Sexual Minorities Uganda v. Lively
Filing
59
Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memo and order. Defendants motions to dismiss (Dkt. Nos. 21 and 30 ) are hereby DENIED. The case is hereby referred to Magistrate Judge Kenneth P. Neiman for a pretrial scheduling conference pursuant to Fed. R. Civ. P. 16. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
SEXUAL MINORITIES UGANDA,
Plaintiff
v.
SCOTT LIVELY,
Defendant
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C.A. No. 12-cv-30051-MAP
MEMORANDUM AND ORDER REGARDING
DEFENDANT’S MOTIONS TO DISMISS
(Dkt. Nos. 21 & 30)
August 14, 2013
PONSOR, U.S.D.J.
I. INTRODUCTION
Plaintiff Sexual Minorities Uganda is an umbrella
organization located in Kampala, Uganda, comprising member
organizations that advocate for the fair and equal treatment
of lesbian, gay, bisexual, transgender, and intersex (LGBTI)
people in that east African country.
Defendant Scott Lively
is an American citizen residing in Springfield,
Massachusetts who, according to the complaint, holds himself
out to be an expert on what he terms the “gay movement.”
(Dkt. No. 27, Am. Compl. ¶ 1.)
Lively is also alleged to be
an attorney, author, and evangelical minister.
Plaintiff alleges that in concert with others Defendant
-- through actions taken both within the United States and
in Uganda -- has attempted to foment, and to a substantial
degree has succeeding in fomenting, an atmosphere of harsh
and frightening repression against LGBTI people in Uganda.
The complaint asserts five counts, three invoking the
jurisdiction of the federal Alien Tort Statute, 28 U.S.C. §
1350 (“ATS”), and two under state law.
Plaintiff seeks
compensatory, punitive, and exemplary damages; declaratory
relief holding that Defendant’s conduct has been in
violation of the law of nations; and injunctive relief
enjoining Defendant from undertaking further actions, and
from plotting and conspiring with others, to persecute
Plaintiff and the LGBTI community in Uganda.
Defendant has filed two motions to dismiss, offering in
essence five arguments.1
First, the court lacks
Defendant filed his first motion to dismiss (Dkt. No.
21) based on Plaintiff’s original complaint (Dkt. No. 1).
Subsequently, Plaintiff filed a First Amended Complaint.
(Dkt. No. 27.) Defendant has now moved to dismiss the Amended
Complaint. (Dkt. No. 30.) Because the Amended Complaint is
now the operative pleading, the court will focus on the
arguments raised in Defendant’s second motion to dismiss.
1
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jurisdiction because international norms do not bar
persecution based on sexual orientation or gender identity
with sufficient clarity and historical lineage to make it
one of the narrow set of claims for which the ATS furnishes
jurisdiction.
Second, the court cannot recognize a claim
under the ATS for actions taken outside the United States,
as the Supreme Court has recently held in Kiobel v. Royal
Dutch Petroleum, 133 S. Ct. 1659 (2013).
Third, Plaintiff
lacks standing to bring this case either on behalf of itself
as an organization or on behalf of members of the LGBTI
community in Uganda.
Fourth, the right of free speech
described in the First Amendment to the United States
Constitution prohibits any attempt by Plaintiff to restrict
expression, however distasteful, through court action.
Finally, the two claims asserted under Massachusetts state
law lack any adequate legal foundation.
For the reasons set forth at length below, none of
these arguments is persuasive.
As to the first argument,
many authorities implicitly support the principle that
widespread, systematic persecution of individuals based on
their sexual orientation and gender identity constitutes a
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crime against humanity that violates international norms.
It is a somewhat closer question whether this crime
constitutes what Justice Souter has termed one of the
“relatively modest set of actions alleging violations of the
law of nations” for which the ATS furnishes jurisdiction.
Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004).
However,
aiding and abetting a crime against humanity is a wellestablished offense under customary international law, and
actions for redress of this crime have frequently been
recognized by American courts as part of the subclass of
lawsuits for which the ATS furnishes jurisdiction.
Given
this, the allegations set forth in the Amended Complaint are
more than adequate at this stage to require denial of
Defendant’s motion to dismiss.
Moreover, given the
elasticity of the legal standard for ATS jurisdiction, it is
fairer and more prudent to address the Sosa issue on a fully
developed record, following discovery.
Second, the restrictions established in Kiobel on
extraterritorial application of the ATS do not apply to the
facts as alleged in this case, where Defendant is a citizen
of the United States and where his offensive conduct is
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alleged to have occurred, in substantial part, within this
country.
Indeed, Defendant, according to the Amended
Complaint, is alleged to have maintained what amounts to a
kind of “Homophobia Central” in Springfield, Massachusetts.
He has allegedly supported and actively participated in
worldwide initiatives, with a substantial focus on Uganda,
aimed at repressing free expression by LGBTI groups,
destroying the organizations that support them, intimidating
LGBTI individuals, and even criminalizing the very status of
being lesbian or gay.2
Kiobel makes clear that its
restrictions on extraterritorial application of American law
do not apply where a defendant and his or her conduct are
based in this country.
Third, clear authority supports Plaintiff’s standing
here.
Fourth, the argument that Defendant’s actions have
constituted mere expression protected under the First
Amendment is, again, premature.
Accepting the allegations
of the complaint, as the court must at this stage,
2
It is important to emphasize that the court at this
stage is drawing its summary of facts from the allegations of
the Amended Complaint, some of which describe despicable
opinions and conduct by Defendant. Defendant denies a number
of these claims; Plaintiff will bear the burden of proving
them at trial.
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sufficient facts are alleged, with specific names, dates,
and actions, to support the claim that Defendant’s behavior
crossed well over any protective boundary established by the
First Amendment.
Fifth, and finally, the arguments
attacking the claims under Massachusetts state law have not
been convincingly developed.
Having denied the motions to
dismiss the federal claims, the court will retain the state
law claims pending discovery and, if appropriate, reconsider
them on a fuller record in connection with a motion for
summary judgment.
II. FACTS3
The essence of the claims before the court, expatiated
in the Amended Complaint’s detailed recitation of
allegations, is that Defendant Scott Lively along with
others in Uganda devised and carried out a program of
persecution aimed at Plaintiff’s organization and its
3
The factual background is drawn from the allegations
contained in Plaintiff’s Amended Complaint (Dkt. No. 27).
Because this is a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), the court “accept[s] as true all well-pleaded
facts, analyz[es] those facts in the light most hospitable to
the plaintiff's theory, and draw[s] all reasonable inferences
for the plaintiff.” See United States ex rel. Hutcheson v.
Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011),
cert. denied 132 S. Ct. 815 (2011).
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members based on their sexual orientation and gender
identity.
The Amended Complaint describes a campaign of
harassment and intimidation, and a resulting atmosphere of
fear, that Defendant is alleged, in active concert with
others, to have directed at the LGBTI community in Uganda.
According to Plaintiff, Defendant helped coordinate,
implement, and justify “strategies to dehumanize, demonize,
silence, and further criminalize the LGBTI community” in
Uganda.
(Dkt. No. 27, Am. Compl. ¶ 7.)
The Amended Complaint identifies a group of Ugandans
with whom Defendant is alleged to have worked closely to
carry out his “decade-long persecutory campaign.” (Dkt. No.
27, Am. Compl. ¶ 25.) These individuals allegedly include:
•
Stephen Langa, the Executive Director of the Family
Life Network and the Director of the Ugandan branch of
the Arizona-based Disciple Nations Alliance;
•
Martin Ssempa, Ugandan pastor, involved in implementing
Uganda’s HIV/AIDS policy from as early as 2003;
•
James Buturo, Ugandan Minister of Information and
Broadcasting for the President (2001-2006) and Minister
of Ethics and Integrity in the Office of the Vice-7-
President (2006-2011);
•
David Bahati, member of Parliament and sponsor of
legislation entitled the Anti-Homosexuality Bill; and
•
Simon Lokodo, current Minister of Ethics and Integrity.
According to the Amended Complaint, Defendant came to
Uganda in 2002 when he participated in the country’s first
anti-LGBTI conference.
In March 2002, Defendant spoke at a
gathering organized by Langa about the supposed links
between pornography and homosexuality.
Several months later
in June 2002, Defendant returned to Uganda to participate in
additional speaking events and media appearances organized
by Langa.
These appearances were designed, again, to
headline the purported link between pornography and
homosexuality.
During this trip, Defendant and Langa also held an allday invitation-only pastors’ conference.
Defendant later
wrote that the pastors in attendance “were very grateful for
the insights I was able to give them about the way in which
America was brought low by homosexual activism.”
27, Am. Compl. ¶ 50.)
(Dkt. No.
Defendant also addressed students at
several universities and high schools where he blamed the
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so-called “gay movement” for the dangerous effects of a
“porn culture.”
(Dkt. No. 27, Am. Compl. ¶ 51.)
Defendant
also met with the Kampala City Council.
Defendant has stated, according to the Amended
Complaint, that these appearances and meetings in 2002 made
him instrumental in the efforts by Langa and Ssempa, not
only to create a rhetorical platform for Uganda’s anti-LGBTI
campaign of persecution, but to craft specific initiatives
designed to repress and intimidate LGBTI people and
organizations advocating on their behalf.
(Dkt. No. 27, Am.
Compl. ¶ 56.)
Plaintiff alleges that between 2002 and 2009 Defendant
continued to work from the United States with Langa and
Ssempa to assist, encourage, and consult with them to design
and then carry out specific actions to deny fundamental
rights to the LGBTI community in Uganda.
During this time,
Ssempa was involved in formulating the Ugandan HIV/AIDS
policy.
In this role, he took action to exclude LGBTI
persons from the program’s assistance.
Ssempa also publicly
posted the names of LGBTI rights advocates -- labeled as
“homosexual promoters” -- as well as pictures of them with
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their contact information, as part of a campaign of
intimidation.
For his part, Defendant began developing and
disseminating strategies to be used to discriminate against
and persecute LGBTI communities in Uganda and elsewhere.
In
pursuit of this, he published two books, Defend the Family:
Activist Handbook and Redeeming the Rainbow.
The books
presented a comprehensive plan of action designed to repress
the so-called “gay movement,” which he described as “the
most dangerous social and political movement of our time.”
(Dkt. No. 27, Am. Compl. ¶¶ 57-60.)
