Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) BRETT J. CORMICK and ELAN SUISSE ) INTERNATIONAL HOLDINGS (USA) ) LLC, ) ) Defendants. ) ____________________________________) ELAN SUISSE, LTD., ) ) Plaintiff, ) ) v. ) ) ROBERT D. CHRIST, ) ) Defendant. ) ____________________________________) ROBERT D. CHRIST,

C.A. No. 06-275-GMS

C.A. No. 07-60-GMS

ANSWERING BRIEF OF BRETT J. CORMICK, ELAN SUISSE INTERNATIONAL HOLDINGS (USA) LLC AND ELAN SUISSE LTD. IN OPPOSITION TO ROBERT D. CHRIST'S MOTION FOR JUDGMENT ON THE PLEADINGS

David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for Brett J. Cormick, Elan Suisse International Holdings (USA) LLC and Elan Suisse Ltd. Dated: October 30, 2007

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Of counsel: Prof. George P. Fletcher Columbia University School of Law 435 W. 116th St., Room 616 New York, NY 10027 (212) 854-2467 Lawrence H. Brenner, Esq. 300 Market St., Ste. 130 Box 47 Chapel Hill, NC 27516 (919) 929-5597

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TABLE OF CONTENTS

NATURE AND STAGE OF THE PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. C. THE UNDERLYING TRANSACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CHRIST'S CAMPAIGN OF DEFAMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CHRIST CAUSES CORMICK TO BE ARRESTED AND TORTURED. . . . . . . . . . . . 10

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. THE COUNTERCLAIM STATES A VIABLE CLAIM UNDER THE ALIEN TORT STATUTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. B. THE ATS PERMITS CLAIMS FOR AIDING AND ABETTING. . . . . . . . . . . . 17 THE COUNTERCLAIM PLEADS SUFFICIENT FACTS TO INDICATE STATESPONSORED TORTURE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 UNDER THE ATS IT IS SUFFICIENT FOR AIDING AND ABETTING LIABILITY TO ALLEGE THAT CHRIST KNEW THAT HIS CONDUCT WOULD ASSIST OR ENCOURAGE ZIMBABWEAN OFFICIALS TO INCARCERATE AND TORTURE CORMICK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CORMICK HAS SUFFICIENTLY PLEADED A PROXIMATE CAUSAL CONNECTION BETWEEN CHRIST'S WRONGFUL CONDUCT AND THE ACTS OF TORTURE BY ZIMBABWEAN OFFICIALS. . . . . . . . . . . . . . . . . . 21 CHRIST'S AUTHORITIES ARE NOT APPLICABLE TO THIS CASE. . . . . . 24

C.

D.

E. II.

THE COUNTERCLAIM STATES A VIABLE CLAIM FOR FALSE IMPRISONMENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. . . . . . . . . . . . . . . 25 A. ZIMBABWE LAW RECOGNIZES TORT CLAIMS ARISING FROM WRONGFUL ARREST, IMPRISONMENT AND LEGAL PROCEEDINGS. . 26

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B.

CHRIST HAS FAILED TO ESTABLISH AS A MATTER OF ZIMBABWE LAW THAT THERE IS NO LIABILITY FOR HIS KNOWINGLY MAKING FALSE STATEMENTS TO THE POLICE, WITH MALICE, WHICH PROCURED THE ARREST AND TORTURE OF CORMICK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 THE COURT SHOULD DISREGARD AND STRIKE FROM THE RECORD THE AFFIDAVIT SUBMITTED BY CHRIST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CHRIST HAS FAILED TO ESTABLISH THAT ZIMBABWE DOES NOT OR WOULD NOT RECOGNIZE A CLAIM FOR INFLICT OF EMOTIONAL DISTRESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

C.

D.

III.

THE COUNTERCLAIM ADEQUATELY PLEADS DAMAGES FOR THE DEFAMATION CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 THE LANHAM ACT CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

IV.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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TABLE OF AUTHORITIES Cases Almog v. Arab Bank, PLC, 471 F.Supp.2d 257 (E.D.N.Y. 2007). . . . . . . . . . . . . . . . . . . 17, 20, 21 Bando v. Muchinguri, 1999 Z.L.R. 476 (High Court, Bulawayo). . . . . . . . . . . . . . . . . . . . . . . . . 26 Bowoto v. Chevron Corp., No. C 99-02506 SI, 2007 WL 2348341, Illston, J. (N.D. Cal. Aug. 14, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C. 2006). . . . . . . . . . . . . . . . . 17 Cabello v. Barreuto v. Fernandez Larios, 205 F.Supp.2d 1325 (S.D. Fla. 2002). . . . . . . . . . . . . 17 Corrie v. Caterpillar, Inc., 403 F. Supp.2d 1019 (W.D. Wash. 2005). . . . . . . . . . . . . . . . . . . . . 24 Culley v. Pennsylvania R. Co., 244 F.Supp. 710 (D. Del. 1965). . . . . . . . . . . . . . . . . . . . . . . . . . 30 Feni v. Kondzani, (508/2006) [2007] ZAECHC 15 (South Africa High Court - Eastern Cape, Mar. 8, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Gannett Co., Inc. v. Kanaga, 750 A.2d 1174 (Del. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Guillen v. Kuykendall, 470 F.2d 745 (5th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Huyler's v. Ritz-Carlton Restaurant Co. Of Atlantic City, 6 F.2d 404 (D. Del. 1925). . . . . . . . . 31 In re Agent Orange Product Liability Litig., 373 F.Supp.2d 7 (E.D.N.Y. 2005). . . . . . . . . . . . . 17 In re Agent Orange Product Liability Litigation, 373 F. Supp.2d 7 (E.D.N.Y. 2005). . . . . . . . . 24 In re Motel 6 Sec. Litig., No. 93 Civ 2183 JFK, 2000 WL 322782, Keenan, J. (S.D.N.Y. Mar. 28, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 In re South African Apartheid Litig., 346 F.Supp.2d 538 (S.D.N.Y. 2004). . . . . . . . . . . . . . . . . 17 In re Terrorist Attacks on September 11, 2001, 329 F.Supp.2d 539 (S.D.N.Y. 2005). . . . . . . . . 17 Independent Newspaper Holdings Ltd. v. Suliman, [2004] ZASCA 56 (South African Supreme Court of Appeal, May 28, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 iii

