John Doe I v. Exxon Mobil Corp

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOHN DOE Ff, ef al.,

Plaintiffs,

Case No, 1:01-cv-1357-RCL

‘- Sameoaae’ oa

yw

EXXON MOBIL CORPORATION, ef al,

Defendants.

MEMORANDUM OPINION

TABLE OF CONTENTS

Ul. BACK GROUND ose o0ccco2cessisseste oeawwaavinvenns sateves oneseceocoscosasvevesssncastenetiges oectivsoe sssesser¢owereseet

A. Factual Background Sen cecroee rate tae SE cate Terence oe Mace recemn ca certeee en trteenn ntnereeeaeees

1. The Acehnese Conflict... .

2. The Arun Field Natural Gas Facilities And The Indonesian sn Military’ s

3. Locations And Roles Of Indonesian Military Assigned To Arun Field...10

B. Procedural History .........csscsccrsesscosssseseetenssecteececeensessasecesedgeeseeeseceieessveeeeenenereseae

IV. DISCUSSION.......... pesovebeatoncenesoee dion

A. THCTROSS ae yenrnse nae no stages anon ereceecarconser sagen it wenestctere noestipeantRbiee

l. The Applicable St Statute of Limitations...

2. Relation Back ..0.........cccccecececescceceseecceteneseceeecnes beeedeesacees Eee paetenae eee ee

3. Equitable Tolling... cece cececseceeeecanseeececsneeserscencuenceeceneeseenseaeeaeeneses

B. Causation s......ccicecserecessenesseceteseseenesssecsserseeseceeseses

Standard for Determining Foreign Law....... sca dtc t ase RTER aeviempemwaseareat glee ave

Direct Liability for Negligence under Articles 1365 and 1366 .c..ss..--.26

Indirect Liability Claims under Article 1367... seseesescsessseceecereceseeseeDD

Applying These Causation Standards To nes Cai 00.2..eseseeeeree 3S

(i) Jame Doe Toes ec ecscessnseeenccsessesececneaeeneaeseseencseaesoeseacaeceecteaseaeersce

(ii) Jame Doe Wen. ec cees cece ceeteasneeeee seseeseecosese

. (iii) Jane Doe II1...........

A epe

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(iv) Jane Doe IV ..........0 praia fesshvestiahs satiyhvhiahisenniy eects vicboeraesrinicast 45

CH) AME eV asset aeewrenntdanrnggpiaasenesn penne siuamscxrcrmcmexenneeaeneasenstoced 47

(Vt) Jane Doe V1 ..ereserverscersnrvesvareseensaynivaquaverecovsseiuvveeuvndiynilad ier goamatind 53

(vii) Jane Doe VID vee ceeeeees id csercunnernas tataicaawramisometinied hattennbreentisalS

(CVitT) Janie Dow VM isstsrsasverseecentaistti teeverrnesitycerieeisineeeastinvectngergncniey 60

(ix) John Doe II cessscssssissssssssssssssssssssseesessseccesecscesetesenavenees “senanveveecaes 63

(X) John Doe TV on... esseecsesesssnsesetestnrenessncnsresucsnsessescesacssecsncenennseses 66

(xi) John Doe Vil..esssscssssueen SL acndahtmanisirsmnaesieaicensieruweaened 68

C. EMC’s Liability For Plaintiffs’ Injuries... peer en alii 72

1. EMC’s Vicarious Liability Under Article 1367... Preppenirece 72

2. EMC’s Direct Liability For Its Own Negligence............:.cscsceeereeeererers 75

TD, RPT RB siren cesarean cece tenaarmnaetiie iwi le qennt saweaesauesvarareeteacsaueeeOn 76

1. Indonesian Law Permits Recovery For Immaterial Losses ............2:000000 77

2: Plaintiffs Have Provided Sufficient Evidence Of Cognizable Losses.......79

BE, Dune Process insavecsssmcsaessctsensstsvaierenttonnsal Arcecicitsnal niteancdt darereserennnssaveistanassrnrestiinans 80

1. Due Process Right To Cross-Examineé Witnesses. ..........-..sscceseesesceseeeeeees 81

2. Defendants’ Opportunity To Respond To Plaintiffs’ Claims .................. 83

Vis CONCLUSION iis sassicrsiticnitpenen as nnctevoonaeennpnsnaxansdinsasnainee/astanidustuvsiitessieanesassttivertsdanbadénsttechd 85

I. INTRODUCTION

Plaintiffs—eleven villagers from Aceh, Indonesia—allege that between 1999 and 2003,

they (or their deceased next of kin) were the victims of human rights violations committed by the

Indonesian military. Plaintiffs aim to hold defendants Exxon Mobil Corporation (“Exxon Mobil”

or “EMC”) and its subsidiary Exxon Mobil Oil Indonesia (“EMOI”) responsible for the abuses

inflicted by Indonesian soldiers providing security for defendants’ natural gas operations.

The case comes before the Court with an extensive procedural history. The parties have

litigated motions to dismiss, motions for summary judgment, motions for judgment on the

pleadings, contentious discovery disputes, and appeals to both the D.C. Circuit and Supreme Court.

The record in this case is now closed. Plaintiffs’ remaining claims, which are the focus of this

opinion, are governed by Indonesian law and can be separated into two categories. In the first,

- plaintiffs aim to hold defendants directly liable for their negligence in hiring, retaining, or

supervising the members of the Indonesian military providing security at defendants’ operations.

In the secorid, plaintiffs aim to hold defendants vicariously liable for the intentional torts—like

assault, battery, and unlawful detention—committed by these same soldiers.

Defendants move for summary judgment on all claims. Defs.’ Mot., ECF No. 819; Defs.’

Mem. in Support of Mot. for Summary J. (“Defs.’ Mem.”), ECF Nos. 818-1, 819.! First, they

contend that there is insufficient proof linking the soldiers who engaged in wrongdoing to

defendants and their activities. Defs.’ Mem. 13-29. Thus, defendants argue, plaintiffs cannot

prove causation. Jd. at 30-34. Next, defendants allege that plaintiffs’ claims fail pentane plaintiffs

‘ have provided insufficient evidence of “quantifiable loss.” Jd. at 30-34. Third, defendants state

that even if the claims sapdnst EMOI may proceed, EMC is too far removed from the events to be

held liable. Jd. at 34-38. Fourth, defendants characterize these proceedings as a violation of their

due process rights warranting dismissal. Jd. at 39-43. Finally, defendants assert that several of

plaintiffs’ claims are barred by the applicable statute of limitations. Jd. at 43-45. Plaintiffs oppose.

Pls.” Opp’n, ECF Nos. 826, 828. They concede a handful of the claims at issue, but otherwise

reject defendants’ arguments. Defendants filed a reply in support of their motion for summary

judgment. Defs.’ Reply, ECF Nos. 830-1, 832.

Upon consideration of the parties’ filings, applicable law— including the prior decisions in

this case, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART

defendants’ motion for summary judgment. A handful of plaintiffs’ claims are time-barred, But

' Several of the filings in this case have been designated as highly sensitive documents (“HSD”). HSD is not filed on

the electronic docket, even under seal, so hard copies were provided to the Court. Thus, in several instances, there are

multiple versions of the same documents with different levels of redactions. The Court will cite to the HSD

(unredacted) versions of the parties’ filings but provides the ECF numbers for the sealed and public redacted versions

of the parties’ briefing here. :

with only limited exceptions, defendants’ remaining arguments—about causation, quantifiable

loss, EMC’s liability, and due process—are entirely meritless.

II. -BACKGROUND

A. Factual Background

iL The Acehnese Conflict

The facts of this case took place during a brutal civil war between a militant group seeking

Aceh’s independence and the central Indonesian government. Periods of conflict between groups

seeking Aceh’s independence and the central government existed since’ the 1950s—with major

resurgences of the independence movement taking place in 1976 and 1989. See generally Def.”

Statement of Material Facts Not in Genuine Dispute (“SOF”) §§ 22-27; Pls.’ Counterstatement of

Material Facts (“CSMF”) 4 22-272

In 1989, the independence movement resurfaced, led by a militant group known as Gerakan

Aceh Merdeka, or GAM. SOF 925. By the mid-1990s, GAM and Indonesian forces were engaged

in a civil war in the Aceh region. Jd. Then, in 1998, the President of Indonesia resigned, and there

was a pause in the violence that lasted approximately seven or eight months. SOF § 26. This

peace was short lived. By early 1999—-when the events in this case began to take place—hostilities

had resumed. SOF 4 27.

Thousands of civilians were killed or injured during this conflict. See, e.g., CSMF § 25;

SOF 4 25. There is no dispute among the parties that, among other abuses, the Indonesian military

executed villagers to deter them from supporting GAM, engaged in “routine” torture, and would

? The record in this case is extensive. To shorthand the number of citations to the record, the Court will cite the parties’

statements of undisputed facts, and incorporate the sources cited therein, where there is no dispute that the record

supports the proposition at issue. Where the parties dispute aspects of the record or what it reflects, the Court will

also cite the record by the parties’ exhibit number (Plaintiffs’ Exhibit (“PX”) or Defendants’ Exhibit (“DX”)).

punish entire villages for GAM attacks. SOF { 29; see PX-36, Human Rights Watch 2001 Report

at 15, 18. GAM also committed human rights abuses. See CSMF 4 29.

' .While defendants suggest that their knowledge of the Indonesian military’s human rights

record is immaterial to the issues raised in their present motion, plaintiffs present evidence that

defendants were aware of the Indonesian military’s conduct. For example, in 1998, the editor of

Business Week’s Singapore Bureau investigated and wrote a story about atrocities committed by

the Indonesian military in the early 1990s. See, e.g., CSMF ff 176-80; RCSMF 9§ 176-80. These

human rights abuses occurred near defendants’ operations and purportedly involved defendants’

equipment. See; e.g., CSMF {J 176-80; RCSMF J 176-80. Contemporaneous State Department

reports warned of wrongdoing by the military during the time period relevant to this case—several

of these reports wes even produced from EMC’s records during discevery. See CSMF § 182;

PX-206; PX-208. And defendants’ executives have acknowledged their awareness of the

military’s human rights abuses. CSMF § 183; see, ¢.g., PX-18, Neil W. Duffin Dep. (“Duffin

Dep.”) 45:12—-46:20, 191:7-12; PX-210 (risk assessment sent to executives describing recent

detentions, killings, and torture by Indonesian military operating in Aceh).*

2. The Arun Field Natural Gas Facilities And The Indonesian Military’s Security

Role

In 1971, Mobil Oil Indonesia, Inc. (“MOI”) discovered gas reserves in North Aceh,

Indonesia. SOF { 1. The government of Indonesia and MOI worked together to develop extraction

facilities, which later became known as Arun Field. Jd. { 2. From the 1970s until 2015, MOI—

? See, v.g., Defendants’ Response to Plaintiffs’ Counterstatement of Material Facts (“RCSMF” ) 4 183 (“The fact that

executives al EMC or EMO! may have been aware of historical abuses by the Indonesian military, even if true, in no

way connects Plaintiffs’ alleged injuries to Defendants.”).

‘ These facts are material to the extent that plaintiffs must provide sufficient evidence of defendants’ fault. See infra

Sec.IV.B.

and later EMOI (the Court will refer to these entities collectively as “EMOI”) °—operated the Arun

Field as a contractor for Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (“Pertamina”),

a 100% Indonesian state-owned entity. SOF § 3, CSMF { 3. There is no dispute that Arun Field

and the connected remote locations where defendants operated with Pertamina were profitable,

even while operating in the middle of war-torn Aceh. See, e.g., CSMF § 185; PX-65 at

. CA0001174655; PX-211, Defs.’ 2068 Statement of Material Facts J 20 (reflecting $295 million

in earnings from these operations in 1998, and $500 million in earnings by 2000). Since October

4, 1998, the relationship between EMO] and Pertamina was governed by a production sharing

contract (or “PSC”). SOF 4 4.

The parties present drastically different characterizations of the record about defendants’

relationship with the Indonesian military, Defendants (repeatedly) sin that “EMOI had no ings

authority to exercise command or control over the sovereign military of the Government of

Indonesian including over the Indonesian soldiers assigned to guard Arun Field.” Defs.’ Mem. 15.

Under the PSC’s terms, EMOI did not own the natural resources, facilities, or many of the

equipment pieces associated with Arun Field—Pertamina did. SOF § 6; see DX-5S at

CA0001186134 (hereinafter, the “PSC”) ff 5.3(f), 9.1. The PSC also stated that Pertamina “shall

have and be responsible for the management of the operations contemplated hereunder.” SOF 7;

CSMF 4 7; DX-5, PSC § 1.1. Finally, the Constitution of Indonesia requires the Indonesian

government to secure and protect the country’s natural resources, including through use of the

military. SOF 4 8; CSMF § 8; DX-11, May 20, 2021 Decl. of Timothy Lindsey (“May 20 Lindsey

Decl.) 55-56 & n.24. - Defendants contend—but plaintiffs dispute—that Arun Field was

> MOL is EMOI’s predecessor in interest. See SOF § 3; RCSMF 552 (explaining that “Exxon and Mobil merged on

November 30, 1999” and that in June 2000 MOI changed its name to EMOJ).

designated a Vital National Object by the Commander in Chief of the Armed Forces and thus the

military was required to safeguard the facilities. See SOF {7 9-10; CSMF ff 9-10.

But the PSC also requires Pertamina to “assist and expedite [EMOI’s] execution of” gas

extraction and production “by providing . . . security protection... as may be requested by

[EMOI].” DX-5, PSC § 5.3(c) (emphasis added). Plaintiffs contend that, notwithstanding the

terms in. the PSC and the Indonesian government’s sovereignty, defendants in fact exercised

control over the military providing security at Arun Field facilities.®

Up through 1999, security at Arun Field was provided by a combination of MOI’s private

security guards and members of the Indonesian military and police. See CSMF 4 199. Indonesian

soldiers that provided security for Arun Field were stationed at the A-13 encampment near, and

inbetween, MOI’s headquarters at “Point A” and MOI’s ftoilities at “Bachelor Camp,” where

workers were housed and ate meals. See, e.g., COMF J 199; PX-214 at CA0001005152; PX-18,

*-

Duffin Dep. 230:8-14. °

But as mentioned previously, in 1999, the conflict in Aceh resumed with renewed intensity.

DX-2, Expert Report of Professor Geoffrey Robinson (“Robinson Report.”) 6. Defendants’

facilities, equipment, and even personne! were sometimes caught up in the region’s violence. See,

e.g., SOF Jf 30-33; CSMF 4 30-33 (acknowledging the violence that took place); DX-10,

Michael Farmer Dep. (“Farmer Dep.”) 301:10—303:20; DX-2, Robinson Report 14. Moreover, the

main Arun Field sources began to deplete, so MOI began to expand drilling operations into

§ Judge Oberdorfer previously rejected the same characterizations that defendants make in their present motion for

summary judgment. Judge Oberdorfer explained that a reasonable finder of fact could conclude (1) “that the security

forces were EMOI’s servants and acted within the scope of their employment when committing the alleged torts” and

(2) that EMO} was negligent in hiring, retaining, and supervising its military security forces. Doe v. Exxon Mobil

Corp., 573 F. Supp. 2d 16, 28-30 (D.D.C. 2008). While the Court need not cover these issues again, the factual

discussion below is probative of the connection between the soldiers who harmed plaintiffs and Aateetleette-~ eich

is the focus of defendants’ motion.

“remote” locations to meet its contractual obligations. See, e.g., PX-18, Duffin Dep. 78:10-22.

These locations were close to other facilities operated by defendants. CSMF q 187.

In August 1999, MOI’s president, Ron Wilson, met the military in Aceh and was informed

that the military “would not put more troops at [MOI’s] facilities unless [MOI] asked for them.”

PX-53 (email from Ron Wilson). While Wilson initially declined additional military security, id.,

in-December 1999, he reversed course, CSMF § 202. Jim Russell, an EMOI executive, sent a

memorandum to EMOI’s senior executives and Mike Farmer, an EMC executive, requesting

“approval . . . to deploy A-13 soldiers to help augment existing [Northern Sumatra Business Unit]

security at all our facilities including producing clusters.” PX-224 at CA0001179817. The

’ memorandum “recognize[d] that there are significant issues and risks in utilizing the military in

{EMOT’s} own facilities” but Russell concluded that “the current situation in our area leaves us

little choice.” Jd. Russell also requested that EMC’s Global Security group provide dedicated

personnel to improve security because EMOI’s management team lacked the time or skills

required, Jd.

Wilson responded that there was no “need to ask for [Farmer]’s approval to put soldiers at

the clusters” because Wilson had “talked to [Farmer] last week and [Wilson] also obtained [EMC

executive] Lance[ Johnson’s] approval.” PX-165 at CA0001179798; see CSMF 4 203. But

Wilson noted that “Pertamina asked [them] to consider other options” and MOI!’s regional security

manager “Tommy [Chong] has reservations on using the al3.” Jd Nevertheless, after

consultation with EMC, EMOI requested additional troops. CSMF 4 206. By December 1999,

the number of military guards engaged at Arun Field facilities operated by EMOI doubled to 200,

as reflected by a communication from Chong to Wilson describing “the deployment logistics of

the new military resources.” PX-54 at CA0001047716. Soldiers were tasked with escorting

employees, guarding the gates, providing access control, conducting patrols, and standing by -at

A-13 for emergency purposes. Id. at CA0001047716-17; see PX-18, Duffin Dep. 224:12-25;

CSMF ff 207-09.

From that point forward, the record reflects not only steady increases in the Indonesian

military’s responsibility for Arun Field security, but also defendants’ greater involvement and

influence in the military’s security operations. By December 1999, EMOI management informed

military commanders that, contrary to the military’s understanding, the soldiers would no longer

“back up [EMOI’s} Security function” but instead “replac{e] [EMOI’s] own Security function.”

PX-49 at CA0001213388. Military personnel assigned to EMOI’s operations and facilities in Arun

Field were “dedicated exclusively” to providing security for these operations. PX-73 at

CA0001003 151; see PX-65 at CA0001 174659 (“There ae a number of military personnel that are

stationed in the immediate area of our operations. They are essentially dedicated to the protection

of our people and assets. They do not perform a broader role with respect to military activities

within the region.”). Defendants’ management held regular meetings with the military, and EMOI

management indicated that it would “work out a small incentive program to motivate [the

military’s] continuous performance.” PX-245 at CA0001334816 (email from Tommy Chong to

Jim Russell); see, e.g., PX-6, Connor Dep. 40:7—17, PX-14, Farmer Dep. 128:17—129:3.

