United
States District Court
for the District of Columbia
___________________________________
)
Jane
Doe, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 00-674 (GK)(AK)
)
MAJOR GENERAL JOHNY
)
LUMINTANG,
)
)
Defendant.
)
___________________________________ )
PLAINTIFFS’ OPPOSITION
TO DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT AND ORDER AND JUDGMENT ON
DAMAGES
Plaintiffs, Jane Doe, et
al. (“Plaintiffs”), hereby respond to and formally oppose the Motion to Set
Aside Default Judgment and Order and Judgment on Damages (“Motion”) by
Defendant, Major General Johny Lumintang (“Defendant” or “Lumintang”). Plaintiffs respectfully submit that
Defendant’s Motion is without merit and ask the Court to deny the Defendant’s
Motion.
INTRODUCTION
AND STATEMENT OF FACTS
Over two years ago, on March 30, 2000, Defendant was personally served
with the Summons, Complaint and related papers in the above-captioned
proceeding. Personal service was
affected by John A. Bartelloni, a private process server, at Dulles
International Airport (“Dulles”).
(See Exhibits 1-3, Declaration of John A. Bartelloni ¶¶ 5-12
(“Bartelloni Decl.”); Declaration of Lynn Fredricksson ¶¶ 7-14 (“Fredriksson
Decl.”); Return of Service.) Lynn
Fredriksson, a human rights worker employed by the East Timorese Action Network,
accompanied Mr. Bartelloni for the purpose of identifying the Defendant. (Fredriksson Decl. ¶ 3-7.) From her human rights work, Ms.
Fredriksson was quite familiar with the Defendant’s personal appearance and had
spoken with him just two days before.
(Id.) The two began a
search of the airport, and Ms. Fredriksson eventually spotted the Defendant
standing near a magazine kiosk in a gate area and alerted Mr. Bartelloni to his
presence and location. (Fredriksson
Decl. ¶¶ 8-10; Bartelloni Decl. ¶¶ 8-9.)
Mr. Bartelloni approached the Defendant and said “General Johny
Lumintang, I am John Bartelloni and I am a process server, private
investigator. I have been directed
to serve you with these papers.”
(Bartelloni Decl. ¶¶ 10.) He
then handed the Summons, Complaint and related papers to the Defendant and said
to him “You have been served.”
(Id. ¶ 11; Fredriksson Decl. ¶ 12.) The Defendant accepted the Summons,
Complaint and related papers, looked at them and then threw them to the
ground. (Bartelloni Decl. ¶ 12;
Fredriksson Decl. ¶ 12-13.) A man
accompanying the Defendant immediately picked up the papers and took the papers
with them as they departed.
(Bartelloni Decl. ¶ 13; Fredriksson Decl. ¶ 14.)
Ms. Frekriksson could clearly see Mr. Bartelloni, the Defendant and the
man accompanying him, though she was too far away to overhear their
conversation. (Fredriksson Decl. ¶
11.) She watched as Mr. Bartelloni
approached the Defendant, exchanged words with him and then handed the papers to
him. (Id. ¶ 12-13.) Ms. Fredriksson saw the Defendant accept
the papers, look at them and then throw them to the ground. (Id.)
Having been personally
served with a Summons and the Complaint, the Defendant chose to completely
ignore these proceedings. He
neither answered the Complaint nor moved for its dismissal. Faced with the Defendant’s willful
refusal to participate in these proceedings, the Plaintiffs requested an entry
of default and, six months after service, moved this Court for a default
judgment. On November 8, 2000, this
Court entered a default judgment for Plaintiffs and scheduled a bench trial to
establish the truth of Plaintiffs’ allegations and to determine the measure of
damages. On March 27, 2001, nearly
a year after the Defendant was personally served with the Complaint, this Court
commenced a three day trial at which the Plaintiffs presented a number of
witnesses and a host of other evidence to prove the facts as alleged in the
Complaint. The trial was covered by
CNN and as well as the Indonesian news media. (See Exhibits 4-5, Stephen
Collinson, General’s U.S. Trial Told of Post-vote Horror, Agence France-Presse-Associated Press
(March 29, 2001); U.S. Court Set to Open Trial for Lumintang,
Indonesian Observer (March 24,
2001). Several of the Plaintiffs
traveled from East Timor to testify, the translator flew in from Portugal and
one of the Plaintiffs’ expert witnesses, Professor Richard Tanter, traveled from
Japan for the hearing. After
extensive post-trial briefing, on September 13, 2001 this Court issued its
detailed Findings of Fact and Conclusions of Law (“FOF/COL”) and awarded the
Plaintiffs approximately $66 million in compensatory and punitive damages.
In so doing, this Court
found that the “Defendant is both directly and indirectly responsible for the
human rights violations committed against the Plaintiffs,” (FOF/COL at 32), and concluded that
Defendant “violated international law through summary execution, torture, crimes
against humanity, and cruel, inhuman, or degrading treatment of plaintiffs and
their relatives,” (Id. at 33).
Over two years have
passed since the Defendant personally accepted service of process. In that time, this Court, the Plaintiffs
and their counsel have devoted hundreds of hours of time and significant
resources to this civil action.
Though the Defendant had actual notice of these very public proceedings,
he deliberately chose to ignore them.
He never filed a single motion or responsive pleading or otherwise
demonstrated respect for this Court or its processes. In commenting on this Court’s judgment
shortly after it was filed, Defendant was quoted as saying “I am an Indonesian
citizen, I only bow to Indonesian law.”
(See Exhibit 6, Arif A. Kuswardano, Human Rights Judgments
Over-Easy—Executions Rare, Tempo
Magazine, October 9-15, 2001.)
