Xianhua v. Oath Holdings, Inc. f/k/a/Yahoo! Inc., et al

Filing 41

Order by Judge Lucy H. Koh Granting 23 Motion to Dismiss With Leave to Amend.(lhklc2, COURT STAFF) (Filed on 4/29/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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NING XIANHUA,
Plaintiff,

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v.

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND
Re: Dkt. No. 23

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OATH HOLDINGS, INC., et al.,
Defendants.

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Plaintiff Ning Xianhua (“Plaintiff”) sues Defendants Oath Holdings, Inc., Altaba, Inc.,
Terry Semel, Jerry Yang, and individuals whose identities are unknown to Plaintiff (collectively,
“Defendants”). Before the Court is Defendants’ motion to dismiss the instant case. ECF No. 23.1
Having considered the parties’ submissions, the relevant law, and the record in this case, the Court
GRANTS Defendants’ motion to dismiss with leave to amend.

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I. BACKGROUND
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A. Plaintiff’s Alleged Pro-Democracy Activities in China

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Defendants’ motion contains a notice of motion paginated separately from the
memorandum of points and authorities in support of the motion. Civil Local Rule 7-2(b) provides
that the notice of motion and points and authorities must be contained in one document with the
same pagination.
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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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Plaintiff Ning Xianhua is a Chinese national who resides in New York. ECF No. 1

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(“Compl.”) ¶ 7. Defendant Oath Holdings, Inc. (“Oath Holdings”), which was formerly known as

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Yahoo! Inc. and Yahoo! Holdings, Inc., is a Delaware corporation with its headquarters in

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Sunnyvale, California. Id. ¶ 8. Defendant Altaba, Inc. (“Altaba”), which was formerly known as

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Yahoo! Inc, is a Delaware corporation with its headquarters in San Francisco, California. Id. ¶ 9.

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Defendant Jerry Yang (“Yang”) founded Yahoo! Inc. and controlled Yahoo! Inc and its

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subsidiaries during the time period relevant to the instant case. Id. ¶ 10. Terry Semel served as

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Yahoo! Inc’s Chief Executive Officer and chairman of Yahoo! Inc’s board of directors during the

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time period relevant to the instant case. Id. ¶ 11. The Court will refer to Yahoo! Inc. as “Yahoo.”

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Plaintiff is “a vocal pro-democracy advocate” who advocated for democracy in China. Id.

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Northern District of California

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¶ 29. Plaintiff’s “resistance against China’s communist regime grew from his and his family’s

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personal suffering.” Id. ¶ 30. “Because [Plaintiff’s] family lacked elevated status in China’s

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communist regime, Plaintiff’s family . . . barely scraped by financially.” Id. Additionally,

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Plaintiff’s brother and two sisters were allegedly taken by People’s Republic of China (“PRC”)

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officials to provide unpaid labor on local farms. Id. ¶ 31.

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Plaintiff allegedly “began advocating for democracy and workers’ rights as a young man in

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his hometown of Shenyang.” Id. ¶¶ 32–33. In May 1989, Plaintiff participated in the “pro-

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democracy, pro-human rights protests at Tiananmen Square.” Id. ¶ 34. The PRC regime, led by the

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Chinese Communist Party (“CCP”), responded to these protests by “impos[ing] martial law to

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quell the protests and remove the protesters” and by “firing on [protesters] and driving through

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and over them with armored vehicles.” Id. ¶ 35.

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Following the PRC’s response to the Tiananmen Square protests, Plaintiff “began

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promoting democracy and working-class rights in a manner that could not be detected by the

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communist regime.” Id. ¶ 36. Plaintiff “took every step he could to prevent the Chinese

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government from obtaining his confidential correspondence.” Id. ¶ 37. “In order to confidentially

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express his political opinions and avoid detection by the PRC,” Plaintiff “privately and discretely

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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disseminated pro-democracy, anti-communism messages and writings using his Yahoo! email

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account.” Id. ¶¶ 29, 37. Plaintiff “kept his Yahoo! account secure with a password” and “encrypted

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the materials he sent from his Yahoo! account.” Id. ¶ 37. Nevertheless, Plaintiff alleges that PRC

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officials were able to identify Plaintiff as a pro-democracy dissident through his Yahoo account.

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Id. ¶ 28.

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B. Yahoo’s Alleged Disclosure of Plaintiff’s Information to Chinese Authorities
Plaintiff alleges that PRC officials were able to identify him because Defendants “entered

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into a joint venture with the PRC, pursuant to which the Yahoo! Defendants agreed to help

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identify Chinese nationals who expressed pro-democracy, anti-CCP ideas over the internet.” Id.
Plaintiff alleges that, “[p]rior to entering the Chinese market, [Defendants] knew that PRC

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United States District Court
Northern District of California

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communist officials falsely imprisoned and illegally tortured political dissidents.” Id. ¶¶ 39–40.

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However, Defendants assisted the PRC regime because, if Defendants “did not agree to help the

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PRC locate and imprison political dissidents using Yahoo! internet products, the PRC would block

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[Defendants’] access to the Chinese market.” Id. ¶ 40. According to Plaintiff, “Defendants’

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decisions to provide the Chinese government confidential communications by pro-democracy

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activists like [Plaintiff] were made and their implementation closely controlled and directed by

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Defendants Yang and Semel and the Yahoo managers they directed from Yahoo!’s California

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headquarters.” Id. ¶ 41.

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Plaintiff alleges that “Yahoo! employees and Agents received a request from PRC

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authorities asking for private information relating to [Plaintiff’s] Yahoo! email account, including

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Protected Information such as [Plaintiff’s] identity, telephone number, physical address, private

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emails, and the dates, times, and IP addresses from which [Plaintiff] accessed his Yahoo! email

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account.” Id. ¶ 44. Plaintiff alleges that Defendants “learned of the request at their California

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headquarters.” Id. Plaintiff alleges that Defendants “knew that the Chinese communist regime was

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seeking [Plaintiff’s] confidential communications in order to detain, imprison, torture, and

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potentially execute him.” Id. ¶¶ 44, 46. Regardless, Defendants, from their California

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ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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headquarters, allegedly ordered or approved the release of Plaintiff’s pro-democracy

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communications and protected information to PRC authorities. Id. ¶ 44.

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C. Plaintiff’s Alleged Arrest and Torture
Plaintiff alleges that, as a result of Defendants’ actions, Plaintiff was arrested, convicted,

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and imprisoned by the PRC for criticizing the CCP, for participating in pro-democracy activities,

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and for disseminating pro-democracy publications. Id. ¶ 27. According to Plaintiff, PRC officers

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arrested Plaintiff by blindfolding him, handcuffing him, and shackling his legs. Id. ¶ 48. Following

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Plaintiff’s arrest, PRC officers “deprived [Plaintiff] of sleep, physically beat him about his face

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and limbs with batons and fists, and repeatedly threatened to kill him.” Id. ¶ 49. Plaintiff was then

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United States District Court
Northern District of California

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put in solitary confinement and under 24 hour surveillance. Id. ¶ 50.
During his confinement, Plaintiff was interrogated regarding the content of his Yahoo

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email messages. Id. ¶ 51. Each interrogation lasted about four to six hours and involved torture. Id.

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For example, Plaintiff, who was wearing a thin shirt, underwear, and plastic slippers, was taken

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outside when the temperature was less than 13 degrees Fahrenheit, was blindfolded, and was

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beaten. Id. ¶ 52. Plaintiff was then placed in the Tiger Chair, a high-backed, spiked chair that

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contorts a person’s body as their handcuffs and shackles are tightened. Id. ¶ 53. When Plaintiff

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refused to cooperate with the interrogators, the interrogators attached Plaintiff’s handcuffs to the

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top of the Tiger Chair and then tightened Plaintiff’s handcuffs so that they cut deep into his arms.

