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Mwani v. Laden

United States District Court, District Circuit

May 29, 2013

ODILLA MUTAKA MWANI, et al., Plaintiffs,


JOHN M. FACCIOLA, Magistrate Judge.

This case is before me for all purposes. A number of matters are currently pending and ready for my resolution, including: 1) whether this Court retains subject matter jurisdiction over this case in the wake of a recent Supreme Court ruling; 2) whether Usama Bin Laden should be dismissed as a defendant; 3) what substantive law to apply to the case, as raised by plaintiffs in Plaintiff's [sic] Brief Pursuant to Order of January 7, 2010 [#93]; and 4) whether or not to accept Plaintiffs' Proposed Findings of Fact and Conclusions of Law [#105]. As noted below, I will only address the first matter in this Memorandum Opinion and accompanying Order.


The lengthy procedural history of this case has been summarized elsewhere in the record, but for the purposes of this Memorandum Opinion, a review of the most recent events is necessary.

On January 7, 2010, Judge Kollar-Kotelly issued an Opinion and Order Regarding Choice of Law [#90] holding that federal common law choice of law principles would apply to this case. Judge Kollar-Kotelly requested supplemental briefing from the plaintiffs regarding: 1) what substantive law should govern the plaintiff's claims; 2) if the law of Kenya governs, which laws should be applied; and 3) if the substantive law of the United States governs, which laws should apply. [#90] at 9. The plaintiffs submitted the requested briefing on January 25, 2010. However, no official ruling was ever issued regarding which substantive law principles (e.g., Kenyan, federal common law, federal statutory law, or state common law) would govern the plaintiff's claims.

The case was then referred to me for all purposes. Order Referring Case to Magistrate Judge [#96]. In line with previous decisions by Judge Kollar-Kotelly, on January 31, 2011 through February 2, 2011, I held a "bellwether"[1] bench trial on damages to determine: 1) whether a ruling derived from evidence adduced at the proceeding is binding and to what extent, and 2) the extent to which adduced evidence is generally applicable to all plaintiffs, or whether each plaintiff must produce some evidence of damages. The bellwether format was used to avoid the time-consuming and possibly unnecessary process of reviewing damages claims plaintiff by plaintiff. Instead, the goal is to issue a set of general principles regarding damages, based on the small, representative sample of plaintiffs' claims, and then extrapolate those principles to the plaintiff population as a whole.

On April 18, 2011, plaintiffs' filed their Proposed Findings of Fact and Conclusions of Law regarding the bellwether trial. [#105]. I had not yet addressed that filing when the news broke that one of the defendants, Usama Bin Laden, had been killed by United States forces. Accordingly, I instructed the plaintiffs to either file a motion for substitution of a party or show cause why Bin Laden should not be dismissed from the case. Minute Order of 11/30/11. Plaintiffs responded that it would be unlikely that a suitable substitute, i.e. someone over whom this Court had personal jurisdiction, would be found. Plaintiffs' Response to Order to Advise Court on Substitution and to Show Cause [#107] at 2. Nevertheless, plaintiffs requested that I hold off on dismissing Bin Laden from the case "until such time as disposition is made of the claims against the remaining defendants." Id. at 2-3.

Roughly one month later, on January 10, 2012, I stayed this matter pending the outcome of a rehearing en banc in Doe v. Exxon Mobil Corp , 09-7135 (D.C. Cir.), which itself was stayed pending the resolution of two cases before the Supreme Court regarding the extraterritorial reach of the Alien Tort Statute[2] ("ATS"). I issued this stay out of concern that a number of recent judicial decisions and academic articles called into question the reach of the ATS to cover claims by foreign nationals for events that occurred on foreign soil. Because jurisdiction in this case rests on application of the ATS to the 523 Kenyan plaintiffs, I felt "it might well be a profligate waste of judicial resources to proceed any further in this case... without what may be dispositive guidance from the Supreme Court." Order [#108] at 2-3.

Finally, a decision was handed down last month in one of the previously-pending Supreme Court cases. Kiobel v. Royal Dutch Petroleum Co. , 133 S.Ct. 1659 (2013). The Court held that a canon of statutory interpretation, the "presumption against extraterritorial application" of federal statutes, limits the court's ability to hear certain claims under the ATS, and nothing in the language of the ATS itself rebutted that presumption. Id. at 1669. Put another way, the majority of the Justices agreed that, except where the claims "touch and concern the territory of the United States" with "sufficient force, " the ATS could not be used to establish jurisdiction in a United States Court for a dispute between foreign nationals for conduct that occurred on foreign ground. Id.

Given that this case is between foreign nationals and a foreign group for events that occurred in Nairobi, Kenya, I requested briefing from the plaintiffs regarding whether or not subject matter jurisdiction remained over their claims in light of Kiobel's holdings. The plaintiffs submitted their response to my order to show cause on May 20, 2013. Plaintiffs' Response to Order to Show Cause [#109].


In their Amended Complaint, plaintiffs asserted that this Court has jurisdiction over their claims via the ATS. Amended Complaint [#13] at 88. The ATS provides that district courts "shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. ยง 1350. To establish jurisdiction under the ATS, a plaintiff must allege facts "sufficient to establish that: (1) they are aliens; (2) they are suing for a tort; and (3) the tort in question has been committed in violation of the law of nations or a treaty of the United States." Mwani v. bin Laden, Civil Action No. 99-125 , 2006 WL 3422208, at *2 (D.D.C. Sept. 28, 2006) (citing Kadic v. Karadzic , 70 F.3d 232, 238 (2d Cir. 1996); Doe I. v. Exxon Mobil Corp. , 393 F.Supp.2d 20, 24, 28 (D.D.C. 2005); and Burnette v. Al Baraka Inv. & Dev. Corp. , 274 F.Supp.2d 86, 99-100 (D.D.C. 2003)).

Judge Kollar-Kotelly previously found that adequate subject matter jurisdiction existed for the plaintiffs' claims because "the attack on the United States Embassy in Nairobi, Kenya alleged in Plaintiffs' Complaint impinged the diplomatic mission of the United States and directly infringed on the rights of ambassadors, which was and has been a clear violation of the law of nations since the inception of the ATCA." Mwani , 2006 WL 3422208 at *4. In so holding, Judge Kollar-Kotelly found that the three elements required under the ATS were met.

That ruling remains the law of this case. However, a related but separate question remained: whether the ATS should grant jurisdiction to plaintiffs who were aliens and suing for a tort that occurred on foreign soil, i.e., should the ATS apply to cases that are completely extraterritorial? When the Supreme Court granted certiorari in the Kiobel case, it intended to examine whether the law of nations recognized corporate liability. See Kiobel , 133 S.Ct. at 1663. It was only after oral argument on that issue that the Justices requested supplemental briefing addressing the extraterritorial application of the statute. Specifically, the Court requested briefing on "[w]hether and under what ...

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