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Wiwa v. Royal Dutch Petroleum Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 23, 2009

KEN WIWA, ET AL., PLAINTIFFS,
v.
ROYAL DUTCH PETROLEUM CO., ET AL., DEFENDANTS.
KEN WIWA, ET AL., PLAINTIFFS,
v.
BRIAN ANDERSON, DEFENDANT.
ESTHER KIOBEL, ET AL., PLAINTIFFS,
v.
ROYAL DUTCH PETROLEUM CO., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

Currently before the Court is a motion for partial summary judgment filed by Defendants Shell Petroleum, N.V., Shell Transport and Trading Company, Ltd., and Brian Anderson (collectively, "Defendants") affecting claims and plaintiffs in the three above-captioned cases. Defendants argue that the Court should dismiss plaintiffs' claims that are based on alleged harm to third parties because the plaintiffs who bring these claims were not administrators or executors of these third parties' estates at the time plaintiffs commenced their claims against Defendants. The claims at issue in this motion include (1) state law claims for damages resulting from the death of a relative ("state wrongful death claims"), (2) state tort law claims based on non-fatal injuries suffered by a relative ("state survival claims"; collectively with state wrongful death claims, "third-party state law claims"), and (3) federal law claims brought under the Alien Tort Statute, 28 U.S.C. § 1350, based on harm suffered by a relative killed in violence for which Defendants are allegedly liable ("third-party ATS claims"; collectively with third-party state law claims, "third-party claims"). Plaintiffs in Wiwa v. Royal Dutch Petroleum Co. ("Wiwa I" Plaintiffs) and Wiwa v. Anderson ("Wiwa II" Plaintiffs; collectively with Wiwa I Plaintiffs, "Wiwa" Plaintiffs) argue, as an initial matter, that Defendants have waived their arguments with respect to certain Wiwa Plaintiffs' third-party claims because Defendants failed to raise these arguments in previous motions and pleadings. Wiwa Plaintiffs, as well as Plaintiffs in Kiobel v. Royal Dutch Petroleum Co. ("Kiobel" Plaintiffs; collectively with Wiwa Plaintiffs, "Plaintiffs"), further argue that, to the extent that Defendants' arguments are not waived, Plaintiffs may still properly assert their third-party claims under applicable law. Finally, Plaintiffs argue that, should the Court find that Plaintiffs' third-party claims are defective, the Court should grant them leave to ratify, join, or substitute the real parties in interest pursuant to Federal Rule of Civil Procedure 17(a)(3) ("join the real parties in interest").*fn1

For the reasons set forth below, (1) none of Defendants' arguments are deemed waived; (2) Defendants are GRANTED leave under Rule 15(a) to amend their answers in Wiwa I and Wiwa II to properly challenge Wiwa Plaintiffs' capacity to bring their third-party state law claims; (3) Plaintiffs are GRANTED leave to join the real parties in interest under Rule 17(a)(3), and (4) Defendants' motion for partial summary judgment is DENIED, without prejudice and with leave to refile if Plaintiffs have not joined the real parties as set out in the Conclusion to this Opinion and Order.*fn2

BACKGROUND

I. THE PARTIES

A. Plaintiffs

The Wiwa Plaintiffs who bring third-party claims are Ken Wiwa Jr., Blessing Kpuinen, Lucky Doobee, Friday Nuate, Monday Gbokoo, David Kiobel, and James N-nah (the "Third-Party Wiwa Plaintiffs"). The Kiobel Plaintiffs who bring third-party claims are Esther Kiobel and Kpobari Tusima (the "Third-Party Kiobel Plaintiffs"; collectively with the Third-Party Wiwa Plaintiffs, the "Third-Party Plaintiffs").

B. Defendants

Wiwa I and Kiobel Plaintiffs sue Shell Petroleum, N.V., and Shell Transport and Trading Company, Ltd., two European oil companies that Plaintiffs allege were involved with the Nigerian government's perpetration of a host of human rights violations against Plaintiffs and their relatives.*fn3 Wiwa II Plaintiffs sue Brian Anderson ("Anderson"), the former managing director of SPDC, an entity related to the two oil companies sued in Wiwa I and Kiobel.

II. THIRD-PARTY CLAIMS .

A. Third-Party State Law Claims

Only Wiwa Plaintiffs bring third-party state law claims.

