Giraldo v. Drummond Co.

CLAUDIA BALCERO GIRALDO, et al., Plaintiffs,

v.DRUMMOND COMPANY, INC., et al., Defendants.

Case No.: 2:09-CV-1041-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: July 25, 2013

MEMORANDUM OPINION

The central question presented to the court here is whether the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. et. al., 133 S. Ct. 1659, 2013 WL 1628935 (April 17, 2013) is an earthquake that has shaken the very foundation of Plaintiffs' claims against Defendants, or merely a tremor that has caused the parties and the court to pause but not dispatch those claims. On April 17, 2013, the Supreme Court issued its opinion in Kiobel which dealt with the extraterritorial reach of the Alien Tort Statute. Because extraterritoriality is at the heart of the claims made against the Defendants in this case, the parties were ordered to brief the effect Kiobel might have here. (See Doc. #447). Those briefs have been submitted (see Docs. #447, 448, 449, 450, 452, 453, 454), and the issue is now ripe for decision.

The court fully understands there is much at stake in this four year old case. Both time and resources have been heavily invested by the litigants, their counsel, and the court. In the court's view, that is the major factor that continues to motivate the continued salvos in this legal battle, even after Kiobel. That is, although Plaintiffs contend Kiobel is but a tremor, their arguments do not holdup under careful review. Plaintiffs' claims cannot withstand the seismic shift that Kiobel has caused on the legal landscape pertinent here. For all the reasons stated below, the court concludes that Defendants' motions for summary judgment are due to be granted.

I. Introduction

The first step in analyzing Kiobel is to review the background of that case. The Petitioners in Kiobel are a group of Nigerian nationals residing in the United States. They filed suit in federal court against certain Dutch, British, and Nigerian corporations under the Alien Tort Statute, 28 U.S.C. § 1350, alleging that those corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The question presented, as stated by the Supreme Court, was "whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States." Kiobel, 133 S.Ct. at 1660, 2013 WL 1628935 at

This is precisely the threshold question that must be addressed before the Balcero case (09cv1041) can proceed on the merits of the issues presented by pending motions for summary judgment. The Balcero Plaintiffs allege, inter alia, that the Defendants (citizens and entities from the United States) committed acts in the United States in furtherance of human rights abuses in Colombia. (See Doc. #449 at 4). They further allege that, despite the decision in Kiobel, the extraterritorial reach of the Alien Tort Statute extends to their claims because those claims "touch and concern the United States . . . with sufficient force" such to survive any presumption against extraterritoriality. (See Doc. #449 at 4-25).

The opinion of the Kiobel court is clear that the principles underlying the presumption against extraterritoriality constrain courts from exercising their power under the ATS. See Kiobel, 133 S.Ct. at 1665. That presumption is not rebutted by the ATS itself, which contains no clear indication of extraterritorial reach. See id.; see also Doc. #448 at 2 ("Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad."). Indeed, the Supreme Court went so far as to say that "there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. . . . 'No nation has ever yet pretended to be the custos morum of the whole world . . Id. at 1668, quoting United States v. The La Jeune Eugeine, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822).

And 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 , citing Morrison, 561 U.S. - (slip op. at 17-24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

Id. It is now the duty of this court to determine whether or not ATS claims advanced here can survive the presumption against extraterritoriality. (See Doc. #449 at 2).

II. A Brief Review of the History of the Balcero Case (09cv1041)

Plaintiffs Jane Doe (1-166) and Peter Doe (1-81) commenced this action on May 27, 2009 by filing a complaint (Doc. #1) in this court for equitable relief and damages under the Alien Tort Claims Act ("ATS"),¹ Torture Victims Protection Act ("TVPA"), 28 U.S.C. § 1350, and Colombian wrongful death law. (See Compl. ¶¶ 122-144). In their original complaint, Plaintiffs alleged that they were wives and legal heirs, parents and legal heirs, and children and legal heirs of those"murdered by the AUC's Juan Andres Alvarez Front in furtherance of its agreement with Drummond to provide security, pacify the area, and otherwise ensure that the civilian population in and around the Drummond mine and its railroad line would not in any way provide support or cooperation to the FARC or other leftist rebels." (Compl., ¶ 15). Plaintiffs sought "damages for the loss of their relative who was an innocent civilian murdered in furtherance of Drummond's security objectives and also as a result of the civil conflict between the AUC and the FARC[.]" (Compl., ¶ 15). The allegations of the original complaint centered on the contention that Defendants Drummond Company, Inc. ("DCI") and Drummond Ltd. ("DLTD") paid and conspired with paramilitaries, specifically the AUC, to harm union leaders and provide "security" for Drummond's rail line and facilities. (Compl., ¶ 106; see also Doc. #20 at 1).

