Opinion
01 Civ. 9882 (DLC).
December 1, 2006
Carey R. D'Avino, Stephen A. Whinston, Keino R. Robinson, Selim Ablo, Berger Montague, P.C., Philadelphia, Pennsylvania, Attorneys for Plaintiff.
Lawrence Kill, Linda Gerstel, John M. O'Connor, Anderson Kill Olick, P.C., New York, New York, Attorneys for Plaintiff.
Steven E. Fineman, Rachel Geman, Daniel E. Seltz, Lieff, Cabraser, Heimann Bernstein, LLP, New York, New York, Attorneys for Plaintiff.
Joseph P. Cyr, Marc J. Gottridge, Scott W. Reynolds, Lovells, New York, New York, Attorneys For Defendant Talisman Energy, Inc.
OPINION AND ORDER
Talisman Energy Inc. ("Talisman") has moved for an entry of partial judgment pursuant to Rule 54(b), Fed.R.Civ.P. Through an Opinion of September 12, 2006, Talisman was granted summary judgment in this action, brought pursuant to the Alien Torts Statute ("ATS"), 28 U.S.C. § 1350, to address human rights violations in the southern Sudan alleged by thirteen individual plaintiffs and the Presbyterian Church of Sudan. Presbyterian Church of Sudan v. Talisman Energy, Inc. No. 01 Civ. 9882 (DLC), 2006 WL 2602145, *16 n. 38, 44 (S.D.N.Y. Sept. 11, 2006) [hereinafter "Opinion"]. The Republic of the Sudan ("Sudan"), who is the only other defendant named in the action, is in default and an Order of September 12, 2006, referred the action against the Sudan to the Magistrate Judge for an inquest. Both Talisman and the plaintiffs seek review on appeal of the Opinion before the inquest against the Sudan. For the following reasons, the motion is granted.
As it has in previous Opinions in this litigation, this Opinion will refer to the statute as the Alien Tort Statute. See Presbyterian Church of the Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 469 n. 6 (S.D.N.Y. 2005). Courts have also called the statute the Alien Torts Claim Act, see e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003), as well as the Alien Tort Act, see, e.g., Kadic v. Karadzic, 70 F.3d 232, 236 (2d Cir. 1995).
Rule 54(b) authorizes certification of a final judgment before all of the claims against each party to a lawsuit have been adjudicated when "there is no just reason for delay." Fed.R.Civ.P. 54(b). A partial judgment should not be entered without careful consideration of the strong federal policy against piecemeal appeals. The power to make a Rule 54(b) certification "should be used only in the infrequent harsh case where there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." Grand River Enter. Six Nations, Ltd. V. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (citation omitted). The power is to "be exercised sparingly."O'Bert ex. rel. O'Bert v. Vargo, 331 F.3d 29, 41 (2d Cir. 2003).
The Opinion finally resolved all claims in this litigation in Talisman's favor. Talisman requests entry of a judgment pursuant to Rule 54(b) so that it can achieve finality. It has been defending itself in this action for almost five years, and projects that the proceedings against the Sudan are likely to take a significant amount of additional time to adjudicate. The claims against the Sudan face hurdles under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608(e), that were not present in the claims against Talisman. Besides the need to address those issues, the plaintiffs will have to present evidence to support individual damage awards. Talisman argues that it will suffer undue hardship if appellate review of the Opinion is delayed until the claims against the Sudan are resolved.
Class certification was denied in 2005. Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456 (S.D.N.Y. 2005).
The plaintiffs and Talisman have also asked the Magistrate Judge, to whom the claims against the Sudan have been referred for an inquest, to defer any decision on the Sudan's liability to plaintiffs and their damages until after the appeal of the Opinion has been resolved. They have argued that there is a potential for inconsistent determinations should plaintiffs' claims against Talisman be remanded for trial following an appeal. They point out that the facts tendered to support the damages claims against the Sudan will not be challenged in an adversary proceeding, while Talisman intends to contest them vigorously should it be required to proceed to trial.
Talisman has argued that the Magistrate Judge should at this point decide solely the legal issues under the Foreign Sovereign Immunities Act.
There is no just reason for any further delay in entering a final judgment as to Talisman in this case. Both the plaintiffs and Talisman seek review of the Opinion through a Rule 54(b) certification. Although the plaintiffs have not explained their reasons for supporting Talisman's application, they are not difficult to fathom. They face many significant hurdles in obtaining any recovery from the Sudan, but should they succeed at trial in their claims against Talisman, they have a reasonable basis to expect that they will be able to enforce a judgment against Talisman. The plaintiffs are represented by a consortium of pro bono counsel who have invested significant resources in this litigation for many years, and need to know as early as possible whether the claims against Talisman can be resurrected.
For its part, Talisman has faced not just expensive and protracted litigation here, but also suffered the injury to its reputation that necessarily accompanies the plaintiffs' grave claims that it has violated international human rights law. It is entitled to know as soon as possible whether the Opinion is correct and it can close this chapter of its corporate history.
The claims against the Sudan are, from a practical point of view, quite severable. There is at least one overarching legal issue that remains to be resolved that concerns the Sudan alone. Since essentially all fact and expert discovery has been completed, the inquest on damages can proceed efficiently when the legal landscape is clear. Whether the Opinion is affirmed or reversed, any clarification of the law provided by the Court of Appeals will assist enormously in the remaining proceedings in district court. While this final reason would not support Rule 54(b) certification by itself, in the unusual context of this case it provides additional support for the certification decision.
Conclusion
Talisman's motion for entry of judgment pursuant to Rule 54(b) is granted. The Clerk of Court shall enter judgment in Talisman's favor on all claims.
SO ORDERED: