MPRI Motion to Dismiss

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MILENA JOVIC, ZIVKA MIJIC, MIRA GRUBOR, BOSKO BJEGOVIC and DALIBOR MRKALJ, and all others similarly situated,

Plaintiffs,

v.

L-3 SERVICES, INC.; and ENGILITY HOLDINGS, INC.,

Defendants.

Civ. Action No. 10-cv-5197

Hon. John Z. Lee, U.S.D.J.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

James E. Tyrrell, Jr. Joseph E. Hopkins Lisa Ann T. Ruggiero PATTON BOGGS LLP One Riverfront Plaza, 6th Floor Newark, New Jersey 07102 Tel: (973) 848-5600 Fax: (973) 848-5601 Attorneys for Defendants Engility Holdings, Inc. and L-3 Services, Inc.

Paul T. Fox Thomas E. Dutton C. Allen Foster (pro hac vice pending) David S. Panzer (pro hac vice pending) GREENBERG TRAURIG LLP 77 W. Wacker Drive, Suite 3100 Chicago, Illinois 60601 (312) 456-8400 Attorneys for Defendants Engility Holdings, Inc. and L-3 Services, Inc.

Case: 1:10-cv-05197 Document #: 83 Filed: 07/01/13 Page 1 of 40 PageID #:707

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1FACTUAL BACKGROUND ......................................................................................................... 3STANDARD OF REVIEW ............................................................................................................ 5ARGUMENT .................................................................................................................................. 5I. PLAINTIFFS CLAIMS ARE TIME-BARRED................................................................ 5

A. Even if a Ten-Year Limitation Period Applied And Were Subject to Tolling, Plaintiffs Do Not Plead Facts Sufficient to Invoke that Relief and Their Complaint Is Therefore Untimely. ................................................................ 6

B. The Ten-Year Limitation Period is Not Subject to Tolling. ................................... 91. The Ten-Year Period Began when Plaintiffs Claims Arose and,

Therefore, Is Not Subject to Tolling. .......................................................... 92. The Ten-Year Period Is Jurisdictional and Therefore Not Subject

to Tolling. .................................................................................................. 12C. Plaintiffs Claims Are Time-Barred by the Governing State Statute of

Limitations. ........................................................................................................... 12II. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE

ATS, SECTION 1331, AND CAFA. ................................................................................ 14A. The Complaint Should be Dismissed Because Plaintiffs Cannot Overcome

the Presumption Against Extraterritoriality. ......................................................... 14B. There is No Private Right of Action Under Section 1331 for Violations of

International Law. ................................................................................................. 17C. CAFA Does Not Provide Jurisdiction for Plaintiffs Claims. ............................... 18

III. PLAINTIFFS HAVE FAILED TO PLEAD CLAIMS FOR WHICH RELIEF CAN BE GRANTED. ....................................................................................................... 19A. There Is No Corporate Liability Under the ATS. ................................................. 19B. Counts I, IV, V, VI, and VIII Should Be Dismissed Because Plaintiffs Do

Not Allege that Defendants Acted With the Requisite Mens Rea. ....................... 19C. Counts II, III, and VII Should Be Dismissed Because Plaintiffs Fail to

Plead Essential Elements of Principal Liability. ................................................... 20D. Plaintiffs State Law Conspiracy Claims in Counts IX and X are not

Sustainable as a Matter of Law. ............................................................................ 23


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1. Plaintiffs Claims for Conspiracy to Commit Forced Population Transfer and Destruction of Property Fail Under Both Illinois and Virginia Law. ............................................................................................ 23

2. Count X for Conspiracy to Commit Unlawful Conversion of Property Must Be Dismissed. ................................................................... 24

IV. PLAINTIFFS CLAIMS ARE BARRED BY THE ACT OF STATE DOCTRINE. ..................................................................................................................... 25

CONCLUSION ............................................................................................................................. 30STATEMENT OF COMPLIANCE WITH STANDING ORDERS ............................................ 30


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TABLE OF AUTHORITIES

CASES PAGE(S)

Abecassis v. Wyatt, 704 F.Supp.2d 623 (S.D. Tex. 2010) .......................................................................................20

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th 2012)...........................................................................................................21

Abramson v. P.J. Currier Lumber Co., No. 00-cv-315, 2001 U.S. Dist. LEXIS 1039 (D.N.H. Jan. 17, 2001) ....................................11

Ahmed-Al-Khalifa, vs. Queen Elizabeth II, No. 13-cv-103, 2013 U.S. Dist. LEXIS 71682 (N.D. Fla. Apr. 19, 2013) ..............................16

Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985).....................................................................................................28

Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705 (2d Cir. 1989).....................................................................................................20

Arroyo v. United States, 656 F.3d 663 (7th Cir. 2011) ...................................................................................................12

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................................5, 19, 20

Ayilla, v. The Salvation Army, No. 13-cv-289, 2013 U.S. Dist. LEXIS 78173 (N.D. Fla. Apr. 29, 2013) ..............................16

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) .............................................................................................19, 20

Bado-Santana v. Ford Motor Co., 283 F. Supp. 2d 520 (D.P.R. 2003) ............................................................................................8

Baker v. Carr, 369 U.S. 186 (1962) .................................................................................................................28

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ...........................................................................................................26, 29

Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483 (E.D. Va. 2003) ......................................................................................23

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................................5


iv

Bergquist v. Mann Bracken, LLP, 592 F.3d 816 (7th Cir. 2010) .....................................................................................................2

Bigio v. Coca-Cola Co., 675 F.3d 163 (2d Cir. 2012).....................................................................................................24

Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000) .....................................................................................29

Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) .....................................................................................................5

Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) .................................................................................................6

Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th 1990).......................................................................................................8, 10

Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010) ...................................................................................................11

Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009) .....................................................................................................5

Chesapeake Bay Assn v. Harbour Point Bldg. Corp., No. CL00-1893, 2002 Va. Cir. LEXIS 422 (Va. Cir. Ct. June 18, 2002)................................13

Clifford v. United States, No. 10-cv-774, 2011 U.S. Claims LEXIS 2168 (Fed. Cl. Nov. 8, 2011) ................................21

Conroy v. Aniskoff, 507 U.S. 511 (1993) (Scalia, J., concurring in judgment) .......................................................12

Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019 (W.D. Wash. 2005), affd, 503 F.3d 974 (9th Cir. 2007) .....................25

Credit Suisse Securities (USA) LLC v. Simmonds, ___U.S.___, 132 S. Ct. 1414 (2012) ..........................................................................................7

Crosby v. Natl Foreign Trade Council, 530 U.S. 363 (2000) ...................................................................................................................2

DelCostello v. Natl Bhd. of Teamsters, 462 U.S. 151 (1983) .................................................................................................................13

Doe I v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D. Cal. 2010) ...................................................................................19


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Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) ...........................................................................................27

Economopoulos v. Kolaitis, 259 Va. 806 (Va. 2000) ............................................................................................................24

Fayoade v. Spratte, 284 Fed. Appx. 345 (7th Cir. 2008) ...........................................................................................8

Firestone v. Wiley, 485 F. Supp. 2d 694 (E.D. Va. 2007) ......................................................................................23

Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013 (7th Cir. 2011) .................................................................................................19

Fritz v. Johnston, 209 Ill. 2d 302 (Ill. 2004) .........................................................................................................23

GPX Intl Tire Corp. v. United States, 666 F.3d 732 (Fed. Cir. 2011)..................................................................................................12

Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985) ........................................................................................17

Hassin v. EPA, No. 96-cv-7873, 2001 U.S. Dist. LEXIS 7476 (E.D. Ill. May 29, 2001) ................................21

Heinrich v. Sweet, 49 F. Supp. 2d 27 (D. Mass. 1999) ..........................................................................................22

Higginbotham v. Baxter Intl, Inc., No. 04-cv-4909, 2005 U.S. Dist. LEXIS 38011 (N.D. Ill. Dec. 22, 2005) ................................5

Hinkle v. Henderson, 85 F.3d 298 (7th Cir. 1996) .....................................................................................................10

Hoang Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004) .................................................................................................6

Hollander v. Brown, 457 F.3d 688 (7th Cir. 2006) .....................................................................................................7

Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, No. 10-cv-1884, 2011 WL 1900340 (N.D. Ill. Aug. 11, 2011) ...............................................26

Hopson v. Aguair Law Office, No. 12-cv-771, 2013 U.S. Dist. LEXIS 5844 (W.D. Ky. Jan. 15, 2013) .................................22


vi

In re Afr.-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027 (N.D. Ill. 2004) .......................................................................................6