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Khulumani v. Barclay Nat. Bank Ltd., ___ F.3d ___, 2007 WL 2985101 (2nd Cir. Oct. 12, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (S.D.N.Y. 2006). . . . . . . . . . . . . . . . 17 Lewis v. Neal, 905 F.Supp. 228 (E.D. Pa. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Marcus v. Funk, C.A. No. 87C-SE-26-1-CV, 1993 WL 141864, Quillen, J. (Del. Super. Apr. 21, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Mujica v. Occidental Petroleum Co., 381 F.Supp.2d 1164 (C.D. Cal. 2003). . . . . . . . . . . . . . . . 17 Ores v. Willow West Condominium Ass'n, No. 94C 4717, 1996 WL 111894, Manning, J. (N.D. Ill, Mar. 12, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003).. 17 Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.Supp.2d 633 (S.D.N.Y. 2006).. 17 Senathirajah v. I.N.S., 157 F.3d 210 (3rd Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Shamrock Holdings, Inc. v. Arenson, 456 F.Supp.2d 599 (D. Del. 2006). . . . . . . . . . . . . . . . 16, 25 Smith v. Shaffer Stones Co., 28 F.R.D. 308 (E.D. Pa. 1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Spence v. Funk, 396 A.2d 967 (Del. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Winokur v. Office of Court Admin., 190 F.Supp.2d 444 (E.D.N.Y. 2002). . . . . . . . . . . . . . . . . . 16 Wright v. Pepsi Cola Co., 243 F.Supp.2d 117 (D. Del. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Zimring v. Halley, C.A. No. 85 C 7094, 1986 WL 2621, Hart, J. (N.D. Ill. Feb. 20, 1986). . . . 29

Other authorities 18 U.S.C. §2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 28 U.S.C. 1350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iv

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C. Wright and A. Miller, Federal Practice and Procedure (2d ed.1990). . . . . . . . . . . . . . . . . . . 16 D. Del. Local R. 9.4(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Fed. R. Civ. P. 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Fed. R. Civ. P. 9(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 G. Feltoe, A Guide to the Zimbabwe Law of Delict (3rd ed. 2001). . . . . . . . . . . . . . . . . . . . . . . . 26 George P. Fletcher and Jens David Ohlin, "Reclaiming Fundamental Principles of Criminal Law in the Darfur Case," 3 J. of Int. Crim. Justice 539 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Jonathan M. Burchell, Personality Rights and Freedom of Expression (Juta & Co., Ltd. 1998). 31 Jonathan M. Burchell, The Law of Defamation in South Africa (Juta & Co, Ltd. 1985). . . . . . . 31 Model Penal Code §2.06(3) (Official Draft 1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Note, "Conflict Between State Legal Norms and Norms Underlying Popular Belief: Witchcraft in Africa as a Case Study," 14 Duke J. Of Comparative Law 351 (2004).. . . . . . . . . . . . . . . . . . . . 26 Restatement (Second) of Torts § 876. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Rome Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

v

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NATURE AND STAGE OF THE PROCEEDINGS On April 27, 2006, Robert D. Christ ("Christ") filed suit against Brett J. Cormick ("Cormick"), Elan Suisse International Holdings (USA) LLC ("ESUSA"), Mercari Financial Services (Pty.) Ltd., Nicogel Ltd., John Walters and Dianne Marshall (D.I. 1) in Civil Action 06-275. On March 2, 2007, Christ filed an Amended Complaint. (D.I. 29). On January 3, 2007, Civil Action 07-60 was opened, having been transferred from the U.S. District Court for the Eastern District of Pennsylvania. On April 24, 2007, while a motion to dismiss was pending in C.A. No. 06-275, the Court held a scheduling conference in both actions and set litigation deadlines. In addition, the Court consolidated the two actions for discovery purposes only. An implementing order was entered on May 18, 2007. On July 10, 2007, the Court issued a Memorandum Opinion and Order in C.A. No. 06-275 dismissing all defendants except Cormick and ESUSA. (D.I. 46). In accordance with the Scheduling Order, the parties submitted briefs on the choice of law for the various claims in both actions. (D.I. 52-54). A decision on that motion is pending. On October 16, 2007, Christ filed in both actions a Motion for Judgment on the Pleadings and a supporting brief. (D.I. 60, 61). This is Cormick's brief in response to that motion.

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SUMMARY OF ARGUMENT 1. Denied. Christ has mis-stated the test for aiding and abetting a violation of the law

of nations. Cormick has alleged that Christ intentionally provided a knowingly false statement to the Zimbabwe authorities with knowledge or reason to know that Cormick's arrest would likely result in torture. Cormick need not plead that Christ controlled or collaborated with the Zimbabwe police, only that he knowingly engaged in conduct which facilitated the wrong, which he has done. 2. Denied. Cormick has alleged that Christ intentionally and knowingly provided a

false conclusory statement to the Zimbabwe authorities with knowledge or reason to know that Cormick's arrest would likely result, which it did. Zimbabwe law allows for such a claim, which is adequately pleaded. Christ has failed to establish that Zimbabwe law does not provide a remedy for infliction of emotional distress. 3. Denied. Christ has mis-stated the law regarding pleading damages in a defamation

case. Cormick is entitled to general, presumed damages for Christ's Internet defamation, which damages do not have to be pleaded specifically. The unauthenticated "evidence" Christ points to (beyond the four corners of the Counterclaim) does not establish that Cormick's reputation was so bad that it could not have been injured by Christ's defamation. As to Elan Suisse Ltd., as it has not dissolved, it is entitled to maintain its claim. 4. Denied. However, Elan Suisse Ltd. withdraws its Lanham Act claims

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STATEMENT OF FACTS1 A. THE UNDERLYING TRANSACTION. From 2000-2003, Cormick developed a business idea that would market U.S. investment products to South Africa for the first time on a large scale. This included developing a prototype in Zimbabwe, securing investors and making contact with banks, investment brokers and other financial institutions. (Counterclaim, D.I. 47 ("CC") ¶¶1-31). Part of Cormick's plan was to form a United States-based entity to act as a management services company overseeing US-based asset classes. (CC ¶¶32-35). Cormick contacted Christ, whom he knew from expeditions to the North Pole which Christ operated, to inquire whether Christ could recommend anyone. Christ expressed an interest in possibly offering his candidacy for the position, noting that he was a CPA and a highly experienced forensic accountant and that he was looking to get out of his current business as it was keeping him away from his wife and children, plus he had fallen out with one of his business associates. (CC ¶36). Christ and Cormick agreed to meet in Cape Town, South Africa, as Christ was traveling there to attend the funeral of one of his close friends. At this point Cormick had not yet agreed that Christ would become involved with Elan Suisse at all. The parties were only in a stage of initial discussions about the need to find someone who could run the Elan Suisse management services company in the US. Promoting his qualifications as a CPA and highly experienced forensic accountant who had been employed by a Big 8 accounting firm, Christ explained to Cormick that

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Christ attempts to "spin" the facts on this motion by citing to his own Complaint in his Statement of Facts. On a motion for judgment on the pleadings, however, the facts alleged in Cormick's Counterclaim control and are accepted as true, while any conflicting allegations in Christ's Complaint are rejected. Lewis v. Neal, 905 F.Supp. 228, 230 (E.D. Pa. 1995). 3

