578 F.3d 1252 (11th Cir. 2009), 06-15851, Sinaltrainal v. Coca-Cola Co.

Docket Nº:06-15851.
Citation:578 F.3d 1252
Opinion Judge:BLACK, Circuit Judge:
Party Name:SINALTRAINAL, Isidro Segundo Gil, The Estate of, Luis Eduardo Garcia, Alvaro Gonzalez Lopez, Jose Domingo Flores, Jorge Humberto Leal, Juan Carlos Galvis, Alvaro Gonzalez, John Doe, as representative of the Estate of Isidro Segundo Gil, Luis Adolfo Cardona, John Doe II, Plaintiffs-Appellants, v. COCA-COLA COMPANY, the, Coca-Cola De Colombia, S.A.,
Attorney:Daniel M. Kovalik, United Steelworkers of America, Pittsburgh, PA, Terrence P. Collingsworth, Washington, DC, for Plaintiffs-Appellants. Robert M. Brochin, Morgan, Lewis & Bockius, Miami, FL, for Coca-Cola Co., Panamerican Beverages Co., LLC, Panamco, LLC, Panamco Industrail De Gaseosas, S.A., Wi...
Judge Panel:Before TJOFLAT, BLACK and COX, Circuit Judges.
Case Date:August 11, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 1252

578 F.3d 1252 (11th Cir. 2009)

SINALTRAINAL, Isidro Segundo Gil, The Estate of, Luis Eduardo Garcia, Alvaro Gonzalez Lopez, Jose Domingo Flores, Jorge Humberto Leal, Juan Carlos Galvis, Alvaro Gonzalez, John Doe, as representative of the Estate of Isidro Segundo Gil, Luis Adolfo Cardona, John Doe II, Plaintiffs-Appellants,

v.

COCA-COLA COMPANY, the, Coca-Cola De Colombia, S.A., Panamerican Beverages Company, LLC, Panamco, LLC, Panamco Industrail De Gaseosas, S.A., A.K.A. Panamco Columbia, S.A., Richard I. Kirby, et al., Defendants-Appellees.

No. 06-15851.

United States Court of Appeals, Eleventh Circuit.

August 11, 2009

Page 1253

[Copyrighted Material Omitted]

Page 1254

[Copyrighted Material Omitted]

Page 1255

[Copyrighted Material Omitted]

Page 1256

[Copyrighted Material Omitted]

Page 1257

Daniel M. Kovalik, United Steelworkers of America, Pittsburgh, PA, Terrence P. Collingsworth, Washington, DC, for Plaintiffs-Appellants.

Robert M. Brochin, Morgan, Lewis & Bockius, Miami, FL, for Coca-Cola Co., Panamerican Beverages Co., LLC, Panamco, LLC, Panamco Industrail De Gaseosas, S.A.,

William P. McCaughan, Kirkpatrick Lockhart, Preston Gates Ellis, LLP, Miami, FL, Faith E. Gay, Sanford Ian Weisburst, Quinn Emanuel Urquhart Oliver & Hedges, New York City, J. Noah Hagey, Quinn Emanuel Urquhart Oliver & Hedges, LLP, for Richard I. Kirby.

Paul L. Hoffman, Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Venice, CA, for EarthRights Intern., Colombian Institute of Intern. Law, George Washington University Law School Intern., Amici Curiae.

Peter Bowman Rutledge, Athens, GA, for Nat. Foreign Trade Council, Chamber of Commerce of USA, U.S. Council for Inter. Business, Nat. Ass'n of Manufacturers, Organization for Intern. Investment, Amici Curiae.

Jack Landman Goldsmith, III, Newton, MA, for Nat. Business Ass'n of Colombia, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BLACK and COX, Circuit Judges.

BLACK, Circuit Judge:

The main question presented by this appeal is whether Plaintiffs-Appellants (Plaintiffs) have sufficiently pled factual allegations in their complaints to survive a motion to dismiss. In four consolidated cases, Plaintiffs, who were trade union leaders, brought suit under, inter alia, the Alien Tort Statute (ATS), 28 U.S.C. § 1350,1 and the Torture Victims Protection Act (TVPA), 28 U.S.C. § 1350 note, alleging their employers-two bottling companies in Colombia2-collaborated with Colombian paramilitary forces3 to murder and torture Plaintiffs. Plaintiffs' complaints named a number of defendants, including The Coca-Cola Company (Coca-Cola USA) and its subsidiary, Coca-Cola de Colombia, S.A., (Coca-Cola Colombia). Coca-Cola USA and Coca-Cola Colombia (the Coca-Cola Defendants) were allegedly connected to the Colombian bottlers, and their respective employees, through a series of alter ego and agency relationships.

Page 1258

In two separate opinions the district court found it lacked subject matter jurisdiction over Plaintiffs' ATS and TVPA claims. See Sinaltrainal v. Coca-Cola Co., 256 F.Supp.2d 1345 (S.D.Fla.2003) (Sinaltrainal I); In re Sinaltrainal Litig., 474 F.Supp.2d 1273 (S.D.Fla.2006) (Sinaltrainal II). The ATS is discussed in greater detail below, but briefly, it provides district courts with original jurisdiction over " 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. The TVPA establishes a cause of action for victims of torture and extrajudicial killing " under actual or apparent authority, or color of law, of any foreign nation." 28 U.S.C. § 1350 note § 2(a). We address whether the four complaints sufficiently allege a violation of the law of nations under the ATS, and torture and extrajudicial killing under color of law under the TVPA, to survive a motion to dismiss. For the reasons stated below, we affirm the district court.

I. BACKGROUND

Plaintiffs initially filed a single complaint against the Coca-Cola Defendants, Bebidas y Alimentos de Urabá, S.A., Richard Kirby, Panamco Colombia, S.A., Panamerican Beverages Company, LLC, and Panamco, LLC (collectively, Defendants). The complaint alleged the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists at the hands of paramilitary forces, who allegedly worked as agents of the Defendants. Defendants jointly moved to dismiss the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs then amended their complaint by filing four separate complaints, which became the Gil case, the Galvis case, the Leal case, and the Garcia case.4 Bottler Bebidas y Alimentos de Urabá and its owner, Richard Kirby (the Bebidas Defendants), were named in the Gil complaint, whereas bottler Panamco Colombia and its owners, Panamerican Beverages Company, LLC and Panamco, LLC (the Panamco Defendants), were named in the three other complaints: Galvis, Leal, and Garcia. None of the Defendants are alleged to be directly liable for the murder and torture alleged in the complaints; rather, according to the Gil, Galvis, and Leal plaintiffs, the tortious conduct allegedly committed by paramilitary members is imputed to Defendants through conspiracy, agency, and aiding and abetting theories.5 The Garcia plaintiffs allege Defendants are vicariously liable for tortious conduct allegedly committed by the local police.

Brought by the estate of Isidro Segundo Gil, among others, the Gil complaint alleges the Bebidas Defendants and the Coca-Cola Defendants hired, contracted with, or otherwise directed paramilitary security forces that murdered, tortured, or silenced leaders of the trade union representing workers at the Bebidas bottling facility. Isidro Segundo Gil, a local union leader, was allegedly murdered by paramilitaries

Page 1259

inside the Bebidas bottling plant. Plaintiff Luis Adolfo Cardona, another union leader, allegedly witnessed Gil's murder and was later detained and tortured by the paramilitaries. Events in the Gil complaint took place at the Bebidas bottling facility, while the events in the three other complaints took place in three separate bottling facilities operated by Panamco Colombia.

The three other complaints name the Panamco Defendants and the Coca-Cola Defendants. In Galvis, the plaintiffs allege local management of the Panamco Colombia facility in Barancabermeja where Juan Carlos Galvis worked conspired with leaders of the local paramilitary to rid the facility of the union. Galvis alleges he received a number of death threats from the paramilitaries for his union activities and while driving in his car, on one occasion, was shot at by a gunman. In Leal, plaintiffs allege local management of the Panamco Colombia facility in Cucuta where Jorge Humberto Leal worked conspired with leaders of the local paramilitaries to rid the bottling facility of the union. Leal alleges he was kidnapped, tortured, and threatened by the local paramilitaries for his union activities. In Garcia, unlike Gil, Galvis, and Leal, the plaintiffs allege a conspiracy between the local police, rather than paramilitary officers, and the bottling facilities' management. The Garcia plaintiffs allege the chief of security for the Bucaramanga facility where plaintiffs worked conspired with local police officers to unlawfully arrest, detain, and imprison plaintiffs.

Plaintiffs attempt to connect the Coca-Cola Defendants to the local facilities' management through a series of agency and alter ego relationships. For example, in the Gil case, the plaintiffs' layered theory of agency and alter ego liability is as follows: the bottling facility, Bebidas, is responsible for the acts of its employees, including conspiring with local paramilitaries to rid the facility of unions. Bebidas, in turn, is an alter ego or agent of Richard Kirby, Bebidas' owner and manager, such that Kirby is liable for any wrongful conduct by Bebidas employees that resulted in the murder of Gil. Bebidas and Kirby, in turn, are the alter egos or agents of Coca-Cola Colombia because Coca-Cola Colombia is responsible for manufacturing and distributing Coca-Cola products to Bebidas and all other bottlers in Colombia. Coca-Cola Colombia, a wholly-owned subsidiary of Coca-Cola USA, in turn, is an alter ego or agent of Coca-Cola USA because Coca-Cola Colombia is under the management, control, and direction of Coca-Cola USA to the extent that its separateness is illusory.

In Sinaltrainal I , the district court held it did not have subject matter jurisdiction over the ATS and TVPA claims against the Coca-Cola Defendants. See Sinaltrainal I, 256 F.Supp.2d at 1355, 1357. The court determined a bottler's agreement, which gave Coca-Cola USA the right to enforce standards necessary to protect Coca-Cola's product in the marketplace, including the use of the trademark, packaging, and quality control, did not give Coca-Cola USA the total control over day-to-day activities that Plaintiffs alleged. It concluded the Coca-Cola Defendants therefore did not have the requisite control to be liable for the actions of Bebidas or its employees. 6 The district court then dismissed the Coca-Cola Defendants for lack of subject matter jurisdiction because the Plaintiffs failed to sufficiently allege the

Page 1260

Coca-Cola Defendants violated the law of nations by conspiring with the local paramilitary forces to murder Gil and torture Cardona. Sinaltrainal I, 256 F.Supp.2d at 1354-55. The district court did not dismiss the ATS and TVPA claims against the Bebidas Defendants at that time.7 Id. at 1356, 1360. Subsequently, in Sinaltrainal II, the district court...

To continue reading

FREE SIGN UP