United States District Court, District of Columbia
September 30, 2002
OLIVIER BANCOULT ET AL., PLAINTIFFS,
ROBERT S. MCNAMARA ET AL., DEFENDANTS
The opinion of the court was delivered by: Ricardo M. Urbina, District Judge
ORDERING FURTHER BRIEFING ON DEFENDANT UNITED STATES' MOTION TO DISMISS;
GRANTING DEFENDANT DCDM'S MOTION TO DISMISS;
DENYING THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND
STRIKING THE PLAINTIFFS' MOTION FOR AN
ANTISUIT INJUNCTION AND SANCTIONS AGAINST DEFENDANT DCDM
This action takes us to the middle of the Indian Ocean, to the tiny
islands of the Chagos Archipelago ("Chagos"). The plaintiffs are
indigenous Chagossians, their survivors, and their direct descendants
("the plaintiffs"). They bring this action
against the United States and
De Chazal Du Mee & CIE ("DCDM") (collectively, "the defendants").*fn1
The plaintiffs now move for a preliminary injunction barring the
defendants from engaging in allegedly discriminatory policies and
practices that deny the plaintiffs access to Chagos and to employment on
Diego Garcia, one of the Chagos islands. The defendants move to dismiss
the complaint on jurisdictional grounds. Defendant United States argues
that this court lacks subject-matter jurisdiction based on sovereign
immunity, the political question doctrine, and lack of standing.
Defendant DCDM, a Mauritian corporation, asks the court to dismiss the
complaint based on ineffective service of process and lack of personal
jurisdiction. Separately, the plaintiffs also move for an antisuit
injunction and sanctions against DCDM. For the reasons that follow, the
court orders further briefing on defendant United States' motion to
dismiss, grants defendant DCDM's motion to dismiss, denies the
plaintiffs' motion for a preliminary injunction, and strikes the
plaintiffs' motion for an antisuit injunction and sanctions against
A. Factual Background*fn2
Chagos is a grouping of small islands in the middle of the Indian
Ocean, at least 1,000 miles away from the nearest landmasses of India,
Mauritius, Australia, and the Gulf States. Compl. ¶ 10. It includes
the islands of Diego Garcia, Peros Banhos, Salomon, and numerous other
small islands. Id. ¶ 8. Ceded to the United Kingdom by the French
in 1814, Chagos became part of the British colony of Mauritius, and
continues under British administration today. Id. ¶¶ 9-10, 18. Its
population, which numbered more than 550 in 1861, had grown to
approximately 1,000 inhabitants by the 1960s. Id. ¶¶ 8, 10. During
that period, the Chagossians established communities by working at the
local copra (coconut product) plantations, cultivating vegetables,
raising animals, attending church, and educating their children, and
otherwise engaging in community life. Id. ¶ 11.
In 1964, the British and United States governments entered into
negotiations to establish a U.S. military facility in the Indian Ocean.
Id. ¶ 17. One year later, the British detached Chagos from Mauritius
and incorporated the archipelago in a newly created British Indian Ocean
Territory ("BIOT"). Id. ¶ 9. Subsequently, the Chagos population was
removed to Mauritius and Seychelles. Id. ¶¶ 21-23. Diego Garcia, the
largest of the Chagos islands, then became home to the proposed U.S.
military facility. Id. ¶ 25.
The plaintiffs in this action are three individuals and two
organizations. Plaintiff Bancoult is a native Chagossian who
alleges that in 1967, his family was prevented from returning home to Peros
Banhos after a medical visit to Mauritius. Id. at 31. Plaintiff
Bancoult alleges that he and his family suffered abject poverty in
Mauritius and that he has been rejected repeatedly for employment on
Diego Garcia. Id. Plaintiff Mein is a native Chagossian who reports
that in 1971 and 1972, persons acting on behalf of the U.S. and British
governments forced her family to board a vessel from Diego Garcia to
Peros Banhos and, later, to Seychelles. Id. at 32. She alleges that the
harsh conditions of passage caused her to miscarriage. Id. Plaintiff
France-Charlot was born in Mauritius and is a first-generation descendant
of Chagossians native to Salomon Island. Id. ¶ 33. She alleges that
as a result of the poverty her family suffered in Mauritius, she suffered
social, cultural, and economic oppression. Id. Plaintiffs Chagos Refugee
Group and Chagos Social Committee are organizations whose principal
interest is the betterment of the Chagossian community in, respectively,
Mauritius/Agalega and Seychelles. Id. ¶¶ 34-35.