The two primary tactics
advocated by Defendant were criminalizing advocacy -- that
is, subjecting any public expressions of support for the
LGBTI community to criminal prosecution -- and attributing
to LGBTI individuals a compulsion to sexually abuse
children.
In July 2005, the police unlawfully raided the home of
Victor Mukasa, a transgender LGBTI advocate and founder of
Plaintiff Sexual Minorities Uganda, seized a number of
documents as well as hard-copy and electronic files, and
arrested Mukasa’s guest, Yvonne Oyo.
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Oyo was taken to the
police station where she was forced to remove her clothing
in front of male officials to “prove her sex.”
27, Am. Compl. ¶ 30.)
(Dkt. No.
Police then sexually assaulted Oyo by
touching and fondling her breasts.
Over three years following the raid, in December 2008,
the High Court of Uganda issued a well-publicized ruling
arising out of the raid of Mukasa’s home and the arrest and
abuse of Oyo.
The High Court held that gays and lesbians,
like anyone else, could challenge the unlawful conduct of
authorities.
The High Court also awarded damages to Oyo for
the violation of her right to protection from torture and
cruel, inhuman, and degrading treatment under Article 24 of
the Ugandan Constitution.
The High Court also awarded
damages to Mukasa for the violation of his right to privacy
of person, home, and property guaranteed by Article 27 of
the Ugandan Constitution.
Plaintiff alleges that this High Court decision had the
effect of spurring Defendant, in coordination with his coconspirators in Uganda, to intensify the campaign of
persecution against members of the LGBTI community.
Less
than three months after the High Court decision, in March
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2009, Langa hosted an anti-gay conference entitled, “Seminar
on Exposing the Homosexual Agenda.”
The conference was
attended by a number of Ugandan religious and government
leaders, parliamentarians, police officers, and teachers.
Defendant traveled to Uganda to speak as one of the
headliners at this conference.
During this visit, Defendant
met with parliamentarians and government officials including
Buturo, made media appearances, and spoke at seminars at
schools and churches.
According to the Amended Complaint, Defendant continued
his attacks on gay and lesbian people, some of them
bordering on ludicrous.
Defendant charged, for example,
that homosexuals were behind the rise of Nazism and the
genocide in Rwanda. (Dkt. No. 27, Am. Compl. ¶¶ 8, 24, 54,
82, 93.)4
Other accusations were aimed at playing on
parents’ fears, such as the bogus claims that gay and
In his book The Pink Swastika: Homosexuality in the Nazi
Party, Defendant argued that the rise of Nazism, with its
resultant horrors, was engineered and driven by a violent and
fascistic gay movement in Germany. In other works, he has
blamed homosexuals for other historical atrocities including
the Spanish Inquisition, the French Reign of Terror, South
African apartheid, American slavery, and the Rwandan genocide.
(Dkt. No. 27, Am. Compl. ¶ 24.)
4
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lesbian people had a compulsion to sexually abuse children
and that they were engaged in a campaign to “recruit”
Ugandan children as homosexuals.
(Dkt. No. 27, Am. Compl.
¶¶ 36-39, 65, 72-74, 81, 82, 93.)
Defendant also allegedly formulated and promoted
specific strategies to further deprive the LGBTI community
of its basic human rights, including freedom of expression
and protection of life, liberty, and property.
Defendant,
according to Plaintiff, has acknowledged that his 2009
efforts in Uganda were based on his book Redeeming the
Rainbow, which advocates criminalizing advocacy on behalf of
LGBTI people and attributing acts of sexual violence against
children to LGBTI individuals’ purported obsession with
pedophilia.
Nor were Defendant’s efforts without effect.
Defendant boasted that an associate was told “that our
campaign was like a nuclear bomb against the ‘gay’ agenda in
Uganda.” (Dkt. No. 27, Am. Compl. ¶ 88.)
According to the Amended Complaint, partly as a result
of Defendant’s efforts to incite fear and hatred against
LGBTI people, on April 29, 2009, an Anti-Homosexuality Bill
was introduced in the Ugandan Parliament.
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The bill proposed
the death penalty for crimes of “aggravated homosexuality,”
including execution for “repeat offenders” of
“homosexuality.”
(Dkt. No. 27, Am. Compl. ¶ 37.)
The bill
also proposed to criminalize any advocacy on behalf of the
LGBTI community as the “promotion of homosexuality.”
This
type of repression of any public support for equal treatment
of gays and lesbians was precisely what Defendant advocated
in his speeches and writings and the strategy he was helping
his co-conspirators in Uganda to promulgate.
The bill was revised and expanded in October 2009 by
co-conspirator and member of Parliament, David Bahati.
The
revised bill left the death penalty provisions and expanded
the criminalization of association with or advocacy for
LGBTI individuals.
The adoption of this legislation would
have turned Uganda into a virtual anti-gay police state,
making it a crime punishable by imprisonment, for example,
for a Ugandan to fail to report to the police any person
whom he or she suspects is a “homosexual” or involved in
advocacy related to homosexuality.
(Dkt. No. 27, Am. Compl.
¶ 9.)
The Amended Complaint alleges that Defendant has
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acknowledged that he reviewed and commented on a draft of
the Anti-Homosexuality Bill before it was introduced,
communicating with the leadership in the Ugandan Parliament
through Ssempa.
Defendant returned to Uganda in 2009 to
help efforts to strengthen the law and embolden leaders “so
that when the law came out they’d have an easier time”
implementing it.
(Dkt. No. 27, Am. Compl. ¶ 85.)
The Amended Complaint notes that, while the AntiHomosexuality Bill did not pass, the level of LGBTI
persecution from governmental and media sources increased.
With Defendant’s active assistance Langa, Ssempa, Buturo,
and Bahati continued to sensationalize in lurid terms the
threat LGBTI individuals purportedly posed to children.
Media outings of LGBTI individuals became more frequent and
were accompanied with continued incendiary claims that LGBTI
people posed a danger to children.
In one case, a tabloid
accompanied the photos of gay and lesbian people with the
headline “Hang Them.”
The Ugandan High Court issued a permanent injunction in
January 2011 to prevent newspapers from identifying LGBTI
individuals and requiring the tabloid to pay damages to
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persons whose photos were depicted.
Nevertheless, in the
wake of public disclosures and police harassment, a number
of activists, including Plaintiff’s current Executive
Director, were forced to leave Uganda or go into hiding.
Despite the High Court rulings, Ugandan police and
government officials have more recently continued efforts to
repress any advocacy on behalf of LGBTI people, as
Defendant’s writings urge.
In 2012, at least two gatherings
of LGBTI advocates were raided and disbanded.
Both raids
were ordered by Simon Lokodo, the current Minister of Ethics
and Integrity.
Lokodo has threatened advocates with arrest
for “promotion of homosexuality.”
After the February 2012
raid, Lokodo referred to the advocates as “terrorists.”
Lokodo has stated that the raids and arrests were ordered so
that “everybody else will know that at least in Uganda we
have no room here for homosexuals and lesbians.”
27, Am. Compl. ¶ 41, 165-85.)
(Dkt. No.
Subsequently, Plaintiff has
not been permitted to register as a non-governmental
organization.
The five-count Amended Complaint asserts jurisdiction
under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), as
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well as federal question jurisdiction (§ 1331), diversity
jurisdiction (§ 1332), and supplemental jurisdiction (§
1367).
The five counts allege: (I) crimes against humanity
of persecution, based on individual responsibility under the
ATS; (II) crimes against humanity of persecution, based on a
joint criminal enterprise under the ATS; (III) crimes
against humanity of persecution, based on conspiracy under
the ATS; (IV) civil conspiracy under Massachusetts state
law; and (V) negligence under Massachusetts state law.
Plaintiff seeks compensatory, punitive, and exemplary
damages; declaratory relief holding that Defendant’s conduct
was in violation of the law of nations; and injunctive
relief enjoining Defendant from undertaking further actions,
and from plotting and conspiring with others, to persecute
Plaintiff and the LGBTI community in Uganda.
III. DISCUSSION
As noted, Plaintiff has invoked jurisdiction for this
lawsuit, in part, under the Alien Tort Statute.
This
statute, passed as part of the Judiciary Act of 1789, is
terse, stating simply: “The district courts shall have
original jurisdiction of any civil action by an alien for a
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tort only, committed in violation of the law of nations or a
treaty of the United States.”
28 U.S.C. § 1350.
Defendant
has raised two independent challenges to the court’s ability
to recognize a cause of action under the ATS in his motion
to dismiss.
First, Defendant points out that the ATS furnishes
jurisdiction only where the international law norm is
sufficiently definite and historically rooted to support the
asserted cause of action.
692, 732 (2004).
Sosa v. Alvarez-Machain, 542 U.S.
In other words, even where a colorable
claim for a violation of current international norms is
adequately set forth, a further question must be confronted:
is this cause of action among “the modest number of
international law violations with a potential for personal
liability” for which jurisdiction adheres under the ATS?
Sosa, 542 U.S. at 724.
Defendant argues, in essence, that
the Amended Complaint sets out no adequate claim for a
violation of any international norm, and, even if it does,
the alleged violation does not fall within the small group
of claims for which the ATS furnishes jurisdiction.
Second, Defendant cites Kiobel v. Royal Dutch
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Petroleum, 133 S. Ct. 1659 (2013), as support for the
argument that Plaintiff has no claim under the ATS in any
event, given the presumption against extraterritoriality
described by Chief Justice Roberts in his majority opinion.
In addition to the two arguments specifically directed
at the court’s ability to recognize a claim under the ATS,
Defendant contends that Plaintiff lacks standing to bring
this suit.
He further takes the position that all of the
allegations set forth in the Amended Complaint target speech
protected by the First Amendment and therefore cannot form
the basis of any lawsuit against him.
Finally, Defendant
challenges the application of Massachusetts state law, based
on the statute of limitations and the sufficiency of the
pleadings.
The discussion below will begin by addressing
the ATS-related arguments, then move to Defendant’s other
contentions.
A.
“Persecution” Under the Alien Tort Statute.
Plaintiff alleges that Defendant aided and abetted in
the persecution of the LGBTI community in Uganda and that
this persecution amounted to a crime against humanity.
Supreme Court has held that a federal court can only
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The
recognize a claim under the ATS if the claim seeks to
enforce an underlying norm of international law that is as
clearly defined and accepted as the international law norms
familiar to Congress in 1789 when the ATS was enacted.
Sosa, 542 U.S. at 732.
