771 F.3d 580 (9th Cir. 2014), 10-55515, Mujica v. AirScan Inc.

Docket Nº:10-55515, 10-55516, 10-55587
Citation:771 F.3d 580
Opinion Judge:BYBEE, Circuit Judge.
Party Name:LUIS ALBERTO GALVIS MUJICA, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; MARIO GALVIS GELVEZ, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; JOHN MARIO GALVIS MUJICA,
Attorney:Paul L. Hoffman (argued), Adrienne J. Quarry, and Victoria Don, Schonbrun DeSimone Seplow, Harris Hoffman & Harrison, LLP, Venice, California; Terry Collingsworth and Christian Levesque, Conrad & Scherer, LLP, Washington, D.C.; Daniel M. Kovalik, Pittsburgh, Pennsylvania; Bridget Arimond, Center ...
Judge Panel:Before: Jay S. Bybee and Sandra S. Ikuta, Circuit Judges, and Thomas S. Zilly, Senior District Judge.[*] Thomas S. ZILLY, Senior District Judge
Case Date:November 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 580

771 F.3d 580 (9th Cir. 2014)

LUIS ALBERTO GALVIS MUJICA, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; MARIO GALVIS GELVEZ, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; JOHN MARIO GALVIS MUJICA, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs-Appellees,

v.

AIRSCAN INC., Defendant-Appellant,

OCCIDENTAL PETROLEUM CORPORATION, Defendant,

UNITED STATES OF AMERICA, Movant.

LUIS ALBERTO GALVIS MUJICA, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; MARIO GALVIS GELVEZ, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; JOHN MARIO GALVIS MUJICA, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs-Appellees,

v.

OCCIDENTAL PETROLEUM CORPORATION, Defendant-Appellant,

AIRSCAN INC., Defendant, UNITED STATES OF AMERICA, Movant.

LUIS ALBERTO GALVIS MUJICA, on behalf of himself and as representative of the Estates of Tereza Mujica Hernan, Edilma Leal Pacheco and Johanny Hernandez Becerra; MARIO GALVIS GELVEZ, on behalf of himself, individually, and as heir of the decedents Tereza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra; JOHN MARIO GALVIS MUJICA, through his guardian ad litem and on behalf of himself, individually, and as heir of the decedents Terza Mujica Hernandez, Edilma Leal Pacheco and Johanny Hernandez Becerra, Plaintiffs-Appellants,

v.

OCCIDENTAL PETROLEUM CORPORATION; AIRSCAN INC., Defendants-Appellees, and UNITED STATES OF AMERICA, Movant

Nos. 10-55515, 10-55516, 10-55587

United States Court of Appeals, Ninth Circuit

November 12, 2014

Argued and Submitted, March 5, 2014, Pasadena, California

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:03-cv-02860-GW-JWJ. D.C. No. 2:03-cv-02860-GW-JWJ. D.C. No. 2:03-cv-02860-GW-JWJ. George H. Wu, District Judge, Presiding.

SUMMARY[**]

Torture Victims Protection Act / Alien Tort Statute / Comity

The panel affirmed the dismissal, on remand, of an action brought under the Torture Victims Protection Act, the Alien Tort Statute, and California state law, alleging that two U.S.-headquartered corporations, Occidental Petroleum and AirScan, were complicit in the 1998 bombing of a Colombian village by members of the Colombian Air Force.

The panel held that plaintiffs' notice of appeal was not untimely because after the district court issued its ruling on limited remand, the case returned to the Court of Appeals, which continued to have jurisdiction under plaintiffs' original notice of appeal.

The panel held that pursuant to Mohamad v. Palestinian Auth., 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012), plaintiffs lacked a viable claim under the TVPA because defendants were corporations rather than natural persons.

The panel held that pursuant to Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), plaintiffs lacked a viable claim under the ATS because they did not rebut the presumption against extraterritorial application of the statute by alleging that defendants were U.S. corporations and that actions or decisions furthering the purported conspiracy between defendants and the Colombian Air Force took place in the United States. The panel declined to remand the case for amendment of the complaint in light of Kiobel.

Disagreeing with the district court, the panel held that plaintiffs' state-law claims must be dismissed on the ground of international comity. Interpreting Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993), the panel held that adjudicatory comity, which involves discretionary deference in declining to exercise jurisdiction over a case properly adjudicated in a foreign state, does not require a " true conflict" between domestic and foreign law. The panel concluded that in light of a State Department Statement of Interest and an amicus brief filed by the United States, the United States' interest in having the case adjudicated exclusively in Colombia was strong. The panel held that because of the strength of the U.S. government's interest in respecting Colombia's judicial process, the weakness of California's interest in the case, the strength of Colombia's interests in serving as an exclusive forum, and the adequacy of the Colombian courts as an alternative forum, plaintiffs' state-law claims were nonjusticiable under the doctrine of international comity.