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Id. ¶ 54. “As a result of this interrogation session, [Plaintiff] permanently lost function in his arms

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and hands and cannot even maintain a grip on a cup of water.” Id.

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According to Plaintiff, Plaintiff was eventually convicted based on information that

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Defendants provided to PRC authorities. Id. ¶ 58. Plaintiff alleges that a memorandum submitted

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by PRC officials to prosecutorial officials and advocating for Plaintiff’s prosecution included pro-

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democracy writings that Plaintiff had circulated and received using his Yahoo email account. Id.

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Plaintiff alleges that, “because the memorandum was confidential and not accessible by [Plaintiff]

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or his defense counsel —and in light of [Defendants’] concealment of their involvement in

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ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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[Plaintiff’s] arrest and prosecution—[Plaintiff] had no idea this document existed or that

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[Defendants] had helped to bring about his arrest, conviction, and torture.” Id. Plaintiff was also

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unable to confront his accusers. Id. ¶ 59. Accordingly, Plaintiff did not know that it was

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Defendants who had shared his communications with PRC authorities. Id.
While waiting for a verdict in his case, Plaintiff allegedly endured over a month of sleep

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deprivation, physical beatings, starvation, and interrogation sessions that involved torture. Id. ¶ 60.

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Once Plaintiff was convicted, he spent two years and four months in confinement, where he

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received a minimal amount of food and experienced physical abuse, including beatings. Id. ¶ 61.

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Plaintiff also witnessed other political dissidents being escorted to their execution and never to
return. Id. ¶ 62. Plaintiff then was transferred to a labor camp, where he was physically beaten if

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United States District Court
Northern District of California

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he did not meet his work quota. Id. ¶ 63.
After Plaintiff was released, he was arrested and detained again. Id. ¶ 65. Because of his

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previous conviction, Plaintiff was allegedly put on a heightened tier of interrogation called the

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Tiger Tier, where he was subject to more intense interrogations involving the Tiger Chair. Id. PRC

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authorities also allegedly destroyed Plaintiff’s ancestral home and everything in it because of

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Plaintiff’s pro-democracy advocacy. Id. ¶ 66. Plaintiff also allegedly lost his job as an executive

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vice president and partner at a legal services company, and he was unable to find other

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employment. Id. Plaintiff was released on bail awaiting his trial. Id. ¶ 67.
“Though [Plaintiff] sought redress for his torture and imprisonment, he knew it would be

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futile to attempt to seek justice in the fundamentally corrupt Chinese legal system.” Id. ¶ 68. “Had

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[Plaintiff] sought such redress or made any complaint, the communist regime would have

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imprisoned and tortured [Plaintiff] for subversion.” Id. Accordingly, before he was imprisoned

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again, Plaintiff sought the assistance of the U.S. Consulate General and flew to Thailand, where

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the U.S Embassy assisted him in processing an asylum claim. Id. “Once [Plaintiff] arrived in the

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United States, he was homeless and in failing health because of the years of torture and abuse.” Id.

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¶ 69.

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According to Plaintiff, “Defendants actively concealed their complicity with the PRC

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communist regime . . . including concealing their activities from investors and the U.S.

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government.” Id. ¶ 43. “Although [Defendants] have since publicly confessed to helping imprison

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some Chinese political dissidents, they have continued to conceal their assistance to the Chinese

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communist regime in imprisoning and torturing [Plaintiff].” Id. “When the U.S. House of

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Representatives Foreign Affairs Committee demanded that [Defendants] supplement their

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previous statements regarding the pro-democracy dissidents that they effectively turned over to the

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PRC, these Defendants continued to conceal their actions with respect to [Plaintiff].” Id. ¶ 69.

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Defendants “never supplemented their testimony before [the] U.S. House of Representatives
Foreign Affairs Committee by identifying [Plaintiff] as a victim of their misconduct, and

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United States District Court
Northern District of California

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[Defendants] have never publicly disclosed that they secretly turned over [Plaintiff’s] Protected

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Information to PRC authorities as alleged in this Complaint.” Id.

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According to Plaintiff, “[a]s [Plaintiff] slowly healed in the United States, he finally

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learned that [Defendants] were involved with his arrest, imprisonment, and torture.” Id. ¶ 70.

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Plaintiff alleges that, even if he had learned of Defendants’ misconduct while he was in China, he

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would not have been able to seek justice against Defendants because he would have been

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imprisoned immediately by PRC authorities. Id.

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D. Procedural History
On September 2, 2020, Plaintiff filed the instant case. Compl. Plaintiff alleges three causes

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of action: (1) violations of the Law of Nations under the Alien Tort Statute (“ATS”), 28 U.S.C. §

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1350; (2) violation of the Torture Victims Protection Act (“TVPA”), 28 U.S.C. § 1350 note; and

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(3) violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200,

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et seq. Compl. ¶¶ 72–91.

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On November 23, 2020, Defendants filed the instant motion, ECF No. 23 (“Mot.”), and a

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request for judicial notice, ECF No. 24. On January 25, 2021, Plaintiff filed an opposition, ECF

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No. 27 (“Opp’n”), and a request for judicial notice, ECF No. 28. On February 22, 2021,

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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Defendants filed a reply. ECF No. 29 (“Reply”).
The Court may take judicial notice of matters that are either “generally known within the

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trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources

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whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records are proper

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subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007).

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However, to the extent any facts in documents subject to judicial notice are subject to reasonable

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dispute, the Court will not take judicial notice of those facts. See Lee v. City of Los Angeles, 250

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F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara,

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307 F.3d 1119 (9th Cir. 2002).

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In the instant case, Defendants request that the Court take judicial notice of four

United States District Court
Northern District of California

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documents: (1) Yahoo! Inc.’s August 16, 2005 Form 8-K, which was filed with the U.S. Securities

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and Exchange Commission (“SEC”) and is available on the SEC’s website; (2) Yahoo! Inc’s

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October 27, 2005 Form 8-K/A, which was filed with the SEC and is available on the SEC’s

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website; (3) the Statement of Interest filed by the United States in Doe v. Qi, Case No. C-02-0672

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CW, Dkt. No. 85 (N.D. Cal. Jan. 16, 2004); and (4) a fact sheet from the U.S. State Department

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titled “U.S. Relations with China,” which is available on the U.S. State Department’s website.

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ECF No. 24. Plaintiffs request that the Court take judicial notice of four documents: (1) the

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transcript of the November 6, 2007 Hearing Before the U.S. House of Representatives’ Committee

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on Foreign Affairs Concerning Yahoo! Inc.’s Provision of False Information to Congress, which is

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available on the Committee’s website; (2) U.S. Senate Report No. 102-249, which is available at

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1991 WL 258662; (3) the U.S. State Department’s 2019 Report on China, which is available on

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the U.S. State Department’s website; and (4) an amicus brief filed in Doe v. Nestle, Case Nos. 19-

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416 and 19-453. ECF No. 28.