The analysis, therefore, must
proceed in two steps: first, was there a violation of an
international norm -- in this case, as Plaintiff alleges, a
recognized crime against humanity committed by Defendant?
Second, if so, is the crime against humanity within the
limited group of claims for which the ATS furnishes
jurisdiction?
The answer to the first question is straightforward and
clear.
Widespread, systematic persecution of LGBTI people
constitutes a crime against humanity that unquestionably
violates international norms.
A review of applicable
authorities makes the answer to the second question easily
discernible as well.
Aiding and abetting in the commission
of a crime against humanity is one of the limited group of
international law violations for which the ATS furnishes
jurisdiction.
A variety of sources can be used to determine the
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content of international law: treaties, judicial decisions
of the “courts of justice of appropriate jurisdictions,” and
controlling legislative or executive decisions.
The Paquete
Habana, 175 U.S. 677, 700 (1900); see also Sosa, 542 U.S. at
734.
In the absence of these controlling authorities, the
Supreme Court has counseled that the existence and content
of international law may be derived by reference to:
the customs and usages of civilized nations; and,
as evidence of these, to the works of jurists and
commentators, who by years of labor, research and
experience, have made themselves peculiarly well
acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals,
not for the speculations of their authors
concerning what the law ought to be, but for
trustworthy evidence of what the law really is.
Sosa, 542 U.S. at 734 (citing The Paquete Habana, 175 U.S.
at 700).
In analyzing the existence of the international legal
norm proffered by Plaintiff in this case, it is helpful to
begin by differentiating among three terms: discrimination,
persecution, and crimes against humanity.
These three
concepts measure the increasing severity of the
discriminatory activity against a targeted group.
The Human Rights Committee of the United Nations has
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defined discrimination as:
[A]ny distinction, exclusion, restriction, or
preference based on certain motives . . . that
seeks to annul or diminish the acknowledgment,
enjoyment, or exercise, in conditions of equality,
of the human rights and fundamental freedoms to
which every person is entitled.
UN Human Rights Comm., CCPR Gen. Comment 18, NonDiscrimination (1989), available at
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/3888b0541f8501
c9c12563ed004b8d0e?Opendocument.
Persecution is a harsher subset of discrimination,
comprising “intentional and severe deprivation of
fundamental rights contrary to international law by reason
of the identity of the group or collectivity.”
Rome Statute
on the International Criminal Court art. 7(2)(g), July 1,
2002, 2187 U.N.T.S. 38544.
Persecution can be a crime
against humanity, but it may not always rise to that level.
For persecution to amount to a crime against humanity,
it must be “part of a widespread or systematic attack
directed against any civilian population.”
Rome Statute
art. 7(1)(h).
It is doubtful whether the ATS would furnish
jurisdiction for a claim of persecution alone; this claim
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under the common law would appear to lack the “definite
content and acceptance among civilized nations” within the
“historical paradigms familiar when § 1350 was enacted.”
See Sosa, 542 U.S. at 732 (citation omitted).
On the other
hand, persecution that rises to the level of a crime against
humanity has repeatedly been held to be actionable under the
ATS.
See Presbyterian Church of Sudan v. Talisman Energy,
Inc., 582 F.3d 244, 256 (2d Cir. 2009); Cabello v.
Fernandez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005)
(noting that crimes against humanity have been recognized as
actionable under United States and international law since
long before the 1970's); Flores v. Southern Peru Copper
Corp., 414 F.3d 233, 244 n.18 (2d Cir. 2003) (noting that
“customary international law rules proscribing crimes
against humanity . . . have been enforceable against
individuals since World War II”); Kadić v. Karadžić, 70 F.3d
232, 236 (2d Cir. 1995); In re Chiquita Brands Int’l, Inc.,
792 F. Supp. 2d 1301, 1344 (S.D. Fla. 2011); Doe v. Saravia,
348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004) (holding that
persecution that constitutes a crime against humanity is
actionable under the ATS); Mehinovic v. Vuckovic, 198 F.
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Supp. 2d 1322, 1352 (N.D. Ga. 2002) (“Crimes against
humanity have been recognized as a violation of customary
international law since the Nuremberg trials and therefore
are actionable under the ATCA.”), abrogated in part Aldana
v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247
(11th Cir. 2005).
For persecution to reach the level of a crime against
humanity, it typically must involve more than the
“intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of
the group or collectivity.”
Rome Statute art. 7(2)(g).
It
must be demonstrated, in addition, that the persecution has
been “part of a widespread or systematic attack” to qualify
as a crime against humanity.
Saravia, 348 F. Supp. 2d at
1156; see also Rome Statute art. 7(1)(h).
To properly plead persecution as a crime against
humanity, Plaintiff must allege both the proper actus reus
-- denial of fundamental rights -- and mens rea -- the
intentional targeting of an identifiable group.
The
allegations set forth in the Amended Complaint offer
evidence of both aspects of criminal intent.
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It has been
noted that “the crime of persecution encompasses a variety
of acts, including, inter alia, those of a physical,
economic or judicial nature, that violate an individual’s
right to the equal enjoyment of his basic rights.”
Prosecutor v. Tadić, Trial Judgment, IT-94-1-T ¶ 710 (May 7,
1997).
In determining what constitutes a basic right,
international courts have looked to the Universal
Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
Id. at 703; Prosecutor v.
Kupreškić, Judgment, IT-95-16-T, ¶ 621 (Jan. 14, 2000).
Persecution on the level of a crime against humanity
must be based on the identity of a specific targeted group.
Defendant argues that persecution based on sexual
orientation or gender identity has not been sufficiently
recognized under international law to be actionable under
the ATS.
It is true that many of the international treaties
and instruments that provide jurisdiction over crimes
against humanity list particular protected groups without
specifying LGBTI people.
See, e.g., Nuremberg Charter art.
6(c) (encompassing “persecutions on political, racial or
religious grounds”); Rome Statute art. 7(1)(h) (defining an
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actionable crime against humanity as “persecution against
any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in
paragraph 3, or other grounds that are universally
recognized as impermissible under international law”);
Updated Statute of the Int’l Criminal Tribunal for the
Former Yugoslavia art. 5(h), Sept. 2009 (providing
jurisdiction over “persecutions on political, racial and
religious grounds”); Statute of the Int’l Tribunal for
Rwanda art. 3(h), Jan. 1, 2007 (providing jurisdiction over
“persecutions on political, racial and religious grounds”).
It is noteworthy, however, that virtually all of these
instruments provide savings clauses.
See Rome Statute art.
7(1)(h) (including “other grounds that are universally
recognized as impermissible under international law” in the
definition).
Even when they do not, international courts
have interpreted the identity of the group requirement
broadly to encompass persecution of a discrete identity.
See Prosecutor v. Naletilić and Martinović, Judgment, IT-9834-T, ¶ 636 (Mar. 31, 2003) (instructing that the
jurisdictional limit to prosecute persecution based on race,
-26-
politics, and religion must be “interpreted broadly”);
Prosecutor v. Nahimana, Trial Judgment, ICTR-99-52-T ¶ 1071
(Dec. 3, 2003).
Significantly, the boundaries of persecution are almost
always defined by those carrying out the persecution against
a particular group.
In other words, the perpetrator
“defines the victim group while the targeted victims have no
influence of the definition of their status.”
Martinović Judgment ¶ 636.
Naletilić and
This fact strongly argues in
favor of a generous interpretation of what groups enjoy
protection under international norms.
Customary international law does not in general limit
the type of group that may be targeted for persecution.
As
the International Criminal Tribunal for the Former
Yugoslavia (ICTY) has observed, “There are no definitive
grounds in customary international law on which persecution
must be based and a variety of different grounds have been
listed in international instruments.”
Tadić Trial Judgment
¶ 711.
In light of the savings clauses in the international
instruments and the expansive boundaries of customary law,
-27-
the argument that international norms do not bar systematic
persecution of LGBTI people, because -- in contrast to
racial, ethnic or religious minorities -- they are not
explicitly mentioned is unpersuasive.
It is enough that
Plaintiff alleges that the denial of fundamental rights it
suffered was based on an “unjustifiable discriminatory
criterion.”
Id. at ¶ 697.
One argument offered by Defendant in this regard may be
dismissed out of hand.
Defendant appears to contend that
because LGBTI people suffer discrimination in many
countries, acts of persecution committed by him against this
community cannot be viewed as violating international norms.
(Dkt. No. 33, Def.’s Mem. 31-34.)
specious.
This argument is utterly
First, Defendant concedes that the highest court
in Uganda has itself recognized the entitlement of gay and
lesbian people to fair and equal treatment under the law,
including protection of their basic rights to free
expression, life, liberty, and property.
More importantly,
even a glance at the history of treatment of gays and
lesbians makes it clear that the discrimination suffered by
them is on a par with the treatment meted out to other
-28-
groups, defined by religion, race, or some other accepted
characteristic.
The history and current existence of discrimination
against LGBTI people is precisely what qualifies them as a
distinct targeted group eligible for protection under
international law.
The fact that a group continues to be
vulnerable to widespread, systematic persecution in some
parts of the world simply cannot shield one who commits a
crime against humanity from liability.
As noted, the critical feature that elevates a campaign
of persecution to a crime against humanity is its expression
as a widespread, systematic attack on the targeted
community.
In determining whether actions are part of a
systematic attack, the former President of the International
Criminal Tribunal for the former Yugoslavia,
Antonio
Cassesse set out the following test:
[O]ne ought to look at these atrocities or acts in
their context and verify whether they may be
regarded as part of an overall policy or a
consistent pattern of inhumanity, or whether they
instead constitute isolated or sporadic acts of
cruelty or wickedness.
Saravia, 348 F. Supp. 2d at 1156.
To be widespread and
systematic, acts do not have to “involve military forces or
-29-
armed hostilities, or any violent force at all.”
Rodney
Dixon, “Crimes Against Humanity: Analysis and Interpretation
of Elements,” in Commentary on the Rome Statute of the
International Criminal Court: Observer’s Notes, Article by
Article 124-25 (Otto Triffterer ed. 1999).
The
International Criminal Tribunal for Rwanda (ICTR) has
observed:
An attack may also be non violent in nature, like
imposing a system of apartheid . . . or exerting
pressure on the population to act in a particular
manner, may come under the purview of attack, if
orchestrated on a massive scale or in a systematic
manner.
