381 F.Supp.2d 1134 (C.D.Cal. 2005), 032860, Mujica v. Occidental Petroleum Corp.

Docket Nº:032860WJR(JWJX).
Citation:381 F.Supp.2d 1134
Party Name:Luis Alberto Galvis MUJICA, et al. Plaintiffs, v. OCCIDENTAL PETROLEUM CORP., et al. Defendants.
Case Date:June 28, 2005
Court:United States District Courts, 9th Circuit, Central District of California

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381 F.Supp.2d 1134 (C.D.Cal. 2005)

Luis Alberto Galvis MUJICA, et al. Plaintiffs,



No. 032860WJR(JWJX).

United States District Court, C.D. California.

June 28, 2005

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Bridget Arimond, Douglass W. Cassel, Chicago, IL, Daniel M. Kovalik, Pittsburgh, PA, Derek J. Baxter, Jeffrey Vogt,

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Terry Collingsworth, Washington, DC, Paul L. Hoffman, Schonbrun Desimone Seplow Harris and Hoffman, Venice, CA, for Plaintiffs.

Daniel P. Collins, Daniel Luke Geyser, John W. Spiegel, Munger Manuel F. Cachan, Tolles & Olson, Los Angeles, CA, Kristin Linsley Myles, Munger Tolles & Olson, San Francisco, CA, Kenneth J. Berke, Berke & Kent, Calabasas, CA, Sara M. Fotopulos, Thomas E. Fotopulos, Fotopulos & Fotopulos, Riverview, FL, for Defendants.


REA, District Judge.

The matter came on for hearing before the Court, the Honorable William J. Rea, Judge, presiding, on January 10, 2005. Having considered the motion, the papers filed in support thereof and in opposition thereto, the oral argument of counsel, and the file in the case, the Court now makes the following decision: the Court hereby DENIES Defendant Occidental Petroleum Corp.'s Motion to Dismiss the Action under the Doctrines of Forum Non Conveniens and International Comity. 1


I. Factual Allegations

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 facility and 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. See First Amended Complaint ("FAC") at ¶ 15. 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. See id. at ¶ 16. 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. See id. at ¶ 19. 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. See id. During the raid, three of Defendant AirScan's employees, along with a CAF liaison, piloted a plane with CAF markings that was paid for by Defendant Occidental. See id. From this airplane, Defendant AirScan provided aerial surveillance for the CAF, helping the CAF identify targets and choose places to deploy troops. See id. at ¶ 3.

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. See id. atpp 19-20. Soon thereafter, several witnesses saw an object (or several objects) drop from one of the CAF helicopters. See id. 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.

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See id. at ¶ 21. Of the seventeen killed, six were children. See id. 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. See id. at ¶ 24. Soon thereafter, other CAF troops entered the town, blocked civilians from leaving, and ransacked their homes. See id.

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. See id. at ¶ 25. These insurgents were located at least one to two kilometers outside of the Santo Domingo. See id. Defendants knew that the insurgents were not in Santo Domingo but carried out the attack nonetheless. See id.

Plaintiff Luis Alberto Galvis was approximately 800 to 1000 meters outside of Santo Domingo during the raid. See id. at ¶ 27. After he saw a CAF helicopter and heard an explosion, he attempted to return to Santo Domingo. See id. Before he could enter, a CAF helicopter fired upon him and prevented him from returning. See id. The next day, Plaintiff Luis Alberto Galvis learned that his mother, Teresa Mujica Hernandez, his sister, Edilma Leal Pacheco, and his cousin, Johanny Hernandez Becerra, had been killed during the raid. See id. atpp 22, 28.

Plaintiff Mario Galvis, Luis Alberto Galvis' father, was also in Santo Domingo at the time of the bombing and was injured during the raid. See id. at ¶ 23. Bomb shrapnel tore through his chest, breaking both of his collar bones. See id. He was subsequently hospitalized and continues to suffer chronic pain from these injuries. See id. During the raid, he also saw his wife, Teresa Mujica Hernandez, and daughter, Edilma Leal Pacheco, killed as a result of Defendants' actions. See id.

Plaintiff John Mario Galvis, Luis Alberto Galvis' younger brother and Mario Galvis' son, was in Santo Domingo at the time of the bombing. See id. During the raid, he saw his mother, Teresa Mujica Hernandez, and sister, Edilma Leal Pacheco, killed as a result of Defendants' actions. See id.

Plaintiffs have made other allegations regarding the events that took place after the bombing. The Court will refer to those allegations as necessary in the course of its opinion.

II. Procedural History

On April 24, 2003, Plaintiff Luis Alberto Galvis Mujica filed a Complaint, on behalf of himself and Teresa Mujica Hernandez, Edilma Leal Pacheco, and Johanny Hernandez Becerra. On October 6, 2003, Plaintiffs filed their FAC, adding Plaintiffs Mario Galvis Gelvez and John Mario Galvis Mujica. In their FAC, Plaintiffs have brought federal claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act, 28 U.S.C. § 1350 Note, as well as state law claims of wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of Cal. Bus. & Prof.Code § 17200.

On January 20, 2004, the Court GRANTED Defendant Occidental's Motion requesting that the Court solicit the views of the United States Department of State regarding potential foreign policy implications raised by this action. On April 2, 2004, the Department of State filed a Statement of Interest indicating that it did not yet have a position on the foreign policy implications of this case. On July 22, 2004, the parties stipulated to an extended briefing schedule regarding Defendant Occidental's motions to dismiss. This briefing schedule was extended so that the parties could incorporate the Supreme Court's June 29, 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) .

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The parties completed their briefing on December 20, 2004.

On December 30, 2004, the State Department filed a Supplemental Statement of Interest indicating that it now opposes the pursuit of the instant litigation since it would severely impact this country's diplomatic relationship with Colombia. As part of that Supplemental Statement of Interest, the State Department attached a letter from the Colombian government indicating that it also opposed this litigation.

On January 20, 2004, the Court heard oral argument on Defendant's motions. During that oral argument, the parties requested the opportunity to file additional briefs addressing the Supplemental Statement of Interest. That supplemental briefing was completed on February 16, 2005. Since February, the parties have continued to file supplemental declarations and supplemental authority with the Court.


I. Forum non conveniens

A. Legal standard

"[U]nder the ancient doctrine of forum non conveniens, there are circumstances under which a court may dismiss an action because the chosen forum, while a proper venue, is inconvenient." Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3828, at 278 (2d ed.1986).

The standard governing a motion to dismiss on the basis of forum non conveniens is whether "defendants have made a clear showing of facts which establish such oppression and vexation of a defendant as to be out of proportion to plaintiff's convenience, which may be shown to be slight or nonexistent." Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir.2002) (quoting Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir.1983)). "Forum non conveniens is 'an exceptional tool to be employed sparingly, [not a] ... doctrine that compels plaintiffs to choose the optimal forum for their claim.' " Id. (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.2000)).

"A party moving to dismiss based on forum non conveniens bears the burden of showing (1) that there is an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal." Dole Food, 303 F.3d at 1118 (9th Cir.2002) (citing Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142-43 (9th Cir.2001)).

"The plaintiff's choice of forum will not be disturbed unless the 'private interest' and 'public interest' factors strongly favor trial in the foreign country." Id. (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1334 (9th Cir.1984)). However, the choice of forum made by "citizens or...

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