court ordered - Center for Justice and Accountability

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Case No. 6:13-cv-1426-Orl-37GJK
This cause is before the Court on the following:
Defendant’s Motion to Dismiss (Doc. 82), filed March 3, 2015; and
Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss (Doc. 84), filed March 20, 2015.
Upon consideration, the Court finds that the Motion is due to be granted in part and denied
in part.
This action arises out of the torture and murder of Victor Jara, a folk singer and
activist supporter of Chilean President Salvador Allende, who was killed during the
military coup that installed General Augusto Pinochet in power in 1973. (Doc. 52, ¶ 1.) 1
General Pinochet’s Regime and Human Rights Abuses
On September 11, 1973, the Chilean Army, led by General Pinochet, staged a
The facts are obtained from Plaintiffs’ Second Amended Complaint (Doc. 63) and
are taken as true solely for the Court’s consideration of Defendant’s Motion to Dismiss
(Doc. 82).
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coup d’état against the democratically elected government of President Allende and
appointed General Pinochet as Commander-in-Chief. (Doc. 63 ¶¶ 18–19.) The Chilean
Army arrested individuals perceived to be supporters of or sympathizers with the Allende
government, and it “initiated a systematic crackdown on all opposition and dissent
throughout the country.” (Id. ¶¶ 20–21.)
On the first day of the coup, troops from the Chilean Army attacked a university
and detained hundreds of professors, students, and administrators—among them, Victor
Jara 2—in a stadium (“Stadium”), which “served as one of the first mass detention centers
of General Pinochet’s military regime.” (Id. ¶¶ 22–24.) On September 12, 1973,
Lieutenant Pedro Pablo Barrientos Nunez (“Defendant”) and his soldiers were deployed
to the mass detention site at the Stadium where they would “continue to arbitrarily detain
civilians, including Victor Jara.” (Id. ¶¶ 26–27.) The Chilean Army detained approximately
5,000 civilians at the Stadium, and the soldiers kept a record of each detainee’s name.
(Id. ¶ 24.)
During the detention, members of the Chilean Army “made threats and taunts” to
the detainees. (Id. ¶ 25.) Additionally, “[m]any of the civilians were tortured and subjected
to cruel, inhuman, or degrading treatment based merely on the suspicion of left-leaning
political activism and therefore of being subversive to General Pinochet’s regime.” (Id.)
Victor Jara’s Detention and Death
Victor Jara was first detained at the university. (Id. ¶ 30.) While transporting Jara
to the Stadium, Captain Fernando Polanco Gallardo—a commanding officer in military
intelligence—recognized him “as the well-known folk singer whose popular songs
addressed social inequality and who had supported President Allende’s government,” so
he separated Jara from the group and “beat [him] severely” before transferring him to the
stadium. (Id. ¶ 31.)
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During the first three days of his detention, Victor Jara wrote a poem (which was
later delivered to his wife, Plaintiff Joan Jara, that said: “How hard it is to sing when I must
sing of horror. Horror which I am living, horror which I am dying.” (Id. ¶ 32.) On
September 15, 1973, he was taken to an underground locker room that the Chilean Army
used to “violently interrogate and torture civilians.” (Id. ¶ 33.) “Throughout his detention in
the locker room . . . Victor Jara was in the physical custody of [Defendant], soldiers under
[Defendant’s] command, or other members of the Chilean Army . . . .” (Id. ¶ 34.) He was
also “blindfolded, handcuffed, interrogated, brutally beat, and otherwise tortured” by
soldiers under Defendant’s command. (Id. ¶ 35.)
Eventually, Defendant shot Victor Jara with a pistol in the back of the head at pointblank range during a game of “Russian roulette.” (Id. ¶ 36.) Defendant’s subordinates
then shot Victor Jara’s corpse “at least forty times” (id.) and “ignobly and unceremoniously
discarded [Jara’s body] outside the stadium, along with the bodies of other civilian
prisoners who had been killed by the Chilean Army” (id. ¶ 37).
When a Civil Registry employee, Hector Herrera, recognized Victor Jara’s body
being brought into the morgue on September 18, 1973, he notified Plaintiff Joan Jara,
who later “identified the tortured body of her husband and observed the gunshot wounds
he had sustained.” (Id. ¶ 38.) Joan Jara and her daughters, Plaintiffs Amanda Jara Turner
and Manuela Bunster, buried Victor Jara in secret and then fled for their safety to the
United Kingdom. (Id.)