District Judge Zilly concurred in part and dissented in part. He concurred with the majority's conclusion that plaintiffs' claim under the TVPA was properly dismissed. Dissenting from the majority's holding that plaintiffs' lacked a viable claim under the ATS, he wrote that Kiobel did not require " conduct" that occurred within the United States, and that plaintiffs should be allowed to amend their complaint. Judge Zilly also dissented from the majority's holding that international comity barred adjudication of plaintiffs' state law claims.

Paul L. Hoffman (argued), Adrienne J. Quarry, and Victoria Don, Schonbrun DeSimone Seplow, Harris Hoffman & Harrison, LLP, Venice, California; Terry Collingsworth and Christian Levesque, Conrad & Scherer, LLP, Washington, D.C.; Daniel M. Kovalik, Pittsburgh, Pennsylvania; Bridget Arimond, Center for International Human Rights, Northwestern University Law School, Chicago, Illinois, for Plaintiffs-Appellants-Cross-Appellees.

Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los Angeles, California, for Defendant-Appellee-Cross-Appellant Occidental Petroleum Corporation.

Thomas E. Fotopolous, and Sara M. Fotopolous, Fotopolous & Fotopolous, P.A., Titusville, Florida; Kenneth J. Berke, Berke & Kent LLP, Calabasas, California, for Defendant-Appellee-Cross-Appellant AirScan, Inc.

Marco B. Simons, Richard L. Herz, and Jonathan Kaufman, Washington, D.C., for Amicus Curiae Earthrights International.

William J. Aceves, California Western School of Law, San Diego, California, for Amicus Curiae Constitutional and International Law Scholars.

Before: Jay S. Bybee and Sandra S. Ikuta, Circuit Judges, and Thomas S. Zilly, Senior District Judge.[*]

OPINION

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BYBEE, Circuit Judge.

This suit arises out of the 1998 bombing of a Colombian village by members of the Colombian Air Force (CAF). Plaintiffs,1 citizens and former residents of Colombia, brought suit in California against two U.S.-headquartered corporations, Occidental Petroleum and AirScan, for their alleged complicity in the bombing. In two opinions issued in 2005, the district court first refused to dismiss the case on grounds of forum non conveniens and international comity, Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1134 (C.D. Cal. 2005) (" Mujica I " ), but then granted Defendants' motion to dismiss all of the claims under the political question doctrine. Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164 (C.D. Cal. 2005) (" Mujica II " ).

In a prior appeal, we declined to decide the issues presented and remanded the case to the district court for two purposes: first, " to consider whether a prudential exhaustion requirement applies in this case, and if so, whether that requirement bars any claims in this case," and, second, to " consider the effect, if any," of two Colombian court opinions related to the bombing. Mujica v. Occidental Petroleum Corp., 564 F.3d 1190, 1192 (9th Cir. 2009) (" Mujica III " ). On limited remand, the district court found that prudential exhaustion was not required. It also found that, if prudential exhaustion were required, Occidental had met its burden of pleading and proving the availability of local remedies. Mujica v. Occidental Petroleum Corp., Case No. CV-03-2860 (C.D. Cal., Mar. 8, 2010) (" Mujica IV " ). Plaintiffs and Defendants appealed and cross-appealed.

We hold that Plaintiffs lack a valid claim under either the Torture Victim Protection Act (TVPA) or the Alien Tort Statute (ATS). We affirm the district court's judgment of dismissal with respect to Plaintiffs' state-law claims, but we do so on the ground of international comity. Although the district court rejected dismissal on that ground, we conclude that the district court abused its discretion by applying the incorrect legal standard in its comity analysis, specifically by concluding erroneously that a " true conflict" between domestic and foreign law is required for the application of international comity in all circumstances. Mujica I, 381 F.Supp.2d at 1155. Guided by the correct standard for the application of comity, and informed by the district court's findings of fact in Mujica IV regarding the adequacy of Colombia as an alternative forum, we conclude that the state law claims before us are not justiciable under the doctrine of international comity.

I. BACKGROUND

A. The 1998 Bombing

The district court described the facts of the underlying events as follows:

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...

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