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he was professionally qualified specifically in matters of financial due diligence. In Cape Town, Christ and Cormick went through every aspect of the proposed transaction, at length and in great detail. (CC ¶37). During the period of due diligence, Christ and Cormick conducted a review of all of the paperwork, along with a review of: South African Financial Services Board full license and regulatory approvals of multi manager (Elan Suisse (Pty) Ltd.); South African Financial Services Board full approvals and registration of product base for national distribution; Guernsey Financial Services Commission approval and registration (International Mutual Fund PCC Ltd.) of multimanager offshore investment structure; national product distribution channels; national institutional product approval by largest banks (ABSA IMCO)/brokers, etc; sub-manager sector performance; sub-manager profile, qualifications and experience; Cormick's qualifications and experience; absent asset classes nationally; competing market products; "white label" distribution platform; new $USD product development opportunities (10 new funds identified); marketing platforms secured; product administration facilities (redemption procedures, calculation of daily NAV, pricing, reporting, conversion procedures etc); administration provider credentials and background; product management fee tolerances (brokerage fees-placement fees-initial charges-performance fees-admin fees-custodian fees); fund subscription process; Regulation 750K investment allowance provisions, etc. (CC ¶¶39-40). After further discussion and negotiation, Cormick reached an agreement with Christ that Christ could purchase 50% of the Elan Suisse management services company that was to be established in the U.S. (Delaware) for $350,000, and serve as Senior Vice President. (CC ¶42).

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Upon purchasing 50% of ESUS from Cormick for the agreed discounted figure of $350.000, Christ would get 50% of all annual management fees generated by U.S. investment funds deployed by Elan Suisse (Pty) Ltd. and serviced by ESUS, as well as a beneficial participation in Elan Suisse (Pty) Ltd. ($USD component only). (CC ¶44). Cormick invited Christ to fly to London to meet and to attend a meeting with BNP Paribas, given the extraordinary implications of the fact that the second largest bank in Europe was pitching for the Elan Suisse (Pty) Ltd. business. Such efforts on the part of BNP Paribas demonstrated very clearly how real, serious and immensely exciting the entire enterprise was. Cormick also wanted to use this meeting as the final due diligence step for both himself and Christ prior to allowing Christ to become an investor in ESUS. (CC ¶51). Cormick was delighted to see that Christ's CPA training enabled him to not only understand the simple structure that had been agreed to, but he even managed to make positive contributions to the meeting. (CC ¶52). Prior to Christ's return to the U.S., Christ and Cormick sat together and once again confirmed the simple position that they had agreed to: that Christ, for a total of $350,00, could buy 50% of ESUS and a proportional participation in the $USD business of Elan Suisse (Pty) Ltd. (IPR, or customer base, or so-called "good will"). Cormick told Christ that he would now be prepared to accept Christ's investment, as Cormick planned to incorporate the appropriate Delaware company (to be known as "Elan Suisse International Holdings LLC") immediately upon his return to Zimbabwe. (CC ¶54). Christ agreed and subsequently returned to the U.S. to commence operations for ESUS, following which his wife, Karen Christ, transferred $250,000 of the agreed $350,000 upon his return. Cormick returned to Zimbabwe and formed ESUS in Delaware, sending copies of the incorporation 5

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documents to Christ. As Christ and Cormick had agreed to a total of $350,000 when in London, Cormick waited for Christ to transfer the outstanding balance of $100,000 so that Cormick could issue all of his subscription agreements as fully paid for. (CC ¶55). By mid-September, 2004, seven months into the project with Christ, things began to unravel. Christ suddenly seemed to be under enormous pressure (possibly from his wife), and seemed to be getting cold feet about having made the investment, and began to deliberately argue an alternative version of factual events. For example, although he had previously argued that his experience as a forensic CPA for a Big 8 accounting firm made him uniquely qualified to handle the job, in an e-mail dated September 15, 2004, he argued that he had no specialized knowledge that would qualify him for participation in the enterprise. Christ also began characterizing his investment as a "loan." (CC ¶60). In an e-mail dated September 17, 2004, Christ told Cormick that he had gotten cold feet, and asked Cormick to "liquidate" his "position." (CC ¶61). Cormick proceeded to assure Christ that Cormick would do his best to sell Christ's investment. Cormick was confident that this could be done in a timely fashion given the amount of interest that was being generated in the company at this point and as a result of all of Cormick's efforts. (CC ¶62). Cormick began efforts to market Christ's shares in good faith to third party investors. (CC ¶63). Cormick made presentations to 30+ individuals, representing the highest echelons of the mining, law, service, commerce and banking sectors in Zimbabwe. (CC ¶65). At the same time, Christ continued to behave in a very erratic way. Several e-mails were exchanged between Christ and Cormick in which it was obvious Christ increasingly misconstrued what he thought he was getting for his investment. Then Christ suddenly decided that he had 6

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changed his mind altogether about wanting to liquidate his position, and that he wanted to stay in ESUS after all, or even possibly re-engage after his current position had been liquidated. (CC ¶67). On November 29, 2004, while Cormick was actually in an advanced closing negotiations with a potential investor, Cormick was informed that Christ had retained the services of an attorney in South Africa and had sued the company, misrepresenting the facts and with the false claim of a "loan" for $250.000. (CC ¶79). Given that Christ had misrepresented his position to the lawyer in South Africa and that he had also misrepresented the position of the company, deliberately distorting the actual facts, it was necessary to halt the sale of Christ's interest until this matter was sorted out given that it would be unethical, illegal and not acceptable to market his shares while forced to litigate with him. (CC ¶80). Christ's legal action also created a very serious operational problem for Elan Suisse (Pty) Ltd. The withdrawal of Christ from the project (although in between alternating emails he was in/out/in/out), not only had the U.S. management services operation become inoperative, but Christ and Cormick were actually litigating over it. In reality, this meant that it would not be possible to launch the U.S. Government Bond Fund in the fashion in which Cormick had intended, because there would be no effective U.S. management services company in place to specifically service the escalating demand for the product. (CC ¶81). Christ dropped his next bomb by sending a letter to a Zimbabwe financial publication suggesting wrongfully that Cormick was involved in a financial scandal unrelated to his investment. (CC ¶¶87-89). The effect of Christ's malicious and false article on marketing efforts in South Africa was devastating: anyone who entered Cormick's name on an Internet search engine during due diligence procedures would find this maliciously contrived article. This, along with the litigation 7

