirement, including the availability of
local remedies." 1d. at 832.
Exxon has failed to prove the availability of effective, non-futile remedies for the
intemational law violations alleged. Plaintiffs have shown that Indonesian human rights
3 'l``he rule being described here applies only to suits for intemational law violations. Abelesz and Sarei, two primary
cases elaborating the intemational law exhaustion requirement, draw upon two sources as support for the rule: The
Restatement ('l``hird) of Foreign Relations and a case from the lnternational Court of Justice, the 1nterhandeI Case.
In both authorities, the exhaustion rule arises specifically in cases of international law violations. Restatement
(Third) of Foreign Relations Law § 703 cmt. d, § 713 cmt. f (1987) (stating an exhaustion requirement in the context
of remedying injuries resulting from intemational law violations); 1nterhandel (Switz. v. U.S.), Preliminary
Objections, 1959 I.C.J. 6, 27 (Mar. 21) (noting that the exhaustion rule is observed in "cases in which a State has
adopted the cause of its national whose rights are claimed to have been disregarded in another State in violation of
intemational law"). The Court finds no support for an exhaustion requirement as to plaintiffs’ Indonesian law
claims and holds that no such exhaustion requirement applies to those claims.
13
tribunals are either non-existent or not functional and that recovery in Indonesian civil court for
human rights violations of the type alleged in Doe 1 is unlikely in light of political corruption.
Ross Clarke Supplemental Decl. 1111 4-5, Doe 1, ECF No. 446-1, Ex. 2 (citing a U.S. State
Department country report for his assessment of the Indonesian court system). These problems
are sufficient to demonstrate that pursuit of local remedies in Indonesia would be liitilc. See
Bowoto v. Chevron Corp., 557 F. Supp. 2d l080, 1097 (N.D. Cal. 2008) (concluding that
plaintiffs had adequately shown the futility of local remedies by, in part, citing State Department
reports for the proposition that the Nigerian court system was inefficient and corrupt).
Exxon presents evidence of only one other somewhat similar case to these, a 2003 district
court decision where an Indonesian National Police officer was ordered to pay damages for
shooting a plaintiff See Frans Hendra Winarta Second Supplemental Decl. 11 3(b), Doe 1, ECF
No. 444-4, Doe V111, ECF No. 74-4. This case, does not, however allege the kind of grave
human rights violations the Doe 1 plaintiffs have alleged and does not relate to conduct of
Indonesian soldiers in Aceh. As expert testimony indicates to the Court, problems of the
administration of justice are particularly difficult in Indonesia with respect to past human rights
abuses committed by Indonesian soldiers. See Clarke Supplemental Decl. 11 6 (citing human
rights reports for the proposition that a "culture of impunity" still exists for Indonesian soldiers’
past human rights abuses).
Because plaintiffs do not have available, effective, and non-futile local remedies for the
intemational law violations alleged here, they are not required to exhaust local remedies in
Indonesia before suing in the United States.
d. lnternational comity
14
As an additional altemative ground for dismissal, Exxon contends that this Court should
abstain from deciding these cases on grounds of intemational comity. Def.’s Mot. to Dismiss
29-33.
The doctrine of international comity is the basic "recognition which one nation allows
within its territory to the legislative, executive or judicial acts of another nation." Hilton v.
Guyot, 159 U.S. 113, 164 (1895). The doctrine arises most often in retrospective situations,
when "courts consider whether to respect the judgment of a foreign tribunal or to defer to parallel
foreign proceedings." GDGAcquisitz``ons, LLC v. Gov ’t of Belize, 749 F.3d 1024, 1030 (l lth Cir.
2014); see also Gross v. German Found. 1ndus. Initiative, 456 F.3d 363, 392 (3d Cir. 2006)
("Generally, United States courts will not review acts of foreign govemments and will defer to
proceedings taking place in foreign countries, allowing those acts and proceedings to have
extraterritorial effect in the United States.").
Sometimes, on the other hand, a court may "appl[y] intemational comity prospectively,
without a conflicting past or present foreign proceeding." GDG Acquisitions, 749 F.3d at 1030.
In that situation, there must generally be an adequate and available altemative local forum in
which the plaintiff could pursue effective and nori-flitile remedies. United States v. One
Guija¢ream G_VJ@¢ Atrcraf¢, 941 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Doe V111, 654 F.3d at
64). This means, as in a forum non conveniens inquiry, that the court must also consider whether
the defendant would be amenable to service of process in the foreign jurisdiction. Jota v.
Texaco, Inc., 157 F.3d l53, 160 (2d Cir. 1998); see supra PartII1.B.l.b.
Here, as explained above in the Court’s discussion of forum non conveniens, the Court
concludes that abstention on the basis of intemational comity would be inappropriate because all
defendants except EMOl have denied their amenability to service of process in lndonesia.
15
Exxon argues that the availability of an alternative forum is not absolutely necessary when
considering abstention on comity grounds. ln Jota, the Second Circuit stated that "extreme cases
might be imagined where a foreign sovereign’s interests were so legitimately affronted by the
conduct of litigation in a United States forum that dismissal is warranted without regard to the
defendant’s amenability to suit in an adequate foreign forum.” 1d. However, Jota’s statement
does not appear to be the law of this circuit. ln Doe VIII, the Court of Appeals specifically
determined that, in the absence of a prior judgment or pending proceedings to which the Court
must defer, the defendant was obligated to present evidence of an adequate and available
altemative local forum. See Doe VIII, 654 F.3d at 64. The failure to prove an adequate and
available alternative forum in Indonesia is fatal to Exxon’s comity argument.
e. Political question doctrine
Exxon argues that this Court lacks jurisdiction over plaintiffs’ claims because they
encompass non-justiciable political questions. Def.’s Mot. to Dismiss 35-36.
The political question doctrine arises out of the Constitution’s separation of powers; it
removes from judicial consideration those "controversies which revolve around policy choices
and value determinations constitutionally committed for resolution to the halls of Congress or the
confines of the Executive Branch." El-Shifa Pharmaceutical Indus. Co. v. United States, 607
F.3d 836, 840 (D.C. Cir. 2010) (quoting japan Whaling Ass’n v. Am. Cetacean Soc ’y, 478 U.S.
221, 230 (1986)). The Supreme Court, in Baker v. Carr, 369 U.S. 186 (1962), broadly listed the
types of cases that present non-justiciable political questions:
Prominent on the surface of any case held to involve a political question is found
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court’s undertaking independent resolution without
16
expressing lack of the respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
1d. at 217.
