United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiffs James Gordon Geon ("Geon") and Chankook Chun ("Chun") (collectively, "Plaintiffs") have filed this lawsuit against Defendants Republic of Korea ("ROK"), the Seoul Metropolitan Government ("SMG"), the Korea Land & Housing Corporation ("KLHC") and Richard H. Kim in his official capacity as an employee of the United States Armed Forces Claims Services-Korea ("Kim") (collectively, "Defendants") alleging violations of the United States-South Korea Status of Forces Agreement ("US-ROK SOFA"), the US-ROK SOFA Special Act No. 1902 and the South Korean Special Compensation Act No. 9543. D. 6. Defendants have moved to dismiss. D. 61; D. 64; D. 68; D. 70. For the reasons stated below, the Court ALLOWS the motions.
II. Standard of Review
"It is the plaintiff's burden to prove the existence of subject matter jurisdiction." Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). When a court decides a Rule 12(b)(1) motion on the pleadings, it must "construe the Complaint liberally and treat all well-pleaded facts as true, according the plaintiff the benefit of all reasonable inferences." Murphy, 45 F.3d at 522. A court may review additional materials outside of the pleadings such as testimony and affidavits to determine whether it is vested with jurisdiction. Rodgers v. Callaway Golf Operations, Inc., 796. F.Supp.2d 232, 237 (D. Mass. 2011) (citing Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002)).
In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court will dismiss a pleading that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To be plausible, a claim need not contain detailed factual allegations, but it must recite facts sufficient to at least "raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id . (alteration in original) (quoting Twombly, 550 U.S. at 557). At bottom, a claim must contain sufficient factual matter that, accepted as true, would allow the Court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (quoting Twombly, 550 U.S. at 556). However, "[i]n determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.'... This context-specific inquiry does not demand a high degree of factual specificity.'" García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citations omitted).
III. Factual Background
Unless otherwise noted, the following facts are as drawn from the amended complaint, D. 6, and the affidavits submitted with SMG's motion to dismiss, D. 66, D. 67. Beginning in 1970, the ROK and SMG gave permission to a number of third parties to extract sand and gravel from a 661, 162 square meter tract of land in Sangam, Mapo-Gu, Seoul, South Korea. D. 6 ¶ 8. The land was owned at that time by Chun. D. 80-3 at 1 (document reflecting Chun's assignment of half of his interest in the land to his son, Geon). From October 1, 1974 through September 30, 1975, the "First United States Army" stationed in South Korea extracted sand and gravel in excess of the allowed amount and illegally sold the extracted sand and gravel. D. 6 ¶ 9. After the extraction, the land was classified as river land and became property of the state pursuant to the South Korean River Act. Id . Following the classification as river land, land on the opposite side of the river was reclaimed in exchange for the original tract of land. Id . ¶ 10. A portion of that reclaimed land is currently owned by KLHC and other portions were sold to private construction companies. Id.
After losing ownership of the land, Chun sought recourse through the South Korean legal system. Id . ¶ 11. In 1991, Chun filed an action in South Korean court against the ROK and SMG and the court concluded that he had already received the equivalent of approximately $1.3 million, which was just compensation for the land at issue. D. 66 ¶¶ 4-8. Chun appealed and the South Korean Supreme Court affirmed. Id . ¶ 8. In 2000, Chun filed a second action against SMG and was awarded damages equivalent to $713, 812, but the court dismissed a number of his claims. Id . ¶¶ 9-19. Chun appealed and the South Korean Supreme Court affirmed. Id . ¶ 18. The South Korean Supreme Court acknowledged liability on the part of the South Korean authorities and the U.S. Army, holding that the U.S. Army was liable for 99% of the compensation. D. 6 ¶ 11. Chun then filed a third action in 2007 against SMG for additional damages and the Seoul Administrative Court and the Seoul High Court held that he had already received just compensation. D. 66 ¶¶ 20-21. He appealed and the South Korean Supreme Court declined to review the case. Id . ¶ 21.
Plaintiffs allege that the South Korean Supreme Court's 2008 decision imputing "an overwhelming portion (more than 99%) of the compensation to the First U.S. Army" was a violation of the US-ROK SOFA Article 23, Paragraph 5 and Special Act No. 1902, which require South Korea to compensate civilians when the U.S. Army causes damage, and also South Korean Law, Special Compensatory Acts No. 6065, Revised No. 6772, which requires that compensation be paid by the authorities that issued permission for the extraction. D. 6 ¶ 11. Plaintiffs allege Special Compensation Act No. 9543 came into effect on March 25, 2009 as a retroactive statute designed to compensate owners of property that had been incorporated into river land and mandated that compensation for the land at issue be paid by South Korean governmental entities. Id . ¶ 12.
On July 1, 2010, Chun orally assigned half of his rights in the land at issue to his son, Geon. D. 80-3 at 1. This assignment included half of Chun's claim to damages. Id.
Following the 2008 decision by the South Korean Supreme Court, Plaintiffs contacted the United States government. D. 6 ¶ 13. An Attorney Advisor to the U.S. Army Claims Service informed Plaintiffs that compensation for damage caused by the U.S. Army to a third party must be paid by the South Korean government but forwarded the inquiry to the U.S. Armed Forces Claims Service office in Korea to direct Plaintiffs' claim to the South Korean government. Id . Plaintiffs contacted the U.S. Armed Forces Claims Service office in Korea and were advised to submit a claim to the Ministry of Justice of South Korea. Id . When the South Korean leadership changed in February 2013 following the presidential election, Plaintiffs contacted the President's office, and their claim was forwarded to the South Korean Supreme Court. Id . ¶ 14. The Supreme Court denied Plaintiffs' petition and confirmed its previous holding. Id.
On July 8, 2013, Plaintiffs submitted a claim to the South Korean Ministry of Justice, which referred the inquiry to the U.S. Armed Forces Claims Service office in Korea. Id . ¶ 15. At Plaintiffs' request, Senator Elizabeth Warren sent an inquiry to the U.S. Army on Plaintiffs' behalf while the claim was pending before the U.S. Armed Forces Claims Service. Id . ¶ 16. On September 26, 2013, Defendant Kim of the U.S. Armed Forces Claims Service office in Korea determined that the claim should be dismissed because Plaintiffs failed to bring a claim against the U.S. Army prior to December 31, 1982, the date Kim determined the statute of limitations expired. Id . ¶ 17. Plaintiffs claim this is contrary to the prior letter from the U.S. Army Claims Service indicating that the claim was properly brought against the South Korean government pursuant to the US-ROK SOFA and that there was no recourse against the U.S. Army for the damage. Id . Plaintiffs allege that Kim falsely determined that the U.S. Army was liable instead of the ROK in violation of both the US-ROK SOFA and South Korean domestic law and also failed to recognize that the Plaintiffs properly filed a claim against the South Korean government within the stated statute of limitations period. Id . As a result of Kim's decision, the Ministry of Justice of South Korea dismissed the Plaintiffs' claim. Id.
Plaintiffs allege that under the South Korean River Act, the South Korean authorities may return reclaimed land if the land no longer needs to be held by the state. Id . ¶ 19. Plaintiffs allege that they held first priority for receiving reclaimed land, but the South Korean ...