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improperly initiated by Christ from South Africa, destroyed Cormick's ability to market any Elan Suisse equity stock, crushing the value of Christ's investment, as well as that of Cormick and the other investors. (CC ¶89).2 This event was immediately followed by what Christ described at the time as "the coming storm," which was to include aside from other things, a 2+-year long series of stalking via threatening e-mails and making his accusations to any publication that would listen. (CC ¶¶91-92). B. CHRIST'S CAMPAIGN OF DEFAMATION. Christ continued his quest for utter and complete destruction by subsequently publishing false and defamatory statements on a website growing to over 200 printed pages. The "facts" he lists on his website are utterly false, based on either, un-named and possibly fictitious sources, or on sources with obvious biases (including but not limited to ex-wives and girlfriends), or on individuals speculating without firsthand knowledge, or on simply poor or non-existent research. (CC ¶94). On that website, Christ falsely and outrageously accuses Cormick of the following (but not limited to this list): a. b. c. d. e. being a scam artist practiced and proficient at his craft; being a "crook"; having plastic surgery to hide; misrepresenting his academic, military and prior employment credentials; engaging in "theft";

2

At a later point in time, Christ wrote an apology retracting his claim in the Zimbabwean Financial Gazette, as part of a settlement of a separate lawsuit he brought over website development expenses. His retraction and apology was published as well, but by then it was too late and the damage had been done. (CC ¶90). 8

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f. g. h.

operating a "pseudo-legitimate business"; being fired from a prior employment with HIVEX due to allegations of fraud; operating a "boiler room type operation selling worthless (or significantly

overvalued) securities to relatively unsophisticated investors"; i. j. k. l. m. n. o. p. q. r. s. t. u. running advance fee scams; running an equity scam; running a pyramid scheme; running a ponzi scam; running a bait-and-switch scam; being a liar; having stolen Christ's money; being a deadbeat dad, not paying child support; being a pathological liar; having been in and out of jail for years; having solicited prostitutes; being let go from an earlier employer for misuse of a company credit card; being asked to cease teaching at the University of Cape Town due to questions

about his qualifications and unauthorized use of official letterhead; v. being "fired from [HIVEX] after attempting to open a First National Bank

checking account without a corporate resolution requiring only a single signature (Cormick's of course)"; w. being fired by BZW Meares because he "disgraced himself at that firm...; 9

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x. y. z.

having "eluded the law in Europe, RSA and the USA...."; running "scams on various girlfriends"; and being a pedophile. (CC ¶95).

Cormick tried to continue with the Elan Suisse concept notwithstanding Christ's attacks, but investor support evaporated. Doors that had taken 3 years of tremendous effort at the highest levels to open up were now closed permanently. (CC ¶93). C. CHRIST CAUSES CORMICK TO BE ARRESTED AND TORTURED. Prior to or shortly after August 1, 2006, Christ contacted Zimbabwean officials and in a sworn affidavit falsely testified that Cormick "has eluded the law in Europe, RSA and the USA," and that "the accused should be brought to justice," thereby suggesting that Cormick was a wanted international criminal fleeing from arrest. (CC ¶97).3 . At the time Christ executed the false affidavit he knew or should have reasonably known that

his conduct would assist or encourage Zimbabwean officials to incarcerate Cormick. (CC ¶98). Christ further knew or should have known that by reason of executing the false affidavit, and by reason of the political climate in Zimbabwe at the time, that it was reasonably probable that Cormick would be subject to confinement that violated specific, universal, and obligatory international norms including but not limited to inhumane conditions as well as psychological and physical torture. (CC ¶99). In the early morning hours of August 23, 2006 while Cormick was the sole adult in charge of his two youngest children in Zimbabwe, he was apprehended by unidentified individuals. These

3

Christ had made similar accusations to police agencies in other jurisdictions, who declined to act. (CC ¶96). 10

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individuals refused to state their purpose, where they were taking Cormick, and the reason or nature of the abduction. These unnamed individuals refused Cormick's request ro allow him to make arrangements for the health and safety of his two children. (CC ¶100). Cormick was placed in an unidentified vehicle with his luggage, and was repeatedly refused information about the nature, reason or purpose for the abduction. (CC ¶101). He was taken to an unknown location where there were no officials in police uniform or otherwise identifiable public officials. Cormick was searched and made to sit, ignored and in isolation, for an extended period of time in a room with a window. Following his detainment, Cormick was advised of the Christ affidavit. He subsequently encouraged his captors, who he then believed to be Zimbabwean officials, to investigate the false allegations. (CC ¶102). These Zimbabwean officials refused Cormick's request to investigate the false allegations which caused Cormick to believe that he was about to become one of many Zimbabwean victims who would be executed without a formal hearing or trial. (CC ¶103). Cormick was put in a dark, cold room until late in the afternoon on August 23, 2006. He was cold and had not eaten for 22 hours by that time. Cormick's passport was confiscated and he was incarcerated with the personal knowledge that inhumane confinement, torture and execution in Zimbabwean prisons were common. He was given no reason for his incarceration despite repeated requests for an explanation. (CC ¶104). During the transfer to prison, the Zimbabwean officials made intimidating comments and threats to Cormick indicating that he would be in for a very, very rough time. When Cormick requested how long he would be incarcerated, the response was "forever." (CC ¶105).

11

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It was winter in Harare at that time with temperatures below freezing at night. Upon arrival at the prison Cormick was informed that he would be allowed to retain only one item of clothing. This was done in order to make the inmates as uncomfortable as possible. Cormick chose to retain a very light woolen sweater next to his skin as his chosen item of clothing, which he tucked into his underwear. (CC ¶106). The cell in which Cormick was incarcerated was meant to hold about 15 people, but held around 50 at that time. The cell also was filthy with lice and fleas; there was no toilet, food or water. Other inmates in the cell defecated and urinated wherever they were standing. Many inmates were extremely ill, comatose or dying, but because of the crowdedness of the cell, they were forced to stand throughout the incarceration. Cormick stood barefoot and semi-naked in the cell in subfreezing conditions and continued to suffer from hunger, thirst and exhaustion, becoming disoriented since he had been without food and water for 28 hours by that time. (CC ¶107). Later that night, Cormick was moved to a "holding area" believed to be used for the torture of inmates. The wet concrete floor of the holding area contained hundreds of inmates. While sitting huddled on the wet, bare, concrete floor in that holding area, in human excrement, he was barefoot, semi-naked, and subjected to sub-freezing temperatures. He was also exposed to numerous potentially fatal, contagious diseases. Freezing wind inducing hypothermic conditions came straight into the holding area. (CC ¶108). Cormick was subjected to aggressive and threatening gestures over the course of the night, which became increasingly menacing over time and suggested that he would not live to see the light of the next day. (CC ¶109).