Suits relating to foreign affairs often give rise to non-justiciable political questions. El-
Shifa, 607 F.3d at 841. This is unsurprising, as foreign policy decision making is largely
assigned by the Constitution to the political branches. See Schneia’er v. Kissinger, 412 F.3d 190,
194 (D.C. Cir. 2005). Nonetheless, not all suits implicating foreign affairs give rise to non-
justiciable political questions; the nature of the particular question being asked of a court is
essential to determining whether the doctrine precludes judicial review. See El-Shifa, 607 F.3d
at 841.
Here, plaintiffs’ allegations do not challenge any foreign relations decisions of the United
States. lnstead, Exxon argues that political question dismissal is required because the mere
maintenance of this suit implicates strong foreign policy concerns of the United States,
specifically the United States’ policy of supporting the Helsinki Accord and continued peace in
lndonesia. Along these lines, the D.C. Circuit has held that "[t]he Executive’s judgment that
adjudication by a domestic court would be inimical to the foreign policy interests of the United
States is compelling and renders this case nonjusticiable under the political question doctrine."
Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C. Cir. 2005). Evidence of the State
Department’s views as to this issue are accorded "substantial weight" because the effect of
litigation on the foreign policy interests of the nation is "at the heart of the Department’s
expertise." See 1n re Papandreou, 139 F.3d 247, 252 & n.2 (D.C. Cir. 1998) (giving substantial
weight to the State Department’s views with respect to the exigencies of protocol because the
question was at the heart of the Department’s expertise).
17
Exxon’s argument for dismissal on this basis fails, however, for the same reason it did
previously at the Court of Appeals. ln short, there is an insufficiently recent and definite
statement from the Executive that this case interferes with the foreign policy of the United States.
See Doe VIII, 654 F.3d at 62 (holding that without a "sufficiently unambiguous and recent
statement from the United States expressing concem" over the suit, dismissal on justiciability
grounds was not warranted). No such statements have been forthcoming in the period since the
Court of Appeals’ decision in 2011. Absent evidence demonstrating the Executive’s view that
maintenance of this litigation would be "inimical" to United States foreign relations, the Court
cannot dismiss on this basis.
Additionally, Exxon’s reliance upon Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659 (2013) as an intervening change in the law requiring a different conclusion than that
reached by the Court of Appeals in Doe VIII is misplaced. Def.’s Reply in Support of Def.’s
Mot. to Dismiss 29-30. Kiobel’s discussion of foreign policy concems was entirely related to
answering whether the presumption against extraterritoriality applies to the ATS. Kiobel, 133
S.Ct. at 1664-69. The Court did not invoke the political question doctrine, nor the subset of that
doctrine regarding the justiciability of claims when the executive branch has expressed strong
reservations about their adjudication. ln this context, Kiobel is inapposite.
f Foreign ajj”airs preemption of plaintiffs ’ Indonesian law claims
Finally, Exxon urges dismissal of plaintiffs’ Indonesian law claims on the basis of the
foreign affairs preemption doctrine. Def’s Mot. to Dismiss 36-37.
Foreign affairs preemption doctrine holds that in certain cases where state laws implicate
foreign affairs, those laws may be preempted, even absent any conflict with federal law. See
Saleh v. Titan Corp., 580 F.3d l, 13 (D.C. Cir. 2009) (analyzing Supreme Court foreign affairs
18
preemption cases and concluding that "preemption arose not because the state law conflicted
with the express provisions of federal law, but because, under the circumstances, the very
imposition of any state law created a conflict with federal foreign policy interests") (emphasis in
original). When no direct conflict exists with federal law, preemption in this context is premised
on a field preemption theory. Movsesian v. Wctoria VersicherungAG, 670 F.3d 1067, 1072 (9th
Cir. 2012).
The doctrine is rooted in the idea that "at some point an exercise of state power that
touches on foreign relations must yield to the National Government’s policy, given the ‘concern
for uniformity in this country’s dealings with foreign nations’ that animated the Constitution’s
allocation of the foreign relations power to the National Government in the first place." Am. 1ns.
Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (quoting Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 427 n.25 (1964)). This idea is based on the principle that "the Constitution
entrusts foreign policy exclusively to the National Government." Garamendi, 539 U.S. at 419
n.ll; see also Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ("Our system of government is such
that the interest of the cities, counties and states . . . imperatively requires that the federal power
in the field affecting foreign relations be left entirely free from local interference.").
The majority at the Court of Appeals concluded that Exxon’s arguments on this point
were inapposite, as the cases articulating foreign affairs preemption relate to the "need to prevent
the legislatures of the states from conducting foreign policy." Doe VIII, 654 F.3d at 7l. The
Court agrees with this reasoning and holds that foreign affairs preemption doctrine does not
apply in this context because the Court is not considering a U.S. state law, making irrelevant the
doctrine’s concems about maintaining the proper constitutional balance between state and
federal authority.
19
As support for their argument that Indonesian law is preempted, Exxon cites Saleh, which
held that the Federal Tort Claims Act preempted the imposition of state or foreign tort law. See
Saleh, 580 F.3d at 7. This argument misses the mark, however, as the Saleh court, at that point
in its opinion, was discussing whether state or foreign law was preempted by its direct conflict
with the FTCA. 1d. The statement was not rooted in the constitutional inquiry that underlies the
foreign affairs field preemption doctrine; instead, the court was merely engaging in a traditional
preemption analysis of supreme federal law and conflicting state and foreign laws. See id.; see,
e.g., LaSala v. Bordier et Cie, 519 F.3d 121, 139 (3d Cir. 2008) ("To be sure, Congress has the
authority to counter-instruct district courts not to entertain particular categories of civil actions
arising under foreign law . . . ."). There is no similar expression of federal policy in this case to
indicate that the Court should not entertain these foreign tort claims on the basis of preemption.
2. Alien Tort Statute claims in Doe 1
Exxon objects to plaintiffs’ ATS claims as being barred by the presumption against
extraterritoriality. Def.’s Mot. to Dismiss 16-22 lt also argues that plaintiffs have failed to state
claims under the ATS. 1d. 22-27.
a. ATS liability for aiding and abetting international law violations
The Alien Tort Statute provides that "[t]he district courts shall have original jurisdiction
of any civil action by an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States." 28 U.S.C. § 1350 (2014). The Supreme Court, interpreting this
rather opaque text, has concluded that the ATS does not create any new causes of action and is
merely a jurisdictional statute. Sosa, 542 U.S. at 724. Nonetheless, the Court held that the ATS
was enacted with the "understanding that the common law would provide a cause of action for
the modest number of intemational law violations with a potential for personal liability" at the
20
time of the statute’s enactment. 1d. Thus, federal courts may recognize private claims under the
ATS as a matter of federal common law if those claims sufficiently "state a violation of the law
of nations with the requisite definite content and acceptance among civilized nations." Kiobel,
133 S.Ct. at 1663 (intemal quotation marks omitted). After undertaking this type of analysis, the
Court of Appeals has allowed the Doe 1 plaintiffs’ ATS claims to go forward on an aiding and
abetting theory of liability, holding that relevant "authorities and sources confirm that aiding and
abetting liability is clearly established in the law of nations and consequently such liability is
available under the ATS." Doe V111, 654 F.3d at 32.
