The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Plaintiffs (collectively "Plaintiffs"), all citizens of Turkey, brought this action asserting claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and New York common law and statutory causes of action. Defendants include the Coca-Cola Company ("Coca Cola"), Coca-Cola Export Corporation ("CCEC"), Coca-Cola Íçecek, A.S. ("CCI"), and several corporate Does (collectively "Defendants"). The injuries Plaintiffs assert arose from an alleged violent attack on them by Turkish police during a labor dispute in Istanbul, Turkey between Plaintiffs and CCI, an entity that had employed some of the Plaintiffs and that they claim is controlled by or an agent of Coca Cola and CCEC. Defendants move to dismiss the complaint on the grounds of forum non conveniens, international comity, the act of state doctrine, absence of subject matter jurisdiction, and failure to state any claim on which relief may be granted. CCI additionally contests the Court's personal jurisdiction over CCI. For the reasons stated below, Defendants' motions to dismiss the complaint on forum non conveniens grounds are GRANTED.
Plaintiffs include trade union members once employed by CCI, a Coca Cola bottling and distributing joint venture with its principal place of business in Istanbul, as drivers and other transport workers to deliver Coca Cola products in Istanbul and neighboring areas. According to the complaint, prior to 2000, delivery workers of CCI were organized in a union and their relationship was governed by a collective bargaining agreement with the company. In 2000 the workers were forced to resign from the union. Allegedly to punish workers who had unionized and discourage others, CCI, acting under the direction and control of Coca Cola and CCEC in the United States, assigned workers at two CCI facilities in Istanbul, Dudullu and Yenibosna, to a contractor, Nakliyat ve Ticaret Ltd. ("Trakya"). However, the workers continued to function in every way as they previously had operated while delivering Coca Cola products as CCI employees, including use of the same trucks and uniforms, and reporting to the same facilities and supervisors. On this basis, Plaintiffs contend that Trakya was nothing more than a paper shell or agent of CCI and its joint venture partners, including Coca Cola and CCEC.
The workers at Dudullu and Yenibosna continued their efforts to organize from 2002, and by May 2005 about 90 percent of the total of 110 workers at the plants had formally expressed desire to join a union of transport workers (the "Union") affiliated with DISK, a progressive trade union federation of Turkish workers. On May 12, 2005, the union filed papers with the Turkish Ministry of Labor seeking formal recognition. A week later five employees at Dudullu identified as the leaders of the union organization effort were fired, allegedly for poor performance. This action was followed by the termination of fifty more union workers at Dudullu and fifty at Yenibosna. The workers staged a protest in front of the plants by erecting cardboard shelters and were evicted from the sites by Turkish police, allegedly on orders from CCI. Plaintiffs claim that, to prevent them from entering the property again, CCI then purchased the private lot in front of the Dudullu facility where the protest had occurred.
After the terminations of the 105 Union workers, a group of them and Union representatives met with CCI officials, some of whom also held regional positions with Coca Cola. They were allegedly told that Coca Cola was concerned that if the employees at Dudullu and Yenibosna were allowed to unionize, workers at other Coca Cola plants in Turkey would demand to do so as well.
In the morning of July 20, 2005 workers from both plants, some joined by family members, assembled outside the Dudullu facility to peacefully demonstrate against the terminations and demand reinstatement to their jobs. While Union representatives were meeting with CCI officials, members of Çevik Kuvvet, a special branch of the Turkish police, who Plaintiffs allege "use violence on workers and union members with impunity" (Compl. ¶ 40), had been monitoring the protest. Allegedly with the knowledge and at the direction of CCI managers, who in turn were acting on behalf of Coca Cola and CCEC, the police attacked the demonstrators with gas and clubs to evict them from the CCI property they were occupying. At around 8:00 p.m. Plaintiffs were hauled away in police vans, thereafter suffering additional attacks while in police custody. They remained in jail until released on the following day, July 21, 2005, at between 5:00 and 5:30 a.m.
On these facts, Plaintiffs contend that this case "involves the systematic intimidation and torture of trade unionists and their families in Istanbul, Turkey" (id. ¶ 3), and that Defendants arranged for the Çevik Kuvvet to assault and arrest Plaintiffs "for the purpose of coercing and intimidating the union members into abandoning their effort to form a union at the Coke facilities, and to terrorize the workers into accepting their mass terminations without further protest" (id. ¶ 18).
Plaintiffs assert that Coca Cola, through CCEC, owns 40 percent of the CCI joint venture and that, through placements of board members under its Bottler's Agreement, the company has exercised a "particularly high level of control and supervision over CCI." (Id. ¶ 91.) By means of its Bottler's Agreement with joint venturers and licensees such as CCI, Coca Cola and CCEC impose standards governing product quality, marketing, bottling and materials used in production. For these purposes they possess the right to inspect products, plants and other aspects of production. Pointing to this authority and forms of external controls, Plaintiffs allege that CCI "does not have any independent authority to make or implement decisions regarding its business practices or direction, but is the agent, alter-ego and/or instrumentality of Coke and the CCI co-venturers." (Id. ¶ 100). Plaintiffs contend that Coca Cola and CCEC are jointly liable to Plaintiffs for the injuries they suffered through the acts of CCI. Specifically, Plaintiffs argue that Coca Cola can control whether its bottlers abide by international human rights conventions and national laws, and can enforce compliance by withdrawing its agreements governing the commercial use of Coca Cola's name and products from any bottlers that engage in violence against organized labor. According to Plaintiffs, consistent with these policies, Coca Cola makes representations to consumers, in order to induce them to purchase Coca Cola products, that Coca Cola requires entities associated with its system to abide by the laws and regulations of the country in which they operate. Despite these policies, Plaintiffs further maintain, Coca Cola and CCEC have taken no action to punish any of the CCI managers implicated in the violence committed against Plaintiffs.
After their release the Union-member Plaintiffs continued their peaceful protest outside their former workplaces. Eventually, CCI presented them an offer purportedly on behalf of Trakya, providing for back pay without reinstatement. The workers accepted this arrangement, so as to resolve their "local labor dispute," but asserting in the complaint that the settlement was intended only "to cover the local labor dispute, not the violence by the Çevik Kuvvet." (Id. ¶ 90.)
Plaintiffs invoke the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331; the ATS and the TVPA with regard to their claims alleging violations of international human rights law; RICO as to Defendants' alleged racketeering activity; and supplemental jurisdiction in respect of various New York statutory and common law causes of action, including assault, battery, negligence, intentional and negligent infliction of emotional distress, false imprisonment, fraudulent misrepresentation, injurious falsehood, unjust enrichment, and deceptive practices.
Defendants assert several grounds in support of their motions to dismiss: forum non conveniens; international comity; the act of state doctrine; failure to establish subject matter jurisdiction or to state a claim for relief under the ATS, TVPA or RICO. CCI additionally challenges the Court's personal jurisdiction over CCI.
As a preliminary matter, the Court considers whether it must address the jurisdictional objections raised by Defendants' motions before reviewing their grounds to dismiss under the doctrine of forum non conveniens. This question presents two issues that, with conflicting results, have arisen with some frequency in this context. First is whether a dismissal warranted by forum non conveniens constitutes a merits-based decision and therefore, consistent with the bounds of Article III of the federal Constitution, the doctrine cannot be applied without a prior adjudication of the court's subject matter jurisdiction. The second issue is whether, even if the rule implicates no determination on the merits of dispute, the Court nonetheless must address the forum question sequentially after confirming that it possesses jurisdiction over the subject matter and over the parties. A substantial Circuit Court split now exists concerning these questions.
