Boniface et al v. Viliena

Filing 191

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. For the foregoing reasons, Defendants motion for summary judgment and to sever, [ECF No. 139 ], is DENIED, Plaintiffs motion for partial summary judgment, [ECF No. 144 ], is GRANTED, and Plaintiffs motion to strike, [ECF No. 156 ], is also GRANTED.SO ORDERED.(McManus, Caetlin)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DAVID BONIFACE, NISSANDÈRE
MARTYR, and JUDERS YSEMÉ,
Plaintiffs,
v.
JEAN MOROSE VILIENA,
Defendant.

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Civil Action No. 17-cv-10477-ADB

MEMORANDUM & ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
BURROUGHS, D.J.
I.

INTRODUCTION
Plaintiffs David Boniface, Nissage Martyr 1, and Juders Ysemé (collectively, “Plaintiffs”)
brought suit against Defendant Jean Morose Viliena (“Defendant” or “Viliena”) under the
Torture Victim Protection Act (“TVPA”), the Alien Tort Statute (“ATS”), and for the crime of
arson under Haitian criminal law. As alleged in the complaint, Defendant was, at various times
related to this action, the mayor and acting mayor of the town of Les Irois, located in Haiti.
Defendant is affiliated with the Haitian Democratic and Reform Movement party, and each
Plaintiff is, to varying degrees, affiliated with an opposition party, the Struggling People’s Party.
Plaintiffs allege that, over the course of several years, Defendant was responsible for several
violent crimes, including the death of Plaintiff David Boniface’s brother, Eclesiaste Boniface, an

1

The Court has since granted Plaintiffs’ motion to substitute Nissandère Martyr, the son of
Nissage Martyr, to replace Nissage Martyr as Plaintiff.

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attack in 2008 on a radio station in Les Irois affiliated with the Struggling People’s Party, during
which Nissage Martyr and Juders Ysemé were maimed, and a mass arson in 2009.
In its prior order granting in part and denying in part Defendant’s motion to dismiss the
complaint, [ECF No. 56], this Court found that it lacked jurisdiction over the ATS claim but that
Defendant had not demonstrated that the Court lacked jurisdiction over the TVPA claims or that
it could not exercise supplemental jurisdiction over the arson claim. [Id. at 14–16]. The Court
therefore dismissed the ATS claim but left intact Plaintiffs’ claims brought under the TVPA and
Haitian law. [Id. ¶ 31].
Following the close of discovery, Defendant moved for summary judgment and to sever,
[ECF No. 139], arguing that the Court should enter judgment in his favor because (1) there is no
evidence that he committed arson or directed or encouraged others to commit arson, (2) Plaintiffs
have failed to satisfy the TVPA’s exhaustion requirement, (3) the Court should abstain from
exercising jurisdiction for considerations of adjudicatory comity, and (4) the Court lacks subject
matter jurisdiction. [ECF No. 140 at 4–8]. Defendant further requested that if the Court grants
summary judgment in his favor on the arson count (Count V), that it should also sever the count
for the killing of Eclesiaste Boniface (Count I) from the shooting of Nissage Martyr and Juders
Ysemé (Count II). [Id. at 8–9].
Plaintiffs, in turn, moved for summary judgment on Defendant’s affirmative defense of
exhaustion, arguing that no reasonable factfinder could find that Plaintiffs have not satisfied the
TVPA’s exhaustion requirement. [ECF No. 145 at 11–16]. Plaintiffs separately moved to strike
a portion of Defendant’s affidavit, which accompanied his memorandum of law in support of his
motion for summary judgment, as conclusory and inconsistent with his prior testimony. [ECF
No. 156].

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For the reasons set forth below, Defendant’s motion for summary judgment and to sever,
[ECF No. 139], is DENIED, and Plaintiffs’ motions for partial summary judgment, [ECF No.
144], and to strike, [ECF No. 156], are GRANTED.
II.

BACKGROUND & PROCEDURAL HISTORY
In the statements of facts supporting the cross-motions for summary judgment, the parties
eschewed a recitation of the alleged underlying events that give rise to this lawsuit. Nonetheless,
the Court finds that a brief recital of the underlying actions provides helpful context when
considering the pending motions, and therefore includes the following excerpt from its prior
order on Defendant’s motion to dismiss while expressly disclaiming any findings regarding the
truth of the allegations.2
Death of Eclesiaste Boniface, July 27, 2007
On the morning of July 27, 2007, Defendant was accompanying a sanitation crew
through the streets of Les Irois when he got into a dispute with a resident, Ostanie
Mersier, about the disposal of garbage.3 After Defendant hit Mersier on the head
with his gun, she left to file an incident report with the local Justice of the Peace,
Judge Saint Bell, and Defendant followed her to demand her arrest.
As a trial monitor for a local human rights organization, Plaintiff Boniface came to
observe the proceedings before Judge Bell. Boniface also spoke on Mersier’s behalf
and accused Defendant of abusing his authority by assaulting Mersier. As Boniface
was leaving, he encountered Defendant, along with members of the KOREGA 4
militia, members of the mayoral staff, and two of Judge Bell’s cousins. They
surrounded Boniface and threatened him with violence, but a group of bystanders
intervened and escorted Boniface to Plaintiff Martyr’s home. Defendant and his
associates followed Boniface and continued to threaten and attempt to hit Boniface
2

In the narrative, “Plaintiff Martyr” or “Martyr” refers to Nissage Martyr, one of the original
plaintiffs who was later replaced as plaintiff by his son, Nissandère Martyr, following Nissage’s
death two days after this lawsuit was filed. See [ECF No. 56 at 27–31].
3

At the time of this incident, Defendant was mayor of Les Irois. [ECF No. 1 ¶¶ 28–29].

