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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOSEPHENIE ROBERTSON,

Plaintiff,

v.

THE REPUBLIC OF NICARAGUA, et al.,

Defendants.

Case No. 17-cv-00852-JST 

ORDER GRANTING MOTION TO 

DISMISS, DENYING MOTION FOR 

SANCTIONS, AND DENYING MOTION

“FOR JUDICIAL CLARIFICATION”

Re: ECF Nos. 32, 81, 82

Before the Court are Defendants’ motion to dismiss the amended complaint, ECF No. 81, 

and Plaintiff’s motion for sanctions, ECF No. 82. Plaintiff’s motion “for judicial clarification,”

ECF No. 32, also remains pending. The Court will grant the motion to dismiss and deny the other

two motions.

I. BACKGROUND

This case stems from an internal conflict that has taken place for centuries within the 

borders of the present-day Republic of Nicaragua involving the Miskitu, a Native American ethnic 

group. The Court dismissed the original complaint, with leave to amend, after “conclud[ing] that 

Plaintiff’s lawsuit poses a political question over which the Court has no jurisdiction.” ECF No. 

72 at 7 (footnote omitted). The Court granted Plaintiff’s request to extend the deadline to file an 

amended complaint, ECF No. 75, and Plaintiff timely filed an amended complaint before the 

extended deadline, ECF No. 78.

In the amended complaint, Plaintiff Rev. Josephenie E. Robertson alleges that she is “the 

Matriarch of the Miskitu Nation, Miskitu Peoples (Twelve Tribes) and a traditional royal 

representative of the Miskitu Government-in-Exile, which is the sole recognized legal entity 

representing the overwhelming majority of the Miskitu peoples in Nicaragua and worldwide.” 
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United States District Court

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ECF No. 78 ¶ 40. She incorporates paragraphs 1-30 of the original complaint and adds several 

paragraphs detailing the history of the Miskitu people. Id. ¶¶ 1-39. The amended complaint 

continues to allege that Defendants Republic of Nicaragua, Daniel Ortega, Rosario Murillo, and 

the Sandinista Party “engaged in the taking and expropriation of Miskitu territories, lands, natural 

resources, waters, livestock, and other property without compensation in violation of international 

law.” Id. ¶ 41. The amended complaint also adds as a defendant Infinity Energy Resources, Inc., 

alleged to be located in Kansas, to have “engaged in the acquisition, exploration, development, 

and production of natural gas and oil in the United States, in the Autonomous Miskitu Territory 

and Nicaragua,” and to have “willfully and maliciously civilly conspired with the other defendants 

to appropriate Miskitu natural resources (oil and gas) without affording the Miskitu 

representatives [an opportunity] to participate in the negotiating process, or receive compensation 

or profit sharing.” Id. ¶ 45. Infinity has not yet been served and has not made an appearance in 

this lawsuit.

The Court previously dismissed “all claims with respect to the putative class except 

Plaintiff Robertson’s individual claim brought on her own behalf” because an unrepresented 

plaintiff may not bring class claims. ECF No. 72 at 2-3. The amended complaint nonetheless 

includes class allegations, ECF No. 78 ¶¶ 77-80, and the caption names Robertson and “all other 

Miskitu Indigenous peoples” as Plaintiffs. The amended complaint also asserts an intent to join 

Ercell Hendy Twaska Fleurima as a second plaintiff proceeding on her own behalf. Id. at 1 n.1.