12

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Later that night Cormick was moved into yet another confinement area where the floors were concrete; there were open sewers that were overflowing and blocked by excrement, and the cells had no heat. The cell that Cormick was confined to had thirty-five inmates even though the cell could only accommodate six. Inmates were very sick (including with a variety of highly contagious diseases) and were covered with lice, fleas, ticks and excrement. Some had been brutally tortured. The bare concrete was so cold that Cormick's entire body violently shook and spasmed with hypothermia. (CC ¶110). On or about 8:00 a.m. on August 24, 2006, Cormick was once again taken to the holding area. He had not had anything to eat or drink for 36 hours. He had not slept for 24 hours at this point. He had also not been charged with any crime. (CC ¶111). Around 10 a.m. on August 24, 2006, Cormick was taken back to the facility where he had originally been taken after being abducted from the place where he and his children had been staying. Cormick was forced to walk from the prison to that facility through the main street of Harare, filthy, barefoot, shackled and semi-naked in plain view of all in the middle of winter. (CC ¶112). During the night of August 24, 2006, Cormick was placed on the 4th floor holding area with hundreds of inmates, in subfreezing temperatures, semi-naked, in complete darkness lying on the concrete floor, in excrement, fluid and subject to freezing wind biting through the cracks in the walls. (CC ¶113). During confinement, Cormick was tortured using different techniques including but not limited to: a. a plastic bag was placed over his head to prevent him from breathing; 13

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b.

he was repeatedly beaten in or around his eyes, nose, and head to the point of

concussion-like symptoms and disorientation; c. black-out from pain; d. e. f. he was made to sit in humiliating and uncomfortable stress positions; knees were placed on his throat to induce gagging and vomiting; he was restrained on a filthy, wet cement floor covered with excrement and he was held down while an individual sat on his chest, making him almost

blood, likely contaminated with contagious diseases; g. h. i. j. k. l. m. n. o. p. p. he was urinated on; he was repeatedly struck in the groin; his eyes were covered with a rag to keep him disoriented; his face was held to the cement floor and rubbed in dirt and excrement; his arms were placed in a stress position and his hair pulled back; he was repeatedly beaten in the kidneys and in the stomach; his fingers were bent back; death threats were repeatedly made; he was made to go 69 hours without food or water; he was made to go 57 hours without sleep (by the time of his release); he was held in sub-freezing conditions while semi-naked, and likely exposed

to contagious diseases. (CC ¶114). During one of these torture sessions specific references to Christ were made. (CC ¶115).

14

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By the time Cormick was returned to the sleeping cells in the wee hours of August 25, 2006, the open sewers and hypothermic conditions of the critically overcrowded cells were worse given that the fluids had turned into ice on the filthy concrete floors. He was still semi-naked. (CC ¶116). On or about 5:00 p.m. on August 28, 2006, Cormick was released pursuant to the intervention of the Australian ambassador and with full acknowledgment by the Zimbabwean Attorney General that the statements submitted by Christ in his affidavit were false. (CC ¶117). By the time of his release Cormick had been without food or drink for 60+ hours, and had been without sleep for 57 hours. (CC ¶118). As a direct and proximate result of the actions and knowledge of Christ, Cormick has suffered (and continues to suffer): shock and nervous reaction; great fear and apprehension; posttraumatic stress disorder, manifesting itself in regular nightmares, insomnia (requiring the aid of sleeping pills), bouts of depression, and partial memory loss; double pneumonia coinciding with malaria; a broken nose, with resultant breathing difficulty; long-term impairment of hearing; longterm impairment of vision; soft tissue damage in the kidney region; inhibition from further visitation with his minor children in Zimbabwe during his access legal period, which has caused him extreme and permanent psychological damage and distress. (CC ¶119).4

4

Christ questions why Cormick never made mention of his torture in an affidavit submitted to a Zimbabwe court in connection with his divorce. (Christ Opening Brief ("COB") 9-10 n.2). It does not take much imagination to realize that it would not be a good idea to make a public accusation of government-sponsored torture in Zimbabwe before an arm of that same government, particularly when seeking relief from that same government on unrelated matters. 15

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ARGUMENT In deciding a motion for judgment on the pleadings, the Court should keep in mind that such motions are disfavored and so courts have followed a restrictive standard in deciding them. C. Wright and A. Miller, Federal Practice and Procedure § 1368 (2d ed.1990). On a motion for judgment on the pleadings, the Court must view the facts alleged and the inferences to be drawn from the pleadings in the light most favorable to Cormick as the non-moving party. Judgment on the pleadings should not be granted unless it is clearly established that no material issue of fact remains to be resolved and that Christ is entitled to judgment as a matter of law. Shamrock Holdings, Inc. v. Arenson, 456 F.Supp.2d 599, 604 (D. Del. 2006).5 As demonstrated below, Christ's arguments are all based on superficial and incorrect analyses of the applicable procedural and substantive law, along with attempts to introduce evidence outside of the pleadings, and should be rejected. I. THE COUNTERCLAIM STATES A VIABLE CLAIM UNDER THE ALIEN TORT STATUTE. The motion to dismiss the counterclaim is governed by general tort law or, more specifically, the law of tort applied under the Alien Tort Statute, 28 U.S.C. 1350 ("ATS"), which grants jurisdiction to the district courts for "an alien for a tort only, committed in violation of the law of nations." Cormick is an alien alleging a tort for which Christ is liable as an accomplice, namely battery by Zimbabwean officials so egregious that it amounted to torture. Torture is a violation of

5

For one, Christ attempts to supplement the factual record by adding citations to an affidavit he filed in connection with an earlier motion. (COB 8, 9). Such action is improper on a motion for judgment on the pleadings and so his affidavit should be disregarded. See Winokur v. Office of Court Admin., 190 F.Supp.2d 444, 342 (E.D.N.Y. 2002). 16

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the law of nations and actionable under ATS. Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir. 1980); Senathirajah v. I.N.S., 157 F.3d 210, 221 (3rd Cir. 1998). The basis of Christ's liability is "aiding and abetting" or "inducing" the commission of torture by making false accusations with the intention of and resulting in Cormick's arrest, and with knowledge or reason to know that torture was a reasonably probable consequence of the arrest. A. THE ATS PERMITS CLAIMS FOR AIDING AND ABETTING.

Christ begins by making a passing comment suggesting that "aiding and abetting claims" are not allowed under the ATS. (COB13, citing In re South African Apartheid Litig., 346 F.Supp.2d 538, 549-51 (S.D.N.Y. 2004)). Not only was In re South African Apartheid Litig. a minority decision, even within its own circuit 6, it has since been overruled by the Second Circuit, which has held that "aiding and abetting claims are viable under the ATS."Khulumani v. Barclay Nat. Bank Ltd., ___ F.3d ___, 2007 WL 2985101, WL Op. at *2 (2nd Cir. Oct. 12, 2007) (per curiam) (Ex. A hereto).

6

The majority of courts that have addressed this issue recognize aiding and abetting claims under the ATS. E.g., Almog v. Arab Bank, PLC, 471 F.Supp.2d 257, 290-91 (E.D.N.Y. 2007); Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457, 464 (S.D.N.Y. 2006);Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.Supp.2d 633, 668 (S.D.N.Y. 2006); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 321-24 (S.D.N.Y. 2003); In re Terrorist Attacks on September 11, 2001, 329 F.Supp.2d 539, 565 (S.D.N.Y. 2005); In re Agent Orange Product Liability Litig., 373 F.Supp.2d 7, 53 (E.D.N.Y. 2005); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86, 100 (D.D.C. 2006); Mujica v. Occidental Petroleum Co., 381 F.Supp.2d 1164, 1173 n.6 (C.D. Cal. 2003); Cabello v. Barreuto v. Fernandez Larios, 205 F.Supp.2d 1325, 1333 (S.D. Fla. 2002); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1355-56 (N.D. Ga. 2002). Indeed, the historical evidence shows that claims for aiding and abetting were specifically contemplated at the time the ATS was adopted. Almog, 471 F.Supp.2d at 286 n.34. 17

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B.

THE COUNTERCLAIM PLEADS SUFFICIENT FACTS TO INDICATE STATE-SPONSORED TORTURE.

Christ argues that the Counterclaim does not sufficiently allege that Cormick's incarceration and torture was at the hands of the Zimbabwe government. (COB 12-13). Even if the Court were to indulge Christ's bizarre notion that there exists in the world privately-owned prisons and torture centers unaffiliated with any government, the Counterclaim asserts sufficient facts to permit a reasonable inference that Cormick's incarceration and torture were caused by the Zimbabwe government. Specifically, the Counterclaim alleges that: (i) Christ made a complaint to the Zimbabwean police which was followed by Cormick's arrest, incarceration and torture (CC ¶¶96-99); (ii) Cormick's captors referred to Christ's complaint (CC ¶102); (iii) Cormick was transferred from a holding room to a prison cell by Zimbabwean officials (CC ¶105); (iv) Cormick was released with the aid of the Australian ambassador and knowledge of the Zimbabwean Attorney General. (CC ¶117). Christ is, of course, free to argue to a jury that these are all mere coincidences. On a motion for judgment on the pleadings, however, these allegations must be accepted as true, and these allegations are more than sufficient to permit an inference that Cormick's detention and torture were state-sponsored.

18

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C.

UNDER THE ATS IT IS SUFFICIENT FOR AIDING AND ABETTING LIABILITY TO ALLEGE THAT CHRIST KNEW THAT HIS CONDUCT WOULD ASSIST OR ENCOURAGE ZIMBABWEAN OFFICIALS TO INCARCERATE AND TORTURE CORMICK.

Christ argues that the Counterclaim does not sufficiently allege "aiding and abetting," because Cormick does not allege that Christ either directly participated in such conduct or had the right to control the actions of the Zimbabwe police. (COB 14). Christ's superficial analysis is incorrect. Understanding liability for aiding and abetting under the ATS law requires an examination of the sources of the concept of aiding and abetting ­ namely, criminal law. In Sosa v. AlvarezMachain, 542 U.S. 692 (2004), the Supreme Court held that the foundation of the ATS should incorporate the law of torts as it stood in 1789, when the Judiciary Act, including the ATS, was enacted. To do this, the Court turned to Blackstone, who published his monumental treatise 20 years earlier, in 1769. At that time, there was no crystallized body of law now referred to as "torts." Therefore, the Supreme Court cited Blackstone's three examples of criminal liability in violation of international law (piracy, violation of safe conduct, offenses against ambassadors). Id. at 715. Since the revival of the ATS in 1980 in Filartiga, the models of liability include more egregious crimes against the law of nations. The standard examples are torture, genocide, and other crimes against humanity that are specific, universal, and binding" See Sosa, 542 U.S. at 762. All of these standard examples are subject to liability in the International Criminal Court. Thus, the courts ­ including the Supreme Court in Sosa ­ have unanimously endorsed the interweaving of criminal law and tort principles to properly interpret the meaning of the ATS.

19

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The infusion of criminal law thinking is most evident in construing liability of third parties for torts committed in violation of the law of nations. When one person induces or solicits or influences another to commit a tort, the former is treated as an aider and abetter, facilitator or accomplice of the torture, war crime, or other offense that violates the law of nations.7 Cormick, as the alien victim, alleges that Christ aided and abetted the commission of torture by Zimbabwean officials. Thus, the allegation that Christ "encouraged" the Zimbabwean officials to incarcerate Cormick by providing a false complaint is an allegation of aiding and abetting, entirely appropriate in the context of the ATS, even if the concept originates in criminal law. The leading contemporary case on aiding and abetting liability under the ATS is Almog v. Arab Bank, 471 F. Supp.2d 257 (E.D.N.Y 2007). A large group of Israeli victims succeeded in holding Arab Bank liable for aiding terrorists by providing financial services and making payments to the families of suicide bombers. The court is explicit about the mental state required for aiding and abetting liability: The standards for aiding and abetting liability discussed above do not require that Arab Bank had the specific intent to cause the specific acts which injured plaintiffs; under the general standards of aiding and abetting liability it is sufficient that Arab Bank acted intentionally and with knowledge that its conduct would, as described below, facilitate the underlying violations when it engaged in the acts alleged. Id. at 291. Similarly, it is not necessary for Cormick to allege that Christ had the specific intent of torturing Cormick by swearing out a false warrant of arrest. It is sufficient to allege, as Cormick

7

The language of aiding and abetting comes directly from criminal law, see 18 U.S.C. §2, but the term "accomplice" is more common in the Model Penal Code and the Rome Statute. 20

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does, that Christ knew that his conduct would assist or encourage Zimbabwean officials to incarcerate Cormick, and that Christ knew that by reason of executing the affidavit, and by reason of the political climate in Zimbabwe at the time, that it was reasonable and probable that Cormick would be subject to confinement that violated specific, universal, and obligatory international norms including but not limited to inhumane conditions as well as psychological and physical torture. (CC ¶¶172-28).8 In the language of Almog Christ acted "with knowledge that [his] conduct would facilitate the commission" of torture against Cormick. Id. D. CORMICK HAS SUFFICIENTLY PLEADED A PROXIMATE CAUSAL CONNECTION BETWEEN CHRIST'S WRONGFUL CONDUCT AND THE ACTS OF TORTURE BY ZIMBABWEAN OFFICIALS.

