Jara et al v. Barrientos Nunez
Filing
146
ORDER granting 137 Motion for Partial Summary Judgment; granting 144 Motion in Limine. Signed by Judge Roy B. Dalton, Jr. on 5/3/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOAN JARA; AMANDA JARA TURNER;
and MANUELA BUNSTER,
Plaintiffs,
v.
Case No. 6:13-cv-1426-Orl-37GJK
PEDRO PABLO BARRIENTOS NUNEZ,
Defendant.
ORDER
This cause is before the Court on the following:
1.
Plaintiffs’ Dispositive Motion for Partial Summary Judgment and
Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary
Judgment (Doc. 137), filed January 15, 2016;
2.
Defendant’s Response to Plaintiff’s [sic] Motion for Partial Summary
Judgment (Doc. 139), filed February 12, 2016;
3.
Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Dispositive Motion
for Partial Summary Judgment and Memorandum of Law in Support of
Plaintiffs’ Reply (Doc. 140), filed February 26, 2016; and
4.
Plaintiffs’ Unopposed Motion in Limine and Incorporated Memorandum of
Law (Doc. 144), filed April 21, 2016.
This action arises out of the torture and murder of Victor Jara (“Victor”)—husband
of Plaintiff Joan Jara (“Joan”) and father to Plaintiffs Amanda Jara Turner and Manuela
Bunster—during the September 1973 military coup that installed General Augusto
Pinochet in power in Chile. (See Doc. 111 (“Operative Complaint’); see also Doc. 137-2,
pp. 56–57.)
Subsequent to Plaintiffs learning of Victor’s death in September 1973, the following
events occurred:
(1)
Joan “reported [Victor’s] torture and killing to the
relevant agencies, including the Embassy of the United
Kingdom in Santiago”;
(2)
In 1973, Joan gave a series of interviews regarding
Victor’s torture and death, “pleading for those with
information to come forward”;
(3)
Joan attempted to “piece together” Victor’s torture and
killing through other victim witnesses;
(4)
On September 8, 1978, Joan filed a criminal complaint
with the Chilean Criminal Court of First Instance, which
led to an investigation into Victor’s torture and death
that was closed in 1982;
(5)
Despite having fled for their safety, in 1984, “Plaintiffs
returned to Chile to further pursue their investigation”;
(6)
In 1990, Plaintiff provided the National Truth and
Reconciliation Commission—which was known as the
Rettig Commission and was formed to investigate
abuses that occurred during General Pinochet’s
regime—with information they had gathered regarding
Victor’s torture and death;
(7)
In 1994, Plaintiffs started the Victor Jara Foundation
“with the aim of preserving [Victor’s] life’s work and
advocating for justice”;
(8)
On August 16, 1999—after General Pinochet was
arrested in London—Plaintiffs filed a complaint against
General Pinochet with the Chile Court of Appeals for
the aggravated homicide of Victor, prompting a new
investigation (“the 1999 Investigation”);
2
(9)
In 2001, the Chile Court of Appeals consolidated the
1978 and 1999 Investigations (“the 2001
Consolidated Investigation”);
(10)
In 2008, the 2001 Consolidated Investigation was
closed due to the court’s inability to determine who
killed Victor;
(11)
After the close of the 2001 Consolidated Investigation,
Plaintiffs “formally protested, demanding that the
[Chilean] government continue to investigate” Victor’s
torture and death, causing the Santiago Court of
Appeals to reopen the 2001 Consolidated
Investigation;
(12)
In 2009, Plaintiffs received testimonial evidence that
Defendant Pedro Pablo Barrientos Nunez had killed
Victor;
(13)
Unable to locate Defendant, Joan made a public
appeal for those with knowledge of the circumstances
surrounding Victor’s torture and death to come forward;
(14)
In May 2012, a Chilean television station aired an
investigative report revealing that Defendant was
residing in Florida;
(15)
On December 26, 2012, the Chilean Court of Appeals
charged Defendant as a perpetrator in the killing of
Victor (“2012 Indictment”); and
(16)
On September 4, 2013, unable to pursue the claims in
Chile, 1 Plaintiffs initiated the present civil action
(“Instant Action”) (collectively, “the Process”).