The Investigations
Five years later, upon Joan Jara’s application to open a criminal investigation into
Victor Jara’s murder on September 8, 1978, the Chilean Criminal Court of First Instance
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initiated a criminal investigation (“1978 Investigation”). (Id. ¶ 39.) After finding insufficient
proof to charge any individual as a principal or accessory to any crime, the court closed
the investigation on August 31, 1982. (Id. ¶ 40.) Plaintiffs allege that the investigation was
frustrated in two ways. First, General Pinochet’s regime remained in power and “had
every incentive to ensure that the scope of the investigation was limited and, whenever
possible, would not result in prosecutions.” (Id.) Second, General Pinochet’s regime
passed an Amnesty Law, which granted amnesty “to all persons who, as principals or
accessories, ha[d] committed criminal offences [sic] during the state of siege between
September 11, 1973 and March 10, 1978, unless they [were] currently on trial or ha[d]
already been convicted.” (Id. ¶ 41.)
In 1990, the people of Chile voted out General Pinochet’s regime (id. ¶ 42), but the
Chilean civilian and military courts “strictly and consistently applied the Amnesty Law”
until General Pinochet was arrested for human rights violations in October of 1998 (id.
¶¶ 42–43). Following his arrest, the Chilean Supreme Court “started limiting the
application of the Amnesty Law and some of the investigations and prosecutions for
human rights violations were allowed to go forward.” (Id. ¶ 44.)
On August 16, 1999, Plaintiffs filed a complaint in the Chile Court of Appeals
against General Pinochet for the aggravated homicide of Victor Jara and the Santiago
Appeals Court initiated a new investigation (“1999 Investigation”). (Id. ¶ 45.) Just over two
years later, the court consolidated the 1978 and 1999 investigations (“Consolidated
Investigation of 2001”). (Id. ¶ 46.) After a temporary closure, the Santiago Court of
Appeals reopened the Consolidated Investigation of 2001 upon request by Plaintiffs.
Finally, in 2009, Jose Adolfo Paredes Marquez, a soldier in the Chilean Military,
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testified that he witnessed Defendant shoot Victor Jara. (Id. ¶ 47.) At the time, Defendant’s
whereabouts were unknown. (Id.) However, in May 2012, Chilevision, a major Chilean
television station, revealed that Defendant was residing in Florida. (Id. ¶ 48.)
The Instant Action
Upon learning of Defendant’s whereabouts, Plaintiffs “promptly initiated the
present action.” 3 (Id.) They assert claims under the Alien Tort Statute (“ATS”) and Torture
Victim Protection Act (“TVPA”). (Id.) Plaintiffs allege, inter alia, that: (1) Defendant was
one of the officers who participated in the establishment of a system of imprisonment,
torture, and execution of suspected leftists and a scheme of human rights abuses of
civilians at the stadium (id. ¶¶ 28, 59); (2) “Defendant was in command of the mass
detention of detainees at the stadium [and] took command and exercised direct control
over” some of the soldiers (id. ¶¶ 29, 54); (3) Defendant was “under a duty to investigate,
prevent, and punish violations of international and Chilean law committed by soldiers
under his command,” which he failed to do (id. ¶ 56); and (4) Defendant ordered his
subordinates to torture Victor Jara and then “personally subjected [him] to the ‘game’ of
Russian roulette, putting [him] in fear for his life” and ultimately killing him (id. ¶ 57–58).
(See also id. ¶¶ 52–67.) Plaintiffs further allege that: (1) Defendant violated international
human rights laws; (2) Defendant’s acts and omissions were “deliberate, intentional,
wanton, malicious, oppressive, and done with a willful and conscious disregard for
Plaintiffs have no other domestic remedy in Chile at this time. Although the
Santiago Court of Appeals also charged Defendant as a direct perpetrator in the killing of
Victor Jara on December 26, 2012, Chilean law prohibits the assessment of civil claim for
damages until the criminal proceeding is complete; moreover, no criminal actions can
proceed because Chilean law does not permit criminal prosecutions in absentia. (Doc. 53
¶ 49.)
