545 F.3d 733 (9th Cir. 2008), 07-56326, Abagninin v. AMVAC Chemical Corp.

Docket Nº:07-56326.
Citation:545 F.3d 733
Party Name:Akebo ABAGNININ; Amangoua Abli; Miessan Etienne Abli; Aba Abou; Yapo Pierre Aboua; Koffi Antoine Abri; Ampoh Adama; Toure Abry; Haruna Abubakaray; Kroya Aca; Simplice Achiepo, Plaintiffs-Appellants, v. AMVAC CHEMICAL CORPORATION; Dow Chemical Company; Shell Oil Company; Dole Food Company, Inc.; Dole Fresh Fruit Co; Standard Fruit Co.; Standard Frui
Case Date:September 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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545 F.3d 733 (9th Cir. 2008)

Akebo ABAGNININ; Amangoua Abli; Miessan Etienne Abli; Aba Abou; Yapo Pierre Aboua; Koffi Antoine Abri; Ampoh Adama; Toure Abry; Haruna Abubakaray; Kroya Aca; Simplice Achiepo, Plaintiffs-Appellants,


AMVAC CHEMICAL CORPORATION; Dow Chemical Company; Shell Oil Company; Dole Food Company, Inc.; Dole Fresh Fruit Co; Standard Fruit Co.; Standard Fruit and Steamship Company, Defendants-Appellees.

No. 07-56326.

United States Court of Appeals, Ninth Circuit.

September 24, 2008

Argued and Submitted July 18, 2008.

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[Copyrighted Material Omitted]

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Raphael Metzger, Metzger Law Group, Long Beach, CA, for the plaintiffs-appellants.

Edwin V. Woodsome, Jr., Orrick, Herrington & Sutcliffe, Los Angeles, CA, for defendant-appellee The Dow Chemical Company; Lawrence P. Riff, Steptoe & Johnson, Los Angeles, CA, for defendant-appellee Shell Oil Company; Robert G. Crow, Boornazian, Jensen & Garthe, Oakland, CA, for defendant-appellee AMVAC Chemical Corporation; Frederick L. McKnight, Jones Day, Los Angeles, CA, for defendants-appellees Dole Food Company, et al.

Appeal from the United States District Court for the Central District of California; George H. Wu, District Judge, Presiding. D.C. No. CV-06-06157-GW.

Before: CYNTHIA HOLCOMB HALL and PAMELA ANN RYMER, Circuit Judges, and STEPHEN M. McNAMEE,[*] District Judge.

McNAMEE, District Judge:

Akebo Abagninin and others who live and work in the Ivory Coast (“ Abagninin" ) 1 appeal the district court's dismissal with prejudice of their claims against manufacturers, distributors, and users of the pesticide DBCP for genocide and crimes against humanity under the Alien Tort Statute (“ ATS" ), 28 U.S.C. § 1350.2 Abagninin alleges that DBCP caused male sterility and low sperm counts, which AMVAC knew. The district court granted with prejudice AMVAC's motion for judgment on the pleadings as to the genocide claim for failure to allege that AMVAC acted with specific intent. Abagninin's claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC's conduct occurred within the context of a State or organizational policy. We affirm.


Abagninin is a West African foreign national who has resided and worked on banana and pineapple plantations in the Ivory Coast villages of Kakoukro and Ono. AMVAC is a private business entity that designed, manufactured, or required the use of the agricultural pesticide 1, 2 Dibromo-3-Chloropropane (“ DBCP" ). Abagninin alleges that DBCP exposure caused male sterility and abnormally low sperm counts, and resulted in the prevention of births.

Abagninin alleges that AMVAC knew of DBCP's toxicity as early as the 1950s, and that by the fall of 1977 the use of DBCP was suspended in the United States. Abagninin further alleges that despite knowing the negative health effects of DBCP, AMVAC continued manufacturing, selling, and using DBCP on the Ivory Coast plantations. Dole Food Company, Inc., through its subsidiary Standard Fruit

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Company, allegedly entered into partnership agreements with an Ivory Coast governmental entity known as “ Socié té d'Etat pour le Dé veloppement de la Production des Fruitiè res et Lé gumes" (“ Sodefel" ). Sodefel allegedly owned and operated the fruit plantations. Under the alleged partnership agreements, Dole Food would purchase all fruit produced by the plantations, and Sodefel would grow the fruit according to Dole Food's specifications. These specifications allegedly included the use of DBCP produced by Dow Chemical Company, Shell Oil Company, or AMVAC Chemical Corporation.

