Adhikari et al v. KBR, Inc. et al

Filing 156

MEMORANDUM AND ORDER granting 139 Opposed MOTION for Continuance of Summary Judgment (Dkt. 136). Defendants Motions for Summary Judgment are hereby STAYED pending further discovery.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)

Case 4:16-cv-02478 Document 156 Filed on 02/06/20 in TXSD Page 1 of 9
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KRISHNA PRASAD ADHIKARI, et al.,
Plaintiff,
VS.
KBR INC., et al.,
Defendants.

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February 06, 2020
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-cv-2478

MEMORANDUM AND ORDER
Before the Court are several motions: (1) Defendants’ Motion for Summary Judgment
Against Plaintiffs’ Time-Barred Claims (Doc. No. 125), (2) Defendants’ Motion for Summary
Judgment Against Plaintiffs’ Alien Tort Statute Claims (Doc. No. 136), and (3) Plaintiffs’ Motion
for Continuance of Summary Judgment (Doc. No. 139). After considering the motions, the
responses thereto, and all applicable law, the Court determines that Plaintiffs’ Motion for
Continuance of Summary Judgment must be GRANTED. The Court accordingly stays
consideration of Defendants’ motions for summary judgment pending further discovery.1
I.

BACKGROUND
This case involves five Nepali men (collectively, “Plaintiffs”) who allege that they were

promised work in Jordan but were instead trafficked to work for KBR Inc. and its affiliates
(collectively “Defendants”) on U.S. military bases in Iraq. KBR Inc. is a U.S. defense contractor
that, during the relevant period, provided logistical support to the U.S. Army in Iraq pursuant to
LOGCAP III contracts. (Doc. No. 1 at ¶17). Under these contracts, KBR. Inc. provided logistical

This Order does not address the following pending motions: (1) Defendants’ Motion to Strike Plaintiffs’
Confidentiality Designations (Doc. No. 127), (2) Plaintiffs’ Motion for Leave to File Excess Pages (Doc. No. 141),
and (3) Plaintiffs’ Motion to Amend Complaint (Doc. No. 154).
1

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support such as transportation, dining services, facilities management, maintenance, and living
accommodations for United States and coalition forces. Id.
Plaintiffs in this case were taken to and worked at Camp Fallujah and Al Taqaddum
military bases in 2004. They remained there for one to three years. While at the bases, they worked
under the supervision of individuals employed by KBR, Inc. and Daoud & Partners, a
subcontractor for KBR, Inc. on KBR’s LOGCAP III contract who is not named as a defendant in
this action. Among other duties, Daoud & Partners oversaw the “recruitment and provision of
laborers.” (Doc. No. 1 at ¶31).
In 2015, Plaintiffs brought this suit against Defendants (“Adhikari II”), asserting claims
under the Trafficking Victims Protection Reauthorization Act (the “TVPRA”), the Alien Tort
Statute (the “ATS”), and Iraqi law, as well as Texas state law claims of false imprisonment,
negligence, negligent hiring, negligent supervision, and intentional infliction of emotional distress
(“IIED”). (Doc. No. 1). The claims in this case are similar, though not identical, to the claims
brought in Adhikari v. Daoud & Partners, 4:09-CV-1237 (“Adhikari I”).2 As in the instant case,
Adhikari I involved the claims of Nepali men who had been trafficked to work on a U.S. military
base in Iraq after being promised work in Jordan. Unlike the instant case, however, Adhikari I
involved different plaintiffs and did not include aiding and abetting claims under the ATS. In
Adhikari I, this Court granted summary judgment to the defendants on all claims. See Adhikari v.
Daoud & Partners et al., 994 F. Supp. 2d 831 (S.D. Tex. 2014); see also Adhikari v. Daoud &
Partners et al., 95 F. Supp. 3d 1013 (S.D. Tex. 2015). The Fifth Circuit affirmed. Adhikari v.
Kellogg, Brown & Root, Inc., 845 F.3d 184, 181 (5th Cir. 2017).

2

Plaintiff Krishna Prasad Adhikari is not related to the plaintiff in Adhikari I.

