Mujica v. Airscan Inc.

771 F.3d 580

Luis Alberto Galvis MUJICA, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; Mario Galvis Gelvez, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; John Mario Galvis Mujica, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs–Appellees,

v.AIRSCAN INC., Defendant–Appellant,Occidental Petroleum Corporation, Defendant.

United States of America, Movant.

Luis Alberto Galvis Mujica, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; Mario Galvis Gelvez, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; John Mario Galvis Mujica, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs–Appellees,

v.Occidental Petroleum Corporation, Defendant–Appellant,AirScan Inc., Defendant,United States of America, Movant.

Luis Alberto Galvis Mujica, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; Mario Galvis Gelvez, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; John Mario Galvis Mujica, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Terza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs–Appellants,

v.Occidental Petroleum Corporation; AirScan Inc., Defendants–Appellees,andUnited States of America, Movant.

Nos. 10–55515, 10–55516, 10–55587.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2014.

Filed Nov. 12, 2014.

Paul L. Hoffman (argued), Adrienne J. Quarry, and Victoria Don, Schonbrun DeSimone Seplow, Harris Hoffman & Harrison, LLP, Venice, CA; Terry Collingsworth and Christian Levesque, Conrad & Scherer, LLP, Washington, DC; Daniel M. Kovalik, Pittsburgh, PA; Bridget Arimond, Center for International Human Rights, Northwestern University Law School, Chicago, IL, for Plaintiffs–Appellants–Cross–Appellees.

Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los Angeles, CA, for Defendant–Appellee–Cross–Appellant Occidental Petroleum Corporation.

Thomas E. Fotopolous, and Sara M. Fotopolous, Fotopolous & Fotopolous, P.A., Titusville, FL; Kenneth J. Berke, Berke & Kent LLP, Calabasas, CA, for Defendant–Appellee–Cross–Appellant AirScan, Inc.

Marco B. Simons, Richard L. Herz, and Jonathan Kaufman, Washington, DC, for Amicus Curiae Earthrights International.

William J. Aceves, California Western School of Law, San Diego, CA, for Amicus Curiae Constitutional and International Law Scholars.

Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. No. 2:03–cv–02860–GW–JWJ.

Before: JAY S. BYBEE and SANDRA S. IKUTA, Circuit Judges, and THOMAS S. ZILLY, Senior District Judge.^*

OPINION

BYBEE, Circuit Judge:

This suit arises out of the 1998 bombing of a Colombian village by members of the Colombian Air Force (CAF). Plaintiffs,¹ citizens and former residents of Colombia, brought suit in California against two U.S.-headquartered corporations, Occidental Petroleum and AirScan, for their alleged complicity in the bombing. In two opinions issued in 2005, the district court first refused to dismiss the case on grounds of forum non conveniens and international comity, Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1134 (C.D.Cal.2005) (“ Mujica I ”), but then granted Defendants' motion to dismiss all of the claims under the political question doctrine. Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164 (C.D.Cal.2005) (“ Mujica II ”).

In a prior appeal, we declined to decide the issues presented and remanded the case to the district court for two purposes: first, “to consider whether a prudential exhaustion requirement applies in this case, and if so, whether that requirement bars any claims in this case,” and, second, to “consider the effect, if any,” of two Colombian court opinions related to the bombing. Mujica v. Occidental Petroleum Corp., 564 F.3d 1190, 1192 (9th Cir.2009) ( “ Mujica III ”). On limited remand, the district court found that prudential exhaustion was not required. It also found that, if prudential exhaustion were required, Occidental had met its burden of pleading and proving the availability of local remedies. Mujica v. Occidental Petroleum Corp., Case No. CV–03–2860 (C.D.Cal., Mar. 8, 2010) (“ Mujica IV ”). Plaintiffs and Defendants appealed and cross-appealed.