Christ next argues that the Counterclaim does not allege adequately that his false statement to the Zimbabwe police was the cause of Cormick's detention. (COB 14). Christ misconstrues the nexus required between his actions and the behavior of Zimbabwean police. Christ incorrectly insists that there must an allegation of "proximate cause" or of "control" or of "assistance." All of these verbal designations are false and without warrant in the law, and, not surprisingly, Christ cites no supporting authority. An examination of the primary sources reveals that many forms of complicity short of "control" and "domination" are sufficient for aiding and abetting liability. These forms include the use of the verbs "encourage" or "induce" or "facilitate" to state a cause of action for aiding and abetting the commission of torture. Cormick does not allege, nor need he allege, that Christ controlled the commission of torture by the Zimbabwean officials. An examination of the primary sources reveals how far Christ's brief

8

Knowledge may be averred generally. Fed. R. Civ. P. 9(b). 21

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on "causation and "control" has strayed from applicable legal principles. The Restatement (Second) of Torts § 876 holds that an accomplice is liable for the tort of another if he "knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself."9 Example 7 on page 318 is directly on point, clearly illustrating the principle of liability: A persuades B, who is not an officer, to arrest C for a crime which A tells B was committed by C but which he knows has not been committed by anyone. A is subject to liability to C.10 The most salient feature of the Restatement example is that the critical verb is "persuades." There is no need to establish a strict causal relationship between the accomplice and the principal. Aiding and abetting is not causing, controlling or directing, it is providing some type of inducement or persuasion. For example, in the Almog case, the banks did not control or direct the terrorists. They provided financial services, and that was sufficient for liability. This analysis is convincingly supported by the primary sources of criminal law and international criminal law on the liability of accomplices. The Model Penal Code defines an accomplice as someone who " (a) with the purpose of promoting or facilitating the commission of the offense, . . . (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid

9

The Restatement (Second) of Torts is a source used by federal courts in analyzing ATS claims. See Bowoto v. Chevron Corp., No. C 99-02506 SI, 2007 WL 2349336, WL Op. at *6, Illston, J. (N.D. Cal. Aug. 14, 2007) (Ex. B hereto).
10

The Restatement is concerned that, in this example, both the principal and the accomplice were held liable for "acting in concert." That is why the drafter mentioned that B is "not an officer." If B were an officer, he may have had a reasonable claim of immunity in relying on A's tip. This is not important for Cormick's purposes, as he is not seeking to impose liability against the Zimbabwean officials. 22

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such other person in planning or committing it." Model Penal Code §2.06(3) (Official Draft 1962). The operative language here is facilitating the offense by soliciting someone to do it by aiding or attempting to aid the commission of the offense. The Model Penal Code also supports the conclusion in the Almog case that plaintiffs in ATS cases need not allege a specific intent to bring about a violation of the law of nations. It is sufficient that the aider and abettor act "with the purpose of promoting or facilitating the commission of the offense." This was an appropriate allegation against Arab Bank for facilitating terrorism and it is an appropriate allegation against Christ for facilitating the arrest, detention and torture of Cormick. The Rome Statute defining liability in the International Criminal Court11, operative since July 2002, demonstrates that the same norms of aiding and abetting apply to international law.12 The Rome Statute imposes criminal responsibility on anyone who "orders, solicits or induces the commission of such a crime which in fact occurs or is attempted." Article 25(3)(b). The most important verb used in the Rome Statute is "induces." The substance of Cormick's allegations that Christ induced the Zimbabwean police to arrest Cormick and to impose the harshest of measures, which amounted to torture that were, according to the allegations of the counterclaim, imposed on many other individuals subject to detention.

11

See http://www.un.org/law/icc/index.html (website of the Rome Statute of the International Criminal Court).
12

Although the United States has not ratified the Rome Statute, the policy of the State Department is to support prosecution in the ICC for egregious violations of human rights. That was the reason the United States accepted the decision of the Security Council to initiate prosecution for genocide in Darfur. See George P. Fletcher and Jens David Ohlin, "Reclaiming Fundamental Principles of Criminal Law in the Darfur Case," 3 J. of Int. Crim. Justice 539 (2005). 23

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E.

CHRIST'S AUTHORITIES ARE NOT APPLICABLE TO THIS CASE.

In his opening brief, Christ refers to a number of cases that have no bearing on this case. These are cases in which the plaintiff victim sues a corporation for having supplied the materials by someone else used in committing an offense against the law of nations. See In re Agent Orange Product Liability Litigation, 373 F. Supp.2d 7 (E.D.N.Y. 2005); Corrie v. Caterpillar, Inc., 403 F. Supp.2d 1019 (W.D. Wash. 2005); In re South African Apartheid Litigation, 238 F. Supp.2d 1379 (JPML 2002). In these cases the defendants can sometimes convincingly argue that merely supplying the means of violating international law is not sufficient for aiding and abetting liability. Their argument is that they are simply engaged in selling their product in the ordinary course of business and therefore they do not incur liability if their product is misused by the purchaser. This argument was effective in the Agent Orange and Caterpillar cases. It is totally irrelevant in the present action. There is no sense whatever in which Christ was engaged in the ordinary course of selling his product. Christ went out of his way to impose egregious and painful consequences on Cormick purely as an expression of malice and personal animosity. The burden on Christ is higher than on the companies playing their trade in cases such as Agent Orange or Caterpillar or Khulumani. In those cases, the law recognizes the intrinsic value of commerce and so would impose criminal burdens on commercial activity only when it is performed with knowledge that the purchasers of the service or product would use it to engage in violations of established norms of international law. The law does not recognize any value in abusing its processes in order to further a private feud with a former business associate turned hunted enemy. There is no social value in Christ's invoking the terror of the Zimbabwe police against Cormick. 24

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*

*

*

Christ's argument on this motion, at its core, is that it is impossible to believe that he would intentionally submit false information to the Zimbabwe police, or to know that Cormick's arrest would result in torture. (COB 15). This, however, is an argument that should be made to a jury at trial upon the evidence, not to the Court on a motion for judgment on the pleadings, which are to be accepted as true.13 II. THE COUNTERCLAIM STATES A VIABLE CLAIM FOR FALSE IMPRISONMENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. As noted earlier, the burden is on Christ to demonstrate that there is no material issue of fact to be resolved and that he is entitled to judgment as a matter of law. Shamrock Holdings, Inc., 456 F.Supp.2d at 604. Thus, the burden was on Christ to establish that the facts alleged did not state a claim under Zimbabwean law (the law which the parties stipulated applied to these claims). As demonstrated herein, Christ has attempted improperly to refute the alleged facts with unauthenticated documents beyond the Complaint and has failed to demonstrate that the claims are not cognizable under Zimbabwe law (which the parties agree applies to these claims). As such, his arguments should be rejected.

13

At trial, Cormick will introduce e-mail from Christ (before the dispute arose) encouraging Cormick to flee Zimbabwe because of the danger, and will testify that he and Christ had discussed the dangers. To the extent that Christ asks this Court to find it impossible to believe that he could submit false information to the Zimbabwean police, Cormick repeats an invitation to Christ he made (through counsel) in earlier correspondence: travel to Zimbabwe and speak with the police. It is Cormick's understanding that the Zimbabwe police are interested in having a little chat with Christ about his submissions to them. To no one's surprise, Christ has thus far declined the invitation. 25

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A.

ZIMBABWE LAW RECOGNIZES TORT CLAIMS ARISING FROM WRONGFUL ARREST, IMPRISONMENT AND LEGAL PROCEEDINGS.

