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Footnotes

1

Plaintiffs' fourteen-count Amended Complaint asserts claims under the labels “conspiracy,” “demand for an accounting,” “crime against humanity,” “piracy,” “intentional infliction of emotional distress,” “conversion,” “unjust enrichment,” “42 U.S.C. § 1982,” “Alien Torts [Statute],” “Illinois state claim,” “Louisiana state claim,” “New Jersey claim,” “New York state claim,” and “Texas state claim.”

2

See also Johnson v. United States, 70 F.3d 1279, No. 94-36012, 1995 WL 713502 (9th Cir. 1995) (political question doctrine, standing, sovereign immunity); Bey v. United States, No. 02-705 (W.D. Pa. Oct. 31, 2002) (report and recommendation) (political question doctrine, statute of limitations), adopted, No. 02-705 (W.D. Pa. Dec. 19, 2002) (memorandum order); Bell v. United States, No. Civ. A. 301CV0338D, 2001 WL 1041792 (N.D. Tex. Aug. 31, 2001) (standing, sovereign immunity); Campbell v. IRS, No. 1:01 CV 588, 2001 U.S. Dist. LEXIS 23639 (N.D. Ohio Mar. 31, 2001) (statute of limitations, failure to exhaust administrative remedies); Butts v. IRS, No. 1:01CV0589, 2001 WL 1823930 (N.D. Ohio Mar. 26, 2001) (sovereign immunity); Boatwright v. IRS, No. 1:01CV0063, 2001 WL 350238 (N.D. Ohio Feb. 28, 2001) (same); Boatwright v. IRS, Case No. 1:01 CV 70, 2001 U.S. Dist. LEXIS 3100 (N.D. Ohio Feb. 28, 2001) (statute of limitations, failure to exhaust administrative remedies); Bey v. United States Dep't of Justice, No. 95 CIV. 10401 (LMM), 1996 WL 413684 (S.D.N.Y. July 24, 1996) (adopting Cato) (standing, political question doctrine, sovereign immunity); Langley v. United States, No. C. 95-4227 SBA, 1995 WL 714378 (N.D. Cal. Nov. 30, 1995) (standing);

4

See also Deutsch v. Turner Corp., 317 F.3d 1005, 1028-29 (9th Cir.) (affirming dismissal of slave labor claims against private corporations as, inter alia, time-barred), amended by324 F.3d 692 (9th Cir.), petition for cert. filed, 71 U.S.L.W. 3776 (U.S. June 2, 2003); Wolf v. Fed. Republic of Germany, 95 F.3d 536, 544 (7th Cir. 1996) (dismissing claims against private defendant on standing grounds); Kelberine v. Societe Internationale, 363 F.2d 989, 992 (D.C. Cir. 1966) (dismissing on justiciability and statute of limitations grounds reparations claims for World War II era slave labor against private company); Ungaro-Benages v. Dresdner Bank AG, No. 01-CV-2547 (S.D. Fla. Feb. 14, 2003) (memorandum opinion) (dismissing claims against private defendants for seized property on grounds of standing, statute of limitations, justiciability, and failure to state a claim), appeal filed, No. 03-11880 (l1th Cir. 2003); In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d 370, 389 (D.N.J. 2001) (dismissing slave and forced labor claims as nonjusticiable); Fishel v. BASF Group, No. 4-96-CV-10449, 1998 U.S. Dist. LEXIS 21230, at *26-33 (S.D. Iowa Mar. 11, 1998) (holding claims arising out of corporation's forced-labor practices during World War II to be time-barred).

5

Indeed, the Amended Complaint does not aver any contact whatsoever between any defendant and any one of plaintiffs' ancestors.

6

The law in the other jurisdictions mentioned in the Amended Complaint would lead to the same result. SeeN.J. Stat. Ann. § 2A:15-3 (2003) ( “[e]xecutors and administrators may have an action for any trespass done to the person ... of their testator or intestate”); Estate of Maselli by Maselli v. Silverman, 606 F. Supp. 341, 343 (S.D.N.Y. 1985) (noting that New York law “requires all surviving actions be brought by a legally appointed representative”); Frazier v. Wvnn, 472 S.W.2d 750, 752 (Tex. 1971) (“It is settled in Texas that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.”); Snipes v. Estates Admin., Inc., 28 S.E.2d 495, 498 (N.C. 1944) (noting that the “better, and more orderly, procedure” is for administrator of estate to bring action on behalf of estate rather than heirs bringing suit); Berryhill v. Nichols, 158 So. 470, 471 (Miss. 1935) (action for injuries to decedent outside scope of wrongful death act must be maintained by decedent's personal representative and “not by the next of kin or heirs at law”); S.C. Code Ann. § 62-3-703(c) (2002) (“personal representative of a decedent ... has same standing to sue ... as his decedent had immediately prior to death”); Strader v. Metro. Life Ins. Co., 105 S.E. 74, 76 (Va. 1920) (noting that legatee may not maintain action to recover property of decedent without approval from personal representative of decedent's estate). Finally, current Louisiana law (La. Civ. Code Ann. art. 2315.1 (2003)) provides that designated relatives may bring action for damages caused to their decedent by offense or quasi-offense (the civil law analogues to tort), but the same statute specifies that any such action must be brought within one year of the death of the relative whose rights are sought to be asserted, which unquestionably has not happened here. This time period is “peremptive” under Louisiana law, and thus not subject to tolling or extension. See Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 906-07 (5th Cir. 1985) (applying Louisiana law and affirming judgment against widow and surviving children who failed to bring suit within one year of death).