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In the instant case, Defendants in 2016 moved to dismiss all claims. (Doc. No. 17). The
Court dismissed Plaintiffs’ TVPRA and IIED claims, but allowed Plaintiffs’ ATS aiding and
abetting claims, Iraq law claims, and remaining Texas state law claims to proceed. Adhikari v.
KBR Inc., 2017 WL 4237923 (S.D. Tex. Sept. 25, 2017) (hereinafter “Adhikari II MTD”).
Defendants now move for summary judgment seeking to dismiss Plaintiffs’ ATStrafficking claims, state law claims, and Iraq law claims as time-barred. (Doc. No 125). Defendants
separately seek summary judgment against Plaintiffs’ ATS-forced labor claims on the merits.
(Doc. No. 136). Plaintiffs urge the Court to stay its consideration of these summary judgment
motions under Rule 56(d) pending further discovery. (Doc. No. 139). Because Plaintiffs’ Rule
56(d) motion directly impacts the Court’s consideration of the pending summary judgment
motions, it is to this motion that the Court first turns its attention here.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by affidavit

or declaration that, for specified reasons, it cannot present facts essential to justify its opposition,”
courts may “defer considering the motion or deny it” or “allow time to obtain affidavits or
declarations or to take discovery.” Fed. R. Civ. P. 56(d). The Fifth Circuit has explained that the
purpose of this rule “is to provide non-movants with a much needed tool to keep open the doors
of discovery in order to adequately combat a summary judgment motion.” Six Flags, Inc. v.
Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009) (quoting Wichita Falls
Office Assocs. v. Banc One Corp. et a.l, 978 F.2d 915, 918 (5th Cir. 1992)). Accordingly, “Rule
56([d]) motions are generally favored and should be liberally granted.” Beattie v. Madison Cty.
Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).
However, a nonmovant “may not simply rely on vague assertions that additional discovery
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will produce needed, but unspecified, facts.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)
(quoting SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Rather, “a request
to stay summary judgment under Rule 56([d]) must ‘set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.’” Id. (quoting C.B. Trucky, Inc. v. Waste Mgmt. Inc., 137 F.3d 41, 44 (1st Cir.
1998)). “If it appears that further discovery will not provide evidence creating a genuine issue of
material fact, the district court may grant summary judgment.” Id. (quoting Access Telecom, Inc.
v. MCI Telecomms. Corp. et al., 197 F.3d 694, 720 (5th Cir. 1999)). In short, the nonmovant must
show “(1) why she needs additional discovery and (2) how that discovery will create a genuine
issue of material fact.” Beattie, 254 F.3d at 606. Lack of diligence in pursuing discovery may
preclude relief under Rule 56(d). Beattie, 254 F.3d at 606.
III.

ANALYSIS
Plaintiffs seek a continuance or denial of Defendants’ motions for summary judgment

pursuant to Rule 56(d) on the basis that discovery is incomplete and further discovery will produce
evidence material to Plaintiffs’ claims. (Doc. No. 139). Defendants counter that Plaintiffs have not
articulated a need for further discovery and failed diligently to pursue discovery. For the reasons
that follow, the Court agrees with Plaintiffs.
Plaintiffs identify several facts relating to Defendants’ domestic knowledge that they
expect to uncover if granted further time for discovery. First, Plaintiffs seek documents related to
KBR’s Houston-based press office’s response to media inquiries about human trafficking and
related allegations. According to Plaintiffs, existing evidence indicates that KBR’s press office
frequently received inquiries regarding its subcontractors’ alleged exploitation of trafficked labor,
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and thus “press documents such as drafts and notes could plausibly shed further light on the extent
to which KBR’s domestic managers understood the problem and their efforts to cover it up.” (Doc.
No. 150 at 9). Second, Plaintiffs seek more time to depose “former employees of KBR responsible
for third-party national labor on KBR’s LOGCAP III contract,” some of whom they have
previously identified.3 (Doc. No. 109 at ¶9(D)). According to Plaintiffs, “abuses by Daoud . . .
were frequently reported to KBR’s domestic managers,” and thus depositions of these managers
“could plausibly reveal they knew Daoud was exploiting trafficking labor yet continued to approve
and supervise those contracts.” (Doc. No. 150 at 9).
Considering these discovery requests, the Court is persuaded that Plaintiffs have satisfied
the first requirement for obtaining Rule 56(d) relief: setting forth a plausible basis for believing
that specified facts are obtainable and necessary. See Raby, 600 F.3d at 561. Plaintiffs have
identified specific facts pertaining to Defendants’ domestic knowledge about and potential
concealment of trafficking activity that they seek to uncover through non-ESI document and
deposition discovery. And while Defendants have not articulated any reason to believe that such
evidence may not be obtainable, Plaintiffs persuasively explain why extant discovery is
insufficient. According to Plaintiffs, only 228 of the 2,870 documents Defendants have produced
to date are responsive to Plaintiffs’ requests for information regarding any knowledge that
Defendants’ U.S.-based employees may have had regarding the alleged trafficking and forced
labor scheme. (Doc. No. 139 at 5). Many of the other documents, Plaintiffs contend, are duplicative
of site reports previously produced in Adhikari I or are internet café sign-in sheets that do not relate
to any of the Plaintiffs. Plaintiffs have sufficiently articulated why they need additional discovery.
Beattie, 254 F.3d at 606.

