Cardona v. Chiquita Brands Int'l, Inc.

Decision Date24 July 2014
Docket NumberNo. 12–14898.,12–14898.
Citation760 F.3d 1185
PartiesLiliana Maria CARDONA, John Doe, Angela Maria Henao Montes, et al., Plaintiffs–Appellees–Cross Appellants, Adanolis Pardo Lora, Aidee Moreno Valencia, Albinia Delgado, et al., Plaintiffs–Appellees, v. CHIQUITA BRANDS INTERNATIONAL, INC., an Ohio corporation, Chiquita Fresh North America LLC, a Delaware corporation, Defendants–Appellants–Cross Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Richard L. Herz, Earthrights International, Washington, DC, William B. King, John Scarola, Searcy, Denney, Scarola, Barnhart & Shipley, West Palm Beach, FL, Sigrid Stone McCawley, Boies Schiller & Flexner, LLP, William Wichmann, Attorney At Law, Fort Lauderdale, FL, Karen C. Dyer, Boies Schiller & Flexner, LLP, Orlando, FL, Nicholas A. Gravante, Magda M. Jimenez Train, Lee S. Wolosky, Boies Schiller & Flexner, LLP, New York, NY, Stephen N. Zack, Boies Schiller & Flexner, LLP, Miami, FL, for PlaintiffsAppelleesCross Appellants.

John Edward Hall, Jonathan M. Sperling, Covington & Burling, LLP, New York, NY, John Edward Hall, Jose Arvelo, James M. Garland, Mark William Mosier, Covington & Burling, LLP, Washington, DC, Cristopher Stephen Rapp, Jones Foster Johnston & Stubbs, PA, West Palm Beach, FL, for DefendantsAppellantsCross Appellees.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:08–md–01916–KAM.

Before MARTIN, FAY, and SENTELLE*, Circuit Judges.

SENTELLE, Circuit Judge:

Over four thousand Colombians brought actions against Appellant Chiquita Brands International, Inc., and Chiquita Fresh North LLC (collectively, Chiquita), alleging claims involving torture, personal injury, and death under the Torture Victims Protection Act and the Alien Tort Statute. The district court in a series of orders denied motions to dismiss. Concluding that there were controlling questions of law that could be efficiently decided before further litigation, the district court certified those questions to us. On interlocutory review, we determine that the complaints do not state claims within the jurisdiction of the United States courts, and we reverse the denials of motions to dismiss and remand the matter for the entry of judgments of dismissal.

The Litigation

Because our ultimate disposition is not dependent on specificity of fact, we will only briefly review the history of the case. The plaintiffs filed lawsuits alleging liability on the part of Chiquita for engaging in concert of action with paramilitary forces in Colombia, including acts that plaintiffs alleged to constitute torture and to have resulted in personal injury and death. Plaintiffs asserted that the courts of the United States had jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), and the Torture Victims Protection Act, 28 U.S.C. § 1350 note (“TVPA”). After all the cases came under the control of one district judge, motions practice proceeded.

Appellant Chiquita filed motions to dismiss. The district court in several opinions considered those motions and other questions and ultimately denied the motions to dismiss. However, the court granted defendants' motion for certification of certain controlling questions for interlocutory review under 28 U.S.C. § 1292(b). Pursuant to the authority of that certification, Chiquita timely petitioned this court for permission to appeal. On September 27, 2012, we granted that petition.

The questions certified for review are as follows:

1. Whether the “state action” element of claims for extrajudicial killing and torture brought under the ATS and TVPA requires Plaintiffs to plead facts establishing government involvement in the specific torture and killings alleged in Plaintiff's complaints.

2. Whether Plaintiffs, in alleging secondary liability for claims for war crimes, must plead facts showing a nexus between the Colombian civil war and the specific torture and killings for which Plaintiffs seek redress.

3. Whether Plaintiffs have adequately pled a claim for crimes against humanity, the elements of which have not been defined by any federal court of appeals.