b. ATS and the presumption against extraterritoriality
In addition to clarifying what causes of action may be recognized under the ATS, the
Supreme Court has also recently answered the question of whether the location of conduct is
relevant to determining whether that conduct gives rise to ATS liability. The latter issue relates
to the presumption against extraterritoriality, which holds that "[w]hen a statute gives no clear
indication of an extraterritorial application, it has none." Morrison v. Nat’l Austl. Bank Ltd., 561
U.S. 247, 255 (2010). This presumption is not a limit upon Congress’s power to legislate;
instead, it is a canon of construction that reflects the "perception that Congress ordinarily
legislates with respect to domestic, not foreign matters." 1d.
ln Kiobel, the Court held that the presumption against extraterritoriality applies to the
ATS as well. Kiobel, 133 S.Ct. at 1665. While the ATS, as a purely jurisdictional statute, does
not itself regulate conduct, the Court held that the "principles underlying the canon of
interpretation similarly constrain courts considering causes of action that may be brought under
the ATS." 1d. at 1664. The Court so held in light of the magnified "danger of unwarranted
judicial interference in the conduct of foreign policy" in the context of ATS claims, where courts
21
are themselves defining the scope of the claims arising under the statute. 1d. The Court also held
that nothing in the statute, nor the history surrounding its passage, rebutted the presumption
against extraterritoriality, 1d. at 1665-69.
As to the particular case before it, the Court held that petitioners were barred from
recovery under the ATS because "all the relevant conduct took place outside the United States."
1d. at 1669. The Court then noted that in certain situations, claims arising under the ATS might
"touch and concem the territory of the United States" with "sufficient force to displace the
presumption against extraterritorial application." 1d. at 1669. The only guidance provided about
this "touch and concem" test was the statement that "mere corporate presence" would not suffice
to meet it. 1d.
c. Application of the presumption to particular ATS cases
ln the near year and a half since Kiobel’s issuance, courts have begun elaborating the
instances when a claim will sufficiently touch and concem the territory of the United States to
displace the presumption against extraterritoriality,
The D.C. Circuit has yet to consider this question but the 2nd, 4th, and llth Circuits have
all interpreted the "touch and concern" test. The 4th Circuit held in Al Shimari v. CACI Premier
Tech., Inc., 758 F.3d 516 (4th Cir. 2014), that the presumption against extraterritoriality was
displaced in a suit for claims arising from alleged acts of torture occurring at the Abu Ghraib
prison in lraq. 1d. at 520. The court held that the claims sufficiently touched and concerned the
United States to displace the presumption. 1d. The Court’s decision was based first on the
substantial connections between the United States and the unlawful conduct occurring in lraq:
the torture was committed by American citizens employed by a U.S. corporation, it was
committed pursuant to a contract with a U.S. government agency at a U.S. military facility, and
22
the CACI employees were required to obtain security clearances from the U.S. Department of
Defense. 1d. at 528-29. Furthermore, the case involved domestic conduct as well_defendant’s
"managers located in the United States were aware of reports of misconduct abroad, attempted to
‘cover up’ the misconduct, and ‘implicitly, if not expressly, encouraged’ it." 1d. at 529.
The Second Circuit held in Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) that
Kiobel’s holding was clear that where all of the relevant conduct occurred abroad, the
presumption against extraterritoriality precluded ATS liability. 1d. at 182. Thus, corporate
citizenship in the U.S.-even if a more intimate connection than the mere corporate presence at
issue in Kiobel_was still insufficient to allow an ATS claim to go forward without relevant
domestic conduct. 1d. The case involved no conduct within the United States that would have
been actionable under the ATS. 1d. at 192. lnstead, the U.S. defendants were to be held liable
vicariously for the actions of their South African subsidiaries, who were alleged to have aided
and abetted violations of customary intemational law overseas. 1d. at 179-180, 192. This would
not do the job of displacing the presumption.
The Eleventh Circuit has also held that corporate citizenship alone does not displace the
presumption against extraterritoriality. Cardona v. Chiquita Brands 1nt’l, Inc., ---F.3d---, No.
12-14898, 2014 WL 3638854, at *3-4 (l1th Cir. July 24, 2014). lt held in Cardona that any tort
cognizable under the ATS had been committed entirely outside of the United States and so the
claims did not sufficiently touch and concern the United States to displace the presumption
against extraterritoriality, 1d.
Evaluating these cases, the Court concludes that the presumption against
extraterritoriality is not displaced by a defendant’s U.S. citizenship alone. See Balintulo, 727
F.3d at 179-80, 182, 192; Cardona, No. 12-14898, 2014 WL 3638854, at *3~4; Doe VIII, 654
23
F.3d at 75 (Kavanaugh, J., dissenting in part) ("The presumption against extraterritoriality is
focused on the site of the conduct, not the identity of the defendant."). On the other hand, when
plaintiffs allege U.S. based conduct itself constituting a violation of the ATS, the presumption
against extraterritoriality is no obstacle to consideration of ATS claims. See Al Shimari, 758
F.3d at 528-29 (holding that the ATS was properly applied because, among other reasons,
plaintiffs alleged relevant U.S. based conduct indicating knowledge and encouragement of
international law violations abroad); Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304,
323 (D. Mass. 2013) (evaluating a claim for aiding and abetting international law violations
committed abroad and holding that the claims sufficiently touched and concemed the United
States because the "Amended Complaint adequately sets out actionable conduct undertaken by
Defendant in the United States to provide assistance" to the primary tortfeasors); cf Morrison,
561 U.S. at 266 (holding that a court must look to the focus of congressional concem in enacting
a piece of legislation to determine whether certain domestic conduct is sufficient to displace the
presumption against extraterrioriality).
d. Application of the presumption to this case
ln light of the Supreme Court’s holding in Kiobel and the judicial decisions interpreting
that case, the Court must determine what U.S.-based conduct is alleged by plaintiffs to decide
whether the presumption against extraterritoriality is overcome in this case. lf plaintiffs have
sufficiently alleged conduct within the United States that is actionable under the ATS, their ATS
claims are not defeated on the basis of the presumption against extraterritoriality.
Plaintiffs allege generally that EMC and EMOl "management decisions related to
Indonesia are centralized and made in the United States." Doe 1, First Am. Compl. 11 25. More
specifically, plaintiffs claim that meetings of EMOl’s board of directors are held in New York
24
and important decisions were made at these meetings "related to Indonesia and the retention of
military members as security personnel." 1d. 11 27. Plaintiffs also allege that EMC officials
based in the United States "made and implemented the decision" to "hire or otherwise retain
additional security personnel for [Exxon’s] Aceh facilities." 1d. 11 33. Plaintiffs make a number
of other allegations regarding the support provided by Exxon to their security personnel, See id.