Christ first states that "[c]ounsel for Mr. Christ has been advised by counsel in Zimbabwe, however, that Zimbabwean law does not recognize these torts per se." (COB 16). Of course, an unsworn hearsay statement by an unnamed third party is not proper or worthy of credit. Zimbabwe applies Dutch-Roman law. Note, "Conflict Between State Legal Norms and Norms Underlying Popular Belief: Witchcraft in Africa as a Case Study," 14 Duke J. Of Comparative Law 351 (2004). Tort law in Dutch-Roman law is referred to as the law of "delict." Id. Zimbabwe law recognizes the delict of unlawful arrest and imprisonment, as well as abuse of legal proceedings. G. Feltoe, A Guide to the Zimbabwe Law of Delict 56-57 (3rd ed. 2001) (Ex. C. hereto). Of course, the label applied to a cause of action in irrelevant. What matters is whether the facts alleged permit recovery under the applicable law. In re Motel 6 Sec. Litig., No. 93 Civ 2183 JFK, 2000 WL 322782, WL Op. at *7, Keenan, J. (S.D.N.Y. Mar. 28, 2000) (Ex. D hereto). Zimbabwe law allows recovery where a private party improperly procures the arrest of another by the police. A Guide to the Zimbabwe Law of Delict at 57. As such, the question on this motion is whether Christ can definitively establish that Cormick is not entitled to recover under the pleaded facts. The answer is that he cannot. B. CHRIST HAS FAILED TO ESTABLISH AS A MATTER OF ZIMBABWE LAW THAT THERE IS NO LIABILITY FOR HIS KNOWINGLY MAKING FALSE STATEMENTS TO THE POLICE, WITH MALICE, WHICH PROCURED THE ARREST AND TORTURE OF CORMICK.

Christ argues that there is no liability under Zimbabwe law simply for making factual statements to the police which result in an arrest. (COB 16-17, citing Bando v. Muchinguri, 1999

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Z.L.R. 476 (High Court, Bulawayo)). However, for Bando to apply, (i) there must be statements of fact without making a direct charge of a crime, and (ii) the facts provided must be true. Id. at 484. The counterclaim alleges that Christ knowingly made material false statements to the Zimbabwe police with the intent of getting Cormick arrested. (CC ¶131).14 Christ told the Zimbabwe police that Cormick had eluded the law in Europe, South Africa and the United States, and should be brought to justice. (CC ¶97). This was not a true statement of objective fact, as Cormick was not a fugitive from any nation. It was a knowing lie. Moreover, Christ did not provide any background facts to support his claim (as there were none). As this was nothing more than a conclusory accusation that Cormick was an international fugitive, Bando does not apply to this case. The Counterclaim further alleges that (a) Christ knew or should have known that his statement to the Zimbabwean police would encourage them to arrest Cormick (and indeed, what other purpose was there for his providing the statement to them), and (b) Christ knew or should have known that an arrest in Zimbabwe could result in torture. (CC ¶¶98-99). Cormick also alleges that Christ's misrepresentations lacked probable cause, were made with malice, and resulted in Cormick being arrested and tortured. (CC ¶¶131-34). As such, causation, malice and all other necessary elements have been clearly pleaded.15 and Christ has failed to establish that Cormick is not entitled to recover under these facts and under Zimbabwe law.16

14

Knowledge may be averred generally. Fed. R. Civ. P. 9(b).
15

Malice may be averred generally. Fed. R. Civ. P. 9(b).
16

Christ's citation to the Restatement (Second) of Torts (1965) is irrelevant in the absence of some evidence that the Restatement is applied in Zimbabwe (as opposed to international law ATS (continued...) 27

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C.

THE COURT SHOULD DISREGARD AND STRIKE FROM THE RECORD THE AFFIDAVIT SUBMITTED BY CHRIST.

Christ attached to his motion at Exhibit B a document which he identifies in his brief as the affidavit he submitted to the Zimbabwe police, and notes that it is dated September 6, 2006, postdating Cormick's arrest. Christ claims that Court may consider the affidavit because it was referred to in Cormick's counterclaim. (COB 14-15 & n.15). This is incorrect, and Cormick moves to strike this affidavit from the record on this motion. Christ submits the affidavit without any supporting affidavit authenticating it. More importantly, Christ does not offer an affidavit swearing that this was the only statement he gave to the Zimbabwe police, either directly or through a lawyer or other intermediary. The Counterclaim alleges that, after arrest and during incarceration, Cormick was advised of Christ's statement to the police. (CC ¶102). In Cormick's declaration, submitted herewith as Exhibit E in support of his motion to strike Christ's affidavit, Cormick fleshes out the allegation by stating that he, his Zimbabwe lawyer and others saw the statement from Christ. (Ex. E ¶¶3-5).17 Additionally and importantly, the fax cover page that is part of Christ's exhibit was not referred to in the Counterclaim, and so may not be considered on this motion.

(...continued) claims). In any event, Christ's argument that there are no allegations that Christ knew his actions would result in Cormick's arrest is frivolous, as such knowledge is expressly averred in the counterclaim. (CC ¶133). Even without such an allegation, Christ has failed to suggest a credible alternate reason why he would make such unsolicited accusations about Cormick to the police.
17

16

Cormick asked Christ in discovery to produce all documents submitted to the Zimbabwe police. Christ thus far has produced only the affidavit he submitted with his brief, which he produced to Cormick's counsel only the day before he filed his opening brief. Christ has not explained his failure to produce the other documents. 28

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Thus, it is clear that the affidavit Christ has submitted to this Court is not the statement he submitted to the Zimbabwe police which induced the police to arrest Cormick. At best, there is a factual dispute, and, at least for the purposes of this motion, the Court should decline to accept Christ's representation that the affidavit he submitted is the one in question. D. CHRIST HAS FAILED TO ESTABLISH THAT ZIMBABWE DOES NOT OR WOULD NOT RECOGNIZE A CLAIM FOR INFLICT OF EMOTIONAL DISTRESS.

Christ's argument is that the Counterclaim for infliction of emotional distress fails to meet the test of the Restatement (Second) of Torts §46, as Cormick supposedly failed to allege an intentional act that proximately caused emotional distress to Cormick. (COB 18). Again, there is no evidence that Zimbabwe law follows the Restatement. Apart from that, Christ ignores that fact that the Counterclaim alleges that (i) Christ made knowingly false statements to the Zimbabwe police (CC ¶¶96-97, 131), which (ii) caused the police to capture and torture Cormick (CC ¶134), and that Christ knew or should have known that arrest by the Zimbabwean police includes a risk of torture. (CC ¶¶98-99). Although Christ argues that the allegation that Cormick "knew or should have known" of the risk of torture is insufficient (COB 18), he is overruled by Federal Rule of Civil Procedure 9(b). Zimring v. Halley, C.A. No. 85 C 7094, 1986 WL 2621, WL Op. at *2, Hart, J. (N.D. Ill. Feb. 20, 1986) (allegation that defendant "knew or should have known" sufficien