The plaintiffs characterize the events leading up to the establishment
of the U.S. facility on Diego Garcia as fraught with secret agreements,
manipulation, and concealment on the part of the U.S. and British
governments. E.g., id. ¶¶ 17-18, 20. The plaintiffs allege that the
United States and/or its agents physically removed them from Chagos
between 1965 and 1971 by the United States and/or its agents and that
their exile continues today through the defendants' employment
discrimination. Id. ¶¶ 21-23, 26, 61, 74, 76.
B. Procedural History
On December 20, 2001, the plaintiffs filed a complaint against the
United States, DCDM, and two other defendants alleging forced
relocation, torture, racial discrimination, cruel, inhuman, and degrading
treatment, genocide, intentional infliction of emotional distress,
negligence, and trespass. Id. ¶¶ 59-101. The plaintiffs request
relief in the form of compensatory damages, punitive damages, and
injunctive and declaratory relief. Id. at 37-38.
On March 21, 2002, defendant United States filed its motion to dismiss
the complaint. The United States argues that this court lacks
subject-matter jurisdiction because of the doctrines of sovereign
immunity and political question, and for lack of standing. Def. U.S.'
Mot. to Dismiss at 1-2.
On March 27, 2002, defendant DCDM also filed a motion to dismiss the
complaint. DCDM contends that the plaintiffs failed to effectively serve
DCDM with a summons or to allege a statutory or constitutional basis for
personal jurisdiction against DCDM. Def. DCDM's Mot. to Dismiss at 5,
23-24. On April 12, 2002, the plaintiffs responded with a motion for
leave to conduct immediate discovery and for an enlargement of time to
respond to DCDM's motion to dismiss. Pls.' Mot. for Leave to Conduct
Immediate Disc. ("Pls.' Mot. for Leave"). In addition, on August 1,
2002, the plaintiffs moved for an antisuit injunction and sanctions
against DCDM. Pls.' Mot. for an Antisuit Injunction and Sanctions.
On February 14, 2002, the plaintiffs moved for a preliminary injunction
to bar defendants United States and DCDM from engaging in allegedly
discriminatory policies and practices that deny the plaintiffs access to
Chagos and to employment on Diego Garcia. Pls.' Mot. for Prelim. Inj. at
A. The Court Orders Further Briefing by the Parties on Subject-Matter
As noted, defendant United States brings a motion to dismiss the
complaint on several grounds. At the outset, the court must assure itself
that subject-matter jurisdiction exists over this action. Liberty Mut.
Ins. Co. v. Wetzel, 424 U.S. 737
, 740 (1976); Cobell v. Norton,
240 F.3d 1081
, 1094 (D.C. Cir. 2001). When a plaintiff brings an action
against the United States, establishing subject-matter jurisdiction
requires an additional step, as the United States cannot be sued absent
an explicit statutory waiver of sovereign immunity.*fn3
Ins. Corp. v. Meyer, 510 U.S. 471
, 475 (1994); Lane v. Pena, 518 U.S. 187,
192 (1996) (citations omitted); Galvan v. Fed. Prison Indus., Inc.,
199 F.3d 461
, 463-64 (D.C. Cir. 1999).
In this case, neither the complaint nor the plaintiffs' subsequent
submissions provide sufficient clarity about the pending claims to allow
this court to determine whether subject-matter jurisdiction exists. The
plaintiffs assert claims of forced relocation, torture, racial
discrimination, cruel, inhuman, and degrading treatment, and genocide.
Compl. ¶¶ 59-87. But the plaintiffs do not always identify the
specific legal basis for each claim. Id. Nor do they indicate the
specific relief sought pursuant to each claim. Id. at 38-39. Because
waivers of federal sovereign immunity turn on the basis of the claim and
the type of relief sought,*fn4 the court cannot make an initial*fn5
jurisdictional determination until the plaintiffs provide clarification
on jurisdictional issues.
Courts often provide the parties an opportunity to submit supplemental
memoranda on the question of subject-matter jurisdiction. Saadeh v.