Defendants paid the military and soldiers directly for their services. See, ¢.g., CSMF {J 216-221

(collecting record cites); PX-46, Ling Dep. 137:20-138:22; PX-73 at CA0001003150, PX 268—

7d

As the number of soldiers assigned to defendants’ operations continued to increase,

defendants’ use of private security guards decreased. Several times during the year 2000,

defendants requested additional troops for their operations. See, e.g., PX-240 at CA0001046569

(requesting “[a]dditional security personnel over and above the current-A 13 detachment” that

would be “ander the direction of the A 13 ‘commander for maximum efficiency”). By late 2000,

approximately 1000 soldiers were assigned to defendants’ operations. See, ¢.g., PX-317 at

CA0001333839 (“We now have 1000 troops, with approximately 70 percent inside the wire and

30 percent in the jungle, where they moved only after we built them accommodations.”); PX-314

at CA0001005970.01-971 (indicating 962 military security forces). Meanwhile, in December.

2000, EMOK had less than 100 of its own security officers and less than 30 local police providing

security at defendants’ operating locations. See PX-314 at CA0001005970.01—‘974; see also

PX-14, Michael Farmer Dep. 254:16—20 (“{I]t was the feeling of EMOI that having hundreds and

hundreds of private security guards that were simply standing there-behind military security was

redundant and expensive and unnecessary.”). By February 2001, reports provided to defendants

indicated that there were “5,500 troops currently deployed to Aceh, of which 1,000 are detailed to

EMOI [North Sumatra Organization] (or 20 percent).” PX-328 at CA0001006166.

3. Locations And Roles Of Indonesian Military Assigned To Arun Field

With this timeline in mind, the Court will provide a non-exhaustive overview of (1) the

locations where defendants operated, (2) where military members providing security for

defendants were stationed, and (3) the military’s security roles related to Arun Field and

defendants’ operations.

A reasonable jury could find that defendants built, managed, or otherwise retained some

level of responsibility for the following facilities in Arun Field:

e Four “work clusters,” called Clusters 1, 2, 3, and 4, where defendants’ drilling wells were

concentrated. See CSMF § 281 (citing defendants’ admissions); PX-18, Duffin Dep.

16:16-17:8; PX-54 at CA0001047716-17. .

e “Point A,” acentralized facility that included management offices, maintenance operations,

and an airfield. See PX-18, Duffin Dep. 17:19-18:3; PX-106, Deposition Notes Produced

10

by Defs., EMOI 30(b)(6) (Snell) Dep. Ex. at 1; PX-107 at CA0001007937; PX-54 at

~ CA0001047716-17. .

e Approximately 18 gas injection and observation wells scattered throughout the area. See

PX-334 at CA0001005773.

e A number of support facilities, including Camp A-1 (or Al) and Bachelor Camp. See, e.g.,

PX-89 at CA0001147209; PX-18, Duffin Dep. 18:15-23; PX-36, Dep. 18:5—

19:16 (testifying that “Exxon” operated the landing dock in Al); PX-41, Dep.

11:2~12:22 (“A. The first drilling well for oil was at Al. Q. And who was drilling for oil

at that time, the first well?."A. The first one was PBI, and then Mobil, and then Exxon.”);

PX-121, PX-336 (reflecting payments by defendants for carpeting and pillows at A-1);

PX-214 at CA0001005152; PX-54 at CA0001047716—-17 (“Soldiers will take over from

MOI security to guards to [man Bachelor Camp’s] main gate.”); see also PX-376 at

CA0001005973.

’ Plaintiffs also contend that defendants managed and were responsible for Camp A-13, the

support facility where military members providing security for Arun Field were located. See

CSMF 281. Defendants argue that there is insufficient support in the sence for this conclusion.

See RCSMF ¥ 555. For the most part, this dispute has no bearing on plaintiffs’ claims so the Court

will not opine on defendants’ management responsibilities. Even if defendants did not “manage”

or maintain responsibility for A-13, there is adequate support for a connection between A-13 and

defendants: defendants’ military security personnel were housed at A-13, A-13 soldiers appear to

be a primary source of defendants’ military security during the relevant time period, defendants

paid for repairs to A-13 facilities, defendants coordinated with the A-13 commander, and soldiers

at A-13 remained stationed and available for emergencies at defendants’ operating locations. See,

e.g., CSMF 9¥ 303, 304 (collecting sources discussing A-13 soldiers’ roles providing security);

PX-336 (reflecting repairs and renovations to A-13 facilities paid for by defendants); PX-240 at

CA0001046569; PX-18, Duffin Dep. 230:8-14; PX-224 at CA0001179817;° PX-54 at

CA0001047716-17 (“A-13 CAMP: 20 soldiers to be based.at the camp for emergency purposes.”);

PX-365 at CA0001180191-92.

11

Members of the military were assigned to protect or provide security at (and near) each of

these defendant-affiliated locations. See, e.g, PX-73 at CA0001003149; PX-350 at

CA0001334507; PX-351 at CA0001192561; PX-314 at CA0001005970.001; PX-352; PX-376 at

CA0001005973. As explained below, military security personnel provided not just “point

protection” at the facilities themselves, but also “area protection,” which required securing the

outside of the facilities. PX-353 at CA000133427.

A reasonable jury could find that units of the Indonesian military assigned to provide

security for defendants’ facilities, among other things, engaged in the following types of security

services during the relevant period in this case:

Providing access control and security at the front gates of defendant-operated locations.

See, e.g., PX-49 at CA0001213388 (“[RJjeinforce our expectations of the military regarding

their role as taking over access control to facilities.”); PX-343 at CA0001213061, PX-346;

PX-97; PX-247. There, military members checked badges and packages, limited vehicle

access, and removed unwelcome visitors. See, e.g., PX-343 at CA0001213061 (“[T]he

soldiers attached to our facilities are really helping us to tighten access control.”).

Conducting perimeter patrols. See, e.g., PX-353 at CA000133427 (“I responded that we

didn’t want buildings guarded, we wanted patrolling and activity outside the fence that

would provide area protection and not point protection.”).

Conducting patrols of the roads and routes near and leading up to defendant-operated

facilities. See, e.g., PX-16,- Connor Dep. 64:3-9; PX-104, PX-105; PX+103 at

CA0001364430; PX-8, EMOI 30(b)(6) Snell Dep. 650:14-19; CSMF { 293 (collecting

examples).

Establishing security posts and checkpoints along the roads leading up to and surrounding

Arun field. See, e.g., PX-118 at CA0001173764; PX-86 at CA0001182942; CSMF 4 290

(citing examples of -soldiers providing services along. nearby ~ roads).

Providing escorts for defendants’ travel, including convoys, shift changes, equipment

movements, and other travel between work sites. See, e.g., PX-73 at CA0001003 149;

PX-256 at CA0001178949-—51; CSMF ¥ 291 (collecting examples).

Conducting “sweeping” operations. See, ‘e.g., CSMF § 292, 294; PX-256 at

CA0001178947; PX-360 at CA0001078272; PX-101 at CA0001334808.

12

e Investigating and responding to threats and updating defendants with security-related

. information. CSMF {ff .241, 296-98; see PX-73 at CA0001003149; PX-214 at

CA0001005149 (“The official security services will also employ a pursuit capability to

increase the likelihood of apprehension in the event of contact with armed or criminal

elements, once again adding to the deterrenceé.”).

Defendants do not dispute these military roles but instead focus again on their purported

inability to contro] the Indonesian military.

B. Procedural History

Plaintiffs’ initial complaint was filed in June 2001. Compl., ECF No. 3. The operative

complaint, the second amended complaint, was filed on November 25, 2014. 2nd Am. Compl.,

ECF No. 465. The Coust’s prior opinions discuss other aspects of this case’s factual and procedural

history at length. See, e.g., Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76 (D.D.C. 2019); Doe v.

Exxon Mobil Cam., No. 01-cv-1357 RCL), 2019 WL 2348100 O. D.C. June 3, 2019); oe v.

Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014); Doe v. Exxon Mobil Corp.,

573 F. Supp. 2d 16 (D.D.C. 2008); Doe v. Exxon Mobil Corp., No. 01-cv-1357- (LFO),

2006 WL 1193855 (D.D.C. May 3, 2006); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C.

2005).

At this stage in the litigation, plaintiffs’ remaining claims can be sorted into two categories.

The first set of claims encompasses negligence-based claims—they seek to hold defendants’ liable

for their negligence in hiring, supervising, or retaining members of the military as their security

forces. See 2nd Am. Compl. ff] 212-235. The second set of claims encompasses intentional tort “

claims—like wrongful death, assault, battery, conversion, and false imprisonment. Id. at $f 193—

211, 236-40. In these, plaintiffs seek to hold defendants vicariously liable forthe intentional torts

committed by soldiers acting as defendants’ security forces.

13

* Defendants now move for summary judgment on all claims. See Defs.’ Mot., Defs.” Mem.

Plaintiffs filed an opposition. Pls.’ Opp’n. Defendants filed a reply in support of their motion.

Defs.’ Reply. Defendants’ motion is ripe for review.

Ill. LEGAL STANDARDS

A court may grant summary judgment only if a movant “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). When evaluating a summary judgment motion, all inferences to be drawn

from the underlying facts “must be viewed in the light most’ favorable to the party opposing the

motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.; 475 U.S. 574, 587 (1986). Facts are

material if a “dispute over [them] might affect: the outcome of a suit’ under governing

law.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute about a material fact is

“genuine” if the nonmovant presents evidence “such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

IV. DISCUSSION

For the reasons set forth below, the Court will GRANT IN PART and DENY IN PART

defendants’ motion for summary judgment. First, the Court will grant summary judgment on a

handful of claims that are untimely and barred by the applicable statute of limitations. Second, the

Court will spend the lion’s share of this opinion addressing defendants’ arguments that plaintiffs

cannot prove causation. The Court will set forth the. applicable standards for causation under

Indonesian law and then apply those standards to the facts of each plaintiff's claims. With limited

exceptions, defendants’ causation arguments fail. Third, the Court will, address—and reject—

defendants’ contention that they are entitled to judgment because plaintiffs have provided

insufficient proof of quantifiable loss. While plaintiffs must prove a cognizable loss under

Indonesian law, plaintiffs can recover for immaterial damages, which are, by definition, unable to

14

be precisely calculated in monetary terms. Fourth, the Court explains why defendants’ arguments

that EMC cannot be held liable for EMOI’s actions are unavailing. Finally, the Court will turn

down defendants’ tequest for dismissal on due process grounds. The opportunity to raise these

due process challenges has either not yet arrived or is long gone. The Court will not give

defendants a second bite at the apple for the latter category. -

A. Timeliness ~* =

The Court begins with defendants’ timeliness challenges. Plaintiffs allege in their

complaint that John Doe II, John Doe IV, and Jane Doe VII’s husband, John Doe V, were injured

in 2000. See 2nd Am. Compl. {§ 177, 179-80. But the evidence supports (and plaintiffs do not

dispute) that these injuries actually occurred in 1999, more than one year’ before plaintiffs filed

their first complaint in June 2001. Sen €.g., SOF F§ 99, 120, 129; Pls.” Opp’n 53 1.27. And in the

Second Amended Complaint filed in 2014, Jane Doe VII alleged for the first time that, in 2003,

her husband was abducted and tortured by defendants’ security personnel. 2nd.Am. Compl. J 180.

Defendants argue that the claims related to these injuries are time-barred and should be dismissed.

This argument succeeds in part.

The Court’s analysis proceeds in three steps. First, the Court will determine the applicable

statute of limitations that applies to each of plaintiffs’ claims. Next, the Court will address

plaintiffs’ contention that Jane Doe VII’s claims about her husband’s 2003 abduction and torture

are timely“because they relate back to the original complaint. Finally, the Court will address

plaintiffs’ request for equitable tolling.

1. The Applicable Statute of Limitations

To begin, the Court must determine which jurisdiction’s law governs timeliness issues.

The Court “must apply the choice-of-law rules of the jurisdiction in which [it] sit[s]” to determine

15

the appropriate sources of procedural and substantive Jaw governing plaintiffs’ claims. Wu v.

Stomber, 750 F.3d 944, 949 (D.C. Cir. 2014); see Ideal Elec. Sec. Co., Inc. v. Int’l Fid. Ins. Co.,

129 F.3d 143, 148 (D.C. Cir. 1997) (“When deciding ‘state-law claims under diversity or

supplemental jurisdiction, federal courts apply the choice-of-law rules of the jurisdiction in which

they sit.”). District of Columbia choice-of-law rules provide that (1) the forum state’s law applies

to “procedural” issues and (2) that the statute of limitations is a “procedural” issue. See, e.g.,

Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966); Gardel v. SK & A Structural Engineers

PLLC, 286 F. Supp. 3d 120, 125 (D.D.C. 2017). The Court will thus apply the District of

Columbia’s statute of limitations.

The District of Columbia has a one-year limitations period for filing intentional tort claims.

D.C. Code § 12-301(4). Negligence claims are generally governed by the District’s default three-

year limitations period for claims that are not otherwise “specially prescribed.” D.C. Code

§ 12-301(8); see Johnson v. Long Beach Mortg. Loan Tr. 2001-4, 451 F. Supp. 2d 16, 48

(D.D.C. 2006) (“This statute applies to Plaintiff's claims of negligence.”). However, courts in the

District of Columbia wiill not resort to this default provision when the plaintiff's stated cause of

action is “intertwined” with a claim for which a shorter limitations period applies. Mittleman v.

United States, 104 F.3d 410, 415 (D.C. Cir. 1997). Here, diterainats contend that the shorter,

one-year limitations period applies to all of John Doe II’s, John Doe I'V’s, and Jane Doe VII’s

claims because their negligence claims are “intertwined with” their intentional tort claims. Defs.’

Mem. 43 (citing Ryan v. Jaffe, 457 F. Supp. 22, 24). The Court is not persuaded.

“A claim is ‘intertwined’ with another when it is ‘completely dependent’ on or essentially

the same as another, and cannot survive as a separate, independent cause of action.” Johnson,

451 F. Supp. 2d at 48 (quoting Thomas v. News World Communications, 681 F. Supp. 55, 73

16

(D.D.C. 1988)). But a claim that is “pled as a clear and distinct tort” is not intertwined with

another. Saunders vy. Nemati, 580 A.2d 660, 661-62 (D.C. 1990); see Reaves-Bey v. Karr,

840 A.2d 701,704 (D.C..2004) (intertwining doctrine “do[es] not preclude separate causes of

action where the plaintiff has pled and established separate and distinct claims”), Thus, when the

plaintiff does “more than merely recharacterize” their intentional -tort claim, Reaves-Bey,

840 A.2d at 704, and properly states the elements of a negligence claim, the three-year statute of

limitations applies to the negligence claim, see Stewart-Veal v. District of Columbia,

896 A.2d 232, 236 (D.C. 2006).

Plaintiffs’ negligence-based claims are neither “completely dependent” on nor “essentially

the same” as their intentional tort-claims. Instead, plaintiffs plead clear and distinct negligence

claims. Each element of 2 negligence claim is prosant: plaintiffs allege that defendants owed a

duty of reasonable care to plaintiffs when hiring, retaining, and supervising security personnel and

that defendants breached that duty of care, resulting in plaintiffs’ injuries. See 2nd Am. Compl.

{J 212-35; see also Pannell v. District of Columbia, 829 A.2d 474, 479 (D.C. 2003) (“In a

negligence action, the plaintiff bears the burden of proof on three issues: the applicable standard

of care, a deviation from that standard by the defendant, and a causal relationship between that

deviation and the plaintiff's injury.”). Indeed, plaintiffs’ negligence and intentional tort claims

turn on entirely different elements and types of proof—plaintiffs could succeed on one set of

claims while failing on the other. For example, defendants can be vicariously liable for the acts.of

their security personnel without a finding that defendants acted negligently or breached an

applicable standard of care. See infra Sec.IV.B.3. Conversely, defendants may be held liable for

breaching.a duty of care owéd to plaintiffs without proof of the relationship required for. vicarious

liability. See infra Sec.IV.B.2.

17

Because plaintiffs have properly stated the elements of a negligence claim, the three-year

statute of limitations applies to their negligence claims, and John Doe Il’s, John Doe IV's, and

Jane Doe VII’s claims for negligence, .negligence hiring, and negligent supervision stemming from

conduct in 1999 are timely.

2. Relation Back

" Plaintiffs acknowledge that Jane Doe VII’s claims about her husband’s 2003 abduction and

torture first appeared in a pleading after the limitations period had passed. But they contend that

these claims are nevertheless timely because they “relate back” to the original, timely filed”

complaint in 2001. Pls.” Opp’n ‘55. This argument prevails in part.

In limited circumstances, Federal Rule of Civil Procedure 15(c) may save an otherwise

untimely amendment to the complaint when it “relates back” to the original pleading.

Fed. R. Civ. P. 15(c).’ Federal Rule of Civil Procedure 15(c)(1)(B) provides that a subsequent

pleading “relates back to the date of the original pleading” when it “‘asserts a claim . . . that arose

out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). “The underlying question is whether the original

complaint adequately notified the defendants of the basis for liability the plaintiffs would later

advance” in the subsequent pleading. Meijer, Inc. v. Biovail Corp., 533 F.3d 857,- 866

(D.C. Cir. 2008). Accordingly, if “the original pleading gave notice that the conduct, transaction,

’ The codified standards in Rule 15(c) do not expressly apply to Jane Doe VII's 2003 claims. Rule 15 distinguishes

between “amendments” and “supplements” to pleadings, and the express terms of Rule. 15(c) apply only to

amendments. See United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002); Fed. R. Civ. P..15(c). Amendments

“rest on matters in place prior to the filing of the original pleading” while supplements set forth “events which have

happened since the date of the pleading sought to be supplemented.” Hicks, 283 F.3d at 386 (quoting

Fed, R. Civ. P. 15(d)). Here, allegations in the operative complaint concerning Jane Doe VII’s husband’s abduction

and torture in 2003 occurred after the initial complaint was filed. The pleading should be treated as a supplement

when considering these allegations. Nevertheless, this Court has previously followed the example of other courts that

apply Rule 15(c)’s principles to supplemental pleadings. United States v. Palmer, 902 F. Supp, 2d 1, 13 n.3 (D.D.C.

2012) (quoting United States v. Hicks, 283 F.3d 380, 385 n.3 (D.C. Cir. 2002)); see Wright & Miller, Federal Practice

& Procedure § 1508 (3d ed.).

18

or occurrence is of a continuing nature, defendant should be prepared to defend against all claims

arising out of it, whether they arose before or after the ori ginal complaint was filed.” 6A Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1508 (3d ed.); see Chesapeake

& Ohio Ry. Co. v. U.S. Steel Corp., 878 F.2d 686, 691 (3d Cir. 1989); William Inglis & Sons

Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1981).