In re Copper Antitrust Litig., 436 F.3d 782 (7th Cir. 2006) ...................................................................................................10

In re South African Apartheid Litig., 617 F. Supp.2d 228 (S.D.N.Y. 2009) .........................................................................................7

Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005) ...................................................................................................6

Jones v. Bock, 549 U.S. 199 (2007) ...................................................................................................................5

Jones v. Shooshan, 855 F. Supp. 2d 594 (E.D. Va. 2012) ........................................................................................9

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).......................................................................................................26

Kaplan v. Shure Bros., Inc., 153 F.3d 413 (7th Cir. 1998) ...................................................................................................11

Kerwin v. Balhatchett, 147 Ill. App. 561 (Ill. App. Ct. 1909) ......................................................................................25

Kiobel v. Royal Dutch Petro. Co., __ U.S. __, 133 S. Ct. 1659 (2013) ..........................................................................1, 12, 14, 15

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)...............................................................................................14, 19

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991) .................................................................................................................13

Law v. Medco Research, Inc., 113 F.3d 781 (7th Cir. 1997) .....................................................................................................8

Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797 (7th Cir.2008) ......................................................................................................6

Logan v. Wilkins, 644 F.3d 577 (7th Cir. 2011) .....................................................................................................6

McCann v. Hy-Vee, Inc., 663 F.3d 926 (7th Cir. 2011) ...............................................................................................6, 10


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McPherson v. United States, 392 F. Appx 938 (3d Cir. 2010) ...............................................................................................6

Miller v. Rite Aid Corp., 334 F.3d 335 (3d Cir. 2003).....................................................................................................11

Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011) .................................................................................................18

Mohammadi v. Islamic Republic of Iran, No. 09-cv-1289, 2013 U.S. Dist. LEXIS 76477 (D.D.C. May 31, 2013) ................................16

Morrison v. Natl Austl. Bank Ltd., 130 S. Ct. 2869 (U.S. 2010) ...............................................................................................14, 15

Mwani v. Bin Laden, No. 99-cv-125, 2013 U.S. Dist. LEXIS 74822 (D.D.C. May 29, 2013) ..................................16

Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) .......................................................................................................8

Nemmers v. United States, 795 F.2d 628 (7th Cir. 1986) .....................................................................................................1

Nocula v. UGS Corp., 520 F.3d 719 (7th Cir. 2008) ...................................................................................................25

Papa v. United States, 281 F.3d 1004 (9th Cir. 2002) ...................................................................................................6

Planned Parenthood of Ind., Inc. v. Commr of the Ind. State Dept of Health, 699 F.3d 962 (7th Cir. 2012) ...................................................................................................18

Pramuk v. Purdue Calumet Univ., No. 12-cv-77, 2012 U.S. Dist. LEXIS 177302 (N.D. Ind. Dec. 14, 2012) ................................7

Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) ......................................................................................26

Ray v. Maher, 662 F.3d 770 (7th Cir. 2011) .....................................................................................................7

Republic of Austria v. Altmann, 541 U.S. 677 (2004) .................................................................................................................25

Samirah v. OConnell, 335 F.3d 545 (7th Cir. 2003) ...................................................................................................11


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Sampson v. Federal Republic of Germany, 975 F. Supp. 1108 (N.D. Ill. 1997) ..........................................................................................21

Sandy Creek Condominium Assn v. Stolt & Egner, 267 Ill. App. 3d 291 (Ill. App. Ct. 2d Dist. 1994) ....................................................................24

Sarei v. Rio Tinto, 2013 U.S. App. LEXIS 13312 (9th Cir. Cal. June 28, 2013) ..................................................16

Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) ...................................................................................................19

Scher v. Bayer Corp., 258 F.Supp.2d 190 (E.D.N.Y. 2003) .......................................................................................11

Serra v. Lappin, 600 F.3d 1191 (9th Cir. 2010.) ................................................................................................18

Simon v. Republic of Iraq, 529 F.3d 1187 (D.C. Cir. 2008) ...............................................................................................11

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ........................................................................................................2 12, 14

Springman v. AIG Mktg., 523 F.3d 685 (7th Cir. 2008) ...................................................................................................12

Teamsters & Employers Welfare Trust v. Gorman Bros., 283 F.3d 877 (7th Cir. 2002) .....................................................................................................8

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) ...........................................................................................17, 18

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ...................................................................................................................5

Tire Engg & Distribution, LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d 292 (4th Cir. 2012) ...................................................................................................24

United States v. Kubrick, 444 U.S. 111 (1979) .............................................................................................................8, 10

Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504 (8th Cir.1983) ....................................................................................................11

Velez v. Bank of N.Y. Mellon Trust Co. N.A., No. 12-cv-1008, 2012 U.S. Dist. LEXIS 153716 (E.D. Va. Oct. 23, 2012) ............................24


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Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (D.D.C. 2006) ...........................................................................................10

W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Intl., 493 U.S. 400 (1990) .................................................................................................................25

White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998) .....................................................................................22

Williams v. Buss, 538 F.3d 683 (7th Cir. 2008) .....................................................................................................7

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) ...........................................................................................17

Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008) .....................................................................................................8

STATUTES

735 ILCS 5/13-202 ........................................................................................................................12

735 ILCS 5/13-215 ..........................................................................................................................9

18 U.S.C. 1091 ............................................................................................................................21

28 U.S.C. 1331 ............................................................................................................2, 14, 17, 18

28 U.S.C. 1605 ............................................................................................................................11

28 U.S.C. 1332 ........................................................................................................................2, 18

28 U.S.C. 1652 ........................................................................................................................6, 14

28 U.S.C. 1350 .................................................................................................................... passim

Va. Code Ann. 8.01-243(A) ..........................................................................................................3

OTHER AUTHORITIES

Restatement (Second) of Torts, 222A .........................................................................................25

Rome Statute of the International Criminal Court, art. VI ............................................................21

Rule 12(b) ..............................................................................................................................5, 7, 30


INTRODUCTION

The Third Amended Complaint (Complaint) Plaintiffs fourth attempt to sue

Defendants1 must be dismissed because the applicable statutes of limitation lapsed, the Court

lacks subject matter jurisdiction, and the Complaint contains no viable cause of action and

should be dismissed based on the Act of State Doctrine.

This putative class action arises from a single, three-day military conflict between

Serbians within Croatia and the Croatian Government that began on August 4, 1995. No

relevant statute of limitations extends long enough to accommodate Plaintiffs tardiness in

bringing this suit fifteen years after the factparticularly where Defendants purported

involvement in aiding the Croatian Government was documented in the media in 1995 and

continuously thereafter. See Nemmers v. United States, 795 F.2d 628, 632 (7th Cir. 1986)

(statutes of limitation bring cases to the legal system before memories fade and evidence

disappears).

Even if the relevant statutes of limitations did not foreclose this action, geography does.

This Term, in Kiobel v. Royal Dutch Petro. Co., __ U.S. __, 133 S. Ct. 1659, 1660 (2013), the

United States Supreme Court held there is a strong presumption that federal jurisdiction, no

matter how invoked, does not extend to extraterritorial torts, whether based on international law

or otherwise. All of the injuries alleged here occurred in Croatia, and claims based on those

injuries cannot be maintained in a federal court.

1 Claims initially were brought against MPRI, Inc. (MPRI). After the alleged events, MPRI was acquired by L-3 Communications Corporation (L-3) and ultimately merged into Defendant L-3 Services, Inc. (L-3 Services), an L-3 subsidiary. In July 2012, L-3 spun off certain businesses and during that process L-3 Services was acquired by Engility Corporation (Engility). Effective July 18, 2012, Engility is the only proper Defendant. Even if this motion is denied as to Engility, it should be granted as to L-3 Services, which no longer carries any liability for MPRIs historical activities.


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And even if Plaintiffs could overcome time and space, they still cannot surmount Article

III. Plaintiffs have not identified any federal question to support this Courts Article III

jurisdiction. The ten counts allegedly arise under both 28 U.S.C. 1331 (federal question) and

1350 (federal questionAlien Tort Statute (ATS)). But none of the first nine counts identifies

any state or federal tort, which is necessary to invoke jurisdiction under the ATS, nor any federal

cause of action, which is necessary to invoke this Courts federal question jurisdiction under

Section 1331. Instead, each count alleges a violation of so-called international law.