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Plaintiffs’ rights and those of their husband and father,” entitling Plaintiffs to punitive
damages; (3) as a direct and proximate result of Defendant’s wrongful killing of Victor
Jara, Plaintiffs “have and will continue to suffer” from their loss; (4) Victor Jara would have
been able to collect damages from Defendant for battery and other torts; and (5) Plaintiffs
suffer mental anguish and emotional distress as a result of Defendant’s unlawful and
outrageous conduct and intentional or reckless infliction of emotional distress. (Id.
¶¶ 62– 67.) Lastly, Plaintiffs allege that they were diligent and persistent in their efforts to
identify those responsible for the death of Victor Jara and that the conditions in Chile over
the past forty years “constitute extraordinary circumstances that justifiably prevented
Plaintiffs from bringing this action and accordingly toll any applicable statute of
limitations.” (Id. ¶¶ 50–51.)
Defendant now moves to dismiss the Second Amended Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the Court does not
have subject matter jurisdiction over the ATS claims and that the TVPA claims are barred
by the statute of limitations. (Doc. 82.) Plaintiffs oppose. (Doc. 84.) The Court held a
hearing on the matter on April 10, 2015, and it is now ripe for the Court’s adjudication.
Rule 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may assert a facial or
factual challenge to the Court’s subject matter jurisdiction. McElmurray v. Consol. Gov.
of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). If the challenge is
facial based on the allegations in the complaint, “‘the plaintiff is left with safeguards similar
to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is
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raised.’ Accordingly, ‘the court must consider the allegations in the plaintiff’s complaint as
true.’” Id. (quoting Williamson v. Tucket, 645 F.2d 404, 412 (5th Cir. 1981)).
Rule 12(b)(6)
If a complaint does not comply with minimum pleading requirements or otherwise
fails to “state a claim to relief that is plausible on its face,” the defendant may seek
dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6). See Ashcroft
v. Iqbal, 556 U.S. 662, 672, 678–79 (2009). When resolving a Rule 12(b)(6) motion, courts
must limit their consideration to the complaint, its attachments, “documents incorporated
into the complaint by reference, and matters of which a court may take judicial notice.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007); e.g., GSW, Inc.
v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993). Courts also must accept all wellpled factual allegations—but not legal conclusions—in the complaint as true. Tellabs,
551 U.S. at 322. After disregarding allegations that “are not entitled to the assumption of
truth,” the court must determine whether the complaint includes “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” See Iqbal, 556 U.S. at 663, 679 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Defendant argues the Court lacks subject matter jurisdiction to hear Plaintiffs’ ATS
claims because all of the alleged conduct occurred in Chile and the Defendant’s current
U.S. citizenship is not sufficient to satisfy the “touch and concern” requirement to displace
the ATS’s presumption against extraterritorial application. (Doc. 82, pp. 3–5.) Plaintiffs
counter that the Defendant’s U.S. citizenship and Florida residency “touch and concern”
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the United States with “sufficient force” to displace the presumption against
extraterritoriality. (Doc. 84, pp. 14–19.) Additionally, Defendant argues that Plaintiffs’
TVPA claims are time-barred because they were brought forty years after Victor Jara’s
death, which is well-over the statute’s express ten-year statute of limitations. (Doc. 82,
pp. 6–13.) Plaintiffs argue their TVPA claims are not time-barred because extraordinary
circumstances warrant equitable tolling of the statute of limitations until 2009. (Doc. 84,
pp. 5–14.) The Court will address each argument in turn.
ATS Claims
The U.S. Supreme Court has held that the ATS, 28 U.S.C. § 1350, does not
generally have extraterritorial application—that is, it does not reach tortious conduct
taking place entirely outside of the United States. Kiobel v. Royal Duth Petroleum Co.,
133 S.Ct. 1659, 1669 (2013). A narrow exception exists for extraterritorial torts that
nevertheless “touch and concern the territory of the United States . . . with sufficient force
to displace the presumption against extraterritorial application.” Id.