3

These individuals include Godfrey Barrington, Charlie Carr, William Jonas, and Jill Pettibone. (Doc. No.
109 at ¶9(D)).

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Plaintiffs similarly satisfy their second burden of demonstrating that such facts, if adduced,
will create a question of material fact impacting both of Defendants’ pending motions for summary
judgment. See Beattie, 254 F.3d at 606. As to Defendants’ motion for summary judgment against
Plaintiffs’ ATS-forced labor claims, the prospective evidence is material to whether Defendants’
domestic managers in fact aided and abetted forced labor. As this Court previously held in Adhikari
II MTD, to prove liability for aiding and abetting under the ATS, Plaintiffs must show the requisite
actus reus and mens rea, where the “proper mens rea standard for aiding and abetting liability
under the ATS is knowledge.” 2017 WL 4237923, at 6-7 (emphasis added). And as the Supreme
Court explained in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), only claims against
domestic conduct may lie under the ATS due to the presumption against extraterritoriality.
Plaintiffs’ requested evidence for documents from the Houston-based press office and depositions
of KBR domestic managers speaks directly to this domestic knowledge requirement.
Next, as to Defendants’ motion for summary judgment against Plaintiffs’ time-barred
claims, the prospective evidence is material to Plaintiffs’ entitlement to equitable tolling. As this
Court previously held in Adhikari II MTD, Plaintiffs’ claims under Texas state law and Iraq law
are time-barred and survive only if equitable tolling applies. 2017 WL 4237923, at *9, 11. And
while the Court did not find Plaintiffs’ ATS claims to be time-barred, id. at *8, Defendants in their
motion for summary judgment contend that Plaintiffs’ ATS claims for human trafficking are
untimely and thus survive only if they are equitably tolled. Courts apply equitable tolling
“principally where the plaintiff is actively misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his rights.” Adhikari v. Kellogg, Brown &
Root, Inc., 845 F.3d 184, 207 (5th Cir. 2017) (quoting United States v. Patterson, 211 F.3d 927,
930 (5th Cir. 2000)). Here, Plaintiffs seek documents from the Houston-based press office to
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demonstrate that KBR’s domestic managers were knowledgeable about the alleged trafficking and
forced labor violations and yet sought to “cover it up.” (Doc. No. 150 at 9). Such evidence of
concealment is directly relevant to whether Plaintiffs are entitled to equitable tolling as to their
time-barred claims. Accordingly, Plaintiffs have demonstrated that the requested evidence, if
adduced, would create genuine questions of material fact.
The materiality of Plaintiffs’ specific, requested discovery distinguishes the instant case
from cases where courts have denied Rule 56(d) motions and upon which Defendants rely. In Six
Flags, Inc. v. Westchester Surplus Lines Ins. Co., for instance, the plaintiff sought more time to
obtain extrinsic evidence as to whether the parties intended for the insurance policy in question to
provide full coverage for loss or damage from a hurricane. 565 F.3d 948, 963 (5th Cir. 2009). The
Fifth Circuit affirmed the denial of the plaintiff’s motion because, even if plaintiffs obtained such
evidence, it could not create a genuine issue of material fact where the insurance policy itself was
unambiguous. Id. In Raby v. Livingston, a death row defendant challenging the constitutionality of
Texas’s lethal injection protocol sought more time for discovery on instances when an execution
encountered complications. See 600 F.3d at 561-62. The Fifth Circuit affirmed denial of the Rule
56(d) motion because an “isolated mishap alone does not give rise to an Eighth Amendment
violation,” and Raby had not indicated how any fact he hoped to discover would show how Texas’s
method of lethal injection inherently imposed a demonstrated risk of severe pain as required to
establish a constitutional violation. Id. at 562. By contrast, Plaintiffs here have identified KBR