Defendant now has the brazen audacity to move this Court to vacate its
judgment, and, in so doing, asks this Court to overlook his willful refusal to
participate in these lawful proceedings.
He presently claims that this Court lacks personal jurisdiction over him,
that it lacks subject matter jurisdiction over the Plaintiffs’ claims and that
service of process was improper.
His most incredible claim, however, is that justice compels this Court to
set aside its considered judgment that Defendant “had an unquestionably ‘evil
motive’ in authorizing and implementing the crimes against humanity and terror
that encompassed the torture, summary execution and injuries suffered by
plaintiffs and their families,”
FOF/COL at 38, in light of the Attorney General of Indonesia’s statement
that Defendant is “not a suspect in the case of gross human rights violations in
East Timor.”
As is explained more
fully below, justice certainly does not compel nor even counsel in favor of this
Court substituting its judgment for that of an Indonesian functionary operating
in a justice system that the United
States Department of State as corrupt, a system clearly under the thumb of the
executive and the military. (See
Exhibit 7, United States Department of State, Indonesia Country Reports
on Human Rights Practices-2001 (March 4, 2002)
<http://www.state.gov/g/drl/rls/hrrpt/2001/eap/8314.htm>.) Moreover, this Court has personal
jurisdiction over the Defendant, and this Court’s exercise of jurisdiction over
him is quite consistent with the Constitution and laws of the United
States. Defendant’s claims
regarding subject matter jurisdiction are equally unavailing. Finally, Mr. Bartelloni’s and Ms.
Fredriksson’s Declarations not only demonstrate that the Defendant was properly
served, they expose the Defendant’s willingness to shade or simply ignore the
truth in his attempt to escape the judgment of this
Court.
DISCUSSION
I.
This Court has Jurisdiction over the Defendant—Defendant has the
Constitutionally Requisite Minimum Contacts with the United States and was
Properly Served with Process.
Defendant’s attack on
the jurisdiction of this Court relies exclusively on self serving-and otherwise
suspect declarations submitted by Defendant and Defendant’s subordinate,
Brigadier General Dadi Susanto.
Defendant employs these suspect declarations to argue that: (1) he was
not properly served, and (2) that this Court does not have jurisdiction over
Defendant’s person. As set forth in
detail below, Defendant and Brigadier General Susanto could not have been
telling the truth when they described the service of process. The declarations of Mr. Bartelloni and
Ms. Fredriksson establish conclusively that service was indeed proper. The demonstrable falsity of Defendant’s
averments regarding service requires this Court to disregard the assertions in
Defendant’s declaration regarding his contacts with the United States. Without any evidence to contradict the
allegations regarding personal jurisdiction made by Plaintiffs in their
Complaint and this Court’s own determination in its Findings of Fact and
Conclusions of Law that it has jurisdiction over the Defendant, it is clear that
Defendant has failed to rebut or even question the prima facie showing of
personal jurisdiction made by Plaintiffs.
Nevertheless, even if his admissions are accepted as true, this Court may
exercise personal jurisdiction over Defendant pursuant to Fed.R.Civ.P. 4(k)(2).
A.
Pursuant to Fed.R.Civ.P. 4(e)(2), Defendant was Properly Served—Defendant
Personally Accepted the Summons and Complaint from the Process Server, Looked at
the Papers, and Threw Them to the Ground.
Defendant argues that the judgment entered against him must be voided
pursuant to Rule 60(b)(4) because he was not personally served pursuant to Fed.R.Civ.P. 4(e). If service was as Defendant has
described it, Rule 60(b)(4) might offer the Defendant some relief. Charitably put however, Defendant’s
description of service is not at all accurate. As is apparent from Ms. Fredriksson’s
and Mr. Bartelloni’s descriptions of service, Defendant personally accepted
service, service that was proper pursuant to Fed.R.Civ.P. 4(e)(2). A Return of Service to this effect was
filed with the Court on June 16, 2001.
(See Exhibit 4.)
The Federal Rules of Civil Procedure provide for service of process
through presentment of a summons and complaint to a defendant personally “in any
judicial district of the United States.” See Fed.R.Civ.P. 4(e) & 4(e)(2). Such service is effective if it is
performed by a person who is 18 years of age and who is not a party to the
proceedings. See Fed.R.Civ.P. 4(c)(2). “A signed return of service
constitutes prima facie evidence of valid service which can be overcome only by strong and
convincing evidence.”
O’Brien v. R.J. O’Brien & Associates, Inc., 998 F.2d 1394,
1398 (7th Cir. 1993) (quoting Hicklin v. Edwards, 226 F.2d
410, 414 (8th Cir. 1955))(emphasis added). Accord Oltremari v. Kansas Social
& Rehabilitative Service, 871 F.Supp. 1331, 1349-50 (D. Kan. 1994)
(quoting O’Brien, 998 F.2d at 1398); Greater St. Louis Construction
Laborers Welfare Fund v. Little, 182 F.R.D. 592, 595 (E.D. Missouri 1998)
(quoting Hicklin, 226 F.2d at 414) (hereinafter “Greater St.
Louis”). See also Modern
Electric Corp. v. Walsh, 197 F.R.D. 196 (D.D.C. 2000)(citing O’Brien,
998 F.2d at 1398, but giving undue weight to one district court opinion and
stating that “[c]ourts are divided on the issue of how much evidence is
necessary to rebut the affidavit of a process server”). Thus, Defendant bears a heavy burden in
any attempt to overcome Plaintiffs’ prima facie showing of proper service and to
prove that he was not properly served.
