Xiaoning et al v. Yahoo! Inc, et al

Filing 53

ORDER by Judge Claudia Wilken denying 22 MOTION FOR AN EARLY CASE MANAGEMENT CONFERENCE AND ORDER (scc, COURT STAFF) (Filed on 7/31/2007)

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Xiaoning et al v. Yahoo! Inc, et al Doc. 53 Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alibaba.com, Inc. joined Defendant Yahoo! in this motion. Plaintiff's second amended complaint, however, included no claims against Alibaba.com as a Defendant. Thus, Alibaba.com is no longer a party to this case. 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WANG XIAONING, et al., Plaintiffs, v. YAHOO!, INC., et al., Defendants. / No. C 07-2151 CW ORDER DENYING DEFENDANT YAHOO!'S MOTION FOR AN EARLY CASE MANAGEMENT CONFERENCE AND ORDER Defendant Yahoo!, Inc. requests that the Court enter an early case management order that bifurcates certain issues and stays discovery, and solicit the views of the executive branch concerning this case and any foreign policy issues it may raise.1 Plaintiffs oppose the motion and argue that an early case management order, especially the one Defendant Yahoo! proposes, is not appropriate. They further argue that a statement of interest by the government is not necessary in this case. papers. The matter was submitted on the Having considered all of the papers filed by the parties, Dockets.Justia.com Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and good cause not appearing, the Court denies Defendant Yahoo!'s motion for an early case management conference and case management order. The Court will, however, solicit the State Department's views regarding this case. BACKGROUND On April 18, 2007, Plaintiffs Wang Xiaoning, Shi Tao and Yu Ling filed this complaint. Plaintiffs Wang and Shi are citizens of the People's Republic of China and are currently imprisoned in China. Yu, also a citizen of the People's Republic of China, is Plaintiffs allege that Defendants willfully provided Wang's wife. Chinese officials with access to private email records, copies of email messages, and other identifying information about Plaintiffs and the nature and content of their electronic communications. These emails contained pro-democracy literature. As a result of Defendants turning over this information, officials in the Chinese government subjected Plaintiffs to torture, cruel and inhumane treatment, arbitrary arrest and prolonged detention for exercising their right of freedom of speech. Plaintiffs accuse Defendants of knowingly and willfully aiding and abetting in the commission of torture and other major abuses violating international law that caused Plaintiffs' severe physical and mental suffering. In addition to seeking to hold Defendants liable under the Alien Tort Statute (ATS), the Torture Victims Protection Act (TVPA) and the Communications Privacy Act (CPA), Plaintiffs seek to hold Defendants liable under California law. Plaintiffs bring causes of action for battery, assault, false imprisonment, intentional infliction of emotional distress, negligence and unfair business 2 Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 practices. Plaintiffs seek compensatory and punitive damages, as In particular, Yu seeks well as declaratory and injunctive relief. compensation for property government officials seized in conjunction with her husband's arbitrary arrest and prolonged detention. On June 19, 2007, the Court approved the parties' stipulated request for an order enlarging time for Defendants to respond to the complaint and extending initial deadlines. Pursuant to the Court's order, the initial case management conference was to be held on September 18, 2007. Defendant Yahoo! filed this motion two days after the Court granted the parties relief from the Court's April 18, 2007 Order Setting the Initial Case Management Conference and ADR Deadlines. Under Defendant Yahoo!'s proposed early case management order, all deadlines, except the date the parties are to meet and discuss early settlement and ADR, set forth in the Court's June 19, 2007 order would be superseded by the early case management order. While Defendant Yahoo!'s motion was pending, the Court approved another stipulated request, allowing Plaintiffs to file a second amended complaint and continuing the case management conference to October 9, 2007. The stipulation provides that it, and the alterations to the schedule, do not moot Defendant Yahoo!'s motion for an early case management conference and order. DISCUSSION Defendant Yahoo! proposes that this case be managed in two phases and that merits discovery should begin only if Plaintiffs' case survives these two phases. The first phase would resolve 3 Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether the Court has jurisdiction over Defendant Yahoo! Hong Kong and whether Plaintiffs can prosecute this case, in light of the fact that two of the Plaintiffs are in prison and it is difficult, if not impossible, for them to communicate with their attorneys. The second phase would begin only after the first phase is completed and after the Court obtains a statement of interest from the executive branch. Under Defendant Yahoo!'s proposal, the second phase would resolve the varied legal issues presented by Plaintiffs' claims asserted under federal, international and California law, including whether this case is justiciable, whether it violates the act-ofState doctrine and whether it should be dismissed under the doctrine of international comity. Additional issues to be resolved during the second phase would be whether Plaintiffs' aiding and abetting theory of liability exists under the ATS and TVPA, whether some of Plaintiffs' claims are time-barred and whether Plaintiffs' state law claims are subject to a special motion to strike pursuant to the anti-SLAPP statute. See Cal. Civ. Pro. 425.16. Defendant Yahoo! argues that its proposed schedule will promote efficiency and, further, that it is warranted under Sosa v. Alvarez-Machain, 542 U.S. 692, 727-28 (2004). In Sosa, the Supreme Court instructed that there is a "high bar" to private causes of action for violating international law; it explained that "the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." 