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four of article 3 of the Cassation Law, called the doctrine of incongruence . . . . 798 An Argentinean court similarly has held that “[t]he dispositive principle establishes the rule that it is the parties who determine the thema decidendum, and judgments must perforce be congruent with the manner in which the issues were raised or risk nullity.” 799 Therefore, in any proceeding, and particularly in an oral summary proceeding such as this one, the principle of congruency limits judgment to those facts with respect to which the litigation or controversy was brought, that is, to the claims contained in the complaint and answer as originally filed. A comparison of the plaintiffs’ specific claims in their complaint with the exorbitant damages requested in their September 16, 2010 filing at 5:15 p.m. and proposed (by them) in Mr. Cabrera’s fraudulent reports shows that Mr. Cabrera greatly exceeded his mandate, in such an absurd manner as to clearly demonstrate his manifest bias, and that the plaintiffs have strayed far from their complaint. 800 Indeed, Mr. Cabrera’s assertions with respect to the alleged damages track almost identically those identified by the plaintiffs’ counsel on a Crude outtake filmed several months before Mr. Cabrera’s appointment; this is not surprising in light of the revelations that plaintiffs’ lawyers, consultants, and affiliated activists secretly wrote Mr. Cabrera’s report for him and simply sent it to him for signature and filing, supra § 2.2.1. In that clip, the plaintiffs’ Ecuadorian counsel acknowledge that by virtue of the doctrine of “extra petita,” they cannot request “anything more than what has been petitioned in the lawsuit.” 801 798 Judgment of the Supreme Court of Justice, Second Civil and Commercial Division, Case 398- 06 published in Official Gazette E-17, Feb. 21, 2008; see also Judgment of the Supreme Court of Justice, First Division, Case 273-2000, published in R.O. 134, Aug. 3, 2000, citing a judgment issued by the same Chamber that was published in the Judicial Gazette, Series VII, No. 5, on page 1486, which stated: “in light of the dispositive principle, the judge cannot grant the plaintiff what was not asked in the complaint; and in virtue of the principle of congruency, which requires a juridical identity between what is resolved in any sense, by the judge in the judgment, and the requests for relief and the exceptions filed by the parties, which form the basis of the controversy (suit), the judge cannot go ahead with an action that has not been filed, nor resolve anything beyond what has been the subject of the controversy, otherwise it would fall under the vice of ultra petita.” 799 Sosa, Liliana et al. vs. Novacovsky, Alejandro, Judgment of the Court, CCCom. De Mar del Plata, First Division, Nov. 19, 2002, (cited by ENDERLE, Guillermo Jorge, Procedural Congruency, Editorial Rubinzal – Culzoni Editors. 2007, p. 35.). 800 All the activities of the Expert acting on behalf of the Court, must by necessity be related to the assignment entrusted to him by the Judge. He does not have any discretionary capacity to do what was not ordered or to not perform the work ordered. "The decision of the experts cannot be spontaneous . . .; it is indispensable that it be preceded by a legal assignment by means of a ruling issued and notified in a legal manner." DEVIS ECHANDÍA, Hernando. Compendium of Judicial Evidence. Editorial Rubinzal - Culzoni. Buenos Aires. 2007. Volume II. pp. 103 and 107. 801 Transcript of Crude Outtakes, attached as Annex 1 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., (CRS-159-00-10). CERT. INTERMARK VER: JD - 179 -
Because the complaint sought compensation only for environmental remediation and health improvement, the plaintiffs acknowledged in internal discussions that they could not subsequently request “damages to the affected individuals” or money representing supposed “immoral profit.” 802 Nonetheless, the plaintiffs insist on requesting these types of damages anyway on the cynical theory that if Chevron “say[s] that in a, in their response,” and this Court lowered the amount, it would appear to be giving Chevron a “huge victory.” 803 6.2 The Plaintiffs Asserted Specific and Limited Claims in Their Complaint Chapter VI of the complaint includes the plaintiffs’ specific requests for relief. Those specific requests fall within three categories: (i) prevention of threatened harm to the environment; (ii) damages to repair harm to the environment and for health improvement and monitoring; and (iii) a ten percent bounty. Specifically, in Chapter VI.1 of their complaint, they first seek: [T]he elimination or removal of the contaminant elements that still threaten the environment and health of the inhabitants. Consequently, the sentence shall dispose: a. Removal and adequate treatment and disposal of waste and contaminant materials still existing in pits or ditches opened by TEXACO . . . b. Sanitation of rivers, lakes, swamps wetlands and natural and artificial streams . . . c. Removal of all the structural elements and machinery that stand out in wells, facilities . . . d. In general, cleaning of lands, crop fields, crops, streets, roads and buildings . . . . 804 802 Transcript of Crude Outtakes, attached as Annex 1 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., (CRS-159-00-09); Transcript of Crude Outtakes, attached as Exhibit 5 to Chevron’s Supplemental Motion for Terminating Sanctions filed Sept. 14, 2010 at 11:10 a.m., (CRS-159-00-06). As Mr. Donziger admits, plaintiffs are “only asking for . . . clean-up"; two of plaintiffs’ attorneys candidly affirm "[c]ompensation [for damages] is not admissible here.” Transcript of Crude Outtakes, attached as Annex 1 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., (CRS-159-00-09). Nonetheless, Luis Yanza wanted the damages award "to be big-time" and to "cause[] a huge impact." Id. 803 Transcript of Crude Outtakes, attached as Annex 1 to Chevron’s Motion filed Sept. 16, 2010 at 4:35 p.m., (CRS 159-00-10; CRS-159-00-06a); Transcript of Crude Outtakes, attached as Exhibit 5 to Chevron’s Supplemental Motion for Terminating Sanctions filed Sept. 14, 2010 at 11:10 a.m., (CRS-196- 01-01). 804 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79-79v. CERT. INTERMARK VER: JD - 180 -
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TO THE SUBROGATE PRESIDENT OF THE P
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3.4.3 Mr. Cabrera’s Fieldwork Was
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7.3.1 Plaintiffs Have Failed to Pro
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the arguments in the Cabrera Report
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negligence where TexPet was directl
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they not only secretly conspired us
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has repeatedly shown to be corrupte
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plaintiffs’ egregious and fraudul
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to annul the rulings of Judge Núñ
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filed on September 16, 2010 at 5:15
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after the conclusion of the evident
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conditions in the Amazon region rel
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during Consortium operations, Chevr
