Adhikari v. KBR, Inc.
4:16-cv-02478
S.D. Tex.Sep 25, 2017Background
- Five Nepali plaintiffs allege they were recruited for work in Jordan but were trafficked to work for KBR on a U.S. military base in Iraq and bring claims under the TVPRA, ATS, Iraqi law, and Texas tort law.
- Defendants are KBR and related entities; plaintiffs allege extensive U.S.-based KBR involvement in recruiting, supervising, funding, and responding to trafficking-related issues.
- This litigation (Adhikari II) follows an earlier case (Adhikari I) in which summary judgment for defendants was affirmed by the Fifth Circuit on similar claims.
- Defendants moved to dismiss all claims under Rule 12(b)(6); the court reviewed extraterritoriality, aiding-and-abetting standards, preemption, statutes of limitations, corporate liability, and state/Iraq-law issues.
- The court accepts plaintiffs’ factual allegations as true for pleading-stage purposes and evaluates whether claims are legally cognizable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TVPRA extraterritoriality / civil remedy | KBR’s U.S.-based conduct (planning, payments, oversight, reporting) constitutes domestic conduct sufficient to support TVPRA liability | TVPRA did not apply extraterritorially before 2008; 2008 amendment not retroactive | TVPRA claims dismissed: substantive provisions may reach some conduct, but Section 1595 (civil remedy) lacked clear extraterritorial reach and plaintiffs’ injuries were suffered abroad, so no relief under pre-2008 TVPRA |
| ATS extraterritoriality / aiding-and-abetting | U.S.-based KBR personnel substantially assisted and knowingly facilitated trafficking abroad, making ATS a domestic application | ATS does not apply extraterritorially; prior Adhikari I held similar U.S contacts insufficient | ATS claim survives: aiding-and-abetting theory with substantial domestic assistance plausibly pleaded; aiding mens rea held to be knowledge, not purpose |
| Preemption & corporate liability under ATS | ATS claim permissible alongside TVPRA; corporate defendants can be liable | TVPRA preempts ATS; corporations not liable under ATS | TVPRA does not preempt ATS here; corporations can be liable under ATS (court follows circuits allowing corporate liability); ATS claim not dismissed on these grounds |
| Statutes of limitations / equitable tolling (ATS, state, Iraq law) | A 10-year limitations period (analogous to TVPA) applies to ATS; equitable tolling may save state and Iraq claims | Apply Texas two-year personal-injury limitations and dismiss time-barred claims | ATS subject to 10-year limitations (claims timely); state and Iraq-law claims not dismissed at pleading stage because equitable tolling is a fact issue needing development |
| Negligence / negligent hiring / negligent supervision | KBR owed a duty and knew or should have known Daoud was dangerous through prior reports and supervision; adequately pled control and causation | No duty, independent-contractor shield, or sufficient U.S. knowledge alleged | Denied dismissal: plaintiffs plausibly pled duty, control over contractor, and causation for negligence and negligent hiring/supervision claims |
| Intentional infliction of emotional distress (IIED) | Emotional harm from trafficking supports IIED | Defendants lacked primary intent to cause emotional distress; other legal remedies cover harms | IIED dismissed: plaintiffs’ injuries arise from invasion of other legal rights, IIED is unavailable as pleaded |
| Injunctive relief | Plaintiffs seek permanent equitable relief to stop abuses | No live case or controversy for injunction; plaintiffs do not allege future risk | Injunctive relief denied: no basis for prospective relief given lack of alleged future injury |
Key Cases Cited
- Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (U.S. 2010) (presumption against extraterritoriality; two-step focus inquiry)
- RJR Nabisco v. European Cmty., 136 S. Ct. 2090 (U.S. 2016) (apply focus inquiry and limits on extraterritorial reach of private causes of action)
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (U.S. 2013) (ATS does not clearly provide extraterritorial application; "touch and concern" language)
- Adhikari v. Kellogg, Brown & Root, Inc., 845 F.3d 184 (5th Cir. 2017) (prior appeal resolving many similar claims)
- Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) (discussion of aiding-and-abetting mens rea; knowledge standard analysis)
- Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014) (corporate liability under ATS and aiding-and-abetting analysis)
- Flomo v. Firestone Nat’l Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011) (corporate liability under ATS)
- Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008) (recognizing corporate ATS liability)
- Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009) (10-year limitations analog for ATS from TVPA)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility pleading standard)