Kiobel forecloses all of Plaintiffs’ ATS claims because the tortious conduct took
place entirely outside the United States. See id. Though Kiobel provides for some
possible extraterritorial application of the ATS, the wholly foreign conduct here—torture
of a Chilean citizen in Chile for protesting the overthrow of the Chilean government—
simply does not “touch and concern” the United States with such force as to overcome
the presumption against extraterritoriality. Cf. Mwani v. Laden, 947 F. Supp. 2d 1, 5
(D.D.C. 2013) (distinguishing Kiobel and allowing an ATS claim to proceed where the
conduct occurred outside the United States but touched and concerned it deeply—an
attack on and around a U.S. Embassy that was partially planned in the United States);
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Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 310 (D. Mass. 2013) (holding
that Kiobel’s presumption against extraterritorial application did not apply where the
defendant’s conduct “occurred, in substantial part, within” the United States, including
committing torts in Springfield, Massachusetts).
Plaintiffs’ argument that Defendant’s U.S. citizenship and Florida residency
sufficiently “touch and concern” the United States because they make him unamenable
to suit in any other forum, allowing him to “evade justice” and curtailing the United States’
“strong interest in not providing a safe haven for human rights abusers,” is unpersuasive
for two reasons. First, related to displacing the presumption against extraterritoriality, the
Eleventh Circuit recently held that “although the U.S. citizenship of [a defendant] is
relevant to [its] inquiry, this factor is insufficient to permit jurisdiction on its own.” Doe v.
Drummond Co., Inc., No. 13-15503, 2015 WL 1323122, at *14 (11th Cir. March 25, 2015)
(citing Balaco v. Drummond Co., Inc., 767 F.3d 1229, 1236–37 (11th Cir. 2014)
(concluding that a defendant’s U.S. citizenship is not sufficient to displace the
presumption because this factor alone does not carry the “significant weight” necessary
to “warrant the extraterritorial application of the ATS to situations in which the alleged
relevant conduct occurred abroad”)). Second, Defendant is not evading justice and the
United States is not providing a safe haven to human rights abusers because foreclosing
Plaintiffs’ ATS claims does not leave them without remedy; torture and extrajudicial killing
are cognizable under the TVPA, which was enacted in part to provide a remedy where
the ATS cannot. See Kiobel, 133 S. Ct. at 1669 (Kennedy, J., concurring) (noting that the
TVPA reaches “human rights abuses committed abroad” where the ATS cannot).
Plaintiffs’ ATS claims are due to be dismissed.
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TVPA Claims
Claims brought under the TVPA are subject to a ten-year statute of limitations,
which can be equitably tolled if a plaintiff can prove “extraordinary circumstances”
sufficient for equitable tolling. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153–1154
(11th Cir. 2005); see also Jean v. Dorelien, 431 F.3d 776, 779 (11th Cir. 2005) (“‘Equitable
tolling is appropriate when a movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable even with diligence.’”
(quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999))). Whether the
facts of the case demonstrate “extraordinary circumstances” is a fact-specific
determination. Id. at 1154.
Defendant concedes and the Court agrees that, viewing the allegations of the
Second Amended Complaint in the light most favorable to Plaintiffs, the statute of
limitations was tolled until 1990 when General Pinochet’s regime toppled. (Doc. 82, p. 10);
see also Arce v. Garcia, 434 F.3d 1254, 1264 (11th Cir. 2006) (“The remedial scheme
conceived by the TVPA . . . would fail if courts allowed the clock to run on potentially
meritorious claims while the regime responsible for the heinous acts for which these
statutes provide redress remains in power, frightening those who may wish to come
forward from ever telling their stories.”); see also Jean, 431 F.2d at 78 (equitably tolling
the statute of limitations until the responsible military regime and commander was
removed from power).
Defendant argues that equitable tolling is not justified beyond 1990 because, after
that time, the government did not engage in “affirmative misconduct rising to the level of
active, deliberate concealment” required before equitable tolling becomes appropriate.
