21 F. Supp. 3d 1353
S.D. Fla.2014Background
- Plaintiffs are nine Bolivian nationals suing two former Bolivian officials (President Gonzalo Sánchez de Lozada and Minister of Defense José Sánchez Berzain) for deaths of eight relatives killed by Bolivian military during 2003 anti‑government unrest (the "Gas War").
- Plaintiffs allege Defendants planned and directed a campaign using military "mass and shock" tactics, issued orders and decrees authorizing force, monitored operations, and praised or ratified killings; Defendants subsequently fled to the United States.
- Claims asserted: (Count I) extrajudicial killings under the ATS, (Count II) extrajudicial killings under the TVPA, (Count III) crimes against humanity under the ATS, and (Count IV) wrongful death under state law.
- Defendants moved to dismiss arguing (a) ATS claims are barred by Kiobel because conduct was extraterritorial; (b) TVPA claims fail for lack of exhaustion of Bolivian remedies (or are otherwise substantively deficient); and (c) the court should decline supplemental jurisdiction over state law claims.
- Court dismissed ATS claims (Counts I and III) for lack of subject‑matter jurisdiction under Kiobel (all relevant conduct occurred in Bolivia and did not sufficiently "touch and concern" the U.S.), but denied dismissal of TVPA extrajudicial‑killing claims, finding exhaustion did not preclude suit and plaintiffs sufficiently pleaded command responsibility. The court retained supplemental jurisdiction over the wrongful‑death claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS permits suit where all alleged wrongful conduct occurred abroad | ATS claims should proceed because defendants now reside in U.S. and litigation implicates U.S. interest in avoiding safe havens for human‑rights violators | Kiobel bars ATS suits where relevant conduct occurred entirely outside the U.S.; defendants’ U.S. residence does not displace presumption against extraterritoriality | Dismissed ATS claims for lack of subject‑matter jurisdiction under Kiobel (no sufficient U.S. nexus) |
| Whether TVPA claims are precluded by plaintiffs’ prior Bolivian compensation or by lack of exhaustion of Bolivian remedies | Prior humanitarian payments and statutory compensation do not preclude TVPA suits; exhaustion is a procedural hurdle and may be excused where local remedies are inadequate or unavailable | Plaintiffs already received adequate compensation in Bolivia and/or have not exhausted available Bolivian remedies | Denied dismissal: prior payments do not preclude TVPA claims; defendants failed to carry the substantial burden to prove additional adequate and available Bolivian remedies |
| Whether plaintiffs plead extrajudicial killings with requisite deliberation | Factual allegations (orders to shoot, sniping at civilians, killings far from protests) plausibly show deliberate killings | Allegations could be accidental or precipitate wartime shootings; prior appellate ruling required more specific factual support | Court held the amended complaint plausibly alleges deliberate extrajudicial killings |
| Whether defendants can be held secondarily liable (command responsibility) | Plaintiffs allege de jure control (President/Minister of Defense), meetings planning lethal tactics, orders and supervision, knowledge of killings, and failure to prevent or punish | Defendants dispute sufficiency of factual allegations and causal link to high‑level orders | Denied dismissal: complaint plausibly pleads elements of command responsibility (superior‑subordinate control, knowledge/should‑have‑known, failure to prevent/punish) |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (presumption against extraterritoriality applies to ATS; claims must "touch and concern" U.S. with sufficient force)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (post‑Kiobel—ATS claims based entirely on foreign conduct are infirm)
- Mamani v. Berzain, 654 F.3d 1148 (11th Cir. 2011) (Eleventh Circuit required factual plausibility for ATS/TVPA extrajudicial‑killing claims; guidance on pleading deliberation and liability)
- Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) (TVPA exhaustion is an affirmative defense; defendant bears substantial burden to prove availability of local remedies)
- Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002) (elements and application of command‑responsibility doctrine in domestic courts)
- Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (affirmed civil liability under command responsibility for human‑rights abuses)