4

Plaintiffs allege that KOREGA was a powerful political machine that exerted control over
politics in the southwestern region of Haiti, including Les Irois, through a system of patronage,
threats, and violence. [ECF No. 56 at 2–3]. Plaintiffs further contend that Defendant, as a
candidate and then as mayor of Les Irois, was backed by KOREGA and its militia. [Id.].
3

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until Defendant instructed his associates to let him go, because they would “take
care of him later.”
That evening, Defendant and an associate from the KOREGA militia appeared near
Boniface’s home. They ordered the residents in the area to remain behind closed
doors and announced that later that night, the paramilitaries would appear and show
no mercy. Later that evening, Defendant led a group of approximately twelve men
from the KOREGA militia, armed with firearms, machetes, clubs, and picks, to
Boniface’s home. The group included members of the mayoral staff and Judge
Bell’s cousins. At that time, David Boniface was not at home, but was attending
church. His younger brother, 23-year-old Eclesiaste Boniface, answered the door,
and Defendant personally supervised as his associates dragged Eclesiaste into a
crowd of about thirty bystanders. Eclesiaste pleaded with the crowd, saying that he
was uninvolved and had no problems with anyone. Despite his pleas, Defendant’s
associates lunged at Eclesiaste with a machete, and then one of them fired his gun,
killing Eclesiaste. Neighbors ran to David Boniface’s church to warn him that
Eclesiaste had been killed and that Defendant and the KOREGA militia were now
looking for him. The church pastor sheltered Boniface overnight.
Assault on Martyr and Ysemé, April 8, 2008
In or around March 2008, a committee of local journalists and activists founded a
community radio station in Les Irois called New Vision Radio, which was to be the
first local radio station in the town. Radio serves as a primary news source in Haiti
due to high rates of illiteracy. The radio station was financed and operated with
support from two Struggling People’s Party politicians. It rented a room from
Plaintiff Martyr and operated out of his home. Throughout March and early April
2008, station volunteers ran test broadcasts to determine the reach of the signal.
Plaintiff Ysemé, who was in high school at the time, enjoyed spending time at the
station before and after class, though he was not employed by the station.
Defendant was opposed to the radio station, and on the day the station launched, in
late March of 2008, Defendant called in to the station and declared his intent to shut
the station down. On or about March 27, 2008, a group of government officials
visited Les Irois to mediate the dispute between Defendant and supporters of the
radio station. The delegation included the prosecutor from a neighboring city, as
well as Haitian National Police and officers from the United Nations Stabilization
Mission in Haiti. After the meeting, the officials instructed Defendant not to shut
the radio station down, and he agreed.
On or about April 8, 2008, Defendant met a group of approximately 30 KOREGA
militia members near Martyr’s residence. Defendant distributed firearms to the
militia members, some of whom also carried machetes, picks, and sledge hammers.
Defendant’s associates began firing in the air as they walked toward Martyr’s
house. Martyr and Ysemé were sitting on the front porch. Hearing the gunshots,

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Ysemé ran through the house to the backyard. Martyr started to get up from the
porch to go inside, seeking to protect his wife and daughters who were inside.
Defendant grabbed Martyr and dragged him down the hallway. Defendant pointed
his handgun at Martyr’s ear and told him to leave the house. Martyr refused to leave
because his family remained in the house. Defendant shouted that Martyr wanted
to stay so that he could report the attack. Defendant then swept Martyr’s feet out
from under him, forcing him to the floor. He started beating Martyr on his sides and
chest, pistol-whipping Martyr with his gun and striking him with his fists. Several
members of the KOREGA militia and the mayor’s staff joined in the assault,
Defendant struck Martyr hard in the chest, causing Martyr to collapse face forward.
The militia members left Martyr on the floor and carried the broadcasting
equipment out the door, at the direction of Defendant.
Meanwhile, a member of the KOREGA militia spotted Plaintiff Ysemé in the
backyard. He accused Ysemé of wanting to report the attack, grabbed him, and
dragged him into the house. One member of the militia restrained Ysemé as others
beat him on his head and the sides of his body. Defendant, who was striking Martyr,
turned to Ysemé and said that he “wanted him.” While Martyr was lying on the
floor in pain, he saw that the front door was open, and he ran to the doorway to
escape. Ysemé, who had managed to slip free, followed him and ran toward the
door. Some of Defendant’s associates tackled Martyr as he tried to run. Ysemé ran
past him, onto the street. Martyr broke free again and followed Ysemé onto the
street. Seeing them trying to escape, Defendant ordered one of his associates,
Villeme Duclona, to shoot and kill Martyr and Ysemé. Duclona opened fire with
his shotgun, hitting Martyr in the leg and Ysemé in the face. Defendant and the
KOREGA militia members then seized the rest of the radio equipment and fled the
scene. They left Martyr and Ysemé for dead.
Martyr and Ysemé survived the attack, but both were left with severe, permanent
injuries. Martyr spent several months in the hospital as a result of his wounds, and
his injured leg was amputated above the knee. Ysemé also required months of
intensive medical treatment, including two surgeries to extract shotgun pellets from
his face. He is permanently blind in one eye and still has pieces of shotgun pellets
in his scalp and arms. He continues to suffer from dizziness and migraine headaches
as a result of his injuries.
Arson of 36 Homes, October 29, 2009
In or around January 2009, Defendant fled to the United States after Haitian
authorities launched a criminal investigation into the killing of Eclesiaste Boniface
and the attack on the radio station. Plaintiffs assert that he continued to hold the
office of mayor and exercised control over the KOREGA militia from
Massachusetts.