II. DISCUSSION

A. Defendants’ Motion to Dismiss

When the Court dismissed the original complaint, it explained that the case “necessarily 

requires the judicial branch to question United States foreign policy with Nicaragua and to 

recognize the Miskitu as a sovereign people even though the United States government has not 

done so.” ECF No. 72 at 6. The Court further explained that it “does not have the authority to 

formally recognize the Miskitu people,” and it “agree[d] with Defendants that the core of 

Plaintiff’s complaint indeed is ‘not the redress of particular alleged wrongs inflicted upon 

individuals, but rather a request to adjudicate nearly 200 years of relations between the Miskitu 
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people and various sovereign governments as well as the corresponding impacts on the territorial 

integrity of the present-day Republic of Nicaragua.’” Id. (quoting ECF No. 18 at 23). The Court 

concluded that it lacked jurisdiction to determine this political question, which would “require the 

Court to ‘engage in decision-making on the basis of policy rather than law.’” Id. at 6-7 (quoting 

Taxpayers of the U.S. v. Bush, No. C03-03927 SI, 2004 WL 3030076, at *3 (N.D. Cal. Dec. 30, 

2004)).

Robertson’s amended complaint does not cure this deficiency. Aside from three additional 

paragraphs and the inclusion of Defendant Infinity Energy Resources, Inc., Robertson repeats her 

causes of action verbatim from the original complaint. Compare ECF No. 78 ¶¶ 81-102 (amended 

complaint) with ECF No. 1 ¶¶ 73-91 (original complaint). The three new paragraphs only 

highlight the political nature of Robertson’s complaint. For example, Robertson adds that “she 

faced threats of dire consequences for herself and child who was held captive for not cooperating 

in attempting to exercise her rights as the lawful traditional authority as her people’s custodian and 

. . . [was] compelled to leave her nation and people.” ECF No. 78 ¶ 91. She also complains that 

Infinity “unlawfully appropriated” land by failing to include “the Miskitu traditional authorities”

in the negotiations. Id. ¶ 96. And she alleges that: 

Defendants at this very moment of litigation, in an attempt to avoid 

liability to the plaintiff and deceive the world, to assure complicity 

with the Sandinista government, in that they have presently installed 

a new “king of the Miskitu nation” who is literally a “pretender[”] to 

the Miskitu “throne” on June 18th, 2017 namely, (The King of the 

oompa loompas – Hector Williams Padilla).

Id. ¶ 97. Rather than cure the deficiency identified in the Court’s prior order, the new allegations 

magnify that deficiency by underscoring that Robertson seeks to resolve political questions of 

sovereignty.

As with her opposition to the first motion to dismiss, Robertson’s opposition to the 

pending motion is silent on whether her complaint involves any non-political questions. Her 

opposition instead focuses on pro se litigants’ due process rights, ECF No. 84 at 3-6, but the Court 

does not find any deficiencies in the process Robertson has received. The Court has given 

Robertson the opportunity to fully brief responses to both motions to dismiss, ECF Nos. 20, 84; 
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heard oral argument on Defendants’ motion to dismiss the original complaint, ECF No. 70; and 

granted Robertson’s request for an extension to file an amended complaint, ECF No. 75. In 

addition, the Court has considered and ruled on multiple other filings by Robertson. ECF Nos. 45, 

47, 69, 80. And the Court has construed both Robertson’s original complaint and her amended 

complaint liberally when considering Defendants’ motions to dismiss. In short, Robertson has 

received a full and fair opportunity to be heard.

The amended complaint does refer to two cases for support, but neither persuades the 

Court that it has jurisdiction over this case. First, Robertson cites a pending district court case, 

Vekuii Rukoro v. Federal Republic of Germany, Case No. 1:17-cv-00062 (S.D.N.Y. 2017), as an 

example of a plaintiff not “hav[ing] to prove the Namibian tribal leaders were recognized by the 

United States or most of the class action plaintiffs resided in the United States when successfully 

filing the complaint in the U.S. District Court and successfully litigating that case.” ECF No. 78 

¶ 31. However, as Defendants correctly observe, the docket for that case indicates that plaintiffs 

have not yet served the complaint. See ECF Docket, Rukoro, Case No. 1:17-cv-00062 (S.D.N.Y.). 

The mere filing of a complaint does not demonstrate the ability to state a claim, and the Rukoro

court has not considered the question before this Court ‒ namely, whether the case raises 

nonjusticiable political questions. Rukoro is therefore not persuasive.

Second, Robertson cites Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).