1[ 54 (alleging Exxon provided material support to its security personnel by, for example,
constructing facilities, providing funding for weapons, providing supplies and equipment, and
paying for the services of consultants in training and equipping the personnel). Plaintiffs do not,
however, state where this support was planned or authorized or if any of the material or
monetary support came from the United States.
Plaintiffs have moved the Court to allow them the opportunity to amend their complaint.
Pl.’s Mot. to Modify Scheduling Order, Doe 1, ECF No. 428, Doe VIII, ECF No. 63. Because
the complaint was drafted before Kiobel, the plaintiffs argue that they should be given an
opportunity to allege U.S. based conduct in greater detail because Kiobel was a substantial
intervening change in the law of the ATS. They argue in their response to Exxon’s motion to
dismiss that they will be able to allege substantial U.S. based conduct constituting violations of
the ATS. See Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss 46-50.
The Ninth Circuit recently dealt with a somewhat similar situation. lt determined that
plaintiffs’ request to amend their dismissed complaint alleging ATS violations in light of Kiobel
should be granted because "[i]t is common practice to allow plaintiffs to amend their pleadings
to accommodate changes in the law, unless it is clear that amendment would be futile." Doe 1 v.
Nestle USA, Inc., ---F.3d ---, No. 10-56739, 2014 WL 4358453, at *13 (9th Cir. Sept. 4, 2014).
Because plaintiffs in that case contended that some actionable conduct occurred in the United
25
States, the case was distinguishable from Kiobel and amendment was not necessarily futile. 1d.
A similar decision was made by the court in 1n re S. African Apartheid Litig., ---F. Supp. 2d---,
Nos. 02 MDL 1499 (SAS), 02 Civ. 4712 (SAS), 02 Civ. 6218 (SAS), 03 Civ. 1024 (SAS), 03
Civ. 4524 (SAS), 2014 WL 1569423 (S.D.N.Y. Apr. 17, 2014). See id. at *2, *9 (allowing
plaintiffs to file for leave to amend their complaint_in light of the intervening change in the law
caused by Kiobel_so that they might make a preliminary showing that their claims sufficiently
touch and concem the United States to displace the presumption against extraterritoriality).
For this same reason, the Court is of the view that plaintiffs should have the opportunity
to file for leave to amend their complaint in light of the intervening change in the law created by
Kiobel. The Court grants in part plaintiffs’ motion to modify the court’s scheduling order.
Plaintiffs may file for leave to amend their complaint in Doe 1 for the purpose of (l) restating
their ATS claims and (2) alleging additional facts so that they may show that these claims
sufficiently touch and concem the United States to displace the presumption against
extraterritoriality.
The Court denies Exxon’s motion to dismiss as to the extratenitoriality issue without
prejudice to their right to renew. Cf 1n re Sunrise Sr. Living, Inc. Derivative Litig., 550 F. Supp.
2d 1, 8 (D.D.C. 2008) (denying defendants’ motion to dismiss because, alter granting plaintiffs
leave to amend their complaint, "it would be imprudent to address the defendants’ several
motions to dismiss the complaint . . . at this time"). Upon plaintiffs’ filing for leave to amend (or
upon their failure to so file within the time specified by the Court in the order accompanying this
opinion), Exxon may renew its motion to dismiss as to the extraterritoriality issue.
d. Failure to sujj'iciently allege ATS claims
26
Aside from the extraterritoriality issue, Exxon has also moved to dismiss plaintiffs’ ATS
claims on the ground that plaintiffs have failed to sufficiently allege claims arising under the
ATS, regardless of whether Kiobel precludes them. Because the Court grants plaintiffs the
opportunity to file for leave to amend their complaint in Doe 1 as to their ATS claims, the Court
declines to consider the sufficiency of plaintiffs’ complaint at this stage. Accordingly,
defendants’ motion to dismiss the ATS claims for failure to sufficiently allege claims arising
under the ATS is denied without prejudice to their right to renew. See id. Upon plaintiffs’ filing
for leave to amend (or upon their failure to so file within the time specified by the Court in the
order accompanying this opinion), Exxon may renew its motion to dismiss as to the sufficiency
of plaintiffs’ pleading of their ATS claims.
3. Challenge to Diversity Jurisdiction
a. Amount in controversy requirement
Exxon challenges the Court’s diversity jurisdiction in Doe V111 on the ground that
plaintiffs have failed to adequately plead that each meets the amount in controversy required,
$75,000. Def.’s Mot. to Dismiss 39-41.
For a court to dismiss a suit for failure to adequately plead the amount in controversy, "it
must appear to a legal certainty that the claim is really for less than the jurisdictional amount."
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). A court should be "very
confident that a party cannot recover the jurisdictional amount before dismissing the case for
want of jurisdiction"; thus, the "goveming law mandates generosity in evaluating the eligibility
of a claim for federal jurisdiction." Rosenboro v. Kim, 994 F.2d 13, 17 (D.C. Cir. 1993). To
dismiss for failure to plead amount in controversy, the court "must be able to say, after crediting
all of the plaintiffs factual allegations . . . that a verdict in excess of the jurisdiction minimum . .
27
. would have to be set aside as a matter of law." Sheraton Operating Corp. v. Just Corporate
Travel, 984 F. Supp. 22, 24 (D.D.C. 1997) (quoting 28 U.S.C. §l332, Commentary on 1988
Revision). The party invoking the court’s jurisdiction bears the burden of establishing the
amount in controversy. Rosenboro, 994 F.2d at 17. Nonetheless, "[e]ven a cursory allegation of
the amount in controversy, if it exceeds the jurisdictional requirement, is sufficient to evade
dismissal.” Info. Strategies, Inc. v. Dumosch, ---F. Supp. 2d---, Civil Action No. 13-315 (RC),
2014 WL 505360, at *3 (D.D.C. Feb. 10, 2014) (citing 14AA Charles Alan Wright et al.,
Federal Practice & Procedure § 3702 (4th ed. 2011)).
ln paragraph 4 of the Doe V11I complaint, plaintiffs allege generally that the amount in
controversy as to each plaintiff exceeds $75,000. Doe V111 Compl. 11 4. ln the prayer for relief,
plaintiffs go on to request, inter alia, damages in excess of $75,000 for each plaintiff. Doe V111
Compl. Part lX. Exxon has not alleged that these damages amounts were pled in bad faith.
'l``hus, the court may only dismiss if it appears to a legal certainty that the claims are really for
less than the jurisdiction amount.