4. Whether the civil tort laws of Florida, New Jersey, Ohio, and the District of Columbia apply to the extraterritorial conduct of Colombian paramilitaries against Colombian civilians that occurred inside Colombia as part of Colombia's civil war.

Because we conclude that neither this court nor the district court has jurisdiction over the action, we ultimately will not answer those specific questions, but will dispose of the case for the reasons and in the manner set forth below.

Disposition

Although we accepted the interlocutory appeal for the review of specified questions, we are not limited to the address of those specific issues. [T]he appellate court may address any issue fairly included within the certified order because ‘it is the order that is appealable, and not the controlling question identified by the district court.’ Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (emphasis in original) (quoting 9 J. Moore and B. Ward, Moore's Federal Practice § 110.25[1] at 300 (2d ed.1995)). More fundamentally, no matter how a case comes before us, the court has the authority and the duty to determine its own jurisdiction. See, e.g., United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 51 L.Ed. 319 (1906).

As we noted above, plaintiffs asserted jurisdiction in the district court under the Torture Victims Protection Act and the Alien Tort Statute. Subsequent to the district court's denial of the motions to dismiss and to its certification order of March 2012, the TVPA claims have become undeniably unviable. On April 18, 2012, barely three weeks after the entry of the certification order, the Supreme Court announced its decision in Mohamad v. Palestinian Authority, ––– U.S. ––––, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). In Mohamad, a unanimous Court held that the TVPA “authorizes liability solely against natural persons.” ––– U.S. at ––––, 132 S.Ct. at 1708. The defendant-appellants are Chiquita Brands International, Inc., and Chiquita Fresh North America, LLC. Neither is a natural person. The claims under the TVPA must be dismissed.

Unfortunately for the plaintiff-appellees, the Supreme Court has also acted with respect to the ATS during the pendency of this appeal. In Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the High Court considered a case in some ways parallel to the one before us. The Kiobel plaintiffs sued a corporate defendant under the ATS, alleging the cooperation of the corporation with the government of Nigeria in the commission of torts allegedly within the compass of that statute. The statute provides that “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. The Kiobel plaintiffs alleged acts committed by Nigeria and the corporate defendant “in violation of the law of nations” in the territory of Nigeria. Kiobel, 133 S.Ct. at 1663. Similarly, plaintiff-appellants in this case alleged acts by Chiquita in conjunction with paramilitary actors within the territory of Colombia.

In Kiobel, the Supreme Court reviewed the history of the ATS, and we see no reason to rehash it here. We can dispose of the claims that are before us simply by applying the conclusion of the Kiobel Court:

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. [T]here is no clear indication of extraterritoriality here,” and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.

––– U.S. at ––––, 133 S.Ct. at 1669 (quoting Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 264, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)).

The Court noted in Kiobel that “all the relevant conduct took place outside the United States.” Id. All the relevant conduct in our case took place outside the United States. The Court further noted that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. Plaintiff-appellants attempt to anchor ATS jurisdiction in the nature of the defendants as United States corporations. Corporate defendants in Kiobel were not United States corporations, but were present in the United States. The Supreme Court declared that [c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Id. The distinction between the corporations does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts. As the Supreme Court said in Kiobel, [i]f Congress were to determine otherwise, a statute more specific than the ATS would be required.” Id. There is no other statute. There is no jurisdiction.

Before concluding, we pause to respond briefly to the thoughtful comments of our dissenting colleague. The short answer to her concerns is expressed in the application of Kiobel to the facts of this case. Any tort here, whether styled as torture or under some other theory, occurred outside the territorial jurisdiction of the United States. The ATS contains nothing to rebut the presumption against extraterritoriality. We further observe that to apply the ATS to the allegations before us would be inconsistent with the Supreme Court's earlier holding in Sosa v. Alvarez–Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Sosa makes it clear beyond cavil that the ATS created no causes of action but is purely jurisdictional. [A]t the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category...

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1 books & journal articles
  • The Alien Tort Statute and Corporate Liability: Rebutting the Extraterritorial Presumption Post-kiobel
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 32-3, March 2016
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