But while Rule 15’s provision for relation back “relaxes . .~. the statute of limitations,” it

“does not obliterate” it. Mayle v. Felix, 545 U.S. 644, 650 (2005), A pleading does not relate back

when it “asserts a new ground for relief supported by facts that differ in both time and type from

those the original pleading set forth.” Jd. at 650. Indeed, even an amendment that shares “some

elements and some facts in common” with the original claim does not relate back if its effect is “to

fault [defendants] for conduct different from that identified in the originat complaint.” Meijer,

533 F.3d at 866. Courts have refused to apply relation back when supplemental pleadings “require

proof of independent operative facts peculiar to the transaction involved.” Blau yv. Lamb,

191 F. Supp. 906, 906 (S.D.N.Y. 1961).

Applying these principles to the claims in the operative complaint, Jane Doe VII’s

negligence claims relate back to the original complaint.*. The plaintiffs’ original complaint pleaded

the same “basis for liability” advanced in the operative complaint, that is, defendants’ negligent

hiring, retention, and supervision of Indonesian soldiers. Moreover, the original complaint alleged

‘that this conduct was ongoing and requested injunctive relief. See Compl., ECF No. 1; see William

Inglis & Sons Baking Co., 668 F.2d at 1057 (“We are satisfied that Inglis’ original pleadings

provided [defendant] adequate notice of the subject matter of the action. They alleged a continuing

course of conduct and contained prayers for injunctive relief as well as for damages.”). Because

5 Jane Doe VII does not bring any intentional tort claims for the 2003 incident. See 2nd Am. Compl. ff 193-211.

19

the negligence claims pertaining to John Doe V’s injuries in 2003 arose out of a continuing course

of negligent conduct set forth in the original pleading, they relate back to the original pleading.?

3. Equitable Tolling

Plaintiffs contend that these otherwise untimely claims should be equitably tolled because

the “civil conflict in Aceh and [p]laintiffs’ reasonable fear of reprisal” prevented them from timely

filing. Pls.” Opp’n 53.*“[F]ederal courts cannot apply the doctrine of equitable tolling differently

than would the District of Columbia courts.” Williams v. District of Columbia, 916 F. Supp. 1, 5

(D.D.C. 1996). In 2008, Judge Oberdorfer reasoned that the D.C. Court of Appeals had “never

directly addressed” whether equitable tolling was permitted for extraordinary circumstances and

deferred ruling on the issue. Doe, 573 F. Supp. 2d at 34. Upon-consideration of the relevant

authorities, the Court concludes that equitable tolling for extmordinary citcumstarices ia not

available when applying the District of Columbia’s statute of limitations.

> This Court has previously held that “District of Columbia law does not recognize an

equitable tolling exception to the statute of limitations.” Nattah v. Bush, 770 F. Supp. 2d 193, 208

(D.D.C, 2011) (quoting Johnson v. Marcheta Invs. Ltd. P’shp., 711 A.2d 109, 112 (D.C. 1998)).

The Court acknowledges—as Judge Oberdorfer previously did—that the language from the D.C.

Court of Appeals in Johnson explicitly rejecting equitable tolling is dicta. Nevertheless, the Court

concludes that this is an accurate statement of the law.

® The Court is cognizant that these claims were raised not only several years after the limitations period had passed

but also several additional years after the claims were identified in discovery. Nevertheless, if the requirements for

relation back are met, then relation back is mandatory and not subject to equitable considerations. See T Mobile Ne.

LLC v. City of Wilmington, Delaware, 913 F.3d 311, 327 (3d Cir. 2019). Equitable considerations are ordinarily

litigated when a plaintiff moves to file a supplemental pleading. See Hall v. CIA, 437 F.3d 94 (D.C. Cir. 2006).

‘ Defendants did not raise—and thus forfeited—any argument that the supplemental allegations were improper or

inequitable. See ECF No. 466-2. Cf Butler v. White, 67 F. Supp. 3d 59, 67-68 (D.D.C. 2014) (quoting /n re Vitamins

Antitrust Litig., 217 F.R.D. 30, 32 (D.D.C. 2003)) (“To demonstrate ‘prejudice sufficient to justify a denial of leave

to [supplement,] the opposing party must show that it was unfairly disadvantaged or deprived of the opportunity to

present facts or evidence which it would have offered had the [supplement] been timely.’” (emphasis added)).

20

In the District of Columbia, statutes of limitations are “strictly construed in accordance

with their terms.” Atiba v. Washington Hosp. Ctr., 43 A.3d 940, 941 (D.C. 2012). Moreover, the

District of Columbia is one of a minority of jurisdictions that does not have a general equitable

“saving” statute to toll statutes of limitations. East v. Graphic Arts Indus. Joint Pension Tr.,

718 A.2d 153, 156 (D.C. 1998). Thus, faced with requests to-toll the statute of limitations in cases

involving a plaintiff's good faith mistake of forum, the D.C. Court of Appeals rejected equitable

tolling—even when the purposes of the statute of limitations would not be served in the case at

issue. See Sayyad v. Fawzi, 674 A.2d 905, 905 (D.C. 1996). The D.C. Court of Appeals explained

that “[rJejection of the application of equitable tolling on a case-by-case basis . . . rests on the belief

that where the legislature has provided no savings statute, courts would exceed their prescribed

role by providing a remedy where the legislature has deernized that none should lie.” Id at 906.

Guided by this principle, the Court must then consider the two recognized, “limited

exceptions” to the District’s otherwise “strict” limitations statute—the lulling doctrine and the

discovery rule. East, 718 A.2d at 156-57. Under the lulling doctrine, “a defendant cannot assert

the bar of the statute of limitations, if it appears the defendant has done anything that would tend

to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run.”

id. (internal quotation marks and alterations in original omitted). And the discovery rule “is

designed to prevent the accrual of a cause of action before an individual can reasonably be expected

to discover that he has a basis for legal redress, [so] the statute should not commence until a

claimant knows, or through the exercise of due diligence, should know, that his injury resulted

from someone’s wrongdoing.” Bussineau v. President & Dirs. of Georgetown Coll.,

518 A.2d 423, 430 (D.C. 1986).

21

The issue that the Court must address is whether the principles underlying these exceptions

would permit recognizing equitable tolling for extraordinary circumstances. They do not. These

doctrines are distinct from.equitable tolling.'° “Equitable tolling” describes a doctrine that pauses,

or “tolls,” a statutory limitations period after it has commenced. See, e.g., Lozano v. Montoya

Alvarez, 572 U.S. 1, 10 (2014). But the discovery rule addresses a different issue—when the claim

accrues. in the first place. See Gabelli v. SE.C., 568 U.S. 442, 447 n.2 (2013); Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990) (“Equitable tolling is frequently confused

both with fraudulent concealment on the one hand and with the discovery rule—governing, as we

have seen, accrual—on the other.”); 4 Wright & Miller, Fed. Practice & Procedure § 1056 (4th

ed.) (“The often confusing distinction between accrual and tolling of statutes of limitations is at

play in thon cases discussing the discovery rule; the rule has been characterized nt pordomiing

both functions.”). Lulling is also distinct from equitable tolling because it does not prevent the

statute of limitations from running; it instead prevents the defendant from asserting a statute of

limitations defense. See East, 718 A.2d at 156; Hornblower v. George Washington Univ., 31 App.

D.C. 64, 75 (D.C. Cir. 1908) (“We think it is a well-settled principle that a defendant cannot avail

himself of the bar of the statute of limitations, if it appears that he has done anything that would

tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to

run against him.”). Both the D.C. Circuit and D.C. Court of Appeals have recognized that these

doctrines are distinct. See Jankovic v. Int'l Crisis Grp., 494 F.3d 1080, 1086-87 (D.C. Gir. 2007)

(applying D.C. law); Smith—-Haynie v. District of Columbia, 155 F.3d 575, 578-79 (D.C. Cir. 1998)

(explaining the “sometimes muddled” distinction between the discovery rule and the equitable

'° The Court recognizes the ambiguity surrounding this issue when there is language from both the D.C. Circuit and

D.C. Court of Appeals stating that these doctrines “toll” the statute of limitations. See Goldman v. Bequai,

19 F.3d 666, 672~76 (D.C. Cir. 1994); Peters v. Riggs Nat. Bank, N.A., 942 A.2d 1163, 1168 (D.C. 2008).

22

doctrines of estoppel and equitable tolling); East, 718 A.2d at 160 n.21; Jnterdonato v. Interdonato,

521 A.2d 1124, 1135 (D.C. 1987) (“The effect of such an estoppel is not necessarily to toll the

running of the statute.”). Accordingly—and despite any semantic ambiguities in the case law—

neither lulling nor the discovery rule support recognizing a form of equitable tolling that is absent

from the statute.

Finally, to. the extent that there is any ambiguity in D.C. caselaw, caselaw from the

Maryland Court of Appeals bolsters the Court’s conclusion. See Conesco Indus., Ltd. v. Conjforti

& Eisele, Inc., D.C., 627 F.2d 312, 316 (D.C. Cir. 1980) (“[T]he District of Columbia courts should

look to the law of Maryland for guidance before it looks to the law of other states.”); Bond v.

Serano, 566 A.2d 47, 53 (D.C. 1989) (Farrell, J., concurring) (“Maryland, like the District of

Columbia, is one of a reinmity of states lacking a ‘saving? statute.”). The Merylend Court of

Appeals has “long adhered to the principle that[,] where the [General Assembly] has not expressly

provided for an exception in a statute of limitations, the court will not allow any implied or

equitable exception to be engrafted upon it.” Ademiluyi v. Maryland State Bd. of Elections,

181 A.3d 716, 733 (Md. 2018) (citation omitted) (alterations in original); accord Walko Corp. v.

Burger Chef Sys., Inc., 378 A.2d 1100, 1102 (Md. 1977). The Court will adhere to that principle -

here.

The District of Columbia does not recognize an equitable tolling exception to its statute of

limitations for extraordinary circumstances: Without a recognized exception to the statute of ~

limitations, the intentional tort claims of John Doe II, John Doe IV, and Jane Doe VII are untimely.

So too are Jane Doe VII’s intentional tort claims stemming from-her husband’s 2003 abduction

and torture. The Court will GRANT defendants’ motion for summary judgment on these claims.

23

B. Causation

Defendants argue that the Court should grant summary judgment because “[p]laintiffs have

failed to produce evidence showing that [defendants caused their injuries.” Defs.” Mem: 12:

Despite some broad rhetoric in their filings, defendants’ causation arguments are quite

narrow. For example, while defendants state in passing that “EMOI had no legal authority to

exercise command or controLover the sovereign military of the Government of Indonesia,” Defs.’

Mem. 15, they do not return to this argument. That is not surprising, since Judge Oberdorfer

previously held (in this case) that “a reasonable finder of fact could conclude that a master-servant

relationship existed between EMOI and its paid. military security forces.” Doe,

573 F. Supp. 2d at27. Instead, defendarits’ overarching theory is that plaintiffs have failed to

show that the “particular soldiers who injured them were acting under direction or control of

EMOI” or were “protecting Arun Field.” Defs.? Mem. 15 (emphasis added),

Plaintiffs’ claims are governed by Indonesian law. Doe v. Exxon Mobil Corp., ~

654 F.3d 11, 70 (D.C. Cir. 2011) (“{W]e hold that Indonesian law applies to appellants’ non-

federal claims.”), vacated on other grounds 527 F. App’x 7 (D.C. Cir. 2013). The parties agree

that there are two available theories of liability under Indonesian law—direct liability and indirect

liability. Each theory has its own causation standard. Direct liability encompasses plaintiffs’

claims that defendants negligently hired, retained, and supervised members of the Indonesian

‘military acting as defendants’ security personnel. ‘Indirect liability encompasses plaintiffs’

intentional tort claims—like wrongful death, conversion, arbitrary arrest, false imprisonment,

assault, and battery—where plaintiffs seek to hold defendants vicariously liable for the actions of

the Indonesian soldiers who committed the wrongful acts.

24

The Court’s analysis below proceeds in several steps. First, the Court will set forth the

standard for establishing the law of a foreign jurisdiction. Next, the Court will outline the

requirements for direct liability claims, which are governed by Indonesian Civil Code Articles

1365 and 1366. Third, the Court will outline the requirements for indirect liability claims, which

are governed by Indonesian Civil Code Article 1367. Finally, the Court will address the claims of

each individual plaintiff in this case and apply the relevant causation standards to plaintiffs’ claims.

As the Court’s analysis demonstrates, while the legal standards for the direct and indirect liability

claims are distinct, the inquiries involve overlapping factual analyses because the Court must

determine whether there is sufficient proof of a connection between defendants and the soldiers

who harmed plaintiffs.

1. Standard for Determining Foreign Law

The Court’s review of foreign law is governed by Federal Rule of Civil Procedure 44.1.

‘Under Rule 44.1, the Court’s foreign law determination “may consider any relevant material or

source, . .. whether or not submitted by a party or admissible under the Federal Rules of Evidence.”

Fed.-R. Civ. P. 44.1. Ordinarily, foreign law is established through “written or oral expert

testimony accompanied by extracts from foreign legal material.” Ganem v. Heckler, 746 F.2d 844,

854 (D.C. Cir. 1984). This expert testimony is “intended to aid the court in determining the content

of the law, not in applying that law to the facts of the case.” Est. of Botvin ex rel. Ellis v. Islamic

Republic of Iran, 772 F. Supp. 2d 218, 227-28 (D.D.C. 2011).

But a court need not uncritically accept this expert testimony: “Rule 44.1 frees courts ‘to

reexamine and amplify material . . . presented by counsel in partisan fashion or in insufficient

detail.’” Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1873 (2018)

(quoting Fed. R. Civ. P. 44.2, Advisory Committee’s Note 1966). Indeed, the court may “reject

25

even uncontradicted expert-testimony” in its inquiry. Est. of Botvin, 772 F. Supp. 2d at 228

(quoting Rutgerswerke AG v. Abex Corp., 2002 WL 1203836, at *16 (S.D.N.Y. June 4, 2002)).

And despite the Court’s authority to conduct independent research into-foreign law, if “the parties

fail to provide an adequate statement of the law, the court is not obligated to independently remedy

the deficiency.” Doe, 69 F. Supp. 3d at 105 (quoting Est. of Botvin, 772 F. Supp. 2d at 228).

2. Direct Liability for Negligence under_Articles 1365 and 1366 mrt

The first set of plaintiffs’ claims is premised on a direct liability theory. In these claims,

plaintiffs allege that defendants’ negligent hiring, retention, and supervision caused plaintiffs’

injuries. See, e.g., 2nd Am: Compl. J§ 212-35.

Two provisions of the Indonesian Civil Code govern the direct liability claims. The first,

Article 1365, states that “[a] person who causes loss to another person by means of an unlawful

act . . . must, because of his or her fault in causing the loss, compensate for that loss.” Timothy

Lindsey July 29, 2021 Decl. (“Lindsey Decl.”) 4 7, ECF No. 819-4 (first alteration in original).

The second provision, Article 1366 of the Indonesian Civil Code, states that “[e]very person is

responsible not only for the loss they cause because of their acts, but also for the loss caused

because of omissions or lack of care.” Id. § 8. Broadly speaking, a direct liability claim under

these provisions of Indonesian law requires proof of (1) wrongful behavior, (2) fault, (3) loss, and

(4) causation. See, e.g., Robert N. Homick Decl. (“Hornick Decl.”) | 14, ECF No. 127 (also filed

as DX-13).

Three of these four elements—wrongful behavior, fault, and loss—are not at issue at this

stage. Despite some disagreement among the parties’ experts about what might constitute an

“unlawful act,” see Pls.’ Opp’n 11-12, for purposes of their summary judgment motion, defendants

do not dispute that they committed an unlawful act. Nor do they dispute that they behaved

26

negligently and would be at fault. Accordingly, for purposes of deciding defendants’ motion, the

Court will assume that defendants negligently hired, retained, and supervised members of the

Indonesian military. This is a sufficient “unlawful” or “wrongful” act to prove a claim under

Indonesia law. See, e.g., PX-1, Gary F. Bell Decl. (“Bell Decl.”) 4 11. Finally, plaintiffs have

suffered cognizable losses under Indonesian law. See infra Sec.IV.D.

.The Court turns then to causation. Causation has received “relatively limited scholarly and

judicial attention in Indonesia.” Lindsey Decl. § 20-23; see PX-2, Mark Cammack Decl. §] 22

(agreeing with Professor Lindsey’s assessment). Defendants’ current expert, Professor Lindsey,

represents that scholars and the judiciary in Indonesia commonly use the following formulation

for causation:

in essence, the causal connecting between the unlawful act and the

loss is encapsulated in the “factual connection” theory and the

“approximate cause” theory. The factual causal connection

(causation in fact) is an issue of fact, or what factually occurred.

Timothy Lindsey October 13, 2021 Suppl. Decl. (“Lindsey Suppl. Decl.”) 58, ECF No. 832-4.

Defendants’ prior expert, Mr. Hornick, provided a similar formulation: “the injury must be both

foreseeable and a direct, rather than indirect, consequence of the misbehavior. Foreseeability

refers to scope of injury as well as possibility.” Homick Decl. { 14(d). Plaintiffs’ expert, Professor

Mark Cammack, agrees that Article 1365 permits recovery for losses that are foreseeable. PX-2,

Cammack Decl. § 22. After reviewing the Indonesian law, as aided by the parties’ filings and

expert declarations, the Coinage that causation under Indonesian law requires proof of (1)

factual causation and (2) foreseeability. .

Beyond this bare-bones framework, the parties and their experts disagree on most aspects

of the causation standard for direct liability claims. For example, the parties’ experts dispute

whether a defendant’s wrongdoing must be a “clear or direct” cause of the loss or whether the loss

27

must be sufficiently “likely” to occur from the defendant’s action. See, e.g., PX-2, Cammack Decl.

7 24-26. These disputes have no impact on the present motion. As defendants recognize, see

Defs.’ Mot. 16-17, in 2008, Judge Oberdorfer rejected defendants’ motion for summary judgment

on the issue of whether defendants knew of and proximately cause plaintiffs’ injuries. Doe,

573 F. Supp. 2d at 26-29. -Judge Oberdorfer concluded that “the military security forces were

engaged to perform armed security for EMOJ, and: unauthorized acts of violence . were

foreseeable.” Id. at 27.'' The Court sees no reason to reconsider Judge Oberdorfer’s factual

determinations and defendants provide none. See Singh vy. George Washington Univ.,

383 F. Supp. 2d 99, 101 (D.D.C. 2005).

Nevertheless, Judge Oberdorfer’s analysis assumed that it was the soldiers connected to

deteadante—or “EMOI’s paid fanilitary} security forces” —that harmed plaintiffs when analyzing

Exxon’s and EMOI’s liability. Doe, 573 F. Supp. 2d at 23-29. That assumption ams based on

“limited discovery” and the allegations in plaintiffs’ complaint. Id. at 23.'2 Now that the record

has been cite, defendants are correct that the Court must consider only competent evidence.

