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Estate of Abtan v. Blackwater Lodge and Training Center

April 27, 2009

ESTATE OF HIMOUD SAED ABTAN, ET AL., PLAINTIFFS,
v.
BLACKWATER LODGE AND TRAINING CENTER, ET AL., DEFENDANTS.
ESTATE OF ALI HUSSAMALDEEN ALBAZZAZ AND ESTATE OF KADHUM KAYIZ AZIZ, PLAINTIFFS,
v.
BLACKWATER LODGE AND TRAINING CENTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs in these administratively consolidated civil lawsuits are individuals and estates of individuals wounded or killed in one of two shooting incidents: a shooting that occurred on September 9, 2007, in Al Watahba Square, Baghdad, in the Republic of Iraq, First Amended Complaint in Albazzaz v. Blackwater Lodge and Training Ctr., Civil Action No. 07- 2273 (RBW) (D.D.C.) (the "Albazzaz Compl."), ¶ 2,*fn1 or a shooting that occurred on September 16, 2007, in Nisour Square, Baghdad, Second Amended Complaint in Abtan v. Blackwater Lodge and Training Ctr., Civil Action No. 07-1831 (RBW) (D.D.C.) (the "Abtan Compl."), ¶¶ 4-20. The plaintiffs seek compensatory and punitive damages against the defendants, Abtan Compl. ¶ 3; Albazzaz Compl. ¶ 3,*fn2 claiming that the defendants are "liable for killing" the decedents, whose estates have joined in this suit, liable for "the pain and suffering and loss of consortium caused to the family members of these victims," Abtan Compl. ¶ 82; Albazzaz Compl. ¶ 60, and "liable for the physical and mental injuries caused" to the plaintiffs who survived the Nisour Square shooting incident, Abtan Compl. ¶ 83. Currently before the Court is the defendants' consolidated motion to dismiss or transfer the plaintiffs' cases for lack of venue pursuant to Federal Rule of Civil Procedure 12(b)(3).*fn3 Having carefully considered the plaintiffs' complaints, the defendants' motion, and all memoranda of law and exhibits filed in connection with that motion,*fn4 the Court concludes for the reasons that follow that it must stay the defendants' motion so that the plaintiffs may formally request limited venue discovery in this matter.

I. Background

The following facts are alleged by the plaintiffs in their complaints. "Blackwater provides armed forces to protect Department of State personnel in Iraq." Abtan Compl. ¶ 31; Albazzaz Compl. ¶ 16. "These mobile armed forces," allegedly referred to as "shooters," Abtan Compl. ¶ 31; Albazzaz Compl. ¶ 16, are allegedly "routinely sen[t]" by Blackwater "into the streets of Baghdad with the knowledge that some of the 'shooters' are chemically influenced by steroids and other judgment-altering substances," Abtan Compl. ¶ 43; Albazzaz Compl. ¶ 21. Specifically, Blackwater allegedly knew at the time of the shooting incidents in question that "25 percent or more of its 'shooters' were ingesting steroids or other judgment-altering substances, yet failed to take effective steps to stop drug use," such as "conduct[ing] any drug[]testing of its 'shooters' before sending them equipped with heavy weapons into the streets of Baghdad." Abtan Compl. ¶ 43; Albazzaz Compl. ¶¶ 22-23. In addition, Blackwater allegedly "has been hiring as mercenaries former military officials known to have been involved in human rights abuses in Chile," Abtan Compl. ¶ 59; Albazzaz Compl. ¶ 38, and has allegedly "hired foreign nationals without regard for the fact that they were forbidden by the laws of their country from serving as mercenaries," Abtan Compl. ¶ 60; Albazzaz Compl. ¶ 39.

The result of these practices, according to the plaintiffs, is "a pattern and practice of recklessness in the use of deadly force" by Blackwater. Abtan Compl. ¶ 41; Albazzaz Compl. ¶ 19. Blackwater forces allegedly "engage in the preemptive and offensive, rather than defensive, use of lethal force," Abtan Compl. ¶ 47; Albazzaz Compl. ¶ 27, such as "repeatedly and frequently fir[ing] shots from moving vehicles without stopping to see if Blackwater has killed anyone," Abtan Compl. ¶ 53; Albazzaz Compl. ¶ 32. Allegedly, one former Blackwater shooter "stated that his 20-person team in Iraq averaged four to five shootings per week." Abtan Compl. ¶ 55; Albazzaz Compl. ¶ 34.

According to the plaintiffs, Blackwater does not discourage its shooters from engaging in this activity. To the contrary, it allegedly "views its willingness to kill innocent people as a strategic advantage setting Blackwater apart and above other security corporations," Abtan Compl. ¶ 57; Albazzaz Compl. ¶ 36; thus, it "benefits financially from its willingness to kill innocent bystanders," Abtan Compl. ¶ 58; Albazzaz Compl. ¶ 37. To effectuate this policy, Blackwater allegedly attempted "on one or more occasions . . . to cover up its shooters' killings by offering to pay modest sums to the families of those Iraqis whom Blackwater shooters shot for no reason," Abtan Compl. ¶ 52; Albazzaz Compl. ¶ 31, and "Blackwater shooters and other employees repeatedly fail to report [the] wrongful use of force, and consistently lie about excessive uses of force," Abtan Compl. ¶ 54; Albazzaz Compl. ¶ 32.

The plaintiffs' claims arise out of two such incidents. First, "[o]n September 9, 2007, heavily-armed Blackwater mercenaries . . . [allegedly] fired, without justification, on a crowd of innocent Iraqi persons in and around Al Watahba Square[,] resulting in multiple deaths and injuries." Albazzaz Compl. ¶ 2. The decedents whose estates have filed suit in Albazzaz were both allegedly killed in this shooting, id. ¶¶ 4-5, 17, as were "[n]umerous other innocent persons," id. ¶ 17. The plaintiffs in Albazzaz allege that "Blackwater is responsible" for this incident, and further allege that "[t]he identities of the Blackwater shooters who killed and injured persons on September 9, 2007, are known to Blackwater." Id. ¶ 18.

The second shooting incident at issue in these civil lawsuits occurred just one week later. Abtan Compl. ¶ 2. Once again, "heavily-armed Blackwater mercenaries" allegedly opened fire "on a crowd of innocent civilians without justification." Id. ¶ 2. And once again, this shooting allegedly "result[ed] in multiple deaths and injuries." Id. Six plaintiffs in Abtan are the estates of individuals who were killed in the shooting; the remaining plaintiffs "were among those seriously injured." Id.

As alleged by the plaintiffs in Abtan, "none of the civilians [were] armed or taking offensive actions against the Blackwater shooters," id. ¶ 34, and "Blackwater shooters were not protecting any State Department official," id. ¶ 36. Indeed, the plaintiffs in Abtan allege that Blackwater shooters were "expressly directed . . . to stay with the official" they were guarding at the time, id. ¶ 37, and that "[o]ne of Blackwater's own shooters tried to stop his colleagues from indiscriminately firing upon the crowd of innocent civilians" without success, id. ¶ 39. The plaintiffs in Abtan allege that "Blackwater is responsible" for this second shooting incident as well, and further allege that "[t]he identities of the Blackwater shooters who killed and injured innocent persons on September 16, 2007, are known to Blackwater." Id. ¶ 40.

The plaintiffs in Abtan filed their initial complaint in this Court on October 11, 2007, and filed an amended complaint on November 28, 2007. The plaintiffs in Albazzaz followed suit with their own complaint on December 19, 2007. The defendants moved to dismiss both of these complaints for lack of venue, but those motions were denied without prejudice when the plaintiffs filed amended complaints in both cases.

In their most recent complaints (the second amended complaint in Abtan; the first amended complaint in Albazzaz), the plaintiffs assert six different causes of action against the defendants: war crimes under the Alien Tort Claims Act (Alien Tort Statute), 28 U.S.C. § 1350 (2006), Abtan Compl. ¶¶ 85-90; Albazzaz Compl. ¶¶ 62-67, assault and battery, Abtan Compl. ¶¶ 91-96; Albazzaz Compl. ¶¶ 68-73, wrongful death, Abtan Compl. ¶¶ 97-100; Albazzaz Compl. ¶¶ 74-77, intentional infliction of emotional distress, Abtan Compl. ¶¶ 101-04; Albazzaz Compl. ¶¶ 78-81, negligent infliction of emotional distress, Abtan Compl. ¶¶ 105-08; Albazzaz Compl. ¶¶ 82-85, and negligent hiring, training, and supervision, Abtan Compl ¶¶ 109-11; Albazzaz Compl. ¶¶ 86-88. The plaintiffs seek not only compensatory damages, Abtan Compl. ¶ 112(a); Albazzaz Compl. ¶ 89(a), but also "punitive damages in an amount sufficient to strip [the d]efendants of all of the revenue and profits earned from their [alleged] pattern of constant misconduct and callous disregard for human life," Abtan Compl. ¶ 112(b); Albazzaz Compl. ¶ 89(b), and "any attorney's fees and costs permitted by law," Abtan Compl. ¶ 112(c); Albazzaz Compl. ¶ 89(c). The plaintiffs also allege that "venue is proper" in this Court "pursuant to 28 U.S.C. § 1391(a)(3) and § 1391(b)(2)." Abtan Compl. ¶ 30; Albazzaz Compl. ¶ 15.

The defendants renewed their requests for dismissal in a consolidated motion filed on April 8, 2008. In support of that motion, the defendants argue that the plaintiffs cannot establish that this Court is the proper venue for their lawsuit under 28 U.S.C. § 1391(a)(3) because that provision applies only to actions founded completely on diversity of citizenship, which is not the case here. Defs.' Mem. at 2-3. They further argue that 28 U.S.C. § 1391(b)(2) does not provide a basis for venue in this Court because this lawsuit does not involve any property located in this jurisdiction and the events giving rise to the plaintiffs' claims did not occur in the District of Columbia. Id. at 3-5. The defendants therefore urge the Court to dismiss the plaintiffs' complaints, id. at 10-13, and request in the alternative "that this Court transfer these cases to a court where venue is proper[;] namely[,] [the Eastern District of Virginia]," id. at 13; see also id. at 5-10 (arguing that the Eastern District of Virginia would be an appropriate venue for the plaintiffs' lawsuits).

The plaintiffs do not contest the defendants' legal arguments regarding venue under § 1391(a)(3). However, they assert that they "are entitled to deference on their forum choice so long as they select a venue permitted by § 1391(b)," Pls.' Opp'n at 6, and argue at length that venue is proper in this Court under § 1391(b)(2) because numerous events relating to the causes of action at issue here occurred in the District of Columbia, id. at 6-10. Alternatively, they contend that they "are entitled to discovery to establish additional facts supporting their forum choice if factual issues raise questions regarding the [p]laintiffs['] chosen venue." Id. at 10. The plaintiffs also oppose transfer of these cases to the Eastern District of Virginia. Id. at 11-13. In reply, the defendants dispute the plaintiffs' assertion of venue under § 1391(b), Defs.' Reply at 1-11, renew ...


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