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United States District Court Southern District of New York Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK YULIA TYMOSHENKO and JOHN DOES 1 through 50, on behalf of themselves and all of those similarly situated, Plaintiffs, 11 Civ. 2794 (KMW) -against- DMYTRO FIRTASH a/k/a DMITRY FIRTASH, SEMYON MOGILEVICH, ROSUKRENERGO AG, GROUP DF, GROUP DF LIMITED, GROUP DF FINANCE LIMITED, GROUP DF REAL ESTATE, NADRA BANK, CENTRAGAS HOLDING AG, CMZ VENTURES, LLC, KALLISTA INVESTMENTS LLC a/k/a CALISTER INVESTMENTS LLC, THE DYNAMIC GROUP a/k/a THE DYNAMIC FUND, BARBARA ANN HOLDINGS LLC, VULCAN PROPERTIES, INC., BRAD S. ZACKSON, PAUL J. MANAFORT, YURIY BOYKO, VALERIY KHOROSHKOVSKY, VIKTOR PSHONKA, RENAT KUZMIN, OLEKSANDR NECHVOGLOD and LILIA FROLOVA and JOHN DOES 1 through 100., Defendants. SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT NADRA BANK'S MOTION TO DISMISS THE AMENDED COMPLAINT Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 2 of 12 TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT ..................................................................................................1 II. ARGUMENT ..............................................................................................................................2 A. TYMOSHENKO’S ATS CLAIM SHOULD BE DISMISSED WITH PREJUDICE BECAUSE THE PRESUMPTION AGAINST EXTRATERRITORIALITY BARS HER CLAIM .................................................2 1. Tymoshenko’s ATS Claim Does Not Touch And Concern The Territory Of The United States ....................................................................3 2. The Allegations Against Nadra Bank Do Not Touch or Concern The Territory of The United States ..............................................................3 3. Whatever Connection To United States Territory Plaintiff May Have Alleged, If Any, It Is Not Of Sufficient Force To Displace The Presumption Against Extraterritorial Application Of The ATS ...........5 III. TYMOSHENKO’S ATS CLAIM SHOULD BE DISMISSED WITH PREJUDICE AND NO LEAVE TO REPLEAD SHOULD BE GIVEN ..................................................7 IV. CONCLUSION..........................................................................................................................9 i Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 3 of 12 TABLE OF AUTHORITIES Page FEDERAL CASES Cedeño v. Castillo, 457 F. App’x 35, 2012 WL 205960 (2d Cir. Jan. 25, 2012) ............................................... 7 Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000).................................................................................................. 8 Haugh v. Schroder Inv. Mgmt. N. Am. Inc., No. 02 Civ. 7955(DLC), 2003 WL 21146667 (S.D.N.Y. May 14, 2003) .......................... 8 In re Rhodia S.A. Secs. Litig., 531 F. Supp. 2d 527 (S.D.N.Y. 2007)................................................................................. 8 In re WorldCom, Inc. Secs. Litig., 303 F. Supp. 2d 385 (S.D.N.Y. 2004)................................................................................. 7 Kiobel v. Royal Dutch Petroleum Co., 2013 WL 1628935 (U.S. Apr. 17, 2013) ................................................................... passim Morrison v. Nat’l Australia Bank Ltd., 130 S.Ct. 2869 (2010) ................................................................................................. 2, 4, 5 Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 615 F.3d 97 (2d Cir. 2010).................................................................................................. 8 Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29 (2d Cir. 2010).................................................................................................. 5 Republic of Iraq v. ABB AG, No. 08 Civ. 5951(SHS), 2013 WL 441959 (S.D.N.Y. Feb. 6, 2013) ................................. 6 Sudler v. City of N.Y., 689 F.3d 159 (2d Cir. 2012)................................................................................................ 8 Tylicki v. Schwartz, 401 F. App’x 603, 2010 WL 4813567 (2d Cir. Nov. 24, 2010) ......................................... 7 Tymoshenko v. Firtash, No. 11–CV–2794 (KMW), 2013 WL 1234821 (S.D.N.Y. Mar. 26, 2013) ............... passim Tymoshenko v. Firtash, No. 11–CV–2794 (KMW), 2013 WL 1234943 (S.D.N.Y. Mar. 27, 2013) ................ 1, 3, 7 Xiang Li v. Morrisville State College, 434 F. App’x 34, 2011 WL 4600589 (2d Cir. Oct. 6, 2011) .............................................. 7 ii Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 4 of 12 I. PRELIMINARY STATEMENT On April 17, 2013, the United States Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., 2013 WL 1628935 (U.S. Apr. 17, 2013), and addressed the question “whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute [“ATS”], for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Id. at *3. Or, in short, “whether a claim may reach conduct occurring in the territory of a foreign sovereign.” Id. at *4. The Court held that “the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption” so that “petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.” Id. at *10. On April 22, 2013, this Court directed Nadra Bank and Plaintiffs (“Plaintiffs” or “Tymoshenko”) to address “the effect, if any, of the Kiobel decision on the issues presented in the motion to dismiss.” Order, Apr. 22, 2013 [Dkt. No. 81]. As further explained below, the Supreme Court’s Kiobel decision means that Tymoshenko’s ATS claim is barred because, as this Court has found, “all of the conduct underlying Plaintiffs’ claims occurred abroad” and the alleged human rights abuses “took place entirely in the Ukraine.”1 Tymoshenko v. Firtash, No. 11–CV–2794 (KMW), 2013 WL 1234943, at *6 (S.D.N.Y. Mar. 27, 2013). 1 The Amended Complaint also names fifty “Doe” Plaintiffs who are alleged to be “former Ukrainian administration officials that served during Tymoshenko’s terms as Prime Minister.” (AC ¶26). Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 5 of 12 II. ARGUMENT A. TYMOSHENKO’S ATS CLAIM SHOULD BE DISMISSED WITH PREJUDICE BECAUSE THE PRESUMPTION AGAINST EXTRATERRITORIALITY BARS HER CLAIM The allegations in the Amended Complaint (“AC”) in support of the Plaintiffs’ ATS claim concern “alleged perpetrators [who] committed no wrongdoing in the United States” and “injuries [Plaintiffs] sustained in Ukraine (politically-motivated trial and imprisonment).” Tymoshenko v. Firtash, No. 11–CV–2794 (KMW), 2013 WL 1234821, at *13 (S.D.N.Y. Mar. 26, 2013). It is the precise sort of claim that the Supreme Court held in Kiobel is barred under the ATS. The presumption against extraterritorial application provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Kiobel, 2013 WL 1628935, at *4 (quoting Morrison v. Nat’l Australia Bank Ltd., 130 S.Ct. 2869, 2878 (2010)). As the Court in Kiobel pointed out “to rebut the presumption, the ATS would need to evince a ‘clear indication of extraterritoriality’.” Id at *6 (quoting Morrison at 2883). The Supreme Court concluded “[i]t does not” because “nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.” Id. Moreover, the Court found that “[n]or does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign,” Id. at *7, and “therefore conclude[d] that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Id. at *10. Plaintiffs’ ATS claim seeks redress for “injuries [they] sustained in Ukraine (politically- motivated trial and imprisonment),” Tymoshenko, 2013 WL 1234821, at *13, and concerns “matters that are wholly located in Ukraine” surrounding a political “dispute that took place entirely in the Ukraine” while “all of the conduct underlying Plaintiffs’ claims occurred abroad.” 2 Case 1:11-cv-02794-KMW Document 83 Filed 04/29/13 Page 6 of 12 Tymoshenko, 2013 WL 1234943, at *6-7. As a result, Plaintiffs’ ATS claim should be dismissed under Kiobel. 1. Tymoshenko’s ATS Claim Does Not Touch And Concern The Territory Of The United States In its decision in Kiobel, the Supreme Court made clear that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Kiobel, at *10. Plaintiffs, the former Ukrainian Prime Minister and other “political opposition members” named as “Does” (AC ¶1), claim that their “arbitrary arrests and prolonged detentions” perpetrated by Ukrainian government officials violate the ATS. (AC ¶262). It was thus “the Ukrainian officials who perpetrated the offenses” in Ukraine that are the focus of Plaintiffs’ claim. Tymoshenko, 2013 WL 1234821, at *10. Accordingly, Plaintiffs’ human rights were allegedly violated in Ukraine and not in the “territory of the United States.” Nor do Plaintiffs’ arrest or detentions “touch and concern” United States territory, for “all of the conduct underlying Plaintiffs’ claims occurred abroad” and was allegedly perpetrated upon other Ukrainians. (AC ¶¶1, 17-22). Tymoshenko, 2013 WL 1234943, at *6. 2. The Allegations Against
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