Aguinda v. Texaco, Inc.

• Decision Date: 30 May 2001
• Docket Number: No. 94 CIV. 9266.,No. 93 CIV. 7527.,93 CIV. 7527.,94 CIV. 9266.
• Citation: 142 F.Supp.2d 534
• Parties: Maria AGUINDA, et al., Plaintiffs, v. TEXACO, INC., Defendant. Gabriel Ashanga Jota, et al., Plaintiffs, v. Texaco, Inc., Defendant.
• Court: U.S. District Court — Southern District of New York

142 F.Supp.2d 534

Maria AGUINDA, et al., Plaintiffs, v. TEXACO, INC., Defendant.

Gabriel Ashanga Jota, et al., Plaintiffs, v. Texaco, Inc., Defendant.

No. 93 CIV. 7527.

No. 94 CIV. 9266.

United States District Court, S.D. New York.

May 30, 2001.

COPYRIGHT MATERIAL OMITTED

Cristobal Bonifaz, Law Offices of Cristobal Bonifaz, Amherst, MA, Martin J. D'Urso, Joseph C. Kohn, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Plaintiffs.

George S. Branch, Daniel J. King, King & Spalding, Atlanta, GA, Milton Schubin, Kaye, Scholer, Fierman, Hays & Handler, LLP, Ronald Minkoff, Beldoch Levine & Hoffman LLP, Jonathan S. Abady, Emery Celli Brinckerhoff & Abady LLP, New York City, for Defendant.

OPINION AND ORDER

RAKOFF, District Judge.

Pending before the Court is the renewed motion of defendant Texaco to dismiss these cases in favor of their being pursued in the courts of Ecuador (or in the courts of Peru by any Peruvian plaintiff who prefers that forum). Because Texaco has carried its burden on every element of the motion, and because the record establishes overwhelmingly that these cases have everything to do with Ecuador and nothing to do with the United States, the Court grants the motion and dismisses the cases on the ground of forum non conveniens.

Familiarity with the facts and prior proceedings in these cases is here assumed. See, e.g., Aquinda v. Texaco, Inc., 945 F.Supp. 625 (S.D.N.Y.1996), reconsid. denied, 175 F.R.D. 50 (S.D.N.Y.1997), vacated sub nomine, Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998). To recapitulate briefly, plaintiffs in the Aquinda suit are 76 residents of the Oriente region of Ecuador and plaintiffs in the Ashanga suit are 23 residents of the adjoining area in Peru (and four related organizations), each group of plaintiffs purporting to sue on behalf of a corresponding class of thousands of such residents. See Complaint, Aguinda v. Texaco, Inc., 1994 WL 142006 (S.D.N.Y. April 11, 1994) ("Aguinda Compl."), at ¶¶ 3-4 & Exs. B, C, D; Complaint, Ashanga v. Texaco, Inc., 94 Civ. 9266 ("Ashanga Compl."), at ¶¶ 3, 13.

Neither lawsuit alleges any injury to persons, property, or commerce in the United States. Instead, plaintiffs allege they "have or will suffer property damage, personal injuries, and increased risk of disease," Aguinda Compl. ¶ 11, in Ecuador and Peru respectively, as a result of negligent or otherwise improper oil piping and waste disposal practices that were initiated several decades ago, on lands owned by the Republic of Ecuador, by a consortium (the "Consortium") in which Texaco held an indirect interest. See Ashanga Compl. ¶¶ 6-7; Aguinda Compl. ¶¶ 6-7; Defendant Texaco, Inc.'s Appendix of Affidavits, Documents and Other Authorities in Support of Its Renewed Motions to Dismiss ("Texaco App."), Ex. 2, Affidavit of Texaco Petroleum Co. ("TexPet Aff."), at ¶ 7.

No present or former member of the Consortium is a party to these lawsuits. That includes the Government of Ecuador, which, either directly or through the state-owned corporation PetroEcuador, regulated the Consortium from the outset, acquired a minority stake in 1974, acquired full operational control in 1990, and acquired exclusive ownership in 1992. See, e.g., Jota, 157 F.3d at 156; Texaco App., Ex. 2, TexPet Aff. at ¶¶ 6-10 & Ex. B; Texaco App., Ex. 3, Deposition of William C. Benton ("Benton Dep.") at 201. Not only is the Government of Ecuador not named as a party but also it cannot be sued as a third-party defendant, since it has now formally affirmed that it will not waive sovereign immunity with respect to these cases, see infra.

Even before the Government of Ecuador took complete control of the Consortium, Texaco's only interest consisted of its indirect investment in Texaco Petroleum Company ("TexPet"), a Delaware corporation and fourth-tier subsidiary of Texaco, which initially operated the petroleum concession for the Consortium and held varying interests in the Consortium until 1992. See Jota, 157 F.3d at 156; TexPet Aff. at ¶¶ 2, 3, 10. But TexPet, though sued in the courts of Ecuador, see infra, is not named as a party here.

