626 F.3d 1137 (9th Cir. 2010), 08-56187, Cariajano v. Occidental Petroleum Corp.

Docket Nº:08-56187, 08-56270.
Citation:626 F.3d 1137
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:Tomas Maynas CARIAJANO; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena
Attorney:Marco Simons (argued), Richard Herz, Earthrights International, Washington, D.C.; Paul Hoffman, Benjamin Schonbrun, Michael D. Seplow, Schonbrun Desimone Seplow Harris & Hoffman LLP, Venice, CA; Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for the plaintiffs-appel...
Judge Panel:Before: MARY M. SCHROEDER, PAMELA ANN RYMER, and KIM McLANE WARDLAW, Circuit Judges. Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge RYMER. RYMER, Circuit Judge, concurring in part, dissenting in part:
Case Date:December 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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626 F.3d 1137 (9th Cir. 2010)

Tomas Maynas CARIAJANO; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Panaigo Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs-Appellants,

v.

OCCIDENTAL PETROLEUM CORPORATION, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants-Appellees.

Tomas Maynas Cariajano; Roxana Garcia Dahua, a minor, by her guardian Rosario Dahua Hualinga; Rosario Dahua Hualinga, personally and on behalf of her minor child Roxana Garcia Dahua; Nilda Garcia Sandi, a minor, by her guardian Rosalbina Hualinga Sandi; Rosalbina Hualinga Sandi, personally and on behalf of her minor child Nilda Garcia Sandi; Elena Maynas Mozambite, a minor, by her guardian Gerardo Maynas Hualinga; Gerardo Maynas Hualinga, personally and on behalf of his minor child Elena Maynas Mozambite; Alan Cariajano Sandi, a minor, by his guardian Pedro Sandi; Pedro Sandi Washington, personally and on behalf of his minor child Alan Cariajano Sandi; Elisa Hualinga Maynas, a minor, by her guardians Daniel Hualinga Sandi and Andrea Maynas Cariajano; Daniel Hualinga Sandi, personally and on behalf of his minor child Elisa Hualinga Maynas; Andrea Maynas Cariajano, personally and on behalf of her minor child Elisa Hualinga Maynas; Cerilo Hualinga Hualinga, a minor, by his guardians Roman Hualinga Sandi and Rosa Hualinga; Roman Hualinga Sandi, personally and on behalf of his minor child Cerilo Hualinga Hualinga; Rosa Hualinga, personally and on behalf of her minor child Cerilo Hualinga Hualinga; Rodolfo Maynas Suarez, a minor, by his guardians Horacio Maynas Cariajano and Delmencia Suarez Diaz; Horacio Maynas Cariajano, personally and on behalf of his minor child Rodolfo Maynas Suarez; Delmencia Suarez Diaz, personally and on behalf of her minor child Rodolfo Maynas Suarez; Katia Hualinga Salas, a minor, by her guardians Alejandro Hualinga Chuje and Linda Salas Pisongo; Alejandro Hualinga Chuje, personally and on behalf of his minor child Katia Hualinga Salas; Linda Salas Pisongo, personally and on behalf of her minor child Katia Hualinga Salas; Francisco Panaigo Paima, a minor, by his guardians Milton Panaigo Diaz and Anita Paima Cariajano; Milton Panaigo Diaz, personally and on behalf of his minor child Francisco Panaigo Paima; Anita Paima Cariajano, personally and on behalf of her minor child Francisco Panaigo Paima; Adolfina Garcia Sandi, personally and on behalf of her deceased minor child Olivio Salas Garcia; Amazon Watch, Inc., a Montana corporation, Plaintiffs-Appellees

v.

Occidental Petroleum Corporation, a Delaware Corporation; Occidental Peruana, Inc., a California Corporation, Defendants-Appellants.

Nos. 08-56187, 08-56270.

United States Court of Appeals, Ninth Circuit

December 6, 2010

Argued and Submitted March 3, 2010.

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Marco Simons (argued), Richard Herz, Earthrights International, Washington, D.C.; Paul Hoffman, Benjamin Schonbrun, Michael D. Seplow, Schonbrun Desimone

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Seplow Harris & Hoffman LLP, Venice, CA; Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for the plaintiffs-appellants.

Daniel P. Collins (argued), Manuel F. Cachán, Gabriel P. Sanchez, Munger, Tolles & Olson L.L.P., Ernest J. Getto, Michael G. Romey, Kirk A. Wilkinson, Latham & Watkins, L.L.P., Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:07-cv-05068-PSG-PJW.

Before: MARY M. SCHROEDER, PAMELA ANN RYMER, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge RYMER.

OPINION

WARDLAW, Circuit Judge:

These cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (" OxyPeru" ), an indirect subsidiary of defendant Occidental Petroleum Corporation (collectively " Occidental" ), along the Rio Corrientes in the northern region of Peru. Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs timely appeal the dismissal of their suit. Occidental cross-appeals from the district court's determination that its Rule 12 motion to dismiss Amazon Watch for lack of standing is moot.

Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal.

I. FACTUAL AND PROCEDURAL BACKGROUND

We accept as true the facts alleged in the Achuar Plaintiffs' and Amazon Watch's (" Plaintiffs" ) First Amended Complaint (" FAC" ). See Vivendi SA v. T-Mobile USA, Inc., 586 F.3d 689, 691 n. 3 (9th Cir.2009); Aguas Lenders Recovery Group v. Suez, S.A., 585 F.3d 696, 697 (2d Cir.2009) (accepting the facts alleged in the complaint as true where the case was dismissed on forum non conveniens grounds without a factual hearing).

Occidental is among the largest oil and gas companies in the United States. Its Peruvian operations began in the early 1970s with the development of a pair of lots near the Ecuadorean border known as " Block 1-AB." Its subsidiary, OxyPeru, built Block 1-AB into a thriving extraction, processing, and distribution site, providing 26 percent of Peru's total historical oil production from 1972 to 2000, at which point Occidental sold its stake in Block 1-AB to the Argentine oil company Pluspetrol. The Peruvian government granted Occidental its first concession in the region in 1971; oil was found the next year. The company built dozens of wells, a 530-kilometer network of pipelines, refineries, and separation batteries for processing

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crude oil, as well as roads, heliports and camps to support the operation at Block 1-AB.

The Achuar are indigenous people who have long resided along the rivers of the northern Peruvian rainforest. Block 1-AB encompasses significant portions of the Corrientes and Macusari rivers, home to several Achuar communities. The inhabitants use the rivers and their tributaries for drinking, fishing, and bathing. The region is remote, with access typically limited to small planes, helicopters, small boats, and canoes.

The complaint alleges that, during its thirty years in the Achuar territories, Occidental knowingly utilized out-of-date methods for separating crude oil that contravened United States and Peruvian law, resulting in the discharge of millions of gallons of toxic oil byproducts into the area's waterways. Achuar children and adults came into frequent contact with the contaminants by using polluted rivers and tributaries for drinking, washing and fishing. Tests have shown potentially dangerous levels of lead and cadmium in the blood of a significant number of affected individuals. Achuar Plaintiffs have reported gastrointestinal problems, kidney trouble, skin rashes, and aches and pains that they attribute to the pollution.

Plaintiffs further allege that the pollution led to...

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