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In or around October 2009, Hautefort Bajon, Defendant’s Chief of Staff, fell ill. On
October 27, 2009, KOREGA supporters, led by Defendant, who was then in Haiti,
marched through the streets of Les Irois, threatening to kill people and burn down
houses if Bajon died. Defendant publicly declared that the Struggling People’s
Party had placed a voodoo curse on Bajon. The next day, October 28, 2009,
Defendant and members of the KOREGA militia, again marched through the
streets. Bajon died on October 29. Shortly thereafter, Defendant went into the town
market with several KOREGA associates and started to strike perceived supporters
of the Struggling People’s Party, accusing them of causing Bajon’s death.
On the night of October 29, members of the KOREGA militia and mayoral staff,
acting in concert with Defendant, set fire to 36 homes, all belonging to Struggling
People’s Party supporters, to avenge the death of Bajon. The homes of Martyr,
Ysemé, and the Boniface family were burned and rendered uninhabitable.
Boniface v. Viliena (“Boniface I”), 338 F. Supp. 3d 50, 57–59 (D. Mass. 2018). With that
context, the Court turns to the facts relevant to the pending motions for summary judgment,
which, unless otherwise noted, are undisputed. 5
On July 28, 2007, the day after his brother, Eclesiaste Boniface, was killed, Plaintiff
David Boniface filed a complaint with the Haitian authorities. [ECF No. 148 ¶ 1]. Throughout
2007, 2008, and 2009, Plaintiffs filed several additional complaints regarding Eclesiaste
Boniface’s death, the 2008 attack on the radio station, and the 2009 mass arson with “(1) the
prosecutors for Grand-Anse, (2) the Jérémie court of first instance, (3) the investigating judge for
the civil court of Jérémie, (4) the Les Irois police precinct, and (5) the Jérémie office of the
Haitian National Police.” [Id. ¶ 2]. Plaintiffs also filed reports with the “Inter-American
Commission on Human Rights” and the UN peacekeeping mission in Haiti, also referred to as
the MINUSTAH. [Id. ¶ 3].

5

The Court draws the facts from Plaintiffs’ response to Defendant’s statement of undisputed
material facts filed in support of his motion for summary judgment, [ECF No. 153-1], Plaintiffs’
statement of undisputed material facts in support of their partial motion for summary judgment,
[ECF No. 148], and Defendant’s response thereto, [ECF No. 151]. Together, along with the
documents cited therein, these documents contain the parties’ positions on the material facts.
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On July 14, 2008, Defendant obtained lawful permanent resident status, which permitted
him to travel to and reside in the United States. [ECF No. 148 ¶ 4]. While Plaintiff was in Haiti
in September 2008, he was arrested based on his alleged roles in the murder of Eclesiaste
Boniface and the attack on the radio station. [Id. ¶ 5]. After his release from custody, Defendant
left Haiti and traveled to the United States on January 27, 2009. [Id.¶ 6]. At some point between
January and November 2009, Defendant returned to Haiti, but as of November 27, 2009, he was
back in the United States and did not return to Haiti until August 20, 2012. [Id. ¶¶ 6–7].
On January 25, 2010, while Defendant was in the United States, the Jérémie court of first
instance issued an indictment in the Haitian criminal case involving the attack on the radio
station and the killing of Eclesiaste Boniface. [ECF No. 148 ¶ 9]. A bench trial on October 25,
2010, resulted in the conviction of six other defendants for their involvement. [Id. ¶¶ 10–11].
Thereafter the Jérémie court stated that in absentia proceedings should be initiated against
Defendant, but no such proceedings were ever held. [Id. ¶ 11].
In August 2012, nearly two years after the Jérémie court bench trial, Defendant returned
to Haiti at which time he was appointed to be the Interim Executive Agent (“IEA”) of Les Irois
by then-Haitian President Michel Martelly. [ECF No. 148 ¶¶ 7–8]. After this appointment,
Defendant continued to spend much of his time in the United States, but visited Haiti more often.
[Id. ¶ 12]. Since Defendant’s term as IEA of Les Irois ended in 2015, he has visited Haiti
“maybe three to four times.” [Id. ¶ 13 (quoting ECF No. 146-3 (“Viliena Dep.”) at 27:14–22)].
In August 2013, during Defendant’s term as IEA of Les Irois, the civil court in Jérémie
convicted twelve defendants, including Defendant’s father, for the 2009 mass arson in Les Irois,
and awarded Plaintiffs damages. [ECF No. 148 ¶¶ 12–13, 17]. Subsequently, in or around 2015,
the Les Cayes Court of First Instance conducted judicial proceedings regarding the death of

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Eclesiaste Boniface and the attack on the radio station, which Defendant did not attend. [Id. ¶
14]. On July 21, 2015, the Les Cayes court convicted five defendants for the charged offenses,
awarded Plaintiffs damages, and stated that Defendant was a fugitive and, like the Jérémie court,
ordered that in absentia proceedings be initiated against him. [Id. ¶¶ 14–15, 18]. Plaintiffs aver
that although they were awarded damages by the Jérémie and Les Cayes courts for the killing of
Eclesiaste Boniface, the attack on the radio station, and the mass arson, they have not been able
to recover any portion of the awards. [ECF No. 148 ¶¶ 17–19].
Plaintiffs assert that no in absentia proceedings were initiated against Defendant by the
Les Cayes court for the killing of Eclesiaste Boniface or the attack on the radio station, and
further allege that no proceedings have been initiated against him for his role in the mass arson.
[ECF No. 148 ¶¶ 11, 16, 20]. Defendant disputes this and asserts that he “has fully and freely
participated in all judicial proceedings brought against him in Haiti” and that he “was exonerated
in the case of the alleged arson in Haiti and found not responsible.” [ECF No. 151 ¶ 1].
Additionally, Defendant asserts that on April 30, 2018, after this lawsuit was filed, a Haitian
court “entered judgment dismissing the claims against [him] for the allegation in the Complaint
relating to the radio station attack and the death of Eclesiaste Boniface.” [Id. ¶ 2].
III.

MOTION TO STRIKE
Because the motion to strike bears on the evidence to be considered when deciding the
pending motions for summary judgment, the Court addresses it first.
A.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 56(c)(4), “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the

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matters stated.” When ruling on a motion for summary judgment, “a court may take into account
any material that would be admissible or usable at trial . . . [but] inadmissible evidence may not
be considered.” Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993). “If evidence cannot be presented
in a form that would be admissible at trial, the court may not rely on it.” Facey v. Dickhaut, 91
F. Supp. 3d 12, 19 (D. Mass. 2014) (citing Fed. R. Civ. P. 56(c)(2)) (additional citations
omitted).
“A motion to strike is the appropriate means of objecting to the use of affidavit evidence
on a motion for summary judgment.” Facey, 91 F. Supp. 3d at 19 (citing Casas Office Machs.,
Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994)). The objecting party must “(a)
apprise the trial court . . . that she considers the affidavit defective and (b) spell out the nature of
the ostensible defects clearly and distinctly.” Perez v. Volvo Car Corp., 247 F.3d 303, 314 (1st
Cir. 2001). “Furthermore, a court will disregard only those portions of an affidavit that are
inadmissible and consider the rest of it.” Casas Office Machs., 42 F.3d at 682 (citation omitted).
B.