1

 That 

case concerned the ability to state a claim under the Alien Tort Statute ‒ a secondary question to 

whether the complaint presents a nonjusticiable political question. But even if the Court were to 

reach the issue addressed in Kiobel, the case would support Defendants rather than Robertson. 

The Supreme Court held that a “case seeking relief for violations of the law of nations occurring 

outside the United States is barred” under the Alien Tort Statute, and that “even where the claims 

touch and concern the territory of the United States, they must do so with sufficient force to 

displace the presumption against extraterritorial application.” Id. at 124-25. Robertson’s amended 

 

1 Robertson does not include the case citation, but it is clear from the information she included that 

she is referring to the cited case. See ECF No. 78 at 10 n.28 & 16 n.23 (referring to the dates on 

which the case was argued, reargued, and decided).
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complaint focuses on alleged acts that occurred in Nicaragua, except for an allegation that 

Defendant Infinity Energy Resources, Inc. “engaged in the acquisition, exploration, development 

and production of natural gas and oil in the United States,” as well as in Nicaragua. ECF No. 78

¶ 45. This conclusory allegation is insufficient “to displace the presumption against 

extraterritorial application” of the Alien Tort Statute, Kiobel, 569 U.S. at 125, particularly when 

the amended complaint elsewhere makes clear that Robertson’s claims are based on Infinity’s 

alleged “unlawful[] appropriat[ion]” of an area offshore of Nicaragua, ECF No. 78 ¶ 96, and are 

not tied to any activity alleged to have occurred in the United States.

Finally, Robertson’s attempt to add Fleurima as a second plaintiff does not save her 

complaint. The amended complaint contains no specific allegations as to Fleurima. More 

significantly, the gravamen of the case would remain a nonjusticiable political question regardless 

of the number of individual plaintiffs bringing suit. See, e.g., ECF No. 78 ¶ 33 (asserting that “the 

outcome of this precedent setting case could very well change the map of Central America”); id.

¶ 84 (alleging Defendants’ “refusal to recognize the right to self-determination of the Miskitu 

peoples”); id. ¶ 104(d) (requesting the Court to “[e]njoin and restrain defendants from continuing 

to exclude plaintiffs and other traditional and lawful representatives of the Miskitu peoples from 

participation in discussions and negotiations regarding the subject matter of this Complaint”).

Even when construing the complaint liberally, the Court concludes that the amended 

complaint continues to assert political questions over which this Court lacks jurisdiction. 

Robertson has already had one opportunity to amend the complaint, and it is clear to the Court that 

she could not cure this deficiency if given further leave to amend. Accordingly, the amended 

complaint is dismissed without leave to amend. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 

296 (9th Cir. 1990) (“It is not an abuse of discretion to deny leave to amend when any proposed 

amendment would be futile.”).

B. Robertson’s Motion for Sanctions

Robertson has filed a motion for sanctions based on allegations that an attorney from the 

Indian Law Center, Mr. Armstrong A. Wiggins, has engaged in improper ex parte communications 

with this Court. ECF No. 82. This Court has had no communications with Mr. Wiggins. 
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Defendants’ counsel also state that they have neither had contact with Mr. Wiggins nor “directed 

anyone to have contact with him about this matter.” ECF No. 85 at 2. The motion for sanctions is 

denied.

C. Robertson’s Motion “for Judicial Clarification”

Robertson previously filed a motion “for judicial clarification” in which she asked for 

appointment of counsel and for leave for certain plaintiffs to proceed under Doe pseudonyms. 

ECF No. 32. The Court previously denied appointment of counsel, ECF No. 45, and does not find 

good cause to reconsider that ruling. The motion for leave to proceed pseudonymously is denied 

as moot following the dismissal of this action.

CONCLUSION

Robertson’s motions for sanctions and “for judicial clarification” are denied. Defendants’ 

motion to dismiss is granted without leave to amend. The Clerk shall enter judgment and close the 

file.

IT IS SO ORDERED.

Dated: October 6, 2017

______________________________________

JON S. TIGAR

United States District Judge