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All of the foregoing documents are public records, which are proper subjects of judicial

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notice. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (taking judicial notice of

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excerpts from a Senate Report and noting that “[l]egislative history is properly a subject of judicial

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notice”); Dreiling v. Am. Exp. Co., 458 F.3d 942, 946 n.2 (9th Cir. 2006) (noting that SEC filings

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are proper subjects of judicial notice); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,

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746 n.6 (9th Cir. 2006) (noting that “court filings and other matters of public record” are proper

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subjects of judicial notice); Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069–70

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(9th Cir. 1995) (taking judicial notice of U.S. State Department publications); Lopez v. Bank of

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Am., N.A., --- F. Supp. 3d ---, 2020 WL 7136254, at *6 (N.D. Cal. Dec. 4, 2020) (noting that courts

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may generally take judicial notice of transcripts of congressional hearings and taking judicial

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notice of transcript of congressional hearing). Accordingly, the Court GRANTS Defendants’

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request for judicial notice and GRANTS Plaintiff’s request for judicial notice.

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United States District Court
Northern District of California

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II. LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(1)
A defendant may move to dismiss for lack of subject matter jurisdiction pursuant to Rule

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12(b)(1) of the Federal Rules of Civil Procedure. Although lack of statutory standing requires

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dismissal for failure to state a claim under Rule 12(b)(6), lack of Article III standing requires

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dismissal for want of subject matter jurisdiction under Rule 12(b)(1). See Maya v. Centex Corp.,

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658 F.3d 1060, 1067 (9th Cir. 2011).

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“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v.

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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the

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allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.”

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Id. The Court “resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):

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Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's

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favor, the court determines whether the allegations are sufficient as a legal matter to invoke the

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court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “[I]n a factual

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attack,” on the other hand, “the challenger disputes the truth of the allegations that, by themselves,

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would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. “In

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resolving a factual attack on jurisdiction,” the Court “may review evidence beyond the complaint

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without converting the motion to dismiss into a motion for summary judgment.” Id. The Court
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ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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“need not presume the truthfulness of the plaintiff's allegations” in deciding a factual attack. Id.
Once the defendant has moved to dismiss for lack of subject matter jurisdiction under Rule

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12(b)(1), the plaintiff bears the burden of establishing the Court's jurisdiction. See Chandler v.

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State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

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B. Motion to Dismiss Under Rule 12(b)(6)
Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil

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Procedure 12(b)(6). Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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United States District Court
Northern District of California

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability requirement, but it

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asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal

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quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s]

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factual allegations in the complaint as true and construe[s] the pleadings in the light most

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favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,

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1031 (9th Cir. 2008).

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The Court, however, need not accept as true allegations contradicted by judicially

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noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look

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beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6)

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motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.

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1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in

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the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per

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curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere

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“conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to

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ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).
C. Leave to Amend
If the Court determines that a complaint should be dismissed, it must then decide whether

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to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend

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“shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule

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15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v.

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks

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omitted). When dismissing a complaint for failure to state a claim, “'a district court should grant

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leave to amend even if no request to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal

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United States District Court
Northern District of California

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quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing

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amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the

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moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

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(9th Cir. 2008).

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III. DISCUSSION

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Defendants move to dismiss Plaintiff’s Complaint on four grounds: (1) Plaintiff’s

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Complaint fails to satisfy Federal Rule of Civil Procedure 8 and is barred by the statute of

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limitations; (2) Plaintiff’s claims are not justiciable under the act of state doctrine, the political

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question doctrine, and the foreign affairs doctrine; (3) Plaintiff lacks Article III standing; and (4)

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each of Plaintiff’s claims fails to state a claim. Mot. at 4–28.

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Below, the Court first addresses Defendants’ arguments that Plaintiff lacks Article III

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standing and that Plaintiff’s claims are not justiciable under three different doctrines. The Court

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addresses these arguments first because the Court cannot rule on the merits without first

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addressing jurisdiction. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422,

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430–31 (2007) (holding that courts must first address jurisdiction before ruling on the merits);

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Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 89–90 (1998) (concluding that the court erred

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by ruling on the merits without addressing Article III standing). Both Article III standing and the

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political question doctrine implicate the Court’s jurisdiction. See Steel Co., 523 U.S. at 88

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(“Petitioner . . . has raised the issue of respondent’s standing to maintain the suit, and hence this

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Court’s jurisdiction to entertain it.”); Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007)

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(“Because the political question doctrine curbs a court’s power under Article III to hear a case, the

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doctrine is inherently jurisdictional.”). Furthermore, although the Ninth Circuit has stated that the

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act of state doctrine and foreign affairs doctrine do not implicate the Court’s jurisdiction,2 the

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Court considers these justiciability arguments because they are related to Defendants’ arguments

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regarding the political question doctrine. The Court concludes that Plaintiff has Article III

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standing and Plaintiff’s claims are justiciable.
The Court then addresses Defendants’ argument that the Complaint fails to satisfy Rule 8.

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Northern District of California

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Because the Court agrees with Defendants, the Court dismisses the Complaint with leave to amend

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without reaching Defendants’ remaining grounds for dismissal.

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A. Article III Standing
Defendants contend that Plaintiff lacks Article III standing in the instant case. Mot. at 14–

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17. “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and

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actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be

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redressed by a favorable ruling.’” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019)

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(quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 733 (2008)). In the instant case,

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Defendants’ argument focuses on the second element, traceability, which is also referred to as

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causation or causality. Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013).
“[A] court’s obligation to take a plaintiff at its word at [the pleading] stage in connection

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The Ninth Circuit has stated that dismissals based on the act of state doctrine or the foreign
affairs doctrine are rulings on the merits, not rulings on jurisdiction. See Liu v. Republic of China,
892 F.2d 1419, 1431 (9th Cir. 1989) (“The act of state doctrine is not a jurisdictional limit on
courts, but rather is ‘a prudential doctrine designed to avoid judicial action in sensitive areas.’”)
(quotation omitted); see also Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 959–960 (9th Cir. 2010) (reviewing dismissal under the foreign affairs doctrine as a dismissal
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)).
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with Article III standing issues is primarily directed at the injury in fact and causation elements.”

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Levine v. Vilsack, 587 F.3d 986, 996–97 (9th Cir. 2009). “To satisfy the causality element for

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Article III standing, Plaintiff[] must show that the injury is causally linked or ‘fairly traceable’ to

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[Defendants’] alleged misconduct, and not the result of misconduct of some third party not before

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the court.” Bellon, 732 F.3d at 1141 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–

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61 (1992)). “The line of causation between the defendant’s action and the plaintiff’s harm must be

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more than attenuated.” Id. (quoting Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,

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867 (9th Cir. 2012)).

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The United States Supreme Court has stated that Article III standing does not require that
the defendant’s actions be the last step in the chain of causation. See Bennett v. Spear, 520 U.S.

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United States District Court
Northern District of California

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154, 168–69 (1997) (explaining that courts should not equate “injury ‘fairly traceable’ to the

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defendant with injury as to which the defendant’s actions are the very last step in the chain of

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causation”); accord Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (concluding that,

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for purposes of Article III standing, plaintiffs need not “demonstrate that defendants’ actions are

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the ‘proximate cause’ of plaintiffs’ injuries). Although Article III standing does not exist where

16

“the injury complained of is ‘th[e] result [of] the independent action of some third party not before

17

the court,’ that does not exclude injury produced by determinative or coercive effect upon the

18

action of someone else.” Bennett, 520 U.S. at 169 (citations omitted) (emphasis in original). “A

19

causal chain does not fail simply because it has several links, provided those links are not

20

hypothetical or tenuous and remain plausible.” Bellon, 732 F.3d at 1141–42.