Discussion

Plaintiffs argue that the Court should strike the second sentence of Defendant’s affidavit,
[ECF No. 152], because it is conclusory, contradicts his prior sworn testimony, and improperly
attempts to offer expert testimony, [ECF No. 157 at 2–4]. The main thrust of Plaintiffs’
argument, however, is that the disputed portion of the affidavit is excludable under the First
Circuit’s “sham affidavit rule” which provides that if “an interested witness has given clear
answers to unambiguous questions [at deposition], he cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, but does not give a satisfactory
explanation of why the testimony is changed.” Flaherty v. Entergy Nuclear Ops., Inc., 946 F.3d
41, 50 (1st Cir. 2019) (alteration in original) (quoting Colantuoni v. Alfred Calcagni & Sons,

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Inc., 44 F.3d 1, 4–5 (1st Cir. 1994)); see also Russell v. Acme-Evans Co., 51 F.3d 64, 67–68 (7th
Cir. 1995) (“Where deposition and affidavit are in conflict, the affidavit is to be disregarded
unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the
question was phrased in a confusing manner or because a lapse of memory is in the
circumstances a plausible explanation for the discrepancy.”); Hackman v. Valley Fair, 932 F.2d
239, 241 (3rd Cir. 1991) (“When, without a satisfactory explanation, a nonmovant’s affidavit
contradicts earlier deposition testimony, the district court may disregard the affidavit in
determining whether a genuine issue of material fact exists.”).
During Defendant’s deposition on November 1, 2021, he answered several questions
about the 2008 attack on the radio station in Les Irois. See [ECF No. 146-3 at 109–113].
Relevant here, Defendant was asked to identify who led the investigation into the attack, and he
volunteered the following opinion: “In Haiti, everything that happens has to stay with politics.
And any time that politics is involved in something, it’s very difficult for the people to find
justice . . . .” [Id. at 112:20–24]. When subsequently asked about who he thought was
responsible for the attack, he opined, “I believe that it’s because of the weakness of the state that
caused all the situation of Les Irois.” [Id. at 113:10–17]. After Plaintiffs moved for partial
summary judgment on Defendant’s affirmative defense of failure to exhaust under the TVPA,
however, Defendant filed, on April 18, 2022, an affidavit to support his opposition in which he
stated:
[b]ased on my personal experience and public life in Haiti, I believe that the country
of Haiti has a functioning and fair judicial system that has provided the Plaintiffs
in this case, with a means to recover damages for any claims that can be proved
against others.
[ECF No. 152 ¶ 6].

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The issue is therefore whether Defendant’s affidavit contradicts his earlier deposition
testimony or, for example, merely clarifies ambiguities created by the deposition. Here, the
Court finds that his affidavit is contradictory.
Although Defendant’s deposition testimony was in response to questions about the attack
on the radio station, he nonetheless offered his opinion that in Haiti, “everything that happens
has to stay with politics” and “any time that politics is involved in something, it’s very difficult
for the people to find justice . . . .” [ECF No. 146-3 at 112:20–24]. Stated differently, he opined
that it is very difficult for people to find justice in Haiti and blamed the events that occurred in
Les Irois on the “weakness of the [Haitian] state . . . .” [Id. at 113:10–17]. That deposition
testimony cannot be squared with his subsequent affidavit, which asserts that Haiti has a
functioning and fair judicial system that provides Plaintiffs with a meaningful way to recover for
their claims. [ECF No. 152 ¶ 6]. Moreover, having reviewed Defendant’s deposition transcript,
the Court concludes that Defendant’s answers were unambiguous and not the result of an unclear
question or confusion on his part. Defendant also does not offer any non-conclusory explanation
for this apparent contradiction, and merely states that his beliefs are “[b]ased on [his] personal
experience and public life in Haiti,” which has involved “active[] participat[ion] in the civic and
public life of Haiti.” [Id.]. In the Court’s view, these cursory and conclusory justifications do
not explain the contradiction between his prior deposition testimony and his later filed affidavit,
nor do they provide a sufficient factual basis for the statements included therein. Because the
affidavit is contradictory and Defendant has not offered a satisfactory explanation for the
contradiction, the Court will disregard this portion of his affidavit in considering the pending
motions for summary judgment.

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IV.

MOTIONS FOR SUMMARY JUDGMENT
A.

Legal Standard

Summary judgment is appropriate where the moving party can show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor
of either party.’” Robinson v. Cook, 863 F. Supp. 2d 49, 60 (D. Mass. 2012) (alteration in
original) (quoting Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)) (further citation
omitted). “A fact is material if its resolution might affect the outcome of the case under the
controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation
omitted). Thus, “[a] genuine issue exists as to such a fact if there is evidence from which a
reasonable trier could decide the fact either way.” Id. (citation omitted). By invoking summary
judgment, “the moving party in effect declares that the evidence is insufficient to support the
nonmoving party’s case.” United States v. Plat 20, Lot 17, 960 F.2d 200, 204 (1st Cir. 1992)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
“To succeed in showing that there is no genuine dispute of material fact, the moving
party must . . . ‘affirmatively produce evidence that negates an essential element of the nonmoving party’s claim,’ or, using ‘evidentiary materials already on file . . . demonstrate that the
non-moving party will be unable to carry its burden of persuasion at trial.’” Ocasio-Hernández
v. Fortuño-Burset, 777 F.3d 1, 4–5 (1st Cir. 2015) (quoting Carmona v. Toledo, 215 F.3d 124,
132 (1st Cir. 2000)). Conversely, “[t]o defeat a properly supported motion for summary
judgment, the nonmoving party must establish a trial-worthy issue by presenting enough
competent evidence to enable a finding favorable to the nonmoving party.” ATC Realty, LLC v.
Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002) (internal quotation marks and citation

