Doe v. Exxon Mobil Corp.

69 F.Supp.3d 75

John Doe I, et al., Plaintiffs

v.Exxon Mobil Corporation, et al., Defendants.

John Doe VIII, et al., Plaintiffs

v.Exxon Mobil Corporation, et al., Defendants.

Civil No. 01–1357RCL

Civil No. 07–1022RCL

United States District Court, District of Columbia.

Signed September 23, 2014

Agnieszka M. Fryszman, Joseph M. Sellers, Kathleen M. Konopka, Cohen Milstein Sellers & Toll PLLC, Terry P. Collingsworth, Conrad & Scherer, LLP, Maureen E. McOwen, Consumer Financial Protection Bureau, Tarek Farouk Maassarani, Jerimiah's Circle of Friends, Washington, DC, Charles J. Ogletree, Jr., Charles J. Ogletree Consulting, Cambridge, MA, William R. Scherer, Conrad & Scherer LLP, Fort Lauderdale, FL, for Plaintiff.

Alex Young K. Oh, Craig Aaron Benson, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Martin J. Weinstein, Robert J. Meyer, Willkie Farr & Gallagher, LLP, Srikanth Srinivasan, Walter E. Dellinger, III, O'Melveny & Meyers LLP, Washington, DC, Patrick J. Conlon, Exxon Mobil Corporation, Houston, TX, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Today, the Court disposes of a number of pending motions in two separate but closely related cases, John Doe I, et al. v. Exxon Mobil Corp., et al., Civil No. 01–1357 (“Doe I ”) and John Doe VIII, et al. v. Exxon Mobil Corp., et al., Civil No. 07–1022 (“Doe VIII ”). These cases arise from injuries allegedly inflicted upon plaintiffs by Indonesian soldiers employed by defendants to provide security at a natural gas production facility in Indonesia. Plaintiffs have brought claims arising under Indonesian tort law in both suits and under the Alien Tort Statute in Doe I. Before the Court are defendants' motion to dismiss; plaintiffs' motion for leave to file surreply in opposition thereto; and the parties' competing opposed motions to modify or reconsider the Court's September 18, 2013 scheduling order.

For the following reasons and after consideration of the parties' briefing, the relevant facts, and the applicable law, the Court will GRANT IN PART AND DENY IN PART defendants' motion to dismiss, GRANT plaintiffs' motion for leave to file surreply in opposition to defendants' motion to dismiss, GRANT IN PART AND DENY IN PART plaintiffs' motion to modify the Court's scheduling order, and DENY the defendants' motion for reconsideration of the Court's scheduling order.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background¹

This litigation arises from events occurring in the Aceh Province of Indonesia in the years 2000, 2001, and 2004. Plaintiffs, collectively a group of 15 Indonesian citizens from Aceh, allege various injuries at the hands of Indonesian soldiers hired to provide security services at the Arun natural gas field in Aceh. Defendants are four related corporations: Exxon Mobil Corp. (“EMC”), Mobil Corp. (“MC”), ExxonMobil Oil Corp. (“EMOC”), and ExxonMobil Oil Indonesia, Inc. (“EMOI”) (collectively, “Exxon”). MC, EMOC, and EMOI are all wholly owned subsidiaries of EMC. Compl. For Equitable Relief and Damages ¶¶ 13–14, 16, Doe VIII, ECF No. 4 (“Doe VIII Compl.”).

The following factual summary assumes the truth of all of plaintiffs' factual allegations, as the Court must do when evaluating a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pursuant to an exclusivity agreement with the Government of Indonesia (“GOI”), Exxon began developing the Arun natural gas field in the Aceh province of Indonesia in the early 1970s. Doe VIII Compl. ¶ 29. During this period, Exxon retained members of the Indonesian military to provide security at its facilities at Arun. Id. ¶ 39. These soldiers committed various unlawful acts against plaintiffs in Aceh, causing injuries to plaintiffs and, in some cases, their death. See generally First Am. Compl. For Equitable Relief and Damages ¶¶ 67–77, Doe I, ECF No. 123–1 (“Doe I First Am. Compl.”); Doe VIII Compl. ¶¶ 60–63. For example, plaintiffs allege that John Doe I was shot in the wrist by Exxon security personnel, who then threw a hand grenade at him and “left him for dead.” Doe I, First Am. Compl. ¶ 67. He was later killed during a raid on his village. Id. Jane Doe plaintiffs II, III, and IV bring wrongful death claims arising from the murder or disappearance of their husbands, themselves John Doe plaintiffs. Doe I, First Am. Compl. ¶¶ 75–77.

Plaintiffs allege that these acts were all committed in the scope of the soldiers' employment as security personnel.

Doe VIII Compl. ¶ 43. They also set forth in their complaints that Exxon had the ability to control the actions of these soldiers by such methods as conditioning payment on provision of specific security services, making decisions about placement of bases, engaging in strategic mission planning, and deciding on deployment zones. Id. ¶ 47. Plaintiffs further assert that Exxon provided material support to the security personnel by, for example, constructing facilities, providing funding for weapons, providing supplies and equipment, and paying for the services of consultants in training and equipping the personnel. Id.

