John Doe v. Unocal Corp., 99-55576

• Citation: 248 F.3d 915
• Decision Date: 27 April 2001
• Docket Number: No. 99-55576,99-55576
• Parties: (9th Cir. 2001) JOHN DOE, I, Individually and as Administrator of the Estate of his Deceased Child Baby Doe 1 and on behalf of all Others Similarly Situated; JANE DOE 1, on behalf of Herself, as Administratrix of the Estate of Her Deceased Child Baby Doe 1 and on behalf of all Others Similarly Situated; JOHN DOE, II; JOHN DOE, III; JOHN DOE, IV; JOHN DOE, V; JANE DOE, II; JANE DOE, III, JOHN DOE, VI; JOHN DOE, VII; JOHN DOE, VIII; JOHN DOE, IX; JOHN DOE, X; JOHN DOE, XI, on behalf of Themselves and all Others Similarly Situated And Louisa Benson on Behalf of Herself and the General Public, Plaintiffs-Appellants, v. UNOCAL CORPORATION, a California Corporation, Defendant, and TOTAL, S.A., a Foreign Corporation, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 915

248 F.3d 915 (9th Cir. 2001)

JOHN DOE, I, Individually and as Administrator of the Estate of his Deceased Child Baby Doe 1 and on behalf of all Others Similarly Situated;

JANE DOE 1, on behalf of Herself, as Administratrix of the Estate of Her Deceased Child Baby Doe 1 and on behalf of all Others Similarly Situated;

JOHN DOE, II; JOHN DOE, III; JOHN DOE, IV; JOHN DOE, V; JANE DOE, II; JANE DOE, III, JOHN DOE, VI; JOHN

DOE, VII; JOHN DOE, VIII; JOHN DOE, IX; JOHN DOE, X; JOHN DOE, XI, on behalf of Themselves and all Others Similarly Situated And Louisa Benson on Behalf of Herself and the General Public, Plaintiffs-Appellants, v. UNOCAL CORPORATION, a California Corporation, Defendant, and TOTAL, S.A., a Foreign Corporation, Defendant-Appellee.

No. 99-55576

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted Dec. 5, 2000

Filed April 27, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Judith Brown Chomsky, Elkins Park, Pennsylvania, argued the cause for plaintiffs-appellants.

Richard R. Mainland, Fulbright & Jaworski L.L.P., Los Ange-les, California, argued the cause for defendant-appellee.

Appeal from the United States District Court for the Central District of California. Richard A. Paez, District Judge, Presiding. D.C. No. CV-96-06959-RAP.

Before: Dorothy W. Nelson, Melvin Brunetti and Alex Kozinski, Circuit Judges.

PER CURIAM:

We affirm the district court's judgment and adopt the portions of its opinion, Doe v. Unocal, 27 F. Supp. 2d 1174 (C. D. Cal. 1998), appearing in the Appendix as our own. See Appendix infra.

Because appellants have failed to demonstrate by the "clearest showing that denial of discovery [has] resulted in actual and substantial prejudice," the district court did not abuse its discretion in denying discovery on the question of specific jurisdiction. See Butcher's Union Local No. 498 v. SDC Investment, Inc., 788 F.2d 535, 540 (9th Cir. 1986) (citation omitted).

AFFIRMED.

APPENDIX ^*

PAEZ, District Judge.

I INTRODUCTION

Doe plaintiffs, farmers from the Tenasserim region of Burma, bring this class action against defendants Unocal Corporation ("Unocal"), individuals John Imle and Roger C. Beach, who are, respectively, the President and Chairman/ Chief Executive Officer of Unocal, and Total S.A. ("Total"), a French corporation. Plaintiffs allege that the State Law and Order Restoration Council ("SLORC") is a military junta that seized control in Burma (now known also as Myanmar) in 1988, and that the Myanma Oil and Gas Enterprise ("MOGE") is a state-owned company controlled by SLORC that produces and sells energy products. Plaintiffs seek injunctive, declaratory and compensatory relief for alleged international human rights violations perpetrated by defendants in furtherance of defendants Unocal, Total and MOGE's joint venture, the Yadana gas pipeline project.

Plaintiffs contend that defendants are building both off-shore drilling stations to extract natural gas from the Andaman Sea and a port and pipeline to transport the gas through the Tenasserim region of Burma and into Thailand. According to plaintiffs' complaint, defendants, through the SLORC military, intelligence and/or police forces, have used and continue to use violence and intimidation to relocate whole villages and force farmers living in the area of the proposed pipeline to work on the pipeline and pipeline-related infrastructure. Plaintiffs allege defendants' conduct has caused plaintiffs to suffer death of family members, assault, rape and other torture, forced labor, and the loss of their homes, in violation of California law, federal law and customary international law. Plaintiffs seek to represent a class numbering in the tens of thousands and consisting of:

all residents of the Tenasserim region of Burma (bounded on the north by latitudinal line of 15 degrees 15 minutes North; on the south by the latitudinal line of 13 degrees, 30 minutes North; on the west by the coastline and offshore islands; and on the east by the Thai/Burmese border) who have been, are, or will be subject to the following acts in furtherance of the Yadana gas pipeline project in which defendants are joint venturers: forced relocation, forced labor, torture, violence against women, arbitrary arrest and detention, cruel, inhuman or degrading treatment, crimes against humanity, the death of family members, battery, false imprisonment, assault, negligent hiring, or negligent supervision.