Prosecutor v. Akayesu, Opinion and Judgment, Case No. ICTR96-4-T, ¶ 581 (Sept. 2, 1998).
Plaintiff has stated a claim for persecution that
amounts to a crime against humanity, based on a systematic
and widespread campaign of persecution against LGBTI people
in Uganda.
The allegations feature Defendant’s active
involvement in well orchestrated initiatives by legislative
and executive branch officials and powerful private parties
in Uganda, including elements of the media, to intimidate
LGBTI people and to deprive them of their fundamental human
rights to freedom of expression, life, liberty, and
-30-
property.
Plaintiff rests its claim of individual liability in
large part on Defendant’s accessory role in aiding and
abetting the persecutory campaign amounting to a crime
against humanity.
(Dkt. No. 27, Am. Compl. ¶¶ 237-38; Dkt.
No. 38, Pl.’s Mem. 44.)
Aiding and abetting is a well-
established basis for liability in international customary
law.
Numerous authorities confirm that a cause of action
exists under international law for aiding and abetting a
crime against humanity.
Indeed, aiding and abetting
liability was accepted as part of the customary
international law that was applied by the war tribunals
after World War II.
Khulumani v. Barclay Nat’l Bank Ltd.,
504 F.3d 254, 270-75 (2d Cir. 2007) (Katzmann, J.
concurring), adopted in Presbyterian Church of Sudan, 582
F.3d at 258.
Aiding and abetting has been subsequently recognized as
an established basis for liability in international law
instruments including the Rome Statute and the statutes
creating the ICTY and the ICTR.
Id.
Beyond current customary international law, the United
-31-
States Congress itself in 1789 appeared to recognize a cause
of action for aiding and abetting violations of
international law.
29 (D.C. Cir. 2011).
Doe v. Exxon Mobil Corp., 654 F.3d 11,
The year after the passage of the
Judiciary Act, Congress passed a piracy law providing for
aiding and abetting liability.
Crimes Act of 1790, ch. 9, §
10, 1 Stat. 112, 114 (1790) (deeming “an accessary [sic] to
... piracies” anyone who shall “knowingly and willingly aid
and assist, procure, command, counsel, advise” any person to
commit piracy).
An early federal circuit court case
acknowledged that U.S. citizens could be liable for aiding
and abetting a violation of U.S. treaties or the law of
nations.
Henfield’s Case, 11 F. Cas. 1099 (C.C. Pa. 1793)
(No. 6360) (noting that “they who commit, aid, or abet
hostilities against these powers, or either of them, offend
against the laws of the United States, and ought to be
punished; and consequently, that it is your duty, gentlemen,
to inquire into and present all such of these offences, as
you shall find to have been committed within this
district”); see also Talbot v. Jensen, 3 U.S. 133, 167-68
(1795).
-32-
Aiding and abetting liability under the ATS has been
accepted by every circuit court that has considered the
issue.
Exxon Mobil Corp., 654 F.3d at 29-30; Presbyterian
Church of Sudan, 582 F.3d at 259; Khulumani, 504 F.3d at 260
(per curiam); Cabello, 402 F.3d at 1157-58.
To obtain a verdict based on a theory of aiding and
abetting, a plaintiff must prove that a defendant provided
“practical assistance to the principal which has a
substantial effect on the perpetration of the crime.”
Exxon
Mobil Corp., 654 F.3d at 39; Presbyterian Church of Sudan,
582 F.3d at 259.
The circuits are currently divided as to
whether a plaintiff must show that a defendant acted only
with knowledge of the criminal enterprise or that his
explicit purpose was to facilitate the criminal activity.
Compare Exxon Mobil Corp., 654 F.3d at 39 (requiring that
plaintiff commit the act with knowledge of the criminal
purpose); Presbyterian Church of Sudan, 582 F.3d at 259
(requiring that plaintiff show that defendant committed the
act with “the purpose of facilitating the commission of the
crime”); Cabello, 402 F.3d at 1157-58 (adopting the federal
common law standard of knowledge).
-33-
Because Plaintiff has
pleaded the more stringent “purpose” standard, it is
unnecessary for the court to resolve the “knowledge/purpose”
controversy.
The Amended Complaint sets forth detailed factual
allegations supporting Count One’s claim that Defendant
bears individual liability for aiding and abetting the
commission of a crime against humanity.
Essentially,
Defendant’s role is alleged to be analogous to that of an
upper-level manager or leader of a criminal enterprise.
He
participated in formulating the enterprise’s policies and
strategies.
He advised other participants on what actions
might be most effective in achieving the enterprise’s goals,
such as criminalizing any expressions of support for the
LGBTI community and intimidating its members through threats
and violence.
He generated and distributed propaganda that
falsely vilified the targeted community to inflame public
hatred against it.
In particular, Plaintiff has set out plausibly that
Defendant worked with associates within Uganda to
coordinate, implement, and legitimate “strategies to
dehumanize, demonize, silence, and further criminalize the
-34-
[Ugandan] LGBTI community.”
(Dkt. No. 27, Am. Compl. ¶ 27.)
In both 2002 and 2009, as part of this alleged campaign,
Defendant met with Ugandan governmental leaders.
27, Am. Compl. ¶¶ 36, 52, 77, 78.)
(Dkt. No.
Defendant’s intentional
activities, according to the Amended Complaint, succeeded in
intimidating, oppressing, and victimizing the LGBTI
community.
Indeed, as noted, according to the Amended
Complaint Defendant acknowledged that his efforts made him
instrumental in detonating “a nuclear bomb against the ‘gay’
agenda in Uganda.”
(Dkt. No. 27, Am. Compl. ¶¶ 56 & 88.)
Of course, all these allegations will need to be proved
at trial to entitle Plaintiff to a verdict, and they may not
be.
But, as this lengthy discussion demonstrates, they are
sufficient, as allegations, to state a claim for the
commission of a crime against humanity against Defendant.
Similarly, the overwhelming weight of authority
establishes that this crime against humanity is one of the
relatively few violations of international norms for which
the ATS furnishes jurisdiction.5
5
It is true, as Sosa makes
Defendant argues that he cannot be liable for
persecution because he is not a state actor. However, there
is no requirement that aiding and abetting be done by a state
-35-
clear, that not all violations of international norms, even
if properly alleged, can be pursued under the ATS.
The
further question is whether, as Justice Souter put it,
Plaintiff’s claim rests “on a norm of international
character accepted by the civilized world and defined with
specificity comparable to the features of the 18th-century
paradigms [the Court has] recognized.”
542 U.S. at 725
(emphasis added).
Put more concretely, is aiding and abetting a crime
against humanity tantamount to piracy, or one of the other
narrowly defined crimes for which the ATS provided
jurisdiction in 1789?
Again, the weight of authority confirms that it is.
As
noted, both crimes against humanity and aiding and abetting
liability are well-established and accepted in customary
international law.
Moreover, an ATS cause of action for
this type of international law violation has been widely
recognized in the lower courts.
As Sosa noted, “the door is
still ajar,” to federal common law claims for some
violations of customary law, if only because “[i]t would
actor.
-36-
take some explaining to say now that federal courts must
avert their gaze entirely from any international norm
intended to protect individuals.”
Id. at 728, 732.
In sum, then, for the reasons stated Plaintiff has
adequately pled both that a crime against humanity has been
committed by Defendant and that this crime rests among the
relatively small group of violations of international norms
for which the ATS provides jurisdiction.6
B.
Claims Related to Extraterritorial Conduct Under the
Alien Tort Statute.
Defendant argues that this court cannot recognize
Plaintiff’s ATS claims because Plaintiff cannot overcome the
presumption that causes of action recognized under the ATS
do not extend to extraterritorial conduct.
Subsequent to
oral argument, the Supreme Court clarified an aspect of this
issue in Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659
6
It is important to note that, in addition to Count I,
Counts II and III of the Amended Complaint have, apparently in
the alternative, charged Defendant as a participant in a joint
criminal enterprise and as a co-conspirator respectively.
Because Plaintiff has clearly set forth its claim in Count I
against Defendant based on his individual responsibility, it
is unnecessary, at least at this stage, to address the
sufficiency of the legal and factual support for these two
counts.
-37-
(2013).
The Court’s decision addressed whether a federal
court could recognize a cause of action for claims by
Nigerian citizens living in the United States against Dutch
and British corporations.
Neither corporation had more than
a negligible presence in the United States, and all the
tortious conduct alleged to have been committed by them
occurred outside the United States, in Nigeria.
The Supreme
Court held that in this context, the plaintiffs did not have
a cause of action, based on the presumption against
extraterritorial application.
133 S. Ct. at 1669.
Two facts alleged in this case distinguish it from
Kiobel.
First, unlike the British and Dutch corporations,
Defendant is an American citizen residing within the venue
of this court in Springfield, Massachusetts.
Second, read
fairly, the Amended Complaint alleges that the tortious acts
committed by Defendant took place to a substantial degree
within the United States, over many years, with only
infrequent actual visits to Uganda.
The fact that the impact of Defendant’s conduct was
felt in Uganda cannot deprive Plaintiff of a claim.
Defendant’s alleged actions in planning and managing a
-38-
campaign of repression in Uganda from the United States are
analogous to a terrorist designing and manufacturing a bomb
in this country, which he then mails to Uganda with the
intent that it explode there.
The Supreme Court has made
clear that the presumption against the extraterritorial
application of a statute comes into play only where a
defendant’s conduct lacks sufficient connection to the
United States.
See Morrison v. Nat’l Australia Bank Ltd.,
130 S. Ct. 2869, 2884 (2010); Pasquantino v. United States,
544 U.S. 349 (2005).
Kiobel elaborated on this theme.
As Chief Justice
Roberts stated in his opinion, the issue in that case was
“whether a claim may reach conduct occurring in the
territory of a foreign sovereign.”
1664.
Kiobel, 133 S. Ct. at
In the final paragraph of his decision, he emphasized
that the Court’s holding applied to a factual scenario where
“all the relevant conduct took place outside the United
States.”
Id. at 1669.
Where conduct occurred solely
abroad, “mere corporate presence,” he concluded, did not
touch and concern the United States “with sufficient force
to displace the presumption against extraterritorial
application.”
Id.
-39-
The separate concurrence of Justice Kennedy made the
limited reach of Kiobel manifest.
“Other cases,” he noted,
“may arise with allegations of serious violations of
international law principles protecting persons . . . ; and
in those disputes the proper implementation of the
presumption against extraterritorial application may require
some further elaboration and explanation.”