7

Moreover, all of the claims plaintiffs seek to assert on behalf of their ancestors were abated and extinguished no later than the dates of death of the various persons in whose favor they might have originally accrued. Even if their ancestors had a cause of action arising from pre-emancipation slavery (cf. infra § IV.A), such an action must necessarily have accrued no later than the enactment of the Thirteenth Amendment in 1865, and there is no dispute that all such ancestors are now deceased. “At common law, when a person died any personal tort causes of action which he might have had died with him.” Burgess v. Clairol, Inc., 776 F. Supp. 1278, 1283 (N.D. Ill. 1991) (citation omitted). All states have now modified this universal common-law rule by statute, enacting so-called survival acts. However, these survival acts cannot provide any benefit to plaintiffs, because virtually without exception they were first enacted well after 1865 - indeed, in many cases, not until the 20th century. See, e.g., Wilmere v. Stibolt, 504 N.E.2d 916, 917 (11. App. Ct. 1987) (Illinois Survival Act was first enacted in 1872); Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1167 (Miss. 1992) (claims for “injuries or torts done to the person” did not survive under Mississippi law prior to 1871) (quotation omitted); Hofer v. Lavender, 679 S.W.2d 470, 471-72 (Tex. 1984) (common law rule in Texas first changed by adoption of survival act in 1895); Hoke v. Atl. Greyhound Corp., 38 S.E.2d 105, 108 (N.C. 1946) (tort claims for personal injury did not survive under North Carolina law prior to 1915 amendment of survival act); Fontheim v. Third Ave. Ry., 12 N.Y.S.2d 90, 92 (App. Div. 1939) (noting 1935 enactment of first New York statute providing for survival of causes of action for personal injury); Ferguson v. Charleston Lincoln/Mercury, Inc., 544 S.E.2d 285, 288 (S.C. Ct. App. 2001) (noting that personal injury claims did not survive death in South Carolina prior to 1905 amendment of statute), aff'd,564 S.E.2d 94 (S.C. 2002); see also Miller v. Am. Mut. Liab. Ins. Co., 42 So. 2d 328, 330 (La. Ct. App. 1949) (“[B]oth at common law and at civil law a right of action for damages for personal injuries does not survive in case of death [but rather] died with the death of the injured party.....”).

8

The California statutory claim, asserted in the Hurdle complaint, was not included in the Amended Complaint. Cf. infra n.57.

9

The “standard and almost universal” practice under federal law has been to borrow the statute of limitations applicable to the most analogous cause of action under the law of the state in which the federal court sits. 19 Charles A. Wright, et al., Fed. Prac. & Proc. § 4519, at 595 (1996); see, e.g., North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“Since 1830, “state statutes have repeatedly supplied the periods of limitation for federal causes of action' when federal legislation made no provision.”) (quoting Auto. Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04 (1966)); Wilson v. Garcia, 471 U.S. 261 (1985) (adopting state law personal injury limitation period for claims under 42 U.S.C. § 1983).

10

See Ratification Status of the Rome Statute at <http:// untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp #N6>.

11

See Ratification Status of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity at <http:// 193.194.138.190/html/menu3/b/treaty6.htm>.

12

See, e.g., Deutsch, 317 F.3d at 1028-29;Hair v. United States, 52 Fed. Cl. 279 (2002); Hohri v. United States, 847 F.2d 779 (Fed. Cir. 1988); Ungaro-Benages, No. 01-CV-2547, mem. op. at 23-27; Iwanowa, 67 F. Supp. 2d at 424;Fishel, 1998 U.S. Dist. LEXIS 21230; Japanese War Notes Claimants Ass'n of the Philippines, Inc. v. United States, 373 F.2d 356 (Ct. Cl. 1967); Sampson v. Fed. Republic of Germany, 975 F. Supp. 1108 (N.D. 11.1997), aff'd,250 F.3d 1145 (7th Cir. 2001); Handel, 601 F. Supp. at 1434.