21

This Court and other courts in this district have found that the plaintiff’s injury was fairly

22

traceable to the defendant’s alleged misconduct even where the defendant’s alleged misconduct

23

was not the last step in the causal chain. For example, this Court held that plaintiffs, victims of a

24

data breach that affected Anthem, plausibly alleged the causation element of standing where they

25

alleged that they were enrolled in a health plan administered by Anthem, they provided their

26

personal information to Anthem, their personal information was compromised in a data breach,

27
28

12
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

and their personal information was used by hackers. In re Anthem, Inc. Data Breach Litig., 162 F.

2

Supp. 3d 953, 987 (N.D. Cal. 2016). Similarly, this Court rejected Yahoo’s arguments that

3

plaintiffs, who were victims of a data breach that affected Yahoo email accounts, had not alleged

4

the causation element of standing where the plaintiffs alleged that they used their Yahoo email

5

accounts for their personal communications and finances, Yahoo failed to maintain appropriate

6

data security measures, and hackers obtained the plaintiffs’ personal information during data

7

breaches. In re Yahoo! Inc. Customer Data Sec. Breach Litig., 2017 WL 3727318, at *17 (N.D.

8

Cal. Aug. 30, 2017).

9

Additionally, in Brill v. Chevron Corporation, another court in this district found that an
injury was fairly traceable to the defendant, Chevron, despite the fact that Chevron was not the last

11

United States District Court
Northern District of California

10

actor in the causal chain. 2017 WL 76894, at *1–*3 (N.D. Cal. Jan. 9, 2017). The plaintiffs, Israeli

12

victims of terrorism, alleged that the “single most effective strategy in inciting” the terrorist

13

attacks was former Iraqi leader Saddam Hussein’s practice of providing significant rewards to

14

terrorists’ families. Id. at *3. The plaintiffs further alleged that Hussein was able, or at least had an

15

increased ability, to make these payments because of “illegal surcharge payments made by

16

companies like Chevron.” Id. Although the plaintiffs alleged that, following Chevron’s alleged

17

misconduct, there were two other steps in the causal chain (Hussein’s payment to the terrorists and

18

the terrorists’ perpetration of the attacks), the court nevertheless concluded that the plaintiffs’

19

injury was fairly traceable to Chevron’s alleged misconduct. Id.

20

In the instant case, Plaintiff alleges that he was arbitrarily imprisoned and tortured by PRC

21

authorities because Defendants shared Plaintiff’s pro-democracy communications, which were

22

sent and received using his Yahoo account, with PRC authorities. Compl. ¶¶ 44, 46. Specifically,

23

Plaintiff alleges that, when PRC authorities interrogated Plaintiff, they asked him about the

24

communications he sent or received using his Yahoo account. Id. ¶ 51. Moreover, Plaintiff alleges

25

that a memorandum submitted by PRC officials to prosecutorial officials and advocating for

26

Plaintiff’s prosecution included pro-democracy writings that Plaintiff had circulated and received

27
28

13
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

using his Yahoo email account. Id. ¶ 58. Furthermore, Plaintiff alleges that he kept his Yahoo

2

account information confidential and does not mention any other way that PRC authorities would

3

have gained access to his communications other than Defendants sharing Plaintiffs’

4

communications. Id. ¶ 37.

5

Based on these allegations, Plaintiff has plausibly alleged that his arbitrary arrest and

6

torture by PRC authorities was the result of Defendants’ alleged disclosure of Plaintiff’s Yahoo

7

communications. See Bennett, 520 U.S. at 169 (stating that Article III standing exists where

8

plaintiff’s injury was “produced by determinative . . . effect upon the action of someone else”)

9

(citations omitted) (emphasis in original). Although Defendants’ alleged disclosure was followed
by additional steps in the causal chain (specifically, PRC officials’ alleged arbitrary arrest and

11

United States District Court
Northern District of California

10

torture of Plaintiff), that does not preclude the conclusion that Plaintiff’s injuries are fairly

12

traceable to Defendants’ alleged misconduct. Bennett, 520 U.S. at 168–69. Indeed, Plaintiff’s

13

causal chain is even stronger than the causal chain at issue in Brill, which involved two groups of

14

actors (Hussein and the terrorists who perpetrated the attacks), not one (PRC authorities).

15

Accordingly, the Court concludes that Plaintiff’s injuries are fairly traceable to Defendants’

16

alleged misconduct. Thus, the Court holds that Plaintiff has Article III standing in the instant case.

17
18

B. Justiciability
Defendants contend that Plaintiff’s claims are not justiciable under three doctrines: (1) the

19

political question doctrine; (2) the act of state doctrine; and (3) the foreign affairs doctrine. Mot. at

20

6–14. The Court addresses each doctrine in turn.

21

1. Political Question Doctrine

22

Defendants next assert that the instant case is not justiciable under the political question

23

doctrine. Mot. at 12–14. A “political question” is one which is “outside the courts’ competence

24

and therefore beyond the courts’ jurisdiction.” Rucho v. Common Cause, 139 S. Ct. 2484, 2494

25

(2019). “The nonjusticiability of a political question is primarily a function of the separation of

26

powers.” Baker v. Carr, 369 U.S. 186, 210 (1962). Where a case “presents a political question,

27
28

14
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

[the court] lack[s] subject matter jurisdiction to decide that question.” Corrie, 503 F.3d at 982.

2

Under the United States Supreme Court’s decision in Baker v. Carr, the political question

3

doctrine applies if one or more of six factors are “inextricabl[y]” involved in the case. Baker, 369

4

U.S. at 217. The Baker factors include: (1) “a textually demonstrable constitutional commitment

5

of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and

6

manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy

7

determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s

8

undertaking independent resolution without expressing lack of the respect due coordinate branches

9

of government”; (5) “an unusual need for unquestioning adherence to a political decision already
made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various

11

United States District Court
Northern District of California

10

departments on one question.” Id. The Court concludes that none of the Baker factors are present

12

in the instant case.

13

As to the first Baker factor, the issue in the instant case is not textually committed to a

14

coordinate political department. Defendants contend that the instant case involves “[t]he conduct

15

of the foreign relations of our government,” which “is committed by the Constitution to the

16

executive and legislative branches.” Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918). Courts

17

proceed from “the understanding that the management of foreign affairs predominantly falls

18

within the sphere of the political branches and the courts consistently defer to those branches.”

19

Alperin v. Vatican Bank, 410 F.3d 532, 549 (9th Cir. 2005). However, “[n]ot every case ‘touching

20

foreign relations’ is nonjusticiable, and judges should not reflexively invoke these doctrines to

21

avoid difficult and somewhat sensitive considerations in the context of human rights.” Kadic v.

22

Karadzic, 70 F.3d 232, 249 (2d Cir. 1995) (citations omitted). The political question inquiry “is a

23

case-by-case inquiry because it is error to suppose that every case or controversy which touches

24

foreign relations lies beyond judicial cognizance.” Vatican Bank, 410 F.3d at 549.

25
26

In the instant case, Plaintiff alleges that he was arbitrarily imprisoned and tortured in
violation of the ATS and the TVPA. Courts have recognized that cases brought under the ATS,

27
28

15
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ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

like the instant case, may be constitutionally committed to the judiciary. See Sarei v. Rio Tinto,

2

PLC, 671 F.3d 736, 756 (9th Cir. 2011) (en banc) (recognizing that “Congress expressly enacted

3

the ATS to provide a forum for resolution of tort claims”), vacated on other grounds, 133 S. Ct.