Here, Defendant was
served by Mr. Bartelloni, a private process server, on March 30, 2000, and he
executed a Return of Service on March 31, 2000. (See Bartelloni Decl. ¶¶
13.) Plaintiffs filed the Return of
Service with their Request for Entry of Default on June 16, 2000. Mr. Bartelloni’s signed Return of
Service thus constitutes prima facie evidence of valid service which Defendant
must overcome with strong and convincing evidence. See O’Brien, 998 F.2d at
1398.
Defendant attempts to
meet this high standard with his declaration and the declaration of his Subordinate Brigadier General Dadi
Susanto. In his declaration,
Defendant claims that, on March 30, 2000, he was awaiting a flight at Dulles,
when he, Brigadier General Susanto,
were approached by a
Caucasian man who was a total stranger to us. The man asked if I was General Johny
Lumintang when I said I was, he attempted to hand me a thick sheaf of
papers. Brigadier General Dadi
Susanto, who was standing next to me, told me not to take the papers. He reached out and knocked them to the
ground. I never received the
papers. After the papers had been
knocked to the ground, Brigadier General Dadi Susanto and I went into the
boarding area and shortly thereafter, I boarded my flight to
Frankfurt.
(Lieutenant General
Johny Lumintang (“Lumintang Decl.”) ¶ 9.)
Standing alone,
Defendant’s declaration is insufficient to overcome the prima facie evidence of
valid service which is established by the return of service. See FROF, Inc. v. Harris, 695 F.Supp.
827, 829 (E.D. Pa. 1988) (“a bare allegation by a defendant that he was
improperly served cannot be allowed to bely (sic) the private process server’s
return”); Modern Electric, 197 F.R.D at 198 (quoting FROF, 695
F.Supp. at 829); Greater St. Louis, 182 F.R.D. at 595, 596;
Oltremari, 871 F.Supp. at 1349-50 (“Other than bare assertions that the
addresses on the summonses were [incorrect], the court should find no indication
of improper service. The court
should not dismiss the action of plaintiff against these defendants on such bare
assertions.”). To buttress his
inherently suspect assertions of improper service, Defendant offers the
declaration of his subordinate, Brigadier General Susanto, who states
that
[s]ometime around 5 pm
we were standing and talking near the gate when we were approached by a
Caucasian man who was unknown to me and to General Lumintang. The man interrupted us and asked which
one of us was Major General Johny Lumintang. At the time it looked like the man
really did not know General Johny Lumintang before. When General Johny Lumintang identified
himself, the man attempted to hand him a thick sheaf of papers which were folded
over. I was concerned that the
papers could have concealed a weapon or explosive device and simultaneously I
told General Lumintang not to take the papers while I stepped forward and
knocked the papers out of the man’s hands.
They fell to the ground.
General Lumintang did not touch the papers. The man left without saying anything
else to us or picking up the papers.
….
I instructed the Defense
Attache’s (sic) driver, Mr. Wakidi, to pick up the papers and take them to the
car. I went with General Lumintang
into the gate boarding area. After
he boarded, I left the terminal and went back to my
office.
….
The day after, I got the
papers from my driver. I was
surprised that someone unknown to General Lumintang would try to deliver papers
at the airport when passengers are instructed, for reasons of security, not to
accept any packages from strangers.
(Declaration of
Brigadier General Dadi Susanto (“Susanto Decl.”) ¶¶ 4-6.)
The self-serving nature of these declarations is difficult to ignore—in
fact it colors every word that is averred to. The Defendant is himself desperate to
escape the judgment of this Court, and a military officer who is subordinate to
the Defendant in the chain-of-command has been required, has been asked or has
volunteered to substantiate Defendant’s version of the service of process. Notwithstanding these troubling
considerations, Defendant’s and Brigadier General Susanto’s declarations are
flatly contradicted by the facts.
As indicated above, Mr.
Bartelloni was the process server who effected service upon Defendant. (See Bartelloni Decl. ¶¶
10-12.) On March 30, 2002, Mr.
Bartelloni traveled to Dulles to serve the Defendant. (Id. ¶ 5.) Mr. Bartelloni had a photograph of the
Defendant, and he was accompanied by Ms. Fredriksson. Ms. Fredriksson knew what Defendant
looked like and was present to assist Mr. Bartelloni in identifying
Defendant. (Id. ¶ 6.) Ms. Fredriksson saw the Defendant and
alerted Mr. Bartelloni to his presence.
(Id. ¶ 9.) Mr.
Bartelloni then approached the Defendant and said “General Johny Lumintang, I am
John Bartelloni, and I am a process server, private investigator. I have been directed to serve you with
these papers.” (Id. ¶
10.) Mr. Bartelloni handed the
Summons, Complaint and related papers to Defendant, and the Defendant accepted
them. (Id. ¶ 11.) After he accepted the papers, Defendant
looked at the papers, and threw them to the ground. (Id. ¶ 12.) A man accompanying the Defendant picked
the papers up right away.
(Id. ¶ 13.)
Ms. Fredrickson
witnessed the service of the Complaint and Summons upon Defendant. (Fredriksson Decl. ¶¶ 11-13.) When she found the Defendant, she
identified the Defendant for Mr. Bartelloni. (Id. ¶¶ 9-10.)[1] Ms. Fredriksson watched as the Defendant
accepted the papers, looked at them and then threw them to the ground,
apparently angered by the event.
(Id. ¶ 13.) She then
saw the man accompanying the Defendant (presumably Brigadier General Susanto)
immediately pick up the papers.
(Id. ¶ 14.)
The events surrounding Defendant’s service, as described by Mr.
Bartelloni and as witnessed by Ms. Fredriksson, clearly constitute valid
service. Once Defendant is
presented with service papers, he may not divest this Court of jurisdiction
merely by refusing the papers.
See Modern Electric, 197 F.R.D. at 197 & 199. When service is refused, service may be
effected by leaving the papers at a location near that person. See Novak v. World Bank, 703 F.2d
1305, 1310 n. 14 (D.C. Cir. 1983)(citations omitted); Republic Credit Corp. I
v. Rance, 172 F.Supp.2d 1178, 1181 (S.D. Iowa 2001)(quoting Novak,
703 F.2d at 1310); Roth v. W.T. Cowan, Inc., 97 F.Supp. 675, 677
(E.D.N.Y. 1951). See also
Wright & Miller, Federal Practice & Procedure: Civil 3d § 1095
(2002). This policy underscores the
fact that the purpose of service is to place a defendant on notice of the suit
against him. No more is needed for
service to be effective: “This Court has no interest in forcing process servers
to chase down defendants and jam court papers into their hands in order to
effect personal service, as depicted on television.” Republic Credit Corp. I, 172
F.Supp.2d 1181.
Moreover, when Defendant
and Brigadier General Susanto’s declarations are weighed against the prima facie assumption of
valid service created by the filed Return of Service and the declarations of Mr.
Bartelloni and Ms. Fredriksson, it is clear that Defendant has failed to make an
even a remotely believable claim that service was improper, much less establish
it with the requisite “strong and convincing evidence.” See O’Brien, 998 F.2d at
1398. All of Defendant and
Brigadier General’s Susanto’s claims regarding service are explicitly or
implicitly contradicted by the Return of Service and the declarations of Mr.
Bartelloni and Ms. Fredriksson.
Where Plaintiffs evidence conflicts with Defendants, this Court is bound
to construe all reasonable inferences in the Plaintiffs’ favor. As the court noted in Reifsteck v.
Kelly-Springfield Tire Corp., when faced with a “battle of affidavits” it
was bound to find that “defendant has not submitted strong and convincing
evidence to rebut the presumption of valid service created by the return of
service.” 2002 WL 206488 *1, 2002
U.S. Dist. LEXIS 2111 *3 (N.D. Ill. Feb. 8, 2002)(slip opinion). Here, there is more than a battle of
affidavits or declarations; there are two completely incongruous versions of the
same event. This conflict alone
would require the Court to accept the Plaintiffs’ description of service as
true. See id. Moreover, even without the
presumption of truth that Plaintiffs’ version is entitled as a matter of law, it
is apparent that Defendant was properly served pursuant to Fed.R.Civ.P. 4(e)(2). Defendant’s claims regarding service
fail as a result.
B.
Even if Defendant’s Admissions Regarding His Contacts with the United
States Are Accepted as True, Fed.R.Civ.P. 4(k)(2) Allows This Court To Exercise Personal
Jurisdiction Over Defendant.
As is apparent from the discussion above, Defendant is willing to say
anything to escape the judgment imposed by this Court. Not only should the Court disregard
Defendant’s version of service, it should also disregard the suspect information
provided by Defendant regarding his contacts with the United States. Given that Defendant has presented no
other evidence regarding his alleged lack of contacts with the United
States—given that there is no factual basis for challenging this Court’s
exercise of jurisdiction over the Defendant—this Court should reject outright
Defendant’s claim that this Court lacks personal jurisdiction over him. However, even if Defendant’s
questionable claims are accepted as true, this Court may still exercise personal
jurisdiction over Defendant pursuant to Fed.R.Civ.P
4(k)(2).
Rule 4(k)(2) of the Federal Rules of Civil Procedure provides
that
If the exercise of
jurisdiction is consistent with the Constitution and laws of the United States,
serving a summons or filing a waiver of service is also effective, with respect
to claims arising under federal law, to establish personal jurisdiction over the
person of any defendant who is not subject to the jurisdiction of the courts of
general jurisdiction of any state.
Fed.R.Civ.P. 4(k)(2). Rule 4(k)(2) effectively functions as a
federal long arm statute, allowing a federal district court to exercise personal
jurisdiction over a defendant, provided such jurisdiction complies with the
Fifth Amendment’s due process clause.
See United States v. Swiss American Bank Ltd., 191 F.3d 30, 36
& 40 (1st Cir. 1999)(citations omitted)(“Swiss I”). Because the statutory authorization for
personal jurisdiction is federal rather than state law, the “minimum contacts”
test which serves as the Constitutional check upon state long-arm statutes is
modified when applied under Rule 4(k)(z).
See United States v. Swiss American Bank Ltd., 274 F.3d 610, 618
(1st Cir. 2001) (“Swiss II”).
Instead of looking to one United States’ jurisdiction for the requisite
minimum contacts, a court may aggregate all of a defendant’s contacts with the
United States to determine if personal jurisdiction may be exercised. See Vitamins Antitrust
Litigation, 94 F.Supp.2d 26, 31 (D.D.C. 2000). See also Swiss II, 274 F.3d at
618; Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249
F.3d 413, 420 (5th Cir. 2001); Consolidated Development Corp. v.
Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). Although the scope of the minimum
contacts inquiry is thus broadened by Rule 4(k)(2), the nature of the
Constitutional inquiry is the same, and a court may exercise specific or general
jurisdiction consistent with the Supreme Court’s personal jurisdiction
jurisprudence. See
Consolidated, 216 F.3d at 1291-92; Swiss II, 274 F.3d at
618.
Here, Plaintiffs have made a prima facie showing under Rule 4(k)(2) that
this Court has jurisdiction over the Defendant’s person given that: (1)
Defendant was effectively served with process; (2) Plaintiffs’ claims arise
under federal law—the Alien Tort Claims Act, 28 U.S.C. § 1350, and Torture
Victim Protection Act, Pub.L. No. 102-256, 106 Stat. 78 (1992); and (3) personal
jurisdiction over Defendant is not available under any situation-specific
federal statute. See
Fed.R.Civ.P. 4(k)(2); Vitamins Antitrust Litigation, 94 F.Supp.2d at
34-35 (citing Swiss I, 191 F.3d at 41).[2] Finally, as discussed more fully below,
Defendant’s contacts with the United States as a whole satisfy the requirements
of constitutional due process.
See id.
Due process permits the exercise of jurisdiction over a non-resident
defendant’s person only when the defendant has “certain minimum contacts” with
the forum “such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
It is well settled that there are two types of personal jurisdiction,
specific and general jurisdiction, and that the minimum contacts analysis
differs for each. Specific
jurisdiction is personal jurisdiction that occurs when there is a relationship
between the case or controversy and a defendant’s contacts with the forum. See Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). General jurisdiction is a theory of
personal jurisdiction that allows a court to exercise jurisdiction over a
defendant for claims that are unrelated to the defendant’s contacts with the
forum. See id. at 415. To find general jurisdiction, the
defendant’s contacts with the forum must be continuous and systematic, such that
allowing a court to exercise personal jurisdiction over the defendant, for a
claim that is unrelated to the defendant’s contacts with the forum, is
“reasonable and just.”
Id. The minimum
contacts test for both specific and general jurisdiction is grounded in
fairness: “It assures that the
defendant’s conduct and connection with the forum State is such that he should
reasonably expect to be haled into court there.” Consolidated Development Corp.,
216 F.3d at 1291-92 (quoting World Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)). For specific
jurisdiction, the constitutional requirements are usually satisfied when a
defendant has purposefully availed himself “of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of
its laws.” Hanson v. Denkla,
357 U.S. 235, 253 (1958)(citing International Shoe Co., 326 U.S. at
319). Put differently, when a
defendant “deliberately has engaged in significant activities” within a forum,
or his contacts with that forum proximately result from actions by the defendant
himself that create a “substantial connection” with the forum, specific
jurisdiction is constitutionally permissible. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475-76 (1985)(citations omitted).
Here, Defendant admits in his declaration that he has been in the United
States six times: (1) to attend Infantry Officer Advanced Course at Fort
Benning, Georgia, in 1978; (2) in 1989, to attend the “IDMC” in Monterey,
California; (3) in 1995 to attend a “Special Forces Seminar,” in Honolulu,
Hawaii; (4) in 1995 to participate in a “study tour of students of the National
Defense Institute; (5) to attend a “Roundtable Dialogue on Justice and
Reconciliation” in Washington, DC., in 2000; and (6) to attend a United
States-Indonesia Society panel discussion in March of 2000. (Lumintang Decl. ¶ 7.) Defendant has, of course, been
deliberately vague about even these contacts with the United States,
substituting titles and acronyms for detail in an attempt to obfuscate the true
purpose and duration of his visits.
He has omitted the duration of all but one of his visits to the United
States—his visit in March of 2000 when he accepted service in this
proceeding. (See Lumintang
Decl. ¶ 5). Defendant does not
describe the content, purpose or scope of the “Infantry Officer Advanced
Course,” the “IDMC” or the “Special Forces Seminar” coursework. Defendant mentions a “study tour” of the
National Defense Institute, but he never gives the location of the Institute nor
indicates where the tour took him.
The details that the Defendant has conveniently omitted from his
declaration strongly suggest that his contacts with the United States are more
substantial and directly related to the Plaintiffs’ allegations than he would
care to admit.
Nevertheless, the information that Defendant has provided establishes
that he has deliberately initiated and maintained contact with the United States
and purposefully availed himself of the benefits of the laws and privileges of
this country. He has traveled to
the United States on at least two occasions to receive extensive instruction in
military operations and command and control from instructors employed by the
United States government in schools operated by the United States military. The training the Defendant sought and
received in the United States almost certainly allowed him to advance through
the ranks of the Indonesian military.
With the training he
received here in the United States, he was able to improve his knowledge base
and add to his skill set, and, as a result, was in a better position to make
plans for East Timor, train personnel for operations there and, ultimately,
ensure that those plans were carried out.
This Court found the Defendant liable on the principle of command
responsibility and looked to the Defendant’s issuance of the telegram of May 5,
1999 and his authorship of the TNI special operations manual as evidence of his
responsibility. (FOF/LOL at
32-33.) Therefore, there is a
direct relationship between Defendant’s contacts with the United States and
Plaintiffs’ claims against Defendant.
The Infantry Officer Advanced Course (“IOAC”) at Fort Benning, Georgia,
was likely a multiple-week school operated by the United States Army through the
International Student Training Detachment.
(See Exhibit 8, International Student Training
Detachment-Mission Statement (May 3, 2002)
<http://www.benning.army.
mil/11th/1-11INF/ISTD1_11/homepage.htm>.) The subject matter of this course was
likely extensive instruction in combat operations and command and control
decision making. (See
Exhibit 9, Infantry Officer Basic Course (May 3, 2002)
<http://www.benning.army.mil/11th/2-11INF/Index.htm>.) The “IDMC” in Monterey, California, is
the International Defense Management Course, which is offered by the Naval
Postgraduate School. (See Exhibit 10, Defense Resources Management
Institute, <http://www.nps.navy.mil/ofcinst/drmi.htm>.) The IDMC is an eleven week course that
instructs foreign military officers in the defense management environment,
quantitative and economic analysis, and management systems in the context of
strategy, implementation, and operations.
(See id.)
Most importantly, however, at least a portion of this training is paid
for by the United States. The
International Military Education and Training program is authorized by the
Foreign Assistance Act of 1961.
(See Exhibit 11, Defense Security Cooperation
Agency-International Training Programs (May 7, 2002)
<http://129.48.104.198/
programs/imet/imet2.htm
>.) It provides training on a
grant basis to foreign military students.
(See id.) Defendant
was assigned an IMET student identification number--#23294. (See Exhibit 12, Alan Nairn,
General Lumintang Trained by the U.S. (March 28, 2000)
<http://www.etan.org/news/2000a/suit/nairn.htm>.) Thus, at least a portion of Defendant’s
military training was paid for by the government of the United
States.
This Court has found Defendant liable to Plaintiffs under the principles
of command responsibility. (See
FOF/COL at pp. 30-33 & ¶ 17.) The Court based its determination,
in part, on the fact that Defendant signed the telegram of May 5, 1999 and
authored the TNI special operations manual, in which instruction was given on
training in abduction, killing, torture and agitation, in addition to education,
training and examination of army personnel. (Id. at pp. 30-33 & ¶¶
16-17.) Defendant’s liability is
thus predicated on his ability and clear authority to command and control troops
under his command, as well as his personal knowledge of field operations and
field command—subjects on which Defendant almost certainly received instruction
during his training in the United States.[3]
The substantive benefit that Defendant has received, in the form of
military training, from the United States, establishes sufficient contacts
between the United States and Defendant such that this Court’s exercise of
personal jurisdiction over Defendant “does not offend traditional notions of
fair play and substantial justice.”
International Shoe Co., 326 U.S. at 316. Defendant has purposely availed himself
of the benefits of our laws and government institutions, received training which
he then utilized to in planning the Indonesian military’s actions in East Timor,
his training of troops to carry out those actions and his command and control of
the Indonesian forces on the ground in East Timor. In so doing, Defendant has deliberately
created a substantial connection between himself and the United States. As a result, it was certainly
foreseeable that Defendant could be held to account for his use of the training
he received from the United States
in a United States court.
Thus, because Defendant has intimate contacts with the United States, and
because there is a direct relationship between Defendant’s contacts and the
Plaintiffs’ claim this Court has exercised jurisdiction over Defendant’s person
in a constitutionally permissible manner.
As set forth above, this Court may properly exercise personal jurisdiction over Defendant under Rule 4(k)(2). Because Plaintiffs have made out a prima facie case for the application of Rule 4(k)(2), the burden is now upon Defendant to produce some evidence which, if credible, demonstrates the existence of at least one jurisdiction in the United States exist where Defendant is subject to suit.[4] See Vitamins Antitrust Litigation, 94 F.Supp.2d at 35 (citing Swiss I, 191 F.3d at 41). Because Defendant’s aggregate contacts with the U.S. satisfy the Constitutional requirements, if Defendant fails or refuses to identify a United States jurisdiction where Defendant is amenable to suit, this Court may, pursuant to Rule 4(k)(2), exercise jurisdiction over Defendant. See ISI International v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001)(Easterbrook, J.).[5]
II. This Court has Jurisdiction over the Subject
Matter of Plaintiffs’ Claims—Plaintiffs have Plead and Proved their Claims under
the Alien Tort Claims Act and Torture Victim Protection Act and This Court has
determined that it has Jurisdiction Over Those
Claims.
Defendant’s claim that
this Court’s judgment is void per Fed.R.Civ.P. 60(b)(4) for lack of
subject matter jurisdiction is absurd.
Federal courts have been uniform in their treatment of the jurisdictional
requirements for suits under the Alien Tort Claims Act (“ATCA”) and the Torture
Victim Protection Act (“TVPA”), and Plaintiffs claims clearly met those
requirements here. Alone, this
Court’s findings and conclusions regarding its jurisdiction over the Plaintiffs’
claims justify casting aside Defendant’s jurisdictional argument as without
merit.
A. This Court’s Previous Determination that it
has Jurisdiction over Plaintiffs’ Claims is Binding Because the Assertion of
Jurisdiction by this Court is Not Frivolous.
Subject matter
jurisdiction is proper if “the well‑pleaded factual allegations contained in the
complaint” support any jurisdictional element in dispute. Ge v. Peng, -- F. Supp.2d --,
2000 WL 33726878, *3 (D.D.C. 2000).
Further, as this Court has stated, “a party against which a default has
been entered is not entitled ipso facto to have that default set aside
merely because it may have meritorious defenses, including jurisdictional
defenses.” See Steinberg
v. International Criminal Police Org., 103 F.R.D. 392, 396-97 (D.D.C.
1984)(hereinafter “Interpol”).
Under Rule 60(b)(4), a court’s determination that it has jurisdiction is
binding “as long as the assertion of jurisdiction is not frivolous.” Id. See also Kocher v. Dow Chem.
Co., 132 F.3d 1225, 1230 (8th Cir. 1997)(Rule 60(b)(4) motion
requires showing that absence of jurisdiction was “so glaring as to constitute a
‘total want of jurisdiction’ or a ‘plain usurpation of power’ so as to render
the judgment void from its inception”).
This rule has been
applied to implicit determinations of subject matter jurisdiction in default
judgments, in addition to judgments in contested cases. See, e.g., Honneus v.
Donovan, 691 F.2d 1, 2 (1st Cir. 1982)(default judgment not void
where diversity jurisdiction sufficiently, even if improperly, alleged; court
has not “clearly usurped” its powers); Government Employees’ Ins. Co. v.
Jackson, 1995 WL 672830, *1 (E.D.Pa. 1995)(default judgment not void for
lack of subject matter jurisdiction unless court has “clearly usurped” its
power). As one commentator notes:
“In the context of Rule 60(b)(4), a lack of subject-matter jurisdiction for the
purpose of making a judgment void means a court’s lack of jurisdiction over an
entire category of cases, not whether a court makes a proper or improper
determination of subject matter jurisdiction in a particular case.” 3D Moore’s Federal Practice &
Procedure ¶ 60.44[2][a].
This Court’s explicit
determination in its Findings of Fact and Conclusions of Law that it had subject
matter jurisdiction over this action under the ATCA and TVPA is amply supported
by Plaintiffs’ allegations and evidence, and is in no way “frivolous” or a clear
usurpation of its powers.
Accordingly, the default judgment is not void for lack of subject matter
jurisdiction.
B. This Court has Jurisdiction over Plaintiffs’
Claims as they were Brought Pursuant to the Alien Tort Claims
Act.
The ATCA confers federal
subject matter jurisdiction when three conditions are satisfied: (1) the plaintiff is an alien; (2) the
claim is for a tort; and (3) the tort is committed in violation of the law of
nations or a treaty of the United States.
See Doe I v. Islamic Salvation Front, 993 F. Supp. 3, 7 (D.D.C.
1998) (hereinafter “FIS”)(citing Kadic v. Karadzic, 70 F.3d 232,
238 (2d Cir. 1995)). Defendant does
not and cannot dispute that the first two of these three conditions have been
satisfied. Defendant does not even
challenge that each of Plaintiffs’ causes of action are for torts recognized as
violations of “the law of nations.”
Rather, Defendant claims that the third condition is not satisfied
because he believes that Plaintiffs failed to allege how Defendant acted under
color of official authority, a necessary element of certain of Plaintiffs’
causes of action. Defendant is
simply wrong.
Flatly contrary to
Defendant’s claims, Plaintiffs specifically asserted—from the first sentence of
the Complaint and throughout this litigation—that Defendant committed the acts
or omissions that harmed Plaintiffs under color of official authority. Plaintiffs alleged and at trial proved
how Defendant so acted. Plaintiffs
averred in their Complaint that Lumintang “designed, ordered, implemented, or
directed” violations of customary international law in his capacity as Vice
Chief of Staff of the Indonesian army, and that he was responsible in this
position for violations committed by Indonesian forces under his authority. (See Complaint, ¶¶ 1, 3, 15,
17, 18, 19, 31 and 32). In support,
the Complaint points, among other things, to: (1) Lumintang’s authorship of a
secret Covert Operations Manual for the Army Special Forces (“Kopassus”), that
ordered training in the use, inter alia, of kidnapping, terror, and
sabotage; (2) his issuance of a telegram authorizing repressive actions after
East Timor’s 1999 referendum if the vote favored independence, and (3) the
widespread and systematic nature of atrocities and other human rights violations
committed by the Indonesian Army and militias in East Timor surrounding the
independence referendum.
(Id. ¶¶ 15-32).
At the hearing on
damages, Plaintiffs introduced further evidence and argument of Defendant’s role
in, and responsibilities as an army commander for the reign of terror
perpetrated by Indonesian troops in 1999 in East Timor. (See Trial Transcript, March 27,
2001, Testimony of Prof. Richard Tanter, 25:19-136:25). This court’s own conclusions provide
that Defendant had both direct responsibility for plaintiff’s injuries by virtue
of his “official acts,” and command responsibility in light of his military
offices for grave abuses committed by subordinate forces. (See FOF/COL at
32-33).
As Plaintiffs provided
credible and specific allegations that Defendant committed violations of
customary international law in his official capacity as a high‑ranking officer
in the Indonesian military, this Court’s assertion of subject matter
jurisdiction is proper. Further,
the Court clearly did not usurp its authority in determining, after considering
evidence and argument presented by Plaintiffs, that it had jurisdiction under
the ATCA. Accordingly, the default
judgment is not void for lack of subject matter
jurisdiction.
While the judgment is
clearly not void in light of this Court’s proper assertion of subject matter
jurisdiction under the ATCA, Plaintiffs briefly address, for the record,
Defendant’s misguided claim that the court lacked jurisdiction over Plaintiffs’
claims under the TVPA. Defendant
mistakenly claims that subject matter jurisdiction under the TVPA doe not lie
here because Plaintiffs failed to exhaust “adequate and available” local
remedies.
Exhaustion of domestic
remedies simply is not a jurisdictional element under the TVPA. [6] The TVPA provides a cause of action
against “[a]n individual who, under actual or apparent authority, or color of
law, of any foreign nation . . . subjects an individual to torture.” TVPA, § 2(a) (28 U.S.C.
§ 1350, note). Nothing more is
required to state a cause of action under the statute. See, e.g., FIS, 992 F.
Supp. at 9. Subsection 2(b) of the
TVPA provides that a court shall “decline to hear a claim under this
section if the claimant has not exhausted adequate and available remedies in the
place in which the conduct giving rise to the claim occurred.” TVPA, § 2(a) (28 U.S.C.
§ 1350, note)(Emphasis added).
However, as indicated by the legislative history of this provision,
exhaustion of domestic remedies is an affirmative defense under the
statute, not an element of a plaintiff’s cause of action. See Hilao v. Estate of
Marcos, 103 F.3d 767, 778 n.5 (noting Senate Report on TVPA providing with
“remarkable clarity” that exhaustion requirement should be interpreted by
general principles of international law, which generally require defendants to
plead and prove non-exhaustion as an affirmative defense). Accordingly, exhaustion of remedies is a
defense that Defendant could have raised had he chosen not to answer Plaintiffs’
Complaint. Because Defendant chose
default, he has foregone his right to contest the merits of Plaintiffs claims,
to raise affirmative and other defenses, and may not now attempt to do so under
the guise of subject matter jurisdiction.
III. Defendant is not entitled to Relief under
Fed.R.Civ.P. 60(b)(6)—Defendant
Made a Conscious Decision to Ignore These Proceedings and Should not be Rewarded
for That Decision.
Under Rule 60(b)(6) of the Federal Rules of Civil Procedure, this Court
may relieve a party from a final judgment for “any other reason justifying
relief from operation of the judgment.”
Fed.R.Civ.P. 60(b)(6) (2002).
Defendant claims this Court should set aside its judgment pursuant to
Rule 60(b)(6) in light of the “extraordinary circumstances of this case” and the
“substantial interests of justice.”
Although Defendant is correct that Rule 60(b)(6) is reserved for the
extraordinary, he is mistaken in assuming that there is anything even remotely
extraordinary about this case.
Defendant brazenly argues that “justice” requires this Court to reward
Defendant’s deliberate and
calculated refusal to mount a defense, by setting aside a judgment that is
grounded upon credible, detailed and overwhelming evidence that Defendant
violated Plaintiffs’ human rights.
Notwithstanding the fact that Defendant’s argument under Rule 60(b)(6) is
procedurally barred because Defendant asks this Court to set aside its judgment
pursuant to 60(b)(4), Defendant attempts to bring his motion within the narrow
confines of Rule 60(b)(6) by arguing facts that he believes establish his
innocence. Put simply, the time for
making such claims has long passed.
Not only was Defendant aware of the filing of this action—he was, after
all, personally served with
the Complaint and Summons over two years ago—this Court has concluded that
Defendant had “unquestionably ‘evil motive’ in authorizing and implementing the
crimes against humanity and terror that encompassed the torture, summary
execution and injuries suffered by plaintiffs and their families.” (FOF/COL p. 38.)
A. Defendant
is Barred From Seeking Relief under Rule 60(b)(6) Because He Has Also Sought
Relief under Rule 60(b)(4).
Defendant seeks relief
from the judgment of this Court pursuant to Rule 60(b)(6) as well as Rule 60
(b)(4). Defendant’s reliance upon
Rule 60(b)(6) is misplaced. As
explained by the court in Carr v. District of
Columbia:
As has been held in many
cases, however, clause (6) and the first five clauses of Rule 60(b) are mutually
exclusive, with the result that clause (6) affords no basis for relief at any
time available under either of the earlier clauses . . . . That appears to have been the view
already taken in this circuit . . . and in any event we adopt it here.
543 F.2d 917, 926 n.
72 (D.C. Cir. 1976)(citations
omitted). See Klapprott
v. United States, 335 U.S. 601, 613 (1949); Goland v. Central
Intelligence Agency, 607 F.2d 339, 372‑73 (D.C. Cir. 1978); In re Korean Airlines Disaster of
September 1, 1983, 156 F.R.D. 18, 21 (D.D.C. 1994). Having sought a remedy under Rule
(60)(b)(4), Defendant may not avail himself of remedies under Rule (60(b)(6),
see In re Korean Airlines, 156 F.R.D. at 21, and Defendant’s
motion for relief under Rule 60(b)(6) should be denied.
B. Even if Defendant’s Rule 60(b)(6) Motion is
Not Barred, Defendant Has Not Satisfied the Strict Criteria Required for
Obtaining Relief Under Rule 60(b)(6).
Defendant argues that
the judgment of this Court must be set aside because he is innocent—and attempts
to argue facts that allegedly establish his lack of culpability for the gross
human rights abuses suffered by the Plaintiffs. Notwithstanding the fact that Defendant
may not, as a matter of law, seek relief under Rule 60(b)(6), an evaluation of
the merits of Defendant’s arguments reveals that Defendant has not met the heavy
burden of proof that predicates relief under Rule
60(b)(6).
1. Rule 60(b)(6) is Not Available to
Rescue Defendant From His Decision Not to Defend. In Defendant’s Own Words, “I am an
Indonesian citizen, I only bow to Indonesian Law.”
Defendant argues that
his case presents the “extraordinary circumstances” and “demand for justice that
qualifies for relief under Rule 60(b)(6)” in part because a “$66 million dollar
judgment has been issued against a foreign citizen . . . who never appeared in
Court to defend himself.”
Defendant’s reliance on Rule 60(b)(6) as authority for this argument is
without precedent, and it flies in the face of the well-established finality
doctrine. As set forth in detail
above, Defendant was personally served with the Summons and Complaint in this
action. He made a deliberate choice
not to appear, contest the entry of default or challenge this Court’s judgment
on its merits. Defendant has
provided no explanation for his failure to timely challenge this Court’s
jurisdiction. As stated by the
Court, “free, calculated and deliberate choices are not to be relieved from
through the use of Rule 60(b)(6).
Ackermann v. United States, 340 U.S. 193,198 (1950). In other words, Rule 60(b) cannot . . .
be employed simply to rescue a litigant from strategic choices that later turn
out to be improvident. Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980). See also Federated
Department Stores v. Moitie,
452 U.S. 394, 401 (1981).
Of the authority cited
by Defendant, only two cases involved the granting of a Rule 60(b)(6)
motion. Neither supports
Defendant’s argument that relief from this Court’s judgment would serve the
interests of justice. In
Klapprott v. United States, a prisoner sought to re-open a default
judgment revoking his citizenship and canceling his naturalization
certificate. See 335
U.S. at 604-07. The default was
entered while he was wrongfully imprisoned on a selective service conspiracy
charge, ill and without funds to obtain counsel. See id. Here, by contrast, Defendant has
advanced no evidence that he was prevented or unable to present a defense,
contest the entry of the default judgment or appear at trial. Moreover, as the Court noted in
Klapprott, its holding was quite fact specific. Id. at 603.
Likewise, in Computer Professionals for Social Responsibility v. Unites States, the court noted that “a party that . . . has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itse