Plaintiffs Wiwa Jr. and Kpuinen assert the only state wrongful death claims that remain in this litigation.*fn4

The third-party state survival claims that remain are: (1) the (a) assault and battery, (b) intentional infliction of emotional distress, (c) negligent infliction of emotional distress, and (d) negligence claims that Plaintiffs Wiwa Jr. and Kpuinen bring against all Defendants, and (2) the (a) negligent infliction of emotional distress, and (b) negligence claims that Plaintiffs Doobee, Nuate, Gbokoo, and David Kiobel bring against Defendant Anderson.*fn5

B. Third-Party ATS Claims

Both Wiwa and Kiobel Plaintiffs bring third-party ATS claims.*fn6 Third-Party Wiwa Plaintiffs assert the following third-party ATS claims against the Defendants in Wiwa I: (1) summary execution, (2) crimes against humanity, (3) torture, (4) cruel, inhuman, or degrading treatment, (5) arbitrary arrest and detention, and (6) violation of the rights to life, liberty and security of person and peaceful assembly and association. (Wiwa I Fourth Am. Compl. ¶¶ 121- 50.) All Third-Party Wiwa Plaintiffs except Plaintiff N-Nah bring the same six claims against the Defendant in Wiwa II.*fn7 (Wiwa II Second Am. Compl. ¶¶ 80-107.)

Third-Party Kiobel Plaintiffs assert the following third-party ATS claims against Defendants: (1) crimes against humanity, (2) torture/cruel, inhuman and degrading treatment, and (3) arbitrary arrest and detention.*fn8 (Kiobel Am. Compl. ¶¶ 88-117.)

III. PROCEDURAL HISTORY .

Wiwa I Plaintiffs filed their original Complaint on November 8, 1996, and have since filed four amended complaints, the most recent of which was filed on October 2, 2007. Wiwa II Plaintiffs filed their original Complaint on March 7, 2001, an Amended Complaint on March 27, 2002, and a Second Amended Complaint on September 15, 2003.*fn9 Kiobel Plaintiffs filed their original Complaint on September 20, 2002, and an Amended Complaint on May 17, 2004. Over the past twelve years, the parties in these related actions have engaged in extensive discovery, and have filed several dispositive motions.*fn10

IV. FACTS .

As set forth in the various complaints, Plaintiffs and their relatives actively protested Defendants' oil exploration and production activities in the Ogoni region of Nigeria during the period from 1990 through 1999. Plaintiffs allege that their lawful protests were violently suppressed by agents of the Nigerian government, and that Defendants can be held liable for this violence. A more detailed description of the facts underlying these cases is provided in the Court's previous orders, familiarity with which is presumed. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002).

The facts relevant to this motion for partial summary judgment involve the Third-Party Plaintiffs' representative status and are undisputed.

Third-Party Plaintiffs currently state their authority to bring their third-party claims in the following ways:

(1) Ken Wiwa Jr. files suit "on behalf of his deceased father, Ken Saro-Wiwa, and as representative of the estate of his father, Ken Saro-Wiwa, now deceased" (Wiwa I Fourth Am. Compl. ¶ 7);

(2) Blessing Kpuinen files suit as "administrator of the estate of her husband, John Kpuinen, now deceased" (id. ¶ 9);

(3) Lucky Doobee files suit "on behalf of his brother, Saturday Doobee, now deceased" (id. ¶ 12);

(4) Friday Nuate files suit "on behalf of her husband, Felix Nuate, [now deceased,] and their surviving children" (id. ¶ 13);

(5) Monday Gbokoo files suit "on behalf of his brother, Daniel Gbokoo, now deceased" (id. ¶ 14);

(6) David Kiobel files suit "on behalf of his siblings, Stella Kiobel, Leesi Kiobel, and Baridi Kiobel, and on behalf of his minor siblings, Angela and Godwill, for harm suffered for the death of their father Dr. Barinem Kiobel" (id. ¶ 15);

(7) James N-nah files suit "on behalf of his late brother, Uebari N-nah" (id. ¶ 16);*fn11

(8) Esther Kiobel files suit "on behalf of her late husband, Dr. Barinem Kiobel" (Kiobel Am. Compl. ¶ 6); and

(9) Kpobari Tusima files suit "on behalf of his late father, Clement Tusima" (id. at 1, caption).

Despite the variety of ways they describe their representative status, all Third-Party Plaintiffs concede that, when they first filed their third-party claims against Defendants, the New York State Surrogate's Court for the County of New York ("Surrogate's Court") had not appointed any of them as administrators or executors of their deceased relatives' estates.*fn12 (Wiwa Opp'n 10 n.11; Wiwa Pls.' Local Rule 56.l Counterstatement ¶¶ 2, 7, 10, 13, 16, 19.) However, in the last two years, all Third-Party Plaintiffs, except for David Kiobel, Esther Kiobel, and Kpobari Tusima, have been formally granted letters of administration by the Surrogate's Court.*fn13

DISCUSSION

I. WAIVER PURSUANT TO RULE 9(a)

Before reaching the merits of Defendants' motion for partial summary judgment, the Court addresses Wiwa Plaintiffs' contention that Defendants have waived their arguments with respect to certain Third-Party Wiwa Plaintiffs' third-party claims. Specifically, Wiwa Plaintiffs contend that Defendants' challenge to Third-Party Wiwa Plaintiffs' third-party state law claims raises the defense of lack of capacity to sue ("capacity defense"), and that this defense has been waived with respect to certain of the Third-Party Wiwa Plaintiffs because Defendants failed to raise the defense in their previous motions and pleadings.*fn14 The Court finds Defendants have not waived the capacity defense.

A. Legal Standard

Federal Rule of Civil Procedure 9(a) requires that the lack of capacity defense be raised "by a specific denial, which must Plaintiffs Wiwa Jr., Doobee, Gbokoo, N-nah, and Nuate received limited or ancillary letters of administration (collectively, "letters of administration") from the Surrogate's Court on October 10 and 15, 2008. (Decl. of Jennifer Green, Exs. 1-5, Oct. 17, 2008.) state any supporting facts that are peculiarly within the party's knowledge." Fed. R. Civ. P. 9(a) (2008). The capacity defense is an affirmative defense,*fn15 and can be waived if not raised "in a timely manner, i.e., at the outset of the lawsuit." Pressman v. Estate of Steinvorth, 860 F. Supp. 171, 176 (S.D.N.Y. 1994); see also Moore's Federal Practice § 9.02[6] (3d ed. 2008).

A court may find it inappropriate to deem an affirmative defense, such as the capacity defense, waived when "the defense is raised at the first pragmatically possible time and applying it at that time would not unfairly prejudice the opposing party."*fn16 Rose v. Amsouth Bank of Fla., 391 F.3d 63, 65 (2d Cir. 2004) (internal quotations omitted); see also Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (finding waiver inappropriate where an affirmative defense was not raised until summary judgment because plaintiff was not prejudiced); Gardner by Gardner v. Parson, 874 F.2d 131, 139 n.12 (3d Cir. 1989) (holding waiver of capacity defense inappropriate where considering it caused no undue prejudice to the opposing party); Asbestos Workers Syracuse Pension Fund by Collins v. M.G. Indus. Insulation Co., Inc., 875 F. Supp. 132, 137-38 (N.D.N.Y. 1995) (considering capacity defense despite its absence from defendant's answer because no prejudice would result to plaintiff).*fn17

In this case, the Court does not deem the capacity defense waived because (1) Defendants raised the defense at the first pragmatically possible time, and (2) Wiwa Plaintiffs would suffer no unfair prejudice if the Court were to apply the defense at this time.*fn18

B. Defendants Raised the Capacity Defense at the First Pragmatically Possible Time

The Court finds that Defendants raised the capacity defense promptly after discovering that the Third-Party Wiwa Plaintiffs were not administrators or executors of their relatives' estates. The first five complaints filed in the Wiwa cases consistently alleged that Plaintiffs Wiwa Jr. and Kpuinen were the administrators or executors of their relatives' estates.*fn19 (Wiwa I Compl. ¶¶ 7, 9, Nov. 8, 1996; Wiwa I Am. Compl. ¶¶ 7, 9, Apr. 29, 1997; Wiwa II Compl. ¶¶ 6, 8, Mar. 5, 2001; Wiwa I Second Am. Compl. ¶¶ 7, 9, Mar. 27, 2002; Wiwa II Am. Compl. ¶¶ 6, 8, Mar. 27, 2002.) In September 2003, Wiwa Plaintiffs filed two further complaints that similarly alleged that these two plaintiffs were administrators or executors. (Wiwa I Third Am. Compl. ¶¶ 7, 9; Wiwa II Second Am. Compl. ¶¶ 7, 9.)

The September 2003 Wiwa complaints also added Plaintiffs Doobee, Nuate, Gbokoo, David Kiobel, and N-nah to the litigation. Wiwa Plaintiffs alleged that all of these newly-added plaintiffs, except Plaintiff David Kiobel, were administrators or executors of their relatives' estates.*fn20 (Wiwa I Third Am. Compl. caption & ¶¶ 12-15; Wiwa II Second Am. Compl. ¶¶ 11-14.) Defendants subsequently moved to dismiss Plaintiff David Kiobel's state wrongful death claim on the ground that he was not the administrator or executor of his relative's estate.*fn21 (96-D.E. 87.)