Thus, the relevant issue for the direct liability claims—and the focus of the Court’s analysis—is

whether there is sufficient evidence from which a reasonable jury could conclude that the soldiers

who caused plaintiffs’ injuries are the same soldiers that defendants negligently hired, retained, or

supervised. Without this evidence, plaintiffs cannot prove causation.

" Accordingly, whether the soldiers who injured plaintiffs “did so in the course of protecting Arun Field” or “acted

under the control and supervision of [dJefendants,” Defs.’ Mem. 12, are entirely irrelevant to plaintiffs’ direct liability

claims. In other words, defendants’ negligence could lead to a’ foreseeable injury from their military security even if

the soldier at issue was not engaged in his security functions for defendants at the moment the plaintiff was injured.

'2 Judge Oberdorfer’s opinion explained that the discovery prior to this round of summary judgment briefing was

limited to only two issues: “(1) personal jurisdiction over EMO]; and (2) the Exxon Defendants’ knowledge of, and

proximate cause of, Plaintiffs’ alleged injuries.” Doe, 573 F. Supp. 2d at 22; see ECF Nos. 138 & 158.

28

-3. Indirect Liability Claims under Article 1367

‘The second category of plaintiffs’ claims is based on a theory of indirect liability. In these

claims, plaintiffs seek to hold defendants vicariously liable for the intentional torts—like wrongful

death, conversion, arbitrary arrest, false imprisonment, assault, and battery—committed by

members of the Indonesian military engaged by defendants.

Plaintiffs’ indirect liability claims are governed by Article 1367 of the Indonesian Civil

Code. This Court previously addressed Article 1367’s legal standard. Article 1367 provides that

a “party may be liable for the actions of persons over which he has responsibility.” Doe v. Exxon

Mobil Corp., 69 F. Supp. 3d at 103; see Lindsey Decl. § 35; Hornick Decl. § 32. And subsection

3 of Article 1367 specifically provides for liability when there is an employer-employee

relationship: “Employers and those appointed to represent the affairs of others shall be responsible

for damage caused by the acts of their employees and subordinates in performing the work for

which they are engaged. There is no requirement of fault on the part of the employer or principal—

liability may be vicarious.” Doe, 69 F. Supp. 3d at 103 (internal citations and quotation marks

omitted).

. As this Court previously explained, vicarious liability under Article 1367 requires proof of

two elements. First, plaintiffs must demonstrate a principal-agent or employment relationship—

that is: (1) that the perpetrator was an employee of the defendant, (2) that the defendant could

instruct the perpetrator to carry out work and give instructions as to how that work was to be carried

out, or (3) the perpetrator was appointed, either formally or informally, by the defendant to

represent the business of the defendant to third parties. Lindsey Decl. | 36; see Doe,

69 F. Supp. 3d at 103-04. -Second, plaintiffs must show that the act was committed “in the course

29

of performing the employment or representation.” Doe, 69 F. Supp. 3d at 103 (citation omitted);

see PX-1, Bell Decl. ¥ 25.

Defendants now contend that to establish a principal-agent or employment relationship, the

plaintiff must identify “the specific perpetrator of the offense.” Defs.’ Mem. 15; see Lindsey Decl.

{ 37 (arguing that “the identity of both the perpetrator and defendant [must] be known and proven”

because the “work relationship cannot be-established” without knowing their respective identities).

The Court is not persuaded. First, defendant’s expert cites no authority for this proposed “implicit”

requirement. Lindsey Decl. § 37. Second, the proposed rule is based on a false premise. While

identity may be critical in some cases to establishing a work relationship, circumstantial evidence

may nevertheless sufficiently demonstrate that such a relationship existed.'* Imagine that a

plaintiff altives at a pizza restaurant and overhears the manager tell another individual to deliver a

pizza to a customer. As the plaintiff is leaving the restaurant, he is hit by that individual, who is

driving a restaurant vehicle, wearing restaurant clothes, and carrying the pizza with the customer’s

name on the box. It is preposterous to suggest that, in this example, there is no proof that “the

defendant could instruct the perpetrator to carry out work and give instructions as to how that work

was to be carried out,” Lindsey Decl. § 36, simply because the identity of the driver is unknown.

The Court rejects defendants’ proposed “identification” requirement.'*

3 Indeed, in other contexts, American courts have recognized an agency relationship may be “sufficiently established

without identifying the employee,” based on circumstantial evidence. Pappus v. Middle Earth Condo. Ass'n,

963 F.2d 534, 538 (2d Cir. 1992); see Davis v. Mobil Oil Expl. & Producing Se., Inc., 864 F.2d 1171, 1174 (Sth Cir.

1989) (“Davis testified that the man who issued the unsafe order was wearing a Mobil hard hat.”).

4 Moreover, whether there is sufficient evidence for a reasonable jury to find that the required principal-agent or

employment relationship existed is governed by Rule 56, not Indonesian law, See, e.g., Shady Grove Orthopedic

Assoes., P.A. v. Allstate Ins, Co., 559 U.S. 393, 398 (2010) (explaining that when a federal rule “answers the question

in dispute,” “it governs,” notwithstanding a state’s conflicting law, if the federal rule does not exceed Congress’s

rulemaking power); 10A Wright & Miller, Federal Practice & Procedure § 2712 (4th ed.) (collecting cases); of Carson

v. ALL Erection & Crane Rental Corp., 81) F.3d 993, 998 (7th Cir. 2016) (“Federal courts may grant summary

judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion,

even if the state would require the judge to submit an identical case to the jury.”). As explained above, a reasonable

jury could rely on circumstantial evidence to find that an employment relationship existed.

30

The Court turns then to Article 1367’s second requirement: that the act was committed “in

the course of performing the employment or representation.” Doe, 69 F. Supp. 3d at 103 (citation

omitted). The parties and their experts previously disputed the scope of this element, but the Court

ultimately concluded that “Indonesian case law . . . indicates a rather expansive interpretation of

Article 1367.” Id. at 104. The Court adopted the characterization provided by defendants’ prior

expert that Article 1367 requires only a “functional connection between the wrongful act and the

work that the employee/representative is being directed to perform.” Jd. at 103. Under this

“functional connection” standard, employers can be liable for damages caused by employees “in

performing their duties, even if the employees acted without the authorization or against the order

of employers.” Jd. at 103-04.

While defendants suggest that vicarious liability in this case requires poont that the soldiers

who committed wrongdoing “did so in the course of protecting Arun Field facilities,” Defs.’ Mem.

12, 17, the “functional connection” standard is not so narrow. The Court did explicitly recognize

that a “functional connection” exists when a plaintiff's injuries were “caused by Exxon personnel

stationed at Exxon security checkpoints.” Doe, 69 F. Supp. 3d at 104. But the Court also

recognized that a “functional connection” exists when the plaintiff's injuries were caused by

security personnel “using [defendants’] equipment” or “on [defendants’] property, even when

those security personnel were off duty.” /d. Similarly, a soldier’s proximity to Arun Field facilities

when they committed wrongdoing cannot be dispositive. Instead, if there is evidence that the

soldiers were “performing their duties” —that is, the tasks that they were instructed or otherwise

expected to complete in order to secure defendants’ operations—a “functional connection” is

present, even when the events took place away from defendants’ facilities. Id; see PX-1, Bell

Decl. § 25.

3]

Even though the Court’s rationale was based in part on expert testimony provided by

defendants, they propose a brand-new standard in their motion for summary judgment. They

contend that a plaintiff must show “what, specifically, the defendant did to cause the perpetrator

to engage in the alleged conduct.” Defs.’ Mem. 15; see Lindsey Decl. | 38. The Court rejects

defendants’ eleventh-hour suggestion to adopt a new legal standard for plaintiffs’ indirect liability

claims. . ‘The Court previously concluded that “employers can be liable for the acts of employees

even when committed without authorization or against orders” Doe, 69 F. Supp. 3d at 103-04,

And Article 1367 has “no requirement of fault on the part of the employer or principal—tiability

may be vicarious.” Jd. at 103 (citation omitted).'° “{Wyjhere litigants have once battled for the

court’s decision, they should neither be required, nor without good reason permitted, to battle for

it again.” Singh, 383 Fr. Supp. 2d at 101. Defendants provide no good reason to reconsider the

Court’s prior statement of Indonesian law. After reviewing the parties’ experts’ declarations,

scholarly materials, and examples from Indonesian case law, the Court will adhere to the

“functional connection” standard set forth in its prior opinion. See LaShawn A. v. Barry,

87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (“[T]he same issue presented a second time in the

same case in the same court should lead.to the same result.”).

Thus, to prove causation under Article 1367, plaintiffs must establish (1) an employment

or agency relationship between the soldier who committed the wrongdoing and defendants and (2)

that there is a “functional connection” between the wrongful act and the work the soldier was

directed to perform.

15 Plaintiffs’ expert also attests that Professor Lindsey’s characterization is “completely and absolutely inaccurate and

is 4 misrepresentation of the state of the law under Article 1367.” PX-1, Bell Decl. ¢ 23.

32

4. Applying These Causation Standards To Plaintiffs’ Claims

To summarize, the overarching issue before the Court when addressing defendants’

causation arguments is whether there is sufficient proof of a connection between defendants and

the soldiers who harmed plaintiffs. For the direct liability claims, there must be sufficient evidence

from which a reasonable jury-could conclude that the soldiers who harmed plaintiffs were the same

ones that defendants negligently hired, retained, or supervised. For the indirect liability claims,

there must be sufficient evidence from which a reasonable jury could conclude that (1) “an

employment or representation relationship” existed between the soldier and defendants (or that the

soldier was in fact assigned to guard defendants’ operations), and (2) that there is a “functional

connection” between the soldier’s wrongful act and the work that they were directed to perform.

With these principles in mind, the Court turns to the plaintiffs’ cloiew

(i) Jane Doe I

Jane Doe | alleges that [is who

also forced her to jump up and down repeatedly while she was eight months’ pregnant. CSMF

99314, 315; PX-19, Jane Doe I Dep. 49:1—9, 83:8-9. She brings claims for assault, battery,

negligence, negligent hiring, and negligent supervision. See 2nd Am. Compl. f§{ 199-207.

Defendants contend that she cannot “connect{] her assault to [dJefendants in any way.” Defs.’

Mem. 17-18. The Court is not persuaded.

To link the soldier who committed the-assault to defendants, plaintiffs rely on the soldier’s

uniform and vehicle. Jane Doe I testified that the soldier’s uniform had a Unit 113 shoulder badge.

PX-19, Jane Doe I Dep. 63:14—-19, 94:11-19. The soldier arrived and departed in a truck with a

logo for Unit 1 13 on the side and with distinctive red stickers spelling out “god is great” in Arabic

in the middle of the windshield. See PX-29, JJ Dep. 9:7—12 (testimony of third-party witness

33

who witnessed the soldier arrive and depart in a truck with Unit 113 logo and red stickers), 14:5—

11, 15:2-16:8, 56:6-12, 68 :12-69:13. Plaintiffs proffer testimony that this truck was unique—an

‘eyewitness who waited daily for the school bus near the front of Point A (a defendant-operated

facility) testified that she often saw the same truck enter and exit Point A. See, e.g. CSMF ¥ 318;

PX-29, HEM Dep. 9:17—-12:13, 20:9-20. The witness testified that while she saw many trucks

on the road, no other truck had_this red sticker in.the middle of the windshield. /@. at 13:17-21.

Plaintiffs begin by arguing that Unit 113 is connected to defendants. They cite internal

communications reflecting that “Battalion 113” deployed to provide security services for

defendants. See, e.g, PX-83, PX-82. Defendants provided this unit with supplies and vehicles.

PX-82 at CA0001334075 (discussing supplying Unit 113: with vehicles and fuel for deployment

and “ccefanmntity relations”); PX-85 at CA0001 182157. Local wewupapet articles—produced from

Exxon’s files—reported that Battalion 113 was stationed at or near various locations operated by

defendants, such as a Cluster and the EMOF airport. See PX-75; PX-84. Defendants dispute

whether Battalion and Unit 113 refer to the same thing. See, e.g., Defs.” Reply 9-10. This is not

a great inferential leap—a jury could easily infer that Battalion 113 is Unit 113. Next, they fault

plaintiffs for failing to provide proof of a Battalion’s size—contending that potentially ninety

percent of Battalion 113 could be assigned somewhere other than Point A. Jd. Even accepting

that a Battalion’s size could exceed the number of soldiers guarding Point A, the Court would not

view this evidence in isolation. If there is evidence to support the notion that members of Battalion _

113 were specifically deployed to provide security for defendants, that also supports the inference

‘that the soldiers in question here—who were members of Battalion 113—provided security for

defendants.

34

In any event, the Court must also consider the inferences that a reasonable jury could draw

from this specific truck routinely entering and exiting Point A. There is sufficient evidence from

which. a jury could find that Point A was operated by defendants at the time Jane Doe I was

assaulted. PX-1.07 at CA0001007937; PX-108, Defs.’ Responses & Objections to Pls.’ Jan. 2016

Requests for Admissions to All Defs.’ Nos. 94 & 95; PX-18, Duffin Dep. 17:19-18:3. Moreover,

there is sufficient evidence that defendants actively monitored the military resources that were.

stationed at Point A at that time. See, e.g., PX-62; PX-370.

Finally, the Court must consider the inferences that a reasonable jury could draw from the

broader factual context. Around this point in time, approximately 20 percent of the soldiers in the

tegion were providing security services for defendants. See PX-328 at CA0001006166. There is

evidence in the record that soldiers ensocidind with Aafendeuts” facilities worked exthadvdy at

defendants’ operations. See PX-73 at CA0001003151; PX-65 at CA0001174659. Soldiers

guarding defendants’ operations were required to provide “area protection” in addition to point

protection. See, e.g., PX-353 at CA000133427. This included engaging in patrols and sweeps of

the areas surrounding defendants’ facilities, including the villages. See, e.g., CSMF 4 292, 294.

And’ defendants’ military security also investigated violence occurring nearby to defendants’

facilities and reported this information to defendants. CSMF J 241, 296. Jane Doe I’s village

was close to both Point A and Cluster 2 (another defendant-operated location where the military

was stationed). See, e.g., CSMF J 323-26.

Direct Liability Claims. Construing the record in the light most favorable to plaintiffs, a

reasonable jury could conclude that the soldier was one who was tasked -with providing security

for defendants. This is a reasonable inference. because he: (1) belonged to a unit with known ties .

to defendants, (2) was engaged in the type of activity that defendants’ military security provided,

35

(3) was driving in a vehicle routinely observed at defendants’ facilities where the military provided

security, and (4) committed the acts nearby defendants’ facilities, (5) at a time when a significant

number of military personnel in the region were affiliated exclusively with defendants. Jane Doe

I has provided sufficient evidence of causation for her direct liability claims.

_ Indirect Liability Claims. For the same reasons, a reasonable jury could conclude that there

was an employment relationship between the soldier_and defendants. The Court also concludes

that there is sufficient evidence of a “functional connection” between the soldier’s acts and his

employment relationship with defendants. Defendants’ military security was tasked with

providing “area protection”—which included investigating and reporting threats.. See CSMF

{ 328; PX-97. In fact, defendants’ own security procedure documents from early-2001 reflect that

the military security at Point A would “primarily deploy ‘outside the wire,’” “eanploy a pursuit

capability to increase the likelihood of apprehension” of “armed criminal elements,” and provide

“reconnaissance” and “intelligence support to EMOI security.” ~PX-214.at CA0001005149

(emphasis added). Here, the record reflects that gunfire and a bombing were reported at Jane Doe

I’s village that morning, which was only a kilometer from defendants’ facilities at Point A. See,

e.g., PX-19, Jane Doe I Dep. 53:12—14; PX-371.'© Drawing all reasonable inferences in Jane Doe

I’s favor, a reasonable jury could conclude that the soldiers assigned to Point A arrived to

investigate as part of their assigned duties. Indeed, Jane Doe I testified that the soldiers in the

village asked questions“about GAM and recent violence, and they were spread out. among the

village. See, e.g., CSMF 9329-330. Because a reasonable jury could conclude that the soldiers—

including the soldier who assaulted her—were investigating violence in order to protect

16 The Court will take judicial notice of this map. See Fed. R. Evid. 201(b); Burroughs, 810 F.3d 833, 835 n.1 (D.C.

Cir. 2016).

36

defendants’ operations, there is a functional connection between the soldier’s wrongdoing and his

employment relationship with defendants: There is sufficient evidence of causation for Jane Doe

I’s indirect liability claims. .

(ii) Jane Doe H

Jane Doe II alleges that around 11 A.M. on December 4, 2000, her husband, John Doe VIII,

was working in his rice paddies near their home when he was.shot and killed by “members of

ExxonMobil’s security personnel.” 2nd Am. Compl. § 184; see CSMF J 48, 334-55. Jane Doe

II witnessed the soldiers in her village, heard the gunshots, and saw an unspecified male in the rice

paddy outside shot by a soldier. See PX-374; Jane Doe II’s Suppl. Resp. to Exxon Mobil Oil

Corp.’s First Set of Interrogatories at 8; PX-20, Jane Doe II Dep. 65:16—17, 66:2—25. She brings

eidinan for John Doe VIII's ‘verongftil death, as well sas for negligence, negligent hiring, and

negligent supervision. 2nd Am. Compl. {J 193-98, 212-35. Defendants argue that there “is no

evidence” connecting the shooting to defendants. Defs.’ Mem. 18. They are wrong.

Jane Doe II testified in her deposition that “Exxon soldiers” murdered her husband. See,

e.g., PX-20, Jane Doe II Dep. 37:6-9. Jane Doe II linked the soldiers to defendants through their

vehicles—she testified that she recognized the soldiers’ trucks from Cluster 4, which was three to

four kilometers from her home.!’ See, e.g, CSMF ff 338, 350; PX-20, Jane Doe II Dep. 41:25-

42:9, 45:17-22, 46:2—6. And Jane Doe II is not the only witness to link the soldiers in the village

on December 4, 2000, to Cluster 4 (and defendants) through the soldiers’ vehicles. *

The chief of Jane Doe II’s village testified that on the morning of December 4, 2000, around

7:30 or 8 A.M., he witnessed the group of military trucks and other vehicles with soldiers arrive at

‘7 There is some ambiguity in the deposition as to whether Jane Doe II recognized a particular truck or trucks despite

the translator consistently using the singular “truck.” In their Counterstatement of Material Facts, plaintiffs say that

Jane Doe II recognized the trucks from Cluster 4. The Court thinks this is a reasonable inference given Jane Doe II’s

(or the translator’s) usage of the singular “truck” elsewhere in the deposition, See Jane Doe II Dep. 51:2-52:8.

37

the village from the direction of Cluster 4. CMSF §] 342; see PX-375 (map showing Jane Doe II’s

village, Jane Doe IV’s village, and Cluster 4).!® Like Jane Doe II, the village chief also recognized

these trucks because they were routinely parked at Cluster 4, both before and after the shooting.