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omitted). That is, the nonmoving party must set forth specific, material evidence showing that
there is “a genuine disagreement as to some material fact.” Plat 20, Lot 17, 960 F.2d at 204
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)) (further citation omitted).
In reviewing the record, the Court “must take the evidence in the light most flattering to
the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.”
Cochran, 328 F.3d at 6. The First Circuit has noted that this review “is favorable to the
nonmoving party, but it does not give him a free pass to trial.” Hannon v. Beard, 645 F.3d 45, 48
(1st Cir. 2011). “The factual conflicts upon which he relies must be both genuine and
material[,]” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 397 (1st Cir. 2012), and the
Court may discount “conclusory allegations, improbable inferences, and unsupported
speculation[,]” Cochran, 328 F.3d at 6 (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990)).
B.

Exhaustion Requirement Under the TVPA

Defendant and Plaintiffs have each moved for summary judgment on Defendant’s
affirmative defense that Plaintiffs’ TVPA claims are barred for failure to exhaust adequate and
available remedies in Haiti. [ECF Nos. 139, 144]. Defendant argues that the evidentiary record
reflects that Plaintiffs can obtain redress in Haiti and that such remedies are adequate. [ECF No.
140 at 4–6]. Plaintiffs reject this and assert that, despite Defendant bearing the “substantial”
burden to prove failure to exhaust, he has adduced no such evidence and therefore cannot
succeed on this defense. [ECF No. 145 at 5].
Pursuant to 28 U.S.C. § 1350(2)(b), a “court shall decline to hear a claim under [the
TVPA] if the claimant has not exhausted adequate and available remedies in the place in which
the conduct giving rise to the claim occurred.” “[T]he exhaustion requirement pursuant to the

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TVPA is an affirmative defense, requiring the defendant to bear the burden of proof[,]” a burden
that is “substantial.” Jean v. Dorelien, 431 F.3d 776, 781 (11th Cir. 2005) (citations omitted).
Moreover, the defendant must raise the defense “and must show that domestic remedies exist
that the claimant did not use[]. . . [and] which have not been exhausted . . . .” Hilao v. Estate of
Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996). In most instances, initiation of litigation under
the TVPA “will be virtually prima facie evidence that the claimant has exhausted his or her
remedies in the jurisdiction in which the [offenses] occurred.” Jean, 431 F.3d at 781–82 (quoting
S. Rep. No. 102-249, at 9–10 (1991) (emphasis omitted)). Additionally, other courts have
“effectively waived” the exhaustion requirement “when ‘it is apparent’ that efforts to pursue the
same relief in the home country ‘would be futile.’” Jane W. v. Thomas, 560 F. Supp. 3d 855,
875 (E.D. Pa. 2021) (quoting Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 25 (D.D.C. 2005)
and citing Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 861 (S.D.N.Y. 1983), aff’d, 767
F.2d 908 (2d Cir. 1985)).
The Court begins with Defendant’s motion, which requires revisiting, briefly,
Defendant’s earlier motion to dismiss and this Court’s order denying it. In that motion,
Defendant, relying heavily on an affidavit (the “Joseph Affidavit”) filed by Mario Joseph, an
attorney who represents Plaintiffs in their civil and criminal proceedings against Defendant in
Haiti, [ECF No. 46 at 3, 11–12], argued that Plaintiffs had not properly exhausted adequate and
available remedies in Haiti. In the affidavit, Joseph states that “the rights of my clients . . . to file
a civil complaint against Defendant Viliena for their injuries, have been recognized in Haitian
legal proceedings.” [ECF No. 20-1 ¶¶ 4–13]. The Joseph Affidavit further states that Plaintiffs
were awarded money damages in a suit against five of Defendant’s associates, and that
proceedings against Defendant are ongoing. [Id. ¶¶ 7–9]. As the Court explained in its order on

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the motion to dismiss, it found it appropriate to not consider the Joseph Affidavit because it was
not referenced in the complaint, was filed months after the complaint pursuant to the Court’s
request, and because courts have generally declined to consider extrinsic evidence when a
defendant moves to dismiss a claim under the TVPA based on failure to exhaust domestic
remedies. Boniface I, 338 F. Supp. 3d at 65–66. The Court nonetheless went on to explain that
even if it had considered the Joseph Affidavit, it would not have been sufficient evidence of
failure to exhaust to satisfy Defendant’s “substantial” burden of proof in light of the complaint’s
detailed allegations regarding the “dysfunction of the Haitian justice system, including
descriptions of events in which individuals were targeted with threats, violence, and death for
reporting a crime or participating in court proceedings.” Id. at 66. The Court also noted that
“[c]ourts have routinely found that threats of violent retaliation and allegations that a country’s
judicial system is corrupt or ineffective are sufficient to show that a plaintiff lacks effective
domestic legal remedies.” Id. (citation omitted).
With that brief recap, the Court turns back to Defendant’s present motion, in which he
again relies on the Joseph Affidavit to suggest that Plaintiffs have not exhausted adequate and
available remedies in Haiti. In particular, he points to Joseph’s statement that Plaintiffs were
awarded a monetary judgment against Defendant’s associates and that Plaintiffs continue to
prosecute their claims against Defendant in Haitian courts. [ECF No. 140 at 4–5 (citing ECF No.
20-1 ¶¶ 5, 8–10)]. Defendant also references Juders Ysemé’s deposition testimony, in which
Ysemé testified that in this action he is seeking an award greater than the award entered in his
favor by Haitian courts.6 [ECF No. 140 at 5 (citing ECF No. 142-1 at 10)]. In Defendant’s view,
6

The relevant portion of Ysemé’s deposition is excerpted here:
Q. How much was the amount that you were awarded [by a Haitian court]?
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the fact that a Haitian court awarded Plaintiffs damages exemplifies their ability to obtain redress
in Haiti and supports his argument that Plaintiffs are merely dissatisfied with that relief, and are
seeking to use the TVPA to improve upon the foreign award. [ECF No. 140 at 6]. Lastly,
although Defendant does not raise this point in his memorandum of law in support of his motion
for summary judgment in the context of exhaustion, he asserts in his statement of facts that on
April 30, 2018, he was found not guilty for the allegations set forth in the complaint. 7 [ECF No.