(Doc. 137-5, pp. 4–8, 34; Doc. 48, ¶¶ 3–5, 10–16; Doc. 1.) 2
During the Process, Plaintiffs encountered numerous obstacles, including:
(1) “[T]he suppression of evidence through denial of facts or
through cover stories that attempted to deflect
1
Under Chilean law, Defendant’s residence in Florida prevented his prosecution
in Chile, which in turn prevented any civil proceeding against Defendant in Chile.
(Doc. 48, ¶¶ 16–18.)
2 The facts supporting the Process are undisputed.
3
responsibility” during General Pinochet’s regime;
(Doc. 137-2, pp. 23–26, 28, 32, 38; Doc. 48, ¶¶ 6–9, 17–
18)
(2) Repressive violence during, and positive propaganda to
justify, General Pinochet’s regime;
(3) The issuance of the Chilean Decree-Law 2191 in 1978,
which was strictly enforced until 1998 and exempted from
criminal liability the acts that occurred between
September 1973 and March 1978,
(4) The maintenance of General Pinochet’s regime from
1973 to 1990 when Patricio Aylwin was voted into
presidency;
(5) The Rettig Commission’s inability to identify the persons
responsible for Victor’s death for its 1991 report;
(6) General Pinochet’s remaining command of the Chilean
Army until 1998; and
(7) Chilean law that prevented the criminal prosecution of a
defendant in abstenia and further prohibited a decision as
to civil liability until the completion of any criminal
proceedings against the defendant (collectively, “the
Obstacles”).
(Doc. 137-1, pp. 34–35; 137-2, pp. 23–26, 28, 32, 38; Doc. 48, ¶¶ 6–9, 17–18.)
The Instant Action is currently proceeding on Plaintiffs’ two-count Operative
Complaint, which alleges that Defendant violated the Torture Victim Protection Act of
1991 (“TVPA”) through his participation in and command over the detention, “brutal
torture,” and murder of Victor (“TVPA Claims”). (Doc. 111, ¶¶ 1, 3, 53–81.)
In anticipation of trial, which will commence on June 13, 2016 (see Doc. 141),
Plaintiffs move for partial summary judgment, seeking a disposition in their favor on the
following affirmative defenses: (1) the action is time-barred under the TVPA’s ten-year
statute of limitations (“SOL Defense”); and (2) Plaintiffs’ alleged failure to exhaust local
4
remedies in Chile as required by the TVPA (“Exhaustion Defense”). 3 (Doc. 137.)
Defendant opposes (Doc. 139), and Plaintiffs have responded (Doc. 140). The matter is
ripe for adjudication. 4
STANDARDS
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
As to issues for which the movant would bear the burden of proof at trial, the “movant
must affirmatively show the absence of a genuine issue of material fact, and support its
motion with credible evidence demonstrating that no reasonable jury could find for the
non-moving party on all of the essential elements of its case.” Landolfi v. City of
Melbourne, Fla., 515 F. App’x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to issues for which the non-movant would
bear the burden of proof at trial, the movant has two options: (1) the movant may simply
point out an absence of evidence to support the non-moving party’s case; or (2) the
movant may provide “affirmative evidence demonstrating that the nonmoving party will be
unable to prove its case at trial.” U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa
3
Defendant failed to answer the Operative Complaint. His failure to answer is not
fatal, however, because he raised the SOL and Exhaustion Defenses in a prior motion to
dismiss the Operative Complaint. (See Doc. 112); see also Dyer v. Wal-Mart Stores, Inc.,
535 F. App’x 839, 843 (11th Cir. 2013) (“Moreover, although Wal-Mart did not file an
answer to [plaintiff’s] amended complaint, it filed a motion to dismiss, setting forth its
affirmative defenses. Therefore, Wal-Mart defended the action against it.”). Moreover, the
allegations in the Operative Complaint are substantively similar to the allegations in the
previous iteration of the complaint (compare Doc. 63, with Doc. 112), to which Defendant
answered and raised the SOL and Exhaustion Defenses. (Doc. 94.)