While this motion to dismiss was pending, the parties engaged in discovery regarding whether the other Third-Party Wiwa Plaintiffs were administrators or executors as alleged. (Wiwa Opp'n 4 n.3; Wiwa Reply 2-3.) This discovery raised doubts as to whether Third-Party Wiwa Plaintiffs had received letters of administration for, or had been named executors of, their relatives' estates.*fn22 Shortly thereafter, Defendants filed this motion, raising the capacity defense.*fn23

Defendants therefore raised the capacity defense at the first pragmatically possible point in the litigation: upon discovering facts suggesting that Third-Party Wiwa Plaintiffs did not have the legal status they alleged in their complaints.*fn24

See Animazing Entm't, Inc. v. Louis Lofredo Assocs., Inc., 88 F. Supp. 2d 265, 268 (S.D.N.Y. 2000) (noting that waiver would be improper where a capacity defense was raised promptly after discovery of facts giving rise to the defense).

C. No Unfair Prejudice to Plaintiffs.

The Court also finds that Plaintiffs would suffer no unfair prejudice if the Court were to allow Defendants to assert the capacity defense at this time.

In determining whether a plaintiff would be unfairly prejudiced by a defendant belatedly raising the capacity defense, courts look to several factors. First, they consider whether, once a defendant raises a post-answer affirmative defense, the plaintiffs have an opportunity to fully brief the issue. See Curry, 316 F.3d at 331 (finding no undue prejudice to plaintiff where he had an adequate opportunity to brief an affirmative defense once defendant raised it); see also Asbestos Workers, 875 F. Supp. at 137-38. Second, courts consider when, subsequent to the answer, the affirmative defense was raised. "An objection raised in the early stages of litigation and prior to the onset of trial is far less likely to cause prejudice than one raised on the eve of trial." Asbestos Workers, 875 F. Supp. at 137. Third, courts consider whether the plaintiff had access to the facts giving rise to the defense. See Monahan, 214 F.3d at 284 (finding that an affirmative defense raised for the first time during summary judgment caused no undue prejudice to plaintiffs where they had prior access to the facts underlying the defense).

Third-Party Wiwa Plaintiffs will not be unfairly prejudiced if the Court finds waiver of Defendants' capacity defense inappropriate. First, Wiwa Plaintiffs have had a full opportunity to brief the issue, including filing supplemental briefing. Second, given the protracted nature of this litigation, although Defendants raised this defense many years after the first complaint was filed against them, they nonetheless raised it well before the eve of trial. In May 2004, when Defendants filed this motion for partial summary judgment, the deadline for fact-discovery was closing but many discovery disputes remained outstanding, multiple discovery requests had yet to be responded to in full, and expert discovery had not yet begun. Finally, Third-Party Wiwa Plaintiffs and their counsel had access to the facts giving rise to Defendants' capacity defense.*fn25 Thus, Third-Party Wiwa Plaintiffs will not be unfairly prejudiced if the Court finds waiver inappropriate.

Accordingly, Defendants' capacity defense is not deemed waived. Pursuant to Rule 15, the Court GRANTS Defendants leave to amend their pleadings to comply with Rule 9(a). See Monahan, 214 F.3d at 284 (holding that district court can treat an affirmative defense raised for the first time in a motion for summary judgment as a Rule 15 motion to amend defendants' answer); 5A Wright & Miller, Federal Practice & Procedure § 1295 (3d ed. 2007) (noting that the "liberal amendment policy of Rule 15 gives trial courts the discretion to allow late denials of capacity").*fn26

Having found that Defendants did not waive their capacity defense, the Court now proceeds to the merits of Defendants' partial summary judgment motion.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). A genuine issue of material fact exists if there is sufficient evidence to allow a "reasonable jury" to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden of showing the absence of any genuine issue of material fact rests with the moving party. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)); see also Celotex, 477 U.S. at 325. Once this initial burden has been met, the non-moving party must set forth "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). At this stage, the Court must view the evidence presented "in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994) (internal quotations omitted).

III. ARGUMENTS ON THE MERITS.

Defendants seek summary judgment on the Third-Party

Plaintiffs' third-party state law and third-party ATS claims. Specifically, Defendants argue that because Third-Party Plaintiffs are not administrators or executors of their deceased relatives' estates, (1) Third-Party Wiwa Plaintiffs lack the capacity to bring, and have not satisfied a condition precedent to bringing, their third-party state law claims; and (2) all Third-Party Plaintiffs lack statutory standing to bring their third-party ATS claims.

Reviewing the evidence in the light most favorable to Plaintiffs, the Court concludes that because Third-Party Plaintiffs are not administrators or executors of their deceased relatives' estates, (1) Third-Party Wiwa Plaintiffs lack the capacity to bring, and have not satisfied a condition precedent to bringing, their third-party state law claims, and (2) all Third-Party Plaintiffs lack statutory standing to bring their third-party state law claims. However, the Court grants Third-Party Plaintiffs leave, pursuant to Rule 17(a)(3), to join the real parties in interest, which would cure these defects in their claims. Fed. R. Civ. P. 17(a)(3) (providing that after joining the real parties, an "action proceeds as if it had been originally commenced by the real party in interest").

A. Third-Party State Law Claims

1. Wrongful Death Claims

Plaintiffs Wiwa Jr. and Kpuinen assert the only state wrongful death claims that remain in this litigation. The Court finds that under New York law, they lack the capacity to bring, and have not satisfied a condition precedent to bringing, these claims.*fn27 Pursuant to the New York wrongful death statute, only the "personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death." N.Y. Est. Powers & Trusts L. ("EPTL") § 5-4.1(1) (2008). A "personal representative" is "a person who has received letters to administer the estate of a decedent." EPTL § 1-2.13 (2008). See also Mingone v. State, 474 N.Y.S.2d 557, 560 (2d Dept. 1984) ("[a] personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a . . . wrongful death action").

The requirement that a wrongful death plaintiff be a legal representative of the decedent's estate implicates not only who has capacity to bring such a claim, but also is a condition precedent to bringing such a claim. See Carrick v. Cent. Gen. Hosp., 51 N.Y.2d 242, 250 n.2 (N.Y. 1980) (finding that the absence of a duly appointed administrator does not "constitute[] a mere defect in the capacity of the named plaintiff to bring the action" but is a lack of an essential element of the action); Mingone 474 N.Y.S.2d at 559, 560-61 (affirming dismissal of wrongful death action where a plaintiff received letters of administration after serving a summons on defendants but before serving a complaint because "the action was not commenced by the personal representative"); In re Seventh Judicial Dist. Asbestos Litigation, 778 N.Y.S.2d 867, 872 (N.Y. Sup. Ct. 2004) ("the existence of a qualified administrator is not only an essential element to the statutory right to recover for a wrongful death, but indeed, is a condition precedent").

Neither Plaintiff Wiwa Jr. nor Kpuinen was in possession of letters of administration for their deceased relatives' estates at the time the Wiwa actions were filed. (Defs.' 56.1 Statement ¶¶ 2, 5; Wiwa Opp'n 10 n.11.) Thus, Plaintiffs Wiwa Jr. and Kpuinen were not the personal representatives of their relatives' estates at the time they filed their state wrongful death claims against Defendants. They therefore lacked the capacity to bring, and lacked a condition precedent to bringing, those claims.*fn28

2. Survival Claims

The Third-Party Wiwa Plaintiffs' state survival claims are also defective under New York law. The New York survival statute provides that, "[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent . . . ." EPTL 11-3.2(b) (2008). As is the case under the New York wrongful death statute, a "personal representative" is "a person who has received letters to administer the estate of a decedent." EPTL § 1-2.13 (2008).

New York courts have held that only the personal representative of a decedent has the capacity to bring a state survival action. See Lichtenstein v. State, 712 N.E.2d 1218, 1219 (N.Y. 1999) ("When, as here, the claim is a 'survival' action on behalf of an intestate decedent, the proper claimant can be only a duly appointed personal representative in receipt of letters of administration."); see also Estate of Masselli v. Silverman, 606 F. Supp. 341, 343 (S.D.N.Y. 1985) (finding that the New York survival statute "requires that all surviving actions be brought by a legally appointed representative") (citing Mogavero v. Stony Creek Dev. Corp., 385 N.Y.S.2d 899, 900 (4th Dept. 1976)).

Furthermore, a claimant's attaining personal representative status is a condition precedent to bringing an action under the state survival statute. See, e.g., Mogavero, 385 N.Y.S.2d at 900-01 (dismissing a survival action despite plaintiff's appointment as personal representative subsequent to commencing the action); see also Mingone, 474 N.Y.S.2d at 560 (dismissing a survival action because "no administrator had been duly appointed to serve as the personal representative of the decedent's estate at the time the summons was served").

Third-Party Wiwa Plaintiffs did not possess letters of administration for their relatives' estates at the time they filed the Wiwa actions. (Defs.' 56.1 Statement ¶¶ 2, 7, 10, 13, 16; Wiwa Opp'n 10 n.11.) These plaintiffs were therefore not the personal representatives of their relatives' estates when they filed their state survival claims against Defendants. Accordingly, Third-Party Wiwa Plaintiffs lacked the capacity to bring, and lacked a condition precedent to bringing, their third-party state survival claims.*fn29

B. Third-Party ATS Claims

As described above, Third-Party Plaintiffs also bring third-party ATS claims against Defendants. Defendants argue that Third-Party Plaintiffs lack statutory standing to assert these third-party ATS claims because these plaintiffs were not administrators or executors of their relatives' estates at the time they brought their third-party ATS claims.*fn30

The Court finds that, because Third-Party Plaintiffs can acquire letters of administration from the Surrogate's Court, the Court should look to New York State law to determine their statutory standing. For the reasons stated above, under New York State law, Third-Party Plaintiffs lack statutory standing to assert their third-party ATS claims.