Farouk, 107 F.3d 52, 53 (D.C. Cir. 1997); First Va. Bank v. Randolph,
110 F.3d 75, 77 (D.C. Cir. 1997). In keeping with this tradition, the
court directs the plaintiffs to submit a supplemental memorandum that
answer the following questions, with citation to supporting legal
1. What is the specific statutory, common law, or
international law (treaty or customary
international law) basis for each claim against
the United States, and have the plaintiffs met all
jurisdictional conditions associated therewith?
For example, if the plaintiffs are asserting a
claim based on an international convention, does
or its implementing legislation
confer an individual right of action so as to
satisfy the "arising under" requirement of federal
2. What type of relief do the plaintiffs seek
pursuant to each claim? For example, are the
plaintiffs seeking compensatory or punitive
damages against the United States for any of their
five claims? If so, in what amount?
3. How does each claim's legal basis and type of
relief sought affect the availability of a
sovereign-immunity waiver? For example, can a
claim for injunctive relief against the United
States that is premised on customary international
law qualify for a waiver of sovereign immunity
under the Administrative Procedure Act?
The court will defer ruling on defendant United States' motion to dismiss
until after the plaintiffs submit their supplemental memorandum,
defendant United States submits a response, and the plaintiffs submit a
reply (if any). At that point, the court will consider all issues,
including political question and lack of standing, related to
B. The Court Grants Defendant DCDM's Motion to Dismiss
for Ineffective Service of Process
1. Legal Standards for Service of Process and
Treating a Motion to Dismiss as Conceded
Federal Rule of Civil Procedure 4(h) provides that process of service
upon a foreign corporation may be effected within the United States or
abroad. FED. R. CIV. P. 4(h). For process within the United States, a
plaintiff must deliver a copy of the summons and the complaint to "an
officer, a managing or general agent, or . . . any other agent authorized
by appointment or by law to receive service of process." FED. R. CIV.
P. 4(h)(1). Process outside the United States "may be made in any manner
prescribed" by Federal Rule of Civil Procedure 4(f). FED. R. CIV. P.
4(h)(2), (f). Among the approved methods of service described by Rule
4(f) is personal delivery of a copy of the summons and the complaint.
FED. R. CIV. P. (4)(f)(2)(C)(i).
If service is not properly effected upon a foreign corporation, it may
move to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(4) and (5). FED. R. CIV. P. 12(b)(4), (5). Under Local Civil Rule
7.1(b), an opposing party must file a responsive memorandum of points and
authorities in opposition to a Rule 12 motion within 11 days of the
filing of the motion. LCvR 7.1(b). If the opposing party fails to do
so, the court may treat the motion as conceded. Giraldo v. Dep't of
Justice, 202 U.S. App. LEXIS 13685, at *2 (D.C. Cir. July 8, 2002)
(citing Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 68 (D.C. Cir.
1997)). Moreover, if the opposing party files a responsive memorandum,
but fails to address certain arguments made by the moving party, the
court may treat those arguments as conceded, even when the result is
dismissal of the entire case. Sparrow v. United Air Lines, Inc., 1999
U.S. Dist. LEXIS 22054, at *17 (D.D.C. July 23, 1999), overruled on other
grounds, 216 F.3d 1111 (D.C. Cir. 2000); Hanson v. Greenspan, 1991 U.S.
Dist. LEXIS 17451, at *11 (D.D.C. Dec. 6, 1991).
2. The Court Treats DCDM's Motion to Dismiss As Conceded and
Strikes the Plaintiffs' Motion for an Antisuit Injunction
and Sanctions Against DCDM
In this case, defendant DCDM moves to dismiss the plaintiffs' complaint
pursuant to Rule 12(b)(4) and (5) for insufficiency of process and service
Def. DCDM's Mot. to Dismiss at 20. According to DCDM,
the plaintiffs' attempted service on defendant DCDM in the District of
Columbia was ineffective because DCDM has no "office, officer, managing
agent, general agent or other agent authorized to receive process" within
the District. Id. (citing Pougnet Aff. ¶¶ 8, 24, 26, 27). Likewise,
defendant DCDM argues that the plaintiffs' efforts to serve DCDM in
Mauritius were ineffective because the plaintiffs failed to deliver to a
DCDM agent a copy of the summons along with the complaint. Id. (citing
Pougnet Aff. ¶ 11, Ex. A).