133 S. Ct. at
1669.
Even the narrowest construction of the Kiobel holding,
set forth in the separate concurrence of Justice Alito on
behalf of himself and Justice Thomas, made clear that an ATS
cause of action will lie where the “domestic conduct is
sufficient to violate an international law norm that
satisfies Sosa’s requirements of definiteness and acceptance
among civilized nations.”
Kiobel, 133 S. Ct. at 1670
(emphasis added).
This is not a case where a foreign national is being
hailed into an unfamiliar court to defend himself.
Defendant is an American citizen located in the same city as
this court.
The presumption against extraterritoriality is
based, in large part, on foreign policy concerns that tend
-40-
to arise when domestic statutes are applied to foreign
nationals engaging in conduct in foreign countries.
Kiobel,
133 S. Ct. at 1664-65; Morrison, 130 S. Ct. at 2885-86
(noting the obvious “probability of incompatibility with the
applicable laws of other countries” and concluding that the
defendants’ connection to the United States was
insufficient); EEOC v. Arabian American Oil Co., 499 U.S.
244, 248 (1991) (noting that presumption “serves to protect
against unintended clashes between our laws and those of
other nations which could result”).7
An exercise of jurisdiction under the ATS over claims
against an American citizen who has allegedly violated the
law of nations in large part through actions committed
within this country fits comfortably within the limits
described in Kiobel.
Indeed, the failure of the United States to make its
courts available for claims against its citizens for actions
taken within this country that injure persons abroad would
7
In extreme cases, piracy for example, Kiobel noted that
the ATS would provide jurisdiction over claims against foreign
nationals for tortious conduct committed wholly in a foreign
country, on the ground that it carried “less direct foreign
policy consequences.” Id. at 1667.
-41-
itself create the potential for just the sort of foreign
policy complications that the limitations on federal common
law claims recognized under the ATS are aimed at avoiding.
Under the law of nations, states are obliged to make civil
courts of justice accessible for claims of foreign subjects
against individuals within the state’s territory.
“If the
court’s decision constitutes a denial of justice, or if it
appears to condone the original wrongful act, under the law
of nations the United States would become responsible for
the failure of its courts and be answerable not to the
injured alien but to his home state.”
Tel Oren v. Libyan
Arab Republic, 726 F.2d 774, 783 (D.C. Cir. 1984) (Edwards,
J. concurring), cert. denied, 470 U.S. 1003 (1985).
One such episode, occurring shortly after the passage
of the ATS, underlines the role of United States courts in
precisely this situation.
In 1794, several U.S. citizens
joined a French privateer fleet to aid the French in the war
on Great Britain despite the official American policy of
neutrality.
These Americans formed part of a force that
attacked and plundered the British colony of Sierra Leone.
When the British Ambassador protested and demanded that the
-42-
Americans be punished, then Attorney General William
Bradford responded that it was unlikely that the Americans
could be criminally prosecuted for actions abroad or on the
high seas.
But, he noted, “[t]here can be no doubt that the
company or individuals who have been injured by these acts
of hostility have a remedy by a civil suit in the courts of
the United States; jurisdiction being expressly given to
these courts in all cases where an alien sues for a tort
only, in violation of the laws of nations, or a treaty of
the United States.”
Kiobel, 133 S. Ct. at 1668 (quoting
Breach of Neutrality, 1 Op. Atty. Gen. 57 (1795)).
It is true, as Defendant points out, that the Amended
Complaint, which was filed prior to Kiobel, highlights
actions taken by Defendant in Uganda.
Defendant’s
contention that all his alleged misconduct took place in
Uganda, however, offers a distorted picture of the pleading.
As noted, Plaintiff alleges that Defendant’s tortious
behavior unfolded over at least a decade, during which time
he was actually present in Uganda only a few times.
The
actual claim of individual responsibility against Defendant
is rooted in a contention that Defendant aided and abetted
-43-
the tortious conduct.
The relevant question therefore is
whether Plaintiff has alleged that substantial “practical
assistance” was afforded to the commission of the crime
against humanity from the United States.
The Amended Complaint adequately sets out actionable
conduct undertaken by Defendant in the United States to
provide assistance in the campaign of persecution in Uganda.
To review these allegations, and at the risk of repetition,
the Amended Complaint alleges that Defendant resides and
operates out of Springfield, Massachusetts.
Am. Compl. ¶ 8.)
(Dkt. No. 27,
It describes how, after Defendant traveled
to Uganda in 2002, he continued to assist, manage, and
advise associates in Uganda on methods to deprive the
Ugandan LGBTI community of its basic rights.
55-56.)
(Id. at ¶¶ 47,
Defendant’s Ugandan co-conspirators then contacted
him in the United States in 2009 to craft tactics to counter
the Ugandan High Court ruling confirming that LGBTI persons
enjoyed basic protections of the law.
(Id. at ¶ 36.)
After
going to Uganda in 2009, Defendant continued to communicate
from the United States through Martin Ssempa to members of
the Ugandan Parliament about the legislation proposing the
-44-
death penalty for homosexuality.
From his home in the
United States, he reviewed a draft of the legislation and
provided advice on its content.
(Id. at ¶¶ 140, 161.)
Given that Defendant is a United States citizen living in
this country and that the claims against him “touch and
concern the territory of the United States . . . with
sufficient force to displace the presumption against
extraterritoriality,” a cause of action is appropriate under
the ATS.
C.
Kiobel, 133 S. Ct. at 1669.8
Standing.
8
This conclusion is in line with most of the cases that
have considered the presumption against extraterritoriality
post-Kiobel. See Muntslag v. Dieteren, S.A., 2013 WL 2150686,
at *2 (S.D.N.Y. May 17, 2013) (holding that jurisdiction did
not exist over foreign defendants when allegedly tortious acts
all occurred abroad); Mohammadi v. Islamic Republic of Iran,
-- F. Supp. 2d ----, 2013 WL 2370594, at *15 (D.D.C. May 31,
2013) (holding that there was an insufficient nexus to the
territory or interests of the United States when the
defendants were leaders of Iran and activities occurred in the
sovereign territory of Iran); Mwani v. bin Laden, -- F. Supp.
2d ----, 2013 WL 2325166, at *4 (D.D.C. May 29, 2013) (holding
that presumption against extraterritoriality displaced when a
foreign defendant bombed an American embassy abroad and overt
acts in furtherance of the conspiracy took place in the United
States). In one case, a district court has dismissed a claim
against an American corporation based on alleged torture and
war crimes occurring in Iraq. al Shimari v. CACI Int’l, Inc.,
-- F. Supp. 2d ----, 2013 WL 3228720, at *7-10 (E.D. Va. June
25, 2013). Arguably, a different rationale may apply to a
natural U.S. citizen than an American corporation. If not,
this court finds the reasoning in al Shimari unpersuasive.
-45-
Defendant argues that Plaintiff, as an umbrella
organization, lacks standing to bring this suit either in
its own right or as a representative of its members.
argument will not withstand scrutiny.
The
Plaintiff has
standing to seek monetary and equitable relief for
Defendant’s actions that have caused direct damage to it.
Moreover, it also has associational standing to bring claims
on behalf of its members and the LGBTI community for
injunctive relief to prevent Plaintiff from continued
actions “to strip away and/or deprive Plaintiff and LGBTI
community in Uganda of their fundamental rights.”
(Dkt. No.
27, Am. Compl. ¶ 13.)
1.
Organizational Standing.
It is well-established that an organization can sue to
obtain compensation for injuries it sustains.
Warth v.
Seldin, 422 U.S. 490, 511 (1975); Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 n.19 (1982); Mass. Delivery Ass’n
v. Coakley, 671 F.3d 33, 44-45 (1st Cir. 2012).
Article III
standing exists where three criteria are satisfied: (1) an
injury in fact, which is (2) fairly traceable to the
defendant’s misconduct, and which can be (3) redressed
-46-
through a favorable decision of the court.
Lujan v.
Defenders of Wildlife, 560 U.S. 555, 560-61 (1992).
Defendant does not argue that Plaintiff has failed to
meet the first prong -- injury in fact.
The Amended
Complaint sets forth two distinct harms to Plaintiff’s
organization.
First, Plaintiff’s operations, conferences,
and staff have allegedly been targeted as part of the
persecutory campaign.
Plaintiff alleges that, as a result,
it has had to retain the services of security personnel,
take additional security measures for its premises, and
relocate its offices and operations.
cost money.
All this has obviously
Second, Plaintiff has had to expend
considerable resources and efforts to counteract Defendant’s
campaign of repression; the need for these efforts has
impaired Plaintiff’s ability to carry out its own
organizational objectives.
Defendant correctly concedes
that the allegations of injury in fact are sufficient.
Defendant does challenge the sufficiency of the
evidence to satisfy the second element, the connections
between the injury and Defendant’s conduct.
For the court
to find that Plaintiff has standing, “there must be a causal
-47-
connection between the injury and conduct complained of -the injury has to be ‘fairly trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court.”
Lujan, 504 U.S. at 560 (quoting Simon v. Eastern
Ky. Welfare Rights Org., 526 U.S. 26, 41-42 (1976)).
In addressing this factor, it is important to bear in
mind that Defendant’s actions need not be “the very last
step in the chain of causation for the injury.
It suffices
if the plaintiff can show injury produced by determinative
or coercive effect upon the action of someone else.”
Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt.
Council, 589 F.3d 458, 467 (1st Cir. 2009) (internal
quotation and citation omitted).9
At this stage, Plaintiff has adequately pled that
Defendant was one of the “principal strategists and actors
behind this decade-long persecutory campaign.”
9
(Dkt. No.
Defendant contends that the “fairly traceable” element
is only met if Plaintiff can show that his speech was directed
at producing or inciting imminent lawless action and is likely
to produce or incite such action. However, this is a
substantive test for whether speech is protected by the First
Amendment and not a test for standing. See NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 928 (1982).
-48-
27, Am. Compl. ¶ 25.)
While some of the actions that
Plaintiff describes in the Amended Complaint may not be
directly traceable to Defendant, Defendant may nevertheless
be held liable, as the previous discussion notes, for his
conduct as an aider and abettor.
According to the Amended
Complaint, Defendant himself has acknowledged that he has
been instrumental in launching the anti-LGBTI movement in
Uganda and developing strategies for its ongoing operation
-- the “nuclear bomb” previously noted.