13

Plaintiffs also refer to efforts in Congress, repeated for the past eleven years, to obtain legislative relief for slavery. See Am. Compl. „ 195. But plaintiffs do not explain how these failed legislative efforts, more than a century after emancipation, invoke the discovery rule.

14

Moreover, the discovery rule is inapplicable as a matter of law to certain of plaintiffs' statutory claims. Canal Marine Supply, Inc. v. Outboard Marine Corp., 522 So. 2d 1201, 1204 (La. Ct. App. 1988) (one-year limitations period applicable to Lousiana unfair trade practices and consumer protection claim is “peremptive,” and thus subject neither to the discovery rule nor any other tolling doctrine); Wender v. Gilberg Agency, 716 N.Y.S. 2d 40, 41-42 (App. Div. 2000) (three-year limitations period applicable to claims under N.Y. Gen. Bus. Law § 349 not subject to extension by discovery rule).

15

See, e.g., Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986) (“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.”); Iwanowa, 67 F. Supp. 2d at 484.

16

See also Baker, 369 U.S. at 216;Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 65 (D. D.C. 2001) (“If any of these six factors is inextricable from the case at bar, then dismissal for non-justiciability on the ground of a political question's presence is appropriate”) (internal quotations omitted), aff'd,No. 01-7169, 2003 WL 21473010 (D.C. Cir. June 27, 2003); Kwan v. United States, 84 F. Supp. 2d 613, 622 (E.D. Pa. 2000), aff'd,272 F.3d 1360 (Fed. Cir. 2001).

17

The Supreme Court noted in Baker v. Carr, “the cessation of hostilities does not necessarily end the war power ... [which] includes the power to remedy the evils which have arisen from its rise and progress and continues during that emergency.” 369 U.S. at 213 (quotations omitted).

18

This is not the first time a challenge has been brought to the political arrangements that ended the Civil War chapter of American history. Indeed, the Supreme Court long ago held that courts should not interject themselves into the Civil War-era efforts of the President and Congress to bring the war to an end and to attempt to compensate and protect former slaves - the very subject of this litigation. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 54-55, 61-62 (1867) (refusing to consider challenge to the Reconstruction Acts of 1867, which effectively imposed martial law in the post-war South to protect former slaves, because it involved a non-justiciable political question); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499-501 (1866) (refusing to enjoin the President from performing his duties as commander-in-chief in enforcing Reconstruction Acts because “general principles ... forbid judicial interference with the exercise of Executive discretion”).

19

In considering a motion under Fed. R. Civ. P. 12(b), the Court may take judicial notice of official acts of government. See Menominee Indian Tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998).

20

For example: In 1861, Congress passed the First Confiscation Act as the first step to punish persons who participated in the rebellion by confiscating their property. This legislation also freed slaves who had been forced to join the Confederate army. 12 Stat. 319 (1861). Later, in 1862, Congress prohibited the U.S. military from returning escaped slaves to their owners. 12 Stat. 354 (1862). Congress abolished slavery in the District of Columbia. 12 Stat. 376 (1862). Congress enacted the Direct Tax Act, which imposed a tax lien on Confederate real property and authorized the President to confiscate such property in areas occupied by the Union army. 12 Stat. 422-26 §§ 1, 5-7, 11 (1862). This Act specifically provided for the use of confiscated Confederate property to fund relief for freed slaves. Congress abolished slavery in the United States territories. 12 Stat. 432 (1862). The Militia Act was passed to authorize the President to employ “persons of Afiican descent” in the armed forces and to free them from any owners who had supported the Confederacy. 12 Stat. 597-600 §§ 12, 13 (1862). And Congress passed the Second Confiscation Act, 12 Stat. 589-92 (1862), which freed all escaped slaves who were owned by “persons who shall hereafter be engaged in rebellion against the government of the United States.” Id.

21

This book contains a reprinted collection of a number of the orders, proclamations and directives issued by the Union Army and members of the Executive Branch during and after the Civil War that ultimately resulted in the emancipation of the slaves.

22

Driven by pragmatic concerns about prosecuting the Union war effort, Lincoln expressly excused from this proclamation certain strategically important areas of the country considered loyal or potentially loyal to the Union, including Tennessee, West Virginia and certain parts of Louisiana. Id.