In response to DCDM's motion to dismiss, the plaintiffs filed a motion
for leave to conduct discovery and for enlargement of time to respond to
the motion to dismiss. Pls.' Mot. for Leave. The plaintiffs' motion for
leave, however, does not satisfy the requirements of Local Civil Rule
7.1(b), which requires that the opposing party file a memorandum of
points and authorities in opposition to the motion. LCvR 7.1(b). Even if
the court were to treat the plaintiffs' motion for leave as a memorandum
in opposition to DCDM's motion, the plaintiffs still fail to present any
argument countering DCDM's assertion of ineffective service of process.
Pls.' Mot. for Leave.
Given the plaintiffs' failure to file a memorandum in opposition to
DCDM's motion, the court treats defendant DCDM's motion to dismiss as
conceded, and thereby grants the motion to dismiss for insufficiency of
process and service of process.*fn8
Giraldo, 202 U.S. App. LEXIS 13685,
at *2. Because defendant DCDM is not properly before the court, the court
strikes the plaintiffs' motion for an antisuit injunction and sanctions
against defendant DCDM.
C. The Court Denies the Plaintiffs' Motion for a Preliminary
Injunction Because the Plaintiffs Have Not Demonstrated a Substantial
Likelihood of Success on the Merits
1. Legal Standard for Preliminary Injunctive Relief
This court may issue a preliminary injunction only when the movant
(1) a substantial likelihood of success on the
merits, (2) that it would suffer irreparable injury if
the injunction is not granted, (3) that an injunction
would not substantially injure other interested
parties, and (4) that the public interest would be
furthered by the injunction.
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)
(quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,
746 (D.C. Cir. 1995)); see also World Duty Free Americas, Inc. v.
Summers, 94 F. Supp.2d 61, 64 (D.D.C. 2000). It is particularly
important for the movant to demonstrate a substantial likelihood of
success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992)
(per curiam). Indeed, absent a "substantial indication" of likely success
on the merits, "there would be no justification for the court's intrusion
into the ordinary processes of administration
and judicial review." Am.
Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp.2d 114, 140
(D.D.C. 1999) (internal quotation omitted).
Because preliminary injunctions are extraordinary forms of judicial
relief, courts should grant them sparingly. Mazurek v. Armstrong,
520 U.S. 968, 972 (1997). As the Supreme Court has said, "[i]t
frequently is observed that a preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion." Id. (citation
omitted). Therefore, although the trial court has the discretion to
issue or deny a preliminary injunction, it is not a form of relief
granted lightly. Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982).
Furthermore, a party who seeks a mandatory injunction to change (rather
than preserve) the status quo "must meet a higher standard than in the
ordinary case by showing `clearly' that he or she is entitled to relief
or that `extreme or very serious damage' will result from the denial of
the injunction." Veitch v. Danzig, 135 F. Supp.2d 32, 35 (D.D.C. 2001).
1. The Court Concludes the Plaintiffs Have Not Demonstrated
a Substantial Likelihood of Success on the Merits
In presenting their motion to the court, the plaintiffs state that they
"satisfy all four factors and a preliminary injunction is the necessary
and appropriate relief to remedy the irreparable injuries Plaintiffs will
suffer." Pls.' Mot. for Prelim. Inj. at 6. Given the importance of the
"substantial likelihood of success" factor, the court considers it
first. Am. Bankers Ass'n, 38 F. Supp.2d at 140. Because the plaintiffs
fail to demonstrate a substantial likelihood of success on the merits,
the court declines to grant the extraordinary relief they request. Id.
The plaintiffs argue that they are likely to succeed on the merits of
the underlying action because the two defendants "continue the forced
relocation of the Chagossians on Mauritius and Seychelles by denying them
access to Chagos," and "forced relocation of individuals is well
established as a violation of customary international law." Pls.' Mot.
for Prelim. Inj. at 10. The plaintiffs also claim success because
"[d]efendants' exclusionary actions are motivated by discrimination based
on the race, descent, ethnicity, and national origin of Plaintiffs," and
discrimination is "prohibit[ed] in international and U.S. law." Id.
In response, defendant United States raises subject-matter jurisdiction
concerns. First, the United States notes that without a clear waiver of
sovereign immunity, this court lacks subject-matter jurisdiction to issue
the injunctive relief sought by the plaintiffs. Def. U.S.' Opp'n at 10.
