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Robertson v. The Republic of Nicaragua

United States District Court, N.D. California

June 26, 2017

JOSEPHENIE ROBERTSON, et al., Plaintiffs,
v.
THE REPUBLIC OF NICARAGUA, et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS RE: ECF NO. 18

          JON S. TIGAR United States District Judge.

         Before the Court is Defendants' Motion to Dismiss. ECF No. 18. Plaintiff opposes the motion. ECF No. 20. As explained below, the Court concludes that (1) Plaintiff Robertson cannot maintain this action as a class action without a lawyer; (2) her lawsuit involves a political question that is not justiciable in this federal district court; and (3) she has not alleged the particularized injury that is necessary to confer standing. Accordingly, the Court will grant the motion with leave to amend.

         I. BACKGROUND

         A. Facts and Procedural History[1]

         This case stems from an internal conflict that has taken place for the past two centuries within the borders of the present-day Republic of Nicaragua involving the Miskitu, [2] a Native American ethnic group. The Miskitu people are comprised of 12 tribes that reside “in what was formerly known as the Miskitu Kingdom” and is presently considered the North Caribbean Coast Autonomous Region (“RACCN”) and the South Caribbean Coast Autonomous Region (RACCS). ECF No. 1 ¶ 1. Plaintiff Rev. Josephenie E. Robertson alleges that the Nicaraguan government has committed numerous human rights abuses against the Miskitu people over the last 200 years, including the unlawful seizure of Miskitu territory without just compensation. Id. ¶ 1-30. Robertson also alleges that the Nicaraguan government has engaged in torture and genocide in violation of international law, id. ¶ 27, and “exterminated the Miskitu people and their inherent right to their natural resources, lands, waters, forests, farms, and livestock” by selling their land to other foreign nations, id. ¶ 28.

         On February 21, 2017, Plaintiff Robertson filed a putative class action on behalf of herself, eight other named plaintiffs, and “all Miskitu peoples, ” against the Republic of Nicaragua, President Daniel Ortega, Vice President Rosario Murillo, and the Sandinista Party (collectively, “Defendants”). Id. at 1, 10-11. Plaintiff Robertson alleges multiple violations of international and federal law, and brings claims for conversion, unjust enrichment, and accounting. Id. at 21-23. Plaintiff concurrently filed a motion to appoint counsel. ECF No. 2. On April 14, 2017, Defendants filed the present motion to dismiss the Complaint. ECF No. 18. On May 25, 2017, this Court denied Plaintiff's request for appointment of counsel, ECF No. 45, and issued an Order to Show Cause as to why the Court should not dismiss all claims except Plaintiff Robertson's individual claim brought on her own behalf, ECF No. 46. In response, Plaintiff explains that she has “vigorously sought representation . . . to no avail . . .” ECF No. 52 at 2. The Court first considers the validity of Plaintiff's class claims before turning to Defendants' motion to dismiss.

         II.CLASS ACTION CLAIMS

         Plaintiff Robertson purports to bring this case on behalf of herself and eight other named plaintiffs. ECF No. 1 at 1, 10-11.[3] The complaint states that Plaintiffs bring “this Class Action Complaint against Defendants the Republic of Nicaragua, Daniel Ortega, and the Sandinista Party . . . on behalf of all the Miskitu peoples.” ECF No. 1 at 2. Plaintiff Robertson is not represented by an attorney, however, and is not an attorney herself. Id. at 25.

         “Pro se plaintiffs are not adequate class representatives able to fairly represent and adequately protect the interests of [a] class.” Blake v. Cty. of Santa Clara, No. 16-CV-01279-HSG, 2016 WL 4073339, at *3 (N.D. Cal. Aug. 1, 2016) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008)). “[A] litigant appearing in propria persona has no authority to represent anyone other than [herself].” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962).

         Plaintiff may not maintain a purported class action, or bring claims on behalf of the other eight named, unrepresented plaintiffs. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.2008) (“[C]ourts have routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity.”). Thus, the Court dismisses all claims with respect to the putative class except Plaintiff Robertson's individual claim brought on her own behalf.

         III.MOTION TO DISMISS

         Defendants move to dismiss Plaintiff's complaint on the following grounds: (1) the Court lacks jurisdiction over Nicaragua under the Foreign Sovereign Immunities Act (“FSIA”); (2) the Alien Tort Statute (“ATS”) does not provide jurisdiction and the complaint fails to state a claim for the violation of the ATS; (3) the Torture Victims Protection Act does not provide jurisdiction or a cause of action; (4) the Complaint fails to state a claim for violation of the Genocide Convention or the UN Declaration on the Rights of Indigenous Peoples; (5) Plaintiff presents nonjusticiable issues; (6) Plaintiff lacks standing; (7) Plaintiff failed to serve Nicaragua as required by the FSIA; (8) the FSIA bars Plaintiff's punitive damages prayer and jury demand; (9) improper venue; (10) Plaintiff failed to allege any basis upon which the Court may exercise personal jurisdiction over Defendants Ortega, Murillo or the Sandinista Party; (11) the Court lacks personal jurisdiction over Defendant President Ortega under Head of State Immunity; (12) Defendants President Ortega and Vice President Murillo are immune because they have been sued in their official capacity and are not the real party in interest; (13) Plaintiff's process as to the Sandinista Party is insufficient and Plaintiff failed to serve President Ortega, Vice President Murillo, and the Sandinista Party as required by Rule 4(f). ECF No. 18 at 13-33.

         A. Legal Standards for Motions to Dismiss Under Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “[W]hen a motion to dismiss attacks 'the substance of the complaint's jurisdictional allegations, ' we treat it as brought under Rule 12(b)(1) . . .” Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007) (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989)). Additionally, if a plaintiff lacks Article III standing to bring a suit, the federal court lacks subject matter jurisdiction and the suit must be dismissed under Rule 12(b)(1). Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. ...


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