4 Id. at 727. Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although it is one thing for American courts to enforce limits on their own government's power, the Supreme Court found that it is "quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agents has transgressed those limits." Id. Plaintiffs respond that the "vigilant doorkeeping" requirement expounded in Sosa does not apply to their claims of torture, which are within the "narrow class" of claims allowed to be brought under the ATS. See id. at 729. As stated in Doe v. Qi, 349 F. Supp. 2d 1258, 1296 (N.D. Cal. 2004), "it is well established that torture constitutes jus cogens violations."2 Indeed, in Sosa, the Supreme Court acknowledged that a "clear mandate" appears in the TVPA establishing "an unambiguous and modern basis for federal claims of torture." Sosa, 542 U.S. at 728 (inner quotation omitted). In the following sentence, however, the Supreme Court stated, "But that affirmative authority is confined to specific subject matter." Id. As Defendant Yahoo! points out, Plaintiffs' complaint raises more than just claims concerning torture. Nonetheless, the Court need not adopt the two-phase schedule Defendant Yahoo! proposes in order to heed the Supreme Court's A jus cogens norm is "'recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.'" Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting the Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). 2 5 Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instructions in Sosa. The Supreme Court has also "been clear that 'it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.'" Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1206 (9th Cir. 2007) (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)). Therefore, at this stage of the litigation, the Court cannot determine that this case lies beyond judicial cognizance, as Defendant Yahoo!'s proposed early case management order supposes. The Court can be vigilant to the concerns the Supreme Court raised in Sosa without imposing Defendant Yahoo!'s proposed schedule and without issuing an early case management order or holding a case management conference earlier than October, 2007, as the parties stipulated. Therefore, the Court will not adopt Defendant Yahoo!'s proposed two-phase schedule, nor will the Court stay discovery. As part of its vigilance, the Court will solicit a statement of interest concerning this case from the Department of State; if the Department of State believes a response from the People's Republic of China is appropriate, it may invite the appropriate representative of the Chinese government to submit its written views to the Court as well. Plaintiffs' argument that such a statement is inappropriate because a foreign State and foreign officials are not defendants in this case is unpersuasive. The claims in this case directly implicate the propriety of actions taken by the Chinese government and thus could impact foreign policy. See Sarei, 487 F.3d at 1209 (noting that, even though the Papua New Guinea government was not a named defendant, certain of its acts were at issue). The State Department should be allowed to 6 Case 4:07-cv-02151-CW Document 53 Filed 07/31/2007 Page 7 of 7 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 voice its concerns, if any, about this litigation. The Court will give "serious weight to the Executive Branch's view of the case's impact on foreign policy." Sosa, 542 U.S. at 733 n.21. However, although that view is entitled to deference, it does not control the Court's determination of whether this case is justiciable. Sarei, 487 F.3d at 1205. Therefore, the Court need not halt proceedings in this case until the State Department issues a statement of interest. CONCLUSION For the foregoing reasons, Defendant Yahoo!'s motion for an early case management conference and order (Docket No. 11) is DENIED. The case management conference will be held at the same time as the hearing on Defendants' motion to dismiss; the Court will vacate the October 9, 2007 date after Defendants notice their motion to dismiss. The Court will solicit the State Department's The parties are ordered views on the issues raised in this case. within ten days from the date of this order to meet and confer and attempt to agree on the letter the Court should send to the Department of State soliciting its opinion. shall file a proposed letter. If they agree, they If they are unable to agree, each side shall within fifteen days from the date of this order file its proposed letter and no more than five pages of argument in support of its proposed letter. IT IS SO ORDERED. 7/31/07 Dated: ________________________ CLAUDIA WILKEN United States District Judge 7

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