Secondary authority indicates that the legal certainty test is generally only met in three
situations:
l) when the terms of a contract limit the plaintiff’ s possible recovery to less than
the required jurisdictional amount; 2) when a specific rule of substantive law or
measure of damages limits the amount of money recoverable by the plaintiff to
less than the necessary number of dollars to satisfy the requirement; and 3) when
independent facts show that the amount of damages claimed has been inflated by
the plaintiff merely to secure federal court jurisdiction.
14AA Charles Alan Wright et al., Federal Practice & Procedure § 3713 (4th ed. 2011). As
between these three scenarios, Exxon’s arguments relate exclusively to situation two, namely
that plaintiffs have failed to prove that sufficient damages are recoverable under Indonesian law.
Def.’s Mot. to Dismiss 40-41.
28
Expert testimony indicates to the Court that Indonesian tort law, while using different
terminology from American law, compensates tort victims in similar fashion to the common law.
Damages can be awarded for "material" and "moral" loss. Robert N. Homick Decl. 11 16, Doe 1,
ECF No. 426-17, Doe VIII, ECF No. 61-17. Material loss damages provide compensation for
reasonably foreseeable costs incurred as a result of the tortious act. 1d. Moral loss damages
compensate a victim "for harm that cannot be quantified in money, such as reputational harm,
pain and emotional distress." 1d. lmportantly, there has been no allegation that any statutory or
customary cap exists on the amount of damages that a plaintiff may be awarded. Cf Indiana Hi-
Rail Corp. v. Decatur Junction Ry. Co., 37 F.3d 363, 366 (7th Cir. 1994) (holding there was a
legal certainty that the amount in controversy was not met because plaintiff was "entitled, under
lllinois law, only to nominal damages"); Nwanza v. Time, Inc., 125 F. App’x 346, 348 (2d Cir.
2005) (affirrning dismissal because New York law permitted recovery only for "out-of-pocket
expenses," and plaintiff had not alleged out-of-pocket expenses in excess of the amount in
controversy threshold) (intemal quotation marks omitted).
The Court has been presented with few examples of specific damage awards in
Indonesian case law. Nonetheless, Exxon has not presented the Court with any indication that
Indonesian law would prohibit damages in cases like this one in excess of $75,000. For
example, defendants’ expert Winarta reports that the Indonesia Supreme Court, in 2007, affirmed
and increased the $67,800 judgment awarded to the plaintiff in a case against an airline company
for negligence. Frans Hendra Winarta Supplemental Decl. 11 l3, Doe 1, ECF No. 426-13, Doe
VIII, ECF No. 61-13. ln light of this precedent, the lack of any damage caps under Indonesian
law, and the similarity of the types of damages available for torts under Indonesian and
29
American law, the Court cannot say to a legal certainty that plaintiffs’ claims do not meet the
amount in controversy.
b. EMO1 is non-diverse
lt is argued that EMOl is non-diverse from the plaintiffs in Doe V111 because it is a
foreign citizen. Therefore, because subject matter jurisdiction in Doe VI11 is premised on
diversity, Exxon contends that EMOl’s presence defeats jurisdiction.
A federal court may only exercise jurisdiction based on diversity of citizenship if the
amount in controversy is satisfied and the action meets the diversity requirements of § 1332(a).
28 U.S.C. § 1332(a) (2014). Under subsection (a)(2), a court may exercise jurisdiction over an
action between "citizens of a State and citizens or subjects of a foreign state." 1d. This statute
has been interpreted to require complete diversity, meaning that all plaintiffs must be diverse
from all defendants to the suit. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The existence
of complete diversity of citizenship is determined at the time of an action’s commencement.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). Subsequent events will
not divest a court of jurisdiction. 1d.
A corporation’s citizenship is defined by subsection (c)(1), which states that "a
corporation shall be deemed to be a citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its principal place of business." 28
U.S.C. §l332(c)(l) (2014). 'l``hus, a corporation has "dual citizenship" for purposes of the
diversity statute. Johnson-Brown v. 2200 M Street LLC, 257 F. Supp. 2d 175, 178 (D.D.C.
2003).
EMOl’s principle place of business is in lndonesia. Doe V111 Compl. 11 16. lt was
incorporated in Delaware at the time of filing in Doe 1 but was subsequently reincorporated in
30
the Cayman lslands in December 2005, before the filing in Doe V111. 1d.; Doe 1 Original Compl.
11 25.4 The parties dispute whether the Court should also assign Indonesian citizenship to EMOl
because of the location of its principal place of business or, instead, the American citizenship of
EMC’s principal place of business-on the ground that EMOl is a mere alter ego of EMC and
does not have a true principal place of business of its own. However, the state of EMOl’s
principal place of business is irrelevant. EMOl’s incorporation in a foreign jurisdiction makes
EMOl a foreign citizen for purposes of § 1332 and, therefore, non-diverse from the plaintiffs.
See Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 536~38 (5th Cir. 2014) (holding that
defendant corporation’s foreign state of incorporation destroyed diversity with a foreign plaintiff,
even though defendant’s principal place of business was in the United States); Peninsula Asset
Mgmt. (Cayman) Ltd. v. Hanko0k Tire Co., 509 F.3d 271, 272-73 (6th Cir. 2007) (same);
Universal Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579, 581-82 (2d Cir. 2002)
(same). The court need not reach plaintiffs’ alter ego arguments.
c. Dismissal of EMOl under Rule 21
ln light of EMOl’s non-diversity, its presence in Doe V111 ousts this Court’s jurisdiction.
Federal Rule of Civil Procedure 21, however, states that a court "may at any time, on just terrns,
add or drop a party." Fed. R. Civ. P. 21. Rule 21 "allows the district court to dismiss so-called
‘jurisdictional spoilers’-parties whose presence in the litigation destroys jurisdiction." 1n re
Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542 (D.C. Cir. 2011). The key
limitation on this dismissal power is that the party to be dismissed must not be indispensable and
there must be no prejudice to the parties arising from the dismissa1. 1d.
4 The Court does not consider today EMOl’s citizenship for purposes of Doe 1 because jurisdiction in that case is not
founded on diversity,
31
For a party to be indispensable to litigation under Federal Rule of Civil Procedure 19, it
must first be determined that the party is necessary. Kickapoo Tribe of 1ndians v. Babbitt, 43
F.3d 1491, 1494 (D.C. Cir. 1995). lt is a firmly established rule that joint tortfeasors are not
necessary parties under Rule l9(a). Temple v. Synthes Corp., 498 U.S. 5, 7-8 (1990); see also
Park v. Didden, 695 F.2d 626, 631 (D.C. Cir. 1982) ("An almost unbroken line of federal
decisions holds that persons whose liability is joint and several may be sued separately in federal
court."). As a corollary of this rule, an agent need not be joined in a suit seeking to hold the
principal vicariously liable. Rieser v. District of Columbia, 563 F.2d 462, 469 n.39 (D.C. Cir.