CSME § 342; see PX-30, RRB Dep. 13:6-15:3; 15:9-12 (“I do not know who owns the

military trucks, but what I know was that those military trucks were within the field of Exxon’s,

Cluster 4”); 66:7-10; 70:18 22. These vehicles then headed south. PX-30, SM Dep.

12:24-13:5. Around 11:00 A.M. (when John Doe VIII was shot), the village chief witnessed the

same vehicles retuming from the south. See CMSF 4 342; PX-30, SED ep. 59:8 15. He

then heard several gunshots. PX-30, FD ep. 59:8 15. Immediately after the shooting, a

villager came to the village chief's house and reported that she had witnessed the soldiers shoot

John Doe VII. CSMF 346; see PX-30, SEED ep. 189-12."

Defendants characterize the connection between defendants and the soldiers’ trucks as

“absurd.” Defs.” Mem. 18. Not so.“First, a reasonable jury could rely-on the factual link between

defendants and a soldier’s affiliation with Cluster 4. At the time John Doe VIII was killed,

defendants operated Cluster 4, which was nearby Jane Doe II’s village. See RCSMF ff] 350-51;

Px-30, i Dep. 28:19-29:16; PX-292 (map showing the village and Cluster 4).”° Internal

documents from defendants reflect that they monitored the number of military resources stationed

there when John Doe VIII was killed. See PX-314 at CA0001005970.001; PX-376 at

CA0001005973. By December 2000, the number of soldiers assigned to defendants’ Arun Field

facilities was substantial nearly 1,000 military personnel, making up roughly twenty percent of

'® The Court will take judicial notice of this map. See Fed. R. Evid. 201(b); Burroughs, 810 F.3d at 835-n,1.

'9 The village chief testified that the villager had witnessed the shooting with “her own eyes” so she was “very upset

and scared” and repeated herself several times. CSMF ¥ 346.

20 The Court will take judicial notice of this map. See Fed. R. Evid. 201(b); Burroughs, 810 F.3d at 835 n.1.

38

all soldiers in the region. See, e g., PX-317 at CA0001333839 (“We now have 1000 troops, with

approximately 70 percent inside the wire and 30 percent in the jungle, where they moved only

after we built them accommodations.”); PX-31 at CA0001005971 (reflecting 128 soldiers at

Clusters 1 through 4 in November 2000); PX-328 at CA0001006166. A reasonable factfinder

could connect soldiers affiliated with Cluster 4 on December 4, 2000, to defendants.

Next, if-crediting the witnesses’ testimony that the trucks used by the soldiers that killed

John Doe VIII were regularly stationed at Cluster 4, then a reasonable jury could draw the

inference that the soldiers using these trucks were also connected to the operation of defendants’

facilities there. The record provides additional support for this inference. For example, the record

reflects that defendants not only supplied the military with equipment—like vehicles—but that

defendants did so with the understanding that this equipment would be wed to “provide security .

for Mobil’s Aceh operations.” PX-73 at CA0001003150 (letter from EMOI Executive to

Pertamina); see PX-308 at CA0001334116 (“The only ‘things’ that the military provides nowadays

are bodies in uniform and their weapons and ammo! Anything else [has] to come from us.”);

PX-3, Robinson Report 18-19 (listing materials that the military requested from Exxon in June

2000). And a reasonable jury could also find that defendants retained some control over the

equipment that they furnished to the Indonesian military providing security. See, e.g., PX-8, EMOI

30(b)(6) Snell Dep. 811:14-24; CSMF § 249. Even for those vehicles that defendants did not

provide to the military, they nevertheless provided’ fuel and “reasonable support for

maintenance/repair of military vehicles dedicated to Mobil’s Aceh operations.” PX-252 at

CA0001046567 (letter from Wilson to President Director CEO of Pertamina). In other words,

there .is more than enough evidence to support the inference that a vehicle’s recurring usage at

defendants’ facilities is indicative of some connection to those facilities.

39

A reasonable jury could also consider the types of security services provided by the military

protecting Arun Field, which extended beyond the Arun Field facilities themselves. As previously

discussed, the military provided escorts, established security posts and employed roving patrols

along the roads, and conducted “sweeping” operations. See infra Sec. I1.A.3, There is evidence

in the record that these “sweeps” were conducted in the neighboring villages and were sometimes

conducted at defendants’ request. See CSMF J 289, 291, 292, 294. Thus, when construing the _.

record in the light most favorable to plaintiffs, the fact that John Doe VIII’s shooting occurred

away from Cluster 4 is of no moment. A reasonable jury could conclude that “area protection”

and “protective sweeps” of nearby local villages were part and parcel of the security services

provided by soldiers guarding Arun Field.

Finally, a renscnable jury could diese inferences in favor of Jane Doe II’s claim from the

evidence supporting Jane Doe IV’s claim. See infra Sec.IV.B.4.iv. Jane Doe IV’s husband was

also killed on the morning of December 4, 2000, and her village was along the same road. between

Jane Doe II’s village and Cluster 4. See PX-375. Jane Doe IV testified that she recognized the

trucks that arrived in her village from Cluster 4, and her son and neighbor testified that they

recognized the soldiers arriving in these trucks (and who killed Jane Doe IV’s husband) because

these soldiers were assigned to guard Cluster 4. See infra Sec.IV.B.4.iv. This evidence also

supports Jane Doe II’s claim,

DirectLiability Claims. Viewing the record in the light most favorable to plaintiffs, a

reasonable jury could conclude that the soldiers who killed Jane Doe II’s husband were the same

soldiers that defendants negligently hired and supervised. The record supports the inference that

the soldiers who committed the killing provided security for Cluster 4. Accordingly, a reasonable

40

jury could find that defendants-caused Jane Doe II’s injuries in the context of her direct liability

claims.

Indirect Liability Claims. A reasonable jury could also find that defendants are vicariously

liable for the murder of Jane Doe II’s husband. First, for the same reasons set forth above, a

reasonable jury could find that there is an employment relationship between defendants and the

soldier who committed the shooting because of his ties to Cluster 4. Second, a reasonable jury

could find that there is a “functional connection” between the shooting and guarding defendants’

operations. The Court’s conclusion here warrants additional discussion. Plaintiffs contend that

the killing occurred “within-the Arun gas field area.” Pls.” Opp’n 35. The Court is skeptical of

this argument because the-shooting took place outside of Cluster 4—where the soldiers appear to

have been assigned.

Nevertheless, the Court finds that a reasonable jury could find a “functional connection”

between John‘Doe VIII’s shooting and the protection of Arun Field-because it is reasonable to

infer that the soldier killed John Doe VIII “in the course of performing his duties.” See Doe,

69 F. Supp. 3d at 103. The Court has already explained that “area protection” and “protective

sweeps” were part and parcel of the security services provided by soldiers guarding ‘Arun Field.

See supra Sec.I1.A.3. So were the soldiers who arrived in the village providing “area protection”

for defendants? A reasonable jury could conclude as such. December 4 was a day of symbolic

importance for the Aceh independence movement—and Cluster 4 had been a previous target on

this day. CSMF 4 354. Witnesses testified about GAM’s flag ceremonies and the military’s efforts

-to stop GAM from flying-the Acehnese flag. See, e.g., PX-32, J Dep. 34:14-23; PX-22, Jane

Doe IV Dep. 58:8-60:4. Defendants’ internal documents chronicled activists climbing over the

Cluster 4 fence in 1999 and raising the Aceh flag in the Cluster—before the military took the flags

41

down. CSMF ¥ 354. At bottom, there is not only support for the proposition that violence was ~

foreseeable on December 4, 2000, but there is also support for the notion that the military in the

area proactively sought out GAM members that day. See, e.g., PX-377 (describing.defendants’

diminished operating capacity on December 4, 2000, due to violence); PX-378. If Cluster 4 was a

previous target for activists, it is not surprising that the soldiers assigned to guard Cluster 4 would

be engaged in proactive sweeps. A reasonable jury could infer that.the proactive sweeps of nearby

villages—including Jane Doe II’s village—were functionally connected to protecting Arun Field.

Accordingly, there is sufficient evidence of causation for Jane Doe II’s indirect liability claims.

(iii) Jane Doe IIT

Jane Doe III alleges that on September 17; 2000, “members of ExxonMobil’s security

personne!” killed and “disappeared” her husband, John Doe IX. 2nd Am. Compl. 4] 193-98, 212-

35; see CSMF 4 358, 360. She brings claims for wrongful death, negligence, negligent hiring,

and negligent supervision, 2nd Am. Compl. ff 193-98, 212-35. Defendants contend Jane Doe

Ill “has no evidence” of which soldiers abducted her husband, “where they took him, what their

assignment was, the identity of their commander, or who was directing their activities.” Defs.’

Mem. 19. That is incorrect.

John Doe IX was a traveling fish merchant who regularly stopped at the market in the

village of Paya Brandang, where Exxon’s Bachelor Camp was located. RCSMF {] 368. Bachelor

Camp was operated and managed by defendants. See, e.g., CSMF {ff 281, 371; PX-18, Duffin

Dep. 18:19-19:1 (explaining that Bachelor Camp was used by EMOI to house employees); PX-89

at CA0001147209 (listing Bachelor Camp among properties that “Mobil manages”). Members of

the Indonesian military were tasked with guarding and providing security at Bachelor Camp and.

would often eat meals there. See, e.g., CSMF § 63; PX-91 at CA0001005933 (Daily Security

42

‘Report for September 13-14, 2000 listing 70 soldiers at Bachelor Camp); PX-92 at

CA0001005939 (Daily Security Report for September 22-26, 2000 listing 70 soldiers at Bachelor

Camp); PX-31, (J Dep: 18:24-19:15; see also PX-54 at CA0001047716-17 (email from

defendants’ manager “revis{ing] the deployment logistics of the new military resources” for

Bachelor Camp in December 2000).

~ On the day of John Doe [X’s disappearance, one eyewitness, EJ was working in his

small kiosk near the Bachelor Camp facilities. See PX-31, (J Dep. 11:16-23, 22:6-9. A

truck transporting ten to twelve marine corpsmen was passing by Bachelor Camp, when its tire

exploded, causing the truck to fall into a roadside ditch. See CSMF { 360, PX-31, SJ Dep.

22:10-18, 32:4-23. J then heard gunshots from the soldiers inside Bachelor Camp, who

apparently believed that the truck was under attack. PX-3 1, f lipR Dep. 22:19-23.,

Thirty to forty soldiers exited Bachelor Camp. SMF § 59; CSMF fj 365-66.

testified that these soldiers were the same ones that he recognized to be tasked with guarding

defendants’ facilities at Bachelor Camp. CSMF 365; see PX-31, J Dep. 12:14~14:21;

17:5-22; 18:24-20:12; 23:9-15. These soldiers gathered the local men—including {iij—and

interrogated and beat them. See, e.g., CSMF { 367; PX-31, (J Dep. 24:20-25:5.7!

The primary dispute among the parties is whether a reasonable jury could find that the so-

called “Bachelor Camp” soldiers were the same ones that killed and “disappeared” John Doe IX.

See Defs.’ Mem. 20 n.13. [I testified that-after he was beaten for more than fifteen minutes,

he was taken by the soldiers to another nearby location where he witnessed John Doe IX lying

21 While Exxon spurs the characterization “Bachelor Camp soldiers,” see, e.g., RCSMF § 367; Dets. Reply 7-10, the

characterization makes sense when the witness is testifying that the soldiers who committed these beatings were the

same soldiers that he recognized because they regularly guarded Bachelor Camp. Considering! background

as a former-Exxon employee who spent time at Bachelor Camp, CSMF { 361; sec [J Dep. 43:22-44:6; and the

proximity of his kiosk, the inference that “Bachelor Camp soldiers” refers to those who were guarding the facilities is

a reasonable one.

43

motionless on the ground with five other individuals. See CSMF § 360; PX-31, Dep.

27:22-30:3. At this point, he testified that the group of soldiers present and standing nearby was

“mixed” between the Bachelor Camp soldiers and the marine corpsmen from the disabled vehicle:

See PX-31, (J Dep. 29:11-22; 33:13-19. He then witnessed military trucks arrive and

unspecified soldiers load John Doe IX onto a truck. See PX-31, ep. 30:5-23.”

Direct Liability Claims. A reasonable jury could find that the soldiers who killed John Doe

IX were the same soldiers assigned to guard Bachelor Camp. The Court must construe all facts in

the light most favorable to plaintiffs, Here, it was the Bachelor Camp soldiers who (1) began

shooting from within the camp in response to a perceived threat; (2) exited the facility and gathered

the local men; and (3) conducted interrogations and beatings. The Bachelor Camp soldiers stood

nearby John Doe IX as he lay motionless on the ground. GB! s0 testified that the accident

was severe—the vehicle was “upsidedown,” Dep. 22:14; and witnessed two of

the marines crushed by the trunk of the truck, id. at 33:3-13. The marines in the accident were -

attending to the other marines in the vehicle. /d. It is thus less likely that these marines were the

ones who harmed John Doe IX. Under these circumstances, it is reasonable to infer that the

soldiers conducting the beatings—including John Doe [X’s—were the ones assigned to Bachelor

Camp.

A reasonable jury could find that the soldiers who killed John Doe IX were the same

soldiers that defendants negligently hired and supervised. Accordingly, there is sufficient proof

of causation for Jane Doe III’s direct liability claims.

” The statements from plaintiffs’ other eyewitness, J. who relayed the events to Jane Doe III when she

arrived in the village, are not probative on this particular issue. See, e.g., CSMF § 370.

44

Indirect Liability Claims. For the same reasons, a reasonable jury could conclude that the

soldiers who exited Bachelor Camp and killed John Doe IX were in an employment relationship

with defendants to provide security for their facilities. The “functional connection” analysis only

confirms this conclusion. Here, witness testimony reflects that the soldiers responded to what they

believed to be an apparent attack on Bachelor Camp—which prompted shooting, interrogations,

beatings, and John Doe IX’s killing. The Court previously recognized that injuries committed by -

military security who were stationed at, and provided security for, defendants’ operations implicate

the “functional connection” required by Indonesian law. Doe, 69 F. Supp. 3d at 104. Because

they were responding to a perceived attack on defendants’ facilities; there is a “functional

connection” between the killing and the protection of Bachelor Camp. There is sufficient proof of

caumiien for Jane Doe Ww *s indirect liability ieina.

(iv) Jane Doe IV

Jane Doe IV alleges that her husband, John Doe X; was killed on December 4, 2000 (the

same day that Jane Doe II’s husband was killed). CSMF {ff 66, 374; see 2nd Am. Compl. { 186.

John Doe X was a rice farmer who was shot while working in his rice paddy near their family

home. See CMSF ff 377, 381. Jane Doe IV brings claims for wrongful death, negligence,

negligent hiring, and negligent supervision. 2nd Am. Compl. J] 193-98, 212~35. Defendants

argue that Jane Doe IV’s allegations are “completely devoid of any evidence that could tie

[d]efendants tothe death of her husband.” Defs.’ Mem. 20. They are-wrong.

On December 4, 2000, Jane Doe IV and her family lived in a village about one kilometer

from Cluster 4. See, e.g., CSMF 9375. Soldiers arrived at their home that morning. CSMF § 377.

Jane Doe IV’s son, J testified that he recognized five to ten of these soldiers from “within

the yard of Exxon”—that is, “Cluster 4.” CSMF ff 380, 382; see Px-33, Dep. 9:11-11:7;

45

37:6~-13. JD and J a-neighbor who also witnessed John Doe X’s murder, walked by

Cluster 4 daily on their way to and from school. See PX-33, Dep. 12:5-15; PX-32,

Dep. 9:25-10:7. [J testified in his deposition that he recognized six of the soldiers, and that

these soldiers worked both inside and outside the fence at Cluster 4. CSMF J 386-87; PX-32,

GB Dep. 69:18-22, 101:4—-102:10. These soldiers would “often” bully the boys by requiring

.them to recite national principles and to sing the national anthem, forcing the boys to do push-ups

or pinching the boys’ stomachs when they made mistakes. PX-33, JJ Dep. 11:4—12:21; see

CSMF 4 380, 386-87; PX-33, [J Dep. 20:10-15; PX-32, J Dep. 11:19-12:14. Jane

Doe [V also testified that the vehicles used by the soldiers on December 4, 2020, were the same

vehicles that she saw parked at Cluster 4. PX-22, Jane Doe IV Dep. 70:3-12.”

Twenty to thirty soldiers—including the five to ten soldiers that eae recognized and the

six recognized by {J—passed [J and went into the rice paddy where [fs father was

working. PX-33, Dep. 13:17-14:3; 15:5-16:17; i Dep. 10:2-7. There, the soldiers

shot John Doe X. See CSMF {ff 381, 383. {I testified that his father was shot by a soldier

that he recognized from Cluster 4. PX-33, Dep. 16:4-9, 23:10-15.

Accordingly, defendants are simply wrong that neither Jane Doe IV’s son nor her neighbor

“could identify any of the soldiers involved in the shooting.” Defs.* Mem. 20. Instead,

eyewitnesses recognized the soldiers from Cluster 4, where they worked inside and outside the

fence. As noted in the discussion of Jane Doe II’s claims, defendants operated-Cluster 4 at the

relevant time and relied on the military to provide security. See supra Sec.IV.B.4.ii. -Jane Doe IV

also linked the soldiers to Cluster 4 via their vehicles. Accordingly, for all the same reasons set

23 While Exxon accuses Jane Doe IV of inconsistent and evolving testimony, see SOF §¥ 67-69, Jane Doe ]V has also

stated that she recognized the soldiers from Exxon’s facilities, see, e.g., CSMF § 389; PX-22, Jane Doe IV Dep. 69:17—

21. At this stage, the Court will not make credibility determinations. See United States v. Seventeen Thousand Nine

Hundred Dollars ($17,900.00) in United States Currency, 859 F.3d 1085, 1091 (D.C. Cir. 2017).

46

forth in the discussion of Jane Doe II’s claims, a reasonable jury could connect the soldiers to °

Cluster 4—and defendants—via the vehicles that the soldiers used. See supra Sec.1V.B.4.ii.

Direct Liability Claims. A reasonable jury could find that the soldiers who murdered Jane

Doe IV’s husband were the same soldiers that defendants negligently hired and supervised.

Indeed, in addition to the inferences supporting Jane Doe II’s claims, there is witness testimony

that the soldiers who killed John Doe X were assigned to guard Cluster 4 while it was operated by

defendants. Accordingly, there is sufficient proof of causation for Jane Doe IV’s direct liability

claims.

Indirect Liability Ciaims, A reasonable jury could find that the soldiers who killed Jane

Doe IV’s husband did so “in the course of performing their duties” because there is 4 “functional

connection” between the shooting and gnanding defendants’ operations. Defendants contend that

plaintiffs cannot show “who supervised, commanded, directed, or paid the soldier who allegedly

killed Jane Doe IV’s husband.” Defs. Mem. 20-21. But a specific “supervisor,” “commander,”

“director,” or “payor” is not needed to connéct the soldiers to the defendants. Instead, all that is

needed is a functional connection. As discussed in the context of Jane Doe II’s claims, a reasonable

jury could find that proactive sweeps of the villages close to Cluster 4 on December 4, 2000, were

functionally connected to providing security at defendants’ facilities. See supra Sec.IV.B.4.ii.

Accordingly, there is sufficient proof of causation for Jane Doe IV’s indirect liability claims.

~

(v) Jane Doe V =

Sometime in January 2001, John Doe I went missing. CSMF § 41, SOF 9] 78-80.

Eventually, after several days, soldiers retuned John Doe J to his home. CSMF § 411. When he

arrived home, John Doe I was wearing only his underwear, his hand had been cut off, and he was

missing an eye. CSMF § 412; see PX-99 (photo of John Doe I’s injuries). Jane Doe V_ brings

47

‘claims on behalf of her husband, John Doe I, for battery, assault. arbitrary arrest, detention and

false imprisonment, negligence, negligent hiring, and negligent supervision. See 2nd Am. Compl.

“{ 199-235.% Defendants contend that.Jane Doe V “provided no evidence identifying who

allegedly took her husband or ara he was taken, and could not connect the Indonesian soldiers

to defendants.” Defs.’ Mem. 21. They also argue that the only evidence connecting the soldiers

to defendants is inadmissible and thus cannot be considered. Defs.’ Reply 11-12. Neither

argument holds water.

John Doe I was a businessman who traveled and sold vegetables from his motorcycle cart.

CSMF 4 408. His daily route took him past Point A and Cluster 3, which were operated by

defendants. CSMF { 409; PX-381; see CSMF 4] 415-16. Also along his route were posts set up

by the siilitery providing security for defendants’ operations. See, e.g., PX-26, John Doe il Dep.

140:8-141:20 (describing temporary posts around defendants’ facilities); PX-214 at

CA0001005149 (document from January 2001 providing that “official security services -will

primarily deploy ‘outside the wire’ [at Point A}’). John Doe I was familiar with the soldiers

stationed along his route. CSMF 4 408; PX-23, Jane Doe V Dep. 36:4—11, 61:12—25 (“[H]e would

know them because he was always went back and forth along that road.”).

Jane Doe V testified that after John Doe I was retumed by the soldiers after his abduction,

he was in pain and “shock,” and that he cried the entire night that he returned. CSMF 4 412; see

PX-23, Jane Doe Dep. 63:24-64:14. As soon as he was able to speak, he told Jane Doe V that “he

was taken by soldiers working at Point A and thenhis hand was cut off and they took his eye.”

- PX-23, Jane Doe V Dep. 64:15—i9. He also told Jane Doe V that he had been taken by “Exxon

soldiers,” who took him to an Exxon post and tortured him. /d. at 64:20-65:10.

24 Jane Doe V was substituted as a plaintiff for her husband after he died in 2003. See Order, ECF No. 200.

48

Defendants argue that these statements are inadmissible hearsay, and thus cannot create a

genuine dispute of material fact. To survive a motion for summary judgment, the non-moving

party must “produce evidence , . . capable of being converted into admissible evidence.” Gleklen-

v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000). “[S]heer

hearsay” evidence “counts for nothing” at the summary judgment stage unless an exception to the -

rule against hearsay applies to the statement at issue. Greer v. Paulson, 505 F.3d 1306, 1315

(D.C. Cir. 2007) (quoting Gleklen, 199 F.3d at 1369).

Plaintiffs counter that John Doe I’s statements qualify as excited utterances. Federal Rule

of Evidence 803(2) creates a hearsay exception for “statement{s] relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or

ootidition.” Fed. R. Evid. 803(2). “The rationale underlying the ‘excited utterance’ exnaptlen is

that ‘excitement suspends the declarant’s powers of reflection and fabrication, consequently

minimizing the possibility that the utterance will be influenced by self interest and therefore

rendered unreliable.” United States v. Alexander, 331 F.3d 116, 122 (D.C. Cir. 2003) (quoting

United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001)). “Thus, to qualify as an excited

utterance, “the declarant’s state of mind at the time that the statement was made [must] preclude[ ]

conscious reflection on the subject of the statement.’” Jd (quoting United States v. Joy,

192 F.3d 761, 766 (7th Cir. 1999)).

~ The D.C. Circuit has held that “[fJor a statement to qualify as an excited utterance, the

proponent of the exception must establish: (1) the occurrence of a startling event; (2) that the

declarant made the statement while under the stress of excitement caused by the event; and (3) that

the declarant’s statement relates to the startling event.” Jd. Notably—and unlike the present sense.

impression exception, see Fed. R. Evid. 803(1)—an excited utterance “need not be

49

contemporaneous with the startling event to be admissible,” Alexander, 331 F.3d at 122. Instead,

the statement must be “contemporaneous with the excitement engendered by the startling event.”

Id. (quoting Joy, 192 F.3d at 766).

John Doe I’s statements fall neatly within the exception for excited utterances. A “startling

-event” is present here. John Doe I was taken, tortured, and horrifically injured by the soldiers.

See, e.g., United States v. Pursley, 577 F.3d 1204, 1220 (10th Cir. 2009) (“Mr--Cluff clearly

experienced at least one startling event, the brutal assault.”); cf Alexander, 331 F.3d at 123 (noting

that courts should consider “the characteristics of the event” and the declarant’s “physical and

mental condition”). Next, the evidence supports that his statement was made while under the stress

and excitement oaused by the event. Jane Doe V testified that they had no medication at their

house, mo John Doe I received no pain medication or bentradett before the sintovands were made.

CSMF 413; see PX-23, Jane Doe V Dep. 65:24-66:7. The severity of John Doe I’s injuries

-(including a'lost eye and a missing hand) was reflected by his demeanor—he “was in shock and

shaking” from the pain and crying through the night. Jd. at 63:24-64:14. He was otherwise unable

to speak. See, e.g., id. at 65:18~19 (“It was like he was dead and he was not able to talk, he couldn’t

remember.”). All these facts support the conclusion that John Doe I made his statements under

the stress caused by a traumatic experience. See, e.g., Webb v. Lane, 922 F.2d 390, 395 (7th Cir.

1991) (“[PJhysical suffering serves to prolong the reflection period.”); Pursley, 577 F.3d at 1220

(recognizing declarant’s “considerable pain” and the fact that he “vomited” shortly before he made

the statements). Finally, John Doe I’s statement relates to the startling event—he told his wife

what had happened to him and who did it. John Doe I’s statements qualify as excited utterances.

Defendants’ arguments to the contrary are without merit. They contend that plaintiffs fail

to identify “how long after [John Doe I’s] injuries he mentioned ‘Exxon soldiers.’” Defs.’ Reply

50

12. But the D.C. Circuit has explained that while “the lapse of time between the startling event

and the declarant’s statement is relevant to whether the declarant made the statement while under

the stress of excitement, the temporal’ gap between the event ‘and the utterance is not itself

dispositive.” Alexander, 331 F.3d at 122-23 (citing United States v. Jones,-299 F.3d 102, 112 (2d

Cir. 2002)). So too here. The temporal gap between the event and the statement is “only one

factor to be taken into account” in determining whether the declarant was under the stress-of

excitement caused by the event or condition.” Jones, 299 F.2d at 112. Here, for the reasons set

forth above, context indicates that John Doe I’s “state of mind at the time that the statement was

made precluded conscious réflection on the subject of [his] statement.’” Alexander,

331 F.3d at 122 (quoting Joy, 192 F.3d at 766). And despite the lack of definitive temporal

snifisemnstiens in the record, the timeline for John Doe I's statement is not eilwunaeil ‘John Doe I

made these statements before he received medical attention, which was three days after arriving

home. Moreover, Jane Doe VY testified that John Doe I made the statements at issue “as soon as

[he] was able to speak” when he returned. PX 23, Jane Doe V Dep. 64:13-19. Even then, Jane

Doe V was surprised that John Doe I was alive when he made the statements. Jd. at 65:15-23 (“It

was like he was dead and he was not able to talk, he couldn’t remember.”). Timing is simply not

dispositive under these circumstances to determine whether John Doe I’s statements qualify as an

excited utterance. At this stage, there is sufficient evidence that John Doe I’s statements qualify

for the hearsay exception. ~

Defendants also contend that there is insufficient information about John Doe I|’s “physical

or mental state” at the time. Defs.’ Reply 12. This argument is frivolous. There is evidence in

the record that John Doe I had lost his.hand and eye, was in terrible pain and crying all night, and

did not receive medical treatment for his injuries. Given his condition, the evidence is more than

51

sufficient to conclude-that his statements were made under the stress of excitement caused by the

events.

Defendants also contend that John Doe I called the Indonesian soldiers ““Exxon soldiers’

merely because he had seen them on a road near Arun Field.” Defs.’ Reply 12. The Court rejects

this characterization of the record, which not only ignores aspects of Jane Doe V’s testimony, but

also does not construe the facts in a light most favorable to plaintiffs. Jane Doe V’s husband told

her that “he was taken by soldiers working at point A” and also that he was taken to an “Exxon

post.” PX-23, Jane Doe V Dep. 64:15-65:10. Elsewhere in her deposition testimony, Jane Doe

V reiterated that her husband described the men who took him as those who were at defendants’

post or security office. Jd at 34:19-35:21. John Doe I maintained a consistent route for his

business that passed by defundestie’ facilities, and it is reasonable to infer that he was familiar with

the soldiers in the area. To the extent that defendants criticize the witnesses’ credibility, see Defs.’

Reply 12 n.8, or ask the Court to draw inferences against the plaintiffs, the Court-will not do so.

See Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

Direct Liability Claims. If crediting John Doe I’s statements, a reasonable jury could

conclude that the soldiers who abducted and tortured John Doe I worked at Point A and provided

security for defendants. Accordingly, a reasonable jury could conclude that the soldiers who

harmed John Doe I were the same soldiers that defendants negligently hired or supervised. There

is sufficient proof of causation for Jane Doe V’s direct liability claims.

Indirect Liability Claims. A reasonable jury could conclude that the soldiers were in an

employment relationship with defendants—John Doe I stated as much. Because John Doe I

testified that he was taken to and tortured at defendants’, facilities, the soldiers’ acts have a

“functional connection” to their role of providing security at Arun Field. See Doe, 69 F. Supp. 3d

52

at 104 (holding that the functional connection test is satisfied for “injuries [] inflicted on Exxon

property”). There is sufficient proof of causation for Jane Doe V’s indirect liability claims.

(vi) Jane Doe VI «

Jane Doe VI alleges that, in or around July 2000, her son, John Doe III, was shot and beaten

by soldiers guarding Cluster 2, See 2nd Am. Compl. § 178. She brings claims on John Doe III’s

behalffor battery, assault, arbitrary arrest, detention and false imprisonment, negligence, negligent

hiring, and negligent supervision. Jd. JJ 199-235.”

In July 2000, a large group of villagers was walking along the “Exxon Road” to Point A to

seek refuge. CSMF §[ 422; see, e.g., PX-34, RE Dep. 7:21-25, 55:12-13; PX-24, Jane Doe

VI Dep. 55:20—56:8. Defendants’ internal documents and emails reflect that as thousands of

villagers sought refage at Point A, troops fired “warning shots” to disperse the villagers. CSMF

9423; see, e.g., PX-75 at CA0001101448-S0, PX-79 at CA0001173787; PX-102 at

CA0001191483-86. Jane Doe VI HMM, and her two other young children were

walking down the road toward Point A when they passed by Cluster 2, a facility operated by

defendants. CSMF 9] 422, 424-425, 433. At this time, defendants requested and monitored

military security personnel assigned to Cluster 2. See, e.g., PX-120, PX-135. As Jane Doe VI and

her family arrived at the facility, a group of soldiers exited the Cluster 2 gate and shot John Doe .

I. CSMF ff 427-29; see PX-34, Dep. 10:3-22, 66:6-8. After shooting John Doe III,

the soldiers beat him. See CSMF § 430; PX-34, J Dep. 10:24—11:6.

GE testified that “the Exxon soldiers” shot and beat her brother—a characterization

that defendants vehemently dispute. Defs.” Mem. 23, Defs. Reply 7—9; see, ¢.g., CSMF J 430~

5 Jane Doe VI was substituted as a plaintiff for John Doe III due to his death in 2002. See ECF No, 198, Ex. B;

ECF No. 200.

$3

31. Defendants focus their arguments on {I's statements about “Exxon soldiers” in the

“surrounding of Exxon area.” See, e.g., SOF 4 91; DX-70, [EEE Dep. 83:18-87:22. While

GE s deposition testimony is (often) ambiguous,** the Court must construe the record in the

light most favorable to plaintiffs. Several times during her testimony, J characterized

Cluster’2 as an “Exxon area.” PX-34, (J Dep. 91:17-19, 94:7-13. And [also

testified that she had passed by Cluster 2 on previous occasions and saw’soldiers at the Cluster 2

gate checking IDs. See CSMF 4 431; PX-34, SM Dep. 14:6-15:2. A reasonable jury could

find that {J s characterization that “Exxon soldiers” committed these acts captures all of

her observations: that “the soldiers were at Exxon’s[, t]hey guard Exxon,” PX-34, Rey Dep.

58:89; that soldiers worked at the gate checking IDs, id. at 14:16~15:2; and that the soldiers

“came out of the gate of Cluster 2 and shot fined] brother,” id. at 95:24-96:2. The Court must avoid

improperly evaluating RTA - credibility or weighing her testimony. See Johnson,

823 F.3d at 705.

Direct Liability Claims. Viewing this evidence in the light most favorable to Jane Doe VI,

a reasonable jury could conclude that John Doe III was shot and beaten by soldiers guarding

Cluster 2 and that these soldiers were negligently hired and retained by defendants. Defendants’

arguments to the contrary warrant little discussion because they focus on irrelevant information

that I her mother did not know—like whether they knew anyone who worked for

defendants or the identities of the soldiers involved. But circumstantial evidence that the soldiers

worked for defendants guarding Cluster 2 is sufficient, and the precise identities of the soldiers are

- °6 RF s deposition was also affected by, among other things, technical problems, disputes between counsel

about their conduct during the deposition, and repeated breaks where the witness was crying.

54

not needed. See supra Sec.IV.B.2. There is sufficient proof of causation for Jane Doe VI’s direct

liability claims.

Indirect Liability Claims. A reasonable jury could also find that the soldiers were

employed by defendants to guard Cluster 2; thus, an employment relationship existed. The

“functional connection” standard is also satisfied here because a reasonable jury could conclude

that the security personnel committed the acts “while working at an Exxon security post” and while

they were engaged in their guard duties. Doe, 69 F. Supp. 3d at 104.

However, the Court will GRANT summary judgment on Jane Doe VI’s arbitrary arrest,

detention and false imprisonment claims. Plaintiffs have conceded that after the incident where

John Doe III was shot and beaten, he was held by the Indonesian police, not by Indonesian soldiers

assigned to defendants? facilities who allegedly shot him. See CSMF 4 87. In all other aspects,

there is sufficient proof of causation for Jane Doe VI’s indirect liability claims.

(vii) Jane Doe Vil

On behalf of her deceased husband, John Doe V, Jane Doe VIi alleges that, in 1999,

“ExxonMobil’s security personnel” burned down their house. See 2nd Am. Compl. { 180;

CSMF 4 443.2’ She also alleges that, in 2003, John Doe V was “again abused by ExxonMobil’s

security personnel,” who “took him to one of their posts near Cluster IV,” where he was severely

beaten and held for three or four days. 2nd Am. Compl. 180. Her remaining claims—because

her conversion claim .is time-barred—are for negligence, negligent hiring, and negligent

supervision. Jd. 212-35. Defendants claim that “Jane Doe VII has failed to produce evidence

27 Jane Doe VII was substituted as a plaintiff in 2015. See Order, ECF No. 513. Defendants argue that her claims

should be dismissed because she failed to notify all of John Doe V’s other wives and children about the litigation, as

she was ordered by the Court. Defs.’ Mem. 24 n.18. But while Jane Doe VIL did not herself notify all of the other

wives and children, see SOF § 98, counsel represented that they retained an independent contractor to provide the

notice required by this Court’s order, see CSMF § 98; ECF No, 531. Jane Doe ee ae failure to notify these

other individuals is thus of no moment.

33

of causation and her claims must be dismissed.” Defs.’ Mem. 25. The Court disagrees and

addresses each incident in turn.

(a) Claims for 1999 Injuries

The evidence connecting the soldiers who burned plaintiffs’ house in 1999 comes primarily

from the testimony of Jane Doe VII and (MJ. While there are potentially

conflicting accounts of what occurred in 1999, the Court.construes the record in the light most

favorable to plaintiffs. Jane Doe VII testified that soldiers arrived at their home, took her husband,

and Set their house on fire. See PX-25, Jane Doe VII Dep. 79:16-80:17; CSMF § 443.78 Jane Doe

VII identified these soldiers as-“Exxon soldiers,” id. at 80:15-17, but only because her husband

“told [her] that they were Exxon soldiers,” id. at 80:20—-23. After these soldiers took John Doe V,

Cure witnessed them load his father into a military truck where John Doe V was blindfolded

and beaten. CSMF § 444; see PX-35, SJ Dep. 9:16 22. () testified that he

later saw this same truck—which he testified was unique because it had two tigers drawn the

sides driving past the fence and guarded gate into Point A. PX-35, J Dep. 14:3-16:5,

93:15-20. When soldiers eventually returned John Doe V home, he was beaten, cut, weak, and

barely able to stand. CSMF-{ 444; see IJ Dep. 18:22-19:24. Witnesses testified that

John Doe V was sobbing when he returned and cried out that he had been badly tortured and beaten

up by “Exxon soldiers” that he knew by name. See CSMF 7 444, PX 35, MY Dep. 18:15-

21, 20:18-21:6; PX-25, Jane Doe VII Dep. 108:23—109:6; PX-112, Jane Doe VII Suppl. Resp. to

Interrogatory No. 1 (Oct 5, 2020) at 8.

The Court agrees with defendants that-Jane Doe VII’s contention that “Exxon soldiers”

took her husband is not based on her personal knowledge and thus cannot create a genuine dispute.

28 Jane Doe VII does not bring a claim for the 1999 abduction. CSMF 443 n.42.

56

of material fact. See Gleklen, 199 F.3d at 1369 (noting that evidence considered at summary

judgment must be capable of being converted into admissible evidence at trial); Fed. R. Evid. 602

(“A witness may testify to a matter only if evidence is introduced sufficient to support a finding

that the witness has personal knowledge of the matter.”).

Nevertheless, a-reasonable jury could draw inferences based on John Doe V’s statement

that he was taken by “Exxon soldiers.” Defendants try to cut these inferences off at the source and

contend that his statements are inadmissible hearsay. Defs.’ Mem. 25. This argument is

unpersuasive. There is sufficient evidence that these statements were excited utterances. See

Fed. R. Evid. 803(2). Like John Doe I, a’startling event is present here because John Doe V had

been taken, beaten, and tortured. There is evidence in the record that John Doe V made the

statement “under the stress” caused by the startling event because he had only just retumed home,

was cut in multiple places, bumed, weak, barely able to stand, and crying. Alexander,

331 F.3d at 122; see PX-112-at 8 (noting that his family ran out to meet him and, while crying, he

cried out “I’m back home, I’m still alive”). Finally, the statements “relate to” the startling event

because John Doe V identified who harmed him. Jd The statements are excited utterances and

thus would be admissible.

The Court must then address whether John Doe V’s statements about the soldiers’

identity—and the other evidence in the record—are sufficient to create a genuine dispute about

whether the soldiers guarded defendants’ facilities. There is sufficient evidence here. John Doe

V stated that he knew the individual soldiers who took him. See PX-35, J Dep. 20:18--

21:6 (“{H]e knew them by person. He knew the person or the people. . . . [HJe know [sic] them

by name.”). It is a reasonable inference that knowing the individual soldiers could also encompass

personal knowledge about their duties.

a7

Defendants try to capitalize on Jane Doe VII's testimony that John Doe V gave the soldiers

their label “because the soldiers were stationed near the Exxon facilities.” PX-25, Jane Doe VII

Dep. 80:24-81:3. The Court is rot persuaded. First, defendants rely on a faulty premise—that

being stationed near defendants’ facilities is not probative of whether a soldier provided security

for defendants. But as discussed previously, the record supports that soldiers providing security

at Arun‘Field also engaged in “area protection,” extending the security services outside of the

facilities themselves. Second, Jane Doe VII’s testimony is not as clear as defendants suggest: Jane

Doe VII initially stated, “There are so many Exxon soldiers—there are so many soldiers in there.”

Id. at 80:20-23 (emphasis added). In other words, a reasonable jury could conclude that the

descriptor seems to encompass soldiers working in and around deféndants’ facilities. Finally,

there is sufficient evidence in the record suggesting that John Doe V was capable of distinguishing

between military assigned to roles at defendants’ facilities from the other soldiers in the region.

ae testified that Jane Doe V attended local police trainings facilitated by the district

military command, so John Doe V had some familiarity with the other soldiers in the surrounding

area that were not affiliated with defendants. CSMF § 436, PX 35, J Dep. 26:18-27:9.

John Doe V also previously worked as a driver, including for MOI at Arun Field and at Point A

through the 1980s, so he was familiar with the soldiers in the area (and their roles) at the time he

drove. CSMF § 436; SOF 4 104; PX-25, Jane Doe VII Dep. at 107:18—108:19.7"

Finally, in conjunction with this evidence, 2 reasonable jury could consider that the truck

was later seen at Point A. In light of all the available evidence in the record, viewed as a whole,

the Court concludes that a reasonable jury could find that the soldiers who bumed down the

2? Plaintiffs have stated that they do not dispute that John Doe Y had no employer in the 1990s. CSMF § 104.

58

house—and then took and held John Doe V—were the same soldiers negligently hired, supervised,

or retained by defendants.

(b) Claims for 2003 Injuries

The evidence in support of the claims for Jane Doe V’s 2003 injuries comes mostly from

John Doe V’s sworn interrogatory answers.?’ John Doe V stated that in 2003, he was picked up

by soldiers from “Unit 100.” CSME.§ 437, PX-111 John Doe V’s Suppl. Resp. to Exxon Mobil

Oil Corp.’s First Set of Interrogatories (“John Doe V Responses”) at 3. He named each of the

soldiers who attacked him. See PX-111, John Doe V Responses at 3. They took him to a temporary

post near Cluster 3, where they kicked him, beat him all over, and urinated on him. Jd. He returned

home about three days later, bruised, swollen, and smelling of urine. Jd; see PX-25, Jane Doe VI

Dep. 111:12-112:15 (“So he felt a lot of sores on his body and... in his ithe, and he smelled like

urine because he said the Exxon soldiers urinate [sic] or peed on him.”). Jane Doe VII has provided

a declaration in which she explains that when John Doe V returned home that he was “weak, afraid,

and shocked”; that she could see the bruises and marks on his wrists where he was tied; that he

was unable to walk normally, and that “his face was pale and his voice was trembling when he

told {her} the Exxon soldiers had taken him and tortured him” and that he “knew who the Exxon

soldiers were.” PX-112, Jane Doe VII Decl. 4] 4-5. Jane Doe VII believed that John Doe V was

in a lot of pain and scared. Id. ¥ 4.

3° By citing the interrogatory answers, plaintiffs have met their burden to support their factual assertions. See Celotex

Corp. v. Catrett, 477 U.S, 317, 324 (1986) (“We do not mean that the nonmoving party must. produce evidence in a

form that would be admissible at trial in order to avoid summary judgment.”). While defendants suggest in their

Response to Plaintiffs’ Counterstatement of Material Facts that some of the statements made by John Doe V in his

interrogatory responses are hearsay and include a citation to their brief; see RCSMF { 438, they do not address the

interrogatory statements in their brief at all. Principles of forfeiture and waiver bar consideration of the issue at this

juncture because defendants have failed to object or develop any purported objection. See Fed. R. Civ. P. 56(c)(2);

Gold Rsrv. Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. os 112, 126 (D.D.C. 2015) (explaining that

“perfunctory and undeveloped arguments” are “deemed waived”).

59

Defendants raise similar objections that these identifications and statements to Jane Doe

VII are hearsay and that the reference to “Exxon soldiers” cannot create a dispute of material fact.

For the same reasons as before, these objections fail. The abduction and torture and subsequent

pain constitute a startling event. The evidence reflects that John Doe V was under the influence

of the events—he appeared to be in pain and unable to walk normally, he was pale and his voice

was trembling, and this was the “first thing” he said to Jane Doe VII when he returned home.

PX-112, Jane Doe VII Decl. #¥.4-5. Here too, defendants’ timing objections have no merit when

the circumstances indicate that John Doe V was under the influence of the event. Finally, the

statement relates to the event—John Doe V identified who took him. Regarding the “Exxon

soldiers” identification, as before, a reasonable jury could infér that this characterization-reflects

John Doe V’s observations—he was taken to 8 temporary post near Cluster 3 and he knew who

the soldiers were. Not only did defendants operate Cluster 3, but their military security also set

up temporary posts near defendants’ facilities as part of their security role. See, e.g., PX-118 at

CA0001173764; PX-86 at CA0001182942. A reasonable jury could conclude that the soldiers

who took John Doe V in 2003 were the same ones that defendants negligent hired, retained, or

supervised. There is sufficient evidence of causation for Jane Doe VII’s direct liability claims.

(viii) Jane Doe VIII

Jane Doe VIII alleges that, in or around November 2000, “ExxonMobil’s security

personnel” abducted her husband, John Doe VI, and tortured him, after which he was held by the

police for four months. 2nd Am. Compl. § 181. Jane Doe VIII brings claims on behalf of John

Doe VI for battery, assault, arbitrary arrest, detention and false imprisonment, negligence,

negligent hiring, and negligent supervision.?! Defendants claim that Jane Doe VIII has provided

3! Jane Doe VII was substituted for John Doe VI after his death in 2012. See ECF No: 495-4, Ex. 2; ECF No. 513.

60

“no evidence that the soldiers who allegedly shot and detained her husband did so at the direction

of EMOI or even while protecting Arun Field.” Defs.’ Mem 27. As explained below, Jane Doe

VIil has provided sufficient proof of causation for her direct liability claims. But plaintiffs have

failed to provide sufficient evidence of the “functional connection” necessary to survive summary

judgment on the indirect liability claims.

.. Jane Doe VIII and John Doe VI have a special-needs son. CMSF § 447. One morning in

November 2000, Jane Doe VIII woke John Doe VI to tell him that their son ran away from home.

CSMF § 448. John Doe VI left to look for his son and stopped in Matang Kuli, a small-town

abutting Cluster 4. CSMF ‘ff 449-50. Defendants operated Cluster 4 at this time. CSMF 4451.

There, soldiers detained John Dee VI and eventually took him to his home village, demanding that

he identify GAM members. See, €.g., CSMF { 452. Soldiers then ondexed John Doe VI to 1m

away, but fearing that he would be shot, John Doe VI instead crouched by a nearby fence, pleading

for his life. 7d.

A third party EP’ —witnessed this interaction and recognized several of the

soldiers from Exxon’s facilities. Twenty soldiers brought John Doe VI near J s house.

PX-36, SE Dep. 8:3-10:6: There, J saw John Doe VI with his hands tied

behind his back before the soldiers pushed him onto his back, into the mud, and then shot him in

the calf. Jd. at 9:6-23. J recognized ten of the soldiers from Exxon’s Bachelor Camp—“four

of them were pointing guns right behind [John Doe VI], and six other [sic] were following them.”

CSMF ff 453-54; see PX-36, Dep. 10:21—11:23, 112:24-113:18. A also

believed that the soldiers recognized him as well because they “looked that they were ashamed

because [he] knew them.” Jd. at 12:19-24; CSMF ¥ 454.

* The Court will refer to this witness by his full name to avoid confusion with the witness J discussed previously.

61

GD testified in his deposition that he worked at defendants’ facilities on a rig for

an Exxon subcontractor, See, e.g., CSMF ¥ 457. And as part of his job, he worked shifts and

‘would cAty at Bachelor Camp, which was operated by defendants. See CSMF ‘{{ 457-58.

GB nt only observed the soldiers at Bachelor Camp but shared meals with them. CSMF { 459;

see PX-36, MM Dep. 10:21-11:23, 18:2-17 When asked who the soldiers worked for,

- BRR seid it “was not clear,” id at 18:8, but that when he saw the soldiers outside of

mealtime, they were working in the landing dock area at Al and other locations affiliated with

defendants, see, e.g., CSMF § 461; PX-36, (MJ Dep. 18:23-19:4. As discussed

previously, a reasonable jury could find that Al was a location managed and operated by

defendants. Sce, ¢.g., PX-40, J Dep: 47:12-20; PX-89 at CA0001147209 (including “A~1 -

storage yard” on a list of property Mobil managed in March 2000); PX-121 at CA0001184 163.

Direct Liability. Viewing the evidence in the light most favorable to Jane Doe VIII, a

reasonable jury could conclude that John Doe III was shot and beaten by soldiers who provided

security for defendants’ operations and were negligently hired and retained by defendants.

Notably, the jury could draw reasonable inferences connecting the soldiers to defendants’

operations based on [MMs established familiarity with the soldiers at: defendants’.

facilities. This conclusion is also consistent with other evidence that soldiers—such as those at A-

13—vwere assigned specifically to defendants’ operations.

The fact that MH is not sure who formally employed the soldiers does not affect

the Court’s conclusion. As stated previously, circumstantial evidence is sufficient to establish an

- employment or agency relationship. The evidence that the soldiers consistently returned to the

landing dock at A-1 is sufficient to support the inference that the soldiers were negligently hired

and retained by defendants.

62

Indirect Liability Claims. There is insufficient evidence in the record for a reasonable jury

to conclude that the soldiers shooting and beating John Doe III bears a “functional connection” to

their employment relationship with defendants. Plaintiffs suggest that this connection exists

because John Doe II was “abducted just outside Cluster 4,” by soldiers “on duty,” who were

‘engaged in patrolling or sweeping duties. Pls.” Opp’n 35~37. The Court agrees that this would be

a sufficient factual predicate to establish a functional connection. But the problem is that this

factual predicate lacks sufficient support in the record. There is no evidence or testimony

suggesting that the soldiers were “on duty” providing security for defendants—in fact, the witness

testimony suggests that they were generally based at Bachelor Camp or A-1, not Cluster 4. Next;

- ‘there is no testimony supporting the inference that the soldiers were engaged in patrolling or

sweeping duties to protect the Cluster. Plaintiffs identify oi fants about what the wollen: were

doing when they detained John Doe III to support this inference. The only fact that supports these

inferences is the soldiers’ proximity to Cluster 4. While this may reinforce. the point that a

reasonable jury could find that the soldiers provided some security services for defendants, it is

not enough for a reasonable jury to find a functional connection between the saldiers’ actions and

their employment.

Accordingly, there is insufficient evidence of causation for Jane Doe VIII’s indirect

liability claims—battery, assault, arbitrary arrest, detention and false imprisonment—and the

_ Court will GRANT defendants’ motion for summary judgment on these counts.

(ix) John Doe II

John Doe II alleges that “ExxonMobil security personnel . . . detained and tortured him”

for several months.. 2nd Am. Compl. § 177. He brings claims for battery, assault, arbitrary arrest,

detention and false imprisonment, conversion, negligence, and negligent supervision. 2nd Am.

63

Compl. {§ 199+235.73 As noted above, John Doe II’s intentional tort claims are untimely—so the

Court only considers John Doe’s negligence claims.

On August 11, 1999, John Doe II was assaulted at, and then taken from, a local food stall

just down the road from Cluster 4. See, e.g., CSMF 471-73. Plaintiffs contend that a reasonable

jury could find that the soldiers who beat and took John Doe II came from Cluster 4 and were

assigned to defendants’ facilities there. See Pls.’ Opp’n 19; CSMF {J 476-78. Defendants argue

that John Doe II did not know who beat and took him and that his third-party witness did not view

the alleged assault. See Pls.’ Opp’n 28. These genuine disputes of material fact are not fit for

summary judgment and must be resolved by a jury.

The primary evidence in support of John Doe II’s claims comes from his testimony and the

testimony of the food stall’s owner, John Doe II testified that while he waited for his

breakfast, he observed a group of soldiers emerge from Cluster 4 and approach the food stall on

- » foot. CSMF J 476-77; see, e.g., PX-26, John Doe II Dep. 94:15-20; 95:21-96:8, 97:8—23, 150:5-

151:16. (MY also testified that she witnessed the soldiers exit Cluster 4. PX-38,

Dep. 14:20-24. Both John Doe II and {J beard gunfire after the soldiers were leaving the

‘cluster. See, e.g. PX-26, John Doe II Dep. 78:1—5S, 84:18-20. While other civilians fled from the

sounds of gunfire, John Doe II did not run before he was surrounded by the soldiers. See CSMF

4 477; PX-26, John Doe II Dep. 84:20-22. These soldiers attacked John Doe II and proceeded to

beat him with their fists and the butts of their guns. CSMF {] 478-79.. These same soldiers then

held and detained John Doe II for 51 days, CSMF J 482-83; PX-26, John Doe II Dep. 102:4-11,

% John Doe II originally alleged that Indonesian soldiers burned down his house (although later he testified that it was

his kiosk). See, e.g., 2nd Am. Compl. { 177; SOF { 125. Plaintiffs have conceded that there is insufficient admissible

evidence regarding the kiosk buming. See CSMF § 125. In any event, the Court has already explained that it will

grant summary judgment on John Doe II’s intentional tort claims, which includes the conversion claim.

64

152:4-16, 176:17—21, during which time they horrifically tortured him, fetuses ct

GE. 2nd crippled his leg and fingers, see, e.g., CSMF 9 482-490.

GE <xplicitly linked the soldiers to defendants. I testified that she knew

the soldiers were “from Mobil,” PX-38, QJ Dep. 11:9, because they were regular

customers at her food stall, CSMF { 475. (J also lived and worked close to Cluster 4, so

she was familiar with soldiers “standing at the_gate.” See PX-38, J Dep.~6:12. A

reasonable jury could infer from this testimony that the soldiers who took John Doe II were

assigned to work at or guard Cluster 4.

Defendants try to eliminate this factual link by arguing that }-did not witness the

alleged assault or see John Doe II’s abduction. See Defs.” Mem 28; SOF § 124. They make this

argument despite eae testimony (1) that she witnessed the soldiers aniving from Cluster

4, see PX-38, J Dep. 14:20-24; (2) that she recognized the faces of the soldiers who

arrived and beat John Doe II, id. at 19:19-22:4; (3) that the soldiers “were beating [John Doe II}

with the fists, repeatedly until he was bleeding” for half an hour, id. at 12:19-—23, 13:4—6; and (4)

that she initially fell to the ground while the beating was taking place, see, e.g., id. at 22:34; and

(5) that after the beating John Doe II was “taken right away,” id. at 12:15. Defendants contend

that despite these unambiguous statements, IJ did not witness the beating or abduction

because at some point during this encounter, she ran to her house. Defs.’ Mem. 27. But the Court

will not draw inferences against the non-moving plaintiffs. [testified about the events,

about her house’s close proximity to her stall, about how she did not close the door to her house

when she arrived, and about how she was not hiding from the soldiers. See, e.g., PX-38,

GN Dep. 11:8-11, 12:10-13:11, 22:9-25. A reasonable jury could find that [I

witnessed the events.

65

A reasonable jury could find that the soldiers who harmed John Doe II provided security

for defendants. Defendants focus on John Doe II’s lack of knowledge or perception—but he

testified that he saw the soldiers who beat him leave Cluster 4: Moreover, a reasonable jury could

find that J witnessed the events and knew from her time operating a kiosk next to the

Cluster that the soldiers worked for defendants. Her testimony that the soldiers were “from Mobil”

strongly supports that inference. Accordingly, there is sufficient evidence of causation for John ~

Doe II’s direct liability claims.

(x) John Doe IV

John Doe IV alleges that, in July 2000,** he was retuming from an errand when-he was

“accosted by ExxonMobil security personnel” who detained and tortured him for several weeks.

2nd Am. Compl. 4 179; set CSMF 7501. John Doe IV brings claims for noite, assault, arbitrary

arrest, detention and false imprisonment, negligence, negligent hiring, and negligent. supervision.

See 2nd Am. Compl. ff 199-235. As previously discussed, his: intentional tort claims are

time-barred. See supra Sec.JV.A. Regarding the negligence claims, defendants argue. that John

Doe IV cannot tie his assault and abduction to defendants because he does not know who took him

or where he was taken. See Defs.” Mem. 27-28. Defendants’ arguments are unpersuasive.

On the evening of July 29, 1999, John Doe IV traveled with a coworker by motorcycle

from Paya Bankong to Matang Kuli to pick up his wages. CSMF 4 502. The road between these

two locations passes by Cluster 4. CSMF { 503; PX-389, 390 (maps of route and showing the

location of Cluster 4).*° After John Doe IV collected the wages, he began the return trip home and

was stopped about 150-200 meters-(and within eyesight) of Cluster 4 by a group of about twelve

4 While the complaint alleges July 2000, the record supports, and plaintiffs acknowledge, that these injuries occurred

in 1999, See CSMF § 502. ,

3° The Court will take judicial notice of these maps. See Fed. R. Evid. 201(b); Burroughs, 810 F.3d at 835 n.1.

66

soldiers. See CSMF ¥ 506; PX-27, John Doe IV Dep. 69:9-20; PX-392, John Doe IV Decl. { 2.

It was dark, and the soldiers who stopped John Doe IV put a sack over his head. CSMF { 507;

see, e.g., PX-27, John Doe IV Dep. 75:7-13 (“Q. Because it was dark and they put a bag over your

head, you didn’t get a good luck at any of the faces on these soldiers did you? . .. A. No, how

could we see them? Our head is already put in the bag.”).

As defendants correctly point out, John Doe IV did not have the apportunity to identify the

faces of the individuals who stopped him. But plaintiffs contend that there is nevertheless

sufficient evidence for a reasonable jury to conclude that the soldiers who harmed John Doe IV

were assigned to defendants’ facilities. The Court agrees. John Doe IV has explained that he was

familiar with the area and the soldiers around Cluster 4 and A-13, see PX-27, John Doe IV Dep. -

137:20—140:12, and that he “often saw ssldions come from Cluster 4 an conduct regular patrols .

along the road,” PX-392, John Doe IV Decl. 4 3; see PX-27, John Doe IV Dep. 142:17-22. John

Doe IV claims that on the nightof July-29, 1999, “[t}he soldiers. who picked [him] up-were part

of one of those regular patrols” because he “was stopped around the same time of evening and in

the same location where they normally patrolled.” PX-392, John Doe IV Decl. § 4; see PX-27,

John Doe IV Dep. 37:5-10 (“{W]hat I know is those soldiers come in, and live, come out or go

out from that Exxon area, they live there, their vehicles were there within the fence of Exxon, so

that means that those soldiers were the ones who guard Exxon.”).

Defendants argue that John Doe IV’s conclusion lacks support because he relied on his ~

observation of other Indonesian soldiers who-did not commit the assault. This argument hardly

warrants serious discussion. It is true that a reasonable jury need not accept John Doe IV’s ultimate

conclusion that the soldiers were affiliated with defendants. But at this stage, the Court does not

weigh the evidence or evaluate John Doe IV’s credibility. John Doe IV testified about his

67

familiarity with patrols conducted by soldiers stationed at Cluster 4 and that the soldiers who

accosted him appeared to be part of one of those patrols based on, among other things, the time

and location where he was stopped. The Court will pause only momentarily to reiterate that there

is ample support in the record that soldiers assigned to guard defendants’ operations conducted

perimeter patrols as part of their security services. See, e.g., PX-353 at CA000133427

The soldiers who stopped John Doe IV accused him of being a member of GAM, beat him,

carved the words GAM into his back, and eventually placed him in the rear of a military truck,

where he heard soldiers say they were bringing him to “A-13.” See CSMF ff 509-511. “A-13”

had a notorious reputation among locals as a “torture place,” CSMF § 515, and while John Doe IV

was not entirely sure where he was taken, he assumes that he was taken to A-13 because for the

next several melas, he was tortured, beaten, cut with knives, kept tied up, and forced to vivneati

and defecate in the same spot where he was tied, see, ¢.g., CSMF ff 515-16; PX-27, John Doe IV

Dep. 93:10—94:14. . .

As noted previously in the Court’s background discussion, there is abundant support in the

record for the Court to conclude that the soldiers stationed at A-13 provided security for

defendants’ facilities. Moreover, the inference that John Doe IV was taken to A-13 is a reasonable

one—the soldiers said they were taking him there. The Court need not belabor the point. Taking

all these facts together, a reasonable jury could conclude that the soldiers who detained and harmed

~John Doe IV were the same ones providing security for defendants. There is sufficient evidence

of causation to support John Doe IV’s direct liability claims at this stage.

(xi) John Doe VII

John Doe VII alleges that, in J anuary 2001, he was “accosted by members of ExxonMobil’s

security personnel” who took him inside of a warehouse at an Exxon-operated facility and beat

68

him severely before releasing him the next day. 2nd Am. Compl. § 182; see CSMF 4521. John

Doe VII brings claims for battery, assault, arbitrary arrest, detention and false imprisonment,

negligence, negligent hiring, and negligent supervision. - See 2nd Am. Compl. {J 199-235.

Defendants contend that John Doe VII has “no first-hand evidence linking his injuries to

defendants.” Defs.” Mem. 28. Defendants’ contentions are meritless.

In January 2001, John Doe VILwas visiting a neighbor, I, to celebrate a religious

festival. CSMF 4 522. AG) was located next to A-1. CSMF 4 522; see, e.g., PX-41,

GE Dep. 10:6 -17 (explaining that I was separated from A-1 only by “a little

alley, a little street”). At the party, John Doe VII saw another villager, J (a non-party to

this case). Jd. As John Doe VII and {ij were leaving I soldiers on guard duty

at A-1 called the men over to the Saner See CSMF 4 523; PX-28, John Doe VII Dep. 127:21-24,

168:9-13; PX-41 i Dep. 13:23-14:19. The soldiers pointed their guns at the men and

‘asked for IDs. CSMF J 523. After checking the IDs, the soldiers dragged John-Doe VII and

GE to the fence surrounding A-1, retrieved a key to the warehouse within A-1, and then

dragged the men into the warehouse. CSMF 524. Inside the warehouse, the soldiers turned on

loud music and beat John Doe VII and {ij using their hands, feet, boots, the butts of their

rifles, a hammer, a radio, and wooden planks. See, e.g., CSMF {§ 525-26. The men were held

overnight at A-1, while P's mother gathered a group of villagers and the village chief to

protest at the A-1 gate for the men’s return, See CSMF {ff 533-34: The next morning, the soldiers

took the men‘to a clinic operated by defendants at Point A before releasing them. See CSMF

{J 535-36.

Plaintiffs identify several links between defendants and the soldiers who harmed John Doe

VII and{iiiJ.. Together, there is more than enough evidence for a reasonable jury to conclude

69

that the soldiers who detained and beat John Doe VII and {J provided security for

defendants. First, there is witness testimony that these soldiers regularly provided security services

for EMOI’s employees and operations. See, e.g., PX-28, John Doe VII Dep. 146:4-147:7; 169:18-

170:8; PX-125 at 8 (“[H]e would see the soldiers often while they were working for Exxon...

when: they secured the road for Exxon convoys or when they worked at the gate to Exxon’s

compound”). John Doe VII andj even identified the specific soldiers by name when

explaining that they witnessed these same soldiers conducting patrols, guarding defendants’

facilities, and escorting defendants’ staff. See PX-28, John Doe VII Dep. 135:18-136:24; 147:15—

19, 148:23-25; PX-41, Dep. 15:22-16:17 (“Razali is a soldier that was for Exxon as well,

and he is a guard there. And he was always in and out of Exxon, and he was also involved in

patrolling in the neighboring villages as well.”); PX-125 at 8. John Doe VII also identified the

soldiers’ unit numbers—Units 111 and 113—and the soldiers’ commander (“Mr. Anggis”). See

CSMF J 529-31; PX~-28, John Doe VII Dep. 129:2-130:15. Defendants’ internal documents

reflect communications with “Anngit Exton” the “Komandan” of “Batalyon Infanteri 113.”

PX-118 at CA0001173763. Defendants’ internal documents also discuss Unit 113’s deployments

and supplying Unit 113 with vehicles and fuel. See PX-83 at CA0001334077; PX-82; PX-85.

Newspaper articles (in defendants’ files) also confirm that Unit 113 was stationed at or nearby the

locations where defendants operated. PX-75; PX-84. Finally, the soldiers took John Doe VII and

GD to @ defendant-operated clinic the moming after their meeting. CSMF { 535; see PX-41,

GE Dep. 19:21-20:6.

Defendants dispute whether they were affiliated with the A-1 facilities and the jury could .

infer an association from where the soldiers worked. See, e.g., SOF J 140, RCSMF { 140. Their

arguments are unavailing. First, whether defendants owned—or could exercise legal titlke—to A-1

70

is irrelevant to determine the soldiers’ relationship with defendants. See Defs.’ Mem. 29. If A-1

was a facility managed or operated by defendants, or was otherwise linked to defendants’

operations, that'is probative of the connection between the soldiers and defendants. There is

evidence in the record supporting the inference that the A-1 facilities were connected to

defendants’ operations. See, eg., PX-89 at CA0001147209; PX-121 at CA0001184163

(indicating that defendants paid for costs incurred at A-1); PX-41, IJ Dep. 11:2-12:21

(testifying about Exxon sign over A-1 facilities); PX-40, Dep. 47:12-20; PX-214. And the

testimony on which defendants rely to the contrary is ambiguous: Lance Johnson testified that the

A-1 camp was not “an MOI facility’—but counsel’s question could also be plausibly ‘be

understood as asking whether A-1 was a production facility. See, e.g. PX-15, Jobnson Dep.

180:1 1-1 2, 182:2-8. The Court must construe the record in a light most favorable to plaintiffs

Direct Liability Claims. There is sufficient evidence of causation at this stage for John Doe

VII's direct liability claims. Indeed, a reasonable jury need only credit the witnesses’ testimony

that the soldiers guarded defendants’ facilities and escorted defendants’ personnel. This testimony

is bolstered by evidence of the soldiers’ unit, commander, and location. A reasonable jury could

find that the soldiers who harmed John Doe VII were the same soldiers that defendants negligently

hired and supervised.

Indirect Liability Claims. For the reasons set forth above, a reasonable jury could find that

an employment relationship exists between the soldiers who harmed John Doe VII and defendants.

And there is sufficient evidence in the record of a functional connection as well. If the witness

testimony is credited, the soldiers who harmed John Doe VII were on duty and dragged him into

one of defendants’ operating facilities. See Doe, 69 F. Supp. 3d at 104. There is sufficient proof

of causation for John Doe VII's indirect liability claims.

71

C. EMC’s Liability For Plaintiffs’ Injuries «

With the detailed factual discussion in the rear, the Court turns to the remaining legal

arguments that defendants contend warrant judgment in their favor. Defendants next argue that

there is insufficient evidence to hold EMC vicariously liable for plaintiffs’ injuries. See Defs.’

Mem. 34. They are wrong. And in any event, defendants’ arguments are beside the point because

plaintiffs also sued EMC for its own negligence. . —

1. EMC’s Vicarious Liability Under Article 1367

The parties agree that Indonesian law governs whether EMC can be held vicariously liable

for EMO]’s actions. See Defs.’ Mem. 35 n.29; Pls.’ Opp’n 46-49; see also United States ex rel.

Small Bus. Admin. v. Pena, 731 F.2d 8, 11 (D.C. Cir. 1984). Vicarious liability is governed by

Indonesian Civil Code Article 1367. The Court has already described the applicable standard for

vicarious liability under Article 1367 in this opinion. There must be sufficient evidence for a

reasonable jury to find (1) that a principal-agent relationship exists and (2) that a wrongfukact was

committed in the course of performing the agency role or representation.

Turning first to the relationship, the issue is whether a reasonable jury could find either

(1) that EMC could instruct EMOI to carry out work and give instructions as to how that work was

to be carried out, or (2) that EMOI was appointed, cither formally or informally, by EMC to

represent EMC’s business to third parties. Lindsey Decl. J 36; see infra Sec.IV.B.3; Doe, 69 F.

Supp. 3d at 103-04. While defendants are correct that Judge Oberdorfer previously applied D.C.

law to the vicarious liability issue, his prior factual determinations squarely foreclose the

arguments that defendants make in their motion. As Judge Oberdorfer explained:

A reasonable trier of fact could conclude that EMOJI acted as

Exxon Mobil’s agent with regard to the military security for the huge

Arun gas field. Sufficient evidence demonstrates that Exxon Mobil

exerted significant control over EMOI’s security, particularly

72

through Exxon Mobil’s Global Security division. For example,

Exxon Mobil Vice President Lance Johnson wrote to Global

Security Manager Mike Farmer that “we need to rework the entire

security philosophy for Aceh.” Pls.’ Ex. 60. Global Security

evaluated EMOI’s security policies and procedures in detail and

prepared a report entitled “Indonesia Strategic Security Study,”

which Farmer sent to Johnson. Pls.’ Ex. 241. Farmer noted that the

report “identifies a range of critical tasks that must be completed

quickly to position MO] to respond to ongoing and potential security.

concerns.” Jd. He further stated that, “[f]or each task, we have

_~» attached responsibility, recommended a target completion date, and

indicated collaborative support required.” /d. Another report stated

that a key to risk reduction at EMOI was to “[e]nhance

implementation of XOM [Exxon Mobil] standards by enforcing

uncompromising controls across the board.” Pls.’ Ex. 320 at

CA0001047341 (emphasis in original).

There is also evidence explaining why Exxon Mobil would

exert so much control over EMOI’s security: EMO] was a subsidiary

“based on . . . exploring and producing oil and gas” and was not

“equipped to handle all the issues that were cropping up” related to

security. Johnson Dep. 56:21—57:21, Ex. 401. Thus, EMOJ did not

implement various security procedures without Exxon Mobil’s

significant guidance and participation. See Pls.’ Ex. 241 (“To meet

these very ambitious targets, MOI will require extensive support

from global staff services, particularly Security, Human Resources,

Public Affairs and Government Relations.”). As Farmer stated in

regard[] to the Indonesia Security Study, “The daily business

demands on MOI staff and management make it difficult, if not

impossible, to fully progress these items without external help.” Jd.

EMOI had to look to its parent corporation in these instances: “If

they said that they didn’t have the resources and they had a

significant problem, basically the only route that they had was to go

up the chain and request additional corporate kinds of support.”

Farmer Dep. 54:2—6, Pls.’ Ex. 405. Such a request of support is also

consistent with Plaintiffs’ stance regarding EMOI’s reliance on

* Exxon Mobil for funding in general, as EMOI made numerous “cash

calls” to Exxon Mobil for greater funds. Pls.’ Ex. 93.

Doe, 573 F. Supp. 2d at 31-32 (alterations in original). Applicable legal standard aside, for the

same reasons, a reasonable jury could find that EMC could instruct EMOI to carry out work and

give instructions as to how that work was to be carried out.

73

The Court turns then to the second issue: whether EMOI’s alleged Wrongdoings were

committed in the course of the agency relationship or representation. The Court has already

rejected defendants’ proposed requirement that EMC must have “specifically instructed” EMOI to

perform the work that resulted in plaintiffs’ injuries. See supra Sec.IV.B.3; Defs.” Mem. 35-36.

Instead, the relevant inquiry is whether there is sufficient evidence of a “functional connection”

between EMOI’s wrongful act and the work that EMOI was directed to perform. See supra.

Sec.IV.B.3. Judge Oberdorfer’s factual analysis is again sufficient—the functional connection

standard is satisfied here. The Court will provide a brief overview of the salient facts here.

As discussed, a reasonable jury could find that EMOI engaged or exerted control over the

Indonesian military providing security for defendants’ operations. And the examples in the record

indicative of connections between EMOI’s engagement of the Indonselan military and EMC’s

involvement in EMOI’s operations are numerous. For example, as Judge Oberdorfer explained,

the record reflects that “EMOI did not implement various security procedures without Exxon

Mobil’s significant guidance and participation.” Doe, 573 F. Supp. 2d at 31-32; see, e.g., PX-218

at CA0001 13588; PX-221 at CA0001194210 (email from EMC’s Farmer explaining that because

“the local and affiliate infrastructure have become less and less capable of dealing with the

situation, we have found it necessary to supplement the national security force with a full time

contractor, overseen by [Chong]}”). EMC produced a strategic security study on Indonesia in May

1999, identifying tasks for EMOI and recognizing that EMOI needed additional resources and

personnel in order to facilitate these goals. CSMF 9§j 191-92. EMC personnel, or individuals

otherwise selected by EMC, would ultimately play critical roles in overseeing EMOI’s security

policies and coordinating with the Indonesian military. .See, e.g., CSMF {J 189-90, 193 (listing

examples of these individuals and their roles), And there is evidence in the record that EMC

74

would, on an ongoing basis, continue to review EMOI’s security policies and prescribe tasks

pertinent to EMOI’s security and deployment of the military. PX-218, 226, 227, 228, 229.6

‘ In summary, a reasonable jury could find that EMC is vicariously liable for EMOI’s actions

under Article 1367.

2. EMC’s Direc€ Liability For Its Own Negtigence

Defendants’ motion for summary judgment..focuses on EMC’s vicarious liability ‘for

plaintiffs’ injuries—i.e., EMC’s liability for EMOI’s actions. But as plaintiffs point out, the

operative complaint also alleges that EMC is directly liable for its own negligence causing

plaintiffs’ injuries. 2nd Am. Compl. ff] 212-35. So even if EMC is not vicariously liable for

EMOI’s actions, to be entitled to judgment on all claims against it, there would also need to be

insufficient oviddenon of EMC’s direct liability for its own negligence. Yet ina footnate,

defendants fire a solitary parting shot at this theory:

« As described above, Plaintiffs have failed to provide evidence

connecting either Defendant to Plaintiffs’ alleged injuries. Even if

they could somehow show that EMOI in some way directed the

specific Indonesian soldiers that allegedly injured Plaintiffs—and

they cannot—EMC is still another several levels removed in the

chain of causation.

Defs.’ Mem. 34 n.28.7”

This perfunctory argument is insufficient to obtain summary judgment on the issue of

EMC’s liability. Rochon v. Lynch, 139 F. Supp. 3d 394, 398 n.13 (D.D.C. 2015), aff'd,

664 F. App’x 8 (D.C. Cir. 2016) (“[P]erfunctory and undeveloped arguments, and arguments that

36 A reasonable jury could also rely on facts in the record about EMOI’s and EMC’s shared business objectives,

operational goals, and infrastructure. See, e.g., Doe, 573 F. Supp. 2d at 26-29.

3’ Defendants’ reply gives this issue equally short shrift. See Defs.’ Reply 16 (“Plaintiffs have no evidence showing

that EMC—an entity that is even further removed in the chain of causation than EMOJ—is in any way directly liable

for their injuries.”).

75

are unsupported by pertinent authority; are deemed waived.” (quoting Johnson v. Panetta;

953 F.Supp.2d 244, 250 (D.D.C. 2013))). As described above, plaintiffs have provided sufficient

evidence connecting defendants to several of the ‘soldiers who injured plaintiffs. That showing

does not require evidence that defendants “in some way directed the specific Indonesian soldier.”

Defs.’ Mem. 34 n.28; see supra Sec.IV.B.3. Plaintiffs have also provided proof of EMC’s

involvement in EMOI’s security decis

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