International law by itself, however, does not create a cause of action. Some of the international

laws identified in the Complaint are based on treaties, which themselves create no private rights

of action, while others represent Plaintiffs view of what private international law ought to be. In

no instance does any Plaintiff invoke any federal or any state statute or any recognized state or

federal cause of action. The tenth count alleges conversion of real property, but conversion only

applies to chattels, and only where those converted chattels have been identified with specificity.

Apparently recognizing that their Complaint does not allege any viable federal question,

Plaintiffs also invoke the Class Action Fairness Act of 2005, 28 U.S.C. 1332(d) (CAFA) a

form of diversity jurisdiction. See Bergquist v. Mann Bracken, LLP, 592 F.3d 816, 818 (7th Cir.

2010). Plaintiffs, though, have failed to identify any relevant state law cause of action necessary

to support a claim under this Courts diversity jurisdiction. This too is not surprising given that

states have been consistently warned to avoid actions that intrude into foreign affairs, the

exclusive domain of the federal government. See Crosby v. Natl Foreign Trade Council, 530

U.S. 363 (2000). Correspondingly, the federal courts [have been] particularly wary of

impinging on the discretion of the Legislative and Executive Branches in managing foreign

affairs. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).


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During the time this case was stayed, Plaintiffs claims continued to erode. In November

2012, former Croatian Generals Ante Gotovina and Mladen Marka were acquitted of all charges by the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber.

Compl. 60.2 Plaintiffs have relied heavily on the facts alleged against these individuals as

support for their own claims and continue to do so even where the ICTY has now rejected those

claims. See, e.g., Compl. 37, 60-69. While ICTY findings and rulings are not binding on this

case, the Gotovina and Marka acquittals nonetheless lend further support to the argument that the Court should dismiss this case based on the Act of State Doctrine, rather than wade into

issues of international sovereignty over which global opinion is sharply divided.

FACTUAL BACKGROUND

On August 4, 1995, the Croatian Government began Operation Storm, a three-day

military campaign within Croatias Krajina region. Compl. 1, 57, 60. Each of the putative

class representatives claims to have suffered loss of real property and unspecified personal

property from the artillery bombardment on August 4, 1995 and from their ensuing efforts to

escape. Compl. 73, 76, 77, 92. On the first day of the military operation, Plaintiffs Jovic and

Mijic both set off toward Bosnia. Compl. 74-79. Plaintiff Jovic and her family now reside in

Serbia and have lived there for the last sixteen years. Compl. 76. Plaintiff Mijic and her

family have resided in the United States since July 2000. Compl. 79. After moving to New

Zealand for twelve years, Plaintiff Grubor now resides in Belgrade, Serbia. Compl. 91.

Plaintiffs Bosko Bjegovic and Dalibor Mrkalj have both lived in the United States for

approximately 15 years. Compl. 93, 102. Bjegovic initially relocated to Serbia and moved to

the U.S. in 1998, becoming a U.S. citizen in 2004. Compl. 99-100. Mrkalj moved to Serbia

2 ICTY Appeals Chamber Judgment Vol. I at 4, Judgment, Prosecutor v. Gotovina, Case No. IT-06-90-A (Nov. 16, 2012) (available at http://www.icty.org/x/cases/gotovina/acjug/en/ 121116_judgement. pdf).


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in 1995 and then to the Chicago area in 1998, where he became a U.S. citizen and lives today.

Compl. 106.

As early as August 20, 1995, the Chicago Tribune reported that MPRI . . . provided

training [to the Croatian military] in [various forms of] warfare[.] Compl. 41(b) n.8. In early

November 1995, Londons The Observer published a story entitled Invisible US Army Defeats

Serbs, quoting an unidentified Croatian officer saying we needed [Defendants] for Operation

Storm when we took the Krajina. Compl. 47 n.9. In addition to these two publications cited

by Plaintiffs in their Complaint, there were books, articles, and other media making the same

claims, a number of which are also cited in the Complaint. See, e.g., Compl. 120 n.19, 37 n.6.

Moreover, the four iterations of Plaintiffs Complaint have relied upon the ICTY

indictments of former Croatian Generals Ante Gotovina and Mladen Marka for factual content about alleged wrongdoing during Operation Storm. See, e.g., Compl. 60, n.5, 13, 71. But, in

November 2012, these former Croatian Generals were acquitted of all charges by the ICTY

Appeals Chamber, id. 60, on a finding that no joint criminal enterprise existed in connection

with their involvement in Operation Storm,3 that the bombardment at issue in this case was not

illegal,4 and that the deportations, forcible transfers and persecutions alleged here did not

constitute violations of international law.5 Despite this ruling, Plaintiffs now assert, for the first

time, that Defendants took a lead role as a co-conspirator of the plan to expel the Krajina Serb

population and directly participated in the joint criminal enterprise. Compl. 111. 3 ICTY Appeals Chamber Judgment 96, Prosecutor v. Ante Gotovina (IT-06-90-A) (finding that no reasonable trial chamber could conclude that the only reasonable interpretation of the circumstantial evidence on the record was the existence of a JCE with the common purpose of permanently removing the Serb civilian population from the Krajina by force or threat of force). 4 Compare Compl. 1, 73, 77, 84, 96, 98 with ICTY Appeals Chamber Judgment 84, Prosecutor v. Ante Gotovina (IT-06-90-A). 5 Compare Compl. 347, 62, 123 with ICTY Appeals Chamber Judgment 97, Prosecutor v. Ante Gotovina (IT-06-90-A).


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STANDARD OF REVIEW

A complaint must allege facts sufficient to state a plausible claim for relief, Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009), meaning that it must contain allegations that raise a right to

relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This

means something more . . .than . . . a statement of facts that merely creates a suspicion [of] a

legally cognizable right of action. Id. Bare legal conclusions are not entitled to the

assumption of truth and do not suffice. Iqbal, 556 U.S. at 679. On a Rule 12(b) motion, the

Court may properly consider the complaint, all documents incorporated into it by reference, and

matters of which a court may, in the normal course, take judicial notice. See Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).6 Further, if allegations in the complaint

show that relief is barred by the statute of limitations, the complaint is subject to dismissal.

Jones v. Bock, 549 U.S. 199, 215 (2007); Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).

ARGUMENT

I. PLAINTIFFS CLAIMS ARE TIME-BARRED.

The Complaint is time barred on its face under every potential period of limitations from

Virginias and Illinois two-year limitations to the ten-year window frequently borrowed from

the Torture Victim Protection Act of 1992 (TVPA) 2(c). While the ATS does not contain an

explicit statute of limitations, for claims comparable to those pleaded by Plaintiffs, all of the

courts to have addressed the issue7 agree that the ten-year limitation period governing claims

under the closely analogous TVPA applies. Chavez v. Carranza, 559 F.3d 486, 492 (6th Cir.

6 Courts routinely take judicial notice of public statements, not to prove truth of assertions they contain, but to show the statements were made or to assess the speakers state of mind. See, e.g., Higginbotham v. Baxter Intl, Inc., No. 04-cv-4909, 2005 U.S. Dist. LEXIS 38011, at *5-6 (N.D. Ill. Dec. 22, 2005). 7 As this Court is not one of the courts that has had occasion to rule upon this issue, these papers illustrate for the Court several possible interpretations of the limitations period applicable to the ATS, including that it operates akin to a statute of repose. The claims in this lawsuit are untimely under any theory.


6

2009); Jean v. Dorelien, 431 F.3d 776, 778-79 (11th Cir. 2005); Cabello v. Fernandez-Larios,

402 F.3d 1148, 1153 (11th Cir. 2005); Hoang Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir.

2004); Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002); McPherson v. United States,

392 F. Appx 938, 945 (3d Cir. 2010); see also In re Afr.-Am. Slave Descendants Litig., 304 F.

Supp. 2d 1027, 1069 (N.D. Ill. 2004) (dicta). Particularly given the direct and overt nature of the

injuries that Plaintiffs allege they suffered, their claims aroseand the limitation period began to

runon August 4, 1995 when Operation Storm commenced, and fifteen years before they

initiated this action on August 17, 2010. Compl. 1, 57. Applying the ten-year statute adopted

from the TVPA, Plaintiffs were required to bring their ATS claim no later than August 4, 2005.

They allowed that deadline to pass, then waited another five years to file suit. Thus, their claims

are time-barred. Nor are Plaintiffs able to avail themselves of equitable tolling theories in order

to avoid this outcome, having pleaded facts that preclude any such relief.