4

1995 (2013);3 see also Kadic, 70 F.3d at 249 (“The department to whom this issue has been

5

‘constitutionally committed’ is none other than our own—the Judiciary.”). Furthermore, the Ninth

6

Circuit has stated that a case would not call upon the courts to judge the conduct of foreign

7

relations where another branch of the United States government was not directly or indirectly

8

involved in the events that occurred in the case. See Sarei, 671 F.3d at 756 (concluding that courts

9

were not called upon to judge the conduct of foreign relations because “[t]he United States was not
directly or indirectly involved in any of the events that occurred” in the instant case); cf. Corrie,

11

United States District Court
Northern District of California

10

503 F.3d at 982 (concluding that a case was constitutionally committed to another branch where

12

the executive branch financed the conduct that the plaintiffs sought to challenge). The same is true

13

in the instant case. Accordingly, the first Baker factor is not present in the instant case.
As to the second Baker factor, there are judicially discoverable and manageable standards

14
15

for resolving the instant case. “[U]niversally recognized norms of international law provide

16

judicially discoverable and manageable standards for adjudicating suits brought under the Alien

17

Tort Act.” Kadic, 70 F.3d at 249. Furthermore, the fact that the Court must look to international

18

law does not create a political question. Sarei, 671 F.3d at 756. The instant case was brought under

19

the ATS and TVPA, which provide judicially discoverable and manageable standards for

20

resolving the instant case. Defendants do not contend otherwise. Thus, the second Baker factor is

21

not present in the instant case.

22
23
The Ninth Circuit’s en banc decision in Sarei was vacated based on the United States Supreme
Court’s decision in Kiobel v. Royal Dutch Petroleum Co. 133 S. Ct. 1995 (2013). Kiobel held that
the ATS does not apply to violations of the law of Nations that do not “touch and concern the
territory of the United States . . . with sufficient force to displace the presumption against [the
ATS’s] extraterritorial application.” 569 U.S. 108, 124–25 (2013). In the instant motion,
Defendants contend that Plaintiff’s allegations do not overcome the presumption against
extraterritoriality. Mot. at 20–22. The Court need not reach extraterritoriality because the Court
dismisses Plaintiff’s Complaint for failure to satisfy Federal Rule of Civil Procedure 8.
16
3

24
25
26
27
28

Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

As to the third Baker factor, the existence of judicially discoverable and manageable

2

standards “obviates any need to make initial policy decisions of the kind normally reserved for

3

nonjudicial discretion.” Kadic, 70 F.3d at 249. Accordingly, the third Baker factor is not present in

4

the instant case.

5

As to the fourth through sixth Baker factors, the Ninth Circuit has stated that these factors

6

“are more discrete in theory than in practice, with the analyses often collapsing into one another.”

7

Vatican Bank, 410 F.3d at 544. “The fourth, fifth, and sixth Baker factors are relevant in an ATS

8

case ‘if judicial resolution of a question would contradict prior decisions taken by a political

9

branch in those limited contexts where such contradiction would seriously interfere with important
governmental interests.” Sarei, 671 F.3d at 756 (quoting Kadic, 70 F.3d at 249). Where, as here,

11

United States District Court
Northern District of California

10

the facts of the case “present no question regarding the actual conduct of United States foreign

12

policy, if there is any lack of respect due coordinate branches it must concern the executive’s

13

foreign policy interests related to this case.” Id. “In asking whether adjudication of this matter

14

would display a lack of respect for coordinate branches, [the Court] must ask whether another

15

branch has taken any action that could be jeopardized by [the Court’s] exercise of jurisdiction over

16

this case.” Id.

17

In the instant case, Defendants contend generally that judicial resolution of the instant case

18

would “improperly insert the judiciary into a sensitive area already covered by the Executive

19

Branch.” Mot. at 13. However, Defendants do not point to any prior actions taken by a political

20

branch that could be jeopardized by the Court’s exercise of jurisdiction in the instant case. See

21

Sarei, 671 F.3d at 756 (concluding that the fourth through sixth Baker factors are not present

22

where another branch has not “taken any action that could be jeopardized by [the court’s] exercise

23

of jurisdiction over this case”). For example, where the Ninth Circuit has concluded that a case

24

presented a nonjusticiable political question, the executive branch funded the challenged or same

25

conduct. See Corrie, 503 F.3d at 983–84 (concluding that a case presented a nonjusticiable

26

political question where the executive branch funded the conduct that the plaintiffs sought to

27
28

17
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

challenge); Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 555 (9th Cir. 2014) (concluding

2

that the fourth through sixth factors were implicated where plaintiffs challenged a private actor’s

3

funding of conduct and the executive branch funded the same conduct simultaneously).

4

Defendants do not cite to any such executive branch funding or to any political branch’s actions

5

that could be jeopardized by the Court’s exercise of jurisdiction in the instant case. Accordingly,

6

the fourth through sixth Baker factors are not present in the instant case.

7

Because none of the six Baker factors are present in the instant case, the Court concludes
that the political question doctrine does not bar judicial resolution of the instant case. Indeed,

9

courts have concluded that other similar cases brought under the ATS based on alleged human

10

rights violations do not present nonjusticiable political questions. See Sarei, 671 F.3d at 755–57

11

United States District Court
Northern District of California

8

(concluding that a case brought under the ATS by residents of Papua New Guinea alleging that

12

they or their family members were victims of international law violations in connection with the

13

operation of a copper mine did not present a nonjusticiable political question); see also Kadic, 70

14

F.3d at 949 (concluding that a lawsuit involving genocide, war crimes, and crimes against

15

humanity carried out by military forces did not present a nonjusticiable political question).

16

Accordingly, the Court concludes that the instant case does not present a nonjusticiable political

17

question.

18

2. Act of State Doctrine

19

Defendants first contend that the instant case is not justiciable under the act of state

20

doctrine. Mot. at 6–12. “The act of state doctrine limits judicial interference in foreign relations by

21

precluding adjudication of the sovereign acts of other nations in United States courts.” Royal Wulff

22

Ventures LLC v. Primero Mining Corp., 938 F.3d 1085, 1088 (9th Cir. 2019). The doctrine is “a

23

consequence of domestic separation of powers, reflecting ‘the strong sense of the Judicial Branch

24

that its engagement in the task of passing on the validity of foreign acts of state may hinder’ the

25

conduct of foreign affairs.” Id. at 1092 (quoting W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp.,

26

Int’l, 493 U.S. 400, 404 (1990)).

27
28

18
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

For the act of state doctrine to apply, two mandatory elements must be met. Id. “[E]ven

2

when [these] two mandatory elements are satisfied, courts may appropriately look to additional

3

factors [i.e., the policies underlying the act of state doctrine] to determine whether application of

4

the act of state doctrine is justified.” Id. (quoting Sea Breeze Salt, 899 U.S. at 1072–73). The Court

5

initially addresses whether the mandatory elements are met in the instant case. The Court then

6

considers the additional factors.

7
8

a. Mandatory Elements
For the act of state doctrine to apply, two mandatory elements must be met: “(1) there is an
official act of a foreign sovereign performed within its own territory; and (2) the relief sought or

10

the defense interposed [in the action would require] a court in the United States to declare invalid

11

United States District Court
Northern District of California

9

the [foreign sovereign’s] official act.” Id. (quoting Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899

12

F.3d 1064, 1069 (9th Cir. 2018)).

13

As to the first element, courts have held that an act that violates jus cogens is not an

14

official act under the act of state doctrine. “[A] jus cogens norm, also known as a ‘peremptory

15

norm’ of international law, ‘is a norm accepted and recognized by the international community of

16

states as a whole as a norm from which no derogation is permitted and which can be modified

17

only by a subsequent norm of general international law having the same character.” Siderman de

18

Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna Convention on

19

the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). “[J]us cogens

20

‘embraces customary laws considered binding on all nations,’ and ‘is derived from values taken to

21

be fundamental by the international community, rather than from the fortuitous or self-interested

22

choices of nations.’” Id. at 715 (citation omitted). “Whereas customary international law derives

23

solely from the consent of states, the fundamental and universal norms constituting jus cogens

24

transcend such consent . . . .’” Id.

25

Courts have held that an act that violates jus cogens is not an official act under the act of

26

state doctrine. See, e.g., Sarei, 671 F.3d at 759 (“[V]iolations of jus cogens norms are not barred

27
28

19
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

by the act of state doctrine because [they] are not sovereign acts”); Siderman de Blake, 965 F.2d at

2

718 (“International law does not recognize an act that violates jus cogens as a sovereign act.”); see

3

also Kadic, 70 F.3d at 250 (“[W]e think it would be a rare case in which the act of state doctrine

4

precluded suit under section 1350.”).

5

Defendants contend that the Complaint requires that the Court opine on the validity of
several official acts by the PRC: the passage of laws banning dissident speech and requiring

7

companies doing business in the PRC to cooperate in criminal investigations, the alleged request

8

for Plaintiff’s information from Defendants, and the apprehension and punishment of Plaintiff for

9

violating these laws. Reply at 15. The Court initially considers the apprehension and punishment

10

of Plaintiff. The Court then considers the passage of laws banning dissident speech and requiring

11

United States District Court
Northern District of California

6

cooperation in criminal investigation and the alleged request for Plaintiff’s information.

12

First, as to the PRC’s apprehension and punishment of Plaintiff, Plaintiff alleges that PRC

13

authorities arbitrarily imprisoned and tortured him. Compl. ¶¶ 48–67. However, the alleged

14

arbitrary imprisonment and torture of Plaintiff is not an official act because the alleged arbitrary

15

imprisonment and torture of Plaintiff violated jus cogens norms. Siderman de Blake, 965 F.2d at

16

714–15 (holding that official torture was a violation of jus cogens norms); Doe v. Qi, 349 F. Supp.

17

2d 1258, 1296 (N.D. Cal. 2004) (“It is well established that torture constitutes jus cogens

18

violations”). Jus cogen violations are not official acts. See Sarei, 671 F.3d at 759 (“[V]iolations of

19

jus cogens norms are not barred by the act of state doctrine because [they] are not sovereign

20

acts”); Siderman de Blake, 965 F.2d at 718 (“International law does not recognize an act that

21

violates jus cogens as a sovereign act.”).

22

Second, as to the laws and the alleged request for Plaintiff’s information, Plaintiff alleges

23

that Defendants disclosed Plaintiff’s pro-democracy communications to PRC authorities based on

24

a request by PRC authorities. Compl. ¶ 41. Furthermore, Defendants contend that they were

25

required to respond to any request by PRC authorities based on PRC law, which required them to

26

cooperate in criminal investigations. Mot. at 6–9; Feinerman Decl. ¶ 12. In the antitrust context, he

27
28

20
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

Ninth Circuit has held that “corporate conduct which is compelled by a foreign sovereign is also

2

protected by antitrust liability, as if it were an act of the state itself.” Timberlane Lumber Co. v.

3

Bank of America, N.T. and S.A., 549 F.2d 597, 606 (9th Cir. 1976). Under this principle, if

4

Defendants’ conduct was compelled by the request of the PRC, the act of state doctrine would

5

apply. Moreover, Plaintiff alleges that Defendants aided and abetted PRC authorities’ violations of

6

Plaintiff’s human rights. Compl. ¶¶ 73, 78. The Ninth Circuit has concluded that an act of state

7

issue can arise in such circumstances. See Doe I v. Unocal Corp., 395 F.3d 932, 960 (9th Cir.

8

2002) (“In the present case, an act of state issue arises because the court must decide that the

9

conduct by the Myanmar Military violated international law in order to hold Unocal liable for
aiding and abetting that conduct.”), on reh’g en banc dism’d by stipulation of the parties sub nom.,

11

United States District Court
Northern District of California

10

403 F.3d 708 (9th Cir. 2005). Accordingly, the Court concludes that the mandatory elements are

12

present in the instant case and proceeds to consider the additional factors.

13
14

b. Additional Factors
In Banco Nacional de Cuba v. Sabbatino, the United States Supreme Court outlined three

15

factors to consider to ensure that application of the act of state doctrine “reflect[s] the proper

16

distribution of functions between the judicial and political branches of the Government on matters

17

bearing upon foreign affairs.” 376 U.S. at 427–28. First, “the greater the degree of codification or

18

consensus concerning a particular area of international law, the more appropriate it is for the

19

judiciary to render decisions regarding it.” Id. at 428. Second, “the less important the implications

20

of an issue are for our foreign relations, the weaker the justification for exclusivity in the political

21

branches.” Id.; accord Von Saher, 754 F.3d at 725 (“The justification for invoking the act of state

22

doctrine ‘depends greatly on the importance of the issue’s implications for our foreign policy.’”)

23

(quoting Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1047 (9th Cir. 1983)).

24

Third, “[t]he balance of relevant considerations may also be shifted if the government

25

which perpetrated the challenged act of state is no longer in existence.” Id. The Ninth Circuit has

26

also held that the court should consider whether the foreign state was acting in the public interest.

27
28

21
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

Liu, 892 F.2d at 1434. The Court applies a “balancing approach” to these factors. W.S.

2

Kirkpatrick, 493 U.S. at 409.
As to the first Sabbatino factor, there is a high degree of consensus concerning the areas of

4

international law implicated here. Indeed, as explained above, supra Section III(B)(2)(a), Plaintiff

5

alleges violations of jus cogens norms, which are built upon international consensus. See Siderman

6

de Blake, 965 F.2d at 714–15 (holding that official torture was a violation of jus cogens norms).

7

Qi, 349 F. Supp. 2d at 1296 (concluding that, where violations of jus cogens norms were at issue,

8

the first Sabbatino factor weighed against dismissal). Moreover, Plaintiff alleges violations of the

9

ATS and the TVPA, and the Ninth Circuit has noted that the act of state doctrine would likely not

10

preclude suit under these statutes. See Kadic, 70 F.3d at 250 (“[W]e think it would be a rare case

11

United States District Court
Northern District of California

3

in which the act of state doctrine precluded suit under section 1350.”). Thus, the first Sabbatino

12

factor weighs against dismissal.

13

As to the second Sabbatino factor, the Court does not conclude that the issue raised in the

14

instant case will have important implications for United States foreign relations. As explained

15

above, supra Section III(B)(1), Defendants have not pointed to any specific foreign policy

16

decisions with which judicial resolution of the instant case would conflict. Moreover, unlike in

17

other cases where the act of state doctrine precluded suit, Plaintiff is not seeking to hold PRC

18

officials responsible for his arbitrary arrest and torture; rather, Plaintiff is seeking to hold

19

Defendants, who are private actors, responsible for their actions in the United States. Cf. Qi, 349

20

F. Supp. 2d at 1301 (concluding that the second Sabbatino factor weighed in favor of dismissal of

21

the plaintiffs’ claims for monetary damages against PRC officials). Thus, the second Sabbatino

22

factor weighs against dismissal.

23

As to the third Sabbatino factor, the PRC government, which was in power during all times

24

relevant to the instant case, remains in power today. Thus, the third Sabbatino factor weighs in

25

favor of dismissal.

