N.D.Cal.: Motion to dismiss on exhaustion grounds denied

Former President Joseph Estrada

From U.S. News Las Vegas, a Philippine-American interest site:

Judge William Alsup of the United States District Court of Northern California in San Francisco has dismissed “without prejudice” the motion to dismiss filed by Michael Ray B. Aquino, who said the plaintiffs should have exhausted remedies first in the Philippines before filing the $120-million civil suit in San Francisco court against him and several others, including former Philippine President Joseph Estrada, Sen. Panfilo M. Lacson, Aquino’s subordinate officer Glenn G. Dumlao, former Pagcor big boss Reynaldo Tenorio and businessman Dante Tan.

[…]

In a three-page order, Alsup said, “Where claims are brought under the Alien Tort Claims Act, the defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.”

Instead of “pleading exhaustion as an affirmative defense in an answer to the complaint, he (Aquino) raised the issue in a motion to dismiss the complaint. This procedural approach is improper,” Judge Alsup said.

Only after Aquino files an answer to the complaint, raising exhaustion as an affirmative defense and after both sides have an opportunity to develop the evidence needed to prove and rebut the exhaustion defense may then file a motion for summary judgment on that issue, Alsup ruled.

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About Charles Donefer

I am an attorney in New York City.
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