23

See, e.g, Order by Cmdr. of the Dep't of the Gulf, in History of Emancipation, vol; III, doc. 81. General Order No. 12, issued by the Military Governor in the Department of the South, apportioned to former slaves (i.e., “freedmen”) small plots of land on which they could grow their own sustenance. See General Order No. 12, Dec. 20, 1862, in History of Emancipation, vol. II, doc. 28; see also Order by Sec'y of War, Jan. 28, 1863, in History of Emancipation, vol. II, doc. 15. On July 29, 1864, the Secretary of the Treasury promulgated regulations respecting the employment and welfare of former slaves. See Plantation Regulations by the Sec'y of Treasury, in History of Emancipation, vol. III, doc. 119. The best known of these initiatives was General Sherman's January 16, 1865 order - rescinded not long thereafter by President Andrew Johnson - that select areas along the South Carolina, Georgia and Florida coasts be used to provide plots of not more than 40 acres to freed slaves. Special Field Order No. 15, in History of Emancipation, vol. III, at 338-40. The order provided certain other settlement rights to former slaves that had served in the U.S. armed forces. Id. § IV; see also Order by Cmdr. of the South Carolina Expeditionary Corps (BG Sherman), Feb. 6, 1862, in History of Emancipation, vol. III, doc. 9.

24

After the Confederate surrender, as the statutory term of the Freedman's Bureau Act came to a close, Congress twice enacted legislation to extend it. Each time, President Johnson vetoed the legislation because he objected to giving confiscated land to former slaves. See 8 Messages and Papers of the Presidents 3596-3603 (1896) (Feb. 19, 1866 veto message); 8 Messages and Papers of the Presidents 3620-24 (1896) (July 16, 1866 veto message); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 397-98 (1978) (Marshall, J., concurring in the judgment in part and dissenting in part). Congress overrode the President's second veto, but with only a watered down version of the previous Freedmen's Bureau Act. See George R. Bentley, A History of the Freedmen's Bureau 133 (1955). In the end, the Freedmen's Bureau, which became embroiled in controversy over the construction of Howard University, see id. at 203-14, expired from lack of funding.

25

In fact, Congressman Stevens' effort to make it illegal for the Freedmen's Bureau to restore to their former owners lands held under the possessory titles conferred by General Sherman was defeated, as was a proposal to reserve one million acres of public land in the South for the use of refugees and freedmen. See Bentley, supra, at 134. Similar resolutions introduced by Senator Sumner were also defeated. See Foner, Reconstruction at 308-09 (citing Cong. Globe, 40th Cong., 1st Sess., 15, 51, 55, 79, 114, 147, 203-08, 304-08, 463 (1867)); Foner, Politics and Ideology at 131-49.

26

The Radical Republicans in Congress (led by Congressman Thaddeus Stevens and Senator Lyman Trumbull), unable to muster the votes for an expanded Freedmen's Bureau, turned to civil rights legislation, principally to ensure the rights to vote, to due process and, in particular, to contract to work for wages. In anticipation of this civil rights legislation, in March 1867, Congress enacted the Reconstruction Acts to provide for martial law in the former Confederacy until such time as new state constitutions and various civil rights acts were enacted and the states reincorporated into the Union. 14 Stat. 2-4, 428-29 (1867). Such enactments and the President's associated enforcement of martial law in the South were a clear exercise of the war- and peace-making powers granted to the political branches under the Constitution. See Stanton, 73 U.S. at 54-55, 61-62;Johnson, 71 U.S. at 499-501.

27

As the Supreme Court noted, in “abolish[ing] slavery, and establishing] universal freedom” in this nation, the Framers of the Thirteenth Amendment empowered Congress “to enforce the article by appropriate legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-40 (1968) (quotations omitted); U.S. Const. amend. XIII, § 2. This enabling “clause clothe[s] Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Jones, 392 U.S. at 439 (internal quotation omitted). Similar enabling clauses were included in the Fourteenth and Fifteenth Amendments. SeeU.S. Const. amend. XIV, § 5; id.amend. XV, § 2.

28

See H.R. 40, 107th Cong., 1st Sess. (2001); H.R. 40, 106th Cong., 1st Sess. (1999); H.R. 40, 105th Cong., 1st Sess. (1997); H.R. 891, 104th Cong., 1st Sess. (1995); H.R. 40, 103d Cong., 1st Sess. (1993); H.R. 3745, 101st Cong., 1st Sess. (1989).

29

See also Hwang Geum Joo, 172 F. Supp. 2d at 67 therehee is no question that this court is not the appropriate forum in which plaintiffs may seek to reopen those discussions [about reparations for sexual slavery] nearly a half century later”); id. at 66 (the rationale for dismissal in Kelberine is “even more persuasive now, decades later, when plaintiffs seek to adjudicate conduct sixty to seventy years after it occurred”); In re Nazi Era Cases, 129 F. Supp. 2d at 389 (“This Court must dismiss Plaintiff's claims because the magnitude of World War II has placed claims such as his beyond the province of this Court, and into the political realm.”); Iwanowa, 67 F. Supp. 2d at 489 (“The specter of adjudicating thousands of claims arising out of a war that took place more than fifty years ago amounts to a more daunting task for this Court to tackle than the Kelberine Court could have ever contemplated.”); Burger-Fischer, 65 F. Supp. 2d at 284 (“By what conceivable standard could a single court arrive at a fair allocation of resources among all the deserving groups? By what practical means could a single court acquire the information needed to fashion such a standard?”); see also Ungaro-Benages, No. 01-CV-2547, mem. op. at 12-16 (adopting Iwanowa, Burger-Fischer, and In re Nazi Era Cases).