26

As to the final factor, the Court concludes that Plaintiff has plausibly alleged that the PRC

27
28

22
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

government was not acting in the public interest. Indeed, Plaintiff alleges that PRC authorities

2

arbitrarily arrested and tortured him, acts which would not be in the public interest. See Unocal

3

Corp., 395 F.3d at 960 (concluding that “it would be difficult to contend that the Myanmar

4

Military and Myanmar Oil’s alleged violations of international human rights were ‘in the public

5

interest’”); Qi, 349 F. Supp. 2d at 1306 (concluding that “torture, cruel, inhuman or degrading

6

treatment and arbitrary detentions” were not in the public interest, such that this factor weighed

7

against dismissal). Thus, the final factor weighs against dismissal.

8

The Court concludes that the first, second, and fourth factors weigh against dismissal, and
the third factor weighs in favor of dismissal. Weighing these factors, the Court concludes that

10

dismissing the instant case would not “reflect the proper distribution of functions between the

11

United States District Court
Northern District of California

9

judicial and political branches of the Government on matters bearing upon foreign affairs.”

12

Sabbatino, 376 U.S. at 427–28; see Unocal Corp., 395 F.3d at 960 (declining to apply the act of

13

state doctrine where only the third factor weighed in favor of dismissal). Indeed, the instant case

14

involves alleged arbitrary arrest and torture, which there is international consensus on and which is

15

not in the public interest. Moreover, Defendants have not specifically articulated how proceeding

16

in the instant case would affect foreign relations. Furthermore, although the PRC government

17

remains in power, Plaintiff has brought the instant case not against the PRC or its officials but

18

rather against Defendants, who are private actors. Thus, the Court concludes that the act of state

19

doctrine does not bar the resolution of the instant case.

20

3. Foreign Affairs Doctrine

21

Defendants additionally contend that Plaintiff’s UCL claim is not justiciable under the

22

foreign affairs doctrine. Mot. at 14. The foreign affairs doctrine is a preemption doctrine that

23

prevents “an intrusion by [a] State into the field of foreign affairs which the Constitution entrusts

24

to the President and Congress.” Zschernig v. Miller, 389 U.S. 429, 432 (1968); accord Deutsch v.

25

Turner Corp., 324 F.3d 692, 714 (9th Cir. 2003) (holding that, “[i]n the absence” of specific

26

authorization from the federal government, “states are prohibited from exercising foreign affairs

27
28

23
Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1
2

powers”).
The foreign affairs doctrine stems from the principle that “the federal government holds

3

the exclusive authority to administer foreign affairs.” Gingery v. City of Glendale, 831 F.3d 1222,

4

1228 (9th Cir. 2016). “Under the foreign affairs doctrine, state laws that intrude on this

5

exclusively federal power are preempted, under either the doctrine of conflict preemption or the

6

doctrine of field preemption.” Id. “Under the doctrine of conflict preemption, a state action must

7

yield to federal executive authority where ‘there is evidence of clear conflict between the policies

8

adopted by the two.’” Id. at 1228–29. (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 421

9

(2005)). “Under the doctrine of field preemption, even in the absence of any express federal
policy, a state action may be preempted where (1) its “real purpose” does not concern an area of

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United States District Court
Northern District of California

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traditional state responsibility, and (2) it intrudes on the federal government’s foreign affairs

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power.” Id. at 1229. Courts consider “the strength of the state interest, judged by standards of

13

traditional practice, when deciding how serious a conflict must be shown before declaring the state

14

law preempted.” Garamendi, 539 U.S. at 420. Accordingly, the Court considers the following

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issues: (1) whether there is a likelihood that the UCL will conflict with U.S. foreign policy; (2)

16

whether the UCL addresses a traditional state responsibility, and (3) the strength of the state

17

interest.

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First, Defendants have not shown a likelihood that the application of the UCL in the instant

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case “will produce something more than incidental effect in conflict with express foreign policy of

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the National Government.” Garamendi, 539 U.S. at 419–20. “To intrude on the federal

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government’s foreign affairs power, a [state’s action] must have more than some incidental or

22

indirect effect on foreign affairs.” See Gingery, 831 F.3d at 1230 (quoting Cassirer v. Thyssen-

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Bornemisza Collection Found., 737 F.3d 613, 617 (9th Cir. 2013) (citation omitted)). As explained

24

above, supra Section III(B)(1)–(2), Defendants have not pointed to a specific policy with which

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the Court’s adjudication of the instant case would conflict. Accordingly, Defendants have not

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shown that the application of the UCL would produce more than an incidental or indirect effect on

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

foreign affairs. See Gingery, 831 F.3d at 1230–31 (concluding that the foreign affairs doctrine did

2

not apply where the plaintiffs did not make “specific allegations that [the local government’s]

3

actions have had, or are likely to have, any appreciable effect on foreign affairs”).

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Second, the UCL addresses a traditional state responsibility. Specifically, the UCL’s main

5

purpose is the “preservation of fair business competition.” See Cel-Tech. Commc’ns Inc. v. Los

6

Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). The preservation of fair business

7

competition is a traditional state responsibility, which states have long regulated. See Gingery, 831

8

F.3d at 1230 (concluding that the construction of a monument fell within a traditional state

9

responsibility because “[g]overnments have long used monuments to speak to the public”)
(quotation omitted). Moreover, Defendants have not contended that the “real purpose” of the UCL

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United States District Court
Northern District of California

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is to regulate foreign affairs. Cf. Von Saher, 592 F.3d at 964 (“Though [the state statute] purports

12

to regulate property, an area traditionally left to the states . . . [the state statute’s] real purpose is to

13

provide relief to Holocaust victims and their heirs.”).

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Third, Defendants contend that “California’s interest here is ‘weak’ because Plaintiff is a

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Chinese citizen and has not alleged that he has ever resided in California.” Mot. at 14. However,

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Defendants’ argument ignores the fact that the two corporate defendants in the instant case are

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headquartered in California. Compl. ¶¶ 8–9. California has a strong interest in the conduct of “its

18

corporations and residents.” In re Pizza Time Theatre Sec. Litig., 112 F.R.D. 15, 18 (N.D. Cal.

19

1986). Defendants’ argument also ignores Plaintiff’s allegation that Defendants allegedly made the

20

decision to share communications, including Plaintiff’s communications, with PRC authorities

21

from Yahoo’s California headquarters, where they allegedly learned of the request to share

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Plaintiff’s communications and approved that request. Id. ¶ 44. California has a sstrong interest in

23

remedying violations of its laws that occur within its borders. See Senne v. Kansas City Royals

24

Baseball Corp., 934 F.3d 918, 933 (9th Cir. 2019) (stating that a jurisdiction has a strong “interest

25

in regulating conduct that occurs within its borders”).

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Defendants have not shown that there is a likelihood that the UCL would have more than

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

an incidental impact on foreign policy. Furthermore, the UCL falls within a traditional state

2

responsibility. Additionally, California has a strong interest in ensuring that its residents comply

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with the UCL within its borders. Accordingly, the foreign affairs doctrine does not bar

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adjudication of Plaintiff’s UCL claim. Because the political question doctrine, the act of state

5

doctrine, and the foreign affairs doctrine do not bar adjudication of the instant case, the Court

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concludes that the instant case is justiciable.

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C. Rule 8

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Defendants assert that the Complaint should be dismissed because it fails to satisfy Rule 8.

9

Mot. at 4–6. Specifically, Defendants contend that the Complaint fails to plead dates on which the
alleged misconduct occurred. Moreover, Defendants assert a statute of limitations defense. The

11

United States District Court
Northern District of California

10

Court agrees with Defendants that Plaintiff’s Complaint fails to satisfy Rule 8.