Abagninin contends that the partnership agreements and resulting use of DBCP caused sterility and low sperm counts in plantation workers, as a result of which they cannot procreate. Abagninin further contends that such conduct supports claims under the ATS for genocide and crimes against humanity because the conduct was undertaken with knowledge of DBCP's effects and pursuant to a State or organizational policy. The original complaint alleged genocide, crimes against humanity, racial discrimination, and unlawful distribution of pesticides in violation of the laws of nations. Dow Chemical moved for judgment on the pleadings under Rule 12(c), and AMVAC joined this motion.

On March 23, 2007, the district court dismissed with prejudice Abagninin's claims for genocide and unlawful distribution of pesticides. The district court found that Abagninin failed to allege a violation of applicable norms of international law regarding genocide and unlawful distribution of pesticides. Specifically, the district court held that genocide requires specific intent to destroy a particular group of victims, and that Abagninin only alleged that AMVAC acted with knowledge of the consequences of DBCP. In so holding, the district court rejected Abagninin's argument that the Rome Statute of the International Criminal Court (“ Rome Statute" ) lowered the intent requirement for genocide to include knowledge.3 The district court also dismissed the remaining claims, including the claim predicated on crimes against humanity. The district court held that these claims required an element of State action, and granted leave to amend to include allegations of State action.

Abagninin filed the First Amended Complaint (“ FAC" ) on April 6, 2007, alleging claims under the ATS for crimes against humanity and racial discrimination. Dow Chemical filed a motion to dismiss under Rule 12(b)(6) which AMVAC joined. The district court found that the FAC failed to sufficiently allege a State or organizational policy regarding sterilization. Supplemental briefing was requested as to whether dismissal should be with prejudice or without prejudice, and whether to allow discovery regarding the State action requirement. The district court also indicated that defendants not yet served or appearing would be treated no differently than AMVAC as to lack of State action. All counsel present, including Abagninin's counsel, waived notice as to the dismissal of non-served defendants.

The district court then held a hearing as to the nature of dismissal and proffered discovery. Abagninin's proffered discovery would only reveal whether or not the Ivory Coast government was aware of the use and consequences of DBCP. The district court determined that such information, indicating knowledge by the Ivory Coast, would not constitute State action. The district court therefore dismissed the remaining claims with prejudice, finding

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that Abagninin's proffered discovery would not establish conduct within the definition of State action. Abagninin timely appealed.


A dismissal for failure to state a claim is reviewed de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) (Rule 12(b)(6)); Dunlap v. Credit Protection Ass'n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir.2005) (Rule 12(c)). All factual allegations in the complaint are accepted as true, and the pleadings construed in the light most favorable to the nonmoving party. Knievel, 393 F.3d at 1072. Denial of leave to amend is reviewed for abuse of discretion. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990). The district court's decision will not be disturbed absent a definite and firm conviction that it committed a clear error of judgment. Id.


The ATS allows aliens to bring tort claims for violations of the law of nations or treaties of the United States. We will first discuss the scope of the ATS before addressing the dismissal of Abagninin's claims for genocide and crimes against humanity.

The ATS reads in its entirety: “ The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. A “ treaty of the United States" is a formal agreement between the United States and one or more other sovereigns, entered into by the President and approved by two-thirds of the Senate. U.S. Const. art. II, § 2, cl. 2; Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir.2008) (noting 1925 Geneva Protocol did not constitute “ a treaty of the United States" under the ATS until ratified).

The Supreme Court recently considered the ATS in Sosa v. Alvarez-Machain, and made clear that any claim based on the law of nations must “ rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" of piracy, infringement on the rights of ambassadors, and violation of safe conducts. 542 U.S. 692, 725, 732, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).4 Although jurisdiction under the ATS is not limited solely to these paradigms, it is “ subject to vigilant doorkeeping," id. at 729, 124 S.Ct. 2739, as courts have “ no congressional mandate to seek out and define new and debatable violations of the law of nations." Id. at 728, 124 S.Ct. 2739. Sosa also instructs that “ the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." Id. at 733, 124 S.Ct. 2739.

With these definitions and principles in mind, we turn to the genocide and crimes against humanity claims dismissed by the district court. As discussed below, Abagninin's allegations fail to state a claim for either cause of action under prevailing

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norms of international law. We are not empowered, as Abagninin would urge, to extend and redefine these norms.

A. Genocide

The common law distinguished between crimes requiring “ general intent" and those requiring “ specific intent." United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62...

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