A. 900,000 gourdes.
Q. And are those the same amounts that you’re seeking in this action?
A. No.
Q. And what amounts are you seeking in this action?
A. First of all, I’m seeking for justice, and after this, I’m seeking for reparation
for money, and more money.
Q. More money than the 900,000 gourdes that was awarded you [sic] in the
Haitian court?
A. Yes.
Q. And you said that you were seeking justice. What do you mean by that?
A. I’m seeking for justice because until now, I’m not safe. So from where the
mayor is, he can call his men to act on his behalf. He still communicates with his
people.
[ECF No. 142-1 at 33:8–34:2].
7

The Court notes that other than his own affidavit, the sole evidence to support Defendant’s
acquittal is a certified translation of the judgment that Defendant had prepared and then filed as
an attachment to his affidavit supporting his opposition to Plaintiffs’ motion for partial summary
judgment. [ECF No. 152-1]. Having examined the certified translation, the Court finds that it is,
at least in parts, incoherent and nonsensical. For example, on the second page of the translation,
the purportedly translated text states that the “[n]ext several lines continue in [an] indecipherable
manner . . . .” [Id. at 4]. Also, the translation includes the following exchange between the
prosecution and Defendant:
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143 ¶ 5]. Notably, Defendant’s statement of material facts filed in support of his motion
included only five paragraphs, three of which pertained to exhaustion. [ECF No. 143].
Plaintiffs dispute each aspect of Defendant’s arguments and contend that Defendant has
not met his “substantial” burden to prove failure to exhaust. [ECF No. 153 at 11–12]. In
opposing Defendant’s motion, Plaintiffs highlight evidence that suggests that the Haitian
proceedings have been inconsistent and fraught with personal risk, including that (1) as of the
date this lawsuit was filed, Defendant had never engaged in any Haitian legal proceedings related
to the death of Eclesiaste Boniface, the 2008 attack on the radio station, or the 2009 mass arson,
[ECF No. 153-1 at 6–7 (citing ECF No. 147-1 (Expert Report of Brian Concannon Jr.
(“Concannon Rep.”)) ¶ 111)]; (2) that although they have pursued legal remedies in Haiti, and
have been awarded damages, they have never been able to recover any portion of the damages
awards, [id. at 5 (citing ECF No. 154-8 (“Ysemé Dep.”) at 23:17–24:6, 75:11–80:8, 84:14–

Q- Do you know that there will be a mess in the high school?
A- No Commissioner
Q- Can you tell us what happened?
A- It was while I was in high school that a student entered the high school yard
with a gun
[Id.]. As this translation is offered by Defendant as evidence that he was acquitted of the killing
of Eclesiaste Boniface and the attack on the radio station while he was mayor of Les Irois, it
seems unlikely that the prosecution would ask Defendant about his recollection of a “mess” at
his high school when he was a student and yet fail to ask him about the killing or the radio
station attack. In any event, even if the translation was not so flawed, it would not constitute
undisputed evidence that Defendant was found not guilty or was not responsible for the
allegations set forth in the complaint, because Plaintiffs, as discussed below, have introduced
substantial evidence that Defendant was responsible for those acts as well as expert testimony
that the 2018 acquittal “was the result of either a corrupt decision or willful disregard for judicial
standards[.]” See [ECF No. 153-1 at 9 (quoting Concannon Rep. ¶ 121–22)].
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88:8]); ECF No. 154-1 (“Boniface Dep.”) at 54:12–56:20, 94:6–96:3)]; (3) that despite two
separate courts stating that in absentia proceedings should be instituted against Defendant, none
were held, [ECF No. 153-1 at 5 (citing ECF No. 154-1 (“Boniface Dep.”) at 54:12–56:20, 94:6–
96:9)]; see also [Concannon Rep. ¶ 111–13]; and (4) that they, as well as other witnesses, have
been threatened for attempting to pursue claims against Defendant, [ECF No. 153-1 at 8 (citing
Boniface Dep. at 43:8–23, 71:21–73:4, 96:11–103:12, Ysemé Dep. at 98:18–107:4, ECF No.
154-10 (“LaGuerre Dep.”) at 15:2–27:15, ECF No. 154-14 (“Larrieux Dep.”) at 34:2–41:10)].
Based on the specific factual evidence Plaintiffs cite, the Court easily concludes that they
have raised a genuine dispute as to whether the exhaustion requirement is satisfied, and therefore
DENIES Defendant’s motion for summary judgment as to his affirmative defense.
In Plaintiffs’ motion for partial summary judgment, they marshal much of the evidence
discussed above to argue that no reasonable factfinder could find in Defendant’s favor on the
affirmative defense of exhaustion. Plaintiffs contend that despite Defendant bearing the
“substantial” burden to prove his affirmative defense, he has not adduced evidence sufficient to
show that Plaintiffs failed to exhaust local remedies in Haiti, that the uncontroverted evidence
shows that Plaintiffs attempted to pursue local remedies despite Defendant’s ability to evade
justice, and that even if there were a dispute as to whether Plaintiffs sufficiently exhausted local
remedies, there is undisputed evidence that remedies in Haiti are “ineffective, unobtainable,
unduly prolonged, inadequate, and obviously futile.” [ECF No. 145 at 5–6].
As discussed above, although a court must decline to hear a TVPA claim if the claimant
has not exhausted adequate and available remedies in the country where the alleged offenses
occurred, this exhaustion requirement may be waived where it is apparent that efforts to pursue
relief in the plaintiff’s home country would be futile because of, for example, the ongoing risk of