"Statutory standing is a threshold issue that determines whether a party is properly before the court".*fn31 See U.S. v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 150 n.9 (3d Cir. 2003). Because federal law is silent on the question, Courts evaluating a plaintiff's statutory standing to bring third-party ATS claims look in the first instance to state law. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162, 190-92 (D. Mass. 1995). Only if the application of state law would defeat the purpose of an asserted federal cause of action do courts look instead to the most analogous federal statute.*fn32 Id.; see also Bowoto v. Chevron Corp., No. C 99-02506, 2006 WL 2455761, at *11-12 (N.D. Cal. Aug. 22, 2006); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1357-58 (S.D. Fla. 2001); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 368 (E.D. La. 1997).

Nearly all the Third-Party Plaintiffs have received letters of administration from the Surrogate's Court. There is no evidence that those who have not received these letters cannot do so.*fn33 Thus, in this instance, the application of state law to the question of who has statutory standing to bring these claims would not defeat the purpose of Third-Party Plaintiffs' third-party ATS claims.

Accordingly, New York state law should determine whether Third-Party Plaintiffs have statutory standing to bring their third-party ATS claims.

For the purposes of this inquiry, Third-Party Plaintiffs' third-party ATS claims can be divided into two categories: (1) claims for damages resulting from the death of a relative ("ATS wrongful death claims," e.g., summary execution), and (2) claims for damages based on non-fatal injuries suffered by a deceased relative ("ATS survival claims," e.g., crimes against humanity; torture; cruel, inhuman, and degrading treatment; arbitrary arrest and detention; violation of rights to life, liberty, security, and association).

As discussed above, under New York law, only the personal representative of a decedent may bring claims for damages resulting from either (1) the decedent's death, or (2) non-fatal injuries suffered by the decedent. See Sections III.A.1 & 2, supra. None of the Third-Party Plaintiffs were personal representatives of their relatives' estates at the time they commenced these actions. See id. Although most Third-Party Plaintiffs have since acquired letters of administration for their deceased relatives, under New York State law, only those Third-Party Plaintiffs who were administrators or executors of their deceased relatives' estates when they commenced their third-party ATS actions would be "properly before the court."

U.S. v. $8,221,877.16 in U.S. Currency, 330 F.3d at 150 n.9.

Accordingly, under New York State law, Third-Party Plaintiffs lack statutory standing to bring either type of their third-party ATS claims.

If that were the end of the Court's inquiry, the Court would grant summary judgment in Defendants' favor and dismiss Third-Party Plaintiffs' third-party state law and ATS claims. However, Third-Party Plaintiffs have requested leave to join the real parties in interest pursuant to Rule 17(a)(3). The Court finds such leave warranted.

C. Leave to Join the Real Parties in Interest.

Wiwa Plaintiffs argue that dismissal of their third-party claims would be premature because, pursuant to Federal Rule of Civil Procedure 17(a)(3), they should be allowed a reasonable time to cure these claims' defects. (Wiwa Opp'n 16-17; Wiwa Suppl. Br. 9-10) Defendants allege that Plaintiffs have "intentionally misrepresented their status as administrators and executors" and thus that it would be inappropriate for the Court to grant Third-Party Plaintiffs leave to cure their claims under Rule 17(a)(3). (Wiwa Reply 7-8.) After a careful consideration of the facts before it, the Court grants Third-Party Plaintiffs leave to cure their claims by joining the real parties under Rule 17(a)(3).

1. The Rule 17(a)(3) Standard

Rule 17(a)(3) provides that a court "may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action." Fed. R. Civ. P. 17(a)(3). This rule serves to "protect the defendant against a subsequent action by the party actually entitled to recover" and to "prevent forfeiture [of a plaintiff's claim] when . . . an understandable mistake has been made." Fed. R. Civ. P. 17 advisory committee's note (1966).

A district court "retains some discretion to dismiss an action where there was no semblance of any reasonable basis for the naming of the incorrect party." Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). However, a Rule 17(a)(3) substitution of plaintiffs "should be liberally allowed when the change is merely formal and in no way alters the original complaint's factual allegations as to the events or the participants." Id.