Given all this, the
allegations of the complaint sufficiently support a finding
that Plaintiff’s injury is directly traceable to Defendant’s
conduct.
Finally, Plaintiff has met its burden to plead
plausibly that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.”
Lujan, 504 U.S. at 561.
To a
substantial extent the injuries to Plaintiff as an
organization are quantifiable and may be remedied by an
award of monetary damages.
2.
Associational Standing.
While Plaintiff may seek monetary damages for the
-49-
injuries it has suffered to itself as an organization,
Defendant argues that Plaintiff cannot seek monetary damages
for its members, based on its associational standing.
Defendant contends that proof of these claims, and
particularly the determination of monetary damages, will
require participation by individuals whose interests the
organization does not have standing to assert.
The simple
answer to this is that Plaintiff seeks monetary damages only
for injury to itself as an organization, not for its
individual members, as to whom only equitable relief is
requested.
Associational standing allows an organization to bring
suit “solely as the representative of its members” “[e]ven
in the absence of injury to itself.”
511.
Warth, 422 U.S. at
To assert associational standing, a plaintiff must
show: (1) its members would otherwise have standing to sue
in their own right; (2) the interests it seeks to protect
are germane to the organization's purpose; and (3) neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
-50-
Defendant does not directly argue that Plaintiff fails
to meet the first two requirements.
Plaintiff is “an
umbrella organization that was founded in 2004 by a
coalition of Ugandan organizations advocating on behalf of
lesbian, gay, bisexual, transgender, and intersex (‘LGBTI’)
communities, to unify and support sexual minority groups in
Uganda.”
(Dkt. No. 27, Am. Compl. ¶ 18.)
Plaintiff asserts
that “individual members of its constituent organizations”
have suffered persecution and associated harms as a result
of Defendant’s actions.
(Dkt. No. 27, Am. Compl. ¶ 21.)
Plaintiff also asserts that the interests it seeks to
protect in this case -- preventing persecution of the LGBTI
community in Uganda -- are germane to its agenda to
advocate, unify, and support this community.
While not contesting either of these points directly,
Defendant does argue that Sexual Minorities Uganda has not
adequately alleged associational authority.
To support the
need to show associational authority, Defendant cites an ATS
case where a defendant, Unocal, Inc., argued that “an
organization only has associational standing when it has a
clear mandate from its membership to take the position
-51-
asserted in the litigation.”
Nat’l Coal. Gov’t Union Burma
v. Unocal, Inc., 176 F.R.D. 329, 344 n.16 (C.D. Cal. 1997).
Here, Defendant argues, no such clear mandate has been
alleged.
Defendant has misread the Unocal decision.
In that
case, the district court denied the Federated Trade Unions
of Burma standing based on the fact that all of the tort
claims were based on harm to individual plaintiffs, and none
to the organization itself.
The court’s holding on the
standing issue was not anchored on whether the organization
had a clear mandate from its membership.
Authority from the
District of Massachusetts makes clear that an organization
represents a “defined and discrete constituency” even if
that constituency is different from the formal members of
the organization.
NAACP v. Harris, 567 F. Supp. 637, 640
(D. Mass. 1983).
It is true that authorities generally reject
associational standing where an organization seeks monetary
relief on behalf of its members, on the ground that these
claims require individualized proof of claims.
See Bano v.
Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004).
-52-
However, Plaintiff here seeks to assert associational
standing solely to obtain injunctive relief on behalf of its
members.
Because Plaintiff is not requesting monetary
damages for its members, there is normally “no need . . .
for the members to participate as parties.”
Pharm. Care
Mgmt. Ass’n v. Rowe, 429 F.3d 294, 307 (1st Cir. 2005).
Admittedly, all requests for injunctive relief do not
automatically grant a plaintiff associational standing.
Courts have rejected claims for injunctive relief that seek,
in effect, remedies applicable only to specific
individuals.
Bano, 361 F.3d at 716 (rejecting associational
standing where the group sought an injunction ordering
remediation of individual private properties).
Here, however, Plaintiff is not requesting injunctive
relief that is particular to any individual in Uganda.
Instead, the injunctive relief in this case only requests
that the Defendant cease certain general activities.
This
equitable relief will not require participation of
Plaintiff’s members.
“[The] relief, if granted, would inure
to the benefit of all the affected [members] equally,
regardless of their individual circumstances.”
-53-
Coll.
Dental Surgeons P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d
33, 41 (1st Cir. 2009).
Defendant points to two district court opinions
purportedly supporting the proposition that associational
representation is not suitable for civil tort claims because
those claims “can only be adjudicated by considering the
testimony and other evidence of the people allegedly
[injured].”
Nat’l Coal. Gov’t Union Burma, 176 F.R.D. at
344; see also Presbyterian Church of Sudan v. Talisman
Energy, Inc., 2005 WL 1060353 (S.D.N.Y. May 6, 2005).
decisions are, of course, not binding on this court.
These
More
importantly, the language of these decisions describing the
limits of associational standing for tort claims appears to
be overbroad.
The fact that a claim requires individual proof does
not necessarily defeat associational standing.
See Playboy
Entm’t v. Public Service Comm’n Puerto Rico, 906 F.2d 25, 35
(1st Cir. 1990) (holding that the need for individual proof
does not necessitate that members be parties); Coll. Dental
Surgeons P.R., 585 F.3d at 41 (noting that even though some
fraudulent practice claims may require evidence from
-54-
individual members those claims are not a “fact-intensiveindividual inquiry”).
“Even though [a claim] is intensely
fact specific and [plaintiff] will be required to introduce
proof of specific [member] practices and effects [] on
specific [members], we see no reason that [plaintiff’s
members] would be required to participate as parties.”
Pharm. Care Mgmt. Ass’n, 429 F.3d at 306.
Because the claim
here -- persecution -- is a group-based claim, it is wellsuited to be brought by a representative association like
Plaintiff, even though some of the evidence will come from
individual testimony.
Plaintiff has associational standing
to bring its claims for injunctive relief.
Plaintiff also meets the Article III requirements for
standing as a representative of its members.
The analysis
for injury and causation in this context is virtually the
same as the analysis applicable to determine an
organization’s entitlement to bring a suit in its own right.
Defendant contends, however, that even if Plaintiff has
adequately pled injury and causation, the allegations of the
Amended Complaint fail to satisfy the third requirement -redressability -- when the only relief it seeks for its
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members is an injunction.
No injunctive or declaratory
relief that this court could issue, Defendant says, could
possibly provide Plaintiff’s members any remedy, since the
initiatives against the LGBTI community in Uganda have an
independent momentum beyond any control by Defendant.
This argument has force but, at least at this stage, is
unpersuasive.
It is well-established that, while Plaintiff
must show that a favorable resolution would likely redress
the injury, “[r]edressability is a matter of degree” and
Plaintiff need not show that the potential remedies within
the court’s power would completely alleviate its members’
injuries.
Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir.
2012).
Certainly there is no doubt that Defendant is only one
of several actors allegedly persecuting the LGBTI community
in Uganda.
As Defendant notes, enjoining Defendant does not
guarantee that his co-conspirators will cease their
repression against Plaintiff and its members.
It is quite
true that this court does not have either the jurisdiction
or power to stop all possible harm against Plaintiff in
Uganda.
Nevertheless, Plaintiff has sufficiently alleged
-56-
that Defendant played a crucial role in developing
strategies to deny basic rights to Plaintiff’s members over
the last decade.
With the failure (so far) of the Anti-
Homosexuality Bill, Plaintiff has a justified fear that
Defendant will be called upon to help devise new strategies
to deny the rights of Plaintiff’s members.
Plaintiff has
shown that “a favorable ruling could potentially lessen its
injury; it need not definitively demonstrate that a victory
would completely remedy the harm.”
Antilles Cement Corp. v.
Fortuño, 670 F.3d 310, 318 (1st Cir. 2012).
For all the foregoing reasons, the Amended Complaint
contains sufficient allegations to support both
organizational and associational standing.
D.
First Amendment Concerns.
Defendant has vigorously argued that all his actions
are protected by the First Amendment to the United States
Constitution.
Discovery may, or may not, reveal that the
argument is correct, and this issue will almost certainly be
front and center at the summary judgment stage of this case.
What is quite clear now, however, is that the Amended
Complaint adequately alleges that Defendant’s actions have
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fallen well outside the protections of the First Amendment.
Defendant is correct that the First Amendment places
limits on the imposition of tort liability linked to
offensive speech, and that the protection of free
expression, including the protection of “thought we hate,”
is a centerpiece of our democracy.10
Snyder v. Phelps, 131
S. Ct. 1207, 1215 (2011); Hustler Magazine v. Falwell, 485
U.S. 46, 50-51 (1988).
For example, intentional infliction of emotional
distress claims -- which ask a jury to consider whether
speech was “outrageous” -- are too subjective to meet the
requirements of the First Amendment when applied to public
figures or topics of public concern.
1219; Hustler, 485 U.S. at 55.
Snyder, 131 S. Ct. at
“[H]urtful speech” is
protected when it “address[es] matters of public import on
public property, in a peaceful manner, in full compliance
with the guidance of local officials.”
Snyder, 131 S. Ct.
at 1220.
An ardent exposition of all the reasons why protection
of “thought we hate” is so central to the genius of our
Constitution is contained in the late Anthony Lewis’s superb
book, Freedom for the Thought We Hate: A Biography of the
First Amendment (2010).
10
-58-
In the criminal context, even if speech advocates for
the use of force or for violations of law, it receives First
Amendment protection “except where such advocacy is directed
to inciting or producing imminent lawless action and is
likely to incite or produce such action.”
Brandenburg v.
Ohio, 395 U.S. 444, 447-48 (1969).
On the other hand, when noxious words become part of a
criminal enterprise, the First Amendment provides limited
protection.
As Justice Black, an unsurpassed supporter of
the First Amendment, wrote:
It rarely has been suggested that the
constitutional freedom for speech and press
extends its immunity to speech or writing used as
an integral part of conduct in violation of a
valid criminal statute. We reject the contention
now. . . .
. . . [I]t has never been deemed an abridgment of
freedom of speech or press to make a course of
conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means
of language, either spoken, written or printed.
Such an expansive interpretation of the
constitutional guaranties of speech and press
would make it practically impossible ever to
enforce laws against agreements in restraint of
trade as well as many other agreements and
conspiracies deemed injurious to society.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 502
(1949) (internal citations omitted).