Furthermore, any limitation period, when applied to the ATS, should not be subject to

tolling both because the ATS is a jurisdictional statute, and also because it is triggered when a

cause of action arises. See McCann v. Hy-Vee, Inc., 663 F.3d 926, 930 (7th Cir. 2011) (such a

trigger is not subject to tolling). And finally, under the Rules of Decision Act, 28 U.S.C. 1652,

the claims at issue are governed by an even shorter state statute of limitations than the TVPAs

ten-year period.

A. Even if a Ten-Year Limitation Period Applied And Were Subject to Tolling, Plaintiffs Do Not Plead Facts Sufficient to Invoke that Relief and Their Complaint Is Therefore Untimely.

Under the law of this Circuit, when the allegations of the complaint reveal that relief is

barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to

state a claim. See Logan v. Wilkins, 644 F.3d 577, 582-83 (7th Cir. 2011) (quoting Andonissamy

v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008)); Limestone Dev. Corp. v. Vill. of


7

Lemont, 520 F.3d 797, 802 (7th Cir.2008); see also Hollander v. Brown, 457 F.3d 688, 691 n.1

(7th Cir. 2006) (dismissal under Rule 12(b)(6) may be appropriate when a plaintiff effectively

pleads himself out of court by alleging facts demonstrating that his suit is barred by the statute of

limitations). And, in the context of a Rule 12(b)(6) motion, any equitable tolling argument a

plaintiff may raise will be unavailing when, all assertions of the complaint, as read with

required liberality, would not permit the plaintiff[] to prove that this statute was tolled. In re

South African Apartheid Litig., 617 F. Supp.2d 228, 287 (S.D.N.Y. 2009) (internal quotations

and citations omitted); see also Ray v. Maher, 662 F.3d 770, 773 (7th Cir. 2011); Pramuk v.

Purdue Calumet Univ., 12-CV-77, 2012 WL 6552920, at *5 (N.D. Ind. Dec. 14, 2012)

([W]here a complaint does not plead any facts that could support a justification for tolling the

statute of limitations the complaint may be properly dismissed under Rule 12(b)(6).). Such is

the case here.

Generally, a litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstances stood in his way. Credit Suisse Secs. (USA) LLC v. Simmonds, ___U.S.___, 132

S. Ct. 1414, 1419 (2012); Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008). Here, the

Complaint not only fails to plead facts sufficient to demonstrate either prong but to the contrary,

demonstrates that the public was well aware of Defendants alleged involvement in the operative

facts for nearly two decades and yet Plaintiffs did nothing until three years ago. This is hardly

the sort of diligent pursuit envisioned by the Court in Credit Suisse. Credit Suisse, 132 S. Ct.

at 1419.

And Plaintiffs cannot cure their lack of diligence by contending that they learned details

of MPRIs deep involvement in Operation Storm . . . within the last 12-18 months. See


8

generally Law v. Medco Research, Inc., 113 F.3d 781, 785 (7th Cir. 1997) (statute of limitations

not tolled in the context of a securities litigation during the time that a plaintiff has enough facts

in hand to enable them to file a complaint that would comply with the requirements of the

Federal Rules of Civil Procedure). Even if, arguendo, Plaintiffs had only recently uncovered

facts demonstrating Defendants deep involvement in Operation Storm, the calculus would not

change in the slightest. Where Plaintiffs have already alleged years of knowledge that, inter alia,

[m]any of the Croatian officers engaged in [Operation Storm] . . . had attended courses given by

15 former U.S. Army generals, colonels and master sergeants [from MPRI],8 there are no

deeper details that would suffice to toll the statute for their claims. See Fayoade v. Spratte,

284 Fed. Appx. 345 (7th Cir. 2008) (limitations period begins to run once plaintiff has

knowledge that would lead a reasonable person to investigate infringement of legal rights);

United States v. Kubrick, 444 U.S. 111, 122-23 (1979); Nasim v. Warden, Md. House of Corr.,

64 F.3d 951, 956 (4th Cir. 1995); Bado-Santana v. Ford Motor Co., 283 F. Supp. 2d 520, 525

(D.P.R. 2003).

Equitable tolling is reserved for those cases where, without fault by the defendant, the

plaintiff is unable by the exercise of due diligence to obtain the information that he needs in

order to be able to sue within the statutory period. Teamsters & Employers Welfare Trust v.

Gorman Bros., 283 F.3d 877, 884 (7th Cir. 2002). [E]quity, however, aids the vigilant, not

those who sleep on their rights. Lantz v. C.I.R., 607 F.3d 479, 483 (7th Cir. 2010) (citations

omitted); see also Yuan Gao v. Mukasey, 519 F.3d 376, 378-79 (7th Cir. 2008); Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 453 (7th 1990). In this case, Plaintiffs own allegations

8 See, e.g., Uli Schmetzer, How West Let Croatia Sneak Arms, Chi. Trib., Aug. 20, 1995 (article cited at Compl. 41(b) n.8).


9

demonstrate that they had both the ability and information necessary to file the instant lawsuit

well within the limitation period. See Statement of Facts, supra, pp. 3-4 (describing Plaintiffs

recitation in their Complaint of their many years of residency in the U.S. or other nations from

which suit could be brought, along with domestic and international media reports and public

filings dating as far back as August 1995, purporting to describe MPRIs alleged involvement in

Operation Storm).

Nor does there exist any species of equitable tolling under state law that would cure

Plaintiffs untimeliness with respect to their state law claims. Even if Illinois five-year

fraudulent concealment limitation period were applied, widespread media reporting about

Defendants alleged role in Operation Storm during the waning months of 1995 would have

caused the action to be time-barred by the close of 2000 at the latest. See 735 ILCS 5/13-215

(2013) (allowing five-year limitation period for commencement of an action in cases of

fraudulent concealment). And Virginia law rejects any discovery rule, meaning that the two-year

limitation period runs from the moment the cause of action arises rather than from the time of

discovery of injury. See Jones v. Shooshan, 855 F. Supp. 2d 594, 601-602 (E.D. Va. 2012)

(citing Va. Military Inst. v. King, 217 Va. 751, 759, 232 S.E.2d 895 (1977)).

B. The Ten-Year Limitation Period is Not Subject to Tolling.

1. The Ten-Year Period Began when Plaintiffs Claims Arose and, Therefore, Is Not Subject to Tolling.

The TVPA provides: No action shall be maintained under this section unless it is

commenced within 10 years after the cause of action arose. TVPA 2(c) (emphasis added).

By ending the Plaintiffs ability to bring suit ten years after a claim arose, the TVPA can cut-

off a right of action, even before it matures. In contrast, a statute of limitation begins running


10

upon the accrual of some claim. McCann, 663 F.3d at 930 (emphasis added).9 The TVPA is

triggered by an external event which may not be related to the accrual of a claim, like the

proverbial sponge negligently left in a patient, which may not cause harm or be discovered but

that still triggers a statute of repose. See Hinkle v. Henderson, 85 F.3d 298, 301 (7th Cir. 1996).

A statute of repose is not subject to tolling and is intended to protect defendants and the courts

from having to deal with cases in which the search for truth may be seriously impaired by the

loss of evidence, whether by death or disappearance of witnesses, fading memories,

disappearance of documents, or otherwise. Kubrick, 444 U.S. at 117. Like a classic statute of

repose, the ten-year limitation in the TVPA begins running not when the claim accrued but,

rather, when the injury occurred and the cause of action arose.

The distinction between arose and accrued was best explained in Vine v. Republic of

Iraq, 459 F. Supp. 2d 10, 20-21 (D.D.C. 2006), affd on other grounds, sub nom Republic of Iraq

v. Beaty, 556 U.S. 848 (2009). There, the court held that the plaintiffs injuries arose in

December 1990, when they were held as hostages by the Iraqi regime, and not in April 1996,

when Congress amended the Foreign Sovereign Immunities Act and permitted plaintiffs to sue

Iraq. Id. at 21. At the time, the FSIAs ten-year limitation was worded almost exactly as is

section 2(c), but, unlike section 2(c), expressly permitted equitable tolling. In so holding, the

court drew a distinction between when a cause of action arises and when it accrues. Id. A

claim arises on the date that the action in question occurred, yet does not accrue until a prior

disability to suit is removed. Id. By analogy, as currently worded, the ten-year period in

section 2(c) can expire before a cause of action accrues. As such, the use of the word arose as

9 Therefore, a true statute of limitation can never run before a plaintiffs rights have matured. Unless Congress has provided otherwise, a claim arising under federal law accrues when the plaintiff has discovered or reasonably should have discovered the injury. See In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir. 2006); Coda v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990).


11

opposed to accrued demonstrates that section 2(c) is a statute of repose and not limitations.

And this distinction between arose and accrued is widely recognized in this and other

circuits. See Chang v. Baxter Healthcare Corp., 599 F.3d 728, 734 (7th Cir. 2010) (A claim

accrues when the statute of limitations begins to run; a claim that could not have been

discovered by the date on which it arose will not (in a jurisdiction with a discovery rule) accrue

then.); Kaplan v. Shure Bros., Inc., 153 F.3d 413 n.6 (7th Cir. 1998) ([A] cause of action can

arise before it accrues.).10

Equitable tolling applies to a statute of limitations (because it can extend the time when

an action accrues), but it does not apply to a statute of repose (focused solely on when the cause

of action arose). Were it otherwise, it would have been unnecessary for Congress to have

inserted express equitable tolling language in the FSIAs period of limitation. See 28 U.S.C.

1605(f), repealed by Pub. L. No. 110-181, Div. A, Title X, 1083(b)(1)(B), 122 Stat. 341 (Jan.

28, 2008); Simon v. Republic of Iraq, 529 F.3d 1187, 1194 (D.C. Cir. 2008) (Section 1605(f)

expressly incorporates principles of equitable tolling.). Section 1605(f) provided as follows:

No action shall be maintained under [ 1605(a)(7)] unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period.

Such express tolling language is conspicuously absent from the TVPA.11

10 Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 510 n. 4 (8th Cir.1983) (noting that in certain contexts, the words accrue and arise have significantly different meanings.); Abramson v. P.J. Currier Lumber Co., 2001 WL 274772, *1, 2001 U.S. Dist. LEXIS 1039, at *3 (D.N.H. Jan. 17, 2001) (The point at which a cause of action arises can be different from the point at which it accrues.). 11 The fact that section 2(c) of the TVPA is titled statute of limitations cannot change the text or its meaning nor can it limit the plain meaning of the text. Samirah v. OConnell, 335 F.3d 545, 548-49 (7th Cir. 2003) (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947)); see, e.g., Miller v. Rite Aid Corp., 334 F.3d 335, 340 (3d Cir. 2003). Nor can a title be used to create an ambiguity. See Scher v. Bayer Corp., 258 F. Supp.2d 190, 193 (E.D.N.Y. 2003). Nor is the legislative history of the TVPA relevant, when one is seeking to have a court import its limitations period into


12

2. The Ten-Year Period Is Jurisdictional and Therefore Not Subject to Tolling.

A limitation period that is jurisdictional may not be tolled even if it is a true statute of

limitations, as opposed to statute of repose. See Arroyo v. United States, 656 F.3d 663, 679 (7th

Cir. 2011) (Posner, J., concurring). The ten-year period at issue here, even though borrowed

from the TVPA, is quintessentially jurisdictional because it applies solely to a jurisdictional

provisionsection 1350. See Kiobel, 133 S. Ct. at 1660 (stating that the ATS is a jurisdictional

statute); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). A limitation period

attached to a solely jurisdictional provision cannot be anything other than jurisdictional and, for

this reason too, equitable tolling is unavailable to Plaintiffs.

C. Plaintiffs Claims Are Time-Barred by the Governing State Statute of Limitations.

Plaintiffs common-law causes of action for conspiracy under Virginia and Illinois law

areamong other infirmities, discussed belowalso time-barred by the applicable statutes of

limitation. As a first principle, Count IX (Conspiracy to Commit Forced Population Transfer and

Destruction of Property) and Count X (Conspiracy to Commit Unlawful Conversion of Property)

are putatively being heard on diversity jurisdiction and, therefore, state law governs the

limitations period. See Springman v. AIG Mktg., 523 F.3d 685, 688 (7th Cir. 2008) (state law

governs limitations defense in diversity suit). Both Illinois and Virginia provide a two year

limitations periods for these types of claims. 735 ILCS 5/13-202 (2008) (two-year limitation

another cause of action. Relying on legislative history is perilous under the best of circumstances, much like entering a crowded cocktail party and looking . . . for ones friends. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment). Where the legislative history unfolded nearly two centuries after the legislation at issue was enacted, the exercise is more like entering a crowded cocktail party and looking for ones long deceased ancestors. When Congress wants the legislative history of one act to be used in interpreting another, it expressly so states. See GPX Intl Tire Corp. v. United States, 666 F.3d 732, 742 (Fed. Cir. 2011). Here, there is nothing in the TVPA that states or even suggests that the laws legislative history should somehow be used to interpret or inform a statute of limitations that has been exported by some courts and applied to another law.


13

period for personal torts); Va. Code Ann. 8.01-243(A) (2013) (two-year limitation period for

torts); Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, P110, at *82 (Ill. App. Ct. 1st Dist.

2013) (conspiracy claim governed by limitation period for underlying tort); Bd. of Dirs. of the

Lesner Pointe Condo. on the Chesapeake Bay Assn v. Harbour Point Bldg. Corp., No. CL00-

1893, 2002 Va. Cir. LEXIS 422, at *26 (Va. Cir. Ct. June 18, 2002) (same under Virginia law).

Thus, Plaintiffs should have brought these claims on or before August 4, 1997 (two years after

Operation Storm began).

Furthermore, these same state law statutes of limitations should also apply to Plaintiffs

remaining claims. Two rules govern borrowing where Congress has failed to provide a statute of

limitationsone where there is a federal cause of action and the other where there is not. When

dealing with a federal cause of action, a court borrows or absorbs the local time limitation

most analogous to the case at hand. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

501 U.S. 350, 355-56 (1991). As noted above, a number of courts, adhering to this guidance,

have imported the TVPAs ten year statute of limitations for use with the ATS. See Section I,

supra. Nevertheless, where no federal cause of action has been pleaded and no privately

enforceable federal substantive law is at issue, the appropriate state statute of limitations governs

for two reasons. First, if no federal cause of action has been pleaded, the precondition for using

a federal limitations period, namely a conflict between a state limitations and a federal

substantive right, does not and cannot exist. See DelCostello v. Natl Bhd. of Teamsters, 462

U.S. 151, 161 (1983) (emphasis added). The ATSthe sole basis of this complaintcreates no

cause of action. The ATS is a jurisdictional statute creating no new causes of action, . . . [and

is] best read as having been enacted on the understanding that the common law would provide a

cause of action for the modest number of international law violations with a potential for


14

personal liability at the time. Sosa, 542 U.S. at 724. Second, uniform reliance on the state

statute of limitations is compelled by the Rules of Decision Act, 28 U.S.C. 1652, which

provides that [t]he laws of the several states, except where the Constitution or treaties of the

United States or Acts of Congress otherwise require or provide, shall be regarded as rules of

decision in civil actions in the courts of the United States, in cases where they apply. 28 U.S.C.

1652. Since the Complaint points to no federal cause of action, the laws of the several states,

including those states statutes of limitations, necessarily apply.

II. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE ATS, SECTION 1331, AND CAFA.

A. The Complaint Should be Dismissed Because Plaintiffs Cannot Overcome the Presumption Against Extraterritoriality.

The violations alleged in the Complaint are the purported result of a Croatian military

operation carried out within its own borders. Compl. 1. Thus, Kiobel is dispositive: neither

Section 1350 (ATS) nor Section 1331 provides a jurisdictional basis for wrongs committed

abroad. In Kiobel, the Supreme Court reaffirmed the presumption against extraterritoriality. The

Court also held that this presumption applied to jurisdictional statutes as well substantive ones,

and the Court further narrowed the scope of the ATS by making it unavailable for violations of

the law of nations occurring outside the United States. Kiobel, 133 S. Ct. at 1669.12 To

overcome this presumption of extraterritorial application, a plaintiffs claims must touch and

concern the territory of the United States [and] must do so with sufficient force. Id. (citing

Morrison v. Natl Austl. Bank Ltd., 130 S. Ct. 2869 (U.S. 2010) (emphasis added). However, it

is arguable whether a touch and concern analysis could even be applied to the purely 12 The Kiobel court also held that federal common law is subject to the presumption against extraterritorial application. Id. at 1668-69 (Nothing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign.). Thus, Plaintiffs attempt at jurisdiction via federal common law (Compl. 10, 146, 147) also fails for the reasons articulated in this section.


15

jurisdictional ATS without completely eviscerating the presumption against extraterritorial

application. Al Shimari v. CACI Intl, Inc., 08-cv-827, at *18 (E.D. Va. June 25, 2013).