The United States also contends that because it does not have the power
to grant or deny access to Chagos, the plaintiffs cannot satisfy the
causation and redressability elements of standing, and thus lack standing
to request an injunction. Id. Third, the United States argues that the
actions underlying the plaintiffs' request for relief constitute a
non-justiciable political question and cannot be considered by this
court. Id. at 16. As for the merits, the United States argues that the
very same considerations prevent the plaintiffs from demonstrating a
substantial likelihood of success on the merits.*fn9 Id. at 15-16.
The court concludes that the plaintiffs have failed to demonstrate a
substantial likelihood of success on the merits. Mova Pharm. Corp., 140
F.3d at 1066. As noted in Part III.A. of this opinion, the jurisdiction
of this court over the complaint underlying the preliminary injunction
motion remains in doubt. Even if the plaintiffs were able to
conclusively establish jurisdiction, it is far from clear that the
plaintiffs' suit would succeed on the merits. Here the plaintiffs allege
forced relocation, torture, racial discrimination, cruel, inhuman, and
degrading treatment, and genocide*fn10 against the United States.*fn11
Compl. ¶¶ 59-101. Each claim appears to be premised at least in part
on customary international law or international conventions to which the
United States is a party. Id. To succeed on the merits, therefore, the
plaintiffs must prove that actions taken by defendant United States
violate these sources of international law. Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 795 (D.C. Cir. 1984) (Edwards, J., concurring)
(determining whether terrorism is a violation of the law of nations).
Difficult as that task is, it is complicated by the fact that the
parties hotly dispute certain basic points. For example, the parties are
engaged in a running battle over whether or not the United States
controls access to Chagos, a point that goes to several of the claims
(e.g., continued forced relocation, racial discrimination, and cruel,
inhuman, and degrading treatment). Compare Pls.' Opp'n to Def. U.S.'
Mot. to Dismiss ("Pls.' Opp'n") at 1 (stating that "[the defendant has]
control of access to the Chagos Archipelago") with Def. U.S.' Mot. to
Dismiss at 30 (stating that "it is Britain, not the United States, that
controls both physical and legal access to the Archipelago").
Given the jurisdictional and substantive challenges associated with the
plaintiffs' action, the court concludes that the plaintiffs do not enjoy a
substantial likelihood of success on the merits of their claims. Mova
Pharm. Corp., 140 F.3d at 1066. Furthermore, because a preliminary
injunction may issue only upon a showing of all four injunction factors,
the court's analysis ends here, without consideration of the other three
factors. Howard v. Evans, 193 F. Supp.2d 221, 228 (D.D.C. 2002) (citing
Mova Pharm. Corp., 140 F.3d at 1066; CityFed Fin. Corp., 58 F.3d at 746;
and World Duty Free Americas, Inc., 94 F. Supp.2d at 64). Accordingly,
the court denies the plaintiffs' motion for a preliminary injunction.
For the foregoing reasons, the court orders further briefing on
defendant United States' motion to dismiss, grants defendant DCDM's
motion to dismiss, strikes the plaintiffs' motion for an antisuit
injunction and sanctions against defendant DCDM, and denies the
plaintiffs' motion for a preliminary injunction. An order directing
the parties in a manner consistent with this Memorandum Opinion is
separately and contemporaneously issued this ___ day of September, 2002.
ORDER ORDERING FURTHER BRIEFING ON DEFENDANT UNITED STATES'
MOTION TO DISMISS; GRANTING DEFENDANT DCDM'S MOTION TO DISMISS;
DENYING THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND
STRIKING THE PLAINTIFFS' MOTION FOR AN
ANTISUIT INJUNCTION AND SANCTIONS AGAINST DEFENDANT DCDM
For the reasons stated in this court's Memorandum Opinion separately
and contemporaneously issued this 30th day of September, 2002, it is
ORDERED that the plaintiffs shall submit by October 28, 2002, a
supplemental memorandum answering the questions listed in the memorandum
opinion issued contemporaneously with this order; that defendant United
States shall submit its response by November 18, 2002; and that the
plaintiffs shall submit a reply (if any) by December 2, 2002. All briefs
shall cite (including pincite) to supporting legal authority, and shall
not exceed fifteen double-spaced pages; and it is FURTHER ORDERED that
defendant DCDM's motion to dismiss is GRANTED and the claims against DCDM
are DISMISSED without prejudice; and it is
FURTHER ORDERED that the plaintiffs' motion for a preliminary
injunction is DENIED; and it is
FURTHER ORDERED that the plaintiffs' motion for an antisuit injunction
and sanctions against defendant DCDM is STRICKEN.