Plaintiffs' Response to the February 27, 1998, Order of the Court with Regard to Class Certification at 1. Plaintiffs seek to represent the proposed class and obtain declaratory and injunctive relief on behalf of the class pursuant to Fed. R. Civ. P. 23(b)(2).

In addition, plaintiffs seek damages on their own behalf, based on allegations of (1) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); (2) forced labor; (3) crimes against humanity; (4) torture; (5) violence against women; (6) arbitrary arrest and detention; (7) cruel, inhuman, or degrading treatment; (8) wrongful death; (9) battery; (10) false imprisonment; (11) assault; (12) intentional infliction of emotional distress; (13) negligent infliction of emotional distress; (14) negligence per se; (15) conversion; (16) negligent hiring; (17) negligent supervision; (18) violation of California Business & Professions Code 17200. By their nineteenth claim for relief, plaintiffs seek injunctive and declaratory relief. The Court previously granted the Unocal defendants' motion to strike plaintiffs' fifteenth claim for conversion.

Pending before the Court is the Motion of Defendant Total S.A. to Dismiss for Lack of Personal Jurisdiction ("Motion"). At the initial hearing on the Motion on January 12, 1998, the Court granted plaintiffs' request for jurisdictional discovery with respect to general jurisdiction and ordered the parties to meet and confer to create a discovery plan. In the course of jurisdictional discovery, Total provided plaintiffs with over 500 pages of documents and produced five witnesses for deposition: (1) Alain-Marc Irissou (Total's General Counsel); (2) Dominique Mounier (chief in-house legal counsel for Hutchinson, S.A. ("HSA"), a Total subsidiary based in Paris); (3) Herve Oberreiner (Executive Vice-President of Total America, Inc. ("TAI"), a direct U.S. subsidiary of Total); (4) John Powell (the Controller for TAI); and (5) Thomas Popma (Controller of Hutchinson Corporation ("HC"), a Total indirect subsidiary in Grand Rapids, Michigan). Mason Decl., P9. Following discovery and supplemental briefing, the Court again heard oral argument on the Motion on August 18, 1998.

On August 28, 1998, the Court directed the parties to submit further briefing as to whether

Total's subsidiary holding companies in California, or Total's subsidiary holding companies in the United States with substantial California contacts, act as Total's agents by selectively acquiring and holding operating companies in specific niches in which Total has significant market share worldwide.

Minute Order of August 28, 1998. The parties submitted supplemental papers in September 1998, completing the argument and record before the Court.

Upon consideration of the parties' papers submitted in conjunction with the motion, including all supplemental briefs, declarations and supporting documentation and the oral arguments of counsel, for the reasons explained below, the Motion is GRANTED. . . . Plaintiffs have not shown that this Court has personal jurisdiction over Total.

II DISCUSSION

B. Rule 12(b)(2) Motion to Dismiss

Fed. R. Civ. P. 12(b)(2) governs dismissal for lack of personal jurisdiction. In order to exercise personal jurisdiction over a nonresident defendant in a case presenting a federal question, the district court must first determine that "a rule or statute potentially confers jurisdiction over the defendant and then conclude that asserting jurisdiction does not offend the principles of Fifth Amendment due process." Go-Video, Inc. v. Akai Electric Co., Ltd., 885 F.2d 1406, 1413 (9th Cir. 1989).

It is the plaintiff's burden to establish the court's personal jurisdiction over a defendant. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir. 1984), cert. denied, 470 U.S. 1005, 84 L. Ed. 2d 380, 105 S. Ct. 1359 (1985). The court may consider evidence presented in affidavits to assist it in its determination and may order discovery on the jurisdictional issues. Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). However,

[w]hen a district court acts on a defendant's motion to dismiss without holding an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss. That is, the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant.

Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citations omitted); see also AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (where trial court rules on jurisdictional issue based on affidavits and discovery materials without holding evidentiary hearing, plaintiff need only make prima facie showing). Where not directly controverted, plaintiff's version of the facts is taken as true for the purposes of a 12(b)(2) motion to dismiss. AT & T, 94 F.3d at 588. Likewise, "conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiffs'] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." Id. (citations omitted).

Total's motion to dismiss for lack of personal jurisdiction raises interesting questions regarding when a "national contacts" test is available under Fed. R. Civ. P. 4(k)(2) . . . and whether, with respect to general and specific personal jurisdiction under the forum state's long-arm statute, the alter ego and agency doctrines require the Court...