Here, the Plaintiffs cannot overcome this presumption. Operation Stormthe catalyst

for all of Plaintiffs alleged damagestook place in the Croatian cities of Knin, Titovi Karemice,

Grubori, Vrbnik, and Topusko. See, e.g., Compl. 1, 73, 77, 89, 94, 102, 110. Any allegedly

wrongful activities took place in Croatia:

1. Defendants purportedly finalized and solidified the operational plan for Operation Storm during at least 10 separate meetings that took place in Croatia (Compl. 41(d), 55-56);

2. Defendants allegedly had an Operation Storm preparation meeting with Croatian leaders on the Brioni Islands in Croatia (Compl. 55);

3. Defendants were allegedly present in Croatia during Operation Storm and monitored the military offensive from a Croatian operations center (Compl. 41(d), 116-117);

4. Plaintiffs claim the Defendants were present in Croatia often enough to provide the Croatian military with confidence (Compl. 41(d), 112);

5. Defendants allegedly provided instructional seminars in Croatia and sophisticated war-gaming computer simulations in Croatia (Compl. 41, 47, 50); and

6. Defendants purportedly sent a 14-member advisory team to Croatia in 1994 (Compl. 41(b)).

Simply: the War in the Balkans took place in the Balkans.

Indeed, this Court has already recognized that the conduct giving rise to the alleged

claims took place in Croatia. See Dkt. No. 39 (Mem. Op.) at 12 (in analyzing the situs of

material events, the Court found that [b]oth parties concede that the bulk of material events

took place abroad, and pointed out that Plaintiffs expressly argue that the focus of this case is

primarily on MPRIs activities in Croatia ). Any remaining activities such as maintaining a

corporate presence in the U.S. and making staffing and related decisions in Virginia do not

overcome the presumption against exterritorial application, as several courts have recently

confirmed. Kiobel, 133 S. Ct. at 1669; see also Morrison, 130 S. Ct. at 2884 ([I]t is a rare case


16

of prohibited extraterritorial application that lacks all contact with the territory of the United

States.); Sarei v. Rio Tinto, 2013 U.S. App. LEXIS 13312 (9th Cir. Cal. June 28, 2013); Al

Shimari, 08-cv-827, at *18 (rejecting plaintiffs f-squared argument against an American

military contractor and holding that the ATS does not provide jurisdiction over [ ] claims, which

involve tortious conduct occurring exclusively outside the territory of the United States);

Ahmed-Al-Khalifa v. Queen Elizabeth II, No. 13-cv-103, 2013 U.S. Dist. LEXIS 71682, at *5

(N.D. Fla. Apr. 19, 2013) (In light of Kiobel, the ATS cannot confer subject-matter jurisdiction

onto plaintiffs claims because the violations at issue all occurred outside of the United States,

and the South African apartheid does not touch or concern the United States in such a way

that would overcome the ATSs presumption against extraterritoriality.); Mohammadi v. Islamic

Republic of Iran, No. 09-cv-1289, 2013 U.S. Dist. LEXIS 76477, at *50-51 (D.D.C. May 31,

2013); Ayilla v. The Salvation Army, No. 13-cv-289, 2013 U.S. Dist. LEXIS 78173, at *5-7

(N.D. Fla. Apr. 29, 2013).

Indeed, the only time a court has found that an alleged overseas violation of international

law sufficiently touches and concerns the U.S. to overcome the presumption against

extraterritoriality has been where such overseas actions were directed at the United States

government, with the intention of harming this country and its citizens[,]namely, where a

terrorist assault by Al Qaeda was mounted on a U.S. embassy. Mwani v. Bin Laden, No. 99-cv-

125, 2013 U.S. Dist. LEXIS 74822, at *12 (D.D.C. May 29, 2013). Plaintiffs proffer no

connections to the U.S. even approaching the equivalent. And the court in Al Shimari recently

illustrated how strong the presumption is against extraterritorial application of the ATS when it

dismissed an ATS suit against a military contractor for alleged war crimes committed in Abu

Ghraib prison. Al Shimari, 08-cv-827, at *18. In Al Shimari, the plaintiffs were held in a prison


17

controlled by the U.S. military in territory controlled at least in part by the U.S. and purportedly

harmed by contractors hired directly by the U.S. governmentfar greater connections to the

U.S. than the Jovic Plaintiffs have pleaded. Id. Even this was insufficient to overcome the

presumption against extraterritoriality because the tortious conduct occur[ed] exclusively

outside the territory of the United States. Id. For this reason alone, Plaintiffs ATS claims

should be dismissed.

B. There is No Private Right of Action Under Section 1331 for Violations of International Law.

For the first time, Plaintiffs now assert that this Court has subject matter jurisdiction over

Counts I - VIII pursuant to 28 U.S.C. 1331 based on the theory that the individual claims are

each a violation of some unspecified international law. Compl. 128-147; see 28 U.S.C.

1331. Yet, there is no private right of action for violations of international law under 28 U.S.C.

1331. See Xuncax v. Gramajo, 886 F. Supp. 162, 194 (D. Mass. 1995) ([B]ecause international

law is not itself a source of private rights of action -- as is, for example, the common law of

contracts or torts -- a plaintiffs claims for violation of human rights cannot ordinarily arise

under federal-common-law-cum-international-law and consequently, 1331 jurisdiction does

not extend to such claims.) (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779-80 n.4

(D.C. Cir. 1984); id. at 811 (Bork, J., concurring); Handel v. Artukovic, 601 F. Supp. 1421, 1427

(C.D. Cal. 1985) (while international law may provide the substantive rule of law in a given

situation, the enforcement of international law is left to the individual states.)).

Despite general allegations of violation of unspecified international law, the Complaint

sounds exclusively in violations of customary international law (aka the law of nations). See

Compl. 128-147 (alleging genocide, crimes against humanity, etc.). While customary

international law is a part of U.S. federal common law, see The Paquete Habana, 175 U.S. 677,


18

700 (1900), it is understood that customary international lawlike ordinary international

lawdoes not confer a private right of action on individuals that is enforceable in U.S. courts

under 28 U.S.C. 1331. Tel-Oren, 726 F.2d at 778 (The law of nations never has been

perceived to create or define the civil actions to be made available by each member of the

community of nations.). Indeed, violations of customary international law may only be brought

to the United States District Courts via the ATS or TVPA. Serra v. Lappin, 600 F.3d 1191,

1197-98 n.7 (9th Cir. 2010.) (If any plaintiff could bring a claim alleging a violation of the law

of nations under federal-question jurisdiction, there would be no need for statutes such as the

[ATS] and Torture Victim Protection Act.); see also Mohamad v. Rajoub, 634 F.3d 604, 608

(D.C. Cir. 2011), affd, Mohamad v. Palestinian Auth., ___U.S.___, 132 S. Ct. 1702 (2012). As

described above, however, Plaintiffs claims are deficient under the ATS, see, Section II, supra,

and, further, the TVPA is not an available remedy as against a corporate entity. Mohamad, 132

S. Ct. at 1702. Therefore, Counts I through VIII fail for want of subject matter jurisdiction.

C. CAFA Does Not Provide Jurisdiction for Plaintiffs Claims.

Plaintiffs attempt to base subject matter jurisdiction on CAFA is misguided. Compl.

11. CAFA was not intended to, nor does it, provide a jurisdictional basis for suits regarding

international human rights violations committed overseas. See Senate Report No. 109-14, at III

(Purposes) (Feb. 28, 2005). Instead, CAFA was aimed at ensuring that interstate class actions

could be heard in federal court. See id. And indeed, the field of human rights violations is pre-

empted by the ATS and TVPA, leaving no room for CAFA. See Planned Parenthood of Ind.,

Inc. v. Commr of the Ind. State Dept of Health, 699 F.3d 962, 984 (7th Cir. 2012).

Furthermore, as discussed above, Plaintiffs have not pleaded any viable causes of action under

state law that might be pursued through this avenue of jurisdiction. See Section I.C, supra.

Plaintiffs therefore cannot avail themselves of jurisdiction.


19

III. PLAINTIFFS HAVE FAILED TO PLEAD CLAIMS FOR WHICH RELIEF CAN BE GRANTED.

A. There Is No Corporate Liability Under the ATS.

The issue of corporate liability under the ATS may be considered unsettled in this

Circuit, see Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011), but

Defendants respectfully urge the Court to adopt the Supreme Courts guidance in Sosa and the

Second Circuits rationale in Kiobel that liability against corporate military contractors is not a

well-defined norm of international law for purposes of jurisdiction under the ATS. See Kiobel v.

