NEW YORK (Legal Newsline) -- Attorneys for the Ecuadorian plaintiffs suing Chevron Corp. are asking a federal appeals court to reassign its case to a different district court judge.
The plaintiffs, in a 40-page writ of mandamus filed with the U.S. Court of Appeals for the Second Circuit last week, want U.S. District Judge Lewis Kaplan of the Southern District of New York dismissed.
Kaplan has been accused numerous times, by the plaintiffs, of bias against them and of trying to engineer a verdict in the oil giant's favor.
"In this case, the district court has seized upon every procedural opportunity to do exactly what this court's mandate forbade -- force the (Lago Agrio Plaintiffs) to litigate the enforceability of the judgment in the (Southern District of New York), even though the LAPs have still not sought recognition of the judgment in New York (or anywhere in the United States)," the Ecuadorians wrote.
"The district court's systematic effort to evade this court's mandate includes, inter alia, (a) an order adopting Chevron's self-serving interpretation of the LAPs' boilerplate estoppel defense to make it appear as though the LAPs demanded a declaration that the judgment is enforceable; (b) an order denying the LAPs' timely request to withdraw its misconstrued collateral estoppel defense; and (c) an order rewriting Chevron's pleadings so as to include a request to 'set aside the judgment'-- the functional equivalent of the dismissed 'non-recognition' action."
The Ecuadorians argue in their filing that the case should be reassigned to a new district judge due to Kaplan's "calculated effort" to evade the Second Circuit's mandate and opinion, "inability to remain impartial" and "hostility" toward Ecuador's judiciary and government.
"This court already has informed the district court that it may not act as a 'transnational arbiter' of the judgment, yet he continues to conduct himself that way. To say that the lower court has had 'substantial difficulty' in surrendering its discredited viewpoint would be an understatement," they wrote.
"This is the 'rare case where a judge has repeatedly adhered to an erroneous view after the error is called to his attention,' such that reassignment is necessary to avoid 'an exercise in futility [in which] the court is merely marching up the hill only to march right down again...'"
Last January, an appellate court in Ecuador upheld the $18 billion judgment for Chevron's "intentional contamination" of the country's rainforest.
The adverse ruling was issued by a panel of three temporary judges presiding over the proceedings in the Provincial Court of Justice of Sucumbios in Lago Agrio.
The ruling, which stems from an environmental lawsuit involving Texaco Petroleum Company, confirmed a lower court's ruling in February 2011.
The lower court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups.
Vowing never to pay the hefty judgment, the company filed a racketeering lawsuit in the Southern District of New York in response.
The company alleges that the Ecuador suit has been used to threaten the oil company, mislead U.S. government officials, and harass and intimidate its employees -- all to extort a financial settlement from the company.
Kaplan had issued an injunction blocking enforcement of the judgment. However, the Second Circuit ordered that the injunction be vacated.
In addition to asking for Kaplan's dismissal, the plaintiffs also are asking in their writ that the Second Circuit order the district court to:
- Vacate its July 31, 2012, Nov. 27, 2012 and Feb. 20 orders, which allow Chevron to seek the same declaration of non-recognition of the judgment that the Second Circuit already directed to be dismissed;
- Vacate its Jan. 7 order, which read an unpled -- and improper -- cause of action to "set aside" the judgment into Chevron's complaint; and
- Refrain, in any context, from considering whether the judgment is entitled to recognition, unless they affirmatively seek relief under New York's Recognition of Foreign Country Money Judgments Act.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.
Ecuadorians suing Chevron want Second Circuit to dismiss judge from case