1977) (holding that "the employee is not a necessary party to a suit against his employer under
respondeat superior"). The D.C. Circuit held that a subsidiary is not a necessary party in a case
where the parent corporation was to be held liable for the actions of that subsidiary. Pyramid
Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1121-22 (D.C. Cir. 1991) (evaluating the Rule
19(a) factors and concluding that they were not met to require joinder of the subsidiary).
Here, EMOl is a mere joint tortfeasor, along with the other Exxon defendants. To the
extent EMOl’s conduct will be at issue, it will be as relates to the vicarious liability of the other
Exxon defendants for EMOl’s conduct. The law of this circuit holds that in a vicarious liability
situation, a corporate subsidiary need not be joined in a suit against the parent based on the
subsidiary’s conduct. See id. ln arguing otherwise, Exxon primarily relies upon a theory,
articulated in a few other courts, which holds that a subsidiary must be joined in a suit against the
parent when it is the "primary participant" in the conduct at issue in a case. See Freeman v. Nw.
Acceptance Corp., 754 F.2d 553, 559 (5th Cir. 1985). This theory has been rejected by the D.C.
Circuit as not being a useful tool for Rule 19 analysis. Pyramid Sec., 924 F.2d at 1121.
32
ln its reply, Exxon makes two arguments rooted in Rule 19(a) for why EMOl is a
required party in this case. First, it contends that the Court will be unable to afford complete
relief among the parties because the injunctive relief sought by plaintiffs in their complaints
would be ineffective without EMOl’s presence, thus making EMOl a required party under Rule
19(a)(1)(A). Def.’s Reply 31 (arguing that EMOl is the only party to the Production Sharing
Contract before the Court and that Exxon’s security personnel were retained pursuant to this
contract). Rule 19 requires that a court be able to accord "complete relief’ among the parties
before it. Fed. R. Civ. P. 19(a)(1)(A). A court is not necessarily bound by the types of relief
sought in the complaint; instead, the key is whether the court can fashion complete relief in the
absence of the other party. Lopez v. Fed. Nat’l Mortg. Ass ’n, No. CV 13-04782 MMM (AGRx),
2013 WL 7098634, at *6 (C.D. Cal. Oct. 8, 2013). For example, one court held that although
plaintiffs had improperly requested an injunction that could only be enforced against an absent
third party, the third party was not required because "the court could, if appropriate, craft
meaningful relief by awarding plaintiffs damages against [defendant]." 1d. at *7. Similarly,
here, the Court is capable of according complete relief among the parties before it. The fact that
the Doe V111 plaintiffs’ requested injunction could not bind EMOl is neither here nor there. Cf
Doe VIII, 573 F. Supp. 2d at 33 (concluding that it was "irrelevant" that injunctive relief which
might be awarded against the Exxon defendants could not bind the absent Indonesian oil
company).
Exxon also argues that EMOl is a required party because it has "an interest relating to the
subject of the action" and adjudicating plaintiffs’ claims in its absence would "impair or impede
[its] ability to protect [that] interest." Def.’s Reply in Support of Def.’s Mot. to Dismiss 31; Fed.
R. Civ. P. 19(a)(1)(B). This is because, Exxon argues, the Court would be required to determine
33
EMOl’s rights and liabilities under the Production Sharing Contract. Def.’s Reply in Support of
Def.’s Mot. to Dismiss 3 l. Exxon relies on In re Toyota Motor Corp., 785 F. Supp. 2d 883 (C.D.
Cal. 2011) for its argument. That case articulates an "exception" to the general rule that joint
tortfeasors are not necessary parties. 1d. at 906. The exception applies in situations where the
absent entity is an "active participant" whose presence is "critical to the disposition of the
litigation." 1d. The proposed exception is similar to the "primary participant" theory discussed
above. See Freeman, 754 F.2d at 559. Whatever the merits of this theory of indispensability, it
does not prevail in this circuit as demonstrated by Pyramid Securities, where the court held that a
subsidiary was not required to be joined in a suit against the parent for claims based on the
subsidiary’s conduct. Pyramid Sec., 924 F.2d at 1121 (allowing the suit to go forward despite
risks to the subsidiary’s "reputation," on the ground that to do otherwise would "scuttle the
established principles that one joint tortfeasor is generally not an indispensable party in a lawsuit
against another . . . and, more specifically, that agents are not indispensable parties in suits
against the principal (at least where the principal was disclosed)").
Exxon’s argument that the remaining defendants would be prejudiced because plaintiffs
could later sue EMOl in Indonesia is also not a basis for finding a party required under Rule 19.
Cf id. at 1122 (observing that "risks of double litigation will be posed in any case where a party
is liable both directly and indirectly--either as owner or indemnitor of a potential second
defendant," and that without greater indicia of prejudice, such risks were "too remote to sustain
[defendant’s] claim of indispensability") (emphasis in original).
Because EMOl’s presence in Doe VIII destroys complete diversity among the parties and
because it is not a necessary party to these proceedings, EMOl is hereby dismissed from Doe
V111 pursuant to the Court’s Rule 21 authority.
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4. Challenge to sufficiency of the pleadings
The factual sufficiency of plaintiffs’ pleading of their Indonesian law claims is broadly
challenged on two grounds: (l) failure to name and join as defendants the tortfeasors whose
primary conduct gives rise to plaintiffs’ various claims of vicarious liability and (2) failure to
allege sufficient facts as to the claims premised on vicarious liability. Def.’s Mot. to Dismiss
41-43; Def.’s Reply in Support of Def.’s Mot. to Dismiss 14-18. Exxon also contends that two
of plaintiffs’ non-federal causes of action, those for intentional infliction of emotional distress
and negligent infliction of emotional distress, are not recoverable under Indonesian law. Def.’s
Mot. to Dismiss 43 n.30.
a. Failure to join the security personnel who caused plaintiffs’ injuries
Federal courts hearing claims based on diversity jurisdiction "apply state substantive law
and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
ln particular, the issue of joinder and whether "a federal court may proceed without the outsider
[to the litigation] is a federal matter" in diversity cases, govemed by Federal Rule of Civil
Procedure 19. Provident Tradesmens Bank & T rust Co. v. Patterson, 390 U.S. 102, 125 n.22
(1968). When hearing state law claims pursuant to supplemental jurisdiction, federal courts also
apply state substantive law and federal procedural law. Perry v. Blum, 629 F.3d 1, 8 (lst Cir.
20l0).
Exxon presents expert authority contending that Indonesian law requires the joinder of
the primary tortfeasor in cases where vicarious liability is alleged. Winarta Second
Supplemental Decl. 11 7. Plaintiffs dispute this characterization of Indonesian law. Pl.’s Resp. in
Opp’n to Def.’s Mot. to Dismiss 15. The Court need not decide the issue as Indonesian law
simply does not govem in this situation. Whether a party is required is a procedural issue that is
35
govemed by federal law in diversity and supplemental jurisdiction cases. See Provident
Tradesmens Bank & Trust Co., 390 U.S. at 125 n.22.