Royal Dutch Petroleum Co., 621 F.3d 111, 136 (2d Cir. 2010).

B. Counts I, IV, V, VI, and VIII Should Be Dismissed Because Plaintiffs Do Not Allege that Defendants Acted With the Requisite Mens Rea.

Plaintiffs five causes of action for complicity and aiding and abetting liability fail to

allege the requisite mens rea of purpose or intent. See Sarei v. Rio Tinto, PLC, 671 F.3d

736, 750 (9th Cir. 2011), vacated, 133 S. Ct. 1995, 2013 U.S. LEXIS 3271 (2013); see also Doe

I v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D. Cal. 2010). First, Count VIII patently fails because

Plaintiffs only assert that Defendants acted with the lesser mens rea of knowledge for its claim

of aiding and abetting crimes against humanity. Thereafter, despite years to consider this

pleading defect for the other accessorial liability claims, Plaintiffs now only insert the words

intent and purpose into allegations in support of four of their other causes of action for

aiding and abetting and complicity (Counts I, IV, V and VI). But buzz words alone are not

enough to overcome this shortcoming. See Iqbal, 556 U.S at 679; Aziz v. Alcolac, Inc., 658 F.3d

388, 401 (4th Cir. 2011).

And the facts in the Complaintlifted almost whole cloth from an ICTY indictment from

which the accused were ultimately acquittedonly proffer the description of a decades-long

animosity between Croats and Serbs beginning well before the dissolution of the former


20

Yugoslavia and continuing through Operation Storm. Compl. 16-31. The alleged historical

animosity between those two peoples cannot support an inference that Defendants acted with the

purpose of facilitating the commission of atrocities against Serbs. See Abecassis v. Wyatt, 704 F.

Supp.2d 623, 654-55 (S.D. Tex. 2010). This comes nowhere close to a plausible allegation of

intent as the Fourth Circuit made clear in Aziz when addressing an almost identical situation.

Aziz, 658 F.3d at 401 (quoting Iqbal, 556 U.S at 679) (cursory allegation untethered to any

supporting facts, constitutes a legal conclusion that neither binds [this Court] . . ., nor is entitled

to the assumption of truth[.]). As in Aziz, Plaintiffs here have failed to plead factual content

that allows the court to draw the reasonable inference that [either of the Defendants] is liable for

the misconduct alleged. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). For these

reasons, too, claims of complicity and aiding and abetting must be dismissed.

C. Counts II, III, and VII Should Be Dismissed Because Plaintiffs Fail to Plead Essential Elements of Principal Liability.

There is no basis for the conclusory accusations in Counts II, III, and VII that Defendants

directly engaged in acts of genocide, crimes against humanity, and forced population transfer

particularly after Plaintiffs themselves conceded that any such allegations would amount to rank

speculation. (D.E. 1, at 66 n.18.) In 2010, Plaintiffs could not then specifically allege that

MPRI personnel participated in the genocidal campaign of Operation Storm because they said

Plaintiffs have been unable to discover whether any MPRI personnel actually served in this

capacity, and hence refrain from raising a reasonable speculationthat they did so serve. Id.

Having made that concession to this Court, Plaintiffs cannot now with impunity level such

allegations against Defendants without also pleading new facts to support these serious

allegations. See Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 707 (2d Cir. 1989).

But Plaintiffs proffer no new factual detail, instead claiming that because Defendants are


21

supposedly so experience[d] in covert operations that such evidence remains hidden.

Compl. 16. This is precisely the sort of speculation prohibited by Iqbal. Plaintiffs causes of

action for principal liability are thus deficient.

And, with respect to Plaintiffs claim of genocide, the Genocide Convention

Implementation Act of 1987 (the Proxmire Act), 18 U.S.C. 1091-93, established a federal

statutory framework preempting such claims where the alleged offender is a U.S. national, a

lawful permanent U.S. resident, a stateless person residing in the United States, or present in the

United States. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 678 (7th 2012) (citing 18

U.S.C. 1091; Sampson v. Federal Republic of Germany, 975 F. Supp. 1108, 1119-1120 (N.D.

Ill. 1997)). Plaintiffs must therefore bring their claims pursuant to the Proxmire Act. However,

claims under the Proxmire Act are criminal in nature and do not provide civil jurisdiction or a

private right of action. See Clifford v. United States, No. 10-cv-774, 2011 U.S. Claims LEXIS

2168, at *8 (Fed. Cl. Nov. 8, 2011) (claims under 1091 are criminal claims, and [a]s such,

they are outside the [Federal Claims] Courts jurisdiction); Hassin v. EPA, No. 96-cv-7873,

2001 U.S. Dist. LEXIS 7476, at *6-7 (E.D. Ill. May 29, 2001) (federal genocide statute

specifically bars individuals from pursuing a private cause of action.). Therefore, because

Defendants are present in the U.S., the genocide claim fails. Abelesz, 692 F.3d at 667-68.

Even assuming, arguendo, that the Proxmire Act does not preempt and preclude

Plaintiffs claim for genocide, Plaintiffs still have failed to plead its essential elements. Looking

to the Rome Statute as a consensus of customary international law, genocide requires an

intent to destroy, in whole or in part, a national, ethnical, racial or religious group. See Rome

Statute of the International Criminal Court, Art. VI, July 18, 1998, 2187 U.N.T.S. 90. Thus, to

sustain their claim, Plaintiffs would have to allege that Defendants committed one of the


22

enumerated genocidal acts in the Rome Statute with such intent. Plaintiffs do not plead (nor

could they) that any of Defendants personnel harbored any hatred or animosity towards the

Serbs, nor acted with the intent to destroy this group. Recognizing this, Plaintiffs plead that

Defendants had only the mens rea of understanding and knowledge. Compl. 139. Thus,

even if not preempted by the Proxmire Act, Count II fails.

Similar to claims for genocide, there exists no private right of action for crimes against

humanity outside of the ATS and, thus, Count III also fails. Heinrich ex rel. Heinrich v. Sweet,

49 F. Supp. 2d 27, 43 (D. Mass. 1999) (no recognized cause of action for civil responsibility for

crimes against humanity); Hopson v. Aguair Law Office, No. 12-cv-771, 2013 U.S. Dist. LEXIS

5844, at *6 (W.D. Ky. Jan. 15, 2013) (where federal jurisdiction pleaded for war crimes and

crimes against humanity, these grounds are criminal in nature and do not provide for private

causes of action or civil remedies); White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash.

1998).

Nor can Plaintiffs support their allegation of forced population transfer pursuant to

Article 49 of Fourth Geneva Convention13 because Defendants are not of the class that may be

prosecuted for such activity. See Compl. 141. Article 49 of the Fourth Geneva Convention

proffers liability only against an Occupying Power. See Article 49 of Fourth Geneva

Convention. Accordingly, Count VII fails because the defendant must be an Occupying Power

and Plaintiffs do not, nor could they, allege that Defendants ever occupied the Krajina.

13 Plaintiffs assert that Article 49 of Fourth Geneva Convention is the consensus of customary international law for a claim of forced population transfer. See Compl. at n.25.


23

D. Plaintiffs State Law Conspiracy Claims in Counts IX and X are not Sustainable as a Matter of Law.

Alleged violations of international law are properly brought under the ATS or TVPA,

Plaintiffs cannot instead bootstrap them to a catch-all claim for unlawful conduct under Illinois

and Virginia law. Nor, in any event, have Plaintiffs properly pleaded these causes of action

under Illinois or Virginia law.

1. Plaintiffs Claims for Conspiracy to Commit Forced Population Transfer and Destruction of Property Fail Under Both Illinois and Virginia Law.

