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The Blackwater Killings - Consolidated Civil Pretrial Proceedings

Case File: Civil Lawsuits I, II, III, VI, VII, VIII & IX

 

 

In Re: Blackwater Alien Tort Claims Act Litigation

U.S. District Court for the Eastern District of Virginia

Case No.: 1:09-cv-615, 1:09-cv-616, 1:09-cv-617, 1:09-cv-618, 1:09-cv-645, 1:09-cv-1017, 1:09-cv-1048

Consolidated on July 17th & October 22nd, 2009

 

January 6th, 2010 - Order

January 6th, 2010 - Plaintiffs’ Notice of Withdrawal of Rule 60(b) Motions for Relief

December 9th, 2009 - Order

November 19th, 2009 - Order

November 19th, 2009 - Defendants’ Opposition to Plaintiffs’ Rule 60(b) Motion for Relief

November 18th, 2009 - Plaintiffs’ Motion for Relief under F.R.C.P. 60(b)

November 12th, 2009 - Order

November 9th, 2009 - Defs’ Response to Plaintiffs’ Withdrawal of Dismissal with Prejudice

November 8th, 2009 - Plaintiffs’ Withdrawal of Stipulation of Dismissal with Prejudice

November 7th, 2009 - Third (Fourth) Amended Complaint

November 6th, 2009 - Stipulation of Dismissal with Prejudice

November 3rd, 2009 - Order

October 28th, 2009 - Second Amended Complaint

October 21st, 2009 - Order & Memorandum Opinion

October 16th, 2009 - Order

October 9th, 2009 - Suppl. Memorandum Conc. Presb. Church of Sudan v. Talisman Energy

October 8th, 2009 - Plaintiffs’ Opposition to Defendants’ Motion to Substitute

September 4th, 2009 - Plaintiff’s Supplemental Memorandum and Iraqi Legal Opinions

September 4th, 2009 - Consolidated Post-Hearing Brief in Response to the Court’s Order

August 28th, 2009 - Order

August 27th, 2009 - Motion for Approval of Settlement Terms

August 27th, 2009 - Plaintiffs’ Motion to Join Additional Party

August 27th, 2009 - Sur-Reply to Supplemental Expert Report of Defendants’ Reply

August 19th, 2009 - Order

August 17th, 2009 - Defendants’ Reply Memorandum in Support of their Motions to Dismiss

August 12th, 2009 - Memorandum of Law in Support of Def.s’ Motion to Substitute the U.S.

August 7th, 2009 - Order

August 5th, 2009 - Def.s’ Reply Memorandum in Support to Enjoin Extrajudicial Statements

August 4th, 2009 - Statement of Interest

August 3rd, 2009 - Plaintiffs’ Opposition to Motion to Dismiss

July 29th, 2009 - Declaration of John Doe No. 2

July 27th, 2009 - Declaration of John Doe No. 1

July 27th, 2009 - Protective Order

July 24th, 2009 - Def.s’ Motion to Seal Appendix to the Consolidated Memorandum of Law

July 24th, 2009 - Consolidated Memorandum of Law in Support of Def.s’ Motions to Dismiss

July 22nd, 2009 - Def.s’ Motion to Enjoin Parties from Making Extrajudicial Statements

July 21st, 2009 - Order

July 17th, 2009 - Order

 

January 6th, 2010 - Order

 

“[…] On January 6, 2010, plaintiffs by counsel, withdrew their previously filed motions seeking relief from judgment pursuant to Rule 60(b), Fed. R. Civ. P. In an accompanying affidavit, plaintiffs’ counsel states that all plaintiffs have knowingly and voluntarily agreed to the terms of the settlement agreement reached between the parties. Accordingly, the parties’ stipulation of dismissal pursuant to Rule 41(a)(l), Fed. R. Civ. P., filed November 6, 2009, remains effective.

 

“Accordingly, and for good cause, it is hereby ordered that plaintiffs’ motions for relief from judgment pursuant to Rule 60(b), Fed. R. Civ. P., are withdrawn.

 

“It is further ordered that these cases are dismissed with prejudice.

 

“The clerk is directed to send a copy of this Order to all counsel of record and to place these matters among the ended causes. […]”

 

January 6th, 2010 - Plaintiffs’ Notice of Withdrawal of Rule 60(b) Motions for Relief

 

“[…] 1. On November 4, 2009, the undersigned counsel, on behalf of plaintiffs, executed written settlement agreement with the defendants. Prior to doing so, the undersigned, with the assistance of interpreters, solicited the consent of all plaintiffs and certain other claimants. At the time the undersigned executed the settlement agreement, the undersigned believed that all plaintiffs had provided verbal and/or written assent to the agreement.

 

“2. Having executed the settlement agreement, the undersigned, on November 5, 2009, filed a stipulation of dismissal with prejudice in each of the above-captioned actions.

 

“3. Thereafter, plaintiffs’ counsel learned that two plaintiffs objected to the settlement agreement. Accordingly, on November 8, 2009, the undersigned filed a Withdrawal of Stipulation of Dismissal with Prejudice in each of the above-captioned cases.

 

“4. On November 30, 2009, the undersigned traveled to Istanbul and met personally with the two plaintiffs who had claimed they had not agreed to the settlement agreement. During these meetings, I was accompanied by Usama Fahum, an interpreter whom I confirmed is fluent in Arabic. With the assistance of Mr. Fahum, I fully explained the terms of the settlement agreement to these two plaintiffs. Thereafter, each plaintiff informed me that he fully understood the terms of the settlement, and that he desired to enter into the agreement. Each plaintiff then executed the agreement in my presence.