-59-
It is well-established that speech that constitutes
criminal aiding and abetting is not protected by the First
Amendment.
See, e.g., United States v. Bell, 414 F.3d 474,
483-84 (3d Cir. 2005); Nat’l Org. for Women v. Operation
Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994); United States v.
Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (Kennedy, J.)
(noting that “[c]ounseling is but a variant of the crime of
solicitation, and the First Amendment is quite irrelevant if
the intent of the actor and the objective meaning of the
words used are so close in time and purpose to a substantive
evil as to become part of the ultimate crime itself”);
United States v. Kelley, 769 F.2d 215, 217 (4th Cir. 1985);
United States v. Barnett, 667 F.2d 835, 842-43 (9th Cir.
1982) (“The first amendment does not provide a defense to a
criminal charge simply because the actor uses words to carry
out his illegal purpose.
Crimes including that of aiding
and abetting, frequently involve the use of speech as part
of the criminal transaction.”); cf. Giboney, 336 U.S. at 498
(holding that speech integral to criminal conduct is not
protected).
It is equally well supported that the same
logic extends to civil actions for aiding and abetting.
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Rice v. Palladin Enterprises, Inc., 128 F.3d 233, 242-43
(4th Cir. 1997).
In determining whether speech that is related to
political advocacy receives First Amendment protection, the
Supreme Court has distinguished between “theoretical
advocacy,” Scales v. United States, 367 U.S. 203, 235
(1961), meaning advocacy of “principles divorced from
action,” Yates v. United States, 354 U.S. 298, 320 (1957),
and speech that is meant to induce or precipitate illegal
activity.
See also United States v. Williams, 553 U.S. 285,
298-99 (2008).
As the court in Brandenburg recognized,
“[T]he mere abstract teaching . . . of the moral propriety
or even moral necessity for a resort to force and violence,
is not the same as preparing a group for violent action and
steeling it to such action.”
395 U.S. at 448 (quoting Noto
v. United States, 367 U.S. 290, 297-98 (1961)).
Merely
advocating for reform is quite different constitutionally
from preparing for criminal activity.
Based on these authorities it is clear that the Amended
Complaint sets forth sufficient allegations to support a
claim for activity outside the protection of the First
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Amendment.
Plaintiff contends that Defendant’s conduct has
gone far beyond mere expression into the realm not only of
advocacy of imminent criminal conduct, in this case advocacy
of a crime against humanity, but management of actual crimes
-- repression of free expression through intimidation, false
arrests, assaults, and criminalization of peaceful activity
and even the status of being gay or lesbian -- that no jury
could find to enjoy the protection of the First Amendment.
Apart from his right to free expression, Defendant also
contends that his actions are protected by the Petition
Clause of the First Amendment.
Generally, Defendant points
out, “there is no remedy against private persons who urge
the enactment of laws, regardless of their motives.”
Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002).
It
is well-established, however, that the Petition Clause does
not immunize a defendant’s interactions with foreign
governments.
Australia/Eastern U.S.A. v. United States, 557
F. Supp. 807, 812 (D.D.C. 1982); Occidental Petroleum Corp.
v. Buttes Gas & Oil Co., 331 F. Supp. 92 (C.D. Cal. 1971),
-62-
aff’d 461 F.2d 1261 (9th Cir. 1972).11
In other words, the
Petition Clause protects the right of Americans to seek
legislation by the United States government, not by
governments of foreign countries.
Even if the Petition Clause applied, the court could
not dismiss the action as a matter of law, given that the
petition clause cannot protect activities taken for unlawful
purposes or toward unlawful ends.
Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 514 (1972) (quoting
Giboney, 336 U.S. at 502) (recognizing that activity that is
an integral part of illegal conduct does not receive
petitioning clause protection).
Here, the Amended
Complaint makes precisely that allegation.
Speech can undoubtedly sometimes fall within grey
areas.
When this occurs, and where a jury needs to resolve
contested factual issues to determine whether speech or
11
Defendant cites cases which grant companies
NoerrPennington immunity from prosecution for their petitioning
activity even if they are aimed at foreign governments.
However, those cases rest their conclusions on the scope of
the Sherman Act itself and not on the First Amendment petition
clause. Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358
(5th Cir. 1983); Carpet Group Int’l v. Oriental Rug Importers
Ass’n, Inc., 256 F. Supp. 2d 249 (D.N.J. 2003); Luxpro Corp.
v. Apple Inc., 2011 WL 1086027 (N.D. Cal. Mar. 24, 2001).
-63-
conduct is constitutionally protected, the court is well
equipped to provided the jury appropriate instructions to
handle this task.
Freeman, 761 F.2d at 551, 552-53; United
States v. White, 610 F.3d 956, 962 (7th Cir. 2010) (“Based
on the full factual record, the court may decide to instruct
the jury on the distinction between solicitation and
advocacy, and the legal requirements imposed by the First
Amendment.”).
Courts have regularly found it preferable to
tackle a First Amendment defense with a more complete
evidentiary record at the summary judgment stage or at
trial, rather than at the motion to dismiss stage.
Curley
v. North Am. Man Boy Love Ass’n, 2001 WL 1822730, at *2 (D.
Mass. Sept. 27, 2001); cf. White, 610 F.3d at 962 (“Based on
the full factual record, the court may decide to instruct
the jury on the distinction between solicitation and
advocacy, and the legal requirements imposed by the First
Amendment.”).
At this stage, it is far from clear that the
First Amendment will foreclose liability on any set of facts
that Plaintiff might show.
In making this decision, the court is mindful of the
chilling effect that can occur when potential tort liability
-64-
is extended to unpopular opinions that are expressed as part
of a public debate on policy.
However, at this stage, the
Amended Complaint sets out plausible claims to hold
Defendant liable for his role in systematic persecution,
rather than merely for opinions that Plaintiff finds
abhorrent.
The complexion of the case at this stage
entitles Plaintiff to discovery and requires the court to
deny Defendant’s motion to dismiss.
E.
State Law Claims.
Counts IV and V of the Amended Complaint assert
Massachusetts common law claims for civil conspiracy and
negligence.
Defendant seeks dismissal of these counts on
several grounds.
First, he contends that under a proper
choice of law analysis, Massachusetts law simply does not
apply to the facts alleged.
govern.
Ugandan law, if any, should
Second, he argues that both the civil conspiracy
and negligence claims are barred by the three-year statute
of limitations.
Finally, he takes the position that the
facts as set forth in the Amended Complaint are insufficient
to make out claims under either theory.
The court will deny
the motion to dismiss because (1) Massachusetts law governs
-65-
this litigation and (2) the arguments asserting violation of
the statute of limitations and failure to state a claim
require development through discovery and may be re-assessed
at the summary judgment stage on a fuller record.
1.
Choice of Laws.
It is well-settled that district courts hearing state
law claims apply the substantive law of the state in which
the court sits, including that state’s choice-of-law rules.
Servicios Comerciales Andinos, S.A. v. General Elec. Del
Caribe, Inc., 145 F.3d 463, 478 (1st Cir. 1998); Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Massachusetts employs a functional choice of laws approach
that is guided by the Restatement (Second) of Conflict of
Laws (1971).
Clarendon Nat’l Ins. Co. v. Arbella Mut. Ins.
Co., 803 N.E.2d 750, 752 (Mass. App. Ct. 2004).
The Restatement instructs courts to apply the law of
the state with the “most significant relationship to the
occurrence and the parties under the principles stated in §
6.”
Restatement (Second) of Conflict of Laws § 145 (1971).
Section 6 of the Restatement cites the following factors as
relevant to choice of law decisions:
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(a) the needs of the interstate and international
systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those states
in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular
field of law,
(f) certainty, predictability and uniformity of
result, and
(g) ease in the determination and application of
the law to be applied.
Id. at § 6.
In the tort context, the Restatement also sets out four
factors to help determine which jurisdiction has the most
significant relationship:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury
occurred,
(c) the domicil, residence, nationality, place of
incorporation and place of business of the
parties, and
(d) the place where the relationship, if any,
between the parties is centered.
Id. at § 145.
Defendant is correct to note that the jurisdiction
where the injury occurred normally has a significant
interest in having its law apply because “persons who cause
injury in a state should not ordinarily escape liabilities
-67-
imposed by the local law of that state on account of the
injury.”
cmt. 2.
Restatement (Second) of Conflict of Laws § 145(2),
However, even when the injury (and, indeed, even
the conduct that caused the injury) occurs in a foreign
location, Massachusetts choice-of-laws doctrine does not
automatically apply foreign law.
See, e.g., Robidoux v.
Muholland, 642 F.3d 20, 28 (1st Cir. 2011); Lou v. Otis
Elevator Co., 933 N.E.2d 140, 150-51 (Mass. App. Ct. 2010).
The court must weigh all the Restatement factors to
determine the proper law to apply.
Several factors other than the place of injury tip the
balance in favor of Massachusetts law.
First, Defendant is
a Massachusetts resident and an American citizen.
Plaintiff
is not asking the court to apply a law that is foreign to
Defendant, but rather the rules prevailing in his home
country and Commonwealth.
Second, as noted previously,
Plaintiff alleges that much of the actionable conduct
occurred in Massachusetts.
On the civil conspiracy claim particularly, a powerful,
independent consideration supports application of
Massachusetts law.
Plaintiff, as Defendant concedes, would
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have no forum for this claim in Uganda.
Ugandan law
apparently does not recognize a cause of action for civil
conspiracy.
(Dkt. No. 33, Def.’s Mem. 69.)
In the absence
of any remedy for Plaintiff in Uganda, the interest of the
Commonwealth of Massachusetts in adjudicating Plaintiff’s
civil conspiracy claim, recognized under its law, becomes
more prominent.
As the Supreme Judicial Court has
recognized, the state has an interest in maintaining a cause
of action for this type of civil conspiracy which ensures
that “influence and power” are not combined to interfere
with individual rights.
366, 370 (Mass. 1922).
See Willett v. Herrick, 136 N.E.
This is particularly true when a
substantial part of the conduct supporting the conspiracy is
alleged to have occurred within the Commonwealth.
Problems in applying Ugandan law also plague the
adjudication of the negligence claim, not because no Ugandan
law is applicable, as with the civil conspiracy claims, but
because the Ugandan law is unclear.
One of the factors the
court can consider in determining the proper choice of law
is the “ease in the determination and application of the law
to be applied.”