Accordingly, the bar for granting leave to join real parties is low. Courts should grant leave to join the real parties in interest if (1) the defect in the named plaintiffs plausibly resulted from mistake ("mistake" prong), and (2) correcting this defect would not unfairly prejudice defendants by changing the particulars of the claims against them ("prejudice" prong).*fn34

See Advanced Magnetics, 106 F.3d at 20-21.

A mistake in naming the real parties is plausible absent evidence of bad faith or intent to deceive. See id. Attorneys' mere ignorance, incompetence, or lack of diligence need not preclude granting joinder. See In re Initial Public Offering Securities Litigation, ("Public Offering") 2004 WL 3015304, at *7 (S.D.N.Y. 2004) (finding dismissal "too harsh a penalty" and allowing joinder of real parties under Rule 17(a)(3) where plaintiffs' counsel failed to investigate whether named plaintiffs had their claimed legal status); Brohan, 97 F.R.D. at 49 (allowing joinder where attorney made an "honest mistake" regarding the capacity requirements for a wrongful death action).

Where defendants had notice in the original complaint of the nature of the claims against them, joinder does not unfairly prejudice them. See Advanced Magnetics, 106 F. 3d at 20-21 (permitting joinder of the real parties where the original plaintiffs mistook their legal status and joining the real parties would result in a "virtually identical complaint" save for the change in party); see also, Public Offering, 2004 WL 3015304, at *7 (finding joinder appropriate where defendants were made aware of the allegations against them in the initial complaint).

2. Third-Party Plaintiffs Meet the 17(a)(3) Standard

The Court grants Third-Party Plaintiffs leave to join themselves as the real parties in interest. The first prong of Advanced Magnetics is met where, as here, there is no evidence of bad faith or intent to deceive. 106 F.3d at 20. The second prong of Advanced Magnetics is also met: Third-Party Plaintiffs' complaints will remain either actually or virtually unchanged. Id.

a. Mistake

Although Third-Party Plaintiffs have shown carelessness and a lack of diligence regarding their representative status, there is no evidence that they acted in bad faith. Accordingly, Third-Party Plaintiffs meet Advanced Magnetics' "mistake" prong.

i. Third-Party Wiwa Plaintiffs

Although Third-Party Wiwa Plaintiffs have proceeded with some carelessness and lack of diligence, the Court does not find that they acted with an intent to deceive.

Third-Party Wiwa Plaintiffs "admit to having erred in describing themselves as administrators" in regards to their third-party claims. (Wiwa Opp'n 10 n.11.) There is no evidence that this initial error was anything other than an honest mistake.*fn35 Third-Party Wiwa Plaintiffs subsequently failed to correct their mistake, despite amending their complaints several times. (See, e.g., Wiwa Reply 7 n.9.) Only in response to this motion for partial summary judgment did Third-Party Wiwa Plaintiffs seek leave to join the real parties in interest,*fn36 and only after substantial time had passed did they acquire letters of administration from the Surrogate's Court.

However, Third-Party Wiwa Plaintiffs faced great hurdles and ultimately demonstrated diligence in acquiring letters of administration. The Surrogate's Court had to undertake an analysis of its jurisdiction before issuing the first of its letters to a Third-Party Wiwa Plaintiff. (Decl. of Jennifer Green Att. at 2, Oct. 6, 2008.) In addition, the Surrogate Court had to adapt its procedures to accommodate Third-Party Wiwa Plaintiffs' "unique circumstances," including creating mechanisms for applicants to provide sworn testimony to explain the absence of a death certificate. (Id. Att. at 4.)

Complying with the Surrogate Court's adapted procedures presented its own difficulties. Plaintiff Kpuinen's first application stalled before the Surrogate's Court for many years, and the other Third-Party Wiwa Plaintiffs' applications were likewise delayed. Third-Party Wiwa Plaintiffs had to collect affidavits in Nigeria and have their Nigerian family members designate these plaintiffs as their representatives. (Decl. of Jennifer Green ¶ 4, Sept. 1, 2008.) All signatures on affidavits had to then be authenticated by a United States consulate or embassy in Nigeria, a process which ultimately required the assistance of a member of Congress to complete. (Id. at ¶¶ 4, 10.)