30

Although plaintiffs have made no effort to plead facts relevant to a choice-of-law analysis, variations between the relevant laws of the different states are not material for purposes of this motion to dismiss because plaintiffs have failed to allege the most basic requirements for a claim under the laws of any potentially applicable jurisdiction. Accordingly, at this stage, a choice-of-law analysis is not required. See Jean v. Dugan, 20 F.3d 255, 260 (7th Cir. 1994).

31

Other Illinois courts have recognized accounting claims upon a showing of fraud. See, e.g., People ex rel. Hartigan v. Candy Club, 501 N.E.2d 188, 190 (111. App. Ct. 1986); Mayr v. Nelson Chesman & Co., 195 Ill. App. 587, 1915 WL 2527 (1915). The Amended Complaint does not advance a claim of fraud.

32

Other jurisdictions impose similar requirements, to the extent that they even recognize a separate cause of action for accounting. See, e.g., Burdick v. Grimshaw, 168 A. 186 (N.J. Ch. 1933); Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44 (2d Cir. 1996) (New York); Rodgers v. Roulette Records, Inc., 677 F. Supp. 731 (S.D.N.Y. 1988); Hodson v. Hodson, 292 So. 2d 831 (La. Ct. App. 1974); Crescent River Port Pilots' Ass'n v. Heuer, 193 So. 2d 276 (La. Ct. App. 1966); Norman v. Nash Johnson & Sons' Farms, Inc., 537 S.E.2d 248 (N.C. Ct. App. 2000); Watson v. Fulk, 198 S.E.2d 730 (N.C. Ct. App. 1973); Elliott v. Ballentine, 173 S.E.2d 552 (N.C. Ct. App. 1970); Burgin v. Smith, 141 So. 760 (Miss. 1932); Bradley v. Howell, 134 So. 843 (Miss. 1931); T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass'n, 79 S.W.3d 712 (Tex. App. 2002).

33

Plaintiffs do not even allege that plaintiffs and defendants maintained mutual accounts.

34

Plaintiffs also cannot establish the absence of an adequate remedy at law and a need for discovery. Indeed, the Amended Complaint includes, for example, a claim for conversion - a remedy at law.

35

U.S. courts have held that broad international human rights conventions are not self-executing. See Dreyfus, 534 F.2d at 31-32 (Hague Convention); United States v. Noriega, 746 F. Supp. 1506, 1533 (S.D. Fla. 1990) (U.N. Charter, O.A.S. Charter), aff'd,117 F.3d 1206 (llth Cir. 1997); Handel, 601 F. Supp at 1424-27 (Hague and Geneva Conventions); Tel-Oren, 726 F.2d at 818-19 (Int'l Torture Convention).

36

See United States v. Yousef, 327 F.3d 56, 92-93, 100-106 (2d Cir. 2003); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1934) (“[I]n enacting statutes, Congress is not bound by international law.”); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1161, 1178 (E.D. Pa. 1980) (“It is therefore possible that the United States might find it necessary, in order to enforce domestic law, to violate international principles.”); accord United States v. Howard-Arias, 679 F.2d 363 (4th Cir. 1982); Tag v. Rogers, 267 F.2d 664, 666 (D.C. Cir. 1959) (in discussing treaties, statutes and constitutional provisions, “the federal courts are bound to recognize any one of these three sources of law as superior to canons of international law”).

37

See Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (rejecting “international law” defense to the death penalty as inconsistent with the accepted view of the Eighth Amendment in the United States); United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (“Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law.”).

38

See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-29 (1964) (noting, in affirming dismissal of claims, the lack of consensus respecting the status under international law of government expropriation of alien property); Yousef, 327 F.3d at 92-93, 100-106;Tel-Oren, 726 F.2d at 791-96.

39

See also The Amistad, 40 U.S. (15 Pet.) 518, 593 (1841) (noting in dicta that if claimants could prove ownership of the slaves in question under the laws of Spain in effect at the time then such slaves “ought to be restored to the claimants”) (Story, J.); Maria v. McElroy, 68 F. Supp. 2d 206, 233 (E.D.N.Y. 1999) (“During the nineteenth century, the rights of individuals were not subjects of international law.”), aff'd sub nom. Pottinger v. Reno, 242 F.3d 367 (2d Cir. 2000).