4 Additionally, Plaintiffs filed an unopposed motion in limine that is due to be
granted. (See Doc. 144, p. 10.)
5
Cntys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp.,
477 U.S. at 325).
“The burden then shifts to the non-moving party, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.2d at
1115–17). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248) (1986)).
The Court must view the evidence and all reasonable inferences drawn from the
evidence in the light most favorable to the non-movant. Battle v. Bd. of Regents,
468 F.3d 755, 759 (11th Cir. 2006). However, “[a] court need not permit a case to go to a
jury . . . when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743
(11th Cir. 1996).
DISCUSSION
Plaintiffs move for summary judgment as to the Exhaustion and SOL Defenses.
(Doc. 137.) The Court will address each Defense in turn.
I.
Exhaustion Defense
The Exhaustion defense is an affirmative defense for which Defendant bears a
“substantial” burden of proof. Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005). To
prevail on the Exhaustion Defense, Defendant must demonstrate that Plaintiffs failed to
exhaust all “adequate and available” remedies in Chile. See S. Rep. No. 249, 102d Cong.,
1st Sess., at 2 (1991).
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Once [Defendant] makes a showing of remedies abroad
which have not been exhausted, the burden shifts to [Plaintiff]
to rebut by showing that the local remedies were ineffective,
unobtainable, unduly prolonged, inadequate, or obviously
futile. The ultimate burden of proof and persuasion on the
[Exhaustion Defense], however, lies with [Defendant].
Jean, 431 F.3d at 782 (quoting S. Rep. No. 102–249, at 9–10)).
In support of their Motion, Plaintiffs provide evidence of the Process to
demonstrate that Defendant are unable to prove the Exhaustion Defense. (See
Doc. 137-5, pp. 4–8; Doc. 48, ¶¶ 3–5, 10–16; Doc. 1.) Defendant counters with affirmative
evidence of an alternative legal remedy that Plaintiffs could have pursued to seek financial
compensation for Victor’s torture and death. (Doc. 139, p. 3; Doc. 112-1, ¶ 6.) Defendant
maintains that, rather than pursuing a criminal action based on the 2012 Indictment,
Plaintiffs could have maintained a civil lawsuit for crimes committed by governmental
agents (“Alternative Remedy”). (Doc. 112-1, ¶ 7.) The “more efficient” Alternative
Remedy only requires “the existence of an activity . . . performed by a Government
agency[,] [s]uch as illegal, fraudulent or negligent acts, events or omissions from its
agents,” and does not require the identification or appearance of Defendant or any other
governmental agents involved in Victor’s torture or death. (Id. ¶¶ 9–13, 21.) According to
Defendant, because the Chilean government has specifically acknowledged that Victor’s
death occurred in the hands of its agents (see Doc. 137-1, pp. 55–57), Plaintiffs could
have pursued the Alternative Remedy against the Chilean government. (Id. ¶¶ 15–21.)
Defendant has, therefore, demonstrated an adequate and available local remedy. 5
5
The Court finds persuasive the rational that an action for financial compensation
from the government—such as the Alternative Remedy—is an adequate remedy that
must be exhausted in the local forum prior to bringing a TVPA claim against a defendant
in the United States. See Mamani v. Sanchez Berzain, 636 F. Supp. 2d 1326, 1331–32
7
Nevertheless, Plaintiff has demonstrated that the Alternative Remedy was
unobtainable. (See generally Doc. 137-4, pp. 10–13 (discussing the inadequacy of the
Alternative Remedy).) The Alternative Remedy is subject to a four-year statute of
limitations from the date “that the relatives of the victim were certain that a crime had been
perpetrated.” (Id. at 12 (citing Chilean law).) Plaintiffs first learned of Victor’s torture and
death in on September 18, 1973. (Doc. 137-5, p. 4.) Thus, they must have commenced
the Alternative Remedy by September 18, 1977. Given that General Pinochet’s regime
was still in power at that time, the Court concludes that the Alternative Remedy would
have been unobtainable, ineffective, and futile for Plaintiffs between 1973 and 1977. See
Mamani, 636 F. Supp. 2d at 1332 (recognizing that “[i]n most cases where courts have
found local remedies to be ineffective or futile, the foreign government actors being sued
have remained in power . . ., thereby rendering any judgments against them worthless”).
