Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A.

• Citation: 988 F.2d 559
• Decision Date: 15 April 1993
• Docket Number: No. 91-2502,91-2502
• Parties: ASOCIACION NACIONAL de PESCADORES A PEQUENA ESCALA O ARTESANALES de COLOMBIA (ANPAC), et al., Plaintiffs-Appellants, v. DOW QUIMICA de COLOMBIA S.A., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 559

988 F.2d 559

1994 A.M.C. 295

ASOCIACION NACIONAL de PESCADORES A PEQUENA ESCALA O ARTESANALES de COLOMBIA (ANPAC), et al Plaintiffs-Appellants, v. DOW QUIMICA de COLOMBIA S.A., et al., Defendants-Appellees.

No. 91-2502.

United States Court of Appeals Fifth Circuit.

April 15, 1993.

David T. Altenbern, Houston, TX, Richard P. Clem, Clem & Crosby, Minneapolis, MN, German Sarmiento Palacio, Fundacion Para La Defensa Del Interes Publico (Fundepublico), Bogota, Rep. of Colombia, Charles E. Tulin, Anchorage, Alaska, for plaintiffs-appellants.

Richard O. Faulk, Akin, Gump, Strauss, Hauer & Feld, Houston, TX, for defendants-appellees.

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

Before REYNALDO G. GARZA, GARWOOD, and DUHE, Circuit Judges.

GARWOOD, Circuit Judge:

Small-scale commercial fishermen from Colombia sued an American corporation and its Colombian subsidiary in state court for unspecified damages arising from a chemical spill. The American defendant removed to federal court, alleging that the Colombian defendant had been fraudulently joined to defeat diversity jurisdiction. The plaintiffs requested a remand to state court, arguing that the suit did not place the requisite amount in controversy and that there was not complete diversity. The plaintiffs bring this appeal from the district court's denial of their remand motion, dismissal of the Colombian defendant for lack of in personam jurisdiction, and dismissal of the entire suit on forum non conveniens grounds. We affirm in part and reverse and vacate in part with directions to remand to state court.

Facts and Proceedings Below

On December 21, 1990, a group of approximately 700 Colombian fishermen filed suit in Texas state court against Dow Chemical Company (Dow Chemical) and its wholly owned subsidiary Dow Quimica de Colombia, S.A. (Dow Quimica), a Colombian corporation. The fishermen sought damages arising from the spill of pesticide from a local Dow Quimica storage tank into the Bay of Cartegena in Colombia on June 19, 1989. Their complaint alleged that the spill immediately killed tons of fish that would otherwise have been available for commercial harvest, and caused more lasting disruption of the food chain by killing various plant and animal life in the bay. The plaintiffs alleged that they had suffered grave economic losses, resulting in poverty and hunger. The plaintiffs further alleged that Dow Quimica had enlisted their help in removing the dead fish from the bay but had not warned them to take proper precautions against exposure to the pesticide, and as a result they had removed the fish with their bare hands and had suffered "personal injuries, including skin rashes." The theories of liability included negligence, strict liability, trespass, and nuisance. As mandated by Texas law for complaints seeking unliquidated damages, ¹ the plaintiffs did not plead a specific amount in damages, alleging only that "[d]amages far exceed the minimum jurisdictional limits of this court."

One of the plaintiffs was the Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC), an association incorporated under the laws of Colombia to promote the business interests of small-scale commercial fishermen.

On February 15, 1991, Dow Chemical removed the case to federal court. Its notice of removal alleged that Dow Quimica, a Colombian corporation with its principal place of business in Bogota, had no contacts with Texas that would support the exercise of personal jurisdiction over it by a Texas court, and that Dow Quimica had been fraudulently joined to defeat diversity jurisdiction. The notice of removal further alleged that the amount in controversy exceeded $50,000, so that all requirements for diversity jurisdiction were met as to the plaintiffs and Dow Chemical. See 28 U.S.C. §§ 1332, 1441. Several days later, Dow Quimica filed a motion to dismiss for lack of personal jurisdiction, and Dow Chemical moved for dismissal on forum non conveniens grounds. Dow Chemical alleged that considerations of efficiency and fairness dictated that trial be held in Colombia.