In Dominguez-Cota v. Cooper Tire & Rubber Co., the Fifth Circuit ruled that it was unable to characterize forum non conveniens as a "non-merits" issue because in assessing a motion for dismissal on forum non conveniens grounds the court necessarily "'becomes entangled in the merits'" of a dispute, and therefore a forum non conveniens determination could not be made before the court confirmed its subject matter jurisdiction. 396 F.3d 650, 654 (5th Cir. 2005) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1987)). In an earlier case examining the same issue, the D.C. Circuit reached an opposite result. See In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998). It concluded that a finding of forum non conveniens is "merits-free," and therefore a dismissal on such grounds before the Court's determination of subject matter jurisdiction "makes no assumption of law-declaring power that violates the separation of powers principles." Id. at 255.
The Second Circuit pronounced its position on these questions in Monegasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002). Subscribing to the reasoning in Papandreou, it held that neither it nor district courts in this Circuit are barred from bypassing questions of jurisdiction and proceeding directly to rule on an invocation of forum non conveniens, at least where any jurisdictional challenge does not implicate a threshold constitutional question. See id. at 497 (citing Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 n.11 (2d Cir. 2000)). More recently, in Dattner v. Conagra Foods, Inc., the Second Circuit, noting the Circuit split on these issues and disagreeing with the contrary view articulated by the Fifth Circuit, reaffirmed its finding in Monegasque that a forum non conveniens dismissal "is a non-merits decision akin to dismissal for lack of personal jurisdiction," and hence requires no antecedent verification of jurisdiction. 458 F.3d 98, 102 (2d Cir. 2006) (per curiam). In so concluding, the Monegasque court pointed to the Supreme Court's acknowledgment that "some of its precedents have 'diluted the absolute purity of the rule that Article III jurisdiction is always an antecedent question.'" Monegasque, 311 F.3d at 497 (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998)). The Second Circuit construed the Supreme Court's disapproval of the assumption of hypothetical jurisdiction for the purpose of deciding the merits of a dispute, a doctrine reinforced in Steel Co., to apply only to bar resolution of contested questions of law when the court's jurisdiction is in doubt, and more specifically, where the potential lack of jurisdiction raises no constitutional issues. See id.
Recently, the Third Circuit staked out another course, essentially departing from these courts on both counts. Rejecting the Fifth Circuit's reasoning, it ruled that forum non conveniens "is a non-merits ground for dismissal." Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd., 436 F.3d 349, 359 (3d Cir. 2006), cert. granted, ___ U.S. ___, No. 06-102, 2006 WL 2055541 (Sept. 26, 2006). At the same time, disagreeing with the D.C. Circuit and the Second Circuit, the Third Circuit declared that a ruling on a forum non conveniens "presumes that the court deciding this issue has valid jurisdiction (both subject matter and personal jurisdiction) and venue." Id. at 361. It held that district courts "must have jurisdiction before they can rule on which forum, otherwise available, is more convenient to decide the merits." Id. at 363-64; see also Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir. 1997); Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001), aff'd in part, cert. dismissed in part, 538 U.S. 468 (2003).
Nonetheless, Monegasque represents the law in this Circuit on this subject, and the Court accordingly follows it in proceeding below to consider directly Defendants' invocation of forum non conveniens. However, while ordinarily Monegasque would be the last word here on this issue, rendering it unnecessary for the Court to tarry any longer with consideration of whether it may bypass inquiry concerning subject matter and personal jurisdiction prior to ruling on Defendants' inconvenient forum challenges, the Court nonetheless feels obliged to add some supplemental considerations. It does so because when Monegasque was decided, the Circuit split that became pronounced and was intensified by Malaysia had not manifested. Thus, neither the district court nor the Second Circuit in Monegasque had occasion to fully address the conceptual grounds and supporting arguments articulated by the Third Circuit to underpin its divergence from Papandreou and Monegasque. On the prospect that this basic jurisdictional disagreement, with its now clearer demarcations, is reopened on any appeal of this action, the Court deems it appropriate to elaborate on its consideration of the questions that frame the debate, and to point out how the particular facts and issues presented here compellingly support the approach taken in Monegasque in permitting a preemptive dismissal on forum non conveniens grounds. As a foundation for the discussion, the Court underscores some points that may not have been thoroughly examined in the earlier disputes on these issues as previously argued before this Court.
A helpful starting point in this endeavor is a review of the basis of authority and the avowed purpose of forum non conveniens. In answer to both prongs of this inquiry, the Second Circuit has declared that the doctrine "finds its roots in the inherent power of the courts 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Monegasque, 311 F.3d at 497 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)) (emphasis added).
Inherent power is one of the several sources of decisional authority that occupy the repository of judicial power conferred by Article III of the Constitution. Though not explicitly mentioned in Article III, inherent power there resides among the grounds that are expressly enumerated which provide warrant for federal courts to exercise jurisdiction. See Chambers, 501 U.S. at 43 (acknowledging that inherent powers are those that "'must necessarily result to our Courts of justice from the nature of their institution,' powers 'which cannot be dispensed with in a Court, because they are necessary to the exercise of all others'" (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)); see also In re Martin-Trigona, 795 F.2d 9, 10-11 (2d Cir. 1986) (acting to enjoin a litigant pursuant to the court's "inherent power to protect our jurisdiction from conduct that threatens our ability to carry out Article III functions"). By contrast, the federal judiciary's Article III express empowerments encompass the original mandates that issue from specific powers described in the Constitution itself, and the derivative competence invested by statute enacted pursuant to Article III. Combined, these latter sources comprise subject matter jurisdiction, what the Supreme Court has characterized as "the courts' statutory or constitutional power to adjudicate the case." Steel Co., 523 U.S. at 89 (emphasis in original).
In this connection, inherent power in the service of the courts' judicial efficiency interests plays a vital role in Article III's jurisdictional design complementary to the courts' law-declaring function. For it embodies a potent device, the often critical interim authority a court possesses to exercise jurisdiction to determine whether it has jurisdiction over a given matter. See United States v. United Mine Workers, 330 U.S. 258, 293 (1947) ("[T]he District Court had the power to preserve existing conditions while it was determining its own authority to grant injunctive relief."); In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 374 (2d Cir. 2005) ("The question of whether federal jurisdiction exists is not always free from doubt, and a federal court may have to examine and determine the facts and the law before concluding whether jurisdiction is appropriate. Thus, it follows that 'a court has jurisdiction to determine its own jurisdiction.'") (quoting United Mine Workers, 330 U.S. at 292).
The Supreme Court has endorsed the observation that "'Jurisdiction ... is a word of many, too many, meanings.'" Steel Co., 523 U.S. at 90 (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). One such meaning is "power to declare the law." Ex parte McCardle, 74 U.S. (7 Wall) 506, 514 (1868). Another distinct sense of the term commonly used in statutes, as the Supreme Court acknowledged in Steel Co., connotes "remedial powers of the court," as opposed to the substantive elements that constitute a cause of action and thereby confer law-declaring subject matter jurisdiction. 523 U.S. at 90. (emphasis in original).
In Steel Co., the Supreme Court identified two types of federal jurisdictional disputes that emanate from Article III and classified them in a decisional order of operations. First are "non-discretionary jurisdictional question[s]" that implicate the existence of Article III authority ---constitutional standing, for example --- and thus that courts cannot set aside, but must resolve before adjudicating the merits of a dispute. Steel Co., 523 U.S. at 100 n.3 (explaining that in a decision affirming a district court's "discretionary declination of pendent jurisdiction ... the case decided not a merits question before a jurisdictional question, but a discretionary jurisdictional question before a non-discretionary jurisdictional question"). Second are "discretionary" jurisdictional questions, as to which the courts may decline to exercise judicial authority they presumably possess, and to dismiss an action prior to a determination of whether in fact subject matter jurisdiction prescribed in accordance with Article III exists and preceding any examination of the merits. Id.