Restatement (Second) of Conflict of Laws §
-69-
6.
For this reason, the party seeking to apply foreign law,
here Defendant, must outline the substance of that law with
reasonable certainty.
See In re Avantel, S.A., 343 F.3d
311, 321-22 (5th Cir. 2003); cf. Carey v. Bahama Cruise
Lines, 864 F.2d 201, 205 (1st Cir. 1988) (holding that
parties who fail to give the court requisite notice of
foreign law have waived their right to have foreign law
applied).
Defendant has done little to meet that burden here.
In
the one paragraph in his memorandum describing Ugandan
negligence law, Defendant notes only that “Uganda law may
recognize traditional negligence as a cause of action” but
that there is no indication that any “novel duty of care
principles apply.”
(Dkt. No. 33, Def.’s Mem. 70.)
Because
Defendant has not described the substance of Ugandan
negligence law in any detail, the court cannot take the
first step in any choice of laws analysis; it cannot
determine whether any actual conflict exists between the
laws.
See Cohen v. McDonnell Douglas Corp., 450 N.E.2d 581,
584 n.7 (Mass. 1983).
In sum, although arguments exist on both sides, the
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functional choice of law approach counsels applying
Massachusetts law to Counts IV and V.
This conclusion
leaves Defendant’s arguments regarding statute of
limitations and failure to state a claim.
The discussion
below will address these contentions as they apply, first,
to civil conspiracy and then to negligence.
2.
Civil Conspiracy.
a.
Statute of Limitations.
Massachusetts applies a three-year statute of
limitations to civil conspiracy claims.
Mass. Gen. Laws ch.
260, § 2A; Pagliuca v. City of Boston, 626 N.E.2d 625, 62728 (Mass. App. Ct. 1994).
Defendant argues that the
limitations period begins to run with the first overt act.
However, this accrual rule only applies to federal and state
statutory civil rights claims, which are not asserted here.
Pagliuca, 626 N.E.2d at 627-28 (distinguishing between the
time-of-first-wrongful-act standard applicable to federal
and state civil rights statutes and time-of-injury standard
applicable to common law civil conspiracy).
For a common law civil conspiracy claim, the cause of
action accrues at the time the plaintiff is injured, or when
-71-
he discovers or reasonably should have discovered the cause
of the injury.
Genereux, 577 F.3d at 359-63; Pagliuca, 626
N.E.2d at 627-28.
14, 2012.
Plaintiff filed its complaint on March
To obtain dismissal of a complaint based on the
statute of limitations, an affirmative defense, Defendant
must point to sufficient facts offered in the complaint, or
in other allowable sources of information, to show with
certitude that Plaintiff knew or could have reasonably
discovered the source of its injury before March 14, 2009.
Cf. Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324
(1st Cir. 2008); see also LaChapelle v. Berkshire Life Ins.
Co., 142 F.3d 507, 509 (1st Cir. 1998) (noting that “a
motion to dismiss based on a limitations defense is entirely
appropriate when the pleader's allegations leave no doubt
that an asserted claim is time-barred”).
To prevail on his statute of limitations affirmative
defense, Defendant must show that Plaintiff had “(1)
knowledge or sufficient notice that she was harmed and (2)
knowledge or sufficient notice of what the cause of the harm
was.”
1990).
Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 742 (Mass.
While Plaintiff was undoubtedly aware that some
-72-
injuries occurred prior to 2009, Defendant has not
adequately shown that Plaintiff had adequate notice before
March 14, 2009, that Defendant contributed to these harms.
As Plaintiff has noted in the Amended Complaint, Defendant
did not publicly acknowledge his pivotal role in the antiLGBTI efforts in Uganda until after the March 2009
conference.
Plaintiff has also alleged several harmful incidents
that occurred within the last three years.
The most recent
incidents, including the deliberately intimidating, mass
disclosures of the identities of LGBTI peoples, as well as
the arrests and raids targeted at Plaintiff and its
activities, all occurred after March 2009.
Given these
allegations, any assessment of the statute of limitations
defense must await full discovery and possibly trial.
b.
Failure to State a Claim.
Massachusetts recognizes two types of civil conspiracy.
The more typical kind is akin to a theory of joint liability
in tort.
Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d
1546, 1564 (1st Cir. 1994).
However, Plaintiff argues that
the second, more exceptional, type of civil conspiracy
-73-
applies to Defendant.
With the second type, a plaintiff
need not allege an underlying tort, because the mere force
of numbers acting in unison to injure a plaintiff
constitutes a wrong.
243 (Mass. 1943).
Weiner v. Lowenstein, 51 N.E.2d 241,
However, a plaintiff must show “that
there was some peculiar power of coercion” used by a
combination of individuals on the plaintiff “which any
individual [alone,] standing in a like relation to the
plaintiff would not have had.”
DesLauries v. Shea, 13
N.E.2d 932, 935 (Mass. 1938) (internal quotation omitted).
In other words, the injury to a plaintiff must be the
result of the combination of the defendants and not just the
product of actions taken by more than one individual.
In
one of the few successful civil conspiracy actions of this
sort, the Massachusetts Supreme Judicial Court held that the
plaintiffs had properly pled the claim when they alleged
that the defendants had worked together to manipulate the
plaintiffs’ business holdings to acquire certain obligations
for themselves.
Willett, 136 N.E. at 368-70.
None of the
defendants could have accomplished the injurious result by
themselves.
Additionally, even if each of the individual
-74-
actions were benign, the defendants were able to use their
combined power and influence to destroy the plaintiffs’
credit and holdings.
Id.
In successful claims offered under this theory, the
plaintiff has shown that defendants had a “peculiar
commanding influence” either through some type of unique
power or fiduciary relationship or even “mere numbers acting
simultaneously” that injured a plaintiff and lacked “an
excuse or justification.”
Johnson v. East Boston Savings
Bank, 195 N.E. 727, 729-30 (Mass. 1930).
In Johnson, for
example, it was not enough to allege that several board
members had worked together to defame the plaintiff after
his termination.
The court held that the reputational
import of termination was the same whether it was done by a
board with many members or by one person.
at 730.
Johnson, 195 N.E.
The court must determine here if Plaintiff has
alleged that there was “added force due to combination”;
that is, that the injury is greater specifically because of
the combined force.
Johnson, 195 N.E. at 730.
One decision has pointed out that the most common form
of this kind of conspiracy “is to be found in the combined
-75-
action of groups of employers or employees, where through
the power of combination pressure is created and results
brought about different in kind from anything that could
have been accomplished by separate individuals.”
Fleming v.
Dane, 22 N.E.2d 609, 611 (Mass. 1939).
Defendant argues that this sort of civil conspiracy is
limited to the kind of direct economic coercion described in
Fleming.
It is true that some sort of economic coercion is
typically the goal of this type of civil conspiracy.
See
Mass. Laborers’ Health & Welfare Fund v. Philip Morris,
Inc., 62 F. Supp. 2d 236, 244 (D. Mass. 1999).
At the same
time, nothing in the case law suggests that a plaintiff is
limited to pleading purely economic coercion.
Participation
in the kind of widespread, systematic campaign alleged in
the Amended Complaint appears to fall within the possible
boundaries of this cause of action.
Alternatively, Defendant argues that Plaintiff has not
adequately alleged that the coercive force exhibited by the
conspiracy was “peculiarly focused against” Plaintiff.
Mass. Laborers’, 62 F. Supp. 2d at 245.
This contention
flies in the face of the allegations of the Amended
-76-
See
Complaint, which charges that Defendant and his coconspirators took actions that deliberately singled out
Plaintiff and its members for persecution.
If the Amended
Complaint is accepted, the public in general was never the
target; Plaintiff and the LGBTI community in Uganda were.
This conspiracy-based coercion obviously had far more power
than anything any one individual could have wielded,
particularly in light of coordinated governmental and media
initiatives associated with the conspiracy.
At this motion
to dismiss phase, Plaintiff’s Amended Complaint has
sufficiently alleged that Defendant and his co-conspirators
were exploiting a “peculiar coercive power” with the goal of
injuring Plaintiff and its members.
3.
Negligence.
a.
Statute of Limitations.
Massachusetts also applies a three-year statute of
limitations to negligence claims.
Mass. Gen. Laws ch. 260,
§ 2A; Genereux v. Am. Beryllia Corp., 577 F.3d 350, 359 (1st
Cir. 2009) (citing Olsen v. Bell Tel. Labs, Inc., 445 N.E.2d
609 (Mass. 1983)).
Like the civil conspiracy claim, this
cause of action accrues at the time the plaintiff is
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injured, or reasonably discovers the cause of an injury.
Genereux, 577 F.3d at 359-63; John Beaudette, Inc. v. Sentry
Ins. A Mut. Co., 94 F. Supp. 2d 77, 108 (D. Mass. 1999).
As
discussed in the civil conspiracy section, the Amended
Complaint sets out that Plaintiff has been injured in the
last three years and may not have had sufficient notice of
Defendant’s involvement in the earlier alleged injurious
actions until three years before the filing of the
complaint.
The facts of record are insufficient to permit
the court to allow the motion to dismiss based on this
affirmative defense at this stage.
b.
Failure to State a Claim.
Defendant argues that there is no duty of care to avoid
creating a “virulently hostile environment.”
(Dkt. No. 33,
Def.’s Mem. 70 (quoting Dkt. No. 27, Am. Compl. ¶ 258).)
This argument certainly has force, and the state law
negligence claim appears to be substantively the most
fragile of Plaintiff’s asserted causes of action.
It will
be difficult for Plaintiff to assemble facts during
discovery to justify a finding of liability based on the
negligent creation of a “dangerous situation.”
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(Dkt. No.
27, Am. Compl.¶ 259.)
Nevertheless, for now, the Amended
Complaint has offered the standard articulation of a
negligence claim, alleging that Defendant failed to act with
reasonable care, with resulting harm to Plaintiff.
Onofrio
v. Dep’t of Mental Health, 562 N.E.2d 1341, 1344-45 (Mass.
1990).
The protection of free speech set forth in the First
Amendment may make this count particularly difficult to
defend at the summary judgment stage.
That, however, is a
decision for another day.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motions to
dismiss (Dkt. Nos. 21 and 30) are hereby DENIED.
The case
is hereby referred to Magistrate Judge Kenneth P. Neiman for
a pretrial scheduling conference pursuant to Fed. R. Civ. P.
16.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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