Doe I et al v. Cisco Systems, Inc. et al

Filing 76

MOTION to Reschedule Briefing Pursuant to N.D. Cal. Local Rule 7-11 filed by Doe I, Doe II, Doe III, Doe IV, Doe V, Doe VI, Liu Guifu, Ivy He, Charles Lee, Roe VII, Roe VIII. Responses due by 11/8/2011. (Attachments: # 1 Declaration of Rajika Shah)(Boyd, Kathryn) (Filed on 11/4/2011)

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KATHRYN LEE CRAWFORD-BOYD, ESQ. (SBN 189496)
[e-mail]
RAJIKA L. SHAH, ESQ. (SBN 232994)
[e-mail]
SCHWARCZ, RIMBERG, BOYD & RADER, LLP
6310 San Vicente Boulevard, Suite 360
Los Angeles, California 90048
Phone: [phone], Fax: [phone]
TERRI MARSH, ESQ. (pro hac vice)
[e-mail]
BRIAN PIERCE, ESQ. (pro hac vice)
[e-mail]
HUMAN RIGHTS LAW FOUNDATION
1615 L Street NW, Suite 1100
Washington, D.C. 20036
Phone: [phone], Fax: [phone]

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JUDITH BROWN CHOMSKY (pro hac vice)
[e-mail]
LAW OFFICES OF JUDITH BROWN CHOMSKY
8210 New Second Street
Elkins Park, PA 19027
Phone: [phone], Fax: [phone]

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Attorneys for PLAINTIFFS

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
DOE I, DOE II, Ivy HE, DOE III,
DOE IV, DOE V, DOE VI, ROE VII,
Charles LEE, ROE VIII, and LIU
Guifu, and those individual similarly
situated,
Plaintiffs,

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PLAINTIFFS’ MOTION TO
RESCHEDULE BRIEFING
[N.D.Cal. Local Rule 7-11]

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Case No. 5:11-cv-02449-EJD-PSGx
Assigned to the Hon. Edward J. Davila

Action Filed: May 19, 2011
FAC Filed: Sept. 2, 2011

vs.
CISCO SYSTEMS, INC., John
CHAMBERS, Thomas LAM, Owen
CHAN, Fredy CHEUNG, and DOES 1100,

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Defendants.

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

PLAINTIFFS’ MOTION TO RESCHEDULE BRIEFING
Case No. 5:11-cv-02449-EJD-PSGx

MOTION

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This Motion is brought in light of the fact that the parties have agreed that at

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least a partial stay of the Defendant’s Motion to Dismiss filed on September 23,

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2011 (Docket Entry 67) (“Motion to Dismiss”) is warranted in light of the Supreme

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Court’s grant of a writ of certiorari on October 17, 2011 in Kiobel v. Royal Dutch

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Petroleum Co. and Mohamad v. Rajub, Nos. 10-1491 and 11-88, --- S.Ct. ----, 79

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USLW 3728 (2011) (“Kiobel”), and in light of the complex analysis put forth by

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the Ninth Circuit in Sarei v. Rio Tinto, PLC, --- F.3d ----, 2011 U.S. App. LEXIS

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21515 (9th Cir. Oct. 25, 2011), both of which directly bear on a number of grounds

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upon which the Defendants base their Motion to Dismiss.1 Therefore, Plaintiffs

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hereby request that the Court stay briefing of all issues raised in Defendants’

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Motion to Dismiss, to be rescheduled after the Supreme Court issues its decision in

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Kiobel, with the exception of three dispositive issues unaffected by Kiobel which

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bear on the justiciability of the entire case at bar: (1) whether the case presents a

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non-justiciable political question, (2) whether the complaint challenges an act of

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state, and (3) whether the case violates principles of international comity. 2 All three

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

The Supreme Court in Kiobel will be addressing two questions: (1) whether the issue of
corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits
question or instead an issue of subject matter jurisdiction; and (2) whether corporations are
immune from tort liability for violations of the law of nations or may instead be sued in the same
manner as any other private party defendant under the ATS. Here, Plaintiffs allege claims under
the ATS against a corporation for violations of the law of nations, and Defendants have moved to
dismiss the case due to a lack of jurisdiction over claims against corporations under the ATS. The
Supreme Court will also address the issue of whether a claim against a corporation may be
brought under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, in Mohamad.
Here, Defendants have moved to dismiss arguing that the corporations cannot be sued under the
TVPA and that TVPA precludes claims against corporations under the ATS. The Ninth Circuit’s
decision in Sarei also bears on questions of corporate liability, as well as a number of other issues
bearing directly on the Defendants’ Motion to Dismiss, including whether the ATS applies
extraterritorially, whether aiding and abetting liability is available under the ATS, what standard
applies to aiding and abetting liability, whether the specific claims are sufficiently specific and
obligatory to be permitted under the ATS, and whether the claims were adequately pled. Sarei, at
*6-7.
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Defendants agree that all other issues raised in their Motion to Dismiss should be heard
following a decision in Kiobel. See Declaration of Rajika Shah (“Shah Decl.”), at ¶¶ 3, 6. Thus,
the only disagreement between the parties is whether briefing on only these three issues (political
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PLAINTIFFS’ MOTION TO RESCHEDULE BRIEFING
Case No. 5:11-cv-02449-EJD-PSGx

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issues which Plaintiffs request not be stayed are dispositive questions based upon

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Article III separation of powers concerns and prudential considerations. See, e.g.,

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Nixon v. United States, 506 U.S. 224, 252-253 (1993) (political question); Siderman

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de Blake v. Republic of Argentina, 965 F.2d 699, 707 (9th Cir. 1992) (act of state);

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Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1155 (C.D. Cal.

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2005) (citing Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237 (11th

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Cir. 2004)) (international comity). Further, these broader issues are unaffected by

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the outcome of Kiobel.

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Courts are empowered to delay proceedings as part of their inherent power to

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“control the disposition of the causes on its docket with economy of time and effort

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for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254

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(1936). Courts have delayed proceedings where cases being heard by superior

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courts bear on issues related to the case at hand. See In re Mut. Funds Inv.

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Litigation, 2011 WL 3819608 (D. Md. 2011). Doing so “promote[s] judicial

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efficiency and avoid[s] the possibility of inconsistent rulings.” Id.

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

question, act of state, and international comity) should go forward now. While Sarei touched
upon these three issues, Sarei at *39-47, Plaintiffs offered Defendants an opportunity to re-brief
them in light of Sarei, which Defendants declined. See Shah Decl. at ¶ 6. Accordingly, Plaintiffs
propose filing their Opposition brief on the three specified issues only on November 18, 2011, but
remain open to a new briefing schedule.
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PLAINTIFFS’ MOTION TO RESCHEDULE BRIEFING
Case No. 5:11-cv-02449-EJD-PSGx

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Accordingly, for the reasons listed above and in the interest of judicial

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efficiency, Plaintiffs respectfully request that:
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Briefing on only the following three questions raised by Defendants’

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Motion to Dismiss continue on the current briefing schedule established in the

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Court’s Order dated October 11, 2011 (Docket Entry 74):3 (1) whether the case

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presents a non-justiciable political question, (2) whether the complaint challenges

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an act of state, and (3) whether the case violates principles of international comity.
2.

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Briefing on all other issues raised by Defendants’ Motion to Dismiss

be rescheduled until after the Supreme Court issues its decision in Kiobel.

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DATED: November 4, 2011

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Respectfully submitted,
SCHWARCZ, RIMBERG, BOYD &
RADER, LLP

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By:
/s/ K. Lee Boyd
K. Lee Crawford-Boyd, Esq.
Attorney for Plaintiffs

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Terri E. Marsh, Esq. (pro hac vice)
HUMAN RIGHTS LEGAL FOUNDATION
Attorney for Plaintiffs

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Judith Brown Chomsky, Esq. (pro hac vice)
LAW OFFICES OF JUDITH BROWN
CHOMSKY
Attorney for Plaintiffs

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SCHWARCZ, RIMBERG,
BOYD & RADER, LLP
6310 San Vicente Blvd
Los Angeles, CA 90048

Plaintiffs’ Opposition to the Motion to Dismiss is due November 18, 2011, while Defendants’
Reply is due January 16, 2012, with hearing scheduled for February 17, 2012.
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PLAINTIFFS’ MOTION TO RESCHEDULE BRIEFING
Case No. 5:11-cv-02449-EJD-PSGx