domestic managers to depose and potential documents that are material to Defendants’ domestic
knowledge of the misconduct, which Plaintiffs must prove to succeed in their ATS-aiding and
abetting claim, and Defendants’ alleged concealment of the misconduct, which is central to the
survival of Plaintiffs’ remaining claims. The Court is thus satisfied that Plaintiffs have set forth a
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plausible basis for believing that specified facts exist and, if adduced, would influence the outcome
of the pending motions for summary judgment. Raby, 600 F.3d at 561.
Having determined that further discovery may plausibly produce specific, material
evidence, the Court now turns to Defendants’ contention that Plaintiffs cannot be entitled to a
continuance due to their failure to diligently pursue discovery. In considering Plaintiffs’ diligence,
the Court is informed by the unusual circumstances surrounding past discovery efforts in this case.
By agreement of the parties, there is no discovery deadline. See (Doc. No. 109 at ¶9(A)). This is
because, as Defendants explained in the May 2018 Joint Discovery Plan and at the January 2020
hearing, Defendants had limited access to their document depositories due to a preclearance
requirement the government had imposed on their documents and the government’s delay in
approving Defendants’ clearinghouse. See id. For a period in 2018, Defendants obtained access to
their documents and conducted a search using search terms and nine custodians that they identified.
Due to these external impediments, Plaintiffs did not obtain Defendants’ ESI discovery until July
2019. Even so, the parties remain at loggerheads over Defendants’ designation of privileged
documents and the sufficiency of Defendants’ privilege log. Thus, though this case was filed in
2015, discovery has been prolonged largely for reasons beyond either parties’ control.
Given this context, the Court is unpersuaded by Defendants’ contentions that Plaintiffs
failed to act diligently. While Defendants claim that Plaintiffs failed to respond to Defendants’
repeated attempts to collaboratively identify search terms and custodians beginning in October
2018, the record reflects conflicting accounts of both parties’ failure to fully engage with the other.
See, e.g., (Doc. No. 150 at 4-6). Defendants’ contention that Plaintiffs have been dilatory in seeking
depositions similarly misses the mark. Documents are often central to shaping depositions and
impeaching testimony; it would disturb notions of fairness indeed to fault parties for waiting to
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depose witnesses until they have had the benefit of reviewing relevant documents. Cf., Nutramax
Labs., Inc. v. Twin Labs. Inc. et al., 183 F.R.D. 458, 461 (D. Md. 1998) (“Recognizing the
importance of documents in conducting effective deposition discovery, counsel frequently
postpone, as was done in this case, deposition discovery until document production has taken
place.”). This is particularly true where, as here, ESI discovery was not produced until July 2019
and Plaintiffs indicated in the May 2018 Joint Discovery plan that they would wait to move forward
with depositions until Defendants produced documents related to identified custodians. See (Doc.
No. 109 at ¶9(D)) (“Until [D]efendants are able to produce documents from these custodians . . .
the Plaintiffs are currently unable to determine a schedule.”).
Considering these circumstances, and mindful that Rule 56(d) motions are “generally
favored and should be liberally granted,” Beattie, 254 F.3d at 606, the Court hereby grants
Plaintiffs’ motion to stay consideration of Defendants’ motions for summary judgment. The Court
orders that the parties agree on a proposed schedule for remaining document discovery and
depositions.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Rule 56(d) Motion for

Continuance. Defendants’ Motions for Summary Judgment are hereby STAYED pending further
discovery.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 6th of February, 2020.

HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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