Instead, the sole defendant is Texaco, based on broad but conclusory allegations that Texaco directly controlled the Consortium's activities from the United States, see Aguinda Compl. at ¶¶ 2, 28; Ashanga Compl. at ¶¶ 11, 25. Faced with similar allegations in a parallel action brought against Texaco by some of the same plaintiffs as here, the United States District Court for the Southern District of Texas dismissed the case in favor of its being pursued in the courts of Ecuador. See Sequihua v. Texaco, Inc., 847 F.Supp. 61, 63 (S.D.Tex.1994). Here, however, the late Judge Broderick (to whom these cases were originally assigned) — while expressing doubts that these suits would survive a similar motion to dismiss, see Aguinda v. Texaco, Inc., 1994 WL 142006, at *2 (S.D.N.Y. Apr. 11, 1994) — allowed plaintiffs to conduct considerable discovery as to the alleged Texaco involvement.

Nonetheless, the plaintiffs, after taking numerous depositions and obtaining responses to no fewer than 81 document requests and 143 interrogatories, were unable to adduce material competent evidence of meaningful Texaco involvement in the misconduct complained of — to the point that plaintiffs essentially stipulated as much. See Texaco App., Ex. 21, Stipulation and Order, Aguinda v. Texaco Inc., 93 Civ. 7527, dated July 12, 1995. Accordingly, this judge (to whom the cases were ultimately reassigned following Judge Broderick's death) dismissed the cases on the ground, inter alia, of forum non conveniens. See Aquinda v. Texaco, Inc., 945 F.Supp. 625 (S.D.N.Y.1996), reconsid. denied, 175 F.R.D. 50 (S.D.N.Y.1997); Ashanga v. Texaco, Inc., 94 Civ. 9266 (judgment, Aug. 13, 1997). The Court of Appeals reversed, however, finding, so far as forum non conveniens was concerned, that the district court had failed to obtain "a commitment by Texaco to submit to the jurisdiction of the Ecuadoran courts for purposes of this action" and, further, had relied too heavily on the determinations of the District Court for the Southern District of Texas in weighing the factors relevant to a forum non conveniens dismissal. Jota, 157 F.3d at 159.

Following remand, Texaco provided the missing commitment to submit to the jurisdiction of the courts of Ecuador (and Peru, as well) and then renewed its motion to dismiss on ground of forum non conveniens. After receiving further briefing from the parties and obtaining clarification from the Government of Ecuador as to its current posture respecting these lawsuits, cf. Jota, 157 F.3d at 160, this Court, by Order dated January 21, 2000, indicated that it was leaning toward granting the motion but would defer ruling in order to give the plaintiffs the chance to reopen an issue they had previously abandoned, i.e., whether the courts of Ecuador (and/or Peru) are sufficiently independent and impartial to provide the requisite modicum of due process. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 141-42 & n. 1 (2d Cir.2000).

After briefing on this issue was completed, the matter was further delayed by plaintiffs' mandamus petition to the Court of Appeals seeking this Court's recusal. That petition having now been denied, see In re Aguinda, 241 F.3d 194, 2000 WL 33182244 (2d Cir. Feb. 23, 2001), and plaintiffs' further petition for rehearing en banc of that denial having also been denied by order of the Court of Appeals filed May 29, 2001, the Court is now free to rule on the pending motion.

To prevail on a motion to dismiss on the ground of forum non conveniens, a defendant must demonstrate (1) that there exists an adequate alternative forum, see DiRienzo v. Philip Servs. Corp., 232 F.3d 49, 56 (2d Cir.2000); Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 510 (2d Cir.1998); PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir.1998), and (2) that the ordinarily strong presumption favoring the plaintiff's chosen forum is overcome by a balance of the relevant factors of private and public interest weighing heavily in favor of the alternative forum, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-57, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reh'g denied, 455 U.S. 928, 102 S.Ct. 1296 71 L.Ed.2d 474 (1982); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-10, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ("Gilbert"); DiRienzo, 232 F.3d at 56-57; PT United Can Co., 138 F.3d at 73-74.

The requirement of an adequate alternative forum "[o]rdinarily ... will be satisfied when the defendant is `amenable to process' in the other jurisdiction." Piper Aircraft, 454 U.S. at 255 n. 22, 102 S.Ct. 252 (quoting Gilbert, 330 U.S. at 506-07, 67 S.Ct. 839); see also Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974, 980 (2d Cir.1993). Furthermore, "[a]n agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement." DiRienzo, 232 F.3d at 57; see also Jota, 157 F.3d at 159. Here, Texaco has now unambiguously agreed in writing to being sued on these claims (or their Ecuadorian equivalents) in Ecuador, to accept service of process in Ecuador, and to waive for 60 days after the date of this dismissal any statute of limitations-based defenses that may have matured since the filing of the instant Complaints. See Texaco Inc.'s Memorandum of Law In Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity ("Def.'s Mem.") at 12-13; Texaco App., Exs. 18 & 19, Texaco Inc.'s Notice of Agreements in Satisfying Forum Non Conveniens and International Comity Conditions; transcript of hearing on defendant's renewed motion to dismiss, Feb. 1, 1999 ("Tr.") at 5. Though not required to do so by the Court of Appeals, Texaco has also provided identical assurances with respect to a Peruvian forum, should any of the Peruvian residents in Ashanga prefer that forum. See Def.'s Mem. at 12-13; T...