Although Third-Party Wiwa Plaintiffs' delay in acquiring letters of administration and in seeking the Court's leave to join the real parties in interest bespeaks a lack of diligence and a degree of carelessness, there is no evidence indicating that this delay was the result of bad faith.*fn37 This is especially so given Third-Party Wiwa Plaintiffs ultimately diligent and successful efforts to acquire letters of administration.*fn38 Attorneys' lack of diligence, ignorance, or even incompetence need not preclude granting joinder. See Public Offering, 2004 WL 3015304, at *7. Accordingly, the Court finds that Third-Party Wiwa Plaintiffs meet Advanced Magnetic's "mistake" prong. See Advanced Magnetics, 106 F.3d at 20.

ii. Third-Party Kiobel Plaintiffs

Third-Party Kiobel Plaintiffs only bring third-party ATS claims. These Plaintiffs have only recently begun the process of acquiring letters of administration from the Surrogate's Court. (D'Avino Letter 2.) They have not previously sought these letters because they contend that Nigerian, not New York, law governs their ability to bring their third-party claims and that they are proper representatives under Nigerian law. (Id. at 1; Kiobel Opp'n 4-5.)

Kiobel Plaintiffs made a mistake of logic as to whether they had to acquire, or at least attempt to acquire, letters of administration from the Surrogate's Court in order to establish their statutory standing.*fn39 Their error of logic was careless but there is no evidence it was made in bad faith.

Accordingly, as with Third-Party Wiwa Plaintiffs, in the absence of evidence that Third-Party Kiobel Plaintiffs acted in bad faith or with an intent to deceive in regards to their third-party claims, the Court finds that they meet Advanced Magnetic's "mistake" prong. See Advanced Magnetics, 106 F.3d at 20.

b. Prejudice

Defendants will not suffer prejudice if the Court grants all Third-Party Plaintiffs leave to join the real parties in interest. Defendants claim they have been prejudiced because they have had to litigate against plaintiffs who misstated their representative status.*fn40 (Wiwa Reply 4 n.7.) However, Defendants misapprehend the prejudice analysis, which is prospective rather than retrospective and focuses on whether, despite joinder of the real parties, Defendants will have had sufficient notice of the claims against them. See Advanced Magnetics, 106 F. 3d at 20-21 (permitting joinder of the real parties where doing so would result in a "virtually identical . . . complaint" save for the change in party); see also, Public Offering, 2004 WL 3015304, at *7 (finding joinder appropriate where defendants were made aware of the allegations against them in the initial complaint). Here, only the legal status of the Third-Party Plaintiffs will be altered; the factual allegations will remain unchanged. Accordingly, permitting joinder will not unduly prejudice Defendants. See Advanced Magnetics, 106 F. 3d at 20-21 (holding that Rule 17(a)(3) substitution of plaintiffs "should be liberally allowed when the change . . . in no way alters the original complaint's factual allegations").

c. Conclusion

Under Advanced Magnetics, the Court has broad discretion to grant joinder and narrow discretion to refuse it. Here, the Third-Party Plaintiffs, many of whom live in Nigeria, face unique challenges meeting the requirements of New York law. They lack death certificates, have to transmit documents and signatures gathered in rural Nigeria to New York, and need to authenticate affidavits in remote and often unresponsive embassies. Furthermore, Third-Party Plaintiffs would be greatly prejudiced should the Court dismiss their third-party state and ATS claims. The statutes of limitations on Third-Party Wiwa Plaintiffs' third-party state law claims have long since expired. Even if all Third-Party Plaintiffs were able to bring their third-party claims in a new action, they would lose the significant investment the parties (not to mention the Court) has already made in these actions, including voluminous motion practice and discovery.

The prejudice that Third-Party Plaintiffs would face if their claims were dismissed, the absence of evidence that they acted in bad faith, and the lack of prejudice Defendants will experience if the Court grants Third-Party Plaintiffs leave to join the real parties in interest, all weigh in favor of granting leave. Despite counsel for Third-Party Wiwa Plaintiffs' pronounced lack of diligence in accurately stating and remedying their clients' legal status, it would be "too harsh a penalty" to dismiss Third-Party Plaintiffs' third-party state law and ATS claims. Public Offering, 2004 WL 3015304, at *7. Accordingly, the Court grants Third-Party Plaintiffs leave to join the real parties in interest under Rule 17(a)(3).

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants leave, under Rule 15(a), to amend their answers in Wiwa I and Wiwa II to raise the defense of lack of capacity. The Court also GRANTS Third-Party Plaintiffs' leave to join the real parties in interest under Rule 17(a)(3). Defendants' motion for partial summary judgment, 96-D.E. 224, is DENIED without prejudice and with leave to refile if Third-Party Plaintiffs do not join the real partis in interest as follows: (1) Third-Party Wiwa Plaintiffs must join the real parties in interest by March 16, 2009, and (2) when the Court lifts the stay in the Kiobel proceedings, Third-Party Kiobel Plaintiffs must join the real parties in interest within ten business days of the Court's order lifting the stay.

SO ORDERED.


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