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(Doc. 82, pp. 10–13.) In support, he argues that: (1) Plaintiffs knew which units of the
Chilean military were involved in the events surrounding Victor Jara’s death, and Plaintiffs
do not allege that this information was deliberately concealed or falsified; (2) Plaintiffs
knew as early as 1973 that they had a cause of action related to the ill treatment and
killing of Victor Jara when Joan Jara identified his tortured body and observed the gunshot
wounds he sustained; (3) the “unwillingness on the part of those with knowledge to come
forward” (see Doc. 63 ¶ 46) as a result of the Amnesty Law is does not constitute the
required affirmative misconduct; and (4) “a lenient approach to equitable tolling would
revive claims dating back decades, if not centuries, when most or all of the eye witnesses
would no longer be alive to provide their accounts of the events in question,” see Arce,
434 F.3d at 1265. (Doc. 82, pp. 10–13.) He argues, therefore, that Plaintiffs’ allegations
do not constitute extraordinary circumstances required to justify equitable tolling.
(Doc. 82, p. 13.) The Court is not persuaded.
First, although the Arce court rejected a “lenient approach to equitable tolling,” it
did so only in the context of “mere ambient conflict in another country” by itself. See
434 F.3d at 1265 (holding, in fact, that equitable tolling was warranted given the
circumstances—the responsible regime remaining in power, even though the defendants
resided in the United States).
Second, the Court is unpersuaded by Defendant’s argument that the statute of
limitations should be tolled only if the government engaged in affirmative misconduct such
as deliberate concealment of Victor Jara’s death. Indeed, affirmative misconduct in the
form of deliberate concealment is only one of the circumstances that constitute
extraordinary circumstances and warrant equitable tolling of the statute of limitations. See
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Cabello, 402 F.3d at 1154 (stating that the inquiry is a “fact-specific determination
because a finding of ‘extraordinary circumstances’ necessary for equitable tolling is
reserved for extraordinary facts”) (citation omitted) (emphasis added). The TVPA’s
legislative history sheds light on the inquiry. It provides:
The legislation provides for a 10-year statute of limitations, but
explicitly calls for consideration of all equitable tolling
principles in calculating this period with a view toward giving
justice to plaintiff’s rights. Illustrative, but not exhaustive, of
the types of tolling principles which may be applicable include
the following. The statute of limitation should be tolled during
the time the defendant was absent from the United States . . . .
Excluded also from calculation of the statute of limitations
would be the period when a defendant has immunity from suit.
The statute of limitations should also be tolled for the period
of time in which the plaintiff is imprisoned or otherwise
incapacitated. It should also be tolled where the defendant
has concealed his or her whereabouts or the plaintiff has been
unable to discover the identity of the offender.
S. Rep. No. 102-246, at 10–11 (1991) (emphasis added). This history suggests a
disjunctive view of the tolling scenarios between affirmative concealment and an inability
to discover the identity of the offender. Plaintiffs allege they were “diligent and persistent
in their efforts to identify the individual(s) responsible for killing Victor Jara” (see Doc. 63
¶ 50) in the following specific, plausible particulars: (1) they filed an initial application to
open a criminal investigation in 1978 while the responsible regime was still in power (id.
¶ 39); (2) they filed a complaint before the Chile Court of Appeals against General
Pinochet and others in August of 1999 as soon as the Chilean Supreme Court “started
limiting the application of the Amnesty Law,” despite the frustrations that still remained
intact from the Amnesty Law (id. ¶¶ 41, 44–46); and (3) as soon as the court closed the
Consolidated Investigation of 2001 in 2008, they requested for it to be reopened (id. ¶
46–47). Despite their best efforts, they were unable to obtain the identity of an offender—
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Defendant—until 2009, and they “promptly initiated” this action as soon as they learned
of Defendant’s whereabouts. (Id. ¶¶ 47–48.)
Whether further discovery will develop the factual background bearing on the issue
of the Plaintiffs diligence in commencing this action is an open question. At this stage, the
allegations of reasonable diligence are sufficient to withstand an assault from the 12(b)(6)
front. The action is will proceed on Plaintiffs TVPA claims.
Accordingly, it is hereby ORDERED AND ADJUDGED:
Defendant’s Motion to Dismiss (Doc. 82) is GRANTED IN PART and
a. The ATS Claims in Counts I and II, and Counts III, IV, and V in their
b. The Motion is DENIED in all other respects. Defendants shall answer
the surviving counts of the Second Amended Complaint on or before
April 28, 2015.
DONE AND ORDERED in Chambers in Orlando, Florida, on April 14, 2015.
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Counsel of Record