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alleged liability and obligations w
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the basis of Article 2260 of the Ci
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1.1 Chevron Never Operated in Ecuad
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Plaintiffs allege that this corpora
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in the complaints in the[] U.S. act
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If the plaintiffs had timely sued T
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2.1 The Plaintiffs Submitted Fabric
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As Dr. Calmbacher’s testimony ind
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were “choreographed”; just “a
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in working clandestinely and in col
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Rather, he worked alongside, and on
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During this meeting of March 3, 200
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course you really have to be comfor
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David Mills, another of plaintiffs
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consultants—it can no longer be c
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ecome the Cabrera Report, a note ob
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assembled a team of experts” beca
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And even Mr. Donziger himself predi
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from the supplemental report’s an
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Mr. Cabrera repeatedly promised to
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• Mr. Cabrera breached his obliga
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Second, to exaggerate his volume fi
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headquarters in Quito. The recordin
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(viii) The award will be made in pa
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Chevron which are unreasoned, viola
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complete investigation, particularl
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was submitted, Mr. Donziger told th
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this case by completely dismissing
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mechanism—a second, ad hoc eviden
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attempted to confirm, it recognized
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equested that Judge Ordóñez be re
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protocols for analyzing samples tak
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The plaintiffs first tried, in Janu
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Accordingly, Chevron opposed the re
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possibility to defend itself, refut
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seen conceding in the Crude outtake
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eport could be analyzed by the cour
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lacked those qualifications. Indeed
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and the installation of geomembrane
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guessing . . . always confused.”
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samples of doubtful origin and inad
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Indeed, although Mr. Cabrera stated
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degree of scientific certainty that
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pathways”-to “recommend that th
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ecommended an economic value of bil
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Chevron also invoked its constituti
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postponed a decision. 497 For insta
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“was not engaging in any exercise
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jurisdiction over Chevron. Then, as
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hasten a large judgment against Che
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Mr. Berlinger recently corroborated
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with him.” 536 The plaintiffs eve
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has “the most ridiculous legal cu
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Page 139 and 140: ecommended dismissal of the 2003 cr
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Page 147 and 148: 4.2 Nullity Due to This Court’s L
Page 149 and 150: oth on the provisions of the Civil
Page 151 and 152: 4.4 Nullity Due to the Lack of Lega
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Page 155 and 156: continue to hear [the case] until t
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Page 159 and 160: Each municipal suit was settled in
Page 161 and 162: Like the local governments, the Gov
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Page 165 and 166: 5.2.4 The Settlement Agreements Sig
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Page 171 and 172: i.e., to the inability to anticipat
Page 173 and 174: This was expressly acknowledged by
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Page 183: plaintiff shall not amend it, nor s
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Page 191 and 192: v. “Recovery of the land and cult
Page 193 and 194: Plaintiffs’ argument is wrong on
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Page 197 and 198: 7.2 Plaintiffs Have Failed to Prove
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Page 207 and 208: The areas remediated by TexPet requ
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Page 231 and 232: As the Government had intended, col
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of a particular hazardous substance
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Agreement, Scope of Work, and RAP,
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detected. However, none of these co
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contamination. 1050 This Court shou
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enrichment for the victim.” 1062
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accord, and acknowledge that a clai
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In any event, even if an unjust enr
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Second, since TexPet already undert
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• With regard to pit remediation,
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away from the figures” in the pla
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maintained, and corroded pipelines.
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the claimed health effects they all
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Article 7(20) of the Civil Code pro
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3. As Your Honor is aware since it
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g) Total lack of effective and time
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