The structural basis for the preceding distinction may be found in the source of Article III power which governs the courts' exercise of jurisdiction in the particular case. The courts cannot sidestep a non-discretionary threshold jurisdictional question and proceed to rule on the merits of a case because the existence of subject matter jurisdiction is determined by the authority contained in the explicit terms of Article III that define the "'nature and limits of the judicial power of the United States,'" and thus embody the principle of separation of powers. Id. at 94-95 (quoting Mansfield, C.& L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). Discretionary jurisdictional questions, on the other hand, emanate from judicial latitude accorded by statute or by judicially self-imposed limits on exercise of jurisdiction that are drawn from the courts' inherent power, and ordinarily implicate application of the courts' sound judgment in matters concerning the proper administration of judicial affairs. Among the jurisdictional disputes that commonly arise from such judge-made doctrine are those involving mootness, ripeness, proper venue, and common law standing. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (noting that justification for discretionary pendent jurisdiction rests in part on "considerations of judicial economy"); 13A Charles A. Wright et al., Federal Practice & Procedure § 3533.1, at 222 (2d ed. 1984) ("Beyond the Article III core, mootness decisions frequently reflect avowedly flexible doctrines of remedy and judicial administration.").
In the discretionary category the Supreme Court has recognized several types of common jurisdictional disputes. In Steel Co., for example, the Supreme Court specifically mentioned judicial abstention to exercise pendent jurisdiction over state-law claims as an instance of a non-merits jurisdictional question that may justify dismissal of a case ahead of a ruling on subject matter jurisdiction. See 523 U.S. at 100 n.3 (citing Moor v. County of Alameda, 411 U.S. 693 (1973)). Similarly, in Ruhrgas AG v. Marathon Oil Co. the Supreme Court equated dismissals predicated on the absence of personal jurisdiction to those based on "non-merits grounds." 526 U.S. 574, 584 (1999). It held that because such actions do not entail exercise of judicial power to adjudicate the merits, there is no constitutional rule prescribing a sequential hierarchy directing the order of a court's assessment of its jurisdiction. See id. at 578 ("[T]here is no unyielding jurisdictional hierarchy."). Consequently, a court is not barred from considering personal jurisdiction and dismissing an action on this ground before inquiring into its subject matter jurisdiction.
The Supreme Court has also identified disputes over proper venue as among discretionary non-merits jurisdictional questions over which courts may exercise authority to dismiss without adherence to any rigid decisional line. In considering whether a challenge to personal jurisdiction must be resolved before a question concerning venue, the Supreme Court concluded that "when there is a sound prudential justification for doing so ... a court may reverse the normal order of considering personal jurisdiction and venue." Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979) (emphasis added); see also Ellis v. Dyson, 421 U.S. 426, 433-34 (1975) (abstention from interfering with state judicial proceedings pursuant to the doctrine of Younger v. Harris, 401 U.S. 37 (1971), without preceding inquiry as to existence of subject matter jurisdiction); Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (dismissal on mootness grounds bypassing analysis of a challenge on statutory standing to sue).
At bottom, as the Supreme Court has recognized, a common thread running through these instances of discretionary jurisdictional questions is overriding "concerns of judicial economy and restraint." Ruhrgas, 526 U.S. at 586. Because these cases essentially raise issues entailing comity, procedure, efficiency and other prudential considerations, they implicate the courts' ability to effectively manage judicial business. For this reason, these values counsel pragmatism and flexibility in the courts' assessment of whether or not to bypass a review of the merits of an action and in arranging the order of resolution of the disputes presented. A shorthand expression for these institutional interests in the administration of justice is according judges optimal freedom to judge, in other words, sufficient decisional room, short of prematurely adjudicating the merits of a controversy, within which to exercise sound judgment in the choice of means at their disposal to guide the disposition of litigation unhampered by the constraints of excessive formalism. That discretion should include, for instance, ...