Second Circuit won't let Ecuadorians file response to reply

By Jessica M. Karmasek | Sep 14, 2011


NEW YORK (Legal Newsline) -- The U.S. Court of Appeals for the Second Circuit this week denied a motion by the Ecuadorian plaintiffs suing Chevron Corp. to file a response to the oil company's reply over a federal judge's recusal.

The Second Circuit is considering whether to issue a writ of mandamus to the U.S. District Court for the Southern District of New York, directing Judge Lewis Kaplan to remove himself from a case involving a multibillion-dollar judgment against Chevron in Ecuador.

The Ecuadorians filed their petition with the Second Circuit earlier this month, again asking Kaplan to recuse himself from the case.

This isn't the first recusal request made by the Ecuadorians. The plaintiffs have asked the judge to step down from the case a handful of times now. Kaplan, himself, has refused to step down.

In their petition, the Ecuadorians took issue with, among other things, Kaplan's recent order compelling petitioners Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, who are residents of Ecuador's Amazon region, to travel to New York for depositions.

Kaplan agreed with Chevron's assertion that New York is the most convenient location for the depositions.

"Judge Kaplan disregarded the fact that Chevron's current statements are shamelessly at odds with the representations it made to wrest jurisdiction away from the Southern District of New York in the first place," the Ecuadorians wrote.

In February, an Ecuadorian court found Chevron liable for dumping billions of gallons of toxic waste into the Amazon, causing an outbreak of disease and decimating indigenous groups. Damages were found to be up to $18 billion.

Chevron filed a racketeering lawsuit, alleging 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.

In March, Kaplan issued an injunction blocking worldwide enforcement of the judgment. That ruling is under an expedited appeal before the Second Circuit, with arguments set for Friday.

Chevron, the Ecuadorians say, has taken out all the stops to defend its judge of choice.

"Chevron cannot explain or excuse Judge Kaplan's pride at purportedly having figured out the case from day one. Nor can Chevron explain how the Ecuadorian Plaintiffs can expect to receive fair treatment from Judge Kaplan when he is so clearly driven by a desire to inflict punishment on their lawyer, Steven Donziger, whom Judge Kaplan openly disdains," they wrote in their petition.

"In essence, Chevron's defense of Judge Kaplan boils down to its claim that the 'undisputed' evidence justifies his conduct."

The Second Circuit, after receiving the Ecuadorians' writ, instructed Chevron to reply. The company did.

Kent Robertson, a spokesman for the oil company, explained Wednesday that the Ecuadorians then filed a motion seeking to reply to Chevron's reply and attached their reply to the filing.

Chevron, in a 26-page filing Friday, opposed the Ecuadorians' filing of a reply.

The company argued that the Ecuadorians' proposed reply all but ignored Chevron's answer, "failing to identify even a single 'misrepresentation' it purportedly contains."

"Most notably, the LAPs do not -- because they cannot -- deny that they had a secret hand in drafting the $18.2 billion Ecuadorian judgment, which contains extracts from the LAPs' internal work product that was never filed in the court record," the company wrote.

The "facts" that the Ecuadorians seek leave to present to the court are not, as they contend, "egregious manifestations of Judge Kaplan's biased predisposition," Chevron said.

"Instead, they relate to routine discovery disputes, such as requiring certain depositions to be conducted in New York (at Chevron's expense), and such banalities as the district court's refusal to strike a brief that the LAPs claimed (incorrectly) had 'a portion' that used nonconforming spacing and font size," it wrote.

"None of these disagreements over court rulings is a proper basis for recusal."

The Ecuadorians' proposed reply brief does not even address the legal standard for recusal, the company alleged.

"Instead, it argues that the case should be reassigned," Chevron wrote. "But that is not the subject of the mandamus petition, and appellants already addressed it in their voluminous merits appeal briefs.

"On its face, the LAPs' proposed submission is not a proper 'reply,' and, therefore, their motion should be denied."

According to a one-sentence order filed Monday, the Second Circuit denied the Ecuadorians' motion.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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