The original complaint additionally asserted that each of the killings at issue was an "extrajudicial killing" in "violation of the law of nations" under the ATS and in violation of the TVPA. Plaintiffs contend that Defendants were liable for those killings because the paramilitaries carried them out as Defendants' "agents," and because Defendants provided the paramilitaries with "knowing and substantial assistance," and conspired with, aided and abetted, and engaged in "joint action" with the paramilitaries in carrying out the murders. (Compl., ¶¶ 106-120).

Defendants DCI and DLTD filed a motion to dismiss the original complaint on July 20, 2009. (Doc. #13). Upon careful consideration of the briefing on the motion to dismiss, the court concluded that the motion (Doc. #13) had clear merit. However, Plaintiffs were afforded an opportunity to amend their complaint pursuant to Federal Rule of Civil Procedure 15(a). (See Doc. #30 at 1). The First Amended Complaint was filed on December 4, 2009, asserting claims for war crimes, extrajudicial killings, and crimes against humanity under the ATS, as well as claims for extrajudicialkillings under the TVPA. (See Docs. #32-35). Defendants filed a motion to dismiss (Doc. #37) the Amended Complaint on January 8, 2010, and briefing of that motion was completed on March 5, 2010. (See Docs. #38-42). The motion (Doc. #37) was granted in part and denied in part on April 30, 2010 - Plaintiffs' Third Cause of Action for Crimes Against Humanity stated under the Alien Tort Claims Act, 28 U.S.C. § 1350 was dismissed, and the First, Second, and Fourth Causes of Action remained. (See generally Docs. #43, 44).

A Second Amended Complaint (Doc. #55) was filed on June 14, 2010, and the identities of the Plaintiffs were revealed on June 17, 2010 (Doc. #56). On June 28, 2010 Defendants DCI and DLTD filed a motion for partial dismissal (Doc. #62). In that motion, Defendants sought dismissal of all Plaintiffs who were not suing as legal representatives of the decedents. (See Doc. #62 at 1-2). The court entered a Memorandum Opinion (Doc. #112) and Order (Doc. #113) on January 6, 2011 dismissing the 357 Plaintiffs named in the Second Amended Complaint who explicitly stated that they were not acting as legal representatives of the decedents' estates and directing Plaintiffs to file a Third Amended Complaint. But on February 3, 2011, the Eleventh Circuit entered an opinion in Baloco et al. v. Drummond Company, Inc. et al. which held that individuals have standing under the ATS and TVPA to bring wrongful death claims both: (1) on behalf of their deceased relatives and (2) for individual money damages. 631 F.3d 1350 (11th Cir. 2011). After hearing oral argument on a Motion to Reconsider (Doc. #129), the court held in abeyance the question of whether to reconsider the dismissal of the 357 Plaintiffs, and invited Plaintiffs to "renew this motion if mandate issues on the Eleventh Circuit's decision in Baloco . . ." (Doc. #140). On September 2, 2011, Plaintiffs filed a Motion for Leave to File Third Amended Complaint (Doc. #213) to "make the [Third Amended Complaint] consistent with Baloco v. Drummond Co., 640 F.3d 1338 (11th Cir. May 20, 2011)."That motion was opposed by Defendants but nevertheless granted by the court. (See Doc. #232). The Third Amended Complaint (Doc. #233), the operative complaint in this action, was filed on September 29, 2011.²

In one of the motions currently before the court, Defendant DLTD seeks the entry of summary judgment in its favor for each of the claims brought against it in the Third Amended Complaint:

• As to the First Cause of Action for war crimes under the ATS, DLTD argues:³ (1) war crimes require the intentional killing of innocent civilians; (2) there is no evidence that DLTD

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