The parties have not briefed the issue of whether Rule 19 requires joinder of the
Indonesian tortfeasors. Nonetheless, the issue is rather simply disposed of. As elaborated above,
joint tortfeasors are not required parties under Rule l9(a). This means that an agent is not a
required party when the principal is to be held liable vicariously for the agent’s actions. Here,
many of the claims against Exxon are premised on vicarious liability for the torts of their security
personnel. Doe 1 First Am. Compl. 1111 84-121, 140-44; Doe VIII Compl. 1111 70-75, 94-110.
Under the rules stated above, the security personnel are not required parties to this suit under
Rule 19 because they are mere joint tortfeasors.
b. Failure to allege sufficient facts to state claims based on vicarious
liability
Exxon also argues that plaintiffs have failed to plead adequate facts to allege a plausible
right to relief on a vicarious liability theory under Indonesian law.
Exxon first contends that plaintiffs have failed to adequately plead that they were injured
by Exxon security personnel (and not other soldiers stationed in the area). Def.’s Reply in
Support of Def.’s Mot. to Dismiss 15-18. Plaintiffs have alleged that their injuries were
perpetrated by ExxonMobil security personnel, Doe 1 First Am. Compl. 1111 67-77; Doe V11I
Compl. 60-63. They have also alleged that soldiers assigned to provide security for Exxon were
not also engaged in military operations in the region. Doe 1 First Am. Compl. 1111 47-48; Doe
V111 Compl. 1111 40-41. These are factual allegations, which the court must accept as true at the
motion to dismiss stage. 1qbal, 556 U.S. at 678. Exxon’s argument that plaintiffs must plead
more to meet the standards articulated in Twombly and Iqbal seems to be based on a view that
plaintiffs must make a showing that it is probable they can prove their injuries were caused by
36
Exxon security personnel (and not some other group of soldiers or individuals in the area).
Plaintiffs need not do this. See Twombly, 550 U.S. at 555 (stating that a court must accept as true
even factual allegations that are "doubtful in fact"). The factual allegations already pled are
adequate on this point.
lt is also argued that plaintiffs have failed to adequately plead that Exxon is vicariously
liable for plaintiffs’ injuries because the pleadings do not sufficiently allege that the underlying
wrongful acts were committed in the scope of employment, as required by Indonesian law.
Def.’s Reply in Support of Def.’s Mot. to Dismiss 15-18. To determine whether this is a valid
basis for dismissal of these claims, the Court must first determine the content of Indonesian law
on the issue of vicarious liability. ln conducting this inquiry, the Court has consulted expert
opinions and accompanying exhibits filed by the parties. See Fed. R. Civ. P. 44.1 ("ln
determining foreign law, the court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal Rules of
Evidence."); Ganem v. Heckler, 746 F.2d 844, 854 (D.C. Cir. 1984) ("Generally, written or oral
expert testimony accompanied by extracts from foreign legal material is the basic method by
which foreign law is proved.").
Vicarious liability under Indonesian law is based on Article 1367 of the Indonesian Civil
Code, which provides that a party may be liable for the actions of persons over which he has
responsibility. Hornick Decl. 11 32; Gary F. Bell Decl. 11 15, Doe 1, ECF No. 434-1, Doe VIII,
ECF No. 69-1 (translating Article 1367 as providing for liability for "damage caused by the deed
of persons under his responsibility"). Subsection 3 of Article 1367 specifically provides for the
liability of employers, stating: "Employers and those appointed to represent the affairs of others
shall be responsible for damage caused by the acts of their employees and subordinates in
37
performing the work for which they are engaged." Homick Decl. 11 33; Bell Decl. 11 16
(providing a substantially similar translation). There is no requirement of fault on the part of the
employer or principal_liability may be vicarious. Bell Decl. 1111 17-20.
To show liability under Article 1367(3), the plaintiff must first show an employment or
representation relationship between the principal and agent. Homick Decl. 11 34. Second, the act
must have been committed "in the course of perfonning the employment or representation." 1d.
11 34. The experts before the Court give somewhat conflicting accounts of what this scope of
employment requirement means in practice. Exxon’s expert Homick characterized this as a
requirement of a "functional connection between the wrongful act and the work that the
employee/representative is being directed to perform." 1d. Similarly, plaintiffs’ expert Bell
states that plaintiff must show that the wrongful act was committed by employees or
representatives in "perforrning their duties." Bell Decl. 11 20. He also argues, citing an
lndonesian law treatise, that "employers are responsible for the damages caused by the wrongful
act of its employees in performing their duties, even if the employees acted without the
authorization or against the order of the employers." Id, 11 28. Defendants’ expert Winarta gives
a much more restrictive account, stating that a principal may avoid liability by showing that an
"employee deviated from the instructions given by the employer." Frans Hendra Winarta Decl. 11
3, Doe 1, ECF No. 114-1.
Indonesian case law submitted to the court indicates a rather expansive interpretation of
Article 1367 that seems more in line with the "functional connection" language adopted by
Homick and the rule stated by Bell that employers can be liable for the acts of employees even
when committed without authorization or against orders. For example, in Suciwati v. P.T., the
District Court of Central Jakarta held that the primary tortfeasor’s employer was jointly and
38
severally liable for the employee’s violation of Article 1366, which occurred while the employee
was piloting one of his employer’s planes. The court stated that the employer was liable simply
because the primary tortfeasor "work[ed] at" the defendant airline. Suciwati v. P.T., Decision of
the District Court of Central Jakarta, No. 277/PDT.G/2006/PN.JKT.PST, Doe 1, ECF No. 444-8,
Doe VIII, ECF No. 74-8. The Supreme Court of Indonesia appeared to state an even broader rule
in Sudiono v. Hadi. lt held that under Article 1367, an employer was liable for the injuries
caused by its employee’s truck driving. The court held that "[the employer] should have been
able to prevent [the employee] from driving such truck if [the employee] was not on duty."
Sudiono v. Hadi, Decision of the Supreme Court of the Republic of lndonesia, No. 2498
K/Pdt/2000, Doe 1, ECF No. 444-13, Doe VIII, ECF No. 74-13.
Plaintiffs link their injuries to the Exxon security personnel’s employment in a few
different allegations, First, they allege that some of the injuries were inflicted on Exxon
property. Doe 1 First Am. Compl. 1111 68, 70, 72-73; Doe V111 Compl. 1111 62-63. Second, some
of the injuries were allegedly committed by Exxon personnel while working at an Exxon security
post. Doe VIII Compl. 1111 62-63. Third, the soldiers assigned to provide security for Exxon at
the Arun project were allegedly present only for the purpose of providing security, not for
maintaining the general law and order of the area. Doe 1 First Am. Compl. 1111 47~48; Doe V111
Compl. 1111 40-41. Fourth, Exxon provided "weapons funding, military equipment, and other
supplies" that were used to inflict plaintiffs’ injuries. Doe 1 First Am. Compl. 11 54; Doe Vlll
Compl. 11 47. Finally, plaintiffs allege that the security personnel were acting under the
supervision of Exxon and/or its agents, in the course and scope of their employment duties, and
in furtherance of Exxon’s financial and corporate interests. Doe 1 First Am. Compl. 11 79; Doe
V111 Compl. 11 65.
39
The Court holds that plaintiffs have stated sufficient factual matter to survive a motion to
dismiss as to their vicarious liability claims. Plaintiffs allege that some of their injuries were
caused on Exxon property and, in some instances, were caused by Exxon personnel stationed at
Exxon security checkpoints. These allegations appear to state the kind of "functional
connection" required by Indonesian law to show that a principal is liable for the torts of its agent.
Furthermore, plaintiffs allege that Exxon paid these individuals to provide security and gave
them funding and equipment to carry out that task. Similar to the Sudiono case, one could
plausibly conclude that Exxon is vicariously liable for the actions of its security personnel
because it had a duty to prevent them from inflicting injuries using its equipment and on its
property, even when those security personnel were off duty. See Sudiono, Decision of the
Supreme Court of the Republic of lndonesia, No. 2498 K/Pdt/2000.
c. Existence of plaintiffs ’ causes of action under Indonesian law
Exxon also disputes that Indonesian law provides causes of action for negligent infliction
of emotional distress and intentional infliction of emotional distress. Def.’s Mot. to Dismiss 43
n.30. lt premises its argument on the expert declaration of Robert Homick, who states that these
causes of action are unknown to Indonesian law. Homick Decl. 11 24. Plaintiffs respond with
expert declarations of their own. Bell Decl. 11 31; Johnson Panjaitan Decl. 11 5, Doe 1, ECF No.
434-2, Doe VIII, ECF No. 69-2, Ex. 3. Furthermore, one of Exxon’s experts, Judge Bismar
Siregar, states broadly that these causes of action are "in their essence if not exactly in the form
known to the common law, fully cognizable in lndonesia." Bismar Siregar Aff. 11 3, Doe 1, ECF
No. 434-2, Doe VIII, ECF No. 69-2, Ex. 2.
The Court is not persuaded that negligent and intentional infliction of emotional distress
are causes of action known to Indonesian law. lt is the plaintiffs responsibility to prove the
40
existence of their causes of action under Indonesian law. Esso Standard Oil S.A. v. S.S. Gasbras
Sul, 387 F.2d 573, 581 (2d Cir. 1967) (dismissing plaintiffs claim for failing to prove the
validity of his cause of action under Guatemalan law). While the Court is authorized to conduct
independent research into foreign law, if "the parties fail to provide an adequate statement of the
law, the court is not obligated to independently remedy the deficiency." Estate of Botvin ex rel.
Ellis v. 1slamic Republic ofIran, 772 F. Supp. 2d 218, 228 (D.D.C. 2011).
Plaintiffs’ experts (and Exxon’s expert Siregar) affirm that these two causes of action
exist under Indonesian law but provide no support for their conclusion, whether by reference to
code provisions, cases, or authoritative treatises, aside from general statements that the civil code
allows for recovery on this basis. F or example, plaintiffs’ expert Semendawai simply asserts that
"there is nothing in the law that would preclude" these causes of action. Abdul Harris
Semendawai Decl. 11 3, Doe 1, ECF No. 434-2, Doe VIII, ECF No. 69-2, Ex. 4. Exxon’s expert
Homick argues, on the other hand, that intentional and negligent infliction of emotional distress
are not causes of action, reasoning that if these two causes of action existed under Indonesian
law, it would be unnecessary to consider whether "moral loss" damages are recoverable for
wrongful death claims. First Supplement to Robert N. Homick Decl. 11 5, Doe 1, ECF No. 426-
18, Doe V111, ECF No. 61-18. Considering that it is plaintiffs’ burden to demonstrate their right
to relief under Indonesian law, the Court cannot accept the mere say-so of plaintiffs’ experts that
such claims exist when considering a motion to dismiss. These claims are dismissed.
V. MOTIONS FOR RECONSIDERATION AND MODIFICATION OF THE COURT’S
SCHEDULING ORDER
Plaintiffs have moved the Court to modify its September l8, 2013 scheduling order by
granting them time to file for leave to amend their complaint and extending the briefing schedule
relating to defendants’ motion to dismiss. As all briefing relating to the motion to dismiss has
41
concluded, the Court denies this portion of the motion as moot. As explained above, plaintiffs
shall have the opportunity to file for leave to amend their complaint. They must do so within 30
days.
Exxon has moved the Court to reconsider the aspect of the September 18, 2013
scheduling order permitting discovery, requesting that the Court temporarily stay all discovery
pending resolution of the motion to dismiss. 'l``oday’s opinion disposes of that motion. While
defendants do have the opportunity to renew their motion to dismiss as to plaintiffs’ ATS claims,
this motion would not dispose of all claims before the Court. Therefore, Exxon’s arguments for
a temporary stay of discovery are no longer current. See Def``.’s Mot. for Reconsideration of the
Court’s Scheduling Order 6-9, Doe 1, ECF No. 445, Doe VIII, ECF No. 75 (arguing that a
temporary stay of discovery would be appropriate because defendants’ motion to dismiss had the
potential to dispose of all of plaintiffs’ claims). The Court declines to reconsider the discovery
permitted in the September 18, 2013 scheduling order and denies Exxon’s motion.
VI. CONCLUSION
ln conclusion, the Court dismisses EMOl from Doe Vlll because it is a non-diverse party
whose presence in the case defeats the Court’s jurisdiction. The Court also dismisses plaintiffs’
claims for intentional infliction of emotional distress in both cases and their claim for negligent
infliction of emotional distress in Doe 1. Defendants’ motion to dismiss is otherwise denied.
Plaintiffs may file for leave to amend their complaint in Doe 1 to restate their ATS claims
and allege additional facts demonstrating that these claims sufficiently touch and concem the
United States to displace the presumption against extraterritoriality. They must do so within 30
days. Af``ter that time has elapsed, defendants may renew their motion to dismiss as to the ATS
claims.
42
Defendants’ motion to temporarily stay all discovery is denied. The Court declines to
reconsider its September 18, 2013 scheduling order as to discovery.
Signed by Royce C. Lamberth, United States District Judge, on September 23, 2014.
43