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Wiwa v. Royal Dutch Petroleum Co.

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 ΒΆΒΆ 2, 7, 10, 13, 16, 19.) However, in the last two years, all Third-Party Plaintiffs, except ...


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