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retaliation or evidence of the instability of local judiciaries. Jean, 431 F.3d at 783 (ongoing risk
of retaliation excuses exhaustion); Ahmed v. Magan, No. 2:10-cv-00342, 2011 WL 13160129, at
*5 (S.D. Ohio Nov. 7, 2011) (inadequate legal remedy in domestic forum excuses exhaustion);
Mushikiwabo v. Barayagwiza, No. 94-cv-03627, 1996 WL 164496, at *2 (S.D.N.Y. Apr. 9,
1996) (“Plaintiffs have fulfilled the exhaustion requirement of the TVPA by demonstrating that
the Rwandan judicial system is virtually inoperative and will be unable to deal with civil claims
in the near future.” (citation omitted)).
Here, the Court finds that Plaintiffs have satisfied the exhaustion requirement and that
Defendant therefore cannot succeed on his affirmative defense. Through discovery, Plaintiffs
have substantiated allegations raised in the complaint that domestic remedies against Defendant
are foreclosed due to the weakness, politicization, and corruption of the Haitian justice system
and because Plaintiffs and potential witnesses are subject to an ongoing risk of retaliation for
attempting to pursue remedies in Haiti. This was largely accomplished through the submission
of the expert report of Brian Concannon Jr. (the “Concannon Report”), which finds, in pertinent
part, that Plaintiffs have no meaningful access to remedies in Haiti and face retributive violence
for seeking justice domestically.8 [ECF No. 147-1 ¶¶ 24–31, 34–50, 67–97]. Plaintiffs have also
8

In Defendant’s opposition, he argues that the Concannon Report is not appropriately before the
Court on summary judgment. [ECF No. 150 at 5–6]. The Court disagrees. Plaintiffs assert, and
Defendant does not dispute, that Mr. Concannon was timely disclosed as an expert pursuant to
Fed. R. Civ. P. 26(a)(2). [ECF No. 145 at 9–10]. Despite this disclosure, Defendant did not
depose Mr. Concannon and has not moved, pursuant to Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993) or Rule 702 of the Federal Rules of Evidence, to strike or exclude any
portion of Mr. Concannon’s report. The only argument Defendant makes in his opposition is
that “[p]resenting selective information and ad hominem anecdotes in the manner set forth in Mr.
Concannon’s report falls far short of both the standard for admissibility and any aim of
accurately describing the quality of justice rendered in any particular case.” [ECF No. 150 at 5].
That argument, however, which only refers generally to the Concannon Report, does not assert
that Mr. Concannon lacks expert or specialized knowledge that would help the factfinder, that
any particular content in the report lacks sufficient facts or data, that specific testimony is the
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submitted deposition testimony and declarations from numerous witnesses, including but not
limited to the named plaintiffs, attesting to ongoing threats and retaliation they have suffered and
continue to suffer resulting from their attempts to pursue justice against Defendant. [ECF No.
153-1 at 8]. In contrast, Defendant has offered no evidence that genuinely disputes Plaintiffs’
evidence regarding the weakness of Haiti’s judicial system or Plaintiffs’ risk of retribution for
pursuing claims against him. Defendant’s best evidence is that Plaintiffs’ right to file a civil
complaint against him has been recognized and that Plaintiffs were awarded damages. That
Plaintiffs may legally file a claim against Defendant, however, does not establish that the judicial
system is actually functioning in a meaningful way. Similarly, that Plaintiffs were awarded
damages does not demonstrate the adequacy of remedies in Haiti as Plaintiffs have offered
substantial evidence that they have not been able to recover any such damages and that, as of the
date this lawsuit was filed, Defendant had not engaged in any legal proceedings in Haiti. 9
product of unreliable principles and methods, or that Mr. Cannon did not reliably apply those
principles and methods to the facts of this case. In other words, Defendant has failed to properly
object to the Court’s reliance on the Concannon Report and therefore the Court may consider it
when ruling on Plaintiffs’ motion for summary judgment.
9

The Court does not credit Defendant’s assertion in his responsive statement of material facts
and supporting affidavit that he “has fully and freely participated in all judicial proceedings
brought against him in Haiti[,]” [ECF No. 151 ¶ 1]; see also [ECF No. 152 ¶ 2], because this
conclusory assertion is contrary to undisputed record evidence. In Plaintiffs’ statement of
undisputed material facts, they assert that Defendant did not attend the bench trial in Jérémie on
October 25, 2010, [ECF No. 148 ¶ 10], or appear before the Les Cayes court on July 21, 2015
when it convicted other individuals for their roles in the killing of Eclesiaste Boniface and the
attack on the radio station, declared that Defendant was a fugitive and ordered in absentia
proceedings be initiated against him, [id. ¶¶ 14–15]. In Defendant’s response, he did not dispute
the paragraphs in which those statements were made. See [ECF No. 151 (disputing only
paragraphs 16 and 20 of Plaintiffs’ statement of facts)]. Defendant further does not dispute the
asserted material fact that he left Haiti for the United States on November 27, 2009 and did not
return until August 20, 2012, meaning that he could not have attended the Jérémie bench trial in
October 2010. Compare [ECF No. 148 ¶ 7; ECF No. 146-4 at 3] with [ECF No. 151 at 1–2].
Similarly, he does not dispute Plaintiffs’ evidence that he could not have attended the July 2015
hearing because his passport reflects that he left Haiti on March 25, 2015 and did not return until
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Moreover, Defendant has offered no evidence to dispute that Plaintiffs and other witnesses face
retribution for attempting to pursue claims against him. 10 The Court thus concludes that no
reasonable factfinder, upon examining the record before the Court, could conclude that
Defendant had carried his substantial burden to prove failure to exhaust. Plaintiffs’ partial
motion for summary judgment on Defendant’s affirmative defense of exhaustion, [ECF No.
144], is therefore GRANTED.
C.