We hold that Plaintiffs lack a valid claim under either the Torture Victim Protection Act (TVPA) or the Alien Tort Statute (ATS). We affirm the district court's judgment of dismissal with respect to Plaintiffs' state-law claims, but we do so on the ground of international comity. Although the district court rejected dismissal on that ground, we conclude that the district court abused its discretion by applying the incorrect legal standard in its comity analysis, specifically by concluding erroneously that a “true conflict” between domestic and foreign law is required for the application of international comity in all circumstances. Mujica I, 381 F.Supp.2d at 1155. Guided by the correct standard for the application of comity, and informed by the district court's findings of fact in Mujica IV regarding the adequacy of Colombia as an alternative forum, we conclude that the state-law claims before us are not justiciable under the doctrine of international comity.

I. BACKGROUND

A. The 1998 Bombing

The district court described the facts of the underlying events as follows:

The instant case arises from a bombing that occurred in Santo Domingo, Colombia on December 13, 1998. In 1998, Plaintiffs lived in Santo Domingo. The Defendants, Occidental Petroleum Corp. (“Occidental”) and AirScan, Inc., are both American companies; the former is located in Los Angeles, the latter in Florida. Defendant Occidental operates, as a joint venture with the Colombian government, an oil production facilityand pipeline in the area of Santo Domingo.

Plaintiffs allege the following relevant facts. Since 1997, Defendant AirScan has provided security for Defendant Occidental's oil pipeline against attacks from left-wing insurgents. Prior to 1998, Defendants worked with the Colombian military, providing them with financial and other assistance, for the purpose of furthering Defendant Occidental's commercial interests. On several occasions during 1998, Defendant Occidental provided Defendant AirScan and the Colombian military with a room in its facilities to plan the Santo Domingo raid. Defendant AirScan and the Colombian Air Force (“CAF”) carried out this raid for the purpose of providing security for Defendant Occidental (i.e., protecting its oil pipeline) and was not acting on behalf of the Colombian government. During the raid, three of Defendant AirScan's employees, along with a CAF liaison, piloted a plane with CAF markings and that was paid for by Defendant Occidental. From this airplane, Defendant AirScan provided aerial surveillance for the CAF, helping the CAF identify targets and choose places to deploy troops.

On December 13, 1998, residents of Santo Domingo saw low-flying CAF helicopters overhead and attempted to communicate that they were civilians by lying down on the road and covering their heads with white shirts. Soon thereafter, several witnesses saw an object (or several objects) drop from one of the CAF helicopters. One of the cluster bombs dropped by the CAF exploded directly in the town of Santo Domingo, destroying homes and killing seventeen civilians and wounding twenty-five others. Of the seventeen killed, six were children. During the attack, the CAF helicopters knowingly fired on civilians attempting to escape and on those who were trying to carry the injured to a medical facility. Soon thereafter, other CAF troops entered the town, blocked civilians from leaving, and ransacked their homes.

While the purpose of the Santo Domingo raid was to protect Defendant Occidental's pipeline from attack by left-wing insurgents, no insurgents were killed in the attack. These insurgents were located at least one to two kilometers outside of Santo Domingo. Defendants knew that the insurgents were not in Santo Domingo but carried out the attack nonetheless.

Mujica II, 381 F.Supp.2d at 1168–69 (internal citations omitted).

B. Proceedings in Colombian Courts

The 1998 Santo Domingo bombing led to two legal actions in Colombia: a criminal action brought by the Colombian government against three CAF officers who were allegedly responsible for the bombing and a civil suit brought by Plaintiffs (and several other persons) against the government of Colombia.

1. Criminal Action

The Colombian Public Prosecutor's Office opened a preliminary investigation into the Santo Domingo bombing the day after it occurred, on December 14, 1998. On September 21, 2007, in In re Cesare Romero Pradilla, et al., the Twelfth Criminal Court of the Circuit of Bogota, Colombia convicted three CAF officers of manslaughter. On September 24, 2009, the same court affirmed the verdict on remand from a higher court, finding that all three defendants were guilty of manslaughter and related crimes. The court then sentenced two of them to no more than 380 months' imprisonment and one to no more than seventy-two months' imprisonment. The court also imposed fines on all three defendants.

2. Civil Action

On September 25, 2000, Plaintiffs (and...