B. Procedural History

The first group of 11 plaintiffs filed suit in 2001. Doe I initially alleged the following causes of action: (a) claims arising under the Alien Tort Statute (“ATS”) for murder, genocide, torture, kidnapping, and crimes against humanity; (b) claims arising under the Torture Victim Protection Act (“TVPA”) for torture and extrajudicial killing; (c) a claim for Violence Against Women; and (d) various non-federal tort claims. Compl. For Equitable Relief and Damages ¶¶ 63–126, Doe I, ECF No. 3 (“Doe I Original Compl.”).

The defendants moved to dismiss and Judge Oberdorfer, then presiding over Doe I, granted in part and denied in part. Doe I v. Exxon Mobil Corp., 393 F.Supp.2d 20, 21–22 (D.D.C.2005). The court dismissed plaintiffs' federal statutory claims, both those arising under the ATS and the TVPA. Id. at 24–28. The court also dismissed the claim for Violence Against Women. Id. at 28. Plaintiffs' state law claims were allowed to proceed, except as to then-defendant PT Aran LNG Co., a company that was majority owned by Pertamina, a GOI-owned oil and gas company. Id. (concluding that “[a]djudicating the liability of an entity owned by the Indonesian government would create a significant risk of interfering in Indonesian affairs and thus U.S. foreign policy concerns”). The court subsequently determined that D.C. and Delaware law applied to plaintiffs' non-federal tort claims. Doe I v. Exxon Mobil Corp., 573 F.Supp.2d 16, 22 (D.D.C.2008).

In June 2007, a different set of anonymous plaintiffs filed suit in this Court, alleging only non-federal claims. See Doe VIII Compl. ¶¶ 70–110. Doe I was reassigned here shortly thereafter. Doe VIII v. Exxon Mobil Corp., 658 F.Supp.2d 131, 132 (D.D.C.2009), aff'd in part, rev'd in part, 654 F.3d 11 (D.C.Cir.2011), vacated in part, 527 Fed.Appx. 7 (D.C.Cir.2013). The Court dismissed both suits, concluding that plaintiffs, as non-resident aliens, lacked standing to sue in United States courts. Id. at 135 ; Order, Sept. 30, 2009, Doe I, ECF No. 412. In light of this threshold determination, the Court declined to reach any of the defendants' other asserted grounds for dismissal. Doe VIII, 658 F.Supp.2d at 133.

The Court of Appeals subsequently reversed in part and affirmed in part. While affirming dismissal of the TVPA claim, the Court held that the Doe I plaintiffs' ATS claims could proceed on an aiding and abetting theory of liability. Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 15 (D.C.Cir.2011), vacated in part, 527 Fed.Appx. 7 (D.C.Cir.2013). As to the nonfederal claims, it reversed this Court, holding that plaintiffs had standing and that their claims were governed by Indonesian law. Id. at 15, 70. It also expressly remanded the question of whether EMOI's presence defeated diversity jurisdiction and whether EMOI could be dismissed to preserve jurisdiction in Doe VIII. Id. at 71.

The Court of Appeals then, sua sponte, stayed proceedings while the Supreme Court considered the cases of Kiobel v. Royal Dutch Petroleum Co. and Mohamad v. Rajoub. Doe VIII v. Exxon Mobil Corp., USCA Case No. 09–7125, Order, Nov. 14, 2011, ECF No. 1341654. It subsequently vacated its order as to the ATS claims, remanding the issue to this court for consideration of the ATS claims in light of the Supreme Court's holding in Kiobel and the International Criminal Tribunal for the Former Yugoslavia's holding in Prosecutor v. Perišic. Doe VIII v. Exxon Mobil Corp., 527 Fed.Appx. 7 (D.C.Cir.2013). The court also affirmed dismissal of the TVPA claims and reversed dismissal of the non-federal claims, expressly preserving Parts IV and VI of its prior opinion. Id.

II. PLAINTIFFS' MOTION FOR LEAVE TO FILE SURREPLY

Before ruling on Exxon's motion to dismiss, the Court must determine whether to grant leave to plaintiffs to file a surreply in opposition to it. As a general rule, surreplies are disfavored. Kifafi v. Hilton Hotels Retirement Plan, 736 F.Supp.2d 64, 69 (D.D.C.2010). Nonetheless, leave to file is “routinely” granted “when a party is unable to contest matters presented to the court for the first time in the last scheduled pleading.” Ben–Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.Cir.2003) (internal quotation marks omitted). The decision to grant or deny leave is “committed to the sound discretion of the Court.” Lu v. Lezell, Civil Action No. 11–1815(JEB), 45 F.Supp.3d 86, 91, 2014 WL 2199314, at *2 (D.D.C. May 27, 2014). A district court should consider “whether the movant's reply in fact raises arguments or issues for the first time, whether the nonmovant's proposed surreply would be helpful to the resolution of the pending motion, and whether the movant would be unduly prejudiced were leave to be granted.” Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C.2012).

The Court is...