Defendant’s Motion for Summary Judgment as to the Arson Claim

Defendant has separately moved for summary judgment on Plaintiffs’ claim for arson,
arguing that the Court should grant summary judgment based on Defendant’s affidavit, which
states that he was not in Les Irois on the date of the mass arson and that he “took no action to
direct or encourage others to commit arson.” [ECF No. 140 at 4]. He further contends that
Plaintiffs have failed to adduce any admissible evidence to refute the statements in his affidavit.
[Id.]. The Court disagrees. Relevant here, Plaintiffs have introduced the testimony of Plaintiff
Juders Ysemé and a third-party witness who “both saw and overheard Defendant’s associates
speaking with Defendant via cell phone” and heard Defendant “provide[] direction to his
associates . . . regarding which homes to burn down and requested updates on which homes had
been torched.” [ECF No. 153 at 10 (citing ECF No. 154-8 (“Ysemé Dep.”) at 25:11–30:23,

July 2, 2016. Compare [ECF No. 148 ¶ 14; ECF No. 146-4 at 8] with [ECF No. 151 at 1–2].
Plaintiffs’ specific factual evidence that Defendant did not attend the proceeding before the
Jérémie or Les Cayes courts is therefore uncontroverted but for Defendant’s affidavit, which was
filed in opposition to Plaintiffs’ motion for summary judgment. On this record, the Court finds
that no factfinder could reasonably conclude that Defendant attended or otherwise participated in
these hearings and that his affidavit is therefore insufficient to defeat summary judgment.
10

The Court further rejects Defendant’s argument that the Court transfer the burden of proof on
the affirmative defense of exhaustion from Defendant to the Plaintiffs because that proposal is
clearly contrary to well-established law. See Boniface I, 338 F. Supp. 3d at 64–65 (quoting
Dorelien, 431 F.3d at 781).
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74:2–75:1 and ECF No. 154-9 (Mers Ysemé Dep.) at 66:11–67:13)]. The Court finds this
evidence sufficient to create a genuine dispute of fact as to the arson claim, which prohibits the
grant of summary judgment in Defendant’s favor. 11 Defendant’s motion for summary judgment
as to the arson claim is therefore DENIED. Accordingly, Defendant’s motion to sever, which
was premised on the Court granting summary judgment in favor of Defendant on the arson
claim, is also DENIED as moot.
D.

Defendant’s Comity Defense and the Court’s Subject Matter Jurisdiction

In his motion for summary judgment, Defendant raises arguments that have been
previously considered and rejected by this Court. Specifically, Defendant contends that this
Court should abstain from exercising jurisdiction based on the principle of comity and,
alternatively, that it lacks subject matter jurisdiction. [ECF No. 140].
As Plaintiffs note, this is the third time that Defendant has asked the Court to dismiss
their claims on comity grounds. See [ECF No. 153 at 7, 11]. Ruling on Defendant’s motion to
dismiss, in which Defendant’s comity argument was limited to a single sentence, the Court
determined that “[t]he mere existence of parallel foreign proceedings does not negate the district
courts’ virtual unflagging obligation . . . to exercise the jurisdiction given them . . . .” Boniface I,
338 F. Supp. 3d at 70 (internal quotation marks and citations omitted). Defendant then revised
his comity argument to recast it in terms of prescriptive comity, arguing that the exercise of
jurisdiction would be “inconsistent with . . . the statutory intent and limits of the TVPA.” [ECF
No. 67 at 10]. The Court again rejected his argument and noted that he had not cited “any case
11

Without explicitly raising the argument, Defendant appears to suggest that the evidence
tending to show his involvement in the mass arson is not admissible and therefore cannot be
relied on by the Court in ruling on his motion for summary judgment. To the extent Defendant
made this argument, it is rejected because, to begin, Defendant did not raise any specific
arguments as to why the evidence should be excluded and, in addition, the Court finds that
evidence relied on by Plaintiffs is likely subject to various exceptions to the rule against hearsay.
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in which a court has accepted this argument or dismissed a TVPA claim on comity grounds” and
reaffirmed its conclusion “that Congress intended the TVPA to have an extraterritorial
application . . . .” Boniface v. Viliena (“Boniface II”), 417 F. Supp. 3d 113, 121–22 (D. Mass.
2019).
Defendant has once again repackaged his comity argument, and now contends that the
Court should abstain from exercising jurisdiction as a matter of adjudicatory comity, sometimes
referred to as “comity among courts,” which Defendant notes is an entirely discretionary act.
[ECF No. 140 at 7]. The Court again rejects Defendant’s request. First, the Court declines to
abstain as a matter of discretion because it has been more than five years since this lawsuit was
filed, the parties have engaged in extensive discovery, the trial date is soon approaching, and
electing to decline jurisdiction at this point would be deeply prejudicial and an enormous waste
of judicial resources. Second, even applying the out-of-circuit legal framework that Defendant
proposes, see Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014), the Court finds its exercise
of jurisdiction appropriate. In Mujica, the Ninth Circuit stated, in discussing adjudicatory
comity, that “deference to the foreign court is appropriate so long as the foreign proceedings are
procedurally fair and . . . do not contravene the laws or public policy of the United States.” Id. at
599 (quoting JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C. V., 412 F.3d 418,
424 (2d Cir. 2005)) (alteration in original). Defendant’s argument for comity thus fails at the
first hurdle as Defendant has not adduced any evidence to suggest that the foreign proceedings
would be procedurally fair and the overwhelming weight of evidence introduced by Plaintiffs
compels the opposite conclusion. Even the certified translation that Defendant points to as
evidence of his acquittal in Haiti casts doubt on the procedural fairness of Haitian courts as it
appears that no witnesses were summoned or testified and no questions were asked about the

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charged offenses. Defendant’s request that the Court abstain based on comity is therefore
DENIED.
Defendant’s motion is also DENIED to the extent it requests the Court to dismiss the case
for lack of subject matter jurisdiction. As Defendant even acknowledges, “the Court has
previously given the issue of subject matter jurisdiction a thorough analysis,” [ECF No. 140 at
8], and has concluded that it has subject matter jurisdiction. The Court’s prior holding is the law
of the case, and the Defendant offers no reason why the Court should revisit its ruling.
V.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment and to sever, [ECF

No. 139], is DENIED, Plaintiffs’ motion for partial summary judgment, [ECF No. 144], is
GRANTED, and Plaintiffs’ motion to strike, [ECF No. 156], is also GRANTED.
SO ORDERED.
February 7, 2023
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

24