 

“5. All plaintiffs and claimants have now consented to and signed the settlement agreement with the defendants in my presence or in the presence of my representative.

 

“6. I have personally ascertained and am confident that all plaintiffs and claimants fully understand the terms of the settlement agreement and made a knowing and informed decision to enter into the agreement.

 

“7. The undersigned counsel has been duly authorized by all plaintiffs to withdraw the previously filed motions for relief from judgment pursuant to Rule 60(b) in each of the above-captioned cases.

 

“8. In light of the foregoing, the pending Rule 60(b) motions should be denied as moot, and each of the above-captioned cases should stand dismissed with prejudice. […]”

 

December 9th, 2009 - Order

 

“[…] This matter having come before the Court on the parties’ Joint Motion For Enlargement Of Deadlines On Plaintiffs’ Rule 60(b) Motions For Relief From Final Judgment, and good cause being shown therefore, it is hereby:

 

“Ordered that the motion is granted; and it is further ordered that defendants shall complete all discovery in connection with plaintiffs’ Rule 60(b) motions by January 18, 2010; and it is further ordered that plaintiffs shall file their supplemental submissions in support of the Rule 60(b) motions by 5:00 p.m. on January 25, 2010; and it is further ordered that defendants shall file their supplemental submissions in opposition to the Rule 60(b) motions by 5:00 p.m. on February 1, 2010; and it is further ordered that an evidentiary hearing on plaintiffs’ Rule 60(b) motions is scheduled for 11:00 am, Thursday, Feb. 4, 2010. […]”

 

November 19th, 2009 - Order

 

“[…] The matter came before the Court on plaintiffs’ motion for relief from a stipulation of dismissal pursuant to Rule 60(b), Fed. R. Civ. P. Plaintiffs argue that their counsel was under the mistaken belief that plaintiffs had authorized settlement of these cases at the time the stipulation of dismissal was filed. Because plaintiffs now allege that their counsel lacked any such authorization, they contend that relief under Rule 60(b) is appropriate. During the course of the hearing held on November 19, 2009, it became clear that there may be factual disputes as to whether plaintiffs’ counsel had actual or apparent authority to settle these cases.

 

“Accordingly, limited discovery and an evidentiary hearing are appropriate to resolve this dispute. […]

 

“Accordingly, and for good cause, It is hereby ordered that defendants may conduct discovery limited to (i) plaintiffs’ counsel’s authority to settle these cases and (ii) the settlement process as pertains to these cases. This discovery must be completed by 5:00 p.m., Tuesday, December 29, 2009.

 

“It is further ordered that plaintiffs are directed to file a memorandum setting forth their factual and legal contentions, a witness list, and a forecast of witness testimony by 5:00 p.m., Tuesday, January 5, 2010.

 

“It is further ordered that defendants are directed to file a response to plaintiffs’ pleading setting forth their factual and legal contentions, a witness list, and a forecast of witness testimony by 5:00 p.m., Tuesday, January 12, 2010.

 

“It is further ordered that an evidentiary hearing on plaintiffs' motion for relief from a stipulation of dismissal is scheduled for 10:00 a.m., Thursday, January 14, 2010. […]”

 

November 19th, 2009 - Defendants’ Opposition to Plaintiffs’ Rule 60(b) Motion for Relief

 

“[…] Plaintiffs’ motion for relief from judgment under Rule 60(b) is premised solely on a declaration by their counsel stating that she learned, after executing a settlement agreement and filing stipulations of dismissal with prejudice on Plaintiffs’ behalf, that in fact Plaintiffs were not fully informed about the settlement terms. Plaintiffs’ submission does not state a cognizable Rule 60(b) claim, and the Court should therefore deny Plaintiffs’ motion without an evidentiary hearing, for two independent reasons.

 

“First, counsel’s declaration carefully does not state that Plaintiffs had not previously authorized her to enter into a settlement on these terms; it addresses only a process she used after the fact to obtain their formal assent. The declaration accordingly does not negate - and by its omissions in fact support - the possibility of ‘buyer’s remorse.’

 

“Second, even if counsel’s affidavit were sufficient to cast doubt on her actual authority to enter into the settlement agreement, it does not refute her apparent authority to do so, which suffices to bind Plaintiffs to the settlement even if actual authority was lacking.

 

“If, however, the Court determines that it cannot find apparent authority on the basis of the existing record or that it must reach the question of actual authority, the Court must then allow discovery and an evidentiary hearing before deciding whether the requested relief is warranted. […]”

 

November 18th, 2009 - Plaintiffs’ Motion for Relief under F.R.C.P. 60(b)

 

“[…] Plaintiffs respectfully request that the Court grant them relief under F.R.C.P. 60(b). As explained in the accompanying Memorandum of Law and Declaration of Susan L. Burke, plaintiffs counsel filed a stipulation of dismissal under the mistaken belief that each of her clients had knowingly consented to settlement and dismissal of the litigations. Such a mistake suffices as a basis to set aside the stipulated dismissal under F.R.C.P. 60(b). […]”

 

November 12th, 2009 - Order

 

“[…] The matter is before the Court on plaintiffs’ disputed ‘withdrawal’ of a stipulation dismissing these seven cases. Plaintiffs seek to withdraw a stipulation of dismissal pursuant to Rule 41(a)(l)(A), Fed. R. Civ. P., filed on November 6, 2009. Because dismissal stipulations filed pursuant to Rule 41(a)(l)(A) are effective ‘without a court order,’ id, plaintiffs' only avenue for relief from the dismissal stipulation is by filing a motion pursuant to Rule 60(b), Fed. R. Civ. P.

 

“During the course of the hearing held on November 12, 2009, plaintiffs’ counsel represented that she intends to meet with plaintiffs in Iraq this weekend to determine whether it is appropriate to file a Rule 60(b) motion.