40

Indeed, not until 1890 did seventeen of the largest nations of the world sign the General Act of Brussels respecting the “Slave Trade and Importation into Africa of Firearms, Ammunition and Spiritous Liquors,” 27 Stat. 886 (1890), the first broad prohibition against the slavetrade (but not against slavery itself), which barred then ongoing “slave-trade in the interior of Africa,” id., art. I, and expressly noted that certain signatory nations continued to “recognize the existence of domestic slavery.” Id., art. LXII. And not until September 25, 1926 did thirty-seven countries enter into the Geneva Convention on the Suppression of Slave Trade and Slavery, 46 Stat. 2183 (1926), to ensure that signatories took steps “(a) [t]o prevent and suppress the slave trade;” and “(b) [t]o bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” Id., art. 2. This Convention alone shows that, as recently as 1926, the condemnation of slavery was still not universal.

41

The statute also limits its application to members “of the crew or ship's company.”

42

See also White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991) (same); Buckley v. Trenton Say. Fund Soc'y, 544 A.2d 857, 863 (N.J. 1988) (same); Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (N.Y. 1993) (same); Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992) (same); Upchurch v. N.Y. Times Co., 431 S.E.2d 558, 561 (S.C. 1993) (same); Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993) (same); Russo v. White, 400 S.E.2d 160, 162 (Va. 1991) (same). The state of Mississippi does not appear to have specifically adopted the Restatement definition, but it does require that “there is something about the defendant's conduct which evokes outrage or revulsion” before a plaintiff can recover for emotional distress. Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981).

43

See also, e.g., Ehrlich v. Howe, 848 F. Supp. 482, 492 (S.D.N.Y. 1994) (under New York law, “[a]n action of conversion does not lie to enforce a mere obligation to pay money”) (citation omitted); Upper Valley Aviation, Inc. v. Mercantile Nat'l Bank, 656 S.W.2d 952, 955 (Tex. App. 1983) (“[W]hen an indebtedness can be discharged by payment of money generally, an action in conversion is inappropriate to enforce the debt.”); Owens v. Andrews Bank & Trust Co., 220 S.E.2d 116, 119 (S.C. 1975) (“[T]here can be no conversion where there is a mere obligation to pay a debt....”).

44

The Amended Complaint contains no allegation that any defendant received or refused to pay for the value of any labor or other services rendered by any of the newly added plaintiffs who allege that they themselves were enslaved after 1865. Nor does the Amended Complaint contain any allegation that any uncompensated labor allegedly “converted” by any of these defendants was performed by any of these plaintiffs or their ancestors.

45

See also Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So. 2d 853, 856 (La. 1998) (under Louisiana law, conversion actions may be brought only by dispossessed owners of “corporeal movables” - the civil law analogue to tangible personal property); Mossler Acceptance Co. v. Moore, 67 So. 2d 868, 873 (Miss. 1953) (“Conversion lies only for personal property which is tangible.”); Cameco, Inc. v. Gedicke, 690 A.2d 1051, 1058 (N.J. Super. Ct. App. Div. 1997) (conversion claim properly dismissed when property allegedly “converted” was neither “tangible personal property, [nor] tangible evidence of title to intangible or real property”), aff'd in pertinent part,724 A.2d 783 (N.J. 1999); Ippolito v. Lennon, 542 N.Y.S.2d 3, 6 (App. Div. 1989) (“[C]onversion is limited to those intangible property rights customarily merged in, or identified with, some document[.]”) (citation omitted); Matzan v. Eastman Kodak Co., 521 N.Y.S.2d 917, 918 (App. Div. 1987) (“A claim for conversion does not lie for the withholding of indefinite, intangible, and incorporeal species of property[.]”) (citation omitted); Norman, 537 S.E.2d at 264 (North Carolina law does not recognize conversion claim for intangible interests); Owens, 220 S.E.2d at 119 (“Conversion has been defined in our case law as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another....”); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 901 (Tex. App. 2001) (“Texas law has never recognized a cause of action for conversion of intangible property except in cases where an underlying intangible right has been merged into a document....”); United Leasing Corp. v. Thrift Ins. Corp., 440 S.E.2d 902, 906 (Va. 1994) (“[A] cause of action for conversion does not encompass claims for interference with undocumented intangible property rights.”).