On March 15, 1991, the plaintiffs moved to remand the case to state district court, alleging that the federal court lacked subject matter jurisdiction because there was neither complete diversity nor the requisite amount in controversy. They attached an affidavit from their Colombian attorney declaring that (1) the individual plaintiffs had each executed a power of attorney to ANPAC, and ANPAC was acting solely as their collection agent, and was not pursuing a claim on its own behalf; and (2) no individual fisherman suffered a loss greater than $50,000. The plaintiffs' motion also argued that the defendants had not met their burden of proving fraudulent joinder, which was to show that there was no possibility that the plaintiffs could establish a cause of action against Dow Quimica. The plaintiffs argued that, although there had been no discovery in the case, the requisite jurisdictional contacts probably existed, because Dow Chemical operated the world's largest chemical plant in Texas, and it was likely that the spilled chemical had been produced in part in Texas, and also because in licensing the chemical in Colombia Dow Quimica had relied on studies produced by Dow Chemical in Texas.

On April 16th, the district court entered an order (1) denying the plaintiffs' motion to remand; (2) dismissing Dow Quimica for lack of personal jurisdiction; and (3) dismissing the entire case on forum non conveniens grounds. ANPAC and the individual plaintiffs bring this appeal.

Discussion

I. Amount in Controversy

The initial question is whether the district court should have granted plaintiffs' motion to remand because the amount in controversy required to support diversity jurisdiction ($50,000) was not present. Dow Chemical, which as the removing party bears the burden of establishing the basis for federal jurisdiction, Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961), offers several arguments to support the conclusion that $50,000 was in controversy.

The first is that the claims of the individual plaintiffs may be aggregated to reach $50,000. ² Although conceding that as a general rule aggregation is not allowed, Dow Chemical argues that this case falls within a recognized exception for instances in which the plaintiffs "unite to enforce a single title or right in which they have a common and undivided interest." Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 417, 60 L.Ed. 817 (1916). Dow Chemical characterizes the suit as one to recover damages to a single source of income--the fish in the Bay of Cartegena--that the plaintiffs had a common opportunity to pursue. Under the common law, Dow Chemical points out, there are no individual property rights in animals ferae naturae. Wiley v. Baker, 597 S.W.2d 3, 5 (Tex.Civ.App.--Tyler 1980, no writ).

However, the plaintiffs are not asking that the court assign a value to the fishing rights in the Bay of Cartegena and award them each a per capita share of the diminution in that value resulting from the chemical spill. Rather, they are each severally seeking as damages the income that each of them lost as a consequence of the chemical spill and compensation for the personal injuries they sustained. The personal injury claims clearly are individual and not aggregable. See Eagle Star Insurance Co. v. Maltes, 313 F.2d 778 (5th Cir.1963). The claims for loss of economic opportunity must also be classified as individual, for they will vary based on the particular plaintiff's fishing equipment, expertise, and so forth. Moreover, the value of the "common source" in which Dow Chemical argues that the plaintiffs are asserting an undivided interest is not finite and is not ascertainable except by reference to the income derived from it by the plaintiffs. Unlike a case in which an interest in property might be deemed indivisible because, for instance, its value secures two debts without priority, ³ in this case one plaintiff's recovery is neither dependent upon, nor necessarily reduced by, another's.

Although the right to fish in the Bay of Cartegena may have been shared by the public at large, the theory on which liability has been authorized in cases of this type is that the fishermen had special commercial interests in the water and thus suffered an injury not suffered by the public at large; as a consequence, their "specific pecuniary losses" could be recovered. See State of Louisiana ex rel. Guste v. M/V Testbank, 524 F.Supp. 1170, 1174 (E.D.La.1981), aff'd, 752 F.2d 1019 (5th Cir.1985) (en banc), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1976); accord Burgess v. M/V TAMANO, 370 F.Supp. 247, 250 (D.Me.1973).

The cases relied upon by Dow Chemical, Insurance Company of North America v. Chinowith, 393 F.2d 916 (5th Cir.), cert. denied, 393 U.S. 990, 89 S.Ct. 474, 21 L.Ed.2d 453 (1968), and Eagle v. American Telephone and Telegraph Co., 769 F.2d 541 (9th Cir.1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1465, 89 L.Ed.2d 721 (1986), are both ones in which the plaintiffs were seeking essentially derivative recovery for injury to another person or entity. In Chinowith the heirs of a deceased worker sought workers compensation death benefits, and we allowed aggregation because the governing law provided only "one right of recovery and one amount to be recovered, even though that recovery must be divided according to the Texas laws of descent and distribution." Id. at 918 (emphasis in original). In Eagle, the court dealt with what was in substance a species of shareholder derivative action for a single injury to the corporation. However, in the present case, at least in theory, each plaintiff directly suffered a distinct injury that varied in degree; we do not read their complaint as a derivative suit for common damage to public resources. ...