As such, Plaintiffs are entitled to summary judgment on the Exhaustion Defense.
II.
SOL Defense
Claims brought under the TVPA are subject to a ten-year statute of limitations
(“SOL”), which is subject to equitable tolling. Cabello v. Fernandez-Larios, 402 F.3d 1148,
1153–1154 (11th Cir. 2005). “Equitable tolling is appropriate when a movant untimely files
because of extraordinary circumstances that are both beyond his control and unavoidable
even with diligence.” Jean, 431 F.3d at 779 (citation omitted). “[W]hether the doctrine of
equitable tolling saves a cause of action otherwise barred by the statute of limitations is
a question of law” for the Court. Justice v. U.S., 6 F.3d 1474, 1478 (11th Cir. 1993).
Upon consideration of the record evidence concerning the Obstacles, the Court
(S.D. Fla. 2009).
8
concludes as a matter of law that the SOL was tolled while General Pinochet remained in
power and the Amnesty Law was in full effect. See Jean, 431 F.3d at 780 (recognizing
that “every court that has considered the question of whether . . . a repressive
authoritarian regime constitute[s] ‘extraordinary circumstances’ . . . has answered in the
affirmative” and stating that litigation is “often not [] possible until there has been a regime
change in the plaintiff’s country of origin). The remaining question, then, is whether the
SOL was tolled beyond 1998.
Plaintiffs argue that they are entitled to summary judgment on the SOL Defense
because “intractable obstacles” prevented their identification of Defendant until 2009.
(Doc. 137, p. 22.) In support, they rely on evidence of the Obstacles and of their
“diligence” in investigating Victor’s torture and death beginning in 1973. (Id. at 22–25.)
Defendant responds that Plaintiffs were able to investigate Victor’s death and torture in a
“meaningful way” starting in 1999, and that his identity was neither deliberately concealed
nor falsified. 6 (Doc. 139, pp. 10–11.)
Although the Eleventh Circuit often requires deliberate concealment or affirmative
misconduct to toll the SOL, see, e.g., Cabello, 402 F.3d at 1155, the TVPA legislation
also provides that the SOL should be tolled “where the plaintiff has been unable to
discover the identity of the offender,” see S. Rep. 102–249, at 10. The record evidence
relating to the Process compels a finding that, despite Plaintiffs’ diligent efforts to identify
those responsible for Victor’s torture and death, they were unable to identify Defendant
6
The bulk of Defendant’s response regarding the SOL Defense pertains to the
years during which General Pinochet was still in power and the Amnesty Law was still in
effect. (See Doc. 139, pp. 5–10.) Having already found that the SOL was tolled during
these times, the Court rejects these arguments and will focus solely on the arguments
relating to the years since 1998.
9
until 2009. (See Doc. 137-5, pp. 4–8, 34; Doc. 48, ¶¶ 3–5, 10–16; Doc. 1.) That Plaintiffs
were sufficiently diligent to warrant tolling beyond 1998 is particularly evidenced by their:
(1) initiation of the 1999 Investigation, which in turn led to the 2001 Consolidated
Investigation; (2) public protest in 2008 to keep the 2001 Consolidated Investigation open;
(3) public plea for information in 2009 after learning of Defendant’s involvement in Victor’s
torture and death; and (4) prompt filing of the Instant Action upon learning that the Chilean
court could not pursue an action based on the 2012 Indictment. (See Doc. 137-5, pp. 7–
8; Doc. 48, ¶¶ 10–13.) The record evidence, therefore, supports a finding as a matter of
law that the SOL was tolled until Plaintiffs discovered Defendant’s identity in 2009.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Dispositive
Motion for Partial Summary Judgment and Memorandum of Law in Support of Plaintiffs’
Motion for Partial Summary Judgment (Doc. 137) and Plaintiffs’ Unopposed Motion in
Limine and Incorporated Memorandum of Law (Doc. 144) are GRANTED.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 3, 2016.
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Copies:
Counsel of Record
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