United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: ECF NO.
TIGAR United States District Judge.
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.
Facts and Procedural History
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,  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.
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.
Robertson purports to bring this case on behalf of herself
and eight other named plaintiffs. ECF No. 1 at 1,
10-11. 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.
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).
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.
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.
Legal Standards for Motions to Dismiss Under Rule 12(b)(1)
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. ...