The Complaint does not even bother to identify the elements of civil conspiracy in

Illinois or Virginia, let alone plead how such elements are satisfied.14 Plaintiffs also fail to allege

the requisite underlying tort or crime cognizable under Illinois or Virginia law for the

international law violations that they characterize as Forced Population Transfer and

Destruction of Property in Count IX. Fritz, 209 Ill. 2d at 307. In addition, under either Illinois

or Virginia law, Plaintiffs must allege specific facts from which the existence of a conspiracy

may properly be inferred. Fritz, 209 Ill. 2d at 318; Firestone v. Wiley, 485 F. Supp. 2d 694, 703

(E.D. Va. 2007) (stating to that to survive a motion to dismiss on common law civil conspiracy,

plaintiff must plead agreement in more than mere conclusory language because "a conspiracy

claim asserted in mere conclusory language is based on inferences that are not fairly or justly

drawn from the facts alleged" (quoting Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC,

261 F. Supp. 2d 483, 499-500 (E.D. Va. 2003))). Plaintiffs fall short in this regard too, alleging

that General Vuono and Defendants representatives attended meetings together on Brioni Island 14 The requirements for a civil conspiracy in Illinois are: (1) a combination of two or more persons, (2) for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of which one of the conspirators committed an overt tortious or unlawful act. Fritz v. Johnston, 209 Ill. 2d 302, 317 (Ill. 2004). The elements for this claim under Virginia are substantially similar. See Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (citing Glass v. Glass, 228 Va. 39, 321 S.E. 2d 69 (Va. 1984)).


24

in 1995, but not that they conspired with the Croatian Government to launch Operation Storm.

Compl. 55; see also Bigio v. Coca-Cola Co., 675 F.3d 163, 176 (2d Cir. 2012) (the Court

dismissing claims for civil conspiracy because plaintiffs did not plead facts suggesting the

existence of an agreement to accomplish an unlawful design). Like the Bigio plaintiffs, the

Plaintiffs here failed to plead the necessary elements, relying instead on innuendo and

speculation. Compl. 55-56. Plaintiffs similarly fail to plead that Defendants had the requisite

unlawful purpose. See Sections II B and C, supra.

Moreover, Virginia law provides that this type of claim generally requires proof that the

underlying tort was committed and Plaintiffs do not because they cannot provide such

proof. Velez v. Bank of N.Y. Mellon Trust Co. N.A., No. 12-cv-1008, 2012 U.S. Dist. LEXIS

153716, at *18 (E.D. Va. Oct. 23, 2012) (quoting Tire Engg & Distrib., LLC v. Shandong

Linglong Rubber Co., Ltd., 682 F.3d 292, 311 (4th Cir. 2012)). Plaintiffs cannot shoehorn the

alleged international law violations of Forced Population Transfer and Destruction of Property

in Count IX into any actionable tort in Virginiaand there is no all-encompassing tort of

unlawful conduct that could sweep within its ambit the allegations associated with Operation

Storm. Where there is no actionable claim for the underlying alleged wrong, there can be no

action for civil conspiracy based on that wrong. Velez, 2012 U.S. Dist. LEXIS 153716, at *18.

2. Count X for Conspiracy to Commit Unlawful Conversion of Property Must Be Dismissed.

Whether under Illinois or Virginia law, Plaintiffs conspiracy claim fails because

conversion applies only to personal property, not realty. See Sandy Creek Condo. Assn v. Stolt

& Egner, 267 Ill. App. 3d 291, 295 (Ill. App. Ct. 2d Dist. 1994) (noting that the sale of real

property will not sustain a cause of action for conversion); Economopoulos v. Kolaitis, 259 Va.

806, 814 (Va. 2000) (Conversion is the wrongful assumption . . . over goods or chattels);


25

Restatement (Second) of Torts, 222A. The homes on the land allegedly abandoned by

Plaintiffs as a result of Operation Storm are not subject to conversion, as they are part of the

realty.

Furthermore, Plaintiffs do not allege that any particular items of personal property were

lost in Operation Storm; instead they simply plead that all or much of their personal

property was lost. See, e.g., Compl. 75, 92, 98. This generalized manner of pleading is not

sufficient because conversion does not operate on chattels generally, but specifically, such as

money in coin or bills, animals, or other property capable of identification as being the actual

property or thing wrongfully taken and converted. Kerwin v. Balhatchett, 147 Ill. App. 561,

565-566 (Ill. App. Ct. 1909). Indeed, the Court would be hard-pressed to adjudicate a

conversion claim for all or much personal property with no further description. For these

reasons, the cause of action for conspiracy to commit conversion must be dismissed.

IV. PLAINTIFFS CLAIMS ARE BARRED BY THE ACT OF STATE DOCTRINE.

Adjudicating this case will compel this Court not only to assess the lawfulness of

Defendants conduct, but also to rule upon the legality of a military offensive launched by the

Croatian Government within its own borders to suppress those it considered dangerousa

quintessential example of a sovereign act. See Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019,

1022-23 (W.D. Wash. 2005), affd, 503 F.3d 974 (9th Cir. 2007) (holding that military orders

are official acts of the sovereign). The Act of State Doctrine prohibits this. See Republic of

Austria v. Altmann, 541 U.S. 677, 700 (2004); W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp.,

Intl., 493 U.S. 400, 406 (1990); Nocula v. UGS Corp., 520 F.3d 719, 727 (7th Cir. 2008).

To determine whether the Doctrine bars a lawsuit, courts must consider: (1) the degree of

international consensus regarding the acts of the foreign government challenged by the suit; (2)

the implications of the suit for U.S. foreign relations; and (3) whether the government accused of


26

perpetrating the alleged wrongful acts remains in existence. See Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 428 (1964); see also Holocaust Victims of Bank Theft v. Magyar

Nemzeti Bank, No. 10-cv-1884, 2011 WL 1900340, at *5 (N.D. Ill. Aug. 11, 2011). Each of

these factors weighs in favor of the application of the Doctrine and the dismissal of this action.

The first factor requires that courts employ a sliding scale, whereby [t]he more clear-

cut the alleged violation of international law, the less deference is due to the acts of a foreign

sovereign, and vice-versa. Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.

Supp. 2d 289, 345 (S.D.N.Y. 2003). The Act of State Doctrine should be applied in a context . .

. in which world opinion [is] sharply divided. Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir.

1995). On this sliding scale, the Croatian Government should receive considerable deference for

Operation Storm because world opinion is divided.15 Some, including Plaintiffs, condemn the

military campaign, whereas others, including the U.S. Government,16 have voiced support for the

campaign and credit it with ushering in the period of relative peace the Balkans enjoy today.17

Adding to this is the November 2012, ICTY appellate court acquitted of Croatian

Generals Gotovina and Marka, ruling that both had been erroneously convicted by the ICTY 15 Indeed, sixteen years later the International Court of Justice is still grappling with the legality of Operation Storm in a separate pending case between the states of Croatia and Serbia. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Intl Ct. of Justice), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=cry&case=118&k=73 (last visited June 4, 2013) (subject to judicial notice for fact of pendency of the action in the International Court of Justice and the fact that allegations have been raised that genocidal acts were committed during Operation Storm). 16 David N. Gibbs, First Do No Harm: Humanitarian Intervention and the Destruction of Yugoslavia 164 (Vanderbilt Univ. Press 2009) (relied on by Plaintiffs, as cited at Compl. 20(c) n.3). Sources relied upon by Plaintiffs show measured U.S. Government support existed for the Operation Storm offensive. 17 Articles cited in Complaint: see, e.g., Uli Schmetzer, How West Let Croatia Sneak Arms, Chi. Trib., Aug. 20, 1995 (article cited at Compl. 41(b) n.8) (Western diplomats believe the flow of arms and the presence of American advisers were part of a strategy masterminded by Washington and Bonn in the belief that a more powerful Croatia would force Bosnian Serbs to seek a negotiated settlement.); see also Marcus Tanner, Croatia: A Nation Forged in War 298 (Yale Univ. Press 2010) (1997) (quoting International Security Review 1996, Royal United Services Institute for Defence Studies, London, 1996 p. 67) (quoting President Clintons view that Operation Storm would lead to peace in the Balkans).


27

Trial Chamber for their involvement in Operation Storm. Compl. 60; accord Judgment,

Prosecutor v. Gotovina, ICTY Case No. IT-06-90-A. The crux of this acquittal was based on a

ruling that the artillery shelling during Operation Storm was not in violation of international law.

Id. Plaintiffs allege in their pleadings this same artillery shelling was a key component of the

Operation Storm battle plan that injured them. Compl. 58.

Indeed, with regard to the first Sabbatino factor, precedent involving other long-running

socio-political tensions reinforces the notion that U.S. courts should be wary of inserting

themselves into such situations. In Doe I v. State of Israel, 400 F. Supp. 2d 86, 95 (D.D.C.

2005), for example, the court addressed a similar lawsuit involving the nearly 60-year-old

conflict between Israelis and Palestinians. That court concluded that [t]he first factor [of the

act-of-state analysis] requires little attention, as it is undeniable that the Israeli-Palestinian

conflict has

MPRI Motion to Dismiss

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