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Federal Rule of Civil Procedure 8 requires that a complaint “contain sufficient allegations

13

of underlying facts to give fair notice and to enable the opposing party to defend itself

14

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). This Court has previously noted

15

that “a failure to plead when any alleged misconduct occurred will not necessarily be fatal under

16

Rule 8.” Brodsky v. Apple, 445 F. Supp. 3d 110, 135 (N.D. Cal. 2020). “However, where . . . an

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applicable statute of limitations defense has been raised and is non-frivolous,” the Court has held

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that the “failure to plead the approximate date of the alleged misconduct fails to satisfy Rule 8’s

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requirement to ‘contain sufficient allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively.’” Id. (quoting Starr, 652 F.3d at 1216). Other

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courts in this district have similarly dismissed complaints as insufficiently pled where they failed

22

to include the dates of the alleged misconduct. See, e.g., Calip v. M.E.I.C., 2015 WL 5996365, at

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*6 (N.D. Cal. Oct. 15, 2015) (dismissing claim where the plaintiff did not “state when she was in

24

the hospital and when her child passed away, without which the Court cannot determine whether

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Plaintiff brought her claims within the applicable statute of limitations period”); Vasconcellos v.

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Sara Lee Bakery, 2013 WL 4014520, at *2 (N.D. Cal. Aug. 5, 2013) (dismissing termination

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

claim as insufficiently pled where complaint did not allege “when plaintiff worked for defendants,

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when plaintiff became injured or engaged in protected activity, or when the alleged misconduct

3

occurred”); O’Donnell v. U.S. Bancorp Equipment Finance, Inc., 2010 WL 2198203, at *3 (N.D.

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Cal. May 28, 2010) (“[T]he Court finds that O’Donnell has nonetheless failed to satisfy the

5

pleading requirements of Federal Rule of Civil Procedure 8 because she has not alleged any dates

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in her complaint.”).
In the instant case, the Complaint does not provide any dates as to when the alleged

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8

misconduct occurred. For instance, Plaintiff does not allege when he opened a Yahoo account,

9

when he used his Yahoo account to send and receive pro-democracy materials, when he was
arrested by PRC authorities, when he was confined and tortured by PRC authorities, and when he

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United States District Court
Northern District of California

10

left China. See Compl. ¶¶ 48–70. Indeed, the only dates pleaded in the Complaint relate to the

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Tiananmen Square protests in 1989. Id. ¶¶ 1–3, 34. However, the Complaint alleges that those

13

protests took place before Plaintiff began using his Yahoo account, so those protests are not

14

relevant to the alleged misconduct in the instant case. Id. ¶ 34.
Moreover, Defendants raise the possibility of a statute of limitations defense. The

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applicable statutes of limitations are 10 years for Plaintiff’s ATS and TVPA claims and 4 years for

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Plaintiff’s UCL claim. See Deutsch, 324 F.3d at 717 (noting that the statute of limitations for the

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ATS and the TVPA is 10 years); Cal. Bus. & Prof. Code § 17208 (stating that the statute of

19

limitations for a UCL claim is 4 years). In the instant case, judicially noticeable materials state that

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Yahoo stopped operating in the PRC in 2005, approximately fifteen years before the instant case

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was filed and outside of the applicable statutes of limitations. ECF No. 24 Exhs. A, B. Because

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Defendants raise the possibility of a statute of limitations defense, and because the Complaint does

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not plead any dates as to when the alleged misconduct occurred, the Court concludes that the

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Complaint is insufficiently pled under Rule 8. See Brodsky, 445 F. Supp. 3d at 135; Calip, 2015

25

WL 5996365, at *6; Vasconcellos, 2013 WL 4014520, at *2; O’Donnell, 2010 WL 2198203, at

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*3.

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

In Plaintiff’s opposition brief, Plaintiff states that he was arrested in December 2003,

1
2

remained imprisoned until December 2010, was arrested again in 2014, and arrived in the U.S. in

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August 2016. Opp’n at 5. However, in ruling on a motion to dismiss, the Court cannot look

4

beyond Plaintiff’s Complaint to Plaintiff’s opposition brief. See Schneider v. Cal. Dep’t of Corr.,

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151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (stating that, in ruling on a motion to dismiss, “a court

6

may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in

7

opposition to a defendant’s motion to dismiss”). Moreover, even if the Court were to consider the

8

dates alleged in Plaintiff’s opposition, the alleged misconduct, which allegedly occurred when

9

Defendants shared Plaintiff’s information with PRC authorities before Plaintiff’s arrest, appears to
have occurred outside of the applicable statutes of limitations. See Deutsch, 324 F.3d at 717

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United States District Court
Northern District of California

10

(noting that the statute of limitations for the ATS and the TVPA is 10 years); Cal. Bus. & Prof.

12

Code § 17208 (stating that the statute of limitations for a UCL claim is 4 years).
Plaintiff’s opposition invokes tolling. Opp’n at 4–6. However, Plaintiff’s Complaint does

13
14

not sufficiently allege the facts that might justify tolling, including the dates of any events that

15

might justify tolling. See Compl. ¶¶ 48–70. “[F]ederal courts have repeatedly held that plaintiffs

16

seeking to toll the statute of limitations on various grounds must have included the allegation in

17

their pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 991 (9th Cir. 2006);

18

see, e.g., Session v. PLM Lender Servs., 2011 WL 6748510, at *4 (N.D. Cal. Dec. 22, 2011)

19

(holding that the failure to plead facts regarding tolling was insufficient to “establish the equitable

20

tolling of all statutes of limitation”).4 Accordingly, if Plaintiff intends to rely on a ground for

21

tolling, Plaintiff must include allegations that support tolling in Plaintiff’s Complaint.
Because the Court agrees with Defendants that Plaintiff’s Complaint is insufficiently pled

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23

under Rule 8, the Court GRANTS Defendants’ motion to dismiss. The Court does so with leave to

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25
4

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27
28

To the extent that a plaintiff raises allegations of fraud, those allegations must be pled with
particularity. See Federal Rule of Civil Procedure 9(b); see also In re Animation Workers Antitrust
Litig., 123 F. Supp. 3d 1175, 1194 (N.D. Cal. 2015) (“[A]llegations of fraudulent concealment
must be pled with particularity.”).
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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1

amend because amendment would not be futile, unduly prejudice the opposing parties, or cause

2

undue delay, and Plaintiff has not acted in bad faith. See Leadsinger, 512 F.3d at 532. Indeed,

3

Plaintiff can cure this deficiency by adding allegations about the dates of the alleged misconduct

4

and allegations regarding tolling.

5

IV. CONCLUSION

6

For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss on the

7

following grounds: Article III standing and justiciability. Specifically, the Court finds that Plaintiff

8

has Article III standing to bring the instant case and that the political question doctrine, act of state

9

doctrine, and foreign affairs doctrine do not render Plaintiff’s claims non-justiciable. However, the
Court GRANTS Defendants’ motion to dismiss with leave to amend for failure to satisfy Federal

11

United States District Court
Northern District of California

10

Rule of Civil Procedure 8. Plaintiff shall file any amended complaint within 30 days of this Order.

12

Failure to do so, or failure to cure deficiencies identified herein or identified in the instant motion

13

to dismiss, will result in dismissal of the deficient claims with prejudice. Plaintiff may not add

14

new causes of action or add new parties without stipulation or leave of the Court. Plaintiff is

15

directed to file a redlined complaint comparing the complaint to any amended complaint as an

16

attachment to Plaintiff’s amended complaint.

17

IT IS SO ORDERED.

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Dated: April 29, 2021
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 20-CV-06185-LHK
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND