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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

MILENA JOVIC, ZIVKA MIJIC, MIRA GRUBOR, BOSKO BJEGOVIC and DALIBOR MRKALJ, and all others similarly situated, Plaintiffs, v. L-3 SERVICES, INC.; and ENGILITY HOLDINGS, INC., Defendants.

Civ. Action No. 10-cv-5197 Hon. John Z. Lee, U.S.D.J.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS James E. Tyrrell, Jr. Joseph E. Hopkins Lisa Ann T. Ruggiero PATTON BOGGS LLP One Riverfront Plaza, 6th Floor Newark, New Jersey 07102 Tel: (973) 848-5600 Fax: (973) 848-5601 Attorneys for Defendants Engility Holdings, Inc. and L-3 Services, Inc. Paul T. Fox Thomas E. Dutton C. Allen Foster (pro hac vice pending) David S. Panzer (pro hac vice pending) GREENBERG TRAURIG LLP 77 W. Wacker Drive, Suite 3100 Chicago, Illinois 60601 (312) 456-8400 Attorneys for Defendants Engility Holdings, Inc. and L-3 Services, Inc.

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1  FACTUAL BACKGROUND ......................................................................................................... 3  STANDARD OF REVIEW ............................................................................................................ 5  ARGUMENT .................................................................................................................................. 5  I.  PLAINTIFFS’ CLAIMS ARE TIME-BARRED................................................................ 5  A.  Even if a Ten-Year Limitation Period Applied And Were Subject to Tolling, Plaintiffs Do Not Plead Facts Sufficient to Invoke that Relief and Their Complaint Is Therefore Untimely. ................................................................ 6  The Ten-Year Limitation Period is Not Subject to Tolling. ................................... 9  1.  2.  C.  II.  The Ten-Year Period Began when Plaintiffs’ Claims Arose and, Therefore, Is Not Subject to Tolling. .......................................................... 9  The Ten-Year Period Is Jurisdictional and Therefore Not Subject to Tolling. .................................................................................................. 12 

B. 

Plaintiffs’ Claims Are Time-Barred by the Governing State Statute of Limitations. ........................................................................................................... 12 

THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE ATS, SECTION 1331, AND CAFA. ................................................................................ 14  A.  B.  C.  The Complaint Should be Dismissed Because Plaintiffs Cannot Overcome the Presumption Against Extraterritoriality. ......................................................... 14  There is No Private Right of Action Under Section 1331 for Violations of International Law. ................................................................................................. 17  CAFA Does Not Provide Jurisdiction for Plaintiffs’ Claims................................ 18 

III. 

PLAINTIFFS HAVE FAILED TO PLEAD CLAIMS FOR WHICH RELIEF CAN BE GRANTED. ....................................................................................................... 19  A.  B.  C.  D.  There Is No Corporate Liability Under the ATS. ................................................. 19  Counts I, IV, V, VI, and VIII Should Be Dismissed Because Plaintiffs Do Not Allege that Defendants Acted With the Requisite Mens Rea. ....................... 19  Counts II, III, and VII Should Be Dismissed Because Plaintiffs Fail to Plead Essential Elements of Principal Liability. ................................................... 20  Plaintiffs’ State Law Conspiracy Claims in Counts IX and X are not Sustainable as a Matter of Law. ............................................................................ 23 

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1. 

Plaintiffs’ Claims for Conspiracy to Commit Forced Population Transfer and Destruction of Property Fail Under Both Illinois and Virginia Law. ............................................................................................ 23  Count X for Conspiracy to Commit Unlawful Conversion of Property Must Be Dismissed. ................................................................... 24 

2.  IV. 

PLAINTIFFS’ CLAIMS ARE BARRED BY THE ACT OF STATE DOCTRINE. ..................................................................................................................... 25 

CONCLUSION ............................................................................................................................. 30  STATEMENT OF COMPLIANCE WITH STANDING ORDERS ............................................ 30 

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TABLE OF AUTHORITIES CASES PAGE(S)

Abecassis v. Wyatt, 704 F.Supp.2d 623 (S.D. Tex. 2010) .......................................................................................20 Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th 2012)...........................................................................................................21 Abramson v. P.J. Currier Lumber Co., No. 00-cv-315, 2001 U.S. Dist. LEXIS 1039 (D.N.H. Jan. 17, 2001) ....................................11 Ahmed-Al-Khalifa, vs. Queen Elizabeth II, No. 13-cv-103, 2013 U.S. Dist. LEXIS 71682 (N.D. Fla. Apr. 19, 2013) ..............................16 Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985).....................................................................................................28 Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705 (2d Cir. 1989).....................................................................................................20 Arroyo v. United States, 656 F.3d 663 (7th Cir. 2011) ...................................................................................................12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................................5, 19, 20 Ayilla, v. The Salvation Army, No. 13-cv-289, 2013 U.S. Dist. LEXIS 78173 (N.D. Fla. Apr. 29, 2013) ..............................16 Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) .............................................................................................19, 20 Bado-Santana v. Ford Motor Co., 283 F. Supp. 2d 520 (D.P.R. 2003) ............................................................................................8 Baker v. Carr, 369 U.S. 186 (1962) .................................................................................................................28 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ...........................................................................................................26, 29 Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483 (E.D. Va. 2003) ......................................................................................23 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................................5 iii

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Bergquist v. Mann Bracken, LLP, 592 F.3d 816 (7th Cir. 2010) .....................................................................................................2 Bigio v. Coca-Cola Co., 675 F.3d 163 (2d Cir. 2012).....................................................................................................24 Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000) .....................................................................................29 Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) .....................................................................................................5 Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) .................................................................................................6 Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th 1990).......................................................................................................8, 10 Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010) ...................................................................................................11 Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009) .....................................................................................................5 Chesapeake Bay Ass’n v. Harbour Point Bldg. Corp., No. CL00-1893, 2002 Va. Cir. LEXIS 422 (Va. Cir. Ct. June 18, 2002)................................13 Clifford v. United States, No. 10-cv-774, 2011 U.S. Claims LEXIS 2168 (Fed. Cl. Nov. 8, 2011) ................................21 Conroy v. Aniskoff, 507 U.S. 511 (1993) (Scalia, J., concurring in judgment) .......................................................12 Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005), aff’d, 503 F.3d 974 (9th Cir. 2007) .....................25 Credit Suisse Securities (USA) LLC v. Simmonds, ___U.S.___, 132 S. Ct. 1414 (2012) ..........................................................................................7 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) ...................................................................................................................2 DelCostello v. Nat’l Bhd. of Teamsters, 462 U.S. 151 (1983) .................................................................................................................13 Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D. Cal. 2010) ...................................................................................19

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Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) ...........................................................................................27 Economopoulos v. Kolaitis, 259 Va. 806 (Va. 2000)............................................................................................................24 Fayoade v. Spratte, 284 Fed. Appx. 345 (7th Cir. 2008) ...........................................................................................8 Firestone v. Wiley, 485 F. Supp. 2d 694 (E.D. Va. 2007) ......................................................................................23 Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013 (7th Cir. 2011) .................................................................................................19 Fritz v. Johnston, 209 Ill. 2d 302 (Ill. 2004) .........................................................................................................23 GPX Int’l Tire Corp. v. United States, 666 F.3d 732 (Fed. Cir. 2011)..................................................................................................12 Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985) ........................................................................................17 Hassin v. EPA, No. 96-cv-7873, 2001 U.S. Dist. LEXIS 7476 (E.D. Ill. May 29, 2001) ................................21 Heinrich v. Sweet, 49 F. Supp. 2d 27 (D. Mass. 1999) ..........................................................................................22 Higginbotham v. Baxter Int’l, Inc., No. 04-cv-4909, 2005 U.S. Dist. LEXIS 38011 (N.D. Ill. Dec. 22, 2005) ................................5 Hinkle v. Henderson, 85 F.3d 298 (7th Cir. 1996) .....................................................................................................10 Hoang Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004) .................................................................................................6 Hollander v. Brown, 457 F.3d 688 (7th Cir. 2006) .....................................................................................................7 Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, No. 10-cv-1884, 2011 WL 1900340 (N.D. Ill. Aug. 11, 2011) ...............................................26 Hopson v. Aguair Law Office, No. 12-cv-771, 2013 U.S. Dist. LEXIS 5844 (W.D. Ky. Jan. 15, 2013).................................22

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In re Afr.-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027 (N.D. Ill. 2004) .......................................................................................6 In re Copper Antitrust Litig., 436 F.3d 782 (7th Cir. 2006) ...................................................................................................10 In re South African Apartheid Litig., 617 F. Supp.2d 228 (S.D.N.Y. 2009).........................................................................................7 Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) ...................................................................................................6 Jones v. Bock, 549 U.S. 199 (2007) ...................................................................................................................5 Jones v. Shooshan, 855 F. Supp. 2d 594 (E.D. Va. 2012) ........................................................................................9 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).......................................................................................................26 Kaplan v. Shure Bros., Inc., 153 F.3d 413 (7th Cir. 1998) ...................................................................................................11 Kerwin v. Balhatchett, 147 Ill. App. 561 (Ill. App. Ct. 1909) ......................................................................................25 Kiobel v. Royal Dutch Petro. Co., __ U.S. __, 133 S. Ct. 1659 (2013) ..........................................................................1, 12, 14, 15 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)...............................................................................................14, 19 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991) .................................................................................................................13 Law v. Medco Research, Inc., 113 F.3d 781 (7th Cir. 1997) .....................................................................................................8 Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797 (7th Cir.2008) ......................................................................................................6 Logan v. Wilkins, 644 F.3d 577 (7th Cir. 2011) .....................................................................................................6 McCann v. Hy-Vee, Inc., 663 F.3d 926 (7th Cir. 2011) ...............................................................................................6, 10

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McPherson v. United States, 392 F. App’x 938 (3d Cir. 2010) ...............................................................................................6 Miller v. Rite Aid Corp., 334 F.3d 335 (3d Cir. 2003).....................................................................................................11 Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011) .................................................................................................18 Mohammadi v. Islamic Republic of Iran, No. 09-cv-1289, 2013 U.S. Dist. LEXIS 76477 (D.D.C. May 31, 2013) ................................16 Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (U.S. 2010) ...............................................................................................14, 15 Mwani v. Bin Laden, No. 99-cv-125, 2013 U.S. Dist. LEXIS 74822 (D.D.C. May 29, 2013) ..................................16 Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) .......................................................................................................8 Nemmers v. United States, 795 F.2d 628 (7th Cir. 1986) .....................................................................................................1 Nocula v. UGS Corp., 520 F.3d 719 (7th Cir. 2008) ...................................................................................................25 Papa v. United States, 281 F.3d 1004 (9th Cir. 2002) ...................................................................................................6 Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) ...................................................................................................18 Pramuk v. Purdue Calumet Univ., No. 12-cv-77, 2012 U.S. Dist. LEXIS 177302 (N.D. Ind. Dec. 14, 2012) ................................7 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003)......................................................................................26 Ray v. Maher, 662 F.3d 770 (7th Cir. 2011) .....................................................................................................7 Republic of Austria v. Altmann, 541 U.S. 677 (2004) .................................................................................................................25 Samirah v. O’Connell, 335 F.3d 545 (7th Cir. 2003) ...................................................................................................11

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Sampson v. Federal Republic of Germany, 975 F. Supp. 1108 (N.D. Ill. 1997) ..........................................................................................21 Sandy Creek Condominium Ass’n v. Stolt & Egner, 267 Ill. App. 3d 291 (Ill. App. Ct. 2d Dist. 1994)....................................................................24 Sarei v. Rio Tinto, 2013 U.S. App. LEXIS 13312 (9th Cir. Cal. June 28, 2013) ..................................................16 Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) ...................................................................................................19 Scher v. Bayer Corp., 258 F.Supp.2d 190 (E.D.N.Y. 2003) .......................................................................................11 Serra v. Lappin, 600 F.3d 1191 (9th Cir. 2010.) ................................................................................................18 Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008) ...............................................................................................11 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ........................................................................................................2 12, 14 Springman v. AIG Mktg., 523 F.3d 685 (7th Cir. 2008) ...................................................................................................12 Teamsters & Employers Welfare Trust v. Gorman Bros., 283 F.3d 877 (7th Cir. 2002) .....................................................................................................8 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) ...........................................................................................17, 18 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ...................................................................................................................5 Tire Eng’g & Distribution, LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d 292 (4th Cir. 2012) ...................................................................................................24 United States v. Kubrick, 444 U.S. 111 (1979) .............................................................................................................8, 10 Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504 (8th Cir.1983) ....................................................................................................11 Velez v. Bank of N.Y. Mellon Trust Co. N.A., No. 12-cv-1008, 2012 U.S. Dist. LEXIS 153716 (E.D. Va. Oct. 23, 2012) ............................24

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Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (D.D.C. 2006) ...........................................................................................10 W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l., 493 U.S. 400 (1990) .................................................................................................................25 White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998) .....................................................................................22 Williams v. Buss, 538 F.3d 683 (7th Cir. 2008) .....................................................................................................7 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) ...........................................................................................17 Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008) .....................................................................................................8 STATUTES 735 ILCS 5/13-202 ........................................................................................................................12 735 ILCS 5/13-215 ..........................................................................................................................9 18 U.S.C. § 1091 ............................................................................................................................21 28 U.S.C. § 1331 ............................................................................................................2, 14, 17, 18 28 U.S.C. § 1605 ............................................................................................................................11 28 U.S.C. § 1332 ........................................................................................................................2, 18 28 U.S.C. § 1652 ........................................................................................................................6, 14 28 U.S.C. § 1350 .................................................................................................................... passim Va. Code Ann. § 8.01-243(A)..........................................................................................................3 OTHER AUTHORITIES Restatement (Second) of Torts, § 222A .........................................................................................25 Rome Statute of the International Criminal Court, art. VI ............................................................21 Rule 12(b) ..............................................................................................................................5, 7, 30

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INTRODUCTION The Third Amended Complaint (“Complaint”) – Plaintiffs’ fourth attempt to sue Defendants1 – must be dismissed because the applicable statutes of limitation lapsed, the Court lacks subject matter jurisdiction, and the Complaint contains no viable cause of action and should be dismissed based on the Act of State Doctrine. This putative class action arises from a single, three-day military conflict between Serbians within Croatia and the Croatian Government that began on August 4, 1995. No relevant statute of limitations extends long enough to accommodate Plaintiffs’ tardiness in bringing this suit fifteen years after the fact—particularly where Defendants’ purported involvement in aiding the Croatian Government was documented in the media in 1995 and continuously thereafter. See Nemmers v. United States, 795 F.2d 628, 632 (7th Cir. 1986) (statutes of limitation “bring cases to the legal system before memories fade and evidence disappears”). Even if the relevant statutes of limitations did not foreclose this action, geography does. This Term, in Kiobel v. Royal Dutch Petro. Co., __ U.S. __, 133 S. Ct. 1659, 1660 (2013), the United States Supreme Court held there is a strong presumption that federal jurisdiction, no matter how invoked, does not extend to extraterritorial torts, whether based on international law or otherwise. All of the injuries alleged here occurred in Croatia, and claims based on those injuries cannot be maintained in a federal court.

1

Claims initially were brought against MPRI, Inc. (“MPRI”). After the alleged events, MPRI was acquired by L-3 Communications Corporation (“L-3”) and ultimately merged into Defendant L-3 Services, Inc. (“L-3 Services”), an L-3 subsidiary. In July 2012, L-3 spun off certain businesses and during that process L-3 Services was acquired by Engility Corporation (“Engility”). Effective July 18, 2012, Engility is the only proper Defendant. Even if this motion is denied as to Engility, it should be granted as to L-3 Services, which no longer carries any liability for MPRI’s historical activities.

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And even if Plaintiffs could overcome time and space, they still cannot surmount Article III. Plaintiffs have not identified any federal question to support this Court’s Article III

jurisdiction. The ten counts allegedly arise under both 28 U.S.C. §§ 1331 (federal question) and 1350 (federal question—Alien Tort Statute (“ATS”)). But none of the first nine counts identifies any state or federal tort, which is necessary to invoke jurisdiction under the ATS, nor any federal cause of action, which is necessary to invoke this Court’s “federal question jurisdiction” under Section 1331. Instead, each count alleges a violation of so-called “international law.”

International law by itself, however, does not create a cause of action. Some of the international laws identified in the Complaint are based on treaties, which themselves create no private rights of action, while others represent Plaintiffs’ view of what private international law ought to be. In no instance does any Plaintiff invoke any federal or any state statute or any recognized state or federal cause of action. The tenth count alleges conversion of real property, but conversion only applies to chattels, and only where those converted chattels have been identified with specificity. Apparently recognizing that their Complaint does not allege any viable federal question, Plaintiffs also invoke the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”) – a form of diversity jurisdiction. See Bergquist v. Mann Bracken, LLP, 592 F.3d 816, 818 (7th Cir. 2010). Plaintiffs, though, have failed to identify any relevant state law cause of action necessary to support a claim under this Court’s diversity jurisdiction. This too is not surprising given that states have been consistently warned to avoid actions that intrude into foreign affairs, the exclusive domain of the federal government. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000). Correspondingly, the federal “courts [have been] particularly wary of

impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).

2

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During the time this case was stayed, Plaintiffs’ claims continued to erode. In November 2012, former Croatian Generals Ante Gotovina and Mladen Markač were acquitted of all charges by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) Appeals Chamber. Compl. ¶ 60.2 Plaintiffs have relied heavily on the facts alleged against these individuals as support for their own claims and continue to do so even where the ICTY has now rejected those claims. See, e.g., Compl. ¶¶ 37, 60-69. While ICTY findings and rulings are not binding on this case, the Gotovina and Markač acquittals nonetheless lend further support to the argument that the Court should dismiss this case based on the Act of State Doctrine, rather than wade into issues of international sovereignty over which global opinion is sharply divided. FACTUAL BACKGROUND On August 4, 1995, the Croatian Government began “Operation Storm,” a three-day military campaign within Croatia’s Krajina region. Compl. ¶¶ 1, 57, 60. Each of the putative class representatives claims to have suffered loss of real property and unspecified personal property from the artillery bombardment on August 4, 1995 and from their ensuing efforts to escape. Compl. ¶¶ 73, 76, 77, 92. On the first day of the military operation, Plaintiffs Jovic and Mijic both set off toward Bosnia. Compl. ¶¶ 74-79. Plaintiff Jovic and her family now reside in Serbia and have lived there for the last sixteen years. Compl. ¶ 76. Plaintiff Mijic and her family have resided in the United States since July 2000. Compl. ¶ 79. After moving to New Zealand for twelve years, Plaintiff Grubor now resides in Belgrade, Serbia. Compl. ¶ 91. Plaintiffs Bosko Bjegovic and Dalibor Mrkalj have both lived in the United States for approximately 15 years. Compl. ¶¶ 93, 102. Bjegovic initially relocated to Serbia and moved to the U.S. in 1998, becoming a U.S. citizen in 2004. Compl. ¶¶ 99-100. Mrkalj moved to Serbia
2

ICTY Appeals Chamber Judgment Vol. I at 4, Judgment, Prosecutor v. Gotovina, Case No. IT-06-90-A (Nov. 16, 2012) (available at http://www.icty.org/x/cases/gotovina/acjug/en/ 121116_judgement. pdf).

3

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in 1995 and then to the Chicago area in 1998, where he became a U.S. citizen and lives today. Compl. ¶ 106. As early as August 20, 1995, the Chicago Tribune reported that “MPRI . . . provided training [to the Croatian military] in [various forms of] warfare[.]” Compl. ¶ 41(b) n.8. In early November 1995, London’s The Observer published a story entitled Invisible US Army Defeats Serbs, quoting an unidentified Croatian officer saying “we needed [Defendants] for Operation Storm when we took the Krajina.” Compl. ¶ 47 n.9. In addition to these two publications cited by Plaintiffs in their Complaint, there were books, articles, and other media making the same claims, a number of which are also cited in the Complaint. See, e.g., Compl. ¶¶ 120 n.19, 37 n.6. Moreover, the four iterations of Plaintiffs’ Complaint have relied upon the ICTY indictments of former Croatian Generals Ante Gotovina and Mladen Markač for factual content about alleged wrongdoing during Operation Storm. See, e.g., Compl. ¶¶ 60, n.5, 13, 71. But, in November 2012, these former Croatian Generals were acquitted of all charges by the ICTY Appeals Chamber, id. ¶ 60, on a finding that no “joint criminal enterprise” existed in connection with their involvement in Operation Storm,3 that the bombardment at issue in this case was not illegal,4 and that the deportations, forcible transfers and persecutions alleged here did not constitute violations of international law.5 Despite this ruling, Plaintiffs now assert, for the first time, that Defendants took a lead role as a “co-conspirator of the plan to expel the Krajina Serb population” and “directly participated in the joint criminal enterprise.” Compl. ¶111.
3

ICTY Appeals Chamber Judgment ¶ 96, Prosecutor v. Ante Gotovina (IT-06-90-A) (finding that “no reasonable trial chamber could conclude that the only reasonable interpretation of the circumstantial evidence on the record was the existence of a JCE with the common purpose of permanently removing the Serb civilian population from the Krajina by force or threat of force”).

4

Compare Compl. ¶¶ 1, 73, 77, 84, 96, 98 with ICTY Appeals Chamber Judgment ¶ 84, Prosecutor v. Ante Gotovina (IT-06-90-A). Compare Compl. ¶¶ 347, 62, 123 with ICTY Appeals Chamber Judgment ¶ 97, Prosecutor v. Ante Gotovina (IT-06-90-A).

5

4

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STANDARD OF REVIEW A complaint must allege facts sufficient to state a plausible claim for relief, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), meaning that it must contain allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This means “something more . . .than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. Bare legal conclusions “are not entitled to the

assumption of truth” and do not suffice. Iqbal, 556 U.S. at 679. On a Rule 12(b) motion, the Court may properly consider the complaint, all documents incorporated into it by reference, and matters of which a court may, in the normal course, take judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).6 Further, if allegations in the complaint show that relief is barred by the statute of limitations, the complaint is subject to dismissal. Jones v. Bock, 549 U.S. 199, 215 (2007); Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009). ARGUMENT I. PLAINTIFFS’ CLAIMS ARE TIME-BARRED. The Complaint is time barred on its face under every potential period of limitations from Virginia’s and Illinois’ two-year limitations to the ten-year window frequently borrowed from the Torture Victim Protection Act of 1992 (“TVPA”) § 2(c). While the ATS does not contain an explicit statute of limitations, for claims comparable to those pleaded by Plaintiffs, all of the courts to have addressed the issue7 agree that the ten-year limitation period governing claims under the closely analogous TVPA applies. Chavez v. Carranza, 559 F.3d 486, 492 (6th Cir.
Courts routinely take judicial notice of public statements, not to prove truth of assertions they contain, but to show the statements were made or to assess the speaker’s state of mind. See, e.g., Higginbotham v. Baxter Int’l, Inc., No. 04-cv-4909, 2005 U.S. Dist. LEXIS 38011, at *5-6 (N.D. Ill. Dec. 22, 2005).
7 6

As this Court is not one of the courts that has had occasion to rule upon this issue, these papers illustrate for the Court several possible interpretations of the limitations period applicable to the ATS, including that it operates akin to a statute of repose. The claims in this lawsuit are untimely under any theory.

5

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2009); Jean v. Dorelien, 431 F.3d 776, 778-79 (11th Cir. 2005); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005); Hoang Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004); Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002); McPherson v. United States, 392 F. App’x 938, 945 (3d Cir. 2010); see also In re Afr.-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1069 (N.D. Ill. 2004) (dicta). Particularly given the direct and overt nature of the injuries that Plaintiffs allege they suffered, their claims arose—and the limitation period began to run—on August 4, 1995 when Operation Storm commenced, and fifteen years before they initiated this action on August 17, 2010. Compl. ¶¶ 1, 57. Applying the ten-year statute adopted from the TVPA, Plaintiffs were required to bring their ATS claim no later than August 4, 2005. They allowed that deadline to pass, then waited another five years to file suit. Thus, their claims are time-barred. Nor are Plaintiffs able to avail themselves of equitable tolling theories in order to avoid this outcome, having pleaded facts that preclude any such relief. Furthermore, any limitation period, when applied to the ATS, should not be subject to tolling both because the ATS is a jurisdictional statute, and also because it is triggered when a cause of action arises. See McCann v. Hy-Vee, Inc., 663 F.3d 926, 930 (7th Cir. 2011) (such a trigger is not subject to tolling). And finally, under the Rules of Decision Act, 28 U.S.C. § 1652, the claims at issue are governed by an even shorter state statute of limitations than the TVPA’s ten-year period. A. Even if a Ten-Year Limitation Period Applied And Were Subject to Tolling, Plaintiffs Do Not Plead Facts Sufficient to Invoke that Relief and Their Complaint Is Therefore Untimely.

Under the law of this Circuit, “when the allegations of the complaint reveal that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim. See Logan v. Wilkins, 644 F.3d 577, 582-83 (7th Cir. 2011) (quoting Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008)); Limestone Dev. Corp. v. Vill. of 6

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Lemont, 520 F.3d 797, 802 (7th Cir.2008); see also Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006) (dismissal under Rule 12(b)(6) may be appropriate when a plaintiff effectively pleads himself out of court by alleging facts demonstrating that his suit is barred by the statute of limitations). And, in the context of a Rule 12(b)(6) motion, any equitable tolling argument a plaintiff may raise will be unavailing when, “all assertions of the complaint, as read with required liberality, would not permit the plaintiff[] to prove that this statute was tolled.” In re South African Apartheid Litig., 617 F. Supp.2d 228, 287 (S.D.N.Y. 2009) (internal quotations and citations omitted); see also Ray v. Maher, 662 F.3d 770, 773 (7th Cir. 2011); Pramuk v. Purdue Calumet Univ., 12-CV-77, 2012 WL 6552920, at *5 (N.D. Ind. Dec. 14, 2012) (“[W]here a complaint does not plead any facts that could support a justification for tolling the statute of limitations the complaint may be properly dismissed under Rule 12(b)(6).”). Such is the case here. Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. Credit Suisse Secs. (USA) LLC v. Simmonds, ___U.S.___, 132 S. Ct. 1414, 1419 (2012); Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). Here, the Complaint not only fails to plead facts sufficient to demonstrate either prong but to the contrary, demonstrates that the public was well aware of Defendants’ alleged involvement in the operative facts for nearly two decades and yet Plaintiffs did nothing until three years ago. This is hardly the sort of “diligent pursuit” envisioned by the Court in Credit Suisse. Credit Suisse, 132 S. Ct. at 1419. And Plaintiffs cannot cure their lack of diligence by contending that they learned “details of MPRI’s deep involvement in Operation Storm . . . within the last 12-18 months.” See

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generally Law v. Medco Research, Inc., 113 F.3d 781, 785 (7th Cir. 1997) (statute of limitations not tolled in the context of a securities litigation during the time that a plaintiff has “enough facts in hand to enable them to file a complaint that would comply with the requirements of the Federal Rules of Civil Procedure”). Even if, arguendo, Plaintiffs had only recently uncovered facts demonstrating Defendants’ “deep” involvement in Operation Storm, the calculus would not change in the slightest. Where Plaintiffs have already alleged years of knowledge that, inter alia, “[m]any of the Croatian officers engaged in [Operation Storm] . . . had attended courses given by 15 former U.S. Army generals, colonels and master sergeants [from MPRI],”8 there are no “deeper” details that would suffice to toll the statute for their claims. See Fayoade v. Spratte, 284 Fed. Appx. 345 (7th Cir. 2008) (limitations period begins to run once plaintiff has knowledge that would lead a reasonable person to investigate infringement of legal rights); United States v. Kubrick, 444 U.S. 111, 122-23 (1979); Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 956 (4th Cir. 1995); Bado-Santana v. Ford Motor Co., 283 F. Supp. 2d 520, 525 (D.P.R. 2003). Equitable tolling is reserved for those cases “where, without fault by the defendant, the plaintiff is unable by the exercise of due diligence to obtain the information that he needs in order to be able to sue within the statutory period.” Teamsters & Employers Welfare Trust v. Gorman Bros., 283 F.3d 877, 884 (7th Cir. 2002). “[E]quity,” however, “aids the vigilant, not those who sleep on their rights.” Lantz v. C.I.R., 607 F.3d 479, 483 (7th Cir. 2010) (citations omitted); see also Yuan Gao v. Mukasey, 519 F.3d 376, 378-79 (7th Cir. 2008); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th 1990). In this case, Plaintiffs’ own allegations

8

See, e.g., Uli Schmetzer, How West Let Croatia Sneak Arms, Chi. Trib., Aug. 20, 1995 (article cited at Compl. ¶ 41(b) n.8).

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demonstrate that they had both the ability and information necessary to file the instant lawsuit well within the limitation period. See Statement of Facts, supra, pp. 3-4 (describing Plaintiffs’ recitation in their Complaint of their many years of residency in the U.S. or other nations from which suit could be brought, along with domestic and international media reports and public filings dating as far back as August 1995, purporting to describe MPRI’s alleged involvement in Operation Storm). Nor does there exist any species of equitable tolling under state law that would cure Plaintiffs’ untimeliness with respect to their state law claims. Even if Illinois’ five-year

fraudulent concealment limitation period were applied, widespread media reporting about Defendants’ alleged role in Operation Storm during the waning months of 1995 would have caused the action to be time-barred by the close of 2000 at the latest. See 735 ILCS 5/13-215 (2013) (allowing five-year limitation period for commencement of an action in cases of fraudulent concealment). And Virginia law rejects any discovery rule, meaning that the two-year limitation period “runs from the moment the cause of action arises rather than from the time of discovery of injury.” See Jones v. Shooshan, 855 F. Supp. 2d 594, 601-602 (E.D. Va. 2012) (citing Va. Military Inst. v. King, 217 Va. 751, 759, 232 S.E.2d 895 (1977)). B. The Ten-Year Limitation Period is Not Subject to Tolling. 1. The Ten-Year Period Began when Plaintiffs’ Claims Arose and, Therefore, Is Not Subject to Tolling.

The TVPA provides: “No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.” TVPA § 2(c) (emphasis added). By ending the Plaintiffs’ ability to bring suit ten years after a claim “arose,” the TVPA can cutoff a right of action, even before it matures. In contrast, a statute of limitation “begins running

9

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upon the accrual of some claim.” McCann, 663 F.3d at 930 (emphasis added).9 The TVPA is triggered by an external event which may not be related to the accrual of a claim, like the proverbial sponge negligently left in a patient, which may not cause harm or be discovered but that still triggers a statute of repose. See Hinkle v. Henderson, 85 F.3d 298, 301 (7th Cir. 1996). A statute of repose is not subject to tolling and is intended to “protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” Kubrick, 444 U.S. at 117. Like a classic statute of repose, the ten-year limitation in the TVPA begins running not when the claim accrued but, rather, when the injury occurred and the cause of action arose. The distinction between “arose” and “accrued” was best explained in Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 20-21 (D.D.C. 2006), aff’d on other grounds, sub nom Republic of Iraq v. Beaty, 556 U.S. 848 (2009). There, the court held that the plaintiffs’ injuries arose in December 1990, when they were held as hostages by the Iraqi regime, and not in April 1996, when Congress amended the Foreign Sovereign Immunities Act and permitted plaintiffs to sue Iraq. Id. at 21. At the time, the FSIA’s ten-year limitation was worded almost exactly as is section 2(c), but, unlike section 2(c), expressly permitted equitable tolling. In so holding, the court drew a distinction between when a cause of action “arises” and when it “accrues.” Id. “A claim ‘arises’ on the date that the action in question occurred, yet does not ‘accrue’ until a prior disability to suit is removed.” Id. By analogy, as currently worded, the ten-year period in section 2(c) can expire before a cause of action accrues. As such, the use of the word “arose” as
9

Therefore, a true statute of limitation can never run before a plaintiff’s rights have matured. Unless Congress has provided otherwise, a claim arising under federal law accrues when the plaintiff has discovered or reasonably should have discovered the injury. See In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir. 2006); Coda v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990).

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opposed to “accrued” demonstrates that section 2(c) is a statute of repose and not limitations. And this distinction between “arose” and “accrued” is widely recognized in this and other circuits. See Chang v. Baxter Healthcare Corp., 599 F.3d 728, 734 (7th Cir. 2010) (“A claim ‘accrues’ when the statute of limitations begins to run; a claim that could not have been discovered by the date on which it arose will not (in a jurisdiction with a discovery rule) accrue then.”); Kaplan v. Shure Bros., Inc., 153 F.3d 413 n.6 (7th Cir. 1998) (“[A] cause of action can ‘arise’ before it ‘accrues.’”).10 Equitable tolling applies to a statute of limitations (because it can extend the time when an action accrues), but it does not apply to a statute of repose (focused solely on when the cause of action arose). Were it otherwise, it would have been unnecessary for Congress to have inserted express equitable tolling language in the FSIA’s period of limitation. See 28 U.S.C. § 1605(f), repealed by Pub. L. No. 110-181, Div. A, Title X, § 1083(b)(1)(B), 122 Stat. 341 (Jan. 28, 2008); Simon v. Republic of Iraq, 529 F.3d 1187, 1194 (D.C. Cir. 2008) (“Section 1605(f) expressly incorporates ‘principles of equitable tolling.’”). Section 1605(f) provided as follows: No action shall be maintained under [§ 1605(a)(7)] unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period. Such express tolling language is conspicuously absent from the TVPA.11

Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 510 n. 4 (8th Cir.1983) (noting that “in certain contexts, the words ‘accrue’ and ‘arise’ have significantly different meanings.”); Abramson v. P.J. Currier Lumber Co., 2001 WL 274772, *1, 2001 U.S. Dist. LEXIS 1039, at *3 (D.N.H. Jan. 17, 2001) (“The point at which a cause of action ‘arises’ can be different from the point at which it ‘accrues.’”).
11

10

The fact that section 2(c) of the TVPA is titled “statute of limitations” cannot change the text or its meaning nor can it “limit the plain meaning of the text.” Samirah v. O’Connell, 335 F.3d 545, 548-49 (7th Cir. 2003) (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)); see, e.g., Miller v. Rite Aid Corp., 334 F.3d 335, 340 (3d Cir. 2003). Nor can a title be used to create an ambiguity. See Scher v. Bayer Corp., 258 F. Supp.2d 190, 193 (E.D.N.Y. 2003). Nor is the legislative history of the TVPA relevant, when one is seeking to have a court import its limitations period into

11

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2.

The Ten-Year Period Is Jurisdictional and Therefore Not Subject to Tolling.

A limitation period that is jurisdictional may not be tolled even if it is a true statute of limitations, as opposed to statute of repose. See Arroyo v. United States, 656 F.3d 663, 679 (7th Cir. 2011) (Posner, J., concurring). The ten-year period at issue here, even though borrowed from the TVPA, is quintessentially jurisdictional because it applies solely to a jurisdictional provision—section 1350. See Kiobel, 133 S. Ct. at 1660 (stating that the ATS is a jurisdictional statute); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). A limitation period attached to a solely jurisdictional provision cannot be anything other than jurisdictional and, for this reason too, equitable tolling is unavailable to Plaintiffs. C. Plaintiffs’ Claims Are Time-Barred by the Governing State Statute of Limitations.

Plaintiffs’ common-law causes of action for conspiracy under Virginia and Illinois law are—among other infirmities, discussed below—also time-barred by the applicable statutes of limitation. As a first principle, Count IX (Conspiracy to Commit Forced Population Transfer and Destruction of Property) and Count X (Conspiracy to Commit Unlawful Conversion of Property) are putatively being heard on diversity jurisdiction and, therefore, state law governs the limitations period. See Springman v. AIG Mktg., 523 F.3d 685, 688 (7th Cir. 2008) (state law governs limitations defense in diversity suit). Both Illinois and Virginia provide a two year limitations periods for these types of claims. 735 ILCS 5/13-202 (2008) (two-year limitation
another cause of action. Relying on legislative history is perilous under the best of circumstances, much like “entering a crowded cocktail party and looking . . . for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment). Where the legislative history unfolded nearly two centuries after the legislation at issue was enacted, the exercise is more like entering a crowded cocktail party and looking for one’s long deceased ancestors. When Congress wants the legislative history of one act to be used in interpreting another, it expressly so states. See GPX Int’l Tire Corp. v. United States, 666 F.3d 732, 742 (Fed. Cir. 2011). Here, there is nothing in the TVPA that states or even suggests that the law’s legislative history should somehow be used to interpret or inform a statute of limitations that has been exported by some courts and applied to another law.

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period for personal torts); Va. Code Ann. § 8.01-243(A) (2013) (two-year limitation period for torts); Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, P110, at *82 (Ill. App. Ct. 1st Dist. 2013) (conspiracy claim governed by limitation period for underlying tort); Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass’n v. Harbour Point Bldg. Corp., No. CL001893, 2002 Va. Cir. LEXIS 422, at *26 (Va. Cir. Ct. June 18, 2002) (same under Virginia law). Thus, Plaintiffs should have brought these claims on or before August 4, 1997 (two years after Operation Storm began). Furthermore, these same state law statutes of limitations should also apply to Plaintiffs’ remaining claims. Two rules govern borrowing where Congress has failed to provide a statute of limitations—one where there is a federal cause of action and the other where there is not. When dealing with “a federal cause of action, a court ‘borrows’ or ‘absorbs’ the local time limitation most analogous to the case at hand.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355-56 (1991). As noted above, a number of courts, adhering to this guidance, have imported the TVPA’s ten year statute of limitations for use with the ATS. See Section I, supra. Nevertheless, where no federal cause of action has been pleaded and no privately enforceable federal substantive law is at issue, the appropriate state statute of limitations governs for two reasons. First, if no federal cause of action has been pleaded, the precondition for using a federal limitations period, namely a conflict between a state limitations and a federal substantive right, does not and cannot exist. See DelCostello v. Nat’l Bhd. of Teamsters, 462 U.S. 151, 161 (1983) (emphasis added). The ATS—the sole basis of this complaint—creates no cause of action. The “ATS is a jurisdictional statute creating no new causes of action, . . . [and is] best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for

13

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personal liability at the time.” Sosa, 542 U.S. at 724. Second, uniform reliance on the state statute of limitations is compelled by the Rules of Decision Act, 28 U.S.C. § 1652, which provides that “[t]he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Since the Complaint points to no federal cause of action, the laws of the several states, including those states’ statutes of limitations, necessarily apply. II. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE ATS, SECTION 1331, AND CAFA. A. The Complaint Should be Dismissed Because Plaintiffs Cannot Overcome the Presumption Against Extraterritoriality.

The violations alleged in the Complaint are the purported result of a Croatian military operation carried out within its own borders. Compl. ¶ 1. Thus, Kiobel is dispositive: neither Section 1350 (ATS) nor Section 1331 provides a jurisdictional basis for wrongs committed abroad. In Kiobel, the Supreme Court reaffirmed the presumption against extraterritoriality. The Court also held that this presumption applied to jurisdictional statutes as well substantive ones, and the Court further narrowed the scope of the ATS by making it unavailable for “violations of the law of nations occurring outside the United States.” Kiobel, 133 S. Ct. at 1669.12 To overcome this presumption of extraterritorial application, a plaintiff’s claims must “touch and concern the territory of the United States [and] must do so with sufficient force.” Id. (citing Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (U.S. 2010) (emphasis added). However, it is arguable whether a “touch and concern” analysis could even be applied to the purely
The Kiobel court also held that federal common law is subject to the presumption against extraterritorial application. Id. at 1668-69 (“Nothing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign.). Thus, Plaintiffs’ attempt at jurisdiction via federal common law (Compl. ¶¶ 10, 146, 147) also fails for the reasons articulated in this section.
12

14

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jurisdictional ATS without completely eviscerating the presumption against extraterritorial application. Al Shimari v. CACI Int’l, Inc., 08-cv-827, at *18 (E.D. Va. June 25, 2013). Here, the Plaintiffs cannot overcome this presumption. Operation Storm—the catalyst for all of Plaintiffs’ alleged damages—took place in the Croatian cities of Knin, Titovi Karemice, Grubori, Vrbnik, and Topusko. See, e.g., Compl. ¶¶ 1, 73, 77, 89, 94, 102, 110. Any allegedly wrongful activities took place in Croatia: 1. Defendants purportedly finalized and solidified the operational plan for Operation Storm during at least 10 separate meetings that took place in Croatia (Compl. ¶¶ 41(d), 55-56); Defendants allegedly had an Operation Storm preparation meeting with Croatian leaders on the Brioni Islands in Croatia (Compl. ¶ 55); Defendants were allegedly present in Croatia during Operation Storm and monitored the military offensive from a Croatian operations center (Compl. ¶¶ 41(d), 116-117); Plaintiffs claim the Defendants were present in Croatia often enough to provide the Croatian military with confidence (Compl. ¶ 41(d), 112); Defendants allegedly provided instructional seminars in Croatia and sophisticated war-gaming computer simulations in Croatia (Compl. ¶¶ 41, 47, 50); and Defendants purportedly sent a 14-member “advisory” team to Croatia in 1994 (Compl. ¶ 41(b)).

2. 3.

4. 5. 6.

Simply: the War in the Balkans took place in the Balkans. Indeed, this Court has already recognized that the conduct giving rise to the alleged claims took place in Croatia. See Dkt. No. 39 (“Mem. Op.”) at 12 (in analyzing the “situs of material events,” the Court found that “[b]oth parties concede that the bulk of material events took place abroad,” and pointed out that Plaintiffs expressly argue that the “focus of this case is primarily on MPRI’s activities in Croatia…” ). Any remaining activities such as maintaining a corporate presence in the U.S. and making staffing and related decisions in Virginia do not overcome the presumption against exterritorial application, as several courts have recently confirmed. Kiobel, 133 S. Ct. at 1669; see also Morrison, 130 S. Ct. at 2884 (“[I]t is a rare case

15

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of prohibited extraterritorial application that lacks all contact with the territory of the United States.”); Sarei v. Rio Tinto, 2013 U.S. App. LEXIS 13312 (9th Cir. Cal. June 28, 2013); Al Shimari, 08-cv-827, at *18 (rejecting plaintiffs’ ‘f-squared’ argument against an American military contractor and holding that “the ATS does not provide jurisdiction over [ ] claims, which involve tortious conduct occurring exclusively outside the territory of the United States”); Ahmed-Al-Khalifa v. Queen Elizabeth II, No. 13-cv-103, 2013 U.S. Dist. LEXIS 71682, at *5 (N.D. Fla. Apr. 19, 2013) (“In light of Kiobel, the ATS cannot confer subject-matter jurisdiction onto plaintiff’s claims because the violations at issue all occurred outside of the United States, and the South African apartheid does not ‘touch’ or ‘concern’ the United States in such a way that would overcome the ATS’s presumption against extraterritoriality.”); Mohammadi v. Islamic Republic of Iran, No. 09-cv-1289, 2013 U.S. Dist. LEXIS 76477, at *50-51 (D.D.C. May 31, 2013); Ayilla v. The Salvation Army, No. 13-cv-289, 2013 U.S. Dist. LEXIS 78173, at *5-7 (N.D. Fla. Apr. 29, 2013). Indeed, the only time a court has found that an alleged overseas violation of international law sufficiently “touches and concerns” the U.S. to overcome the presumption against extraterritoriality has been where such overseas actions “were directed at the United States government, with the intention of harming this country and its citizens[,]”—namely, where a terrorist assault by Al Qaeda was mounted on a U.S. embassy. Mwani v. Bin Laden, No. 99-cv125, 2013 U.S. Dist. LEXIS 74822, at *12 (D.D.C. May 29, 2013). Plaintiffs proffer no connections to the U.S. even approaching the equivalent. And the court in Al Shimari recently illustrated how strong the presumption is against extraterritorial application of the ATS when it dismissed an ATS suit against a military contractor for alleged war crimes committed in Abu Ghraib prison. Al Shimari, 08-cv-827, at *18. In Al Shimari, the plaintiffs were held in a prison

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controlled by the U.S. military in territory controlled at least in part by the U.S. and purportedly harmed by contractors hired directly by the U.S. government—far greater connections to the U.S. than the Jovic Plaintiffs have pleaded. Id. Even this was insufficient to overcome the presumption against extraterritoriality because the “tortious conduct occur[ed] exclusively outside the territory of the United States.” Id. For this reason alone, Plaintiffs’ ATS claims should be dismissed. B. There is No Private Right of Action Under Section 1331 for Violations of International Law.

For the first time, Plaintiffs now assert that this Court has subject matter jurisdiction over Counts I - VIII pursuant to 28 U.S.C. § 1331 based on the theory that the individual claims are each a violation of some unspecified international law. Compl. ¶¶ 128-147; see 28 U.S.C. § 1331. Yet, there is no private right of action for violations of international law under 28 U.S.C. § 1331. See Xuncax v. Gramajo, 886 F. Supp. 162, 194 (D. Mass. 1995) (“[B]ecause international law is not itself a source of private rights of action -- as is, for example, the common law of contracts or torts -- a plaintiff’s claims for violation of human rights cannot ordinarily “arise under” federal-common-law-cum-international-law and consequently, § 1331 jurisdiction does not extend to such claims.”) (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779-80 n.4 (D.C. Cir. 1984); id. at 811 (Bork, J., concurring); Handel v. Artukovic, 601 F. Supp. 1421, 1427 (C.D. Cal. 1985) (“while international law may provide the substantive rule of law in a given situation, the enforcement of international law is left to the individual states.”)). Despite general allegations of violation of unspecified international law, the Complaint sounds exclusively in violations of customary international law (aka the law of nations). See Compl. ¶¶ 128-147 (alleging genocide, crimes against humanity, etc.). While customary

international law is a part of U.S. federal common law, see The Paquete Habana, 175 U.S. 677, 17

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700 (1900), it is understood that customary international law—like ‘ordinary’ international law—does not confer a private right of action on individuals that is enforceable in U.S. courts under 28 U.S.C. § 1331. Tel-Oren, 726 F.2d at 778 (The “law of nations never has been perceived to create or define the civil actions to be made available by each member of the community of nations.”). Indeed, violations of customary international law may only be brought to the United States District Courts via the ATS or TVPA. Serra v. Lappin, 600 F.3d 1191,

1197-98 n.7 (9th Cir. 2010.) (“If any plaintiff could bring a claim alleging a violation of the law of nations under federal-question jurisdiction, there would be no need for statutes such as the [ATS] and Torture Victim Protection Act.”); see also Mohamad v. Rajoub, 634 F.3d 604, 608 (D.C. Cir. 2011), aff’d, Mohamad v. Palestinian Auth., ___U.S.___, 132 S. Ct. 1702 (2012). As described above, however, Plaintiffs’ claims are deficient under the ATS, see, Section II, supra, and, further, the TVPA is not an available remedy as against a corporate entity. Mohamad, 132 S. Ct. at 1702. Therefore, Counts I through VIII fail for want of subject matter jurisdiction. C. CAFA Does Not Provide Jurisdiction for Plaintiffs’ Claims.

Plaintiffs’ attempt to base subject matter jurisdiction on CAFA is misguided. Compl. ¶ 11. CAFA was not intended to, nor does it, provide a jurisdictional basis for suits regarding international human rights violations committed overseas. See Senate Report No. 109-14, at III (Purposes) (Feb. 28, 2005). Instead, CAFA was aimed at ensuring that interstate class actions could be heard in federal court. See id. And indeed, the field of human rights violations is preempted by the ATS and TVPA, leaving no room for CAFA. See Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 984 (7th Cir. 2012). Furthermore, as discussed above, Plaintiffs have not pleaded any viable causes of action under state law that might be pursued through this avenue of jurisdiction. See Section I.C, supra. Plaintiffs therefore cannot avail themselves of jurisdiction. 18

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III.

PLAINTIFFS HAVE FAILED TO PLEAD CLAIMS FOR WHICH RELIEF CAN BE GRANTED. A. There Is No Corporate Liability Under the ATS.

The issue of corporate liability under the ATS may be considered unsettled in this Circuit, see Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011), but Defendants respectfully urge the Court to adopt the Supreme Court’s guidance in Sosa and the Second Circuit’s rationale in Kiobel that liability against corporate military contractors is not a well-defined norm of international law for purposes of jurisdiction under the ATS. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 136 (2d Cir. 2010). B. Counts I, IV, V, VI, and VIII Should Be Dismissed Because Plaintiffs Do Not Allege that Defendants Acted With the Requisite Mens Rea.

Plaintiffs’ five causes of action for complicity and aiding and abetting liability fail to allege the requisite mens rea of “purpose” or “intent.” See Sarei v. Rio Tinto, PLC, 671 F.3d 736, 750 (9th Cir. 2011), vacated, 133 S. Ct. 1995, 2013 U.S. LEXIS 3271 (2013); see also Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D. Cal. 2010). First, Count VIII patently fails because Plaintiffs only assert that Defendants acted with the lesser mens rea of “knowledge” for its claim of aiding and abetting crimes against humanity. Thereafter, despite years to consider this pleading defect for the other accessorial liability claims, Plaintiffs now only insert the words “intent” and “purpose” into allegations in support of four of their other causes of action for aiding and abetting and complicity (Counts I, IV, V and VI). But buzz words alone are not enough to overcome this shortcoming. See Iqbal, 556 U.S at 679; Aziz v. Alcolac, Inc., 658 F.3d 388, 401 (4th Cir. 2011). And the facts in the Complaint—lifted almost whole cloth from an ICTY indictment from which the accused were ultimately acquitted—only proffer the description of a decades-long animosity between Croats and Serbs beginning well before the dissolution of the former 19

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Yugoslavia and continuing through Operation Storm. Compl. ¶¶ 16-31. The alleged historical animosity between those two peoples cannot support an inference that Defendants acted with the purpose of facilitating the commission of atrocities against Serbs. See Abecassis v. Wyatt, 704 F. Supp.2d 623, 654-55 (S.D. Tex. 2010). This comes nowhere close to a plausible allegation of intent as the Fourth Circuit made clear in Aziz when addressing an almost identical situation. Aziz, 658 F.3d at 401 (quoting Iqbal, 556 U.S at 679) (“cursory allegation untethered to any supporting facts, constitutes a legal conclusion that neither binds [this Court] . . ., nor is ‘entitled to the assumption of truth[.]’”). As in Aziz, Plaintiffs here have failed to plead “factual content that allows the court to draw the reasonable inference that [either of the Defendants] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). For these reasons, too, claims of complicity and aiding and abetting must be dismissed. C. Counts II, III, and VII Should Be Dismissed Because Plaintiffs Fail to Plead Essential Elements of Principal Liability.

There is no basis for the conclusory accusations in Counts II, III, and VII that Defendants directly engaged in acts of genocide, crimes against humanity, and forced population transfer – particularly after Plaintiffs themselves conceded that any such allegations would amount to rank speculation. (D.E. 1, at ¶ 66 n.18.) In 2010, Plaintiffs could not then “specifically allege that MPRI personnel participated in the genocidal campaign of Operation Storm” because they said “Plaintiffs have been unable to discover whether any MPRI personnel actually served in this capacity, and hence refrain from raising a reasonable speculation—that they did so serve.” Id. Having made that concession to this Court, Plaintiffs cannot now with impunity level such allegations against Defendants without also pleading new facts to support these serious allegations. See Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989). But Plaintiffs proffer no new factual detail, instead claiming that because Defendants are 20

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supposedly so “experience[d] in covert operations” that such evidence “remains hidden.” Compl. ¶ 16. This is precisely the sort of speculation prohibited by Iqbal. Plaintiffs’ causes of action for principal liability are thus deficient. And, with respect to Plaintiffs’ claim of genocide, the Genocide Convention Implementation Act of 1987 (the “Proxmire Act”), 18 U.S.C. §§ 1091-93, established a federal statutory framework preempting such claims “where the alleged offender is a U.S. national, a lawful permanent U.S. resident, a stateless person residing in the United States, or present in the United States.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 678 (7th 2012) (citing 18 U.S.C. § 1091; Sampson v. Federal Republic of Germany, 975 F. Supp. 1108, 1119-1120 (N.D. Ill. 1997)). Plaintiffs must therefore bring their claims pursuant to the Proxmire Act. However, claims under the Proxmire Act are criminal in nature and do not provide civil jurisdiction or a private right of action. See Clifford v. United States, No. 10-cv-774, 2011 U.S. Claims LEXIS 2168, at *8 (Fed. Cl. Nov. 8, 2011) (claims under § 1091 “are criminal claims,” and “[a]s such, they are outside the [Federal Claims] Court’s jurisdiction”); Hassin v. EPA, No. 96-cv-7873, 2001 U.S. Dist. LEXIS 7476, at *6-7 (E.D. Ill. May 29, 2001) (“federal genocide statute specifically bars individuals from pursuing a private cause of action.”). Therefore, because Defendants are present in the U.S., the genocide claim fails. Abelesz, 692 F.3d at 667-68. Even assuming, arguendo, that the Proxmire Act does not preempt and preclude Plaintiffs’ claim for genocide, Plaintiffs still have failed to plead its essential elements. Looking to the Rome Statute as a consensus of customary international law, “genocide” requires an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” See Rome Statute of the International Criminal Court, Art. VI, July 18, 1998, 2187 U.N.T.S. 90. Thus, to sustain their claim, Plaintiffs would have to allege that Defendants committed one of the

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enumerated genocidal acts in the Rome Statute with such intent. Plaintiffs do not plead (nor could they) that any of Defendants’ personnel harbored any hatred or animosity towards the Serbs, nor acted with the intent to destroy this group. Recognizing this, Plaintiffs plead that Defendants had only the mens rea of “understanding” and “knowledge.” Compl. ¶ 139. Thus, even if not preempted by the Proxmire Act, Count II fails. Similar to claims for genocide, there exists no private right of action for crimes against humanity outside of the ATS and, thus, Count III also fails. Heinrich ex rel. Heinrich v. Sweet, 49 F. Supp. 2d 27, 43 (D. Mass. 1999) (no recognized cause of action for civil responsibility for crimes against humanity”); Hopson v. Aguair Law Office, No. 12-cv-771, 2013 U.S. Dist. LEXIS 5844, at *6 (W.D. Ky. Jan. 15, 2013) (where federal jurisdiction pleaded for war crimes and crimes against humanity, “these grounds are criminal in nature and do not provide for private causes of action or civil remedies”); White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash. 1998). Nor can Plaintiffs support their allegation of forced population transfer pursuant to Article 49 of Fourth Geneva Convention13 because Defendants are not of the class that may be prosecuted for such activity. See Compl. ¶ 141. Article 49 of the Fourth Geneva Convention proffers liability only against an “Occupying Power.” See Article 49 of Fourth Geneva

Convention. Accordingly, Count VII fails because the defendant must be an “Occupying Power” and Plaintiffs do not, nor could they, allege that Defendants ever occupied the Krajina.

13

Plaintiffs assert that Article 49 of Fourth Geneva Convention is the consensus of customary international law for a claim of forced population transfer. See Compl. at n.25.

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D.

Plaintiffs’ State Law Conspiracy Claims in Counts IX and X are not Sustainable as a Matter of Law.

Alleged violations of international law are properly brought under the ATS or TVPA, Plaintiffs cannot instead bootstrap them to a catch-all claim for “unlawful conduct” under Illinois and Virginia law. Nor, in any event, have Plaintiffs properly pleaded these causes of action under Illinois or Virginia law. 1. Plaintiffs’ Claims for Conspiracy to Commit Forced Population Transfer and Destruction of Property Fail Under Both Illinois and Virginia Law.

The Complaint does not even bother to identify the elements of civil conspiracy in Illinois or Virginia, let alone plead how such elements are satisfied.14 Plaintiffs also fail to allege the requisite underlying tort or crime cognizable under Illinois or Virginia law for the international law violations that they characterize as “Forced Population Transfer and Destruction of Property” in Count IX. Fritz, 209 Ill. 2d at 307. In addition, under either Illinois or Virginia law, Plaintiffs “must allege specific facts from which the existence of a conspiracy may properly be inferred.” Fritz, 209 Ill. 2d at 318; Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (stating to that to survive a motion to dismiss on common law civil conspiracy, plaintiff must plead agreement in more than mere conclusory language because "a conspiracy claim asserted in mere conclusory language is based on inferences that are not fairly or justly drawn from the facts alleged" (quoting Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 499-500 (E.D. Va. 2003))). Plaintiffs fall short in this regard too, alleging that General Vuono and Defendants’ representatives attended meetings together on Brioni Island
14

The requirements for a civil conspiracy in Illinois are: (1) a combination of two or more persons, (2) for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of which one of the conspirators committed an overt tortious or unlawful act. Fritz v. Johnston, 209 Ill. 2d 302, 317 (Ill. 2004). The elements for this claim under Virginia are substantially similar. See Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (citing Glass v. Glass, 228 Va. 39, 321 S.E. 2d 69 (Va. 1984)).

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in 1995, but not that they conspired with the Croatian Government to launch Operation Storm. Compl. ¶ 55; see also Bigio v. Coca-Cola Co., 675 F.3d 163, 176 (2d Cir. 2012) (the Court dismissing claims for civil conspiracy because plaintiffs did not plead “facts suggesting the existence of an agreement” to “accomplish an unlawful design”). Like the Bigio plaintiffs, the Plaintiffs here failed to plead the necessary elements, relying instead on innuendo and speculation. Compl. ¶¶ 55-56. Plaintiffs similarly fail to plead that Defendants had the requisite “unlawful purpose.” See Sections II B and C, supra. Moreover, Virginia law provides that this type of claim “‘generally requires proof that the underlying tort was committed’” and Plaintiffs do not – because they cannot – provide such proof. Velez v. Bank of N.Y. Mellon Trust Co. N.A., No. 12-cv-1008, 2012 U.S. Dist. LEXIS 153716, at *18 (E.D. Va. Oct. 23, 2012) (quoting Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d 292, 311 (4th Cir. 2012)). Plaintiffs cannot shoehorn the alleged international law violations of “Forced Population Transfer and Destruction of Property” in Count IX into any actionable tort in Virginia—and there is no all-encompassing tort of “unlawful conduct” that could sweep within its ambit the allegations associated with Operation Storm. “Where ‘there is no actionable claim for the underlying alleged wrong, there can be no action for civil conspiracy based on that wrong.’” Velez, 2012 U.S. Dist. LEXIS 153716, at *18. 2. Count X for Conspiracy to Commit Unlawful Conversion of Property Must Be Dismissed.

Whether under Illinois or Virginia law, Plaintiffs’ conspiracy claim fails because conversion applies only to personal property, not realty. See Sandy Creek Condo. Ass’n v. Stolt & Egner, 267 Ill. App. 3d 291, 295 (Ill. App. Ct. 2d Dist. 1994) (noting that the sale of real property will not sustain a cause of action for conversion); Economopoulos v. Kolaitis, 259 Va. 806, 814 (Va. 2000) (“Conversion is the wrongful assumption . . . over goods or chattels”); 24

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Restatement (Second) of Torts, § 222A.

The homes on the land allegedly abandoned by

Plaintiffs as a result of Operation Storm are not subject to conversion, as they are part of the realty. Furthermore, Plaintiffs do not allege that any particular items of personal property were lost in Operation Storm; instead they simply plead that “all” or “much” of their “personal property” was lost. See, e.g., Compl. ¶¶ 75, 92, 98. This generalized manner of pleading is not sufficient because conversion “does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted.” Kerwin v. Balhatchett, 147 Ill. App. 561, 565-566 (Ill. App. Ct. 1909). Indeed, the Court would be hard-pressed to adjudicate a

conversion claim for “all” or “much” “personal property” with no further description. For these reasons, the cause of action for conspiracy to commit conversion must be dismissed. IV. PLAINTIFFS’ CLAIMS ARE BARRED BY THE ACT OF STATE DOCTRINE. Adjudicating this case will compel this Court not only to assess the lawfulness of Defendants’ conduct, but also to rule upon the legality of a military offensive launched by the Croatian Government within its own borders to suppress those it considered dangerous—a quintessential example of a sovereign act. See Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1022-23 (W.D. Wash. 2005), aff’d, 503 F.3d 974 (9th Cir. 2007) (holding that “military orders are official acts of the sovereign”). The Act of State Doctrine prohibits this. See Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004); W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l., 493 U.S. 400, 406 (1990); Nocula v. UGS Corp., 520 F.3d 719, 727 (7th Cir. 2008). To determine whether the Doctrine bars a lawsuit, courts must consider: (1) the degree of international consensus regarding the acts of the foreign government challenged by the suit; (2) the implications of the suit for U.S. foreign relations; and (3) whether the government accused of 25

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perpetrating the alleged wrongful acts remains in existence. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964); see also Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, No. 10-cv-1884, 2011 WL 1900340, at *5 (N.D. Ill. Aug. 11, 2011). Each of these factors weighs in favor of the application of the Doctrine and the dismissal of this action. The first factor requires that courts employ a “sliding scale,” whereby “[t]he more clearcut the alleged violation of international law, the less deference is due to the acts of a foreign sovereign, and vice-versa.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 345 (S.D.N.Y. 2003). The Act of State Doctrine should be applied “in a context . . . in which world opinion [is] sharply divided.” Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995). On this sliding scale, the Croatian Government should receive considerable deference for Operation Storm because world opinion is divided.15 Some, including Plaintiffs, condemn the military campaign, whereas others, including the U.S. Government,16 have voiced support for the campaign and credit it with ushering in the period of relative peace the Balkans enjoy today.17 Adding to this is the November 2012, ICTY appellate court acquitted of Croatian Generals Gotovina and Markač, ruling that both had been erroneously convicted by the ICTY
15

Indeed, sixteen years later the International Court of Justice is still grappling with the legality of Operation Storm in a separate pending case between the states of Croatia and Serbia. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Int’l Ct. of Justice), available at http://www.icjcij.org/docket/index.php?p1=3&p2=3&code=cry&case=118&k=73 (last visited June 4, 2013) (subject to judicial notice for fact of pendency of the action in the International Court of Justice and the fact that allegations have been raised that genocidal acts were committed during Operation Storm). David N. Gibbs, First Do No Harm: Humanitarian Intervention and the Destruction of Yugoslavia 164 (Vanderbilt Univ. Press 2009) (relied on by Plaintiffs, as cited at Compl. ¶ 20(c) n.3). Sources relied upon by Plaintiffs show measured U.S. Government support existed for the Operation Storm offensive. Articles cited in Complaint: see, e.g., Uli Schmetzer, How West Let Croatia Sneak Arms, Chi. Trib., Aug. 20, 1995 (article cited at Compl. ¶ 41(b) n.8) (“Western diplomats believe the flow of arms and the presence of American advisers were part of a strategy masterminded by Washington and Bonn in the belief that a more powerful Croatia would force Bosnian Serbs to seek a negotiated settlement.”); see also Marcus Tanner, Croatia: A Nation Forged in War 298 (Yale Univ. Press 2010) (1997) (quoting International Security Review 1996, Royal United Services Institute for Defence Studies, London, 1996 p. 67) (quoting President Clinton’s view that Operation Storm would lead to peace in the Balkans).

16

17

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Trial Chamber for their involvement in Operation Storm. Compl. ¶ 60; accord Judgment, Prosecutor v. Gotovina, ICTY Case No. IT-06-90-A. The crux of this acquittal was based on a ruling that the artillery shelling during Operation Storm was not in violation of international law. Id. Plaintiffs allege in their pleadings this same artillery shelling was a “key component” of the Operation Storm battle plan that injured them. Compl. ¶ 58. Indeed, with regard to the first Sabbatino factor, precedent involving other long-running socio-political tensions reinforces the notion that U.S. courts should be wary of inserting themselves into such situations. In Doe I v. State of Israel, 400 F. Supp. 2d 86, 95 (D.D.C. 2005), for example, the court addressed a similar lawsuit involving the nearly 60-year-old conflict between Israelis and Palestinians. That court concluded that “[t]he first factor [of the act-of-state analysis] requires little attention, as it is undeniable that the Israeli-Palestinian conflict has sharply divided the world—the only consensus is that the situation is regrettable.” Id. at 113. The district court also rejected the argument that the severity of the Palestinian plaintiffs’ allegations—genocide, crimes against humanity, torture, and war crimes in connection with the Israeli settlement of certain Palestinian areas—should trump the proper application of the Act of State Doctrine, stating “[t]he fact that plaintiffs have alleged jus cogens violations does not change things.” Id. at 114. Thus, where (as here) the alleged violations are part of a broader conflict over which world opinion is sharply divided, the Act of State doctrine is not skirted by the mere invocation of words like “genocide.” Id. The impact on U.S. foreign relations with Croatia also weighs in favor of applying the Act of State Doctrine to bar this action. Foreign affairs are matters that the courts should generally avoid, consigned by the Constitution to the political branches. “Not only does

resolution of such issues frequently turn on standards that defy judicial application, or involve

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the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views.” Baker v. Carr, 369 U.S. 186, 211 (1962). Adjudicating the legality of Operation Storm would pose the threat of embarrassment to the U.S. Government and damage to current U.S. foreign policy interests in the Balkans.18 Plaintiffs allege facts that, if taken as true, illustrate the U.S. Government condoned and supported Croatians throughout Operation Storm. Plaintiffs’ sources claim Croatia would not have acted “without the explicit approval of the U.S. government” and that President Clinton was purportedly “rooting for the Croatians.”19 Croatia, a democratic ally and trading partner, has been party to a Bilateral Investment Treaty20 with the U.S. since 2001—and remains the only constituent portion of former Yugoslavia with which such relations have been established.21 Moreover, as recently as May 2012, President Obama “emphasized that the United States and Croatia share a close relationship and a friendship that is based on a mutual commitment to

18

Even if this Court is not inclined to apply the Act of State Doctrine, Defendants respectfully request that the Court consider soliciting the position of the U.S. State Department before proceeding further. Although not dispositive, the State Department’s Statement of Interest would resolve the question whether the Executive Branch is concerned about potential foreign policy consequences of this Court’s considering either the legality of Operation Storm or the legitimacy of the Croatian Army’s objectives. See Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 n.2 (2d Cir. 1985) (noting, with respect to the “likely impact” on foreign relations, that “[t]his estimation may be guided but not controlled by the position, if any, articulated by the executive as to the applicability vel non of the doctrine to a particular set of facts. Whether to invoke the Act of State Doctrine is ultimately and always a judicial question.”). Gibbs, supra note16, at 164 (relied upon by Plaintiffs, as cited at Compl. ¶ 20(c) n.3). The long-form name of the treaty is the Treaty Between the Government of the United States of America and the Government of Croatia Concerning the Encouragement and Reciprocal Protection of Investment, entered into on June 20, 2001. U.S. Dep’t of Commerce, Trade Compliance Center, available at http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_002699.asp (last visited July 1, 2013) (subject to judicial notice for the purpose of demonstrating the fact of a bilateral investment treaty between U.S. and Croatia).

19 20

21

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democracy, freedom, economic development and peace.”22 Were this Court to scrutinize the uniquely governmental domestic military decisions in what Croatia considers its “War of Independence,” relations between the two countries could be seriously impaired. Nor has the current Croatian Government23 disavowed or denounced Operation Storm—a factor crucial to the third Sabbatino prong. See Sabbatino, 376 U.S. at 428; Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130 (E.D.N.Y. 2000) (finding the Act of State Doctrine not implicated when the current French Government had disavowed the relevant actions of France’s World War II-era Vichy regime). To the contrary, the Government of Croatia emphatically celebrates that military campaign as the historic final battle of the Croatian War of Independence and a point of national pride—even going so far as to create an annual public holiday to mark the occasion. Compl. ¶ 118 n.17. Moreover, upon the acquittal of Generals Gotovina and Markač at The Hague in November 2012, the President of Croatia issued a statement, saying in pertinent part that “General Gotovina and Markač have spent eight years in prison as innocent men. It is not easy to live with this. However, they have done this for Croatia and as Commander-in-Chief I wish to thank them for the sacrifice they have made for their homeland.”24 Accordingly, this Court should apply the Act of State Doctrine to dismiss this lawsuit.

Embassy of the Republic of Croatia in the USA, Washington D.C., Croatian Ambassador presented his Letter of Credence to U.S. President Barack Obama on May 2, 2012, available at http://us.mfa.hr/InfoPopup.aspx?mv=1047&pr=t&id=14313 (last visited June 5, 2013) (subject to judicial notice for fact of web publication of statement by Croatian Embassy).
23

22

After Tuđman’s death, public State Department documents report a Croatian coalition government was elected in 2000 that implemented Dayton Peace Accords. Bureau of European & Eurasian Affairs, U.S. State Dep’t, Apr. 6, 2011 Background Note: Croatia, available at http://www.state.gov/r/pa/ei/bgn/3166.htm (last visited Nov. 3, 2011) (subject to judicial notice for undisputed historical fact). Office of the President of Croatia, Statement by President Josipović regarding the final verdict of the ICTY (Nov. 16, 2012), available at http://www.predsjednik.hr/16112013 (last visited June 5, 2013) (subject to judicial notice for fact of publication).

24

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CONCLUSION For the reasons stated herein, the Complaint must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). STATEMENT OF COMPLIANCE WITH STANDING ORDERS Pursuant to this Court’s Standing Orders, counsel have exchanged correspondence and engaged in a telephone conference attempting to resolve these issues, but were unsuccessful.

Respectfully Submitted, __/s James E. Tyrrell Jr.______ James E. Tyrrell, Jr. Joseph E. Hopkins Lisa Ann T. Ruggiero PATTON BOGGS LLP One Riverfront Plaza, 6th Floor Newark, New Jersey 07102 Tel: (973) 848-5600 Fax: (973) 848-5601 Attorneys for Defendants __/s Paul T. Fox______ Paul T. Fox Thomas E. Dutton C. Allen Foster David S. Panzer GREENBERG TRAURIG LLP 77 W. Wacker Drive, Suite 3100 Chicago, Illinois 60601 (312) 456-8400 Attorneys for Defendants

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