27 F.Supp.2d 1174 (C.D.Cal. 1998), CV 96-6959, Doe v. Unocal Corp.

Docket Nº:CV 96-6959 RAP (BQRX).
Citation:27 F.Supp.2d 1174
Party Name:John DOE I, et al., Plaintiffs, v. UNOCAL CORP., et al., Defendants.
Case Date:November 18, 1998
Court:United States District Courts, 9th Circuit, Central District of California

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27 F.Supp.2d 1174 (C.D.Cal. 1998)

John DOE I, et al., Plaintiffs,


UNOCAL CORP., et al., Defendants.

No. CV 96-6959 RAP (BQRX).

United States District Court, C.D. California.

Nov. 18, 1998

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Dan Stormer, Anne Richardson, Randall R. Renick, Hadsell & Stormer, Pasadena, CA, Paul L. Hoffman, Bostwick & Hoffman, Santa Monica, CA, Judith Brown Chomsky, Jennifer Green, Center for Constitutional Rights, New York City, for plaintiffs.

Daniel P. Collins, Munger Tolles & Olson, Los Angeles, CA, Edwin V. Woodsome, Jr., Howrey & Simon, Los Angeles, CA, Kristin Linsley Myles, Munger Tolles & Olson, San Francisco, CA, for Unocal Corp, defendant.

Peter H. Mason, Richard R. Mainland, Larissa A.J. Kehoe, Fulbright & Jaworski, Los Angeles, CA, for Total S.A., defendant.

Daniel P. Collins, Paul J. Watford, Munger Tolles & Olson, Los Angeles, CA, Edwin V. Wodsome, Jr., Howrey & Simon, Los Angeles, CA, for John Imle, defendant.

Edwin V. Woodsome, Jr., Howrey & Simon, Los Angeles, CA, for Roger C. Beach, Moes 1-500, defendants.


PAEZ, District Judge.



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 1998, 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 offshore 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;

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(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 and Insufficiency of Service of Process ("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., ¶ 9. 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. Although the service of the summons and complaint was not defective, plaintiffs have not shown that this Court has personal jurisdiction over Total.



A. Sufficiency of Service 1

Total contends that it is not properly before the Court because plaintiffs' service of the summons and complaint was defective. Plaintiffs delivered the original complaint in this action to the Clerk of the Court for service under the Hague Convention on March 31, 1997. On April 4, 1997, plaintiffs filed their First Amended Complaint. Total was personally served with the original complaint on June 3, 1997.

Total argues service was not effective because it was ultimately served with a superseded pleading. Plaintiffs take the position that service was "effected" when they delivered the complaint to the Clerk, and was "completed" when Total was finally served. Plaintiffs correctly cite the rule that under the Hague Convention, "[t]he legal sufficiency of a formal delivery of documents" is determined by reference to the "internal law of the forum state." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Nonetheless, plaintiffs' argument that service was "effected" when the complaint was delivered to the Clerk is meritless. As Total points out, plaintiffs fail to distinguish between

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personal service and service by mail. The cases on which plaintiffs rely involved California Code of Civil Procedure §§ 415.40 and 415.20, which explicitly provide that service is effected when mailed, although it is not deemed complete until ten days from mailing. No such provision is found in California Code of Civil Procedure § 415.10, which provides that "[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery." In short, service was effected upon delivery of the summons and complaint to Total.

Turning to the next piece of the puzzle, "[i]t is hornbook law that an amended pleading supersedes the original, the latter being treated thereafter as non-existent. [ ] Once amended, the original no longer performs any function as a pleading[.]" Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir.1956) (internal citations omitted); see also, Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir.1989) (same). An original complaint is only superseded, however, when the amended complaint is properly served, not when it is filed. 2 International Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir.1977) (concluding that judgments based on original complaint were valid despite filing of amended complaint because amended complaint was never properly served).

As the Second Circuit concluded in Vesco, to hold that an amended complaint supersedes the original complaint when the amended complaint is filed "would...

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