 

“Accordingly, and for good cause, It is hereby ordered that a hearing in this matter is scheduled for 3:30 p.m., Thursday, November 19, 2009. […]”

 

November 9th, 2009 - Defs’ Response to Plaintiffs’ Withdrawal of Dismissal with Prejudice

 

“[…] On November 5, 2009, Plaintiffs, through both of their counsel, and Defendants concluded an agreement to settle these cases. The next day, November 6, 2009, Plaintiffs’ counsel filed a Stipulation of Dismissal with Prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1).

 

“The filing of that Stipulation of Dismissal with Prejudice immediately terminated these lawsuits; further action by the Court was not required. Plaintiffs cannot revive terminated actions through a purported ‘withdrawal’ of the Stipulation of Dismissal. The only way that Plaintiffs may attempt to reopen these terminated cases - if that is what one or more Plaintiffs wish to do - is to seek relief pursuant to Federal Rule of Civil Procedure 60. The Court accordingly should issue an order denying Plaintiffs’ attempted unilateral withdrawal of the Stipulation of Dismissal.

 

“Plaintiffs’ purported filing of the amended complaints is ineffective because the actions were terminated by the filing of the Stipulation of Dismissal, as well as for the additional reason that Plaintiffs had neither Defendants’ consent nor the Court’s permission to file amended complaints on Sunday, November 8. The amended complaints accordingly should be stricken from the record of these actions. […]”

 

November 8th, 2009 - Plaintiffs’ Withdrawal of Stipulation of Dismissal with Prejudice

 

“[…] On Friday, November 6, 2009, Plaintiffs’ counsel filed a stipulation seeking to dismiss with prejudice all the matters pending before this Court. Plaintiffs’ counsel executed the stipulation electronically based on the belief that the Plaintiffs, all Arabic-speaking Iraqis living in Iraq, had each made a knowing and informed decision to dismiss the litigations in exchange for certain considerations from Defendants. Subsequent to the filing of the stipulation, Plaintiffs’ counsel learned of facts that suggest a miscommunication based on language may have occurred.

 

“At this juncture, although Plaintiffs continue to seek a consensual resolution to their disputes with Defendants, and are seeking to ascertain the facts, Plaintiffs’ counsel cannot be certain that Plaintiffs have knowingly consented to dismissal. Therefore, Plaintiffs’ stipulation to a dismissal with prejudice is hereby withdrawn. […]”

 

November 7th, 2009 - Third (Fourth) Amended Complaint

 

“[…] 1. This Fourth Amended Complaint is being filed pursuant to the Court’s Orders dated October 21 and November 3, 2009. This action seeks compensatory damages to compensate the injured and the families of those killed or seriously injured by Defendants. This action seeks punitive damages in an amount sufficient to punish Defendants for their egregious misconduct. […]”

 

November 6th, 2009 - Stipulation of Dismissal with Prejudice

 

“[…] This matter comes before the Court on the application of the parties in the above-captioned actions for entry of an order of dismissal with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1), the parties having advised the Court that they have reached a settlement. It is therefore ordered, adjudged and decreed that:

 

“A. All of the claims, actions and causes of action which any plaintiff in any of the above-captioned actions has, had, or may have, against any defendant in any of the above-captioned actions, arising out of or relating in any way to any of the alleged matters, transactions, representations, actions or omissions to act that were asserted or could have been asserted by any plaintiff against any defendant in this consolidated litigation are dismissed with prejudice; and

 

“B. The parties shall bear all of their own costs and attorneys’ fees incurred in this action. […]”

 

November 3rd, 2009 - Order

 

“[…] It is hereby ordered that the amended complaints filed on 10/28/09, in Nos. 1:09cv615, 1:09cv616, 1:09cv617, 1:09cv618, 1:09cv1017, and 1:09cv1048 are dismissed without prejudice. Plaintiffs are directed to re-file their amended complaints in these cases, consistently with Rule 11, FRCP, the 10/21 and 10/22/09 Orders, and this Order, by 5:00 p.m., Friday, 11/06/09.

 

“It is further ordered that defendants’ deadline to file any motion to dismiss the amended complaints is continued to 5:00 p.m., Friday, 11/13/09.

 

“It is further ordered that defendants are directed to advise the Court whether they intend to file motions to substitute the United States in place of all defendants pursuant to the Westfall Act in Nos. 1:09cv1017 and 1:09cv1048 by 5:00 p.m., Friday, 11/06/09. […]”

 

October 28th, 2009 - Second Amended Complaint

 

“[…] 51. This conspiracy to kill Iraqis was motivated by greed and religious beliefs. Gary Jackson and Bill Mathews repeatedly referred to ‘laying Hajiis out on cardboard’ and used racist and derogatory terms for Iraqis and other Arabs, such as ‘ragheads’ or ‘hajiis.’ Defendant Prince, in addition to being fully aware of these statements by his co-conspirators, openly referred to the conspiratorial efforts as a ‘Crusade,’ and directly encouraged certain employees to participate in killing Iraqis.

 

“52. The ‘Crusade’ mentality was overt within Blackwater, with the teams being assigned names with religious significance such as ‘Templar 21.’ A substantial number of Blackwater personnel self-selected ‘call signs’ associated with the Crusades. […]

 

“[…] 133. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein.

 

“134. Plaintiffs are all citizens of Iraq. Defendants are all citizens of the United States.

 

“135. As set forth in detail above, Defendant Prince intended that his employees kill and inflicted serious bodily harm on innocent Iraqi civilians, such as and including Plaintiffs.

 

“136. Defendant Prince conspired with others to cause the intentional killings and infliction of serious bodily harm.

 

“137. As set forth in detail above, the harms inflicted by Defendants occurred during an armed conflict in Iraq.

 

“138. As set forth in detail above, the harms inflicted by Defendants occurred in the context of and in association with the armed conflict in Iraq. […]”

 

October 21st, 2009 - Order & Memorandum Opinion

 

“[…] The matter is before the Court on defendants’ motion to dismiss. For the reasons stated in the accompanying Memorandum Opinion of even date, it is hereby ordered that defendants’ motion to dismiss is granted in part, denied in part, and deferred in part.

 

“Accordingly, Count 1 of the complaint in this case to dismissed with leave to amend to remedy, if appropriate pursuant to Rule 11, Fed. R. Civ. P., the factual allegations as required to state a cognizable claim under 28 U.S.C. § 1350. Moreover, Counts 2, 3,4, 5,6, and 7 are dismissed with leave to amend to remedy, if appropriate pursuant to Rule 11, Fed. R. Civ. P., the allegations (i) of diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332 and (ii) of supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

 

“It is further ordered that plaintiffs are directed to file any amended complaint conforming to this Order and the accompanying Memorandum Opinion by 5:00 p.m., Wednesday, October 28, 2009.

 

“It is further ordered that defendants are directed to file any motion to dismiss the amended complaint pursuant to Rule 12, Fed. R. Civ. P., by 5:00 p.m., Friday, November 6, 2009.

 

“It is further ordered that a ruling on defendants’ motion to dismiss Counts 2, 3, 4, 5, 6, and 7 on grounds of the applicable nonfederal law is deferred until the time at which a further Order issues. […]

 

“[…] In sum, plaintiffs have failed to state valid federal claims in these cases. Moreover, they have not properly pleaded the facts necessary for diversity jurisdiction to exist over the nonfederal claims, nor does supplemental jurisdiction exist as to the nonfederal claims in cases only alleging invalid ATS claims. Yet, the claims do not raise nonjusticiable political questions, nor should they be dismissed on grounds of forum non conveniens. Accordingly, plaintiffs may amend their complaints to re-plead claims to cure their present defects to the extent that such amendment would not be futile.

 

“Appropriate Orders will issue. […]”

 

October 16th, 2009 - Order

 

“[…] The matter came before the Court on plaintiffs’ motions to lift the stay of discovery and to stop defendants from improperly threatening legal actions against former employees. A hearing was held on plaintiff’s motions on Friday, October 16, 2009.

 

“For reasons stated from the bench, and for good cause, it is hereby ordered that plaintiffs’ motions to lift the stay of discovery and to stop defendants from improperly threatening legal actions against former employees are denied. […]”

 

October 9th, 2009 - Suppl. Memorandum Conc. Presb. Church of Sudan v. Talisman Energy

 

“[…] Defendants respectfully submit this memorandum concerning Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016cv (2d Cir. Oct. 2, 2009), in response to the Court’s order. Presbyterian Church provides strong additional support for dismissal of Plaintiffs’ Alien Tort Statute (ATS) claims. […]

 

“[…] International law does not recognize corporate liability. […] Plaintiffs have not pointed to a single international law authority to the contrary. The Presbyterian Church court, while having no occasion to address the issue, confirmed that it is an open question in the Second Circuit whether the ATS permits the imposition of any liability upon corporations. […]

 

“Even if corporations could be liable under the ATS, Presbyterian Church requires Plaintiffs to show a sufficiently-certain international law norm defining the circumstances in which a corporation may be subjected to vicarious liability. Plaintiffs have not even attempted to satisfy that standard. […]”

 

October 8th, 2009 - Plaintiffs’ Opposition to Defendants’ Motion to Substitute

 

“[…] To decide Defendants’ motion, the Court is required to make findings of fact on two issues: (1) whether Defendants qualify as government employees, and if so, (2) whether Defendants’ conduct giving rise to the litigation fell within the scope of their employment as government employees. […]

 

“[…] At present, the Court lacks the factual record needed to make a reasoned decision on Defendants’ dispositive Westfall motion. Although Defendants carry the burden of proving the facts alleged with a preponderance of the evidence, they failed to submit any declarations or other admissible evidence to support their motion. Instead, they simply allege a litany of ‘facts’ in their Memorandum, presumably expecting this Court to accept all of their characterizations of the facts as wholly accurate and uncontested. Yet, as set forth below in the Statement of Disputed Facts, Plaintiffs dispute Defendants’ recitation of the ‘facts.’ The evidence obtained by Plaintiffs (without the benefit of any discovery) wholly contradicts Defendants’ alleged ‘facts.’

 

“This evidence will be submitted to the Court via witness testimony during the scheduled October 30, 2009 hearing. These witnesses will establish that Defendants did not operate under the control and direction of the State Department at all times. Had they done so, the killings and woundings at issue here might have been avoided. Instead, Defendants lied to the State Department about the qualifications of its men, and ignored State Department directives on the permissible use of force. The evidence will show that Defendants refused to stand down when expressly ordered to do so by the State Department, and instead rolled into the highly-populated Nissor Square and began firing and killing innocent civilians who were trying to flee. Such conduct precludes this Court from finding that Defendants were employees controlled by the State Department. […]”

 

September 4th, 2009 - Plaintiff’s Supplemental Memorandum and Iraqi Legal Opinions

 

“[…] During the August 28, 2009, hearing, the Court asked the parties for supplemental briefing on whether the Iraqi courts exist as an alternative forum. Plaintiffs hereby submit the Declaration of Dr. Sabah Al Bawiis. Dr. Sabah Al Bawiis serves as the head of the legal and constitutional studies department, which is a governmental unit formed from the Iraqi council of ministers, the Iraqi parliament, and the Iraqi ministry of interior. Dr. Sabah Al Bawiis serves as a member of the team responsible for reviewing and amending Iraqi law governing the foreign security firms operating in Iraq.

 

“Dr. Sabah Al Bawiis explains in his opinion […] that the Iraqi courts are not able to exercise jurisdiction over American contractors. The Iraqi courts interpret the Coalition Authority Order No. 17 as remaining in force and effect for private foreign security companies operating in Iraq. Dr. Sabah Al Bawiis explains that only the United States has the power to waive the immunity in its role as the ‘sending party.’

 

“Dr. Sabah Al Bawii’s department has drafted legislation that is intended to remedy the Iraqi courts lack of jurisdiction over foreign security firms. That draft legislation is attached as Exhibit B. This draft legislation has not yet been submitted to the Iraqi parliament. Thus, at present, as explained by Dr. Sabah Al Bawiis, Iraqi courts remain closed to lawsuits such as the instant one. In sum, Plaintiffs respectfully submit that Iraq does not exist as an alternative forum, which prevents dismissal based on the forum non conveniens doctrine. […]”

 

September 4th, 2009 - Consolidated Post-Hearing Brief in Response to the Court’s Order

 

“[…] Defendants submit this brief and the attached supplemental expert report in response to the Court’s August 28 Order. The supplemental expert report discusses the Iraqi courts’ possible construction of CPA Order No. 17 and the brief provides relevant legal context regarding the interpretation of the Order and the consequences of the uncertainty about the Iraqi courts’ construction of the Order. […]

 

“[…] In view of the absence of a clear answer regarding Plaintiffs’ ability to bring their claims in Iraqi courts, this Court should dismiss the ATS claims on the additional ground that the doctrine of exhaustion of local remedies requires Plaintiffs to attempt to pursue those claims in an Iraqi court before seeking relief in this Court. […]

 

“[…] The Court could dismiss the Complaints in their entirety on the ground that principles of forum non conveniens and international comity require Plaintiffs to attempt to pursue their claims in an Iraqi court.

 

“[…] For the foregoing reasons, the Court should dismiss the ATS claims so that Plaintiffs may exhaust any Iraqi remedies. The Court may wish to consider dismissing the complaints in their entirety and directing Plaintiffs to attempt first to pursue all of their claims in the Iraqi courts. […]”

 

August 28th, 2009 - Order

 

“[…] These five cases, consolidated for purposes of pretrial motions and discovery, came before the Court on defendants’ motions to dismiss.

 

“For the reasons stated from the Bench, it is hereby ordered that a ruling on defendants’ motion is deferred pending supplemental briefing.

 

“It is further ordered that the parties are directed to file simultaneous supplemental memoranda in accordance with the instructions from the Bench by 5:00 p.m., Friday, September 4, 2009.

 

“Unless otherwise ordered, the Court will thereafter decide the motion on the papers without further oral argument. […]”

 

August 27th, 2009 - Motion for Approval of Settlement Terms

 

“[…] J. Walker Richmond III, Administrator of the Estate of Raheem Khalaf Sa’adoon, represents that:

 

“1. On or about December 24, 2006, Raheem Khalaf Sa’adoon died from injuries as a result of an incident allegedly involving Andrew Moonen. Century-National Insurance Company provided homeowners insurance coverage to Andrew Moonen and Century-National Insurance Company, without admitting any liability or negligence on the part of Andrew Moonen, but distinctly denying such liability, has offered to compromise the claim for injuries of Raheem Khalaf Sa’adoon, deceased, for a sum certain.

 

“2. An offer of compromise has been negotiated on behalf of Wijdan Mohsin Saed, Sajjad Raheem Khalaf, and Ali Raheem Khalaf, by Burke O’Neil LLC, who have represented and continue to represent the interests of Wijdan Mohsin Saed, Sajjad Raheem Khalaf, and Ali Raheem Khalaf. […]”

 

August 27th, 2009 - Plaintiffs’ Motion to Join Additional Party

 

“[…] Plaintiffs respectfully ask the court for joinder of an additional party to the case referenced above. The Circuit Court of the City of Alexandria has appointed J. Walker Richmond III the administrator of the estate of Raheem Khalaf Sa’adoon.

 

“To represent an estate, an individual must be appointed by a Virginia court. Va. Code Ann. §§ 64.1-116 to 64.1-122.2. In Virginia, a wrongful death action permits a personal representative of a decedent to bring an action on behalf of the decedent’s beneficiaries to recover damages and vests that right of action in him. Va. Code Ann. § 8.01-50(B). Furthermore, under Virginia Code § 64.1-75.1, an administrator may be appointed in a wrongful death suit solely for the purpose of prosecution by the clerk in the suit’s jurisdiction. The Clerk of the Circuit Court of the City of Alexandria, which is within the jurisdiction where the suits have been filed, has appointed J. Walker Richmond III as the administrator of the estate. […]”

 

August 27th, 2009 - Sur-Reply to Supplemental Expert Report of Defendants’ Reply

 

“[…] Plaintiffs respectfully submit an opinion by Dr. Saleem Abdullah Al Juboori, attached as Exhibit A. Mr. Al Juboori has already submitted an opinion to the Court in the Plaintiffs’ Opposition to Motion to Dismiss. In addition to the three expert opinions provided in the Opposition, Plaintiffs submit a fourth expert opinion by Dr. Ihsan N. Al-Soufi, an Iraqi attorney, who has reviewed the opinion of Mr. Haider ala Hamoudi, Defendants’ expert witness. His most recent Declaration, dated August 26, 2009, is attached as Exhibit B and a Declaration prepared by him for another proceeding, dated January 6, 2009, is attached as Exhibit C.

 

“Dr. Al-Soufi’s opinion rebuts the claims of Mr. Hamoudi.1 The attached opinions state that both Iraqi statutory and case law do not limit vicarious liability to state institutions or organizations that are linked to such institutions. Dr. Al Juboori supports this opinion, stating that vicarious liability is not limited to industrial or commercial institutions which have a contract with the government. Furthermore, Dr. Al-Soufi states that punitive damages are not limited by Iraqi law. In fact, the Iraqi judiciary has established the absolute authority of the judge in assessing compensation. Dr. Al-Soufi further opines that compensation is available to any relative who incurs damage because of a family member’s death, even if that person is not named in an official distribution paper.

 

“Given the clear discrepancies between the opinions of the parties’ experts, Plaintiffs respectfully request that the Court hold a hearing before ruling on the content of Iraqi law. The four experts supporting Plaintiffs are willing to appear at the Court’s convenience. […]”

 

August 19th, 2009 - Order

 

“[…] On August 12, 2009, Defendants filed a motion seeking cenification under the Westfall Act. The Court, after reviewing the consent motion filed by all parties, hereby orders the following schedule for filing responsive pleadings:

 

“(1) The United States and Plaintiffs shall responsive pleadings by October 8, 2009, and

 

“(2) Defendants shall file a Consolidated Reply by October 22, 2009. […]”

 

August 17th, 2009 - Defendants’ Reply Memorandum in Support of their Motions to Dismiss

 

“[…] Apparently recognizing the substantial body of legal authority precluding the claims asserted in these actions and the insufficiency of the Complaints’ allegations, Plaintiffs in their Opposition attempt to supplement the Complaints with frequent citations to inflammatory assertions from two illegitimate declarations that are the subject of Defendants’ motion to strike and to an excerpt from a book. Because there is no legal or factual basis for allowing these cases to proceed, however, the Complaints must be dismissed. […]”

 

August 12th, 2009 - Memorandum of Law in Support of Def.s’ Motion to Substitute the U.S.

 

“[…] Pursuant to the Westfall Act, […], Defendants respectfully petition this Court to certify that Defendants were ‘employee[s] of the Government ... acting within the scope of [their] ... employment’ when the events giving rise to these consolidated actions occurred and, accordingly, to order that the United States ‘be substituted as the party defendant.’

 

“The Westfall Act defines ‘employee[s] of the Government’ to include all ‘persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.’ […] It is firmly established that this definition encompasses government contractors whose work is actually or contractually subject to control by the relevant government agency. Here, where the State Department determined everything from the content of Defendants’ training program to the rules of engagement governing conduct in the field, Defendants were plainly ‘employee[s] of the Government’ within the meaning of the Westfall Act. […]”

 

August 7th, 2009 - Order

 

“[…] The matters, which have been consolidated for pretrial purposes, came before the Court for a hearing on defendants’ motions to enjoin extrajudicial statements regarding this litigation. More specifically, defendants filed motions […], seeking an order enjoining the parties and counsel in these matters ‘from speaking to the news media or making any other extrajudicial public statement concerning this litigation or any matter at issue herein.’ […]. Plaintiffs filed responses in opposition, contending (i) that the order sought by defendants was not justified by the extrajudicial statements that previously have been made by the parties and their counsel, and (ii) that issuance of the order sought by defendants would impermissibly violate the First Amendment rights of plaintiffs and their counsel.

 

“Oral argument was heard on August 7, 2009. In the course of oral argument, the parties, by counsel, at the Court’s suggestion, represented that counsel and the parties would refrain from making extrajudicial statements which would pose a ‘substantial likelihood of material prejudice’ to the proceedings in this litigation. […] Accordingly, in view of the representations of the parties’ counsel, which representations were accepted by the Court, and for good cause, It is hereby ordered that defendants’ motions […] to enjoin the parties and their counsel from making extrajudicial statements regarding this litigation are denied as moot. […]”

 

August 5th, 2009 - Def.s’ Reply Memorandum in Support to Enjoin Extrajudicial Statements

 

“[…] Counsel’s recent comments, and plaintiffs’ coordinated media campaign, all calculated to fuel this one-sided media coverage and to taint the jury pool against the defendants, demonstrate a clear need for an Order restraining extrajudicial commentary by the parties and their counsel.

 

“Plaintiffs’ opposition to the motion boils down to the contention that the First Amendment bars any restriction on extrajudicial statements in the context of civil actions. But lawyers have no First Amendment right to saturate the airwaves with misinformation about pending litigation, nor, as the Court pointed out, does any litigant have an interest in a biased jury. The Seventh Amendment safeguards the right to an impartial jury in civil as well as criminal cases - as the rules of numerous courts make clear by limiting counsel’s statements in both civil and criminal actions, and as Judge Walton made clear in his order (which plaintiffs apparently believe violated the First Amendment). An appropriately tailored injunction from this Court is essential in order to ensure that this case may be heard by an impartial jury. […]”

 

August 4th, 2009 - Statement of Interest

 

“[…] As directed by the Court in its July 28,2009 Order, acting pursuant to 28 U.S.C. § 517, the United States of America, by its undersigned attorneys, states its interest in the above-captioned actions as follows:

 

“In this Statement, the United States expresses no position with respect to the claims or defenses asserted in this case. The United States’ Statement of Interest is concerned solely with the protection of confidential information. The United States’ interest extends to assuring that disclosure of such information is made only when the appropriate agency of the United States Government determines, in accord with governing regulations and agreements, that the requested disclosure is appropriate. To assure that result to the extent possible, the United States has an interest in ensuring that contractors respect their obligation not to disclose such information publicly, and that requests for the disclosure of confidential information provide the agency which controls the information requested sufficient time for review of the information to be disclosed. […]”

 

August 3rd, 2009 - Plaintiffs’ Opposition to Motion to Dismiss

 

“[…] Plaintiffs respectfully request that this Court deny Defendants’ Motions To Dismiss and permit Plaintiffs’ claims to proceed to discovery and trial. Defendants mislead the Court by portraying Plaintiffs as challenging the State Department’s policies. As explained below, nothing could be further from the truth. Plaintiffs are challenging Mr. Prince’s callous scheme to kill, repeatedly, innocent Iraqis. This scheme was implemented without the knowledge or consent of the State Department. This scheme was motivated by Mr. Prince’s greed and his racist Christian supremacist views. Mr. Prince and his Blackwater companies deceived the State Department, and destroyed evidence that might have led to the detection of the scheme. Mr. Prince’s actions, and those of his alter ego companies, should not evade judicial review. No statutory or decisional law supports Mr. Prince’s claim that he is immune from the rule of law. […]”

 

July 29th, 2009 - Declaration of John Doe No. 2

 

“[…] 1. I am an American citizen. The information set forth below has been provided in grand jury proceedings convened by the United States Department of Justice.

 

“2. I was employed by Erik Prince and his web of companies for approximately four years.

 

“3. I am providing this Declaration as ‘John Doe No. 2’ because I fear violence against me in retaliation for submitting this Declaration. On several occasions after my departure from Mr. Prince’s employ, Mr. Prince’s management has personally threatened me with death and violence. In addition, based on information provided to me by former colleagues, it appears that Mr. Prince and his employees murdered, or had murdered, one or more persons who have provided information, or who were planning to provide information, to the federal authorities about the ongoing criminal conduct. […]

 

“[…] 9. Mr. Prince is motivated to engage in misconduct by two factors: First he views himself as a Christian crusader tasked with eliminating Muslims and the Islamic faith from the globe.

 

“10. To that end, Mr. Prince intentionally deployed to Iraq certain men who shared his vision of Christian supremacy, knowing and wanting these men to take every available opportunity to murder Iraqis. Many of these men used call signs based on the Knights of the Templar, the warriors of the crusade.

 

“11. Mr. Prince operated his companies in a manner that encouraged and rewarded the destruction of Iraqi life. For example, Mr. Prince’s executives would openly speak about going over to Iraq to ‘lay Hajiis out on cardboard.’ Going to Iraq to shoot and kill Iraqis was viewed as a sport or game. Mr. Prince’s employees openly and consistently used racist and derogatory terms for Iraqis and other Arabs, such as ‘ragheads’ or ‘hajiis.’

 

“13. Second, Mr. Prince is motivated by greed. He sought every opportunity to deploy men to Iraq in order to earn more money from the United States government. Mr. Prince and his top manager Gary Jackson knew the men being deployed were not suitable candidates for carrying lethal weaponry, but did not care because deployments meant more money. […]

 

“[…] 16. Mr. Prince obtained illegal ammunition horn an American company called LeMas. This company sold ammunition designed to explode after penetrating within the human body. Mr. Prince’s employees repeatedly used this illegal anmunition in Iraq to inflict maximum damage on Iraqis.

 

“17. Mr. Prince made available to his employees in Iraq various weapons not authorized by the United States contracting authorities, such as hand genades and hand grenade launchers. Mr. Prince’s employees repeatedly used this illegal weaponry in Iraq, unnecessarily killing scores of innocent Iraqis. […]”

 

July 27th, 2009 - Declaration of John Doe No. 1

 

“[…] 1. I am an American citizen. All information set forth below has been provided to the Department of Justice. I served in the United States Marines until I was honorably discharged as a result of an injury.

 

“2. I joined Blackwater and deployed to Iraq to guard State Department and other American government personnel.

 

“[…] 4. I am providing this Declaration as a ‘John Doe’ because I fear violence against me in retaliation for submitting this Declaration. I am scheduled to deploy in the immediate future to Iraq. I have learned from my Blackwater colleagues and former colleagues that one or more persons who have provided information, or who were planning to provide information, about Erik Prince and Blackwater have been killed in suspincious circumstances. […]

 

“[…] 7. I personally observed multiple incidents of Blackwater personnel intentionally using unnecessary, excessive and unjustified deadly force.

 

“8. The first incident occurred in Ba’Qubah near the street colloquially referred to as ‘RPG Alley’. Our convoy had pulled over to fix a flat tire on one of the vehicles. The other vehicles in the convoy formed a defensive circle around the vehicle with the flat tire. An Iraqi civilian with a single passenger happened to be driving near us in a small black car. The driver was not heading directly towards us.

 

“9. Despite the fact that car was not heading directly towards us, a Blackwater employee named Brad Elmer (who is known as ‘Snoop’ because he is a dog handler) motioned to the driver, and almost immediately began firing directly into the car. From my vantage point, it was clear that Elmer was clearly injuring and likely killing the passenger and likely injuring the driver as well. Blackwater failed to stop and see whether either man was alive and in need of urgent medical care.

 

“10. Blackwater failed to report the incident to the Iraqi authorities.

 

“11. Blackwater failed to report the incident to the State Department as was required by contract. […]”

 

July 27th, 2009 - Protective Order

 

“[…] Plaintiffs and Defendants hereby enter into, and submit for the Court's approval, this Stipulation and Protective Order (‘Order’) for the protection of confidential information during the course of this litigation, as follows:

 

“1. ‘Confidential Information’ shall mean information (regardless of how generated, stored, or maintained), documents, testimony, or tangible things obtained during discovery in this action that reveal a trade secret, sensitive or confidential corporate information, information that is governed by a contractual obligation with the United States, or that otherwise is entitled to protective treatment under the Federal Rules of Civil Procedure, and personal information that is protected from disclosure by statute, regulation, or otherwise is entitled to protection from public disclosure. This Order shall govern the use and dissemination of all documents, material, or information designated as Confidential Information in accordance with the terms of this Order. […]”

 

July 24th, 2009 - Def.s’ Motion to Seal Appendix to the Consolidated Memorandum of Law

 

“[…] Defendants hereby move, pursuant to Rule 5(D) of the Local Civil Rules of this Court, for an order permanently sealing the appendix to the consolidated memorandum of law in support of their motions to dismiss (the ‘Appendix’).

 

“Defendants’ Consolidated Memorandum of Law is being filed in its entirety on ECF, with the exception of the Appendix. On ECF, in place of the Appendix, Defendants are filing a notice indicating that the Appendix is being filed provisionally under seal. The sealed Appendix is being filed with the Court clerk’s office.

 

“Defendants’ counsel have conferred with counsel for the Plaintiffs about this motion and have been authorized to represent to the Court that Plaintiffs consent to the relief sought herein. […]”

 

July 24th, 2009 - Consolidated Memorandum of Law in Support of Def.s’ Motions to Dismiss

 

“[…] Plaintiffs in these consolidated cases are Iraqi residents asserting claims for injuries allegedly suffered in Iraq as a result of actions that occurred in Iraq. They seek to recover damages in a United States court from a government contractor providing security services in Iraq whose actions were governed by detailed standards prescribed by the United States and closely supervised by United States government employees While the injuries and deaths described in these complaints like the many thousands of other injuries and deaths that have occurred in Iraq are tragic, Plaintiffs have not stated a claim that is within this Court’s jurisdiction and upon which the Court may grant relief. […]

 

“[…] Plaintiffs’ complaints are insufficient for a number of independent reasons. To begin with, Plaintiffs’ allegations do not entitle them to relief under the Alien Tort Statute or the RICO statute […]. Without these claims, there is no federal jurisdiction […]. The complaints also present nonjusticiable political questions […]. The non-federal counts must be dismissed under applicable Iraqi law […] and, in the case of the Sa’adoon complaint, under Virginia law as well […]. The hiring and training allegations in all complaints also must be dismissed under the government contractor defense […] and absolute immunity […]. The estates’ claims fail for lack of capacity to sue […]. Any claims remaining against Erik Prince or the corporate defendants other than USTC, must be dismissed because Plaintiffs have alleged no basis for imposing liability on these Defendants […]. Some Plaintiffs’ non-federal claims […] and one Plaintiff’s RICO claim […] must be dismissed as untimely. Finally, one Defendant must be dismissed because it lacks capacity to be sued […].”

 

July 22nd, 2009 - Def.s’ Motion to Enjoin Parties from Making Extrajudicial Statements

 

“[…] Defendants request a court order limiting public comments by counsel and the parties about these cases. Plaintiffs’ counsel have been attempting to litigate these cases through the media since the day they filed the first complaint nearly two years ago in the U.S. District Court for the District of Columbia, and apparently now have retained a public relations and media firm assist them in that endeavor, referring to the defendants as ‘mercenaries,’ with a pattern and practice of ‘recklessness in their use of deadly force.’ […] In a June 10, 2009 press release, counsel for plaintiffs called defendant Prince ‘a modern-day merchant of death’ whose ‘repeated illegal conduct … must be stopped.’ […]

 

“Wherefore, defendants respectfully request the entry of an Order precluding the parties and their counsel from making extrajudicial statements to the national and local news media regarding the matters at issue in this litigation. A proposed order is attached. […]”

 

July 21st, 2009 - Order

 

“[…] The Court having considered the parties’ Joint Motion Regarding Scheduling, hereby grants the Motion. Defendants shall file their Consolidated Memorandum of Law in Support of Previously Filed Motions to Dismiss Plaintiffs’ Complaints by Friday, July 24, 2009. Plaintiffs shall file their Consolidated Opposition to Defendants’ motions to dismiss by Monday, August 3, 2009. Defendants shall file their Consolidated Reply by Monday, August 17, 2009. So ordered. […]”

 

July 17th, 2009 - Order

 

“[…] It appears from a review of the record that this case presents certain legal issues essentially identical to those presented in four additional civil matters also pending in this division, namely 1:09cv616, 1:09cv617, 1:09cv618 and 1:09cv645. It also appears that all of the plaintiffs in these five related matters are represented by the same counsel, as are all of the defendants.

 

“Accordingly, for the reasons stated from the Bench, and for purposes of judicial economy, It is hereby ordered that civil actions 1:09cv616, 1:09cv617, 1:09cv618 and 1:09cv645, which actions are currently assigned to other judges in this division, are reassigned to the undersigned district judge for the limited purpose of discovery and pre-trial motions.

 

“It is further ordered that this matter is consolidated with 1:09cv616, 1:09cv617, 1:09cv618 and 1:09cv645 for all pretrial purposes, including discovery and dispositive motions. Whether the matters will ultimately require separate trials to be presided over by the originally assigned judges is a question that will be addressed at a later date. […]

 

“It is further ordered that defendants’ motion to stay discovery […] is granted and discovery in each of these five consolidated civil actions is accordingly stayed pending resolution of the motions to dismiss filed by defendants in these matters.

 

“It is further ordered that a hearing on all motions to dismiss filed by defendants in these five consolidated civil actions is scheduled for 2:00 p.m., Friday, August 28, 2009. […]”

 

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