United States District Court, D. Connecticut
CHEN GANG, ET AL. Plaintiffs,
ZHAO ZHIZHEN, ET AL. Defendants.
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE
adherents to the spiritual practice of Falun-Gong, bring this
action on behalf of themselves and others alleging that they
have been tortured in the People's Republic of China
because of their religious beliefs. Pending is their motion
for leave to file a third amended complaint
(“TAC”), which would assert a claim against the
defendant, Zhao Zhizhen, under the Torture Victim Protection
Act (TVPA), 28 U.S.C. § 1350 note. Plaintiffs allege
that the defendant is responsible for their torture due to
his leadership role in “media and related brainwashing
and propaganda activities of the People's Republic of
China, ” as part of a nationwide “crackdown
against Falun Gong Practitioners.” TAC ¶ 5, 16.
More precisely, they allege that he ran a number of
state-owned media entities, and was a member of the standing
committee of the Executive Council of the China Anti-Cult
Association (CACA), which developed and disseminated
anti-Falun Gong training materials, and advocated for
“transforming” Falun Gong adherents through
torture. Id. ¶¶ 10, 11. Plaintiffs allege
that those who tortured them used some of this propaganda in
the course of committing torture. Id. ¶¶
21, 22, 96, 98.
allegations, though grave, fail to state a claim on which
relief can be granted here, for reasons discussed below.
Because permitting leave to amend would therefore be futile,
plaintiffs' motion must be denied. See Ruotolo v.
City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
Moreover, even if the plaintiffs could state a claim for
relief, considerations of prejudice militate strongly against
allowing them once again to amend their complaint, fourteen
years into this litigation.
case has unfolded against the backdrop of a changing legal
landscape, which is the main reason it has been pending so
long. See Kiobel v. Royal Dutch Petroleum Co., 569
U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S.
692 (2004). And it is apparent that the plaintiffs have
invested substantial resources in the litigation. However,
evidence and witnesses do become stale with time, and
“the liberality with which a court grants leave to
amend does not impart to litigants the privilege of reshaping
their legal theories endlessly, even where there is no
evidence of improper motive or dilatory objectives.”
Sanders v. Thrall Car Mfg. Co., 582 F.Supp. 945, 953
(S.D.N.Y. 1983), aff'd per curiam, 730 F.2d 910
(2d Cir. 1984). The defendant has argued with some force that
his ability to defend against the TVPA claim is undermined by
the passage of time. Balancing the parties' interests, I
conclude that the risk of unfair prejudice to the defendant
requires that leave to amend be denied.
2013, the Second Amended Complaint (“SAC”) was
dismissed for lack of subject matter jurisdiction in light of
the Supreme Court's then-recent decision in
Kiobel, which clarified that the Alien Tort Statute
(“ATS”) does not apply to wholly extraterritorial
claims. See Gang v. Zhao Zhizhen, No.
3:04cv1146(RNC), 2013 WL 5313411, at *2 (D. Conn. Sept. 20,
2013). Plaintiffs moved for leave to amend their complaint.
The motion was denied initially in 2016 and on
reconsideration in 2017. See Gang v. Zhao Zhizhen,
No. 3:04cv1146(RNC), 2016 WL 1275026 (D. Conn. Mar. 31,
2016); Gang v. Zhao Zhizhen, No. 3:04cv1146(RNC),
2017 WL 4366967 (D. Conn. Sept. 30, 2017). Plaintiffs'
proposed amended complaint would have added allegations
regarding the effects of the defendant's alleged actions
on U.S. territory in order to state a claim under the ATS.
See ECF No. 124 at 7-8. Plaintiffs also sought to
assert a number of TVPA claims against the defendant under
theories of secondary liability. See ECF No. 167 at
4-11. I determined that permitting the plaintiffs to amend
their complaint as proposed would be futile, because they had
not alleged sufficient facts to state a claim for relief.
See Gang, 2016 WL 1275026, at *1; Gang,
2017 WL 4366967, at *1. I also determined that permitting
them to add new allegations to their complaint would
prejudice the defendant, who had not previously been on
notice of the allegations. See Gang, 2016 WL
1275026, at *5; Gang, 2017 WL 4366967, at *1.
contains the same factual allegations as the SAC, but differs
from the SAC primarily in its jurisdictional statement, which
abandons reliance on the ATS, and instead asks the Court to
exercise general federal question jurisdiction pursuant to 28
U.S.C. § 1331. See generally TAC.
the ATS, the TVPA confers jurisdiction on federal courts over
wholly extraterritorial claims. See Chowdury v. Worldtel
Bangladesh Holding, Ltd., 746 F.3d 42, 51 (2d Cir.
2014). For reasons discussed below, however, the TVPA does
not extend to plaintiffs' allegations against the
Aiding and Abetting Liability
first seek to hold the defendant liable for aiding and
abetting those who tortured them. Whether the TVPA provides
for aiding and abetting liability has not yet been determined
by the Second Circuit. See id. at 52 n.10 (declining
to resolve the question). Assuming it does, however,
plaintiffs' allegations are insufficient to state a
includes the following elements: (1) the party whom the
defendant aids must perform a wrongful act that causes an
injury; (2) the defendant must be generally aware of his role
as part of an overall illegal or tortious activity at the
time that he provides the assistance; (3) the defendant must
knowingly and substantially assist the principal
violation.” Halberstam v. Welch, 705 F.2d 472,
477 (D.C. Cir. 1983); see also Doe v. Drummond Co.,
782 F.3d 576, 608-09 (11th Cir. 2015) (applying this
framework to TVPA). The allegations of the TAC do not satisfy
the third requirement.
to the TAC, “all of the named [p]laintiffs, and others
similarly situated, have been subjected to torture as a means
of ‘transformation,' per instructions and
guidelines provided by CACA training classes, manuals,
lectures, books, and conferences, all under the
defendant's supervision and control.” TAC ¶
19. The TAC details accounts of abuse against the individual
plaintiffs, but only alleges the defendant's involvement
insofar as he designed media programs they were forced to
watch during the course of being tortured. See,
e.g., TAC ¶ 20-24, 96, 98.
review of the TAC shows that while the defendant's
propaganda materials denigrated the practice of Falun-Gong
and could be understood to advocate the use of torture, the
materials did not include torture manuals or instructions, or
any particular tools that would have aided plaintiffs'
physical abuse. TAC ¶¶ 82, 92, 95. As a result,
plaintiffs cannot show that the defendant supplied
substantial assistance to their torturers. Cf. Cabello v.
Fernandez-Larios, 402 F.3d 1148, 1159 (11th Cir. 2005)
(jury could conclude that defendant provided substantial
assistance in torture when evidence showed that he served as
bodyguard for officer carrying out torture, provided weapons
used in torture, and selected torture victims); In re S.
African Apartheid Litig., 617 F.Supp.2d 228, 265