46

See also Willis v. Ventrella, 674 So. 2d 991, 995 (La. Ct. App. 1996) (under Louisiana law plaintiffs' failure to allege any connection between themselves or their ancestors and the defendants negates any possibility of a viable unjust enrichment claim); Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 496 (D.N.J. 1998) (under New Jersey law “it is the plaintiff's (as opposed to a third party's) conferral of a benefit on defendant which forms the basis of an unjust enrichment claim”); Fordice Constr. Co. v. Cent. States Dredging Co., 631 F. Supp. 1536, 1538-39 (S.D. Miss. 1986) (under Mississippi law, plaintiffs must allege “that the defendant holds money which in equity and good conscience belongs to the plaintiff”) (quotation omitted); Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (under New York law, benefit conferred by plaintiff upon defendant must be sufficiently “specific and direct ... to support an unjust enrichment claim”) (citing Wolf v. Nat'l Council of Young Israel, 694 N.Y.S.2d 424, 426 (App. Div. 1999)); Norman Owen Trucking, Inc. v. Morkoski, 506 S.E.2d 267 (N.C. Ct. App. 1998) (North Carolina law requires showing of a direct benefit conferred by plaintiff on defendant) (citing Effler v. Pyles, 380 S.E.2d 149, 152 (N.C. Ct. App. 1989)); Jupiter Enters., Inc. v. Harrison, No. 05-00-01914-CV, 2002 WL 318305, at *3 (Tex. App. Mar. 1, 2002) (unpublished decision) (Texas unjust enrichment law requires, inter alia, “that valuable services were rendered or materials furnished ... for the person sought to be charged”) (citing Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)); Brown v. Resolution Trust Corp., 30 F.3d 128, Nos. 93-2597, 94-1104, 1994 WL 384727, at *3 (4th Cir. July 25, 1994) (unjust enrichment claim requires proof “plaintiff conferred a benefit on the defendant, which was requested and accepted by the defendant”); Ellis v. Smith Grading & Paving, Inc., 366 S.E.2d 12, 15 (S.C. Ct. App. 1988) (dismissing claim where plaintiff failed to demonstrate that she, rather than a third party, conferred a benefit on defendant).

47

In addition to this threshold requirement, the laws of some states impose additional requirements for a claim for unjust enrichment. For example, to support a claim for unjust enrichment under New Jersey law, plaintiffs must show that they “expected remuneration from the defendant at the time [they allegedly] performed or conferred a benefit on defendant,” VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994), a requirement that plaintiffs cannot meet since at the time in question there was no such expectation in law or equity, see supra § IV.A. See also Eli Lilly & Co., 23 F. Supp. 2d at 496. Similarly, Texas law requires that at the time of the alleged enrichment, the defendant was “reasonably notified ... that the plaintiff in performing such services was expecting to be paid by” the defendant. Jupiter Enters., 2002 WL 318305, at *3 (citing Vortt, 787 S.W.2d at 944);see also Brown, 1994 WL 384727, at *3 (Virginia law same). Plaintiffs do not allege, nor can they, that any defendant received such notice.

48

“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (2000).

49

Not surprisingly, no court has ever applied section 1982 to claims arising from conduct before 1866. Thus, as discussed supra in § IV.A, this claim, like the others, also fails because it is an attempt to impose liability retroactively.

50

In determining the status of a party for purposes of jurisdiction, the United States Supreme Court recently reiterated the “ “longstanding principle that “the jurisdiction of the Court depends upon the state of things at the time of the action brought.' ' ” Dole Food Co. v. Patrickson, 123 S. Ct. 1655, 1662 (2003) (quoting Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).

51

Moreover, no plaintiff has alleged a sufficient connection to any former slave to establish third-party standing. See supra § I.C.

52

Plaintiffs might attempt to argue that even if defendants did not directly injure plaintiffs or their ancestors, they can be held liable for aiding and abetting unnamed third parties. But the ATS does not provide for aiding and abetting liability, and the Supreme Court has held that that under federal law, liability for aiding and abetting is unavailable unless specifically provided for by statute. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182-183 (1994); cf, infra § IV.B.11.b. Plaintiffs suggest that defendants can be held liable as non-state actors under the ATS, Am. Compl. „ 241 n.99, but, as noted above, private actors cannot be held liable for acts that were not even considered violations of the law of nations when they allegedly occurred. See, e.g., Tel-Oren, 726 F.2d at 791-795 (Edwards, J. concurring).

53

The Seventh Circuit has never addressed whether the ATS creates a private cause of action. However, there are good reasons not to read a cause of action into the ATS. If the ATS created substantive rights, all treaties (whether U.S. ratified or not) would be self-executing, contrary to the well-settled presumption that treaties do not create a privately enforceable cause of action. Al Odah, 321 F.3d at 1146 (Randolph, J., concurring); Tel-Oren, 726 F.2d at 812 (Bork, J., concurring); see also Curtis A. Bradley & Jack L. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modem Position,” 110 Harv. L. Rev. 815 (1997). Additionally, the Constitution makes it clear that it is Congress, not the judiciary, which is to define and punish violations of the law of nations. U.S. Const. art. I, § 8, cl. 10; see also Al Odah, 321 F.3d at 1147 (Randolph, J., concurring). Textual powers assigned to a particular branch may not be shifted from one branch to the other. See Clinton v. City of New York, 524 U.S. 417, 438-40 (1998). But see Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003) (en bane) (concluding without substantial analysis that the ATS provides a private cause of action); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (holding that the ATS creates a private right of action).

54

First of Am. Bank, Rockford, N.A. v. Netsch, 651 N.E.2d 1105, 1112-13 (Ill. 1995) (“[S]tatutes are presumed to apply prospectively only and will not be given retroactive effect absent clear language within the statute indicating that the legislature intended such effect.”); State ex rel. Guste v. Orkin Exterminating Co., 528 So. 2d 198, 204 (La. Ct. App. 1988) (rejecting claim of improper retroactive application of statute because finder of fact had properly found post-enactment commission of unfair trade practice); Williamson v. Treasurer, 814 A.2d 1153, 1163 (N.J. Super. Ct. App. Div. 2003) (New Jersey “courts have long preferred a rule of statutory construction which favors prospective application of statutes”); Buccino v. Cont'l Assurance Co., 578 F. Supp. 1518, 1527 (S.D.N.Y. 1983) (holding amendment providing private cause of action under New York deceptive practices statute not entitled to retroactive application); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984) (reversing judgment for plaintiff because of failure of sufficient evidence to support a jury finding that the alleged violation by defendant had occurred on or after May 21, 1973 effective date of statute).

55

There is also a vague allegation that some, unspecified Defendants had constructive knowledge of violations of the laws against slavery at some unspecified time during the 1920's or 1930's but failed to prevent the law from being broken. See Am. Compl. „ 90. This time period also long predated the enactment of any of the relevant statutes.

56

Plaintiffs cannot base any alleged violation on any statements made by defendants after the actual or threatened filing of any of the cases in this consolidated action. Any such allegation would be self-defeating, since plaintiffs could not have been mislead or deceived by any statement made in response to, or after the filing of, their allegations.

57

There is likewise no allegation that any statement by any defendant was made “in connection with the sale or advertisement of any merchandise or real estate,” a necessary element of liability under N.J. Stat. Ann. § 56:8-2. Indeed, the majority of the defendants are not even alleged to be in a line of business which involves the sale of merchandise or real estate.

58

The claim is asserted against the following defendants: Aetna Inc., Canadian National Railway Company, FleetBoston Financial Corporation, Liggett Group, Inc., The Society of Lloyd's, Loews Corporation, New York Life Insurance Company, R.J. Reynolds Tobacco Company and WestPoint Stevens. Because the Hurdle complaint was not served on any of the defendants, only Aetna, FleetBoston and New York Life, the three defendants that removed the action to federal court, join in this section of the joint motion and memorandum.

59

Nor does California's unfair competition law permit the recovery of the relief requested by the Hurdle plaintiffs in their complaint. Non-restitutionary disgorgement of profits, like that requested in the complaint, is not an available remedy under the UCL. See Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937 (Cal. 2003); Kraus v. Trinity Mgmt. Servs., Inc., 999 P.2d 718 (Cal. 2000).

60

Accord Apani Southwest, Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 635 (5th Cir. 2002) (Texas law); Wells v. Shelter Gen. Ins. Co., 217 F. Supp. 2d 744, 753 (S.D. Miss. 2002) (Mississippi law); Speedway Promoters, Inc. v. Hooter's of Am., Inc., 123 F. Supp. 2d 956, 963 (W.D.N.C. 2000) (North Carolina law); Vasile v. Dean Witter Reynolds, Inc., 20 F. Supp. 2d 465, 482 (E.D.N.Y. 1998) (New York law), aff'd,205 F.3d 1327 (2d Cir. 2000); Eli Lilly & Co., 23 F. Supp. 2d at 496-97 (New Jersey law); Louisiana v. McIlhenny, 9 So. 2d 467, 473 (La. 1942) (Louisiana law); Robertson v. First Union Nat'l Bank, 565 S.E.2d 309, 314 (S.C. Ct. App. 2002) (South Carolina law); Citizens for Fauquier County v. SPR Corp., 37 Va. Cir. 44, CL 94-40, 1995 WL 1055819, at *4 (Va. Cir. Ct. Mar. 27, 1995) (Virginia law).

61

Accord Wells, 217 F. Supp. 2d at 755;Sokol v. Addison, 742 N.Y.S.2d 311, 312 (N.Y. App. Div. 2002); Aranyosi v. Delchamps, Inc., 739 So. 2d 911, 917 (La. Ct. App. 1999).

 

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