Gang et al v. Zhizhen et al

Filing 177

ORDER granting 167 Motion for Reconsideration but adhering to ruling denying leave to amend 162 . Signed by Judge Robert N. Chatigny on 9/30/2017. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHEN GANG, DOES 1-3,
ZOU WENBO, AND OTHERS
SIMILARLY SITUATED
PlaintiffS,
v.
ZHAO ZHIZHEN & DOES, 1-5
INCLUSIVE
Defendants.

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Case No. 3:04-CV-1146 (RNC)

RULING AND ORDER
Plaintiffs seek reconsideration of the denial of their
request for leave to file a Third Amended Complaint (“TAC”).
They ask the Court to consider several theories of liability
under the Torture Victims Protection Act (“TVPA”).
Recons. 2, ECF No. 167.

Pls.’s Mot.

Defendant responds that the TAC fails to

allege claims under the TVPA with adequate specificity or
plausibility.

Def.’s Opp’n 8-10, ECF No. 170.

I agree.

Accordingly, the motion for reconsideration is granted but I
adhere to my ruling denying leave to amend, docketed as
ECF No. 162.
Under the plausibility standard that governs federal
pleading after Ashcroft v. Iqbal, 556 U.S. 662 (2009), plaintiffs
must “plead factual content that allows the Court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. at 678.
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Allegations that are “merely

consistent with” liability are insufficient because they “stop[]
short of the line between possibility and plausibility of
‘entitlement to relief.’” Id.
Plaintiffs’ TVPA claims of aiding and abetting, agency and
conspiracy fail to allege facts giving rise to a plausible claim
even drawing all reasonable inferences in their favor.
Plaintiffs’ allegations do not plausibly allege a connection
between defendant’s alleged misconduct and plaintiffs’ injuries.
The Court of Appeals has not addressed whether the TVPA
authorizes a claim based on aiding and abetting liability.

See

Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 53
n.10 (2d Cir. 2014).

Even assuming this theory of liability is

available under the statute, plaintiffs’ allegations do not
permit the reasonable inference that the defendant aided and
abetted the torture of Lee.
Plaintiffs’ agency argument fails for the same reasons as
the command responsibility claim addressed in the ruling.

There

are no well-pleaded allegations that the defendant had any
contact or relationship with the individuals who captured and
tortured Lee.

At best, they shared membership in a massive

Communist Party apparatus in China, which is too tenuous to
plausibly constitute an agency relationship.

This situation

stands in stark contrast to the allegations in Chowdhury, where
the defendant was alleged to have been present and exchanged

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direct communications with the primary torturers.

746 F.3d at 47

& n.4.
The conspiracy claims assert in conclusory terms that the
defendant was “successfully solicited to produce and disseminate
. . . propaganda.”

TAC ¶ 126.

Lacking is factual content that

allows the reasonable inference that the defendant entered into
an agreement to commit torture or other acts made illegal by the
TVPA.

The standard for alleging a conspiracy requires more than

mere assertion of an agreement and actions in line with that
agreement.

Iqbal, 556 U.S. at 680; Bell Atl. Corp. v. Twombly,

550 U.S. 544, 565 (2007) (“Although in form a few stray
statements speak directly of agreement, on fair reading these are
merely legal conclusions . . . .”).
Even if plaintiffs could improve upon the allegations in the
TAC in an attempt to overcome its deficiencies, they cannot
overcome the factors of undue delay and prejudice, discussed in
the ruling, which weigh heavily against granting leave to amend.
See ECF No. 162, at 13-14.
Accordingly, the motion for reconsideration is hereby
granted but I adhere to my ruling denying leave to amend,
docketed as ECF No. 162.
So ordered this 30th day of September 2017.
/s/RNC
Robert N. Chatigny
United States District Judge
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