# John Doe I v. Exxon Mobil Corp

> District Court, District of Columbia · August 2, 2022

URL: https://www.frixlaw.com/law-library/cases/7797255

## Case

- **Court:** District Court, District of Columbia
- **Decided:** August 2, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Royce C. Lamberth
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

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## Opinion text

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

fe
(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7797255. Public record. Not legal advice.